SCC Skepticism

In a recent piece in Maclean’s, Adam Goldenberg explains why the Supreme Court of Canada (SCC) does not suffer from the same partisan interest the Supreme Court of the United States (SCOTUS) does. He lists three main reasons: (1) the nature of partisanship in the US; (2) the American conservative movement’s incubator for legal talent; and (3) American political parties galvanizing support on the strength of controversial court rulings. I accept all of these reasons and invite those interested to read Goldenberg’s piece.

But one more should be added, without which the story is incomplete: American citizens know where law is made.  They realize (even without knowing the legalities) that winning a constitutional debate in court wins the democratic debate for all time.  The matter is put beyond the reach of the regular democratic process. Canadians should be more critical of this reality in our own country.

Two forces have led us to this point. The first is both Canada and the US courts do not shy away from deciding controversial issues. In Canada, Bedford and Carter dealt with prostitution and assisted dying, respectively. In the United States, Obergefell dealt with same sex marriage. The fact that courts often delve into these issues (or, as defenders of the courts would say, are forced into these issues by the nature of an entrenched bill of rights) makes them a lightning rod for political attention.

At the same time, opinion polls in the United States show that Americans have record low confidence in their political institutions, and Canadians are no different. Confidence in government is at all-time lows. We see this in the context of Aboriginal law, where Aboriginal groups have moved to the courts as the primary vehicle by which they can vindicate their rights. One can surmise that they have done so because of the historical ineptitude of the Government of Canada.

These forces together understandably cause citizens to make a choice. Recalcitrant politicians and a lack of confidence in institutions? The slog of convincing one’s fellow citizens? Or, a sweeping court declaration which forces legislatures to respond?

In the US, citizens largely made the latter choice to resolve their plights. Justice Antonin Scalia remarked in Planned Parenthood v Casey that the SCOTUS, rather than legislatures, were increasingly subject to intense political pressure by both sides of hot-button issues—in that case, abortion. The letters, comments, and protestors directed to the SCOTUS, not the legislatures, was an odd sight to Justice Scalia, who viewed the development skeptically. To Justice Scalia’s mind, because the American people “are not fools,” they recognized that the SCOTUS had become the leading institution where these value-laden issues were decided.

While Goldenberg notes that much of this political attention focuses on what the original meaning of the US Bill of Rights means in modern America, I think this overstates the case. The political attention is just that, naked politics, not shrouded in any legality. Many people want the court to achieve their explicitly political ends.  As for originalism, originalists have not held a majority of the US Supreme Court, at least in the last twenty years. Justice Scalia himself was known as a fiery dissenter. For example, under the 8th amendment (cruel and unusual punishment), the SCOTUS developed a profoundly non-originalist test—the so-called “evolving standards of decency” approach. While Justice Kagan’s point that we are all originalists now may be true, it is not true that originalism has been a wholly successful legal project in the United States.

No matter what one thinks of originalism, it provides a limiting principle on otherwise free doctrinal reign. But because it has not been embraced consistently in the US, and no other real principle has come forward, the political parties have latched on to the SCOTUS nomination process as a means to vindicate their particular versions of the good. Since the Bork confirmation hearings, both parties in the US have used the process because they know its consequences. They know that getting the “right” people on the Court will do far more to change laws than simply electing people to the legislature. We see this sort of discussion now with the retirement of Justice Anthony Kennedy, and the ludicrous proposal of “court-packing” to block a Republican nomination.

The Americans have gone too far, and Goldenberg rightly decries this development. But one has to ask whether it is all that bad given the stakes. People understandably want a say in the laws that govern them. If the SCOTUS takes a bigger piece of the pie of the law-making process, then citizens should have the right and the responsibility to campaign on “the court” as an issue.

In reality, Canada’s SCC is just as central in the Canadian polity as the SCOTUS is in the American. Despite the Court’s recent ruling in Comeau, the test to revisit previous precedents is fairly relaxed, and so litigants understandably invite the SCC to do so. This approach invites members of the Court to decide when, according to them, a particular precedent no longer jibes with modern times.  Whatever the strength of the Court’s stated commitment to living constitutionalism, it generally supports its “ideological sex appeal,”   viewing its role as deciding what is best for Canadian society. As Leonid pointed out in a previous post, the SCC has an ideology, but it is probably not evident to most.

A good example is the SCC’s opinion in Saskatchewan Federation of Labour. There, the SCC majority spoke of giving “benediction” to the right to strike. The full quote by the SCC majority is instructive: “[T]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction” [3]. In this example, it was the SCC that decided that now, rather than some past time, was the right time to expand a constitutional right, forever removing it from the realm of democratic debate. This is a political conclusion at heart, more an assessment of what modern times demand rather than what the law does.

And so, it is understandable that political groups should want to have a role in moving the Dworkinian Hercules. But as Goldenberg points out, Canadians have not latched on to these developments as a political matter. In fact, many of the criticisms I’ve advanced to the Saskatchewan Federation of Labour case are common in the US, but less common in Canada. Canadians seem to be  sluggish in response to these tendencies in our own SCC. I can’t speak to why this is; but perhaps it is true to say, as the National Post did, that Canadians are simply “different” than Americans—more trusting of government institutions.

In light of the stakes, Canadians could learn from Americans in taking an active, critical interest in what the SCC does. While I do not advocate a full-blown American approach to judicial nominations, there are various ways Canadians should respond to this phenomenon. Justice Scalia’s prescription was a rigorous application of original meaning originalism, which he thought was the antidote to the excesses of living constitutionalism. I am partial to this approach, but I need not argue this point to make the following assertion: Canadians should first fully reckon with what the SCC is actually doing, whether one thinks its good or bad. If the SCC makes law, as so many legal realists believe, we should hold them to the same standards we hold legislatures. We should, in short,  become Supreme Court skeptics, rather than fawning admirers of our nation’s highest jurists.

