Rule of Law, Justice, and Interpretation 9780773566910

Citation preview

The Rule of Law, Justice, and Interpretation

LUC B. TREMBLAY

McGill-Queen’s University Press

The Rule of Law, Justice, and Interpretation

In The Rule of Law, Justice, and Interpretation Luc Tremblay analyses and refutes the positivist legal theory that prevails in Canadian constitutional practice. Using the techniques of critical theory, hermeneutic interpretation, and analytical jurisprudence, he shows that the dominant interpretations of the central legal doctrines of the rule of law and the sovereignty of Parliament are incoherent. The analysis opens the way for the construction of a bold alternative theory of legal discourse and practice based on the concept of the rule of law itself. Tremblay's theory of the rule of law involves a set of practical principles that constitute the "idealtype" of a conception of law that is both constitutive and regulative of legal discourse and practice. Tremblay examines two competing idealtypes, the "rule of law as certainty" and the "rule of law as justice." The former, a standard doctrine within contemporary legal, social, and political theory, is shown to be incoherent. Thus the "rule of law as justice," he shows, provides the best basis for understanding legal discourse in general and Canadian constitutional law in particular. Tremblay offers a coherent reconstruction of Canadian law from fundamental principles of the rule of law as justice and tests the theory through applications to keyjudicial decisions that have proven resistant to positivist interpretation. The Rule of Law, Justice, and Interpretation is both a stimulating work of contemporary legal theory and an innovative challenge to the traditions of Canadian constitutional law. Tremblay examines fundamental issues of legal epistemology and ontology and brings rigorous analytical jurisprudence to bear on interpretations and applications specific to Canadian constitutional law. Given the important implications of his theory for statutory and constitutional interpretation, especially with respect to the Canadian Charter of Rights and Freedoms and the potential crisis involving provincial rights of secession and partition, this book will be central to the practice of law in Canada. LUC B. TREMBLAY is professor of law, Universite de Sherbrooke.

This page intentionally left blank

The Rule of Law, Justice, and Interpretation LUC B. TREMBLAY

McGill-Queen's University Press Montreal & Kingston • London • Buffalo

McGill-Queen's University Press 1997 ISBN 0-7735-1673-5 Legal deposit fourth quarter 1997 Bibliotheque nationale du Quebec Printed in Canada on acid-free paper This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. Funding has also been received from the Universite de Sherbrooke. McGill-Queen's University Press acknowledges the support received for its publishing program from the Canada Council's Block Grants program.

Canadian Cataloguing in Publication Data Tremblay, Luc, 1958The rule of law, justice and interpretation Includes bibliographical references and index. ISBN 0-7735-1673-5 i. Rule of law. I. Title. KE4238.T74 1997 340'.! i 097-900763-1

This book was typeset by Typo Litho Composition Inc. in 10/12 Baskerville.

Contents

Cases vii Statutes

xiii

Preface

xvii

Introduction 3 PART ONE

ORTHODOX

CONSTITUTIONAL THEORY

1 The Basic Postulates 2 The Rule of Law

15

22

3 The Sovereignty of Parliament PART TWO

13

57

AN A L T E R N A T I V E

CONSTITUTIONAL THEORY

4 The Rule of Law as "Idealtype" 5 The Rule of Law as Certainty 6 The Rule of Law as Justice

135

137 149

166

7 The Rule of Law as Justice in Canada

184

8 Verification of the Alternative Theory

210

Conclusion Notes

233

237

Bibliography Index 331

311

This page intentionally left blank

Cases

Abrahams v. The Attorney General of Canada, [1983] i S.C.R. 2. A. Salomonv. Salomon & Co. Ltd., [1897] A.C. 22. A.G. of Canada v. Lavell, [1974] S.C.R. 1349. A.G. of Canada v. The Reader's Digest Association (Canada) Ltd., [1961] S.C.R. 775. A. G. of Nova Scotia v. A. G. of Canada, [1951] S.C.R. 31. A.G. ofQuebec v. Blaikie, [1979] 2 S.C.R. 1016. Action Travail des Femmes v. Compagnie des Chemins defer nationaux du Canada, [1987] i S.C.R. 1114. Amax Potash Ltd. v. Saskatchewan, [1977] 2 S.C.R. 576. Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147. Attorney-General for Canada v. Attorney-General for Ontario (The Labour Conventions case), [1937] A.C. 326. Attorney-General for New South Wales v. Trethowan, [1932] A.C. 526 (P.C.). Bakery and Confectionery Workers International Union of America v. White Lunch Ltd., [1966] S.C.R. 181. B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214. Beauregardv. Canada, [1986] 2 S.C.R. 56. Bentley Nursing Home Inc. v. M.A.S., (1978) C.S. 30. Blackburn v. Attorney-General, [1971] iW.L.R. 1037. Black-Clawson International Ltd. v. Papierwerke Waldhof-Ashaffenburg [1975] i A11E.R. 810. Blackv. Law Society (Alberta), (1986) 27 D.L.R. (4*) 527 (Alta C.A.). Boucher v. The King, [1951] S.C.R. 265. Bradlaughv. Gossett, (1884) 12 Q.B.D. 271. British Coal Corporation v. The King, [1935] A.C. 590. British Columbia Government Employees' Union v. A.G. of British Columbia, [1988] 2 S.C.R. 214. Brodiev. The Queen, [1962] S.C.R. 681.

viii

Cases

Brooks v. Canada Safeway Ltd., [1989] i S.C.R. 1219. CAIMAWv. Paccar of Canada Ltd., [1989] 2 SC.R. 983. Calladyv. Pilkington, (1701), 12 Mod. 513, 88 E.R. 1485 (C.P.). Canada (Attorney General) v. Public Service Alliance of Canada, [1991] i S.C.R. 614. Canadian Pacific Railway Co. \.James Bay Railway, [1905] 36 S.C.R. 42. Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. City of London v. Wood, (1701), 12 Mod. 669. City ofOttawav. Town ofEastview, (1941) S.C.R. 448. City of Saskatoon v. Shaw, [1945] S.C.R. 42. Coletv. The Queen, [1981] i S.C.R. 2. Committeefor the Commonwealth ofCanada v. Canada, [1991] i S.C.R. 139. Crevierv. Attorney General for Quebec, [1981] 2 S.C.R. 220. Currv. The Queen, [1972] S.C.R. 889. Dayv. Savage, (1614) Hobart 85, 80 E.R. 235. Dechowv. The Queen, [1978] i S.C.R. 951. Dr. Bonham's Case, (1610) 8 Co. Rep. 114 a (C.R). Dominion News & Gifts (1962} Ltd. v. The Queen, [1964] S.C.R. 251. Domtar Inc. v. Quebec (Commission d 'appel en matiere de lesions professionnelles), [1993] 2 S.C.R. 756. Drewery et Al. v. Century City Developments Ltd. (No. i), (1975) 52 D.L.R.

( 3 d) 512 (H.C.Ont.).

Dupontv. City of Montreal, [1978] 2 S.C.R. 770. Duport Steels Ltd. v. Sirs, [1980] i All E.R. 529. Ecclesv. Bourque, [1975] 2 S.C.R. 739. Edinburgh and Dalkeith Railway v. Wauchope, (1842), 8 Cl. & F. 710, 8 E.R.

279(H.L.)-

Ellen Street Estates Ltd v. Minister of Health, [1934] i K.B. 590. Ex p. Selwyn, (1872) 36 J.P. 54. Eystonv. Studd, (1574) Plow. 459. Farrellv. Workman's Compensation Board (B.C.), [1962] S.C.R. 48. Fordv. Quebec (Attorney General), [1988] 2 S.C.R. 712. Gallant v. R., [1949] 2 D.L.R. 425. Gamble v. R., [1988] 2 S.C.R. 595. Germain v. The Queen, [1985] 2 S.C.R. 241. Goldman v. The Queen, [1980] i S.C.R. 976. Gravel v. Cite de St-Leonard, [1978] i S.C.R. 660. Harris v. Donges, (1952) i T.L.R. 1245. Harris v. Minister of the Interior, [1952] 2 S.A.L.R. (A.D.) 428. Henningsenv. Bloomfield Motors Inc., 32 NJ. 358, 161 A. 2d 6g (1960). Hodge v. The Queen, (1883) 9 App. Gas. 117 (P.C.). Hoganv. The Queen, [1975] 2 S.C.R. 574.

ix

Cases

In re Initiative and Referendum Act, [1919] A.C. 935. In re the Initiative and Referendum Act, (1916) 27 Man. R. i. Insurance Corporation of British Columbian. Heerspink, [1982] 2 S.C.R. 145. L'alliance des professeurs catholiques de Montreal^. The Labour Relations Board of Quebec, [1953] 2 S.C.R. 140. Laidlawv. The Municipality of Metropolitan Toronto, [1978] 2 S.C.R. 736. LeBarv. Canada, [1989] i F.C. 603. Leev. Bude and Torrington Railway Co., (1871) L.R. 6 C.P. 576. Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644. Liquidators of the Maritime Bank of Canada v. Receiver General of New Brunswick, [1892] A.C. 437. Macarthys Ltd. v. Smith, [1979] 3 All E.R. 325, [1981] Q.B. 180. MacBainv. Lederman, [1985] i F.C. 856 (C.A.). Madzimbamuto v. Lardner-Burke, [1969] A.C. 645. Magor and St. Mellons Rural District Councils. Newport Corp., [1952] A.C. 189. Mainv. Stark, (1890) 15 A.C. 384. Malonev. Metropolitan Police Commissioner, [1979] Ch. 344. Marburyv. Madison, 5 U.S. (i Cranch) 137 (1803). Mercurev. R., [1988] i S.C.R. 234. National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324. New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] i S.C.R. 319. O'Connellv. Reg., (1844) 11 Cl. & F. 155. Ontario Human Rights Commission and O'Malley v. Simpsons Sears Ltd, [1985] 2 S.C.R. 536. O.P.S.E.U. v. Ontario (Attorney General), [1987] 2 S.C.R. 2. Padfeeldv. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997. Pickinv. British Railways Board, [1974] A.C. 765. Piggottv. The King, (1916) 53 S.C.R. 626. Pouliotv. Town of Fraserville, (1916) 54 S.C.R. 310. R. v. Aldred, (1909) 22 Cox C.C. i. R. v. Butler, [1992] i S.C.R. 452. R. v. Burns, (1886) 16 Cox. C.C. 333. R. v. Drybones, [1970] S.C.R. 282. R. v. Gonzales, (1962) 37 W.W.R. 257, 37 C.R. 56, 132 C.C.C. 237, 32 D.L.R. (2d) 290. R. v. Hart and White, (1808) 30 St. Tr. 1131. R. v. Hickling, [1868] L.r. 3 q.b. 360. R. v. Irwin, [1926] Ex. C.R. 127. R. v.fordan, (1967) Grim. L. R. 483.

x

Cases

R. v. Love, 5 St. Tr. 43 (1653). R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. R.v. Sommerville, [1974] S.C.R. 387. R. v. Vermette, [1982] C.S. 1006. R.v. Wood, (1982) 31 C.R. ( 3 d) 374 [N.S.]. Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198. Re Anti-Inflation Act, [1976] 2 S.C.R. 373. Re Manitoba Language Rights, [1985] i S.C.R. 721. Re Residential Tenancies Act of Ontario, [ 1981 ] i S.C.R. 714. Re Resolution to Amend the Constitution, [1981] i S.C.R. 753. Re Upper House, [1980] i S.C.R. 54. Reference re Alberta Statutes, [1938] S.C.R. 100. Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525. Reference re Upper Churchill Water Rights Reversion Act, [1984] i S.C.R. 297. Reg. v. Sullivan, (1868) 11 Cox. C.C. 44. Reginaexrel. Stubbsv. Steinkopf (1965) 47 D.L.R. (2 nd ) 105 (Man. Q.B.). Riggsv. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889). Roberts v. Hopwood, [1925] A.C. 578. Robichaudv. Canada (Treasury Board), [1987] 2 S.C.R. 84. Roncarelli v. Duplessis, [1959] S.C.R. 121. Rooke's case, (1598) 5 Co. Rep. 99 b, 77 E.r. 209. Rosenv. The Queen, [1980] i S.C.R. 961. Scowbyv. Glendinning, [1986] 2 S.C.R. 226. Semayne's case, 77 E.R. 194, 5 Co. Rep. 91 a. Sheffield (Lord)v. Ratcliffe, (1615) Obart 334. Singh v. M.E.I., [1985] i S.C.R. 177. South- West Africa Cases (Second Phase), 1966, in Brownlic, I. (ed.), Basic Documents on Human Rights, (1971). Spooner Oils Ltd. v. Turner Valley Gaz Conservation Board, [1933] S.C.R. 629. Steinberg's Ltd. v. Le Comite paritaire de I'alimentation au detail, [1968] S.C.R. 971. Stewart v. "Vera Cruz, " [1884] 10 A.C. 59. Stockdalev. Hansard, (1839) 9 AD & E. i, 112 E.R. 1112. Stowelv. Lord Zouche, (1564), Plow. 353. Stradlingv. Morgan, (1560), Plow, 199. Switzman v. Elbling, [1957] S.C.R. 285. The Bribery Commissioner v. Ranasinghe, [1965] A.C. 172. The Executors of Woodward Estate v. The Minister of Finance, [1973] S.C.R. 120. The Kingv. Dubois, [1935] S.C.R. 378. The King v. Williams, [1944] S.C.R. 226. The Law Society of Upper Canada v. Skapinker, [1984] i S.C.R. 357.

