Introduction and Recap
In the last piece, I looked at how the historical trends of rationalist and progressive thinking are embodied in contemporary legal philosophy. Legal positivism is the idea that law does not contain any necessary connection to natural law and justice but is simply a fact that demands coercion and obedience. The most common way to understand and apply the law is through the ‘interpretivist’ framework, in which interpretation goes beyond ordinary meaning, existing precedent and foundational documents to include the ‘intention’ of authors, the contemporary culture, and more. The approach to understanding the constitution associated with the interpretivist approach is to see it as a ‘living’ document, that must constantly be reinterpreted in light of changing values.
In this segment, I will explore the way in which the expansion of the government, the role of the judiciary and the practice of lawmaking has created a fourth branch of government. More laws, and laws of a certain kind beget more lawyers. The result is a web of legal complexity, the likes of which is sapping the life force out of the culture in the west – economically, socially and politically, but most of all in the character of its citizens.
The culture wars now play themselves out in the courts. Naturally so, for progressives came to recognize that the law is inherently conservative, as it is a body of doctrine, with rules and principles grounded in precedent and practical reason. It is thus a barrier to their otherworldly reforms that sometimes know no bounds.
The United States Supreme Court has seen some of the most dramatic culturally and politically sensitive cases. The politicization of the court is something that other countries like Canada have avoided, but I will argue that it is only because the progressive worldview is already embedded therein. Proof in point is the dominance of the ‘Living Tree’ doctrine, which is a concrete embodiment of the principle of absolute relativism in foundational principles.
In segment 3, I will conclude with a positive vision of law characterized by simple, general, and abstract rules, rooted in the protection of natural rights and natural law.
1 – More and more Laws: Expansion of the role of Courts and the Administrative Apparatus
“The centralization of decision making is a pattern that runs through landmark court cases, ranging from antitrust to civil liberties to racial policy to the reapportionment of state legislatures. The net result of these legal developments has been an enlargement of the powers of courts and administrative agencies – institutions least subject to feedback from the public, and therefore most susceptible to continuing on a given course, once captured by an idea or a clique.”Thomas Sowell; Knowledge and Decisions, 1980 (reissue 1996), pg. 284
Judicial policymaking and the growth of the Administrative Apparatus
According to Sowell, things began to change in the United States with the Warren court in the 50s and 60s that ushered in an era of judicial policy making. Rather than adjudicate disputes, the court began to take a more active role in policymaking. The argument he puts forth is that this contradicts the separation of powers that is a fundamental principle set out in the Constitution and informs its interpretation.
The separation of powers has similar, though not equal meaning and importance in the history of Canadian jurisprudence. It is not the judiciary, but the legislative and executive branches, constrained by their differing regional mandates that are to engage in policymaking.
In all Western countries, the original division of powers between the executive, judicial, and legislative branches has been modified to include the creation of independent, or quasi-independent administrative bodies. For example, the Environmental Protection Agency (EPA) in the United States, and the Administrative Tribunals in Canada, which have a quasi-judicial ability to rule on cases as diverse as land development appeals to ‘social justice’ issues.
The practice of law-making has been extended to these administrative agencies that are insulated from the democratic process. They make more laws than Congress in the United States, and the House of Commons in Canada. Though different in both countries, the similarities are found in the fact that agencies have more delegated power to make regulations, which have the same function as a binding law[i]. For example, there are over 500 administrative tribunals in Ontario[ii].
To be sure, there are checks in place to the ability of administrative bodies to change the law, such as the process of judicial review to ensure that the rules, regulations, by-laws, and so on are consistent with the constitution, charter, and other higher principles of law.
However, the fundamental effect, again, is to undermine the separation of powers, and to incentivize ever more lobbying and capturing of elements of the system by special interest groups so as to advance narrow aims that, overall, are net negatives on the general welfare of a country.
The change in the division of powers and the practice of law-making has created difficulties in adjudicating disputes between levels of government, and types of law. There are, naturally, principles to resort to in cases of conflict, though they may do more harm than good.
