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Glad to Be Unhappy

Some people in liberal societies are unhappy. But what exactly does this tell us?

Ross Douthat has made an interesting observation on Twitter a couple of days ago: “The biggest challenge for liberalism is the genuine unhappiness of a lot of people under the conditions of liberalism.” I’m not sure that this is right ― liberalism might be facing greater challenges now ― but let’s assume that it is. The implications of this claim are worth thinking through; they might be rather different than many, Mr. Douthat perhaps among them, might assume.

First, at the risk of being tart, if the biggest challenge a philosophy is facing is that its application makes people unhappy, that’s not such a bad problem to have. The application of most political philosophies makes an awful lot of people not just unhappy, but dead. If the worst liberalism can do to you is make you miserable ― as opposed to immiserated, like socialism, whether of left-wing or or of right-wing varieties ― that’s actually a point in favour of liberalism.

Second, we have to ask why people are unhappy about living “under conditions of liberalism”. Mr. Douthat seems to point to people annoyed at being bossed around by technocrats and to those developing harmful addictions, perhaps due to a lack of attachments and meaning in their lives. But these things are by no means peculiar problems of liberalism. Socialist systems are also dominated by technocrats; in militarized or religious authoritarian systems, the social scientists and planners are replaced by generals or priests, who boss people around just as much. And while illiberal societies may foster the social bonds that will help some people relate to their fellows, they will destroy others ― typically, those running across the boundaries of class, race, and country.

To say that people are unhappy “under conditions of liberalism” is to point to a correlation, not a causal relationship. And it is not clear that a causal relationship could fairly be established at all. As I have noted in a previous discussion of liberalism here, “critics of liberalism are often confused, or obfuscating, about its nature: it is a political, not a moral, philosophy; a theory of how political power should be organized, not of how to live a good life”. Nor does it tell people how to be happy; only that they have an inalienable right to try. It is hardly a fair criticism of liberalism that it does not achieve something that it does not attempt.

Besides, when reflecting on the real or alleged failings of liberalism, one should keep in mind the ills of its alternatives. If some people struggle in the open liberal society, others would chafe under the oppressive restrictions of an illiberal one. There is a seen-and-unseen issue here: living “under conditions of liberalism” we see those whom they do not suit. We do not see as clearly those who could thrive under no other “conditions”―indeed, those whom the masters of an illiberal society would seek to eliminate.

The people who aspired to command illiberal societies are, indeed, another group that is unhappy under liberalism. So long as liberal institutions hold, they are unable to impose their own preferences on society, either because they can’t get them democratically enacted or because these preferences, however popular, are incompatible with liberal freedoms enshrined in binding constitutions. But I don’t think that their unhappiness should count for much. Those who would rule others by censorship, manipulation, or force deserve no sympathy from those whom they would rule.

A consideration of alternatives to liberalism also brings us to the third point I wish to make in response to Mr. Douthat. Liberal societies are the only ones in which unhappiness at the state of society and indeed at life, the universe, and everything can really be expressed. This is so for two reasons, one of which is obvious, and the other less so.

The obvious one in any but the liberal societies, unhappiness with the established order ― again, not just the established political order, but also the established order of things more broadly ― is treated not merely as an intellectual challenge but as a heresy, a thoughtcrime, or a form of treason to the nation. In illiberal societies, by contrast, expressions of disaffection are actually suppressed ― and, often, the person expressing such unhappiness is suppressed (or at least forced to repent or “re-educated”) along with his or her ideas. By contrast, illiberal societies might make room for private sorrows, but only within an overall worldview that says that, at a high enough level of abstraction, things are just as they ought to be.

I should note here that some unserious people affect to think that discontent with the existing state of affairs cannot be freely expressed in modern-day liberal societies. These societies are certainly not flawless ― not least thanks to the pressure of their illiberal members. But such claims are nonetheless preposterous. One sign of this is that they tend to be freely made on the same social media platforms that are supposed to be suppressing dissent against liberalism. Meanwhile, in Canada, what is by all accounts a very disruptive political protest is ongoing blocks away from the seat of government, with minimal police reaction.

The subtler yet more fundamental reason why liberalism uniquely enables not only the expression but perhaps the very existence of unhappiness with the world is that to become unhappy one has to be able to develop a personal scale of values against which the world fails to measure up. If one’s values are the same as everyone’s, as illiberal societies tend to make them, they will integrate the answers to any concerns with the world supplied by the prevailing ideology. If one has no genuine values to speak of at all ― as is the case for the average citizen, and especially for the politicized one, under totalitarianism, as Hayek pointed out ― one has no means to critique the world.

One writer who understood this essential relationship between freedom and unhappiness is Milan Kundera, in The Unbearable Lightness of Being. He wrote that (I translate from the French, which itself is a translation from the original Czech, so… not ideal) “communism, fascism, all occupations and all invasions hide a more fundamental and universal evil; its image was the parade of people who march, arms raised, shouting the same syllables in unison”. People can only be made to march in this way by what Kundera calls the kitsch ― the “aesthetic ideal” of “a world in which shit is denied and where all act as if it did not exist”, which can sustain “categorical agreement with being”. Under liberalism,

where many currents [of thought] exist and the influence of one cancels or limits that of the others one can just about escape the inquisition of the kitsch. … But where one political movement holds all power, one finds oneself at once in the realm of totalitarian kitsch.

There,

All that breaks with kitsch is banished: any manifestation of individualism (for any dissonance is like a slap in the face of the smiling brotherhood), any scepticism (for he who begins by doubting the smallest detail will end doubt doubting life as such), irony (because in the realm of kitsch, everything must be taken seriously.

The open existence of unhappiness ― it’s not being packed away to “the gulag [which] can be understood as the septic tank into which totalitarian kitsch casts is rubbish” ― is only possible in a free society. It is not so much a challenge for liberalism as its crowning achievement. We should be glad to be unhappy. It means we are free.

Let Us Reason Together

A call for dialogue on constitutional interpretation, free from anti-originalist myths

This post is co-written with Mark Mancini

The nomination of Amy Coney Barrett, an originalist scholar and appellate judge, to the US Supreme Court provoked a flare-up of interest in originalism from people who do not normally spend much time thinking about constitutional interpretation. That would be all to the good, if this engagement did not all too often rely on myths and misconceptions, some of them dating from the early days of modern originalism, others bearing little relationship with what any serious originalists in the US and Canada believe. (An entire Twitter account has now sprung up to collect some of these misconceptions.) In this post, we address a couple of myths about constitutional interpretation that underlie the memes, tweetstorms, and political zingers, and call on our readers to engage in more fruitful conversation about constitutional interpretation.

Myth 1: Originalism freezes the preferences and intentions of the founders in law

The overall view of originalism held or propagated by most of its lay critics and, alas, many professional ones, is that it is meant to keep it exactly as the framers of the constitution intended, obstinately refusing to recognize any changes in society that have occurred since the framing. Hence the much repeated claims that, for example, Justice Barrett couldn’t even be appointed to the Supreme Court since the framers of the US Constitution had not anticipated women judges. In the Canadian context, those who hold this view insist that a rewriting of the Constitution Act, 1867 by living constitutionalist judges was necessary to make women eligible to serve in the Senate, since the Fathers of Confederation did not mean for them to do so.

These claims are based on several misconceptions. One has to do with the nature of the originalist enterprise. Most originalists today recognize that it is both wrong and, in all likelihood, futile to seek to give effect to the intentions or expectations of the framers of a constitution. Wrong, because only that which is enacted through the relevant constitution-making process, can be binding. Intentions, hopes, and expectations are not. Futile, because―as the critics of early versions of originalism pointed out―constitutional texts are typically compromises reached by large and diverse groups of framers, who do not necessarily share intentions and expectations as to what their handiwork will achieve and how it will be applied in practice.