xi

Cases

The Prince's Case, (1606), 8 Co. Rep. la, 130, 77 E.R. 481 (Ch.). The Queen v. All, [1980] i S.C.R. 221. The Queen v. Beauregard, [1986] 2 S.C.R. 56. TheQueenv. Cokt, (1979) 46 C.C.C. (ad) 243. The Queen v. Lincoln Mining Syndicate Ltd., [1959] S.C.R. 736. TheQueenv. Melford Developments Inc., [1982] 2 S.C.R. 504. The State v. Dosso, (1959) i Pakistan L.R. 849. Toronto Railway Co. v. City of Toronto, [1906] 37 S.C.R. 430. Toronto Railway Company v. Paget, (1909) 42 S.C.R. 488. Towne Cinema Theatres Ltd. v. The Queen, [1985] i S.C.R. 494. Uganda v. Commissioner of Prisons, ex. p. Matovu, [1966] E.A. 514. Vacher & Sons Ltd. v. London Society of Compositors, [1913] A.C. 107. Vauxhall Estates Ltd v. Liverpool Corporation, [1932] i K.B. 733. Wellesley Hospital v. Lawson, [1978] i S.C.R. 893. Wimbishv. Tallboys, (1551), Plow, 38. Winnipeg School Division No. iv. Craton, et al., [1985] 2 S.C.R. 150. Wrights' Canadian Ropes Ltd. v. Minister of National Revenue, [1946] S.C.R. !39-

This page intentionally left blank

Statutes

UNITED KINGDOM

Acquisition of Land (Assessment of Compensation) Act, 1919, 9-10 Geo. 5, c. 57. Bill of Rights, 1689, i Will & Mar. sess. 2, c. 2. Canada Act, 1982, 31-32 Eliz. II, c. 11 (U.K.), reproduced in R.S.C. 1985, Appendix II, no 44. Colonial Laws Validity Act, 1865, 28-29 Viet, c. 63. Constitution Act, 1867 (formerly the British North America Act, 1867), 30-31 Viet., c. 3 (U.K.), reproduced in R.S.C. 1985, Appendix II, no 5. Constitution Act, 1982, 31-32 Eliz. II, c. 11 (U.K.), Schedule B, Canada Act, 1982, in R.S.C. 1985, Appendix II, no 44. Equal Pay Act, 1970 (as amended by the Sex Discrimination Act, 1975), 1970, c. 41; 45 Halshbury's Statutes (3rd ed). European Communities Act, 1972, 1972, c. 68; 42 Halshbury's Statutes (3rd ed), 145-149. New South Wales Constitution Act, 1855, 18-19 Viet., c. 54. Parliament Act, 1911, 1-2 Geo. V, c. 13; 32 Halshbury's Statutes (4th ed). Parliament Act, 1949, 12-13-14 Geo. VI, c. 103; 32 Halshbury's Statutes (4th ed). Regency Act, 1937, i Edw. VIII, i Geo. 6, c. 16; 10 Halshbury's Statutes (4th ed). South Africa Act, 1909, 9 Edw. 7, c. 9. Statute of Westminster, 1931, 22 Geo. V, c. 4 (U.K.); R.S.C. 1985, Appendix II, no 27. CANADA

Act Respecting the Legislative Council, S.Q. 1968, c. 9; L.R.Q., c. L-i, repl., S.Q. 1982, c. 62.

xiv Statutes

An Act Respecting Alcoholic Liquor, R.S.Q. 1941, c. 255. Auditor General Act, 1976-77, c. 34. Canada Pension Plan, R.S.C. 1985, c. C-8. Canada-U.S. Tax Convention Act, S.C. 1984, c. 20. Canadian Bill of Rights, R.S.C. 1985, Appendix III. Charte des droits et libertes de la personne, L.R.Q., c. C-12. Combines Investigation Act, R.C.S. 1970, c. C—23. Criminal Code, R.S.C. 1927, c. 36, as amended by S.C. 1930, c. 11 and S.C. 1936, c. 29; R.S.C. 1985, C-46. Electoral Bounderies Readjustment Act, R.S.C. 1985, c. £-3. Human Rights Act, 1974 (Man.), c. 65. Human Rights Act, S.Y. 1987, c. 3. Human Rights Code of British Columbia, 1973 (B.C.), 2nd session, c. 119. Human Rights Code, S.N. 1988, c. 62. Human Rights Code, S.R.O. 1990, c. H. 19. Immigration Act, 1976, 1976-77 (Can.), c. 52; R.S.C. 1985, c. 1-2. Indian Act, R.S.C. 1985, c. 1-5. Individual Rights Protection Act, R.S.A. 1980, c. 1-2. Insurance Act, R.S.B.C. 1960, c. 197. Interpretation Act, L.R.Q., c. I-16. Interpretation Act, R.S.C. 1985, c. 1-21. Judges Act, R.S.C. 1970, c.J-i; R.S.C. 1985, c.J-i. Labour Relations Act, R.S.Q. 1941, c. 162 A, enacted S.Q. 1944, c. 30. Legislative Assembly Act, R.S.O., 1980, c. 235. Legislature Act, L.R.Q., c. L-i, repl., S.Q. 1982, c. 62. Loi sur 1'acces aux documents des organismes, L.R.Q., c. A-2.1. Manitoba Act, 1870, 33 Victoria, c. 3 (Can.); R.S.C. 1985, Appendix II, no 8. North-West Territories Act, S.R.C. 1886, c. 50, rep. 8c subs. 1891, c. 22. Parliament of Canada Act, R.S.C. 1985, c. P-i. Planning Act, R.S.O. 1970, c. 349; R.S.O. 1980, c. 379. Prince Edward Island Human Rights Act, R.S.P.E.I. 1988, c. H-12. Public Inquiry Commission Act, R.S.Q. 1941, c. 9; L.R.Q. c. 37. Public Schools Act, 1980 (Man.), c. 33. Public Schools Act, R.S.M. 1970, c. P25O. Representation Act, R.S.O. 1970, c. 413; R.S.O. 1980, c. 450. Saskatchewan Act, S.C. 1905, c. 42; R.S.C. 1985, Appendix II, no 21. Saskatchewan Human Rights Code, S.S. 1979, c. 8-24.1. Statute Law (Superannuation) Amendment Act, 1975, S.C. 1974-7576, c. 81. Territorial Division Act, L.R.Q., c. D-i i.

xv Statutes OTHER STATUTES

Bribery Act, 1954, Ceylon. Bribery Amendment Act, no 40 of 1958, Ceylon. Ceylon (Constitution) Order in Council 1946, Ceylon. Constitution Act, 1902, no 32 of 1902 - no 28 of 1929; N.S.W. OTHER DOCUMENTS

Declaration of the Rights of Man and of the Citizens of August 26, 1789. Treaty Establishing the European Economic Community, 42A Halsbury's Statutes (3rd ed).

This page intentionally left blank

Preface

This book is based on a doctoral thesis submitted initially at the University of Oxford and then revised and completed at the University of Sherbrooke in 1994-95. My main purpose is to develop a theory of the rule of law that makes sense within contemporary legal and constitutional theory and that contributes to a better understanding of constitutional law. I recognize that many points I make would gain from fuller treatment, especially with respect to potential objections they could give rise to and to potential applications to concrete cases. But my central concern is to develop the theory. Accordingly, I deal with potential objections and applications only when that appears necessary for my purposes. Yet, throughout the book, I refer the reader to various articles in which I have defended in greater detail certain positions. In future writings I hope to be able to justify fully other controversial views. I wish to acknowledge my gratitude to teachers and colleagues, both in England and in Canada, with whom, at some point of my research, I had stimulating discussions. First and foremost, I am most indebted to Christopher McCrudden for his patient reading of previous drafts and his many relevant comments and criticisms. I am also grateful to Geoffrey Marshall and Anthony W. Bradley, both of whom read a version of this book and offered many penetrating comments. I benefited greatly from discussions with John Finnis and John Bell who offered me their early guidance on various topics in legal and constitutional theory. I am also indebted to those professors at the University of Oxford who have had an invaluable influence on my thought, particularly Ronald Dworkin and Joseph Raz, whose challenging seminars and lectures had a much more profound impact than I first noticed when my work was in progress. I also wish to acknowledge my gratitude to those colleagues at the University of Sherbrooke who believed in the project.

xviii

Preface

In particular, I am grateful to Pierre Blache, whose early interest, encouragement, rigorous analytical reflection, and colleagueship stimulated me to deepen my understanding of law and constitutional theory. Conversations with him, as usual, have helped me to clarify many arguments found in this book. I am also grateful to those institutions which have supported me with financial and other aid. This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. The Law School of the University of Sherbrooke and the Montesquieu Funds secured the necessary funds which made it possible for me first to study at Oxford and then to draw on a variety of research facilities and materials while finishing the book. They are partly responsible for the realization of the project. For their generosity, I also wish to thank the British Committee of ViceChancellors and Principals for the Overseas Research Students Award and the Laidlaw Foundation for the Laidlaw Fellowship for Advanced Studies in Law. My stay at Oxford was made especially pleasant and convenient by John L. Barton, who provided me with an office at Merton College in Fellows Quad. I want to thank the staff of the Harvard Law School Library, who allowed me to do research in the various Harvard libraries. I am also greatly indebted to Mrs Johanne Rousseau, who typed many drafts of the book. Her accuracy, rapidity, and sense of humor deserve to be emphasized. I also wish to thank Elizabeth Fee, who proofread the manuscript so as to improve the quality of the English. But, above all, my deepest debt is owed to my family, Raphaelle, Virginie, Camille, and in particular my wife Genevieve, who offered constant encouragement and assumed more than her fair share of family tasks during the course of the book's preparation. I am still wondering, after all these years, how Genevieve can still hear the expression "the rule of law" without flinching.

