Tag: democracy

The Good Government Trilemma

If you like big government, be prepared to sacrifice democracy or accountability

What is the respective role of democratic and other means of holding a government to account in a well-ordered polity? In one way or another, this question is the subject of live―and lively―debates in many (perhaps all?) democratic societies. In Canada, it manifests itself especially in controversies about the use of the Charter’s “notwithstanding clause”; in the UK, about the role of judicial review (especially of ministerial decision-making) and the Human Rights Act 1998.

At the risk of generalizing, my impression is that these debates tend to present themselves as clashes between the values of, for lack of better terms, democratic government and accountable government. One side thinks that the important thing is that elected officials get to run the show as they think best, subject to eventually being booted out by the voters. The other thinks that what matters is that the government be kept in check and made to answer for its actions on an ongoing basis, through some mix of elections, judicial supervision, and other accountability mechanisms, either internal to the government (such as ombudsmen and auditors) or external (NGOs and media).

To be clear, the democracy camp does care about accountability ― especially, that provided, or at least thought to be provided, by regular elections. For its part, the accountability side doesn’t deny the value of democracy, though it might argue that it’s a mistake to think of democracy in purely electoral terms. But there is, or so people think, a tradeoff between a focus on democracy, which calls for limiting the ability of non-electoral accountability mechanisms, especially the courts, to interfere with the work of government, and that on accountability, which requires these mechanisms to get in the government’s way with some regularity.

However, I think that the debate framed in this way is incomplete. It ignores a third factor that needs to be taken into account: the size of the government in question. This tends to go unnoticed because, whatever relative values they attach to democracy and accountability, virtually all participants in the debate are committed to keeping government big, by which I mean (substantially) bigger than a classical liberal nightwatchman state, let alone a Nozickian minimal state. I’m not sure quite where the boundary of big government lies, but I am sure that all governments in democratic states in 2022 (and for all I know the non-democratic ones as well) are on the big government side of it.

I would suggest that the apparent need to trade off between democracy and accountability is in fact only special case of what I will, again for lack of a better term, call the good governance trilemma. Of democracy, accountability, and big government, you can have two ― if you do things well; many polities won’t get two, or indeed even one ― but you cannot have all three. It is possible to satisfy the trilemma by choosing fractions ― a dose of democracy, a measure of accountability, a government not quite as big as one might dream of ― but the total cannot go above two, and it will certainly never go anywhere near three. You can’t have it all.

How does the trilemma work? Let’s start, as most people do, with big government a given. A government so big it takes scores of ― or, in the UK’s case, close to a hundred ― ministers of various sorts (or, in the US, agency heads) to run itself, to say nothing of the tens or hundreds of thousands of civil servants. This, of course, is not a Kornbluthian dystopia, but our present reality. A citizen who wanted to keep track of what the government is getting up to at a rate of, say, half an hour per minister per week would have a full-time job on his or her hands. And for at least some departments (think treasury or foreign affairs, for example, but there almost certainly many many others), half an hour per week hardly seems like it would be anywhere near enough to know what’s going on. Never mind ordinary citizens: even members of Parliament would struggle mightily to keep the tabs on the administration by virtue of its sheer size, to say nothing of the partisan and career incentives weighing on backbenchers, and of government obstructionism vis-à-vis the opposition.

Realistically, voters are in no position to keep such a government accountable (a point that Ilya Somin makes in Democracy and Political Ignorance: Why Smaller Government Is Smarter). This is why taking big government as a given, as most people today do, leaves you with a necessary trade-off between democracy and accountability. If such a government it is going to be accountable for more than an infinitesimal fraction of its innumerable decisions and actions, it will have to be made accountable to, or at least through, non-democratic or indeed counter-majoritarian institutions: courts, tribunals, ombudsmen, NGOs, and journalists. Alternatively, a big government can be made answerable to voters alone, with no judicial and other interference. But then it would be foolish to expect it to answer for even fairly major screw-ups, let alone the small-scale indignities a large administration visits on those subject to it every day that ends in-y ― not because it’s necessarily evil or even especially incompetent, let alone corrupt; but because it is run by fallible human beings. And these human beings, too, are the more likely to be pressed for time or out of their depth the more tasks the administration has been given.

If, however, one were willing to sacrifice government size, one could at least hope for a government held accountable primarily through electoral means. For one thing, as the government does less, there is simply less for courts and other non-democratic accountability mechanisms to sink their teeth into. (I have written about this here: if, for instance, government didn’t take it upon itself to regulate who can enter the country, we wouldn’t be debating the merits of judicial review of immigration decisions, which are a big annoyance to the UK government in particular.) But, less cynically, if government only does a few things, it is easier for citizens to keep track of those few things, and the odds of their using their vote to reward things done well and punish things done badly improve. Admittedly, I personally would not be all that optimistic about the degree of the improvement; but there ought to be some. By trading away government size, one could get more accountability and democracy, because democracy would be (more) sufficient to ensure accountability.

At the risk of making this post even more off-the-wall, I will add that a (very) small government system would make it possible to improve the quality of democracy and accountability further in another way. As Bastiat points out in The Law, so long as the government sticks to protecting people’s natural rights instead of being an expedient through which everyone hopes to live at the expense of everyone else, it doesn’t matter all that much whether suffrage is universal or equal: “If the law were confined to its proper functions, everyone’s interest in the law would be the same. Is it not clear that, under these circumstances, those who voted could not inconvenience those who did not vote?” Some form of epistocracy, or at least a minimal test of political knowledge, could be applied without causing the same problems it must under a big government. And a more knowledgeable electorate would likely be better at holding the government to account.

Of course, I don’t expect many people to share my interest in radically smaller government. Fair enough. But I think that it would be good if they recognized the reality of the trilemma I’ve outlined in this post. Its cause ― the difficulty for voters and even their representatives to keep track of a large administration ― should not be a matter of partisan controversy. It’s a reality that needs to be acknoweldged and responded to, whatever values will inform each person’s response.

And, as I said above, the possible solutions to the trilemma are not all-or-nothing matters. Government size, obviously, is not a binary choice. A government that withdraws from some areas of activity, or abjures some forms of regulation, could be more amenable to political accountability and less in need of non-democratic accountability at least to that extent. Conversely, a government that expands in some new direction may require the creation of entirely new accountability mechanisms to address this specific development. All this should be borne in mind even if the boot of big government as I have (sort of) defined it here remains firmly planted on our faces, and other body parts, forever.

Against Administrative Supremacy

A response to the “Guest Posts from the West Coast” Series

This post is co-written with Mark Mancini

Over at Administrative Law Matters, Cristie Ford, Mary Liston, and Alexandra Flynn have published a series of posts critiquing the Supreme Court’s decision in  Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 for what they regard as its departure from the principles of deference to the administrative state that long characterized Canadian administrative law. As we are going to show, this critique reflects a commitment to what Jeffrey Pojanowski describes as “administrative supremacy”, “an unapologetic embrace of the administrative state”. (861)

Yet in our view this critique rests on a distorted representation of the relevant constitutional principles, such as democracy, separation of powers, and the Rule of Law, and of the stakes involved in judicial review. More robust judicial review of administrative decisions ― if indeed that is what Vavilov will lead to, which is not yet clear ― would not cause a dismantling of the administrative state. It should, however, result in an application of the laws enacted by Parliament and the legislatures more in accordance with their terms, which is what the relevant principles, properly understood, require.

Professors Ford, Liston, and Flynn all see Vavilov as a break with a decades-long history of judicial recognition of and deference to the administrative state. Professor Ford writes that “[o]nce upon a time, in the days before the modern administrative state, there was one standard of review for errors of law: correctness”. These pre-historic days ended, however, with a “[g]rudging acknowledgment of administrative tribunals’ jurisdiction, at least in hard cases” in CUPE v NB Liquor Corporation, [1979] 2 SCR 227. Since then, and until Vavilov, the courts would defer to administrative interpretations of law, unless they were unreasonable, perhaps even patently so.

The embrace of deference reflected a certain view of the law, of the institutions of government, and of their relationship with one another. It rested, in Professor Ford’s words, on a “recognition that the rule of law could be a multifaceted, legitimately contestable thing”, part of “a captivating legal pluralist world”. Courts acted with “humility” in the face of “multiple kinds of expertise” embodied by administrative tribunals, accepting “that expertise could even mean knowing what it was like to be the recipient of social benefits”. They also recognized that “administrative tribunals were more diverse and more representative of the population at large than the judiciary was”. For her part, Professor Liston adds that the turn to deference aimed at

realizing the intertwined principles of democracy, parliamentary sovereignty and the rule of law; affirming the administrative state as a legitimate fourth branch of government; [and] respecting the separation of powers by minimizing judicial review when the legislature indicates that the decisionmaker has primary jurisdiction to fulfill its mandate and interpret the law in relation to that mandate.

Professors Ford and Liston also both argue that the deferential approach was meant to foster access to justice, but acknowledge that it has ultimately failed to do so. There was too much play in the joints, too many opportunities for argument about the appropriate degree of deference. Judicial review lost its “focus remained on [the] merits” of the cases and became bogged down in “law office metaphysics”, as Professor Liston puts it (citing Justice Binnie).

Vavilov and its companion case Bell Canada v Canada (Attorney General), 2019 SCC 66, however, usher in a radical change. Professor Ford writes that “[t]he velvet glove is off. Vavilov signals a retrenchment by a more assertive, and conservative, Court” (a label that Professor Liston endorses), and that “[w]e are done with letting 1,000 rule of law flowers bloom”. Focusing on Bell (which she describes as “the tell in the shell game that is administrative law”), Professor Liston laments its disregard of administrative expertise, of “the broad grant of discretion” to the CRTC “to make decisions in the public interest that touch on fundamental policy objectives” (reference omitted) and “the democratic and fair process that led to the ultimate decision”, involving protracted consultations and responsive “to the views of ordinary Canadians” who complained to the CRTC about not being able to watch American Super Bowl ads. Instead, Professor Liston sees Bell as having “imported” “political currents from the south”, such as “the libertarian attack on the administrative state”.

As noted above, this view of the administrative state and its relationship with the courts is consistent with Professor Pojanowski’s description of “administrative supremacy”, which

sees the administrative state as a natural, salutary outgrowth of modern governance. In its strongest form, it sees the role of courts and lawyers as limited to checking patently unreasonable exercises of power by the administrative actors who are the core of modern governance. To the extent that durable, legal norms are relevant, the primary responsibility for implementing them in administrative governance falls to executive officials, who balance those norms’ worth against other policy goals. (861)

In our view, the administrative supremacist critique of Vavilov and Bell suffers from two fundamental flaws. On the one hand, the principles on which administrative law rests, and which it purports to apply, do not mean what administrative supremacists think or say they do. On the other, a rejection of administrative supremacy does not necessarily lead to the dismantling of the administrative state, supremacists scare-mongering to the contrary notwithstanding.

Start with the principles. The administrative supremacist view is that democracy is at least equally, if not better, embodied in the decisions of administrative tribunals as in legislation enacted by Parliament or legislatures. For one thing, tribunals are acting pursuant to a mandate from the legislatures. For another, the administrative process itself can be characterized as democratic, as the CRTC’s is in Professor Liston’s post.

Yet it simply isn’t the case that a decision actually made by an appointed official, or even a group of officials, is democratic in the same way as a statute debated and enacted by an elected assembly ― even if the assembly itself gave away its decision-making power to the officials in question. To give an extreme example, if Parliament contented itself with simply delegating its full law-making powers to the Prime Minister, we would not, I hope, regard this as a democratic arrangement, even if it may be legal. Somewhat less extreme but more real and just as undemocratic, the recent briefly-mooted plan to delegate plenary taxing power to the federal government was undemocratic too, and would have been undemocratic even if rubber-stamped by a Parliament content to abdicate its responsibility.

