The Road to Serfdom at 75: Part II

Hayek’s proposals for resisting collectivism

In the last 10 days, I gave two talks ― one to the Runnymede Society chapter at the University of Victoria and one at the Université de Sherbrooke ― on Friedrich Hakey’s The Road to Serfdom. In yesterday’s post and in this one, I reproduce my notes for these talks. Yesterday’s post covered the context in which The Road to Serfdom was written and presented Hayek’s criticism of collectivism. This one reviews some of his proposed solutions. The page numbers refer to the 50th Anniversary Edition, which is the one I have in my possession.


What, then, is the alternative to collectivism? It is, naturally, individualism. Individualism, Hayek insists, is not selfishness. It is, rather, the “recognition of the individual as the ultimate judge of his ends, the belief that as far as possible his own views ought to govern his actions”. (66) The sovereignty of individual belief over individual action is, indeed, a burden as much as a right. Hayek reminds us “[t]hat life and health, beauty and virtue, honor and peace of mind, can often be preserved only at considerable material cost”, and “that we all are sometimes not prepared to make the material sacrifices necessary to protect those higher values”. (107) Individualism insists on “the right of choice, [which] inevitably also carries the risk and the responsibility of that right”. (112) But the alternative to making choices, however unpleasant, for ourselves is that others will make them for us.

Note that, from the insistence on the primacy of the individual follows naturally what Hayek calls “[t]he fundamental principle that in the ordering of our affairs we should make as much use as possible of the spontaneous forces of society, and resort as little as possible to coercion”. (21) Hayek is especially well known for his insistence on the importance of this principle in the economic realm, but it applies much more broadly, as we shall see. Between collectivism and individualism as fundamental organizing principles of society, between “the order governed by the impersonal discipline of the market or that directed by the will of a few individuals”, (219) Hayek sees no middle ground, no possibility of compromise. The methods of collectivism are such that individual liberty cannot be preserved once they are being thoroughly applied, regardless of the purpose to which they are put. From that, it follows “[t]hat democratic socialism, the great utopia of the last few generations, is not only unachievable, but that to strive for it produces something so utterly different that few of those who now wish it would be prepared to accept the consequences”. (36) It is the ruthless, rather than the sincere democrats, who are able and willing to impose their values on the rest of society.

So what is to be done to secure this fundamental principle, and the supremacy of the individual on which it rests? I will focus on Hayek’s suggestions in three areas: the law, not only because this is my area of expertise, but also because Hayek’s first degree was, in fact, in law, and he deserves to be much better appreciated than he is as a legal philosopher; the economy, because after all Hayek is usually thought of as an economist (though he was much more than that), and a Nobel Memorial Prize winning one at that; and the relationship between the individual and society, because, I think that this, if anything, even more important both to Hayek himself, and especially to us as readers in an age where the preoccupations of collectivism are, ostensibly, not only or even primarily, economic.


Let me begin, then, with the law. Hayek sees its function as that of “creating conditions under which the knowledge and initiative of individuals are given the best scope so that they can plan most successfully”. (40; emphasis Hayek’s.) A sound legal framework is what enables competition and markets to serve “as a means of co-ordinating human efforts” (41) and so to provide for the needs and wants of individuals. Hayek is no anarchist; he is not, like Thoreau, saying that that government is best which governs not at all. (Indeed, he claims, in The Road to Serfdom, that “[i]n no system that could be rationally defended would the state just do nothing. An effective competitive system needs an intelligently designed and continuously adjusted legal framework as much as any other.” (45) (In Law, Legislation and Liberty, Hayek’s views on the design of legal frameworks change quite dramatically.)

But government, if it is to respect the ability of individuals to be masters of their own lives, must not only create and sustain a legal framework, but also bind itself by rules. In other words―in words that are of central importance to Hayek―we need the Rule of Law. As Hayek defines this phrase, it “means that government in all its actions is bound by rules fixed and announced beforehand―rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of that knowledge”. (80) In this way, “the government is prevented from stultifying individual efforts by ad hoc action”. (81)

This means that the law must consist of “formal rules which do not aim at the wants and needs of particular people”, (81; emphasis Hayek’s) and are not meant to produce substantive justice, whether defined in terms of equality or of some conception of merit. An attempt to produce rules―whether laws or administrative rulings―aiming at modifying the lot of particular people means that the law “ceases to be a mere instrument to be used by the people and becomes instead an instrument used by the lawgiver upon the people and for his ends”. (85) Laws that are qualified “by reference to what is ‘fair’ or ‘reasonable’”, (86) which can only be applied on a case-by-case basis, are antithetical to the Rule of Law; they result in “increasing arbitrariness and uncertainty of, and consequent disrespect for, the law and the judicature, which in these circumstances could not but become an instrument of policy”. (87)

Relatedly, “the discretion left to the executive organs wielding coercive power should be reduced as much as possible”, (81) which has the added benefit of enabling democratic control over the exercise of this coercive power. Such control, Hayek argues, is only possible when the executive works towards ends determined by a democratic process―that is, ends on which political consensus can exist, rather than being manufactured by the executive itself―and in accordance with standards compliance with which can actually be assessed. In the absence of such standards, there is no Rule of Law, even if the executive is ostensibly authorized to act by vague and broad delegations of power. (91)

It is important to note that Hayek’s rejection of the pursuit of substantive equality by means of laws targeting particular groups or authorizing discretionary administrative decision-making does not proceed from a lack of interest in rights, or indeed equality. On the contrary, he endorses a substantive conception of the Rule of Law, which incorporates “limitations of the powers of legislation [that] imply the recognition of the inalienable right of the individual”. (93) He also warns that state control of the economy will be used “to pursue a policy of ruthless discrimination against national minorities” (96) or against otherwise unpopular groups or persons.


This brings me to the realm of economics. The Road to Serfdom emphasizes the importance of competition between producers―including both firms and workers. Competition is preferable to allocation of resources according to some pre-defined plan, or to the views of government decision-maker, “not only because it is in most circumstances the most efficient method known but even more because it is the only method by which our activities can be adjusted to each other without coercive or arbitrary intervention of authority”. (41) The world is so complex that no planner, whether an individual or a government agency, can embrace the whole picture of the resources available to a society, the needs and desires of individuals, the ideas they are generating.

Being left to pursue their interests and opportunities within a general framework of rules, individuals and firms will create more, not only in terms of material wealth, but also of innovation and opportunity, than if they worked at the direction of government. A bureaucracy attempting to direct them simply could not anticipate what possibilities might arise, and what prospects its orders might foreclose. It is worth pointing out that Hayek sees a role for regulation, whether to protect the rights of workers or even the environment. At least in The Road to Serfdom―his views on this become more uncompromising later―Hayek claims that “preservation of competition [is not] incompatible with an extensive system of social services―so long as the organization of these services is not designed in such a way as to make competition ineffective over wide fields”, (43) and they are, instead “provided for all outside of and supplementary to the market system”. (133)

On the other side―as consumers―a competitive economy leaves us choices that regulation or government control would take away. Hayek explains that “[o]ur freedom of choice in a competitive society rests on the fact that, if one person refuses to satisfy our wishes, we can turn to another. But if we face a monopolist we are at his mercy. And an authority directing the whole economic system would be the most powerful monopolist conceivable.” (102) While the market does not always provide us with as many opportunities as we would like, it at least leave us the choice of how to direct our limited resources, instead of leaving us dependent on others’ views “of what we ought to like or dislike” (103) or how we ought to value the different aims that we would like to pursue. (99) The market does not distribute wealth and resources “according to some absolute and universal standard of right”―which in any case does not exist―, but nor does it make distribution subject to “the will of a few persons”. (112) In a market economy, “who is to get what … depends at least partly on the ability and enterprise of the people concerned and partly on unforeseeable circumstances”. (112-113) 


I turn, finally, to the question of the relationship of the free individual to a free polity. The commitment to individualism imposes significant burdens on both―or rather, on both the individual as a private agent and on the same individual as a citizen and member of a political community.

