Category: Legal philosophy

A Squalid Policy

The UK Home Secretary wants to ban homeless people’s tents

The Financial Times’s Peter Foster and Lucy Fisher report on plans by the UK’s Home Secretary Suella Braverman to crack down on those who are called “rough sleepers” on this side of the pond, or simply homeless people on the other. They would be banned from sleeping in ― and charities that help them would be banned from distributing ― tents. The report quotes predictable and understandable criticisms of this on the merits, but I would like to make a different point about Ms Braverman’s plan: namely, that it is yet another example of a policy that seeks to nudge people by “crapping on them”, to use the language of that noted political philosopher Emmanuel Macron.

To be a bit more specific, unlike most laws ― good or bad, smart or stupid ―, which appeal to either the moral sense or the self-interest of the people who are supposed to comply with them (or, frequently enough, to both), some operate by triggering emotional responses, from exasperation, to disgust, to fear. I have written about this a number of times.

First, in the context of Canada’s prostitution legislation and, also, of prohibitions on flavoured tobacco products. I argued that, while the former is often roundly (and I think rightly) condemned and the latter broadly accepted and indeed welcomed,

[i]n both cases, the government (and advocates urging it on) seek to deter a behaviour that prevailing morality finds reprehensible (the sale of sex, the use of tobacco) not by prohibiting it, but by subjecting those who engage in it to the heavy pressure of their own negative emotions (fear, disgust).

Something similar is at work in the widespread prohibitions on “human smuggling” ― that is, unlike human trafficking, is the transportation of consenting, indeed willing, persons across borders they are prohibited from crossing. The effect of these bans is to raise the cost of the smugglers’ services: not just the pecuniary cost of course, but also the riskiness and the exploitativeness. As a result,

[w]e say that we welcome refugees, but actually we put barriers that not only make it difficult for them to come, but ensure that those who make the attempt are more likely to suffer or even die. That this barriers are invisible makes it worse. Ostensibly we protect vulnerable people from exploitation. In reality … we create incentives for the smugglers to exploit them. 

Anti-smuggling laws work similarly to prostitution legislation that follows the “Nordic model”, as Canada’s now does:

Only one side of the consensual  transaction, the one allegedly exploiting the other, is criminalized (in the case of smuggling, the supply; in the case of sex work, the demand), but the putative victim is endangered, and probably also stigmatized, as a result. It is hard to avoid the suspicion that, as with sex work and other activities considered reprehensible, regulations that ostensibly protect people from their ill-effects are actually meant to scare or disgust them out of engaging in these activities; or at least that, even if this is not the intent, the supporters of such laws really do not mind if they this effect.

And then there was the pandemic policy of Mr. Macron ― and of many others, in fairness to him, though few have been as explicit about their reasoning. Faced with the reluctance of a relatively small but determined bunch of anti-social idiots to get vaccinated against the plague, the French president propounded the following doctrine:

The unvaccinated, I very much want to crap on them. And so we’ll keep on doing it, to the end. That’s the strategy. … [I]t is only a very small minority that is refractory. … How do we reduce them? We reduce them, sorry to say it this way, by crapping on them even more. … I’m not going to put them in prison; I will not forcibly vaccinate them.  And so we have to tell them: … you will not be able to eat out, you won’t be able to get a coffee, you won’t be able to go to the theatre, you won’t be able to go to the movies. (Translation mine)

As I wrote here,

To crap on people, Macron-style, is not quite like telling them that they ought to live in fear, as Canadian law used to tell and still tells prostitutes. It’s not even quite like physically disgusting them, as it does with smokers. But the way in which regulation that aims to crap on them acts is not that different from regulation that acts through fear or disgust.

Ms Braverman’s plans, to return to them, are not as subtle as Mr. Macron’s. They quite transparently enlist fear, cold, and squalor. Rough sleeping, she believes, is a “lifestyle choice”, and the choice needs to be painful to be unattractive, so she is willing to inflict pain. As I wrote in my first post on this topic, the one about sex work and cigarettes, ― though I am less tentative now than I was then ― “this approach is wrong, whether in the case of sex work, abortion, or smoking” ― or rough sleeping:

As Jeremy Waldron’s work on the Rule of Law and human dignity emphasizes, law normally tries ― and ought to try ― to treat those subject to it as human beings, endowed with dignity and capacity for rational choice. It does not, and ought not to, treat them as objects or beasts who need to be prodded around. Regulatory schemes that rely on visceral negative emotions such as fear, disgust, or shame seem to me to come close to doing that. To be sure, law often relies on a certain fear of negative consequences of non-compliance with its substantive or formal requirements (whether punishment, liability, invalidity or unenforceability, etc.). But, for one thing, it seems to me that, although the difference is difficult to put into words, the nature of this fear is not the same, and not as disturbing. Perhaps more importantly, and more clearly, the unpleasant consequences of non-compliance  are something the law explicitly tells people to avoid. There is no manipulation going on. They are also produced by the legal system itself ― by the judges who announce them, by the prison wardens and bailiffs who enforce them, and so on, not by external factors for the law purports not to take responsibility.

All this applies, I think. I only add two side points about Ms Braverman’s plan for crapping on rough sleepers.

First, she says she “want[s] to stop … those who cause nuisance and distress to other people by pitching tents in public spaces, aggressively begging, stealing, taking drugs, littering, and blighting our communities”. Pretty much all of these things can be and are criminalized quite independently of the possession and distribution of tents, and many of them should be criminalized. The question, perhaps especially acute in this country at present, is whether the police are willing to enforce the law. But adding to the list of laws that need to be enforced does not help address the problem.

And second, legalize housing. Just legalize housing already, instead of criminalizing tents. How’s that for a less squalid policy?

A Cheer for Administrative Law

Administrative law can only do so much to avert injustice―but what it can do still matters

I’d like to come back, however belatedly (sorry!) to an interesting post by Paul Daly at Administrative Law Matters. Professor Daly uses the example of Novak Djokovic’s ultimately unsuccessful challenge to the Australian government’s cancellation of his visa to illustrate “the value of administrative law”. He writes:

Immigration has traditionally been a prerogative of the executive, an island of unregulated discretion in the legal system. But over the last half century or so, courts around the common law world have landed on this island, wielding principles of procedural fairness and substantive reasonableness. Several generations ago, it would have been unthinkable that a Minister would give any reasons — still less 10 pages of reasons! — to support a decision to cancel a visa. Yet because the courts now stand ready to scrutinize executive action, ministers can no longer rely on authority alone to make decisions. They must engage in the reasoned exercise of public power.

Professor Daly acknowledges that “[a]dministrative law is no panacea. Hardly any immigrant has Djokovic’s resources and will receive the Cadillac justice he has been receiving.” That’s true of course. Still, he concludes that Mr Djokovic’s case “is an important reminder of the value of administrative law in pushing ministers and others to justify their exercises of public power in reasoned terms”. This also is true. And one might even add that, in law as elsewhere, those who cannot afford the Cadillac will often benefit from the ability and willingness of others to shell out for one.

Yet despite this I think that Mr Djokovic’s case shows at least as much that administrative law is, at best, only a partial remedy to injustice. Granting the point that it can force officials to “engage in the reasoned exercise of public power” (which is often though not always true), it does comparatively little to ensure that the power is exercised justly, and nothing at all to ensure that its existence is just. The latter of course is not administrative law’s role. But it’s a point that we should not lose sight of if we choose to celebrate administrative law. In a just world, there would be a great deal less administrative law than we need in ours.

In our world, it is indeed an achievement that immigration decisions have to be reasoned and justified. After all, the founding father of Canadian administrative law scholarship evidently lamented the fact that, although the government “regards immigration as a privilege, not as a right, and wants to avoid having to disclose to a court its sources of information about the political colour of immigrants”, courts lack the good sense to see the point: “On the other side of the ideological fence, a court , with the sweating immigrant before it, sometimes sets aside a deportation order on very flimsy grounds, for instance, that it was made on a Sunday”. (John Willis, “Administrative Law in Canada” (1961) 39:2 Can B Rev 251 at 258) It’s good that we’ve moved that ideological fence some way towards decency.