And the possibility of public input into an administrative decision offers no more than a partial correction to the problem. This input need not be in any sense representative of “the views of ordinary Canadians”; it is much more likely to be driven by a small group of motivated activists or rent-seeking economic actors, as the “capture” era of American administrative law demonstrates. Besides, even if the CRTC’s decision-making follows a process that could be described, however precariously, as “democratic”, not all administrative decision-makers operate this way. Consider “line decision-makers”, many of whom follow minimal process before reaching their decisions. Vavilov’s reasoning requirements will likely change what these officials do going forward, but the rank administrative discretion they exercise is not in any sense “democratic” on its own; it can only said to be so by virtue of the delegated power that the decision-makers exercise—nothing more or less.

Administrative supremacy similarly distorts the meaning of separation of powers. While Professor Ford, to her credit, associates this principle with the view that “[t]he courts’ role is to police the executive’s exercise of authority”, Professor Liston writes of “the administrative state as a legitimate fourth branch of government” and considers that separation of powers requires “minimizing judicial review when the legislature indicates that the decisionmaker has primary jurisdiction to fulfill its mandate and interpret the law in relation to that mandate”.

Separation of powers is, to be sure, a slippery and complicated idea, but there is, at its core, the Madisonian view that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”, and further “that each department should have a will of its own”. The administrative “fourth branch” exists precisely to subvert the distinctions between the other three, accumulating in its hands the ability to make policy, execute its decisions, and decide disputes about them. This subversion is compounded by arguments to the effect that the courts can have their core function of saying what the law is taken away from them by legislatures, and that they must defer to legal interpretations propounded by the “fourth branch”, so as to have no will of their own. While Canadian law probably permits the delegation of significant powers to the administrative state, there is a major risk in concentrating these powers. This is why the courts must ensure that administrative decision-makers only exercise those powers actually delegated to them, for the purposes for which they have been granted.

Moreover, the mere fact of delegation does not speak to the intensity of review a court should apply. While the Vavilov Court adopts a presumption of reasonableness based solely on the fact of delegation, this must be considered an organizing default rule that is a product of compromise ― it cannot be defended on the grounds that there is a principled link between delegation and deference. Indeed, the political science literature holds that legislatures may delegate for any number of reasons, none of which have to do with what a court should do on review. Better for a court, in our view, to review the legality of an exercise of administrative power de novo, at least absent some signal from a legislature that it intends deferential review (Vavilov, at [110], outlines some of these signals well).

Last but not least, administrative supremacy embraces a highly misleading view of the Rule of Law. Its proponents suggest that the Rule of Law is possible in ― indeed, that the better understanding of the Rule of Law requires ― a legal environment when legislation has no settled meanings dispassionately elucidated and consistently applied by independent courts. Recycling (and magnifying tenfold) a Maoist metaphor, they would have “1,000 rule of law flowers bloom”, as Professor Ford puts it.

Yet on any serious account of the Rule of Law stable, clear rules, consistently applied so as to create a predictable legal environment, are the heart of this concept. So is the idea that government power is limited by these rules. Judicial control over the meaning of legal rules and over government’s compliance with them is not an ideological caprice, but a necessary corollary of the principle. Only the courts ― not administrative decision-makers subject to control by the executive and invested with an explicit policy-making mission ― are sufficiently independent and can be committed to keeping the government within legal boundaries, as Dicey notes in his Law and Public Opinion. Abstract legal pluralism is, to us, no substitute for the legal certainty which the Rule of Law requires and to the maintenance of which the courts are essential.

And, as far as that point goes, there is another problem with the administrative supremacist argument as it pertains to the Rule of Law. In Professors Liston and Ford’s posts in particular, we see the classic supremacist argument from pluralism and expertise. Encompassed in this ideal is the idea of a “culture of justification” in which expertise could be brought to bear by administrative decision-makers in the reasons justifying administrative action. But there are limits to these principles that Professor Liston does not acknowledge. For one, expertise is not a legal reason for deference. It may be, as Professor Daly notes, an epistemic reason for deference, but what is the legal rationale for a court to abdicate its reviewing function under the Rule of Law in the name of alleged expertise?

Even as an epistemic reason for expertise, the presumption of expertise for all administrative decision-makers, which Professor Liston seems to tacitly endorse, was never justified as a matter of first principle. Indeed, as the Vavilov Court notes, it was impossible to distinguish matters over which administrators were expert from those where they were not. As we know in the prison context, in immigration law, and beyond, decision-makers’ claims to expertise, especially in legal or constitutional interpretation, can be exaggerated or outright unfounded. To give up on the role of the courts in enforcing legal boundaries in the name of unproven assertions of expertise is, in our view, contrary to the Rule of Law.

Our second objection to the administrative supremacist argument can be dealt with more briefly. An administrative law that rejects administrative supremacy and gives effect to the principle of the Rule of Law, properly understood, does not entail the demolition of the administrative state. (For one of us, this is a matter of considerable regret, but it is true all the same.) The administrative state exists in the United Kingdom and in New Zealand, where courts insist on their role of policing the boundaries of its authority, largely without deferring to its legal interpretations. The approach there is summarized in Lord Diplock’s words in the GCHQ case, Council of Civil Service Unions v Minister for the Civil Service, [1985] AC 374:

the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

This approach would not prevent the delegation by Parliament or the legislatures of discretionary or adjudicative authority to administrative agencies and tribunals. It would mean, however, that these agencies and tribunals must give effect to the laws that give them their powers and to the general law of the land, rather than to their preferred policies and predilections.

To take up Professor Liston’s example, the CRTC’s view that it would be a good idea to impose some requirement on those subject to its licensing authority does not exhaust the question of its authority to impose this requirement. The question is whether the CRTC actually has this authority, because Parliament has granted it. The administrative state can exist if Parliament or a legislature has willed it into existence. But democracy and separation of powers, no less than the Rule of Law, should lead to the conclusion that the administrative state, and its powers, exist only to the extent that they have been willed into existence, and that their bootstrapping claims deserve scrutiny by the judiciary.

In part, disagreement about deference comes down to how one ought to conceptualize the administrative state. For Professors Liston and Ford in particular, the administrative supremacist view leads to the conclusion that administrative power is to be encouraged; that administrators all have something valuable to say about the law; that a Dyzenhausian view of “deference as respect” best encapsulates the role of courts vis-à-vis administrative actors. We view this as a decidedly Panglossian view of the administrative state. A basic deceit at the core of Canadian administrative law is the tendency for observers to concentrate on the tribunals that best demonstrate, to these observers anyway, the virtue of the administrative state: labour boards and the CRTC, for example. The harder question is what to think of administrative actors that do not fit this mould.

In this respect, Professor Liston and Ford put forward an old view of administrative law that dates back at least to the 1930s and the New Deal ― which is not a good time from which to borrow ideas. A 21st century version of administrative law must contend with the growth of the administrative state into the licensing state, the exclusionary state, and the carceral state; incarnations of the state that, due to a lack of expertise or otherwise, may not be owed respect under the benevolent standards of review Professor Liston wants. Adopting general language of “pluralism” and “expertise” masks the real work: how to legitimize administrative power that is not characterized by the functional reasons for deference, as in Vavilov itself.

Again, this is not an ideological quirk. With respect, we find puzzling the claims that Vavilov is the work of a “conservative” court influenced by “libertarian” “political currents”. Six of the seven members of the Vavilov majority signed the “by the Court” judgment in R v Comeau, 2018 SCC 15, [2018] 1 SCR 342; three were also in the five-judge majority in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293. However one might describe these judgments, conservative, let alone libertarian, they were not. People of all persuasions should be concerned about the scope of administrative power, no less than that of legislatures or, say, police forces. And if sometimes this rebounds to the benefit of those actuated by the profit motive, we do not think this is as sinister a possibility as Professor Liston seems to find it.

All in all, we differ from the defenders of administrative supremacy in one fundamental respect. The principles at play—democracy, separation of powers, and the Rule of Law—are not licenses to justify administrative power. Instead, they are properly viewed as constraints on that power. Vavilov was right to reject justifications other than legislative delegation for administrative power, and to insist on meaningful scrutiny of the compliance of the exercise of this power with its legislative warrant. For better or for worse, this will not undermine the administrative state, but the reminder that administrative power is something to be constrained using ordinary legal tools, not unleashed in service of the bureaucratically determined common good, is a salutary one.

The Limits of Self-Government

Indigenous self-government cannot dispense with the Rule of Law and with democracy

In his post “On the Rule of Law, Blockades, and Indigenous Self-Government“, co-blogger Mark Mancini pondered the relationship between Indigenous legal orders and self-government on the one hand, and the Canadian constitution, including the Rule of Law principle that (along with certain others) underpins it, on the other. Mark wrote that

it may be the case that the Rule of Law as currently understood in Canada is not applicable to Indigenous peoples and their systems of government. In other words, we may require an approach which recognizes distinctive Indigenous self-government, as a constitutional matter. 

These comments are, as always, thought-provoking but, in my view, one should be wary of claiming that the Rule of Law is not relevant to Indigenous peoples. One should also be realistic about the difficulties involved in translating the ideal of Indigenous self-government into law, and about the limits of this enterprise.

I hasten to make clear that, as Asher Honickman and I have said in a National Post op-ed also dealing with the Rule of Law and its relationship to the ongoing protests, I regard the aspiration to Indigenous self-government as fully justified. It is, we wrote, “possible and highly desirable … for the perfectly legitimate aspirations of Indigenous Canadians to self-government to be recognized and given effect within the Canadian legal system”. On this, I agree with Mark. Indeed, our disagreement may be more a matter of emphasis and wording than of substance, but I thought it important to make it clear where I stand.

I am, of course, not Indigenous myself, and claim no expertise at all in any particular Indigenous legal system. However, I do endeavour to engage with Indigenous legal systems when I teach legal philosophy. More specifically, my legal philosophy course is entirely devoted to idea of the Rule of Law (sorry, Hart and Dworkin aficionados!), and one of the classes deals with indigenous customary systems ― notably tikanga Māori, but also the legal systems of Indigenous peoples in Canada, as presented in Jeremy Webber’s very interesting article on “The Grammar of Customary Law“. To repeat, this doesn’t make me an expert ― sadly, one cannot be an expert on everything one teaches ― but I do have some thoughts on the relevance of the Rule of Law to indigenous legal systems.

In a nutshell, it seems to me that, for all the very important differences between these systems and those based on the common law or the civil law, many concerns with which we engage under the heading of the Rule of Law are relevant to indigenous legal orders. Notably, through public re-enactment and stroy-telling at meetings involving entire communities, Indigenous legal systems ensured that their laws would be publicly known and understood, and that they would be relatively certain and predictable, to guide community members. Moreover, these laws, no less than those enacted in Western legal systems, tend to be more or less coherent, and to impose obligations that are possible to perform; if anything, one suspects that customary law refined over the generations does better at meeting these Rule of Law requirements than deliberately, and often stupidly, enacted law. And, in their own ways, Indigenous legal systems provided opportunities for those subject to them to be heard and to make their views on the law known to the rest of the community. (Indeed, Professor Webber writes that “[a]mong many North American indigenous peoples … [t]here is great reluctance to impose a particular interpretation of the law either on any member … or on someone of high rank”. (607))

I do not mean to take this too far. Of course, the way the Rule of Law ideals are implemented in communities that number a few hundred people engaged in hunting, gathering, and perhaps subsistence agriculture cannot be the same as in larger populations made wealthier by division of labour. Writing and the existence of people who specialize in knowing and applying laws make a huge difference ― not least by requiring a more explicit articulation and conscious implementation of Rule of Law requirements that can remain implicit in Indigenous societies. Some standard Rule of Law concerns, such as the one with retroactivity, crucial in a system where law is believed to be deliberately made, are meaningless in one where law is transmitted ― not unchanging to be sure, but endlessly adapted ― from time immemorial. On the procedural side, the methods Indigenous legal orders employ for the resolution of disputes and the determination of individual or group rights and obligations do not necessarily look like the formalized proceedings of common law or civilian courts (any more than substantive rights and obligations they concern offer exact parallels with those recognized by the common or civil law).