In politics, we must learn to recognize the reality of the constraints and limitations within which we make our choices: in particular, of economic constraints. We must accept that they are not the product of some sinister will, but of forces no less real for being impersonal. Hayek explains and warns that

[a] complex civilization like ours is necessarily based on the individual’s adjusting himself to changes whose cause and nature he cannot understand: why he should have more or less, why he should have to move to another occupation, why some things he wants should become more difficult to get than others, will always be connected with such a multitude of circumstances that no single mind will be able to grasp them; or, even worse, those affected will put all the blame on an obvious immediate and avoidable cause, while the more complex interrelationships which determine the change remain inevitably hidden from them. (223)

We must understand that while “[i]t may sound noble to say, ‘Damn economics, let us build up a decent world’”, this “is, in fact, merely irresponsible”. (230) The attempt to build up a decent world risks empowering the demagogues offering easy solutions that solve nothing, and destroy what we already have.

To resist them, we need also to accept that ends do not justify all means; that collectivist and a fortiori dictatorial instruments cannot be put in the service of the right ideals, or entrusted to the right people, without either corrupting them or being seized by the more ruthless and corrupt; that “power itself” is “the archdevil”, (159) and that power concentrated in the hands of the state “is … infinitely heightened” (159) in comparison with that wielded by private actors. Once again, the echoes of The Lord of Rings are unmistakable.

We need, moreover, to firmly reject “the presumption of any group of people to claim the right to determine what people ought to think or believe”. (180) Perhaps most controversially for our time, Hayek cautions against a loss of “belief in Western civilization” and “a readiness to break all cultural ties with the past and to stake everything on the success of a particular experiment”. (203) (It would perhaps not be superfluous to note that Hayek would later write an essay called “Why I Am Not a Conservative”; he always considered himself a liberal―in the European, not the American, sense of the word.)

Last but not least, we ought to remember that morality is not measured by the intensity of our “indignation about the inequities of the existing social order” (230) but “by standards [of] individual conduct, and on the seriousness with which we uphold moral principles against the expediencies and exigencies of social machinery”. (231) We are acting morally, in other words, not when we are engaged in virtue-signalling or being “unselfish at someone else’s expense”, or indeed “being unselfish if we have no choice”, (231) but when we choose to put our own self-interest on the line for our principles. On this point, it is worth emphasizing that voting, in particular, is no test of individual morality, since it requires no “sacrifice of those of [those] values [one] rates lower to those [one] puts higher”. (233)

It is in our private conduct that we ought to be unselfish, concerned with equality, and generally do what we think is right. We must recall, Hayek says, that “[r]esponsibility, not to a superior, but to one’s conscience, the awareness of a duty not exacted by compulsion, the necessity to decide which of the things one values are to be sacrificed to others, and to bear the consequences of one’s own decision, are the very essence of any morals which deserve the name”. (231-32) We ought also to practice actively those “individualist virtues” to which I already referred: willingness to stand up for our opinions also ability to respect for those who disagree with us; magnanimity not to punch down and courage not to kiss up; good humour and presumption of good faith. We need, in other―Abraham Lincoln’s―words, to act “with malice toward none, with charity for all, with firmness in the right as God gives us to see the right”. Importantly, Hayek reminds us that “these individualist virtues are at the same time eminently social virtues”, (163) in that they make a society where they are practiced a much more pleasant place to live than one where they are forgotten.

Firmness in the right as we are given to see the right is perhaps an especially important theme for Hayek, though unlike Lincoln, he writes of individual conscience as what gives us to see the right. He insists on the importance of “readiness to do what one thinks right … at the sacrifice of one’s own desires and perhaps in the face of hostile public opinion”, (232) “to back one’s own conviction against a majority”. (233) Related to this is the imperative to hold on to the “old meaning” of the word “truth” as “something to be found, with the individual conscience as the sole arbiter of whether in any particular instance the evidence (or the standing of those proclaiming it) warrants a belief”, (178-79) and not whatever the authorities want us to believe for the sake of maintaining social cohesion.

As an academic, I especially want to highlight the need to stand up to the tendency to put “the disciplines dealing directly with human affairs and therefore most immediately affecting political views, such as history, law, or economics”, in the service of “the vindication of the official views” rather than a search for truth. (176) We must not allow law schools, or history departments, to be made into “factories of the official myths which the rulers use to guide the minds and wills of their subjects”. (176) As Hayek wrote all these years ago, “contempt for intellectual liberty is not a thing which arises only once the totalitarian system is established but one which can be found everywhere among intellectuals who have embraced a collectivist faith”. (179) Runnymede is fighting the good fight in opposition to this contempt.


Let me conclude with a warning and an exhortation. The warning is that reading The Road to Serfdom will not fill you with joy. It is dispiriting to see just how much Hayek’s warnings about the dangers of collectivism are still applicable today, three quarters of a century after he wrote. It would be much easier to think of whatever problems we are facing in our time as temporary aberrations rather than as avatars of a long, perhaps a permanent, dark streak in human nature, which is what their persistence suggests they are.

But the exhortation is to pick up The Road to Serfdom regardless and, having read it, to do what you can to push back against the trends that it describes. As Hayek says, “[i]t is because nearly everybody wants it that we are moving in this direction. There are no objective facts which make it inevitable.” (7) As Gandalf points out in The Lord of the Rings, “all who live to see [evil] times” wish them away, “[b]ut that is not for them to decide. All we have to decide is what to do with the time that is given us.”

The Road to Serfdom at 75: Part I

An appreciation of a life-changing book

In the last 10 days, I gave two talks ― one to the Runnymede Society chapter at the University of Victoria and one at the Université de Sherbrooke ― on Friedrich Hakey’s The Road to Serfdom. In this post and one to follow tomorrow, I reproduce my notes for these talks. The page numbers refer to the 50th Anniversary Edition, which is the one I have in my possession.


Why is F.A. Hayek’s The Road to Serfdom still relevant—and not merely relevant, but compelling—75 years after its publication? It is not obvious that this should be so. It is a book written in a historical particular context, and in response to the intellectual climate of its day. It is a polemic; one is almost tempted to say, a pamphlet―and indeed Hayek himself, in a 1976 preface, refers to The Road to Serfdom in exactly this way, “a pamphlet for the time”. In this, it is unlike Hayek’s more general later works, The Constitution of Liberty and Law, Legislation and Liberty.

And yet, while I wouldn’t say the two later books, especially Constitution, are obscure, it is still The Road to Serfdom that is the iconic one. It has changed the trajectory of my own intellectual life when I read it, probably in third year of law school. (It is one of those things that I find it difficult to remember not knowing, so I don’t recall the exact time or the reasons that made me read it.) And it has had a similar effect on any number of people since its publication. Clearly, it is rather more than a pamphlet, or even just a polemic. It might have began as a pamphlet for the time, but it is, as Milton Friedman described it in a different preface, timeless.

