The Public Good Trap

Why thinking that the public good is the measure of law and politics is a mistake

The rhetoric of public good has always been part of legal discourse; even scholars who are, one might think, hard-boiled legal positivists are surprisingly sympathetic to the idea that law inherently serves the public interest, as are, of course, the positivists’ critics and opponents. Mark Elliott and Robert Thomas capture this sentiment in their textbook Public Law, which I have just finished reading as I prepare to teach in the United Kingdom starting next month. Professors Elliott and Thomas write:

In a democracy, citizens elect a government to protect, advance, and serve the public interest. In normative terms, democratic governance presupposes that government acts as the servant—rather than the master—of the people. There are two dimensions to this notion that good governance means (among other things) governing in the public interest. The positive dimension is that government should make decisions that advance the public good. … Governing in the public interest has a second, negative dimension. Government must not act in a self-interested manner. (Ca. 401; paragraph breaks removed; emphasis in the original)

I suspect that most people, of all kinds of political and ideological persuasions would view this as correct and indeed uncontroversial. But for my part I do not, and indeed I think that the things that Professors Elliott and Thomas themselves say, and the examples they use, expose the difficulties with this argument.

Two things, though, before I go further. First, to be very clear, I do not mean to pick on Professors Elliott and Thomas. I just happened to be reading their book (and I might have more to say about it soon), and thought that it was representative of what strikes me as a pervasive problem with the way people think and talk about these issues. And second, I think that Professors Elliott and Thomas are right to say, just before the passage quoted above, that “[g]overnments have no legitimate interests of their own, and nor, when acting in their official capacities, do the individuals who lead and work in governments”. This might be a more controversial thing to say than the claim that government must serve the public interest, but if it is true it must, then I don’t think there is any room for a raison d’État independent of the public interest.

But what about the main claim? Why wouldn’t governments need to work in the public interest? How, indeed, could it be otherwise? Well, consider what Professors Elliott and Thomas also say by way of explaining the “positive dimension” of the public interest:

The public good is a highly contestable notion. Concepts such as good governance and the public good are not objective yardsticks against which the legitimacy of governmental action can be determined. … In a democracy, the ultimate question is not whether the government is acting in an objectively correct way (whatever that might mean); rather, it is whether it is governing in a manner that is regarded as broadly acceptable by the public. Elections are the pre-eminent means of doing this. … There are [in addition] a number of different ways that enable or require government to take account of the views and wishes of the people: the need to obtain parliamentary approval of legislative proposals; submission to scrutiny by Parliament, the media, courts, tribunals, and ombudsmen; and public participation in government decision-making (eg by consulting with the public). (Ca. 401)

So: citizens elect governments to serve the public interest, but we can’t actually tell what the public interest is, and the only measure we have is the outcomes of elections and other processes, largely (except, arguably, for scrutiny by courts and tribunals) political ones too. And when you start factoring in political ignorance, the role of special interests in non-electoral accountability mechanisms (and, to a lesser extent, in elections too), the difficulty of interpreting electoral outcomes… the idea that any of it has anything to do with a discernable set of parameters we might usefully describe as the public interest disappears like a snowflake in a blizzard.

The example Professors Elliott and Thomas give makes my case, not theirs. According to them,

it is a relatively uncontentious proposition that, when using public resources—especially public money—government should, so far as possible, seek to attain value for money. Government is largely funded by the public through taxation. Accordingly, the public can, in turn, rightfully expect that government should not waste its money. (Ca. 401)

I think it’s true that, if you just start asking people in the street whether government should “seek to attain value for money”, they will say that of course it should. The trouble is that, if you start asking some follow-up questions, it will quickly turn out that people don’t really mean it. Many people believe, for instance, that government should only, or at least preferentially, do business with suppliers from its own country. The entire point of such policies, of course, is to override the concern for getting value for public money ― they wouldn’t be necessary otherwise. Others (or perhaps the same people) believe that governments should allow, and perhaps even encourage, their employees to form unions and engage in collective bargaining. Again, the point of such policies is to override the preference for value for money: unionized labour is definitionally more expensive than its non-unionized counterpart.

