I wrote last fall about some implications of the metaphor of the “marketplace of ideas,” much used (especially in the United States) in the realm of free speech law. What prompted my reflection was a presentation by Robert Post, the Dean of Yale Law School, who argued that institutions engaged in the production of specialized knowledge indispensable in a democracy―first and foremost universities―actually do not practice free speech internally. Not all ideas are equal in an academic setting. Academic disciplines accept some claims as true and reject others as false, and so, argues Dean Post, it is misleading to apply the notion of a marketplace of ideas, which implies the equality of all the competing ideas, when discussing academic freedom. Academic freedom is not the freedom of individual academics to say whatever they want without suffering negative consequences for it, but rather the freedom of academia as a whole to apply only its own disciplinary criteria to judging purportedly academic ideas.
For my part, I think that Dean Post is right to point out that some institutions that are essential for a healthy marketplace of ideas do not function on market principles internally. I also said, however, that he is wrong to say that this makes the marketplace metaphor inapplicable, because the same situation prevails in most real market too―firms, which are essential sellers in most markets, also do not follow the market principles internally, as the great Ronald Coase pointed out.
Academic institutions are not the only ones to which these thoughts apply. And here’s a crazy thought: judicial independence, at least as it has developed in Canada, looks a lot like an instance of the sort of free speech for an expert community described by Dean Post.
Like universities, the courts are in the business of producing a particular kind of ideas―specifically, ideas about the truth or falsity of certain propositions of law. And perhaps to an even greater extent than in scientific research, there are recognized ways of generating such ideas (the rules of procedure and evidence that courts must follow) and for evaluating them (appeals). As in scientific research, the institution engaged in the production and evaluation of these ideas (the court system) does not function, internally, as a free marketplace. Unlike in a market, there is a hierarchy, with some producers having higher status than others―courts of appeal, which intervene to correct the errors of trial courts, and which are deemed to be correct simply by virtue of their hierarchical position, rather like in academia hiring or tenure committees, or the editors of scientific journals, are deemed to be right by virtue of their functions. They, as well as appellate courts, may actually be wrong, and their decisions might be open to external criticism, just as decisions of appellate courts are, but in both cases their judgment is regarded as authoritative notwithstanding external criticism.
And, much as academic freedom means that an academic, can suffer penalties for his work if, but only if, authoritative academic processes or institutions conclude that he or she must so suffer, judicial independence means that a judge can suffer (be punished and, eventually, dismissed from office) only if the members of the institution to which he or she belongs so decide. This is the idea behind judicial councils―advisory bodies which consist mostly (though not exclusively) of judges and which make recommendations regarding judicial appointments and, perhaps more importantly, sanctions to be applied to judges for misbehaviour in office. Now admittedly there are some differences between judicial councils and, say, tenure committees. For one thing, as I just mentioned, their membership does not only consist of judges. For another, their recommendations are not determinative of judicial appointments, and in even in the realm of judicial dismissal, the final decision belongs to political authorities (Parliament and the Governor General in the case of s. 96 judges, provincial governments in the case of provincially-appointed judges). Still, I think that the similarities outweigh the differences.
But does it make sense to speak of judicial independence is a sort of free speech right rather than a self-standing principle? I think it does, at least if we do not take this description to be the only correct one. From the standpoint of judges, independence means being able to say things that they believe to be correct within the parameters of their discipline―for example that an Act of Parliament is constitutional―without suffering unless, as a matter of their own discipline, they are wrong. (Now, judges aren’t punished simply if their decisions are overturned on appeal, but they hate it when that happens; and I suppose that if a judge turns out to always be making wrong decisions―if he or she turns out to be blatantly incompetent―he or she can in fact be punished.)
It is interesting to refer here to what is, I believe, the first formal protection of freedom of speech―that of the 1688 Bill of Rights, which provided “[t]hat the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” This also looks a lot like a right, for members of a specific community engaged in the production of a special kind of public good in the marketplace of ideas―namely, ideas about the government of the country―not to be punished for what they say except insofar as such punishment may be imposed by their colleagues, in that case fellow parliamentarians. Formal protections of freedom of speech, such as that of the American First Amendment and of s. 2(a) of the Charter were then extend to the citizenry as a whole (and to non-citizens too), but, as Dean Post reminds us, the somewhat different institutional version of the freedom of speech has not gone away.
Now, even if my re-conceptualization of judicial independence is not crazy, there remains the question of whether it is useful. I’m not sure that it is. But re-conceptualizations are a favourite pastime of legal academics. Some―the re-invention of areas of the law formerly understood in terms of duty in terms of economics comes to mind―are wildly successful. Others are just games, really. Mine is not exactly likely to bring me Posnerian fame and fortune, but it is fun all the same, for me at least.