Doré’s Demise?

What do the Supreme Court’s latest decisions mean for judicial review of administrative decisions that implicate the Charter?

In my last post, I wrote about the religious freedom issues addressed in the Supreme Court’s recent decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which concerned the constitutionality of a ministerial decision to allow development on land considered sacred by an Aboriginal nation. I want to return to Ktunaxa, this time to address a different issue that has, so far as I know, attracted relatively little attention: that of the standard of review of the Minister’s decision. On this point, the majority opinion (by the Chief Justice and Justice Rowe) and the concurrence (by Justice Moldaver) illustrate the ongoing failure of the Rule of Law in the Supreme Court’s jurisprudence.

Let’s start with a bit of history. In Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, Justice Abella, for writing for the unanimous Supreme Court, articulated a framework “for reviewing discretionary administrative decisions that implicate Charter values”. [34] Such review would be deferential, conducted on a reasonableness standard, much like judicial review of most other legal issues, in recognition of administrative decision-makers’ expertise. This approach has been heavily criticized, not least by Paul Daly and Maxime St-Hilaire, but the Court has never overtly resiled from it. However, the application of Doré has been uneven, to say the least.

In Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613, the majority opinion, written by Justice Abella, applied the Doré framework. However, as both Paul Daly and yours truly have suggested, there is little to choose between the way it does so and a more traditional proportionality analysis. Meanwhile, a partial concurrence by the Chief Justice and Justice Moldaver eschewed the Doré approach altogether. Just days later, in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, a majority of the Supreme Court took yet another approach, holding that the relationship between the freedom of religion, religious neutrality, and prayer by government officials was a question of central importance to the legal system and therefore reviewable on a correctness standard. Justice Gascon, writing for the majority, did offer an explanation for why this case was different, though one that Paul Daly criticized as confused and confusing. Justice Abella was also unimpressed; she concurred, but would have reviewed the decision of Québec’s Human Rights Tribunal on a reasonableness standard. Neither she nor Justice Gascon even mentioned Doré.

Back, now, to Ktunaxa. Again, the majority opinion does not so much as mention Doré. What is more, it does not even raise, never mind address, the issue of the standard of review. After describing the background and the history of the case, and outlining the Ktunaxa’s religious freedom claim, it proceeds to discuss the Charter right to freedom of religion and to address and reject the claim, without referring, much less deferring, to the Minister’s decision at all. It is worth noting that the Supreme Court’s next decision, Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, is the same in this regard. One of the issues raised there was whether a policy requiring government lawyers to be available, several weeks a year, to handle urgent matters outside of regular working hours was an infringement of their right to liberty under section 7 of the Charter. A labour arbitrator said that it was, but the Court (unanimous on this point) easily rejected that view, again without addressing either the question of the standard of review or the administrative decision-maker’s reasoning (though the majority did discuss it at length on the other issue in the case, which concerned the interpretation of a collective agreement).

Justice Moldaver’s concurrence in Ktunaxa is also worth mentioning here. He too starts out with his own discussion of the scope of religious freedom under the Charter, criticizes the majority’s view on it, and insists that the Minister’s decision was a prima facie infringement of that right. And then, Justice Moldaver turns to… the Doré framework (citing the majority opinion in Loyola for the proposition that it is “the applicable framework for assessing whether the Minister reasonably exercised his statutory discretion in accordance with the … Charter“. [136] Justice Moldaver explains why he thinks the Minister considered the Ktunaxa’s religious rights, and why his decision proportionately balanced these rights with the applicable statutory objective, paying fairly close attention to the minister’s reasoning.

So what is going on? Prof. Daly seems to think that not much is, but I’m not so sure. Without telling anyone, the Supreme Court might have killed off, or at least curtailed, Doré. Ktunaxa and Justice Counsel seem to suggest that, at least at the stage of defining the scope of a Charter right, Doré is not the applicable framework, and indeed no deference, or even attention, is due to an administrative decision-maker’s reasoning. Now, I’m no fan of Doré, and would be glad to know it’s dead and buried ― but if the Supreme Court has decided to get rid of it, that seems like a pretty big deal, and it should have told us. As things stand, for all we know, the Court might re-embrace Doré in the next case and pretend that Ktunaxa and Justice Counsel never happened, just as in those cases it seems to pretend that Doré, or at least Saguenay, never happened.

Moreover, there is an intermediate possibility, suggested by Justice Moldaver’s concurrence in Ktunaxa ― though of course we have no idea what the majority of the Court thinks about it, since it does not comment on this, or indeed any other, aspect of Justice Moldaver’s reasons. Perhaps, while the definition of Charter rights, as opposed to the justifiability of infringements under section 1, is a matter for the courts, while the justifiability of infringements is still to be reviewed by applying the Doré framework, perhaps as modified, if modified it was, in Loyola. This is not a crazy approach (which isn’t to say that I like even this diluted version of Doré). One could argue that the scope of Charter rights is necessarily a question of central importance to the legal system on which administrative decision-makers, even otherwise expert ones like labour arbitrators, are not in a privileged position vis-à-vis the courts, while whether a particular restriction to a right is permissible is an issue that is both less important and more bound up with a particular decision-maker’s expertise.

Crazy or not, I don’t think this approach is what Doré stands for. As I read it, Doré meant to move away from the two-stage Charter review with prima facie infringement and justification, in favour of a less structured, more global assessment. This is presumably why Justice Abella persistently spoke of Charter “values” instead of rights. Besides, at least one of the cases that Justice Abella invoked as supporting the proposition that discretionary administrative decisions engaging these “values” had to be reviewed on a reasonableness standard was a section 7 case, and in such cases the important questions typically (although, as we now know, not quite always) have to do with the definition of the right, not with its limitation under section 1. There just isn’t any indication in Doré that Justice Abella or her colleagues meant to confine it to the more limited role that it plays in Justice Moldaver’s Ktunaxa concurrence.

At the very least, then, the Supreme Court may have substantially modified Doré. Perhaps it has decided not to follow it anymore. But, to repeat, the Court has not told us so. This is problematic. Indeed, I think the Court is guilty of a serious Rule of Law failure. The Rule of Law requires law to be stable ― though not unchanging, to be sure ― yet the law on the standard of review of administrative decisions involving the Charter has now changed at least three, maybe four (depending on how to count Loyola) times in less than six years. The Rule of Law also requires, I think, that the fact of legal change be transparent (this is a function of the generally recognized requirement that law must be public). This is not always easy to ensure in the case of law being articulated and re-articulated by courts in the process of adjudication, but at least when a court knows that it is disregarding a relevant precedent or changing its approach to a type of case, it ought to be able to say so. The Supreme Court did so in Saguenay ― but not in Ktunaxa and Justice Counsel.

