What do legal doctrine and la doctrine have to do with each other?
I was at the colloquium that McGill’s Crépeau Centre held on Friday for its 40th anniversary on the topic of “The Responsibility of Doctrine.” It was quite interesting, if a little uncanny for someone who, despite my McGill professors’ best efforts, never found the civil law quite congenial. Without going into anything like a detailed comment on the proceedings, I would like to offer the following meditation on a subject that the panellists did not actually discuss but which I think their presentations illuminated nicely: the complicated relationship between the civilian (and mostly French) and the common law (and thus mostly English) senses of the word “doctrine.”
The civilians’ doctrine is (roughly, because the actual definition is debated) the set of writings, learned but not necessarily academic, that synthesize, explain, analyze, and possibly criticize the state of the law. The common lawyers’ doctrine, according my own tentative definition, is the set of rules and principles that can be derived or inferred from judicial decisions. The two words do not mean the same thing, then. They are, linguists or translators would say, “false friends.” But are they really friends at all? Or, conversely, are they actually false?
Some civilians deny that there even is such a thing as la doctrine in the common law world. And, for their part, they have no word that would be equivalent to the common lawyers’ doctrine, and perhaps they have little use for such a word, given the opacity of the traditional civilian judicial decisions, and the subordinate status of la jurisprudence as a source of law. If so, then la doctrine and doctrine can hardly be friends at all; indeed, it is almost as if “never the twain shall meet.”
But this seems too quick. As Derek McKee pointed out, it’s not so clear that there is no doctrine in the common law world. (Peter Hogg’s Constitutional Law of Canada seems an obvious example, for instance.) Sébastien Grammond, for his part, said that even judicial opinions, or at least some them, could be regarded as part of la doctrine, insofar as they serve the same function of stating and explaining the law. This cannot happen in the single-page decisions of the French courts, but does happen here. (And perhaps, conversely, the more common-law-like decisions of the courts that apply Québec’s civil law can also produce doctrine in the common law sense.)
That said, the differences between the common and the civil law systems are relevant to the relationship between doctrine and doctrine. The respective roles of the different branches of the legal profession, especially the judicial and the academic ― and their publishing habits or obligations ― mean that the participants in and the form of doctrine and doctrine differ. Judges are in theory ― and subject to prof. Grammond’s above-mentioned comments ― excluded from la doctrine. They are, by contrast, the most significant contributors to doctrine. La doctrine develops, first and foremost, in books and articles. (There was much interesting discussion, especially by Élise Charpentier, about the fluctuating respective fortunes of these two media.) Doctrine grows in the pages of law reports as well as law reviews and law books ― although Justice David Stratas has recently argued that it is in danger of being drowned out by the siren songs of result-oriented reasoning, in public law fields anyway.
However, these differences are less important than what doctrine and doctrine have in common. The important thing about both is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. (This point was, I think, most clearly made by Aurore Benadiba.) And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.
These conversations can be noisy and perhaps chaotic, since they involve multiple speakers addressing multiple subjects ― judges, scholars, and lawyers trying to figure out not only what the law is but also, at least some of the time, what it should be. (The critical component of la doctrine is often mentioned in its definitions. But those of you who have listened to Justice Stratas’ lecture that I link to above, or read my post about it, will also recall that he said that the judges who are “doctrinal” are not only interested in what the rules are, but also, perhaps, in tweaking in modifying them.) They yield no permanent truths and no irrevocable agreements, and as new voices enter both their vocabulary and their contents shifts, usually imperceptibly, sometimes abruptly.
But meandering and sometimes cacophonous though these conversations are, they are the visible, and therefore the imperfect, manifestation of the jurists’ quest to make the law coherent and conducive to the public good through argument and shared deliberation. Common lawyers, most famously Chief Justice Coke, called this quest the “artificial reason” of the law. While I am not aware of an exact civilian equivalent, I believe that Portalis, for example, with his insistence that “[l]aws are not pure acts of power; they are acts of wisdom, justice and reason,” and that “[t]he lawmaker … must not lose sight of the fact that laws are made for men, and not men for laws” would have shared its spirit.
At least some of Friday’s presenters insisted that la doctrine is our joint responsibility as juristes (and some, notably prof. Grammond, have argued that the responsibility runs beyond the legal profession itself). So did Justice Stratas in his lecture, as called upon judges, lawyers, and scholars alike to devote ourselves to doctrine, and on all of those who write about the law to take doctrine seriously. I am trying my best to answer the call. And so I will conclude with an observation that was entirely ignored in Friday’s presentations ― except prof. Grammond’s.
The web 2.0, and especially the blogs, are already a part of the doctrinal conversations, and will be an ever more important one in the years to come. Justice Stratas not only mentioned a couple of bloggers (specifically, Paul Daly and yours truly, for which I am very grateful to him) as examples of legal writers who take doctrine seriously, but also kindly commented on my post about his lecture. This sort of exchange was simply impossible until a few years ago, and I suspect that, for many, it still seems inconceivable. But I am hopeful, and pretty confident, that in time it will no longer seem so. What I’m trying to say is not, of course, that anyone should read or comment on what I write (though it’s nice when that happens). It’s that if doctrine and doctrine are to flourish in the 21st century, they will need to remain open to new forms, and that it will not do to ignore these new forms simply because they are unfamiliar.