Can the Viceroy Do Wrong?

Radio-Canada reports that Québec’s former Lieutenant-Governor, Lise Thibault, is trying to avoid having to stand trial on charges of fraud, forgery, and breach of trust, by invoking the common law rule that the Queen can do no wrong. As her lawyer puts it, criminal proceedings oppose the sovereign and the subject, and the sovereign cannot possibly sue herself. And since the charges against Mrs. Thibault relate to her time in office as the Queen’s representative in Québec, that’s what would happen if the case is allowed to go ahead.

Mrs. Thibault’s previous lawyer is apparently skeptical of the odds of her motion succeeding. So is professor Henri Brun, from Laval, whom Radio-Canada quotes saying that the principle applied in civil law―75 years ago―but criminal law is different. “As soon as a public officer commits a criminal act, he is no longer acting within his mandate; he cannot hide behind the government, behind the state” (translation mine).

That seems a little too quick. My own (admittedly quick and probably cursory) research shows that the rule that the Queen―or King―can do no wrong is, in principle, one of civil as well as one of criminal law. The Queen can do no criminal wrong, just as she can do no civil wrong. That’s the traditional common law rule, as it stood in, say, Blackstone’s time. But its import is limited in two important ways.

One is that mentioned by prof. Brun – public officers―or, to use older language, the Crown’s servants―can be sued in their personal capacity for committing criminal or tortious acts. But the question, it seems to me, is whether a Lieutenant-Governor is a public officer. This is not an area in which I am very knowledgeable, but I think that the Queen herself is not―she is not a servant of the Crown. That her servants can be criminally liable does not mean that she can. Mrs. Thibault’s argument is that she is in the same position―that she is, as it were, the Queen’s alter ego rather than her servant. I do not know whether that is correct.

The second limitation on the rule that the Queen can do no wrong has come mostly from statutes adopted by all (to the best of my knowledge) common law jurisdictions, allowing lawsuits against the Crown itself as if it were an ordinary person. Courts too have chipped away at the Crown’s immunity. But these developments, both statutory and common law, have concerned civil proceedings, not criminal.  The Criminal Code, for example, does not contain a provision making it applicable to the Crown.

So if the Lieutenant-Governor is more than a mere servant of the Crown, but rather its full-blooded personification, Mrs. Thibault might have a case. If the question has never been decided though, there are surely very good reasons to opt for a restrictive interpretation of what the Crown really is. “The Queen can do no wrong” is an anachronistic rule, and its development over the last century has been a course of consistent narrowing of its ambit.

Indeed, even if there is precedent standing for the proposition that the rule protects the Lieutenant-Governor from criminal liability, the courts might want to overturn it.

Although there is something worrying in courts abolishing defences that shield the accused from liability, which is necessarily retroactive as to the accused in whose case it happens, they have sometimes done it. Two examples are the British decision of R. v. R., [1992] 1 A.C. 599, in which the House of Lords abolished the common law rule according to which a husband could not be guilty of rape against his wife, and the American case of Rogers v. Tennessee, 532 U.S. 541 (2001), in which a sharply divided Supreme Court did away with the rule pursuant to which an accused could not be guilty of murder if the victim died more that one year and one day after the accused injured him, even though the injuries were the cause of the death. The grounds for these two rules disappeared thanks to the evolution of social morality in the first case and of medical science in the second, so that despite a certain queasiness, courts felt themselves justified in changing the common law to reflect these developments.

The common law rule that “the Queen can do no wrong” is arguably ripe for judicial intervention. Not perhaps in civil matters, where legislatures have made their own choices, which courts must respect, especially since state liability has considerable policy implications which courts might not be able to grasp. But in the narrow field of criminal offences committed by viceroys, these considerations do not apply, and there is no reason for the courts to stay their hand.

Law Like Love

“What is law like? What can we compare it with in order to illuminate its character and suggest answers to some of the perennial questions of jurisprudence?”

That’s the opening of Jeremy Waldron’s “Planning for Legality,” 109 Mich. L. Rev. 883 (2010), a review of Scott Shapiro’s book Legality. When I read it recently, it immediately reminded me of W.H. Auden’s magnificent poem, “Law Like Love,” where Auden suggests that the question is perhaps absurd, but irresistible. Here’s a recording of Auden reading it.