But the points of commonality are real too. Needless to say, that’s not because Indigenous Canadians or Māori read Lon Fuller’s The Morality of Law or Jeremy Waldron’s “The Rule of Law and the Importance of Procedure”. The people who, over the centuries, developed European legal systems hadn’t read them either. But the human values that have long helped shape legal systems and partly mold them in accordance with what, in 19th century Britain, came to be called the Rule of Law, are relevant on Turtle Island and in Aotearoa as much as at Westminster and in Paris. When Albert Camus wrote, in The Fall, that “there is no worse torment for a human being than to be judged without law”, he was speaking a universal truth, or something close to it ― not just stating a culturally contingent fact about mid-20th-century Parisians hanging out in Amsterdam bars.

All that to say, so far as I can tell, the Rule of Law is not at all a principle alien to Indigenous legal traditions. While they probably did not reflect on it as explicitly as the Western legal tradition eventually did, they implemented it ― in ways that were appropriate to their own circumstances. But the circumstances in which Indigenous law would operate in the 21st century, even under self-government, would not be the same as they were before contact with Europeans; in some ways, things have changed irrevocably. More deliberate attention to the requirements of the Rule of Law will probably be in order ― not only, or perhaps even primarily, in order to satisfy some externally imposed requirement, but to give effect to the values implicit in the Indigenous legal traditions themselves.

This brings me, however, to another point that is missing from too many discussions of Indigenous self-government at the moment, including Mark’s. Indigenous self-government (which, to repeat, I would support) ought to respect some fundamental constitutional principles, whether they can be traced to Indigenous legal traditions ― as the Rule of Law can, I think, at least to some extent ― or not. I am thinking, in particular, of the principle of democracy, but also of the protection of minority rights.

In the conflict that arose out of the court injunctions in favour of the Coastal GasLink pipeline, some hereditary Chiefs of the Wet’suwet’en have claimed special authority. To my mind, for any such authority to be enshrined in or authorized by the arrangements of Indigenous self-government, whatever their exact legal status, would be simply inconsistent with the Canadian constitutional order. Of course, Canada is a monarchy. But it is a constitutional monarchy in which, as the old catchphrase has it, the Queen reigns but does not rule. Almost all of the Crown’s powers are effectively held by the Houses of Parliament (primarily the elected House of Commons) or provincial legislative assemblies, or by ministers responsible to the House of Commons or legislative assemblies. The exercise of the Crown’s remaining “reserve” powers is constrained by constitutional conventions.

Any other arrangement would be intolerable. As the Supreme Court observed in Reference re Secession of Quebec, [1998] 2 SCR 217, “the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated”, [62] and “a sovereign people exercises its right to self-government through the democratic process”. [64] The Court further explained that it “interpreted democracy to mean the process of representative and responsible government and the right of citizens to participate in the political process as voters”. [65]  This is, of course, consistent with Canada’s commitments under international law, for example under Article 21(3) of the Universal Declaration of Human Rights, which provides that

The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

I fail to see how Indigenous self-government can be constituted on any other basis. Perhaps this conception of democracy is not part of the tradition of all, or indeed of any, Indigenous nations. After all, its history in anywhere in the world is very short indeed. This simply does not matter ― for any polity in the 21st century. One could call the application of this principle to Indigenous peoples colonialism if one liked, but one ought to acknowledge that, in doing so, one would be rejecting values that are contrary both to Canada’s constitution and to its international obligations.

It is worth noting that the provisions of the Charlottetown Accord on self-government made at least some oblique reference to the structure and limits of the governments they would have put in place. What would have become section 35.1(3) of the Constitution Act, 1982 would have provided that

The exercise of the right [of self-government] includes the authority of duly constituted legislative bodies of the Aboriginal peoples, each within its own jurisdiction,

(a) to safeguard and develop their languages, cultures,
economies, identities, institutions and traditions, and

(b) to develop, maintain and strenghten their relationship
with their lands, waters and environment,

so as to determine and control their development as peoples
according to their own values and priorities and to ensure the
integrity of their societies. (Emphasis mine)

This is, perhaps, not as clear as one might wish, but the reference to “the authority of duly constituted legislative bodies” suggests that Indigenous self-government was to be democratic self-government. Giving effect to indigenous “values” and “ensur[ing] the integrity of their societies” must be done within that institutional framework.

To repeat once more, I hope that Indigenous self-government in Canada becomes a reality. But it would be naïve and dangerous to assume that it can do so on the basis of Indigenous legal traditions alone, without the infusion of principles modified or even imposed by the non-Indigenous world. Indigenous communities are part of a wider world ― not only of the Canadian legal system, but of the world beyond its borders too ― which means that both the form and the substance of their law will have to adjust to the way this world operates and to its requirements.

The good news in this regard is that, in some ways, the adjustment should be less difficult that is sometimes supposed. When it comes to the requirements of the Rule of Law, Indigenous legal traditions may recognize many of them implicitly, and adapting to other such requirements may be a relatively seamless development for traditions that never were static or fixed. Other changes, however, in particular the recognition of democracy as the fundamental mode of governance, may be less straightforward. But such changes are no less imperative. The label of self-government should not be allowed, let alone used, to obscure this reality.

The Tragedy of Lord Sumption

Thoughts on Lord Sumption’s views on the relationship between law and politics

In my last post, I summarized at length Lord Sumption’s Reith Lectures, delivered earlier this year. As I noted there, Lord Sumption’s views on politics, law, and the relationship between the two are challenging ― especially, but by no means only, to those of us who support judicial review of legislation. Here, I would like to explain why I think there is much truth in what Lord Sumption says, but also to point out the weaknesses and even contradictions in his claims.

By way of reminder, Lord Sumption begins by arguing that the domain of law has been expanding for the last two hundred years, as people have (once again) turned to the state as the provider of physical and economic security and moral certainty. But this expansion has brought with it concerns that the state’s power reaches too far. Representative politics can help mitigate these concerns by generating compromise and accommodation between majorities and minorities. Yet as politics loses its lustre, people turn to law to control the outcomes politics produces. Law promises (and sometimes delivers) principled decision-making, but it does so at the cost of compromise and accommodation and thus, ultimately, legitimacy. The courts end up creating and defining new constraints on politics, and there is little to choose between such constraints being undemocratically imposed in the name of liberalism or of some other ideology. Moreover, in the long run, politics, with its capacity to legitimate limitations on state power provides better security for rights than the law. Yet politics is ailing. Constitutional reform, and especially constitutional entrenchment, will not save it. If democracy is hollowed out, Lord Sumption grimly concludes, we will not notice, “and the fault will be ours”. (V/7; NB: I will use roman numerals to designate the lecture, and arabic ones for the page in the transcript; links to individual transcripts are in the previous post.)

Significant parts of Lord Sumption’s argument run along the lines drawn by Jeremy Waldron, notably in “The Core of the Case against Judicial Review”. The emphasis on the importance of disagreement and the preference for settling disagreement about rights through the political process, in part because it is more egalitarian than adjudication, sound Waldronian. The skepticism about the capacity of judges, or indeed of anyone else, to find out the truth of the matter about moral issues, is Waldronian too. Lord Sumption does not mention Professor Waldron, or indeed any thinker more contemporary that A.V. Dicey, so it’s not quite clear whether how direct Professor Waldron’s influence on him is. However, original or not, these points are important and bear repetition.

Lord Sumption’s critique of the undemocratic character of “dynamic treaties” ― or, I would add, any constitutional documents interpreted as “living instruments” ― builds on these arguments. He focuses on the judicial creation of rights on the basis that “a modern democracy ought to have” (III/3) them ― or, in other words, of what I have been calling “constitutionalism from the cave” ― as qualitatively different from mere application of fixed texts to new facts. Readers will not be surprised to learn that this strikes me as compelling. Lord Sumption’s argument tracks public meaning originalist views, a point to which I will return, but since he does not disclose his influences, I don’t know whether he is at all interested in originalist theory. It is worth noting that, in a later lecture on “Judicial Review and Judicial Supremacy“, Professor Waldron too has focused on living constitutionalism, and specifically the claim that a constitutional court is entitled “to develop new views about (what the court thinks) the constitution ought to have forbidden (though it did not) and to act on these views” (40) as especially problematic.

One additional point on which Lord Sumption echoes that lecture of Professor Waldron is the rejection of comprehensive systems of values as suitable objects for judicial enforcement. Professor Waldron does not want judges to “begin to think of themselves and present themselves as pursuing a coherent program or policy rather just responding to” (27) individual violations of the constitution that happen from time to time. Lord Sumption’s forceful rejection of values systems ― which he equates with one another for this purpose, so that entrenchment and judicial enforcement of a liberal dogma is, in a sense, no different from that of “Islamic political theology or the dictatorship of the proletariat” (IV/4) ― seems to reflect this concern. If asked to take judicial review of legislation as a given, as Professor Waldron does in the “Judicial Supremacy” lecture, Lord Sumption would also urge a piecemeal rather than a systematic approach as the more modest one.

But Lord Sumption’s argument is not simply a reprise of Professor Waldron’s. What makes him interesting, and challenging not just for supporters of judicial review of legislation but also for critics, is that his vision of politics is a gloomy one. Those who have misgivings about judicial review, including Professor Waldron or, to take a couple of Canadian examples, Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench in a lecture on “The Charter and Canada’s New Political Culture” and Joanna Baron and Geoffrey Sigalet in a Policy Options post earlier this year, tend to be fairly optimistic about democratic politics. Professor Waldron, especially in “The Core of the Case”, thinks that democratic majorities will protect rights about as well as courts, although in later work he has recognized that some minorities (such as criminal suspects) might end up being routinely shortchanged by the democratic process. He has also forcefully criticized the views of those who equate the Rule of Law with the protection of property and contract rights and, on this basis, are skeptical of social legislation and the welfare state. Chief Justice Joyal, for his part, has extolled “bold” and

“purposeful” governance … expected to include and achieve … the realization of big and bold federal and provincial objectives [and] to assist in the accommodation and brokering of … diverse and conflicting interests underlying the various societal ills and problems. 

Accommodation and compromise are the best outcomes that Lord Sumption sees democratic politics produce. “Bold” and “purposeful” governance? He seems pretty skeptical. It is not just that he sees and laments the decline in the authority of political institutions ― Chief Justice Joyal saw and lamented that too. More interestingly, I take Lord Sumption to raise the possibility that, even when it functions well, democratic politics is dangerous.

