No Way to Make Law

The legislative process is being disgracefully abused in Ontario. Constitutional lawyers need to pay attention.

I wanted to write a post about those anti-carbon tax stickers the Ontario government wants to require gas stations to post. I will, eventually, get around to writing that post, I hope. Spoiler alert: I don’t like the idea of the Ontario government telling people what to say. Anyway, before I get around to a post detailing my objections to the substance of this policy, I need to write this one, which is about process by which the anti-carbon tax sticker requirement is being made into law. This process is disgusting, and I think we (by which I mean Canadian lawyers, especially Canadian lawyers interested in the constitution, and other members of the public interested in law and governance) need to be much more upset about it than I think we are.

The anti-carbon tax sticker requirement is set out in sub-clause 2(1) of the Federal Carbon Tax Transparency Act, 2019, Schedule 23 to Bill 100, Protecting What Matters Most Act (Budget Measures), 2019. Yes gentle reader, Schedule 23. Schedule 23 out of 61, that is. A great many things matter in the province of Ontario, one must surmise, and need protecting. The “Explanatory Note”, which provides anyone who can be bothered to read it an overview of the 61 statutes being amended or introduced by Bill 100, alone runs to more than 9000 words, or 13 dense pages of small print. And this is not because it is unduly detailed; on the contrary, in some cases, it contents itself with setting out “some highlights” of the amendments or new legislation being implemented. The actual legislation runs to about 81,000 words ― the length of a PhD dissertation. I think it is a safe bet that no one will ever bother reading that.

Among the threescore statutes concerned, a solid majority have little to do with the budget, as one would, I think, understand this word. There is the Bees Act, for instance, amended “to expand the method of delivering inspectors’ orders” made pursuant to some of its provisions; there is a new Combative Sports Act, 2019, which regulates ― so far as I can tell from its (perhaps inevitably, though I’m not sure) convoluted definitions provisions ― boxing, wrestling, and the like; there is the Courts of Justice Act, amended in relation to the publication of the Ontario Judicial Council’s reports and also to limit some civil jury trial rights; there is new legislation on Crown liability (which has received some harsh criticism); there are important changes to the Juries Act (which have actually come in for some praise); there is, of course, the gas station sticker legislation; and much, much, more, right up to some not doubt vitally important amendments to the Vital Statistics Act.

There is, so far as I can tell, no reason having anything to do with good government why these statutes need to be amended or enacted as a block, as part of a package of budget matters. Stephen Harper once had his “five priorities”, and though these were inevitably much derided, one could claim with a modicum of plausibility that a new government might focus on, say, those five things. Anyone who actually thinks that “combative sports”, carbon tax stickers, vital statistics, and 58 other things are all “what matters most” would be well advised to run, not walk, to the nearest psychiatrist’s office. (I say so without worrying for Ontario psychiatrists; they are unlikely to be burdened with many such visitors.) But of course, the reasons enact this legislative blob likely have nothing to do with good governance.

And this is where it’s time to drop the snark, and get serious ― and constitutional. In abstract separation of powers theory, the legislature is supposed to make law (except in those areas where it has delegated this power to the government, or left it to the courts; these are, of course, significant exceptions). In all the constitutional practice of all Westminster-type systems, so far as I know, the government dominates the legislative agenda. It mostly decides which statutes get in enacted and when. Still, the legislature has a distinctive role to play. For one thing, it is where legislation is debated, and debate might have some symbolic democratic value even if votes are ultimately whipped and their outcome is not in question. And for another, the process of committee study is what allows a detailed consideration of the proposed legislation, and also public submissions on it, and perhaps amendments to improve the proposal.

A government that cared about good governance would value this process. It might ultimately force its bills through, but it would at least be open to the idea that they might be improved, at the level of detail if not of principle, by input from backbenchers, members of the opposition, and members of the civil society. By contrast, a government that doesn’t care about good governance, and is only interested in getting its way as expeditiously as possible will see the legislative process, even one whose outcomes it is ultimately able to control, as a nuisance or, at best, as a needless formality. In either case, it will endeavour to deny the legislature the ability to play any other role than that of an extension of the government itself.

