scholarship – Double Aspect

Contrarians at the Gates

On responsible scholarship and engagement with heterodox ideas

Professor Newman has posted his own response to the “article” in which Stepan Wood, Meinhard Doelle, and Dayna Scott attempt to besmirch his well-earned reputation as one of Canada’s leading constitutional law scholars. As he says, “it is a serious threat to responsible academic discourse to make mistake-riddled arguments in ways that paint academic interlocutors as personally irresponsible and lacking integrity”, which, as he shows, is what Professors Wood, Doelle, and Scott have done. As he also explains, while his critics purport to be concerned about “responsible scholarship”, their argument is so focused on just one article that he wrote that one cannot but “ask what the goal really was”. I will venture some speculation about the answer to this question.

To be blunt, I think that the goal is to constrain the scope of what may be said by academics writing on politically salient issues, how it can be said, and where. Now, Professors Wood, Doelle, and Scott deny this. They write:

Vigorous debate and disagreement are the lifeblood of academic discourse and the engine for advancement of knowledge. To insist on rigour and fairness in such debate is not to impose “political correctness” on scholars who espouse unpopular views. Nor is it a manifestation of the fragility of a liberal academic establishment unable to handle controversial perspectives. (13)

Of course this is true, as a general proposition. But we need not take on faith the claims of those who would have us believe that they do no more than dispassionately insist on rigour and fairness. We can look at the specifics of their argument, and at the way in which it is framed. Professor Newman has mostly done the former. I shall mostly do the latter.

One striking thing about the Wood, Doelle, and Scott article is that it is not just about “responsible scholarship” as a timeless value, as Professor Newman’s response is. It’s about “responsible scholarship in a crisis” (emphasis mine). This framing is not just a flourish. The entire opening section of the article argues that debates about climate policy are occurring “in the context of an unprecedented crisis”, (2) and that scholarly commentary ― and hence the norms of responsible scholarship ― are especially salient at such times because “[a]ctors in government, civil society and business often appeal to academic expertise to diagnose and resolve crises”. (3)

The norms to which Professors Wood, Doelle, and Scott appeal are not crisis-specific, to be sure (though, as Professor Newman shows, their relevance to their argument is questionable), but this framing is not innocent. It reinforces the dynamic which my colleague Allan Beever decries in his article on “Engagement, Criticism, and the Academic Lawyer”, (2017) 27 New Zealand Universities Law Review 1111. Professor Beever suggests that

academic lawyers, given their subordinate position in the legal system, are all too desperate to believe that they really matter, believing that if they matter that must be in something like the way that judges matter, thereby coming to believe that “dangerous” ideas have to be battled against in the way that they would be were they, say, influencing the decisions of the Supreme Court. (1125)

Of course, if the dangerous ideas are likely to influence the decision of a Supreme Court in a crisis, they are all the more dangerous and must be battled against all the stronger. This is why I say that Professors Wood, Doelle, and Scott are seeking to limit what can be said about politically salient issues: it is the topical nature and valence of Professor Newman’s ideas that trigger their attack. And they make no bones about the fact that they indeed worried about Professor Newman’s ideas influencing the Supreme Court of Canada’s consideration of the constitutionality of the federal carbon tax legislation.

I suspect, moreover, that this “crisis” framing helps explain why Professors Wood, Doelle, and Scott escalate the battle further and attack not only Professor Newman’s “dangerous” ideas but his integrity. His work, they say, “crosses a line that separates distortion and disparagement from constructive scholarly debate” (12) and “does not uphold standards of scrupulous fairness in scholarly research”. (13) It cannot be trusted and should be summarily disregarded. This makes actual scholarly debate unnecessary and indeed impossible ― there’s no point or even meaning in debating a dishonest person.

Yet this is facile and self-serving. Instead of doing the hard work of refuting the arguments they disagree with, Professors Wood, Doelle, and Scott attempt to discredit the person advancing them. This is also, of course, a myopic tactic that can and is bound to be used against scholars who agree with the substantive positions that Professors Wood Doelle, and Scott would defend. Indeed I’m pretty sure that ad hominem attacks on academics have long been more of a “thing” on the political right than on the left, not necessarily because the right is somehow even more immoral than the left, but simply because the academy has always tilted leftwards, making it easier for the right to find targets there. The tilt is growing ever stronger, and as it does so the cost to the political right of attacking not only individual scholars but also entire disciplines and the academy as a whole falls ― there is less and less of a risk of making victims with friendly fire. “Progressive” scholars who make personal discreditation an acceptable way of conducting academic disputes are only helping sharpen the weapons that will be directed at them.

But regardless of political implications, what is certain is that personal discreditation destroys the possibility of genuine scholarly debate bringing truth to light. Such debate requires mutual criticism, but is incompatible with enmity. As Professor Beever writes, “it is important … to distinguish between criticism and hostility. Criticism can be extremely robust, but it always takes its object seriously.” (1125) Professors Wood, Doelle, and Scott don’t want their readers to take the work they attack seriously, and so prove Professor Beever’s point that “[i]n law … hostility all too frequently prevents genuine criticism from occurring”. (1125)

Let me turn now briefly to my claim that Professors Wood, Doelle, and Scott want to limit the manner in which scholarly debate can happen. They chide Professor Newman both for criticizing the work of particular scholars, for example making a point of noting that one of them is “his junior untenured colleague”. (Ironically, especially given Professors Wood, Doelle, and Scott’s concern with distortions, the person in question is no longer Professor Newman’s colleague.) But then they also accuse Professor Newman of “casual generalizations [that] are examples of sloppy research”, (10) because he does not name other scholars who represent the trends against which he inveighs.

You’re damned if you do name specific scholars to criticize ― especially if they are junior colleagues ― and equally damned if you don’t. Now, one might debate how much a scholar should name the names of those he or she criticizes. Professor Beever suggests that this should be done sparingly, and widely held positions should be attacked without singling out individual representatives. I’m not sure I quite agree. But in any case it’s one or the other. Either generalizing is bad, and one should focus on individuals ― but then, it really shouldn’t matter who they are ― or one should be allowed to generalize. (I’ll note that, as a still relatively junior academic, I rather resent the suggestion that I should be treated with kid gloves by my elders and betters, at my institution or anywhere else.)

Besides, there is also something perverse about Professors Wood, Doelle, and Scott attacking the tone of Professor Newman’s article and its alleged lack of fairness to the targets of its criticism in an article that is anything but charitable, and indeed quite unfair, to Professor Newman, as he eloquently shows. Yet this is hardly surprising. There is a consistent asymmetry to tone-policing in the Canadian legal community. Scholars who criticize the received wisdom and its upholders are expected to be on their best behaviour. Those who uphold it are held to no such standard.

