A Funny Thing Happened on the Way to the Pipeline…

The Rule of Law need not be exclusively the rule of courts. But in order for a society to be governed by the Rule of Law, even those who advocate a “thick” conception of the Rule of Law say that we need an impartial system of courts (see Tom Bingham, “The Rule of Law”; and relatedly, Trial Lawyers, at para 38). Concomitantly, the Rule of Law is not simply Rule by Law; I posit that the Rule of Law also requires a culture of respect for the law by those engaging in the court system. What happens when litigants try to, in service of their own goals, get around orders of a court?

A saga in the Federal Court of Appeal is showing the results. The Trans-Mountain expansion project is a controversial pipeline expansion project that has caused a great deal of consternation among environmental and Aboriginal groups. A number of these groups challenged the legality of the government’s decision to approve the expansion project in the Federal Court of Appeal. In Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224 [Raincoast Conservation I],the Court granted leave to some of these groups to launch a judicial review of the Governor in Council’s approval only on certain issues; other groups were denied leave altogether. The order in Raincoast Conservation I was clear.

And yet, some groups sought to get around the order. Namely, Tsleil-Waututh First Nation tried to raise issues that were not included in the “permissible issues” that Raincoast Conservation I allowed. Tsleil-Waututh explained that it was attempting to appeal Raincoast Conservation I (on restricted issues) to the Federal Court of Appeal, even though the decision in Raincoast Conservation I was rendered by a judge of that same court (Stratas JA). In Ignace v Canada (Attorney General), 2019 FCA 239, Stratas JA held that appeals cannot be made from the Federal Court of Appeal to the Federal Court of Appeal, because there was no statutory mechanism to allow for such appeals.

But Raincoast attempted to appeal Raincoast Conservation I (on denial of leave) in the face of Ignace, to the Federal Court of Appeal. In Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 259 [Raincoast Conservation II], the Court (sitting in a panel of three) rebuffed Raincoast’s attempt to basically relitigate issues already decided by the Court.

The Court rested its conclusions on three main premises. First, the appellants argued that the Federal Court of Appeal, as a statutory court, has all the powers necessarily implied in order to exercise its jurisdiction. This, said the appellants, entitled the Federal Court of Appeal (a statutory court) to hear an appeal from itself. But the Court rejected this somewhat bizarre assertion, holding that the Federal Court of Appeal, as a statutory court, would have to be vested with “some statutory language to support an implication that this Court can somehow hear an appeal from itself…” [8]. There was no such language. Second, the Court chastised the appellants for attempting to bring its own policy views into the appeal [10-12]. Namely,

 In their representations, the appellants set out policy views, some of which they unsuccessfully asserted in Raincoast Conservation, above, and urge them again upon us, perhaps in the hope that we might depart from Ignace. They want the National Energy Board’s environmental reports to be brought to court immediately by way of judicial review rather than waiting for the Governor in Council’s overall decision on approval. They want the standards in the Species at Risk Act, S.C. 2002, c. 29 and the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 to foreclose the Governor in Council from approving a project, rather than to be just factors the Governor in Council weighs in its public interest decision. They want to appeal from this Court to this Court because the Supreme Court seldom grants leave to appeal. They want the decision of a single judge “in a case of this importance” to be fully reviewable, not “immunized from appeal”.

To the Court, none of these policy views “are the policies Parliament has chosen to implement in its law. We must apply Parliament’s law, not the personal policy views urged by the parties or our own personal views…” [11]. As the Court said, “[t]he policy choices expressed by Parliament in its 2012 law no doubt frustrate the appellants and others. But they should express their frustration in at the ballot box or by other lawful and democratic means—not by relitigating points already decided” [16].

Finally, the Court sensibly tied all of this to the Rule of Law:

I appreciate that the appellants and others are passionate about their causes and dedicated to them. But passion and dedication can never justify disrespect for the rule of law. The rule of law requires those seeking the judgment of the Court to accept the judgment of the Court even when it is not to their liking.

The Court, for these reasons, terminated the appeal.

Why does any of this matter? I think there are a number of reasons why the Court’s order here is important. For one, it is an important statement about creative arguments that attempt to add-on to powers that are statutory in nature. Indeed, it is true that the Supreme Court has said that statutory actors such as the Federal Courts require certain powers “beyond the express language of its enabling statute” to perform its intended functions: see Bell Canada, [1989] 1 SCR 1722. This is just common sense. Courts require certain implied powers to manage process, for example. But this does not entitle the appellants in this case to say that a right of appeal—a statutory creation—exists where it clearly and simply does not in the relevant statutes. To make this argument invites courts to supplement clear statutory omissions with whatever the Court might feel is right and proper. This is an unwelcome twist on the basic hierarchy of laws—especially since the Supreme Court has held that a right of appeal is purely a matter of parliamentary will (Kourtessis, at 69: “Appeals are solely creatures of statute”), not a constitutional requirement of the Rule of Law: see Medovarski, at para 47.

Second, the Court sensibly rebuffed arguments by the appellants that would, in essence, replace Parliament’s law governing pipeline approvals with an alternative system. Such a system would permit, among other things, (1) early challenges to environmental reports, rather than the current system, which only permits judicial review of the Governor-in-Council’s final decision to approve; and (2) the introduction of standards set out in other statutes as mandatory considerations that could “foreclose the Governor-in-Council from approving a project” [10]. These might all be good ideas. But all of these proposals run counter to the law Parliament chose to instantiate the approval process for pipelines. The remedy for the appellants is not a collateral attack on Parliament’s process, but the ballot box, where they can vote in people who wish to make their preferred policy proposal a reality.

One could argue that the Federal Court of Appeal’s own jurisprudence permits the appellants’ preferred approach. In Alberta Wilderness, the Court apparently held that environmental reports “should be seen as an essential statutory preliminary step required by the Canadian Environmental Assessment Act.” More to the point, Tsleil Waututh 2018 apparently held (according to the linked ablawg post cited above) (at para 189) that a reference in Gitxaala Nation (paras 119-127) that environmental reports cannot be judicially reviewed was misconceived.

