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302 Chapter 13
polycentricity has important consequences for judicial adjudication of
polycentric matters, it is difficult to see how it can be used as a principled
basis for deciding which matters are, or should be, justiciable.
The second important issue raised by Fuller is the role of the judge.
Fuller’s conception of adjudication coloured his understanding of the role of
the judge. For Fuller, a judge is more like an umpire who makes decisions
on the basis of the evidence presented by the parties. 51
Adjudication is, then, a device which gives formal and institutional
expression to the influence of reasoned argument in human affairs. As such it
assumes a burden of rationality not borne by any other form of social
ordering. A decision which is the product of reasoned argument must be
prepared itself to meet the test of reason. We demand of an adjudicative
decision a kind of rationality we do not expect of the results of contract or of
voting. This higher responsibility toward rationality is at once the strength and
the weakness of adjudication as a form of social ordering. 52
For Fuller, the only way to ensure that the judiciary will not pre-judge a
matter or be biased is through the adversarial procedure. As a result, he
failed to consider the potential of a more inquisitorial approach, as used
in many continental judicial procedures, for example, as an alternative to
his strictly adversarial approach. 53 It is arguable that some of the
deficiencies in the adjudication process identified by Fuller could be
ameliorated if the judge in a polycentric dispute adopted a more
inquisitorial role. 54 In such a role, a judge would be able to help identify
polycentric issues and protect the interests of potentially affected parties
which are not before the court. 55 The Indian courts provide a good
example of how this could be done: These courts have instituted
mechanisms to ensure that adequate evidence is placed before them through
the appointment of ‘socio-legal fact-finding’ commissions. 56 Similarly,
courts can appoint an amicus curiae to represent the interests of those not
directly before the court, or request a state body, or even a non-governmental
organisation, to make representations to the courts.
51
Fuller (n 39 above) 365 - 367.
52 Fuller (n 39 above) 366 - 367.
53 Allison (n 44 above) 377, 380. It was this ‘Anglo-American bias’, recognised by Fuller,
which was one of the reasons Fuller was not prepared to publish his article: Allison
(n 44 above) 377.
54 In South Africa, eg, courts are not unfamiliar with an inquisitorial approach, as there is a
statutory obligation to adopt an inquisitorial approach in criminal law proceedings,
where this is necessary to obtain a just decision: Rex v Hepworth [1928] AD 265.
55 M Pieterse ‘Coming to terms with judicial enforcement of socio-economic rights’
(2004) 20 SAJHR 383 396; Allison (n 44 above) 376 - 377.
56 PN Bhagwati ‘Judicial activism and public interest litigation’ (1985) 23 Columbia
Journal of Transnational Law 561, 574 - 575; GL Peiris ‘Public interest litigation in the
Indian subcontinent: Current dimensions’ (1991) 40 International and Comparative Law
Quarterly 66, 77 - 81; U Baxi ‘Judicial discourse: Dialectics of the face and the mask’ (1993) 35
Journal of the Indian Law Institute 1, 7 - 8; Shah ‘Illuminating the possible in the
developing world: Guaranteeing the human right to health in India’ (1999) 32 Vanderbilt
Journal of Transnational Law 435, 471.