For my purposes here, it doesn’t matter that such preferences are wrongheaded, although they certainly are. What matters is that, wrong though they are, people hold such preferences. As a result, even something as seemingly uncontroversial as the idea that government should get the best bang for the taxpayer buck turns out not to be consistent with how many people understand the public interest ― in the polling booth. In words, they will keep complaining about government inefficiency. In other words, it’s not just that different people and different groups can’t agree on what the public good is and we have no way of extracting any real meaning from the procedures they use to resolve their disagreements; it’s also that a single individual is quite likely not to have any sort of workable view of what the public interest is or requires.

For similar reasons, the “negative dimension” of the public good as articulated by Professors Elliott and Thomas fares no better. They argue that “it would be improper for an elected public body—whether the UK central government, a devolved government, or a local authority—to elevate political gain above the public good”. (Ca. 401; emphasis in the original) But if there is no such thing as the public good, objectively understood, then how can we sensibly claim that a public authority is elevating political gain above this non-existent yardstick? Worse, if the public good is to be assessed based in part on electoral outcomes, then doesn’t it follow that the pursuit of electoral success and the pursuit of the public good are one and the same?

What follows from this? Some would say that we should accept revelation and authority as our guides to the meaning of the common good, as a solution to the empty proceduralism of which they would no doubt see the argument of Professors Elliott and Thomas as representative. But such people have no means of persuading anyone who does not already trust their revelation and their authorities. Many of them recognize this and have given up on persuasion entirely. Like Lenin, they think that a revolutionary vanguard would be warranted in imposing their vision on the rest of us.

If we are disinclined to Leninism, I would suggest that we should shift our expectations and ambitions, for politics, for public law, and indeed for law tout court. Instead of looking to them to produce or uphold the public good, we ought to focus on how they can protect private rights, as the US Declaration of Independence suggests.

This is not an unambitious vision for politics and law, by the way. It is difficult enough to agree on a list of such rights that public institutions can and should enforce, and to work out the mechanisms for enforcing them without compromising other rights in the process. What is, for instance, the extent of property rights? Should it be defined entirely through the political process or should we make property rights judicially enforceable? If we set up police forces to (among other things) protect property, how do we prevent them from engaging in unjustified violence? Those are difficult enough questions, and the pursuit of even more intractable ones under the banner of the public good largely detracts us from paying attention to them.

Justice Beetz’s Unity of Public Law

What an old SCC case tells us about the unity of public law

Much has been written about the so-called “unity of public law”: the extent to which various fields of public law draw upon the same values and inspiration. If this sounds onerously academic, it is not. In fact, it is a unified theory of public law that justifies Doré, the ill-regarded case that attempts to equate judicial review of administrative action with judicial review of administrative determinations of constitutional law. Indeed, as part of the unity of public law, some suggest that administrative law values should not be dismissed, and should be regarded as a rich set of insights that can define the scope of constitutional review. For many, the conceptual bedrock for this idea is the decision in CUPE v New Brunswick, in which the Supreme Court advanced the idea that administrative decision-makers were valuable participants in the system of laws, owed deference and respect. That decision was fortified later, so the story goes, by Baker.

The idea that an ill-defined set of administrative law values—or administrative actors—can define the scope of constitutional review is far from certain. It is the Constitution that is supreme over ordinary law, and if anything, constitutional rights should trump whatever values we can extract from administrative law. This of course assumes that administrative decision-making has any extricable values that underpin it at all. To take the point further, rather than allowing the administrative law tail to wag the constitutional law dog, as in Doré, perhaps the reverse should be true. Whatever the Constitution prescribes should set the minimum standards for administrative decision-making.

An old Supreme Court case takes an admirable crack at defining this relationship. As far as I know, Syndicat des employés de production du Québec v CLRB, [1984] 2 SCR 412 is not a case that appears on most administrative law syllabi in Canada, nor is it a case that appears in the pantheon of administrative law classics. But a comment in the case from Beetz J, for the Court, suggests that the unity of public law should not be a one-way ratchet—it should not require the weakening of constitutional norms to suit the prerogative of administrative decision-making.