I will venture an explanation for The Road to Serfdom ongoing appeal. I will argue that it targets an evil that is enduring, and that we must confront today, with (almost) as much urgency as Hayek had to when he was writing. The defeat of the particular shapes that this evil took then—a defeat that looks much more provisional and uncertain than it did when I first read the book a dozen years ago—was important in its time. But the evil itself was not put to rest, and perhaps cannot be. It revives, shifts shapes, and must be resisted and repelled again and again, in the time that is given us.

(The reader may have noticed me echoing, and in the last sentence directly quoting from The Lord of the Rings. This is not an accident. I think there are echoes of the Lord of the Rings in The Road to Serfdom, or perhaps I should say it the other way around, since the Road to Serfdom was published much before The Lord of the Rings finally was. I believe that this is not at all surprising, since they were being written at the same time, and their authors saw—and in their very different ways responded—to much the same events, not just those of the then-ongoing war but also those of the previous one, of which both were veterans.)


So let me begin, very briefly, with the immediate context in which Hayek was writing, before moving on to the more timeless elements in The Road to Serfdom. The book was published in 1944, while World War II was ongoing, although it looks forward to the aftermath of an Allied victory. It was written, therefore, while Nazism was at or just past the peak of its power, while Soviet communism was already immensely powerful, and growing more so by the day. But the Western response to the two totalitarian ideologies was strikingly different. Even before war broke out, socialism and communism were prestigious in the way Nazism never quite was in the West; after 1941, communism was the ideology of an ally in that war. And, of course, the Soviet regime had long presented itself as the most steadfast opponent of Nazism, while the Nazis themselves employed much anti-Communist rhetoric (recall that the alliance of Germany, Italy, and Japan was officially called the “Anti-Comintern Pact”). The fashionable view was that fascism was the ultimate, and perhaps inevitable, development of unbridled capitalism, and that embracing socialism or communism was the only way to forestall the advent of fascism.

Hayek saw things differently. For him, Nazism and Socialism were denominations in the same church totalitarian church, whose adherents had a great deal in common even if they professed unfailing enmity. (The enmity was, in any case, less constant than advertised: recall Stalin’s pact with Hitler in 1939, leading to their joint invasion and partition of Poland, and much of Eastern Europe.) What Nazism and Socialism had in common was collectivism. Both held that society had to be organized around the supposed interests of particular groups of people, and devoted single-mindedly to the pursuit of some alleged common purpose. Both rejected liberalism and individualism. Nazism simply defined the group that was supposed to define the purposes of political action differently, along racial rather than class lines. Despite this, it had, as the title of one of the chapters of The Road to Serfdom had it, “socialist roots”. Hence Hayek’s dedication of the book “to socialists of all parties”, on the right as well as on the left.


This brings me back to the timeless evil which The Road to Serfdom responds to. On the surface, significant parts of the book rebut arguments that were prevalent in the years preceding its publication about the desirability and feasibility of Soviet-style central economic planning and government ownership of the means of production. And of course advocacy of such policies is now unusual, although I wonder whether the ground is shifting even on this, with the popularity of Bernie Sanders and, even more so, Elizabeth Warren, whose plans for telling companies exactly how to behave, what to sell, and for whose benefit, go nearer the central planning of yore than anything a serious candidate for office has proposed in decades.

But these are issues primarily of form. Look below the surface, and the impulse toward collectivism is no weaker now. What has changed is not its origin or orientation, but its direction. 21st-century collectivists are not only preoccupied with economic inequality, on which they forebears mostly (but not exclusively) focused in Hayek’s time, but (also) with the environment and, especially, with identity―whether it is the identity of groups purportedly defined by gender, race, sexuality, etc., or that of nations.   

What does Hayek mean by collectivism, and why is it, after all, such a bad thing? Collectivism is the organization of society by the state according to a single blueprint, such that persons and groups, insofar as they are not obliterated in the process, are entirely subordinated to it and made to serve its purposes instead of pursuing their own. The attraction of collectivism is that it seems to make possible the realization of purposes on which we might all agree―say, racial or gender equality, or putting an end to global warming, or perhaps something more diffuse, such as simply “the public welfare”―by directing all, or at least some very significant part, of society’s efforts to them.

What’s the problem with this? Collectivists tend to forget that purposes that all appear desirable in the abstract can be in conflict, and that sometimes “any one of them can be achieved only at the sacrifice of others”. (59) If the efforts of society are to be centrally directed by government, a hierarchy of aims will need to be established to determine which will yield to others. Yet where is this hierarchy to come from? Comprehensive agreement on a scale of values does not exist in a free society, where individuals have their own moral scales. The hierarchy of aims must, and can only be, generated by the government; and not by a democratic process, which is bound to reflect the disagreements that exist in society. Indeed, it is precisely the failure of democracy to generate all-encompassing agreement that “makes action for action’s sake the goal. It is then the man or the party who seems strong and resolute enough ‘to get things done’ who exercises the greatest appeal”, (150) and is set up in a position of unaccountable technocrat or dictator, which amounts to more or less the same thing.

As for individuals, if they cannot be expected to agree on a common hierarchy of aims, they must still be made to agree to it. An official dogma, extending not only to values but even to “views about the facts and possibilities on which the particular measures are based” (170), must be spread, by means of relentless propaganda, by twisting the meaning of words, especially of words describing moral and political values, and by resorting to censorship and ultimately force, since dissent compromises the mobilization of society toward the chosen aims. Instead of truth, “[t]he probable effect on the people’s loyalty to the system becomes the only criterion for deciding whether a particular piece of information is to be published or suppressed”. (175-76) And people, like ideas, “more than ever become a mere means, to be used by the authority in the service of such abstractions as the ‘social welfare’ or the ‘good of the community’”. (106) Moreover,

[i]f the ‘community’ or the state are prior to the individual, if they have ends of their own independent of and superior to those of the individuals, only those individuals who work for the same ends can be regarded as members of the community. It is a necessary consequence of this view that a person is respected only as a member of the group, that is, only if and in so far as he works for the recognized common ends, and that he derives his whole dignity only from this membership and not merely from being man. (156)

Note, too, that aims do not exist in the abstract; they are those of individuals, sometimes of groups (that is, of individuals who agree). A hierarchy of aims imposed―ultimately at gunpoint―by the government is also a hierarchy of people. A collectivist government will choose whose interests to favour, and whose to subordinate. It might say it aims at fairness, but it will apply a particular standard of fairness: its own, not one of society at large, since the latter does not actually exist. Indeed, “it is easier for people to agree on a negative program―on the hatred of an enemy, on the envy of those better off―than on any positive task. The contrast between the ‘we’ and the ‘they’, the common fight against those outside the group, seems to be an essential ingredient in any creed which will solidly knit together a group for common action.” (153) Collectivism, whatever its initial aims, tends toward factionalism and nationalism, and this tendency is only exacerbated by “that glorification of power … which profoundly affects the ethical views of all collectivists”. (158)

Ultimately, collectivism is destructive not only of freedom―both political and personal―but of morality itself. A collectivist system “does not leave the individual conscience free to apply its own rules and does not even know any general rules which the individual is required or allowed to observe in all circumstances”, (161) because the needs of the collective―as interpreted, of course, by the political leaders or technocrats purporting to speak on its behalf―are always regarded as more important than individual scruples. Collectivists

lack … the individualist virtues of tolerance and respect for other individuals and their opinions, of independence of mind and … uprightness of character and readiness to defend one’s own convictions against a superior … , of consideration for the weak and infirm, and of that healthy contempt and dislike of power which only an old tradition of personal liberty creates. Deficient they seem also in most of those little yet so important qualities which facilitate the intercourse between men in a free society: kindliness and a sense of humor, personal modesty, and respect for the privacy and belief in the good intentions of one’s neighbor. (163)

In The Road to Serfdom, this is a description of Germans, whom Hayek regards as epitomizing collectivism. But it applies, in our day, just as well to “social justice warriors” as to the supporters of Donald Trump. And it applies with double force to those in positions of political power in either movement, who more than all the others are required to  demonstrate “readiness [to] conform[] to an ever changing set of doctrines” laid down by the leader in the pursuit of his chosen goals (or, in a development Hayek did not anticipate, emerged more or less spontaneously in activist circles), whatever these doctrines may be, and to enforce such conformity on those over whom they rule.