But let’s not kid ourselves. We haven’t moved it very far. As Maria O’Sullivan explains in The Conversation, the reasons that ostensibly motivated the cancellation of Mr Djokovic’s visa were that his ― presumed ― opposition to vaccination against the present plague might encourage similar opposition among Australians and might undermine “social order”. Professor O’Sullivan points out that ministerial explanations were questionable on their own terms. But she also notes that, perhaps more importantly for the future, the precedent set in Mr Djokovic’s case means that people’s ability to come to Australia might be taken away on account of their actual or even perceived views being a hypothetical source of possible trouble in the opinion of a minister. What starts with an arrogant fool of a tennis player won’t stop there. Yet substantive Australian immigration law seems to allow for precisely this result, and administrative law offers no redress.

Redress will come, not any further development of administrative law, but from substantive law being such to prevent this sort of injustice. In this regard, it is telling that Professor Daly sets his reference point to 50 or 60 years ago, when immigration restrictions ― and the government’s willingness to treat immigration as a privilege to be granted or withheld on a political whim ― had become generally accepted. But let’s not stop 50 years ago; let’s go back another century. In 1872, English-speaking countries simply did not restrict immigration, though health measures and quarantines did exist. (Hence let me note: I’d have very little sympathy for Mr Djokovic if he had been barred from Australia due to not being vaccinated. But that’s very much not what has happened.) In North America, immigration controls were the product, first, of anti-Asian racism in the late 19th century, and then of more generalized xenophobia in the first decades of the 20th. On the other side of the pond, as David Cannadine writes in The Victorious Century, the closing of the UK’s borders at the turn of the 20th century was the result of bigotry against the Irish and, especially, of anti-Semitism. Australia too implemented and long held to an overtly racist immigration policy.

Of course, contemporary immigration law does not discriminate as overtly. But the idea that movement across borders is something that can be regulated in the first place comes from that evil and unjust source. And it still means that people can be stopped from doing the same (often stupid) things that we are allowed, even though they are in all particulars bar their failure to have been born in the right place or to the right parents the same as us, for no reason other than that failure. The old-school racism may be gone, but the xenophobia inherent in the idea of immigration restrictions remains. And it is not administrative law that will purge it, but the realisation that the closing of the borders 120, 140 years ago was an injustice, and that it must be ended.

Hence I will only give one cheer for administrative law. Not two, for administrative law is not meant to reform repressive substantive laws, and certainly not three, for it is powerless to mend injustice raised up to the rank of political philosophy. The trouble with cheering too loudly for administrative law is that this risks making us forget these deeper injustices; we might be content with bringing order and reason to what remains, at bottom, a logic of repression.

But my cheer for administrative law ― at least, for robust administrative law, which truly holds the administrative state to its legal and constitutional duties, rather than for the all-too-often diluted version that many administrative lawyers prefer ― will be a loud one. As E.P. Thompson famously said,

We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretentions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power.

Administrative law is an essential component of the Rule of Law, and so of the unqualified human good that Thompson had the wisdom to discern amid what he saw amid great substantive injustice. Hooray for it.

Tous mes emmerdements

L’État peut-il obtenir l’obéissance des citoyens en les « emmerdant » ?

Quand les gens ne font pas ce que l’État voudrait qu’ils fassent, comment faire en sorte qu’ils changent d’idée et se mettent au pas? On peut interdire ou ordonner, amende ou prison à l’appui. On peut viser le portefeuille et imposer une « taxe pigouvienne » sur une activité ou un bien auquel on voudrait qu’ils renoncent en partie sinon entièrement, la pollution ou l’alcool étant des exemples classiques. Ou encore, on peut les dépiter, les dégoûter. Les emmerder, selon le vocable recherché d’Emmanuel Macron, président de la République française.

Je cite un reportage de l’AFP repris par La Presse :

« Les non-vaccinés, j’ai très envie de les emmerder. Et donc on va continuer de le faire, jusqu’au bout. C’est ça, la stratégie », déclare sans ambages le chef de l’État.

« La quasi-totalité des gens, plus de 90 %, ont adhéré » à la vaccination et « c’est une toute petite minorité qui est réfractaire », ajoute-t-il.  

« Celle-là, comment on la réduit ? On la réduit, pardon de le dire, comme ça, en l’emmerdant encore davantage. […] 

« Je ne vais pas les mettre en prison, je ne vais pas les vacciner de force. Et donc, il faut leur dire : à partir du 15 janvier, vous ne pourrez plus aller au restau, vous ne pourrez plus prendre un canon, vous ne pourrez plus aller boire un café, vous ne pourrez plus aller au théâtre, vous ne pourrez plus aller au ciné… », explique le chef de l’État.

En sus du vocabulaire, l’idée frappe. Que l’État aimerait que les gens se fassent vacciner et, ainsi, se protègent et réduisent la pression sur le système de santé, ça se comprend. Que l’État soit réticent à mettre les récalcitrants en prison, peut-être aussi ; il y en a trop, et on ne veut pas créer les martyrs pour la télévision. Soit. Que l’État se sente à court de moyens, donc, on peut aussi le comprendre. Mais n’empêche, l’État peut-il ― du point de vue de la moralité politique ― emmerder les gens?

Je me suis déjà posé une question semblable ici, au sujet notamment de la prostitution et de la lutte anti-tabac, deux domaines où on cherche à décourager les gens en leur faisant peur et en les dégoûtant, sans pour autant interdire. Voici ce que j’écrivais alors (je traduis) :

J’ai tendance à croire que cette façon de faire est injuste […]. Comme Jeremy Waldron le souligne dans ses travaux sur la primauté du droit et la dignité humaine, le droit cherche normalement ― et devrait chercher ― à traiter ses sujets comme des être humaines, doués de dignité et d’une capacité à faire des choix rationnels. Il ne les prend pas et ne devrait pas les prendre pour des objets ou des bêtes qui ne répondent qu’à la force. Or, il me semble que c’est justement à cela que s’apparente la règlementation qui produit des effets à coup d’émotions négatives viscérales comme la peur, le dégoût ou la honte.

Bien entendu, le droit compte souvent sur une certaine crainte des conséquences négatives de la désobéissance à ses exigences […]. Cependant, il me semble que, même s’il est difficile d’exprimer cette différence, la nature de cette crainte n’est pas la même et n’est pas aussi troublante. Quoi qu’il en soit, ce qui est plus important et plus clair, c’est que le droit prévient explicitement les gens des conséquences fâcheuses de la désobéissance. Il ne s’agit pas de manipulation. Ces conséquences sont l’oeuvre du système juridique lui-même ― des juges qui les annonces, des huissiers et des gardiens de prisons qui les mettent en oeuvre, et ainsi de suite ― et non des facteurs externes dont le droit se déresponsabilise.

Emmerder les gens à la mode Macron, ce n’est pas tout à fait comme leur dire qu’ils devraient vivre dans la peur, comme le droit canadien disait et dit toujours aux prostituées. Ce n’est même pas tout à fait comme les dégoûter physiquement, comme il le fait avec les fumeurs. Mais le mode d’action d’une réglementation qui vise à emmerder n’est pas si différent de celui d’une réglementation qui agit par la peur ou le dégoût.

M. Macron dit que « “l’immense faute morale des antivax” est de “saper ce qu’est la solidité d’une nation” ». Peut-être. (Que les antivax soient en faute morale, j’en conviens. Ce que c’est que « la solidité d’une nation », je n’en ai pas la moindre idée.) Or, un dirigeant qui veut « emmerder » des citoyens commet donc lui même une faute qui fait en sorte qu’il est mal placé pour faire la morale à qui que ce soit.