I need not address the facts of the case, except to note that at issue were two conclusions drawn by the Canadian Labour Relations Board in the context of a case involving the CBC. The first found that employees of the CBC were in an unlawful strike position because they refused to work overtime. The second was remedial in nature, ordering the union representing the employees and the CBC to arbitration.

The legal context at the time, of course, distinguished between errors of law going to jurisdiction, which were reviewed de novo by a judicial review court, and errors of law that were made in the jurisdiction of the decision-maker, reviewed on a highly deferential standard of patent unreasonableness. The Board attempted to argue, outside of these standards, that its remedial order was “not unreasonable or wrongful” [440]. But the Court concluded that the question of remedy was a question of jurisdiction, not one to which the patent unreasonableness standard applies [443]. For the Court, this question went to the basic power and authority of the Board.

Beetz J analogized the authority of the courts to review for these jurisdictional issues to the same authority that undergirds constitutional review. In a passage that should receive far more attention, Beetz J said:

                Furthermore, I do not see why different rules would be applied in this regard depending onwhether it concerns judicial review of an administrative or quasi-judicial jurisdiction, or judicial review of legislative authority over constitutional matters. When the courts of law have to rule on the validity of a statute, so far as I know they do not ask whether Parliament or the legislature has expressly or by implication given ss. 91  and 92  of the Constitution Act, 1867  an interpretation which is not patently unreasonable. Why would they act differently in the case of judicial review of the jurisdiction of administrative tribunals? The power of review of the courts of law has the same historic basis in both cases, and in both cases it relates to the same principles, the supremacy of the Constitution or of the law, of which the courts are the guardians.

This statement tells us much about how judicial review should operate today, and just how far off the track we have gotten.

Consider, first, the question of jurisdiction. It is true that the Syndicat case focuses on the now-retired metaphysical difference between a “patently unreasonable error” and “an error of jurisdiction.” As the Supreme Court noted in the recent CHRC case, the scope of “jurisdictional error” is narrowing, and for good reason. As Stratas JA outlined in great detail in last year’s Access Copyright case, when courts review administrative determinations of law, there is no principled reason to draw a distinction between errors of law going to jurisdiction or errors of law going to substantive statutory provisions. Administrative decision-makers are creatures of statute, and any error of interpretation should be reviewable in the same way, subject to the standard of review set by the governing legislature. Put this way, everything could be an error of jurisdiction—or as Justice Scalia put it, “statutory authority”—because a decision by an agency that misinterprets a provisions of its enabling legislation, jurisdiction or not, is an error of law.

If that is true, what Beetz J says is quite insightful. Rather than suggesting that the Constitution must adapt to administrative law values, he suggests that administrative review should adopt to constitutional standards, because review of the legislation for its constitutionality and review of administrative decisions engage the same judicial review function. This is an eminently reasonable position in a number of ways. First, it does not lessen the force of the Constitution in the administrative law context. While Beetz J was obviously talking about the division of powers, one of the most important critiques of Doré is the chance that it invites two definitions of constitutional rights, with a weaker one subordinate to a judicial policy of deference in administrative law. But, if a court views its power as deriving from the Constitution in either case, it should “not act differently” in the administrative law context. The same rigorous constitutional standards should apply in either case.

Second, Beetz J is aware of the maxim that legislatures should not be able to do indirectly what they cannot do directly. There is a clear incentives problem with allowing a legislature to escape judicial scrutiny under the Constitution by simply delegating powers to agencies. A less intensive standard of review for administrative decision-makers compared to legislatures would incentivize this delegation.  For obvious reasons, the legislature should not be able to escape the most intensive constitutional scrutiny available by simply enabling someone else.

Finally, it consistently interprets the role of the courts across institutional contexts. If it is true that the Charter made the courts “guardians of the Constitution,” as so many argue it did in the context of constitutional review, why should that role be weaker in the context of administrative decision-making?

