doctrine – Double Aspect

A Defense of Doctrine

Sometime ago, I was doing a presentation on the recent doctrine in a particularly contentious area of law at a Canadian law school. The presentation was designed to show how developments in the doctrine were inconsistent with fundamental principles underlying the doctrine, and that the doctrine should therefore be adjusted. I’m remaining at a high level of generality, because the details of the area of law don’t really matter.

When I finished my presentation, I received questions from the audience. Many were excellent. One was quite critical. But it was not critical on the doctrinal point I was making. Rather, the individual made the point–and I am paraphrasing–that the presentation was doctrinal. The gist of the argument was that doctrinal questions in law are too esoteric, not connected enough to the “real world,” and elide questions of empirics, morality, or otherwise.

My initial shock at the question–I was in a law school, after all–gave way to reflection. It seemed to me that this criticism, as I understood it at least, was way too broad. And if such a criticism is taken far enough, it can change entirely the expectations for lawyers and legal academics in a way that we are unequipped to handle.

At one level, perhaps the questioner’s point can be steelmanned. If one says that doctrine is all there is from a methodological perspective, legal analysis might miss something. Legal analysis that analyzes cases as a connected line of decisions, but unconnected to the philosophical or moral norms embedded in our legal system, will inevitably be incomplete (though all-things-considered moralizing is not the stuff of legal analysis). For a full picture of how the law actually works (at least at the functional level), empirics are important. In many ways–and despite the dangerous risks I will point out–the study of law has benefited from interdisciplinary work, done well.

But this questioner’s comment–and other trends I observe in the academy–lead me to think that the underlying argument is more radical. The point seems to be that the study of doctrine itself is the stuff of pedants; fiddling while Rome burns. On this account, if a legal academic is just studying doctrine, they are either complicit in the immorality of that doctrine, or they are unintentially missing the broader picture of how the law operates.

I think this criticism is misguided.

For one, as legal academics, we are trained in the law. We go to law school and graduate school to learn about the law–as it is, and in light of fundamental principles, perhaps how it should be. This is our craft. Without proper training, the further we go beyond this craft, the greater the risk of distortion or misinterpretation. This is why interdisciplinary work, particularly empirical work, carries such a great risk for legal scholars, despite its ascendancy in the academy. While legal scholars do produce good empirical work, no one suggests that this is the craft of the academic lawyer.

The specific craft of lawyers is also no more suited to philosophy or moralizing. In a memorable turn of phrase in the recent Rogers-Shaw decision, Justice Stratas tells us that judges are just lawyers who happen to hold a judicial commission. There is truth to this. While judges have been granted the power of judicial review of legislation under the Constitution, the problem is not this grant of power per se. Rather, it is the pretense that judges have special insight into the moral values of Canadians in exercising that power, as opposed to special insight into the law. When judges stray from the legal craft, it becomes irresistible for the public to conclude that lawyers have some special insight into the way the world should be. A dose of humility should tell us why this is wrong.

On the fundamentals, I worry about the degradation of doctrine. As Paul Daly pointed out in a recent piece, the role of doctrine in legal analysis is not the stuff of pedants. Decisions that are reached according to settled principles enhances public legitimacy of those decisions. Justified departures from those decisions can sometimes be warranted; but this is the point, they must be justified according to fundamental legal norms. Doctrine cabins in all-things-considered moralizing, which–as I have pointed out–lawyers are no more equipped to handle than anyone else. When crisis strikes–pandemics, war, what have you–floating adrift on a sea of political or moral theory (or worse, the say-so of someone in a robe) will only distort the sort of legal protections upon which Canadians have come to rely. This is not to say that the law is fool-proof and all-protective. Law is a human creation. Nonetheless, it is for this reason that doctrine serves an important legitimating function.

This is where the doctrinal methodology, best-suited to lawyers, comes in. Lawyers who study doctrine should not shirk from doing so. The clarification and study of doctrine can assist judges in reaching reasoned decisions that best reflect the legal materials. Whether we like it or not, the common law method is the bread-and-butter of legal decision-making. Someone needs to step into the role to study the doctrine, to try to make sense of things that could elude the attention of the philosopher or political scientist.

I’m glad the questioner phrased the challenge in the way they did. In a way, it provided an opportunity for reflection on the important, continued role of doctrine. The only error, to my mind, is hubris in either direction–a confident belief that doctrine doesn’t matter, or a confident belief that doctrine is all there is. But for the academic lawyer who finds a home in the weeds of doctrine, there should be no shame.

The Dunsmuir Decade: A Post-Script

In the wake of the #DunsmuirDecade, updated thoughts on blogs and doctrine

The Dunsmuir Decade symposium is over. It’s been great fun to host, and has provided a great deal of food for thought for me and, I am sure, for others. I might come back in future posts to some substantive points made by the contributors. And of course I need to return to my regular constitutional programming, which I have held in abeyance all this while. But before I do so, I wanted to venture a meditation on what the symposium itself means or represents.

