First of All Our Laws

Natural law in a Québec Court of Appeal decision in 1957

Starting with the Reference re Alberta Statutes, [1938] SCR 100, but mostly in the 1950s, the Supreme Court of Canada issued a series of decisions which came to be known as upholding an “implied bill of rights” in the Canada. The actual holdings of these decisions were often relatively narrow ― they held, for example, that provinces could not outlaw political or religious ideas, because doing so was part of Parliament’s criminal law power. Yet both the obiter comments of some judges and the general trend of these cases seemed to give a fairly clear indication that the Supreme Court would, to some extent at least, resist the arbitrary exercise of both legislative and executive power in Canada, and protect civil liberties.

Understandably less well-known are the decisions of the lower courts that tended to the same effect. In Morin v Ryan, [1957] Que QB 296 (CA), for instance, the Québec Court of Appeal awarded damages to a plaintiff it founded to have been defamed by being characterized as a “militant communist” ― a decision F.R. Scott described as “a healthy check on incipient McCarthysm”. Another such decision, which I have recently come across, is Chabot v School Commissioners of Lamorandière, (1957) 12 DLR (2d) 796.  Like many of the “implied bill of rights decisions” it concerned the religious freedom of Jehovah’s Witnesses ― in this instance, in the context of a school system organized along religious lines.

The applicant’s children were attending a Catholic public school ― the only kind there was in their rural municipality. After the family joined the Witnesses, the parents wrote to the school to request that the children not be required to take part in the daily prayers and to study religion-related content. What we would now call a “reasonable accommodation” seems to have worked well enough for a while, but eventually ― perhaps after some trivial misbehaviour by the children, though many of the judges seem quite skeptical of this ― the arrangement broke down. The children were expelled, and the school authorities made it clear that they would only re-admit them on condition that they take part in the full programme of religious activities. The father sought a writ of mandamus to compel the school to admit his children with the condition that they be exempted from religious exercises.

At the Court of Appeal, the case was heard by a bench of seven judges ― testament, I take it, to its special importance. Six sided with the father. Justice Rinfret, as he then was (Édouard Rinfret, that is, not to be confused with his father Thibodeau Rinfret, the Chief Justice of Canada), dissented, protesting that

no one wants to place any obstacles in the way of the religious liberty of the appellant or his children, no one aspires to force him to send his children to the school of the commissioners; if he does it, it is of his own volition, because he wanted to; but if it is his wish and if he insists on sending them there, he is obliged to … follow the regulations [as to religious exercises and studies] established by competent authority. (826)

The law, after all, allowed religious “dissentients” to establish their own schools. If the Chabot family was one of the few or even the only one in its small town, that was not Catholic, the law paid no heed to that; they should still set up their own school, or comply with the rules of the Catholic majority.

But the court’s majority did not see it this way. For them, the issue was one of religious liberty ― and indeed of natural rights. On its face, to be sure, the case was about interpreting the applicable legislation and regulations, and deciding whether they were ultra vires the province, notably in light of some of the already-decided “implied bill of rights” cases. Justice Casey, for instance, starts by putting the case before the court in this context:

During the past few years our Courts have been called upon to consider those fundamental rights commonly called freedoms of speech and of religion, and while differences have arisen in solving specific problems, never has the existence of these rights been put in doubt. (805)

But, more than in those cases, the judges who decided Chabot were explicit in their references to implicit rights prior to positive law, which guided their interpretation and application of that law. Thus Justice Pratte says that “it appears useful to recall that the right to give one’s children the religious education of one’s choice, like freedom of conscience, is anterior to positive law”. (802) Having quoted a couple of English decisions to this effect, and a passage from Aquinas cited in one of them, Justice Pratte writes that

if one considers natural law, first of all our laws, it is necessary to conclude that children who attend a school are not obliged to follow a religious teaching to which their father is opposed. (802)

Similarly, Justice Casey was of the view that “[w]hat concerns us now is the denial of appellant’s right of inviolability of conscience [and] interference with his right to control the religious education of his children”, which rights “find their source in natural law”. (807). Justice Hyde (with whom Justice Martineau agreed), also took the position that the school authorities’ position amounted to an assertion that they could

force upon [non-Catholic children attending Catholic schools] the teaching of the Roman Catholic Church and oblige them to go through forms of worship in accordance with that faith. It requires no text of law to demonstrate that this cannot be so. (813; paragraph break removed.)

Justice Taschereau (that is André Taschereau, not to be confused with his cousin Robert Taschereau, then judge on the Supreme Court and later Chief Justice of Canada), sounded a perhaps slightly more Dworkinian note:

It would … be contrary to natural law as well as to the most elementary principles of our democratic institutions that a father could not exercise the right or fulfil his obligation to instruct his children without renouncing his religious faith (834; emphasis added.)

Of the majority judges, only Justice Owen was more cautious, saying that “[t]here are differences of opinion as to the nature of [religious freedom], whether it is a civil right or a political or public right”, although he too had no difficulty in concluding that it “is a right which is recognized and protected in Canada”, while pointing to limited legislative, and no constitutional, authority.

Now, it is not entirely clear quite what relationship between positive and natural law the judges envisioned. Certainly they were prepared to let natural law guide their choice between plausible interpretations of ambiguous legislative provisions, and either to read down or to declare ultra vires regulatory provisions inconsistent with their chosen interpretation and thus with natural law. But would they go further and actually invalidate positive law for inconsistency with natural law? None of them finds it necessary to do so, but there is at least a hint that they might. Justice Hyde seems to suggest that compliance with natural law might be a constitutional requirement, saying that the school authorities’ power to determine the curriculum

cannot be construed to override [a] basic principle of natural law. It would require very specific provisions in the Act to that effect to justify any such interpretation and then, of course, the constitutionality of such provisions would be a matter for consideration. (813)

Justice Casey might be going further still, stating that rights which

find their existence in the very nature of man … cannot be taken away and they must prevail should they conflict with the provisions of positive law. Consequently if the regulations under which, rightly or wrongly, this school is being operated make it mandatory that non-Catholic pupils submit to the religious instructions and practices enacted by the Catholic Committee then these regulations are ultra vires … and invalid. (807; emphasis added)

That said, the same Justice Casey cautions that

while in principle no one should be coerced into the practice of a religion, or subjected to compulsion in following outwardly the dictates of conscience, or prevented from practising as he sees fit the religion of his own choice, this immunity disappears if what he does or omits is harmful or opposed to the common good or in direct violation of the equal rights of others. (805)

Meanwhile, Justice Pratte suggests that Québec’s education system was designed so as to “take into account the rights of the family in the matter of education.” (800) His and his colleagues’ decision, then, might only rely on natural law the better to advance the positive legislator’s objectives, as well as to protect natural rights.

The majority’s overt invocation of natural law reads like something of a curiosity sixty years later. The rights it sought to uphold have, more or less, been subsumed in the positive protections of the Canadian Charter of Rights and Freedoms ― and, perhaps even more so, in Québec’s Charter of Human Rights and Liberties. Nevertheless, the questions the Court addresses are also very modern. The issue as stated by Justice Taschereau ― whether a parent “[c]an … be obliged to renounce his religious beliefs as a condition to the admission of his children to a public school of the school municipality where he lives?” (832) ― is exactly the same as that which faced the Supreme Court in Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, the kirpan case. The answer the Supreme Court gave was not as novel as its critics keep on pretending it was, nor did it have to hinge on constitutional provisions which some of them affect to find illegitimate. Half a century before Multani, Québec’s highest court came to similar conclusions, on the basis of what it ― rightly in my view ― saw as truths antecedent to, and more permanent than, any constitution.