Part II follows.

In the Beginning

Learning about, and from, Pierre Trudeau’s 1968 proposal for what would become the Canadian Charter

Canadian judges and lawyers, including of the academic variety, tend not to think very highly of our constitutional history. This is, in part, because we ― and I must include myself in this ― do not know it as well as we should. There is an unhealthy feedback loop at work: a predisposition to be dismissive of the past fosters ignorance about it, which in turn makes it easier to be dismissive. The good news is that, once one starts looking into this history about which we have so much to find out, it is easy to find fascinating stories to learn, and to learn from.

Case in point: the proposal for “A Canadian Charter of Human Rights“, put forward in early 1968 by then-Justice Minister Pierre Trudeau, made available by the wonderful resource that is the Primary Documents project. I have to admit: I didn’t really know anything about this text before coming across it recently. But it is, surely, of considerable interest, if we accept that ― like every other rights-protecting text from the Magna Carta onwards ― the Canadian Charter of Rights and Freedoms, the direct descendant of the 1968 proposal, isn’t just a shadow in Plato’s cave, but a document that was written and enacted by particular people, at a particular time, in a particular place. And in addition to both the interest that I think this text deserves and the way in which it illustrates the value of constitutional history more broadly, it also sheds some light on ongoing debates.


Trudeau began his introductory chapter by claiming that “Interest in human rights is as old as civilization itself.” (9) (This, I am afraid, is reminiscent of bad student work.) For a long time, he wrote,

these rights were known as ‘natural’ rights; rights to which all men were entitled because they are endowed with a moral and rational nature. … These natural rights were the origins of the western world’s more modern concepts of individual freedom and equality. (9)

Trudeau appealed to Cicero and Aquinas, as well as Locke and Rousseau, and quotes at some length from the Declaration of Independence. I’m not sure that his presentation of the concept of natural rights is fully accurate, but his reliance on these authorities as the starting point of an argument for constitutional protection of human rights is relevant to the recent debates about the nature and origin of the rights protected by the Charter.

Another point which has been the subject of recent discussion that Trudeau’s introduction addressed was that of Parliamentary supremacy. Trudeau was quite clear that his proposal involved “some restriction on the theory of legislative supremacy”, although this theory, he said, “is seldom pressed to its full extent”. (11) Equally clear, as will appear below, was his understanding that the courts would have the last word on the meaning and import of the rights guarantees that he proposed adding to the Constitution. The point of the exercise was to secure “the fundamental freedoms of the individual from interference, whether federal or provincial”, and also to “establish that all Canadians, in every part of Canada, have equal rights”. (11)


This theme of inviting judicial enforcement of rights’ guarantees is further developed in the next chapter. Trudeau discusses the Canadian Bill of Rights, and finds it wanting because it is “not a constitutional limitation on Parliament, only an influence”, (13) and has not been vigorously enforced by the courts. Even if it had been, it would, like provincial legislation protecting human rights, be subject to repeal through the ordinary legislative process. In short,

a constitutionally entrenched Bill of Rights is required which will declare invalid any existing or future statute in conflict with it. Language in this form would possess a degree of permanence and would over-ride even unambiguous legislation purporting to violate the protected rights. (14)


The next Chapter outlines the contents of the proposed “charter of human rights”. It explains how existing law deals with each right it proposes to protect ― what the existing protections, if any, are; how they are limited; and also how legislative powers affecting the right are distributed between Parliament and the provincial legislatures. In some cases at least, there is thought given to the wording of future constitutional clauses ― for example, “whether freedom of expression is best guaranteed in simple terms without qualification, or whether the limitations of this freedom ought to be specified” (16) ― which suggests that the Charter‘s text is not just a collection of “majestic generalities” that could just as easily have been cast in very different, if equally general, terms. And there is a great deal of speculation about the way in which the courts will treat various rights, if they are constitutionally entrenched. This speculation is informed by references to Canadian case law, where it exists, as well precedents from the United States. There are also occasional references to the European Convention on Human Rights.

Some future controversies are already foreshadowed in Trudeau’s discussion. For example, the section on the freedom of religion highlights “the imposition of Sunday closing of businesses on Christians and non-Christians alike” ― which would, indeed, produce one of the first Supreme Court decisions based on the Charter, R v Big M Drug Mart Ltd, [1985] 1 SCR 295. For its part, the section on “life, liberty and property” ― note that, as Dwight Newman and Lorelle Binnion have pointed out, Trudeau was quite keen on entrenching some form of constitutional protection for property rights ― anticipates the issue in another early Charter case, Re BC Motor Vehicle Act, [1985] 2 SCR 486 about whether substantive or only procedural constraints exist on deprivations of “life, liberty and the security of the person”. In 1968, Trudeau thought, based on the jurisprudence under the “due process clause” of the Fifth and Fourteenth Amendments to the U.S. Constitution

that the guarantee [of due process] as applied to protection of “life” and personal “liberty” has been generally satisfactory, whereas substantive due process as applied to “liberty” of contract and to “property” has created the most controversy. It might therefore be possible to apply the due process guarantee only to “life”, personal “liberty” and “security of the person”. The specific guarantees of procedural fairness set out elsewhere in the bill would continue to apply to any interference with contracts or property. In this fashion the possibility of any substantive “due process” problems would be avoided. (20)

Of course, the example of property rights shows that what was ultimately enacted in 1982 was not always what Trudeau had wanted in 1968. Still, given the widespread conviction that the Supreme Court’s holding in the Motor Vehicle Act Reference that the “principles of fundamental justice” which must be respected when depriving a person of “life, liberty or security of the person” were not only procedural but substantive too went against with the wishes and expectations of the Charter‘s framers, it is interesting to note that the Supreme Court’s interpretation is actually quite consistent with Trudeau’s original proposal.

There are instances, admittedly, where Trudeau’s powers of prediction failed. For example, he wrote that “a court would likely be extremely reluctant to substitute its opinion of a proper punishment for that of the legislature”. (21) Stephen Harper, not to mention Justice François Huot of the Québec Superior Court, might have a thing or two to say about that. Trudeau thought that constitutionalizing the presumption of innocence would not mean “that the various federal and provincial penal statutes which contain ‘reverse onus’ clauses … will be declared unconstitutional”. But of course it was just such statute that was in fact declared unconstitutional in R v Oakes, [1986] 1 SCR 103.

