Taking Doctrine Seriously

Some thoughts on a most interesting lecture by Justice David Stratas

Last week, at the Canadian Constitution Foundation’s Law and Freedom 2016 conference, Justice David Stratas of the Federal Court of Appeal delivered a fascinating lecture called “The Decline of Legal Doctrine.” I highly recommend it. I won’t summarize it beyond saying that Justice Stratas’ thesis is that judges, lawyers, and academics are all guilty of a lack of interest in legal doctrine and tend to see the law as largely result oriented, which diminishes the legitimacy of judicial decision-making and risks leaving us at the mercy of dangerous prevailing opinions should crisis strike. There is simply too much there, and it is too important, for a summary to be useful. I will share a few reflections of my own below. Here it is.

Before I get to my comments, I want to say that I am, of course, very flattered at being mentioned as one of the exceptions to the general lack of interest in legal doctrine. Indeed, I am flattered that Justice Stratas should read my blog at all. I hope, however, that my gratitude for Justice Stratas’ kind words does not bias my views of his lecture.

* * *

Here they are, in a somewhat disjointed form. With one exception, they concern things that Justice Stratas did not say, and which I would love to hear him say more, at some future point, rather than things he did say with which I disagree. They are, in other words, intended not as criticisms, but as questions.

1. Let me start with the word “doctrine” itself. Maybe it’s just me, but I find it a slippery one ― it’s one of those words that lawyers love to use that can mean different things in different contexts, perhaps depending on whether we use them with a definite or an indefinite article, or no article at all, while assuming that everyone knows what we are talking about. A non-lawyer in the audience asked Justice Stratas what the difference between legal “theory” and legal “doctrine” was, but only got a definition of “theory” in response. As best I can though, legal doctrine (no article) is the set of rules and principles that can be derived or inferred from judicial decisions.

Here’s an interesting twist though: later in the Q&A, Justice Stratas spoke of the various types of judges and said that “doctrinal” judges are those who “understand the rules but want to know more about how to use them and these are perhaps reformist people that might want to tweak or modify the rules.” I think that this connection, in practice if not as a matter of definition, between an interest in the rules and their underlying principles on the one hand, and an interest in tweaking them on the other, might be, if not slightly paradoxical, then at least in tension with the need for doctrinal stability of which Justice Stratas spoke so passionately. Does doctrine bear the seeds of its own destruction?

2. Justice Stratas argues that we need stable, coherent, legal doctrine to which lawyers and judges alike are committed because we might not always live in “benign times,” and in a moment of crisis we will be better off if judges decide controversial cases on the basis of stable legal doctrine rather than of what they feel is right or fair in those ominous circumstances. Crises rarely make for clear, even-handed thinking. Legal doctrine is, in other words, a form of pre-commitment that will save us from the siren calls of rights-crushing emergency.

I would like to think that this is true. But is it? Can we think of situations where doctrine has played such a role? And indeed, why do we think that a commitment to legality will be less likely to falter in a time of crisis than a commitment to justice? That, after all, is the underlying premise of the claim that doctrine will save us even if the judges’ sense of right and wrong is swayed by momentary considerations. Again, I would like this to be true, but I wonder if we have reasons to think it is, other than our desire for it to be.

3. Justice Stratas argued that we must devote ourselves to stabilizing legal doctrine, to settling public law doctrine in a comprehensive way ― and that we must do it right away. Tomorrow will be too late. At present, public law is too unsettled ― precedents can be reversed with little apparent explanation, or simply ignored without being reversed. (An aside: one area which Justice Stratas specifically mentioned as illustrating this trend is the courts’ relationship to empirical evidence, and the rule ― which he tied to the Supreme Court’s recent assisted suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, but which actually goes a little further back, to Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 ― that appellate courts should defer to a trial judge’s findings with respect to such evidence. Some of the points he made in criticizing this rule seem to echo ideas I have expressed on this blog, especially here, so I was very glad to learn that Justice Stratas shares these concerns.)

Here’s a question though. If we accept, as I think we should, the mission that Justice Stratas wants us to undertake, what is our departure point? Do we simply take the current state of the law as a given and stop messing with it, on the assumption that it is more important that things be settled than that they be settled right? Or should we, in order to build on solid foundations, go back to first principles to some extent ― at the risk of reversing some more precedents? Are there other potential pitfalls to deciding from first principles? Justice Stratas praised the Supreme Court of the 1980s for its “painstaking,” “scholarly,” and “balanced” approach to Charter cases, in which it had to build doctrine from the ground up ― but I wonder if that is not idealizing things somewhat.