I don’t know if Waldron’s line is a deliberate allusion. But my guess is that it is not. Law review articles, after all, are not Umberto Eco’s novels. They deal in footnotes, not allusions. If I’m right about this, I think it confirms just how brilliant Auden’s poem is – not only as a matter of literary merit, but also in that it is the best summary of the field of legal philosophy ever produced.

Drop That Gun! (But Keep the Bullets)

The Superior Court of Ontario has recently delivered its decision in The Queen v. Montague, 2012 ONSC 2300, an interesting case at the intersection of the topics property rights, and gun rights, about which I wrote here and here. In fact, in the latter post, I had mentioned a previous decision in this case, by the Ontario Court of Appeal, rejecting a challenge to the constitutionality of Canadian firearms law based mostly on the English Bill of Rights, 1689. The accused, William and Donna Montague (William, mostly), had been found guilty of a variety of firearms-related offences; they had deliberately let their licences and registration for their firearms lapse. Hundreds of weapons and tens of thousands of rounds of ammunition had been be seized at their residence. Following their convictions, the Crown applied for forfeiture of the weapons and ammunition, worth over $100,000, pursuant to par. 491(1)(b) of the Criminal Code, which provides that firearms and ammunition (inter alia) involved in or which are the subject matter of an offence, if it has been seized, “is for forfeited to Her Majesty and shall be disposed of as the Attorney General directs.”

The Montagues argued that the application of this provision, at least in their circumstances, would infringe their property rights protected by the par. 1(a) of the Canadian Bill of Rights. In their view, forfeiture – that is, a form of expropriation without compensation – should not be imposed automatically and for an offence which is a malum prohibitum rather than a malum in se. In such cases, “due process of law” – which the Canadian Bill of Rights makes a condition on any deprivation of property – requires a judge to have discretion to order that the property subject to par. 491(1)(b) of the Criminal Code be disposed of otherwise than by forfeiture (for example by transferring legal title to it to a trustee who would sell it for the former owners’ benefit). They also raised, in passing it would seem, ss. 7 and 12 of the Charter.

Justice Wright’s reasons are somewhat muddled―indeed it is not quite clear where he is summarizing the Crown’s position and where he is giving his own analysis of the issue. However, his conclusion is that “in a proper case s. 491(1)(b) of the Criminal Code might well be ‘construed and applied as not to abrogate, abridge, or infringe or to authorize the abrogation, abridgement or infringement’  of the accused’s right to enjoyment of property,” as s. 2 of the Canadian Bill of Rights requires. What this seems to mean is not that courts should only apply the Canadian Bill of Rights “in a proper case”―it’s a law after all, and must always be applied―but rather that “in a proper case” a court might exercise its discretion in the way suggested by the Montagues.

I doubt the soundness of this conclusion as a matter of black-letter law. As either Justice Wright or the Crown – unfortunately it is not clear which – notes, a notion of “substantive due process” has not, so far, been recognized in Canadian law. (Though of course “principles of fundamental justice” in s. 7 of the Charter are very substantive indeed. Yet the Supreme Court, in deciding, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that they were so, made much of the fact that the Charter‘s drafters did not use the expression “due process”.)

As a matter of legal philosophy things are a bit more complicated. Jeremy Waldron argues persuasively that hearings and an opportunity to make submissions are a necessary part of any legal regime worth the name. Yet I do not think that this condemns automatic sanctions, be they forfeitures or―in different cases – mandatory prison sentences (such as the mandatory term of life imprisonment which the Criminal Code imposes for murder), on the basis that such sanctions are not properly legal. I do not think that every legal consequence of every fact need be up for argument, so long as the actual existence of the fact is required to be established in accordance with a good legal procedure. Such sanctions might be too harsh, but that is a different story. The claim that the concept of law or the Rule of Law has substantive (and not only formal and procedural) qualifications is very controversial; I, for one, do not buy it.

