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.