4. Justice Stratas argues that a doctrine-focused approach to judicial decision-making, even in cases of first impression or those involving conflicting lines of authority, can be free from politics, and that the judges’ personal views matter less than people tend to suppose. That is true, as I’ve often said, if we understand politics in a partisan sense or, as Justice Stratas might have meant it, as synonymous with results-oriented reasoning. However, as I’ve also often said, I think that politics, in a much broader sense of ideas about how the state and society as a whole should be organized does matter to judicial decision-making. Justice Stratas speaks of developing legal doctrines in ways that “make sense” ― but it seems to me that legal doctrines make sense in light, among other things, of certain values that they reflect or serve, and that these values can be described as political, in a broad sense.

This is perhaps the only point on which I disagree with Justice Stratas. Though it might be a disagreement about words more than about the underlying realities, I think that the words matter. I worry that complete denials of the political aspects of adjudication come across as overdone, and as a result do not actually help the courts establish their legitimacy.

5. That said, Justice Stratas was right to criticize those ― whether academics, lawyers, students, or journalists ― who think of judicial decisions purely in terms of results and their political implications, real or supposed. (He compared such commentary to “essentially an open-line radio-show comment put in an educated way using highfalutin legal language.”) He was also right to lament judicial decisions that leave room for such interpretations, in particular through their failure to adequately explain, in terms of legal doctrine, the outcomes that they reach.

I wonder, though, what can be done about this very real problem. I’m afraid that judges focusing on the doctrine and explaining their decisions will not be enough. For instance, I don’t think that the Supreme Court’s recent jurisprudence in the area of language rights is half bad, in terms of engaging with doctrinal issues. Yet in December’s Policy Options, a couple of political scientists published a tendentious take-down of this jurisprudence looking at it entirely through the lens of results (which happened to go against language-rights claimants) and, as I have argued in a Policy Options blog post, blithely ignoring the law in the process. In other words, people are liable to misrepresent the courts’ work as results-oriented even when any fair reading of the decisions in question shows that it is not. Dan Kahan et al. wrote about this problem in a fascinating study (about which I blogged for the National Magazine) that found that while legal reasoning tends to be based on legal, rather than (narrowly) political considerations, “our system of justice lacks reliable practices for communicating courts’ neutral resolution of divisive matters.” Lawyers should, no doubt, try to push back against tendentious and uninformed criticisms of the judiciary (though as I have also argued they should do so without misrepresenting all criticism as tendentious or as endangering the Rule of Law!). But is that enough?

* * *

Well, this is more than enough for me. Again, I express my gratitude to Justice Stratas for a fascinating lecture and for his kind words, and I hope that he comes back to this topic in the future. The above questions and quibble notwithstanding, Justice Stratas is right that we need to take legal doctrine seriously, and we owe him for reminding us of this.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

13 thoughts on “Taking Doctrine Seriously”

  1. Hi Mr Sirota:

    Thank you for your kind comments about the lecture. And thank you for your continuing good work on the blog.

    I would enjoy the opportunity to speak more on this topic in another forum at a future time. Much remains to be discussed and debated. As I said at the outset, I wanted to prompt some discussion, debate and reflection. So I am happy to see your blog post.

    You are right, there is so much more that can be said. Here are some very brief comments in reaction to your post, taking the numbers you use in your post.

