Double Aspect

Lon Fuller’s account of the Rule of Law with its checklist of characteristics laws ought to have in order to guide their subjects is well known. Some of these characteristics are pretty self-explanatory, if not always straightforward to apply. For example, legal rules should be clear, public, and prospective. But some are, perhaps, a little mysterious. For instance, Fuller insists that rules should not be impossible to comply with. Well, all right — but surely this is a bit of a non-issue? Legislators, whatever their faults, are not soixantehuitards, are they? Is this as important as the requirement of prospectivity, say, to an account of the Rule of Law?

Two recent Canadian stories suggest why the non-impossibility requirement is not trivial and deserves some attention. Both have to do with laws of a sort that is generally popular with everyone except libertarian economists — that is, laws intended to protect consumers from the supposed malignity of big business, notably by requiring and regulating the disclosure of information. Transparency is good, right? But good intentions do not make good law.

The first story, told by Alan Freeman in the CBA National Magazine, concerns the amendment of the Competition Act to prohibit “green-washing”: the making of dubious or indeed outright false claims that make their authors look more environmentally friendly than they actually are. This is supposed to be achieved by the new ss. 74.01(1)(b.1) and (b.2) of the Act classifying such claims as “reviewable conduct” subject to enormous “administrative monetary penalties” — unless the person making the claim proves it by “an adequate and proper test” (in the case of a product) or “adequate and proper substantiation in accordance with internationally recognized methodology” (in the case of business methods and practices). An what, pray tell, is adequate an proper? The Competition Act might as well have a shrug emoji here — it certainly has no explanation.

Making companies more honest about their products or other efforts to help or at least not damage the environment sounds nice — until you realise that the requirement of honesty is either impossible
to fulfil at all or at least impossible to fulfil in a manner that is certain to
satisfy the regulator. While Mr. Freeman quotes Professor Jennifer Quaid as saying that “[t]he standard” set out in the Competition Bureau’s interpretive guidelines “is pretty low. An adequate and proper test is not a scientifically vigorous test,” you can understand people being reluctant to take chances. (And the guidelines, of course, are not law.) The practising lawyers quoted in the story say the uncertainty is stll there.

Because it is impossible for companies or industry bodies to ensure that their environmental claims will be regarded as sufficiently robust, many prefer not to make any such claims at all, thus avoiding exposure to litigation and eventual liability. Perhaps, in Fuller’s terms, the issue here is a lack of clarity rather than outright impossibility of compliance, but it’s at least unclear that the sort of testing and methods the Competition Act requires even exist. Perhaps they could not exist.

The second example, which is even clearer than the first, comes from Quebec’s consumer protection legislation’s attempt to give effect to the “right to repair” fad. Amendments, which were enacted two years ago but are only about to go into force next month, require the sellers of goods that may require maintenance or repair to supply consumers with all sorts of information about the ways and means of procuring it. While the legislation allows for the possibility of such information being unavailable, it requires the seller to warn the client if that is the case.

In La Presse, Nathaëlle Morissette reports that many retailers think it is impossible to comply with these requirements. She quotes a trade group representative who observes that

A simple Canadian Tire carries up to 70,000 distinct products. This means that, in that one store, you would need a printed document for each item at checkout … It is physically and logistically impossible. We cannot print out millions upon millions of papers in every shop in Québec. (Translation mine)

If I may speculate, I would imagine that the information at issue is also subject to frequent change — change that retailers would have every difficulty in the world trying to keep up with, to say nothing of the burden of updating the paperwork.

There are other Rule of Law issues involved in Quebec’s law too, notably a striking lack of clarity about just what it applies to. As Ms Morissette reports, there are disagreements about its scope: she quotes a lawyer who argues that the paper documentation need not be supplied by every shopkeeper — but he also acknowledges that the Office de protection du consommateur, the consumer protection regulator, seems to think others. And that being so, why should the merchants subject to its oversight take chances?

The role played by regulatory interpretations in both these stories would deserve attention in its own right, but for the purpose of this post I wanted to focus on the non-impossibility issue. The examples I have described have at least two things to teach us in this regard. The first concerns the consequences of legislative non-compliance with the Rule of Law requirements. The second, the relationship between a formal conception of the Rule of Law and the substance of a legal system’s rules.