In Canada, for example, matters of federal-provincial jurisdiction are adjudicated by the principle of cooperative federalism, open to the creation and maintenance of overlapping powers.
On the progressive or liberal interpretation, this is viewed positively as flexible and modern. What it fails to recognize is that it promotes more and more law-making. While providing for the ability of a region to adapt its own framework to meet the demands of the higher level of jurisdiction, this does not justify its weaknesses. Without clear guidelines that mark out federal and provincial jurisdiction, there is too much regulatory uncertainty, and a risk of federal overreach.
In the Federal context, government legislation and regulation created by administrative bodies that impose broad, and arguably unconstitutional laws on states and provinces, provokes reaction from the latter in the form of court challenges. This weakens national unity and strains the institutional framework that keeps power in check and guarantees its decentralization in healthy ways.
So what? Maybe we need more Laws, Lawyers, and Agencies
Former Chief Justice Beverley McLachlin had this to say about the development of the administrative apparatus:
“First, there has been a great increase in delegated legislation – broad laws passed by Parliament or the legislatures which confer on the Executive the right to make subsidiary rules, or regulations, by order in Council. Such laws in effect transfer the legislature’s legislative power to the Executive branch. This transfer is said to be justified on grounds that it is required to govern effectively in the complex modern state.
The second change in the way the Executive functions is the practice of delegating of Executive functions to administrative tribunals. Work formerly done by civil servants under the direction of a minister answerable to Parliament, is assigned to independent bodies set up for this purpose. This development too is justified on the ground that it is required for effective governance in the complex modern state. The result is that modern governments, federal and provincial, discharge the majority of their functions through a plethora of independent administrative tribunals like labour tribunals, pension boards, licencing boards, immigration appeal boards and human rights tribunals. These boards and tribunals are not answerable to Parliament, as are the civil servants they replace. They are answerable only to Courts, which may be asked to rule on whether particular rulings are within the statutory powers of a board or tribunal and conform to the principles of natural justice.
These two developments – the tendency to legislate by regulation and the devolution of executive authority to independent tribunals – have effectively changed the scope of the power exercised by the legislative and executive branches of government. This has occurred in all western democracies. This transformation of the powers of the Legislative and Executive branch is not the result of constitutional amendment. It is rather the result of a de facto transfer of power necessitated by the complexity of modern governance. The result is the modern regulatory state.[iii]”Beverley McLachlin, “Respecting Democratic Rights” (November 22, 2004), https://www.scc-csc.ca/judges-juges/spe-dis/bm-2004-11-22-eng.aspx.
Furthermore, even economists sympathetic to markets and personal freedom have argued that more laws and more lawyers are simply the necessary outcomes of an increasingly dynamic and unrooted society. In a world defined by the constant creation of novel things, processes and institutions, as well as norms of behaviour in societies where everyone is a stranger, it is only fitting that lawyers take on a larger role. No one has the time or resources to engage in conflict resolution on their own, therefore it makes perfect sense that lawyering and lawmaking have expanded at an accelerating rate.
I have no qualm with such a view to a point. However, it does illustrate the fact that the courts are usurping their traditional function, and now engaging in policymaking. But it need not be so. I take issue only with the fact that courts have taken it upon themselves to make more laws of a certain type, rather than focus on settling cases.
Crossing the Rubicon to a Land of Diminishing Returns
“The employment contract may be able to survive minimum wage or maximum hour regulation, or discrimination and wrongful discharge suits, or health and safety regulation, or Social Security and Medicare taxes, or handicap access and the uncapping of mandatory requirement, or family leave and workplace safety, or unionization and collective bargaining. But is there any reason to think that real wages and job opportunities can rise in the face of all these regulations together, or that each new form of regulation can be justified without taking into account the regulations already in place?”Richard A. Epstein, Simple Rules for a Complex World, 3. print (Cambridge, Mass.: Harvard Univ. Press, 1995), x-xi.