What is remarkable about Syndicat, in terms of the unity of public law, is that it comes after CUPE. CUPE is regarded as some Newtonian moment of discovery, in which courts finally shared the mantle of the rule of law with agencies. Syndicat suggests that CUPE was not as dramatic as some say it is. In fact, it suggests that at least one enterprising judge believed that CUPE did not alter the traditional hierarchy of power between courts and agencies. It is the Constitution that governs this entire relationship, and for Beetz J, the Constitution prescribed the same standards of review in both settings. Why we would sacrifice this fundamental bedrock for the rarefied values of the technocracy is unclear.

Taking Doctrine Seriously

Some thoughts on a most interesting lecture by Justice David Stratas

Last week, at the Canadian Constitution Foundation’s Law and Freedom 2016 conference, Justice David Stratas of the Federal Court of Appeal delivered a fascinating lecture called “The Decline of Legal Doctrine.” I highly recommend it. I won’t summarize it beyond saying that Justice Stratas’ thesis is that judges, lawyers, and academics are all guilty of a lack of interest in legal doctrine and tend to see the law as largely result oriented, which diminishes the legitimacy of judicial decision-making and risks leaving us at the mercy of dangerous prevailing opinions should crisis strike. There is simply too much there, and it is too important, for a summary to be useful. I will share a few reflections of my own below. Here it is.

Before I get to my comments, I want to say that I am, of course, very flattered at being mentioned as one of the exceptions to the general lack of interest in legal doctrine. Indeed, I am flattered that Justice Stratas should read my blog at all. I hope, however, that my gratitude for Justice Stratas’ kind words does not bias my views of his lecture.

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Here they are, in a somewhat disjointed form. With one exception, they concern things that Justice Stratas did not say, and which I would love to hear him say more, at some future point, rather than things he did say with which I disagree. They are, in other words, intended not as criticisms, but as questions.

1. Let me start with the word “doctrine” itself. Maybe it’s just me, but I find it a slippery one ― it’s one of those words that lawyers love to use that can mean different things in different contexts, perhaps depending on whether we use them with a definite or an indefinite article, or no article at all, while assuming that everyone knows what we are talking about. A non-lawyer in the audience asked Justice Stratas what the difference between legal “theory” and legal “doctrine” was, but only got a definition of “theory” in response. As best I can though, legal doctrine (no article) is the set of rules and principles that can be derived or inferred from judicial decisions.

Here’s an interesting twist though: later in the Q&A, Justice Stratas spoke of the various types of judges and said that “doctrinal” judges are those who “understand the rules but want to know more about how to use them and these are perhaps reformist people that might want to tweak or modify the rules.” I think that this connection, in practice if not as a matter of definition, between an interest in the rules and their underlying principles on the one hand, and an interest in tweaking them on the other, might be, if not slightly paradoxical, then at least in tension with the need for doctrinal stability of which Justice Stratas spoke so passionately. Does doctrine bear the seeds of its own destruction?

2. Justice Stratas argues that we need stable, coherent, legal doctrine to which lawyers and judges alike are committed because we might not always live in “benign times,” and in a moment of crisis we will be better off if judges decide controversial cases on the basis of stable legal doctrine rather than of what they feel is right or fair in those ominous circumstances. Crises rarely make for clear, even-handed thinking. Legal doctrine is, in other words, a form of pre-commitment that will save us from the siren calls of rights-crushing emergency.

I would like to think that this is true. But is it? Can we think of situations where doctrine has played such a role? And indeed, why do we think that a commitment to legality will be less likely to falter in a time of crisis than a commitment to justice? That, after all, is the underlying premise of the claim that doctrine will save us even if the judges’ sense of right and wrong is swayed by momentary considerations. Again, I would like this to be true, but I wonder if we have reasons to think it is, other than our desire for it to be.