Abusus Non Tollit Usum

Should judges refrain from accusing their colleagues of acting illegitimately?

In a recent conversation, my friend and sometime guest here Maxime St-Hilaire argued that judges should refrain from accusing their colleagues of having overstepped the bounds of the judicial role, or otherwise acted illegitimately ― which they are mostly, although not exclusively, apt to do in dissenting opinions. Prof. St-Hilaire is especially opposed specifically to the use of the labels of “activism” and “restraint” to advance such criticism. Having long argued that these are unhelpful, muddy concepts, I agree with him to this extent. And I agree that accusations of illegitimate behaviour should not be levelled lightly, and that those who make them risk being exposed as hypocrites. However, I disagree with the point of principle: in my view, it is not inappropriate for a judge to claim that a colleague’s opinion not only misinterprets the law, but amounts to the sort of decision-making that is not open to judges acting within the confines of their constitutional role.

Prof. St-Hilaire has two reasons for his position. First, he believes that philosophizing is not part of the judicial job description. Second, he thinks that accusations of illegitimacy undermine the courts’ authority generally and judicial review of legislation specifically, and ultimately the Rule of Law itself. In my view, this is not so. Committing philosophy, as it were, is an inextricable part of the judges’ job. The scope of judicial authority is contestable and contested, and these contests are very much a part of the business of law, and not only a theoretical debate external to it. As for the Rule of Law, in my view, it does not depend on the courts presenting a united front despite existing disagreements among their members.

It is tempting to say that the controversies about the nature of law, its relationship to morality, and the proper role of the judge in respect of both law and morality, which excite the minds of legal academics, ought to be of no concern to sitting judges. Indeed, some legal academics advocate this view as a means of escaping the (admittedly often stale and always abstruse) debates about legal positivism and anti-positivism. But a judge’s theory of law matters in some cases. It matters that in the Patriation Reference, [1981] 1 SCR 753,  a majority of the Supreme Court adhered to a legal theory that I have described in a forthcoming piece as “pusilanimous positivism ― which simultaneously insists that any rules of law that are not enacted, whose existence cannot seriously be denied, must have been made by judges, and that judges have no mandate to engage in such law-making”. Had they adhered to a different legal theory, they could have recognized the legal status of constitutional convention, or given effect to constitutional principles as Justices Martland and Ritchie would have. Conversely, if the Court remained wedded to the legal theory the majority embraced in the Patriation Reference, then its opinions in Re Manitoba Language Rights, [1985] 1 SCR 721Reference re Secession of Quebec, [1998] 2 SCR 217, and perhaps most significantly Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 and its progeny, which were also based on the idea that principles, and not just posited rules, were part of the law of the constitution, would have been quite different.

To be sure, one can be concerned that judges are not very good legal philosophers. Some legal theories ― notably Ronald Dworkin’s ― assume that they are, but this is probably a mistake. There is simply no particularly good reason to think that judges are good philosophers. But then, they are also not very good economists, political scientists, geneticists, and much else besides. A snarky person might add that they are all too often not very good lawyers, either. But judges still have to engage with these various disciplines on occasion ― especially, although certainly not only, in constitutional cases ― and they must then do it as best they can. Whether or not judges are candid about this does not change the underlying reality that these other disciplines bear on, and sometimes are decisive to, the courts’ resolution of the disputes that come before them ― and there is, surely, a great deal to be said for judicial candour.

But assuming that judicial candour is good, can there be too much of a good thing? Prof. St-Hilaire thinks so. For him (and for many others who agree with him) the contemporary understanding of the Rule of Law principle encompasses judicial review of legislation. Arguments to the effect that a court has acted illegitimately in exercising its power of judicial review legislation undermine the authority of judicial review generally, and criticism that calls the legitimacy of judicial review into question undermines the Rule of Law itself. Accordingly, judges of all people should refrain from it. (Prof. St-Hilaire is not opposed to this sort of arguments being made by academics or journalists, presumably because they do not have the same responsibilities to the Rule of Law.)

In my view, by contrast, judicial review is not an inherent part of the Rule of Law, but only one possible means to secure the Rule of Law requirement (naïve though it may be) that public authority be exercised in accordance with the law. Indeed judicial review must itself be exercised in accordance with the law ― notably, constitutional text, but also other relevant legal rules, whether or not they have entrenched constitutional status. When a court acts without legal justification, it acts every bit as illegitimately (as well as illegally) as the executive or the legislature in like circumstances. It follows that the power of judicial review can itself become destructive of the Rule of Law if used for purposes other than ensuring that the executive and the legislature stay within the bounds of their authority. If, for example, a court uses its power of judicial review to attempt to bring about the just society, then it is not upholding the Rule of Law at all. It is indulging its members’ preferences, in the same way as government that knowingly secures the enactment of unconstitutional legislation, but in a manner that is all the more pernicious because it claims the authority and respect due to law.

It seems to me that, if they see this happening in a decision made by their colleagues, judges can ― and even should ― speak out. For very good reason, judges are not accountable for their exercise of their powers, except in the limited but still very important sense of having to give reasons for (most of) their decisions. Among other benefits, reason-giving exposes judges to scrutiny and criticism, starting with scrutiny and criticism by their colleagues who, in the common law tradition, have generally (the occasional resistance of some Chief Justices notwithstanding) been allowed to publish dissenting or concurring opinions.The possibility of criticism, starting with criticism in a separate opinion, is the only check on the power of a judicial majority in a case, beyond the restraint that individual conscience may or may not impose. So this check should be applied vigorously in order to ensure that the judicial power, and especially the power of judicial review, is exercised so as to further, not to undermine, the Rule of Law. As the Rule of Law’s first line of defence, dissenting judges must undertake, not shirk, this responsibility.

Of course, as I wrote here not long ago, those who criticize judges, including other judges, should do so “without resorting to taunts, insults, and sloganeering”. Accusations of “activism”, unless elaborated and supported by argument, amount to sloganeering at best. But as I wrote in that post,

[i]f we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law.

Sure, “juristocracy” or “gouvernement des juges” can be used as taunts and empty slogans ― and are so used by people who do not for a second care for the Rule of Law. But as the Romans put it, abusus non tollit usum. That something can be abused does not mean that it should not be used properly.

Powerless Law

Timothy Endicott’s challenging views on law and the constraint of public power

Last week, I had the good fortune of attending the 2016 Robin Cooke lecture, delivered by Timothy Endicott. Professor Endicott’s talk, entitled “Lawful Power” was very thought-provoking, so I’ll try to summarize it here, based on the notes I took, and offer some thoughts of my own. Fittingly for a lecture named after a judge who mused about the existence of “common law rights [that] lie so deep that even Parliament cannot override them”, and a past edition of which saw Chief Justice McLachlin assert that courts can and sometimes should invoke unwritten constitutional principles, which she described as a form “modern natural law”, to invalidate legislation, prof. Endicott’s lecture explored the limits of law and government power. It too asserted the existence of “lawful powers” which many others would deny. However, it attributed such powers not only, indeed not so much, to the judiciary, but also, especially, to the Crown.