We all know about the phenomenon of a threshold. Beyond a certain point, something that was producing positive results begins to deliver smaller incremental results, and eventually negative, or counterproductive returns. The Laffer curve, for all its flaws, illustrates this generally with reference to tax revenue – after a certain point, an increase in taxes yields less revenue. The same applies to lawyers and laws, argues Richard Epstein, and we have crossed the threshold where the returns are now yielding negative results.
The general approach can either be to make more rules and regulations that are vague and retrospective (applied after the fact, according to a ‘standard’ that is vague and indeterminate) in their application, as well as laws that apply narrowly to specific contexts, or you can allow more of the issues that cause disagreement and conflict to be covered by contracts, and sorted out through private dispute resolution.
The creation of new laws and regulations is a make work endeavour for lawyers and administrators that detracts from the capacity of individuals and organizations to engage in consensual, contractual arrangements with one another. Rather than settling a dispute via arbitration, or by paying fees, people are engaged in a process of rule compliance – such activities are unproductive at best and incentivize the creation and exploitation of loopholes in the system.
Furthermore, the coercive, vague and retrospectively punishing type of laws do a good deal to undermine confidence in the system, the rights of persons and of private organization, and to change the law from neutral body of equally applicable rules to rules that are interpreted by unelected officials who make decisions on the basis of their own opinions and prejudice.
A simplification of existing administrative law, and a curtailment of the law-making capacity of the administrative bodies would go a long way towards the return of equilibrium and the vesting of power within properly constituted and intended bodies. For similar reasons, the policy-making power of the courts should be curtailed in order to return law-making authority to democratically elected and accountable entities, namely Congress in America and Parliament in Canada.
With an understanding of the expansion of the power of courts and the creation of a fourth branch of government – the administrative state – I now turn to take a brief look at how constitutional jurisprudence has changed, focussing on Canada.
2 – Culture Wars in the High Courts – Originalism and the Living Constitution
As I described earlier, Originalism is a term coined to describe the Anglo-American legal tradition prior to the major reversals that began to take place in the 20th century. It is simply the tradition of law that I have been referring to in positive terms. It has always been about interpreting the meaning of existing laws, precedents and patterns of interpretation, and seeking to make judgments on that basis. Emphasis is placed on the constraints of the written body of law and precedent that have been amassed. It is explicitly law-centred, not opinion-centred. This is supposed to hold the all-too-human tendency to read into the law what we want and to thereby circumvent the principles of neutrality and objectivity that distinguish legal interpretation from the looser opining of a philosopher.
The ‘Living Constitution’ or ‘Living Tree’ approach to constitutional jurisprudence sees the constitution as an evolving document. Combined with ‘intentionalist’ and ‘purposive’ principles (using an expanded notion of purpose – what the legislature and legislator’s purposes were), the practice of constitutional interpretation takes on an unrestrained character and engenders judicial policymaking.
Originalists do not at all deny that new laws are needed, that many positive changes occur that need to be codified under the law, but they reject the idea that the Constitution does or ought to change its meaning. There are other mechanisms through which to pursue change – amendments, and legislation, for example.
In the following section, I will look at the principles of Canadian constitutional jurisprudence, and the key rulings of former Chief Justice Beverley McLachlin to draw out some of the differences between an ‘originalist’ and ‘living constitutionalist’ interpretive lens.
The Canadian Case
As Canadians, we have much to be proud of. We do not have as much antagonism, and polarization that exists in the United States along many dividing lines. However, it would be too easy to simply credit this to our culture, institutions, and history. These, like those of many nations, are the product of our place in the world, wedged as we always have been between two great powers – Great Britain and the United States.
There is no other country in the world like the United States, because the US is the world superpower.
There isn’t such a politicized judicial system in Canada because the high theatre, rough and tumble politics and economic innovation is owned by our neighbour to the south. We gladly let them have it and wouldn’t be able to stir up equivalent material of our own, even if we tried. It would be very un-Canadian! You simply cannot be the standout leader in a cultural, technological, or economic sense when you are right beside the world’s engine in all of the above fields.
That said, the Canadian law scene is equally politicized, though it does not appear so from lack of media attention.
