The Best and the Rest

A friend has drawn my attention to what seems like an interesting book, Laughing at the Gods: Great Judges and How They Made the Common Law by Allan C. Huntchinson, a professor at Osgoode Hall. I haven’t had a chance to start reading it yet but I will eventually, because prof. Hutchinson’s topic is directly relevant to my doctoral dissertation’s topic – judges and the way in which they shape the law. But while my idea is that such a study has to start with systemic factors – the ways in which the environment in which judges work (generally accepted ideas of what a judge ought to do, the institution of courts, rules of procedure) constrain them and influence their work, the sources of the rules judges apply, the differences of the judges’ approaches to various areas of the law – prof. Hutchinson’s study is about individuals.

As the blurb on the publisher’s website says, “[a]ny effort to understand how law works has to take seriously its main players – judges. Like any performance, judging should be evaluated by reference to those who are its best exponents.” The book is about “candidates for a judicial hall of fame,” “game changers who oblige us to rethink what it is to be a good judge” – starting with Lord Mansfield, and on to mostly predictable greats such as Oliver Wendell Holmes, Lord Atkin, and Lord Denning. The only Canadian in the list is Justice Bertha Wilson.

As I wrote here a while ago, “judicial greatness, as greatness in anything else, is probably impossible to define in any way that would not generate serious disagreement. But that’s precisely what makes trying to define it, and coming up with lists of greats, so entertaining.” So I’m sure that a book trying to understand judicial work by defining and selecting case studies of judicial greatness was good fun to work on, and has the potential of being good fun to read. And yet I wonder if it is a profitable way of achieving its stated aim of understanding how the law works.

That’s because I doubt that “any performance …  should be evaluated by” looking at the best performers. For one thing, understanding any human activity is, arguably, a study in mediocrity more than in greatness. If you want to understand tennis, it is not enough to watch Roger Federer, Novak Djokovic, and Rafael Nadal. That will teach you how it ought to be done, but tells you nothing at all about how tennis is in fact played by everyone else on the planet. And the point is starker still if we leave the realm of activities that are pursued primarily for the sake of excellence, such as competitive sports and performing arts. Other activities – think of cooking for example – are mostly pursued not for the sake of excellence, but in order to satisfy some practical need. By studying examples of excellence in such activities, one does not even learn what people who undertake them typically aim for, even in their dreams, still less what they usually achieve.  Judging is like that. Its primary purpose is not to achieve greatness, but simply to settle disputes, many of them quite trivial. A lot of it happens every day, most of it good enough to do the job, but by no means remarkable. Studying great judges tells you little descriptively about what judging usually is, and perhaps not much normatively about what it ought to be.

The other point that any study of a human activity through the examination of its outstanding representatives misses is the rule-bound nature of most human undertakings. To return to my tennis example again, a book about it surely has got to start with a description of the rules of the game, not with the biographies of great players. Of course you might be able to figure out some (in the case of tennis, probably most) of the rules by watching great matches, but understanding the rules of the game first will help you appreciate and understand what is going on and what is so great about it. You will also need some understanding of the means at the players’ disposal  – their equipment, say, or even the human body. Suppose you’re an alien with teleportation abilities who doesn’t understand how human beings move around. Chances are you won’t admire Rafa Nadal’s running – you’ll think he’s an idiot. It is a rather convoluted example, but when it comes to judging, we are to some extent in the position of that alien. Most legal thinkers seem not to have much of an appreciation for the rules of the judicial game or for the limits the judges’ position imposes on what they can do. Of course these rules are controversial and these limits are uncertain. But it seems to me that a truly informative study of judging has to begin by discussing them.

There is of course a danger in methodological critiques such as this one. Instead of engaging with the story a scholar tells, the critic in effect tells him that he ought to have written a different kind of story, which (almost) invariably happens to be just the kind of story the critic himself is working on. That’s exactly what I’ve done here. Yet if that caveat is right, then perhaps there us substantive value in my criticism, despite its dubious and self-serving methodology!

Can the Viceroy Do Wrong?

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

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

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

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

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

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

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

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

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

Gun-Registry Hearing Today

Something almost as exciting as the Euro has started today in Montreal: the merits hearings in the gun-registry litigation, which I have been covering extensively. As I am not in Montreal, I am totally dependent on the media for any information about it. Things are not very encouraging so far. The reports by Radio-Canada and La Presse do not give us any information on today’s argument. I suppose we’ll have to wait until the judgment comes out to learn anything of substance.