 * * *

Prof. Endicott’s headline claim that is public bodies can exercise power for the purposes for which it exists, regardless of whether the law specifically authorizes them to exercise this particular power. They all ― not only the Crown, but especially the Crown ― enjoy a form of prerogative, which prof. Endicott insists, following Locke, is not a “right to do wrong”, as many in the United Kingdom (and, I would add, elsewhere) believe, but rather a right to do good without a rule to justify the good deed. Focusing on the exercise of Crown prerogative to trigger the procedures leading to the United Kingdom’s exit from the European Union, prof. Endicott argues that it is within the purpose for which the foreign affairs prerogative exists, and thus lawful. The enactment of legislation, which those challenging to the use of the prerogative claim is necessary to grant the Crown these powers, would not add to the UK’s being ruled by law.

The trouble, prof. Endicott says, is that very few people in the United Kingdom’s history ― other than John Locke, perhaps Blackstone, and, less auspiciously, Charles I ― have much “thought about what the executive power was for”. Indeed, people’s thinking about what the executive branch is is distorted. In prof. Endicott’s view, the executive in Westminster systems it is very much a democratic and accountable one ― as least as much as, if not more than, Parliament itself. “The United Kingdom is not actually a kingdom”, he says, and the prerogative is not in a real sense a royal one. It is, by convention, exercised by the Cabinet, which is more concerned about the next election than individual members of Parliament. It is thus dangerous not to think of the Prime Minister as the people’s representative ― only if we recall that this is what she is can we think clearly about the scope of the powers she ought to be able to wield. Ultimately, in prof. Endicott’s view, it is impossible to exhaustively define the powers that public bodies will need to exercise in advance. If the executive’s prerogative power were abolished, it would need to be replaced by a very wide-ranging delegation. From a Rule of Law perspective, would that improve matters? As things stand though, the executive’s prerogative powers simply have no identifiable source ― they certainly do not arise from the common law: it is not judges that made the prerogative, but the prerogative that first made the judges.

Shifting from the executive to the legislative power, prof. Endicott argues that  Parliament’s powers too are effectively a form of prerogative ― an ability to act for the public good within bounds that are undefined and cannot be defined except by reference to the purpose of this power. Parliamentary sovereignty doesn’t mean that Parliament is entitled to enact any law (as the orthodox view has it). Parliament could not, for instance, repeal the Canada Act 1982 (which renounced legislative authority over Canada); and judges, such as (the future) Lord Cooke, have suggested the existence of substantive limits on legislative power. The better way to understand Parliament’s legislative power is that it is not “an absolute power, but an unspecific one”. Parliament itself determines its scope, and neither the courts nor anyone else can interfere with these determinations. Importantly, this rule is not (contrary to what some of the judges in R (Jackson) v Attorney-General, a.k.a. the Fox-Hunting Case, have suggested) of the judges’ making, nor is it for judges’ to do with as they please ― as a matter of law, at any rate.

Turning to the judiciary, prof. Endicott notes that courts have the power to change the law ― they can overrule precedent for instance ― but not in just any way. For example, a court could not abolish mens rea requirements in criminal law. Until the 16th, maybe even the 17th century, courts did not claim the power to interpret legislation. They have asserted this power, and it is generally accepted now, but it has no source that we could be point to. Nor is it clear what is the source of the judicial power to resolve cases when the law is not clear. Like those of the executive and of Parliament, the courts’ powers are unspecific, and prof. Endicott says, nothing would be gained by attempting to specify and circumscribe these powers in advance.

Prof. Endicott concludes from this that we should acknowledge as lawful powers of public bodies those that the law should recognize them as having, instead of obsessing about defining these powers in advance. To be sure, we should be skeptical of government power; but in order to be healthy, our skepticism of the executive branch cannot overtake that of Parliament, the courts, and indeed the voters. Trusting the latter but not the former does not make for a balanced constitution. In the end, it is not the constitution that will save us from “nightmare scenarios”, but “a political culture” such that these scenarios are “genuinely not on the table”.

 * * *

There is a lot to think about here. In an understated manner, prof. Endicott points to some very inconvenient truths for those who care about the Rule of Law. At the same time, his own framework is arguably too optimistic, and one would like to think that an alternative is possible.

Prof. Endicott is right, I am afraid, that a meaningful comprehensive prospective definition of the legal powers of all public authorities is impossible. This is perhaps most obviously so with the courts, for the reasons prof. Endicott outlines. His argument on this point is reminiscent of HLA Hart’s insistence, in The Concept of Law, that

when courts settle previously unenvisaged questions concerning the most fundamental constitutional rules, they get their authority to decide them accepted after the questions have arisen and the decision has been given. Here all that succeeds is success. (2nd ed; 153)

With legislatures, it is tempting to think that the matter is different. To be sure, the constitutions of the United Kingdom and New Zealand do not seek to set out the scope of the “lawful powers” of their Parliaments in advance in any meaningful way. (New Zealand’s Constitution Act 1986 provides, in s 15(1), that “[t]he Parliament of New Zealand continues to have full power to make laws”, which rather proves prof. Endicott’s point about the futility of vague delegations of power.) But other constitutions, like those of Canada and the United States ― especially the latter ― seek to define the legitimate scope of legislative power, by specifying both the ends to which it can be used in the provisions relative to the federal division of power, and substantive limits on rights-protecting constitutional provisions. Yet any attempt to define legislative power in advance must allow for legislative responses to currently unforeseen circumstances; hence the vague residual powers such as the states’ police power in the United States, or Parliament’s “peace, order, and good government” power in Canada. As for substantive rights-protecting limits, they are necessarily incomplete. They might prevent legislatures from killing all blue-eyed babies, to give a classic example from discussions of Parliamentary sovereignty, but usually have nothing to say about, say, the imposition of confiscatory tax rates, and any number of other forms of iniquity or stupidity. To some substantial extent, Canadian and American legislatures too are entitled to define the scope of their own law-making powers.

The notion that “government in all its actions is bound by rules fixed and announced beforehand” ― FA Hayek’s definition of the Rule of Law itself ― might thus be naïve. Yet might not it be applicable to “government” in a narrow sense ― that is to say, to the executive? Here, I would desperately like to part ways with prof. Endicott. He is right to insist that we should not trust Parliament, the courts, and the voters even as we distrust the executive. I do not trust them either. But the executive is, arguably, somewhat different from the other powers of the state, to say nothing of the electorate: it can interfere with citizens much more readily than Parliament or the courts.

Enactments and judicial decisions (and for that matter at least some administrative ones, suggesting that we perhaps should not speak and think of “the executive” as a whole, but of its multitudinous components) are only made following certain procedures. Legislation must be implemented, and its implementation can often be challenged in court. Judicial process (and, again, often administrative process too) allows directly affected parties to participate, and sometimes to appeal. Even the constitutionality of legislation can sometimes be challenged. In short, there is a certain distance, a certain buffer zone, between the exercise of the government’s legislative or judicial power and the citizen.