In Canada, Constitutional interpretation is guided by the following principles. The Constitution is understood as “a living tree capable of growth and expansion within its natural limits.” As it is written, this appears to be perfectly reasonable, and differs from no other Constitution. The idea that there is a meaning, and this has limits is straightforward. New circumstances sometimes demand new principles, but it is always within the original structure that a new branch grows out from.
Coupled, however, with the ‘purposive’ principle of interpretation, the meaning of the word ‘limits’ dissolves rather quickly. The purposive approach to interpretation is described in the following way: “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”[iv] In other words, extraneous material is taken into consideration when considering the meaning of a law, even if it cannot be discerned, or if criteria in the source material conflict. The number of things that can be brought into consideration, weighed and considered in order to render a decision preclude straightforward interpretation, and engenders the practice of reading into the law whatever standards and norms the contemporary justices think should be relevant to the matter.
To see what some of these cases are, I’ll look at what Beverley McLachlin has said about equality jurisprudence and judicial activism.
Former Chief Justice Beverley McLachlin
Former Chief Justice Beverley McLachlin is known as a clear writer and thinker, and someone with a tremendous capacity to bring her fellow justices together to discuss matters and develop intelligent and prudent rulings. She was both a noted jurist, and a remarkable leader. Critics, however, would argue that she did more to politicize the courts than any of her predecessors.
Stephen Harper was thought by many to have been out of line when he called her out for her rulings on the case of Omar Khadr, and the case of Safe Injection Sites. These interpretations, Conservatives argued were nowhere to be found in Constitutional law, or in precedent, but were made up in the name of the spirit of the times. Harper may have been wrongheaded to have gone about the criticism in the way that he did, but he was certainly not without his reasons.
In the following, I will examine McLachlin’s commentary on the matters of equality jurisprudence and her rebuttals to the charge of judicial activism.
Equality Jurisprudence – the Paradigm of ‘Substantive Equality’
One of the most challenging concepts that is invoked in the most high-profile cases is equality. Writing on the subject, McLachlin indicates that she recognizes the role of the Canadian Charter was to do away with the ‘equality before the law’ interpretation for an expansive guarantee of a litany of positive rights[v]. She also notes that this would be a challenge, as she writes “the language of equality is so open and general that it is difficult to assign it a precise legal meaning.[vi]”
She contends that the difficulty comes from the generality of equality language because people mean different things by it. Partly because of this, debates about equality are really about what kind of society people want. Lastly, she writes “the reality of equality can never meet its promise. Equality is not only the Leviathan of rights; it is also a Tantalus. It promises more than it can deliver”[vii].
Nevertheless, there are certain ‘emerging rocks of certainty’ that she thinks we can turn to in jurisprudence. First is the concept of ‘substantive or material equality’ as a basis, rather than ‘formal Aristotelian equality’, as she refers to it. The latter, she says, “permits discriminatory acts simply by classifying groups as ‘unalike’”[viii]. She argues that “substantive equality is founded on the principle that all human beings are of equal worth and possessed of the same innate human dignity, which the law must uphold and protect, not just in form, but in substance.”[ix]
At this point, I am already lost and think she has it backwards. Aristotelian, and Judeo-Christian equality is the version that espouses the view of equality as inherent dignity. Substantive equality begins there, and to varying degree, argues that actions, behaviours, and lifestyles are equal, or should be compensated for by redistribution, or discrimination, such that the outcomes are equalized along relevant dimensions.
The language she uses is taken from, of course, John Rawls – the 20th century political philosopher who revolutionized political thinking in and outside the academy. She cites him as an important reference for this concept in her argument.
Though she clearly favours substantive equality, she points out its difficulties and recognizes that they will need to be addressed in years to come. The principle difficulty arises out of the need to determine what are the relevant similarities and dissimilarities between persons, and what things should be made equal. The courts must decide which situations are ‘substantially the same’ or ‘substantially different’.