The Public Good Trap

Why thinking that the public good is the measure of law and politics is a mistake

The rhetoric of public good has always been part of legal discourse; even scholars who are, one might think, hard-boiled legal positivists are surprisingly sympathetic to the idea that law inherently serves the public interest, as are, of course, the positivists’ critics and opponents. Mark Elliott and Robert Thomas capture this sentiment in their textbook Public Law, which I have just finished reading as I prepare to teach in the United Kingdom starting next month. Professors Elliott and Thomas write:

In a democracy, citizens elect a government to protect, advance, and serve the public interest. In normative terms, democratic governance presupposes that government acts as the servant—rather than the master—of the people. There are two dimensions to this notion that good governance means (among other things) governing in the public interest. The positive dimension is that government should make decisions that advance the public good. … Governing in the public interest has a second, negative dimension. Government must not act in a self-interested manner. (Ca. 401; paragraph breaks removed; emphasis in the original)

I suspect that most people, of all kinds of political and ideological persuasions would view this as correct and indeed uncontroversial. But for my part I do not, and indeed I think that the things that Professors Elliott and Thomas themselves say, and the examples they use, expose the difficulties with this argument.

Two things, though, before I go further. First, to be very clear, I do not mean to pick on Professors Elliott and Thomas. I just happened to be reading their book (and I might have more to say about it soon), and thought that it was representative of what strikes me as a pervasive problem with the way people think and talk about these issues. And second, I think that Professors Elliott and Thomas are right to say, just before the passage quoted above, that “[g]overnments have no legitimate interests of their own, and nor, when acting in their official capacities, do the individuals who lead and work in governments”. This might be a more controversial thing to say than the claim that government must serve the public interest, but if it is true it must, then I don’t think there is any room for a raison d’État independent of the public interest.

But what about the main claim? Why wouldn’t governments need to work in the public interest? How, indeed, could it be otherwise? Well, consider what Professors Elliott and Thomas also say by way of explaining the “positive dimension” of the public interest:

The public good is a highly contestable notion. Concepts such as good governance and the public good are not objective yardsticks against which the legitimacy of governmental action can be determined. … In a democracy, the ultimate question is not whether the government is acting in an objectively correct way (whatever that might mean); rather, it is whether it is governing in a manner that is regarded as broadly acceptable by the public. Elections are the pre-eminent means of doing this. … There are [in addition] a number of different ways that enable or require government to take account of the views and wishes of the people: the need to obtain parliamentary approval of legislative proposals; submission to scrutiny by Parliament, the media, courts, tribunals, and ombudsmen; and public participation in government decision-making (eg by consulting with the public). (Ca. 401)

So: citizens elect governments to serve the public interest, but we can’t actually tell what the public interest is, and the only measure we have is the outcomes of elections and other processes, largely (except, arguably, for scrutiny by courts and tribunals) political ones too. And when you start factoring in political ignorance, the role of special interests in non-electoral accountability mechanisms (and, to a lesser extent, in elections too), the difficulty of interpreting electoral outcomes… the idea that any of it has anything to do with a discernable set of parameters we might usefully describe as the public interest disappears like a snowflake in a blizzard.

The example Professors Elliott and Thomas give makes my case, not theirs. According to them,

it is a relatively uncontentious proposition that, when using public resources—especially public money—government should, so far as possible, seek to attain value for money. Government is largely funded by the public through taxation. Accordingly, the public can, in turn, rightfully expect that government should not waste its money. (Ca. 401)

I think it’s true that, if you just start asking people in the street whether government should “seek to attain value for money”, they will say that of course it should. The trouble is that, if you start asking some follow-up questions, it will quickly turn out that people don’t really mean it. Many people believe, for instance, that government should only, or at least preferentially, do business with suppliers from its own country. The entire point of such policies, of course, is to override the concern for getting value for public money ― they wouldn’t be necessary otherwise. Others (or perhaps the same people) believe that governments should allow, and perhaps even encourage, their employees to form unions and engage in collective bargaining. Again, the point of such policies is to override the preference for value for money: unionized labour is definitionally more expensive than its non-unionized counterpart.

For my purposes here, it doesn’t matter that such preferences are wrongheaded, although they certainly are. What matters is that, wrong though they are, people hold such preferences. As a result, even something as seemingly uncontroversial as the idea that government should get the best bang for the taxpayer buck turns out not to be consistent with how many people understand the public interest ― in the polling booth. In words, they will keep complaining about government inefficiency. In other words, it’s not just that different people and different groups can’t agree on what the public good is and we have no way of extracting any real meaning from the procedures they use to resolve their disagreements; it’s also that a single individual is quite likely not to have any sort of workable view of what the public interest is or requires.

For similar reasons, the “negative dimension” of the public good as articulated by Professors Elliott and Thomas fares no better. They argue that “it would be improper for an elected public body—whether the UK central government, a devolved government, or a local authority—to elevate political gain above the public good”. (Ca. 401; emphasis in the original) But if there is no such thing as the public good, objectively understood, then how can we sensibly claim that a public authority is elevating political gain above this non-existent yardstick? Worse, if the public good is to be assessed based in part on electoral outcomes, then doesn’t it follow that the pursuit of electoral success and the pursuit of the public good are one and the same?

What follows from this? Some would say that we should accept revelation and authority as our guides to the meaning of the common good, as a solution to the empty proceduralism of which they would no doubt see the argument of Professors Elliott and Thomas as representative. But such people have no means of persuading anyone who does not already trust their revelation and their authorities. Many of them recognize this and have given up on persuasion entirely. Like Lenin, they think that a revolutionary vanguard would be warranted in imposing their vision on the rest of us.

If we are disinclined to Leninism, I would suggest that we should shift our expectations and ambitions, for politics, for public law, and indeed for law tout court. Instead of looking to them to produce or uphold the public good, we ought to focus on how they can protect private rights, as the US Declaration of Independence suggests.

This is not an unambitious vision for politics and law, by the way. It is difficult enough to agree on a list of such rights that public institutions can and should enforce, and to work out the mechanisms for enforcing them without compromising other rights in the process. What is, for instance, the extent of property rights? Should it be defined entirely through the political process or should we make property rights judicially enforceable? If we set up police forces to (among other things) protect property, how do we prevent them from engaging in unjustified violence? Those are difficult enough questions, and the pursuit of even more intractable ones under the banner of the public good largely detracts us from paying attention to them.

What Does City of Toronto Mean For Administrative Law?

The Supreme Court released its much-anticipated decision today in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. While others will address the nuances of the case, the majority generally puts unwritten constitutional principles into a tiny, little box. It says that because “[u]nwritten principles are…part of the law of our Constitution…” [50], unwritten principles only have two practical functions: (1) they can be used in the interpretation of constitutional provisions [55]; (2) they can be used to “develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecure” [56]. In this category, the Court uses the example of the doctrine of paramountcy, the doctrine of full faith and credit, and the remedy of suspended declarations of invalidity.

I applaud the majority opinion for clarifying the role of unwritten constitutional principles. For my part, I think the functions they have outlined for unwritten principles give those principles a meaningful role in the constitutional structure while giving priority to the text. The majority aptly underscores the worry with unwritten principles–they are so abstract and potentially endless–and negates that worry by ensuring the text as a control on the use of these principles. Even better, the majority closes the door on the rather pernicious attempt to read municipalities into s.3 of the Charter [5].

But that is not my concern for today. What does any of this have to do with administrative law?

Post-Vavilov, there was a good argument that unwritten principles–the Rule of Law specifically–could have independent force in limiting state action in some way on the standard of review–put more bluntly, that the Rule of Law could invalidate certain legislative rules governing standard of review. The Court says, for example, that “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35). It goes on to outline categories of questions–like constitutional questions–that demand a correctness standard because of “respect for the rule of law” (Vavilov, at para 53). This raised the argument that if a legislature were to prescribe a standard of review of reasonableness on a constitutional question, such a standard would not be given effect to by a court because it transgresseses the “limits imposed by the rule of law.”