A government of the latter sort has a variety of means at its disposal. The amalgamation of multiple unrelated bills in a giant package, which drastically limits, perhaps to nothing, the extent to which each of them can be separately debated and studied is one of these means. Both Mr. Harper’s government and Justin Trudeau’s have been criticized for using and abusing this technique. Bill 100 is not exactly new in embodying it. But it should not be regarded as any less shocking despite this. By amalgamating 61 mostly disparate pieces of legislation, it prevents the legislature from properly considering them ― including those among them, like the Crown Liability and Proceedings Act, 2019 for example, that will become really substantial and very important statutes in their own right, as well as those, like the carbon tax sticker legislation, that have obvious, and ominous, implications for constitutional rights and freedoms. Bill 100 thus demonstrates nothing short of contempt for both good governance and the distinct constitutional role of the legislature. It is, as I have already said, disgusting and outrageous.

We have become inured to violations of what is sometimes described as legislative due process. As lawyers, we tend inevitably to focus our attention and energy where our expertise can make an obvious difference, in coming up with and then pursuing through the courts arguments about why the legislative end-product might be unconstitutional and therefore not law at all. I think this is understandable, inevitable to some extent, and perhaps even not always a bad thing. Still, by not thinking about the way laws are made, we let those who make them get away with the procedural equivalent of bloody murder.

This cannot go on. Those who take a benign view of legislatures and want to celebrate legislative engagement with constitutional issues need to get to grips with the reality of broken legislatures that act as rubber-stamps for executives that despise them. Those who, like me, are wary of legislatures and insist on the courts having a robust role in enforcing constitutional rights and other restrictions against them must nevertheless pay attention to what the legislatures are up to ― all the more so since we are more likely than our friends to take an appropriately skeptical view of the matter. But skepticism may not become indifference. We, along with the legislatures’ fans, with whom we can make peace for this purpose, need to get serious about making sure that our laws are made in a decent way ― and not in the way Ontario is making its laws right now.

At the Executive’s Pleasure

When Parliament delegates power to agencies, it does so for any number of reasons. At least in theory, Parliament could delegate to a tribunal because it genuinely believes that some particular problem requires expert treatment. Parliament could also delegate as part of a “make or buy” decision, in a Coasian sense: the costs of crafting legislation may be prohibitive, and it may make more sense for Parliament to set out the broad strokes and let the agency fill in the blanks. Or, sometimes problems require solving by an independent body. Tribunals, for example, could play an important role in this regard. For example, determining whether a government action is contrary to human rights law is likely best determined by an impartial adjudicator. In such cases, so the story goes, a so-called “flexible” tribunal is best suited to deal efficiently with these sorts of problems.

But the promise of true independence is not often (and perhaps never) realized, because its existence is determined by the legislature and the executive. This should make us question whether the model of administrative justice we currently employ is even working.

The Ontario Human Rights Tribunal is finding this out the hard way. Recently, it came to light that the tribunal is experiencing a shortage of adjudicators, causing mass delays. The shortage is due, apparently, to the Attorney General’s refusal (or failure) to fill vacancies. The Ministry of the Attorney General oversees the province’s tribunals, including the Ontario Human Rights Tribunal. Lawyers and observers have pointed out the effect that the Attorney General’s delay in appointing adjudicators has on procedural fairness rights, and the general efficiency of the administrative justice system. Some people may view this state of affairs as untenable and inappropriate state of affairs, inconsistent with the spirit of administrative justice. But, to my mind, it is predictable.

Why should we expect this? The Tribunal is a recipient of delegated power, under the Ontario Human Rights Code. But like many legislative delegations, power is also concurrently delegated to the executive. As the Supreme Court said in Ocean Port at para 24, this means that tribunals span the constitutional divide between executive and judicial powers, but are primarily invested with these powers by legislative delegation. They are “created precisely for the purpose of implementing government policy.” There is no constitutional principle requiring structural independence, and it need not matter whether the tribunal is adjudicative or regulatory in character.

The Human Rights Tribunal is no exception from the Supreme Court’s comments in Ocean Port. In this case, the legislation specifies the Governor-in-Council has power to make appointments (s.32(2)). The language presupposes that there “shall” be “members” of the Human Rights Tribunal, but how many is left unsaid, presumably up to executive discretion. Otherwise, the only legislative specification on appointments is that appointments must be made according to a particular process (s.32(3)). Other than that, how much members of the tribunal shall be paid (s.32(4)) and their terms of office (s.32(5)) are matters for Cabinet. Cabinet has a wide degree of discretion to shape the efficiency and responsiveness of the administrative process in the Ontario Human Rights Tribunal, supposedly an independent agency, perhaps the “Crown jewel” of administrative law.