Further, I would argue that by placing the importance on a substantive, rather than a formal type of equality, the ironic consequence follows that difference becomes extremely important. For, the only reason why someone would want a substantive kind of equality is because of differences that result in unequal outcomes in the relevant categories. Thus, McLachlin points out that the law must also be concerned with the effects of law on different groups. Lastly, “the law must also treat those in substantially different situations differently to avoid inappropriate distinctions and discrimination”[x].
Recognizing that the law necessarily protects difference and thereby many of the effects that it produces, she considers to what extent this is acceptable. Her answer is revealing – “How large or significant must the class be before the law recognizes the right to differential treatment? And when does different treatment to compensate for different situations cross the line and become a special advantage creating, rather than reducing, inequality?”[xi]. Recognizing the trade-off, she says that it all depends on what you mean by ‘substantive’.
To resolve the matter, she points to three possible ‘purposes’ that the law could serve: improving the situation of disadvantaged groups, promote the equal conferral of state benefits, and to promote equal status.
This sounds to me like encouraging the courts to play an activist and interventionist role in equalizing outcomes, a traditional Marxist idea that McLachlin had just denied was possible only a few paragraphs ago. Such a conception is directly inconsistent with freedom and equal inherent human dignity.
What follows? The courts must develop analytical tools of distinction to rank and prioritize interests, assess the proportion between competing concerns, and so on. In short, the development of a system not of laws, but of judges, whose personal convictions, intellectual schemas and utopian ideas – that, I might add, do not pass the test of conceptual, let alone empirical coherence, something that McLachlin admits ironically enough – are to decide the fate of cases. Who’s in and who’s out – leave it up to the intellectuals!
This is what classical Marxism is all about – the intellectuals who are sufficiently enlightened will slowly usher in the utopia by equalizing and levelling down outcomes through a system of state-sponsored discrimination and redistribution.
I am not accusing the honourable Justice of holding this belief or wishing for something like it. I am arguing that it is not an unlikely consequence of continuing down the path that we are on.
On the point of what measures effectively reduce harmful material and relative equality, I must part ways considerably. Contrary to what McLachlin suggests, the gains in material well-being, and the reductions in gross social inequalities have been achieved by a legal guarantee of the rules that make class mobility possible, by allowing persons to pursue the good for themselves in the free market.
Now, if any of what I have been saying is valid, and that the trend towards interventionism, activist judging, the proliferation of laws and lawyers and the deleterious effects they have on our institutions, and the development of character in persons, then what Ms. McLachlin suggests looks like more of the same.
It is this very conceptual fracturing, over-particularization and concern with details, move to subjective interpretation that will expand the law beyond the comprehension of anyone but a narrow expert in some particular field.
It is not that the differences between substantive equality, the determination of ‘like’ and ‘unalike’, and questions of the extent of types of equality are not important, it’s that the practice of interpreting and judging on the basis of nuance, context, and particularity is suited to the personal lives of persons, their families, and friends, and associations they join and belong to. It is not to be circumscribed and determined by a host of lawyers and unelected judges.
In a certain sense, so many differences do seem to stem from varying interpretations of equality – the formal vs. the substantive. However, McLachlin essentially answers her own question, when she admits that equality promises more than it can deliver. Formal equality is the only game in town because it is the only one that is coherent. The only way people can remain equal is in their formal aspects, not in their substantial ones. The move to include the latter in the practice of law-making is the institutionalization of discrimination.
The Charge of Judicial Activism
In a speech at the Conference on Law and Parliament, McLachlin takes up the charge of judicial activism.
“Let me turn, finally, to the fourth version of the charge of judicial activism. This version suggests that judges are making decisions that should be made by elected representatives, who alone possess the necessary legitimacy for law-making and the institutional competence to weigh all the factors that must be considered in making difficult choices of public policy for Canadians. This is a more subtle claim. Let me simply say that judges are sensitive to this concern, but have little choice in the matter.