With respect, Stratas JA dealt with this matter in Ignace, at para 36. The fact that the appellants were trying to relitigate this point speaks to the issue overriding this entire saga: a respect for orders of the court duly issued. But even on the merits, this argument is somewhat misconceived. Reading Tsleil-Waututh 2018 in whole and in context, it seems that the Court, relying on Gitxaala, ultimately concluded that “the report of the Joint Review Panel constituted a set of recommendations to the Governor in Council that lacked any independent legal or practical effect. It followed that judicial review did not lie from it” (Tsleil Waututh 2018, at para 180). And this would find accord with basic administrative law principles, to the effect that only final decisions of administrative authorities are judicially reviewable (Budlakoti, at paras 56 et seq in the context of the doctrine of exhaustion).

Finally, a note on the Rule of Law. One might argue—quite ambitiously–that attempting to relitigate an order of a Court is justified by the policy proposals that a particular litigant seeks to advance. The weight of this argument is dependent, indeed, on how much one identifies the Rule of Law with the rule of courts. To some, court orders may not represent the totality of the Rule of Law. But a system of the Rule of Law is dependent on the respect owed to neutral arbiters of the law and their orders. Those neutral arbiters, in a system of courts, are components of the Rule of Law. They should be owed respect.

That said, we can and should criticize court decisions that we find undesirable. But as litigants acting in the system, there are defined ways to legally change the effect of a decision: by appeal, rather than relitigation.

 

R v Poulin: Charter Interpretation in the Spotlight

Introduction

Section 11 (i) of the Charter guarantees the right to offenders “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.” Ambiguity ripples through this provision. Most notably, does the provision (a) denote a comparison of the lesser sentence at two relevant times (commission and sentencing) or (b) does it denote a broader look at all the changes in various sentencing provisions, as part of a consideration of variations between the time of the commission of the offence and the sentence? This latter approach could permit an offender to be entitled to a lesser sentence than the relevant ones in force at either the time of commission or the time of sentencing.

This was the issue faced in R v Poulin: does the former approach, called the “binary approach,” apply, or does the latter approach, called the “global approach” apply? Mr. Poulin sought a right to a conditional sentence, which was not in force at the time of the commission of his offence or at the time of sentencing. The conditional sentence, however, entered into force as a form of sentence in 1996 [10]. A global approach would permit Mr. Poulin to access a conditional sentence, because it was in force for a period of time between commission and sentence. A binary approach would not permit Mr. Poulin to access the sentence, because it was in force neither at the time of commission or the time of sentence (I note that there was a mootness issue raised in the case, which I do not address here).

Decision

The majority, written by Martin J, ultimately chose the binary approach. Despite the fact that the global approach is preferred among lower courts, Martin J wrote that “[r]ather than identifying the principles or purposes underlying s.11(i), [the lower courts] have simply concluded that s.11(i) should be given the interpretation most generous to the accused, which they have called the liberal interpretation” [55]. Rather, to Martin J, one must approach s.11(i) from a purposive perspective, as instructed by the Supreme Court in its seminal Charter cases: see Big M, Hunter v Southam [54].

A purposive approach to Charter interpretation, as noted by Martin J, should not be conflated with a generous interpretation [53-54]. Charter rights must be “interpreted liberally within the limits that their purposes allow”[54]. Purpose is found by looking at the language of a particular Charter provision [64], and the original context at the time of its enactment [72]; in other words, the language of the right in its “historic and philosophic” context: Big M Drug Mart, at para 117.

Conducting this analysis, Martin J found that the language of s.11(i) favoured the binary approach. In support of a global interpretation, the respondents relied on the language of s.11(i), which says that the offender is entitled to the lesser of two sentences if the sentence has been varied between the time of commission and sentence. To the respondents, “between” denotes an interval of time, not a measurement of two distinct periods of time. But Martin J ultimately concluded that this intervallic interpretation did not suggest a global interpretation: (“between” “only tells us that s.11(i) concerns itself with the situation where the punishment has been ‘varied between’ the time of the offence and the time of sentencing’” [67]). Rather, to her, the word “lesser” in the provision “evokes the comparison of two options” [68]. This language bounded the purpose of s.11(i) to a binary interpretation. What’s more, reviewing the context of s.11(i) at the time of its enactment, Martin J concluded that there “was nothing to inspire a global s.11(i) right at the time of its drafting and enactment,” in part because “none of the [international] enactments embraced one…” [72].

Martin J then noted that, even after this textual and contextual analysis, “[w]hat remains to be seen is whether the purposes of s.11(i) support a global interpretation of s.11(i), or whether there is any purposive basis to read s.11(i) globally…s.11(i) could still receive [a global] interpretation it its purposes justified it” [85]. Specifically, Poulin submitted that “a binary interpretation of s.11(i) would result in unfairness…where two offenders who committed the same crime at the same time are sentenced at different times, when different sentencing regimes are in force” [87]. Martin J rebuffed this argument by making three points: (1) relative punishments are “linked to the offender and the proceedings against him” and thus “are tethered to two points in time that bear a deep connection to the offender’s conduct and criminality” [90]; (2) a global approach would not ensure identical results for two offenders in the circumstances Poulin describes [95]; and (3) a global approach would disproportionately benefit those offenders who have a long period of time between commission and sentence, because it would allow the offender to pick and choose the lesser punishment [97]. What’s more, importantly, a global right would resurrect punishments “which Parliament has, by repealing or amending them, expressly rejected…” [100].

The dissent, penned by Karakatsanis J, disagreed. To her, the text of s.11(i) suggests a “continuum between the time of commission and the time of sentencing” [148]. Also, “lesser” does not denote a solely binary interpretation [149]. The consequence of this binary “technical” interpretation, to Karakatsanis J, “is contrary to this Court’s conclusion that a generous and purposive approach must be taken to the interpretation of Charter rights” [151]. Put this way, “there is no principled argument that would justify such a limitation…” [153]. Karakatsanis J’s point is due, in part, to the reliance interests that an offender has in choosing a particular course of action, central to the idea of the Rule of Law [152]. All of the choices an offender has to make in the criminal process, to Karakatsanis J, should not be made on the basis of two artificial points in that process [153]. Instead, the entire continuum of possible options should serve to benefit the offender.

