The Politics of Law

Is law truly just a function of politics? Should it be?

It is common in progressive circles (and, increasingly, in conservative circles, to some extent) to say that law=politics, or some variation thereof (law is always political, law is political, etc etc). The claim is usually offered without much in the way of qualification, and it appears to capture the many aspects of “law”; the creation of law, the implementation of law, and the interpretation of law.

In this post, I argue that this claim is either banally true or implausible because it merges law with politics in a way that our current system simply cannot support. To determine its veracity, the claim must be examined closely—in relation to the various ways that political considerations interact with law. A failure to do so infects the “law=politics” claim with a fatal imprecision.

I first outline the limited ways in which the claim is likely true. Then I shift gears to a normative argument: while the claim may be true in certain ways, it is not self-evident that it should be true across the legal system. In other words, there is good reason to accept that law may be “political” in certain ways; but it isn’t the case that it should be in all aspects of the law (its creation, implementation, and interpretation).

***

Before jumping in, I should acknowledge some imprecision in terms here. The law=politics claim is often made bluntly, without defining what is meant by “politics” or “political.”  It could mean, for example, that law is inevitably wrapped up in partisan politics. It could mean that law is not necessarily co-extensive with partisanship, but is correlated with political ideology more broadly. Or it could mean something very simple: law is “political” in the sense that people are “political,” meaning that law mediates disputes in a society where political disagreement is inevitable.  It could also mean a combination of all three of these things, or more.

All of these claims could be descriptively true in various ways, in relation to different aspects of law-making, implementation, and interpretation. But a failure to distinguish between these various definitions of “politics” and “political” presents an immediate hurdle for those who claim, without qualification, that law is always political. As I will note throughout, these various claims to the political nature of law may be more or less true given the institutional context. It does not follow that every political consideration is always relevant to the law.

***

Starting with the descriptive claim, it is clearly true that law can be political. The creation of law in the legislature is itself a political act. Laws are created to achieve certain aims; these aims can clearly be motivated by ideologies; and the content of law is not “neutral” as between political aims. Political parties make up the legislatures, and they vie for power in elections. In this case, and quite obviously, law is the product of political machinations. It follows that the creation of law itself can be motivated by wholly ideological reasons, quite aside from any claims to public reason or ideological neutrality. As I will note below, the notwithstanding clause is a good example of a situation where a legal power can be exercised for solely political reasons.

As well, the implementation of law by administrators, state officials, police, and others will not always be perfectly consistent with what the law says. Officials could operate on personal whim or policy preferences that are inconsistent with the policy preferences specified in the law. After all, state officials routinely fall below the standards set by the law and the Constitution—one only need to look at the number of constitutional challenges against state action that are successful in Canadian courts (though, of course, this may be due to stringent constitutional standards rather than routine malfeasance by state officials). Whether this is due to cognitive biases, outright hostility to legal norms, or mistaken application, laws can best be seen as ideals that state officials will sometimes fall below. This illustrates that state officials—at best—can only approximate legal norms. In administrative law, for example, the law of judicial review could be understood as an attempt to police the gap between the law on the books and the law as applied; to inch state officials towards following the law on the books, as much as possible.

Similarly, as a descriptive matter, the interpretation of law could be “political” or perhaps more aptly, “ideological.” Law is fundamentally a human business, and interpretation cannot be a perfect science, a simple application of axioms to words. Human beings have cognitive biases and judges are simply human beings. Notwithstanding the fact that judges sometimes speak as if they are neutral protectors of constitutional values, it is simply impossible to guarantee that law will always be interpreted authentically. To be clear, this tendency is likely true across the political spectrum—results-oriented interpretation can be common on the left or the right, and in each case, it is unavoidable that there will be results-oriented interpretation.

That said, we simply do not know the extent to which any of the above is even true in Canada. While it is plausible to suggest that judges and officials may have their judgments infected by ideology extraneous to the legal instrument under interpretation, this should not be overstated. Empirical research would be helpful in determining the extent of this phenomenon. For the most part, though, Canadian judges likely do their best to apply the law according to its terms. (NB: see Emmett Macfarlane’s work here, which tackles some of these issues. I’ve ordered the text).