This is a distinctly second-order response to the issue, but the most realistic one in the intellectual and legal climate in which we find ourselves.  Canadian academics certainly engage vigorously with SCC decisions, but the extent to which this filters into the larger society (or the extent to which it is representative of all potential critiques) is an open question. We should be concerned with fostering a healthy skepticism of the SCC, similar to the skepticism we hold for legislatures.

This means fostering an open climate of academic, cultural, and political discussion about the SCC, and viewing judges as humans, rather than celebrities—no more capable of coming to conclusions about the nature of human rights than any Joe or Jane Six-Pack. This is a more radical proposition than one might think; consider Leonid’s comments in his recent post about New Zealand’s anti-court criticism bill.

This could also involve a more open nomination process. I saw nothing particularly wrong with the selection process of Justice Marshall Rothstein. His “confirmation” hearings, while in reality non-binding, at least gave those interested a look into the mind of a man who would serve on the SCC. We can have these hearings without devolving into an American three-act-play, or a challenge to the independence of the institution. The fact that Justice Rothstein’s hearing was a model of decorum is an example of this working well.

Goldenberg’s piece underlines the problems with the American approach, but I think it paints far too rosy a picture of our courts.  The Americans understand the consequences of their system and are taking part in it. Canadians, as Goldenberg seems to admit, do not. This is not a fact of which we should be proud.

 

 

The Limits of Legal Expertise

What kind of experts are legal experts ― and is their authority in danger?

In an interesting article on “The Limits of Expertise” published on Quillette last month, Alex Smith attempts to explain the seemingly generalized loss of faith in expertise, and to offer some solutions. While Mr. Smith doesn’t discuss the law, I think that his analysis is applicable to legal systems. After all, lawyers and judges are ― or are supposed to be ― experts too, and they, like others, are arguably vulnerable to a loss of faith in their expertise. The New Zealand Parliament, indeed, is so concerned about this that it is considering imprisonment and forced abjurations as remedies to what it deems excessive criticism of the judiciary, something I and others are trying to push back against. Seeking to understand the causes of the loss of faith in legal experts seems more likely to be productive response to this issue than criminalization.

Mr. Smith observes ― like many others ― an unpleasant fact: “smart people keep getting it wrong and scepticism about their competence has grown as a result”. “It” might be the path of the economic cycle, the outcome of an election, or even, says Mr. Smith, the next “[a]pocalyptic deadline[] for climate change devastation”. There has been no shortage of misguided forecasting in the last few years. And yet, “[n]obody says, ‘I want someone unqualified to be my president, therefore I also want someone unqualified to be my surgeon.’ Nobody doubts the value of the expertise of an engineer or a pilot.” Skepticism of experts isn’t as pervasive as some might think. How to make sense of this?

Mr. Smith argues that the key to this puzzle is a distinction between “closed systems” and “open” ones. The former ― like “a car engine or a knee joint” ― “are self-contained and are relatively incubated from the chaos of the outside world”. They can be understood, and even controlled. Experts in such systems have no public trust problem. Open systems, by contrast, ― things like “the economy”, “politics”, and “climate” ― “have no walls and are therefore essentially chaotic, with far more variables than any person could ever hope to grasp”. They are impervious to (complete) human understanding, let alone control. And it’s the overconfident experts in open systems, who thought they understood them much better than they really did, and even imagined that they might be able to control them, and have been discomfited, who have spectacularly lost the confidence of the public.

Now, Mr. Smith is not calling for such experts to be put out of work. If anything, he wants there to be more of them ― or at least more viewpoints among them. Individually, such experts need to be humble and remember that there is no chance of their coming into the possession of the whole truth. Collectively, “over time,” they can “mitigate[] the chaos of the open system” by letting individual opinions confront one another and known mistakes to be weeded out, albeit only to be replaced by new ones. But the failure recognize the necessity of, and enable, such confrontation leads straight to “inevitable excesses of hubris, that attract us like moths to a flame” ― and to the inevitable discrediting of experts that results.

There are valuable insights here, the more so because they are not new. Mr. Smith’s distinction between open and closed systems does not exactly track F.A. Hayek’s line between “nomos” and “taxis” ― order spontaneously evolved and order designed ― but it is not entirely dissimilar. Mr. Smith’s message about the need for humility and the impossibility of controlling open systems is as Hayekian as it gets, extrapolating from Hayek’s admonition in The Fatal Conceit: The Errors of Socialism that “[t]he curious task of economics is to demonstrate to men how little they really know about what they imagine they can design”. To be sure, there can be some dispute about where the line between open and closed systems lies, and whether particular areas of knowledge might move from one category to the other as scientific knowledge expands. Mr. Smith suggests that “climate” is an open system ― but even if he is right that our current level of knowledge is such that we cannot fully understand, let alone control it, the same might have have been true of knee joints a couple of centuries ago. In any case, these questions, and some over-generalizations in Mr. Smith’s argument (notably, the claim that all “open” systems are “natural”) do not detract from its essential soundness. But how does the law fit into it?

There are those who think that the law is largely a closed system, which technical and perhaps observational skills allow one to master and so to provide right answers to the questions that arise within it. In a post some years ago I described Hayek and Ronald Dworkin  as “right answer romantics” who are mostly convinced that judges can do this.