By contrast, there is no such buffer zone between a citizen and a policeman pointing a gun on him; or a citizen and government agent reading tapping her phone, or reading her intercepted emails. Sure, there might be after-the-fact remedies against abuses of executive power ― often better remedies than those against abuse of judicial and especially legislative power. But the abuse, in many cases, has already occurred, and can at best be compensated, not undone. This, it seems to me, is a good reason for wanting to treat executive power differently, and confine it ― or at least some of its manifestations ― within limits set out in advance , so as, to come back to Hayek, “make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge”.

 * * *

Prof. Endicott struck a rather optimistic tone, arguing that we can embrace, and need not fear, public powers acting for the greater good, without rules. Yet for me, his thesis is a pessimistic if not an altogether dystopian one ― it is a thesis not so much about “lawful power” as about the law’s powerlessness to constrain public authority. But however much we might dislike this vision, I think prof. Endicott’s argument is a very challenging one. It may well mean that we have to re-think our views of the Rule of Law to at least some extent. It encourages us to reflect on the nature and purpose of public powers, and especially of the executive power, and on the strength of the latter’s claims to legitimacy independent of that of Parliament. (On this last point, I wonder if prof. Endicott’s argument is affected by the Fixed-Term Parliaments Act in the United Kingdom.) The best, and certainly the most interesting, thinkers are not ones one agrees with all the time; they those disagreeing with whom forces us to re-examine our views and to sharpen them, because complacency in the face of their challenge is not an option. Prof. Endicott is one of them.

 

Permanent Problems

The law’s ideals and problems have not changed too much in 400 years

I have only now read Francis Bacon’s essay “Of Judicature.” Bacon seems not to enjoy anything like the reputation of his rival Coke, in the law schools anyway ― I suspect that they haven’t heard much of Coke in the science faculties, where Bacon is regarded as “the father of the scientific method.” Still, his essay is fascinating, because it shows just how little the law’s aspirations and failings have changed in the 400-odd years since it was published.

Bacon’s essay is essentially a collection of advice to judges about how to discharge their office. A good deal of it could still be repeated today. My point, in drawing attention to it, is not to say that all of this advice is good, at least in an unqualified form. It is, first and foremost, to remind the reader of the remarkable historical continuity which, for better and for worse, characterizes the law as a field of human activity.  Here are a few of Bacon’s recommendations, with some accompanying thoughts or comments of my own.

* * *

Judges ought to remember, that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.

Sounds familiar, doesn’t it? If and when there is at last a confirmation hearing for the next judge of the Supreme Court of the United States, you will hear this exhortation repeated ad nauseam; you might even hear it if there is any sort of public hearing involving the next judge of the Supreme Court of Canada. John Finnis quoted Bacon’s appeal in his very interesting recent lecture on “Judicial Power: Past, Present and Future” (whence I learned about Bacon’s essay). But the very fact that this limitation on the judicial role has for so long, and so often, been reiterated should alert us to the habitual futility of the appeal. The Supreme Court’s equivocation over  whether it discovers or makes up the legal rules which it articulates for the first time seems to the suggest that the ideal of the law-saying judge has some appeal to those already holding judicial office ― but not as much as Bacon would have liked.

[W]hen there appeareth on either side an high hand, violent prosecution, cunning advantages taken, combination, power, great counsel, then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.

This is also a familiar idea in 2016. Richard Posner, to give but one ― perhaps unexpected ― example has been very vocal about the need for active judicial intervention “to make inequality equal” by correcting the disparities of resources between parties to litigation, whether in his judgments or in a recent extra-judicial indictment of “What Is Obviously Wrong with the [American] Federal Judiciary, Yet Eminently Curable” (see 190-91). There are situations, it is worth noting, where judges might be making things worse, not better. I have been arguing for a while now that this may be happening in constitutional law, as judges increasingly expect expert evidence to support Charter challenges, and thus increase the inherent disparity of resources between citizens and government. (In a recent post over at The Court, Lillianne Cadieux-Shaw seems to share this concern.)

Patience and gravity of hearing, is an essential part of justice; and an overspeaking judge is no well-tuned cymbal. It is no grace to a judge … to prevent information by questions, — though pertinent. 

There has been much discussion of this point following the recent death of Justice Scalia. He was a famously active interrogator of the lawyers who appeared before the US Supreme Court. Surviving him is his colleague Justice Stephen Breyer, whose solliloquies questions occupying entire pages in the oral argument transcript Josh Blackman lovingly (?) documents. By contrast, Justice Clarence Thomas, of the same court, had spent a decade without asking a single question until finally doing so recently. Justice Thomas, one supposes, would agree with Bacon. Those who derided him for his self-imposed silence presumably would not.

[T]hose, that engage courts in quarrels of jurisdiction, … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.

Here at least, I agree with Bacon wholeheartedly. Those who, in the pursuit of their own ― these days usually political ― agenda, seek to draw the courts beyond their proper remit are not the courts’ friends, though they may present themselves as such. I have said as much in response to a call for the Supreme Court to decree, by judicial fiat, the “depoliticization” of judicial appointments. I wish I’d known the phrase parasiti curiae then, but I will make sure to use it on the next appropriate occasion.

Judges ought above all to remember the conclusion of the Roman Twelve Tables; Salus populi suprema lex.

Perhaps the most obvious example of Canadian judges applying Bacon’s prescription is the Supreme Court’s opinion in Re Manitoba Language Rights, [1985] 1 S.C.R. 721, where the Court sought to avoid “chaos” that its finding of unconstitutionality of Manitoba’s entire statute book by the expedient of suspending this finding’s effect. But beyond such exceptional situations, Bacon’s advice gets tricky fast. For one thing, the Latin salus is ambiguous. It can mean “health,” “safety,” or “welfare” ― making salus populi not one single objective, but a complicated programme. Still it is often said that judges ought to have regard for the public safety (“the Constitution is not a suicide pact”) or even welfare ― Judge Posner being a foremost advocate for the latter position. But isn’t there a tension between making public welfare into supreme law, and renouncing judicial legal innovation? Bacon says, “let no man weakly conceive, that just laws and true policy have any antipathy,” but even if true, this point doesn’t really address the issue of the judicial role. And Bacon’s concrete recommendations for achieving the salus populi ― frequent consultations between the three branches of government, and a demand that judges “be lions, but yet lions under the throne” would run afoul of our views on judicial independence, which are quite different from his.

* * *

In the essay I mention above, prof. Finnis writes that “[t]he problems about the nature and reach of judicial power, about which Bacon and Coke disagreed, are with us today in forms much shifted in occasion and location but still recognizably the same.” That is because they are “permanent problems, capable it seems of only provisional rather than permanent solutions.” (3) The relevance of Bacon’s prescriptions, and the fact that they would be contested now as they were contested when given (and again, except as specified above, I do not fully agree with them), suggests that prof. Finnis is right about that.

(La) Doctrine

What do legal doctrine and la doctrine have to do with each other?

I was at the colloquium that McGill’s Crépeau Centre held on Friday for its 40th anniversary on the topic of “The Responsibility of Doctrine.” It was quite interesting, if a little uncanny for someone who, despite my McGill professors’ best efforts, never found the civil law quite congenial. Without going into anything like a detailed comment on the proceedings, I would like to offer the following meditation on a subject that the panellists did not actually discuss but which I think their presentations illuminated nicely: the complicated relationship between the civilian (and mostly French) and the common law (and thus mostly English) senses of the word “doctrine.”