Be that as it may, Justice Wright refuses to exercise his new-found discretion to save the Montagues from the forfeiture of their firearms:

[41]      The firearms do not present a case where a citizen has unwittingly become embroiled in bureaucratic “red tape”.  They do not present a case where the forfeiture is so overwhelmingly disproportional to the offense that justice cries out for a remedy.

[42]      The firearms present a case where a knowledgeable individual cold bloodedly and with knowledge of the potential consequences deliberately and publicly broke the law. Courts cannot stand by and appear to condone such behavior. Civil Society is entitled to defend itself. Civil disobedience as a political technique is only morally justifiable and thus eligible for the protection of the court where the perpetrator has been denied access to the political institutions of the nation. This was the case at the time of Gandhi. This was the case at the time of Martin Luther King, Jr. They had no alternative other than violence which they both eschewed. Notwithstanding this, both of these individuals understood the needs of society and accepted the consequences of their civil disobedience.

He does exercise it, however, to reject the forfeiture of some of the ammunition, on the ground that it was not actually illegally stored. The jury found otherwise – but that, he says, is because they were not informed of the relevant regulations at trial. I’m not sure about the propriety of this intervention, even assuming that Justice Wright is correct about having the necessary discretion. I do not know enough, really, to form an opinion on this point. If you do, I would love to hear yours.

A Pull Towards Goodness?

WARNING: This post is an adapted version of a passage in my “candidacy paper,” which is meant eventually to be part of the first chapter of my dissertation. Caveat lector.

***

Explaining their decisions is an important part of the judges’ work. It is valuable for all sorts of reasons. It forces judges to be honest – not just with the parties and their colleagues, but also, and perhaps most importantly, with themselves – about the issues at stake and the reasons that lead them to resolve the issues this way or that. It reassures the parties that the court has listened to their arguments and given them some thought, even if it ultimately rejected them. It makes judicial decisions more public, more transparent, and more amenable to criticism (and eventually reform). In these different ways it also disciplines the judges – it forces them to produce decisions that are more legally sound, because they address the relevant legal issues and materials. But could it do even more?

Some theorists, notably Lon Fuller, have argued reason-giving can make judicial decisions not merely legally sounder, but also better on some substantive criterion. As Fuller wrote in the context of his famous debate with H.L.A. Hart, “when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness.”  (Lon L. Fuller, “Positivism and Fidelity to Law-A Reply to Professor Hart”, (1958) 71 Harv. L. Rev. 630, 636 .) In a similar vein, in an interesting (and/but incredibly romantic) essay on the role of the judge in relation to the corpus juris, especially in a common law system, Sarah M.R. Cravens contends that, as part of “virtuous judging,” reason-giving can help “take decision-making beyond simply the legally correct” and “is a component of a larger cycle that defines, develops, and achieves justice.” (1643)

Is that right? I am very skeptical, despite my sympathy for the view of law, and especially the common law, as inherently valuable and good. Fuller might just be right that reason-giving cannot lead “toward a more perfect realization of iniquity,” (636) because iniquity dares not speak its name, although we know that it does sometimes, as for example in Justice Holmes’ opinion in Buck v. Bell, which I described as “angry [and] heartless” here. But there is a great deal of disagreement about what iniquity is, and even more about what goodness or justice are, making it impossible to say whether reason-giving, or any other practice, actually helps realizing them. One way around this problem is to say, as Prof. Cravens seems to, that goodness or justice are to be found within the four corners of the legal system itself, so that reason-giving helps achieve them merely by situating judicial decisions within the system, but surely many will dispute that the our legal system, as it currently exists, is substantively good or just.

The most that can be said is that the existence of a legal system, or more specifically of a body of law comprising and connecting individual judicial decisions, is itself valuable and good, as for example Jeremy Waldron argues in his essay on “The Concept and the Rule of Law.” Fuller (and probably prof. Cravens) would agree with that claim, but his (and her) view goes rather beyond it and, much as I admire him, I cannot follow him there.

What Makes a Judge Great?

Most students of law – not just law students – probably have a favourite judge, or judges. Someone whose judicial performance – his or her decisions and opinions – we regard as outstanding and exemplary. But what is it that makes a judge great? Or, more modestly, what makes a judge good?