On first blush, City of Toronto tends to throw cold water on the argument. Its insistence that unwritten principles cannot invalidate legislation could mean that a court should give effect to a legislated standard of review on constitutional questions. And because there is no express constitutional provision insisting on a correctness standard on certain questions, on a strict reading of the City of Toronto majority opinion, there would be no power to invalidate that law.

This very well may be true, and yet I think there are a few ways to reconcile City of Toronto with Vavilov that leads to the same result that Vavilov seems to suggest–a court not applying (which is strictly, though perhaps not functionally, different from invalidation) a legislated standard of review of reasonableness on constitutional questions. Much of this argument hinges on s.96 of the Constitution Act, 1867.

First, it might be said that the Rule of Law as outlined in Vavilov is a necessary interpretive principle that should be used to understand s.96. That is, we cannot understand s.96–which contemplates federally-appointed superior courts–without understanding the traditional role of these courts to conduct judicial review of administrative action on a certain stringency on certain questions. In City of Toronto, the Court cites s.96-100 as an example of unwritten principles bolstering a constitutional principle, suggesting that “unwritten constitutional principles of judicial independence and the rule have law have aided in the interpretation of [ss.96-100], which have come to safeguard the core jurisdiction of the courts that fall within the scope of those provisions” [55].

I think to call any of the doctrinal innovations that have come to s.96 a result of “interpretation” stretches the term a bit far. On its face, s.96 is just an appointing provision. It may be one thing to interpret what the terms of that appointing provision are, but to construct doctrine on top of the provision–or to make it work in a constitutional structure–seems to be a different judicial function.

Secondly, and I think more persuasively, the Court notes that unwritten principles can develop structural doctrines that flow from constitutional architecture [56]. Again, the Court notes examples of this sort of doctrinal construction: full faith and credit, paramountcy, and even the legal result in the Quebec Secession Reference. As we see, some of these doctrines are quite particular to specific contexts–the Quebec Seccession Reference, for example. Others are more general. The doctrine of full faith and credit in the context of conflict of laws is a major doctrinal innovation that is not found anywhere in a specific constitutional provision. These doctrinal innovations can, in effect, change or invalidate legislation that conflict with them, though they are rooted in the text itself.

Vavilov‘s comments on standard of review best fall into this category. The standard of review framework flows from two unwritten principles themselves: legislative intent (perhaps partially reflected in the principle of “democracy”) and the Rule of Law. The Court conceives of the Rule of Law as generally the rule of courts, in that courts must retain a strong supervisory role over certain questions. It would upset the supervisory role of these courts to outlaw their ability to hold state actors to the strictest constitutional standard. This is but a logical extension of Crevier, which set the stage for an argument about the constitutionally-protected role of the superior courts.

An example and a caveat. First, the majority and dissent clash over MacMillan Bloedel. In that case, the Court arguably invalidated a legislative scheme that granted exclusion jurisdiction to a youth court. The City of Toronto majority says the holding in that case was based on the text of ss.96-101 and 129 of the Constitution Act, 1867 [50]. The dissent, on the other hand, cites para 41 of MacMillan Bloedel to suggest that the basis of the holding was the Rule of Law itself [176]. In my view, MacMillan Bloedel is a bit of both. The Court clearly bases its decision in s.96 (MacMillan Bloedel, at para 47). But it also says that the case is best understood “in a broader constitutional context, considering this jurisprudence along with the preamble to the Constitution Act, 1867, the principle of the rule of law, and the central place of superior courts in our system of governance” (MacMillan Bloedel, at para 2). To the extent these principles and s.96 were abridged, the impugned legislative provision was “read down” as “inoperative to deprive the superior court of its jurisdiction to convict the appellant of contempt in this case” (MacMillan Bloedel, at para 43). In MacMillan Bloedel, we have a constitutional text (s.96)–>supported by the Rule of Law (unwritten principle)–>a result that the core of superior court powers were protected in this case. Vavilov falls into this same category. We can see, then, that in some cases a legislative standard of review may be “read down” as a result of the standard of review doctrine spun out from the unwritten principles of legislative intent and the Rule of Law.

The caveat I wish to raise has to do with the Federal Courts. Section 96 does not speak to statutory courts, and in theory, the Federal Courts’ judicial review jurisdiction could be abolished tomorrow unlike the superior courts. All of this, then, would stop at the Federal Courts. But I do not think this is inevitable. Once a statutory court has been made under s.101 of the Constitution Act, 1867, one might make the argument that so long as such a court exists, its powers should be construed as broadly as the powers of a superior court under s.96. But I do not commit to this argument in full, except to say that it makes practical sense to me and would uphold a consistent judicial standard for administrative action across jurisdictions.

At any rate, I think City of Toronto–despite its strong language on unwritten principles–can be reconciled with Vavilov. And at the end of the day, the result may be the same: legislation that undermines an unwritten principle may not be “given effect” according to a doctrinal innovation, even if the legislation is not “invalidated” in a strict sense. This is the best way to undertstand Vavilov‘s standard of review framework.

Tanstaafl

What do a libertarian society and its laws look like? Thoughts on Robert Heinlein’s The Moon Is a Harsh Mistress

I have recently ― and, needless to say, very belatedly, for a self-proclaimed science-fiction fan ― read Robert Heinlein’s The Moon Is a Harsh Mistress. I had been put off of Heinlein by Isaac Asimov’s somewhat harsh take on him in his memoir, I. Asimov, just as I’ve been forever put off Sartre by Boris Vian’s portrayal of him as Jean-Sol Partre. No regrets so far as Sartre is concerned, but I am glad I got over my aversion to Heinlein. The Moon Is a Harsh Mistress is an interesting book. Interesting enough, from a legal perspective, that I think it deserves a post here.

In a nutshell, the story is a retelling of the American Revolution, but set on the Moon, a.k.a. Luna, in 2075-76. The lunar population is oppressed by the Authority that supposedly runs the place on behalf of the Earth’s governing “Federated Nations”, but is mostly content to just plunder it by banning free trade and underpaying for the sole export ― grain (hydroponically grown) ― and overcharging for imports. Otherwise, the “Loonies”, most of whom are either transported convicts ― some actual criminals, others political undesirables ― or descendants of convicts, are largely left to their own devices, and become resentful of the Authority’s interference and exploitation. When the Authority tries to put an end to low-level grumbling, things quickly get out of control. Thanks to their courage, self-reliance, and the good fortune of having a fearsomely brilliant self-aware computer (I suppose we would now say AI) on their side, the rebels prevail, though not without considerable loss in the end.

The interest of such a book is, of course, primarily in its representation of a society very different from ours. (I am deliberately echoing the title of David Friedman’s Legal Systems Very Different from Ours, to which I will return.) The difference has little to do with technology ― indeed, on that front, The Moon Is a Harsh Mistress is just one of the many examples of science fiction Golden Age’s writers’ utter failure to anticipate the advances in computing and telecommunications that have occurred in the last 35 or so years. Heinlein’s Luna is a place of fixed (should one say moonline?) phones! What does make it different from 1960s and 2020s, Earth is its having had to adapt to an unforgiving environment, the virtual impossibility for its inhabitants to return “Earthside” where they are crushed by gravity, their lack and suspicion of organized government, and the sex imbalance that one might expect in a penal colony.

Heinlein’s lunar society is a libertarian one, and it is very odd, and unsettling in some ways ― seemingly high prevalence of illiteracy and very early marriages among others. In other ways, though, it is far ahead not only of the time of the book’s publication (1966) but even of ours, especially in its absolute intolerance of what we today might refer to as #MeToo abuses ― touching a woman without her consent, in however minor a fashion, might get a male Loonie “eliminated” at the nearest airlock. (The ready acceptance of the death penalty is another unsettling aspect of the place.) And while Heinlein’s vocabulary sometimes is antiquated, and he does fall into some annoying tropes more in tune with his times than ours, there is no question that his Loonies also have no time for, and indeed no concept of, racial bigotry ― though I suspect that they’d have no time for latter-day progressive identity politics too.