Finally, I turn to the question of where scholarly debate can take place. Professors Wood, Doelle, and Scott write that “[a] rigorous peer review process would normally catch most problems like the ones we have identified”, (13) and add, in a footnote, that “[t]he Saskatchewan Law Review failed to reply to inquiries … whether Professor Newman’s article was peer reviewed”. (13) Some of the subsequent Twitter discussion also focused on this issue. Yet to the extent that the implication here is that “responsible scholarship” is peer-reviewed scholarship, this is beside the point.

One issue is that, just like the invocation of crisis and the call for respectful tone, the appeal to the authority of peer review is less innocent than it might seem. As I wrote here, “the peer review process is a bit of a crapshoot” for heterodox ideas. Even when they are well argued, “some reviewers will bristle and see their role as that of gatekeepers preserving scholarship from heresy”. To be sure, as I further pointed out, heterodox scholarship can make it through peer review. But the issue of excessive gate-keeping, often applying double standards, is real enough. To insist that only scholarship that has made it through peer review matters is to load the scales in favour of conformist ideas, which have an easier time overcoming this hurdle.

But the real problem is more fundamental. Peer review simply does not guarantee quality; plenty of rubbish makes it through peer review and gets published, while good ideas get rejected. When Joshua Gans and George Shepherd asked

140 leading economists, including all living winners of the Nobel Prize and John Bates Clark Medal, to describe instances in which journals rejected their papers [they] hit a nerve. More than 60 percent responded, many with several blistering pages. (165)

It would be interesting to see a similar study in law, but I rather doubt that peer review in our discipline does much better.

Conversely, the fact that an idea did not go through peer review ― for example because it was published in an American journal, or even on a blog ― does not mean that it is bad. Readers can decide for themselves. A lawyer, or at least an expert in a given field, let alone a judge assisted by a platoon of clerks, can always check for him- or herself whether an argument holds up ― whether the sources it cites support it, whether it is missing something. If one wants to criticize the defects of an argument, one should identify them, instead of lazily musing about whether the argument has been peer reviewed.

This, ultimately, is a big part of what the matter comes down to: faced with deep and seemingly consequential disagreements, are we willing to do the hard work of explaining why our opponents are misguided and mistaken? Or are we content to discredit or tone-police them, or say that they didn’t published their ideas in the right format or in the right venue, so as to avoid substantive engagement?

But the issue is not limited to the avoidance of hard work. In a crisis it is tempting to take shortcuts. The lure of sophistry is too powerful to resist. If ad hominem attacks, tone policing, and arguments from authority can help defeat the danger that wrong ideas, or wrong people, will influence decision-makers, why not resort to them? The contrarians are at the gates ― this is no time for old-fashioned notions of probity.

Yet probity, as well as curiosity about ideas one disagrees with, and friendliness to those who expound them, are the perennial values that no crisis can put to rest. Responsible scholars, tear down these walls! Open these gates!

On Responsible Scholarship

A Reply to Stepan Wood, Meinhard Doelle, and Dayna Scott

Dwight Newman, QC, BA, JD, BCL, MPhil, DPhil, Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan

Accusations of irresponsible scholarship are a serious matter, and they have an even graver dimension when they give the appearance of being framed and timed so as to attempt to interfere with academic contributions to a major public debate. In this post, I address a recent paper by Stepan Wood, Meinhard Doelle, and Dayna Scott attempting to challenge my well-known carbon tax article. I must express serious concerns with their characterization of my article. I must also express that the publication of their paper threatens academic discourse through the intimidating effects it could have on scholars.

I explain these points here and am grateful for the opportunity to be able to publish a response promptly. The Dalhousie Law Journal declined to grant me the opportunity to publish a reply alongside the paper in their forthcoming issue.

In 2019, I participated in what was pitched to me as a “duelling-articles debate” in the Saskatchewan Law Review after the Saskatchewan Court of Appeal’s decision in the carbon tax case. For my contribution, I published a 6000-word article arguing that the carbon tax faced more constitutional obstacles than many had initially expected. This was an argument about constitutional law—I am on record elsewhere as regretting that the federal government undertook a constitutionally problematic design for its carbon tax, as I am supportive of environmental policies that could include properly designed carbon taxes. Constitutions are not mere debris to be run over on the road of public policy but must be respected as the rules of the road.

Last week, Professor Stepan Wood of the UBC Faculty of Law tweeted out his co-authored August 2020 Centre for Law & The Environment working paper (released in a paper series edited by Professor Wood) that is now also a forthcoming article in the Dalhousie Law Journal. While aspects of that article frame it as an intellectual discussion on standards of responsible scholarship, (and it is somewhat longer than my own article), it is nonetheless focused almost entirely on my article.

Both the conclusion of the paper and Professor Wood’s subsequent tweets confirm that he aimed to publish it before the Supreme Court of Canada hearing in which my article might be discussed, seemingly to try to discourage the Court from drawing upon my work by arguing that it was “irresponsible” research. I do believe that the paper Wood tweeted out fulfilled what it set out to do and unfortunately does not contribute in any positive way to legal academic discourse. The Wood, Doelle, and Scott (Wood/Doelle/Scott) paper paints what are reasonable scholarly points as irresponsible research, but it does so by pulling much of what I said out of context and inaccurately. I will mention just some examples here:

On p 6, Wood/Doelle/Scott suggest that I must not have read beyond the title of an article in interpreting the author as having hoped for changes in the constitution to accommodate climate change policy. As it turns out, I had read not only the title but the article itself, as would be apparent in the fact that I engage with legal arguments contained in that article. On the point at issue, that other scholar’s article has multiple passages referring to the need to adapt the interpretation of the constitution in light of new realities, which I am free to refer to as arguments for constitutional change.
On pp 6-7, Wood/Doelle/Scott inaccurately say that I “complain” of “incoherence” in a scholar’s work where I made no such claim.
On p 7, Wood/Doelle/Scott suggest I should have read a particular article. I actually discussed that very article and showed how it had problems in its understanding of the relationship between the legal doctrines of POGG and interjurisdictional immunity.
On pp 7-9, Wood/Doelle/Scott object to my characterization of an elitist strand in some environmental law scholarship. I cited an article on regulatory capture (and actually did not challenge the part of the article on regulatory capture, as Wood/Doelle/Scott imply I did), and that article concludes with a three-page discussion of how academics can take a larger role in guiding the democratic process on environmental issues. Some may think that a good idea or even a conventional one. I simply identify its elitist dimension in a footnote that bears on the context for argument about the carbon tax. I use accessible terms, but my footnotes make very clear that there are scholarly works that readers can consult further.
On p 9, when I discussed a number of popular media pieces asserting Saskatchewan’s carbon tax litigation had no chance, Wood/Doelle/Scott say that I incorrectly interpreted the reference of the pronoun “we” in one of these pieces. Wood/Doelle/Scott say that “we” referred to all Canadians. I had followed the apparent reference of the pronoun “we” in the immediately prior sentence as those litigating on climate change. Wood/Doelle/Scott could be right, but the op ed was ambiguous and was just as consistent with my reading. To use this singular example of a different reading of “we” to claim that I made “distort[ing] statements” about media pieces is absurd.
The Wood/Doelle/Scott paper also suggests that I am “unfair” to the courts because I provide a “blinkered” account of the case law (p 10). A short article in a duelling-articles debate cannot discuss every authority at length, nor is it meant to do so. Although Wood/Doelle/Scott criticize me for not engaging extensively with the case law in a footnote where I raise the possibility that the national concern branch of POGG is not well grounded in legal precedent, my footnote ends by saying “a full examination of those arguments would exceed the permitted limits for this article”, thus acknowledging that I was simply raising a possible argument that could be considered elsewhere. I do not think any courts are troubled by this.

