Standing and the Compositional Fallacy

The Rose Theatre was the sight of the first performances of some of Shakespeare’s plays. The remains of the theatre were unearthed in London in the late 1980s. Shortly after a group of citizens formed the Rose Theatre Trust Company to help protect what was left of the theatre. The Trust asked the Secretary of State to ‘list’ the theatre, which would have given it some protection from development and interference. The Secretary of State refused, however, and the trust applied for judicial review of the Secretary of State’s refusal. In one of the more famous cases in English administrative law, Scheimann J held that trust lacked standing to make its application (R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co, [1990] 2 WLR 186, [1990] 1 ALL ER 754; brief description).

Scheimann J reasoned as follows:

(1) Under the relevant statute, the Rose Theatre Trust would have had standing only if it had a ‘sufficient interest’ in the matter to be decided.

(2) If no member of a group (campaign, trust, etc) has a sufficient interest, then the group does not have a sufficient interest.

(3) No member of the Rose Theatre Trust had a sufficient interest.

(4) So, the Rose Theatre Trust did not have a sufficient interest.

(5) So, the Rose Theatre Trust did not have standing.

The key claim was (2). In adopting (2), Scheimann J was on safe ground, legally speaking. He was echoing Lord Wilberforce, who in the Fleet Street Casuals Case said that ‘an aggregate of individuals each of whom has no interest cannot itself have an interest’.

Now, there’s a logical fallacy called the ‘compositional fallacy’. It arises when it’s inferred that what’s true of a part of a whole is true of the whole. Each chapter in a book might be fewer than 30 pages, but the book will be longer than 30 pages. Each ingredient in a dish might be delicious, but not the dish itself. Each player on a football team might be excellent, but the team only middling. Each member of the Rose Theatre Trust lacks a sufficient interest – from which Scheimann J inferred that the trust itself lacked a sufficient interest. It looks like Scheimann J committed the compositional fallacy, and the culprit is (2).

We should be suspicious of (2). That doesn’t mean (2) is false. It could happen to be true that whenever the individuals in a group lack a sufficient interest, so does the group. But we need to check. When we do that, I think we can quickly see that (2) is in fact false.

Small to Big

Let’s suppose that at least some interests can be aggregated across groups, such that the group has an interest equal to the size of the interests of its members taken together. Imagine that a loss of £10 is an insufficient interest for standing, but that the loss of £1,000,000 is sufficient. Then a group of 100,000 people each of whom stands to lose £10 by a decision would have a sufficient interest in the validity of that decision, even though none of its members have a sufficient interest in it. This is a stylized example, but think of an airport development that lowers property values by a small amount across a wide area, or a hospital reorganization that increases wait times for many people by a small amount. These are decisions that have many small effects, and collectively a substantial effect. The group made up of all those affected have a substantial interest in the decision. Beyond some threshold, the interest is surely ‘sufficient’ for standing.

Group-Centred Interests

You might not like the examples under Small to Big because they assume that interests can be added together. So here’s an example that doesn’t make that assumption. Suppose that a football club wants to move up a division. It can’t do that with its current players. It’s in the club’s interests to sack all of its players, and sign all new ones. But – and this is the key thing – the decision by the club to sack all of its players is not in any of the players’ interests. So, here we have an interest of the club that diverges from the interests of its members. Likewise, a university’s interests – its prestige in the world, the vibrancy of its intellectual culture, the size of its endowment, its long-term ability to attract the best and brightest, etc. – might be furthered by taking steps at odds with the interests of its current employees and students. These groups might have substantial interests, where their members have none. (There are other examples along similar lines here.)

Group Rights

I’ve been assuming that a ‘sufficient’ interest is a large interest, and thus something that makes a group or person’s life a large amount better. But there’s something else sufficiency might mean. Here’s Joseph Raz on interests and rights: ‘X has a right if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty’ (Morality of Freedom 166). Perhaps a sufficient interest is an interest sufficient to count as a right. Why would that matter? It’s fairly clear that the members of a group may together have interests sufficient to count as a right, even though none of the members individually have an interest sufficient to count as a right. The right is a ‘group right’ (assuming some other conditions are met). A national group might have a right to self-determination, say, even though none of its members have a right to self-determination. A minority language group might have a right to certain protections which individual members do not. Such groups would have ‘sufficient interests’ – because they have interests sufficient to trigger rights – even though their members wouldn’t.

What does all this mean for Rose Theatre Trust? I’m inclined to say that the case most resembles the examples in Small to Big, where a number of small interests are added together to form a substantial interest. The members of the trust – experts in literature, the theatre, and archaeology, as well as local residents – cared about what happened to the Rose Theatre. Its destruction would have lessened their enjoyment of their surroundings. It would have removed an opportunity they valued to appreciate culture and history. Perhaps these aren’t the most important interests, but they count in the balance. Taken together, they ought to have been sufficient for the purposes of standing.

 

 

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