Where a legal issue is properly before a court, not deciding is not an option. When a citizen claims that the state has violated his or her constitutional rights, the Courts must referee the dispute. They do so with all necessary deference to legislative and executive expertise in weighing competing demands on the public purse, and competing perspectives on public policy. In deciding difficult social issues, the courts act with deference to the decisions of the legislative branch. Judges recognize that:
… in certain types of decisions there may be no obviously correct or obviously wrong solution, but a range of options each with its advantages and disadvantages. Governments act as they think proper within a range of reasonable alternatives, and the [Supreme] Court acknowledged in M. v. H. . . . . that “the role of the legislature demands deference from the courts to those types of policy decisions that the legislature is best placed to make”.Footnote3
There are, however, limits. Deference does not mean simply rubber stamping laws. If a law is unconstitutional, it is the duty of the courts to say so. In the words of my colleague Ian Binnie, in the recent decision of Newfoundland v. NAPE:
. . . Whenever there are boundaries to the legal exercise of state power such boundaries have to be refereed. Canadian courts have undertaken this role in relation to the division of powers between Parliament and the provincial legislatures since Confederation. The boundary between an individual’s protected right or freedom and state power must also be refereed. The framers of the Charter identified the courts as the referee. While I recognize that the separation of powers is an important constitutional principle, I believe that the s. 1 test set out in Oakes and the rest of our voluminous s. 1 jurisprudence already provides the proper framework in which to consider what the doctrine of separation of powers requires in particular situations, as indeed was the case here. To the extent [that some would] invite a greater level of deference to the will of the legislature, I believe acceptance of such an invitation would simply be inconsistent with the clear words of s. 1 and undermine the delicate balance the Charter was intended to achieve.Footnote4
In the end, when we examine what is really being said, the claim fails that judges are overstepping the proper constitutional boundaries of their role.[xii]”Beverley McLachlin; ‘Respecting Democratic Rights’, Conference on the Law and Parliament, November 22, 2004.
To me, it is not whether certain judges are acting according to their own prejudice, for that is a given. There is no person, however well-trained and bathed in the cold waters of logic, that acts without prejudice. Since the shift from an understanding of rights as guarantees against interference to a government program of socially engineering outcomes and fulfilling positive rights, the courts are simply more activist by default. It is a necessary outcome of giving more power to judges to decide matters that are often times politically sensitive, with interpretive tools that are far more expansive and much vaguer.
Where to from here?
The Canadian Charter of Rights was established in 1982 as part of the Constitution Act. The novelty of the rights included therein, and the lack of judicial precedent in interpreting them meant that there would be a period of formation.
In the previous post on rights, I argued for the conceptual incoherence of the notion of a positive right. The Canadian Charter is replete with them. Depending on how you interpret the purpose of the Charter, and what it entails, the list of rights can mean any number of things. Along two ends of a spectrum of possibilities, the Charter can be read in such a way as to mean that it contains a list of things that the government cannot do, or as a list of things that the government ought to promote or fulfill. For example, does the right to life and liberty mean that the government or persons cannot do things to restrict those rights, or must the government do certain things in order to promote or fulfill them?
Peter McCormick and Ian Greene argue that the Courts have moved closer to the side of government-fulfillment of positive rights, restrictions on negative liberties such as freedom of expression and freedom of association, and religion, but that nonetheless, this ‘charter revolution’ is over.[xiii]
I think they may be right in the sense that, barring any other major cultural revolutions, it is difficult to see how courts could justify more incursion on the negative rights of individuals without essentially depriving the notion of rights of meaning and substance. They can do much less in the area of federalism, since the division of powers has already undergone a substantial beating, placing more power in the hands of the federal government.
However, I would argue that the damage is already done, and that the logic of cultural trends does not bode well for some of the tricky cases.
First, given that courts are supposed to pursue substantive equality, they are thereby actively trying to equalize outcomes. Coupled with the fact that a person can claim identity status on a subjective basis, they can thereby claim discrimination in more cases. This means that the courts must do more to equalize outcomes between groups that are multiplying in number.
Two strong trends in the culture are the materialist and postmodern understanding of the relationship between a person’s genetic/social makeup and their identity. Increasingly, niche and alternative forms of identity and patterns of behaviour proliferate due to the positive value attached to self-determination, the weakening of the belief in better or worse forms of life, and the collapse of norms.