The civilians’ doctrine is (roughly, because the actual definition is debated) the set of writings, learned but not necessarily academic, that synthesize, explain, analyze, and possibly criticize the state of the law. The common lawyers’ doctrine, according my own tentative definition, is the set of rules and principles that can be derived or inferred from judicial decisions. The two words do not mean the same thing, then. They are, linguists or translators would say, “false friends.” But are they really friends at all? Or, conversely, are they actually false?

Some civilians deny that there even is such a thing as la doctrine in the common law world. And, for their part, they have no word that would be equivalent to the common lawyers’ doctrine, and perhaps they have little use for such a word, given the opacity of the traditional civilian judicial decisions, and the subordinate status of la jurisprudence as a source of law. If so, then la doctrine and doctrine can hardly be friends at all; indeed, it is almost as if “never the twain shall meet.”

But this seems too quick. As Derek McKee pointed out, it’s not so clear that there is no doctrine in the common law world. (Peter Hogg’s Constitutional Law of Canada seems an obvious example, for instance.) Sébastien Grammond, for his part, said that even judicial opinions, or at least some them, could be regarded as part of la doctrine, insofar as they serve the same function of stating and explaining the law. This cannot happen in the single-page decisions of the French courts, but does happen here. (And perhaps, conversely, the more common-law-like decisions of the courts that apply Québec’s civil law can also produce doctrine in the common law sense.)

That said, the differences between the common and the civil law systems are relevant to the relationship between doctrine and doctrine. The respective roles of the different branches of the legal profession, especially the judicial and the academic ― and their publishing habits or obligations ― mean that the participants in and the form of doctrine and doctrine differ. Judges are in theory ― and subject to prof. Grammond’s above-mentioned comments ― excluded from la doctrine. They are, by contrast, the most significant contributors to doctrine. La doctrine develops, first and foremost, in books and articles. (There was much interesting discussion, especially by Élise Charpentier, about the fluctuating respective fortunes of these two media.) Doctrine grows in the pages of law reports as well as law reviews and law books ― although Justice David Stratas has recently argued that it is in danger of being drowned out by the siren songs of result-oriented reasoning, in public law fields anyway.

However, these differences are less important than what doctrine and doctrine have in common. The important thing about both is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. (This point was, I think, most clearly made by Aurore Benadiba.) And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.

These conversations can be noisy and perhaps chaotic, since they involve multiple speakers addressing multiple subjects ― judges, scholars, and lawyers trying to figure out not only what the law is but also, at least some of the time, what it should be. (The critical component of la doctrine is often mentioned in its definitions. But those of you who have listened to Justice Stratas’ lecture that I link to above, or read my post about it, will also recall that he said that the judges who are “doctrinal” are not only interested in what the rules are, but also, perhaps, in tweaking in modifying them.) They yield no permanent truths and no irrevocable agreements, and as new voices enter both their vocabulary and their contents shifts, usually imperceptibly, sometimes abruptly.

But meandering and sometimes cacophonous though these conversations are, they are the visible, and therefore the imperfect, manifestation of the jurists’ quest to make the law coherent and conducive to the public good through argument and shared deliberation. Common lawyers, most famously Chief Justice Coke, called this quest the “artificial reason” of the law. While I am not aware of an exact civilian equivalent, I believe that Portalis, for example, with his insistence that “[l]aws are not pure acts of power; they are acts of wisdom, justice and reason,” and that “[t]he lawmaker … must not lose sight of the fact that laws are made for men, and not men for laws” would have shared its spirit.

At least some of Friday’s presenters insisted that la doctrine is our joint responsibility as juristes (and some, notably prof. Grammond, have argued that the responsibility runs beyond the legal profession itself). So did Justice Stratas in his lecture, as called upon judges, lawyers, and scholars alike to devote ourselves to doctrine, and on all of those who write about the law to take doctrine seriously. I am trying my best to answer the call. And so I will conclude with an observation that was entirely ignored in Friday’s presentations ― except prof. Grammond’s.

The web 2.0, and especially the blogs, are already a part of the doctrinal conversations, and will be an ever more important one in the years to come. Justice Stratas not only mentioned a couple of bloggers (specifically, Paul Daly and yours truly, for which I am very grateful to him) as examples of legal writers who take doctrine seriously, but also kindly commented on my post about his lecture. This sort of exchange was simply impossible until a few years ago, and I suspect that, for many, it still seems inconceivable. But I am hopeful, and pretty confident, that in time it will no longer seem so. What I’m trying to say is not, of course, that anyone should read or comment on what I write (though it’s nice when that happens). It’s that if doctrine and doctrine are to flourish in the 21st century, they will need to remain open to new forms, and that it will not do to ignore these new forms simply because they are unfamiliar.

The Judges’ Law

Did you always want to know what my dissertation is about? Let me tell you!

I have occasionally mentioned the doctoral thesis I have been working on for the past four and a half years, and even posted a few tidbits (here, here, and here). But I don’t think I’ve ever even explained what the damned thing is about. Yet it is ― until I defend it, hopefully this spring ― after all, my “day job.” Anyway, I was recently asked to produce an abstract of the thing, and I figure that, having done so, I might as well share it. Here it is.

The Judges’ Law

As citizens of democratic polities we mostly share an ideal of self-government, according to which the laws under which we live ought to be made by legislatures which we elect and which act on our behalf. Yet rules articulated by courts in the course of adjudication―which I refer to as “adjudicative law”―form a non-negligible, and in common law jurisdictions a very significant, part of the law of the law of such polities. This is a study of these rules: of the context in which they are articulated, of their origins, and of their legitimacy in a democracy.

I begin by describing the environment in which adjudicative law emerges. First, I survey some constraints that judicial adjudicators face: a duty to attend to the arguments put forth by the parties, to decide the dispute, to do so in accordance with a general rule, to give reasons for their decision, and to uphold and preserve the law’s coherence. Second, I consider a number of characteristics of courts as institutions, including judicial independence, judicial training, and collective decision-making on appellate courts. Third, I review the rules of justiciability and evidence, insofar as they influence the articulation of adjudicative law.

I then examine the sources from which the rules of adjudicative law are drawn. After reviewing of the some academic writings on this point, I consider the reasons given by courts in a number of important, precedent-setting cases drawn from a variety of areas of the law. The main sources of adjudicative law I describe are underlying legal principles, social practice, and judicial fiat implementing a court’s policy judgment.
Having thus described some salient characteristics of adjudicative law, I turn to the question of its legitimacy in a democratic polity, focusing on four themes. The first is democracy, in connection with which I address the issue of the democratic deficit of adjudicative law and the argument that it can claim a democratic legitimacy that does not rest on the ballot box. Second, I consider the quality of adjudicative law, its fitness for purpose. Under this heading, I assess some issues with the courts’ institutional competence, on the one hand, and the claims that adjudicative law stands in a privileged relationship with reason, on the other. Third, I address the question of whether adjudicative can satisfy the requirements of the Rule of Law. Finally, I consider the relationship between adjudicative law and the past, focusing on the principle of stare decisis.

The outcome of this re-assessment is a nuanced one. Adjudicative law suffers from undeniable weaknesses, when compared with legislation―or at least with legislation as it might be, and not necessarily as it actually is. But the gravity of these weaknesses varies across areas of the law and depends on the specific institutional arrangements used in each legal system. It is best, I conclude, to refrain from across-the-board condemnations or endorsements of adjudicative law, and consider each case in its own context and on its own merits.