And property rights weren’t the only ones that he thought important but the Charter ended up not protecting: so was the right to a fair hearing in civil and administrative proceedings. On the other hand, some rights that Trudeau did not think advisable to incorporate in the constitution were read into it by judicial fiat. Thus, notably, Trudeau listed “the right to form and join trade unions” along with other rights “which seek to ensure some advantage to the individual and which require positive action by the state”, (27) and which should not be protected by his proposed “charter of human rights”. That is because “[i]t might take considerable time to reach agreement on the rights [in this category] to be guaranteed and on the feasibility of implementation”. (27) Someone should have told the Supreme Court before it decided in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391, that a right to collective bargaining would have been “within the contemplation of the framers of the Charter“. [78]


The very brief final chapter in Trudeau’s text suggests that egalitarian and linguistic rights might have to be implemented gradually, after political and legal rights have been protected, and muses on the advisability of special provisions for wartime and other emergencies. Section 32(2) of the Charter, which provided that equality rights would only come into effect three years after the rest of the Charter, seems to reflect the former concern, as does, in part, section 59 of the Constitution Act, 1982 which requires Québec’s consent ― which has never been given ― for the application of section 23(1)(a) to the province. No special provision has been made specifically to accommodate the concern about emergencies, though Trudeau actually contemplated the possibility of leaving it to “the courts to determine what limitations are made necessary in times of crisis”. (30)


In case I have not made this sufficiently clear already: these are only one man’s ideas about what a future constitutional charter of rights for Canada should look like and accomplish. To be sure, the man was influential ― indeed his influence was decisive in Canada having a constitutional charter of rights 14 years later ― and the ideas were given the stamp of approval by the government of which he was part. But many years would pass, and many governments would change, before these ideas would become law, and then, as noted above, only in a much modified form.

It is the law that was enacted that binds Canadian governments, and Canadian courts. As I have unfortunately had occasion to note here, Pierre Trudeau’s political programme is not the appropriate object of constitutional interpretation, “and the courts’ duty is to apply the Charter as it has been enacted, and not to expand it forever until the day the just society arrives”. For the better and for the worse ― often much for the worse ― the ideas of other political actors and members of the civil society helped shape Charter as it developed from a political proposal to a constitutional law.

Nevertheless, the original proposal of which the Charter is the consequence deserves our attention. Although in no way binding or definitive, it sheds some light on important controversies surrounding the Charter, some of which are ongoing to this day ― in part, I would argue, because we have not paid sufficient attention to history. Studying this history is a way not only of indulging our curiosity ― though there’s nothing wrong with that ― but also of reminding ourselves that the Charter, and our constitution more broadly, was the product of specific circumstances and ideas. For all their flaws, these circumstances and ideas were more interesting and praiseworthy than those who denigrate them in order to make the constitution that they produced into a blank canvas onto which their own preferences can be transposed care to admit. The constitution is neither such a blank canvas nor a projection from a Platonic world of forms that must be interpreted by philosopher kings in judicial robes for our edification and government. It is a law, and must be interpreted as such.

Such a Person

A recent biography highlights (some of) Thomas Cromwell’s influence on the constitution

I have just finished reading Sir Diarmaid MacCulloch’s very interesting Thomas Cromwell: A Life, and thought I’d share some of its constitutional history highlights. Inevitably, I suppose, for a book written by a religious historian, Sir Diarmaid’s telling of Cromwell’s life and times focuses more on religious issues than on legal or, say, economic ones. No doubt this serves to emphasize aspects of the story to which others (including Hilary Mantel, the source of prior knowledge about Cromwell for me and, I suspect, for many others) devote less attention.

At the same time, I was at times wishing for a little less theological detail, and a bit more about the other aspects of Cromwell’s story. For example, one Cromwellian innovation of whose origins constitutional lawyers today should be at least approximatively aware since it bears the name of Cromwell’s royal master are Henry VIII clauses, which allow the Crown to make rules that will override and have the force of statutes enacted by Parliament. Yet Sir Diarmaid refers to the legislation in which such power was granted to Henry VIII, the Statute of Proclamations, only in passing in the conclusion of the book. From a lawyer’s perspective, this is disappointing – though of course Sir Diarmaid doesn’t set out to speak to lawyers in particular. In any case, here are some of the legally-relevant nuggets.

Probably the most significant constitutional legacy that Sir Diarmaid attributes (in part) to Cromwell has to do with Parliament’s role. The great changes of Henry VIII’s reign ― above all the break with Rome and the manifold interventions in the affairs of the English Church were ratified by Parliament. Other reforms, in the law and in social policy, were implemented or at least attempted to be implemented through acts of Parliament too. As Sir Diarmaid points out,

[t]his intensive use of Parliament in the 1530s, a crucial moment in its consolidation and growth when many other such assemblies in Europe were atrophying, had implications not merely for the religious future of Tudor England, but for the shape of national history thereafter. When, over the next 400 years, other European commonwealths evolved into something like nations, it was usually through an exercise of will by monarchs who felt little need of their medieval representative assemblies. Cromwell the Parliamentary veteran is the most likely candidate for having promoted Parliament in the kingdom of England at this moment. (236)

The consequence of Cromwell’s involvement of Parliament into the great matters of state was that

[t]he King’s leading men were far more frequently Parliament men from the 1530s – more precisely, they became Commons men, if a peerage did not bar them and provide a seat in the other place. … From Thomas Cromwell’s time onwards, royal advisers mostly knew what it was to sit through the squabbles, the excitement and the tedium of a Tudor Parliamentary session. (547)

Related to this transformation of Parliament from occasional forum in which consent to taxation might be generated (in return for the airing and, perhaps, redress of grievance) to a central policy-making instrument, is another Cromwellian innovation that is still with us today: by-elections. These aren’t particularly necessary when a Parliament only sits for a brief period and then is dissolved. But “in a Parliament which eventually sat over an extraordinary and unprecedented seven years”, (215) they were a most useful device. It is Cromwell who came up with it, in 1532-33.

Cromwell’s influence is also still felt in the legislative process. He hadn’t come up with the idea, but embraced and regular the use of

what was then a very recent innovation in Parliamentary procedure. It has become known as a ‘division’, and is the method by which Lords and Commons vote at Westminster right up to the present day: separating out ayes and noes into their respective groups. Until the 1520s, decisions in Parliament were customarily taken by the same ancient procedure which elected knights and burgesses to the Commons: acclamation, or, to put it another way, shouting very loudly. The louder shout won. This procedure worked best when (as in well-regulated committees throughout history) there was already general agreement and the heat had been taken out of the issue in question. In circumstances of bitter disagreement, it became clumsy and contestable. The first recorded instance of a division was in contention over a royal tax demand in the 1523 Parliament … It is possible that the King’s advisers had used the division as a way of flushing out and making visible the core of the opposition. (159)

Cromwell had been one of the opposition in 1523; as a royal advisor, and the king’s agent in the House of Commons a decade later, he made use of the division himself. As Sir Diarmaid later explains

Unity was a prized good in medieval and Tudor England: division was an aberration from the norm, hence the government’s use of voting by division in Parliamentary proceedings as a way to shame people into conformity. (240)

Cromwell helped shaped not only the legislative, but also the executive branch of government. The Privy Council appears, officially, during his time as (in effect) Henry VIII’s chief minister. Sir Diarmaid notes that while the term “Privy Council” had been used earlier, “from 1537” it acquires a new meaning and refers to

a set number of people specifically named to that position, no more than twenty or so. The phrase continued into the early Stuart age to describe the main body for executive government, and still remains fossilized in the British governmental system. … [T]his newly formalized body sat not as a vehicle for [Cromwell’s] power, but to check it. The Privy Council’s further formalization, with its own clerk and minute-book, occurred immediately on his fall in 1540: a move designed to prevent any fresh Thomas Cromwell from emerging to usurp the power now distributed among Henry VIII’s closest advisers. (398)

Recent events have reminded us, of course that this Cromwellian, or rather anti-Cromwellian, innovation is “fossilized” in the Canadian governmental system too, as provided by section 11 of the Constitution Act, 1867clerk and all.