More realistically, perhaps, it seems plausible to think of law as a “semi-open”, rather than a completely closed, system. Mr. Smith applies this term to medicine, though without explaining why, or quite what it means. With respect to law, it might refer to the view that, while the law often provides right answers that a sufficiently skilled person can discover, it does not always do so, and leaves some questions to the realm of what Lon Fuller, in “Reason and Fiat in Case Law”, referred to as “fiat” ― “order imposed” when reason and technical skill in interpreting the law provide no adequate guidance. (Fuller was describing judicial fiat, but we can also think of legislative and executive fiat in constitutional law, and perhaps even administrative fiat in statutory interpretation.)

But we might also think of law as an open system ― open, that is, to influences of the social sciences, of morality (not identified, as in Dworkin’s work, as the one true interpretation of the morality expressed in the pre-existing political decisions of the community, but understood as something more personal), perhaps even of more subjective factors. Richard Posner’s “pragmatism” is an unusually forthright expression of this view, but it is also associated with various “legal realist” and “critical legal studies” schools of thought.

Importantly, the Supreme Court of Canada seems increasingly to favour the view of the law as an open system. It insists that there are no judicially discoverable right answers to questions of statutory interpretation or even of constitutional justification of restrictions on rights and freedoms, and that in answering such questions administrators ― regardless of whether they are legally trained ― can be “experts” to whose judgment courts ought to defer. It believes that an undefined balance, rather than the interpretation of the constitutional text, ought to guide the resolution of constitutional disputes. It even claims that acquaintance with “social values” is as if not more important to its own legitimacy as is legal skill.

Now, the view that the law is an open system, exposed to outside influences and impervious to purely technical understanding and control, is not inherently implausible ― no more so than the opposite view that the law is a fully closed system. (I agree with neither of these views ― but I don’t think they are crazy.) The trouble is that the Supreme Court and its (too) numerous fans in the Canadian legal profession and beyond want to have it both ways: they want to treat law as an open system in which the influence of extra-legal, non-technical considerations is inevitable and legitimate, while claiming for the Court the authority to which experts in closed, but not open, systems are entitled. Hence the decisions signed “by the Court” or by improbably large numbers of purported authors that present legally dubious holdings as oracular pronouncements; hence the attempts to delegitimize criticism of the Supreme Court as a danger to the Rule of Law. Such behaviour would be understandable, perhaps even defensible, if the law were entirely a matter of technical skill. But if the law is seen as the product of judgments based not on technical craft, but on policy considerations or morality, they can only proceed from what Mr. Smith rightly describes as hubris.

The position of legal academia is worth considering too. In the good old days, whenever those were, it may have been thought that law professors, like other lawyers, were closed-system experts. Some might still defend this view, but it is not a popular one these days. Rather, law professors like to present themselves not just as the systematizers of and commentators upon legal craft, but as teachers of, and writers on, “history, culture, economics, and political economy” ― as Lisa Kelly and Lisa Kerr wrote in an op-ed in the Globe and Mail earlier this year. While, as I noted in my comment on this op-ed (which is generally relevant to the issues discussed in this post) I am skeptical of the ability of most law professors to be true experts in such a variety of areas, I take the point that academic law, no less (actually, rather more) than adjudicative law, is at least a semi-open, if not a fully open system.

What follows from this? I think it would be wrong to wish to close down the legal system, as it were. I do not think that it is possible, or indeed desirable, to insulate the law entirely from external influences ― whether those of the (social) sciences or even, to some extent at least, those of ideology. (Of course, the permissible scope of outside considerations is a difficult question, as is that of the manner in which they must be integrated with the law’s more technical aspects.) However, whether we view the law as an entirely open system (and, as noted above, I think that this too is a mistake) or as a semi-open one, we cannot insist that legal experts are entitled to the unquestioning deference that experts in closed systems can expect and still receive. As Mr. Smith says, when experts deal with open ― or, I would add, to the extent that they deal with open elements of semi-open ― systems, they ought to be humble about what they can know and what they can achieve, and they ought to make sure that a diversity of views informs their opinions and decisions. Neither condition obtains to anything like a sufficient degree in Canadian law, and in the Canadian legal academy, right now. This, as Mr. Smith suggests, is likely to undermine confidence in expertise ― and for those who care about the Rule of Law, that outcome is not a desirable one at all.

Theorizing Administrative Law

Does Dunsmuir Have a Philosophy?

Mark Walters, McGill University

Canadian judges occasionally pause to reflect upon larger theoretical ideas that are normally only implicit in the reasons that they give. Dunsmuir was one of those occasions. Writing together for the majority of the Supreme Court of Canada, Justices Michel Bastarache and Louis LeBel prefaced their analysis of the issues in the case with a general statement about the constitutional foundations of judicial review in administrative law. Re-reading those passages today, they strike me as having a distinctively Diceyan tone. The two principles that Bastarache and LeBel JJ. identify at the foundation of judicial review, the rule of law and legislative supremacy, are the same principles that Dicey identified as the animating principles of constitutional law, and the responsibility that they ascribe to judges for resolving the “underlying tension” between the rule of law and legislative sovereignty tracks Dicey’s views of ordinary courts and administrative power closely (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, para. 27). In reading these passages I could not help imagining someone—Harry Arthurs came to mind—declaring that the Dunsmuir judgment began its life “with the dead hand of Dicey lying frozen on its neck” (my imaginary Arthurs would of course be borrowing this famous line from William Robson, “The Report of the Committee on Ministers’ Powers” (1932) 3:3 Political Quarterly 346, 351).

The paragraphs on theory in Dunsmuir contrast sharply with another judicial excursus on administrative law theory that is perhaps somewhat forgotten today. I have in mind Justice Bertha Wilson’s discussion of the rule of law in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324. At that time, Wilson J. had been worried that recent waving of the rule-of-law banner by some of her judicial colleagues signalled a weakening in their resolve to honour the spirit of the 1979 CUPE decision and its deferential approach to administrative decisions (Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227). The story of administrative law in the common law tradition had been, she said, a tale of escape from Dicey and his dreaded followers (especially the dark lord, Lord Hewart) who employed the conceptual formalism of the rule of law and the associated idea of jurisdiction against administrative discretion to advance conservative ideas contrary to the modern welfare state. Wilson J. feared the return of rule-of-law conceptualism and expressed her preference for the “pragmatic and functional” approach to administrative powers which had begun to emerge in Canadian cases a few years before.