We are, I explain in conclusion, bound to live with adjudicative law, flawed though it may be. Yet its flaws can be addressed to some extent, even within the framework of our current institutional arrangements. These remedies, which I briefly outline, will not make the problems of adjudicative law disappear, but they may somewhat improve the situation. Since adjudicative law is with us to stay, even slight improvements would be worthwhile.

 

How to Get It Right on Wrongs

Ontario’s Superior Court has created a new tort. But should it have, in the circumstances?

In Doe 464533, 2016 ONSC 541, a delivered a couple of weeks ago, Ontario’s Superior Court of Justice awarded substantial damages to a person whose ex-boyfriend posted an intimate video of her online, in addition to showing it to some mutual acquaintances. He had previously coaxed her into making the video, promising that he would be the only one to see it. The promise was a lie, since he shared the video as soon as she had sent it to him. Justice Stinson finds the defendant liable for breach of confidence, intentional infliction of emotional distress, and public disclosure of private facts. The latter ground of liability had never before been recognized in Canadian common law, prompting David Fraser, at the Canadian Privacy Law Blog, to write that “[t]his is a huge deal.” It may indeed, as Mr. Fraser implies, be a hugely positive development. Certainly in Doe the Court was able to give the plaintiff redress for a blatant and vicious injustice that the defendant had done to her. Nevertheless, I want to ask whether, in the circumstances, recognizing or creating this new cause of action was the right thing to do. I hasten to add that, in asking the question, I do not mean to suggest that it must be answered in the negative ― only that it is worth thinking about.

One reason why I wonder whether Justice Stinson was right to develop the common law of privacy in this case is that, as David Canton has pointed out over at Slaw,

[t]he defendant did not file a statement of defence, and this decision was based on a motion for default judgment. So while the decision is well reasoned, there was no contrary position presented. 

Courts are normally dependent on hearing arguments from both sides of a case. Indeed, Jeremy Waldron has argued compellingly that the clash of competing arguments is an essential component of what law is, at a conceptual level. Needless to say, if one the parties chooses to forego his or her right to make an argument, as the defendant did here, this should not stop a court from ruling and, where appropriate, making an order against that party. But I wonder whether the absence of one of the parties from the litigation is not a reason, a very good reason even, for a court to be reluctant to make its ruling a precedent-setting one.

Now, this concern should probably be heavily discounted if not ignored if the question on which a precedent may be set is unavoidable on the path to a decision on the facts of the case. However, this is not the case in Doe. As I note above, Justice Stinson found the defendant liable for three different torts arising out of the same set of facts. The first two are familiar, although I take it that they had not previously been applied to similar circumstances. Had Justice Stinson “only” concluded that the defendant had committed a breach of confidence and deliberately inflicted emotional distress on the defendant, he could and surely would have awarded the same damages against him. So there was no pressing need for the judge to address the question of whether public disclosure of private facts should be a distinct ground of liability. Of course, we can imagine circumstances where the other causes of action would not be made out, and the new tort would be the only conceivable ground of liability. It is arguable that Justice Stinson’s thoughtful analysis is a service to future litigants. But again, the value of that analysis is lessened by the fact that it does not rest on a full, contradictory argument by the parties.

And then, quite apart from the unusual circumstances of this case, there is the perennial question of the relative roles of courts and legislatures in developing the law and creating new causes of action. Justice Stinson notes, early on in his reasons, that Parliament has criminalized the “publication of an intimate image without consent,” and that one province, Manitoba, has passed legislation to make it tortious. Should the law of other provinces move in the same direction by way of common law development, or should the courts wait for the legislatures ― which presumably are well aware of the problem ― to act? There are certainly good reasons for the courts not to wait. At least so long as any new causes of action are carefully circumscribed, there is probably something approaching a social consensus in favour of granting the victims of cruelty such as that suffered by the plaintiff in Doe a civil remedy. The issues involved are not ideologically controversial, and do not concern complex policy questions on which courts might lack expertise. Indeed, one could go so far as to say that, seeing how clumsy and pernicious legislative attempts to deal with online miscreants can be, courts would do well to act first, so as to remove the temptation to act that legislators would otherwise feel. All the same, it might have been useful for the court to address the question. Justice Stinson’s reasons do not.

To repeat, all that is not to say that Justice Stinson was wrong to develop the law in the way he did, or that his reasoning on the substantive issue of whether to create a tort of public disclosure of private facts could or should not be endorsed by a court considering the matter in a subsequent case. My point is only that we should take his decision as an occasion for a reflection on the courts’ when faced with novel legal issues.

Taking Doctrine Seriously

Some thoughts on a most interesting lecture by Justice David Stratas

Last week, at the Canadian Constitution Foundation’s Law and Freedom 2016 conference, Justice David Stratas of the Federal Court of Appeal delivered a fascinating lecture called “The Decline of Legal Doctrine.” I highly recommend it. I won’t summarize it beyond saying that Justice Stratas’ thesis is that judges, lawyers, and academics are all guilty of a lack of interest in legal doctrine and tend to see the law as largely result oriented, which diminishes the legitimacy of judicial decision-making and risks leaving us at the mercy of dangerous prevailing opinions should crisis strike. There is simply too much there, and it is too important, for a summary to be useful. I will share a few reflections of my own below. Here it is.

Before I get to my comments, I want to say that I am, of course, very flattered at being mentioned as one of the exceptions to the general lack of interest in legal doctrine. Indeed, I am flattered that Justice Stratas should read my blog at all. I hope, however, that my gratitude for Justice Stratas’ kind words does not bias my views of his lecture.

* * *

Here they are, in a somewhat disjointed form. With one exception, they concern things that Justice Stratas did not say, and which I would love to hear him say more, at some future point, rather than things he did say with which I disagree. They are, in other words, intended not as criticisms, but as questions.

1. Let me start with the word “doctrine” itself. Maybe it’s just me, but I find it a slippery one ― it’s one of those words that lawyers love to use that can mean different things in different contexts, perhaps depending on whether we use them with a definite or an indefinite article, or no article at all, while assuming that everyone knows what we are talking about. A non-lawyer in the audience asked Justice Stratas what the difference between legal “theory” and legal “doctrine” was, but only got a definition of “theory” in response. As best I can though, legal doctrine (no article) is the set of rules and principles that can be derived or inferred from judicial decisions.

Here’s an interesting twist though: later in the Q&A, Justice Stratas spoke of the various types of judges and said that “doctrinal” judges are those who “understand the rules but want to know more about how to use them and these are perhaps reformist people that might want to tweak or modify the rules.” I think that this connection, in practice if not as a matter of definition, between an interest in the rules and their underlying principles on the one hand, and an interest in tweaking them on the other, might be, if not slightly paradoxical, then at least in tension with the need for doctrinal stability of which Justice Stratas spoke so passionately. Does doctrine bear the seeds of its own destruction?

2. Justice Stratas argues that we need stable, coherent, legal doctrine to which lawyers and judges alike are committed because we might not always live in “benign times,” and in a moment of crisis we will be better off if judges decide controversial cases on the basis of stable legal doctrine rather than of what they feel is right or fair in those ominous circumstances. Crises rarely make for clear, even-handed thinking. Legal doctrine is, in other words, a form of pre-commitment that will save us from the siren calls of rights-crushing emergency.