In addition to Parliament and the executive, left a mark on the judiciary too. Indeed he held a judicial office himself (while also occupying various positions in the other two branches): that of Master of the Rolls. As with Parliament, if perhaps even less predictably, Cromwell’s tenure proved a turning point since it had the effect of “as it turned out permanently transferring the Mastership of the Rolls from the domain of Chancery-trained clerics to lay common lawyers”. (271)

Another, and more sinister, long-lasting though thankfully expunged Cromwellian legacy was the first statute criminalizing “buggery”. Its causes, in fact, were partly related to the competition between the lay and the ecclesiastical jurisdiction. Sir Diarmaid explains that

After the Papacy had created a body of canon law and church courts to administer it in the eleventh and twelfth centuries, such matters of morality as this had been the concern of church lawyers in the Western Church, and not of the King’s courts. The Act was the first major encroachment in England on that general principle, a phenomenon which occurred right across sixteenth-century Europe, Catholic and Protestant alike. (241)

But the conflict wasn’t just jurisdictional. The statute appears to have been “directly linked” to the perception, among English protestants, of “the unnaturalness of clerical celibacy generally [and] monastic corruption in particular, and so … looks like a new try-out in Cromwell’s programme of intervention in the affairs of monasteries and friaries”. (241) But of course the criminalization was not limited to wayward monks and friars. Innocent men were collateral damage in this fight – though it is perhaps naïve to think that, but for it, homosexuality would not have been criminalized.

Of course, Cromwell was on the side, or rather the chief instrument, of repression in other ways too. Disagreement with the policies he steered through Parliament at his royal master’s behest was not welcome:

If the official theory of the 1530s ran that the realm was united with one voice as expressed in Parliament, once this expression had been made anyone dissenting was not a true subject, or churchman, lord, knight or burgess. The fate of such individuals could be dire. If Cromwell crafted the rhetoric, he was also put in charge of enforcing the consequences. (236)

And, still on the subject of repression of dissenters, it is impossible to speak of Cromwell without also speaking of Thomas More. In Sir Diarmaid’s telling, neither man comes out well. Before he became the great symbol of freedom of conscience, More was in his capacity as Lord Chancellor a devotee of persecution. As he

felt himself increasingly boxed in and at odds with the King’s plans, he turned to waging implacable war on enemies of the Church whom he could crush without inhibition. Gone were the days of Cardinal Wolsey, when no one was burned at the stake for heresy: More had a positive relish for burning heretics. Since 1529, he had been saying so at savage length in print, in flat rejection of Wolsey’s conciliatory line, and although claims by angry Protestants of the next generation that he personally tortured heretics have no evidence to back them up, his words now became Church policy. (160)

Indeed, More had a “strong sense of being caught up in a cosmic battle for the soul of Europe between the Papacy and the forces of Antichrist”. (161) He has, of course, been fortunate in his biographers―but the real, historical More seems to have been closer to the sour and stern character depicted by Dame Hilary than to the hero whom so many, myself included, have long admired.

For all that, there is little doubt that More’s execution was nothing more than judicial murder. Sir Diarmaid writes that Cromwell

choreographed the judicial procedures which briskly led to More’s execution. The court’s decision was based on evidence from Richard Rich, Solicitor-General and already firmly within Cromwell’s circle of patronage, in front of jurors carefully picked by Master Secretary [one of Cromwell’s titles]. Few historical accounts have managed to make the tale of Rich’s career anything better than despicable in its opportunism and chameleon-like profession of religious belief; he is likely to have distorted what he had heard in interviews with More. (279; reference omitted)

Sir Diarmaid notes that Cromwell seems to have felt rather terrible about the whole thing:

in Cromwell’s jottings of remembrances for action … he could not bring himself to name More in relation to the business of execution … [T]he note read “When Master Fisher shall go to execution, and also the other”. (280)

Perhaps it would be unfair to say “crocodile tears”. Yet even if Cromwell’s conflicted feelings were genuine, that hardly reduces his responsibility for putting a man to death for his beliefs (however fanatical and they may otherwise have been), and in a perversion of the legal process.

Cromwell was, then, a paradoxical figure in constitutional history. He was a man who abetted royal authoritarianism, including in its murderous tendencies, of which he would himself become a victim. But he was also a man who ultimately could claim the credit for aggrandizing Parliament and setting it on the trajectory that would lead, first, to a confrontation with the Crown in which, under the leadership of a Cromwell’s nephew’s great-grandson, Parliament would judicially murder Henry VIII’s nephew’s grandson, Charles I, and then to finally securing dominance over the Crown a century and a half after Cromwell’s downfall. Not that Cromwell would necessarily have been pleased with any of that. It is perhaps for the best that we do not know the consequences of our actions.

For Your Freedom and Ours

Honouring and learning from the 1968 Red Square Demonstration

Fifty years ago today, on August 25, 1968, eight men and women came out on Red Square to protest against the Soviet invasion of Czechoslovakia.

They held up some banners, perhaps the most famous of them (pictured) repurposing the old Polish slogan “For our freedom and yours“, originally used to protest the Tsarist empire; for this protest by Russians, the words became “For your freedom and ours”. It only took the KGB a few minutes to attack the protesters (one of whom had several teeth knocked out), break up their banners, and arrest them. One gave in to pressure to declare that she had been there by accident; the others did not. Five were put on trial and sentenced to the Gulag or to exile. Two ― Natalya Gorbanevskaya, who had recently given birth (and come to the Red Square with a stroller!) and Viktor Fainberg, the one who had had his teeth knocked out ― were instead declared to be mentally ill and interned in psychiatric institutions, avoiding the Soviet authorities the embarrassment of putting them on trial.

I think it is worth commemorating this protest, not just to honour its participants, but also because they have something important to tell us about what it means, and what it can cost, to be free. A number of them spoke to Vladimir Kara-Murza Jr. for a documentary on the dissident movement in the Soviet Union (the discussion of the 1968 Red Square Demonstration is here), and their thoughts are relevant not only to historians, or to those struggling against regimes that are generally recognized as authoritarian, but also to anyone trying to resist a stifling atmosphere of unfreedom that can exist even in the absence of overt repression, and even in the midst of widely professed belief in free expression.

Freedom has two aspects: internal and external. Free individuals are free thinkers; they do not accept received wisdom, prevailing opinions, and common sense as dogma. Free individuals are also free agents; they act consistently with their sense of right and wrong. Meaningful external freedom, freedom of action, is not possible without internal freedom, freedom of thought. But freedom of thought alone is insufficient. One might be able to count oneself as a king of infinite space while bounded in a nutshell, but not, as we know, if one has bad dreams. And one of the points that that Mr Fainberg makes in the documentary is that “bad dreams” are the inevitable consequence of not acting in accordance with one’s understanding of how one ought to act: “the biggest fear” a person can have, he says,

is fear of the past. Because if you’ve betrayed yourself in the past, if you betrayed your own dignity, you will have that worm inside you, which will eat you from inside, in the present and in the future, and you will not be able to escape it.