As it happened, the language of “pragmatic and functional” would reign supreme in Canada for some twenty years, defining the essence of administrative law for a generation of lawyers and law students. And then, just as quickly as it entered judicial discourse, it was gone. Its demise brings us back to Dunsmuir, for of course it was here that “pragmatic and functional” was unceremoniously dropped, its “name” deemed by Bastarache and LeBel JJ. as “unimportant” (para. 63).

But was there something more at stake than just a name? Comparing the theoretical excursuses from National Corn Growers and Dunsmuir helps us to see the outlines of the philosophical debates that lie just under the surface of judicial reasons in administrative law. The pragmatic and functional approach seemed to draw inspiration from what Martin Loughlin has called the “functionalist style in public law”, an eclectic approach to law that emerged amongst the first wave of anti-Diceyans in the 1930s combining faith in the transformative potential of the state with an instrumentalist and realist understanding of law that was deeply suspicious of the common law and its conceptual paraphernalia, especially the rule of law (see e.g., John Willis, “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional” (1935) 1 U.T.L.J. 53). Functionalists wanted to clear away the old common law clutter that obstructed social policy experts and technocrats in government who were building a new and better society. As Ivor Jennings put it: “The “rule of law” is a rule of action for Whigs and may be ignored by others” (W. Ivor Jennings, The Law and the Constitution (1933), 256).

Perhaps, then, the rejection of “pragmatic and functional” in Dunsmuir was the rejection of a set of ideas and not just a name. There is arguably some evidence in Dunsmuir of a return to the sort of positivist or formalist understanding of law often associated with Dicey. The rule of law means, according to Bastarache and LeBel JJ., that public power is authorized by law, and the judicial review of statutory power involves simply defining the boundaries of jurisdiction by reference to the intent of the authorizing lawmaker (paras. 28, 29). As a rule about the formal statutory authorization for power the rule of law is thus simply and disappointingly rule by law. Many scholars think that Dicey’s rule of law was formalist and positivist in this very sense (e.g. Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] Public Law 467). The worry of Wilson and Arthurs (and the old functionalists too) is that a formalist rule of law is an empty and aimless rule waiting to be filled with judicial bias.

But if this theory of legality informs Dunsmuir, why would Bastarache and LeBel JJ. say that there is a “tension” between the rule of law and legislative sovereignty? If rule of law means legal authorization by legislation, there could never be tension between the two. And why would they describe the judicial job of upholding the rule of law as upholding not just “law” but “legality”, “reasonableness”, and “fairness” in administrative decision-making (para. 28)? Why would they say that defining the “jurisdiction” of a decision-maker involves a “standard of review analysis”, which was their new name for the old “pragmatic and functional” analysis (para. 29)? And, finally, why would they cite with approval the case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in which Justice Claire L’Heureux‑Dubé stated that administrative discretion must always be exercised in accordance with the boundaries imposed by statute and by the principles of the rule of law and the fundamental values of Canadian society?

The answer to these questions lies, I think, in appreciating the false dichotomy between formalism and functionalism. Dunsmuir and the many cases preceding and following it are best understood as part of an on-going interpretive project that seeks to fold together in a coherent way substantive values of legality within the complex arrangements for governance that have been created to address the realties of the modern (and post-modern) state. Formalism and functionalism both suffer from the mistaken view that law is merely a command issued by a lawmaker to others, a linear communication from state to subject; the two schools of thought differ only in terms of how judges should respond to the domains of administrative discretion created by these commands. My own view, however, is that law is better understood as a more circular discourse in which rules emanating from legislatures and administrators are interpreted in ways that can be justified in light of a unified and coherent vision of normative order that honours deeper values of political morality, including, of course, the value of legality and its unrelenting insistence that respecting equal human dignity means rejecting arbitrary power.

In the end, I think it is fair to say that the Dunsmuir theoretical excursus is Diceyan—but not in the formalist Diceyan image constructed by the functionalists. Dicey made some mistakes and the punishment for his sins seems to be that his name is forever associated with that flawed ‘Diceyan’ understanding of public law. However, some of the most difficult and underappreciated passages in his famous book, Law of the Constitution, come in the course of an attempt to explain how judges may resolve the tension between the rule of law and parliamentary sovereignty—passages which make little sense unless we assume that the “spirit of legality” that he says shapes all legal meaning is a substantive ideal that justifies and legitimates the exercise of governmental powers (A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan & Co., 1915), ch. 13). Because Dicey himself did not develop a theory of administrative discretion beyond these basic points, he cannot give us concrete answers on how administrative law, properly interpreted, should look today. However, if we step back from the details of Dunsmuir and think about the general approach taken by Bastarache and LeBel JJ., we can detect a classic interpretive effort to see how the formal and substantive values of legality and sovereignty may be reconciled in a principled and coherent yet also a pragmatic and functional way consistent with a ‘Diceyan’ spirit of legality. One could say that this is just ordinary legal reasoning. Perhaps. But because it is ordinary it is also the best kind of legal reasoning. If all that resulted from Dunsmuir was a deeper commitment to an administrative world in which the exercise of power must meet standards of “justification, transparency and intelligibility” to be lawful, then the decision should be counted as a great success.

Was Lon Fuller an Originalist?