Analysis

In my view, the majority clearly had the better argument in this case. This is true for a number of reasons.

First, as a matter of criminal law, it seems odd to me that an offender can pick and choose the lesser sentence that was in force (if only briefly) in between the time of offence and the time of sentence. Yet this is the upshot of the global interpretive approach to s.11(i). As Martin J notes, the time of commission and the time of sentence are not two “artificial points” for a particular offender, as Karakatsanis J opined. Rather, they are points that are intimately connected to a particular offender and his crimes. When an offender chooses to commit a crime, he chooses with the backdrop of the existing law behind him. When an offender is sentenced, it would be truly unfair to subject her to a greater sentence than the one she risked at the time of offence; but one can hardly call it unfair to limit the potential sentencing options to those in force when the offender made the relevant choice and when he is about to be given the sentence. Indeed, this is what is textually prescribed by s.11(i). Karakatsanis J would respond that other choices–such as the choice to instruct counsel, and the choice to accept a plea agreement–are relevant on this spectrum. But as Martin J said, the right to s.11(i) does not speak to all of these choices. Rather, the text mentions the time of the offence and the time of sentence, and so “there is no principled basis to grant an offender… the benefit of a punishment which has no connection to his offending conduct or to society’s view of his conduct at the time the court is called upon to pass sentence” [90].

Secondly, Martin J is completely right to note that there are powerful Rule of Law reasons to reject a global approach, insomuch as that approach revives sentences that the people, through Parliament, rejected. Section 11(i) is a constitutional right that basically incorporates by reference Parliament’s choices. It would be an odd consequence of a global approach that Parliament’s choices—which have since been repealed—should give effect to a particular constitutional provision. This would have the effect of subjecting someone to a law—perhaps a favourable one, true—that is no longer on the books. Yet this is contrary to a basic premise of the Rule of Law, which undergirds s.11(i) as a fundamental purpose.

Thirdly, the majority’s purposive analysis is far more convincing than the dissent’s, in both general terms and in its assessment of text. The majority is absolutely correct to draw a distinction between a “purposive” approach to interpretation and a “generous” approach to interpretation. These do not mean the same thing. As Professor Hogg noted long ago, a purposive approach will tend to narrow a right to clearly defined purposes. In this sense, it would be odd to speak of a purposive approach operating concurrently with a generous approach—except to the extent, as Martin J notes, that one can interpret particularly rights generously within their purposes. But this strikes me as dancing on the head of a pin. More likely, a purposive approach will narrow a right to defined purposes. This makes the dissent’s focus on “generous” and “purposive” interpretation somewhat nonsensical.

The majority, sensibly, first looked to the text to set the boundaries on the right. This is a preferable approach to reasoning backwards from putative purposes, and then using those purposes to denote the meaning of text. Starting with the text makes sense because it is the meaning of the text that is under consideration. We move on to deriving purposes from that text, not the other way around. And on this front, the majority’s textual analysis is preferable to the dissent’s. The dissent relied only on dictionary meanings to discern the meaning of the text. But this is a thin reed on which to rest the meaning of text which arose not in a dictionary, but in the context of constitutional debates among human beings. Rather, the majority focused on the common usage and understanding of the word “lesser,” as real human beings use it:

Whereas comparative terms ending in “est” or “st” single out one thing from the others, comparative terms ending in “er” contrast one thing with another. For instance, we speak of the “better” of two options and the “best” of multiple, the “higher” of two heights and the “highest” of multiple, the “faster” of two speeds and “fastest” of multiple, to give only a few examples. Instead of employing the obviously global phrase “the least severe punishment” (or even “the lowest punishment”), s. 11 (i) uses the binary language “the lesser punishment”.

This is more persuasive than dusting off a dictionary and using that as a sole or determinative basis on which to discern text. While dictionary meanings can shed light on text, common usage should be a key concern of textual interpretation, where dictionary and common meaning differ.

Conclusion

This case raises lots of interesting issues, both relating to the Constitution and to criminal law. Ultimately, I think the majority had the better of the argument.

The Road to Serfdom at 75: Part II

Hayek’s proposals for resisting collectivism

In the last 10 days, I gave two talks ― one to the Runnymede Society chapter at the University of Victoria and one at the Université de Sherbrooke ― on Friedrich Hakey’s The Road to Serfdom. In yesterday’s post and in this one, I reproduce my notes for these talks. Yesterday’s post covered the context in which The Road to Serfdom was written and presented Hayek’s criticism of collectivism. This one reviews some of his proposed solutions. The page numbers refer to the 50th Anniversary Edition, which is the one I have in my possession.


What, then, is the alternative to collectivism? It is, naturally, individualism. Individualism, Hayek insists, is not selfishness. It is, rather, the “recognition of the individual as the ultimate judge of his ends, the belief that as far as possible his own views ought to govern his actions”. (66) The sovereignty of individual belief over individual action is, indeed, a burden as much as a right. Hayek reminds us “[t]hat life and health, beauty and virtue, honor and peace of mind, can often be preserved only at considerable material cost”, and “that we all are sometimes not prepared to make the material sacrifices necessary to protect those higher values”. (107) Individualism insists on “the right of choice, [which] inevitably also carries the risk and the responsibility of that right”. (112) But the alternative to making choices, however unpleasant, for ourselves is that others will make them for us.

Note that, from the insistence on the primacy of the individual follows naturally what Hayek calls “[t]he fundamental principle that in the ordering of our affairs we should make as much use as possible of the spontaneous forces of society, and resort as little as possible to coercion”. (21) Hayek is especially well known for his insistence on the importance of this principle in the economic realm, but it applies much more broadly, as we shall see. Between collectivism and individualism as fundamental organizing principles of society, between “the order governed by the impersonal discipline of the market or that directed by the will of a few individuals”, (219) Hayek sees no middle ground, no possibility of compromise. The methods of collectivism are such that individual liberty cannot be preserved once they are being thoroughly applied, regardless of the purpose to which they are put. From that, it follows “[t]hat democratic socialism, the great utopia of the last few generations, is not only unachievable, but that to strive for it produces something so utterly different that few of those who now wish it would be prepared to accept the consequences”. (36) It is the ruthless, rather than the sincere democrats, who are able and willing to impose their values on the rest of society.