There are other examples. Given that the Wood/Doelle/Scott paper sought to contribute to discussing the topic of responsible scholarship, it is difficult to see its contribution to that topic when it contains a significant number of errors about my article and what I say.

A good article on responsible scholarship in a legal context could be quite interesting. In their paper, at pp 4-5, Wood/Doelle/Scott link several quotes about norms of responsible scholarship, which might be the start of a discussion. However, they take most of these quotes out of context, without explanation of the fact that they have done so. In their proper contexts, these statements refer to approaches to data in scientific contexts or to internal operations of research teams. Wood/Doelle/Scott apply them without discussion or explanation to treatment of scholarly sources and external scholars. It would be interesting to analyze to what extent the pertinent norms for these contexts do or do not track precisely those other norms. Discussing that would require an intellectual work going beyond what Wood/Doelle/Scott did. In addition to considering the differences in the context of legal research, it would be important to consider the ways in which legal scholars write in a variety of different genres, ranging from more specialized academic contexts to more accessible practitioner-friendly pieces to public-facing pieces. A strong contribution on responsible scholarship would also discuss and compare several different examples rather than focusing solely on one article combined with a few lines about another. The Wood/Doelle/Scott paper falls short on these measures in a number of ways, leading one to ask what the goal really was.

It is one thing to make unconvincing arguments, as happens in both peer-reviewed and non-peer-reviewed work. But it is a serious threat to responsible academic discourse to make mistake-riddled arguments in ways that paint academic interlocutors as personally irresponsible and lacking integrity. Obviously, I agree entirely that responsible research practices facilitate good research and the contribution that academia can make to society. However, purporting to adjudicate responsible academic discourse in the way that Wood/Doelle/Scott did sets a horrible precedent. A scholar who makes an argument, popular or unpopular, should be able to do so without lightly being called irresponsible. Other scholars who have seen events unfolding even in this one instance might well feel intimidated from participating in academic discourse by the prospect that they will face attacks not just on their ideas but on their integrity.

The Ivory Tower Prisoner’s Dilemma

Why law journals are useless, and why we can’t do without them

“Are [scholarly law] journals even useful nowadays?” Francis Lévesque asked this question in response to a Twitter discussion about the ideological problems that plague the system of peer review, which screens articles published in such journals pretty much everywhere except in the United States. Since I already complained about these problems in a recent post, I might as well reproduce a slightly expanded version of my answer. In short, I think that journals are useless, but they remain, and probably will remain, indispensable due to academia’s collective action problem.

Why are journals fundamentally useless? Because nobody actually reads them. I don’t mean that people don’t read what is in the journals. Well, often, they don’t. But sometimes they do. And not just academics, though admittedly that’s often the audience for which scholars write. At least some articles attract the attention of practising lawyers and of judges. But here’s the thing. People read articles, not journals. Journals as physical or electronic objects, i.e. assemblages of several articles that share a masthead and a typography and not much besides, appearing several time a year, are obsolete and unnecessary.

The reason for this is, of course, that you don’t need a journal, whether in physical or electronic form, to find articles, which, to repeat, is what people (sometimes) want to read. Articles are mostly either discovered by word of mouth ― again, literal or electronic (say posts, for example on this blog, that mention new articles) or found through databases such as HeinOnline, CanLII, or SSRN. Perhaps a few journals ― think, the Harvard Law Review ― are prestigious enough to command attention in their own right. Perhaps some specialized journals are of interest to people in particular areas of research or practice. Thematic issues of particular journals might also be interesting as collections of articles. But the ordinary, generalist journals? Nope. If I read an interesting piece that was published by, say, the McGill Law Journal, I’m not going to even bother looking what else was in the same issue.

But while journals as platforms for scholarship are largely useless, journals as institutions are not. They provide bundles of services some of which may be useful, and one of which makes them indispensable. The maybe-useful services are the ones you are probably thinking of. In particular, journals review and select manuscripts (what a quaint word for things that haven’t been written by hand this past century!), and edit the ones they choose, and journals ensure that published articles are transmitted to databases where they can, hopefully, be found. The indispensable service is one you might also be thinking of but wouldn’t want to admit to be: signalling.

The maybe-useful stuff should be really useful, but it isn’t always, as it turns out. The review and selection process is sometimes ― and perhaps more commonly than I would have thought ― tainted by ideological gate-keeping or simple turf wars or even cronyism and rank snobbery. In the United States, the problems are a bit different, since it is student editors who are fully in control or editorial decisions, without input from peer reviewers, but things are not necessarily better overall. The editing can be hit-or-miss ― sometimes useful, but sometimes the editors try to impose arbitrary ideas of what good writing should look like on authors who actually have more sense and experience. Even the transmission-to-databases function, which is genuinely important ― it’s one massive advantage journals have over blogs, for which no equivalent of the journal databases exists ― works better with some journals than with others. North American student-run journals are widely available; the ones owned by publishing companies such as the University of Toronto Press, the Oxford University Press, SAGE, etc, are sometimes only available through their proprietary databases, which makes the difficult to find.

Signaling is another matter though. Journals provide it reliably because they don’t actually need to do anything to provide it. Their reputation just exists ― in the case of journals associated with particular law schools, primarily as a result of the school’s reputation. But it becomes a self-fulfilling prophecy. Publishing in a particular journal, or category of journals, marks you as a successful scholar, so people who want to be known as successful publish in these journals, which helps preserve their reputation, and so on and on.