In case you’re looking for a refresher on what the fuss is all about, I have an overview of Québec’s application; my comments on it;  some further thoughts; and a report and comment on the decision granting an interlocutory injunction to stay the destruction of the gun-registry data pending the hearing on the merits – which starts today.

Law Like Love

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

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

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

Federalism and Judicial Review

A paper of mine has been chosen for a presentation at the Third Annual Constitutional Law Colloquium at the Loyola University Chicago School of Law. It is about the legitimacy of judicial review of legislation on federalism grounds – that is, courts striking down legislation because it infringes not individual rights, but the division of powers between a federal and a local (provincial or state) government. While in Canada the principle has mostly been uncontroversial (even though some instances of its application were not), it is regularly criticized in the United States, and I am sure that the criticism – at least from the academia and probably some judges too – will redouble if the Supreme Court strikes down President Obama’s healthcare reform legislation. And more general criticisms of judicial review of legislation, such as that articulated most forcefully by Jeremy Waldron in his article on The Core of the Case against Judicial Review, are also applicable to judicial review on federalism grounds. I argue that this criticism is misguided, and that federalism-based judicial review is valuable.

Here is a short abstract of my paper:

Not only critics of judicial review of legislation, but sometimes even those who support its use to protect the rights of individuals or minorities are critical of judicial review on federalism grounds. I want to argue that they are mistaken. When it is used to protect a federal division of powers, judicial review of legislation is not only counter-majoritarian, but also pro-majoritarian.

In a federation, democracy happens at more than one level, a democratic federal legislature and democratic state legislatures. Thus, insisting that issues of federalism must be resolved democratically obscures the fact that, in a federation, there are different decision-makers with different constituencies and democratic claims of equal strength. To allow one of these decision-makers to impose its understanding of federalism on the other is no less undemocratic than to subject it to judicial review.

“Political safeguards of federalism” cannot resolve this problem, because they are either ineffective at giving states a voice in federal legislation or, if effective, they allow states to override the views of the national majority. Judicial review is the best practical solution for settling disputes about federalism. From a democratic standpoint, it is not a mere loss, but an important investment.

If you want to read the whole thing, please let me know. I’d be happy to share it and to get some comments before I present it formally. (That’ll be in November, so there’s plenty of time yet.)


Apologies for a rather lazy post today. Blogging will probably be light in the coming days.

Don’t Try This at Home

I had missed this story when it came out, but better late than never. The CBC reports on the work of a Windsor Law professor, Julie Macfarlane, according to whose estimation “up to 80 per cent of people in family court and 60 per cent in civil cases represent themselves.” This is is, as she says, “huge,” and creates all sorts of problems for the system, which did not develop with self-represented litigants in mind, and of course for the self-reps themselves. They are, more often than not, bewildered by the process, and emerged frustrated. The report quotes prof. Macfarlane as saying that “[s]ome people feel so burned by this process they need counselling. They’re feeling so emotionally overwhelmed, they need more than legal advice.”

Prof. Macfarlane finds that this wave of self-representation has two main causes. The obvious one is that budgets for legal aid, especially in civil matters, are extremely tight. But the other, says she, is that “[m]any people who, in the past, may have decided they could pay for a lawyer if they scrimped and saved on something else, are increasingly coming to the conclusion that, given the amount of information on the internet, perhaps they can do this for themselves and save a great deal of money in the process.”

That is quite ironic, since the accessibility of legal information is supposed to make “access to justice” easier. But law and justice, as any first-year law student learns, are very different beasts. CanLII might succeed in its stated goal, which “is to make Canadian law accessible for free on the Internet.” Yet it seems that by making law freely accessible, such resources give people a false sense of being able to succeed in the legal system without professional help, and even without more than a very superficial acquaintance with it, which leads them to fail to get the justice, if any, that the system could give them if used properly.

That’s not to say that CanLII should shut down. It is a precious resource, for lawyers and others alike. But it has a perhaps non-obvious downside, of which we should also be aware.

In fact, the whole issue of self-represented litigants and access to justice abounds in complexities that are forgotten more often than they should be. Continue reading “Don’t Try This at Home”