Some thoughts on Lon Fuller, the Rule of Law, and constitutional interpretation

I think that the best argument for originalism is that it is required by the principle of the Rule of Law. (Jeffrey Pojanowski’s contribution to an online symposium on originalism organized by Diritto Pubblico Comparato ed Europeo earlier this year makes this argument nicely and concisely.) So I probably brought some confirmation bias to a re-reading of Lon Fuller’s discussion of the Rule of Law requirement of “congruence between official action and the law” in The Morality of Law, which makes me think that he would have been at least sympathetic to originalism.

If law is to guide the behaviour of those to whom it is addressed, it is not enough that it be public, intelligible, stable, and so on. It must also be applied and enforced consistently with the way it is supposed to be. A failure of congruence, Fuller explains, amounts to nothing less than “the lawless administration of the law”. (81) It can result from a number of causes, some perhaps innocent, like “mistaken interpretation”; others having to do with the lack of competence or intelligence; and in extreme cases “bribery”, “prejudice”, and “drive towards personal power”. (81) (The attempt at classification is mine; Fuller, somewhat oddly, presents these various causes pell-mell.)

Importantly, although one might be tempted to think that it is primarily the executive that has to be vigilant to ensure that it applies the law as written, Fuller was clear that the requirement of congruence is addressed to the judiciary too. The lower courts had to ensure that they applied the law as set out by the higher ones, but even an apex court has responsibilities towards the Rule of Law. After a detour into the importance of generality, coherence, constancy, and prospectivity in the articulation of adjudicative law, Fuller writes:

The most subtle element in the task of maintaining congruence between law and official action lies, of course, in the problem of interpretation. Legality requires that judges and other officials apply statutory law, not according to their fancy or with crabbed literalness, but in accordance with principles of interpretation that are appropriate to their position in the whole legal order. (82)

He proceeds to recommend the principle of articulation articulated in Haydon’s Case, (1584) 3 Co Rep 7a:

for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:

1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy.

Now, this quotation, which I have presented in the same way as Fuller does, is somewhat incomplete. Here is the full statement of “the office of all the Judges” according to Heydon’s Case:

always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

Fuller, instead of the reference to “the true intent of the makers of the Act”, adds one further element of his own,

a fifth point to be “discerned and considered,” which might read somewhat as follows: “How would those who must guide themselves by its [i.e. the Act’s] words reasonably understand the intent of the Act, for the law must not become a snare for those who cannot know the reasons of it as fully as do the Judges. (83)

In subsequent discussion, Fuller proceeds to criticise what he calls “an atomistic conception of intention”, which “conceives the mind to be directed … toward distinct situations of fact rather than toward some significance in human affairs that these situations may share”, (84) and denies the relevance of intention in interpretation, or at any rate in difficult interpretative questions, which arise in individual situations ostensibly not anticipated by the legislator. Intention matters, Fuller insists, but it is clear from the example he uses ― that of a dead inventor whose work must be continued from an incomplete design by another person ― that it is not an actual, specific intention that he has in mind, but the general purpose of the document to be interpreted that can be ascertained from its contents; indeed Fuller commends the exclusion of “any private and uncommunicated intention of the draftsman of a statute” (86) from its legal interpretation.

How does this all translate into approaches to constitutional interpretation ― which, after all, Fuller does not actually discuss? Many Canadian readers will no doubt be inclined to think that Fuller is advocating something like purposive interpretation, to which the Supreme Court of Canada sometimes professes to adhere. But, as Benjamin Oliphant and I have explained in our work on originalism in Canada, purposivism, especially as articulated in R v Big M Drug Mart Ltd, [1985] 1 SCR 295 is arguably compatible with some forms of originalism. Fuller’s purposivism, it seems to me translates fairly well into public meaning originalism, given its emphasis, on the one hand, on the circumstances of the law’s making as being key to interpreting it, and on the other on the reasonable understanding of those to whom the statute is addressed as one of the guidelines for the interpreters. Fuller’s exclusion of the “private and uncommunicated thoughts” reinforces my view that it is public meaning, rather than original intentions, originalism that he supported, while his rejection of the “atomistic conception of intention” shows that he would have had no time for original expected applications ― which, of course, most originalists have no time for either.

Of course, Fuller was writing before originalism became a word, and a topic for endless debate. It is perhaps presumptuous, as well as anachronistic, to claim him for my side of this debate. Then again, Fuller himself insisted that text are not meant to apply to finite sets of factual circumstances within their author’s contemplation. So long as the mischiefs they are meant to rectify remain, they can be properly applied to new facts ― something with which public meaning originalists fully agree. In the case of the dead inventor, were we to summon his “spirit for help, the chances are that this help would take the form of collaborating … in the solution of a problem … left unresolved” (85) ― not of the dictation of an answer. And failing that, if we stay within the inventor’s framework, and remain true to his general aim, we have done the best we could. This is a standard by which I am happy to be judged.

Lawless Society of Upper Canada

The LSUC’s attempt to make lawyers “promote diversity and inclusion” is lawless and incompatible with a free society

The Law Society of Upper Canada (soon to be renamed something less historic), prepares to require its members ― of whom I am one ― to supply it with

individual Statement[s] of Principles that acknowledge[] [our] obligation to promote equality, diversity and inclusion generally, and in [our] behaviour towards colleagues, employees, clients and the public.

Bruce Pardy has written an excellent op-ed in the National Post to denounce this imposition as an essentially totalitarian attempt at thought control by the legal profession’s governing body. (He and Jared Brown also discussed the issue with Jordan Peterson; I am not fully on board with some of the things said in that conversation, but it is worth listening to.) While prof. Pardy’s op-ed makes the essential points, I will canvass a couple of further issues on this blog. In this post I will discuss the scope of the Law Society’s demand and what seems to me be the lack of legal justification behind it. I will have at least one other post to address the freedom of expression and freedom of conscience issues the demand raises, and probably another one about some broader concerns regarding the regulation of the legal profession.