As Fuller argued, the law-maker’s failure to comply with the formal requirements of what he called the “inner morality of law” — i.e. the Rule of Law — means that the law will no longer be guiding the subject. Although there is something that purports to be the law, the reality the subjects find themselves in is a state of lawlessness. The most obvious way in which this can manifest itself would be generalized law-breaking. I wonder if this is about to happen in Quebec, though perhaps the government will accede to the pleas for the new law’s implementation to be delayed — which in turn might be a euphemism for something rather more permanent. Mass non-compliancce is, obviously, pretty bad — as Fuller and others point out, once people get in the habit of disregarding laws, it is difficult to stop them only at laws which they really have no choice but to disregard. As Fuller puts it, the reciprocity between the government and the governed is broken.

But there is another, more subtle, way in which the lawlessness resulting from an impossibility of compliance can manifest itself. We might describe it as withdrawal. The response of Canadian companies to the anti-greenwashing legislation is an example of this. The subjects do not
break the law but do not comply with it either; they take evasive action. Perhaps this is not as bad as the law inducing mass outright disobedience. After all, we often structure our behaviour so as to avoid entering into
conflict with the law, and sometimes that is a good thing. If a psychopath is only deterred from theft, rape, or murder by the prospect of arrest and punishment rather than morality, the law deterring him has done its job. But of course this is a very different situation from the one the greenwashing legislation is meant to create. Its aim, ostensibly, is not to deter all environmental claims but to ensure that only true claims are made. At that purpose, it is signally failing. And so in effect, it is
failing to guide people just as much as if it pushed them into outright law-breaking.

The other lesson we can take from these cases has to do with the nature of ostensibly formal Rule of Law requirements and their relationship to the limitation of the power of the state. The non-impossibility requirement, along with the rest of Fuller’s “inner morality of law,” is usually regarded as a formal one because it doesn’t seem to limit the law’s content in the expli-
cit way that human rights protections and other “substantive” requirements do. Joseph Raz famously insisted that a thoroughly iniquitous legal system can nevertheless be made to comply with the formal requirements of the Rule of Law, but many others have refused to quite accept this. Because these requirements mean that law-makers must spell out what they intend to do to the subject, and because law-makers tend not to want to acknowledge that they are the baddies, even a purely formal conception of the Rule of Law effectively prevents them from being as bad as they might otherwise be tempted to.

What the cases discussed here teach us or remind us of is that even when they do not rule out policy aims on their face, formal Rule of Law requirements do make it unrealistic to achieve some. The fantasy of consumers fully appraised of the environmental consequences of their purchases and informed at the point of sale about how to repair their goods cannot be legislated for if the legislator actually cares about such a seemingly elementary requirement of the Rule of Law as possibility
of compliance. And these are not the only such examples either. Immigration law is an obvious one, dependent as it is always is on the exercise of judicial and executive discretion based on vague criteria and enforcement by small armies of bureaucrats who lack the kind of protections the Rule of Law, in its procedural dimension, requires of adjudicators.

Readers may well think that, if I am right about this, then the Rule of Law is not all that it is cracked up to be. After all, many will think that the anti-greenwashing legislation is good, or at least would be if it could be made to work, and they probably feel the same way about Quebec’s consumer protection law. Almost everyone supports some policy of immigration restriction, even if they strongly disapprove of elements of the policies pursued by this or that country. And so they may be tempted to follow Sir Ivor Jennings in his dismissal of the Rule of Law as a partisan slogan for unreconstructed Whigs.

And admittedly I am an unreconstructed Whig myself. By my lights, the anti-greenwashing law is merely an attempt to fiddle with the perverse incentive structure created by a misguided belief in “corporate social responsibility” for solving the world’s “economic, social, and governance” problems. Quebec’s consumer protection law is just a sop to self-appointed consumer advocates, and not something that actual
consumers’ revealed preferences suggested there was any need for. Immigration restrictions of any sort are a violation of all manner of rights, and a programme of universal immiseration.

But I would like to think that people don’t need to agree with me about these substantive points to worry about the way in which the policies they might in principle find desirable undermine the Rule of Law. Indeed, it seems to me that if you dismiss something like the non-impossibility requirement as just a partisan preoccupation you are telling on yourself. Raz as well as Fuller thought that compliance with at least a thin version of
the Rule of Law is necessary to respect human dignity. That should take priority over your policy preferences.