    1. You will recall that I spoke of “doctrine and the responsible, incremental extension of legal doctrine.” Doctrine can evolve, but carefully and only after a thorough examination of why the existing doctrine is against logic or judicially formulated policy founded on cases. For an example, see the sort of analysis I did in Paradis Honey. Cases need to be welded to the steel plate of doctrine, but that steel plate can move in an appropriate way. So I am not sure that the “seeds of its own destruction” idea has merit. Carefully evolving doctrine is still doctrine, not freestanding policies that depend on whims or idiosyncratic, personal views of things.
    2. My only point here is that basing decisions on doctrine maximizes our chances of the judiciary being able to reign in excesses and having their judgments respected at a time of crisis. Yes, the are no guarantees. The best we can do is maximize the chances. But that is better than doing nothing.
    3. People may reasonably disagree and the experience of real life cases argued by counsel may make me change my mind, but I think there are things “made up” in the doctrine right now as a result of the sort of reasoning I criticize in my lecture. Doctrine must reflect judicial policies worked out against the facts of cases over time – not the say-so of individuals holding forth on freestanding policies as they see them based on their own idiosyncratic world view. The common law method has served our legal system well and has made many areas of law reliable and predictable. Public law could also be served well by this.
    4. I believe that there are certain policies that animate the formation of doctrine but would never consider these “political” in the sense deployed in my lecture, such as freestanding policy views based on individual views. Concepts such as the need for order, safety, conservation of resources, simplicity in law, ease of application of law, access to justice…. These are public policies rooted in many, many pieces of legislation (binding on judges) and common law cases. When judges reach for these to guide them, they are not making stuff up and relying on their own idiosyncratic view of the world.
    5. From time to time, there will always be some criticism of judicial decisions that is off-base. Just like there will be some judicial decisions that are off-base. Misplaced criticism should not dissuade us from deciding public law cases in a manner that enhances public respect. I suspect that as decisions become more settled in doctrine, criticism will be less frequent.

    1. Justice Stratas,
      Thank you so much for taking the time to read and to reply, and thanks again for your kind words!

    2. Dear Leonid and Justice Stratas,

      Leonid, thank you as always for a well-written and very thought-provoking post. And thank you to Justice Stratas for elaborating on some of the ideas you expressed during your wonderful talk last week.

      It seems to me that when we speak of doctrine we are implicitly speaking of judicially constructed principles. Since the doctrine was judicially constructed in the first place, it follows that current judges should be permitted to “tweak” and extend the doctrine in a “responsible, incremental” way. In doing so, they must always have regard to the history and evolution of the doctrine – recognizing that the doctrine has provided stability, certainty and predictability for decades, if not centuries, and that in modifying that doctrine, the goal should be little more than to “trim the fat” as it were. The current judge, in other words, must view himself or herself as one link in a long chain that began long ago and will continue (hopefully) for many generations to come.

      This is undoubtedly the proper judicial function in the common law context. But I question its applicability to the statutory context and, by extension, the constitutional context. The common law deals with general modes of conduct between individuals and has developed gradually and organically over centuries with each judge adding his or her experience to the collective wisdom. Provided a judge does not radically depart from established doctrine, I am perfectly willing to accept that a judge has the requisite expertise – and legitimacy – to tweak the doctrine (provided of course they remain bound by decisions of higher courts). They are, after all, the ones adjudicating these cases every day. To that extent, I am in complete agreement with Justice Stratas that judges should not be hampered by overly particularized “tests” that are meant to be applicable to any given fact scenario, nor should they simply apply ratios to new facts without delving deeply into the ratio itself.

      In the statutory context, on the other hand, the judge is there to discern and apply the rules laid down by the legislature – rules dealing with complex social and public policy issues. In this context, it would be inappropriate in my view for the judge to “tweak” the legislation even if this seems to make abundant sense (certainly, if a word or provision is capable of two equally plausible interpretations, a judge will have to make a judgment call which may involve some broader public policy considerations, but for the most part the judge’s role is distinct from the common law realm). True, judges will apply the principles of statutory interpretation, which could be classified as ‘doctrines’ of a sort – but these principles are really nothing more than legal grammar, and grammar that the legislature is presumed to know at the time it passes the law. In all instances, the role of the judge in the statutory context must be to interpret the will of the legislature as embodied in the enactment – modifications must be made by the legislature itself.

      So where does that leave the Constitution? No one would doubt that the Constitution deals with vast subjects – and requires a supermajority to amend – but in a fundamental sense, it is still a legal statute. Whether and to what extent we take a common law or statutory approach to the Constitution should depend, in my view, on the provision we are seeking to interpret. If we take the phrase “freedom of association,” a traditional textual and purposive analysis would seem to suffice here. The phrase has a long history that pre-dates the Charter, which Justice McIntyre explored in the Labour Trilogy decisions. Its placement in section 2 with other “fundamental freedoms” is also telling, as is the use of the word “freedom” (which always connotes restraint from government) as opposed to “right” (which may connote an affirmative government responsibility). On even a liberal reading, it is simply implausible that the phrase imports a positive right to bargain collectively (let alone to strike). That does not comport with the text or its clear underlying purpose.