Or, look at this another way. In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, the Supreme Court famously spoke of the importance of “the existence of justification, transparency and intelligibility within the decision-making process”. [47] That was by way of defining the notion of reasonableness in administrative law (itself a requirement of the Rule of Law), but you’d think that the courts should at least be held to as high a standard as administrative tribunals. Well, I’d say that it’s not easy to see much by way of justification, transparency, or intelligibility within the process by which the Supreme Court determines the standard of review of administrative decisions involving the Charter these days.

One last point. Justice Stratas links the doctrinal uncertainty that bedevils Canadian administrative law with turnover on the Supreme Court. I’m sure that this is a part of the story ― but Ktunaxa suggests that it is only a part. It’s not just that judges retire and are replaced by others who don’t agree with them. They don’t even stick to one approach while they are on the Court. Justice Abella wrote Doré and defended deferential review in Saguenay, but she signed on to the majority opinion arguably ignoring it in Ktunaxa. Justice Moldaver co-wrote the partial concurrence in Loyola that effectively rejected Doré, but in Ktunaxa he enthusiastically applied it, albeit not in full. (To be sure, there is something to be said for a judge who accepts having been outvoted on a particular issue and falls in line with the majority. But given the overall uncertainty of the law in this area, it might not be the best place to demonstrate one’s team spirit.) Given this individual inconstancy, it is no surprise that the Supreme Court as a whole is lurching from one approach to another without anything to stop it.

Given the lack of clarity from the Supreme Court about what exactly it was doing to standard of review analysis in Ktunaxa and Justice Counsel, we will have to wait to find out whether these case are just aberrations or the start of a new trend. It is at least possible, however, that they mean that Doré is, in whole or in part, no longer good law. I’d offer three cheers for that result, but must instead lament the lack of clarity and transparency with which it has ― unless it has not ― been reached.

A Hard Case

Thoughts on the Supreme Court’s dismissal of a religious freedom claim based on Aboriginal beliefs

Last week, the Supreme Court issued its decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which held among other things that the guarantee of religious freedom under the Canadian Charter of Rights and Freedoms does not prevent the state from interfering with the object of one’s worship. Beliefs, says the majority in an opinion by Chief Justice McLachlin and Justice Rowe, are protected ― but not the things that these beliefs attach to. Justice Moldaver, while concurring  in the result, vigorously disagrees with this approach. So does much enlightened opinion. And the critics have a point. But so does the majority. This is a much harder case than some of those who have criticized the decision have allowed.

For my purposes here, the facts are simple. The people of the Ktunaxa Nation have come to believe that allowing the building of any permanent constructions on a large tract of public land “would drive Grizzly Bear Spirit from [that land] and irrevocably impair their religious beliefs and practices” [6] to which the Spirit is central. Meanwhile, a developer wants to build a resort on that land and, after a protracted consultation process, has been granted permission to do so by the provincial government. The question is whether this decision infringes the Ktunaxa’s religious freedom and, if so, whether the infringement is justified under section 1 of the Charter. (There are other important issues in Ktunaxa too, but this post only deals with the religious freedom one.)

The majority concludes that there is no infringement of the freedom of religion. The constitution protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs”. [63] An interference with a person’s or community’s beliefs and manifestation of these beliefs is a prima facie infringement of this guarantee. But there is no such interference here. The Ktunaxa can still believe in the Grizzly Bear Spirit, undertake rituals that manifest this belief, and transmit it to others. However, crucially, “[t]he state’s duty … is not to protect the object of beliefs, such as Grizzly Bear Spirit”. [71] Were it otherwise, “[a]djudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs”. [72]

Justice Moldaver argues that this is too narrow a view of religious practice and, therefore, religious freedom. Religious practice must be, well, religious ― otherwise there is no point to engaging in it. The state must take away its essential character: “where the spiritual significance of beliefs or practices has been taken away by state action, this interferes with an individual’s ability to act in accordance with his or her religious beliefs or practices”. [126] When religious belief involves a “connection to the physical world”, [127] as is the case for many aboriginal religions, a severing of this connection will infringe religious liberty. This, according to Justice Moldaver, is what happened in this case.

That said, Justice Moldaver ultimately upholds the government’s decision, because in his view it represents a proportionate balancing between the statutory objectives of administering and, when expedient, disposing of public lands, and the Ktunaxa’s religious freedom. Since the Ktunaxa themselves insisted that their claim could not be accommodated ― it had to be accepted or rejected ― to give effect to it would have meant giving them a veto over development on, and thus effectively a form of property rights in, a large parcel of public land. The government was “in a difficult, if not impossible, position”, [154] and its decision to allow development notwithstanding the Ktunaxa’s claim was reasonable.

Critics of the majority opinion agree with Justice Moldaver that the majority does not understand religious experience or the variety of religious practice. Avnish Nanda, in a thoughtful Twitter thread, blamed this failure on the lack of diversity on the Supreme Court. He pointed out that “[t]wo of the five pillars of Islam are intrinsically tied to” the Kaaba, and that, therefore, “[i]f the Kaaba were deprived of its spiritual significance, these religious practices core to Islam would be deprived of value”. But I’m not sure that diversity is the key issue here. After all, some forms Christian theology also accords great significance to sacred places and objects ― and one need not even be particularly familiar with this theology to be aware of its traces in the English (or French) language ― in words like “crusade” or “iconoclast”.

Whatever the reason for the majority’s narrow approach to religion, as I said at the outset, I think that its critics raise an important concern. Courts are prone to taking what is arguably too narrow a view of religious concerns, whether with respect to common or more exotic forms of faith. In a somewhat different but related context, Douglas Laycock once cautioned against “assum[ing] that religions lay down certain binding rules, and that the exercise of religion consists only of obeying the rules … as though all of religious experience were reduced to the Book of Leviticus”. (“The Remnants of Free Exercise”, 1990 Sup Ct Rev 1 at 24) Beliefs, obligations, and rituals are not all there is to freedom of religion. Community (the specific focus of Prof. Laycock’s concern) is important too, and so is attachment ― properly religious attachment ― to some aspects of the physical world.

