Tag: congruence

Putting Stare Decisis Together Again

Originalists and living constitutionalists alike have good Rule of Law reasons for being wary of appeals to reinvigorate stare decisis

It is hardly news for those who follow Canadian public law that the Supreme Court tends to have little regard for precedent. Indeed, to the surprise of most people and the chagrin of many, it even freed lower courts to disregard its own precedents, in some circumstances, in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. For many people, this lack of regard for stare decisis is part of a broader pattern of erosion of the Rule of Law. Dwight Newman and, separately, Brian Bird and Michael Bookman, made this argument in their respective contributions to the collection of essays/special issue of the Supreme Court Law Review on threats to the Rule of Law in Canada edited by Maxime St-Hilaire and Joana Baron in 2019.

The relationship between stare decisis, the Rule of Law, and the desire to do justice in particular cases and to improve the law going forward is not only a source of difficulties in Canada, however. So tomorrow (December 15) at 2PM Eastern, a panel of the Global Summit, an online conference organized by Richard Albert, will try to shed some light on it with participants from the United States (Jeffrey Pojanowski and Marc DeGirolami), and Australia (Lisa Burton Crawford), as well as yours truly. Our chair will be an Italian colleague, Andrea Pin. This should be a lot of fun, and the other participants are all first-magnitude stars. (In case you’re wondering how they let me in ― well, I helped Prof. Pin put it together, so they couldn’t conveniently boot me out!)

The proceedings will, naturally for these plague times, be on Zoom. You can register here ― it’s free! My understanding is that they will be recorded and will, eventually be made available to all. These things tend to take some time though, and are bound to with an event as big as the Global Summit, so I encourage you to watch tomorrow if you can. And, to convince you to give it a go, here is a flavour of own presentation.

Critics of the lack of respect for precedent in Canadian public law tend to argue that enough is enough, and the Supreme Court should go back to a much more robust ― and consistent ― application of stare decisis. My argument is that this is too simple, too idealistic a response. In a perfect world where judges had generally been committed to the Rule of Law, unwavering respect for precedent may well be what an ongoing commitment to the Rule of Law requires. But the world of Canadian public law is far from being perfect in this way. Much of this law suffers from deep Rule of Law problems, some of which I described in my own contribution to the St-Hilaire & Baron volume. As a result, while I share the desire to put stare decisis together again, I argue that this operation will be a delicate one, and must be careful and somewhat selective.

One issue which I’ll address here ― there will be more in my talk (assuming I don’t run out of time, that is!) ― is the concern that respect for precedent may force courts to apply something other than the correct legal rule, be it constitutional, statutory or, arguably, even a common law principle. Lord Sankey, perhaps the chief ― if also most misunderstood ― authority on constitutional interpretation in Canada describes the issue eloquently in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58. Pointing out that “[u]nder our system, decided cases effectively construe the words” of enactments, including constitutional enactments, Lord Sankey highlights

a danger that in the course of this process the terms of the statute may come to be unduly extended and attention may be diverted from what has been enacted to what has been judicially said about the enactment. To borrow an analogy; there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make any distinction between the two, and yet at the one end of the range the colour may be white, and at the other end of the range black. (DLR 64)

Lord Sankey’s concerns in the Aeronautics Reference are those of an originalist avant la lettre: “[t]he process of interpretation as the years go on”, he warned,

ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction … should impose a new and different contract upon the federating bodies.

Some prominent academic originalist voices have echoed this belief, notably Gary Lawson, Randy Barnett, and Amy Coney Barrett (back when she was still in academia). However, they are not alone in worrying about precedent standing in the way of an accurate application of the law. Debra Parkes raises the same concern from a Canadian living constitutionalist perspective: “[t]he entrenchment of the Canadian Charter of Rights and Freedoms in 1982 has arguably strengthened the case for overruling earlier decisions that are inconsistent with the evolving interpretation of various Charter rights”. (137) Similarly, the late Joseph Arvay and his co-authors have argued that “it is the role and duty of the [Supreme] Court to provide what it believes to be a correct interpretation of the Charter, even if that involves admitting long-standing and oft-repeated past judicial error”. (69)

