Where Is the Grass Greener?

In a recent article in Constitutional Forum, Peter Russell argues that Canada needs to imitate New Zealand by creating a Cabinet Manual that would, notably, contain an authoritative although not legally binding statement of the principal constitutional conventions, especially those that regulate the formation of governments. While this would, in prof. Russell’s view, have a number of benefits ― “[a] Cabinet Manual”, he writes, “can be a quietly evolving instrument for reforming the ‘unwritten’ part of our constitution” and increase political accountability ―  “the biggest benefit a Cabinet Manual would yield for our society is to increase the knowledge of citizens about how
they are governed” (98).

Meanwhile, in New Zealand itself, a former Prime Minister and inveterate constitutional reformer, Sir Geoffrey Palmer, is campaigning, together with one of the country’s leading lawyers, Andrew Butler, for the enactment of a codified constitution that would eliminate conventions altogether. A major reason they cite for their effort is New Zealanders’ ignorance of their constitution ― which the Cabinet Manual lauded by prof. Russell has apparently done nothing at all to dispel. (Note, however, that their proposed constitution would require the publication of updated versions of the ― presumably slimmed down ― Cabinet Manual every six years (s 25).) A codified constitution, by contrast, will do wonders to rectify this sorry state of affairs

Prof. Russell does not really explain how the existence of a Cabinet Manual will bring about the “increase [in] the knowledge of citizens about how they are governed” that he anticipates. He provides no evidence of its having done so in New Zealand, although he does confidently assert that “[m]aking the Cabinet Manual available on the internet was a giant step in increasing the constitutional literacy of New Zealanders” ― mostly, it seems, thanks to the wonders of hypertext. If Sir Geoffrey and Dr. Butler (as well as many of my colleagues here in New Zealand) are to be believed, prof. Russell is simply wrong.

For their part, Sir Geoffrey and Dr. Butler do not really explain how the codification of constitutional rules will change anything to the citizens’ ignorance of and lack of interest in these rules. They hope that a codified constitution that dispenses with conventions “will educate people and public decision-makers on their rights and responsibilities … and provide a better framework for learning about civics” (25). But they provide neither evidence that this can happen, nor examples that it has. Canada and Australia, with their partly codified and partly conventional constitutions, would seem to offer perfect natural experiments that can test their assertions: if Canadians and Australians are more knowledgeable or better educated about federalism, which is codified in their respective constitutions, than they are about responsible government, which is not, then Sir Geoffrey and Dr. Butler are right. Otherwise ― and although I have no empirical evidence, it seems to me that it is indeed otherwise in Canada ― they too are simply wrong.

In fact, the idea that an authoritative text ― whether legally binding or merely informative ― telling people “how they are governed” is going to achieve much of anything to educate citizens on this admittedly crucial issue is naïve. Consider the situation in the United States, with its revered Constitution (and, let us note, a very short constitution in contrast to the 40-page one that Sir Geoffrey and Dr. Butler are proposing, never mind the length of a Cabinet Manual). As Ilya Somin reminds us, “[p]ublic ignorance” there

also extends to the basic structure of government. A 2006 poll found that only 42 percent can even name the three branches of the federal government: the executive, the legislative, and the judicial. There is also much ignorance and confusion about the crucial question of which government officials are responsible for which programs and issues. (164-65)

Neither prof. Russell nor Sir Geoffrey and Dr. Butler explain how their proposals will ensure that their respective countries will avoid the fate of the United States. Prof. Somin, by contrast, does have an explanation for the phenomenon that he observes, which is that

[f]or most people, political ignorance is actually rational behavior. If your only incentive to follow politics is to be a better voter, that turns out not to be much of an incentive at all, because there is so little chance that your vote will actually make a difference to the outcome of an election. … For most people, it is rational to devote little time to learning about politics, and instead to focus on other activities that are more interesting or more useful. (166)

No Cabinet Manual, and codified constitution, can change that. But unless they recognize this fact, well-meaning reformers are bound to think, with no particular justification, that whatever system they have must be responsible for the public’s ignorance of the constitutional basics, and that whatever system some other country has must be the solution to the problems they see in theirs. So Canadians will propose imitating New Zealand, while New Zealanders will want to imitate, and indeed go further than, Canada. Yet while the grass may always be greener on the other side of the Pacific Ocean, the putrid flowers of political ignorance bloom on both.

Why Codify (Encore)

In connection with yesterday’s post, in which I discussed the reasons for the codification of the civil law of Lower Canada that were expressed in the preamble of the statute which set up the commission responsible for the codification, my friend Alastair C.F. Gillespie pointed me to some speeches by Sir George-Étienne Cartier who was responsible for that legislation. These speeches confirm, though with some interesting nuances, the motivations expressed in the preamble of the Codification Act ― which mainly had to do with the difficulties the inhabitants and the lawyers of Lower Canada faced in accessing their laws, notably because these laws were most unavailable in English or, sometimes, in French, and indeed, in the case of some French legal sources, unavailable in Canada in either language.

One such speech was delivered upon the introduction in the legislature of the United Province of Canada of the bill that would eventually become the Codification Act. Cartier explained that codification was necessary so that Lower Canada’s “inhabitants of diverse origins” would all know their laws. (130; translation mine, here and throughout.) I suppose this might be a reference to the linguistic concerns that took pride of place in the preamble of the Codification Act and, as I will shortly show, in Cartier’s recollections of his fight for codification. However, the reference is a strangely oblique one, in comparison with the straightforward language of these later sources. I wonder whether it does not make more sense to read this passage as showing that Cartier subscribed to the idea, admittedly more popular with common lawyers than with civilians, that a people’s laws are its customs, its heritage passed on from generation to generation. If people “of diverse origins” live together, each group will only know its own customs, and not those of their fellow citizens ― unless, they are educated by a positive act of legislation. This motive, however, has not made it to the Act’s preamble.

Codification was also necessary, Cartier argued, because “the inhabitants of lower Canada, while they feel the wisdom of the French laws that regulate their persons and their properties, can only study the sources of these laws after immense research, which codification will spare them.” (130) Cartier went on to list the legal instruments which “we do not possess” (130). Legal research in 1857 did, indeed, lack the resources of 2015. This concern was, as I explained in my last post, prominent in the preamble of the Codification Act.

Much later, in 1871, Cartier reminded an (anglophone) audience that before codification, the issue of civil law was a matter of great concern to the “English-speaking inhabitants. All admired the spirit of the system, the gentlemen of the profession as well as the others, but they could not all read the text and understand it for themselves.” (717) Cartier boasted that “[t]o remove this just cause of discontent, I demanded and obtained the revision of our laws of Lower Canada and their printing in both languages.” (717)  Indeed, he added, his response to his opponents among both lawyers and judges was that the codification “was less necessary for the French Canadians than to the English population, and that it was a matter of justice towards them.” (717)

This is an interesting counterpoint to the claims of the 1980s Québec nationalists, who counted “institutions” ― including, perhaps first and foremost, the civil law and, specifically, the Civil Code ― among the markers of Québec’s “distinct society” (alongside language, culture, and history). According to the man responsible for that law’s codification, it was done more for the benefit of the anglophones than for that of their francophone compatriots. Of course, Cartier was a politician, both in 1857 and in 1871, and no doubt chose his words for his audiences. Still, even allowing for this fact, these words are of some interest to us today.

Why Codify

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

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

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

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

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

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