However, as I also said in the beginning, we should not be too quick to condemn the majority opinion. To begin with, its concern about entangling the courts, and thus the ― secular and religiously neutral ― state in determinations of just what the protection of “objects of beliefs” requires is justified. David Laidlaw’s post over at ABlawg underscores this point, albeit unintentionally. Mr. Laidlaw insists that “the result in this case was a failure of imagination to consider the interests of the … Grizzly Bear Spirit”, which should have been recognized through the expedient of the courts granting the Spirit a legal personality and appointing counsel to represent it. For my part, I really don’t think that the Charter allows a court to embrace the interests of a spiritual entity ― thereby recognizing its reality. It is one thing for courts to acknowledge the interests and concerns of believers; in doing so, they do not validate the beliefs themselves ― only the rights of those who hold them. It is quite another to endorse the view that the belief itself is justified. And then, of course, the court would still need to determine whether any submissions made on behalf of the Spirit were well-founded. But even without going to such lengths, it is true that to give effect to the Ktunaxa’s claim, the Supreme Court would have had to hold not only that the Ktunaxa sincerely believed in the existence of and their connection to the Grizzly Bear Spirit, but also that this connection would in fact be ruptured by development on the land at issue. To do so would have meant validating the asserted belief.

There is a related point to make here, which, though it is unstated in the majority opinion, just might have weighed on its authors’ minds. Insisting that the connection between a person’s religious belief and the object of this belief deserves constitutional protection might have far-reaching and troubling consequences. The movement to insist that “defamation of religion” must be forbidden and punished is based on the same idea: things people hold sacred deserve protection, and so the state ought to step in to prevent their being desecrated ― say, by banning cartoons of a Prophet or jailing people for “insulting religious feelings”. Now, perhaps this does not matter. To the extent that the protection of the objects of beliefs is purely “negative”, in the sense that the state itself must not engage in desecration but not need not take action to prevent desecration by others, it need not translate into oppressive restrictions on the freedom of expression (and perhaps of religion) of those whose behaviour some believers would deem to compromise their own faith. But I am not sure that this distinction will always be tenable. If, for instance, a regulatory authority subject to the Charter grants a permit for an activity that a religious group believes to trample on the object of its faith ― say, a demonstration in support of people’s rights to draw cartoons, where such cartoons are going to be displayed ― does it thereby become complicit in the purported blasphemy, and so infringe the Charter? (This argument is not frivolous: it parallels one of those made by those who think that law societies should be free to deny accreditation to Trinity Western’s proposed law school lest they become complicity in its homophobia.)

There is an additional reason why Ktunaxa strikes me as a difficult case ― though perhaps also a less important one than it might seem. Suppose Justice Moldaver’s view of the scope of religious freedom under the Charter is correct, and the state has a prima facie duty not to take away the sacred character of (at least) physical spaces and objects involved in religious belief. But as Justice Moldaver himself says, this seems to be tantamount to giving religious believers a form of property interest in the spaces or objects at issue. That might not be a problem if the believers already own these things in a more conventional sense ― though even in such cases a constitutional quasi-proprietary right would be unusual given the Charter’s lack of protection for ordinary property rights. But, as Ktunaxa shows, in the absence of more conventional interests (whether fee simple ownership or aboriginal title or right), the recognition of such interests can get very problematic, because they amount to giving religious believers control over things that are not actually theirs. And what if the sacred place or object is owned not by the state but by another person? What if more than one religious group lays claim to it? In short, I’m not sure that there will be many, if any, cases where competing considerations would not prevail in a section 1 analysis (whether under the Oakes or, especially, the Doré framework), just as they did in Ktunaxa.

These thoughts, in case that wasn’t clear, are all quite tentative. I’m certainly open to the possibility of being proven wrong. If I am right, however, Ktunaxa really was a very difficult case, and it is not obvious that the majority got it wrong ― though nor is it clear that it got it right. Hard cases, it is often said, make bad law. I’m not sure that this is what happened here ― or that it even matters if it did.

Bashing Bill 62

Criticism of Québec’s face-veil ban coming from elsewhere in Canada is neither hypocritical nor disproportionate

In an op-ed in The Globe and Mail that has generated some discussion, at least in Québec, Jean Leclair remonstrates with “English Canadian politicians and journalists” for their criticism of Québec’s recently enacted legislation that could prevent women who wear face veils (and perhaps other people, such as those who wear sunglasses) from taking the bus or accessing any other public services. Prof. Leclair faults the classes that chatter in English for their hypocrisy and for the excesses of their rhetoric. With respect, it is he who is wrong.

Prof. Leclair thinks that English Canadian criticism of the former Bill 62 is hypocritical because the rest of Canada too has its share of racists and of people who support legislation targeting religious minorities. That is no doubt true. But it is no less true that in no province other than Québec has legislation similar to the “Charter of Values” that was proposed by Québec’s previous government, Bill 62, or beefed-up versions of the latter being proposed by both main opposition parties in Québec been enacted. To my knowledge, no provincial political party has made such legislation official policy. More broadly, no provincial political party has attempted to trade on or pander to the racism that undoubtedly exists in Canadian society in the way that all the main parties in Québec have done. The Conservative Party of Canada, in the death throes of the last federal election campaign, tried to do so, and having failed, abandoned the attempt. Prof. Leclair writes as if there is no difference between discriminatory attitudes existing in society and these attitudes being shared, or indulged for partisan purposes, by those in power. This is not so.

Prof. Leclair also thinks that the critics of Bill 62 are hypocrites insofar as they appear to him to celebrate the wearing of niqabs, or at least to be “stigmatizing all people who do not wish to ‘celebrate’ the right of a woman to wear a veil”. “How many” of them, he asks, “would rejoice if their daughter, one day, chose to wear one?” Prof. Leclair does not mention any names, and I am puzzled as to whether anyone actually is celebrating the fact that niqabs are being worn in Canada. What is worthy of celebration is the fact people are free to act in ways of which many, probably a majority, of their fellow citizens disapprove. Prof. Leclair insists that people should be free to criticize the wearing of the face veils without being accused of being racists, and I agree with him so far as this goes. But, once again, there is a difference between insisting that people are free to criticize others’ choices, even religiously-inspired ones, and defending their purported freedom to support or vote for policies that coerce those who make choices they deem wrong. Criticism is a right in a free society; coercion is not.