3. Justice Stratas argued that we must devote ourselves to stabilizing legal doctrine, to settling public law doctrine in a comprehensive way ― and that we must do it right away. Tomorrow will be too late. At present, public law is too unsettled ― precedents can be reversed with little apparent explanation, or simply ignored without being reversed. (An aside: one area which Justice Stratas specifically mentioned as illustrating this trend is the courts’ relationship to empirical evidence, and the rule ― which he tied to the Supreme Court’s recent assisted suicide decision, Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, but which actually goes a little further back, to Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 ― that appellate courts should defer to a trial judge’s findings with respect to such evidence. Some of the points he made in criticizing this rule seem to echo ideas I have expressed on this blog, especially here, so I was very glad to learn that Justice Stratas shares these concerns.)

Here’s a question though. If we accept, as I think we should, the mission that Justice Stratas wants us to undertake, what is our departure point? Do we simply take the current state of the law as a given and stop messing with it, on the assumption that it is more important that things be settled than that they be settled right? Or should we, in order to build on solid foundations, go back to first principles to some extent ― at the risk of reversing some more precedents? Are there other potential pitfalls to deciding from first principles? Justice Stratas praised the Supreme Court of the 1980s for its “painstaking,” “scholarly,” and “balanced” approach to Charter cases, in which it had to build doctrine from the ground up ― but I wonder if that is not idealizing things somewhat.

4. Justice Stratas argues that a doctrine-focused approach to judicial decision-making, even in cases of first impression or those involving conflicting lines of authority, can be free from politics, and that the judges’ personal views matter less than people tend to suppose. That is true, as I’ve often said, if we understand politics in a partisan sense or, as Justice Stratas might have meant it, as synonymous with results-oriented reasoning. However, as I’ve also often said, I think that politics, in a much broader sense of ideas about how the state and society as a whole should be organized does matter to judicial decision-making. Justice Stratas speaks of developing legal doctrines in ways that “make sense” ― but it seems to me that legal doctrines make sense in light, among other things, of certain values that they reflect or serve, and that these values can be described as political, in a broad sense.

This is perhaps the only point on which I disagree with Justice Stratas. Though it might be a disagreement about words more than about the underlying realities, I think that the words matter. I worry that complete denials of the political aspects of adjudication come across as overdone, and as a result do not actually help the courts establish their legitimacy.

5. That said, Justice Stratas was right to criticize those ― whether academics, lawyers, students, or journalists ― who think of judicial decisions purely in terms of results and their political implications, real or supposed. (He compared such commentary to “essentially an open-line radio-show comment put in an educated way using highfalutin legal language.”) He was also right to lament judicial decisions that leave room for such interpretations, in particular through their failure to adequately explain, in terms of legal doctrine, the outcomes that they reach.

I wonder, though, what can be done about this very real problem. I’m afraid that judges focusing on the doctrine and explaining their decisions will not be enough. For instance, I don’t think that the Supreme Court’s recent jurisprudence in the area of language rights is half bad, in terms of engaging with doctrinal issues. Yet in December’s Policy Options, a couple of political scientists published a tendentious take-down of this jurisprudence looking at it entirely through the lens of results (which happened to go against language-rights claimants) and, as I have argued in a Policy Options blog post, blithely ignoring the law in the process. In other words, people are liable to misrepresent the courts’ work as results-oriented even when any fair reading of the decisions in question shows that it is not. Dan Kahan et al. wrote about this problem in a fascinating study (about which I blogged for the National Magazine) that found that while legal reasoning tends to be based on legal, rather than (narrowly) political considerations, “our system of justice lacks reliable practices for communicating courts’ neutral resolution of divisive matters.” Lawyers should, no doubt, try to push back against tendentious and uninformed criticisms of the judiciary (though as I have also argued they should do so without misrepresenting all criticism as tendentious or as endangering the Rule of Law!). But is that enough?

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Well, this is more than enough for me. Again, I express my gratitude to Justice Stratas for a fascinating lecture and for his kind words, and I hope that he comes back to this topic in the future. The above questions and quibble notwithstanding, Justice Stratas is right that we need to take legal doctrine seriously, and we owe him for reminding us of this.