So what is to be done to secure this fundamental principle, and the supremacy of the individual on which it rests? I will focus on Hayek’s suggestions in three areas: the law, not only because this is my area of expertise, but also because Hayek’s first degree was, in fact, in law, and he deserves to be much better appreciated than he is as a legal philosopher; the economy, because after all Hayek is usually thought of as an economist (though he was much more than that), and a Nobel Memorial Prize winning one at that; and the relationship between the individual and society, because, I think that this, if anything, even more important both to Hayek himself, and especially to us as readers in an age where the preoccupations of collectivism are, ostensibly, not only or even primarily, economic.


Let me begin, then, with the law. Hayek sees its function as that of “creating conditions under which the knowledge and initiative of individuals are given the best scope so that they can plan most successfully”. (40; emphasis Hayek’s.) A sound legal framework is what enables competition and markets to serve “as a means of co-ordinating human efforts” (41) and so to provide for the needs and wants of individuals. Hayek is no anarchist; he is not, like Thoreau, saying that that government is best which governs not at all. (Indeed, he claims, in The Road to Serfdom, that “[i]n no system that could be rationally defended would the state just do nothing. An effective competitive system needs an intelligently designed and continuously adjusted legal framework as much as any other.” (45) (In Law, Legislation and Liberty, Hayek’s views on the design of legal frameworks change quite dramatically.)

But government, if it is to respect the ability of individuals to be masters of their own lives, must not only create and sustain a legal framework, but also bind itself by rules. In other words―in words that are of central importance to Hayek―we need the Rule of Law. As Hayek defines this phrase, it “means that government in all its actions is bound by rules fixed and announced beforehand―rules which 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 that knowledge”. (80) In this way, “the government is prevented from stultifying individual efforts by ad hoc action”. (81)

This means that the law must consist of “formal rules which do not aim at the wants and needs of particular people”, (81; emphasis Hayek’s) and are not meant to produce substantive justice, whether defined in terms of equality or of some conception of merit. An attempt to produce rules―whether laws or administrative rulings―aiming at modifying the lot of particular people means that the law “ceases to be a mere instrument to be used by the people and becomes instead an instrument used by the lawgiver upon the people and for his ends”. (85) Laws that are qualified “by reference to what is ‘fair’ or ‘reasonable’”, (86) which can only be applied on a case-by-case basis, are antithetical to the Rule of Law; they result in “increasing arbitrariness and uncertainty of, and consequent disrespect for, the law and the judicature, which in these circumstances could not but become an instrument of policy”. (87)

Relatedly, “the discretion left to the executive organs wielding coercive power should be reduced as much as possible”, (81) which has the added benefit of enabling democratic control over the exercise of this coercive power. Such control, Hayek argues, is only possible when the executive works towards ends determined by a democratic process―that is, ends on which political consensus can exist, rather than being manufactured by the executive itself―and in accordance with standards compliance with which can actually be assessed. In the absence of such standards, there is no Rule of Law, even if the executive is ostensibly authorized to act by vague and broad delegations of power. (91)

It is important to note that Hayek’s rejection of the pursuit of substantive equality by means of laws targeting particular groups or authorizing discretionary administrative decision-making does not proceed from a lack of interest in rights, or indeed equality. On the contrary, he endorses a substantive conception of the Rule of Law, which incorporates “limitations of the powers of legislation [that] imply the recognition of the inalienable right of the individual”. (93) He also warns that state control of the economy will be used “to pursue a policy of ruthless discrimination against national minorities” (96) or against otherwise unpopular groups or persons.


This brings me to the realm of economics. The Road to Serfdom emphasizes the importance of competition between producers―including both firms and workers. Competition is preferable to allocation of resources according to some pre-defined plan, or to the views of government decision-maker, “not only because it is in most circumstances the most efficient method known but even more because it is the only method by which our activities can be adjusted to each other without coercive or arbitrary intervention of authority”. (41) The world is so complex that no planner, whether an individual or a government agency, can embrace the whole picture of the resources available to a society, the needs and desires of individuals, the ideas they are generating.

Being left to pursue their interests and opportunities within a general framework of rules, individuals and firms will create more, not only in terms of material wealth, but also of innovation and opportunity, than if they worked at the direction of government. A bureaucracy attempting to direct them simply could not anticipate what possibilities might arise, and what prospects its orders might foreclose. It is worth pointing out that Hayek sees a role for regulation, whether to protect the rights of workers or even the environment. At least in The Road to Serfdom―his views on this become more uncompromising later―Hayek claims that “preservation of competition [is not] incompatible with an extensive system of social services―so long as the organization of these services is not designed in such a way as to make competition ineffective over wide fields”, (43) and they are, instead “provided for all outside of and supplementary to the market system”. (133)

On the other side―as consumers―a competitive economy leaves us choices that regulation or government control would take away. Hayek explains that “[o]ur freedom of choice in a competitive society rests on the fact that, if one person refuses to satisfy our wishes, we can turn to another. But if we face a monopolist we are at his mercy. And an authority directing the whole economic system would be the most powerful monopolist conceivable.” (102) While the market does not always provide us with as many opportunities as we would like, it at least leave us the choice of how to direct our limited resources, instead of leaving us dependent on others’ views “of what we ought to like or dislike” (103) or how we ought to value the different aims that we would like to pursue. (99) The market does not distribute wealth and resources “according to some absolute and universal standard of right”―which in any case does not exist―, but nor does it make distribution subject to “the will of a few persons”. (112) In a market economy, “who is to get what … depends at least partly on the ability and enterprise of the people concerned and partly on unforeseeable circumstances”. (112-113) 


I turn, finally, to the question of the relationship of the free individual to a free polity. The commitment to individualism imposes significant burdens on both―or rather, on both the individual as a private agent and on the same individual as a citizen and member of a political community.