Prof. Leclair also argues that the criticism of Québec’s anti-veil (and perhaps anti-sunglasses) legislation is overwrought. After all, “Canada’s approach to the regulation of religious symbols and clothing … is not the only legal path followed in the liberal-democratic world”. A number of European countries have banned full-faced veils, and these bans have been upheld by the European Court of Human Rights. This, to prof. Leclair, proves that, though the bans may be wrong ― as he thinks ―, they are not “synonymous with blind racism”. Yet I fail to see how the fact that some countries ― even some democratic countries ― do something should shield that thing from forceful criticism. Admittedly, I do not know whether Prof. Leclair personally has ever criticized, say, the American criminal justice system as barbaric, but plenty of people in Canada and in Europe do not hesitate to do so. Does prof. Leclair think they should all keep mum? For my part, I think that to the extent that human rights involve universal principles, there is nothing inherently untoward in arguing that the interpretation of these principles by another polity, or group of polities, is perverse.

And the European approach to face veils is indeed perverse. Whether or not it proceeds from “blind racism”, as I have argued here, the reasoning of the Strasbourg Court is repressive, and indeed totalitarian. It rests on the premises that the state is entitled to impose conditions on human interaction that the individuals doing the interacting do not wish to be subject to, and that individuals have some kind of obligation to enter into “open interpersonal relations” with others, whether or not they want to do so. This reasoning is incompatible with belief in a free society, where people decide whether they wish to interact with others, and on what terms, so long as they are refraining from using force or fraud and not harming third parties. Prof. Leclair insists that even if the banning face veils is wrong, it is not arbitrarily repressive, as if the state were “regulating such things as baseball caps or miniskirts”. Face veils are associated with oppression against women, and the desire to outlaw them is therefore comprehensible even if misguided. I’m not sure about skirt length requirements, but certainly prohibitions on women joining certain occupations, or working outside the home at all, or voting, were once justified by claims that these activities took away women’s dignity. We have learned not just to politely disagree with such claims, but to reject them out of hand (which, of course, does not mean to shout them down or censor them). I hope that, in due course, we will also learn to reject out of hand claims that the dignity of women requires them to be prevented from dressing in accordance with their religious beliefs.

In my view, then, Prof. Leclair and others who, like him, disagree with Québec’s ban on face veils and proposals to extend this ban are wrong to object to the criticism with which this ban has been received in the rest of the country. This criticism is not made hypocritical by the existence of racist citizens outside Québec, nor is it made disproportionate by the fact that similar bans are regarded as acceptable in Europe. Prof. Leclair and others might view the criticism as an instance of “Québec-bashing”, the application of double standards to their province. Their are mistaken. Not only is there no double standard, as I’ve argued above, but the intensity of the criticism is, at least in part, likely driven by a recognition of the existence of the chauvinist and illiberal tendencies elsewhere in Canada. There might be no need to criticise Québec’s legislation so much if we were certain that it would never be replicated elsewhere. But precisely because there can be no such assurance, it is important that scholars, journalists, and politicians across Canada denounce it for what it is ― a manifestation of bigoted illiberalism.

Profession of Power

A critique of Bob Tarantino’s celebration of the legal profession

In a new post over at his blog, bad platitude, Bob Tarantino continues his defence of the Law Society of Upper Canada’s right to exact ideological conformity from its members. His focus is on Jonathan Kay’s National Post op-ed that tied the Law Society’s demands to a belief  in the “myth that lawyers comprise a moral vanguard within society, with sacred duties that extend beyond the daily humdrum of litigating divorces and drafting contracts”. Mr. Tarantino concedes that Mr. Kay “correctly diagnoses … the profession’s seemingly inherent vainglory” ― and proceeds to defend thinking of law as a profession, not “‘just’ an occupation” in a way that demonstrates just how vainglorious this profession can be.

Before getting to the point, I pause to note Mr. Tarantino’s rather remarkable appeal to the forces of the market in an implicit attempt to justify the Law Society’s right to force lawyers to come up with, or at least copy-and-paste, “Statements of Principle” acknowledging a purported obligation to promote equality and diversity. Contra Mr. Kay, Mr. Tarantino observes that some clients ― he mentions Facebook ― want lawyers to take these things seriously. Mr. Tarantino also insists that he has “the right to decide not to spend [his] money at businesses that espouse views [he] find[s] unpalatable, and even to enthusiastically encourage others to avoid spending their money there”. Very well ― though at least some human rights statutes (including those of Quebec and New Zealand) include political opinion among the list of prohibited grounds of discrimination, which suggests that even enlightened individuals like Mr. Tarantino might disagree with some instances or applications of such legislation. But how exactly does Mr. Tarantino justify the coercion of lawyers whose clients are not as enlightened as he or Facebook, or indeed those lawyers who do not have any clients? At best, this is not a free-market argument, but a paternalistic one. The Law Society knows better.

On now to Mr. Tarantino’s main argument, which is that “it is precisely in law’s status as a profession and as a locus of power in society that the importance of collective value-setting arises”.  A profession, says Mr. Tarantino, is distinguished by involving the application of “a body of specialized knowledge and subordination of the practitioner’s interests in favour of three ‘others’: the client, the profession, and the public”. Lawyers, even more than the members of other professions, wield power over “our society and over the affairs of their clients, and if they adopted a self-interested ethic, a sort of syndicalism, they could quickly become a manifest danger to the rest of society”. For this reason, it is essential to make lawyers “virtuous” ― “so that their power is channeled in favour of others”. This is what both the Law Society’s latest demands and the oath lawyers are required to swear upon entering the profession (to which these demands bear a close resemblance, as I have noted here) are supposed to accomplish. Mr. Tarantino adds that it is very important that these exercises in “collective identity-formation” are “voluntary”; that they “do not find their origins in the government [but] arise from lawyers themselves.” He sees the legal profession as “in some ways just a big club … that gets to set its own rules about membership”, and there is nothing “illegitimate” about that, is there?