The fact that the legislature—at least arguably—even permits this should make us question the actual degree of independence in the administrative state. In fact, recalcitrance in conducting appointments is just one of the many ways that the executive can undermine the project of administrative justice. It is also perfectly legitimate, should the legislation permit it, for a Cabinet, after an election, to fire all the members of a labour board and to replace those members with persons that it sees fit. And this is just on the topic of appointments. Ron Ellis, in his book Unjust By Design (ably summarized by Professor Daly here) goes into detail about the ways in which executive actors can undermine tribunal independence, in a way that undermines the project of administrative justice. Renewal of tribunal members is one way that the executive can do so, but one can also imagine considerations such as the power of the purse and general administrative reorganization as ways in which the executive can subtly (and not so subtly) control the success and efficiency of the administrative state.

This might all sound bad, but I for one, think that independence is an overrated virtue, and should be calibrated to the strength of the case for independence. There is clearly a case for the Bank of Canada to be independent. But one can imagine closer cases. After all, we live in a system of responsible government and political accountability, and creating islands of power without adequate oversight should be concerning. That said, there is clearly a need for the broader category of “independent agencies” in modern administrative decision-making.

So, how do we balance accountability with independence? I think we need to go to the source: Parliament and the legislatures. One way is to insist that Parliament, if it is to empower the executive with power over these tribunals, legislate more specifically. In the Human Rights Tribunal example, perhaps Parliament could specify a minimum number of adjudicators that must exist at a given time. Or it could delegate the power to the Cabinet to do so, but make it a mandatory requirement. More specificity in delegation, while increasing the costs of legislating, also helps to guide executive action and provide constraints on executive recalcitrance.

The Law Reform Commission, in 1985, recommended that the independent agency be decoupled from Cabinet, and instead be made to report directly to Parliament to remove the spectre of executive interference. This might seem desirable, but I fear it prizes independence over accountability. Having someone able to answer, on a day-to-day basis, for the tribunal activities (and to be accountable in a broader sense for the tribunal’s mandate) is an important accountability mechanism in and of itself. It may make more sense for us to expect Parliament to adequately debate and decide on the limits of executive action in relation to tribunals, and then expect responsible ministers to be accountable for whatever they do in relation to the tribunals.

Overall, there is a risk that tribunals merely exist at the executive’s pleasure. But legislatures themselves have made this choice. It is for them to solve.

Acting Like Grown-Ups

Is there a point to legislating when judges can do it for us?

I would like to elaborate on a point I made in my last post, which discussed arguments at the Supreme Court on Monday about whether the suspension of the declaration of unconstitutionality of the across-the-board criminalization of assisted suicide should be extended. I said that while it is true that, with the decision in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the Supreme Court has laid down the constitutional foundation on which an eventual legal framework for the regulation of assisted suicide will have to be built, it would still be better if elected officials ― and through them, the citizens of Canada ― took responsibility for the building. As I noted, the argument of Joseph Arvay, who made the case against the extension, implied that this was not so ― that the judicial process was sufficient to construct this regulatory framework, with no need for legislative intervention, save perhaps for “bells and whistles.” And indeed, what’s the point of the plodding work of legislation if the courts show us the way to go?

This question does not only arise in the context of assisted suicide. Indeed, as the Supreme Court noted in Carter, the declaration of unconstitutionality that it issued in that case was tailored to its specific facts, making “no pronouncement on other situations where physician-assisted dying may be sought” ― so that legislative action is certainly necessary if these any of these other circumstances are to be encompassed by the regulatory framework. But the issue I have in mind is, if anything, even more pressing in other cases. The legalization of same-sex marriage, more than a decade ago now, is one obvious example. It could ― and would ― have been effected through the judicial process, as court after court struck down opposite-sex definition of marriage. There was no need for Parliament to intervene. But Parliament did intervene, after a notorious bit of political theatre involving a reference to the Supreme Court. Was that a good thing? I think it was.

Probably not because legislation can, as the federal government argued before the Supreme Court on Monday, generate “buy-in” from stakeholders, or broader social acceptability, than a judicial decision. This sounds like an empirical claim, and while we cannot run a controlled experiment to verify it (we cannot enact the same policy by legislation and by judicial decision for the same population and see which generates more social acceptability), we can consider some indirect evidence. For example, in the United States, marriage equality seems to have been easily enough accepted, despite a couple of well-publicized instances of officials defying the Supreme Court’s decision to mandate it. By contrast, President Obama’s healthcare reforms remain deeply controversial, despite having been put in place by legislation. It would at least seem that the way in which a rule comes into being does not foreordain its acceptance or rejection by the citizenry.