Of course, originalists or those who are chiefly concerned with the stability of the law may view the living constitutionalist position as simply empowering judges to legislate their particular preferences from the bench. And, admittedly, some living constitutionalists seem to seek a sort of permanent revolution in constitutional law. Mr Avray and his co-authors wrote that “an examination of the role of stare decisis in Charter litigation reveals some transformative Charter moments lost”, (62; emphasis in the original) suggesting that they might be expecting the courts to change society rather than be its reflection, as living constitutionalism seems to suggest. I personally think that this tension between applying the law, even an ever-evolving law, and transforming it is fatal to living constitutionalism’s claim to be a sustainable approach to constitutional interpretation. But let me put that aside for the purposes of this post (and of my talk tomorrow).

Here, I will take living constitutionalism at its word, as an approach to constitutional interpretation that holds that the law is shaped by the needs and values of society as they stand from time to time. On this view, updating legal doctrine to align it with these needs and values as they happen to stand now is not exercise of will, but simply what the Rule of Law requires. Living constitutionalists saying “this precedent no longer reflects the values of Canadian society and must therefore be discarded” are no different, in their relationship to the Rule of Law, from originalists saying “this precedent is inconsistent with the original public meaning of the constitutional text, and must therefore be discarded”.

Call this, if you will, the horseshoe theory of constitutional stare decisis. Radical originalists and radical living constitutionalists agree, at least at the level of broad principle. In practice, there may still be substantial disagreement between those originalists who, like Prof. Barnett, distinguish constitutional interpretation and construction, and see a role for stare decisis in the latter, and living constitutionalists (and those originalists) for whom all constitutional questions are essentially similar in being determined by the constitution itself. But, that important detail aside, both sides of the horseshoe agree that the constitution’s meaning cannot be superseded by judicial interpretation, and remains directly binding on courts, regardless of what their predecessors may have said about it.

From my own originalist perch, I agree with this view. The Rule of Law concerns about the stability of legal doctrine are serious, of course. But the concern on the other side of the scale is no less based on the Rule of Law. The issue is with what Lon Fuller called “congruence” between the law on the books and the law as it is actually applied. (I wrote about this here.) Law cannot guide behaviour ― and thus play its moral role in providing a secure environment for citizens and establishing a mutually respectful relationship between the citizens and the state ― if it is not applied in accordance with its terms. Officials, including judges, who do not apply the law as it stands are engaged in nothing less than “lawless application of the law”. In my view, lawlessness cannot become the foundation of a Rule-of-Law compliant law; it must be expunged for our legal system to have a claim to the kind of authority that Fuller envisions.

As mentioned, this is only a preview. In my talk ― and, hopefully, in a paper that will come out of it ― I will try to address a couple of other reasons why I think it is a mistake to simply insist that the Supreme Court go back to upholding precedents. The problems with the Rule of Law in Canadian public law run much deeper than a lack of regard for stare decisis, and addressing this issue in isolation will not really resolve them. I hope that you can “come” to the talk, and that we can continue this discussion there!

Was Lon Fuller an Originalist?

Some thoughts on Lon Fuller, the Rule of Law, and constitutional interpretation

I think that the best argument for originalism is that it is required by the principle of the Rule of Law. (Jeffrey Pojanowski’s contribution to an online symposium on originalism organized by Diritto Pubblico Comparato ed Europeo earlier this year makes this argument nicely and concisely.) So I probably brought some confirmation bias to a re-reading of Lon Fuller’s discussion of the Rule of Law requirement of “congruence between official action and the law” in The Morality of Law, which makes me think that he would have been at least sympathetic to originalism.

If law is to guide the behaviour of those to whom it is addressed, it is not enough that it be public, intelligible, stable, and so on. It must also be applied and enforced consistently with the way it is supposed to be. A failure of congruence, Fuller explains, amounts to nothing less than “the lawless administration of the law”. (81) It can result from a number of causes, some perhaps innocent, like “mistaken interpretation”; others having to do with the lack of competence or intelligence; and in extreme cases “bribery”, “prejudice”, and “drive towards personal power”. (81) (The attempt at classification is mine; Fuller, somewhat oddly, presents these various causes pell-mell.)

