The Pervasiveness of Polycentricity
Public Law, pp. 101-124, 2008
43 Pages Posted: 7 Nov 2007 Last revised: 26 May 2008
Lon Fuller's claim that polycentric disputes are unsuitable for adjudication has had a powerful impact on the English law of justiciability. Fuller conceded, as many have noted, that polycentricity is a matter of degree and that counter-examples can be admitted without collapsing the concept. But this article suggests that not only do counter-examples exist, but that the law is rife with them, and that the existence of such examples forces us to refine or reject Fuller's doctrine. The issue is important because the argument that polycentric issues are non-justiciable is most frequently raised in the context of resource allocation disputes. Such disputes frequently involve claims to health, education, social security or housing resources. As such, they often concern internationally recognised human rights claims of the highest order. But many say that social rights should not be legal rights because they would require judges to adjudicate polycentric disputes. This article suggests we need to reconsider this objection. It shows how polycentricity is a pervasive feature of adjudication, discussing a number of examples but choosing to focus principally on an area that is infrequently discussed in public law - the law of taxation. It is shown that tax law is heavily polycentric but that there is an accepted role for courts in protecting citizens against the spectre of unfettered public power. Demonstrating the pervasiveness of polycentricity does not alone make the case for rejecting the wisdom of Fuller's doctrine, a good deal of which appears sound. But it helps illuminate both how the concept is invoked selectively, and how it cannot without further refinement be relied upon to justify judicial restraint.
Keywords: polycentricity, Fuller, social rights, adjudication, tax law, legal process school
JEL Classification: K41, K40, K10, K30, K34
Suggested Citation: Suggested Citation