Rather, I think that a polity taking responsibility for its laws by enacting them democratically, even if it is spurred to do so by judicial decisions, is a good thing in itself, regardless of the felicitous consequences it does or does produce, or at least the worthy and responsible thing to do. My thinking here is inspired by Jeremy Waldron, and specifically by an argument he makes in his paper called “How Law Protects Dignity.” Building on Lon Fuller’s idea that rule-based governance only makes sense if one regards human beings as responsible and capable of self-direction ― as endowed, indeed, with dignity ―, Waldron writes that

legal systems … work by using, rather than short-circuiting, the agency of ordinary human individuals. They count on people’s capacities for practical understanding, for self-control, for self-monitoring and modulation of their own behaviour in relation to norms that they can grasp and understand. (7)

However,

[e]ven when the self-application of general norms is not possible and institutional determination is necessary, either because of disputes about application or because application inherently requires an official determination, still the particular orders that are eventually issued at law look towards self-application. (7)

People ordered to pay damages tend to pay up without the bailiffs seizing their property; even convicted criminals are often allowed to show up to serve their sentence at a pre-determined date without being forcibly brought to prison by the police. Prof. Waldron concludes that

[t]he pervasive emphasis on self-application is … definitive of law, differentiating it sharply from systems of rule that work primarily by manipulating, terrorizing or galvanizing behavior. And as Fuller recognizes, it represents a decisive commitment by law to the dignity of the human individual. (8)

Conversely, though, the dignified thing to do for a person is to engage in self-application of the law, instead of waiting to be physically coerced into compliance.

Prof. Waldron writes about the application of law to individuals. And he cautions elsewhere about the potential problems that can arise if we start applying dignitarian ideas to groups, especially to groups such as nations and states. Still, I think that it makes sense to transpose his ideas about the self-application of the law to the level of political communities.

This transposition goes something like this. Constitutional law is the law that binds the citizens of a polity in their collective political action. And, like other forms of law, it counts in the first instance on the people and, especially, the political actors application its rules to themselves, which is why I get so exercised when they do not. However, perhaps even than with other areas of the law, constitutional law is subject to disputes about its application. As with other areas of the law, courts are often called upon to settle these disputes. But it remains the case that, as with other areas of the law, self-application matters even in the realm of compliance with specific court orders. A community’s self-application of constitutional judicial decisions can take many forms ― and the enactment of legislation that implements judicial decisions, even if it is not strictly speaking necessary, is one of them. It is the political equivalent of a judgment debtor writing a cheque to his erstwhile adversary. It is the dignified thing to do.

Or think of it, if you will, a sign of acting like an adult, of doing what one has to do, instead of having others do things for you and to you. Even responsible adults sometimes have to be reminded of their obligations, and they might not always be as graceful as one might wish in complying with them. Still, it is a sign of maturity and responsibility when they do end up complying with them on their own, instead of being dragged kicking and screaming, like an unruly child might be. Our polity does not always live up to this ideal. We often let provisions declared unconstitutional remain on the books, for instance. (The prohibition on prisoners voting, struck down in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, but still a part of the Canada Elections Act (as par. 4(c)), is just one example.) But it is ironic and sad when, as was the case on Monday, defenders of individual rights argue that we can freely dispense with the effort of making good on our constitutional commitment to respect them because the judges can do the work for us.

Portalis versus Bentham (Part I)

A couple of years ago, I wrote about Jeremy Bentham’s pamphlet “Law as It Is, And as It Is Said to Be,” also (or better) known as “Truth versus Ashurst” (available here, at p. 145), most famous ― or infamous ― for its “dog law” diatribe against the common law. In the last part of the essay, Bentham called for the turning of “what there is good of common law … into such that “what is common in both to every class of persons were put into one great book (it need not be a very great one) and what is particular to this and that class were made into so many little books,” (149) written in simple, accessible terms the contents of which everyone would learn at school and at church. The countries that have taken Bentham’s advice and codified their law, however, found that this was not enough to “deliver [them] out of the clutches of the harpies of the law.” (150) But then, unlike Bentham, they probably did not expect that it would have any such effect.

Jean-Étienne-Marie Portalis, one of main drafters of the French Civil Code (a.k.a. the Code Napoléon), took a rather more realistic view of what his and his colleagues’ work would accomplish for simplifying the law and making it more accessible. He also had a much more sophisticated view than Bentham ― or those who followed Bentham in deriding “judge-made” law ― had of the judicial role in developing and expounding the law. He is not, I think, well known at all in English-speaking world, so it is worth presenting some of the ideas he develops in the “Preliminary Address on the First Draft of the Civil Code” which he wrote and delivered on behalf of his co-authors. (The original French version is available here, by the way, and an explanatory note, here; and kudos to the federal Department of Justice for having put it online ― though I’ll use my own translation, in what follows, and not the government’s. Google Books also has a freely-accessible volume in which the address is printed along with other materials relative to Portalis’s work on the Civil Code.)