      On the other hand, a textual analysis will get us nowhere with the phrase “reasonable limits”. The most hardened originalist will not be able to tell us what that term meant in 1982, or in 2016 for that matter. This, in my view, is where a responsibly-evolving doctrinal analysis is appropriate. It is here that judges should be using their collective experience to refine the understanding of what constitutes a reasonable limit. An abstract “test,” though designed to bring certainty, will often do the very opposite and actually encourage the very judicial policymaking it purports to avoid.

      Of course, one doctrine or principle that does flow through statutes and the Constitution is stare decisis. As you say, Leonid, it is unclear what our “departure point” should be. Without laying down any final “test,” I would submit that, in the Charter context at least, we should be looking at how entrenched the precedent has become, whether other rules or doctrines hinge on it, whether it is workable in practice, whether the precedent overturned prior settled case-law/doctrine. The phrase “principles of fundamental justice” was meant to incorporate a procedural guarantee only; but it would be futile to attempt to erase 30 years of jurisprudence. By contrast, the interpretation of section 2d changes almost from one year to the next and the Court has consistently overruled itself on the meaning of “freedom of association.” I would have no problem in finally getting it right.

  2. Thanks for your thoughts Leonid – I also really enjoyed Justice Stratas’ lecture though I share many of your questions/concerns.

    The overall question I was left with was this – to what extent is an appeal to “legal doctrine” simply another way of saying that you don’t agree with the results of the decisions that changed the law? Freedom of association is an example. Justice Stratas criticizes the Supreme Court for changing the law too much. To what extent is this simply a way of his expressing his disagreement with the results of the most recent decisions? Despite Justice Stratas’ attempt to not be labelled at the beginning of his talk (liberal, conservative, etc), I think that his argument is inherently conservative and traditional.

    I would also be very interested in knowing if any research has been done on your point #2 – has “doctrine” ever saved the day in a crisis? I recall that there has been research done on the role of judges under the apartheid legal system in South Africa. My recollection is that judges tended to be very conservative in their interpretations of the laws and, for the most part, did not rock the boat legally (knowing full-well that any drastic interpretations that favoured the black majority would be perceived as illegitimate within the white minority). I wonder whether that is a counter-point to Justice Stratas’ vision of doctrinal judges saving the nation in crisis.

  3. In my lecture, I noted all the changes in 2(d) jurisprudence — but, as I clearly said, not to express political remorse for the current position. After all, in my lecture, I quipped that those who don’t like the current position perhaps need only wait until the next case (given the degree of conflict in the cases).

    As I said in my lecture, my concern is the lack of stability and the impression that some decision-making is causing, with resulting lack of respect for judicial method. To some extent, Justice Rothstein expressed these concerns in his dissenting reasons. We are seeing the court itself — 3 individual judges — expressing these concerns in the dissents in Kanthasamy v MCI and CBC v SODRAC.

    Some say that the only thing in the 2(d) cases that changed was the composition of the Supreme Court. As I said in my lecture, I won’t comment on whether or not that is true or relevant. But as I said in my lecture, the fact that some THINK that the changing composition of the court explains the results in those cases is cause for concern. It raises questions about judicial method, how holdings should be sourced, how holdings are written up, and so on — topics briefly explored in the lecture.

    Is that viewpoint “conservative”? “Traditional”? In this context, I don’t even know what those labels mean. I prefer discussion over the ideas — and these ideas cannot be reduced to one word labels.

    1. I don’t think that it’s inherently conservative to ask for legal stability, still less for principled explanations of changes. Section 2(d) wasn’t the only area Justice Stratas spoke of, and anyway, his criticism would have held had the results evolved in the exact opposite direction.

      As to point 2., I don’t know of work on this specific point, though that need not mean much. It has been said, in many different contexts, that victims of oppression valued legal procedures, even the substantive law applied was grossly unjust. David Dyzenhaus might have written about this with respect to South Africa (I’m not sure); E.P. Thompson wrote about it in Whigs and Hunters; and I think it comes across in Red Square at Noon, Natalya Gorbanevskaya’s account of the demonstration in protest against the Soviet invasion of Czechoslovakia in 1968 and the demonstrators’ subsequent trial. But is saying that the victims of oppression value legal process the same as saying that legal doctrine helps them? I doubt it.