***

As a normative matter, let us assume that it is true that implementation and interpretation of law can be “political” or “ideological” or something of the sort.   There are two options: we create rules, standards, and principles to limit the gap between the law as adopted and the law as applied; or we do not.  The form of these rules, standards, and principles is unimportant for our purposes. For now, it is enough to say that there is a fork in the road. Either we choose to limit the political/ideological discretion of state actors—including judges—or we do not. The point here is that while there can never be perfectly “neutral” or “impartial” creation, implementation, and interpretation of law as a matter of fact, it is desirable—as a normative matter—to limit the role of pure ideology in certain areas of law, to the extent we can.

This is obviously not true in the context of law-creation. The public understandably, and quite likely, wants our laws to be the product of a democratically-elected legislature (to the extent our electoral system leads to fair democratic outcomes in the abstract). In this sense, people vote for representatives that share their priors or who they wish to see in the legislature. Those legislatures, composed as they are by political parties, will pass laws that reflect the majority will (again, to the extent the “majority will” is represented in our electoral system). Ideally, in legislative debates, we want all the cards on the table. We want our representatives to fully and frankly air their ideological differences, and we want the public to be able to judge which program of government is best. In this sense, it is undesirable as a normative matter to (somehow) limit the politics of law in the realm of legislation.

However, as a normative matter, the story changes dramatically when it comes to law implementation and interpretation. Our Supreme Court endorses the proposition, for example, that interpretation must be conducted in order to “discern meaning and legislative intent, not to ‘reverse-engineer’ a desired outcome” (Vavilov, at para 121). Administrative decision-makers implementing law have only limited reserve to bring professional expertise to bear (Vavilov, at para 31); otherwise, they are creatures of statute, and are cabined by the terms of their statutes (Chrysler, at 410). Put differently, administrative actors implementing law have no independent reserve to make free-standing ideological determinations that are not incorporated into the law itself. A different way to put it: law is political in the legislatures, but when it is being interpreted or implemented, courts must discover the political choices embedded in the law itself.

  The Court also endorses a law and politics distinction, as a constitutional matter, when it comes to judicial independence. It says that judicial independence is “the lifeblood of constitutionalism in democratic societies” (Ell, at para 45), which “flows as a consequence of the separation of powers” (Provincial Judges Reference, at para 130). Judges should not, at least as a positive matter, render decisions that are infected by ideology—because it is the legislature’s job to make judgment calls based on political considerations, economic tradeoffs, or otherwise.

I could go on with examples of how our Court—and our system—endorses a separation between law and politics. For what it’s worth, and no matter the descriptive reality, I believe there is wisdom in articulating limits to the free-standing ideological whims of administrators and judges. Of course, these limits will not be perfect, and they will not reverse the reality that implementation and interpretation will sometimes be driven by results. But the use of rules, standards, and principles to cabin these free-standing policy preferences can be useful in ensuring that state actors and judges justify their decisions according to certain, universal standards.

Two examples could be offered. First, in statutory interpretation, we have semantic canons, presumptions, and tools to try to determine the authentic meaning of law. These “off-the-rack” tools and presumptions are far from perfect, as Karl Llewelyn once pointed out. They can be contradictory, and they are not axiomatic laws of nature that lead inexorably to certain results. But we have these rules for a reason. We use them because we have made an ex ante judgment, over the years, that they will help interpreters reach the authentic meaning of legislation (or, if one is an intentionalist, the authentic intention of legislatures). We do not expect judges to distribute palm-tree justice when faced with a law. Instead, we expect judges to justify their interpretive result through the prism of these canons and presumptions, because they are semantically and substantively useful. We do this because there is a law and politics distinction between legislative work and judicial work, endemic to our Constitution.