It is as if the last 250 years of history and political thought had not happened. As if it were possible to believe, after Smith and Madison ― not to mention Robespierre ― that public good is achieved by virtuous agents rather than by competition and ambition counteracting ambition. As if it were possible to claim, regardless of Constant and Berlin, that rules that a majority imposes on a minority not really an imposition and an interference with liberty. As if it were possible to maintain, despite Friedman and public choice theory, that a state-backed monopoly is not self-interested and syndicalist, working to exclude competition and raise prices for its services. Or, if Mr. Tarantino does not actually believe that such things are generally true, he must then suppose that lawyers, of all, people, are uniquely immune to the fallibility of other human beings. This is the sort of presumption, as self-serving as it is vainglorious, that Mr. Kay rightly decried.

Moreover, Mr. Tarantino’s argument involves a rhetorical sleight of hand. The lawyers’ power, of which he makes so much, is mostly not collective, as he suggests, but individual. It is not the legal profession acting as a united whole that drafts statutes, prosecutes alleged criminals, adjudicates disputes in administrative tribunals, or handles the personal and financial affairs of vulnerable clients. It is individual lawyers or, at most, firms. In any litigation, there are two sides ― normally, though admittedly not always, each with its own lawyer. When lawyers draft or apply rules that bind citizens, other lawyers are ready to challenge these rules or their application. If a lawyer mishandles a client’s case, another can be retained ― including to sue the first. (This is not to make light of the possibility and cost of mistakes or incompetence, of course. Still, the point is that a mistaken or even incompetent lawyer does not represent the profession as a whole.) The one circumstance when lawyers do act collectively is when they act through the Law Society. When the Law Society exacts compliance with its demands, that is the profession exercising power ― backed up by the armed force of the state. That is where we really ought to worry about power being exercised unethically. And in my view ― though perhaps not in Mr. Tarantino’s ― the exercise of power to impose ideological conformity on those subject to it is unethical and indeed oppressive.

Unlike many other defenders of the Law Society, Mr. Tarantino has the merit of not trying to minimize the seriousness of what is going on. His first post contained a forthright admission that the Law Society’s demands amount to a values test for membership in the legal profession. His latest doubles down on this admission, and makes clear that it the Law Society’s actions rest on a conception of public power that is paternalistic, confident both of its own moral superiority and of its ability to make others virtuous, and takes no notice of disagreement or dissent. Those who do not like how this power is exercised can simply get out and leave the legal profession ― and find some other way of making a living. Many of those who support the Law Society seem to be surprised by the force of the opposition which its latest demands have provoked. Perhaps, thanks to Mr. Tarantino’s posts, they can understand better.

An Originalism for North Freedonia

Thoughts on an essay on “Originalism without Text” by Stephen Sachs ― and its relevance to Canada

The latest issue of the Yale Law Journal includes a short but very interesting essay by Stephen Sachs, “Originalism without Text“. To be an originalist, prof. Sachs argues, is not just (or mostly) “to read words in a particular way”. (157) It is to attach special significance to the legal past, indeed to “treat[e] modern law as vulnerable to history as open to refutation by claims about the past”. (158) This claim matters for originalist theory but, and this is the point on which I want to focus here, it is especially important for any attempt to give an originalist account of the Canadian constitution.

Prof. Sachs asks us to imagine a hypothetical polity, Freedonia, that “has no writing and no written law”. (159) Its law, such as it is, is an oral tradition transmitted from generation to generation. If Freedonia decides to designate a particular point in the evolution of this tradition as a reference, and to say that no deviation from the law as it then stood is to be tolerated, then, says Prof. Sachs, Freedonia is an originalist polity. If innovations are made, and criticized on account of departing from that historical reference, such criticism is originalist.

This is so regardless of the fact that the critics’ point is not about enforcing the meaning of a canonical legal text ― which is what originalism is often understood to be about. In Prof. Sachs’s view, what matters is not whether the critics are appealing to the authority of a legal text, but the fact that “[t]hey’re trying to recover the content of the law as it stood at a specific point in history, because they believe that this antique law determines the law as it stands today”. (161) Prof. Sachs points out that “[n]ot all law is written law, and not every society needs to rely on it in the same way”. (164) Indeed, even in those polities where “unwritten” law coexists with written documents, it is important not to make the mistake of “reading the text correctly while utterly misunderstanding the legal role it was to play”. (165)

Prof. Sachs’s main concern seems to be with how the term “originalism” itself is used. He writes that “Freedonia is just a hypothetical, and it’s also a special case. In the real world, where literacy is widespread and ink is plentiful, we tend to write these things down” (168) ― these things being the fundamental rules according to which the polity functions. But I would suggest that the real world is more varied, and Freedonia is less hypothetical that Prof. Sachs lets on.

Consider another polity ― call it North Freedonia ― whose fundamental rules are of two kinds. An important part was written down at a particular historical juncture, some 150 years ago, when important institutional reforms were undertaken. But these reforms, important though they were, were not meant to upend other rules that existed in the form of unwritten understandings. Indeed, when one part of the rules was being written down, this was done in a way that only made sense on the assumption that the other, unwritten, part of the rules would continue in force. Much later, 35 years ago, North Freedonia again changed its fundamental rules, including by agreeing on a procedure for future amendments to replace informally-developed arrangements that had previously been made for this purpose. Once again, however, the unwritten rules ― which had evolved somewhat but remained stable in some key ways over the intervening 115 years ― were left in place, and the newly-written rules, as much as those written down a century earlier, only made sense in light of the unwritten ones.

Can North Freedonia be originalist? Admittedly, scholars of high authority tell us that it is not. North Freedonian judges themselves tend not to think of themselves as being originalists; some loudly disparage the idea. But when they decide cases, their record is actually mixed. Though their decisions are far from consistently originalist, or consistently anything in particular, it is originalist rather more often than they care to admit. Still, could North Freedonians be consistent originalists even if they tried? On some views, those that Prof. Sachs challenges, the fact that some of their most important rules are not written down in authoritative texts would be a problem for them. Prof. Sachs argues forcefully and, in my view, convincingly, that these views are misguided. Though crucial aspects of North Freedonia’s constitution are unwritten, and though even the written parts rely on unwritten ones, North Freedonia could be originalist if it recognizes the authority of its past and accepts that claims about what it rules are today can be defeated by claims about what they were 35 or 150 years ago.