The task of the originalist constitutional interpreter is to focus on that on which the framers of the constitution agreed and which is binding law: the text. This is not to say that originalism is equivalent to “strict constructionism”. A good originalist knows that text is read in context, and some originalist theories, at least, even accommodate the idea of unwritten constitutional rules. A good originalist, like Justice Barrett, also knows that legal texts can be written at different levels of generality, and that they can employ standards as well as rules, and seeks to give effect to the language as written, neither narrowing it if broad nor expanding it if narrow.

This, incidentally, is another reason why an “expected applications” approach to interpretation is not good originalism. If the framers of the text used language that calls on its interpreters to engage in moral or practical reasoning, for example by prohibiting “cruel” punishments or “unreasonable” searches, the interpreters who would confine the text to what was regarded as cruel or unreasonable when it was enacted would disregard these instructions. To the extent that this is what the derisive label of “frozen rights” or “frozen concepts” interpretation refers to, the derision is justified. But, while in fairness to originalism’s doubters such criticism could be levelled at its early practitioners (including, sometimes, Justice Scalia), contemporary originalists know better than to make this mistake.

As a result, more often than not, originalism has no difficulty applying constitutional rules to changing and developing society. Broad constitutional language will encompass cases not anticipated by its framers. The so-called “Persons Case” is an example: it is probably true that the Fathers of Confederation would not have expected women to be appointed to the Senate, but they used language that, as Lord Sankey shows, naturally extended to women, and therefore did not need to be construed as barring their appointment. Another example from the United States: infrared technology, used to “search” homes from the outside, were clearly not in the contemplation of the framers. But Justice Scalia, originalist though he was, held in Kyllo that using it was indeed a search for the purposes of the 4^th Amendment, which protects the privacy of the home from invasion by new means as well as old.

That said, originalists do not believe that constitutional language, even when broad, let alone when precise, is infinitely malleable. As Lord Sankey says in the Persons Case, had the framers of 1867 chosen to specify that Senators were required to be men, no legitimate interpretation could have bypassed or overturned this choice. Indeed, few, if any, living constitutionalists would disagree. This brings us to the next myth.

Myth 2: Originalists just don’t want the constitution to change

What if the Constitution Act, 1867 had specified that being male was a qualification for being a Senator? Originalists believe that such an unfortunate drafting choice of the constitution’s framers would have had to be undone by constitutional amendment, and welcomed such an amendment. Originalism is an approach to interpreting a text as it stands from time to time; it does not counsel against that text being amended when it is no longer in tune with the needs of society, provided that the amendment is carried out by means provided in the constitution, rather than by the courts. The claims, made by originalism’s American critics, that originalists would somehow disregard constitutional amendments that protect the rights of African Americans, women, and other groups are quite without foundation in any originalists’ actual commitments. They also ignore voluminous originalist research into the meaning of these amendments.

In Canada, any appeals to the possibility of constitutional amendment tend to be dismissed as fanciful. Our constitution is said to be impossible to amend. But this simply isn’t so. Indeed, given that Canada is a federation, it is difficult to imagine an amending formulate less restrictive than the “7/50” that the Constitution Act, 1982 makes the default. It is worth recalling that prior to 1982 convention required at least as much consensus, and possibly unanimity―and yet amendments to the Constitution Act, 1867 were made from time to time. This is not to deny, of course, that convincing our fellow-citizens and legislators that our favourite constitutional reform projects are worthwhile is difficult. But this is as it should be in a constitutional democracy, and no reason for seeking to implement these projects through judicial fiat.

A call to Dialogue

Now, originalism is not above criticism or beyond reproach. For example, we might usefully debate the feasibility of inquiries into the original public meaning of constitutional texts, the worry that a public meaning originalism that acknowledges the underdeterminacy of much constitutional language fails to usefully constrain judges, and the possibility that self-proclaimed originalist judges will only use their ostensible commitments as a smokescreen to hide their implementation of favoured policies. Originalism faces theoretical challenges, such as the issue of its relationship with the principle of stare decisis (to which Judge Barrett devoted much of her scholarship), and―especially in the Canadian context―the need to make sense of significant unwritten constitutional rules.

We would welcome engagement with these issues, so long as it took originalism as a serious theory and practice, rather than a self-evidently mistaken unCanadian aberration. For all the protestations of the Canadian legal academy (and, more rarely, of the courts) that originalism has no place in our jurisprudence, it is simply beyond doubt that something akin to originalism is often, although by no means always, an important factor in the Supreme Court’s decision-making. If the Court is wrong to reason in this way, the critics should explain why, instead of insisting, in the face of evidence to the contrary, that it doesn’t.

We would also welcome a clear articulation of the critics’ own interpretive commitments, which is curiously missing from Canadian (and, mostly, even American) scholarship. We are admonished that the Canadian constitution is a “living tree”, but seldom told what precisely this means. For example, when are the courts entitled or required to “evolve” constitutional meaning? On what should they base their decision to do so? Are there limits to their power? By what means does living constitutionalism protect against judges who are less enlightened than the framers of the constitution or who think that changed circumstances require restricting rights instead of expanding them? Without an explanation on these and some other matters, it is difficult to compare the plausibility of living constitutionalist and originalist theories, and assertions of the former’s superiority fall to be taken on faith, which is antithetical to serious scholarly or even political debate.

Such debate would be to our mutual advantage, originalists and living constitutionalists alike. After all, we are not merely trying to score rhetorical points or preserve our positions, whether in politics or in the academy, from competitors. We are trying to answer difficult but consequential questions about the way in which judicial power ought to be exercised and our fundamental laws are to be applied. If we are to have any chance of getting at the right answers to these questions, we need to make our best arguments and measure them against the best arguments of those who disagree with us. Come, let us reason together.

Of Malice and Men

Double Aspect responds to attacks on another scholar

This post is co-written with Mark Mancini

Suppose you say something on Twitter that you wish you hadn’t said. No, actually―if you’re on Twitter―remember that time you said something you wish you hadn’t said? How would you hope that the rest of us would react? For our part, a sad bemused shrug and, perhaps, a friendly private word of reproof sound about right. Well, this is a post about doing unto others, etc.

When Emmett Macfarlane tweeted about “burning down” the US Congress to prevent a successor to the late Justice Ginsburg being confirmed before the presidential election, we cringed a bit. There is too much hyperbole out there, too much violent imagery, too much speaking as if the next election, or the next judicial appointment, is―literally―the end of the world. Twitter makes this phenomenon worse. As Justice Stratas of the Federal Court of Appeal noted in a recent talk, the Twitter world is like the Holodeck from Star Trek―a convincing pastiche of reality. Twitter, in many cases, magnifies our worst impulses.

There is too much of this nonsense on all sides. President Obama, who often modelled grace and calm when his political opponents and supporters alike lacked both, now suggests that questions such as “whether or not our economy is fair, our society is just, women are treated equally, our planet survives, and our democracy endures” turn on who replaces the late Justice Ginsburg. On US political right, the 2016 election was notoriously compared to Flight 93―the plane that crashed in a field in Pennsylvania on September 11, 2001 after the passengers stormed the cabin to prevent hijackers from turning it on their intended target. Similar arguments are being made again. The message is that even death―or at any rate a vote for an avowedly appalling man who would uphold none of the principles one claims to believe―is preferable to the other side taking power until the next election.

So, to repeat, we cringed at Professor Macfarlane’s “burn it down” tweet. And yet we knew full well―as does anyone with a brain and even a modicum of good faith―that it is only a hyperbolic, spur-of-the-moment outburst, not an actual call to arson and violence. Professor Macfarlane’s Twitter persona may be cantankerous, but he is a genuine scholar and a decent man. (Disclosure: one of us (Sirota) has contributed a chapter to a book project Professor Macfarlane edits. You can discount our arguments accordingly, but the diversity of views represented in that project speaks to Professor Macfarlane’s scholarly seriousness and open-mindedness.)