One might wonder, of course, whether Heinlein’s social prognostication is any more lucid than the technological sort. Perhaps a more or less anarchical society with a sex ratio severely out of whack will actually be a hell hole, not the creative and resilient if also deeply weird kind of place The Moon Is a Harsh Mistress depicts. But you know what? People with more conventional views get their fairy tales told to them by gaggles of politicians at every election campaign. If that has a value, then so does libertarian science-fiction. At least, we’re not about to get a Prime Minister Heinlein imposing his views on the rest of us just because we hated him a little less than the other guy. And the fundamental maxim of lunar libertarianism ― there ain’t no such thing as a free lunch, or tanstaafl for short ― is something that we would all do we well to keep in mind.

Still, I do want to pick a fight with Heinlein on one thing: his views of law and perhaps adjudication. The latter, like most everything else in Luna, is done privately, and often as a matter of improvisation. A citizen is simply asked to “go judge” and accepts, for a fee of course ― tanstaafl ― paid equally by both parties to the dispute. A few make this something like a part-time occupation, but there is no professional judiciary, just as there are no lawyers. And there are no laws. The protagonist speaks derisively of

an earthowrm [who] expects to find a law, a printed law, for every circumstance. Even have laws for private matters such as contracts. Really. If a man’s word isn’t any good, who would contract with him? Doesn’t he have reputation?

He adds that, instead of “printed laws”, Loonies

[h]ave customs [that] aren’t written and aren’t enforced ― or could say they are self-enforcing because are simply way things have to be, conditions being what they are. Could say our customs are natural laws because are way people have to behave to stay alive.

(Note that the lack of articles and pronouns in the quotations isn’t a typo or an accident: the Loonies’ English has a bit of a Russian accent. I wonder if non-Russian speakers will find it annoying, but it is mostly well done and I was rather impressed.)

Heinlein’s protagonist has a good understanding of natural law: see, for example, Randy Barnett’s explanation of natural law as a set of principles such that “[i]f we want persons to be able to pursue happiness while living in society with each other, then they had best adopt and respect a social structure that reflects these principles”. (657; emphasis removed) But he doesn’t seem to understand something that actual natural lawyers have always recognized: the natural law principles aren’t enough. To be useful, at least in a large-scale society, they need to be implemented and given relatively specific shape, which is what “printed”, or at least positive, laws are for. Natural law principles might lead us to the conclusion that we must make up for the losses we negligently cause, but not necessarily tell us what counts as negligent, or how to assess the compensation. Reputation can work to secure the performance of contracts among people who know one another, but it is of less help when we deal with strangers, nor does it necessarily assist us in figuring out what to do about a bargain that has been upended by a change of circumstances.

All that is not to say that the laws must necessarily be the work of a legislature or some other centralized, governmental institution. Perhaps, but that case must be made separately. As Bastiat pointed out in The Law, it is wrong to think that if something is not provided by the state it will not be provided at all, and this may well be as much of a mistake in relation to laws themselves as to other things. Perhaps laws can be efficiently supplied by institutions involved in a competitive marketplace ― indeed, it might not be too much of a stretch to say that the early development of the common law by royal courts competing with other kinds of courts looked a bit like that, though to be sure it wasn’t exactly a free market.

Conversely, though, thinking that there ought to be no state, or a minimal state, or a state that doesn’t seek to monopolize the law, doesn’t mean that one can do without laws ― or without lawyers and professional judges. Even among those of the “legal systems very different from ours” Professor Friedman describes that are not state-based, many rely on professionals for adjudication and sometimes legal representation. It is tempting to think, as Heinlein’s protagonist seems to think, that lawyers and professional judges are only a drain on society, but they ― like all other specialists ― are only a manifestation of the division of labour. If laws are necessary, and they are, and complicated, and they are too, then it is more efficient to let them be handled by people who specialize in this. On this point, Heinlein, or at least his character, fails to apply their own cardinal rule: one cannot have the benefits of a sophisticated legal system without some inconvenience: tanstaafl.

This critique notwithstanding, I do think that The Moon Is a Harsh Mistress is an interesting and worthwhile attempt to think through the working of a libertarian society and its (inevitable?) conflict with a statist neighbour. It might come short in dealing with any number of specific aspects of these problems, but the attempt is hardly less valuable despite this. So let me conclude by quoting the appeal of another of the principal characters to the lunar constitutional convention ― it is one that we would do well to take seriously in our own thinking about constitutions:

[I]n writing your constitution let me invite attention to the wonderful virtues of the negative! Accentuate the negative! Let your document be studded with things the government is forever forbidden to do. No conscript armies … no interference however slight with freedom of press, or speech, or travel, or assembly, or of religion, or of instruction, or communication, or occupation … no involuntary taxation. … What I fear most are affirmative actions of sober and well-intentioned men, granting to government powers to do something that appears to need doing.

Interpretation and the Value of Law

Why the interpretation of law must strive for objectivity, not pre-determined outcomes

This post is co-written with Mark Mancini

We write in defence of a simple proposition: there is a value in ordering relations among individuals in large communities through law, rather than through other modes of exercising authority, and this value is not reducible to the goodness―by whatever metric―of the content of the law. Of course, good law is better than bad law, but law as a form, as the institution that allows individuals, groups, and organizations to interact with one another in predictable ways while constraining what those with power can do to those without, is precious quite apart from its substantive merits.

Law is the only mediator we have in a pluralistic society where there is limited agreement on foundational moral values, and still less on the best ways of giving them effect. Law records such agreement as exists for the time being, while also exposing this record to critique and providing a focus for efforts at reform. It is neither sacred nor permanent, but it is a common point of reference for the time being for people who disagree, sometimes radically, about the ways in which it should be changed. These are valuable functions regardless of whether one agrees with the substance of the law as it stands from time to time. Increasingly, however, certain schools of thought tend to deny that law has any value apart from its utility as a means to some political or another. We regard this as a dangerous development.

Now, to serve as the common point of reference in the face of widespread disagreement about values and policies, law must have some characteristics beyond its substantive political content; it must contain other features, often described in the literature on the Rule of Law. For example, it must be public, sufficiently certain, and stable. Of course, law actually enacted by constitution-makers, legislators, or officials exercising delegated authority, or articulated by common law courts, sometimes falls short of the ideals of clarity or certainty. Sometimes the words of this law will be broad, dynamic, and open-textured. But for law to fulfil its function, indeed to be law at all, it must have a fixed content independent of the views and preferences of those to whom the law applies. To the extent this understanding of law is now considered unorthodox, we hope to correct the record.

When law as enacted or articulated is not self-explanatory, it must be interpreted, ultimately by judges. The orthodox view, which we regard as correct, however old-fashioned it may seem, is that judges must do this by applying legal tools and techniques. Ideally, these must themselves be well-known, certain, and stable, although we acknowledge that the law of interpretation has often failed to live up to this ideal, even if the strongest critiques of legal interpretation as radically indeterminate have always been overstated. Judges will sometimes develop legal doctrine beyond what is apparent on the face of a constitutional or statutory text, engaging in the activity American scholars describe as construction. They may also distinguish or even overrule precedents. In doing so, however, judges must remain faithful to the principles and purposes of the law as they have found it enacted or articulated by the institutions―above all, the democratic institutions―our polities have authorized to resolve, for the time being, disagreements among their members.

Those who have come to reject the value of the law as law often regard legal interpretation as the weakest link which they can break to subvert the law’s function as the common guide and reference for people who disagree with one another. They want, instead, to use interpretation to impose values and policies that are not in the law as enacted or articulated, and which are, instead, those of the parasiti curiarum who seek to give the courts this inflated, and fatally distorted, sense of their role.

These parasiti belong to schools of thought―and political factions―that are, ostensibly, fiercely opposed to one another. On the one hand, there are those who favour “living tree” interpretation in constitutional law and freewheeling pragmatism in statutory interpretation, aiming to keep up with ever-changing notions of social justice by means of “progressive” and “modern” interpretations that update the law from time-to-time. On the other, there are those who demand that constitutions and statutes be read so as to promote a religiously-infused “common good”. The substantive political commitments of these schools are far apart.