I would like to think that this is true. But is it? Can we think of situations where doctrine has played such a role? And indeed, why do we think that a commitment to legality will be less likely to falter in a time of crisis than a commitment to justice? That, after all, is the underlying premise of the claim that doctrine will save us even if the judges’ sense of right and wrong is swayed by momentary considerations. Again, I would like this to be true, but I wonder if we have reasons to think it is, other than our desire for it to be.

3. Justice Stratas argued that we must devote ourselves to stabilizing legal doctrine, to settling public law doctrine in a comprehensive way ― and that we must do it right away. Tomorrow will be too late. At present, public law is too unsettled ― precedents can be reversed with little apparent explanation, or simply ignored without being reversed. (An aside: one area which Justice Stratas specifically mentioned as illustrating this trend is the courts’ relationship to empirical evidence, and the rule ― which he tied to the Supreme Court’s recent assisted suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, but which actually goes a little further back, to Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 ― that appellate courts should defer to a trial judge’s findings with respect to such evidence. Some of the points he made in criticizing this rule seem to echo ideas I have expressed on this blog, especially here, so I was very glad to learn that Justice Stratas shares these concerns.)

Here’s a question though. If we accept, as I think we should, the mission that Justice Stratas wants us to undertake, what is our departure point? Do we simply take the current state of the law as a given and stop messing with it, on the assumption that it is more important that things be settled than that they be settled right? Or should we, in order to build on solid foundations, go back to first principles to some extent ― at the risk of reversing some more precedents? Are there other potential pitfalls to deciding from first principles? Justice Stratas praised the Supreme Court of the 1980s for its “painstaking,” “scholarly,” and “balanced” approach to Charter cases, in which it had to build doctrine from the ground up ― but I wonder if that is not idealizing things somewhat.

4. Justice Stratas argues that a doctrine-focused approach to judicial decision-making, even in cases of first impression or those involving conflicting lines of authority, can be free from politics, and that the judges’ personal views matter less than people tend to suppose. That is true, as I’ve often said, if we understand politics in a partisan sense or, as Justice Stratas might have meant it, as synonymous with results-oriented reasoning. However, as I’ve also often said, I think that politics, in a much broader sense of ideas about how the state and society as a whole should be organized does matter to judicial decision-making. Justice Stratas speaks of developing legal doctrines in ways that “make sense” ― but it seems to me that legal doctrines make sense in light, among other things, of certain values that they reflect or serve, and that these values can be described as political, in a broad sense.

This is perhaps the only point on which I disagree with Justice Stratas. Though it might be a disagreement about words more than about the underlying realities, I think that the words matter. I worry that complete denials of the political aspects of adjudication come across as overdone, and as a result do not actually help the courts establish their legitimacy.

5. That said, Justice Stratas was right to criticize those ― whether academics, lawyers, students, or journalists ― who think of judicial decisions purely in terms of results and their political implications, real or supposed. (He compared such commentary to “essentially an open-line radio-show comment put in an educated way using highfalutin legal language.”) He was also right to lament judicial decisions that leave room for such interpretations, in particular through their failure to adequately explain, in terms of legal doctrine, the outcomes that they reach.

I wonder, though, what can be done about this very real problem. I’m afraid that judges focusing on the doctrine and explaining their decisions will not be enough. For instance, I don’t think that the Supreme Court’s recent jurisprudence in the area of language rights is half bad, in terms of engaging with doctrinal issues. Yet in December’s Policy Options, a couple of political scientists published a tendentious take-down of this jurisprudence looking at it entirely through the lens of results (which happened to go against language-rights claimants) and, as I have argued in a Policy Options blog post, blithely ignoring the law in the process. In other words, people are liable to misrepresent the courts’ work as results-oriented even when any fair reading of the decisions in question shows that it is not. Dan Kahan et al. wrote about this problem in a fascinating study (about which I blogged for the National Magazine) that found that while legal reasoning tends to be based on legal, rather than (narrowly) political considerations, “our system of justice lacks reliable practices for communicating courts’ neutral resolution of divisive matters.” Lawyers should, no doubt, try to push back against tendentious and uninformed criticisms of the judiciary (though as I have also argued they should do so without misrepresenting all criticism as tendentious or as endangering the Rule of Law!). But is that enough?

* * *

Well, this is more than enough for me. Again, I express my gratitude to Justice Stratas for a fascinating lecture and for his kind words, and I hope that he comes back to this topic in the future. The above questions and quibble notwithstanding, Justice Stratas is right that we need to take legal doctrine seriously, and we owe him for reminding us of this.

Why Codify

Apologies for my silence of late. I’m afraid blogging will be light for another week or so. In the meantime, however, here’s something related to the topic of my last post, the codification of law. It won’t be news to those versed in the history of Québec law, but it’s something that I, in my ignorance, did not know, and find interesting, fascinating even: the reasons given by the legislature of the United Province of Canada for codifying the substantive and procedural civil law of Lower Canada.

These reasons are set out in the preamble of the Act Respecting the Codification of the Laws of Lower Canada Relative to Civil Matters and Procedure, Con. St. L.C., c. 2 (available here at XXXIII). There are three of them, and while they have, in a general sense, to do with the accessibility of the law, a consideration of the foremost importance to proponents of codification such as Jeremy Bentham, they concern aspects of this problem that are quite different from those with which Bentham was concerned. For him, codification was an opportunity to provide a statement of the law that would be both comprehensive and comprehensible to everyone (by virtue of being expressed in a concise, clear, and logical text). As I noted in my last post, the drafters of the French civil code knew that such ambitions for codification were not realistic. For them, codification was a means of realizing some political objectives ― notably national unity and the consecration of a certain (conservative) mindset. (I plan on returning to this issue eventually.) But the Canadian codification pursued other aims again.

The first “whereas” of the preamble notes that much of Lower Canada’s civil law being French, and some of it being English, “it therefore happens, that the great body of the Laws in that division of the Province exist only in a language which is not the mother tongue of the inhabitants thereof of British origin while other portions of it are not to be found in the mother tongue of those of French origin.” Codification was thus presented, first, as an opportunity to make all the laws accessible to the speakers of both languages. It was, in a way, the continuation in Lower Canada of efforts begun in England with the Pleading in English Act, 1362, 36 Edw. III c. 15, which provided that court procedures would thenceforth be in English, rather than, as before, “in the French Tongue, which is much unknown in the … Realm,” and continued with the Proceedings in the Courts of Justice Act, 1731, which also complained of the “many and great Mischiefs [which] do frequently happen to the Subjects of this Kingdom, from the Proceedings in Courts of Justice being in an unknown Language.” These linguistic concerns are also reflected in the first section of the Codification Act, which required that of the two Secretaries to the Commissioners for Codifying the Laws of Lower Canada one “be a person whose mother tongue is English but who is well versed in the French language, and the other a person whose mother tongue is French but who is well versed in the English language.”