Sadly, there are people who do not operate in good faith at all. They affect to think, or at any rate they say, that Professor Macfarlane was actually threatening violence, and profess worry for the safety of his Trump-supporting students. This is arrant nonsense, a smear with no factual basis whatsoever. Professor Macfarlane’s opinions are neither new nor secret, and those who now betake themselves to the fainting couch haven’t paused for a second to inquire whether he has ever been so much as unfair, let alone threatening, to his students.

These people are as uninterested in truth as they are lacking in charity. They see a political opponent say something that can be―at least to those equally uncharitable―made to look like a threat or a sign of depravity, and pounce to virtue-signal on Twitter, to whip up their allies’ outrage, and thereby to increase their own standing with their in-group. They are hypocrites too, with their feigned outrage about hyperbolic rhetoric which is no worse than that in which they themselves engage. They deserve nothing but unreserved rejection.

A couple of weeks ago, another scholar, Dwight Newman, was disparaged by people who engaged in an uncharitable if not outright twisted reading of his work to impugn his integrity. That was an attack from the left on someone perceived to be on the right. We were proud to give Professor Newman an opportunity to refute their smears (and one of us (Sirota) added a further response of his own). Now Professor Macfarlane is being vilified by people who are trying to make him into an avatar of the unhinged left. Although both the targets of these attacks (an article in one case; a tweet in the other) and their perpetrators (fellow scholars, alas, in the former case; anti-intellectual populists in the latter) are different, they have much in common.

Both need to be defeated. As Justin Amash pointed out just yesterday, limited government―that is, a government that respects democracy and human rights―cannot exist without trust among citizens. To be sure, we need not pretend that our fellow-citizens, let alone our governments, are better and more trustworthy than they really are. But, if we want to continue living together in peace and freedom, we must not pretend that they are worse people than we know them to be for the sake of scoring some political points. To quote another American politician, we must go forward with malice toward none, and charity for all.

Contrarians at the Gates

On responsible scholarship and engagement with heterodox ideas

Professor Newman has posted his own response to the “article” in which Stepan Wood, Meinhard Doelle, and Dayna Scott attempt to besmirch his well-earned reputation as one of Canada’s leading constitutional law scholars. As he says, “it is a serious threat to responsible academic discourse to make mistake-riddled arguments in ways that paint academic interlocutors as personally irresponsible and lacking integrity”, which, as he shows, is what Professors Wood, Doelle, and Scott have done. As he also explains, while his critics purport to be concerned about “responsible scholarship”, their argument is so focused on just one article that he wrote that one cannot but “ask what the goal really was”. I will venture some speculation about the answer to this question.

To be blunt, I think that the goal is to constrain the scope of what may be said by academics writing on politically salient issues, how it can be said, and where. Now, Professors Wood, Doelle, and Scott deny this. They write:

Vigorous debate and disagreement are the lifeblood of academic discourse and the engine for advancement of knowledge. To insist on rigour and fairness in such debate is not to impose “political correctness” on scholars who espouse unpopular views. Nor is it a manifestation of the fragility of a liberal academic establishment unable to handle controversial perspectives. (13)

Of course this is true, as a general proposition. But we need not take on faith the claims of those who would have us believe that they do no more than dispassionately insist on rigour and fairness. We can look at the specifics of their argument, and at the way in which it is framed. Professor Newman has mostly done the former. I shall mostly do the latter.

One striking thing about the Wood, Doelle, and Scott article is that it is not just about “responsible scholarship” as a timeless value, as Professor Newman’s response is. It’s about “responsible scholarship in a crisis” (emphasis mine). This framing is not just a flourish. The entire opening section of the article argues that debates about climate policy are occurring “in the context of an unprecedented crisis”, (2) and that scholarly commentary ― and hence the norms of responsible scholarship ― are especially salient at such times because “[a]ctors in government, civil society and business often appeal to academic expertise to diagnose and resolve crises”. (3)

The norms to which Professors Wood, Doelle, and Scott appeal are not crisis-specific, to be sure (though, as Professor Newman shows, their relevance to their argument is questionable), but this framing is not innocent. It reinforces the dynamic which my colleague Allan Beever decries in his article on “Engagement, Criticism, and the Academic Lawyer”, (2017) 27 New Zealand Universities Law Review 1111. Professor Beever suggests that

academic lawyers, given their subordinate position in the legal system, are all too desperate to believe that they really matter, believing that if they matter that must be in something like the way that judges matter, thereby coming to believe that “dangerous” ideas have to be battled against in the way that they would be were they, say, influencing the decisions of the Supreme Court. (1125)

Of course, if the dangerous ideas are likely to influence the decision of a Supreme Court in a crisis, they are all the more dangerous and must be battled against all the stronger. This is why I say that Professors Wood, Doelle, and Scott are seeking to limit what can be said about politically salient issues: it is the topical nature and valence of Professor Newman’s ideas that trigger their attack. And they make no bones about the fact that they indeed worried about Professor Newman’s ideas influencing the Supreme Court of Canada’s consideration of the constitutionality of the federal carbon tax legislation.

I suspect, moreover, that this “crisis” framing helps explain why Professors Wood, Doelle, and Scott escalate the battle further and attack not only Professor Newman’s “dangerous” ideas but his integrity. His work, they say, “crosses a line that separates distortion and disparagement from constructive scholarly debate” (12) and “does not uphold standards of scrupulous fairness in scholarly research”. (13) It cannot be trusted and should be summarily disregarded. This makes actual scholarly debate unnecessary and indeed impossible ― there’s no point or even meaning in debating a dishonest person.

Yet this is facile and self-serving. Instead of doing the hard work of refuting the arguments they disagree with, Professors Wood, Doelle, and Scott attempt to discredit the person advancing them. This is also, of course, a myopic tactic that can and is bound to be used against scholars who agree with the substantive positions that Professors Wood Doelle, and Scott would defend. Indeed I’m pretty sure that ad hominem attacks on academics have long been more of a “thing” on the political right than on the left, not necessarily because the right is somehow even more immoral than the left, but simply because the academy has always tilted leftwards, making it easier for the right to find targets there. The tilt is growing ever stronger, and as it does so the cost to the political right of attacking not only individual scholars but also entire disciplines and the academy as a whole falls ― there is less and less of a risk of making victims with friendly fire. “Progressive” scholars who make personal discreditation an acceptable way of conducting academic disputes are only helping sharpen the weapons that will be directed at them.

But regardless of political implications, what is certain is that personal discreditation destroys the possibility of genuine scholarly debate bringing truth to light. Such debate requires mutual criticism, but is incompatible with enmity. As Professor Beever writes, “it is important … to distinguish between criticism and hostility. Criticism can be extremely robust, but it always takes its object seriously.” (1125) Professors Wood, Doelle, and Scott don’t want their readers to take the work they attack seriously, and so prove Professor Beever’s point that “[i]n law … hostility all too frequently prevents genuine criticism from occurring”. (1125)

Let me turn now briefly to my claim that Professors Wood, Doelle, and Scott want to limit the manner in which scholarly debate can happen. They chide Professor Newman both for criticizing the work of particular scholars, for example making a point of noting that one of them is “his junior untenured colleague”. (Ironically, especially given Professors Wood, Doelle, and Scott’s concern with distortions, the person in question is no longer Professor Newman’s colleague.) But then they also accuse Professor Newman of “casual generalizations [that] are examples of sloppy research”, (10) because he does not name other scholars who represent the trends against which he inveighs.

You’re damned if you do name specific scholars to criticize ― especially if they are junior colleagues ― and equally damned if you don’t. Now, one might debate how much a scholar should name the names of those he or she criticizes. Professor Beever suggests that this should be done sparingly, and widely held positions should be attacked without singling out individual representatives. I’m not sure I quite agree. But in any case it’s one or the other. Either generalizing is bad, and one should focus on individuals ― but then, it really shouldn’t matter who they are ― or one should be allowed to generalize. (I’ll note that, as a still relatively junior academic, I rather resent the suggestion that I should be treated with kid gloves by my elders and betters, at my institution or anywhere else.)