Now, some North Freedonians will object that Prof. Sachs’s theory is inapplicable to their polity, because it is about “recovering law” from the past ― and the unwritten rules of North Freedonia’s constitution are not actually laws, having been neither enacted in legislation nor laid down in judicial precedent. They are, instead, derived from the practice of North Freedonia’s political actors trying to exercise their discretionary powers in accordance with North Freedonia’s fundamental constitutional principles. But the objection is not convincing. The unwritten laws of Prof. Sachs’s Freedonia itself have never been enacted or, or at least for the most part, laid down in authoritative precedents. They are a tradition developed over time, up to a defined point in history, by the authorities responsible for its application. Though North Freedonia’s institutional arrangements are more complex than Freedonia’s, and include a measure of separation of powers, especially between judicial and other officials, the process by which its unwritten rules came to be, and thus their nature, is not relevantly different from those in Freedonia.

North Freedonias could be originalists if they wanted to.  Needless to say, that does not mean that they are, or prove that they ought to be. I’d say that they ought to give the idea some serious thought though. Jeffrey Pojanowski has outlined some very good reasons to do so in an excellent recent essay. But a fuller argument from me on that point must wait. Prof. Sachs’s conclusions are important in their own right, and an impetus for further reflection ― including in non-hypothetical polities.

Which Principles? What Politicization?

A response to Maxime St-Hilaire’s appeal to principle over politics at the Supreme Court of Canada

In a blog post over at Advocates for the Rule of Law (and in a previous version at À qui de droit), my friend and sometime guest Maxime St-Hilaire argues that

The greatest challenge facing the Supreme Court of Canada is the risk of its politicization, understood … as a form of adjudicative practice that is not governed by legal rules, legal principles, or other legal norms and that does not restrict itself to deciding justiciable questions.

Whether or not “politicization” is the best possible label for this sort of adjudication, and whether or not it is the greatest challenge facing the Supreme Court ― both plausible but debatable propositions ― I agree that the danger Prof. St-Hilaire identifies is a serious one. It is a challenge, moreover, not only for the Court, or even the judiciary as a whole, but for the legal profession, which is too readily supportive of adjudication that does not abide by the requirements of the Rule of Law.

However, precisely because this is a very serious issue, it is important to be careful in circumscribing it ― not to accuse the Supreme Court of being “political” or disregarding the Rule of Law when it is not. And here, I part company with Prof. St-Hilaire to some extent. Some of the specific instances of politicization that he identifies are indeed examples of the Court failing to act judicially or to uphold the law. Others, in my view, are not.

I agree with Prof. St-Hilaire’s criticism of the Supreme Court’s theoretical embrace of living constitutionalism in theory ― and its practical embrace of interpretive eclecticism with few if any principles to constrain cherry-picking interpretive approaches. If, in other jurisdictions, there is such a thing as a “law of interpretation” (to borrow the title of a recent article by William Baude and Stephen E Sachs), constitutional interpretation in Canada seems to be largely lawless, as most recently highlighted by Benjamin Oliphant. Indeed, I would go further than Prof. St-Hilaire (if I understand him correctly), and argue that judges ought to be originalists in order to uphold the principles of the Rule of Law and constitutionalism, because, as Jeffrey Pojanowski argues,

if one does not seek to identify and treat the original law of the constitution as binding, one imperils the moral benefits constitutionalism exists to offer the polity. We are back to square one, adrift in a sea of competing, unentrenched norms.

I share Prof. St-Hilaire’s unease at the Supreme Court’s often unprincipled practice of suspending declarations of invalidity of legislation. While I once argued that this device had some redeeming virtues, the Court’s failure to articulate and apply coherent principles for deploying it nullifies these virtues. As things currently stand, the Court’s approach to suspended declarations of unconstitutionality is yet another manifestation of the sort of uncabined discretion that is antithetical to the Rule of Law.

I also agree with Prof. St-Hilaire that the Supreme Court’s approach to review of allegedly unconstitutional administrative decisions under the framework set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 is a “denial of constitutional justice”. (That said, it is worth noting that the Court’s application of this framework is a mess, and it might matter less than the Court itself suggests ― though is a Rule of Law problem in its own right.) And I agree with Prof. St-Hilaire’s criticisms of the Court’s approach to s 15 of the Canadian Charter (including because it is flatly inconsistent with its original meaning, as Justice Binnie, among others, openly recognized).

Now on to some of my disagreements with Prof. St-Hilaire. Some of them we have already canvassed at some length. I remain of the view (previously expressed here) that judges can, in appropriate cases, criticize the legitimacy of their colleagues’ adjudicative techniques. Indeed, I am puzzled by prof. St-Hilaire’s insistence on the contrary. Can a judge who agrees with his critique of the Supreme Court not say so? I also remain of the view, that courts can, subject to usual rules on justiciability, pronounce on constitutional conventions, which are not essentially different from legal rules. I most recently expressed and explained this view in a post here criticizing the UK Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, and in this short article for a special issue of the Supreme Court Law Review.

New, to this space at least, is my disagreement with Prof. St-Hilaire on the scope of the doctrine of res judicata and the force of stare decisis. Prof. St-Hilaire accuses the Supreme Court of “conflating the two principles”, and of playing fast and loose with both. In his view, stare decisis is about “the general/indirect jurisprudential authority of judicial reasons”, while res judicata concerns “the particular/direct authority of judicial decisions per se, and taken separately”. When the Supreme Court upheld the constitutionality of the criminalisation of assisted suicide in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, that rendered the matter res judicata, and should have prevented the courts, including the Supreme Court itself, from revisiting the matter, as they eventually did in Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331. More broadly, the Supreme Court has been too cavalier with precedent, in particular in the area of labour law.

I agree with Prof. St-Hilaire that the Supreme Court has in some cases ― especially those concerning the purported constitutional rights of labour unions ― disregarded precedent without any compelling reason to do so. For reasons best explained, I think, by Jeremy Waldron, a fairly robust version of stare decisis is an important component of the Rule of Law. However, in my view, prof. St-Hilaire takes this point much too far. For my part, I am content to accept the Supreme Court’s explanation in Canada (Attorney General) v Confédération des syndicats nationaux, 2014 SCC 49, [2014] 2 SCR 477 that “res judicata … require[s] that the dispute be between the same parties”, as well as on the same issue, while stare decisis is the broader ― and more flexible ― principle that applies “when the issue is the same and that the questions it raises have already been answered by a higher court whose judgment has the authority of res judicata“. [25] This is not merely a terminological dispute. The point is that courts should be able to reverse their own decisions, albeit with the greatest circumspection.