The second “whereas” of the preamble, for its part, referred to the increasing difficulty of obtaining copies of the old French laws “still in force in Lower Canada,” as well as “commentaries upon them,” due to their “hav[ing] been altered and reduced to one general Code.” This is a practical consideration and one that is obviously peculiar to the situation of Lower Canada in the mid-19th century. But the reference to “commentaries upon” French laws as being important, perhaps even necessary, is worth noting, mostly because it stands in an interesting contrast with the hostility to legal commentary that the French codifiers saw the need to address at some length, but perhaps also in light of contemporary doubts about the value of legal scholarship. The legislators who decided on the codification of the laws of Lower Canada seem to have believed that the writings of legal commentators are as important as legal texts themselves in making the law accessible ― a belief that CanLII Connects represents in the digital age.

Finally, the the third “whereas” also referred to “the great advantages which have resulted from Codification, as well in France as the state of Louisiana, and other places” ― without elaborating on what these “great advantages” were. Codification, it was content to proclaim, was “manifestly expedient.”

As in post-revolutionary France, the circumstances of time and place seem to have provided the impetus for codification in Lower Canada. However, the reasons which (at least ostensibly) motivated Canadian legislators had more to do with the needs of the legal community ― and thus, even if indirectly, the litigants ― and universal principles than those that moved Bonaparte and his codifiers to action. Whether this difference had any substantive consequences, I am not qualified to say. But I think it is interesting to note.

Portalis versus Bentham (Part I)

A couple of years ago, I wrote about Jeremy Bentham’s pamphlet “Law as It Is, And as It Is Said to Be,” also (or better) known as “Truth versus Ashurst” (available here, at p. 145), most famous ― or infamous ― for its “dog law” diatribe against the common law. In the last part of the essay, Bentham called for the turning of “what there is good of common law … into such that “what is common in both to every class of persons were put into one great book (it need not be a very great one) and what is particular to this and that class were made into so many little books,” (149) written in simple, accessible terms the contents of which everyone would learn at school and at church. The countries that have taken Bentham’s advice and codified their law, however, found that this was not enough to “deliver [them] out of the clutches of the harpies of the law.” (150) But then, unlike Bentham, they probably did not expect that it would have any such effect.

Jean-Étienne-Marie Portalis, one of main drafters of the French Civil Code (a.k.a. the Code Napoléon), took a rather more realistic view of what his and his colleagues’ work would accomplish for simplifying the law and making it more accessible. He also had a much more sophisticated view than Bentham ― or those who followed Bentham in deriding “judge-made” law ― had of the judicial role in developing and expounding the law. He is not, I think, well known at all in English-speaking world, so it is worth presenting some of the ideas he develops in the “Preliminary Address on the First Draft of the Civil Code” which he wrote and delivered on behalf of his co-authors. (The original French version is available here, by the way, and an explanatory note, here; and kudos to the federal Department of Justice for having put it online ― though I’ll use my own translation, in what follows, and not the government’s. Google Books also has a freely-accessible volume in which the address is printed along with other materials relative to Portalis’s work on the Civil Code.)

In this post, I will cover some of Portalis’s views on the role of legislation and that of jurisprudence generally. In a subsequent one, I’ll talk in more detail about his views on adjudication, including those on what for Bentham was the “dog law” problem of case law. I might also have a third post dealing with some of Portalis’s ideas that belong more to the realm of political than that of legal philosophy.

Unlike Bentham, Portalis had a respectful attitude to the past and to the law which it had bequeathed to his generation ― even though he was engaged in the task of reforming this law. “What a task it is,” he exclaimed,

to draft the civil laws for a great people! The work would be beyond human strength, if it consisted in giving to this people entirely new institutions, and if … one disdained taking advantage of the past’s experience, and of that tradition of good sense, of rules and maximes, which came to us, and which forms the spirit of the centuries.

Rather like Bentham, in some moods, Portalis was a conservative, or perhaps a Hayekian avant l’heure, cautioning that “one must be sober of innovation in matters of legislation, because while is possible, in a new institution, to calculate the advantages that theory offers us, it is not possible to know all the drawbacks which only practice can discover,” and going so far as to claim that only geniuses with all-encompassing minds are entitled to “propose changes” to the laws. Most changes that are actually made into law turn out to be failures.

At most, the drafters of a code could try to simplify the law. Yet even that worthy task is a dangerous undertaking, because it runs the danger of “leaving citizens without rules and without guarantees of their greatest interests.” Unlike Bentham, who thought that the law could be kept short, simple, and accessible, Portalis warned that short laws are never enough for growing and complex societies. The fantasies of reducing the law to the size of the Roman Twelve Tables ignore all the subsequent development of Roman law. And it is doubtful that even a simple legal code would be accessible to every person in society.

Moreover, the role of the drafters of a civil code is not to “foresee everything.” Indeed, “wishing to settle and to foresee everything” is a “dangerous temptation,” which Portalis was proud of having avoided. Society, Portalis argued, is too complex for legislation to regulate everything in advance. The legislator’s foresight cannot be all-embracing; it cannot anticipate the growth and changes of society; there are things that we can only learn from experience. Yet

statutes, once drafted, stay as they were written. Men, however, never rest; they always act; and this movement, which never stops, and whose effects are variously modified by the circumstances, throws up at every moment some new combination, some new fact, some new result.

Portalis added that “experience must fill one by one the blanks that we leave. The codes of the peoples are made over time; but, strictly speaking, they are not made.” Again, this is a spirit which, if we are familiar with it at all, we in the English-speaking world mostly associate with Hayek ― presented, in clear terms, 170 years before Law, Legislation and Liberty.

And how is law to be adapted to this incessant movement of human affairs? It is the judges, ultimately, who must do it. Legislation, says Portalis, can only fix the general principles, while “it is the judge and the lawyer who, imbued with the general spirit of the laws, must direct their implementation.” While Bentham thought the very existence of a common law developed ― or, as he claimed, “manufactured” ― by judges a calamity, Portalis thought it an inextricable part of law-based government. (Portalis uses the expression “nations policées,”which the federal government’s translation renders by “civilized nations,” but I don’t think that the emphasis is on civilization so much as on “a government of laws, not of men,” or at least “rule by law” is not “rule of law”; Portalis contrasts the nations he has in mind with Turkey, which was not so much uncivilized as ― in his telling anyway ― lawless.) In polities where the law prevails,

there emerges, beside the sanctuary of statutes, and under the legislator’s watch, a store of maxims, decisions, and doctrine, which works itself pure every day through practice and the clash of judicial debates, which always increases with all acquired knowledge, and which has always been considered to be the true supplement of legislation.

Portalis adds, later on, that even though the legislature must “keep watch over the case law,” and can correct it, it is necessary for case law to exist.

The idea of the law working itself pure is, of course a familiar one to common lawyers, or at least to the sort of people whom others, more cynically minded, might see as common law romantics. It is striking to see it expressed, in those very terms (Portalis uses the word “s’épure“), by the great French codifier. But then, it’s not exactly a new observation that it sometimes by looking at the thoughts and the customs of others that we learn more about our own, and perhaps even come to appreciate them in new ― or in old but forgotten ― ways.

UPDATE: I decided to do some extra research after having hit the “publish” button, and came across an article by Michel Morin called “Portalis c. Bentham ? Les objectifs assignés à la codification du droit civil et du droit pénal en France, en Angleterre et au Canada.” I haven’t read it yet (I will before writing my next post on Portalis), but it seems very interesting. Most importantly, however, I wanted to acknowledge having been beaten to this post’s title ― and plead guilty to haste, but not to copying.