In politics, we must learn to recognize the reality of the constraints and limitations within which we make our choices: in particular, of economic constraints. We must accept that they are not the product of some sinister will, but of forces no less real for being impersonal. Hayek explains and warns that

[a] complex civilization like ours is necessarily based on the individual’s adjusting himself to changes whose cause and nature he cannot understand: why he should have more or less, why he should have to move to another occupation, why some things he wants should become more difficult to get than others, will always be connected with such a multitude of circumstances that no single mind will be able to grasp them; or, even worse, those affected will put all the blame on an obvious immediate and avoidable cause, while the more complex interrelationships which determine the change remain inevitably hidden from them. (223)

We must understand that while “[i]t may sound noble to say, ‘Damn economics, let us build up a decent world’”, this “is, in fact, merely irresponsible”. (230) The attempt to build up a decent world risks empowering the demagogues offering easy solutions that solve nothing, and destroy what we already have.

To resist them, we need also to accept that ends do not justify all means; that collectivist and a fortiori dictatorial instruments cannot be put in the service of the right ideals, or entrusted to the right people, without either corrupting them or being seized by the more ruthless and corrupt; that “power itself” is “the archdevil”, (159) and that power concentrated in the hands of the state “is … infinitely heightened” (159) in comparison with that wielded by private actors. Once again, the echoes of The Lord of Rings are unmistakable.

We need, moreover, to firmly reject “the presumption of any group of people to claim the right to determine what people ought to think or believe”. (180) Perhaps most controversially for our time, Hayek cautions against a loss of “belief in Western civilization” and “a readiness to break all cultural ties with the past and to stake everything on the success of a particular experiment”. (203) (It would perhaps not be superfluous to note that Hayek would later write an essay called “Why I Am Not a Conservative”; he always considered himself a liberal―in the European, not the American, sense of the word.)

Last but not least, we ought to remember that morality is not measured by the intensity of our “indignation about the inequities of the existing social order” (230) but “by standards [of] individual conduct, and on the seriousness with which we uphold moral principles against the expediencies and exigencies of social machinery”. (231) We are acting morally, in other words, not when we are engaged in virtue-signalling or being “unselfish at someone else’s expense”, or indeed “being unselfish if we have no choice”, (231) but when we choose to put our own self-interest on the line for our principles. On this point, it is worth emphasizing that voting, in particular, is no test of individual morality, since it requires no “sacrifice of those of [those] values [one] rates lower to those [one] puts higher”. (233)

It is in our private conduct that we ought to be unselfish, concerned with equality, and generally do what we think is right. We must recall, Hayek says, that “[r]esponsibility, not to a superior, but to one’s conscience, the awareness of a duty not exacted by compulsion, the necessity to decide which of the things one values are to be sacrificed to others, and to bear the consequences of one’s own decision, are the very essence of any morals which deserve the name”. (231-32) We ought also to practice actively those “individualist virtues” to which I already referred: willingness to stand up for our opinions also ability to respect for those who disagree with us; magnanimity not to punch down and courage not to kiss up; good humour and presumption of good faith. We need, in other―Abraham Lincoln’s―words, to act “with malice toward none, with charity for all, with firmness in the right as God gives us to see the right”. Importantly, Hayek reminds us that “these individualist virtues are at the same time eminently social virtues”, (163) in that they make a society where they are practiced a much more pleasant place to live than one where they are forgotten.

Firmness in the right as we are given to see the right is perhaps an especially important theme for Hayek, though unlike Lincoln, he writes of individual conscience as what gives us to see the right. He insists on the importance of “readiness to do what one thinks right … at the sacrifice of one’s own desires and perhaps in the face of hostile public opinion”, (232) “to back one’s own conviction against a majority”. (233) Related to this is the imperative to hold on to the “old meaning” of the word “truth” as “something to be found, with the individual conscience as the sole arbiter of whether in any particular instance the evidence (or the standing of those proclaiming it) warrants a belief”, (178-79) and not whatever the authorities want us to believe for the sake of maintaining social cohesion.

As an academic, I especially want to highlight the need to stand up to the tendency to put “the disciplines dealing directly with human affairs and therefore most immediately affecting political views, such as history, law, or economics”, in the service of “the vindication of the official views” rather than a search for truth. (176) We must not allow law schools, or history departments, to be made into “factories of the official myths which the rulers use to guide the minds and wills of their subjects”. (176) As Hayek wrote all these years ago, “contempt for intellectual liberty is not a thing which arises only once the totalitarian system is established but one which can be found everywhere among intellectuals who have embraced a collectivist faith”. (179) Runnymede is fighting the good fight in opposition to this contempt.


Let me conclude with a warning and an exhortation. The warning is that reading The Road to Serfdom will not fill you with joy. It is dispiriting to see just how much Hayek’s warnings about the dangers of collectivism are still applicable today, three quarters of a century after he wrote. It would be much easier to think of whatever problems we are facing in our time as temporary aberrations rather than as avatars of a long, perhaps a permanent, dark streak in human nature, which is what their persistence suggests they are.

But the exhortation is to pick up The Road to Serfdom regardless and, having read it, to do what you can to push back against the trends that it describes. As Hayek says, “[i]t is because nearly everybody wants it that we are moving in this direction. There are no objective facts which make it inevitable.” (7) As Gandalf points out in The Lord of the Rings, “all who live to see [evil] times” wish them away, “[b]ut that is not for them to decide. All we have to decide is what to do with the time that is given us.”

The Road to Serfdom at 75: Part I

An appreciation of a life-changing book

In the last 10 days, I gave two talks ― one to the Runnymede Society chapter at the University of Victoria and one at the Université de Sherbrooke ― on Friedrich Hakey’s The Road to Serfdom. In this post and one to follow tomorrow, I reproduce my notes for these talks. The page numbers refer to the 50th Anniversary Edition, which is the one I have in my possession.


Why is F.A. Hayek’s The Road to Serfdom still relevant—and not merely relevant, but compelling—75 years after its publication? It is not obvious that this should be so. It is a book written in a historical particular context, and in response to the intellectual climate of its day. It is a polemic; one is almost tempted to say, a pamphlet―and indeed Hayek himself, in a 1976 preface, refers to The Road to Serfdom in exactly this way, “a pamphlet for the time”. In this, it is unlike Hayek’s more general later works, The Constitution of Liberty and Law, Legislation and Liberty.