Among the many kinds of writing that legal academics produce, there is a special genre of writing about legal writing; and one of its sub-genres is writing about legal blogs. It asks questions such as whether blogs deserve to be considered among the media through which legal scholarship can be communicated; their distinctiveness, if any, among such media; the way, if any, in which blogs can meet the needs of the legal profession or of others with whom it interacts in one way or another; and of course the ways in which blogs can or ought to change for answers to these questions to become more satisfactory. Among the notable Canadian contributions to this literature are “Legal Academia 2.0: New and Old Models of Academic Engagement and Influence” by Paul Daly ― the co-host of the Dunsmuir Decade symposium ― and Édith Guilhermont’s “La contribution des blogues juridiques à la connaissance, à la critique et aux transformations du droit“. I too have occasionally mused on the subject of blogging, and of its relationship to writing about law more broadly.

In particular, after attending a colloquium on “The Responsibility of Doctrine” or, rather, “La responsabilité de la doctrine” hosted by McGill’s Paul-André Crépeau Centre for Private and Comparative Law, I wondered about the complicated relationship between the meanings of the word doctrine in English and in French ― “doctrine” and “la doctrine” ― and also about the contribution that blogs could make to either or both of these things. I hope the readers will forgive me for quoting myself at considerable length, because, as I will explain below, I think that what I wrote then is directly relevant to the Dunsmuir Decade symposium:

The important thing about both [doctrine and la doctrine] is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. … And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.

These conversations can be noisy and perhaps chaotic, since they involve multiple speakers addressing multiple subjects ― judges, scholars, and lawyers trying to figure out not only what the law is but also, at least some of the time, what it should be. (The critical component of la doctrine is often mentioned in its definitions. But those of you who have listened to Justice Stratas’ lecture [on “The Decline of Legal Doctrine“] or read my post about it, will also recall that he said that the judges who are “doctrinal” are not only interested in what the rules are, but also, perhaps, in tweaking in modifying them.) They yield no permanent truths and no irrevocable agreements, and as new voices enter both their vocabulary and their contents shifts, usually imperceptibly, sometimes abruptly.

But meandering and sometimes cacophonous though these conversations are, they are the visible, and therefore the imperfect, manifestation of the jurists’ quest to make the law coherent and conducive to the public good through argument and shared deliberation. Common lawyers, most famously Chief Justice Coke, called this quest the “artificial reason” of the law. While I am not aware of an exact civilian equivalent, I believe that Portalis, for example, with his insistence that “[l]aws are not pure acts of power; they are acts of wisdom, justice and reason,” and that “[t]he lawmaker … must not lose sight of the fact that laws are made for men, and not men for laws” would have shared its spirit.

At least some of Friday’s presenters insisted that la doctrine is our joint responsibility as juristes … So did Justice Stratas in his lecture, as called upon judges, lawyers, and scholars alike to devote ourselves to doctrine, and on all of those who write about the law to take doctrine seriously. … The web 2.0, and especially the blogs, are already a part of the doctrinal conversations, and will be an ever more important one in the years to come. Justice Stratas not only mentioned a couple of bloggers (specifically, Paul Daly and yours truly, for which I am very grateful to him) as examples of legal writers who take doctrine seriously, but also kindly commented on my post about his lecture. This sort of exchange was simply impossible until a few years ago, and I suspect that, for many, it still seems inconceivable. But I am hopeful, and pretty confident, that in time it will no longer seem so. … [I]f doctrine and doctrine are to flourish in the 21st century, they will need to remain open to new forms, and that it will not do to ignore these new forms simply because they are unfamiliar.

One of the joys of the Dunsmuir Decade symposium for me ― and the reason I am so tediously repeating myself ― is that it was, I think, a perfect demonstration of what the synthesis of doctrine and doctrine that I had in mind looks like, and of the blogs’ contribution. It was an instance of collective thinking about the law in an attempt to figure out where the law stands, how it got there, and whither it ought to go if it is to fulfill the requirements of coherence and orientation to the public good. It was a conversation that involved a variety of voices ― not just academics but also legal practitioners and judges (the first time, I think, that Canadian judges have published blog posts!) ― and that was suitably “meandering and cacophonous”, perhaps to the bemusement of Justices LeBel and Bastarache, who kindly provided its conclusion. But while we have surely not arrived at any final truths about administrative law, I am pretty confident that we have, together, strengthened its “artificial reason”.

And of course this conversation happened on blogs ― and I doubt that it could have happened elsewhere. Blog posts, though the Dunsmuir Decade ones were admittedly long by the standards of the medium, allow one to develop an argument to a much greater extent than a 15-minute conference presentation, yet are still easier both to write and to read than full-blown journal articles or book chapters. The blogging symposium thus has advantages over both the traditional conference, in the depth of the reflection that it makes possible, and over, say, an edited collection of essays, in terms of both breadth ― and over both in terms of the cost in time and money for both organizers and participants.