In this post, I will cover some of Portalis’s views on the role of legislation and that of jurisprudence generally. In a subsequent one, I’ll talk in more detail about his views on adjudication, including those on what for Bentham was the “dog law” problem of case law. I might also have a third post dealing with some of Portalis’s ideas that belong more to the realm of political than that of legal philosophy.

Unlike Bentham, Portalis had a respectful attitude to the past and to the law which it had bequeathed to his generation ― even though he was engaged in the task of reforming this law. “What a task it is,” he exclaimed,

to draft the civil laws for a great people! The work would be beyond human strength, if it consisted in giving to this people entirely new institutions, and if … one disdained taking advantage of the past’s experience, and of that tradition of good sense, of rules and maximes, which came to us, and which forms the spirit of the centuries.

Rather like Bentham, in some moods, Portalis was a conservative, or perhaps a Hayekian avant l’heure, cautioning that “one must be sober of innovation in matters of legislation, because while is possible, in a new institution, to calculate the advantages that theory offers us, it is not possible to know all the drawbacks which only practice can discover,” and going so far as to claim that only geniuses with all-encompassing minds are entitled to “propose changes” to the laws. Most changes that are actually made into law turn out to be failures.

At most, the drafters of a code could try to simplify the law. Yet even that worthy task is a dangerous undertaking, because it runs the danger of “leaving citizens without rules and without guarantees of their greatest interests.” Unlike Bentham, who thought that the law could be kept short, simple, and accessible, Portalis warned that short laws are never enough for growing and complex societies. The fantasies of reducing the law to the size of the Roman Twelve Tables ignore all the subsequent development of Roman law. And it is doubtful that even a simple legal code would be accessible to every person in society.

Moreover, the role of the drafters of a civil code is not to “foresee everything.” Indeed, “wishing to settle and to foresee everything” is a “dangerous temptation,” which Portalis was proud of having avoided. Society, Portalis argued, is too complex for legislation to regulate everything in advance. The legislator’s foresight cannot be all-embracing; it cannot anticipate the growth and changes of society; there are things that we can only learn from experience. Yet

statutes, once drafted, stay as they were written. Men, however, never rest; they always act; and this movement, which never stops, and whose effects are variously modified by the circumstances, throws up at every moment some new combination, some new fact, some new result.

Portalis added that “experience must fill one by one the blanks that we leave. The codes of the peoples are made over time; but, strictly speaking, they are not made.” Again, this is a spirit which, if we are familiar with it at all, we in the English-speaking world mostly associate with Hayek ― presented, in clear terms, 170 years before Law, Legislation and Liberty.

And how is law to be adapted to this incessant movement of human affairs? It is the judges, ultimately, who must do it. Legislation, says Portalis, can only fix the general principles, while “it is the judge and the lawyer who, imbued with the general spirit of the laws, must direct their implementation.” While Bentham thought the very existence of a common law developed ― or, as he claimed, “manufactured” ― by judges a calamity, Portalis thought it an inextricable part of law-based government. (Portalis uses the expression “nations policées,”which the federal government’s translation renders by “civilized nations,” but I don’t think that the emphasis is on civilization so much as on “a government of laws, not of men,” or at least “rule by law” is not “rule of law”; Portalis contrasts the nations he has in mind with Turkey, which was not so much uncivilized as ― in his telling anyway ― lawless.) In polities where the law prevails,

there emerges, beside the sanctuary of statutes, and under the legislator’s watch, a store of maxims, decisions, and doctrine, which works itself pure every day through practice and the clash of judicial debates, which always increases with all acquired knowledge, and which has always been considered to be the true supplement of legislation.

Portalis adds, later on, that even though the legislature must “keep watch over the case law,” and can correct it, it is necessary for case law to exist.

The idea of the law working itself pure is, of course a familiar one to common lawyers, or at least to the sort of people whom others, more cynically minded, might see as common law romantics. It is striking to see it expressed, in those very terms (Portalis uses the word “s’épure“), by the great French codifier. But then, it’s not exactly a new observation that it sometimes by looking at the thoughts and the customs of others that we learn more about our own, and perhaps even come to appreciate them in new ― or in old but forgotten ― ways.