The first point I want to make here is that it is important to be clear about just how far the purported obligation that the Law Society wants us to acknowledge extends. (I say “purported” because, as I shall presently explain, the obligation is, for the moment, a fictional one.) It is not merely a requirement that we act consistently with the values of equality, diversity, and inclusion insofar as they are embodied in legislation in force for the time being. No “statement of principles” would be necessary to accomplish that. The idea is to make us go beyond what the law actually requires. Yet in a free society people cannot be forced to do things that the law does not require, still less to hold or uphold beliefs.

People in free societies disagree ― including about the value and, even more so, about the scope and implication, of things like equality and inclusion. (Just compare human rights legislation in different jurisdictions. The differences between these laws are testimony to disagreements that can arise even among those who accept the general principle of such laws.) These disagreements are resolved for the time being by the enactment of legislation, and it is antithetical to the Rule of Law to demand that people who might not share the values, or the version of the values, that underpin the legislation in force for the time being act on those values beyond what the legislation actually requires.

Worse yet, the purported obligation is said to exist not only in the course of our practice of law (and any “behaviour towards colleagues, employees, clients and the public” that we engage in qua lawyers), but also “generally”. The fact that, as the Law Society’s “FAQ” repeatedly state, the obligation is said to fall not only on those engaged in legal practice but on all licensed lawyers, including, for instance, those who are retired, reinforces the natural reading of the obligation as covering aspects of our lives that go beyond the practice (and business) of law ― perhaps our every waking moment. This, once again, is utterly at odds with the idea that the demands that a free society makes on its members are limited, and typically do not extend into a certain private sphere, except of course to restrain actions that would actually violate the rights of others.

In concrete terms, I take it that, according to the Law Society, I have a duty to devote my scholarship to the promotion of equality, diversity, and inclusion. Certainly any topics or argument deemed, by the Law Society, to be antithetical to these ideas, would be verboten. Perhaps I must devote my personal life, and not only my professional activity, to the promotion of the Law Society’s preferred ideals. There is, after all, no natural limit to the generality of the word “generally”. Will the Law Society police my Twitter and Facebook accounts to see if they are sufficiently egalitarian, diverse, and inclusive?

The second point I want to make here is that it is not clear what the source of the Ontario lawyers’ purported “obligation to promote equality, diversity, and inclusion” even is. So far as I can tell, neither the By-Laws of the Law Society nor the Rules of Professional Conduct impose one. The closest they come to doing so is in commentary to Rule 2.1-1, which provides that “[a] lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity”. The commentary states that

[a] lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario.

Of course, the Commentary is not the Rule. But, in any case, “recognizing diversity”, “protecting human dignity”, and respecting the law ― all in the course of practice of law ― are much lesser obligations than promoting diversity and inclusion, and not only in one’s practice but generally.

Now, the “five strategies to break down barriers faced by racialized lawyers and paralegals” adopted by the Law Society from one of which the demand for a “Statement of Principles” derives, also say that

The Law Society will review and amend, where appropriate, the Rules of Professional Conduct … and Commentaries to reinforce the professional obligations of all licensees to recognize, acknowledge and promote principles of equality, diversity and inclusion consistent with the requirements under human rights legislation and the special responsibilities of licensees in the legal … profession[].

But even if the Law Society “will review and amend” the relevant rules, it does not seem to have done so yet. Thus, quite apart from any substantive issues with the Law Society’s demands, the fact is that the governing body of Ontario’s legal profession is demanding that lawyers “acknowledge” obligations that do not yet exist in law. Since the Law Society is now considering its rebranding options, may I suggest the Franz Kafka Appreciation Society?

But there is more. Even if, or when, the Law Society wants to amend its Rules of Professional Conduct to actually impose an generalized obligation to “promote principles of equality, diversity and inclusion”, it is not clear that will have the authority to do so. The Law Society Act, as it now stands, provides that

[i]t is a function of the Society to ensure that all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide. (Section 4.1(a))

It adds that

[s]tandards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. (Section 4.2.5)

It is not clear to me that the imposition of an obligation to promote certain values, be they ever so laudable, and especially of an obligation that extends beyond the practice of law or the provision of legal services are within the Law Society’s lawful powers under this legislation. The standards of professional conduct that the Law Society is authorized to impose have to be “appropriate” for the provision of legal services (and “should be proportionate” to the objective of regulating the provision of legal services). Admittedly, “appropriate” is a capacious word, and the deferential approach of Canadian courts to reviewing administrative decision-making means that it might take a lot of persuasion to get a court to hold that policing a lawyer’s beliefs and actions unrelated to the actual practice of law is not an “appropriate” way of regulating the provision of legal services. Still, I for one have a hard time seeing how it is appropriate for a professional regulatory body to transform itself into a committee for the promotion of virtue and the prevention of vice and, should it eventually come to litigation, it might be worth trying to raise this argument, in addition to those based on the Canadian Charter of Rights and Freedoms, which I will discuss in the next post.

In any case, quite apart from what the courts may or may not do, the Law Society, if anyone, shouldn’t be trying to strain the limits of its statutory powers. The Law Society Act provides that it “has a duty to maintain and advance … the rule of law” (s 4.2.1), which among other things requires public authorities to act within their lawful powers ― not to test their boundaries. The Rule of Law also prevents public authorities from imposing on those subject to their coercive powers obligations that do not exist in law. On many views, at least, the point of these strictures is to preserve a sphere of autonomy within which individuals can act without being supervised or hassled by the authorities. The Law Society’s attempt to make those subject to its regulations into the torchbearers for its favoured values is at odds with these commitments, which one would hope most lawyers would adhere to even apart from their statutory recognition. One can only hope that the profession will resist its regulators, who have sacrificed their longstanding principles in a quest to make everyone embrace newer and supposedly more progressive ones.