The Rule of Law, Justice, and Interpretation

This page intentionally left blank

Introduction

My main purpose in this book is to develop a coherent conception of the "rule of law" and my secondary one is to show how this conception bears upon Canadian constitutional law. Since its most basic propositions are supported by general philosophical and theoretical arguments, it may be relevant to most, if not all, Western legal systems, especially in those countries that share with Canada a British legal heritage. I maintain that the concept of the rule of law, correctly understood, constitutes the most basic norm of the legal order and the legal foundation of all other norms and that a theory of constitutional law which fails to give a coherent account of that fact is likely to be inadequate or, at least, partial. My argument is not based on the authority of the preamble of the Canadian Charter of Rights and Freedoms1 providing that "Canada is founded upon principles that recognize the ... rule of law," or on the preamble of the Constitution Act, 1867* stating that Canada has a "Constitution similar in Principle to that of the United Kingdom," or on certain authoritative Canadian Supreme Court decisions such as Re Manitoba Language Rights? in which it was held that the rule of law was "a fundamental principle of our Constitution."4 My contention is that the status of the rule of law is superior and antecedent not only to legislation and judicial decisions but also to the written constitution. This book will certainly appear heretical to those who have been accustomed to think that the written constitution is the supreme law of the land and that the validity of all other legal norms must derive from it. However, it is my dissatisfaction with what I shall call "orthodox constitutional theory" as it stood in Canada in 1982 when the Charter was promulgated that has led me to search for a new theory. Because the relevance and the success of this "alternative constitutional theory," as I term it, partly depends on the failure of orthodox

4 The Rule of Law, Justice, and Interpretation

constitutional theory, an important part of this book is devoted to a criticism of the latter. The basic propositions of orthodox constitutional theory are described in Chapter i. These propositions do not provide a coherent and comprehensive account of Canadian constitutional thought such as that found in the writings of our most eminent constitutional law scholars. Rather, their purpose is to define and represent the law of the constitution in accordance with the theoretical assumptions that are held by the vast majority of lawyers, judges, and law professors in Canada, that is, legal positivism. The propositions mentioned come within a theory of law and a theory of legal science which postulate that the existence of law is a matter of social fact and that its description should represent it as it is, that is, independently of the value judgments, interpretations, or prejudices of the theorists. These postulates reveal deep metaphysical and epistemological assumptions: true and objective knowledge is possible provided that it is founded upon an objective reality, that is, empirical fact, the representation, explanation, or description of which proceeds in accordance with the set of methodological rules, directives, and attitudes of impartiality, detachment, and rationality generally accepted within the empirical sciences. That presupposes, first, that empirical facts have fixed properties and structures on their own that exist independently of the theorist's subjective methodological standpoint; secondly, that they are identifiable and are capable of constituting the objective and neutral reference point in accordance with which the validity of a given representation is verified; and, thirdly, that a given proposition is true if its language corresponds to those facts it seeks to represent.5 It follows that, for scholars of orthodox constitutional theory, the main task is descriptive: they seek to represent objectively the law of the constitution as it is in the external reality. Propositions of constitutional law are true or false depending entirely on whether or not they adequately correspond to the body of valid rules of constitutional law (the test of validity being determined in accordance with the basic postulates of legal positivism) .6 In particular, the conception of the three most fundamental orthodox doctrines of Canadian constitutional law, the supremacy of the Constitution, the sovereignty of Parliament, and the rule of law, comes within the foregoing postulates.7 Throughout the twentieth century, various dimensions of legal positivism have been under attack. Formalism, conceptualism, legalism, the separation of law and morals, the idea of law as commands, the liberal postulates or totalitarian consequences, to name but a few aspects, have been challenged by different intellectual movements or ideologies.8 Until recently, positivism has arguably resisted the various

5 Introduction

charges.9 Indeed, the noble ideals of truth and objectivity underlying positivist constitutional scholarship are appealing. They seem to condition the achievement of other desirable ideals such as, for example, those traditionally associated with the classical liberal conception of the rule of law (legal certainty, the legality of governmental actions, formal justice, and so on), all of which require universal and true knowledge of the binding body of law. Yet, today, one may feel some distrust of the very possibility of ever achieving these ideals. Recent attacks against legal positivism have been launched from the perspective of "hermeneutical (interpretive) theory," which takes as its target the positivist conceptions of "truth" and "objectivity." Hermeneutics or the theory of interpretation is deeply rooted in Western thought, especially within the fields of literary, biblical, and legal interpretation. It has given rise at least to two different conceptions.10 Until the twentieth century, it was generally conceived as the study of the proper grounds and methodological rules underlying the objective validity of interpretive propositions. Although it has come to distinguish between the respective structures of natural and human sciences,11 that first conception has shared some of the basic ontological and epistemological postulates of positivism: the object of interpretation (a text, a social practice) exists independently from the interpreter's own subjectivity; it has an objective meaning (determined by the intention of the text's author, for example) that may be grasped by any rational person, observer, or scientist who proceeds according to the proper method; and the truth or validity of a given account consists of some form of correspondence criterion between interpretive propositions and "fact" (such as the author's intention, for instance). According to a second conception, however, the main focus of hermeneutics is not methodological; it is philosophical. It is concerned with the explanation of the conditions and characteristics that make understanding possible. It has its roots in Heidegger's "hermeneutical phenomenology." But since the publication of Hans-Georg Gadamer's Truth and Method in ig6o,12 it has moved to the forefront of theoretical debates within philosophy, literary criticism, theology, human sciences, natural sciences, and law. This conception of hermeneutics holds that all methodological rules and practices, including the concepts of truth and objectivity accepted as valid by the interpreters, are conditioned by the very historical, cultural, and linguistic tradition in which the interpreters are situated. Therefore, all interpretations and all understandings are inevitably situated within a particular interpretive tradition. This clearly calls into question the idea, underlying positivism and the first conception of hermeneutics, that we may have access to true and objective knowledge with respect to the external world, be it a text, an

6 The Rule of Law, Justice, and Interpretation

intention, a natural object, or a social practice. Because knowledge is a matter internal to a given practice and tradition, the truth criterion cannot be a correspondence one. It is a coherence criterion: a given interpretive proposition is true (valid or justified) if it maximizes the internal coherence (understood as fitness, consonance, or congruence as opposed to a logical consistency) of the total body of propositions held to be true at any given time.13 H.L.A. Hart is often regarded as the legal philosopher who introduced hermeneutics into legal theory.14 In this regard, it is ironic that the main defender and exponent of contemporary legal positivism in the common law tradition was also responsible for sowing the seeds of radical attacks on positivism. However, Hart regarded his hermeneutics (he actually never used that term in The Concept of Law}15 as consistent with the basic postulates of (and a contribution to) legal positivism.16 Accordingly, Hart's theory, if hermeneutical, is best seen as coming within the first conception of hermeneutics. In retrospect, it seems reasonable to attribute to Ronald Dworkin's seminal article "The Model of Rules,"1"7 understood in the light of Law's Empire,1^ the introduction of the hermeneutics paradigm of the second category into Anglo-American jurisprudence. In any case, the last twenty years have seen many legal scholars, both in America and in Europe, taking what can be characterized as the "interpretive turn."19 If this second conception of hermeneutics was ever to become part of Canadian jurisprudence, it might call into question the basic postulates underlying orthodox constitutional theory. In particular, it might cast a new light on the ideas of reason and rationality underlying and embedded within the practice of theorizing about the law of the constitution and within the practice of law; it might constrain us to revise our conception of what constitutes truth and the proper justifications of propositions of law and of judicial decisions; it might fundamentally alter our understanding of the meaning of constitutional legal science, of legal practice, and of a legal text; and finally, it might deeply shake orthodox understanding of basic Canadian constitutional law doctrines. This book may be regarded as an essay in contemporary hermeneutical or interpretive constitutional theory. It is divided in two interlinked parts: it launches a fundamental attack against orthodox constitutional theory in Part One and it expounds and defends an alternative theory of constitutional law in Part Two. In Part One, I show that orthodox constitutional theory has failed to provide an adequate account of its most fundamental doctrines. After having described the most significant propositions of the orthodox theory in Chapter i, I critically examine the explicit and the implicit doctrines of the rule of law in Chapter 2.1 maintain, first, that the explicit

7 Introduction

descriptions of the rule of law propounded by constitutional scholars are both unsupported by the law as they conceive it and inconsistent with the basic postulates of orthodox constitutional theory. Then, secondly, and this is the main purpose of Chapter 2, I argue that the implicit conception of the rule of law, which will be called the "rule of law as positive rules," even though consistent with the basic postulates of orthodox constitutional theory, is internally incoherent: because it does not take into account the interpretive dimension of "practical reasoning," it cannot make sense of the concept of the rule of law. That conclusion is of general interest since the "rule of law as positive rules" is not peculiar to Canadian constitutional theory: it represents the dominant positivist conception of the rule of law in the Western world. In Chapter 3, I critically examine the explicit and the implicit doctrines of the sovereignty of Parliament and suggest that the criticism applies mutatis mutandis to the orthodox doctrines of the supremacy of the constitution. The explicit version of the sovereignty of Parliament corresponds to the doctrine as generally understood and described in Canada. I argue that that version is unacceptable because it comes within "the rule of law as positive rules" and, as a result, it ignores the interpretive dimension necessarily and logically involved in the normative idea of complying with the very rule of the sovereignty of Parliament. Then, I propose to amend it so as to incorporate into the doctrine the body of propositions that reasonably describe the rules of interpretation implicitly accepted by the vast majority of lawyers, judges, and law professors in Canada. These propositions correspond to what may be called the "orthodox theory of statutory interpretation." That implicit version of the doctrine, while resisting the objection raised against the explicit version, nevertheless fails when confronted with a set of judicial decisions widely accepted by the legal community as important, legitimate, or well founded in law. I conclude Chapter 3 with a certain number of propositions which will constitute part of the background against which an alternative constitutional theory will be constructed. In particular, I assert that constitutional law includes a body of legal principles and norms beyond those laid down in the orthodox rules of constitutional law, the purpose or effect of which is to entrench a number of constitutional guarantees, both written and unwritten, securing certain individual rights and freedoms. In Part Two, I expound on and defend an alternative constitutional theory based upon a conception of the rule of law. The basic argument is that the construction of a successful theory of constitutional law must give a coherent account of the fact that the concept of the rule of

8 The Rule of Law, Justice, and Interpretation

law, correctly understood, is constitutive of legal (especially judicial) practice and legal discourse. Chapters 4, 5, and 6 provide the arguments in support of the most fundamental propositions of that theory. These propositions purport to describe a coherent conception of the rule of law. Although constructed for constitutional law and theory purposes, I believe that it might contribute to make sense of other areas of law as well even if I shall not verify that hypothesis in this book. In Chapter 4, I maintain that a coherent conception of the rule of law must represent, first and foremost, the body of principles constituting the idealtypeof the conception of law which, after interpretation, makes sense of an ultimate body of concepts, norms, ideas, or values that are internal to legal practice, that is, the set of practical reasons that guides, shapes, structures, and constrains legal practice and discourse. In chapters 5 and 6 I describe two competing ideal types, the rule of law as certainty and the rule of law as justice, which, for various reasons, might arguably represent the valid conception of the rule of law in Canada and in most, if not all, Western legal systems. In Chapter 5 I argue that the rule of law as certainty, although attractive, is internally incoherent. In Chapter 6 I describe the basic propositions of the rule of law as justice and maintain that an interpretation of the rule of law can be internally coherent if it constitutes a version of that conception. The arguments in chapters 4, 5, and 6 are generally analytical and theoretical. It is my hope that these arguments make some contribution to analytical jurisprudence and practical philosophy. Chapters 7 and 8 are more concretely situated. In Chapter 7 I provide an account of the body of unifying material principles which should be conceived as constitutive of the rule of law as justice as it stood in Canada in 1982 when the Charter came into force. I associate them with four basic principles, the constitutional principle, the democratic principle, the liberal principle, and the federal principle, which will be formulated at a relatively high level of abstraction and generality. Accordingly, those constitutional scholars and lawyers who expect to find in a book on constitutional theory a clear and final description of specific principles that could be distinctively Canadian, as opposed to American, British, or Australian, for example, might be disapointed. My purpose is not to understand the principles of the rule of law as justice in Canada as a unique conception of the rule of law (although, of course, they might be so), or to discover what could be distinctively Canadian in constitutional law. Instead, my concern is to reconstruct a part of Canadian law in the light of the rule of law as justice so as to understand it as a meaningful whole. In Chapter 8 I concretely apply the rule of law as justice in a few legal areas for which the orthodox theory is ill-suited. The purpose of this chapter is to show that the alternative

