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!