Besides, there is also something perverse about Professors Wood, Doelle, and Scott attacking the tone of Professor Newman’s article and its alleged lack of fairness to the targets of its criticism in an article that is anything but charitable, and indeed quite unfair, to Professor Newman, as he eloquently shows. Yet this is hardly surprising. There is a consistent asymmetry to tone-policing in the Canadian legal community. Scholars who criticize the received wisdom and its upholders are expected to be on their best behaviour. Those who uphold it are held to no such standard.

Finally, I turn to the question of where scholarly debate can take place. Professors Wood, Doelle, and Scott write that “[a] rigorous peer review process would normally catch most problems like the ones we have identified”, (13) and add, in a footnote, that “[t]he Saskatchewan Law Review failed to reply to inquiries … whether Professor Newman’s article was peer reviewed”. (13) Some of the subsequent Twitter discussion also focused on this issue. Yet to the extent that the implication here is that “responsible scholarship” is peer-reviewed scholarship, this is beside the point.

One issue is that, just like the invocation of crisis and the call for respectful tone, the appeal to the authority of peer review is less innocent than it might seem. As I wrote here, “the peer review process is a bit of a crapshoot” for heterodox ideas. Even when they are well argued, “some reviewers will bristle and see their role as that of gatekeepers preserving scholarship from heresy”. To be sure, as I further pointed out, heterodox scholarship can make it through peer review. But the issue of excessive gate-keeping, often applying double standards, is real enough. To insist that only scholarship that has made it through peer review matters is to load the scales in favour of conformist ideas, which have an easier time overcoming this hurdle.

But the real problem is more fundamental. Peer review simply does not guarantee quality; plenty of rubbish makes it through peer review and gets published, while good ideas get rejected. When Joshua Gans and George Shepherd asked

140 leading economists, including all living winners of the Nobel Prize and John Bates Clark Medal, to describe instances in which journals rejected their papers [they] hit a nerve. More than 60 percent responded, many with several blistering pages. (165)

It would be interesting to see a similar study in law, but I rather doubt that peer review in our discipline does much better.

Conversely, the fact that an idea did not go through peer review ― for example because it was published in an American journal, or even on a blog ― does not mean that it is bad. Readers can decide for themselves. A lawyer, or at least an expert in a given field, let alone a judge assisted by a platoon of clerks, can always check for him- or herself whether an argument holds up ― whether the sources it cites support it, whether it is missing something. If one wants to criticize the defects of an argument, one should identify them, instead of lazily musing about whether the argument has been peer reviewed.

This, ultimately, is a big part of what the matter comes down to: faced with deep and seemingly consequential disagreements, are we willing to do the hard work of explaining why our opponents are misguided and mistaken? Or are we content to discredit or tone-police them, or say that they didn’t published their ideas in the right format or in the right venue, so as to avoid substantive engagement?

But the issue is not limited to the avoidance of hard work. In a crisis it is tempting to take shortcuts. The lure of sophistry is too powerful to resist. If ad hominem attacks, tone policing, and arguments from authority can help defeat the danger that wrong ideas, or wrong people, will influence decision-makers, why not resort to them? The contrarians are at the gates ― this is no time for old-fashioned notions of probity.

Yet probity, as well as curiosity about ideas one disagrees with, and friendliness to those who expound them, are the perennial values that no crisis can put to rest. Responsible scholars, tear down these walls! Open these gates!

Bouthillier on Expanding Bill 101

Announcing an upcoming guest post by Simon Bouthillier

We are pleased to welcome a new guest blogger, Simon Bouthillier, who will shortly publish a post (en français) on the constitutionality or otherwise of the Québec government’s plan to apply the French-in-the-workplace provisions of the Charter of the French Language, a.k.a. Bill 101, to federally-regulated businesses in the province. Mr. Bouthillier is a graduate of the Université de Sherbrooke (LL.B. and M.B.A.) and is currently studying towards an LL.M. at the McGill Faculty of Law. His research is mainly concerned with the constitutional rights of prisoners. Having read a draft of his post, I am very much looking forward to it.

The Ivory Tower Prisoner’s Dilemma

Why law journals are useless, and why we can’t do without them

“Are [scholarly law] journals even useful nowadays?” Francis Lévesque asked this question in response to a Twitter discussion about the ideological problems that plague the system of peer review, which screens articles published in such journals pretty much everywhere except in the United States. Since I already complained about these problems in a recent post, I might as well reproduce a slightly expanded version of my answer. In short, I think that journals are useless, but they remain, and probably will remain, indispensable due to academia’s collective action problem.

Why are journals fundamentally useless? Because nobody actually reads them. I don’t mean that people don’t read what is in the journals. Well, often, they don’t. But sometimes they do. And not just academics, though admittedly that’s often the audience for which scholars write. At least some articles attract the attention of practising lawyers and of judges. But here’s the thing. People read articles, not journals. Journals as physical or electronic objects, i.e. assemblages of several articles that share a masthead and a typography and not much besides, appearing several time a year, are obsolete and unnecessary.

The reason for this is, of course, that you don’t need a journal, whether in physical or electronic form, to find articles, which, to repeat, is what people (sometimes) want to read. Articles are mostly either discovered by word of mouth ― again, literal or electronic (say posts, for example on this blog, that mention new articles) or found through databases such as HeinOnline, CanLII, or SSRN. Perhaps a few journals ― think, the Harvard Law Review ― are prestigious enough to command attention in their own right. Perhaps some specialized journals are of interest to people in particular areas of research or practice. Thematic issues of particular journals might also be interesting as collections of articles. But the ordinary, generalist journals? Nope. If I read an interesting piece that was published by, say, the McGill Law Journal, I’m not going to even bother looking what else was in the same issue.

But while journals as platforms for scholarship are largely useless, journals as institutions are not. They provide bundles of services some of which may be useful, and one of which makes them indispensable. The maybe-useful services are the ones you are probably thinking of. In particular, journals review and select manuscripts (what a quaint word for things that haven’t been written by hand this past century!), and edit the ones they choose, and journals ensure that published articles are transmitted to databases where they can, hopefully, be found. The indispensable service is one you might also be thinking of but wouldn’t want to admit to be: signalling.

The maybe-useful stuff should be really useful, but it isn’t always, as it turns out. The review and selection process is sometimes ― and perhaps more commonly than I would have thought ― tainted by ideological gate-keeping or simple turf wars or even cronyism and rank snobbery. In the United States, the problems are a bit different, since it is student editors who are fully in control or editorial decisions, without input from peer reviewers, but things are not necessarily better overall. The editing can be hit-or-miss ― sometimes useful, but sometimes the editors try to impose arbitrary ideas of what good writing should look like on authors who actually have more sense and experience. Even the transmission-to-databases function, which is genuinely important ― it’s one massive advantage journals have over blogs, for which no equivalent of the journal databases exists ― works better with some journals than with others. North American student-run journals are widely available; the ones owned by publishing companies such as the University of Toronto Press, the Oxford University Press, SAGE, etc, are sometimes only available through their proprietary databases, which makes the difficult to find.

Signaling is another matter though. Journals provide it reliably because they don’t actually need to do anything to provide it. Their reputation just exists ― in the case of journals associated with particular law schools, primarily as a result of the school’s reputation. But it becomes a self-fulfilling prophecy. Publishing in a particular journal, or category of journals, marks you as a successful scholar, so people who want to be known as successful publish in these journals, which helps preserve their reputation, and so on and on.