All this is not to say that these more longstanding fora for doctrine and doctrine have lost their relevance. As Prof. Daly and Dr. Guilhermont also noted, the new media, including the blogs, are complementary to the old; they will not fully replace them any time soon, if ever. But as they have noted too, and as I did, new forms, including especially blogs, will be an essential support for doctrine and doctrine in the years and decades to come. I think that the Dunsmuir Decade symposium demonstrated that this was not just a futuristic vision of a few enthusiasts, but the reality here and now.

(La) Doctrine

**What do legal doctrine and la doctrine have to do with each other?**

I was at the colloquium that McGill’s Crépeau Centre held on Friday for its 40th anniversary on the topic of “The Responsibility of Doctrine.” It was quite interesting, if a little uncanny for someone who, despite my McGill professors’ best efforts, never found the civil law quite congenial. Without going into anything like a detailed comment on the proceedings, I would like to offer the following meditation on a subject that the panellists did not actually discuss but which I think their presentations illuminated nicely: the complicated relationship between the civilian (and mostly French) and the common law (and thus mostly English) senses of the word “doctrine.”

The civilians’ doctrine is (roughly, because the actual definition is debated) the set of writings, learned but not necessarily academic, that synthesize, explain, analyze, and possibly criticize the state of the law. The common lawyers’ doctrine, according my own tentative definition, is the set of rules and principles that can be derived or inferred from judicial decisions. The two words do not mean the same thing, then. They are, linguists or translators would say, “false friends.” But are they really friends at all? Or, conversely, are they actually false?

Some civilians deny that there even is such a thing as la doctrine in the common law world. And, for their part, they have no word that would be equivalent to the common lawyers’ doctrine, and perhaps they have little use for such a word, given the opacity of the traditional civilian judicial decisions, and the subordinate status of la jurisprudence as a source of law. If so, then la doctrine and doctrine can hardly be friends at all; indeed, it is almost as if “never the twain shall meet.”

But this seems too quick. As Derek McKee pointed out, it’s not so clear that there is no doctrine in the common law world. (Peter Hogg’s Constitutional Law of Canada seems an obvious example, for instance.) Sébastien Grammond, for his part, said that even judicial opinions, or at least some them, could be regarded as part of la doctrine, insofar as they serve the same function of stating and explaining the law. This cannot happen in the single-page decisions of the French courts, but does happen here. (And perhaps, conversely, the more common-law-like decisions of the courts that apply Québec’s civil law can also produce doctrine in the common law sense.)

That said, the differences between the common and the civil law systems are relevant to the relationship between doctrine and doctrine. The respective roles of the different branches of the legal profession, especially the judicial and the academic ― and their publishing habits or obligations ― mean that the participants in and the form of doctrine and doctrine differ. Judges are in theory ― and subject to prof. Grammond’s above-mentioned comments ― excluded from la doctrine. They are, by contrast, the most significant contributors to doctrine. La doctrine develops, first and foremost, in books and articles. (There was much interesting discussion, especially by Élise Charpentier, about the fluctuating respective fortunes of these two media.) Doctrine grows in the pages of law reports as well as law reviews and law books ― although Justice David Stratas has recently argued that it is in danger of being drowned out by the siren songs of result-oriented reasoning, in public law fields anyway.

However, these differences are less important than what doctrine and doctrine have in common. The important thing about both is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. (This point was, I think, most clearly made by Aurore Benadiba.) And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.

These conversations can be noisy and perhaps chaotic, since they involve multiple speakers addressing multiple subjects ― judges, scholars, and lawyers trying to figure out not only what the law is but also, at least some of the time, what it should be. (The critical component of la doctrine is often mentioned in its definitions. But those of you who have listened to Justice Stratas’ lecture that I link to above, or read my post about it, will also recall that he said that the judges who are “doctrinal” are not only interested in what the rules are, but also, perhaps, in tweaking in modifying them.) They yield no permanent truths and no irrevocable agreements, and as new voices enter both their vocabulary and their contents shifts, usually imperceptibly, sometimes abruptly.

At least some of Friday’s presenters insisted that la doctrine is our joint responsibility as juristes (and some, notably prof. Grammond, have argued that the responsibility runs beyond the legal profession itself). So did Justice Stratas in his lecture, as called upon judges, lawyers, and scholars alike to devote ourselves to doctrine, and on all of those who write about the law to take doctrine seriously. I am trying my best to answer the call. And so I will conclude with an observation that was entirely ignored in Friday’s presentations ― except prof. Grammond’s.

The web 2.0, and especially the blogs, are already a part of the doctrinal conversations, and will be an ever more important one in the years to come. Justice Stratas not only mentioned a couple of bloggers (specifically, Paul Daly and yours truly, for which I am very grateful to him) as examples of legal writers who take doctrine seriously, but also kindly commented on my post about his lecture. This sort of exchange was simply impossible until a few years ago, and I suspect that, for many, it still seems inconceivable. But I am hopeful, and pretty confident, that in time it will no longer seem so. What I’m trying to say is not, of course, that anyone should read or comment on what I write (though it’s nice when that happens). It’s that if doctrine and doctrine are to flourish in the 21st century, they will need to remain open to new forms, and that it will not do to ignore these new forms simply because they are unfamiliar.