And yet, while I wouldn’t say the two later books, especially Constitution, are obscure, it is still The Road to Serfdom that is the iconic one. It has changed the trajectory of my own intellectual life when I read it, probably in third year of law school. (It is one of those things that I find it difficult to remember not knowing, so I don’t recall the exact time or the reasons that made me read it.) And it has had a similar effect on any number of people since its publication. Clearly, it is rather more than a pamphlet, or even just a polemic. It might have began as a pamphlet for the time, but it is, as Milton Friedman described it in a different preface, timeless.

I will venture an explanation for The Road to Serfdom ongoing appeal. I will argue that it targets an evil that is enduring, and that we must confront today, with (almost) as much urgency as Hayek had to when he was writing. The defeat of the particular shapes that this evil took then—a defeat that looks much more provisional and uncertain than it did when I first read the book a dozen years ago—was important in its time. But the evil itself was not put to rest, and perhaps cannot be. It revives, shifts shapes, and must be resisted and repelled again and again, in the time that is given us.

(The reader may have noticed me echoing, and in the last sentence directly quoting from The Lord of the Rings. This is not an accident. I think there are echoes of the Lord of the Rings in The Road to Serfdom, or perhaps I should say it the other way around, since the Road to Serfdom was published much before The Lord of the Rings finally was. I believe that this is not at all surprising, since they were being written at the same time, and their authors saw—and in their very different ways responded—to much the same events, not just those of the then-ongoing war but also those of the previous one, of which both were veterans.)


So let me begin, very briefly, with the immediate context in which Hayek was writing, before moving on to the more timeless elements in The Road to Serfdom. The book was published in 1944, while World War II was ongoing, although it looks forward to the aftermath of an Allied victory. It was written, therefore, while Nazism was at or just past the peak of its power, while Soviet communism was already immensely powerful, and growing more so by the day. But the Western response to the two totalitarian ideologies was strikingly different. Even before war broke out, socialism and communism were prestigious in the way Nazism never quite was in the West; after 1941, communism was the ideology of an ally in that war. And, of course, the Soviet regime had long presented itself as the most steadfast opponent of Nazism, while the Nazis themselves employed much anti-Communist rhetoric (recall that the alliance of Germany, Italy, and Japan was officially called the “Anti-Comintern Pact”). The fashionable view was that fascism was the ultimate, and perhaps inevitable, development of unbridled capitalism, and that embracing socialism or communism was the only way to forestall the advent of fascism.

Hayek saw things differently. For him, Nazism and Socialism were denominations in the same church totalitarian church, whose adherents had a great deal in common even if they professed unfailing enmity. (The enmity was, in any case, less constant than advertised: recall Stalin’s pact with Hitler in 1939, leading to their joint invasion and partition of Poland, and much of Eastern Europe.) What Nazism and Socialism had in common was collectivism. Both held that society had to be organized around the supposed interests of particular groups of people, and devoted single-mindedly to the pursuit of some alleged common purpose. Both rejected liberalism and individualism. Nazism simply defined the group that was supposed to define the purposes of political action differently, along racial rather than class lines. Despite this, it had, as the title of one of the chapters of The Road to Serfdom had it, “socialist roots”. Hence Hayek’s dedication of the book “to socialists of all parties”, on the right as well as on the left.


This brings me back to the timeless evil which The Road to Serfdom responds to. On the surface, significant parts of the book rebut arguments that were prevalent in the years preceding its publication about the desirability and feasibility of Soviet-style central economic planning and government ownership of the means of production. And of course advocacy of such policies is now unusual, although I wonder whether the ground is shifting even on this, with the popularity of Bernie Sanders and, even more so, Elizabeth Warren, whose plans for telling companies exactly how to behave, what to sell, and for whose benefit, go nearer the central planning of yore than anything a serious candidate for office has proposed in decades.

But these are issues primarily of form. Look below the surface, and the impulse toward collectivism is no weaker now. What has changed is not its origin or orientation, but its direction. 21st-century collectivists are not only preoccupied with economic inequality, on which they forebears mostly (but not exclusively) focused in Hayek’s time, but (also) with the environment and, especially, with identity―whether it is the identity of groups purportedly defined by gender, race, sexuality, etc., or that of nations.   

What does Hayek mean by collectivism, and why is it, after all, such a bad thing? Collectivism is the organization of society by the state according to a single blueprint, such that persons and groups, insofar as they are not obliterated in the process, are entirely subordinated to it and made to serve its purposes instead of pursuing their own. The attraction of collectivism is that it seems to make possible the realization of purposes on which we might all agree―say, racial or gender equality, or putting an end to global warming, or perhaps something more diffuse, such as simply “the public welfare”―by directing all, or at least some very significant part, of society’s efforts to them.

What’s the problem with this? Collectivists tend to forget that purposes that all appear desirable in the abstract can be in conflict, and that sometimes “any one of them can be achieved only at the sacrifice of others”. (59) If the efforts of society are to be centrally directed by government, a hierarchy of aims will need to be established to determine which will yield to others. Yet where is this hierarchy to come from? Comprehensive agreement on a scale of values does not exist in a free society, where individuals have their own moral scales. The hierarchy of aims must, and can only be, generated by the government; and not by a democratic process, which is bound to reflect the disagreements that exist in society. Indeed, it is precisely the failure of democracy to generate all-encompassing agreement that “makes action for action’s sake the goal. It is then the man or the party who seems strong and resolute enough ‘to get things done’ who exercises the greatest appeal”, (150) and is set up in a position of unaccountable technocrat or dictator, which amounts to more or less the same thing.