Yet despite being the result of little more than bootstrapping, this signalling function is very important to academics. Your disciplinary peers ― those who write in the same area as you ― don’t need it. They can assess the value of your scholarship directly, by reading it. But others can’t do that well, because they lack time and interest, and because they just don’t know enough about your particular area. The latter problem is getting ever worse, as legal scholarship becomes more and more specialized. And these others matter in a scholar’s career: they are the members of hiring and promotion committees, and perhaps those who assess proposals for funding agencies (though I lack experience to speak to that). Not being able to assess a scholar’s output directly, they look for informational shortcuts and proxies. Journal prestige is the most obvious one.

As a result, unless you’ve achieved everything you wanted in your career and have no aspirations for further promotions or going to another school, or unless you can signal your productivity and quality through books alone (and I don’t think many legal academics can do that), you can’t afford not to chase the signaling that journals provide. Even if you believe that the signal is actual mostly noise, even if you think it means little, you can’t ignore it. You are competing against people who might not share these views and get all the signal they can, and the judges of that competition might actually believe that the signal is meaningful.

The result is a classic prisoner’s dilemma. It’s in your best interest to act in a way you know is sub-optimal for the scholarly community. You know that if you don’t, you’ll be, to use a technical term, screwed. One might devise alternative systems for publication. They could well provide the useful services that journals may or may not be providing now. They might even try to provide their own signaling. But unless almost everyone buys into the same alternative system more or less at once, you’ll have to be mad to go for one in particular. What if it doesn’t take off? Then your efforts to establish your reputation have been wasted, and your career is compromised.

So we are stuck. Perhaps some senior scholars can take the lead and establish a new system. Perhaps then those of us who still have careers to make can follow them. But I’m not optimistic. That said, if you think I’m wrong, and especially if you have concrete ideas, I’d love to hear from you. It would be nice to be wrong about this. Mr. Lévesque thinks I am, but I’m afraid that his technological optimism is no match for my collective-action pessimism.

Immuring Dicey’s Ghost

Introducing a new article on the Senate Reform Reference, constitutional conventions, and originalism ― and some thoughts on publishing heterodox scholarship

The Ottawa Law Review has just published a new paper of mine, “Immuring Dicey’s Ghost: The Senate Reform Reference and Constitutional Conventions“. It’s been many years in the making ― apparently, I started working on this paper in August 2016, a prehistoric time in my own life, to say nothing of the outside world ― and I don’t think I have ever said much about this project here. So let me introduce it ― and let me also say something about its “making of”, in the hope that its complicated, but ultimately successful fate will inspire readers who may be struggling with wayward papers of their own.

Here is the article’s abstract:

Although the metaphor of “constitutional architecture” appeared in some of the Supreme Court of Canada’s previous opinions, it took on a new importance in Reference re Senate Reform, where the Court held that amendments to constitutional architecture had to comply with the requirements of Part V of the Constitution Act, 1982. However, the Court provided very little guidance as to the scope of this entrenched “architecture.” As a result, the metaphor’s meaning and implications have been the subject of considerable scholarly debate. This article contributes to this debate by arguing that “constitutional architecture” incorporates (some) constitutional conventions. It further takes the position that, instead of relying on this confusing metaphor, the Court should have candidly admitted that conventions were central to its decision by acknowledging that the text of the Canadian Constitution cannot be fully understood without reference to conventions.

Part I reviews, first, the Supreme Court’s opinions in which the notion of constitutional “architecture” has been mentioned, focusing first on this concept’s place in the Senate Reform Reference, and second, some of the scholarly commentary that has endeavoured to make sense of it. Part II sets out my own view that constitutional “architecture,” as this concept is used by the Supreme Court, is concerned primarily if not exclusively with constitutional conventions. Part III considers whether it is possible to determine just which conventions the notion of constitutional architecture encompasses, examining the conventions’ importance and their relationship to the constitutional text as possible criteria, and concluding that neither allows precise determinations. Part IV sets out what would have been a less confusing way of addressing the significance of conventions to the questions the Court was facing in the Senate Reform Reference: frankly recognizing that conventions were relevant to the interpretation of the applicable constitutional texts. Part V examines two objections to the incorporation of conventions (via “architecture” or through interpretation) into the realm of constitutional law, arguing that this incorporation is not illegitimate and that it will not stultify the Constitution’s development. Part VI concludes with an appeal for greater transparency on the part of the Supreme Court.

Actually, the article’s core idea ― that the architecture to which the Senate Reform Reference refers incorporates constitutional conventions ― was part of my initial reaction to the Supreme Court’s opinion. And of course it only develops the suggestions made by Fabien Gélinas and me in a paper we wrote before the Senate Reform Reference was argued. It is also of a piece with my other work on conventions, which argues against the theoretical validity of a sharp distinction between the conventions and the law of the constitution.

The other thing the article does, though, is a new departure. When Professor Gélinas and I wrote about the role of conventions in the then-upcoming Senate Reform Reference, we accepted that the constitution is a “living tree”, and indeed made it the basis of our argument that constitutional interpretation must incorporate conventions. But of course I no longer think that living constitutionalism is the correct approach. So the article begins the project of making sense of the reality that a very significant part of the Canadian constitution is “unwritten”, or rather extra-textual, uncodified, from an originalist perspective.

The argument, as it happens, does not change: as I explain, an originalist must also read the constitutional text in light of conventions which were ― in originalist terms ― part of the publicly available context at the time of the text’s framing. Still, it was important for me to set out this argument from an originalist, as well as a written constitutionalist perspective. It was also important to give the reader a glimpse of how this originalist argument works. To this end, the article wades into historical evidence, looking at the Confederation debates to argue that the conventions relative to the functioning of the Senate were anticipated by the framers of the Constitution Act, 1867 (in addition to being well known to those of the Constitution Act, 1982). Future work ― mine and perhaps that of others ― can build on this foundation, and on Ryan Alford’s recent book Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law, to fully integrate not only conventions (and therefore “architecture”) but also underlying principles and structural arguments into a comprehensive originalist conception of the Canadian constitution.

This brings me to the “making of” part of the post. As you might imagine, getting the originalist arguments through peer review was not an entirely straightforward proposition. I deliberately diluted them, presenting them only as alternative to the living constitutionalist approach, to which I gave equal attention and which I refrained from criticizing.

Still, at first, this was not enough. The reviewers selected by the first journal to which I submitted the paper were quite skeptical of the whole project, and the attention it devoted to history and to originalism contributed to that skepticism. I was asked to revise and resubmit in light of the reviewers’ comments, and did so, although I could not make the sorts of changes that would have assuaged their concerns without changing the nature of the whole piece. The editor referred the revised article to the same reviewers, who understandably were unimpressed with my revisions, and the article was rejected. Frankly, the revision and resubmission was a waste of my time, as well as of the reviewers’. Their initial objections were so fundamental that there was no real chance of their accepting any revisions I might plausibly have made.