There several ways to think about this, as Lawrence Solum argues in a number of papers, for example this one. An obvious one is to say that a judge is good because he happens to agree with you, or you with him or, to put the point more generally, to make adherence to some standard of substantive justice or to some decision-making procedure, whatever you happen to find most attractive. So if your preferred standard of substantive justice is a commitment to civil liberties, you will think that Justice Fish of the Supreme Court of Canada is great. If your favoured decision-making procedure is looking for original intent, you will be an admirer of Justice Scalia of the US Supreme Court.

Another way of thinking about judicial excellence, which Lawrence Solum advocates, is in terms of “judicial virtues” (and vices). A good judge is one who has the peculiar virtues the judicial office requires; an excellent judge is one who has these virtues to an exceptional degree. But what are these virtues? Solum lists quite a few in his various papers on the topic:

(1) incorruptibility and judicial sobriety; (2) civic courage; (3) judicial temperment and impartiality; (4) diligence and carefulness; (5) judicial intelligence and learnedness; (6) judicial craft and skill; (7) justice; and (8) practical wisdom.

(I am lifting the list from the abstract of an essay called “A Tournament of Virtue.”)

Richard Posner, in his book on How Judges Think, has a list of judicial vices, some (but perhaps not all) of which are the opposites of some of Solum’s virtues. Posner observes that

[o]ne cannot be regarded as a good judges if one takes bribes, decides cases by flipping a coin, falls asleep in the courtroom, ignores legal doctrine, cannot make up one’s mind, bases decisions on the personal attractiveness or unattractiveness of the litigants or their lawyers, or decides cases on the basis of “politics” (depending on how that slippery word is defined).

The problem, as Solum recognizes, is that many of these virtues are strongly contested.

Take one that might seem obvious: justice. For one thing, it has a range of meanings, from the very thin “natural justice” (consisting of two Latin maxims, audi alteram partem and nemo judex in causa sua), to Aristotelean equity (knowing when to make an exception to a too-general rule), to the always contested substantive visions of justice. But even justice’s being a judicial virtue is sometimes denied, perhaps most famously by Oliver Wendell Holmes who, according to Learned Hand, responded to the latter’s exhortation to “do justice” by sternly observing that that was not his job. And Justice Holmes would, I suspect, make anyone’s list of judicial greats. The one great stain on his name, his angry, heartless “[t]hree generations of imbeciles are enough” opinion for the majority in Buck v. Bell (upholding a law providing for forced sterilization of “mental defectives”) is, it seems to me, a failure not so much of justice as of empathy or of detachment from one’s ideological commitments.

There might be other ways of thinking about judicial greatness too, not captured by the theories I have so far discussed. For example, we might think that a great judge is an original thinker (one reason I admire Justice Beetz, for example), or a particularly good writer (one reason, though of course not the only one, Lord Denning is everybody’s favourite). I don’t think that either originality or literary talent are necessary to be a good (as opposed to excellent) judge, so I would hesitate to qualify them as judicial virtues.

The moral of the story, if there is indeed a story here and if it actually has a moral, is that judicial greatness, as greatness in anything else, is probably impossible to define in any way that would not generate serious disagreement. But that’s precisely what makes trying to define it, and coming up with lists of greats, so entertaining, isn’t it?

A Person Yoda Is?

In today’s Legal Theory Lexicon entry on “Persons and Personhood”, Larry Solum suggests that if

an intelligent alien species were to arrive on Earth … [and] the members of the aliens displayed evidence of human-like intelligence and could communicate with us (e.g. were able to master a human natural language, such as English), then we might be tempted to treat members of this species as morally and/or legally entitled to the same rights as humans.

He also gives the example of “Chewbacca and Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe.”

As it happens, the issue whether aliens able to communicate with us should be entitled to legal personality has in fact been raised in a Canadian Court. In the case of Joly v. Pelletier, [1999] O.J. No. 1728 (QL), Justice Epstein of the Superior Court of Ontario granted the defendants’ motion to dismiss on the ground that the plaintiff, who claimed that he was not a human being but rather a Martian whose DNA test results were being tampered with by the CIA, Bill Clinton, and sundry others, was not a person, and therefore not capable of being a “plaintiff” within the meaning of Ontario’s Rules of Civil Procedure!