UPDATE: Annamaria Enenajor insists that I was wrong to claim that the Law Society is  demanding that we “supply it” with copies of the “Statement of Principles” that it wants us to produce. I take the point that the Law Society’s explanation does not actually say that we must supply it with our statements. I find the idea that we merely need to tell the Law Society that we have created the statements it demands, without proving that this is so, more than a little odd, which is why it hadn’t occurred to me originally, but it could well be correct. That said, I do not think that whether or not the Law Society wants to see our statements changes anything to the analysis.

Dark Vision

A critique of a “vision” of the courts as moral authorities.

In a post over at Slate, Omar Ha-Redye sets out what his title describes as “A Judicial Vision of Canada at 150 and Beyond“. The post is a rather rambling one, but insofar as I understand its overall purpose, it is meant to highlight the centrality of the Supreme Court to our constitutional framework, as illustrated in particular by the Court’s role in re-setting Canada’s relationship with its aboriginal peoples on a more respectful basis. Mr. Ha-Redeye opens his post by confidently asserting that “[f]or most of us today, the Supreme Court of Canada is the arbiter of the most complex questions of law, and the definitive authority for morality in our democracy.” He concludes as follows:

At Canada 150 the Charter, and the Supreme Court of Canada that enforces it, is as much of our democratic institutions belonging to us, if not even more so, than Parliament or the executive. Its autonomy, and insulation from the winds of popular change, may actually provide greater stability and greater effect to individual rights than the right to an individual vote.

In 1867, the vision of Canada could hardly be said to be a judicial one. In 2017, it’s difficult to envision a rule of law without it. [Sic]

Again, it is not fully clear what this is supposed to mean. Who are the “we” of the introduction? What is it difficult to envision “a rule of law” without? But I would like to offer a response, because Mr. Ha-Redeye’s “judicial vision” is, to me, a gloomy one ― and I say this as someone who believes in what is often disparagingly termed “judicial supremacy”.

First, this vision seems to me to reflect a certain confusion of principles, not to mention history. As I have argued here, it is a mistake to claim that the Charter and its enforcement by the courts are democratic. Asking unelected and largely unaccountable institutions to make decisions of public importance, including decisions concerning the powers of democratic majorities, is not what democracy is about; it is not “the government of the people, by the people”, although it may well be “for the people”. If “for the people were enough, then an enlightened monarch or a benevolent dictator would be able to call himself democratic too. Of course, to say that the judicial enforcement of entrenched constitutional rights is not democratic is not to say that it is bad; only that it has a democratic cost. This cost may be, and I think it is, worth incurring ― democracy, as I wrote in the post linked to above, is not the only thing that matters ― but we should not attempt to mask this cost by verbal gymnastics.

As for the Rule of Law, it would have been just as difficult to conceptualize it without a robust judicial role in 1867 as it is now. To be sure, the Fathers of Confederation did not provide protections for individual rights that were as deep or wide-ranging as those that we acquired with the Charter. But they structured the federation they were creating so as to provide some protections for individual rights. For instance, they attributed legislative powers to that order of government which was more likely to respect the rights, customs, and desires of its constituents in respect of the particular subject matter ― Parliament for criminal law, the provinces for most of private law. They set up a judiciary over which no legislature had undivided power, the better to ensure its independence. They provided special safeguards for those rights, notably in the realm of education, which they singled out for protection against legislative majorities. And they knew that these structural protections would mostly be enforced by the courts. The contrast that Mr. Ha-Redeye, like so many others, purports to draw between 1867 and 2017 is exaggerated in order to support the authority of today’s judiciary at the expense of that, not merely of our constitution’s supposedly backward framers, but of the constitution itself.

Most importantly, however, I am dismayed by the characterization of the Supreme Court as “the definitive authority for morality in our democracy”. Like Benjamin Oliphant, I suspect (and certainly hope) that the Court itself would disclaim this grandiose title. But it is distressing that a citizen of a free country thinks it appropriate to bestow it, and is convinced that many, even “most” of “us” ― whoever “we” may be ― would do likewise. In a free society, there can be no “definitive authority for morality” ― even political morality. Morality is a matter, ultimately, of individual conscience ― whether or not directed by God, religion, or anything of the sort.

Here is what Lord Acton (who did believe that conscience was a religious matter ― but I don’t think we need to agree with him on that) had to say about this, in discussing the “Beginning of the Modern State” in his Lectures on Modern History:

With the decline of coercion the claim of Conscience rose, and the ground abandoned by the inquisitor was gained by the individual. There was less reason then for men to be cast of the same type; there was a more vigorous growth of independent character, and a conscious control over its formation. The knowledge of good and evil was not an exclusive and sublime prerogative assigned to states, or nations, or majorities. When it had been defined and recognised as something divine in human nature, its action was to limit power by causing the sovereign voice within to be heard above the expressed will and settled custom of surrounding men. By that hypothesis, the soul became more sacred than the state, because it receives light from above, as well as because its concerns are eternal, and out of all proportion with the common interests of government. That is the root from which liberty of Conscience was developed, and all other liberty needed to confine the sphere of power, in order that it may not challenge the supremacy of that which is highest and best in man.