Much of Lord Sumption’s first lecture is devoted to establishing this proposition. Pointing out “rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity” (I/4), as well the voters’ tendency to be “afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with”, (I/6) he seems to echo Lord Acton’s prescient warning, in the Lectures on Modern History, about seeing the “[g]overnment [as] the intellectual guide of the nation, the promoter of wealth, the teacher of knowledge, the guardian of morality, the mainspring of the ascending movement of man”, (289) though again he does not refer to Acton or to any other source. Lord Sumption’s concern at the far-reaching and unrealistic expectations that people have of government and government’s tendency to restrict liberty to try to meet these expectations points to an ineradicable flaw of democracy.

What is more, at times, Lord Sumption seems to accept that certain rights are could appropriately be entrenched beyond the reach of democratic politics. He mentions, repeatedly, rights not to have one’s life, liberty, or property interfered with arbitrarily or without the ability to challenge the interference in court, as well as democratic rights. At other times, admittedly, Lord Sumption seems to say that, in the United Kingdom anyway, an entrenched constitution ― even, it might seem, one limited to protecting these rights, would be inappropriate. This contradiction is never fully resolved, although perhaps what Lord Sumption means is that a narrowly drawn constitution protecting these rights is theoretically desirable, but does not offer sufficient benefits to be worth the dislocation that would occur if it were to be enacted in the UK. Be that as it may, Lord Sumption’s nods in the direction of a limited entrenched constitution and his support for a fairly robust version of the principle of legality ― including in cases like R (Unison) v Lord Chancellor [2017] UKSC 51, which others have criticized as impinging on Parliamentary sovereignty ― suggest concern at what democratic institutions, if left unchecked, might do to important rights and constitutional principles.

This is what prompts me to see Lord Sumption’s vision of law and politics as tragic. He doesn’t have much hope for law, and says we must trust in politics, but his “praise of politics”, to borrow the title of his second lecture, is damningly faint. If all goes as well as it might, he says, we’ll keep muddling through, and not oppress too many people while lurching between overbearing optimism and fretful censoriousness. And perhaps, all will not go so well, although we will not even notice.

Is this the best we can do? I do not want to give quite so easily, and so I would like to try to rescue law, and perhaps, in a way, even politics, from Lord Sumption’s critique. This is almost a matter of necessity: after all, Lord Sumption himself thinks that some measure of entrenchment may well be justified, or at least excusable, and between that and his admonition to avoid dislocating established and functioning constitutional orders, those of us living in polities with entrenched constitutions should probably try to make them work before thinking about abolishing them. Moreover, even if we agree with Lord Sumption that entrenching rights is a bad idea, we still need to think about structural features of constitutions, to which Lord Sumption pays almost no attention. (This is another element of his thinking that he shares with Professor Waldron.) And besides, I am as worried as Lord Sumption by the overbearing, illiberal tendencies of contemporary democracy, and less willing to resign myself to them.

One question that needs to be asked is whether attempts to impose legal constraints on government are necessarily bound to degenerate into living constitutionalist creation of unwarranted constraints by the courts. Lord Sumption seems to think so. He implicitly accepts the living constitutionalist view that constitutional terms such as “due process of law” have no fixed meanings, and that adjudication based on such terms is inevitably going to answer the question not “whether the right exists but whether it ought to exist”. (IV/5) And, to be sure, there is no shortage of living constitutionalists who agree with him, from the hosts of the Stereo Decisis podcast to Supreme Court judges giving constitutional benediction to rights they invent. As I have suggested here,

if constitutional disputes can only be decided by reference to what are political rather than legal considerations, then it is not obvious, as a normative matter, why they should be decided by the courts rather than by political institutions. 

But while Lord Sumption is right about this, I believe he errs in accepting that adjudication of rights issues must devolve into judicial benediction of rights or ― what is equally non-judicial ― dogmatic deference to legislative choices. In many ― I think in most ― cases, an originalist court that seeks to ascertain the public meaning of constitutional texts, and perhaps to engage in good-faith development of constitutional doctrine based on the texts’ original purposes can actually avoid adjudicating primarily on the basis of its normative priors. As William Baude has pointed out, this requires an effort at self-restraint on the court’s part: the court must accept that its first task is to ascertain the meaning of existing law, without rushing to conclude that this meaning is obscure so as to impose its own views on the parties. But I do not think that such an effort is impossible for courts to undertake. Indeed, even that ostensible champion of living constitutionalism, the Supreme Court Canada, already engages in originalist adjudication, admittedly of varying quality, in a non-negligible number of cases, as I have most recently discussed here.

Emphasizing the importance of constrained, originalist constitutional adjudication ― rather than throwing up our hands and conceding that the courts will do what they please with constitutional texts ― is all the more important because it can help resolve not only cases about fundamental rights but also those dealing with structural aspects of constitutions. Lord Sumption says almost nothing about federalism and separation of powers; to me, the way in which he breezes past them in his discussion of the United States is quite disappointing, a rare moment of incuriosity in an otherwise very thoughtful lecture series. Lord Sumption’s preferred understanding of democracy, as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” (III/7) seems to put structural issues front and centre. And given his sharp comments about the pernicious effects of bypassing the usual parliamentary mechanism in favour of a referendum on Brexit, I think he ought at least to give some thought to the question of whether, quite apart from entrenching rights, the decision-making processes of representative democracy may require robust constitutional safeguards against elected officials inclined to sacrifice them for momentary political advantage.

Ultimately, though, I think that Lord Sumption is too quick to reject the desirability of substantive limits on legislation, as well as to ignore the need for structural safeguards. He thinks that it is not a problem that, under the existing UK constitution, “the limits on what Parliament [or legislatures] can do depend on political conventions [that] derive their force from shared political sentiment which would make it politically costly to disregard them”. (V/2) (The situation is the same under the Canadian constitution except with respect to issues on which the Canadian Charter of Rights and Freedoms has something to say.) Yet Lord Sumption gives cogent reasons to think that democratic politics often do not make it costly for Parliament to overreach and overregulate; and, on the contrary, that voters will, in the long run, demand too much conformity and control. These concerns echo those already expressed F.A. Hayek’s, in The Road to Serfdom. They are not new. They should be addressed, if possible, with more than vague hopes of compromise.

Indeed, I also think that Lord Sumption oversells compromise. He is right that one cannot expect to always get what one wants in politics, and that unwillingness to give an inch to partisan opponents one believes to be unprincipled at best, if not outright evil, is a real problem. But surely compromise isn’t valuable on any terms. To say so is only to encourage extremist opening bids by people who will expect us to agree to slightly more moderate versions of their still unreasonable demands in the name of accommodation. (The Québec government’s defence of its anti-religious dress code as moderate is a good example of this.) Compromise is important, but it cannot always be justly expected. As Lord Sumption himself recognizes, there are laws that make civilized coexistence or full membership in a democratic community impossible.

Lord Sumption’s Reith lectures are well worth listening to or reading, and reflecting on. They challenge those of us who support judicial review of legislation with an accessible but powerful restatement of the Waldronian case against that constitutional device and affirmation of the importance of democracy. They challenge Waldronians and other supporters of democratic institutions with a frank and not at all optimistic assessment of these institutions’ output. They are not right about everything ― but, insofar as they are wrong, they are wrong in interesting ways. As I said in introducing my summary of the lectures, I think that incoming law students, in particular, would benefit from engaging with Lord Sumption’s ideas. But so would those with more experience of the law. I am sure I have.

The Fault Will Be Ours

Lord Sumption on politics, law, and the meaning and decline of democracy

A couple of months ago, Jonathan Sumption, former barrister extraordinaire, recently-retired UK Supreme Court judge, and well-regarded historian too, delivered the BBC’s Reith Lectures for this year, speaking on Law and the Decline of Politics. Despite my delay in getting to them, I think they are worth writing about. Lord Sumption’s arguments challenge most if not all of us in one way or another. I expect that those used to the North American way of thinking about constitutional law will find them more uncongenial than many lawyers in the United Kingdom or in New Zealand, but Lord Sumption’s views do not neatly fit into any pre-defined category, and will have something that will force just about anyone to reflect. (I particularly recommend the lectures to any students who are about to start studying law; they are quite accessible, but will give you an excellent preview of many of the debates you will confront in the coming years, and expose you to a way of thinking that is not exactly prevalent in North American law schools.)

In a nutshell, Lord Sumption’s argument is that, as he put it in the first lecture, “Law’s Expanding Empire“,

law does not occupy a world of its own. It is part of a larger system of public decision making. The rest is politics. The politics of ministers and legislators of political parties, of media and pressure groups, and of the wider electorate. (2-3)

The question is, how does law relate to this larger system? What is the place of law vis-à-vis politics? Should it, in particular, be used to control political outcomes and bring them into alignment with some set of substantive values? Lord Sumption wants to caution us against the dangers he says lying in wait if we go down this path. But it is not because he takes an especially optimistic view of politics. In this post, I summarize the five lectures. (It will, I am afraid, be quite long.) I will comment separately.

Lord Sumption’s misgivings appear especially strongly in his first lecture. Law, he says, is an alternative to chaos. But just how much law (and how many lawyers) do we need? Lord Sumption observes that

Until the 19th century, most human interactions were governed by custom and convention. The law dealt with a narrow range of human problems. It regulated title to property, it enforced contracts, it protected people’s lives, their persons, their liberty and their property against arbitrary injury, but that was about all. Today, law penetrates every corner of human life. (3)

It need not be that way. The Rule of Law requires limitation of government power and the protection against interference with life, liberty, and property, as well access to the courts to enforce these limits and protections, but it does not necessarily follow that law needs to be pervasive. Rather, this is something that the voters have chosen, in an ongoing fit of general optimism about the prospects of collective action. Democracy “has inevitably led to rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity”. (4)

Moreover, after a retreat over the course of the 19th and 20th centuries, “a growing moral and social absolutism … looks to law to produce conformity”. Even when there is no real consensus in the community about what how a particular moral issue ought to be treated,

we resort to law to impose uniform solutions in areas where we once contemplated a diversity of judgment and behaviour. We are afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with. (6)

It is as if moral judgment, which would have been individual in the past, has increasingly been collectivized. In a growing number of cases, moreover, this judgment has been delegated to the judiciary.

At the same time, there has been a push to take judgments about safety and security away from individuals and hand them over to public authorities, under judicial supervision. As more misfortunes appear preventable, the demands are made for them to be prevented; “we are no longer willing to accept the wheel of fortune as an ordinary incident of human existence”. (7) Yet this is achieved only by “restricting the liberty of the public at large in order to deprive them of the opportunity to harm themselves”. (7)

The result of it all, Lord Sumption says, is the comeback of the Hobbesian Leviathan: “[t]he 17th century may have abolished absolute monarchy but the 20th century created absolute democracy in its place”. (8) And unlike when government was an external, antagonistic force, democratic government “is us”. (8) We both fear and repose our fondest hopes in it.

In his second lecture, “In Praise of Politics“, Lord Sumption asks, “how do we control the potentially oppressive power of democratic majorities without undermining democracy itself?” (2) He focuses on the notion of legitimacy, which he defines as “a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don’t like what they are doing”. (2) Any government, but especially a democratic one, must preserve its legitimacy. Democracy does this by accommodating differences between majorities and minorities, and securing compromises that mean that minorities do not become “permanently disaffected groups [with] no common bonds to transcend their differences with the majority”. (2) This can be done through representative government or through law.