For what it’s worth, I think that Professor Solum is right, and Justice Epstein, rather too formalistic, albeit quite amusing. But this raises further questions. If an individual intelligent alien is a person, what about collective intelligences, whether made up of insects (as in Isaac Asimov’s short story “Hallucination“) or bacteria (as in Asimov’s novel Nemesis)? What about a collective artificial intelligence (as in Stanislaw Lem’s novel The Invincible)? And perhaps most importantly: could any alien crazy enough to turn up on Earth these days be considered intelligent?

Privacy in the Past, Present, and Future

Our own actions – individual and collective – set the upper limit of our privacy rights. We will never have more privacy rights than we care to have, although we often have fewer. One stark illustration of this idea comes in Isaac Asimov’s short story “The Dead Past,” in which a group of scientists build and, despite the government’s best efforts, thoughtlessly disseminate the instructions for building a “chronoscope” – a machine for viewing any events in the (recent) past. Their original purpose was historical research, but the chronoscope is not very useful for that; what it is very good for is snooping and voyeurism. The story ends with the government official who tried and failed to stop the protagonists wishing “[h]appy goldfish bowl to you, to me, to everyone.”

The internet, especially Web 2.0, is (almost) as good as the chronoscope, argues Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit, in a short essay published in the Stanford Law Review Online. It also allows everyone to learn all about anyone, provided that the person – or indeed someone else – posted the information on the internet at some point. And the fact that people share their every thought and deed online shapes society’s expectations of privacy, which are the key to what constitutional protections we have in this area. Those parts of our lives which we do not expect to be private are not protected from observation at will by the government. And if we do not expect anything to be private, then nothing will be.

“Reasonable expectations of privacy” are also key to defining privacy rights under the Canadian Charter of Rights and Freedoms. The Supreme Court’s latest engagement with the question of just what expectations of privacy are reasonable, in R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, produced something of a mess. The issue was whether the installation without a warrant of a device that measures the electricity consumption of a house breached the owner’s reasonable expectation of privacy. Four judges said no, because general information about electricity consumption does not reveal enough to make it private. Three said no because the law entitled to owner to ask the utility not to hand over such information to the police, and he had not exercised this right. Two said that the information was private. But what seems clear is that for Canadian law too, what we think about our privacy and what we do about it, individually and collectively, matters.

Are we then doomed, as Judge Kozinski suggests we might be? Perhaps not. With respect, his claims are a little too pessimistic. Judge Kozinski collects a great many frightening anecdotes about people’s willingness to wash their – and others’ – dirty laundry in public. But anecdotes seldom justify sweeping conclusions. And some studies at least seem to show that people do care about their privacy more than the pessimists assume,  if not always in ways or to an extent that would satisfy the pessimists. Old expectations of privacy might be fading, but new ones could emerge, along different lines. Judge Kozinski is right that the law cannot do much to protect people who do not care. But we must hope that he and his colleagues, as well as legislators on both sides of the 49th parallel, will be mindful of the possibility that changes in privacy expectations can go in both directions.

Purely Hypothetical Dragons

Everyone knows that dragons don’t exist. But while this simplistic formulation may satisfy the layman, it does not suffice for the scientific mind. …  The brilliant Cerebron, attacking the problem analytically, discovered three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical. They were all, one might say, nonexistent, but each nonexisted in an entirely different way.*

Stanislaw Lem, The Cyberiad

Much of the Conservative government’s legislative programme seems driven by fear and distrust of judges. Such reactions to judicial decisions are often justified by concern about “judicial activism.” But judicial activism is something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways. Or so I am tempted to conclude after reading an exchange at the Volokh Conspiracy (which, by the way, is 10 years old today) between prof. Orin Kerr and prof. Randy Barnett.