Of course, there is a recognition that legal principles may themselves have a certain political valence. Presumptions of liberty, substantive equality, strict construction of taxation laws–all of these rules could be said to contain certain “political” suppositions. As I have written before, I am generally not supportive of certain substantive presumptions of interpretation that put a thumb on the scale. But as Leonid Sirota writes, some of these presumptions are plausibly connected to the legal system–in this sense, they are political, but they represent values that are endemic to the legal system as it stands. Substantive equality is similar. It can, at least plausibly, be traced to the text and purpose of s.15 of the Charter. These are principles that have some connection to our legal system; they are not representative of the whims of the particular interpreter in a particular case. At any rate, forcing interpreters to justify their decisions is useful in itself.

Secondly, Doug Ford’s recent decision to invoke the notwithstanding clause presents a good difference between the ways in which law can be political, and the ways in which it should not be. When a government invokes the notwithstanding clause, it is not necessarily an exercise of reason. It could be a blunt assertion of legislative power. Now, that assertion of power can be justified by any number of considerations. If some detractors are correct, for example, Ford’s use of the clause in this case could simply be designed to punish his opponents. Less likely, it could be a good-faith attempt by a legislature to come to a different definition of a rights-balance. Whatever it is, the use of the notwithstanding clause is an exercise of power that could be motivated by distinctly political aims. In this way, legislation is quite clearly political.

However, and even if naked political judgments are not justiciable once invoked under cover of the notwithstanding clause, the public may wish to articulate a different justificatory standard for the use of power that is legalistic in nature. As Geoff Sigalet & I wrote here, the public may wish to subject politicians who invoke the notwithstanding clause to a standard of justification—the politicians should offer legitimate, objective reasons for the invocation of the clause. Again, this is not a legal requirement. But as a matter of custom, it is a requirement that the public may wish to impose on politicians as a check on rank political judgments. By imposing such a standard, the public can disincentivize uses of the clause that are not backed by solid, legal reasons.

None of this is new. Indeed, Dicey argued that for the Rule of Law to flourish in any society, the society must contain a “spirit of legality” that is separate and apart from any limits imposed on power by  courts themselves. This spirit of legality presupposes that there are some areas where the public should expect better than rank political and ideological judgments. Of course, the law & politics distinction is a matter of some controversy, and I cannot address every aspect of the distinction here. Suffice it to say: broad claims that “law is always political” cannot hold. Law is descriptively political in some ways. It does not follow that it should be in all cases. Quite the opposite, sometimes it is best for rules, standards, and principles to cabin the ideological capture of courts and others, as best they can. This will not be perfect, it will not always work, and it is not a mechanical process. But it’s worth trying.

Author: Mark Mancini

I am a PhD student at Allard Law (University of British Columbia). I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I also clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in: the law of judicial review, the law governing prisons, and statutory interpretation.

6 thoughts on “The Politics of Law”

  1. A discussant on/or about the Subject of Law along its many themes, is not authoritative, if not conversant with what the Bard 0f Avon had to say about Lawyers, in language still publishable today. Ole Harry.

  2. You are 100% right that if we adopt a conception of “politics” such that everything is politics, then it can no longer be an objection to anything that it is political. There is a perfectly reasonable sense in which literary criticism, organic chemistry and the local gardening club are “political”: it is beyond reasonable dispute that the judiciary and bureaucracy are political in at least as strong a sense. All the most unfashionable neo-Diceyan formalist needs is a concession that judicial, technocratic and electoral politics are – and should be – different in some important respects. You can then happily concede that they are all “political” in the sense that they involve human beings interacting and exercising power.

    You could turn it around and say, “everything is legal”. Bureaucrats and elected officials – as much as judges – make claims to authority based on prior law and if these claims were not accepted then the bureaucrat or politician would not have the power that our system gives them. The same could be said of the CEO or the Rotary Club president. Populism is in many ways a complaint about this: there is some desire for a “leader” who can just commune directly with the people and “get things done.” But then it turns out that when these people get into power, they also claim legal authority and keep at least a parody of a legal system. So if law can’t escape politics, politics can’t escape law either.