      1. Thanks for your replies Justice Stratas and Mr. Sirota.

        I’ve found the research on South Africa I was referring to – John Dugard’s book, “Human Rights and the South African Legal Order” (1978). Unfortunately I haven’t read it myself, however, as I said, I’ve heard that it’s an interesting examination of the role judges played in upholding the apartheid legal system.

        I’ll respond to the other points as well. I’ve re-listened to Justice Stratas’ lecture. Perhaps I was too quick to label Justice Stratas’ perspective “conservative/traditional”. This was a clumsy attempt to put my finger on a tension concerning when doctrinal change is warranted.

  4. As a non lawyer I find this discussion very interesting and re-freshing. I had come to the conclusion that we no longer have judges who take guidance from legal principles or even theory at all. The norm had fast become just spit something out and call it a decision. Now I know all is not lost. I just hoped those who are wont to think will take the lead in these matters. We can all only be better for it

    1. Thank you! Justice Stratas’ lecture is indeed refreshing ― as he says, most judges tend to be rather bland when they speak publicly. But you might be too harsh. For one thing, as Justice Stratas also said, many areas of the law do not suffer from the problems that he described, at least to anything like the same degree as public law. And even there, I’m not sure it’s fair to accuse all judges of not taking guidance from principles at all. Failures to do so are salient, and very concerning, but things aren’t uniformly bad. But clearly, there is a great deal of room for improvement, Justice Stratas provided us a very timely reminder of the its urgency.

  5. This was a very interesting and engaging talk (even if there were bits here and there that I did not agree with). As a litigator — particularly working in frontier areas of law — I think there is a crucial message here about about being conversant with the the idiom of the law as it is practiced if one is going to be able to function effectively in the courts. Judges continually want to know “where does this fit?” and “is this new?” when submissions are being made. Some lawyers think this is because judges are inherently conservative and will close their mind as soon as the statement “this is a novel legal proposition” crosses counsel’s lips. While this indeed is sometimes the case, I have a somewhat different general view, namely, that judges faced with difficult constitutional, administrative law and common law legal issues want to genuinely understand what it is that is new in the proposition that is put before them so that they can then focus their minds on the list of pragmatic, theoretical and doctrinal questions that should be addressed before making a ruling. These include questions such as, “do I have to answer this question in this case?”, “is this a question that should be answered by a court?”, “is the answer sought one that should be given by a court?”, “if so, how new is this proposition?”, “how much of an extension or deviation from existing doctrine is it?”, “how well does this fit within the theory underlying the doctrine?”, “what are the practical effects of the proposed resolution?”, “does the evidence support the grant of the remedy sought?” and so forth.

    In engaging with a judge (or panel of judges) on these questions the court’s confidence is bolstered when counsel is able to clearly describe the existing legal framework (and describe it accurately), describe how this new proposition fits within the existing framework and where counsel says it does not completely fit. For example, if counsel can accurately describe the standard of review principles, address the principle of deference and discuss ideas such as the margin of appreciation in the context of a Charter case, there is a greater chance a judge may be persuaded that they are truly answering a difficult Charter question (which needs to be answered) and not being invited to accidentally kick over the legal superstructure that has been built up (or re-built up from generation to generation) over applications for judicial review. If that is done well and early in the process (for example in the factum or in the introductory remarks at the beginning of oral argument), the more the argument can focus on the real issue and the more sharply can the judicial mind be focused on what counsel wants to the real question to be.

    Obviously this has real implications for legal education (as Justice Stratas comments in his speech) but in fairness to the academics I think that many of these doctrinal concepts are really best learned in practice. More particularly, they are best learned by preparing and arguing cases, starting with small motions over nasty things like document discovery (or the equivalents in criminal law) and moving up to more complex legal issues over time. It is the context of those interactions with the court and the iterative process of learning how courtroom argument work that the importance of these matters come home to lawyers and their mastery of the important doctrines is honed. I know even at over twenty years at the bar and having argued a few cases, I still learn remarkable things about cases I have known for years by reading them again in preparation for making an argument that require really knowing the case and where it fits into the larger law. I wonder though with decreased opportunity to argue cases in court for young lawyers where those skills are going to be developed. Frankly, some of the interactions with counsel Justice Stratas described in his speech occur not because of laziness (as suggested by one questioner) but because of the fact that intelligent, hardworking lawyers immersed in an area of law end up arguing important cases in situations in superior courts when they may have only argued a few cases (if any) before in the career. That is a brutal and unpleasant place to be and terribly unfair to them, their clients and the courts — but this will increasingly be the case as we see fewer counsel like the Laidlaw’s, Binnie’s, Hunters and Arvays who literally have had dozens if not hundreds of appearances in a wide range of areas of law under their belt by the time that they are arguing the most important cases.