UPDATE: I decided to do some extra research after having hit the “publish” button, and came across an article by Michel Morin called “Portalis c. Bentham ? Les objectifs assignés à la codification du droit civil et du droit pénal en France, en Angleterre et au Canada.” I haven’t read it yet (I will before writing my next post on Portalis), but it seems very interesting. Most importantly, however, I wanted to acknowledge having been beaten to this post’s title ― and plead guilty to haste, but not to copying.

Precedent and Democracy

“Long-standing” precedent is generally regarded as more authoritative than one of recent vintage. But there is reason to question that assumption, too. The more ancient a rule, the more likely it is that the reasons that made it sensible or good (whatever one’s criteria for the goodness of legal rules!) at the time it crystallized or was laid down no longer hold true. In the extreme case, we are left with the situation that Oliver Wendell Holmes famously decried in “The Path of the Law,” 10 Harv. L. Rev. 457 (1897):

[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

So which sort of precedent deserves greater deference ― old or new? One consideration that tends to be missing from the debates about the authoritativeness of precedent ― even though it is a popular argument in the broader debate about the authoritativeness and legitimacy of “judge-made” (or, to borrow a less loaded term from Lon Fuller, “adjudicative”) law ― is legislative acquiescence.

It is often said that adjudicative law is democratically legitimate because, even though the courts in whose decisions it is set out are not in a meaningful sense democratic, legislatures could change the rules of adjudicative law that they do not like. Their failure to act is regarded as a sign of consent to the rules set out by courts, a democratic confirmation, albeit a tacit one, of the suitability of these rules for the community. Now, the acquiescence thesis does not strike me as entirely plausible, because the mass of case law is such that legislatures seem to me not very likely to be aware of all of its developments, still less to have the opportunity to respond to them in a timely fashion. But there is at least some truth to it, even if not enough to make it the conclusive argument for the legitimacy of adjudicative law its many proponents think it.

If we accept the acquiescence thesis, it would seem that long-standing precedents do have more authority than recent ones. The older a precedent, the more plausible the claim that the legislature has acquiesced to it.  The longer a precedent has been around, and especially the more subsequent judicial decisions have relied on it (admittedly, not necessarily a perfectly correlated fact), the more likely it seems that the legislature will become aware of it. People who stand to be affected by it and who are unhappy about the situation will, presumably, at least try to interest the legislature in their plight. And, given enough time, the legislature might respond.

But now, consider a somewhat stronger version of the acquiescence thesis. This stronger version holds that legislatures do not merely acquiesce to the rules of adjudicative law, but actually, albeit again implicitly, delegate rule-making responsibilities to courts, in more or less the same way  as they delegate such responsibilities to the executive branch of government. Again, I do not find this an entirely persuasive claim; I’m not sure that legislative silence on a certain point can really be taken as an invitation for the courts to deal with it rather than a merely lack of attention or even a deliberate decision not to regulate. Still, again, the delegation thesis is at least sometimes true. Legislatures do enact very general, even vague, statutes which they expect the courts to elaborate into more detailed regulatory schemes. And perhaps legislatures have in fact a more general expectation that if a problem arises with the law, the courts will deal with it ― it is hard to tell.

But if, or to the extent, that the delegation thesis is true, the courts should be quite proactive in responding to changing social conditions. They should then also be more suspicious of, rather than more deferential to, older precedents. The reasons that justified the precedent may have disappeared with the changes in society, the growth of our knowledge (scientific, economic, etc.), or even the development of other areas of the law.

Note, by the way, that the acquiescence and the delegation thesis are actually very close. The latter is only a mildly stronger version of the former. Indeed the delegation thesis depends on the acquiescence thesis for whatever normative validity it might have. If the legislature is not actually in a position to review and either consent to or revise adjudicative law, then it seems quite wrong for it to delegate legislative power to courts. (Though it might still be wrong for it do it even if the acquiescence thesis holds ― a point for a separate post, perhaps.) The difference between acquiescence and delegation seems to be only a matter of perspective: does the legislature consider the work of courts beforehand or retrospectively? In fact, to the extent the legislature does consider adjudicative law at all, it seems plausible that it does both, looking at what courts have done on an issue in the past and at what they might do in the future.

And yet, when it comes to the effect of time on authority of a precedent, the acquiescence and the delegation thesis seem to suggest opposite conclusions. I am not sure what to make of all this.

Bad Poetry

“A statute is written to entrap meaning, a poem to escape it.” So writes Hillary Mantel in Bring Up the Bodies. That’s true ― normally. But some statutes are in fact written to escape meaning rather than to capture it. They are usually bad statutes, and often bad poetry. What was first mooted as the Charter of Secularism, then became the Charter of Québec Values, and has now become Bill no. 60: Charter affirming the values of State secularism and religious neutrality and equality between women and men, and providing a framework for accommodation requests ― which, following André Pratte, I will from now on refer to, for brevity and clarity’s sake, as the Charter of Shame ― is a case in point.