Yet despite being the result of little more than bootstrapping, this signalling function is very important to academics. Your disciplinary peers ― those who write in the same area as you ― don’t need it. They can assess the value of your scholarship directly, by reading it. But others can’t do that well, because they lack time and interest, and because they just don’t know enough about your particular area. The latter problem is getting ever worse, as legal scholarship becomes more and more specialized. And these others matter in a scholar’s career: they are the members of hiring and promotion committees, and perhaps those who assess proposals for funding agencies (though I lack experience to speak to that). Not being able to assess a scholar’s output directly, they look for informational shortcuts and proxies. Journal prestige is the most obvious one.

As a result, unless you’ve achieved everything you wanted in your career and have no aspirations for further promotions or going to another school, or unless you can signal your productivity and quality through books alone (and I don’t think many legal academics can do that), you can’t afford not to chase the signaling that journals provide. Even if you believe that the signal is actual mostly noise, even if you think it means little, you can’t ignore it. You are competing against people who might not share these views and get all the signal they can, and the judges of that competition might actually believe that the signal is meaningful.

The result is a classic prisoner’s dilemma. It’s in your best interest to act in a way you know is sub-optimal for the scholarly community. You know that if you don’t, you’ll be, to use a technical term, screwed. One might devise alternative systems for publication. They could well provide the useful services that journals may or may not be providing now. They might even try to provide their own signaling. But unless almost everyone buys into the same alternative system more or less at once, you’ll have to be mad to go for one in particular. What if it doesn’t take off? Then your efforts to establish your reputation have been wasted, and your career is compromised.

So we are stuck. Perhaps some senior scholars can take the lead and establish a new system. Perhaps then those of us who still have careers to make can follow them. But I’m not optimistic. That said, if you think I’m wrong, and especially if you have concrete ideas, I’d love to hear from you. It would be nice to be wrong about this. Mr. Lévesque thinks I am, but I’m afraid that his technological optimism is no match for my collective-action pessimism.

Horrocks: What Happens to Agraira?

One of the more nerdy judicial review questions is the standard of review applicable from an appellate court to a lower court in judicial review cases. That is, how do appellate courts deal with lower court decisions that, either through a right of appeal or by application for judicial review, review administrative decisions?

The current orthodox position is outlined in Agraira. There, the Supreme Court held that when an appellate court reviews a lower court decision disposing of a judicial review application, the appellate court “steps into the shoes” of the lower court (Agraira, at para 46). In effect, as Stratas JA points out in Sharif, at para 5 this turns out to be pure de novo review: the appellate court reconducts the standard of review analysis, in both selection of the relevant standard of review and its application.

Post-Vavilov, Stratas JA questions how long Agraira-review will last (see pg 60 of his masterful work here). Luckily, we won’t have to wait too long for the answer to this question. The Supreme Court recently granted leave in Horrocks, a Manitoba case that raises this question directly. The Supreme Court, in describing the main question in the case, says the following: “What is appropriate standard of appellate review, as between levels of court sitting in review of decision of administrative tribunal?”

This is an open question. In this post, I assess some of the options for dealing with this issue. I first describe the holding of the Manitoba Court of Appeal in Horrocks, then I outline the potential options that are in front of the Court in assessing this question. I ultimately conclude that, on balance, there are good reasons to favour the application of the Housen v Nikolaisen standard of review across the board when an appellate court reviews a lower court’s review of an administrative decision. Put differently, we should rid ourselves of Agraira.

Horrocks involves, in addition to the standard of review issue, a tricky issue of “jurisdictional lines” between two or more tribunals. While I do not address this issue in this post, some description of the basic conundrum is necessary for context.

Horrocks was a health care aide at a personal care home operated by the Northern Regional Health Authority in Manitoba (NRHA). NRHA is a party to a collective agreement with CUPE. Horrocks, during work hours, was observed as intoxicated. After refusing to sign a document that would have forced Horrocks to abstain from alcohol completely, her employment was terminated. CUPE grieved under the collective agreement. Prior to a scheduled arbitration, another document was negotiated between the parties, which again asked Horrocks to abstain from alcohol, and contained other revisions, including that any breach of the document would constituted just cause for termination, and that Horrocks could challenge any employment decision by NRHA under the collective agreement’s grievance and arbitration procedures.

Horrocks was, again, found to be intoxicated outside work. NRHA again terminated her employment. Horrocks then filed a discrimination claim with the Manitoba Human Rights Commission (MHRC). The core question was whether the MHRC had jurisdiction over the dispute, or whether the collective bargaining/arbitration provisions governed. At the Manitoba Court of Queen’s Bench, the court found that the MHRC lacked jurisdiction. The Manitoba Court of Appeal allowed the appeal, concluding, interalia, that there was a “modest” place for human rights adjudication; and so the lower court judged erred in overturning the MHRC decision that there was jurisdiction.

In analyzing the issue, the MBCA also commented on standard of review. The Court held that “both the identification and the application of the appropriate standard of review by a superior court judge conducting a judicial review is a question of law under the standard of review framework as set out in Housen [v Nikolaisen]” (Horrocks, MBCA at para 47). Therefore, the Court purported to apply the framework set out in Housen for appellate review (see Horrocks MBCA at para 38), meaning correctness review on any extricable legal questions. However, the Court, relying on Stewart, also said that the basic question on judicial review was whether “there is a principled reason to afforded deference here…” (Stewart, at para 19; Horrocks MBCA at para 49). The Court concluded that there was no such reason, because:

If one returns to the basic question discussed in Stewart (see para 19) as to whether there is a principled reason to afford deference here, I am satisfied that there is not. The record before the reviewing judge was the same that was before the Chief Adjudicator. He was not required to make any original findings of fact or exercises of discretion. Additionally, there are no limitations on the Commission’s right of appeal of the reviewing judge’s decision pursuant to section 89 of The Court of Queen’s Bench Act, CCSM c C280, such as a requirement that the decision being appealed must have wider significance beyond the parties such that leave to appeal must first be obtained. Taken together, these circumstances make it difficult to justify, on a principled basis, that a margin of appreciation should be afforded to the reviewing judge’s decision when he was not required by Dunsmuir (at
para 61) to afford deference to the decision of the Chief Adjudicator on the same issue (Horrocks MBCA at para 49).

Seemingly on the basis of Stewart, the Court therefore concluded that the administrative decision must be reviewed on a correctness standard, in both application and selection of the standard of review.

The question: what should the Court do with Agraira in Horrocks?

One option might be the reliance on Stewart as a comprehensive statement of the relationship between appellate courts and lower courts on judicial review. But I do not read Stewart as the MBCA does. That is, I do not see Stewart standing for a broad-based approach to the relationship between appellate courts and lower courts. But on principle, a standard phrased like the one in Stewart is too broad to be of much use on a comprehensive basis. It raises the prospect of standard-less doctrine that does not help reviewing judges to know the proper basis of intervention.

More seriously, there are two other basic approaches that are operating in tandem, to my mind. The first, the Agraira approach, views both the selection and application of the standard of review as questions of law. A lower court choosing and applying a standard of review, then, is owed no deference by an appellate court, even on questions of mixed fact and law or fact. Again, as noted above, this approach results in basically de novo review, a “re-do” on the merits by the appellate court, with the focus on the administrative decision.

This approach has its benefits and drawbacks. In principle, it is aligned with the focus of judicial review: the administrative decision. It ensures that administrative decisions (and errors) are not sheltered by deference doctrine applied by the appellate court. But there is a price to pay for fidelity to principle: as Stratas JA notes in Sharif, at para 5, it is an open question whether this “re-do” is consistent with principles of judicial economy and access to justice, heralded by cases like Hryniak v Maulden.

