Dark Vision

A critique of a “vision” of the courts as moral authorities.

In a post over at Slate, Omar Ha-Redye sets out what his title describes as “A Judicial Vision of Canada at 150 and Beyond“. The post is a rather rambling one, but insofar as I understand its overall purpose, it is meant to highlight the centrality of the Supreme Court to our constitutional framework, as illustrated in particular by the Court’s role in re-setting Canada’s relationship with its aboriginal peoples on a more respectful basis. Mr. Ha-Redeye opens his post by confidently asserting that “[f]or most of us today, the Supreme Court of Canada is the arbiter of the most complex questions of law, and the definitive authority for morality in our democracy.” He concludes as follows:

At Canada 150 the Charter, and the Supreme Court of Canada that enforces it, is as much of our democratic institutions belonging to us, if not even more so, than Parliament or the executive. Its autonomy, and insulation from the winds of popular change, may actually provide greater stability and greater effect to individual rights than the right to an individual vote.

In 1867, the vision of Canada could hardly be said to be a judicial one. In 2017, it’s difficult to envision a rule of law without it. [Sic]

Again, it is not fully clear what this is supposed to mean. Who are the “we” of the introduction? What is it difficult to envision “a rule of law” without? But I would like to offer a response, because Mr. Ha-Redeye’s “judicial vision” is, to me, a gloomy one ― and I say this as someone who believes in what is often disparagingly termed “judicial supremacy”.

First, this vision seems to me to reflect a certain confusion of principles, not to mention history. As I have argued here, it is a mistake to claim that the Charter and its enforcement by the courts are democratic. Asking unelected and largely unaccountable institutions to make decisions of public importance, including decisions concerning the powers of democratic majorities, is not what democracy is about; it is not “the government of the people, by the people”, although it may well be “for the people”. If “for the people were enough, then an enlightened monarch or a benevolent dictator would be able to call himself democratic too. Of course, to say that the judicial enforcement of entrenched constitutional rights is not democratic is not to say that it is bad; only that it has a democratic cost. This cost may be, and I think it is, worth incurring ― democracy, as I wrote in the post linked to above, is not the only thing that matters ― but we should not attempt to mask this cost by verbal gymnastics.

As for the Rule of Law, it would have been just as difficult to conceptualize it without a robust judicial role in 1867 as it is now. To be sure, the Fathers of Confederation did not provide protections for individual rights that were as deep or wide-ranging as those that we acquired with the Charter. But they structured the federation they were creating so as to provide some protections for individual rights. For instance, they attributed legislative powers to that order of government which was more likely to respect the rights, customs, and desires of its constituents in respect of the particular subject matter ― Parliament for criminal law, the provinces for most of private law. They set up a judiciary over which no legislature had undivided power, the better to ensure its independence. They provided special safeguards for those rights, notably in the realm of education, which they singled out for protection against legislative majorities. And they knew that these structural protections would mostly be enforced by the courts. The contrast that Mr. Ha-Redeye, like so many others, purports to draw between 1867 and 2017 is exaggerated in order to support the authority of today’s judiciary at the expense of that, not merely of our constitution’s supposedly backward framers, but of the constitution itself.

Most importantly, however, I am dismayed by the characterization of the Supreme Court as “the definitive authority for morality in our democracy”. Like Benjamin Oliphant, I suspect (and certainly hope) that the Court itself would disclaim this grandiose title. But it is distressing that a citizen of a free country thinks it appropriate to bestow it, and is convinced that many, even “most” of “us” ― whoever “we” may be ― would do likewise. In a free society, there can be no “definitive authority for morality” ― even political morality. Morality is a matter, ultimately, of individual conscience ― whether or not directed by God, religion, or anything of the sort.