So, after sulking a bit, I submitted the paper elsewhere ― namely, to the Ottawa Law Review. The reviewers there were more open-minded, though one remarked on the oddity, as he or she thought, of granting so much airtime to originalism, and suggested cutting that part of the paper. But the article was accepted, and so revisions were more at my discretion than they would have been in a revise-and-resubmit process. To me, of course, the discussion of originalism was very much part of the point of the paper, so I insisted on keeping it. (I have to say that, while many scholars will of course disagree with originalism as a normative matter, I find it hard to understand how one still can argue that it simply isn’t relevant to Canadian constitutional law; and least of all, how one can make such an argument in a discussion of the Senate Reform Reference, which very much relies on arguments about the intentions of the framers of the Constitution Act, 1982.)

To my mind, there are a few lessons here. One is that if you have an unorthodox agenda, it might be useful to go slowly, and plan to make several steps before getting to your ultimate destination. If you present your idea, not as certain truth right away, but as a possibility to be entertained, you make the pill easier to swallow while still moving the argument from being, as American scholars put it, “off the wall” to “on the wall”. I’m not sure, of course, but I think that this cautious approach helped me here.

The second lesson is that the peer review process is a bit of a crapshoot. Even if you are cautious, some reviewers will bristle and see their role as that of gatekeepers preserving scholarship from heresy. But others may see their role differently, and say that, while they disagree with the paper, it is still well argued and deserves a hearing. (Of course, you have to make their life easier and make sure that the paper is indeed well argued; the more heterodox you are, the more you need to dot your i’s and cross your t’s.) To be sure, there are limits to such tolerance: at some point, heterodoxy veers into kookiness, and even an open-minded reviewer should say so. And, of course, where heterodoxy ends, and kookiness begins is not a question that admits of easy answers. Perhaps to the original reviewers who rejected my piece I was a kook.

But this brings me to the third lesson. If at first you don’t succeed, try again. Try with a different journal, hope you get different reviewers, perhaps a more sympathetic editor. That’s easier to do when your paper is one that doesn’t need to be out right away ― I’ve given up on a comment on R v Comeau, in part because a case comment loses its relevance after a while ― whereas this article, making a less topical and more fundamental claim, could wait. And perhaps there is a further lesson here, which is that it is better to reserve heterodox ideas for articles of this sort, knowing that it might be a while before they can run the peer review gamut. But, be that as it may, the point is that, precisely because it is a crapshoot, precisely because it empowers people who enjoy being more Catholic than the Pope, the peer review process can be dispiriting ― but knowing why it is this way should remind us that it isn’t always this way.

Good luck with your heterodox articles ― and please read mine, and let me know what you think!

Why Codify

Apologies for my silence of late. I’m afraid blogging will be light for another week or so. In the meantime, however, here’s something related to the topic of my last post, the codification of law. It won’t be news to those versed in the history of Québec law, but it’s something that I, in my ignorance, did not know, and find interesting, fascinating even: the reasons given by the legislature of the United Province of Canada for codifying the substantive and procedural civil law of Lower Canada.

These reasons are set out in the preamble of the Act Respecting the Codification of the Laws of Lower Canada Relative to Civil Matters and Procedure, Con. St. L.C., c. 2 (available here at XXXIII). There are three of them, and while they have, in a general sense, to do with the accessibility of the law, a consideration of the foremost importance to proponents of codification such as Jeremy Bentham, they concern aspects of this problem that are quite different from those with which Bentham was concerned. For him, codification was an opportunity to provide a statement of the law that would be both comprehensive and comprehensible to everyone (by virtue of being expressed in a concise, clear, and logical text). As I noted in my last post, the drafters of the French civil code knew that such ambitions for codification were not realistic. For them, codification was a means of realizing some political objectives ― notably national unity and the consecration of a certain (conservative) mindset. (I plan on returning to this issue eventually.) But the Canadian codification pursued other aims again.

The first “whereas” of the preamble notes that much of Lower Canada’s civil law being French, and some of it being English, “it therefore happens, that the great body of the Laws in that division of the Province exist only in a language which is not the mother tongue of the inhabitants thereof of British origin while other portions of it are not to be found in the mother tongue of those of French origin.” Codification was thus presented, first, as an opportunity to make all the laws accessible to the speakers of both languages. It was, in a way, the continuation in Lower Canada of efforts begun in England with the Pleading in English Act, 1362, 36 Edw. III c. 15, which provided that court procedures would thenceforth be in English, rather than, as before, “in the French Tongue, which is much unknown in the … Realm,” and continued with the Proceedings in the Courts of Justice Act, 1731, which also complained of the “many and great Mischiefs [which] do frequently happen to the Subjects of this Kingdom, from the Proceedings in Courts of Justice being in an unknown Language.” These linguistic concerns are also reflected in the first section of the Codification Act, which required that of the two Secretaries to the Commissioners for Codifying the Laws of Lower Canada one “be a person whose mother tongue is English but who is well versed in the French language, and the other a person whose mother tongue is French but who is well versed in the English language.”

The second “whereas” of the preamble, for its part, referred to the increasing difficulty of obtaining copies of the old French laws “still in force in Lower Canada,” as well as “commentaries upon them,” due to their “hav[ing] been altered and reduced to one general Code.” This is a practical consideration and one that is obviously peculiar to the situation of Lower Canada in the mid-19th century. But the reference to “commentaries upon” French laws as being important, perhaps even necessary, is worth noting, mostly because it stands in an interesting contrast with the hostility to legal commentary that the French codifiers saw the need to address at some length, but perhaps also in light of contemporary doubts about the value of legal scholarship. The legislators who decided on the codification of the laws of Lower Canada seem to have believed that the writings of legal commentators are as important as legal texts themselves in making the law accessible ― a belief that CanLII Connects represents in the digital age.

Finally, the the third “whereas” also referred to “the great advantages which have resulted from Codification, as well in France as the state of Louisiana, and other places” ― without elaborating on what these “great advantages” were. Codification, it was content to proclaim, was “manifestly expedient.”

As in post-revolutionary France, the circumstances of time and place seem to have provided the impetus for codification in Lower Canada. However, the reasons which (at least ostensibly) motivated Canadian legislators had more to do with the needs of the legal community ― and thus, even if indirectly, the litigants ― and universal principles than those that moved Bonaparte and his codifiers to action. Whether this difference had any substantive consequences, I am not qualified to say. But I think it is interesting to note.

Constitutional Job Placement

In a post on Concurring Opinions, Gerard Magliocca asks an interesting question about what importance, if any, should attach to the fact that a constitutional provision invoked in a case has never been applied by the courts, or has not been applied in a very long time. It is, arguably, a specific instance of the broader question of how the law ought to deal with unusual situations on which precedent is lacking; as I observed here, in a post prompted, in part, by prof. Magliocca’s musings on the subject of judicial review of unusual statutes, that broader question is not an easy one.