Representative institutions, in contrast to winner-take-all direct democracy, exist in part to accommodate the interests and demands of minorities. They make compromise possible. Building on the thought of James Madison and Edmund Burke, Lord Sumption argues that “political elites have their uses. Professional politicians can fairly be expected to bring to their work a more reflective approach, a broader outlook and a lot more information than their electors”. (3) They are also better placed to further national “collective interests which extend over a longer time scale and a wider geographical range than are ever likely to be reflected in the public opinion of the moment”. (3)

Bypassing the processes of representative government, as was done with the Brexit referendum is dangerous. Compromise becomes impossible, as

52 per cent of voters feel entitled to speak for the whole nation and 48 per cent don’t matter at all. … It is the mentality which has created an unwarranted sense of entitlement among the sort of people who denounce those who disagree with them as enemies, traitors, saboteurs, even Nazis. This is the authentic language of totalitarianism. It is the lowest point to which a political community can sink, short of actual violence.

Lord Sumption warns, however, that disengagement from politics calls into question the ability of the political process to generate compromise and legitimacy. Political parties play an important role in securing the accommodation of various interests in policy-making, but as their membership has declined greatly, they are no longer representative of the broader citizenry, and the candidates whom they put forward are increasingly out of touch with the voters. All this “is, in the long
run, likely to lead to a far more partisan and authoritarian style of political leadership”. (5)

Law, the other barrier to oppressive majorities, has become more important as politics has lost its lustre. The politicians’ authority is waning, but the judges’ is undiminished; indeed it is growing:

Judges are intelligent, reflective and articulate people. They are intellectually honest, by and large. They are used to thinking seriously about problems which have no easy answer and contrary to familiar clichés, they know a great deal about the world. The whole judicial process is animated by a combination of abstract reasoning, social observation and ethical value judgment that seems, to many people, to introduce a higher morality into public decision-making. (5)

The judiciary is now more active than it used to be in policing the actions of other public authorities. It does so, in particular, by enforcing the principle of legality, which Lord Sumption suggests should rather be called “the principle of legitimacy”. The principle is appropriately applied to ensure that Parliament faces the consequences of measures that would amount to, notably, “retrospective legislation, oppression of individuals, obstructing access to a [c]ourt, [or] acts contrary to international law”. However, it can be taken further, and made into a barrier to Parliament acting, even advisedly, in ways the courts simply disagree with.

However much we may agree with the outcomes in particular cases, we should be wary of this empowerment of politically unaccountable institutions. It is not the courts’ function to generate compromise, and therefore legitimacy. The law’s strengths are also its weaknesses:

Law is rational. Law is coherent. Law is analytically consistent and rigorous. But in public affairs these are not always virtues. Opacity, inconsistency and fudge maybe intellectually impure, which is why lawyers don’t like them, but they are often inseparable from the kind of compromises that we have to make as a society if we are going to live together in peace. (7)

Lord Sumption’s third lecture, “Human Rights and Wrongs” focuses on what he describes as “an unfriendly meeting” (1) between law and politics. The idea of fundamental rights is not new; in earlier times it was expressed through the concept of natural rights. The trouble with it, however, is that

[t]o say that rights are inherent in our humanity without law is really no more than rhetoric. It doesn’t get us anywhere unless there is some way of identifying which rights are inherent in our humanity and why, and that is essentially a matter of opinion. (2)

Indeed, “[r]ights … are the creation of law which is a product of social organisation and is therefore, necessarily, a matter of political choice”. (2) How is the choice to be made, how are the differences of opinion to be settled? Appealing to democracy is a problem since the point of rights is to protect people from what democratic majorities might do to them. But what else is there? Neither religion nor ideology work in a democratic society.

Still, there is wide agreement that there are some truly fundamental rights: those having to do with due process of law (though Lord Sumption does not use this label), and democratic rights, such as “freedom of thought and expression, assembly and association, and the right to participate in fair and regular elections”. (3)

Legislators can create further rights, including by subscribing to rights-creating treaties. But what Lord Sumption describes as “dynamic treaties”, such as the European Convention Human Rights (ECHR), as it has been interpreted by the European Court of Human Rights (the Strasbourg Court), whose content keeps being developed by supranational institutions after their implementation in law “escape[] parliamentary control”. (3) As Lord Sumption describes the Strasbourg Court’s jurisprudence, it “develops [the ECHR] by a process of extrapolation or analogy so as to reflect its own view of what additional rights a modern democracy ought to have”. (3) This goes beyond “applying an abstract statement of principle to concrete facts” that weren’t originally anticipated, or giving effect to “concepts … such as the notion of inhuman or degrading treatment [that] plainly do evolve over the time with changes in our collective values”. (4) Such developments are “a form of non-consensual legislation”. (4)

Good or bad, this judicial legislation is controversial; in any case, law should not be made judges, disempowering citizens. In particular, questions about the limitation of rights, the purposes for which it can be undertaken, and the degree to which it is necessary, “are all intensely political … . Yet, the [ECHR] reclassifies them as questions of law”, (6) to be settled by the courts rather than the political process.

We can think of democracy, Lord Sumption says, either as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” or as “a system of values”, (7) of substantive requirements that a political system must fulfill. A political system that is democratic in one sense is not necessarily democratic in the other. Lord Sumption worries that “[d]emocracy, in its traditional sense” (that is, the first one) “is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter”. (7) And he worries that many lawyers are tempted to attribute such urgency to liberal values. For his part, he rejects this view, which he finds

conceptually no different from the claim of communism, fascism, monarchism, Catholicism, Islamism and all the other great isms that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right. (7)

Lord Sumption’s fourth lecture, “Rights and the Ideal Constitution” takes on a constitutional system that has implemented a number of substantive, values-based constraints on democratic decision-making: that of the United States. Lord Sumption is skeptical of what he calls the “legal model” of the state, since “in the long run, political constraints on the part of majorities are likely to be a great deal more effective than legal ones”. (2) To be sure, the “legal model” promises constraint “based on a body of principle applied by judges” (3) immune from the sort of pressures and incentives to which politicians are subject. This model is based on mistrust of “elective institutions” and their ability “to form opinions about [rights] with the necessary restraint, intelligence or moral sensibility”. (3)

Against that, Lord Sumption argues, we need to count the value of legitimacy: “‘We, the people,’ is the emotional foundation of democracy in Britain as well as in the United States”. Democratic decision-making is also egalitarian. A constitution that enforces a set of substantive values, be they those of “liberalism, human rights, Islamic political theology or the
dictatorship of the proletariat” (4) is neither egalitarian nor legitimate in the eyes of those who do not share these values. It is, therefore, not the right kind of constitution: “the proper function of a constitution is to determine how we participate in the decision-making processes of the state and not to determine what the outcome should be”. (4) Instead of looking for “the right answers to … moral dilemmas”, a polity should content itself with “a political process in which every citizen can engage whose results, however imperfect, are likely to be acceptable to the widest possible range of interests and opinions”. (4)

Echoing the arguments made in the previous lecture in the context of the ECHR, Lord Sumption reiterates that in deciding rights claims based on vague constitutional language judges are deciding not so much “whether the right exists but whether it ought to exist. Yet, that is surely a question for lawmakers and not judges.” (5) Anyway, “on politically controversial issues, the decisions of judges almost always involve a large element of political value judgment”, and “are not necessarily wiser or morally superior to the judgments of the legislature”. (5) Lord Sumption also reiterates his earlier point that judicial resolution of essentially political disputes does not leave room for compromise and accommodation. By contrast, political compromise may succeed at resolving differences in the community, as it did over abortion in Britain (in contrast to the United States).

All that said, Lord Sumption cautions that it does not follow “that there are no rights which should be constitutionally protected in a democracy”. (6) Rather, “one must be very careful about which rights one regards as
so fundamental as to be beyond democratic choice”. (6) Again, life, liberty, property, due process, and democratic rights fit the bill. But they will not be enough to protect against the tyranny of the majority. Ultimately, “the Courts cannot parry the broader threat that legislative majorities may act oppressively unless they assume legislative powers for themselves”. (7) If any barrier can do that, it must be found in the political culture, not in the law.

Lord Sumption’s fifth and last lecture, “Shifting the Foundations“, addresses the proposals for introducing the “legal model” of the state to the United Kingdom. Lord Sumption suggests that, although presented as a solution to the ongoing crisis of political institutions, this idea, like all calls for institutional reform in response to crises real or supposed, has little to do with the problems it purports to address. There is something, Lord Sumption says, to the criticisms of the UK’s existing constitutional arrangements, said to be “obscure, old-fashioned, out of step with international practice and giv[ing] far too much power to Parliament”. (3) But there is also something to be said in defense of these arrangements.

Lord Sumption points out that “[t]he godparents of written constitutions have been revolution, invasion, civil war and decolonisation”. (3) Nothing of the sort has happened in the UK in centuries. As a result, there is no blank slate on which to write a new constitution. If this were nevertheless done, the result, even if

an artefact of perfect rationality, a thing of great intellectual beauty … would have no basis in our historical experience, and experience counts for a great deal in human affairs; more than rationality, more even than beauty. Ultimately, the habits, traditions and attitudes of human communities are more powerful than law. (3)

Besides, the flexible political constitution has been able “to adapt to major changes in our national life which would have overwhelmed much more formal arrangements”. (3)

The problem, and not just in the UK but elsewhere, Lord Sumption argues, is not with institutions but a political culture struggling with

long term decline in the membership … of all the major national political parties, falling turnout at elections, widespread contempt for professional politicians, the rise of powerful regional nationalisms offering a more immediate source of legitimacy. (4)

The reason for this malaise, Lord Sumption suggests, is that democracy cannot meet the unrealistic expectations for it that result “from the eternal optimism of mankind, … a misunderstanding of the role of politicians, and … an exaggerated view of their power to effect major change”, as well as “the auction of promises at every general election”. (5) This produces “a sense of impotent frustration [that] undermines public confidence in the whole political process”. (5) Those who are disappointed with the representative institutions (Lord Sumption specifically mentions environmentalists frustrated by inaction on climate change) are prepared to look to a strongman who will “get things done”. A further problem is that “[p]eople expect their representatives, not just to act for them, but to be like them”, yet “all political systems are aristocracies of knowledge. Democracy is only different in that the aristocracies are installed and removable by popular vote”. (5) This exacerbates “[r]esentment of political elites”, (6) which plays a large role in current politics.

For Lord Sumption, constitutional change is not the answer to these difficulties, although he is interested in electoral reform “if it boosted public engagement with politics and enabled them, once more, to accommodate differences of interest and opinion across our population”. (7) An entrenched constitution subject to judicial interpretation, by contrast, “will simply produce a partial shift of power from an elective and removable aristocracy of knowledge to a core of professional judges which is just as remote, less representative and neither elective nor removable”. (6)

Lord Sumption ends on a dark note:

we will not recognise the end of democracy when it comes, if it does. Advanced democracies are not overthrown, there are no tanks on the street, no sudden catastrophes, no brash dictators or braying mobs, instead, their institutions are imperceptibly drained of everything that once made them democratic. The labels will still be there, but they will no longer describe the contents, the facade will still stand, but there will be nothing behind it, the rhetoric of democracy will be unchanged, but it will be meaningless – and the fault will be ours. (7)

As noted above, there is much to reflect on here. I am not suggesting that everything Lord Sumption says is right; indeed, it cannot be, because his arguments are not altogether consistent with one another. I will set out some reflections on Lord Sumption’s views in my next post. For now, suffice it to say that, if we are to avoid the dark future whose possibility Lord Sumption asks us to confront, we need to think seriously about the issues he cogently outlines.