Here is what Lord Acton (who did believe that conscience was a religious matter ― but I don’t think we need to agree with him on that) had to say about this, in discussing the “Beginning of the Modern State” in his Lectures on Modern History:

With the decline of coercion the claim of Conscience rose, and the ground abandoned by the inquisitor was gained by the individual. There was less reason then for men to be cast of the same type; there was a more vigorous growth of independent character, and a conscious control over its formation. The knowledge of good and evil was not an exclusive and sublime prerogative assigned to states, or nations, or majorities. When it had been defined and recognised as something divine in human nature, its action was to limit power by causing the sovereign voice within to be heard above the expressed will and settled custom of surrounding men. By that hypothesis, the soul became more sacred than the state, because it receives light from above, as well as because its concerns are eternal, and out of all proportion with the common interests of government. That is the root from which liberty of Conscience was developed, and all other liberty needed to confine the sphere of power, in order that it may not challenge the supremacy of that which is highest and best in man.

Mr. Ha-Redeye says he wants to protect individual rights, and is wary of majoritarian institutions’ failings in this regard. And yet, at the same time, he anoints another institution of the state as the definitive moral authority, thereby denying what Lord Acton saw as the very basis for individual rights in the first place ― the fact that there can be no definitive moral authorities (at least on Earth) outside of each person’s conscience. Mr. Ha-Redeye claims that states and nations, if not also majorities, enjoy “the sublime prerogative” of “the knowledge of good and evil”. But if they do, why would they not impose their views on the citizens (or rather, the subjects) ― by inquisitorial means if need be?

Now, Mr. Ha-Redeye and those who agree with him, if anyone really does, might argue that by exalting the Supreme Court as the “definitive moral authority” they do not mean to give power to the state. They may well share what I have described here as the Canadian tendency not to think of courts as being part of the state at all, but to see them as the citizens’ agents and protectors against the state. To a greater extent than I did in that post, I now think that this tendency is an error. As I said then, courts are of course different in important ways from the state’s other components in that they give individuals more opportunities to be heard. Nevertheless, they are a part of the state’s machinery of coercion, and those who forget this only increase the courts’ power over them.

To be clear, I believe that the courts have a very important role to play in ensuring that “states, nations, and majorities” cannot constitute themselves into supreme arbiters of morality; that the voice within is more important than what W.H. Auden so aptly described as “the loud, angry crowd/ very angry and very loud/ [saying] law is we”; and that the sphere of power must accordingly be confined. But the sphere of judicial power must be confined no less than the spheres of its legislative and executive brethren. The courts have no more title than parliaments or kings to the prerogative of the knowledge of good and evil. If we grant them this title, then we will well and truly have a “juristocracy”, and the rights we claim for ourselves will be no more than serfs’ boasts about the wonders of life under the heel of their beneficent lord.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

4 thoughts on “Dark Vision”

  1. Mr. Ha-Redeye has two thoughts. The first is “My coalition has more secure control of the Supreme Court of Canada than it does of the House of Commons.” The second is, “If you don’t like what my coalition does in the Supreme Court of Canada, you are not a fellow citizen temporarily in the minority. You are unCanadian and immoral.” In the words of Humpty Dumpty or Re Rizzo Shoes, “When I use a word, it means what I choose it to mean. The question is which is to be master — that’s all.”

    The alternative would be that words have a meaning fixed when they are uttered, that this meaning constrains what judge can properly do, and that the way to change the constitution is to use its amending formula. And we can’t have that.

  2. SCC as final arbiter of morality? Never! They cannot even read their statute and rules properly. What is the authority for “varying” Wagner J’s order? Who decides leave applications? Three or nine? The website suggests both, but here again the legislation is clear on what is supposed to happen.

    But we cannot expect this group of people to follow the law. Recall that they constitutionally entrenched itself in the face of a written amendment formula.

    Finally, I wouldn’t trust some of them to make the easiest decisions. Faced with a case that directly affects LBGTQ groups and religious groups (TWU), Wagner J denies them intervention status and lets in groups as tangential as the International Professors Association (who are they?) and the Criminal Lawyers Association. And apparently they don’t give reasons in intervention decisions while they insist that everyone else gives reasons yet, their public statement “varying” the Wagner intervention order gives reasons that say they don’t give reasons, and the reasons make no sense.

    1. And by the way what is their power to vary intervention orders? Their Rules say that the order of a judge cannot be reconsidered or varied.

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