9 Introduction

theory is superior to orthodox constitutional theory. It is not to provide a comprehensive verification of the alternative theory or to show how the principles of the rule of law systematically apply to or inform what may be seen as the central issues of Canadian constitutional law. This book is about constitutional theory; it is not a treatise on Canadian constitutional law. Yet chapter 8 provides a partial verification of the theory and, consequently, illustrates how the rule of law as justice may constrain the process of practical reasoning in constitutional adjudication. My main contention, in Part Two, is that the alternative constitutional theory supplies a greater understanding of Canadian legal practice and discourse as it stood in 1982 when the Charter came into force than its main competitor. According to the traditional dichotomy between descriptive and normative theory, the alternative theory falls within the descriptive category. Yet the description is not constructed in accordance with the postulates of empirical sciences: it constitutes an interpretation of legal practice and discourse as a whole. It seeks to explain and represent a "thing," the rule of law in Canada, in the light of a body of principles and values which present constitutional legal practice and discourse as a meaningful unity. Because such a construction requires a coherent integration of many considerations and aspects which cannot make sense together in a theory-independent way and without value judgments, the alternative constitutional theory contains a mixture of descriptive and normative elements.20 Although theoretical, this book is intended to be of practical interest. Originally, it was conceived in the years following the entrenchment of the Charter in the Canadian constitution as an answer to the fundamental question: to what extent, if at all, does the pre-igSa Canadian constitutional order provide a set of legal constraints on the process of Charter adjudication? The problem, as I understood it, was that when the Charter was promulgated, many Canadian constitutional lawyers assumed that a fundamental break had occurred within the constitutional order.21 Until 1982, judicial review of legislation was regarded as confined to the maintenance of Canadian federalism. All legislative powers (save for a few exceptions)22 had been exhaustively distributed between the federal Parliament and the provincial legislatures; the only relevant and legitimate question for the purpose of reviewing the validity of legislation was whether the subject matter of a law enacted in accordance with the requirements of manner and form fell under the jurisdiction of the enacting institution. The process of characterizing the subject matter was conceived as rather formal.23 It did not depend on the evaluation of the wisdom, the merits, or the reasonableness of the means chosen by the legislator to regulate it but

io The Rule of Law, Justice, and Interpretation

on the pith and substance of the law, that is, its "dominant or most important characteristic."24 Where the law was valid, the enacting legislature was free to enact or repeal any regulation whatsoever. Therefore, the pre-i982 constitutional order was said to be based upon the principle of parliamentary sovereignty as reconciled with the integrity of Canadian federalism.25 By contrast, with the promulgation of the Charter in 1982, the power was conferred upon Canadian courts to control whether or not the means chosen by the legislature to regulate valid subject matter would be consonant with entrenched rights and freedoms.26 As a result, the courts would now have to elucidate, to ascertain, to weigh, and to balance, as Chief Justice Brian Dickson put it, "some of the values most fundamental to the Canadian way of life." 27 The process of Charter adjudication logically would now be governed by reasoning and considerations of a kind that had traditionally been regarded as irrelevant and illegitimate. The scope of judicial review would not merely be extended; those considerations and reasoning would change its fundamental nature. The argument described above, which may be called the "break thesis," had two important consequences. First, the doctrine of the sovereignty of Parliament, as conceived before 1982, would no longer hold true because no legislature could enact or repeal any law whatsoever in relation to its own subject matter. One might say that section 33 of the Charter allowing a Canadian legislature to override many Charter provisions28 was "a prudent concession to the democratic political process and the long Anglo-Canadian tradition of parliamentary supremacy."29 However, the political cost (likely to be disproportionate) resulting from using the override provision might make its use quite illusory except, perhaps, where it appeared necessary to keep peace and order.30 Secondly, the process of Charter adjudication would hardly be legally constrained because the very text of the Charter could not be seen as the exclusive consideration31 and because the grounds for decision accepted as relevant and legitimate for the purpose of the process of Charter adjudication could not be based upon the existing body of constitutional law. The courts, consequently, would be legally free to follow as they wished the purpose of the Charter's provisions; the content of a given moral or political theory; the considerations that might create a consensus; the Canadian political tradition; or a set of doctrines drawn from the judges' own values, from the American or European constitutional law, and so on.32 Since the validity of the break thesis directly derives from and depends on the validity of the orthodox doctrines of the rule of law and the sovereignty of Parliament, my criticism of these two doctrines

11 Introduction

should call the thesis into question. Moreover, since the alternative theory based upon the rule of law supplies some of the most basic legal reasons that should guide the process of adjudication, it should clarify, make sense of, and indicate the set of Canadian legal constraints that should shape the process of Charter adjudication. Particularly, it offers an alternative to the break thesis. This book is not a criticism of the break thesis as such; nor is it a theory of the doctrine of the supremacy of the constitution, a theory of judicial review based upon the Charter, a textbook on the meaning of the guaranteed rights and freedoms, or an argument on the moral legitimacy of constitutional policy making by the courts. Yet it does supply the groundwork for a good grasp of all these issues.

This page intentionally left blank

PART ONE

Orthodox Constitutional Theory A constitutional theory is a coherent and systematically organized set of assertions that defines the scope of its object of inquiry, one or many aspects of a "constitution" (understood in this book as the body of constitutional law),1 and represents it at a certain level of abstraction and generality. It may be called normative if it is concerned with an ideal constitution derived from a more fundamental moral or political theory, or if it is intended to bring out a set of moral principles with which certain or all states ought to comply. This set of principles may be described as a set of "ideal" norms by which we may also appraise the accepted or existing body of constitutional norms in a given country. Normative constitutional theory expresses propositions of political morality. Constitutional theory is descriptive if it aims to provide a representation of the body of constitutional law as it exists or is accepted in fact in one or many legal orders. A descriptive theory may be called empirical if it is confined to describing the empirical elements of the constitution that are observable and identifiable without the mediation of interpretation and value judgment.2 A descriptive theory is hermeneutical if it seeks to clarify constitutional law by interpreting its meaning as understood by those whose actions or practices are partly or totally constituted by a commitment to uphold the law and act in accordance with it.3 Descriptive theory is generally said to produce propositions of constitutional law which are true or false depending on whether or not they correspond to the elements they seek to represent and which are verifiable in accordance with a process similar to the one accepted in natural sciences. Yet a version of hermeneutical theory could produce propositions of constitutional law which are true or false depending on whether or not they meet a coherence test.4 I characterize as orthodox the descriptive constitutional theory that was accepted as valid and postulated as true by the vast majority of Canadian lawyers, judges, and constitutional law professors by 1982.

This page intentionally left blank

CHAPTER ONE

The Basic Postulates

This chapter clarifies some of the most significant postulates of orthodox constitutional theory in Canada.1 Because Canadian lawyers, judges, constitutional law professors, and other scholars do not, in general, express and rigorously state their own theoretical framework, my analysis does not describe a set of empirical facts that are present in legal materials. It must be seen, at most, as a reconstruction of theoretical assumptions. My claim is that these postulates come within a version of legal positivism. Accordingly, they do not represent the underlying epistemological and doctrinal assumptions that have guided the works of all eminent constitutional law scholars in Canada. Canadian constitutional thought is much richer than orthodox constitutional theory and obviously includes many excellent works I would characterize as nonorthodox.2 Yet I submit that some version of legal positivism has been dominant within legal practice and discourse in Canada. It has contributed to shape and formulate what is generally regarded as the main constitutional law doctrines and the propositions of law. That claim can be substantiated by appeal to the fundamental assumptions underlying the most influential Canadian textbooks, casebooks, and articles purporting to describe and explain the scope and nature of the law of the constitution. Of course, what should count as most influential cannot be objectively demonstrated either, and, therefore, any given selection may appear somewhat idiosyncratic (as a matter of fact, my own view is partly inferred from formal and informal discussions with constitutional scholars and, obviously, from knowledge derived from my own legal education in various law schools). Yet it should be possible to identify a number of works which can be generally admitted as having constituted the shared background of legal arguments and doctrines used in courts, in most law reviews, and in most basic constitutional law

16 Orthodox Constitutional Theory

courses in Canada. For example, such works in recent times would include Peter W. Hogg's excellent study Constitutional Law of Canada? which I regard as one of the most coherent exemples of orthodox constitutional theory in Canada.4 My purpose is to state the basic postulates of this constitutional theory as a clear, coherent, and unambiguous body of assertions. The description will probably appear too starkly drawn and, accordingly, many constitutional scholars will disagree with it. That should not be disturbing. If one argues that my description amounts to a "straw person" on the ground that it is not empirically demonstrated as true, I reply that, by hypothesis, it is a reconstruction of something that cannot be discovered "out there" or proved by mere empirical inquiry. Also, if anyone does not recognize his or her basic postulates in my description, I argue that those postulates are either non-orthodox or internally incoherent. Finally, if one maintains that my description of orthodox theory does not make sense of the theoretical assumptions widely postulated as true in Canada, then one should explain why and provide, if possible, a better description. It goes without saying that mere doubts do not invalidate my description. If one merely opposes its apparent rigidity, I nevertheless suggest that it is sufficient for analytical and critical purposes. LEGAL POSITIVISM

Orthodox constitutional theory in Canada before 1982 proceeded from orthodox English constitutional theory5 and came within the theoretical framework of Anglo-Saxon legal positivism.6 Legal positivism entails at least two distinct aspects: a methodological approach and a theory of law. The positivist approach focuses upon the law as it exists in fact. It is not concerned with ideal law but with positive law. It postulates that there is no essential, logical, or necessary link between the law as it is and moral standards (the law as it ought to be). The existence of law, its foundation, the criteria governing the validity of its rules, and so on, are mere questions of facts. It follows that law as a body of facts must be described or explained like any other facts; that is, in accordance with scientific method. In order to be objective, a theorist must observe a phenomenon and describe or explain it in morally neutral terms. He must focus on the elements of the phenomenon that do not imply value judgments; this would exclude elements such as the purpose of law and the moral merit of its content or of its consequences. A legal proposition is true if it corresponds to the empirical facts. Until H.L.A. Hart wrote The Concept of Law,7 the positivist approach was generally conceived as purely empirical. Hart introduced into legal theory

17 The Basic Postulates

the notion of "descriptive sociology," which may be seen as a version of the hermeneutical approach in social sciences.8 According to Hart, the concept of "obligation," notably with respect to social rules, must be understood from the internal point of view of those who act in accordance with the rules. That has led him to a particular conception of law, as we shall see in a moment. Yet, although his approach is not purely empirical, it remains consonant with the basic epistemological postulates of the positivist approach.9 A positivist theory of law, then, is characterized by a coherent set of propositions that represents or describes the law as it exists in fact; the validity of this set of propositions is verifiable in accordance with the positivist approach. In Canada, as in England, Jeremy Bentham's theory, as explained by John Austin, has been the most influential.10 According to them, law is a set of commands imposed by a sovereign upon his or her subjects, the sovereign being the person or the group of persons habitually obeyed by the bulk of the population and who does not habitually obey anybody. Yet Hart's theory provides us with the best articulation of the basic assumptions of Canadian orthodox constitutional law theory, and one may safely assert that by 1982 it was the most influential theoretical framework. Hart's theory sees law as a system of social rules, the foundation of which is found within a complex social practice, where a rule, called the "rule of recognition," is accepted from an internal point of view and used by the courts to identify the other legal rules.11 A rule of recognition is effectively accepted when and where those who use it regard it as a common standard to be followed and as a reason that justifies their actions and their criticisms of the actions of those who deviate from it.12 The conditions for the existence of a legal system are a matter of fact. On the one hand, the members of the community must generally obey the valid legal rules and, on the other hand, the judges must recognize from an internal point of view the authority of the basic ultimate rule that prescribes the criteria or conditions of validity of all the other rules of the legal system.13 Finally, the identification of a legal system is still a matter of fact. Although a rule of recognition is rarely expressed, it should be possible to show its content by observing effective social practice, that is, the way in which the courts identify the other rules of the system and the general acceptance of these identifications.14 It follows that the identification of particular legal rules, and that which distinguishes them from other social rules, is merely a matter of validity. A given rule is valid if it possesses the necessary and sufficient features specified in the rule of recognition or in a rule whose validity ultimately derives from the rule of recognition through a chain of

18 Orthodox Constitutional Theory validity.15 In principle, the criteria of validity might refer to various characteristics (either formal or substantive) of the rules. Yet Hart's theory argues that judges themselves proceed in accordance with the positivist approach. The relevant features essentially consist of facts, such as the fact of a rule having been enacted by a specific institution in accordance with a particular procedure or of having been effectively followed by a group of persons for a certain time. These facts generally correspond to the sources of the laws.16 The positivist validity thesis is thus formal, in the sense that the criteria of validity exclusively refer to formal attributes of the laws.17 I shall call it the formal validity thesis. A theory of law logically involves particular attitudes and conceptions in relation to legal reasoning. According to legal positivism, in principle, judges identify binding legal rules in accordance with the h formal validity

thesis and apply them to appropriate cases. However,

according to Hart, since legal rules use human language as a medium, they use general words that refer to classes of persons, actions, things, or circumstances. Consequently, as with human language generally, they possess an "open texture."18 Although each rule clearly applies to most of the cases and circumstances in which it is meant to apply, it remains relatively indeterminate with respect to a certain number of concrete and specific cases. Therefore, according to Hart's theory, a theory of legal reasoning must fit the basic distinction between the core of the rule and the penumbra of debatable cases.19 ORTHODOX CONSTITUTIONAL THEORY