The second approach is to adopt Housen v Nikolaisen. That is, the lower court decision would be viewed as a pure appeal, notwithstanding the fact that it reviews an administrative decision. This means that, while selecting the relevant standard of review will be a question of law, there will be room for some deference on a palpable and overriding error standard on the application of the standard of review, and the law, to the facts (see, for nuance on this point, John Evans, “The Role of Appellate Courts in Administrative Law” (2007) 20 Can J Admin L & Prac”). A good example of this approach is contained in Hupacasath. There, Stratas JA noted that while he was applying the Agraira standard, that approach does not allow for the substitution of factual (or mixed fact and law) findings made by a lower court (Hupacasath, at para 75). Stratas JA goes on to say:

In my view, as is the case in all areas of appellate review, absent some extricable legal principle, we are to defer to findings that are heavily suffused by the first instance court’s appreciation of the evidence, not second-guess them. Only palpable and overriding error can vitiate such findings. In the context of the existence of Aboriginal title, the Supreme Court held to similar effect in Tsilhqot’in Nation, supra at paragraph 52 (Hupacasath, at para 76; see also Long Plain First Nation, at para 86.

This approach, of course, solves some of the problem of “re-doing” the standard of review analysis that characterizes the other approach. And, at least nominally, it ensures that the selection of the relevant standard of review remains a question of law that is reviewable on a correctness standard under Housen. But it leaves the door open to deference on findings “heavily suffused by the first instance court’s appreciation of the evidence.”

The main difference between approaches, then, is in the application stage, where Housen would not counsel a pure de novo review. People will different priors will favour one approach over another, but a complicating factor in the choice is the decision in Vavilov. While there is much in Vavilov that bears on this question, the main distinction that affects the choice between approaches is the strong distinction now drawn between cases going up to a higher court on a statutory right of appeal and cases proceeding by an application for judicial review. This distinction is driven, in the Vavilov Court’s mind, by an expression of Parliament: “…legislative intent can only be given effect in this framework if statutory appeal mechanisms, as clear signals of legislative intent with respect to the applicable standard of review, are given effect through the application of appellate standards by reviewing courts” (Vavilov, at para 49). So, on this account, there is a distinct difference when Parliament legislates a right of appeal—in effect, it legislates the appellate standards of review (see Vavilov, at para 36).

This suggests that there might be a reason to favour one standard of review framework over another, depending on the context. However, in my view, there are reasons internal and external to Vavilov to favour the Housen standard of review as a comprehensive standard for appellate review.

1) The appellate standard can no longer be Agraira because of reasons internal to Vavilov. This is because of Vavilov‘s holding on statutory rights of appeal. Now, an administrative decision taken to a court via a statutory right of appeal invites the application of the Housen standard of review (Vavilov, at paras 36 et seq). This, in other words, is a legislative signal that courts should treat the lower administrative decision as a decision from which to be appealed. There is no principled reason to differ the approach when the lower court decision is subsequently reviewed. The relationship between the appeal court and the lower court is similarly governed by statute; and the fact that the first instance decision-maker is an administrative decision-maker does not change the statutory relationship going “all the way up” to the appeal court. Agraira, then, is inconsistent with Vavilov on this score.

2) When the case involves an application for judicial review, the question is trickier. Vavilov does not speak directly to the issue. We now have the choice between Agraira and Housen presented directly. Based on reasons external to Vavilov, in my view, there is good reason to ditch Agraira and move to Housen for these cases, whether they involve a reasonableness or correctness standard on pure questions of law. That is because, when viewing the decision of a lower court that deals with an administrative decision, the appellate court’s role is not to directly review the administrative decision. In the hierarchy of courts, the appellate court role is to correct errors of lower courts; it is not to re-review the merits of administrative action. That is, primarily, the task of the superior courts and courts of first instance with judicial review jurisdiction. Based on this overriding first principle, the Agraira rule had three main flaws:

a) In principle, it corrupted the relationship between appellate courts, superior courts, and administrative decision-makers. Appellate courts do not review administrative decisions at first instance; they review decisions of lower courts as a matter of appeal. The appellate standards should, therefore, apply.

b) Whether the relevant standard is reasonableness or correctness, Agraira saps any deference to a lower court’s appreciation of the facts and evidence from the analysis. While the selection of the standard of review is a question of law to be decided by the court (see Monsanto, at para 6), its application to the facts may involve mixed questions of fact and law or assessment of evidence. There are good functional reasons to favour a first instance court’s appreciation of these issues. Agraira, for no good reason, did not account for this issue of first instance courts.

c) As Peter Hogg noted, there is no good reason to favour review of any kind, given that review necessarily involves some duplication of effort. Sometimes, review is a legal necessity, and we bite the bullet on duplication (ie) judicial review in the first instance is a constitutional necessity, and a legal good. But there is no principled reason to favour duplication of effort by an appellate court that did not get a first-hand glimpse of the record. There is no constitutional or legal good served by this sort of review that would vitiate these concerns.

A comprehensive standard for appellate review, then, emerges: it is the Housen v Nikolaisen standard. Adopting that standard in all instances of appellate review of a judicial review decision has two added benefits. First, it creates a comprehensive standard across judicial review contexts for appellate review. Whether the case involves a statutory right of appeal or an application for judicial review, an appellate court’s posture remains the same. While there are different reasons to favour the Housen standard in rights of appeal versus judicial reviews, the bottom line is the same: the posture of the appellate court is focused on reviewing potential errors in a lower court decision. The appellate court, at a basic level, is not a court of original judicial review jurisdiction, and was always a mistake to transform appellate review into first-instance judicial review.

But secondly, on a practical level, appellate courts are familiar and comfortable with Housen review. We now have extensive guidance on how to apply Housen review, including on the tricky issue of what constitutes “palpable and overriding error” (see South Yukon per Stratas JA, at para 46; Mahjoub per Stratas JA at para 61 et seq). There is a practical benefit that supports the in-principle reasons for favouring Housen review on these matters.

Overall, while this issue might appear to be a niche issue for administrative law lawyers, it is actually a fundamental issue. It goes to the relationship between the judiciary and the administrative state, an issue that should captivate all public lawyers. Hopefully, Horrocks helps to clear up some of the confusion that characterizes the current status of Agraira, on this front.

On the Rule of Law, Blockades, and Indigenous Self-Government

Recently, Canadians have been captivated by a set of protests occurring both in British Columbia and Ontario in relation to the Coastal GasLink pipeline. The pipeline is a $6B dollar, 670 km project which runs across Northern British Columbia. In British Columbia, the hereditary chiefs of the Wet’suwet’en lead blockades across the pipeline path, even in the face of injunctions issued against the blockades. On the other side of the country, in Ontario, a blockade led by members of the Mohawk First Nation has brought trains and other travel to a standstill, causing supply shortages in some areas. New protests and blockades pop up almost daily across the country. An injunction was also issued in respect of a blockade in the Toronto/Vaughn area, which was immediately burned by protestors in the area.

In all of this, many have called on police to enforce the various injunctions, because of the principle of the Rule of Law. The Rule of Law, so goes this argument, requires an injunction duly issued to be enforced. Still others rebuke the reliance on the Rule of Law, positing that (1) the Canadian Rule of Law, as presently understood, encompasses claims of Indigenous rights and title and (2) the Canadian Rule of Law does not speak to Indigenous systems of law, separate and apart from colonial law. As a result, in the debates, it is sometimes unclear whose Rule of Law we are talking about, and whether one particular application of a particular rule of law would lead to different results.

While it does matter in what sense we are using the term “the Rule of Law,” I write today to draw attention to two aspects of this dispute that I believe can exist in a complementary way. First, it is clear that on any understanding of the Rule of Law, a system of laws requires courts whose orders are respected. This is true even if one does not view the Rule of Law as the rule of courts. But additionally, what is required, as Dicey said, is a “spirit of legality” which should characterize the relationship between individuals and courts. On this account, the blockades in both Ontario and BC should be shut down, because they fail to respect valid court orders that are contributing to a public order. Canada’s Rule of Law as it is can support no other result.