This is a point I have already made here, quoting from JS Bach’s St John Passion, where Peter laments his own inability to escape “the pain of [his] misdeed”, his betrayal.

To be free, then, is both to think and to act for oneself, and not on the demand of authorities. Just what acting for oneself involves will depend both on the individual and on the circumstances ― sometimes, it means to worship or preach, sometime to speak or write, sometimes to get together with others on the public square and try to shame the government. All these actions, however, are in some sense public, visible, even ostentatious. To repeat, purely internal freedom, though it may be of some value, is in the long run unavailing. On the contrary, to think freely and to fail to act on these thoughts is to set oneself up for bitter shame and remorse. A free thinker will become a free agent, if only to avoid this outcome. As Gorbanevskaya put it in the documentary, the protest, for her, was a way to ensure that she would “have a clean conscience”. This is no doubt somewhat false, or at least uncalled for, modesty. Protesting, on Red Square, against a defining policy of the Soviet government was an act of incredible bravery. But it is not to slight the protesters to say that they feared a guilty conscience more than the KGB and the Gulag. On the contrary.

The Soviet authorities in 1968 knew this. This is why they took no chances. They did not just stop people from acting. They did their best to impose uniformity of thought. They never fully succeeded, of course, but they never stopped trying. They demanded that all Soviet citizens, especially educated ones, devote years to the study of Marxist “classics”; they forbade “hostile” or “subversive” book being published or even read; and they demanded loud, public, professions of commitment to the ideology and policies of “the Communist Party and the Soviet Government”, the louder and more public the more significant ― or suspect ― the target of the demands was. As Orwell understood so well, forcing people to speak in particular ways meant forcing them to think in particular ways too.

Yet paradoxically the authorities’ obsession with ensuring that all Soviet citizens thought alike gave the few who thought differently a power of their own. In Gorbanevskaya’s words,

[a] nation minus even one person is no longer an entire nation. A nation minus me is not an entire nation. A nation minus ten, a hundred, a thousand people is not an entire nation, so they could no longer say there was nationwide approval in the Soviet Union for the invasion of Czechoslovakia.

This is why it was so important for the Soviet system to crush even the relatively few people who opposed it ― and why, in a sense, their small numbers did not matter very much. Not everyone thought alike, therefore not everyone acted alike, therefore others saw that dissent existed, and started thinking and acting freely in their turn.

Free thought is thus a standing danger to any authority that wants all those subject to it to conform to its demands. Latter-day egalitarian moralists understand this as well as the Communists of yesteryear. (And, any egalitarian moralists who might be reading this: don’t tell me that you are right, or that you are redeeming the many sins of white-man-kind; the Communists also thought that they were building heaven on earth. Including when they were invading Czechoslovakia.) Hence their shamings, their online mobs, and their demands for attestations and statements of principles. They desperately want to control people’s very thoughts and beliefs, because they sense that, if people are not made to get on with the programme in their minds, they will, sooner or later, start speaking out against the programme too, call scrutiny upon it, and expose its unexamined assumptions, its logical deficiencies, and its leaps of blind faith.

This is not to say that the moralists are quite like their forbears in every respect. They (mostly) do not beat those who disagree; they they not imprison them; they do not torture them in psychiatric “hospitals”. The pressure, for now, is mostly economic and reputational. I do not mean to make light of it; I do not mean to judge anyone who thinks it is too much; I certainly do not mean to pretend that I am braver or stronger than others. When I think of those eight who went out on Red Square that day, and of the seven who did not give in to the threats and the violence ― the real violence, not just the unpleasant words ― that they were subjected to do, I do think that the demands on our strength and courage are not yet very high. But if we do not start practising being free now, we won’t be very good at it if one day we really need to.

Despotism, Revisited

Thoughts upon belatedly reading an (anti-)administrative law classic

I have, rather belatedly, read an (anti-)administrative law classic, The New Despotism by Lord Hewart’s  ― an attack on the power of what would come to be called the administrative state published in 1929 by the then-Lord Chief Justice of England. The book made quite an impression when it was published, prompting the government to set up an inquiry, and even has its own Wikipedia page. However, I don’t think The New Despotism is often discussed in Canada these days. (A quick HeinOnline search shows no more than occasional citations in the past decade; and, what little that’s worth, I hadn’t heard about it until I sat in on my colleague Vernon Rive’s administrative law lectures.) So perhaps some comments here may be of interest, if only to my fellow dabblers, despite the book’s antiquity.

In a nutshell, Lord Hewart was alarmed by the expansion of unreviewable legislative and adjudicative powers delegated by Parliament to officials within the executive branch. While he is almost certainly skeptical of the administrative state generally, Lord Hewart mostly suspends this skepticism and focuses his attacks not on the exercise of power by administrative decision-makers as such, but on the fact that, all too often, administrative power is exercised more or less secretly, without the persons affected by it being able to make submissions to decision-makers, or without decision-makers having to take these submissions into account, or to explain how they reached the conclusions they did. He criticizes legislation empowering administrators to override statutes, or to interpret and apply them without any judicial oversight. Such legislation, he insists, creates a system that is not, properly speaking, one of “administrative law”, such as it exists in Europe (Lord Hewart doesn’t share A.V. Dicey’s notorious disdain for continental administrative law), but one of “administrative lawlessness”.

The remarkable thing is that, while it is fashionable to describe The New Despotism (insofar as it is referred to at all) as a “tirade” delivered by an apologist for the nightwatchman-state dark ages, his critique has been largely accepted ― including by the latter-day defenders of the administrative state ― and incorporated into modern administrative law. Whatever our views on the Canadian (and American) practice of deference to administrative interpretations of statutes, even those who defend this practice accept that some judicial oversight over administrative decision-makers is constitutionally essential. And they, like their critics, would share Lord Hewart’s indignation at decision-making processes in which anonymous officials may act without receiving evidence or submissions from affected parties, whom they need not appraise of their concerns, and are not required to give reasons. He might not be kindly remembered, but in a very real sense, Lord Hewart won the battle of ideas. Pro- or anti-administrativists, we largely agree with him, and indeed among ourselves. The outstanding disagreements are of course significant, but not nearly as significant as the general assent to the subjection of administrative decision-making to judicial review in matters both procedural and substantive.

Interestingly, however, this consensus was not implemented in the manner Lord Hewart envisioned. It is largely reflected in the development of the common law, and not so much in changes to legislative practice which he urged. Some legislative changes have occurred. In particular, there are better, though I suspect still deficient, mechanisms for Parliamentary review of regulations, which Lord Hewart called for. But legislatures have not ceased purporting to delegate vast and unreviewable powers to the executive. What has changed is that the courts came to take a much more skeptical approach to such legislation, and seldom give it its full effect. This, I think, is not surprising. Lord Hewart thought that, to eradicate administrative lawlessness, “what is necessary is simply
a particular state of public opinion”, for which to “be brought into existence what is necessary is simply a knowledge of the facts”. (148) This seems almost touchingly naïve ― almost, because, as a former politician himself, Lord Hewart ought to have known better. It is implausible that public opinion can be drawn to, let alone firmly focused on, issues that are bound to strike non-lawyers as purely technical matters. This is something worth pondering as we reflect on the relative legitimacy of judicially-articulated and legislated rules, whether generally or specifically in the context of administrative law.