By 1982, orthodox constitutional theory was a particular application of the positivist approach and theory to the process of constitutional adjudication.20 For that reason, it could be characterized as empirical. 21 Canadian constitutional law had been exhaustively delineated by the set of rules that could be materially characterized as constitutional and that were accepted as valid in accordance with the formal validity thesis. They could be distinguished thereby from any other constitutional rules such as constitutional conventions. A proposition of constitutional law was true if it adequately corresponded to a valid constitutional legal rule and if it could be verified empirically through observation of the criteria of validity recognized by the judges from their internal point of view. Orthodox constitutional theory had three essential aspects. First, it expounded the set of material rules of constitutional law, that is, the set of rules which dealt with the creation and the regulation of the

ig The Basic Postulates

Canadian governmental institutions. Inevitably, the sources were varied. Secondly, because a certain number of constitutional rules were recognized by judges as being superior within the hierarchy of legal norms, the theory systematically organized the valid constitutional rules in a hierarchical order with respect to other valid legal rules. That order can be conceived on two planes. A legal rule is vertically subordinated to another rule when its validity either derives from that other legal rule or depends on its consistency with that other rule and can be verified through a chain of regressive reasoning. For example, a by-law of the city of Sherbrooke is valid if it possesses some formal features that correspond to the criteria of validity provided in an act of the legislature; that latter act is valid if it has been enacted in accordance with the criteria of validity specified in the written constitution, which provides that a provincial legislature may make law in relation to municipal institutions. The order of primacy and subordination can be horizontally conceived where a rule of recognition contains various independent ultimate criteria of validity, one of which is supreme. For example, the legal proposition that "in England, the rule of recognition provides at least two independent ultimate criteria of validity (i what the Queen in Parliament enacts is law; and 2 - what the judicial precedents hold is law), the first being supreme," is true because the validity of a rule created by a judge is independent from the first criterion; it does not derive from it.22 Thirdly, according to the first two aspects, orthodox theory formulated a few basic doctrines by which all the rules of constitutional law could be explained, organized, and logically systematized and on the basis of which judicial decisions could be analysed. These doctrines were slightly different according to the legal system involved. In England, for example, Dicey focused upon three basic doctrines: parliamentary sovereignty, the rule of law, and constitutional conventions.23 One may maintain with confidence that the doctrine of the supremacy of the constitution, the doctrine of the sovereignty of Parliament, and the doctrine of the rule of law constituted, by 1982, the three most fundamental Canadian constitutional doctrines. The significance and the hierarchical order of these three doctrines proceeded from the formal validity thesis.24 The foregoing discussion implies, on the one hand, that description of the criteria of formal validity of legal rules has been one of the central concerns of orthodox constitutional theory. Such a task was necessary in order to identify valid constitutional rules and their status within the hierarchy of sources.25 In addition, most of the constitutional rules that were supreme within the legal order, namely the rules of the written constitution, were conceived as providing the basic

so Orthodox Constitutional Theory

criteria of validity of legislation, of the acts of the crown or its agents, and of the acts of the administrative institutions. On the other hand, the issue of constitutional interpretation has never been a central concern of orthodox constitutional theory. In accordance with Anglo-Saxon legal positivism, orthodox constitutional scholars assumed that valid constitutional rules are, for certain reasons, clear in many cases and, accordingly, do not require interpretation. For example, Peter W. Hogg maintains that "the Constitution, like a statute, a will or a contract, often provides a clear answer to the questions it addresses, which in the case of the Constitution are questions about the extent of governmental power ... [The answers] are clear from the text of the Constitution."26 Moreover, in debatable cases, it was assumed that judges must exercise discretion: "The questions that come before the courts are those which are difficult or doubtful, and certainly there is no lack of these. The language of the Constitution is for the most part broad and vague ... For these reasons, the court probably has to apply a larger discretionary judgment to its constitutional decisions than it does to its decisions in other fields of the law. That is why Hughes CJ. of the United States Supreme Court made his celebrated remark that: 'We are under a Constitution, but the Constitution is what the judges say it is.' " 27 Consequently, as a matter of definition and logic, constitutional interpretation could not be conceived as one of the central concerns of a theory describing the law as it is. As Hogg writes: "In those cases which find their way to the higher appellate courts, there are always competing plausible interpretations of the constitutional text and its case-law exegesis. The judges cannot escape making a choice, and the choice cannot be wholly explained by the pre-existing state of the law."28 Of course, I do not suggest that constitutional scholars could totally ignore the fact of constitutional interpretation; that task was indeed often involved with their central concern. Constitutional interpretation both gives rise to new formally valid constitutional rules and clarifies the existing criteria of validity provided by the constitution.29 But the issue of constitutional interpretation was essentially a reactive and incidental issue to the question of formal validity. It involved no distinct and specific theoretical reflection. Equally, the issue of statutory interpretation was not conceived as a central aspect of Canadian constitutional theory. The so-called rules or principles of statutory interpretation were not generally conceived as rules of constitutional law.3° These norms were merely conceived as a set of reasons that may guide the exercise of judicial discretion in hard cases.31 Indeed, while orthodox constitutional scholars referred from time to time to some of the norms drawn from cases and legisla-

21 The Basic Postulates

tion, they did not embark upon the task of explaining, organizing, and logically systematizing - in short, integrating - such norms into a co herent constitutional theory. In fact, references to these norms generally served the purpose of merely clarifying the scope of the legislative criteria of formal validity of various executive actions, such as those of the crown, its agents, or administrative institutions.32

CHAPTER TWO

The Rule of Law

By 1982 the rule of law was probably the most obscure and ambiguous Canadian constitutional doctrine. It is significant that the important and influential first two editions of Hogg's textbook, published in 1977 and 1985,* devoted no separate section to the rule of law and that the concept was not even mentioned in the notably detailed index.2 Yet orthodox constitutional theory was generally committed to various doctrines of the rule of law. Most of them were expressly formulated in the majority of constitutional law textbooks. I shall refer to them as the explicit versions of the doctrine of the rule of law. One conception was not expressly formulated but implicitly assumed to be recognized as binding by the judges. I shall call it the implicit doctrine of the rule of law. The main purpose of this chapter is to attack that implicit doc trine. THE EXPLICIT VERSIONS OF THE DOCTRINE

The explicit versions fall into two classes: the traditional and the modern or contemporary doctrines. The traditional versions are well known. They correspond to Dicey's three classical definitions3: 1 Government must act in accordance with the law: "... no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land"4; the rule of law is inconsistent with broad discretionary governmental power; 2 All citizens are equal before the law: "... no man is above the law .. every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals"5;

23 The Rule of Law

3 The fundamental principles of English constitutional law are consequences of judicial decisions in relation to the rights of the individuals based upon the ordinary law: "... thus the constitution is the result of the ordinary law of the land."6 The modern or contemporary versions of the doctrine within Canadian constitutional theory refer to a cluster of ideas, the best known being related to the following: the principle of legality,7 the prescription of procedural standards in the administration of justice,8 the formal aspect of legal norms,9 the material content of law,10 and the maintenance of public order.11 I have argued at length elsewhere that explicit versions of the rule of law are unreliable for apparent and deeper methodological reasons.12 While I do not intend to repeat the arguments here, it is necessary to recall briefly some of the problems they raise. First, the authors who have set out these versions have generally failed to state clearly the nature of their particular descriptions. Consequently, one does not know whether they constitute a set of propositions of law corresponding to a set of valid constitutional rules, a set of propositions of fact representing, at a certain level of generality and abstraction, various characteristics of the constitution and/or of the practice of Canadian political institutions conceived otherwise than solely in terms of valid legal rules, or a set of propositions of political morality describing the content of various ideal or normative conceptions of the rule of law. Of course, the fact that the explicit versions are formulated in textbooks claiming to describe the law of the Canadian constitution as it is may suggest that they constitute propositions of law. But the fact that neither Dicey's conceptions nor the modern or contemporary versions were originally conceived as such indicates otherwise.13 In any case, the proper characterization of particular descriptions is of paramount practical importance: it determines whether they represent good and legitimate legal reasons for judicial decision and whether they should entail full legal consequence.14 Secondly, it is often assumed within constitutional theory that the doctrine of the rule of law is especially relevant with respect to executive and administrative actions since it constitutes the legal foundation for judicial review. This suggests that the rule of law is not nearly so relevant to legislation15; it is legally binding upon the executive and the administrative branches but, at the most, is only morally binding upon the legislature. The analysis of the legal character of the rule of law, therefore, has been implicitly left to administrative law scholars, who have generally conceived it as synonymous with the principle of (administrative) legality.16 This principle of legality is a mere corollary of the formal validity thesis. In administrative law, it is concerned with

24 Orthodox Constitutional Theory

the formal validity of governmental actions. The question, then, is why should the practical significance of the rule of law in Canada be reduced to the field of administrative law? Certainly, that approach makes sense in the context of Dicey's theory, because his conceptions were developed in a legal system where the principle of parliamentary sovereignty was of paramount importance. For Dicey, the rule of law could signify the rule of parliamentary law or the rule of common law subject to parliamentary legislation. Thus, the assertion that the rule of law was only legally binding upon the executive and the administrative branches was a logical matter: Parliament had the right to enact or repeal any law whatsoever! But to assume that the same consequence should follow in a country where a written constitution binds the legislative and executive branches alike sounds rather formalistic. Indeed, the idea of legality tout court, including the idea of constitutional legality, seems more intelligible. Moreover, this reduced conception of the rule of law is hardly consistent with constitutional textbooks which, as I have said, generally refer to a cluster of conceptions, traditional and modern, one of which only might relate to the principle of administrative legality. Thirdly, many lawyers seem to believe that it is because of the rule of law that the courts must adhere to a narrow interpretation of legislative provisions that apparently confer broad and unlimited powers on the executive or administrative bodies. The argument is as follows: (a) broad, unlimited, or absolute discretionary power is inconsistent with the rule of law; (b) as a result, the courts are entitled to limit the scope of the discretion conferred in the empowering statute (the technical device generally being the implementation of the object of the statute in accordance with the will of the legislature). However, insofar as the rule of law means the principle of administrative legality, this argument is invalid. The principle of legality concerns the issue of formal authorization of executive or administrative action and decision. It says nothing about the content or scope of the criteria of validity; rather it urges compliance with these criteria whatever they mean or entail. Therefore, a statutory provision conferring an absolute discretionary power to a given administrative body should mean that the body may, without infringing upon the rule of law, act or decide on the basis of any standard, consideration, goal, or purpose not found in or inferred from the statute. Indeed, one might postulate that the rule of law means something more substantial than the idea of formal authorization. But if so, then the rule of law could not be reduced to the principle of legality. Finally, insofar as the references to the various explicit versions of the rule of law are meant to express a set of moral standards that ought

25 The Rule of Law

to be followed in hard cases, orthodox constitutional theory raises an issue of political morality. However, orthodox constitutional scholars have not supplied the reasons justifying the normative force of the rule of law in hard cases, as opposed to other normative extra-legal standards that should also perhaps guide the courts, nor the reasons justifying the preference for (or the superiority of) one or more explicit conceptions of the rule of law as opposed to all others. Yet the main reason why orthodox constitutional theory is unreliable lies in its positivist epistemological postulates.17 According to these postulates, a given legal doctrine is true if its main propositions correspond to a subset of valid material rules of constitutional law laid down in recognized legal sources such as the constitution, a statute, or a case. These sources should constitute the sole legitimate set of empirically observable, intelligible and meaningful, neutral and independent reference points from which a given representation of law may be constructed and its validity verified. The problem, however, is that we cannot find in these sources any material rules of constitutional law objectively corresponding to the various explicit conceptions of the rule of law. As a set of empirical facts, the legal sources appear chaotic. Of course, one can easily identify a number of specific elements related to some versions of the rule of law. But these elements may loosely support almost any conception. It follows, according to the postulates of orthodox theory, that these explicit doctrines of the rule of law constitute pre-scientific or non-scientific theoretical constructions. Insofar as they purport to state propositions of law, they cannot be true. In general, the concept is not clearly defined by the legal sources, be they a piece of legislation (the Charter, the Canadian Bill of Rights, or other statutory documents) or a case. One is thus left to speculate about the "true" meaning of the concept. The more explicit judicial decisions are no more capable of providing a neutral and independent reference point than the above sources for verification of the corresponding relationships among the various doctrines and laws. Indeed, the cases in which the courts have explicitly dealt with the concept of the rule of law are not numerous. These cases are not so much a manifestation of one or more coherent conceptions as they are a manifestation of various specific applications of unknown conceptions to particular cases in various limited contexts.18 Many of these cases define the rule of law in terms that are so vague and so general that they could support almost any doctrine.19 Other cases seem to be based upon contradictory conceptions.20 Consider two recent important cases. In Re Manitoba Language Rights,21 the Supreme Court of Canada defined the rule of law in terms of two propositions.22 The first seems to uphold