What prompted prof. Magliocca’s recent post is a challenge to President Obama’s healthcare reform invoking the “origination clause” of the Constitution of the United States (Art. I, s. 7, cl. 1, which provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills”), but the question can be asked more broadly, in the Canadian context as well as in the American one. Prof. Magliocca suggests that

legal academics … act too much like a job placement service for unemployed constitutional clauses. (“You have a superb resume Mr. Contracts Clause. Out of of work since 1934? No problem–I’ll make some calls.”) The complete absence of the Origination Clause from modern constitutional thought must mean something other than “The Constitution has been betrayed.”

Prof. Magliocca seems to be suggesting that if courts have not applied a constitutional provision in decades or even centuries, they should not start now. And legal academics should stop urging them to do so. Being in the process of working on a paper that does just that with the freedom of conscience guarantee of the Canadian Charter of Rights and Freedoms, I have a stake in this debate, so feel free to take what follows with a generous helping of NaCl. For what it’s worth, however, I think that prof. Magliocca’s suggestion is unwarranted.

Indeed, some constitutional provisions ― the Charter’s guarantee of freedom of conscience among them ― seem to be caught in a vicious circle of mutually reinforcing neglect by courts and scholars alike. There are no judicial decisions applying them, therefore they attract little academic interest, therefore nobody (whether lawyers or judges) knows what to make of them, therefore there are no judicial decisions applying them. Now it is probably unfair to criticize the practitioners’ reluctance to invoke neglected constitutional provisions as betrayal, because legal practice is essentially conservative, and both advocates and judges always prefer familiar arguments to novel ones. Nor is this necessarily a bad thing, because the limits and potential consequences of relying on old arguments are well understood, whereas reliance on new and under-explored claims might lead to undesirable and difficult to anticipate consequences. Legal academics are in a position to break the vicious circle, because they can make formerly exotic arguments more familiar and work out their implications in advance of actual application. It seems to me that they should be commended rather than chided when they try to do so, and help give full effect to the constitutional text they are explicating in the process.

Another possible reason for the absence of judicial precedent enforcing a constitutional rule is simply that the rule is (almost) never infringed. I don’t know if this may explain the lack of precedent on the origination clause, but I have suggested (in the post linked to above and, at greater length, in a paper called “Towards a Jurisprudence of Constitutional Conventions”, 11 Oxford U Commonwealth LJ 29 (2011)), that it is this that explains the absence of precedent enforcing constitutional conventions ― rather than conventions’ inherent unenforceability, as A.V. Dicey claimed. When a usually-respected rule of constitutional law is infringed, courts should not be any less willing to step in than in cases involving more frequently breached provisions, and I don’t think it is wrong for academics to remind them of this duty.

But why is it that a rule obeyed so regularly that adjudication is, for long periods of time, unnecessary to enforce it, can suddenly be disobeyed, triggering litigation? The reason has to do, at least in part, with a paradox created by entrenched constitutional texts. In a constitutional system consisting entirely of conventions and statutes that can be amended by an ordinary parliamentary majority, the constitutional rules will never long differ from the constitutional ideas prevailing in society or among officials. (Courts might still have to step in to clarify the rules, as the Patriation Reference shows, because conventions can be uncertain, but such cases will probably not be very frequent.) But with an entrenched constitutional text, (a part of) the rules stays fixed while the prevailing constitutional theory changes. Because the claims made by advocates and accepted by courts tend to reflect the constitutional theory of the time, constitutional provisions that do not conform or are simply not relevant to it tend to disappear from judicial decisions. Yet because an entrenched constitutional text ― unlike constitutional conventions ― does not change with the prevailing ideas, these provisions remain available for invocation in legal arguments by those who, for one reason or another, can and choose to reject the prevailing constitution theory. There is no easy way out. Originalists cannot make the evolution of constitutional ideas stop; non-originalists cannot wish away an entrenched constitution. It is important to keep in mind, too, that constitutional ideas can evolve in more than one direction ― not only away from an entrenched provision, but also back towards it. If academics are free to urge the former sort of evolution, there is no reason they could advocate the latter.

I will consider one more possible reason for judicial non-enforcement of a constitutioinal provision. It may be thought that the courts are incapable of applying a rule well enough, or that other branches of government will do it better. Such claims may be advanced as a more “politically correct” cover for a belief that the provision in question really should not be part of the constitution at all (as they might be in the post-New Deal constitutional discourse in the United States with respect to many rules protecting economic rights, such as the Contracts clause prof. Magliocca pokes fun at, or federalism). But they can be made sincerely (as when Jeremy Waldron makes them with respect to constitutional guarantees of individual rights), and they might sometimes be valid. However, their validity is surely fair game for academic contestation. A scholar can also plausibly (if optimistically) argue that although courts made a mess out of a constitutional provision in the past, his or her new theory would allow them to enforce it competently. Again, I don’t see why academics should take prof. Magliocca’s advice.

The point is not, of course, that every constitutional provision must be put to work. It is many of the constitutional ideas and arguments that are (possibly) valid and interesting within a given constitutional system are, for one reason or another, nowhere to be found in the courts. It is for these ideas and arguments that academics can act as a “job placement service.” And if working with and on behalf of ideas isn’t part of a scholar’s job description, I don’t know what is.

Real Intellectual Life

I have recently come across a great paper by Mark D. Walters, “Dicey on Writing the Law of the Constitution”, (2012) 32 OJLS 21. (UPDATE: The original link is no longer working, alas, and the paper is no longer freely accessible.) It’s not brand new (it was published last year), but as prof. Walters, unfortunately, doesn’t post his work on SSRN, it might have escaped the attention of fellow constitutional law nerds and Rule of Law enthusiasts, as it escaped mine. The article tries to provide put A.V. Dicey’s work, especially his classic Introduction to the Study of the Law of the Constitution, in the intellectual context of its author’s “real intellectual life,” a glimpse of which prof. Walters got by studying Dicey’s papers, letters, and draft manuscripts.

Dicey’s work has been touted as the epitome of Victorian jurisprudence ― of all that was good or all that was bad about it. But, says prof. Walters, it has more often than not been seriously misrepresented. It is not, as is often believed, an academic codification of British constitutional law; Dicey’s aims for his project were at once less and more ambitious than that. Nor is it an example of dry, authoritarian Austinian positivism; Dicey’s jurisprudential views were more complex than those of his contemporaries.

