May 08

Adam Perry & Farrah Ahmed: Standing & Civic Virtue

Here’s a puzzle about standing. Suppose you’re a resident of, say, London. You love all things herpetological. You’re even the secretary of the local Herpetological Society (a real thing, by the way). You hear that the local council plans to build a power plant on public land – land which also happens to be one of the few remaining habitats of the endangered smooth snake (also a real thing). Incensed at the threat to the environment, and after duly trying to get the council to change its mind, you seek leave to apply for judicial review of the decision. To succeed, you’ll need to show you have “standing”. The test for standing in England and Wales is a “sufficient interest” in the matter to which the application relates. Other common law jurisdictions have similar tests.

How will a court decide whether you have a sufficient interest in the matter? You don’t have a property or financial or other private interest in the survival of the smooth snake. So, if you have an interest in the matter to which your application relates, it’s because you’re a member of the public – you’re a citizen, in other words – and the public has a stake in the matter. One thing a court will want to know, therefore, is that the protection of the smooth snake really is of public importance. This is a question, first and foremost, about the case which you bring.

You’re not home free yet, because a court will also be interested in you. It isn’t just the applicant’s case that matters to standing, in public interest cases. It’s the applicant themselves. Briefly, courts want to know:

1. that you have a “genuine concern” for the matter to which your application relates;

2. that you aren’t a “mischief maker”, a “meddler”, a “busybody”;

3. that you aren’t acting out of “ill will”, “ill motive”, or for an “improper purpose”;

4. that you’re “public spirited”;

5. that you have the right “history” and “experience”;

6. that you are “well-informed”;

7. that you have the right “expertise” and “credentials”, and hold a position of “respect”.

These are quotes from a dozen or so cases in England and Wales over the last 35 years. (These factors feature in standing decisions in other common law jurisdictions – including those with liberal standing rules like India.)

Here’s the puzzle, then. When someone doesn’t have a private interest in a matter, it makes sense for courts to inquire into whether there’s a public interest in the matter. So it makes sense for them to ask about the features of the applicant’s case – what it’s about, and so forth. But why do features of the applicant matter? Shouldn’t anyone be entitled to standing, if they bring a case of public importance?

We think we can solve this puzzle, with civic virtue as the key.

We have two central claims. The first is explanatory: courts care about these factors when public interest is at stake because they are indicators of the civic virtue of the claimant. The second is justificatory: courts have reason to require that those seeking to vindicate a public interest possess civic virtue.

In what follows we outline our understanding of civic virtue and then defend each of these claims.

Civic Virtue

Like other virtues, such as honesty or courage or charity, civic virtue is a character trait or deeply embedded disposition. This disposition will show itself in a range of choices, actions, emotions, expectations, and so forth. A virtuous citizen will, for example, be disposed to feel sympathy with her fellow citizens; to praise those who devote themselves to public good; to be alert to the possibilities of serving the public good herself; to support policies that she thinks will improve the conditions in her community; to condemn corruption and self-dealing in office; and so on.

To be a virtuous person is to have a complex mindset. What marks the mindset of a virtuous citizen is the wholehearted acceptance of the public good as a strong, though not necessarily conclusive, reason for action. As a result, the good citizen will be motivated by a concern for the public good. (Full citations are in the article, but Rosalind Hursthouse’s work on virtue is especially useful.)

To this very rough sketch, we need to add two points. Just like being an honest or a courageous or a charitable person makes you a better person, being a good citizen is morally praiseworthy, other things being equal. And yet, at the same time, we’re accustomed to saying things like – he’s too honest, or she doesn’t know when to be brave, or he’s too generous for his own good. How can this be? How can a trait be good, and yet someone be open to reproach for showing it?

The answer is that, to fully possess some virtue, you need to have practical wisdom – to have the situational awareness to know when, where, how and with respect to whom – to manifest some virtue. In the civic context, practical wisdom might involve an appreciation of the competing concerns among members of the public on some issue; the arguments for and against the relevant policy proposals; the means by which, and the forms by which, proposals can be pursued; a knowledge of the legal and institutional context in which policy is to be settled; and so on.

The Explanatory Claim

Imagine that a court wants to know whether you are acting as a virtuous citizen by bringing your application in the smooth snake case. What would a court inquire about?

First, the court will want to know that you have the motivation appropriate to a good citizen. It will want to know that you desire to contribute to the public good. And, indeed, this is what courts ask about, in case after case. In Walton v Scottish Ministers, for example, the claimant was entitled to standing because of his ‘genuine concern’ about the effect of the impugned decision on the environment.

Second, the court will want to know whether you have a disposition to contribute to the public good, demonstrated over time. Again, this is what courts do care about in public interest cases. The World Development Movement, for example was granted standing partly because of its ‘20 year’ experience and intense involvement in development issues. Greenpeace was granted standing partly because of its deep ‘experience in environmental matters’.

Third, a court will care about whether you have practical wisdom. It’s no surprise, then, that Greenpeace was granted standing partly because it was ‘well-informed’; because it had ‘access to experts’; and because it was able to mount a ‘carefully focused, selected, relevant’ challenge. The Child Poverty Action Group was likewise granted standing partly on the basis of its ‘prominent role in giving advice, guidance, and assistance’ on relevant matters. Litigants granted public interest standing will have good intentions, but they will also know how to make those intentions a reality.

Seen this way, factors 1-3 are relevant to the motive appropriate to civic virtue. Factors 4 and 5 are relevant to the disposition that constitutes civic virtue. Factors 6 and 7 go to the practical wisdom essential to full civic virtue. So, by thinking of civic virtue as essential to public interest standing, we can account for all the applicant-based factors courts rely on.

The Justificatory Claim

Explaining what courts do is one thing; justifying it is another. But civic virtue can help here, too.

An applicant’s civic virtue can evidence the public’s interest in the matter. Suppose you are an exemplary citizen. Not only are you a member of the Herpetological Society; you are an authority on the smooth snake. When you think about the public interest, you deploy your good judgment and intellectual discernment. Your virtue makes you a good guide to the matters that affect the lives of the people in your community. As a result, your involvement in a case signals that the public has a stake in the matter.

Further, a virtuous citizen makes a better advocate for the public good than the selfish, indifferent, or inept citizen, other things being equal. That should be obvious: the virtuous citizen uses her judgment, knowledge, and experience when crafting her challenge. She fits Otton J’s admiring description in Greenpeace of a litigant capable of mounting a ‘relevant’, ‘well-argued’, and ‘effective’ challenge. The virtuous citizen also has traits that help her persevere in her challenge. Temptations and obstacles will no doubt arise, but the virtuous citizen is less likely to be deterred.

The final reason has a different character. Civic virtue is of value to society. Our legal and political institutions need citizens who are willing to contribute their ‘moral and intellectual worth’, as John Stuart Mill says. How, then, can we foster civic virtue? Virtues are like muscles: they strengthen with use. By providing opportunities for applicants to act virtuously, courts reinforce their disposition to contribute to the public good. Granting standing also holds up the applicant, and marks her as an example of civic virtue for others to emulate. That’s how we – but obviously not everyone – see Gina Miller, the litigant in the Brexit case.

So, why do courts care who brings a case in the public interest? Why should they care? Civic virtue can answer both questions. The features of an applicant courts ask about are all markers of civic virtue. It makes sense to ask about them because civic virtue is evidence that an applicant has an interest, will make a good advocate, and presents an opportunity to foster good citizenship.

Our full argument, including some suggestions for reform, is set out in an article forthcoming in the Law Quarterly Review.