26 Orthodox Constitutional Theory the principle of legality. It expresses the idea that law is supreme and, accordingly, all unconstitutional legislative acts must be declared by the courts to be invalid and of no force and effect. The second proposition seems to uphold the ideal of law and order: it requires the creation and maintenance of an actual order of positive laws. But this proposition contradicts the principle of legality, because if the courts must maintain an order of positive laws, they may be under a duty not to declare unconstitutional acts invalid and of no force and effect. Indeed, the two propositions might be reconcilable in the light of a broader coherent conception of the rule of law; however, the very meaning of the conception that would authorize such a reconciliation (if any) has not been laid down in this case, nor in any other legal source.23 In R. v. Nova Scotia Pharmaceutical Society,24 the Supreme Court of Canada refers to the rule of law when defining the theoretical foundation of the doctrine of vagueness.25 However, it does so in terms of propositions that are, apparently, inconsistent. On the one hand, it asserts that the doctrine of vagueness is founded upon two rationales, fair notice to citizens and limitation of enforcement discretion, broadly linked with the rule of law which, according to the court, lies 'at the core of our political and constitutional tradition.'26 This suggests that the rule of law should be conceived in terms of the particular version that has traditionally taken legal certainty, predictability, and stability as its main ideals.27 Indeed, vagueness has traditionally been understood as inconsistent with the particular conception that requires the law to be general, clear, and prospective.28 Yet, on the other hand, the court also seems to take a radical departure from the postulates of that conception of the rule of law. First, it recognizes the inherent "unresolved nature" of legal rules. It states that certainty is "only reached in instant cases, where law is actualized by a competent authority." Meanwhile, conduct is guided by "approximation."29 The court explains: "Indeed no higher requirement as to certainty can be imposed on law in our modern State. Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic. Language is not the exact tool some may think it is. It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance. All it can do is enunciate some boundaries, which create an area of risk. But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective."30 Secondly, the court says that the rule of law must be seen in the contemporary context. While it has developed in the political context of a

27 The Rule of Law non-interventionist state, the rule of law must now be understood in the light of a "more global" conception of the state.31 Because the modern state seeks to achieve many complex social objectives, its enactments will inevitably be framed in "relatively general terms" (the word general in this context means the opposite of clear, precise, or specific; it does not refer to the universal character of the rules).32 Because there is no "difference in kind between general provisions where the judiciary would assume part of the legislative role and 'mechanical' provisions where the judiciary would simply apply the law," legal provisions conferring "broad discretion" are not problematical.33 What must be found unconstitutionally vague are merely the laws that fail to provide a sufficient basis for legal debate. Accordingly, the court held that the word "unduly" in section 32 ( i ) (c) of the Combines Investigation Art 34 providing that "every one who conspires, combines, agrees or arranges with another person ... to prevent, or lessen, unduly, competition ... is guilty of an indictable offence ..." is "sufficiently precise to meet the constitutional standard."35 According to the court, this conception of the doctrine of vagueness "best conforms to the dictates of the rule of law in the modern State."36 But what conception of the rule of law does dictate this doctrine? Certainly not the particular conception that "lies at the core of our tradition," that takes legal certainty as its main ideal, and that requires "fair notice to the citizen" and "limitation of enforcement discretion." Conduct by approximation, certainty reached ex post facto, institutionalization of broad discretionary power, and so on, constitute the very sort of conditions that have been traditionally regarded as characterizing a country ripe for arbitrariness as opposed to a country under the rule of law. Indeed, the mere fact that these conditions have become an inevitable aspect of the modern state does not mean that they are consistent with the rule of law. As a matter of fact, many legal and political theorists have warned free countries that the wide development of conditions such as these leads to the "decline of the rule of law" or the "crisis of the 'Etat de droit. '"37 R. v. Nova Scotia Pharmaceutical Society deserves much more consideration than I wish to offer here. It might even constitute one of the main sources for the construction of a coherent conception of the rule of law in Canadian constitutional law. However, it would be presumptuous to claim that it does so when we approach it within the epistemological postulates of orthodox theory. Similarly, if the various propositions expressly dealing with the rule of law in case law were reconcilable in principle in the light of one coherent conception of the rule of law, that conception would not constitute a neutral and independent empirical element laid down in legal sources. It would be a theoretical

28 Orthodox Constitutional Theory

construction which, according to orthodox constitutional theory, would be derived from the subjective preconceptions, prejudices, interpretations, or value judgments of its authors. Consequently, from the point of view of proper positivist constitutional science, it would be illegitimate.38 The explicit versions of the rule of law have failed to propound a doctrine of the rule of law that meets the positivist criterion of truth. One might therefore be tempted to come to radical conclusions ("the rule of law does not exist", "it is merely rhetorical") which would mean that we should, as lawyers, judges, and theorists, abandon the whole project of searching for a coherent conception of the rule of law in Canadian constitutional law. The problem with such a view, however, is that it collides with a strong, widely shared belief in legal circles that the rule of law does constitute one of the most fundamental principles, postulates, and doctrines of Canadian constitutional law, that it does possess a coherent meaning (even if disputed), and that it entails some legal consequences. It is generally assumed that the rule of law constitutes, not only a basis for the evaluation and criticism of governmental actions, decisions, and institutions, but one of the very reasons for these actions, decisions, and institutions. The rule of law is generally taken to be one of the basic concepts within and underlying the Canadian legal and constitutional order. It is therefore important to verify whether or not that belief is true before accepting the radical conclusion. Indeed, if the belief is true, there is all the more reason to understand the particular meaning of the rule of law in Canada and to determine those principles that constitute it. The failure of orthodox constitutional scholars does not lie in the fact that they have misread legal sources or looked at incorrect sources. The main cause is that the epistemological postulates of orthodox theory have prevented them from reaching and understanding most of the relevant elements that would allow them to construct a coherent doctrine of the rule of law. It follows that research into the meaning of the rule of law in Canadian law must start with basic methodological issues. I introduce these issues in this chapter (my main discussion, however, lies in Part Two). The purpose of the following section is twofold: to clarify the meaning of the concept of the rule of law and to state the basic conditions any purported conception must fulfil so as to be accepted as a valid description of the rule of law in Canadian constitutional law. In doing so, I will show that, beyond the explicit versions, orthodox scholars were more significantly committed to what may be called an implicit doctrine of the rule of law. This doctrine is expounded in the third section of this chapter. It corresponds to the conception implicitly regarded as being recognized and accepted as

29 The Rule of Law

binding by the judges. The main purpose of the third section and, in deed, of this chapter is to criticize the internal coherence of the implicit doctrine of the rule of law in orthodox constitutional theory. CONCEPT AND CONCEPTIONS OF THE R U L E OF LAW

It is stating the obvious to say that the rule of law is a contested concept within legal and political theory. Though people may agree that the rule of law applies correctly in a certain number of situations, they often disagree about its proper use.39 As far back as 1885, Dicey maintained that the phrases "rule of law," "supremacy of law," or "government of law," though possessing "real significance," were words "full of vagueness and ambiguity."40 Attempting to determine the meaning of such expressions when applied to the British constitution, he submitted that the rule of law had "three meanings"41 or included "at least three distinct though kindred conceptions."42 These traditional meanings, as we said, are well known.43 Although they have been regularly criticized,44 they have constituted the roots of most of the modern or contemporary conceptions that have gained a structure of their own. Among the latter, we find the following ideas: • The principle of legality: Any executive and administrative action infringing upon individual rights must be authorized by law, that is, it must have a legal foundation conferring authority to act, understood in accordance with the formal validity thesis.45 • The separation of powers: According to W.S. Holdsworth, the core of the rule of law is that "the judicial power of the state is, to a large extent, separate from the Executive and the Legislature."46 • Procedural due process: The rule of law is a matter of abiding by the law and by various procedural guarantees in the administration of justice.47 This comes close to equating the rule of law with "procedural due process" and with the "principles of natural justice."48 • Certainty: According to Joseph Raz, the concept of the rule of law has literally two related aspects: "i - that people should be ruled by the law and obey it, and 2 - the law should be such that people will be able to be guided by it."49 This requires that there should be a certain number of principles based upon the idea that the law should be capable of providing effective guidance. The rule of law implies no value judgment upon the content of the law except to control whether it effectively guides the citizens: "It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man."5°

30 Orthodox Constitutional Theory According to Lon Fuller, "the very essence of the Rule of Law is that in acting upon the citizen ... a government will faithfully apply rules previously declared as those to be followed by the citizen and as being determinative of his rights and duties ... [Law] is basically a matter of providing the citizenry with a sound and stable framework for their interactions with one another."51 Certainty is generally conceived as requiring generality, prospectivity, promulgation, clarity, stability, consistency of the laws, and congruence between laws that are enacted and legal decisions. • Promotion of material justice and individual rights: According to Ronald Dworkin, the ideal of the rule of law assumes that "citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions of the familial type, so far as this is practicable."52 That conception necessarily implies moral and political evaluations of the content of the law.53 According to the International Commission of Jurists, the rule of law corresponds to "les principes, les institutions et les procedures, pas toujours identiques mais en de nombreux points similaires, qui, selon la tradition et 1'experience des juristes des divers pays du monde ayant souvent eux-memes des structures politiques et des conditions economiques differentes, se sont reveles essentiels pour proteger 1'individu contre un gouvernement arbitraire et pour lui permettre de jouir de sa dignite d'homme."54 The rule of law principle is meant to promote and to safeguard the constitutive elements of a free society. It secures the individual legal and political fundamental rights and requires "1'etablissement des conditions sociales, economiques et culturelles qui sont indispensables au plein epanouissement de sa personnalite."55 • Natural law: The rule of law supposes the existence of a transcendental just order, the validity of which devives from God, nature, or human reason and with which any positive law must be consonant.56 • Law and order. The rule of law expresses the idea that submission and obedience to positive laws (good or bad) constitute the foundation and the conditions for the preservation of civil society as opposed to anarchy, social chaos, state of war, and the like.57 This list is not exhaustive. Yet it raises the question of whether the rule of law represents an intelligible concept, or, at least, of whether there is some agreement about its meaning, that is, whether it has a (single) meaning, or, on the contrary, whether it merely constitutes

31 The Rule of Law

"rhetorical flourish" used by theorists so as to advance their own (different) concepts based upon inconsistent emotive, personal, or subjective conceptions of the good society. The concept of the rule of law

An important objective of conceptual analysis is to clarify the basic components of a contested concept in terms that are acceptable to all. Indeed, without some minimal agreement about the meaning of the contested concept, such as the rule of law, we could not regard the various proponents as being engaged in disputes about a concept; they would merely be disputing about a phrase. Various approaches have been elaborated. Some philosophers have sought the "true" definition or the essence of the concept.58 Others, in accordance with linguistic analysis, have attempted clarification of the concept through observation and analysis of the conditions of its everyday usage in ordinary language.59 Still others have proposed that the concept should be purged of its moral and normative connotation so as to produce a morally and ideologically neutral definition.60 All these approaches seek to identify the essential or important features that constitute the necessary and sufficient criteria for proper use of the term. But the determination of these features necessarily depends on a particular point of view (such as the "purpose" or the raison d'etre of the concept) that is accepted as important or essential for reasons that are prior to and independent of that determination. Therefore, the choice of a definition is influenced by the theorist's normative standpoint and the concept is likely to remain contested.61 In contemporary moral, political, and legal theory, a more promising approach would regard the formulation of the concept of the rule of law as compatible with the ideology of each without requiring its constitutive propositions to be morally neutral or to correspond to the essence of the concept or to its ordinary meaning. This approach is based upon a particular distinction between a "concept" and a "conception."62 A concept consists of various propositions which are formulated in relation to some generally agreed elements of the common concept (for example, its purpose, its point, its raison d'etre, its interest, its principles, an "original examplar," or any other formal or material elements). One might accept these elements for various reasons either postulated as justified and valid or derived from a more general theory that one accepts as adequate. It is not necessary to analyse these reasons. It is sufficient to show that the propositions are universally acceptable since they represent some generally agreed elements of the concept. A conception is an interpretation or "more concrete refine-