According to prof. Walters, Dicey aimed not at presenting a detailed codification of an commentary on the entire constitutional law of the United Kingdom, but rather at presenting its most salient principles. He was “an artist” rather than a surveyor, in the words of a contemporary who, for his part produced a detailed (and, so far as I know, now entirely forgotten) survey of constitutional law. Nevertheless, it was ― unusually for a time which had seen the constitution examined from the standpoints of politics and history but not law ― a thoroughly legal work. But, for Dicey, a study of law could profitably look at principles, the “spirit” of a body of law, and not only the details of its rules.

Indeed, Dicey’s jurisprudential views and methodology are, according to prof. Walters, much misunderstood. Though he regarded himself as a lawyer rather than a historian or a political critic, his approach to law was not limited to looking at the rules of his own time and place. He sought to enrich his and his readers’ understanding of the law by taking at times a comparative approach, and sometimes by considering history. Furthermore, his account of law was not that of a neutral and dispassionate observer. Dicey thought that the law had a normative value, and gave a normative account of it. Indeed, prof. Walters suggests, albeit tentatively, that if we had to assign to Dicey the label of one of today’s jurisprudential schools, he would be a Dworkinian interpretivist rather than a positivist.

A final important point that prof. Walters makes concerns Dicey’s approach to legal scholarship as literature. “[T]here ought,” Dicey wrote, “to be no divorce between law and letters.” An academic lawyer should write not only, and indeed not mainly, for other academic lawyers, but for other educated citizens who happen to take an interest in the law. His work should be accessible and readable; not merely readable, indeed, but aesthetically enjoyable as well as instructive.

Although prof. Walters does not say this, I think that this last point too allows us to draw a parallel between Dicey and the late Ronald Dworkin. He too sought to reach out to audiences beyond the confines of legal academia (notably through his New York Review of Books columns); he too, I think, aspired to write in a way that would be appealing and compelling to a lay public. Whether he succeeded is probably debatable, but one need not like the result to think the attempt noble. In this, if in nothing else, I think that legal scholars ought to learn from Dicey ― and from Dworkin. (This blog, I daresay, has the same ambitions. Whether it succeeds is, of course, for you to judge, and I hope that the literary standards by which you do so are not too lofty.)

Dicey has been both an idol and a bogeyman for constitutionalists and legal philosophers; for some, such as yours truly, he has been both. Prof. Walters succeeds, I think, in making him a bit less of the latter, and more of the former. More importantly, it shows that neither of these labels is quite warranted. Dicey, as any great scholar, had a rich intellectual life, which ensures that he defies such easy categorization. And our own intellectual lives will be richer for paying attention to his.

Risk and Reward

I wrote recently about whether scholarship (in philosophy and in other areas, such as law) can make a difference, and whether this matters. As it happens, PrawfsBlog has been running an interesting series of interviews with scholars whose work has been cited by the US Supreme Court, asking them, among other things, what they thought of the alleged uselessness and irrelevance of legal scholarship. Some say scholarship matters, though courts will not admit to being influenced by it. Others cheerfully say that most scholarship is, indeed, irrelevant ― but add that that’s fine. Wille Baude is in the latter category, and he has a great line by Frank Easterbrook’s article called “What’s So Special About Judges”, 61 U. Colo. L. Rev. 773 (1990), as evidence:

A free mind is apt to err ― most mutations in thought, as well as in genes, are neutral or harmful ― but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure of most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain. (777)

This brings to mind my own favourite line by prof. Easterbrook (as he then was), from “Vertical Arrangements and the Rule of Reason”, 53 Antitrust L.J. 135:

We live in a world where knowledge is scarce and costly, ignorance rampant. (145)

If “knowledge is scarce and costly,” then producing a bit more of it is a “high gain.” So it makes sense that an investment in its production is always a speculative one. Judge Easterbrook, at least, seems to subscribe to what I described, in my previous post, as the “venture capitalist” theory of the value of scholarship (as opposed to the “stonemason” theory, according to which each researcher adds a little something to knowledge, which is thus built up one small element at a time).

It is ironic, of course, that academia turns out to be a risky enterprise. Those who enter it probably see it as safer than business or even, possibly, the practice of law. But it all depends on what risks one considers. The risk of being a failure, in the sense of not producing anything worthwhile, might be higher in academia than in many other lines of work. Then again, this risk has its rewards. Just ask the people whose scholarship is cited by the Supreme Court.

Ideology in Constitutional Scholarship

Is most writing about constitutional law and theory (in the United States, but perhaps also in Canada) “intellectually corrupt”? In a post on the Bleeding Heart Libertarians blog, Jason Brennan, a philosopher and economist from Georgetown, says that it is. But, while his description of constitutional scholarship is, unfortunately, right, his explanation and evaluation of the problem seem too simplistic to me.

The problem with constitutional scholarship, says prof. Brennan, is

that almost everybody does the following:

1. Start with a political philosophy–a view of what you want the government to be able to do and what you want to the government to to be forbidden from doing.

2. Take the Constitution as a given.

3. Reverse engineer a theory of constitutional interpretation such that it turns out–happily!–that the Constitution forbids what you want it to forbid and allows what you want it to allow.

Academic arguments to the effect that something desirable is, unfortunately, unconstitutional, or that something undesirable is, alas, constitutional, are too few and too far between. Scholarship becomes indistinguishable from legal or political argument (these two being the same thing). “But,” says prof. Brennan, “academic legal theory is supposed to aim at truth. Legal theorists are not–or should not be–fighting political battles.”

If a scholar in another field – say in the interpretation of philosophical texts – acted like constitutional scholars act in the interpretation of legal text, we would think them “intellectually corrupt.” So why is it ok for constitutionalists to behave this way? Prof. Brennan claims that

[t]he only real defense of this practice I’ve seen is one that starts by arguing that the law is supposed to be normative and authoritative. However … –the case for legal positivism seems so strong that … this [does not seem] plausible.

In his own view, which he labels as “legal positivist and legal realist,” “laws [are]sociological phenomena, and whether a law is good or just is a contingent fact.” The constitution means what it means, not what whoever is reading it would like it to mean.

Prof. Brennan’s description of constitutional scholars as fighting political battles certainly rings a bell. His post was written in the context of the litigation surrounding president Obama’s healthcare reform, and academic commentary on it was, indeed, largely marked by the commentators’ ideology. But this phenomenon is very widespread. Indeed, what I have seen and heard at NYU suggests that some academics, at least, though don’t know how many, are open about regarding ideological acceptability as a criterion for assessing the value of a theory.

But is constitutional theory tainted by ideology because legal academics are intellectually corrupt, or because they are completely misguided about legal philosophy and fail to recognize the overwhelming arguments in favour of legal positivism, as prof. Brennan suggests? I think that things are much more complicated.