Importantly, although one might be tempted to think that it is primarily the executive that has to be vigilant to ensure that it applies the law as written, Fuller was clear that the requirement of congruence is addressed to the judiciary too. The lower courts had to ensure that they applied the law as set out by the higher ones, but even an apex court has responsibilities towards the Rule of Law. After a detour into the importance of generality, coherence, constancy, and prospectivity in the articulation of adjudicative law, Fuller writes:

The most subtle element in the task of maintaining congruence between law and official action lies, of course, in the problem of interpretation. Legality requires that judges and other officials apply statutory law, not according to their fancy or with crabbed literalness, but in accordance with principles of interpretation that are appropriate to their position in the whole legal order. (82)

He proceeds to recommend the principle of articulation articulated in Haydon’s Case, (1584) 3 Co Rep 7a:

for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:

1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy.

Now, this quotation, which I have presented in the same way as Fuller does, is somewhat incomplete. Here is the full statement of “the office of all the Judges” according to Heydon’s Case:

always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

Fuller, instead of the reference to “the true intent of the makers of the Act”, adds one further element of his own,

a fifth point to be “discerned and considered,” which might read somewhat as follows: “How would those who must guide themselves by its [i.e. the Act’s] words reasonably understand the intent of the Act, for the law must not become a snare for those who cannot know the reasons of it as fully as do the Judges. (83)

In subsequent discussion, Fuller proceeds to criticise what he calls “an atomistic conception of intention”, which “conceives the mind to be directed … toward distinct situations of fact rather than toward some significance in human affairs that these situations may share”, (84) and denies the relevance of intention in interpretation, or at any rate in difficult interpretative questions, which arise in individual situations ostensibly not anticipated by the legislator. Intention matters, Fuller insists, but it is clear from the example he uses ― that of a dead inventor whose work must be continued from an incomplete design by another person ― that it is not an actual, specific intention that he has in mind, but the general purpose of the document to be interpreted that can be ascertained from its contents; indeed Fuller commends the exclusion of “any private and uncommunicated intention of the draftsman of a statute” (86) from its legal interpretation.

How does this all translate into approaches to constitutional interpretation ― which, after all, Fuller does not actually discuss? Many Canadian readers will no doubt be inclined to think that Fuller is advocating something like purposive interpretation, to which the Supreme Court of Canada sometimes professes to adhere. But, as Benjamin Oliphant and I have explained in our work on originalism in Canada, purposivism, especially as articulated in R v Big M Drug Mart Ltd, [1985] 1 SCR 295 is arguably compatible with some forms of originalism. Fuller’s purposivism, it seems to me translates fairly well into public meaning originalism, given its emphasis, on the one hand, on the circumstances of the law’s making as being key to interpreting it, and on the other on the reasonable understanding of those to whom the statute is addressed as one of the guidelines for the interpreters. Fuller’s exclusion of the “private and uncommunicated thoughts” reinforces my view that it is public meaning, rather than original intentions, originalism that he supported, while his rejection of the “atomistic conception of intention” shows that he would have had no time for original expected applications ― which, of course, most originalists have no time for either.

Of course, Fuller was writing before originalism became a word, and a topic for endless debate. It is perhaps presumptuous, as well as anachronistic, to claim him for my side of this debate. Then again, Fuller himself insisted that text are not meant to apply to finite sets of factual circumstances within their author’s contemplation. So long as the mischiefs they are meant to rectify remain, they can be properly applied to new facts ― something with which public meaning originalists fully agree. In the case of the dead inventor, were we to summon his “spirit for help, the chances are that this help would take the form of collaborating … in the solution of a problem … left unresolved” (85) ― not of the dictation of an answer. And failing that, if we stay within the inventor’s framework, and remain true to his general aim, we have done the best we could. This is a standard by which I am happy to be judged.