I have criticized the Charter of Shame repeatedly (my posts on its various versions are collected here), arguing that it was unjust, illiberal, discriminatory, and indeed reminiscent of some (early) Nazi laws. All of these criticisms remain in force. The bill that Bernard Drainville finally presented yesterday differs only in minor ways from the proposals made public a couple of months ago. But having the text of the bill (a pdf document is available here) makes it possible to examine not only the substance but the form which the PQ’s xenophobia has taken.

The bill’s very first clause is a muddle:

In the pursuit of its mission, a public body must remain neutral in religious matters and reflect the secular nature of the State, while making allowance, if applicable, for the emblematic and toponymic elements of Québec’s cultural heritage that testify to its history.

But the real question, all long, has been what it means to “remain neutral in religious matters.” Does it, for instance, mean not having town council meetings open with prayers? What if the prayer, as the Québec Court of Appeal has held, is not really a religious exercise but an element of Québec’s cultural heritage? Can a prayer really be that? The bill does nothing to answer these questions ― it is not meant to.

Consider next the Charter of Shame’s most discussed and most controversial provision, the ban on public employees wearing religious symbols. Mr. Drainville used little drawings to explain that it is meant to apply to the Muslim veil or the yarmulke, as well to large crosses,  but not to  small crosses, or crescent or star of David pendants. But a bill cannot use pitcograms ― it has to find a verbal formula to convey meaning. They say that an image is worth a thousand words, but clause 5 of the Charter of Shame makes do with just 33:

In the exercise of their functions, personnel members of public bodies must not wear objects such as headgear, clothing, jewelry or other adornments which, by their conspicuous nature, overtly indicate a religious affiliation.

What meaning does it convey though? Does a hijab have a “conspicuous nature”? Perhaps to Mr. Drainville it does. To those less fearful of people who look differently from themselves, it might not. To an Islamist fanatic, it is not the hijab but an uncovered head that is conspicuous. A court called upon to interpret this provision will not adopt a fanatic’s viewpoint ― but must it adopt Mr. Drainville’s? Conversely, a small cross of the sort that many Christians surely “overtly indicates a religious affiliation,” and ― depending on just how it is worn ― it can easily be visible. Who says it is not conspicuous?

Another well-publicized requirement of the Charter of Shame is the ban on full face veils that applies both to public employees and to those receiving public services. But does it? Clause 7 provides that “[p]ersons must ordinarily have their face uncovered when receiving services from personnel members of public bodies” (emphasis mine), and its second paragraph specifically contemplates the possibility of “accommodation.” Presumably, Mr. Drainville is not quite heartless enough to throw niqab-wearing women out of emergency rooms, but reading this bill, we can hardly tell.

And so it goes on, from fudge to equivocation to understatement. Will the obligations imposed by the Charter of Shame apply to those in the private sector who do business with the government? If the government so decides if “warranted by the circumstances” (clause 10). What will happen to employees who refuse to take off a religious symbol? They’ll get a talking to (clause 14). And what then? Will they be fired? Silence.

It is a staple of formal accounts of the Rule of Law that making law public is likely to make it, if not substantively better, then at least less bad, because legislators do not like to make their bad intentions clear. Yet we know that this is not always so; openly iniquitous laws are sometimes enacted. But it is true often enough. And so with the Charter of Shame: it is iniquitous enough, and yet in many ways it dares not proclaim the discrimination it works openly.

It is indeed a statute written to escape its own meaning. It is poetry, poetry of the worst kind, poetry that gives the Vogons’ a run for its money. It must not become law.

To Track or Not to Track?

There was an interesting article in the New York Times this weekend about the brewing fight around “do not track” features of internet browsers (such as Firefox or Internet Explorer) that are meant to tell websites visited by the user who has enabled the features not to collect information about the user’s activity for the purposes of online advertising. Here’s a concrete example that makes sense of the jargon. A friend recently asked me to look at a camera she was considering buying, so I checked it out on Amazon. Thereafter, for days on end, I was being served with ads for this and similar cameras on any number of websites I visited. Amazon had recorded my visit, concluded (wrongly, as it happens) that I was considering buying the camera in question, transmitted the information to advertisers, and their algorithms targeted me for camera ads. I found the experience a bit creepy, and I’m not the only one. Hence the appearance of the “do not track” functionalities: if I had been using a browser with a “do not track feature”, this would presumably not have happened.