Nothing to Celebrate

Québec’s irreligious dress code proposal isn’t an opportunity to extol democracy, or to do away with judicial review of legislation

In a recent post at Policy Options, Joanna Baron and Geoffrey Sigalet argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, to insulate Bill 21, Québec’s proposed legislation making irreligion the province’s official creed from judicial scrutiny “is an opportunity for democratic renewal” in discussions about matters constitutional. In doing so, they come another step closer to overtly taking a position that has always been implicit in the arguments of many of section 33’s fans: that the enactment of the Charter was a mistake. Indeed, they go further and, intentionally or otherwise, make the same suggestion regarding the courts’ ability to enforce the federal division of powers under the Constitution Act, 1867. It is brave of Ms. Baron and Dr. Sigalet to make this argument with Bill 21 as a hook. Yet courageous though it is, the argument is not compelling.

Ms. Baron and Dr. Sigalet dismiss claims to the effect that, while section 33 prevents the scrutiny of Bill 21 for compliance with the Charter’s guarantees of religious freedom and equality, other constitutional arguments remain available. (I have presented one such argument, building on Maxime St-Hilaire’s work, here.) To them, they are no more than a “legalistic … distraction”. Opponents of Bill 21 should, rather, be “making the democratic case for protecting religious freedom”. Indeed, we should be celebrating “the legislative process … with its tradition of active debate”, which allows Québec to take a “collaborative approach to fleshing out important rights”. We should also be celebrating street protests, open letters, and even threats of disobedience issued by some of the organizations that will be responsible for applying Bill 21 when it becomes law. After all, letting the courts apply the Charter “can wind up overriding rights in ways similar to Bill 21”, while causing “an atrophying of the democratic process as a forum where rights are debated, articulated and enacted”. In short, “rights should not be taken for granted, nor left to judges. They require the thoughtful participation of the people themselves.”

I agree with this last point. Rights are unlikely to enjoy much protection in a political culture in which they are seen as something of concern to the courts alone. In one way or another ― whether through judicial acquiescence or through legislative override ― whatever constitutional protections for rights might exist in such a society will be cast aside. Québec is an excellent example of this. And, for my part, I have made a political, as well as a legal, case against Bill 21 here. The two can, and should, coexist.

And this is where Ms. Baron and Dr. Sigalet go badly wrong. In their headlong rush to praise politics, they denigrate the law. Without seriously addressing their merits, their dismiss plausible (albeit, to be fair, not unassailable) legal arguments as mere legalism. This applies not only to an argument based on the Charter, but also to one based on federalism. Presumably, we should count on the political process to sort out which of two different but equally democratic majorities should have the ability to impose its religious views on Canadians ― or any other issues about which order of government has the ability to legislate with respect to a particular subject. Similarly, Ms. Baron and Dr. Sigalet appear to see no harm in state institutions, such as school boards, threatening to act lawlessly, the Rule of Law be damned.

Ms. Baron and Dr. Sigalet also take a remarkably optimistic view of the political process. They say not a word of the fact that the “active debate” for which the praise Québec’s legislature may well be curtailed by the government. They call for democratic persuasion in the face of a law that is designed to impose few, if any, burdens, at least in the way in which it is likely to be enforced, on Québec’s lapsed-Catholic majority, and great burdens on a few minority groups that have long been subjects of suspicion if not outright vilification. A thoughtful advocate of democratic control over rights issues, Jeremy Waldron, at least worried in his “The Core of the Case against Judicial Review” about the possibility that political majorities will put their interests above the rights of minority groups. “Injustice”, he writes, “is what happens when the rights or interests of the minority are wrongly subordinated to those of the majority”, (1396) and we may legitimately worry about the tyranny of the majority when political majorities dispose of the rights of minority groups without heeding their concerns. Ms. Baron and Dr. Sigalet show no sign of being so worried, or of entertaining the possibility that the Québec society’s commitment to religious liberty is fundamentally deficient.

To be sure, Professor Waldron (rightly) reminds us that minorities “may be wrong about the rights they have; the majority may be right”. (1397) He also insists that, in societies genuinely committed to rights, it will rarely be the case that questions of rights will provoke neat splits between majority and minority groups. Still, we should be mindful of his acknowledgement that it is in cases like Bill 21, where majorities focus on their own preoccupations and are willing to simply impose their views on minorities, that the arguments in favour of judicial enforcement of constitutional rights are at their strongest. There is also a very strong argument ― and a democratic argument, too ― to be made in support of judicial enforcement of the federal division of powers, which serves to preserve the prerogative of democratic majorities to decide, or not to decide, certain issues.

Ms. Baron and Dr. Sigalet do not recognize these arguments, which leads me to the conclusion that they see no room for (strong-form) judicial review of legislation, under any circumstances. I believe that this position, at least so far as the Charter is concerned, is implicit in most if not all of the recent attempts to rehabilitate section 33. If one argues that we should trust legislatures to sometimes come to views about rights that deserve to prevail over those of the courts, indeed perhaps to correct judicial mistakes, then why trust them in some cases only, and not in all? The application of this logic to federalism isn’t as familiar in the Canadian context, but in for a penny, in for a pound, I suppose.

Yet in my view, this is a mistake. As the circumstances surrounding Bill 21 show, politics is often little more than the imposition of the preferences of one group on another by brute force. This is as true in a democracy as it is under any other political regime. Democracy makes it more likely (although it does not guarantee) that the triumphant group will be a majority of the citizenry, which may or may not be a good thing. Democracy means that governmental decrees are, in principle (although not always in practice) reversible, and this is most definitely a good thing, and the reason why democracy is the least bad form of government. But I see no basis for pretending that democratic politics is somehow wise, or that it fosters meaningful debate about rights or other constitutional issues. Yes, there are some examples of that, on which opponents of judicial review of legislation like to seize. But these examples are few and far between and, more importantly, nothing about the nature of democratic politics makes their regular occurrence likely.

And of course it is true that strong-form judicial review of legislation, or judicial enforcement of rights (and of federalism) more broadly, sometimes fails to protect rights as fully as it should. I’m not sure that Dr. Sigalet and Ms. Baron’s chosen example, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, is especially compelling ― I think the case was wrongly decided, but the majority’s position at least rested on the sort of concern that can in principle justify limitations on rights. The more recent decisions in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case are much worse in this regard, and provide compelling examples of an abject judicial failure to enforce the rights of a (rightly) maligned minority against an overbearing majority. Judicial review provides only a chance that what the political or administrative process got wrong will be set right, not a guarantee. But there is no compelling reason to think that the (usual) availability of judicial review causes the political debate about rights or other constitutional issues to atrophy. After all, as I have argued here, politicians are just as wont to ignore the constitution when they know or think that their decisions are not judicially reviewable as when they know that they are.  

In short, I am all for making the case for rights, and even federalism, outside the courtroom, and in ways that do not only speak to those carrying the privilege, or the burden, of legal training. I am all for making submissions to legislatures to try to prevent them from committing an injustice ― I’ve done it myself. And I’m all for protest, and even for civil disobedience by ordinary citizens when the politicians won’t listen ― though I have serious misgivings about officials declining to follow the law, partly for the reasons co-blogger Mark Mancini outlined here, and partly due to concerns of my own. But if the legally-minded among us should not neglect the political realm, then the politically-inclined should not disparage the law. The would-be prophets of popular sovereignty ought to remember Edward Coke’s words in his report of Prohibitions del Roy :

the law [is] the golden met-wand and measure to try the causes of the subjects; and which protect[s] His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege.

This is no less true of today’s democratic sovereign, though it be no less apt to stand on its own dignity as James I.

Sed Lex?

Thoughts on Ilya Somin’s defence of non-enforcement of the law

In a recent Volokh Conspiracy post, Ilya Somin argues against the common view that laws ought to be enforced and obeyed regardless of their moral flaws. On this view, the existence of a law is warrant enough to inflict punishment on anyone who breaks it. Professor Somin cites the case of Tammie Hedges, a woman from North Carolina who looked after two dozen pets whose owners could not take them with them when fleeing the recent hurricane and, for her troubles, has been arrested and charged with 12 counts of practising veterinary medicine without a license.

Professor Somin argues

that the mere fact that there is a law on the books does not mean that it should be enforced, and certainly does not mean we should pursue all violators. This is easy to see in a case like that of Tammie Hedges … . But the same principles apply far more broadly.

Professor Somin refers to the historical example of the legislation that required fugitive slaves to be returned to their “owners”, pointing out that “[t]oday, we praise … antislavery activists who” broke them, “and condemn government officials who tried to prosecute” these activists. And, in our own time, Professor Somin cites immigration and anti-drug laws as examples of legislation whose enforcement deserves condemnation, not praise.

I have a great deal of sympathy for the position Professor Somin advances, but I think that things are a bit more complicated than he lets on. Professor Somin recognizes that “there is room for reasonable disagreement about which laws are justifiable to enforce”, but does not consider the implications of such disagreement beyond saying that “[i]n a world with numerous unjust laws and ethically suspect politicians, we cannot accept a categorical ‘enforce the law’ approach to political morality”. Accepting that this is so does not really make the question of when it is possible to excuse or justify non-enforcement ― and of who is supposed to be making such judgments ― go away.

Consider the subject of my last post: the prospect of enforcement by Québec’s Chief Electoral Officer of legislation that effectively bans interventions in election campaigns by civil society actors, except if a “periodical” or a “radio or television station” agrees to carry it free of charge, as part of its news or editorial content, against an environmentalist NGO, Équiterre. Équiterre’s offence is that it has had the temerity of posting, on its own website, a questionnaire detailing the policies of the main provincial parties on various environmental issues, and expressing approval or disapproval of these positions. I argue, in my post, that Québec’s legislation outlawing such perfectly justifiable attempts to influence public opinion is draconian, and that it should be repealed and/or challenged in court and declared unconstitutional. Yet I also say that the Chief Electoral Officer is justified in enforcing the law until, in one way or another, it is law no longer. I made the same argument in a very similar situation four years ago, during the last provincial election campaign, and criticized the Chief Electoral Officer for backtracking on the basis of what I thought was a tortured interpretation of the applicable legislation.

On Professor Somin’s view, I am probably wrong. I think that the law at issue is morally unjustified. Why should I want the authorities to enforce it and put the people who quite rightly object to it to the trouble, expense, and uncertainty of litigating against it or lobbying for its repeal? If the Chief Electoral Officer declines enforcing an unjust law, shouldn’t I be happy? The reason I’m not has to do with the interaction between law and reasonable disagreement.

I have strong views about the injustice (and unconstitutionality) of Québec’s legislation, but others do not share them. The leader of Québec’s Green Party, for instance, has denounced what he sees as “meddling” by Équiterre and other environmentalist groups in elections, claiming “these groups have chosen to exclude the Green Party of Québec from their analysis”, and that this “exclusion … is a political act that undermines our credibility among the voters in the midst of an election campaign”. This nicely captures the policy of Québec’s legislation (and its federal analogue too, albeit that the latter is less draconian): achieving fair competition among political parties, at the expense of everyone else’s liberty. Plenty of people support this policy, at least in the abstract (though many get queasy when they discover that it can actually be applied to people and groups with whom they sympathize).

As I said in my recent talk on the Trinity Western cases at the Centre for Constitutional Studies, in a pluralistic society we constantly disagree about values and justice, and the law for the time being is the one thing we have in common. I take Professor Somin’s point that law is not like the rules of a club that we have knowingly joined and are free to leave; its claims to our assent are incomparably weaker. Still, we do benefit from the existence of this common reference point, which allows us to maintain a well functioning community despite our sometimes radical disagreements.