The problem with his explanation is that it assumes that there is a truth of the matter about constitutional interpretation, which a constitutional theory should uncover. But there is no objective truth about what a constitution means. To be sure, some constitutional provisions are clear enough, and one would be hard-pressed to find ideological interpreters disagreeing about their meaning. Many in the United States, especially on the political left, think that the equality of states’ representation in the Senate is morally indefensible, but no left-wing academic will say that the constitution doesn’t require it. But much of the constitution is not clear. Nor is it obvious how the meaning the less clear provisions is to be ascertained. It is possible, I think, to exclude some constitutional interpretations, even of less clear provisions, as quite obviously wrong. Whatever the prohibition on “cruel and unusual punishment” means, it surely makes the imposition of torture as a punishment unconstitutional. But what about death penalty? Different people can have different, reasonable, answers to that question, and they can – indeed they must – argue about which of these reasonable answers is better.

Law, in Jeremy Waldron’s words, is an “argumentative practice.” We argue about what this or that legal rule means – and that is an inextricable part of what law is, not a sad accident. This is especially true of constitutional law, for a number of reasons. One is simply that the stakes it involves are very high. What the state can and cannot do matters, sometimes at the level of policy, sometimes at the level of morality if not in the day-to-day lives of most people, and sometimes both. Another reason for the special importance of disagreement and argument to constitutional law is that constitutional texts are more vague than most legal sources. This is partly due to the need to secure agreement, often a super-majority agreement, on a text despite disagreements over specific rights, and to make that agreement last for decades and even centuries. This is also partly due to the fact that, contrary to what prof. Brennan seems to think obvious, much law – and certainly constitutional law – presents itself as morally good, and quite deliberately speaks in morally loaded terms. The third, related, reason why argument is so important in constitutional law is that it must somehow reconcile an arguably even greater number of competing values than other areas of the law. Democracy, federalism, Rule of Law, separation of powers, and protection of individual rights pull it in different directions. A constitutional text is, at most, a partial arbitrament between these (and other) competing values; it reflects them all, to some extent, and interpretations favouring one or another are bound to be plausible.

And here is where political ideology, which helps order these values, comes in. Constitutional theory, like any legal theory, is different from scientific theory, because it is in some measure argument. And argument about constitutional theory involves values, and hence ideology. It is fair, I think, to call it intellectually corrupt if it is limited to values and ideology and ignores legal sources. Any scholarship that deserves the name must be in touch with the reality it describes, explains, or critiques, so constitutional theory must, so far as possible, be grounded in constitutional text and precedent. But that will not make it free of ideology.

That said, it should still be possible for a scholar to acknowledge that his or her preferred constitutional interpretation is, if not incorrect by some (nonexistent) purely objective standard, unlikely to be adopted by courts (or other constitutional actors). One should strive to be clear-eyed about such things, and admittedly, legal academics often are not. To that extent, their scholarship suffers from a serious weakness.

The Best and the Rest

A friend has drawn my attention to what seems like an interesting book, Laughing at the Gods: Great Judges and How They Made the Common Law by Allan C. Huntchinson, a professor at Osgoode Hall. I haven’t had a chance to start reading it yet but I will eventually, because prof. Hutchinson’s topic is directly relevant to my doctoral dissertation’s topic – judges and the way in which they shape the law. But while my idea is that such a study has to start with systemic factors – the ways in which the environment in which judges work (generally accepted ideas of what a judge ought to do, the institution of courts, rules of procedure) constrain them and influence their work, the sources of the rules judges apply, the differences of the judges’ approaches to various areas of the law – prof. Hutchinson’s study is about individuals.

As the blurb on the publisher’s website says, “[a]ny effort to understand how law works has to take seriously its main players – judges. Like any performance, judging should be evaluated by reference to those who are its best exponents.” The book is about “candidates for a judicial hall of fame,” “game changers who oblige us to rethink what it is to be a good judge” – starting with Lord Mansfield, and on to mostly predictable greats such as Oliver Wendell Holmes, Lord Atkin, and Lord Denning. The only Canadian in the list is Justice Bertha Wilson.

As I wrote here a while ago, “judicial greatness, as greatness in anything else, is probably impossible to define in any way that would not generate serious disagreement. But that’s precisely what makes trying to define it, and coming up with lists of greats, so entertaining.” So I’m sure that a book trying to understand judicial work by defining and selecting case studies of judicial greatness was good fun to work on, and has the potential of being good fun to read. And yet I wonder if it is a profitable way of achieving its stated aim of understanding how the law works.

That’s because I doubt that “any performance … should be evaluated by” looking at the best performers. For one thing, understanding any human activity is, arguably, a study in mediocrity more than in greatness. If you want to understand tennis, it is not enough to watch Roger Federer, Novak Djokovic, and Rafael Nadal. That will teach you how it ought to be done, but tells you nothing at all about how tennis is in fact played by everyone else on the planet. And the point is starker still if we leave the realm of activities that are pursued primarily for the sake of excellence, such as competitive sports and performing arts. Other activities – think of cooking for example – are mostly pursued not for the sake of excellence, but in order to satisfy some practical need. By studying examples of excellence in such activities, one does not even learn what people who undertake them typically aim for, even in their dreams, still less what they usually achieve. Judging is like that. Its primary purpose is not to achieve greatness, but simply to settle disputes, many of them quite trivial. A lot of it happens every day, most of it good enough to do the job, but by no means remarkable. Studying great judges tells you little descriptively about what judging usually is, and perhaps not much normatively about what it ought to be.

The other point that any study of a human activity through the examination of its outstanding representatives misses is the rule-bound nature of most human undertakings. To return to my tennis example again, a book about it surely has got to start with a description of the rules of the game, not with the biographies of great players. Of course you might be able to figure out some (in the case of tennis, probably most) of the rules by watching great matches, but understanding the rules of the game first will help you appreciate and understand what is going on and what is so great about it. You will also need some understanding of the means at the players’ disposal – their equipment, say, or even the human body. Suppose you’re an alien with teleportation abilities who doesn’t understand how human beings move around. Chances are you won’t admire Rafa Nadal’s running – you’ll think he’s an idiot. It is a rather convoluted example, but when it comes to judging, we are to some extent in the position of that alien. Most legal thinkers seem not to have much of an appreciation for the rules of the judicial game or for the limits the judges’ position imposes on what they can do. Of course these rules are controversial and these limits are uncertain. But it seems to me that a truly informative study of judging has to begin by discussing them.

There is of course a danger in methodological critiques such as this one. Instead of engaging with the story a scholar tells, the critic in effect tells him that he ought to have written a different kind of story, which (almost) invariably happens to be just the kind of story the critic himself is working on. That’s exactly what I’ve done here. Yet if that caveat is right, then perhaps there us substantive value in my criticism, despite its dubious and self-serving methodology!