Prof. Kerr argues that the expression “judicial activism” can have a variety of meanings, some of them more interesting than others. A decision can be described as activist if 1) it rests on the judges’ personal (including political) views; 2) it expands the power of the judiciary vis-à-vis the other branches of government; 3) it departs from settled precedent; 4) it strikes down a statute or an administrative decision; or 5) it is wrong. Prof. Kerr believes that the meanings 1) to 3) are useful because “the terms allow us to have a useful debate about the proper role of the courts.” On the other hand, 4) and 5) are to be avoided; the former, because everyone (in the US, but I suppose this is mostly true for Canada too) agrees with (some) judicial review, the latter, because we don’t agree about what decisions are right.

Prof. Barnett responds by arguing that given its multiplicity of meanings, useful or otherwise, the term “judicial activism” is best avoided – but not without venturing yet another meaning for it, applying it to describe any decision which contradicts clear constitutional text.

(I have given the bare bones of both posts, which are very interesting, especially if you are conversant with or curious about US constitutional debates.)

It seems to me that prof. Barnett is right that we ought to avoid using the term “judicial activism” if at all possible, since it can mean so many things to different people. Prof. Kerr’s categories of judicial activism are very interesting, and no doubt capture much of what people mean when they use the term, but why use the vague, and vaguely pejorative, “judicial activism,” even in one of the useful meanings prof. Kerr identifies, when we can say more precisely what we mean? Judicial activism does not really exist, but we should keep in mind that it does not really exist in a number of different ways.

* As I recall it, in the Russian translation of the Cyberiad which I read, the three distinct kinds of dragon were said to be the nil, the negative, and the imaginary. If anyone knows what the Polish original was, I would love to hear about it.

How to Argue about the Death Penalty

The NY Times has an interesting story today about two men who are leading a campaign in support of a ballot initiative that would abolish the death penalty in California – and who, in 1978, played key roles in the adoption of a ballot initiative that was meant to increase the use of the death penalty. They have changed their minds, and hope the people of California will, too. What is remarkable, beyond this change of heart, is that the reasons they give for it have only to do with the costs of the death penalty system: as one of them puts it, “$185 million a year … to lawyers and criminals.” Not a word about the morality of the death penalty, including the risk of killing innocents. Apparently, it is not a political winner, although this post by Janai Nelson at Concurring Opinions suggests otherwise.

It might seem wrong, perhaps even perverse, to argue about the death penalty without discussing its justice. But such argument actually has a very long history. In his History of the Peloponnesian War, Thucydides  describes the deliberations of the Athenian assembly on the question of what to do with the Mitylenians, who had revolted against them, and whom the Athenians had again subdued. The first debate on the matter was dominated by Cleon, who argued that the entire male population of Mitylene ought to be butchered (a word Thucydides – or his translator – repeatedly uses; no euphemisms here). His argument was in part consequentialist – “teach your other allies by a striking example that the penalty of rebellion is death” – but mostly appealed to the people’s sense of justice, offended by the Mitylenians’ revolt and clarmouring for treason to be punished with death. The next day, however, the opponents of the butchery succeeded in re-opening the debate. Their case was made by Diodotus, on purely consequentialist grounds. Indeed Diodotus argued strenuously that justice had nothing to do with it: “we are not in a court of justice, but in a political assembly; and the question is not justice, but [expediency].” Justice might say the Mitylenians are guilty and deserve capital punishment, but that would serve no useful purpose, contrary to Cleon’s claim. Death penalty is not a good deterrent: “It is probable that in early times the penalties for the greatest offences were less severe, and that as these were disregarded, the penalty of death has been by degrees in most cases arrived at, which is itself disregarded in like manner. Either then some means of terror more terrible than this must be discovered, or it must be owned that this restraint is useless.” On the other hand, mercy would induce future rebels to lay down arms rather than to resist to the bitter end, and thus save Athens blood and treasure. Diodotus’ arguments prevailed, and only the leaders of the Mitylenian rebellion were executed, rather than the entire people.

Perhaps this story need not change our intuitions – if we have any – about the value of purely consequentialist arguments about the death penalty. But they can work in the political arena if not in philosophy seminars, and in cases where the issues of justice are too politically explosive, they might be the only ones about which rational deliberation and changes of mind among the opposing sides’ supporters are possible.