Yet the two camps share one key belief: they both see law as merely an instrument with which to achieve their preferred political aims. Both are firmly convinced that it is legitimate to impose their respective hierarchy of values on society through judicial and administrative fiat, and urge judges and administrators to do just that, regardless of whether the constitutional and statutory texts being interpreted in fact embody these values. Indeed, they also share a certain legal and linguistic nihilism that causes them to deny that a legal text can have a meaning independent of its interpreter’s will. As a result, they are quite happy to use interpretation to reverse-engineer the meaning of laws in accordance with their preferences, regardless of these laws’ text or history and of the longstanding interpretive techniques.

For our part, we maintain that the judges’ interpretive role is not to impose some pre-determined set of values onto the law but to seek out the moral and policy choices that are embedded in the law as they find it. Judges do so by—to the extent possible—making the law’s text the object of interpretation. Even in the “construction zone”, where they apply legal texts to new situations or develop doctrine to apply vague textual commands, judges must seek, in good faith, to implement the choices made by those who made the law. At all times, they must strive to put aside their own moral and policy views about what the law should be, because they are not the ones charged with resolving moral and policy disagreements in our constitutional systems.

This is a pragmatic as well as a dogmatic position. Judges lack not only the legitimacy but also the ability to make moral and policy choices. Living constitutionalism, for example, asks judges to interpret the Constitution to take account of the moral views or practical needs of a particular political community at a particular point in time. This is impossible, even putting to one side the difficulties in defining the relevant community (especially in a federation such as Canada!), and even if members of political communities did not, in fact, sharply disagree with one another. Even politicians, with their access to pollsters, constant communication with their constituents, and the incentives provided by regular elections are not especially good at assessing the voters’ values and needs. Judges could not succeed at this, and should not try.

More importantly, though, living constitutionalism asks judges to change or override the meaning of the law as written in the name of extraneous moral principles or policy preferences, which it purports to locate in the political community. Pragmatism in statutory interpretation does much the same thing. This approach is problematic enough when it comes to ordinary legislation, because it arrogates the process of amendment to judges. It is doubly troubling in the constitutional realm: not only does it arrogate the process of amendment to judges, but it undermines the purpose of Constitutions—to place certain structural choices about institutions, as well as certain individual rights and freedoms, beyond the reach of the ebb and flow of divided public opinion, leaving their amendment to more consensual procedures.

Unfortunately, this problem is not confined to one side of the political spectrum. A new illiberal strain of legal thought has risen on the right. Driven by Adrian Vermeule’s theory of “common good constitutionalism”, the idea is that conservatives should adopt a style of constitutional interpretation that would “involve officials reading vague clauses in an openly morally infused way … to reach determinations consistent with the common good.” The moral principles that would guide this endeavour are those drawn, above all, from the Catholic natural law tradition; the definition of the common good to which judges would advert is thus one which is, to put it mildly, not universally shared in pluralistic societies.   

This attempt by those on the right to reverse-engineer such an interpretive theory should be rejected just as firmly as living constitutionalism, which it mimics. For Professor Vermeule, for example, the very fact that progressives have used constitutional law itself to achieve their aims justifies a conservative attempt, not to put an end to such tactics, but to resort to them, albeit in the service of a different set of values. Like the progressives, he and his disciples look to extraneous moral and policy commitments as guides for legal interpretation, disregarding the law’s role as the authoritative record of the settlement of disagreement and point of reference for citizens whose views of what is good and just differ, seeking to impose pre-ordained results regardless of whether they are consistent with what the law actually is. It too regards separation of powers as passé, a relic of the Enlightenment’s mistakes and an obstacle in the path of those who know better than voters, constitutional framers, and legislators.

Indeed, not only the substance but the language and specific proposals of the two anti-liberal camps resemble one another. In a striking parallel with Justice Abella’s embrace of the courts as the “final adjudicator of which contested values in a society should triumph”, the reactionaries want judges to exhibit “a candid willingness to ‘legislate morality’ because one of if its core premises is that ‘promotion of morality is a core and legitimate function of authority’ given its link to securing the common good.” And, just as  Justice Abella  wants to upturn settled jurisprudence (except, of course, when she doesn’t) and “give benediction” to new constitutional doctrines, common good constitutionalism is skeptical about aspects of constitutional law that have been taken as a given for generations, including fundamental freedoms and structural limits on the accumulation of power within a single institution. Perhaps especially salient is the embrace by both the progressives and the reactionaries of the administrative state, and the corresponding rejection of the separation of powers. In other words, for both camps, established limits on actors in the system are of no moment if they stand in the way of certain political goals.

Now, to be charitable, it is possible that the illiberal thinkers are simply seeking to discover whether certain values are embedded in particular texts. Maybe it is true, for example, that the “peace, order, and good government” power reflects certain values that coincide with the political preferences of those on the right, or for that matter on the left. But this cannot be stipulated: those making such claims must demonstrate that general constitutional language―cabined and explained as it is by enumerated and limited grants of power―really carries the meaning they ascribe to it. Such demonstrations tend to be lacking, and the claims are often implausible. The “peace, order, and good government” language, for example, is only relevant when it comes to the federal heads of power; is it possible that the federal, but not the provincial, powers in the Canadian constitution reflect a “common good” view of government? Such questions abound, and in truth we suspect that the project pursued by the majority of those for whom concepts such as the “common good” or the “living tree” must guide legal interpretation has little to do with objective analysis and discovery.

Before concluding, a few words are in order about what we do not argue here. First, we do not claim that law and politics, or law and morality, are entirely separate realms. Obviously, law is shaped by politics: the making of constitutions and of legislation is a political process. It involves heated debate about moral and policy considerations, with which―one hopes―constitutional framers and legislatures wrestle. The outcome of these political processes is then subject to political critique, which again will feature arguments sourced in morality and policy. In a democracy, the legal settlements are only ever provisional, although some require greater degrees of consensus than others to displace.

And even at the stage of interpretation, it would be impossible to say that judges are merely robots mechanically following prescribed algorithms. Judges are influenced by their own experiences, which is perhaps to some extent for the better; they aren’t always able to shed their pre-dispositions, though this is surely generally to the worse. Indeed, it is important to recall that constitution-makers and legislators often invite judges to engage in moral and practical reasoning by appealing to concepts such as reasonableness in the provisions they enact. This is not always an appropriate legislative choice, but it is not the judges who are to blame for it.

That said, when it comes to interpretation, there should be a separation between law and politics. That is, interpretation must be guided by rules and doctrines that help judges to avoid, as much as humanly possible, making decisions on their own say-so, arrogating to themselves the roles of legislators to decide what laws should be under the pretense of declaring what they mean. This is admittedly a matter of degree. No one should insist that judges unduly fetter the natural import of words they are asked to interpret by insisting on so-called “strict constructions,” or read appeals to their own moral and practical reasoning as having been fully determined by the law-maker. Nonetheless, the judicial task should not be unbounded, with no restriction on the sorts of moral considerations judges are equipped to take into account.

In sum, we propose not to purge the law of moral and policy considerations, but to re-commit to the view that considerations embedded in legal texts adopted by democratic institutions after proper debate and subject to revision by the same institutions are the ones that ought to matter in legal interpretation. They, that is, rather than the real or hypothetical values and needs of contemporary society, let alone the conjectures of 16th century scholars from the University of Salamanca.

This upholds the authority of democratic institutions while calling on the courts to do what they ought to be able to do well: apply legal skills to reading and understanding legal texts. No less importantly, this allows the law itself to perform its unique and precious function, that of providing a touchstone for the diverse members of pluralistic communities, who disagree with one another’s moral and political views, yet still need a framework within which disagreements can be managed and, more importantly, they can simply get on with their lives. The illiberal attempts to subvert the law’s ability to do so, in the pursuit of victories which would come at the expense of citizens’ personal and political freedom, are a cause for concern, and for resistance.