Consider, for example, one of Professor Somin’s example: immigration laws. I happen to agree with him that they are unjust in preventing persons “fleeing violence and oppression” ― includig economic oppression that typically doesn’t give rise to an entitlement to refugee protection ― from obtaining safety. Sadly, plenty of people think that the problem with existing immigration laws is the opposite: they still allow some people to come to Canada or the United States. If these people take it upon themselves to remedy what they see as injustice ― say by preventing prospective refugee claimants from reaching a border, or by hacking into a government computer system to destroy would-be immigrants’ applications ― how would we feel about that? We want, I think, to be able to say more than “your sense of justice is wrong”, and get into a shouting match about whether we or they are right. Pointing to the law is the best we can do ― but we can only do it if we too are law-abiding. The point, of course, is not that the existing immigration law is, substantively, a sort of half-way house between the wishes of open borders types and wall-builders; it’s that, to repeat, it is a common reference point that exists independently of our subjective views about justice.

Now, it is essential that opportunities to revise the law exist, and highly desirable that some of involve counter-majoritarian procedures, such as judicial review of legislation. The rules that provide these opportunities are valuable ― indeed, probably more so than any substantive laws by themselves ― and worth supporting. When people disobey the law instead of using these procedures, they undermine not only the law that they are actually disobeying, but the whole system of law as the means of provisional resolution of our disagreements with our fellow citizens, as well as the normal procedures for revising this settlement from time to time.

This is especially so when the people at issue are not ordinary citizens, but the very persons charged with implementing the law. Professor Somin does not really address this distinction, but I think it is important. Civil disobedience by a citizen (or a business) can be admirable, but I am very skeptical indeed of civil disobedience by officials. Unlike citizens, officials who decline to enforce the law, if they do it consistently, can effectively change the law ― even though in most cases they are not authorized to do so. This subversion of the normal procedures for changing the law, whether democratic or judicial, risks doing more harm in the long run than it does immediate good.

But of course it is just as, and perhaps more, likely, that the disregard of a law by official charged with enforcing it will not consistent and even-handed. Sympathetic law-breakers ― sympathetic, that is, either in the eyes of the officials themselves, or in those of the public, like Équiterre ― will get a pass, while others will not. How many of Équiterre’s defenders would take the same position of the Chief Electoral Officer went after a right-wing think-tank? Non-enforcement of the law is likely to be arbitrary, and that too is a long-term evil that has to be weighed against any short-term benefits it may have in particular cases.

Now, of course there are extreme cases. Slavery is one. In a very different way, of course, the story of Tammie Hedges is another ― extreme in its senselessness if not in its savagery. As I said at the outset, I am sympathetic to Professor Somin’s view that law does not have an automatic claim to obedience ― certainly not from citizens, and perhaps not even from officials, though I think that it is often the case that an official ought to resign from his or her position rather than subvert the law by selective non-enforcement. The trouble is that any line one draws between extreme cases is likely to be subjective and blurry. I don’t have a good way of dealing with this problem, which probably takes away from whatever force my objections to Professor Somin’s position might otherwise have had. Still, I wanted to explain my disquiet in the face of what strikes as a far-reaching argument against the authority of law. “The law is harsh, but it’s the law” can indeed be a callous and highly objectionable position. And yet, the law has a value of its own that appeals to justice are liable to disregard, and it’s a value that I would like to hold on to, even though I too think that many of our laws, considered individually, are seriously unjust.

Rendering Unto the Judiciary

Justice Martineau’s recent article on judicial courage

In a recent piece published in the Western Journal of Legal Studies, Justice Martineau of the Federal Court puts forward a concept of “judicial courage” as a descriptive and normative claim about what judges do in a democracy. Judicial courage, to Justice Martineau, is an ideal that stands in contrast to judicial “conservatism” under which law is the complete answer to most or all cases [2]. To Justice Martineau, law is a necessary but insufficient condition for the flourishing of justice and democratic institutions. Instead, we also need a shared ethic or commitment towards a culture of constitutionalism, which judges help along by displaying “courage” in particular cases. Justice Martineau is drawn by a “liberal” version of the judiciary, imbued with moral authority rather than simple legal authority.

While Justice Martineau’s piece demonstrates a clear reflection of the issues at stake and his status as an eminent legal thinker, allow me to be skeptical of his core claim, as I read it: that courage can be a helpful descriptive and normative organizing principle. To me, judicial “courage” is far too subjective, and could ultimately give rise to unconstrained faith and power in a judiciary unbound by doctrine. There would need to be some limiting principle and definition to the ideal of “courage” to ensure that judges exercise it in proper cases.

This is not to say that the problem Justice Martineau addresses in his piece is unimportant. The piece uses the concept of judicial courage as an answer to a perennial problem: how do we deal with internal threats to the legal system from those sworn to uphold it? To Justice Martineau, courts are central in preventing the rise of these sorts of actors

I have no difficulty in endorsing his point of view. Judges have a duty to act responsibly. Detractors of “judicial activism” dismiss elitist thinking—particularly as it is opined by unelected members of the judiciary. People should put their faith in Congress or Parliament, who know better. But their optimistic reliance on the positive side of political virtue and wisdom ignores the transformative action of fortuna when power has become corrupted or concentrated in the hands of a sociopath. This can happen in any democracy [31].

My concern is the faith this puts in courts to almost always do the right thing. Just because the legislative branch can be manipulated does not mean that the judiciary cannot be, or that strong-form judicial review is necessarily the best remedy. As Vermeule argues, much of constitutional law can be construed as a form of risk management. Part of the risk of constitutional design is the risk posed by imperfect humans. For example, in designing the American constitution, some of the Federalist framers began from the presupposition that “enlightened statesmen will not always be at the helm” of the system (The Federalist Papers, No. 10). To Hamilton, in fact, “No popular Government was ever without its Catalines & its Caesars. These are its true enemies.” Constitutionalism must start from the premise that there will be bad actors in the system, like a Caesar or Hitler, who might seek to use internal democratic channels to subvert the rights of others. This observation extends equally to the judiciary.

The Americans responded to this problem by adopting a strict separation of powers, in which no one branch could accumulate all power. The judiciary is obviously included in that system of limited government, restrained just as much as the legislature and executive. Why should we bank on such a system? Ex ante, the separation of powers is the best organizing principle on which to base a Constitution. A bill of rights will only be a “parchment guarantee” if any actor in the system can accumulate all the power. Before doing anything in a constitutional democracy, we’d want to insure against this risk.

We should be careful about tinkering with this machinery. For that reason, in a system of separation of powers, there should be good reasons for one branch to step into the territory of the others. Hamilton alluded to this possibility when he said that in cases of a weak government, it may need to “overstep the bounds” (on this point, see Vermeule’s recent paper) in cases of emergency. But the same goes for the judiciary. Extraordinary constitutional circumstances should exist before an unelected judicial branch interferes with the elected process if the separation of powers is a main organizing principle–and if we care about guarding against the risk of overreach.

And this is the rub of the matter. If it is “courageous” for courts to interfere with democratically-elected mandates that may be unfair, it is perhaps even more courageous for courts to stay their hand and let the democratic process unfold in service to the separation of powers. Which is true in a given situation should be subject to clear rules that guard against judicial overreach and limit the role of the judiciary to real instances of constitutional concern. But we are so far from this reality in Canada. I need not go over the Supreme Court’s sins in this regard, but the Court has failed to apply a consistent set of rules governing its judicial review function; sometimes tacitly accepting originalism, sometimes trotting out the living tree, all the while relaxing its approach to precedent.

To this comes Justice Martineau’s objection. A wholly rules-bound judiciary is likely to allow grave democratic injustices to stand. Hitler, after all, was a product of a democracy. Justice Abella has gone as far as to eschew the rule of law, instead proposing a “rule of justice.” To Justice Abella, the rule of law is “annoying” because it sanctioned the Holocaust, segregation, and other democratic evils. On her account (and Justice Martineau’s) courts always pursue justice, whereas the legislature will only do so if “justice” coincides with its own political interest

Direct democracy alone is an insufficient condition for a good society, if only for practical reasons. In fact, courts play an integral role in a properly separated system. This system, to Justice Martineau, must be vindicated by a culture of constitutionalism, in which the people agree to be bound by law [13]. The American framers agreed. But the real question is who should foster this belief. Justice Abella and Justice Martineau seem to think it is the role of courts to encourage this culture of constitutionalism; and even more, they seem to think that courts are uniquely suited to do so.

At risk of sacrilege, I think this puts too much faith in humans–the very risk the separation of powers guards against. To trust that the judiciary will always display “courage,” properly calibrated to the legal rule under consideration, is unrealistic. Judges will make mistakes, sometimes grievously so. This is a clear risk that is managed by the separation of powers. To be sure, the risks posed by legislative or executive abuse are different than those posed by courts, but they are no less concerning. Executive or legislative recalcitrance will be obvious, but judicial overreach is less so.

Instead, putting too much faith in the judiciary and expanding judicial power is much like eating chocolate cake. The cake is good at the moment, but later on it takes its toll. A court making up its own law will vindicate particular groups in the moment. But over the long term, a court unmoored by clear rules, directed only by “courage” or “justice,” could slowly eat away at the separation of powers and the role of elected legislatures until the culture of constitutionalism sought by Justice Martineau is really just a culture of court worship. Under this culture, courts take an expanded role, and citizens look to the courts to vindicate their particular versions of the good.

I fear we have come to this point in Canada. One need only look at the recent retirement of Chief Justice McLachlin as an example. Veneration of the Court is a veritable academic pastime, and too many view the judges as celebrities rather than fallible humans with a restricted role in the separation of powers. This is an implication of Justice Martineau’s invocation of “courage.” Without guiding rules, courage could mean many things to many different people. It could end up being a dangerous theory of judicial review that further politicizes and expands the role of courts.

In our system, there is no doubt that we need courageous judges, but what courage means in a system of separated powers is a complicated question. Without accounting for institutional realities, courage lacks definition as a descriptive and normative idea. Rather than putting our faith in judges, all should insist that actors within the political system stay true to their defined roles. Accordingly, for courage to be a helpful concept rather than a vessel for judges to fill with their own worldview, we’d need to develop clear doctrinal parameters on the concept.

Moving Dunsmuir past Dunsmuir

Democratic accountability for privative clauses, and its consequences for the standard of review analysis

Martin Olszynski, University of Calgary

Near the end of last year, and spurred on by yet another judgment challenging adherence to the Dunsmuir framework (Garneau Community League v Edmonton (City), 2017 ABCA 374 (CanLII), I posted a blog on the University of Calgary Faculty of Law’s ABlawg proposing a reversal of Dunsmuir’s presumption of reasonableness with respect to questions of law. Building on the constitutionalization of judicial review (Crevier v Attorney General of Quebec 1981 CanLII 30 (SCC); Dunsmuir v. New Brunswick 2008 SCC 9 at paras 27 – 32), I suggested that any presumptions ought to reflect the courts’ core competency of interpreting and applying law, which is to say a presumption of correctness review. In a nod to functionalists, however, I also suggested that this presumption should be rebuttable by the presence of a privative clause – nothing more, nothing less:

Simply put, the starting point should be that the courts, by virtue of their training, independence, and impartiality, have the upper hand in the interpretation of the law. Recognizing the realities of the modern administrative state, however, this presumption can and should be rebuttable for certain questions of law by virtue of explicit legislative provisions (i.e. privative clauses and restrictive rights of appeal). Importantly, just as the Supreme Court in Crevier held that legislatures could not oust judicial review entirely, so too certain questions of law will always be subject to correctness review – these would be the current Dunsmuir correctness categories… For all other questions of law, however, the presence of a privative clause would trigger deferential review.