  6. I’m not a lawyer; I’m an SRL who’s been working on a public law case (in the schools sector) for some 4 years (yes, that makes sense in the circumstances…).

    This lecture was a profound relief from the fatuous vacuity of the access to justice dialogue. The access to justice dialogue is a proxy; a comforting exercise in self-affirmation, for a system that does not want to look at the threads that Justice Stratas has tweaked. I have said in more than one place that the most significant barriers to justice are within the law itself. Law has always been made by those who can afford to litigate; therefore, the vast majority of people are simply invisible to the law. And because the practice of law has always been adversarial, it has most often delivered not justice, but a winner. To repair this problem, one must return to first principles, and that is where the discussion of doctrine goes.

    When I look at the history of case law to the limited extent that I have been able to scan it, what I see is not so much an abandonment of doctrine as the convenient use of doctrine. Its uneven use is the problem. It is rigidly adhered to when it pleases the court, but readily abandoned when it does not. If this were based on personal preference or favouritism, it would actually not be so bad, because with 9 SCC judges, on balance it would probably be applied well in the majority of cases. If this were even entirely arbitrary, it might not be so bad either, because on balance of probabilities, the outcome would fall in an acceptable zone often enough. But what is happening is much worse than either of these scenarios: doctrine is being applied selectively on the basis of a vision for society.

    Because I hang out mostly in the education trenches, I am generally being deafened by a chorus of people who see their task as shaping the world, creating the world they want, through the shaping of the little minds with which they are entrusted. “What we want for ourselves, we want for all!” goes the cry, and though their purported empathy is so thick you could stand a spoon up in it, there is no room in their world view – none – for anyone else, say for the parents of those little minds, to have a say in how the world might turn out. Why can this conceit continue, you might wonder? Simple: schooling is compulsory. Under the law, those little minds must be exposed to those with the agenda for 200 days per year for 13 years. There is no feedback loop. No matter how bad an excuse for “education” this compulsory schooling becomes, no one can leave. The educrats lose nothing of their empire for mismanaging it.

    As I started to put my ear to the ground in law, I was aghast to hear echoes of the same “the world we want” chorus. One way this is achieved is with the convenient use of doctrine. The problem is that most people’s vision of the future is anchored in a rosy (or at least edited) view of the past, so that what judges are doing when they apply doctrine conveniently in support of some sort of utopian vision is that they are solving the problems of yesterday, not the problems of today. My mother quotes something – the source of which I’ve never quite been able to identify – to the effect that “most people live 50 years behind their time. Artists, however, live in their time.” While I have real respect for the intellect that all judges bring to the work, and while I absolutely feel there is such a thing as art in the practice of law, not all judges are artists. And the ones that are not artists are the most vulnerable to applying doctrine (or being induced to apply doctrine) in ways that are in fact outdated before the ink on their decision is dry.

    As far as combatting this problem, which one might call “judicial utopianism via selective use of doctrine,” is concerned, another similarity between the two systems – the legal system and compulsory schooling – leaps to the attention. No feedback loop. The open court principle is predicated on the glorious hubris of belief that if the public can see justice to be done, it will continue to have confidence in the courts. There is no answer to the question: “and what if I don’t?” because there is no venue for asking it. There is no way for that hypothetical “reasonable person” to walk into a courtroom – even on a matter of public law – and say “I have no confidence in this decision.” There is no way for the public to selectively patronize the services of certain judges on public law matters. The judicial complaint process is not useful for correcting justice (and not that good for conduct either, frankly).

    Thus, the trick to solving the problems posed by doctrine abuse may not lie in talking more about the value of doctrine. The problem may be solved better and less contentiously by altering the system design to create inducements to apply doctrine well, replacing the current scenario in which there are simply no disincentives to applying it badly. In fact, bad law creates more litigation and thus builds the court system, so in the empire-building urge (don’t be embarrassed, we all have it) there is a perverse incentive in play favouring the degradation of practice – again, as has been the case in compulsory school systems.

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