The Dunsmuir Decade: A Post-Script

In the wake of the #DunsmuirDecade, updated thoughts on blogs and doctrine

The Dunsmuir Decade symposium is over. It’s been great fun to host, and has provided a great deal of food for thought for me and, I am sure, for others. I might come back in future posts to some substantive points made by the contributors. And of course I need to return to my regular constitutional programming, which I have held in abeyance all this while. But before I do so, I wanted to venture a meditation on what the symposium itself means or represents.

Among the many kinds of writing that legal academics produce, there is a special genre of writing about legal writing; and one of its sub-genres is writing about legal blogs. It asks questions such as whether blogs deserve to be considered among the media through which legal scholarship can be communicated; their distinctiveness, if any, among such media; the way, if any, in which blogs can meet the needs of the legal profession or of others with whom it interacts in one way or another; and of course the ways in which blogs can or ought to change for answers to these questions to become more satisfactory. Among the notable Canadian contributions to this literature are “Legal Academia 2.0: New and Old Models of Academic Engagement and Influence” by Paul Daly ― the co-host of the Dunsmuir Decade symposium ― and Édith Guilhermont’s “La contribution des blogues juridiques à la connaissance, à la critique et aux transformations du droit“. I too have occasionally mused on the subject of blogging, and of its relationship to writing about law more broadly.

In particular, after attending a colloquium on “The Responsibility of Doctrine” or, rather, “La responsabilité de la doctrine” hosted by McGill’s Paul-André Crépeau Centre for Private and Comparative Law, I wondered about the complicated relationship between the meanings of the word doctrine in English and in French ― “doctrine” and “la doctrine” ― and also about the contribution that blogs could make to either or both of these things. I hope the readers will forgive me for quoting myself at considerable length, because, as I will explain below, I think that what I wrote then is directly relevant to the Dunsmuir Decade symposium:

The important thing about both [doctrine and la doctrine] 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. … 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 [on “The Decline of Legal Doctrine“] 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 … 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. … 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. … [I]f 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.

One of the joys of the Dunsmuir Decade symposium for me ― and the reason I am so tediously repeating myself ― is that it was, I think, a perfect demonstration of what the synthesis of doctrine and doctrine that I had in mind looks like, and of the blogs’ contribution. It was an instance of collective thinking about the law in an attempt to figure out where the law stands, how it got there, and whither it ought to go if it is to fulfill the requirements of coherence and orientation to the public good. It was a conversation that involved a variety of voices ― not just academics but also legal practitioners and judges (the first time, I think, that Canadian judges have published blog posts!) ― and that was suitably “meandering and cacophonous”, perhaps to the bemusement of Justices LeBel and Bastarache, who kindly provided its conclusion. But while we have surely not arrived at any final truths about administrative law, I am pretty confident that we have, together, strengthened its “artificial reason”.

And of course this conversation happened on blogs ― and I doubt that it could have happened elsewhere. Blog posts, though the Dunsmuir Decade ones were admittedly long by the standards of the medium, allow one to develop an argument to a much greater extent than a 15-minute conference presentation, yet are still easier both to write and to read than full-blown journal articles or book chapters. The blogging symposium thus has advantages over both the traditional conference, in the depth of the reflection that it makes possible, and over, say, an edited collection of essays, in terms of both breadth ― and over both in terms of the cost in time and money for both organizers and participants.

All this is not to say that these more longstanding fora for doctrine and doctrine have lost their relevance. As Prof. Daly and Dr. Guilhermont also noted, the new media, including the blogs, are complementary to the old; they will not fully replace them any time soon, if ever. But as they have noted too, and as I did, new forms, including especially blogs, will be an essential support for doctrine and doctrine in the years and decades to come. I think that the Dunsmuir Decade symposium demonstrated that this was not just a futuristic vision of a few enthusiasts, but the reality here and now.

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.

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