But second, that cannot, and should not, be the end of the matter. Indeed, the blockades are showing why the current framework of Aboriginal rights vis-à-vis the Canadian state is so lacking. The Rule of Law is not only a fundamental postulate of our law, but it is also an aspirational ideal. There may be ways in which our constitutional order can move towards the ideal of the Rule of Law. On this front, it may be the case that the Rule of Law as currently understood in Canada is not applicable to Indigenous peoples and their systems of government. In other words, we may require an approach which recognizes distinctive Indigenous self-government, as a constitutional matter. I have made this argument before, but wish to renew it here: Canada’s Constitution can and should recognize distinctive Indigenous self-government.

I write this with the full knowledge that I am not an Indigenous person. And also, I know nothing of the particular Indigenous law that applies in this situation. I am merely intervening in the debate to provide some clarity around what the “rule of law” might mean in this context.

***

There are different ways we can understand the Rule of Law. Each of these three understandings set out above are being used interchangeably in the debate over whether the blockades are proper, on one hand, or legal on another hand.

The first understanding of the Rule of Law, the “thin” understanding, largely associates the Rule of Law with the rule of courts. That is, on this account, a court injunction duly issued should be respected. And in this case, there have been injunctions. The British Columbia Supreme Court issued an injunction in late 2018, which was later expanded in 2019 to include emerging blockades. Further, under this heading of the Rule of Law, a court in Ontario issued a valid injunction against blockades in Ontario on Saturday, February 15.

It goes without saying that the Rule of Law might not exhaustively mean the rule of courts, but that courts are still required in a system of the Rule of Law. This is because there must be some tribunal that can handle competing claims, especially in the context of property. Even if one accepts that Indigenous peoples have their own system of law operating within Canada, courts will be required to handle conflict of laws or jurisdictional contests. The ordinary courts, as Dicey called them, are central to an ordered society in which people can plan their affairs. If that is the case, the law should be respected, as interpreted by courts.

The Supreme Court of Canada has largely accepted this notion of order as central to a society governed by law. In the Quebec Secession Reference, the Supreme Court noted that the “rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs” (Quebec Secession Reference, at para 70). What is required is an “actual order of positive laws which preserves and embodies the more general principle of normative order” (Manitoba Language Reference, at 749). As an analogue to this general principle of normative order, there needs to be arbiters of the law in order to ensure that state action is not arbitrary in nature, itself an aspect of the Rule of Law (see Quebec Secession Reference, at para 70). Courts are the typical arbiters—the regulators, so to speak—of the relationship between individual and state. In order for the normative order to be upheld, then, a respect for courts are required.

This is true even if one takes a more substantive or “thick” conception of the Rule of Law. If one accepts, as some do, that the Rule of Law can encompass substantive policy aims like the promotion of human rights, one still requires the ordinary courts to recognize these rights as a matter of judicial interpretation. As such, the thick conception of the Rule of Law is parasitic on the thin conception. And all require that the judiciary be respected, and that court orders be followed. This does not bode well for the propriety of the blockades.

But one might take the argument based on the Rule of Law further, by arguing that the Canadian Rule of Law includes Indigenous rights recognized under law. One might make the argument that the Wet’suwet’en have existing Indigenous title to the land on which the Coastal GasLink pipeline will be built. Indeed, in Delgamuukw, the Wet’suwet’en were at the centre of the controversy. There, the Supreme Court outlined its approach to handling claims based on Indigenous title. What it made clear was that Indigenous title was a sui generis sort of right, arising before the assertion of British sovereignty (Delgamuukw, at para 114). However, because of a technicality in the pleadings, the Wet’suwet’en were unable to receive a declaration that they held Indigenous title in the land (Delgamuukw, at para 76) . As such, while the Wet’suwet’en may have a valid claim, it has yet to be proven, and can only be accommodated within the context of the duty to consult, a sort of antecedent framework that preserves Indigenous claims that have yet to be proven (see Tsilqho’tin, at para 2).

While there are some questions in this case about who the proper “consultees” were, the bottom line is that Wet’suewet’en title has never been proven over the lands in question. And in the context of a Canadian Rule of Law argument based on Aboriginal title, proof is the centrepiece (see the test for demonstrating Indigenous title, in Delgamuukw at para 143). A blockade relying on these rights must respect their fundamentally judicial nature, in terms of Canadian law: they are recognized by courts, even if they predate the assertion of British sovereignty. One using an argument based on Aboriginal rights recognized under Canadian law, then, cannot justify the blockades on this ground.

***

Thus far, I have reviewed the Canadian-centric way of understanding the Rule of Law. Under these two conceptions, the blockades should come down. But to my mind, this point is insufficient and incomplete. That is because the Canadian version of the Rule of Law may not be cognizable to Indigenous peoples. Indeed, the blockades reveal that there is a problem of much bigger proportions: the true compatibility of Indigenous systems of law in relation to Canadian constitutional law. That is the real issue on which the blockades shed light.

I am not an expert on the Wet’suwet’en system of law, but Indigenous peoples may make the claim that Canadian court orders do not apply to them, because they are a sovereign nation. It is true that the Supreme Court of Canada has recognized, in the context of Canadian-Aboriginal law, that Indigenous peoples have pre-existing systems of law and governance that predated conquest. And it has been widely recognized, as Chief Justice McLachlin once said, that settlers committed “cultural genocide” against Indigenous peoples. All of this provides necessary context to the acts of the blockaders.

But, because of the failure of the Charlottetown Accord, Indigenous peoples do not have inherent jurisdiction recognized in the Canadian Constitution. That Accord would have recognized the inherent nature of Indigenous self-government, and made it so that the right to self-government is not contingent on negotiations. Indeed, the right to self-government would have included the right to “develop and maintain and strengthen their relationship with their lands, waters and environment.” This is a fundamental difference from the status quo. Currently, Indigenous rights must be proven in court to be recognized. The judicial system is thus the locus of Indigenous rights, under s.35 of the Constitution Act, 1982. But inherent jurisdiction, recognized as a constitutional matter, would mean that Indigenous peoples have always had a constitutional basis or jurisdiction to act over matters within their remit. This turns the matter into one of jurisdiction. Inherent jurisdiction may mean that Canadian courts have jurisdiction to issue court orders, but the analysis would be different; instead of proving a “right”, Indigenous peoples would have a recognition of their jurisdiction, and the analysis would be akin to a federalism analysis. As a matter of constitutional amendment, this would put Indigenous systems of law on the same playing field as Canadian law, turning disputes over rights into disputes over jurisdiction. We should encourage our political actors to solve the disputes between the Canadian government and Indigenous groups through constitutional and political means, not only to provide clarity to these sorts of disputes, but to recognize the legal fact of existing Indigenous systems of government.

Questions regarding proof of Indigenous rights and title are currently difficult to resolve under the status quo of s.35 litigation. This is because courts are ill-suited to deal with the essentially political and jurisdictional task of recognizing distincitve orders of government and the lands on which they sit. Questions of proof are subject to years of litigation in court, putting dire pressures on Indigenous groups and government resources. One only need look at the Tsil’qhotin litigation for proof-positive of this point.

Additionally, this solution is not anathema to the Rule of Law. As the Court noted in the Quebec Secession Reference, constitutionalism and the Rule of Law are closely related principles. Once the Constitution recognizes distinctive Indigenous self-government, it becomes a matter of constitutional law, similar to the jurisdiction of the provinces represented in s.92 of the Constitution Act, 1867.

Some people may view this solution as a pipe dream. It is only so because our politicians lack moral courage. But in terms of the legal analysis, Canadian courts have the tools to manage conflicts of law and jurisdictional wrangling. Our federalism has been built on such wrangling for over 150 years, with provinces and federal government vying for power based on their constitutionally-delegated powers. Courts have developed the tools to manage jurisdictional disputes. Those same tools could be applied in this context as well. And of course, there are nuances to be worked out with this solution, as well. While Constitutions can set frameworks for government and provide rules for interjurisdictional disputes, land and resources will continue to be hot button issues subject to negotiations againt the backdrop of constitutional guarantees.