32

Orthodox Constitutional Theory

merits" of the concept.63 It may be more or less concrete. It may derive from various competing normative, conceptual, descriptive, or hermeneutical theories. It may be important, for some purposes, to analyse those theories that form the basis or the grounds of disagreements. In Western political and legal tradition, the concept of the rule of law is generally conceived in negative terms: the rule of law is contrasted with the rule of men.64 Recently, for example, Allan Hutchinson and Patrick Monahan wrote that "the Rule of Law's central core comprises the enduring values of regularity and restraint, embodied in the slogan of 'a government of laws, not men.'"65 The notion of "the rule of men" generally refers to governmental decisions that are either arbitrary, whimsical, tyrannical or despotic, exclusively dominated by passions, desire, or self-interest. That idea can be traced as far back as Aristotle, who wrote that "he who commands that law should rule may thus be regarded as commanding that God and reason alone should rule; he who commands that a man should rule adds the character of the beast. Appetite has that character; and high spirit, too, perverts the holders of office, even when they are the best of men. Law (as the pure voice of God and reason) may thus be defined as 'Reason free from all passion.'"66 That minimum of consensus is sufficient to put forward two basic propositions: Government must decide and act rationally, that is, its decisions and actions must be based on "reasons"67; and the reasons for governmental decisions must be, in a sense, legal. I submit that these two abstract propositions are sufficiently uncontroversial as to be constitutive of the common concept. They are formal, for each of them contains an indeterminate element. The first postulates neither the form of government (for example, democracy, monarchy, aristocracy) nor the actual institutions that constitute the "government." However, it postulates that the rule of law is consistent with the fact that a government is composed of human beings.68 The second proposition postulates neither the nature nor the content of the so-called "legal" reasons. Any concrete determination of these elements is an interpretation of the concept that constitutes a conception of the rule of law. The conceptions of the rule of law

To be accepted as valid, a conception of the rule of law must be consistent with the two propositions that constitute its concept. It must provide a coherent answer to the following two interdependent questions: Who or what constitutes the "government" for the purpose of the rule of law? And what constitutes a "legal" reason, that is, a good reason for action or decision for the purpose of the rule of law? Therefore, a

33 The Rule of Law

conception of the rule of law always postulates a conception of "law" that "rules" and a conception of the "government," the duty of which is to act in accordance with that "law." To that extent, it must provide an answer to the questions that are at the heart of legal and political philosophy: What is the state? And what is law? Yet a conception of the rule of law does not (and need not) necessarily supply a general, final, and exclusionary answer to these questions. One may suppose that the concepts of law and of government or state might be differently formulated according to the contexts in which the questions are raised or according to the theorists' purposes. However, it would be a mistake to underestimate the link between the various conceptions of the rule of law and the various conceptions of law.69 On the one hand, ignorance of that link has been one of the main causes of confusion. When one does not clarify the conception of law that is postulated by a conception of the rule of law, it may be difficult to explain clearly, justify, and understand the coherence of the latter conception. That partly explains why so many authors have maintained that the rule of law is an incomplete, vague, unintelligible, contradictory, or incomprehensible doctrine. On the other hand, the various conceptions of the rule of law generally depend on the various conceptions of law accepted by the theorists.70 The elaboration of a conception of the rule of law may proceed from various approaches (normative, conceptual, hermeneutical, or descriptive) . Yet such a conception is always normative with regard to the government to which it applies. It supplies the set of reasons for actions and decisions that are or should be accepted as norms (principles, rules, policies, examples, standards, and so on) by the government.71 Accordingly, a conception of the rule of law postulates a conception of law coming within some theory of "practical reason." Moreover, these legal reasons are not treated as mere considerations to be weighed against all other reasons. A conception of the rule of law is, or claims to be, an "exclusionary reason,"72 that is, a reason to refrain from acting for non-legal reasons and from taking them into consideration within the process of deliberation. Therefore, for the purpose of the practical governmental process, the rule of law always postulates the primacy of the reasons conceived as legal, that is, at the risk of repetition, the supremacy of (a conception of) law. Joseph Raz has argued that "one of the two main fallacies in the contemporary treatment of the doctrine of the rule of law [is] the assumption of its overriding importance."73 That assertion is valid only if it means that, from a point of view external to the rule of law itself, it may sometimes be morally justified for the government not to act in accordance with the rule of law.74 For, depending on the conception of law

34 Orthodox Constitutional Theory postulated as supreme, a particular governmental action according to law may not necessarily be morally desirable. That, especially, may be the case with Raz's "instrumental" conception of law.75 By contrast, for example, if one believed that the rule of law requires compliance with a body of material norms deriving from an objective morality or true justice, such as classical natural law, the assumption of its overriding importance might not be a fallacy; it might constitute an objective moral duty. The foregoing distinction between the concept of the rule of law and its various competing conceptions provides a theoretical framework which is relevant to constitutional theory. It should constitute the starting point for a successful construction of the meaning of the rule of law in any legal system, notably in Canada. It should also form the basis for verifying whether particular propositions describing the rule of law are valid conceptions, that is, whether they constitute adequate or acceptable interpretations of the concept. Moreover, the foregoing distinction may help to clarify the important conceptual distinctions between a genuine conception of the rule of law and the descriptions of the theoretical justifications of the rule of law, or of the social consequences that might follow from a commitment to uphold a particular conception.76 Finally, a distinction between a concept and its conceptions may supply the basic conditions leading to greater understanding of constitutional law. THE IMPLICIT DOCTRINE: THE R U L E OF LAW AS POSITIVE RULES Insofar as orthodox lawyers, judges, law professors, and scholars have assumed, in accordance with Hart's theory, that, from the judges' internal point of view, law is a set of binding formally valid legal rules, they have logically postulated that the judges recognize, as ruling reasons for decision, the rules as identified in accordance with the formal validity thesis. Therefore, they have implicitly supposed that, for judges, the rule of law means the rule of positive law or, as I shall call it, the rule of law as positive rules. Of course, that does not mean that this conception correctly represents what the judges have actually recognized as ruling reasons for decisions in Canadian law.77 That implicit doctrine of the rule of law has been obscured by the fact that it refers to a conception of law that is already recognized as binding upon the courts for reasons apparently independent from that specific commitment to uphold the rule of law. To that extent, the implicit doctrine seems to add nothing to what legal positivists already

35 The Rule of Law

suppose, namely, that judicial decisions must be based upon the law conceived as a set of rules, the validity of which ultimately depends on the rule of recognition. For example, if an executive act were declared invalid, it would not be because of a particular inconsistency between that act and one specific standard of the rule of law but because that act would not be in conformity with the criteria of validity provided in a superior or ultimate legal rule recognized by judges as appropriate.78 Nevertheless, the rule of law as positive rules has constituted the implicit doctrine of the rule of law within orthodox constitutional theory. It corresponds to a conception of law implicitly regarded by orthodox theorists as providing a coherent interpretation of the concept of the rule of law. We may say that it is synonymous with the principle of legality, provided the concept of legality is not confined to the area of administrative law. I submit that the rule of law as positive rules was implictly postulated as true by the most people in Canadian legal circles by 1982. There are two theories within the doctrine of the rule of law as positive rules: the theory of the penumbra and the theory of the core. My criticism of the implicit doctrine proceeds from an analysis of these two theories. I argue, first, that the rule of law as positive rules is an incoherent notion in the field of constitutional interpretation, given the prevalence of hard cases in this area of law, and secondly, that the implicit doctrine of the rule of law is internally incoherent. The theory of the penumbra

According to the theory of the penumbra, any legal rule possesses "a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out."79 Confronted with such a case, a judge must decide in his discretion whether a given legal rule applies to the doubtful case. As Hart explained, "the classifier must make a decision which is not dictated to him, for the facts and phenomena to which we fit our words and apply our rules are as it were dumb ... In applying legal rules, someone must take the responsibility of deciding that words do or do not cover some case in hand with all the practical consequences involved in this decision."80 The application of the rule to a doubtful case is not a matter of logical deduction. It follows from a process of substantive reasoning. A judge must evaluate and balance the relative weight of the relevant contradictory substantive considerations so as to determine "whether the present case resembles the plain case 'sufficiently' in 'relevant' respects."81 Such a decision cannot be based upon the law as it is but upon some conception of the law as it ought to be, that is, upon the

36 Orthodox Constitutional Theory

apparent purpose of the rule, the assumed finality of law, morality, justice, the common good, or any other substantive considerations.82 Because a plurality of such considerations is always possible, "it cannot be demonstrated that a decision is uniquely correct."83 Consequently, when a case is doubtful, the judicial decision cannot be seen as being "according to law." It is a legislative decision based upon the set of extra-legal considerations that have dictated it on the balance of reasons.84 It follows that the theory of the penumbra is inconsistent with the very concept of the rule of law. That assertion is not particularly new. Yet if the rule of law as positive rules means anything it must be with respect to clear cases. Insofar as most of the possible cases can be said to be clear, judicial decisions based upon extra-legal considerations may be perceived as a necessary evil, indeed, as an acceptable and reasonable feature of the political order. But insofar as, in a given legal field (or worse, in the law as a whole), most of the cases actually fall within the penumbra, the rule of law as positive rules may be seen as internally incoherent. It postulates a conception of law (a set of rules) that is unfitted to provide judges with the constraining legal reasons required by the very concept of the rule of law. It thus postulates a conception of law that cannot "rule" except, perhaps, in exceptional cases. Within the field of Canadian constitutional law, the rule of law as positive rules is problematical for that very reason. Although a few provisions appear to be specific, most of the constitutional texts are formulated in general and vague terms. Few constitutional scholars today, except those among the most orthodox, maintain that constitutional adjudication is generally a matter of "black-letter" law. To the extent that most judicial decisions are ultimately decided on the basis of extra-legal considerations, constitutional adjudication is inconsistent with the very concept of the rule of law. Various arguments might be advanced to qualify the foregoing considerations. One could argue that a set of canons of constitutional intepretation constrains the process of judicial decisions. However, as any lawyer knows, both the number and the relative importance of each canon are contested. As Hart himself wrote, their meaning is doubtful: "Canons of 'interpretation' cannot eliminate, though they can diminish, these uncertainties; for these canons are themselves general rules for the use of language and make use of general terms which themselves require interpretation. They cannot, any more than other rules, provide for their own interpretation."85 Moreover, these canons often refer to concepts or standards that are in need of interpretation. For example, the canon providing that an ambiguous rule must be interpreted in accordance with its purpose says nothing about what the

37 The Rule of Law

purpose is in a concrete case. Finally, according to legal positivism, these canons are not binding valid legal rules.86 Many legal positivist theorists have attempted to narrow the sphere of judicial discretion in hard cases. Some of them have argued that judges must decide penumbral cases in accordance with a set of legal principles. For example, Neil MacCormick has propounded an elaborated descriptive and normative theory of the judicial duty to do justice according to law.87 Where the law does not determine a unique answer, judges must justify their decision in accordance with a secondorder justification which comprises two essential components: "legal decisions must make sense in the world and they must also make sense in the context of the legal system."88 The first element implies "consequentialist" arguments: judges "ought to consider and evaluate the consequences of various alternative rulings"89 and determine which one is acceptable, taking various criteria such as justice, common sense, public policy, convenience, expediency, and so on into consideration.90 The second element implies arguments from consistency and coherence. A version of the law is consistent with the legal system when it contradicts none of its binding valid legal rules.91 It is coherent with that system when it is supported by one or many principles that explain and justify the set of binding valid legal rules.92 The process of justification in a hard case postulates that any version of the law that is inconsistent must be rejected. A consistent version must also be rejected if it appears to be incoherent. Where more than one version of the law is both consistent and coherent, a judge must decide on the basis of consequentialist arguments. As MacCormick says: "I argue that the interrelated elements of consequentialist argument, argument from coherence, and argument from consistency are everywhere visible in the Law Reports, providing strong evidence that they really are requirements of justification implicitly observed and accepted by judges; and in my own right I argue that these are good canons of argumentation to adopt because they secure what I regard as a wellfounded conception of the 'Rule of Law.' "93 Even if MacCormick's theory of legal reasoning provided an adequate description of the process of justification in hard cases, it would not involve that judicial decisions in such cases should be justified by law as he conceives it. On the contrary, it is both these "requirements of justification" that we may characterize as formal and the accepted standards and principles of justice, public policy, convenience, expediency, and the like that may be termed substantive which ultimately determine and fully justify judicial decisions in hard cases. Thus, judicial decisions based upon these formal requirements and substantive standards and principles cannot be conceived as being based upon the law.