Without repeating the entire argument here, one of the main concerns driving my suggested approach is that the concept of “implied expertise” as a basis for deference is simply too contradictory to be sustainable in the long run. Instead, courts should defer out of respect for the explicit decisions made by legislatures in the form of privative clauses or restrictive rights of appeal, decisions for which legislatures may subsequently be held accountable. Privative clauses, I argued, are a big deal – or at least they could be, depending on the context. Using the examples of labour and employment law on the one hand and environmental law on the other, I suggested that the need for some kind of privative clause in the former context seemed fairly obvious (with its tripartite boards and relatively heavy hearing loads) but less so in the case of the latter, where it was governments’ poor record of taking environmental considerations into account that was the impetus for such laws in the first place.

The following week, Professor Leonid Sirota posted a thoughtful reply on his Double Aspect blog. I think its fair to say that he was sympathetic to my argument, but he also expressed some doubt as to whether legislative re-arrangements of the separation of powers could really be the stuff of democratic accountability:

… Professor Olszynski argues that accountability works by pointing to his own criticism of the application of a privative clause in an environmental law case, and contrasting it with the fact “that few labour or employment lawyers would argue against privative clauses in that context”. With respect, the possibility of academic criticism does not make for democratic accountability; nor does acceptance by a relevant expert community… How many voters have ever heard of privative clauses, never mind being able to articulate any thoughts on their desirability? To believe that legislatures can, let alone will, be held accountable for eliminating the courts’ role in legal interpretation unwisely, or even abusively, requires more optimism than I could ever muster.

Tough but mostly fair. Professor Sirota is right to point out that a singular – and self-serving – reference to my own academic commentary is a poor proxy for public concern.  As it turns out, however, privative clauses have actually managed to capture both attention and opposition from time to time, as my colleague Professor Shaun Fluker recently discovered in the course of his research into statutory rights of appeals. Professor Fluker cites three reports (the 1957 Franks Report to the Parliament of Great Britain on the workings of statutory tribunals, the 1965 Clement Report to the Legislative Assembly of Alberta, and the 2012 Report of the Law Reform Commission of Saskatchewan) that indicate clear skepticism – if not outright hostility – towards privative clauses. The following passage from the Clement Report is particularly relevant:

The Committee is unanimously and firmly of the view that in every case there should be a right of appeal to the Supreme Court of Alberta on a question of jurisdiction and a question of law. No legitimate reason can be put forward why a tribunal to whom the Legislature has delegated certain defined authority should be permitted with impunity to transgress the bounds of the jurisdiction that it was intended it should exercise. Similarly, there should be no excuse for a tribunal misapplying the law, or ignoring law, to which all citizens of the Province are subject, in favour of its own views as to what should be applicable to the persons that are affected by its decisions… By this stroke there would be cut away the privative clauses still remaining in some statutes whereby the Legislature seeks to protect its tribunals from the disciplines of the Rule of Law… (at 74-75).

I can’t say whether such concerns have had any measureable impact on the presence or absence of privative clauses, but I don’t know that I have to. Democratic accountability is probably rarely – if ever – a perfect mechanism; there are often numerous competing issues that affect voter behavior. Assuming – without deciding – that the foregoing reports at least render plausible the potential for democratic accountability, there are two further issues in my proposal that require sorting out.

In my original post, I suggested that the presence of a privative clause should trigger deference for certain questions of law (excluding Dunsmuir’s four correctness categories). This, however, assumes that all such clauses are the same, which of course is not the case: there are “weak” and “strong” privative clauses; there are clauses that require leave from a court subject to its discretion, and there are those that impose a test such as requiring the identification of a question of law of some importance (as was the case in Garneau, supra). I am inclined to think that such clauses should be interpreted in the normal way, with a view towards legislative intent (essentially Rothstein J.’s approach in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (CanLII) beginning at para 69). Thus, clauses that impose an “important question of law” test would most likely trigger correctness (as suggested by the concurring judgments in Garneau). Bearing in mind Dunsmuir’s concern with both the legality and rationality of decision-making, I am also inclined to suggest that there should be a limit with respect to the extent to which privative clauses can preclude any review of administrative fact-finding whatsoever, but this proposal requires further thought.

The second issue, or challenge, would be to develop a normative framework to guide discussions, whether in the House of Commons or before a Parliamentary committee, about whether and in what form a privative clause may be appropriate in a given context. The structure of the administrative decision-maker, the nature of its workload, and the presence or absence of procedural safeguards in its decision-making are some of the factors that are likely to be useful here.

In the meantime and in conclusion, I am pleased to report that the federal government did recently introduce new environmental assessment legislation and it does not contain any privative clauses.

Squaring the Public Law Circle

Canadian administrative lawyers keep trying to reconcile parliamentary sovereignty and the Rule of Law; they shouldn’t bother

Ancient Greeks wondered whether it was possible to construct a square of the same area as a given circle using only a compass and a ruler ― to square the circle. The problem occupied some great minds of that age and of the subsequent ones, even Napoleon apparently. It took well over two millennia until it was shown to be impossible to solve. Public law has its own quadrature problem, posed by A.V. Dicey (the first edition of whose Introduction to the Study of the Law of the Constitution came out just a couple of years after the demonstration of the impossibility of squaring the circle): it consists in fitting together, albeit by means of verbal rather than geometrical contortionism, parliamentary sovereignty and the Rule of Law.

Dicey and many others since him have mostly been preoccupied by this problem in the context of fundamental individual rights, and their protection from a legislature unconstrained by a supreme law constitution. Canada eventually abandoned this attempt ― or rather cut back on it significantly, since some rights, such as that to property, remain unprotected by the Canadian Charter of Rights and Freedoms. But, to an extent that Dicey did not imagine and that is arguably without parallel in the rest of the Commonwealth, we have re-deployed our intellectual energies merely to a different application of the same problem, this one in administrative law. We are struggling to reconcile parliamentary sovereignty, which suggests giving effect to legislative attempts to insulate administrative decision-makers from judicial review, and the Rule of Law, which, as Dicey himself suggested, requires courts of justice to apply the law. We are not succeeding.

It is not for lack of trying. The majority opinion in the supposedly still-leading case on judicial review of administrative action,  Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, recognized that

[j]udicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. [27]

Dunsmuir and the subsequent cases that have fucked up beyond all recognition refined the framework that it laid down attempted to resolve this tension and to make sure that, as a Russian saying has it, the wolves are sated, and the sheep unharmed. Scholarly commentary has worked, I think, in the same direction.

The most recent example is a thoughtful post on ABlawg by Martin Olszynski. Professor Olszynski seeks to recover what he sees as Dunsmuir’s promise of reconciling parliamentary sovereignty and the Rule of Law. He proposes to achieve this by making

two inter-related changes to the Dunsmuir framework … The first change would be to reverse the presumption of reasonableness on questions of law to a presumption of correctness, which can then be rebutted for the large majority of such questions through the presence of a privative clause (this approach would be similar to that proposed by Justice Deschamps in Dunsmuir). The second related change would be to abandon the overly broad and fundamentally contradictory concept of “expertise” as a basis for deference and to replace it with the potential for democratic accountability, which ultimately is the basis for legislative supremacy.

Although the judiciary has the “training, independence, and impartiality” to claim “the upper hand in the interpretation of the law”, it ought to yield this upper hand to  legislative statements that call for deference to administrative decision-makers. Legislatures “must be respected – because they are democratically elected and accountable”. Provided they make themselves sufficiently clear by enacting “privative clauses” (provisions that typically seek to out judicial review of administrative decisions or to strictly limit it), legislatures can be made to answer for any decision to remove legal interpretation from the purview of the courts. When the legislation includes a privative clause, a reviewing court should, therefore, defer, but not otherwise ― and especially on the pretense that an administrative decision-maker is an expert by virtue of its very existence.

I agree with Professor Olszynski’s criticism of the role that the idea of administrative expertise has come to play in Canadian administrative law (which I have not fully summarized ― you really should read it). Last year I wondered here whether “the Supreme Court is embracing that pop-psychology staple about 10,000 hours of doing something being enough to make one master it”, and I elaborate on my worries about “expertise” in a paper I recently presented at the TransJus Institute of the University of Barcelona. I also agree that courts should not be shrinking violets when it comes to legal interpretation. It’s their job, and it’s the think that they’re supposed to be good at. If legislatures decide to scrap some of the administrative bodies they have set up (a guy can dream, right?), the courts will have to apply the legislation these bodies are now responsible for. They ought to be able to do that.

But I am skeptical of Professor Olszynski’s suggestion that the presumption that questions of law must be addressed by courts should, in the name of democratic accountability, by rebutted by privative clauses. Indeed, I think that the idea of democratic accountability is not readily applicable in this context. Professor Olszynski argues that accountability works by pointing to his own criticism of the application of a privative clause in an environmental law case, and contrasting it with the fact “that few labour or employment lawyers would argue against privative clauses in that context”. With respect, the possibility of academic criticism does not make for democratic accountability; nor does acceptance by a relevant expert community (if indeed “labour and employment lawyers” are the relevant expert community in relation to labour law ― what about economists, for instance?) make for democratic legitimacy. How many voters have ever heard of privative clauses, never mind being able to articulate any thoughts on their desirability? To believe that legislatures can, let alone will, be held accountable for eliminating the courts’ role in legal interpretation unwisely, or even abusively, requires more optimism than I could ever muster.

I am inclined to think ― though my thoughts on administrative law are still tentative ― that in determining the standard of review we should not attempt to reconcile the Rule of Law and legislative supremacy. The reconciliation is never meant to be real in any case. The Rule of Law is, ultimately, the dominant value, because even those who claim that they want to respect legislative will refuse to give effect even to the clearest privative clauses. To take a statutory provision that says “no judicial review” to mean “deferential judicial review” is not to accede to the legislature’s desires, but to impose one’s own principles ― including the principle of the Rule of Law ― on it.

And there is nothing wrong with this. The Rule of Law, as the Justice Rand observed ― in the context of a lawless exercise of administrative power ― in Roncarelli v Duplessis, [1959] SCR 121 at 142, is “a fundamental postulate of our con­stitutional structure”. It is a constitutional principle that can, as the Supreme Court recognized in Reference re Secession of Quebec, [1998] 2 SCR 217, result in “substantive limitations upon government action” ― including, relevantly to us here, in government action aiming at reducing the courts’ powers of judicial review. By contrast, as the Secession Reference also recognized, democracy ― whether direct democracy, which was at issue in that opinion, or representative democracy, and whether accountable or otherwise ― must be confined by constitutional limitations. The Court wrote “that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy”. [72] But that’s not quite right. The Charter imposed additional restrictions on legislatures, but it did not “transform” the constitutional system, which was already one of “constitutional supremacy” under the Constitution Act, 1867.

To the extent that it is required by the Rule of Law principle, judicial review of administrative action, including correctness review on questions of law, is a constitutional requirement. This extent is the question that Canadian administrative lawyers and judges should be addressing. Virtually everyone, I think, agrees that the Rule of Law requires correctness review in at least some cases. My own inclination is to say that it requires correctness review often, and perhaps always. I might be wrong about that, but if I am, this is because I misunderstand the Rule of Law, not because I fail to account for Parliamentary sovereignty and to give effect to (modified versions of) privative clauses. There is simply no need to bring parliamentary sovereignty into the standard of review equation, thereby making it unsolvable. Unlike in mathematics, the impossibility of squaring the public law circle cannot be conclusively demonstrated (though even in mathematics the demonstration apparently did not stop enthusiasts from trying). But the futility of well over a century’s worth of attempts should, I submit, be a warning to us all.