As for individuals, if they cannot be expected to agree on a common hierarchy of aims, they must still be made to agree to it. An official dogma, extending not only to values but even to “views about the facts and possibilities on which the particular measures are based” (170), must be spread, by means of relentless propaganda, by twisting the meaning of words, especially of words describing moral and political values, and by resorting to censorship and ultimately force, since dissent compromises the mobilization of society toward the chosen aims. Instead of truth, “[t]he probable effect on the people’s loyalty to the system becomes the only criterion for deciding whether a particular piece of information is to be published or suppressed”. (175-76) And people, like ideas, “more than ever become a mere means, to be used by the authority in the service of such abstractions as the ‘social welfare’ or the ‘good of the community’”. (106) Moreover,

[i]f the ‘community’ or the state are prior to the individual, if they have ends of their own independent of and superior to those of the individuals, only those individuals who work for the same ends can be regarded as members of the community. It is a necessary consequence of this view that a person is respected only as a member of the group, that is, only if and in so far as he works for the recognized common ends, and that he derives his whole dignity only from this membership and not merely from being man. (156)

Note, too, that aims do not exist in the abstract; they are those of individuals, sometimes of groups (that is, of individuals who agree). A hierarchy of aims imposed―ultimately at gunpoint―by the government is also a hierarchy of people. A collectivist government will choose whose interests to favour, and whose to subordinate. It might say it aims at fairness, but it will apply a particular standard of fairness: its own, not one of society at large, since the latter does not actually exist. Indeed, “it is easier for people to agree on a negative program―on the hatred of an enemy, on the envy of those better off―than on any positive task. The contrast between the ‘we’ and the ‘they’, the common fight against those outside the group, seems to be an essential ingredient in any creed which will solidly knit together a group for common action.” (153) Collectivism, whatever its initial aims, tends toward factionalism and nationalism, and this tendency is only exacerbated by “that glorification of power … which profoundly affects the ethical views of all collectivists”. (158)

Ultimately, collectivism is destructive not only of freedom―both political and personal―but of morality itself. A collectivist system “does not leave the individual conscience free to apply its own rules and does not even know any general rules which the individual is required or allowed to observe in all circumstances”, (161) because the needs of the collective―as interpreted, of course, by the political leaders or technocrats purporting to speak on its behalf―are always regarded as more important than individual scruples. Collectivists

lack … the individualist virtues of tolerance and respect for other individuals and their opinions, of independence of mind and … uprightness of character and readiness to defend one’s own convictions against a superior … , of consideration for the weak and infirm, and of that healthy contempt and dislike of power which only an old tradition of personal liberty creates. Deficient they seem also in most of those little yet so important qualities which facilitate the intercourse between men in a free society: kindliness and a sense of humor, personal modesty, and respect for the privacy and belief in the good intentions of one’s neighbor. (163)

In The Road to Serfdom, this is a description of Germans, whom Hayek regards as epitomizing collectivism. But it applies, in our day, just as well to “social justice warriors” as to the supporters of Donald Trump. And it applies with double force to those in positions of political power in either movement, who more than all the others are required to  demonstrate “readiness [to] conform[] to an ever changing set of doctrines” laid down by the leader in the pursuit of his chosen goals (or, in a development Hayek did not anticipate, emerged more or less spontaneously in activist circles), whatever these doctrines may be, and to enforce such conformity on those over whom they rule.


Part II follows.

Can the Administrative Process Achieve Social Justice?

Can administrative law achieve any ideal of social justice? The answer is perhaps yes. But there is nothing built-in the system to encourage this result. For that reason, deference to administrators because of the political aims they might pursue is a week reed on which to rest a more general case for deference.

This much was made clear to me when I read a recent piece by perhaps the most revered administrative law scholar in Canadian history, John Willis. Celebrated in the academy, Willis is best known for his piece on administrative law functionalism (John Willis, “Three Approaches to Administrative Law: The Judicial, The Conceptual, and the Functional” (1935) 1 U.T.L.J. 53), laying out his view of administrative law as a body of law that should charitable to the aims and expertise of administrators—fundamentally, in their good-will as holders of the public trust, and in their ability to deliver impartial, efficient justice relative to the courts. The idea was that courts should defer to administrators for this reason. Willis was at heart a social democrat, as noted in this paper sketching an intellectual history of administrative law in Canada. The underlying philosophy was a belief in government, in contrast to a belief in judges, who were said to stultify the development of the social welfare state in favour of the common law. Indeed, Willis self-described himself as a “government man.”

The administrative law functionalists were politically-minded people, advancing a political agenda against the common law judges. But their argument for deference was also admittedly political. Says  Michael Taggart (at 257):

These left-leaning scholars were deeply resentful of what they saw as conservative judges twisting the pliable rules of statutory interpretation to favour the existing order, privileging the rich and the powerful, and defeating the purposes of statutes intended to further the interests of the workers, the homeless, and the least well-off in society.

One might see, here, a commitment to social justice broadly conceived. But the functionalists, and the way they taught us to think about administrative law, had significant blindspots, in an ideological sense. Not all causes were equally represented in their social justice mindset. Read, for example, this quote by Willis in his “Administrative Law in Retrospect” at 227, in which Willis decries growing trends to subject the administrative process to norms of transparency and accountability:

I am thinking particularly of a number of currently fashionable cults and the damage they may do to effective government if they are allowed to infiltrate too deeply into the procedural part of administrative law: the cult of ‘the individual’ and claims by prisoners in penitentiaries, complaining of their treatment there or applying for parole, to a formal ‘right to be heard’; the cult of ‘openness’ and claims by the press to the right to dig into confidential government files; the cult of ‘participatory democracy’ and claims by ‘concerned’ busybodies to the right to be allowed to take court proceedings to curb, say, alleged illegal pollution or alleged dereliction of duty by the police.

One need not belabour the point; to the extent Willis is representative of a functionalist mindset, the commitment to social justice only went as far as required to protect the prerogatives of government. This is an empty form of social justice, one more attuned to the preservation of government as a functioning institution than the use of government to achieve outcomes that improve social welfare. This might be a legitimate aim, though one should wonder why courts should have any involvement in propping up modern government. But let’s not pretend it is an ideal vision of social justice.

What’s more, the vision ended up being remarkably short-sighted. Nowadays, the administrative state is most problematic in areas which affect the least well-off, including those that Willis slagged in his article: prisoners, those suffering from pollution, immigrants and refugees, and social assistance recipients. How can a broader theory of delegation to administrators, based on the relative conservatism of courts, miss out on all of these people?