    Where you lose me later in the post is (1) having noticed that everything is inescapably political, you then connect politics – and for that matter technocratic policy – with unbridled subjectivity (“whims”, “preferences”). I don’t buy this contrast. I don’t see why politics or cost-benefit analysis, for example, can’t be at least as constraining and objective as the interpretation of texts and precedents. There is this image of what the executive and legislative do as grubby and unprincipled (“rank”), by comparison with what the judiciary does, that I think is dangerously authoritarian. A Premier, Provincial Health Officer or Court of Appeal justice are all humans doing the best they can by their own lights at least in circumstances where they have both unusual powers and both factual and normative constraints on how they can and should use those powers.

    I also find your final paragraph confusing. When you say “law” is descriptively “political”, but should not be, I think this is based on conflation of various senses of law and politics. The judiciary should not engage in the kind of politics appropriate to elected officials. This is a widely-accepted norm in Canadian society, even if it is occasionally violated. Equally, public servants also should not engage in that kind of politics, at least within the scope of their jobs. That isn’t to say they don’t have ideological preferences or even that they shouldn’t. Legal formalism and legal realism are ideologies even if it is a different kind of ideology than libertarianism or social democracy. It actually isn’t that difficult to distinguish ideologies on the Supreme Court of Canada, although we have fortunately avoided the kind of partisan polarization that is endangering the legitimacy of the Supreme Court of the United States. I don’t think there is anything necessarily wrong with ideological division on an appellate court if it is the appropriate kind of ideology.

    1. I agree with all of this, and in response, I would say that: (1) as I note at the beginning, the entire debate trades off on different conceptions of “politics” and “political,” such that there is really an inescapable imprecision here, (2) I agree that there is nothing particular wrong with judicial ideology, but there is something wrong with “reverse-engineering” a result, as Vavilov says. It is that sort of “political” reasoning about which I am concerned.

    2. I would also agree that CBA etc is constraining, but again, those sorts of tools are typically not the stuff of judicial reasoning.

  3. Hi Mark,

    Yeah, the way I think we can get more precision is by recognizing that politicians, administrative decision makers and judges all have their own “role-specific morality”, which of course ought to be within the framework of a more general morality appropriate to people given power in constitutional democracies. Even if everyone is engaged in a kind of politics and a kind of law and a kind of ideology, the nature of the authority and of the basis of accountability for that authority is different. So a politician is ultimately legitimately able to say that their authority comes from an electoral mandate and their accountability is to the voters in the next election. Now that may come with some other constraints as well imposed by the constitution. But the politician can legitimately say that they ought not to be judged by the logical quality of analysis in a speech or the demands of consistency across cases.

    A judge’s primary responsibility is to *justify* the use of power in a way accessible to the loser in the dispute based on authority granted by legal texts and in accordance with the constraints those legal texts set out. Where I think formalism goes wrong is when it tries to argue that this authority and these constraints are not “ideological” and are merely technical. Formalists paradoxically also suggest that these constraints can’t involve the kind of technocratic considerations of CBA.

    I think that’s wrong descriptively. Proportionality or balancing tests are ubiquitous in law (in the Canadian context, think of RJR-Macdonald and injunctions, the use of “policy” in contract or tort law, the Learned Hand formula for the standard of care, the Oakes test, the Dore test, and so on and so on). I am a formalist enough to see a danger if the law is nothing but a proportionality test. But on the other hand, there is a reason that a judge often has to analyze what the relative overall costs and benefits of a decision will be on the parties – to some extent, that’s just part of the job of neutrally deciding disputes. CBA is just a more-or-less rigorous way of doing that.

    By the same token, I think I agree with Leonid that it isn’t really a problem that some of the canons of construction have a normative basis. We expect judges to interpret texts creating criminal liability more strictly than other laws because that protects the liberty of the subject. That is an irreducibly normative principle, albeit one that the legislature can override if it is clear enough. A lot of statutory construction law is really about normative principles that we would want legislatures to be clear about overriding.

    1. Great points, Gareth, and I’ll say I’m closer to Leonid these days than I was 6 months ago re substantive presumptions.

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