But, for the present moment, courts will need to exist and be respected. An existing system of Indigenous law, without more, cannot justify the disobeying of a court order simply by virtue of its existence. For now, so long as Indigenous peoples fall under the jurisdiction of Canadian courts, the blockades cannot stand as a matter of the Rule of Law. But this does not mean that Canadians, and Canadian leaders, should not bear the onus to complicate our idea of the Rule of Law. We should be looking to recognize inherent Indigenous jurisdiction over matters as an analogue of our own Rule of Law, just as we do in the context of federalism.

The bottom line: the blockades, under any conception of the Rule of Law, cannot stand in the face of a court order. But the blockades do illustrate a larger issue. As I have written before, Canadian understandings of the Rule of Law have to evolve to take account of Indigenous law. Surely, given our federal structure, this is a possibility.

Vavilov and the “Culture of Justification”

(Alyn) James Johnson

In Canada (Minister of Citizenship and Immigration) v. Vavilov (2019 SCC 65), the Supreme Court of Canada strongly endorses a “culture of justification” (at paras. 2, 14). This concept, which has rarely been mentioned let alone employed by a Canadian court in the past (a CanLII search reveals only the concurring judgment of Justices LeBel and Deschamps in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63), contains two main propositions. The first proposition is that all exercises of public power must be justified by written reasons. The second proposition looks to the effects that a reasons-giving requirement can have on institutional configurations and posits that judicial control over interpretations of the law should be loosened in favour of a more decentred and democratized approach.

These propositions, and the concept of the culture of justification itself, are closely associated with the work of David Dyzenhaus (see, for example, “The Politics of Deference: Judicial Review and Democracy”; and “Constituting the Rule of Law: Fundamental Values in Administrative Law”). The culture of justification has also been stressed extra-judicially by the former Chief Justice of Canada, Beverley McLachlin. In a 1998 paper, Justice McLachlin (as she then was) states that “justification [is] a precondition to the legitimate exercise of public power,” and citing Dyzenhaus, she proclaims that a culture of justification is “the definitive marker of a mature Rule of Law” (“The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998), 12 C.J.A.L.P. 171 at 174). The institutional contours of this “mature Rule of Law” are “pluralist,” and are outlined by Justice McLachlin as follows:

The effect of a culture of justification extends far beyond the proposition that institutions must justify the decisions they make in terms of rationality and fairness. Indeed, once a culture of justification is recognized, it affects the relationships among institutions of the state almost as much as it affects the relationship between those institutions and the citizens living under their rules. I will develop this idea more as I continue my remarks but, briefly, I believe that one of the most intriguing aspects of the new Rule of Law is that it makes it possible for institutions other than courts to play key roles in maintaining it. It opens the door to the idea that courts do not necessarily have a monopoly on the values of reason or fairness. Other social institutions may indeed be capable of justifying their powers to citizens and, in fact, citizens may well see these exercises of authority as legitimate [emphasis in original] (at 174-175, 185).

In Vavilov, this vision of a democratized and decentred approach to the Rule of Law is directly echoed by Justices Abella and Karakatsanis in their concurring reasons:

The rule of law is not the rule of courts. A pluralist conception of the rule of law recognizes that courts are not the exclusive guardians of law, and that others in the justice arena have shared responsibility for its development, including administrative decision-makers. Dunsmuir embraced this more inclusive view of the rule of law by acknowledging that the “court-centric conception of the rule of law” had to be “reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (at para. 241).

What is somewhat odd, however, is that while the concurring Justices endorse the institutional configurations of a culture of justification, they expressly reject the primary move made by the seven-member majority of the Court towards requiring that exercises of public power be justified through written reasons. The majority Justices announce that reasons are “the primary mechanism by which administrative decision makers show that their decisions are reasonable” (at para. 81), and they go on to state that

Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis (at para. 86).

While the Court stops short of imposing an across the board reasons requirement as a matter of substantive review here (I return to this point below), the statement that deficient reasons can themselves provide a basis to quash a decision is of the highest importance to a culture of justification. A reasoned basis for a decision, it would appear, is just as important as an outcome. On this point, Vavilov can be said to institutionalize Delta Air Lines Inc. v. Lukács (2018 SCC 2), in which six members of the Court remitted an agency’s decision for reconsideration on the basis of a flawed process of reasoning. Delta is cited six times in Vavilov, and all of the members of the Delta majority are part of the Vavilov majority, with the exception of Chief Justice McLachlin, who retired in the interim. In both decisions, the Court steps away from the prior governing authority of Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) (2011 SCC 62), which provided that “the ‘adequacy’ of reasons is [not] a stand-alone basis for quashing a decision” (at para. 14).

Justices Abella and Karakatsanis dissented in Delta, and in their strongly worded concurring reasons in Vavilov they express a continuing commitment to the Newfoundland Nurses position that deficient reasons cannot be used on their own to quash a decision (at para. 304). Yet while they claim that their “approach puts substance over form in situations where the basis for a decision by a specialized administrative actor is evident on the record, but not clearly expressed in written reasons,” the concurring Justices do not appear to acknowledge adequately that in a culture of justification reasons are by definition a matter of “substance,” and not a simple “form” carrying an outcome. As noted by the majority in Vavilov, reasons play a critical role in justifying a decision, particularly to a party on the losing end, and furthermore, the “discipline of reasons” is itself integral to achieving acceptable outcomes (at paras. 79-80).

The concurring Justices’ endorsement of a “pluralist conception of the rule of law” is ultimately undermined by their refusal to the accept the bedrock culture of justification proposition that outcomes should be supported by coherent reasons. The project of democratizing and decentering the interpretation of law, enjoined by advocates of the administrative state, requires that the “discipline of reasons” be broadly instituted. One could say that a cogent reasons requirement is the price of admission to an institutionally pluralist administrative state. The position mapped out by Justices Abella and Karakatsanis is troubling in that it overloads power onto executive decision-makers and does not exact enough in return in the form of reasoned justification.

While the Vavilov majority does not expressly endorse a “pluralist” approach to the Rule of Law in the same terms as the concurring Justices, the Court’s institutionalization of a “reasons first” methodology of reasonableness analysis arguably goes a long way towards democratizing decision-making:

A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion (at para. 84).

A “reasons first” methodology is of course consistent with the legislature’s decision to delegate power to a body other than a court, but it is also an acknowledgment by a reviewing court that a decision-maker that has submitted itself to the “discipline of reasons” should be accorded deference and respect.

A “reasons first” methodology and the Delta–Vavilov requirement that reasons themselves are reviewable for their cogency together establish a truly “pluralist” approach to the Rule of Law in a culture of justification. Affected citizens are entitled to a carefully justified explanation of why an executive official made a particular decision. Executive decision-makers, receiving their lawful authority from statute, are entitled to a space in which they can justify their conclusions. Reviewing courts, finally, are entitled to assert the power to remedy any shortcomings in reasoned justification by quashing a decision.

A final point. The question of exactly “Where reasons for a decision are required” needs more attention. An across the board reasons stipulation may not be feasible given the enormous variety of decisions made by executive officials. At present, however, it appears that a procedural fairness analysis will be needed to determine if reasons are required for the purposes of substantive review (unless reasons are mandated by statute). Revisiting and possibly tightening up the existing procedural fairness test, and clarifying its interrelation with substantive review, would be desirable.

Johnson on Vavilov

Announcing a guest post on the “culture of justification” in the Supreme Court’s decision in Vavilov

This is a quick announcement that James M. Johnson will soon be publishing a guest post discussing the notion of a “culture of justification” in administrative law as it is treated in the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. Dr. Johnson holds a PhD from Queen’s University, having written a thesis on nondelegation. He is currently the Principal of Public Law Solutions, a research firm in Toronto. I am looking forward to his post.