This illustrates a broader point, about which the real functionalist motivations shed light. Delegation to administrators, no matter the substantive or pragmatic justifications for it, is about power. Whether it is a delegation of legislative power, an executive power of appointment, or otherwise—delegation is about a transfer of a power from one entity to another. In this case, it is a transfer of power from one branch of government to another—most notably from the legislative to the executive. The power of the executive branch is aggrandized by delegated power. The functionalists, at least Willis, understood this, By trying to fend off pesky “prisoners” and “busybodies,” the functionalists directed their attention as much to courts as to litigants seeking to challenge executive action in courts. The effect of their doing so was the preservation of administrative power.

As I’ve previously written, the upshot of this is that power can be wielded in either direction. Executive power in particular can be put towards social welfare ends. But power is inherently neutral, and is shaped by the person wielding it. Administrative power, just as much as it can be used for social welfare ends, can also be used to stymie social welfare goals. This much the administrative law functionalists teach us.

Much Ado About Context: A Note in Anticipation of Vavilov et al

A short post today about the role of “context” in administrative law. Many speak about “context” in the law of judicial review as if it is some inherent element of the law. In Khosa, Justice Binnie, for example, noted that in applying the reasonableness standard of review, the standard “takes its colour from the context” (Khosa, at para 59). But nowhere did Justice Binnie describe what context matters, or how it matters. In Dunsmuir itself, Bastarache and LeBel JJ said that “[t]he analysis must be contextual in applying the standard of review (Dunsmuir, at para 46). They said this in the context of discussing the “pragmatic and functional” factors that still, nominally, exist under the Dunsmuir framework. Whatever these quotes actually mean, the role of context in the law of judicial review is a distinct school of thought worthy of its own blog post (see Dean R Knight’s Vigilance and Restraint in the Common Law of Judicial Review for more discussion of contextual approaches to the law of judicial review).

Nonetheless, I am always puzzled by generic calls to “context.” Floating on a sea of “context” does nothing to guide litigants or judges in applying the law. What is required are simple, clear rules that are attuned to the fact that decision-makers arise in different statutory contexts, that can guide the parties and judges involved in applications for judicial review (for a contrary view about the search for simplicity in the law of judicial review, see Justice Cromwell’s “What I Think I Have Learned About Administrative Law” in the CJALP).

How can one have simple rules that adequately capture the vast array of decision-makers? This is, I think, the core dilemma facing the Supreme Court in the Vavilov case and perhaps in the law of judicial review more generally. For me, the key in enshrining the role of context is to look to the varied statutory contexts in which administrative decisions are made. Clearly, when speaking about context, we cannot mean that the standard of review analysis must encapsulate how decision-makers empirically act on a day-to-day basis. That is, courts cannot afford more or less deference based on how administrators actually act in the context of their day-to-day jobs. This would be an information-intensive exercise that judicial review courts are, obviously, ill-equipped to handle. So we need some proxy for context that takes into account the varying ways in which administrative decision-makers exercise their powers.

Of course, administrative decision-makers live in a world where their powers are “themselves confined” by statutes (Dunsmuir, at para 29). This means that administrative powers are delegated in the context of broader statutory schemes that set out when, how, and under what circumstances delegated powers are to be exercised. For example, are administrative decisions covered by a strong privative clause, impliedly signalling that Parliament wanted to limit judicial oversight? This is a sign, perhaps, that deference should be afforded. Has Parliament set out a list of factors that a decision-maker must consider (see Farwaha, at para 91)? This means that the decision-maker must consider these factors, not ones extraneous to the legislation—all things equal, this is a sign that the court must only consider whether the decision-maker considered these factors. Every statute is different, and each statute will affect the way in which courts review particular exercises of delegated power.

Practically, this means that what we require are meta-rules for courts to apply in analyzing statutes in service of deciding and applying on a standard of review—in other words, we need rules for deciding what statutory context matters. Luckily, we have those meta-rules: the rules of statutory interpretation. The Supreme Court has recognized that the principles of statutory interpretation are key in discerning the scope–and therefore the intensity of review–of delegated power (Bibeault, at para 120; also recognizing the difficulty of the task). And this is the key: if statutory context is the best evidence we have of what the legislature meant when it delegated power to a decision-maker, then the rules of statutory interpretation are all we need to discern how much deference is owed a particular decision-maker.

What is to be avoided, on this line of thought, is the Supreme Court’s generic approach that institutes a rule that clearly ignores statutory context. The presumption of deference on home statute interpretation increasingly applies without viewing any statutory context (see my post on CHRC, for example). And as I wrote earlier, the Court rarely pays attention to implicit signals from the legislature, through statutory rights of appeal and other legislative mechanisms (though the Court did so admirably in Tervita and Rogers). This seems contrary to the whole search for legislative “intent” that characterizes this area of the law.

If context is truly to mean context, then the Supreme Court should pay attention to the varied statutory contexts in which administrative decision-making occurs, by giving effect to the legislature’s meaning.

Upcoming Talks

Following in my co-blogger Leonid Sirota’s footsteps, I am posting a list of the talks I am giving across Canada this fall. My list is much shorter than Leonid’s, but if you are at any of these events, please feel free to come say hello. As Leonid says, it is always great to meet readers of the blog in person:

September 19: University of Saskatchewan College of Law, 11:30-1pm, “The Extreme Intoxication Defence” with Professor Sarah Burningham. I will discuss my recent paper on the McCaw case and declarations of invalidity in superior courts.

September 20: Canadian Law and Economics Association Annual Conference, University of Toronto Faculty of Law, 12:00pm: “An Economic Theory of Immunization in the Canadian Law of Judicial Review.” My paper deals with the problem of immunization adverted to in a number of Federal Court of Appeal decisions, and advances an informational explanation for the causes of immunization.

More information on the conference here. 

October 18: Université de Montréal (Symposium of the Journal of Commonwealth Law): “The Political Problem with Human Rights Tribunals,” a discussion of the norm of independence in administrative decision-making and the tension between political accountability and independence.

Hope to see you at one of these events!