Advertisers, of course, are not happy about “do not track.” Tracking our online activities allows them to target very specific ads at us, ads for stuff we have some likelihood of being actually interested in. As the Times explains,

[t]he advent of Do Not Track threatens the barter system wherein consumers allow sites and third-party ad networks to collect information about their online activities in exchange for open access to maps, e-mail, games, music, social networks and whatnot. Marketers have been fighting to preserve this arrangement, saying that collecting consumer data powers effective advertising tailored to a user’s tastes. In turn, according to this argument, those tailored ads enable smaller sites to thrive and provide rich content.

The Times reports that advertisers have been fighting the attempts of an NGO called the W3C (for “World Wide Web Consortium”) to develop standards for “do not track” features. They have also publicly attacked Microsoft for its plans to make “do not track” a default (albeit changeable) setting on the next version of Internet Explorer. And members of the U.S. Senate are getting into the fight as well. Some are questioning the involvement of an agency of the US government, the Federal Trade Commission, with W3C’s efforts, while others seem to side against the advertisers.

The reason I am writing about this is that this may be another example of the development of new rules happening before our eyes, and it gives us another opportunity to reflect on the various mechanisms by which social and legal rules emerge and interact, as well as on the way our normative systems assimilate technological development. (Some of my previous posts on these topics are here, here, and here.)

W3C wants to develop rules―not legally binding rules of course, but a sort of social norm which it hopes will be widely adopted―regulating the use of “do not track” features. But as with any would-be rule-makers, a number of questions arise. The two big ones are ‘what legitimacy does it have?’ and ‘is it competent?’ As the Times reports, some advertisers are, in fact raising the question of W3C’s competence, claiming the matter is “entirely outside their area of expertise.” This is self-serving of course.  W3C asserts that it “bring[s] diverse stake-holders together, under a clear and effective consensus-based process,” but that’s self-serving too, not to mention wishy-washy. And of course a claim can be both self-serving and true.

If not W3C, who should be making rules about “do not track”? Surely not advertisers’ trade groups? What about legislatures? In theory, legislatures possess democratic legitimacy, and also have the resources to find out a great deal about social problems and the best ways to solve them. But in practice, it is not clear that they are really able and, especially, willing to put these resources to good use. Especially on a somewhat technical problem like this, where the interests on one side (that of the advertisers) are concentrated while those on the other (the privacy of consumers) are diffused, legislatures are vulnerable to capture by interest groups. But even quite apart from that problem, technology moves faster than the legislative process, so legislation is likely to come too late, and not to be adapted to the (rapidly evolving) needs of the internet universe. And as for legitimacy, given the global impact of the rules at issue, what is, actually, the legitimacy of the U.S. Congress―or, say, the European Parliament―as a rule-maker?

If legislatures do not act, there are still other possibilities. One is that the courts will somehow get involved. I’m not sure what form lawsuits related to “do not track” might take―what cause of action anyone involved might have against anyone else. Perhaps “do not track” users might sue websites that refuse to comply with their preferences. Perhaps websites will make the use of tracking a condition of visiting them, and sue those who try to avoid it. I’m not sure how that might work, but I am pretty confident that lawyers more creative than I will think of something, and force the courts to step in. But, as Lon Fuller argued, courts aren’t good at managing complex policy problems which concern the interests of multiple parties, not all of them involved in litigation. And as I wrote before, courts might be especially bad at dealing with emerging technologies.

A final possibility is that nobody makes any rules at all, and we just wait until some rules evolve because behaviours converge on them. F.A. Hayek would probably say that this is the way to go, and sometimes it is. As I hope my discussion of the severe limitations of various rule-making fora shows, making rules is a fraught enterprise, which is likely to go badly wrong due to lack of knowledge if not capture by special interests. But sometimes it doesn’t make sense to wait for rules to grow―there are cases where having a rule is much more important than having a good rule (what side of the road to drive on is a classic example). The danger in the case of “do not track” might be an arms race between browser-makers striving to give users the ability to avoid targeted ads, or indeed any ads at all, and advertisers (and content providers) striving to throw them at users.  Pace the president of the Federal Trade Commission, whom the Times quotes as being rather optimistic about this prospect, it might actually be a bad thing, if the “barter system” that sustains the Internet as we know it is be caught in the crossfire.

Once again, I have no answers, only questions. Indeed my knowledge of the internet is too rudimentary for me to have answers. But I think what I know of legal philosophy allows me to ask some important questions.

I apologize, however, for doing it at such length.