Putting Stare Decisis Together Again

Originalists and living constitutionalists alike have good Rule of Law reasons for being wary of appeals to reinvigorate stare decisis

It is hardly news for those who follow Canadian public law that the Supreme Court tends to have little regard for precedent. Indeed, to the surprise of most people and the chagrin of many, it even freed lower courts to disregard its own precedents, in some circumstances, in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. For many people, this lack of regard for stare decisis is part of a broader pattern of erosion of the Rule of Law. Dwight Newman and, separately, Brian Bird and Michael Bookman, made this argument in their respective contributions to the collection of essays/special issue of the Supreme Court Law Review on threats to the Rule of Law in Canada edited by Maxime St-Hilaire and Joana Baron in 2019.

The relationship between stare decisis, the Rule of Law, and the desire to do justice in particular cases and to improve the law going forward is not only a source of difficulties in Canada, however. So tomorrow (December 15) at 2PM Eastern, a panel of the Global Summit, an online conference organized by Richard Albert, will try to shed some light on it with participants from the United States (Jeffrey Pojanowski and Marc DeGirolami), and Australia (Lisa Burton Crawford), as well as yours truly. Our chair will be an Italian colleague, Andrea Pin. This should be a lot of fun, and the other participants are all first-magnitude stars. (In case you’re wondering how they let me in ― well, I helped Prof. Pin put it together, so they couldn’t conveniently boot me out!)

The proceedings will, naturally for these plague times, be on Zoom. You can register here ― it’s free! My understanding is that they will be recorded and will, eventually be made available to all. These things tend to take some time though, and are bound to with an event as big as the Global Summit, so I encourage you to watch tomorrow if you can. And, to convince you to give it a go, here is a flavour of own presentation.

Critics of the lack of respect for precedent in Canadian public law tend to argue that enough is enough, and the Supreme Court should go back to a much more robust ― and consistent ― application of stare decisis. My argument is that this is too simple, too idealistic a response. In a perfect world where judges had generally been committed to the Rule of Law, unwavering respect for precedent may well be what an ongoing commitment to the Rule of Law requires. But the world of Canadian public law is far from being perfect in this way. Much of this law suffers from deep Rule of Law problems, some of which I described in my own contribution to the St-Hilaire & Baron volume. As a result, while I share the desire to put stare decisis together again, I argue that this operation will be a delicate one, and must be careful and somewhat selective.

One issue which I’ll address here ― there will be more in my talk (assuming I don’t run out of time, that is!) ― is the concern that respect for precedent may force courts to apply something other than the correct legal rule, be it constitutional, statutory or, arguably, even a common law principle. Lord Sankey, perhaps the chief ― if also most misunderstood ― authority on constitutional interpretation in Canada describes the issue eloquently in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58. Pointing out that “[u]nder our system, decided cases effectively construe the words” of enactments, including constitutional enactments, Lord Sankey highlights

a danger that in the course of this process the terms of the statute may come to be unduly extended and attention may be diverted from what has been enacted to what has been judicially said about the enactment. To borrow an analogy; there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make any distinction between the two, and yet at the one end of the range the colour may be white, and at the other end of the range black. (DLR 64)

Lord Sankey’s concerns in the Aeronautics Reference are those of an originalist avant la lettre: “[t]he process of interpretation as the years go on”, he warned,

ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction … should impose a new and different contract upon the federating bodies.

Some prominent academic originalist voices have echoed this belief, notably Gary Lawson, Randy Barnett, and Amy Coney Barrett (back when she was still in academia). However, they are not alone in worrying about precedent standing in the way of an accurate application of the law. Debra Parkes raises the same concern from a Canadian living constitutionalist perspective: “[t]he entrenchment of the Canadian Charter of Rights and Freedoms in 1982 has arguably strengthened the case for overruling earlier decisions that are inconsistent with the evolving interpretation of various Charter rights”. (137) Similarly, the late Joseph Arvay and his co-authors have argued that “it is the role and duty of the [Supreme] Court to provide what it believes to be a correct interpretation of the Charter, even if that involves admitting long-standing and oft-repeated past judicial error”. (69)

Of course, originalists or those who are chiefly concerned with the stability of the law may view the living constitutionalist position as simply empowering judges to legislate their particular preferences from the bench. And, admittedly, some living constitutionalists seem to seek a sort of permanent revolution in constitutional law. Mr Avray and his co-authors wrote that “an examination of the role of stare decisis in Charter litigation reveals some transformative Charter moments lost”, (62; emphasis in the original) suggesting that they might be expecting the courts to change society rather than be its reflection, as living constitutionalism seems to suggest. I personally think that this tension between applying the law, even an ever-evolving law, and transforming it is fatal to living constitutionalism’s claim to be a sustainable approach to constitutional interpretation. But let me put that aside for the purposes of this post (and of my talk tomorrow).

Here, I will take living constitutionalism at its word, as an approach to constitutional interpretation that holds that the law is shaped by the needs and values of society as they stand from time to time. On this view, updating legal doctrine to align it with these needs and values as they happen to stand now is not exercise of will, but simply what the Rule of Law requires. Living constitutionalists saying “this precedent no longer reflects the values of Canadian society and must therefore be discarded” are no different, in their relationship to the Rule of Law, from originalists saying “this precedent is inconsistent with the original public meaning of the constitutional text, and must therefore be discarded”.

Call this, if you will, the horseshoe theory of constitutional stare decisis. Radical originalists and radical living constitutionalists agree, at least at the level of broad principle. In practice, there may still be substantial disagreement between those originalists who, like Prof. Barnett, distinguish constitutional interpretation and construction, and see a role for stare decisis in the latter, and living constitutionalists (and those originalists) for whom all constitutional questions are essentially similar in being determined by the constitution itself. But, that important detail aside, both sides of the horseshoe agree that the constitution’s meaning cannot be superseded by judicial interpretation, and remains directly binding on courts, regardless of what their predecessors may have said about it.

From my own originalist perch, I agree with this view. The Rule of Law concerns about the stability of legal doctrine are serious, of course. But the concern on the other side of the scale is no less based on the Rule of Law. The issue is with what Lon Fuller called “congruence” between the law on the books and the law as it is actually applied. (I wrote about this here.) Law cannot guide behaviour ― and thus play its moral role in providing a secure environment for citizens and establishing a mutually respectful relationship between the citizens and the state ― if it is not applied in accordance with its terms. Officials, including judges, who do not apply the law as it stands are engaged in nothing less than “lawless application of the law”. In my view, lawlessness cannot become the foundation of a Rule-of-Law compliant law; it must be expunged for our legal system to have a claim to the kind of authority that Fuller envisions.

As mentioned, this is only a preview. In my talk ― and, hopefully, in a paper that will come out of it ― I will try to address a couple of other reasons why I think it is a mistake to simply insist that the Supreme Court go back to upholding precedents. The problems with the Rule of Law in Canadian public law run much deeper than a lack of regard for stare decisis, and addressing this issue in isolation will not really resolve them. I hope that you can “come” to the talk, and that we can continue this discussion there!

The Sex Appeal of Power

I’ve noticed a disturbing trend recently, in both politics and law. The idea is what I call the “one-way ratchet fallacy” of power. It goes like this: when an institution or entity obtains power of some kind, that power will only ever be used to fulfill certain goals rather than others. That is, people might assume that power will always run in favour of the policy outcomes they like. This is, in a word, naïve—but at worst, it is a gross misunderstanding of the problems with power. The increasing tendency to think this way only reinforces the need for law and custom to limit, rather than unleash, power.

Two examples come to mind that illustrate this phenomenon. The first is an issue near and dear to my heart, and that issue is constitutional interpretation. In Canada, a major misunderstanding of the Persons Case holds that Canada’s Constitution is a “living tree”—in other words, the Constitution must “grow” to fit the emerging realities of today’s society. Under this theory, judges in a system of strong judicial review decide when and in what direction the Constitution should evolve.