It is not hard to imagine that in years to come, relationships with non-human entities, such as artificial intelligence or with animals (who are now viewed by many as substitutes for children, or as very similar to humans) could be justified and upheld under the law. The justification could foreseeably be that either a) there are genetic causes ‘predisposing’ a person to such actions, or b) that the person has chosen it, and it therefore constitutes ‘their good’, or c) the individuals who have undertaken the activity are from a ‘disadvantaged’, ‘marginalized’, or ‘oppressed’ group and that therefore the practice must be protected and probably even encouraged. It is not difficult to see that on the ‘substantive equality’ interpretation, the law must be changed so as not to ‘discriminate’ against any of the increasingly variegated forms of life that its citizens practice.
Second, the move away from an integrationist model of multiculturalism towards a pluralistic model means that there are more opportunities for radical value conflict than before. In the case of the former, immigrants have all of their beliefs, and practices protected and respected to a certain extent, but they do not seek to change the law or culture explicitly in order to change norms and customs. In the case of the latter, all cultural practices are deemed equally valid, and the rejection, or constant change of the existing cultural practices is encouraged. This is the trend we are moving towards.
The reason why negative rights worked so well in the past is because it was accepted that they were in place so that persons could use their freedom to pursue the good, as it had come to be known in the Western philosophical tradition – living in accordance with certain virtues, principles and values. There is little social glue to hold together the many divergent and irreconcilable differences between the various groups within western cultures today.
Both of these trends may dissipate, but it is hard to see how, when the popular belief among the educated elite is outright shame and even the resentment of their own culture’s most foundational values, and an increasingly relativist mindset in general.
A case in the American context reflects this.
“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”Justice Anthony Kennedy; Planned Parenthood vs. Casey, 505 U.S. 833 (1992).
In Planned Parenthood v. Casey, Justice Kennedy uttered this statement in his opinion that riled many conservatives to the core. His statement seems to be perfectly representative of the ‘evolving standards of decency’, and ‘New Age’ primitive thinking that has ironically swept the most civilized and well-educated people in the world. However, as a legal statement, it is representative of the conservative approach to the protection of negative rights and freedoms – that the government should not dictate answers to these questions, it should be up to the person to decide.
The further question is whether in fact such things as ‘the concept of existence’ and ‘meaning’ are constrained by considerations involving basic facts about reality, history, human nature, and the like. What conservatives have taken for granted is that there has always been a pre-political consensus about certain concepts that do not need to be questioned, because they have been so obvious for so long – the background that goes unnoticed. Only now, when the culture does not know the sources of its own practices does a statement such as that made by Justice Kennedy look like the embodiment of New Age mysticism, and a return to the world of pre-civilization.
It is interesting to note the parallels between today and the collapse of many other great civilizations in the past, as has Lawrence Reed.
The Roman Empire is a good example of a state with strong rule of law, and a republican form of government that delegated responsibility to different bodies, thereby checking the power of competing groups.
The Empire’s territory included many diverse cultures that were in many cases, allowed and encouraged to keep their cultural practices within bounds, though they were subject to the Roman rule of law.
They met their ends when their elites ceased to believe in the founding values of their civilization. As is sometimes said, but not often enough, it is rarely the external forces that bring about collapse, but when the ungrateful children of great civilizations turn on their own principles.
In summary, the creation of the administrative state and the proliferation of tribunals is creating a sclerotic amount of regulation and government bodies which are sapping the economic, and social life force out of society, and substituting dependence for responsibility and character. Though the Charter revolution in Canada may be over, the philosophical orientation to the law that we’ve put ourselves in has too many conceptual inconsistencies so as to continue to be a workable basis for it. It has institutionalized positive discrimination by the state, judicial activism and policymaking, and the infringement of individual rights to an extent that it is difficult to see how it can be reversed without major damages to core institutions, and cultural conflict.