Without fully defending my views, I would argue that the criteria set out in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 are a sound guideline, provided that they are rigorously applied (which they were not in the labour union cases). Precedent, the Court held,

may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. [42]

I think this is right, because while the stability of the law, its diachronic coherence, is very important, the law’s consistency at any given time point, its ability to remain a “seamless web”, or synchronic coherence, is important too, and also a requirement of the Rule of Law. These two dimensions of legal coherence are in tension, and sometimes in conflict, and I think it is a mistake to say, as I take it Prof. St-Hilaire does, that diachronic coherence must always prevail. Perhaps more controversially, I am inclined to think that there is also a case to be made for the proposition that the Rule of Law can accommodate, if it does not positively require, departures from precedent that serve to make the law make sense in light of changed circumstances and evidence. The ideas of non-arbitrariness and congruence between the law on the books and its real-world application at least point in that direction, though the argument would be worth developing in more detail.

I will end where Prof. St-Hilaire begins: with judicial appointments. (Of course, the process of appointment is not part of adjudication. But it makes sense to consider it in a discussion of the danger of the politicization of the Supreme Court, even though it doesn’t fit within Prof. St-Hilaire’s definition of that term.) Prof. St-Hilaire criticizes the inclusion of “parliamentary consultation” in the appointment process, and I agree with him to that extent. However, I do not share the main thrust of his comments, which is that we need to move “from more political criteria to increasingly professional criteria in the selection of” Supreme Court judges. Political control over judicial appointments is an important check on the power of the courts, as well as an indispensable means to inject some much needed ideological diversity into the judiciary. The current judiciary and legal profession are too homogeneous ― in their thinking, not (only) their skin colour ― for a “professional” appointments process to produce a judiciary that does not all believe the same pieties (including pieties about living constitutionalism and other things that Prof. St-Hilaire criticizes!). That said, since politicians should have the responsibility for judicial appointments, it is also politicians who should be held accountable for them. As Adam Dodek has suggested, the Justice Minister who should appear before Parliament to explain the government’s choice of Supreme Court judges ― but not (and here, I take it, I part company with prof. Dodek) the new judges themselves.

I share Prof. St-Hilaire’s view that “the Supreme Court must choose principle over politicization”. I am looking forward to the Runnymede Society’s forthcoming conference at which this call will no doubt be much reiterated ― including by yours truly. That said, though it reflects a nice sentiment, an appeal to principle over politics does not tell us very much. It leaves open both the question of what principles one should adopt, and of counts as objectionable politicization rather than mere good faith error. Prof. St-Hilaire and I disagree about that to some extent, as I have endeavoured to show. The debate must, and will, continue, and we should have no illusions about settling it with high-minded slogans.

One’s Own Self, Like Water

The Law Society’s demand for a “Statement of Principles” is a totalitarian values test

In my last post, I outlined the scope of the Law Society of Upper Canada’s demands that all lawyers subject to its regulation, including those who are retired or working outside Ontario, produce a “Statement of Principles that acknowledges” a purported “obligation to promote equality, diversity and inclusion” ― not only in the practice of law but “generally”. I also explained that no such obligation exists at present, because none is imposed by the Rules of Professional Conduct or other rules applicable to lawyers, as they now stand, and that it is doubtful whether the Law Society could lawfully impose such an obligation under its enabling statute.

I have not seen meaningful responses to these concerns. On the contrary, they have been echoed in an op-ed in the Globe and Mail by Arthur Cockfield. Instead, those who defend the Law Society argue that whatever limitation of our rights the Law Society’s demands produce, the limitation is justified if analysed under the proportionality framework of s 1 of the Canadian Charter of Rights and Freedoms. They also point to the fact that lawyers are already required, by s 21(1) of Law’s Society’s By-Law 4, to swear an oath upon entry into the profession.

I agree with the Law Society’s defenders that the “Statement of Principles” that it wants us to produce is indeed similar to an oath, and in particular to the oath required by s 21(1), which I will refer to as “the lawyers’ oath”. They are similar in nature, in purpose ― and in their uselessness and questionable constitutionality. I will discuss these points below, drawing heavily on the criticisms of the Canadian citizenship oath (and, specifically, of its reference to the Queen) that I have developed over the course of four years of blogging on this topic, and especially in an article on this issue published in the National Journal of Constitutional Law. (Indeed, though it was not the focus of my argument, I briefly discussed the lawyers’ oath in the article.) Some of those who defend the Law Society have sought to accuse its critics of hypocrisy over our purported failure to object to oaths, and especially to oaths of allegiance to the Queen. Whatever the rhetorical value of such accusations ― and I think that it is nil, since they do not refute our substantive objections ― this topic is not new to me.

Start, then, with the nature of the oath or “Statement of Principles”. Both are forced expressions of commitment to acting in certain ways. Though a “Statement of Principles” might, depending on the way in which it is formulated, ostensibly stop just short of being a promise, I think that any distinction between acknowledging an obligation and promising to fulfill an obligation is one without a difference in this context. In his National Post op-ed criticizing the Law Society’s demands, Bruce Pardy treated the “Statement of Principles” as a forced expression of support of support for the Law Society’s policies, which I think is quite right. As Prof. Pardy pointed out, in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, the Supreme Court has condemned such demands as “totalitarian and as such alien to the tradition of free nations like Canada”. (296) Although in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 the Court made it clear that this holding did not apply to compelled statements of fact, this (wrongheaded, in my view) narrowing of the National Bank holding is not relevant here. But, as I have argued in my blog posts and article, coerced commitments are more than expressions of opinion. They are impositions not only on the freedom of speech of those who must make them, but also on their freedom of conscience. Oaths, as the Supreme Court explained in R v Khan, [1990] 2 SCR 531 work by “getting a hold on [the] conscience” of those who take them, notably ― but not only, as I shall presently explain ― by making the thing sworn to a matter of moral, and not merely legal, obligation. The  “Statement of Principles” is similar, in that it is an attempt to make every lawyer embrace, as a matter of his or her personal morality, and thus conscience, the principles set out in that statement.