Let me now go back to the disagreement between those who favour judicial deference to administrative decision-makers and those who resist it. That Lord Hewart would surely have been in the latter camp will not persuade anyone who is not, given his reputation as an arch-anti-administrativist. But there is another jurist, whose name carries more authority in Canada than Lord Hewart’s, whom I am happy to claim for non-deferential camp (to which I belong): none other than Lord Sankey, of the “living tree” fame. In an extra-judicial speech, delivered just months before the opinion in Edwards v Canada (Attorney General), [1930] AC 124, a.k.a. the Persons Case, and quoted by Lord Hewart, Lord Sankey emphasized the importance of the Rule of Law, and of the courts as its enforcers:

Amid the cross-currents and shifting sands of public life the Law is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts, at any rate, he can get justice. (151)

And then, describing the threats to the courts’ role in upholding the Rule of Law, Lord Sankey pointed to

what has been described as a growing tendency to transfer decisions on points of law or fact from the Law Courts to the Minister of some Government department. (151)

And as for Lord Hewart himself, he did have an answer to at least one objection to judicial oversight of the administrative state that the defenders of deference still trot out from time to time: that allowing unobstructed judicial review of administrative decisions will lead to too much costly litigation. (For instance, in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, Justice Karakatsanis’ majority opinion claimed that “[a] presumption of deference on judicial review … provides parties with a speedier and less expensive form of decision making”. [22]) Lord Hewart responded to this concern by pointing out that

what is desired is not that there should be endless litigation but rather that litigation should be rendered as a rule unnecessary by the diffused and conscious knowledge that, in case of need, recourse might be had to an impartial public tribunal, governed by precedent, and itself liable to review. (155)

The point is one that goes to the very nature of the Rule of Law:

Nobody outside Bedlam supposes that the reason why Courts of law exist in a civilized community is that the founders of the State have believed happiness to consist in the greatest possible amount of litigation among the greatest possible number of citizens. The real triumph of Courts of law is when the universal knowledge of their existence, and universal faith in their justice, reduce to a minimum the number of those who are willing so to behave as to expose themselves to their jurisdiction. (155)

Just last year, the UK Supreme Court adopted essentially this reasoning in R (Unison) v Lord Chancellor [2017] UKSC 51, in the course of explaining the importance of access to adjudication ― perhaps ironically, in that case, adjudication in administrative tribunals, albeit ones functioning quite differently from those decried by Lord Hewart. Arch-anti-administrativist he may have been, but Lord Hewart was a more intelligent, and is a more relevant, jurist than those who dismiss him might realize. If you are interested in administrative law and haven’t read The New Despotism, you probably should read it.

A Constitutional Moment

Confederation as a constitutional moment, in George Brown’s words

I take a break from talking about the Saskatchewan Catholic school funding case, and turn from dealing with unanticipated consequences of compromises struck at Confederation to the time when these compromises were being made. It is common enough in Canada to denigrate these compromises, a tendency encapsulated in the former Justice Binnie’s comment, his exit interview with the Globe and Mail, that we couldn’t possibly be originalists because

[w]e don’t have a Jefferson or an Alexander Hamilton or a Benjamin Franklin, for us to read their views on what the Constitution does or doesn’t mean. At the Quebec conference, Sir John A. Macdonald’s most memorable reflection was: “Too much whisky is just enough.” That was the guidance we got as to our Constitution.

The Quebec conference was held behind closed doors, so we don’t actually know what memorable reflections were made there. But we have plenty of other sources to consult, if we take an interest in the thought of the Fathers of Confederation. (Many of these sources are now easily available on the Macdonald Laurier Institute’s Confederation Project’s website, thanks to the hard work of my friend Alastair Gillespie.)

I think it’s fair to say that, on the whole, the Fathers of Confederation did not quite have the philosophical depth or literary talent of Alexander Hamilton and James Madison. But that is a rather absurd standard by which to measure any group of statesmen. Considered in their own right, they were much more serious thinkers, not to mention better expositors of their ideas, than they are usually given credit for. Their constitutional endeavours involved a great deal of compromise and concession, as they openly acknowledged (in contrast, perhaps, to the self-assured Publius). But if did not meditate on the meaning of separation of powers, or advance theories of federalism, or leave cryptic thoughts on judicial review for us to decipher, they carried out a practical demonstration of how to solve constitutional and political problems that was, in its own way, no less impressive ― and has arguably better stood the test of time, for now anyway.

As Mr. Gillespie’s work shows, the accomplishments of Confederation are perhaps best appreciated if presented in the words of those who made them possible. So, to finally get to the point of this post, here is an excerpt from George Brown’s speech during the “Confederation Debates”, during which the legislature of the then-Province of Canada considered whether to support the plan developed at the Quebec Conference. Mr. Gillespie’s paper on Brown does not quote it, but it made an impression on me when I read it recently, and I wanted to share it. Having noted that the candidates supporting the confederation plan have been receiving wide popular support in recent elections, Brown goes on to argue that people outside Canada ― which is to say, mostly, in the United Kigdom and in the United States ― have been noticing too:

And well, Mr. Speaker, might our present attitude in Canada arrest the earnest attention of other countries. Here is a people composed of two distinct races, speaking different languages, with religious and social and municipal and educational institutions totally different; with sectional hostilities of such a character as to render government for many years well-nigh impossible; with a Constitution so unjust in the view of one section as to justify any resort to enforce a remedy. And yet, sir, here we sit, patiently and temperately discussing how these great evils and hostilities may justly and amicably be swept away for ever.

We are endeavouring to adjust harmoniously greater difficulties than have plunged other countries into all the horrors of civil war. We are striving to do peacefully and satisfactorily what Holland and Belgium, after years of strife, were unable to accomplish. We are seeking by calm discussion to settle questions that Austria and Hungary, that Denmark and Germany, that Russia and Poland, could only crush by the iron heel of armed force. We are seeking to do without foreign intervention that which deluged in blood the sunny plains of Italy.

We are striving to settle for ever issues hardly less momentous than those that have rent the neighbouring republic and are now exposing it to all the horrors of civil war. Have we not then, Mr. Speaker, great cause of thankfulness that we have found a better way for the solution of our troubles than that which has entailed on other countries such deplorable results?

Now the last paragraph strikes me as an exaggeration. Were the differences between Upper and Lower Canada, British and French Canadians, Protestants and Catholics, truly comparable the conflict over slavery that caused the American Civil War? Brown might have been afflicted with the same blindness about the nature of that war that made Lord Acton, the great liberal, support the South in the name of preserving federalism. But he was also in a self-congratulatory mood (and readers of Mr. Gillespie’s paper will understand why Brown had cause for self-congratulation just then), and no doubt a boastful one, as any politician trying to sell others on his dearly held idea.

Yet despite his rhetorical excess, Brown was fundamentally right. It is true that the differences of religion, to say nothing of the forces of nationalism, had ― and have since he spoke ― often led to hatred, to open conflict, to outright war. The Fathers of Confederation found a way, not to sweep them away for ever, admittedly, but to create a constitutional framework within which opposing forces could be accommodated, and indeed made to work together, in a way that not only kept them at peace, but created one of the most successful polities of the last century and a half.

Contrary to what the denigrators like to say, the mid-1860s (and perhaps the longer period from the late 1850s to the mid-1870s) were a true “constitutional moment” in Canada. It deserves our respect, and our attention. We need not be uncritical of those who made this moment possible. But we profit, to this day, from their practical wisdom and political talents. We should not forget that.