Does the Chief Justice believe in (the common) law?

The Université de Montréal’s Common Law Programme held a fascinating symposium on “Supreme Courts and the Common Law” last week, thanks to the hard work of Matthew Harrington and Paul Daly. (If you missed it, you can watch it here.) Kicking off the event was a rather remarkable speech by Chief Justice Beverley McLachlin. Most judges who speak public strive to be uncontroversial by being incontrovertible, usually to the point of blandness and not infrequently insipidity. Not so the Chief Justice, who made a number of statements that, while not likely intended to invite controversy, are likely to do so.

In a nutshell, the Chief Justice argued that traditional views of common law reasoning as being “bottom-up” ― proceeding from cases to principles ― and of civilian reasoning as being “top-down” ― proceeding from principles to cases ― are no longer valid. Regarding the common law, while it was formerly thought dangerous to let judges reason from abstract principles ― because they might invent these principles themselves ― this distrust has faded in the last 100 years or so. Invoking examples such as the Persons Case and Donoghue v. Stevenson, the Chief Justice argued that judges rightly feel entitled to change the law, finding in principles responses to changed social circumstances. She explained this change of heart by three factors. First, bills of rights lay down general principles for judges to elaborate, and as judges enjoy doing so, this approach “trickles down” to common law adjudication. Second, the role of supreme courts is increasingly seen (and indeed described in statutes) as being the development of the law, rather than mere error-correction in private disputes. And third, international law, which also requires “reasoning down,” is increasingly influential. These factors combine to give the top common law courts more latitude and opportunities to reason in a manner traditionally ascribed to civilians; and a good thing too, for, in the Chief Justice’s view, “neither precedent nor doctrine should easily undermine the court’s mandate to find truth and do justice.”

There is, in my respectful opinion, much to disagree with in this. To begin with, the Chief Justice’s description of the traditional common law method of adjudication strikes me as a caricature at best, and completely wrong at worst. It is telling, I think, that the one person whom the Chief Justice quoted in describing her understanding of the traditional common law view is Richard Posner. While a great judge, he is a man with very unorthodox views and relatively little interest in the common law’s history. I admire Judge Posner, but I would not regard him as an authority on the common law tradition. (Incidentally, I would not have expected to count the Chief Justice among Judge Posner’s admirers, but perhaps I am wrong about that.) For the traditional common law view, the Chief Justice would, I submit, have done better to consult the decisions of Lord Mansfield, who famously wrote in R. v. Bembridge that “[t]he law does not consist of particular cases but of general principles, which are illustrated and explained by these cases.”

“...neither precedent nor doctrine should easily undermine the court’s mandate to find truth and do justice.”

The Chief Justice is also mistaken in her appraisal of the Persons Case. Contrary to her claims, it was not decided on the basis of a general principle of gender equality; nor did the Judicial Committee of the Privy Council (JCPC) regard itself as entitled to change the law when it issued its opinion on the interpretation of the word “persons” in section 24 of the Constitution Act, 1867. (It is worth noting, as Benjamin Oliphant and I do in a recent paper, that only a couple of years after authoring the JCPC’s opinion in the Persons Case, Lord Sankey wrote, in the Aeronautics Reference, that “[t]he process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded.”) For the JCPC the Persons Case was a statutory interpretation case, and the principles which guided its decision were those that had long been applicable to the interpretation of legislation, as I explained in a blog post, and Bradley Miller, at greater length and with more rigour, in an article.

The Chief Justice’s misinterpretation of the past would of course be of limited interest were it not connected to her understanding of the present and future of adjudication. She described a historical discontinuity which has transformed the judicial role and has given judges license to change the law in order “to find truth and do justice” without the restraints of precedent and doctrine. To be sure, she added that these “must not be jettisoned,” but I find it difficult to see how they not be discarded if the overarching objective of the court is not fidelity to law, but a quest for “justice” which no fetters must be suffered to restrain. Yet the discontinuity is largely imaginary; it is the defective product of what we might call judicial chambers history.

True, conceptions of the judicial role change over time ― though not necessarily in linear fashion. Yet as John Finnis has observed in a recent essay, they respond to “permanent problems” and, as I have argued, arguments made by Francis Bacon more than four centuries ago are still instantly recognizable today. The common law tradition has always involved reasoning both from cases to principles and from principles to cases; it has always featured judicial attempts to respond to changed circumstances and new facts; but it has also always involved restraints on judicial creativity ― in the shape of precedent and doctrine, and also, of course, statutory and constitutional text.

The Chief Justice now declares that she is not bound by at least two of these constraints, and her description of the constitutional text as only setting out principles, and of the Persons Case as being an application of a general principle rather than a painstaking exercise of interpretation suggests that she does not regard the third as much of a constraint either. Hence the question I pose in the title: does the Chief Justice believe in (the common) law? All law means constraint, first and foremost for government officials ― judges among them. Constraining officials, as well as having rules announced in advance for citizens to follow, provides predictability. If judges do not regard themselves as bound by the law, the Rule of Law’s promise of limited government and certainty is an empty one.

Of course, the law has never been entirely predictable. It cannot stand still in a society that changes. It has had its widely admired innovators ― Lord Mansfield among them. Judicial innovation, as I have suggested in a blog post, can arguably be a necessary response to legislative passivity. The fact that legislatures often choose to intervene neither before nor after a judicial decision changes the law is an indication that they are content for judges to do the difficult work for them, although their indolence may well be wrong from the standpoint of political morality. Indeed, the Chief Justice’s and her court’s (occasional) willingness to be transparent about their law-reforming endeavours instead of hiding behind protestations of “nothing to see here, we’re just calling balls and strikes,” is commendable.

Still, it is disheartening, and indeed shocking, that the Chief Justice of Canada apparently thinks that the law should not constrain her decision-making. Courts are, it has been said, the least dangerous branch of government, the one most unlikely to wield absolute power. That is true. But if not absolute, the courts’ power can nevertheless be arbitrary. The Chief Justice’s speech is a signal that this danger is a very real one in Canada.

The views expressed here are the author's own.