The other way in which oaths typically impinge on conscience, and also a point of similarity between the lawyers’ oath and the “Statement of Principles” is that, because they typically impose vague obligations that go well beyond the requirements of any positive law, they demand frequent if not constant exercise of moral judgment about the precise scope of the duties being sworn to. As I wrote in my article, the lawyers’ oath

requires lawyers, among other things, to “protect and defend the rights of interests” of their clients; to “conduct all cases faithfully”; not to “refuse causes of complaint reasonably founded, nor [to] promote suits upon frivolous pretences”; to “seek to ensure access to justice”; and to “champion the rule of law and safeguard the rights and freedoms of all persons.” These (and the other requirements of the oath) are not straightforward obligations. Discharging them requires lawyers to think about just what their duties are. … [T]o a considerable degree, the judgment required is a moral one. In some cases, that is because the lawyers’ duties are couched in moral terms (like “faithfulness” …). In other cases, the degree to which one can and ought to fulfill these duties must necessarily be left to individual conscience. (How far must one go to “ensure access to justice”: does it require one to limit one’s fees? How much pro bono work need one do? Can one “ensure access to justice” while being a member of a state-enforced cartel devoted to raising the cost of legal services?) In other cases still, it is because the lawyers’ duties can conflict (for instance, when the defence of a client’s interests might suggest launching a “suit upon frivolous pretences”), requiring moral judgment about which is to prevail. In short, a lawyer must constantly, or at least frequently, rely on his or her conscience to determine just what it is that his or her oath requires. (152)

The “Statement of Principles” would be meant to do the same thing, requiring lawyers (those, at least, who take it seriously) to be constantly asking themselves what their general “obligation to promote equality, diversity and inclusion” requires. It is no answer that the requirement is merely to comply with relevant human rights legislation. Not only is no “Statement of Principles” necessary to achieve that, but this legislation does not actually apply to many lawyers, such as those who are retired and not engaged in the sorts of relationships or activities which such legislation covers. The whole point of a “Statement of Principles” is to go beyond the positive law.

These impositions on freedom of conscience ― and, of course, the compelled expression  of opinion that the lawyers’ oath and “Statement of Principles” also are ― require justification. I do not think that any exists. In my article, I take the Canadian citizenship oath through the Oakes proportionality analysis, and find that it fails at every step. (Interestingly, as I also note in the article, the Law Society itself dropped the mandatory oath to the Queen due to constitutional concerns.) Of course, the issues with the lawyers’ oath and the “Statement of Principles” are not the exactly same. Yet there are also some common points.

In particular, both supposedly serve the sort of “[v]ague and symbolic objectives” of which the Supreme Court told us to be wary in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519 while having a tenuous relationship to these objectives. The lawyers’ oath is unlikely to make many lawyers more ethical, or more committed to the Rule of Law. One is ethical, or a “champion of the Rule of Law”, because one believes in these things ― not because one was made to swear to them. Similarly, even the Law Society’s defenders tend to acknowledge that requiring us to produce a the Statement of Principles is not going to do much to make the legal profession more diverse or inclusive. A symbolic expression of commitment to a set of values, no matter how attractive, is no more necessary than a symbolic expression of commitment to one’s country, no matter how great ― which, I explain in the article on  the citizenship oath, and as Liav Orgad explained in more detail in his study of loyalty oaths, is to say not necessary at all.

This is all the more so since the Law Society explicitly states that the requirement to produce a “Statement of Principles” can be satisfied by the simple expedient of “adopting” one of the sample “Statements” supplied by the Law Society itself. Indeed, the Law Society’s defenders suggest that since we could easily “adopt” one of those sample statements, regardless of whether we believe in them, or some other “Statement” so vague and bland that, as Annamaria Enenajor put it to me on Twitter,  “a closet [sic] neo-nazi lawyer could get down with” it, the whole thing is really no big deal. This again is similar to the lawyers’ oath. I have no doubt that if Justice Abella chooses to re-join the bar after her retirement from the Supreme Court, she will feel no compunctions about promising to “champion the rule of law” ― even though it is a matter of public record that “[t]he ubiquitous phrase ‘rule of law’ annoys her“, and that she prefers something called “the rule of justice”. But to the extent that the Law Soceity’s fellow-travellers are right, it is difficult to see how the “Statement of Principles” is meaningfully addressing a pressing and substantial concern, and it must fail the proportionality test for that reason.

There is, however, another possibility. As with the citizenship oath and the lawyers’ oath, while most people may be content to make a pretended commitment to ideas or principles they do not understand or indeed secretly despise, some are not. They take a thing of that nature, whether called an oath or a Statement of Principles, seriously. They agree with Robert Bolt’s Thomas More that “[w]hen a man takes an oath … he’s holding his own self in his own hands. Like water. And if he opens his fingers then—he needn’t hope to find himself again”. And, just like More refused to falsely swear an oath to regard Henry VIII as head of the Church, they will not tick off box on the Law Society’s form to acknowledge an obligation to promote ideals the Law Societey’s interpretation of which  they do not share, or indeed the Law Society’s authority to impose which they reject. As to such people ― as to those who refuse to live in the closet ― the Law Society’s demand is not a trivial, if useless, imposition. As prof. Pardy argues, and as the Supreme Court has long accepted, forcing people to endorse opinions that they do not share is totalitarian ― or at any rate no less oppressive than the government of Henry VIII. As to such people, the Law Society’s demands will, at all events, fail the “proportionality strictu sensu” test, because totalitarian demands for ideological compliance always impose a greater cost than whatever benefit the state (or, in this case, the Law Society) can hope to obtain by imposing them.

Beyond the dry terminology of proportionality analysis, it is important to understand that what is at stake here is neither more nor less than a values test for the practice of law. While some have resisted this implication (going so far as to argue that a requirement to produce a “Statement of Principles” is not a values test even though a requirement to provide it to the Law Society would be one!), others among the Law Society’s fellow travellers are quite comfortable with it. In their view, there is nothing wrong with a legal profession in which only people who hold the right values ― and those who are sufficiently unprincipled to dissemble about theirs ― are welcome to remain, while those who are deemed to be wrong, and who refuse to hide in the closet in response, are shown the door. The undesirables are not yet pushed out ― it may be that the Law Society’s policy is nothing more than a paper tiger, a “demand” that will not be meaningfully enforced. But it could also be a warning, and a test. Even if the Law Society does not try coercion now, acquiescence to its demands it will embolden it do so in the future. As others have argued, it will also show that the legal profession is supine enough to comply with the authorities’ attempts to impose orthodoxy on it. And this leads me to a final question for those who support the Law Society. Are you really so confident of always being among those whose orthodoxy will be imposed on others? Thomas More ― the historical one, the one who confiscated books and rejoiced in the burning of heretics ― was so confident. May you fare better than he did.