Putting aside the fact that only some work has been done to actually provide rules to govern the “living tree” theory, and also putting aside the fact that the Supreme Court has never provided such guidance (and in fact does not consistently endorse this theory), there is a certain “ideological sex appeal” to living constitutionalism, as Chief Justice Rehnquist once said. That appeal is that the law and the Constitution can be used to achieve policy outcomes that one likes, ensuring that the Constitution protects certain outcomes that are consistent with “evolving standards of decency” (to borrow an American phrase). Unsurprisingly, progressives see the potential in living constitutionalism. It is a good way to ensure the Constitution keeps up with modern times and, potentially, modern progressive causes.

But, there is a major risk that should cause those who endorse living constitutionalism to pause. Living constitutionalism contains within it a dangerous assumption: that judges will always be on the side of angels. The risk was put eloquently by Justice David Stratas of the Federal Court of Appeal in a talk a few years ago. The general gist of it is this: imagine, some years from now (or maybe we do not even need to imagine) that there is some existential crisis affecting our society. Courts are asked to deal with a legal issue arising out of that crisis. Would we rather the court decide the matter according to settled doctrine, painstakingly developed over generations? Or on the personal say-so of judges? There is a risk that the personal say-so of a judge might run in a direction that progressives would not like. Basically, without rules governing the exercise of legal power by judges, it’s a coin flip in terms of result.

Lest anyone think that this is an inherent flaw of progressives, those on the right can also fall victim to the alluring sex appeal of power. A good example is the recent Trump administration move to “ban” government contracting and other relations with businesses and others that offer some critical race theory training. Now, it is more than fair to say there are major debates raging right now about critical race theory. That’s a somewhat separate issue. What is important here is that the power of the government is being used to root out certain ideas rather than others.

This is a different issue from living constitutionalism, since here it could be argued that governments have the power to implement their view of the “public good;” law, by its nature, is supposed to be governed by rules that are as close to “neutral” as possible. So those on the right might feel emboldened by Trump’s move because it implements their view of the good. But once the precedent is set that governments can police ideology by picking winners and losers in business, and ferret out views it doesn’t like from the inside, it is just as possible that a future administration could fall victim to the sex appeal of power in the opposite direction. Power can be used, in the future, to limit the spread of ideas that those on the right might find appealing: free market economics, personal liberty, whatever it is.

While the situation is admittedly slightly different than the living constitutionalism example, this situation calls for a political custom surrounding the exercise of power. As Dicey said, laws are not enough; there must be a “spirit of legality” that governs the exercise of power. This is understood as a reference to customary norms governing the exercise of power. Surely, one custom might be that governments shouldn’t pick winners and losers based on ideology (within reason).

The living constitution example and the critical race theory example illustrate the sex appeal of power. It can be exercised in a certain political direction, to be sure. And it might feel good for power to be exercised to the benefit of certain political factions. But the more power is granted to certain actors, and the more that laws and customs liberate that power, the more we might expect the one-way ratchet to keep ratcheting up. In politics, this might be one thing. But in law—especially when it comes to constitutional interpretation—the sex appeal of power is positively dangerous.

Antigone in Hamilton

The confrontation between New Zealand legal system and a family trying to bury a dead husband/father is eerily like Sophocles’ tragedy

It’s the story of wanting to mourn and bury a family member, and being prevented from doing so by law, perhaps not an unreasonable law. It’s the story of breaking the law to do what one thinks is right, and of not only being punished for it but being scolded by a man self-righteously posing as the voice of his people. It’s an old story. It’s one of the oldest stories. It’s a story that’s 2500 years old.

No, wait. It’s a new story. It just happened in Hamilton. (The New Zealand Hamilton, that is.) Stuff reports that a mother and her children “had flown over from Brisbane after the children’s father suffered a stroke and died on July 20. … She said the children had watched their father take his last breaths on a video call”. On arrival in New Zealand, they were put in quarantine. They applied for a compassionate exemption to attend the funeral, but their application was denied on the basis that “their ‘circumstances were not exceptional'”. So they escaped. The mother and three children were quickly captured, but a 17-year-old boy made it from Hamilton to Auckland, and “was able to spend between three and four hours with his father’s body before he negotiated with police and was detained”. And hence the grandstanding in Hamilton Youth Court: 

All appeared in front of Judge Noel Cocurullo, who said that New Zealanders were “sick and tired” of quarantine breaches. “The New Zealand public would be gutted at your behaviour,” he told the family. “You know the rules required of you coming into the country. It’s most important you comply with the rules.”

The mother, though, is not impressed with this. She “told Stuff ‘[she] was doing what any other mother would have done for their children'”.

I’m not sure about “any”, but as Sophocles knew, she certainly has a point. He tells of Creon, the king of Thebes, prohibiting anyone on pain of death from giving the funeral rites to Polyneikes, who tried to bring an invading foreign army to the city. Polyneikes’ sister Antigone defied Creon’s edict and tried to bury her brother.

The resulting conversions, although fortunately not the ultimate outcome (spoiler alert: it’s a tragedy, so everybody dies) foreshadow the recent events quite uncannily. Creon, like Justice Cocurullo appeals to the public authority of the laws, and Antigone, like the mother here, trumps it with that of natural, pre-political obligation:

Creon: Knew’st thou the edicts which forbade these things?

Antigone: I knew them. Could I fail? Full clear were they.

Creon: And thou did’st dare to disobey these laws?

⁠Antigone: Yes, for it was not Zeus who gave them forth,⁠
Nor Justice, dwelling with the Gods below,
Who traced these laws for all the sons of men;
Nor did I deem thy edicts strong enough,
That thou, a mortal man, should’st over-pass
The unwritten laws of God that know not change.
They are not of to-day nor yesterday,
But live for ever, nor can man assign
When first they sprang to being. Not through fear
Of any man’s resolve was I prepared
Before the Gods to bear the penalty
Of sinning against these.

And Creon, like Justice Cocurullo, insists that the people are with him, not with the one who defies him. She, though, begs to differ:

Creon: Of all the race of Cadmos thou alone
Look’st thus upon the deed.

Antigone: ⁠They see it too
As I do, but their tongue is tied for thee.

Creon: Art not ashamed against their thoughts to think?⁠

Antig: There is nought base in honouring our own blood.

And, is it turns out, it is probably Antigone who is right about the state of public opinion. Creon’s son and Antigone’s fiancé, Haemon, challenges his father:

Haemon: ‘Tis my lot to watch
What each man says or does, or blames in thee,
For dread thy face to one of low estate,⁠
Who speaks what thou wilt not rejoice to hear.
But I can hear the things in darkness said,
Ηοw the whole city wails this maiden’s fate,

I won’t pretend to know where the state of public opinion in New Zealand lies on this story. And, wherever it lies, this should not matter for Justice Cocurullo’s verdict. We have the advantage of separation of powers over the Thebans, and this means that our judges must apply the law as it is ― and it is, then, for the Crown and its responsible advisors to exercise the prerogative of mercy in the appropriate cases. I won’t even pretend to say whether this is such a case.

But what I think I can say is that Justice Cocurullo, and other judges ― not just in New Zealand ― should not be so quick to saddle their moral high horse. Another, more recent work of literature comes to mind ― Patrick O’Brian’s Desolation Island (one of the novels in the Master and Commander series), of all things, where Dr Maturin, I believe, has this to say:

judges … not only are … subjected to the evil influence of authority but also to that of righteous indignation, which is even more deleterious. Those who judge and sentence criminals address them with an unbridled, vindictive righteousness that would be excessive in an archangel and that is indecent to the highest degree in one sinner speaking to another, and he defenceless. Righteous indignation every day, and publicly applauded!

And if there is one thing worse still than righteous indignation on own’s behalf, it is that on behalf of others ― who, as often as not, will not actually share in it. That is as true now as it was 2500 years ago.