WHY COMMITMENT AND COOPERATION?
Before we talk about differences in high courts across countries, one other natural question arises: Why should we compare courts based on commitment and cooperation? High courts differ along other dimensions such as how “active” they are in deciding policy issues, how consistent they are in their decisions over time, or even how many cases the judges hear. Courts can be compared in a myriad of ways. We address commitment and cooperation as they help frame many of these other ways to compare courts and the important debates about the role of high courts.
Take, for example, how willing a court is to decide policy issues. Debates continually arise about how “activist” a court is in making decisions. Does the court strike down legislation as unconstitutional too often? The answer, and even what “activist” means, depends in part on how the court makes decisions. One may be less happy with a highly political court that engages in political trade-offs striking down laws as unconstitutional than with a court composed of judges who try to decide more closely on the law. Or maybe not. It may be that one’s view of the law and the role of the courts provides scope for and even depends on judges following their own political views. In any case, how one feels about a court’s role, and even how one classifies a court, will depend on its level of commitment and cooperation.
Similarly, consider how consistent a court’s decisions are over time. Does the court change its view regularly on important issues? Does it unswervingly apply a conservative or liberal approach to all areas of law from tax to criminal to human rights? Consistency in and of itself has benefits. Individuals can know how to plan their lives better if they have a greater sense of how the law is developing. Litigants can make better decisions about their cases, whether to continue to fight or to settle or drop a case. Lower courts can more faithfully follow the higher court’s position. However, one’s view of consistency may depend on how the decisions are made. A court continually stocked with individuals from similar backgrounds and who decide in line with their personal views may give consistent and predictable decisions. Those decisions may not, however, be fair or just. Moreover, dissents may provide a less clear or consistent view of a court’s opinion on an issue but may be valuable in signaling future paths the court may follow. Again commitment and cooperation tend to at least influence our views of the value of consistency.
We view commitment and cooperation as fundamental dimensions for comparing across courts and addressing larger questions about the role of courts. They are intimately connected with other possible distinctions across courts such as how many cases different high courts hear. Courts hear very different numbers of cases—the US Supreme Court hears about 80 cases per year while the Indian Supreme Court holds about 7,500 regular hearings annually. The number of cases a court hears may reflect its view of its role. Does it see itself as correcting errors in the lower courts, or just as dealing with cases raising issues of national importance? Yet it may also have profound effects on how judges make decisions. A judge may hear so many cases that she is unable to adequately consider each case, leading to poorer quality decisions and perhaps less cooperation with her colleagues.
As we noted earlier, we are engaged here in a positive exercise—looking at how the design of high courts influences how judges decide. There is of course a normative question about what type of court and what sort of design is best. Is it possible to design an “optimal” court? We do not seek to answer this question. Instead we view the CC Space as providing a framework to discuss how altering the design of a court affects how it decides. By comparing across existing design choices, we may be able to find a range we should be working toward, where a particular court’s location inside or outside the range and the path toward a more just court may depend on other factors such as the strength of other institutions. We may be able to point to examples of courts outside the range—possibly because they are too political or too overwhelmed by the caseload to decide effectively and fairly. However, the road to any discussion of different designs must first lie through establishing what affects court decisions. Once we have a better idea if and to what extent decisions vary with things such as the use of panels or the appointments process, we can start asking what we may want to change.
-  Amartya Sen, The Idea of Justice (Cambridge, MA: Harvard University Press, 2009) (arguing for a comparative theory of justice that seeks to compare across feasible, existing institutions to move toward more justice, rather than to identify ideally just institutions).