When the Charter of Rights and Freedoms was developed and put into place in 1982, it had the potential to change the nature of Constitutional jurisprudence, and indeed it did. Unlike classical bills of rights, grounded in negative protections of the sphere of liberty of the person, the Canadian constitution contains a litany of positive rights, whose fulfilment requires infringement upon the negative rights of persons.
Since there are so many, judges must weigh and trade off rights against one another when making a decision.
Viewed in light of the above claims about the resources required to do so, the strain on the legal system, and the proliferation in the numbers of lawyers and laws, this seems like a fool’s errand. It has effectively created more problems for the institutions of Western democracies, and actually detracted from the achievement of material and social well-being for many of the groups that it seeks to claim it for. By trying to pursue substantive equality, rather than classical equality in the legal defence of the inherent dignity of the person, liberal and progressive trends in the law are creating a system, not of laws that protect persons, but an interpretive game where judges weigh and balance the stack of laws and rights, and dictate norm and custom. It is a system whose complexity engenders not the equal application of the law, but prejudicial judgments that are discriminatory in the technical and sometimes not-so-technical sense of the term.
We have yet to see the new Chief Justice – Richard Wagner’s – judicial philosophy in practice in the same way, as he hasn’t quite faced the challenge of a major, divisive issue. Whether the court in Canada will err on the side of judicial activism or restraint remains to be seen.
In the third segment of this essay, I will outline a positive vision for the structure of law and the philosophy of its interpretation. I will conclude with reflections on the series ‘From Precision to Vagueness’.
[i] “Regulations are a form of law, often referred to as delegated or subordinate legislation. Like Acts, they have binding legal effect and usually state rules that apply generally, rather than to specific persons or situations. However, regulations are not made by Parliament. Rather, they are made by persons or bodies to whom Parliament has delegated the authority to make them, such as the Governor in Council, a Minister or an administrative agency. Authority to make regulations must be expressly delegated by an Act. Acts that authorize the making of regulations are called enabling Acts. An Act generally sets out the framework of a regulatory scheme and delegates the authority to develop the details and express them in regulations. Most regulations are designated as such in the Act that authorize them to be made. However, Acts sometimes authorize the making of documents that have the same legislative effect, but which are called by another name, for example, ‘by-laws,’ ‘rules,’ ‘tariffs,’ ‘ordinances’ or ‘orders.’ Usually, these documents are made in the same way as regulations and are subject to the same policy and legal constraints.” Canada and Privy Council Office, Guide to Making Federal Acts and Regulations. (Ottawa: Govt. of Canada, Privy Council Office, 2001).
[ii] “Administrative Tribunals” (Ombudsman Ontario), accessed November 24, 2019, https://www.ombudsman.on.ca/have-a-complaint/administrative-tribunals.
[iii] Beverley McLachlin, “Respecting Democratic Rights” (November 22, 2004), https://www.scc-csc.ca/judges-juges/spe-dis/bm-2004-11-22-eng.aspx.
[iv] Elmer Abram Driedger, Construction of Statutes, 2. ed, Canadian Legal Manual Series (Toronto: Butterworths, 1983), 87.
[v] “The Canadian Charter guarantees equality not just in one way, but in four — we are declared to be equal before the law, equal under the law, entitled to equal benefit of the law and to the equal protection of the law. Its framers were determined to pre-empt the restrictive interpretations that courts had placed on the guarantee of ‘equality before the law’ used in the Charter’s predecessor document, the Bill of Rights.” Beverley McLachlin, “Equality: The Most Difficult Right,” The Supreme Court Law Review: Osgoode’s Annual Constitutional Case Conferences 14 (2001): 17.
[vi] McLachlin, 17.
[vii] McLachlin, 20.
[viii] McLachlin, 20.
[ix] McLachlin, 20.
[x] McLachlin, 22.
[xi] McLachlin, 23.
[xii] McLachlin, “Respecting Democratic Rights.”
[xiii] Peter James McCormick, The End of the Charter Revolution: Looking Back from the New Normal (Toronto, Ontario: University of Toronto Press, 2015).