Mr. Ha-Redeye says he wants to protect individual rights, and is wary of majoritarian institutions’ failings in this regard. And yet, at the same time, he anoints another institution of the state as the definitive moral authority, thereby denying what Lord Acton saw as the very basis for individual rights in the first place ― the fact that there can be no definitive moral authorities (at least on Earth) outside of each person’s conscience. Mr. Ha-Redeye claims that states and nations, if not also majorities, enjoy “the sublime prerogative” of “the knowledge of good and evil”. But if they do, why would they not impose their views on the citizens (or rather, the subjects) ― by inquisitorial means if need be?

Now, Mr. Ha-Redeye and those who agree with him, if anyone really does, might argue that by exalting the Supreme Court as the “definitive moral authority” they do not mean to give power to the state. They may well share what I have described here as the Canadian tendency not to think of courts as being part of the state at all, but to see them as the citizens’ agents and protectors against the state. To a greater extent than I did in that post, I now think that this tendency is an error. As I said then, courts are of course different in important ways from the state’s other components in that they give individuals more opportunities to be heard. Nevertheless, they are a part of the state’s machinery of coercion, and those who forget this only increase the courts’ power over them.

To be clear, I believe that the courts have a very important role to play in ensuring that “states, nations, and majorities” cannot constitute themselves into supreme arbiters of morality; that the voice within is more important than what W.H. Auden so aptly described as “the loud, angry crowd/ very angry and very loud/ [saying] law is we”; and that the sphere of power must accordingly be confined. But the sphere of judicial power must be confined no less than the spheres of its legislative and executive brethren. The courts have no more title than parliaments or kings to the prerogative of the knowledge of good and evil. If we grant them this title, then we will well and truly have a “juristocracy”, and the rights we claim for ourselves will be no more than serfs’ boasts about the wonders of life under the heel of their beneficent lord.

Playing Favourites, Anniversary Edition

On the anniversary of the Constitution Act, 1982, a shout out to the provision restricting constitutional amendment

Today (Canadian time) is the anniversary of the signing by Queen Elizabeth II and entry into force of the Constitution Act, 1982. The government is celebrating, as are many constitutional aficionados, but ― with some honourable exceptions ― celebrations are focusing on one or two parts of the Act ― mostly the Canadian Charter of Rights and Freedoms, and to some extent s. 35, which protects aboriginal rights. The official statements of both the Prime Minister and the Minister of Justice only mention these provisions ― and not the other parts of the Constitution Act, 1982.

The tendency to play favourites with the constitution, which I have repeatedly criticized, notably in the context of the Court Challenges Programme (here and here) and with respect to the relative importance given to this year’s constitutional anniversaries, shows no sign of disappearing. Indeed I will contribute to it with this post, focusing on one provision of the Constitution Act, 1982. In my defence, it is a much-neglected one, both today and more generally.

This provision is subsection 52(3), which provides that “[a]mendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.” The authority in question is contained in Part V of the Constitution Act, 1982, which sets out the procedures for effecting various types of amendments.  Now, I have been sharply critical of Part V in the past ― I have argued that it was a “less-than-fully-legal mess” that in some circumstances failed to guide both the political actors to whom it was addressed and the courts to whom the political actors turned to clarify things. While I might have overstated certain points in that critique, I still think that it is fundamentally fair. The Constitution Act, 1982 is not perfect ― no law is, and least of all any law that emerged from a difficult compromise made necessary by the requirement to obtain super-majority consensus. But it is still, on that much we agree, part of “the supreme law of Canada”, as section 52(1) has it.

It is therefore incumbent on all constitutional actors ― Parliament, the executive, and courts alike ― to uphold this law. Even in those cases where the supreme law fails to fully guide their behaviour, they ought to act consistently with whatever guidance it does provide. And of course it does not always so fail. It is sometimes difficult to choose the right amending procedure among the six or more (depending on how you count the number of additional procedures created by section 47) outlined in Part V. But for many cases Part V is tolerably clear, and even when it is not, it does have the virtue of limiting the universe of possibilities from which the choice must be made. To repeat, if they are to comply with the principles of the Rule of Law and constitutionalism, all constitutional actors are bound to stay within these limits.

Unfortunately, Canadian constitutional actors ― and citizens, especially legal scholars ― are often inclined to disregard this obligation. Parliament enacted An Act respecting constitutional amendments ― the so-called regional veto law that in effect seeks to modify Part V of the Constitution Act, 1982 otherwise than with the clear terms of paragraph 41(e). Prior to the 2015 election, the federal executive was committed to a policy of abolishing the Senate by attrition, also in violation of what the Supreme Court had found were the requirements of Part V for abolition. (The then-official opposition was committed to a similar policy.) And of course the Supreme Court itself is fond of adding rights to the Charter by its own “constitutional benediction“, even though judicial invention is clearly not among the amending procedures listed in the Constitution Act, 1982.

Those who defend one or the other form of constitutional amendment in contravention to subsection 52(3) ― usually by the Supreme Court ― argue that the procedures listed in Part V are too difficult to comply with to effect necessary constitutional change. This amounts, of course, to an admission that there is no consensus about the necessity of the constitutional change in question ― and to a claim that a constitutional actor is authorized to change the constitution simply because it thinks the change is a good one, regardless of whether anyone else agrees. Yet this claim is incompatible with the Rule of Law. It allows a constitutional actor to put itself above the “supreme law of Canada”, and to become a law unto itself. Those who support such claims should be clear about their implications. In particular, they have no right to celebrate any part of the supreme law whose authority they ultimately deny.

Living under law is difficult. Constitutional celebrations usually serve as reminders of what constitutions make possible, and the reminder is a useful one. But we should acknowledge that, as all law, a constitution constrains in order to enable. If we seek to free ourselves from the constraints, we risk losing the possibilities. This is no less true of constraints on constitutional amendment as of those on the denial of our rights. Happy birthday, Constitution Act, 1982 ― and that includes you, subsection 52(3).