38 Orthodox Constitutional Theory

First, these requirements and standards are not part of the law because, according to MacCormick, a principle is "legal" or possesses a "legal quality" if it explains and justifies pre-existing valid legal rules: "When we ask what gives a principle legal quality we must give the answer in terms of its actual or potential explanatory and justificatory function in relation to law as already established, that is, in relation to established rules of law as identified by reference to criteria of recognition."94 Secondly, formal requirements and substantive standards are not required by law. For example, unless the law is coherent in fact, any decision based upon arguments from coherence is condemned to be legally ill-founded because an incoherent set of legal rules cannot produce by themselves a coherent decision (MacCormick maintains that the law is a "patchwork of... rival values"95). Similarly, unless the judicial duty to decide on the ground of consequentialist arguments is required in some way by the law, any decision based upon moral or political considerations is condemned not to be in accordance with the law. Thirdly, MacCormick upholds the idea of discretion in what Dworkin has called "a strong sense,"96 for, although it should be possible to determine objectively what the relevant legal principles are, it is not possible to determine objectively which one is the most justified in a given case: "The requirements and the sustaining theory tell us by what modes of argument to justify a decision, they do not settle what decision is in the end completely justified. Within them there may arise many issues of speculative disagreement which can in principle be resolved, but there is an inexhaustible residual area of pure practical disagreement."97 A choice must be made by judges in favour of the principle that seems "in the light of their conception of justice, public policy and common sense preferable to the alternative."98 Since such consequentialist considerations are extra-legal, MacCormick's theory does not make sense of the concept of the rule of law at least with respect to hard cases. One might rather argue that judicial discretion is constrained by the various possible acceptations of the debatable word (its extension) provided in the given rule. Accordingly, a decision based upon one of the possible meanings of the debatable word would be according to law. Unfortunately, that argument is misleading. The assertion that the determination of a hard case is constrained by one of the possible acceptations of the words is tautologically true. A doubtful case falls within the penumbra of the rule for the very reason that it fits with one of the possible acceptations of the contested words. It follows that the decision to include (or to exclude) a doubtful case within the scope of the rule is essentially based upon various considerations that are independent of the fact that it should be in conformity with one of the

39

The Rule of Law

possible meanings of its words. Consequently, unless one regards these other considerations as "legal," any decision about a penumbral case cannot be regarded as being according to law. It is in accordance with these other non-legal considerations. The theory of the "core"

According to the theory of the core, any legal rule possesses a core of meaning that is clear in certain cases. A case is clear where the facts that compose it constitute "clear examples of what is certainly within the scope of the rule."99 In a core case, a judge is not required to interpret the rule nor to make a choice on the basis of substantive reasoning.100 The legal rule is applied to the facts (such as proved) in accordance with the process of formal deductive reasoning. Accordingly, legal reasoning may be reduced to the following classical syllogism: 1 A statement of the formally valid legal rule: "If such and such conditions are fulfilled (p) then such and such legal consequences follow (q)." In order to identify that rule a judge must refer to the criteria of validity provided in the rule of recognition. 2 A statement that the conditions of application of the valid legal rules are effectively fulfilled: "Such and such established facts (f) correspond to the conditions for the application of the rule (p)." That premise presupposes an accepted theory of evidence. 3 A conclusion that the legal consequences stipulated in the rule logically follow: "Therefore, such and such consequences (q) follow." That conclusion instances the process of formal deductive reasoning. In core cases, the judges do not create law. They merely ground their judgments on pre-existing valid legal rules accepted as formal reasons for decision. Insofar as core cases constitute most of the cases, the rule of law as positive rules may be conceived as an internally coherent conception of the rule of law. However, the theory of the core conveys various ontological and epistemological postulates that are open to criticism and is generally conceived as valid on these grounds.101 As we know, the theory of the core postulates that the existence of a legal rule is a matter of sociohistorical facts. Legal rules exist independently from the judges who apply them. They exist as part of the judge's external objective world and are subject to objective knowledge.102 Moreover, the theory of the core maintains that the true meaning of a formally valid legal rule is a kind of matter or entity contained in the rule or, if you prefer, fully determined by its language.103 Judges are not required to interpret the

4O Orthodox Constitutional Theory

meaning of a rule in core cases but merely to note it formally and apply it to these cases; therefore, the meaning must be conceived as existing independently of the judges. The meaning exists as objectively in the universe as does the rule to which it is tied. It is "in the text." Moreover, meaning is subject to objective knowledge, that is, to a kind of knowledge that is universally valid. Therefore, the theory of the core postulates that the meaning of a rule is both determinate and determinable independently of the judges' subjective mind. Insofar as the process of judicial decision is concerned, these postulates are untenable. They imply various assertions that ignore totally a logically antecedent stage to any application of formally valid legal rules: I shall call it the interpretive stage. Proceeding from a certain trend within contemporary literary or critical theory, I shall argue that the meaning of a rule, even in clear cases, is produced through interpretation. It is now generally accepted that legal and literary theory share a certain number of basic concerns.104 Both disciplines question the nature of a text and the legitimacy of particular interpretive methodology. Historically, literary theory generally emphasized the importance of textual analysis and the significance of the author's intention, viewing the meaning of a text as fixed, stable, determinate, and determinable independently of a reader's subjectivity. The process of reading was conceived as being somewhat passive, with the reader regarded as a receiver who "discovered" the true meaning of the text.105 More recently, there has been a shift within literary theory. The notion of meaning has come to be associated with the reader instead of with the words of the text or with the author's intention. That important development, generally called the "reader response," may be associated with at least four schools of thought: philosophical hermeneutics, pragmatism, deconstructionism, and the theory of reception. That classification is far from being watertight and there are various differences within each of these schools. Their theories do not agree on all important issues. Yet, insofar as they have something to say about the interpretation of text, they tend to converge. Because they have constituted the theoretical framework within which the shift has proceeded, it is important to recall some of their basic propositions. My purpose is not to analyse and criticize them. It is confined to the unveiling of what could otherwise be seen as mere implicit, unarticulated, or unsupported assumptions. To that extent, and for my purpose, we may assume that they are sufficiently justified. "Philosophical hermeneutics" refers to those theories that can be associated with the complex thought of Hans-Georg Gadamer.106 Gadamer is concerned with the nature and the conditions of understanding.107 He argues that one's understanding of a text is first a matter of

41 The Rule of Law

projecting to a text a meaning which is shaped, conditioned, and structured by the very historical and linguistic situation in which one is at any given time.108 That meaning may be changed and revised as one "penetrates into the meaning" in accordance with the "hermeneutical circle."109 Yet the meaning always remains relative to the situation of the interpreter. Understanding, thus, is conditioned by the whole set of "prejudices"110 that constitute the reader's own preconceptions about the world and delimit his or her horizon of understanding. Understanding is an interactive (dialogical) process between the reader's own horizon and the horizon in which the text is historically and linguistically situated and results from a fusion of these two horizons. This process involves challenges that might alter one's prejudices, which in turn challenge one's understanding of meanings.111 Therefore, there is no such thing as objective truth or objective knowledge: "To try to eliminate one's own concepts in interpretation is not only impossible, but manifestly absurd. To interpret means precisely to use one's own preconceptions so that the meaning of the text can really be made to speak for us ... An interpretation that was correct 'in itself would be a foolish ideal that failed to take account of the nature of tradition. Every interpretation has to adapt itself to the hermeneutical situation to which it belongs."112 Moreover, as time passes, one's horizon of understanding moves and, as a result, so does one's understanding of texts. Consequently, the meaning of a text is never fixed nor determinate. It is basically unstable.113 Similarly, proponents of pragmatism and deconstructionism are sceptical about our ability to reach an objectively valid knowledge with respect to texts. Proponents of pragmatism114 distrust theories about truth, knowledge, language, or morality which purport to be grounded upon an ahistorical foundational "matrix."115 It claims that all these notions are rooted in the culture, tradition, practices, and language in which we are always historically situated: "It is impossible to step outside our skins - the traditions, linguistic and other, within which we do our thinking and self-criticism - and compare ourselves with something absolute."116 There is "no method for knowing when one has reached truth, or when one is closer to it than before."117 Philosophy, like science, does not have privileged access to an "Archimedean point from which to survey culture."118 The only standards by which a particular question is raised and a particular answer is given and criticized are internal to the practice in which the question is raised and answered.119 Richard Rorty explains this theory with the notion of "conversation": pragmatism is "the doctrine that there are no constraints on inquiry save conversational ones - no wholesale constraints derived from the nature of the objects, or of the mind, or of language, but only those

42 Orthodox Constitutional Theory

retail constraints provided by the remarks of our fellow-inquirers."120 That has deep implications with respect to literary interpretation. According to Rorty, pragmatism is the philosophical counterpart of literary modernism, "the kind of literature which prides itself on its autonomy and novelty rather than its truthfulness to experience or its discovery of pre-existing significance."121 It sees "texts" as a permanent possibility for use and thus "for redescription, reinterpretation, manipulation."122 It sides with "strong textualists"123 who do not seek to decode the secret of the text because such inquiry, requiring a method, would presuppose a "privileged vocabulary, the vocabulary which gets to the essence of the object."124 Accordingly, the interesting question is not whether a given interpretation corresponds to what the text really says or whether it is true or objectively valid but "how shall I describe this [text] in order to get it to do what I want?"125 The body of theories associated with deconstructionism suggests the same kind of assertions. For example, Jacques Derrida, generally regarded as the main proponent of deconstructionism, has maintained that the whole idea of "true," "real," or "determinate" meaning rests upon a philosophical mistake because there exists neither a foundational standpoint (an "ultimate referent," a "transcendental signifier," or a "presence") outside language nor a fixed centre inside language that could provide us with objectively valid criteria for the understanding of determinate and determinable meaning. Consequently, language allows as many meanings and understandings as there are individuals to play with it.126 Gadamer's philosophical hermeneutic has influenced Hans Robert Jauss, who is regarded as the "principal architect" of the "reception theory" or "reception aesthetics."127 That theory is concerned with the very process through which a reader "receives" the meaning and the aesthetic of a literary text. It assumes that neither reside in the text. Both are the product of a dynamic interaction between the reader's own horizon and the text. According to Wolfgang Iser: "If interpretation has set itself the task of conveying the meaning of a literary text, obviously the text itself cannot have already formulated that meaning ... As meaning arises out of the process of actualization, the interpreter should perhaps pay more attention to the process than to the product. His object should therefore be, not to explain a work, but to reveal the conditions that bring about its various possible effects. If he clarifies the potential of a text, he will no longer fall into the fatal trap of trying to impose one meaning on his reader, as if that were the right, or at least the best, interpretation."128 These conditions vary according to the theorists. However, they all maintain that the meaning of a text is constituted by the reader.129

43 The Rule of Law

The act of reading is seen as the process through which the reader constructs, concretizes, materializes, or actualizes the text. Accordingly, the meaning of a text does not exist outside the consciousness of the reader who receives it. According to Iser, readers generally approach a text with certain expectations, notably with respect to literary and linguistic conventions, which provide them with a "repertoire" of what is familiar within the text.130 These standards seem to imply that the text constrains the act of reading. Yet, although exercised by the text, such constraints are not in the text.131 They derive from the reader's preunderstanding (itself produced by cultural and social norms, traditions, and so on). As they also leave gaps or "indeterminations" between what may be conceived as determinate, the reader must construct the text by filling up the gaps: "Communication in literature, then, is a process set in motion and regulated, not by a given code, but by a mutually restrictive and magnifying interaction between the explicit and the implicit, between revelation and concealment. What is concealed spurs the reader into action, but this action is also controlled by what is revealed; the explicit in its turn is transformed when the implicit has been brought to light. Whenever the reader bridges the gaps, communication begins."132 Accordingly, since the act of reading is an individual act of "concretization," it is a logical consequence that a text can be interpreted in various ways. For Stanley Fish, associated with reception theory,133 deconstructionism,134 and pragmatism,135 a text is merely the "structure of meanings that is obvious and inescapable from the perspective of whatever interpretive assumptions happen to be in force."136 Everything with respect to text is a matter of interpretation. He regards interpretation as an enterprise both constituted and controlled by various "interpretive strategies" (assumptions, expectations, beliefs, pre-underslandings) that readers logically have in common prior to the interpretation of the text.137 Therefore, meanings or senses are not "embedded or encoded"138 in an autonomous, self-sufficient, and unique text; they are "made."139 Moreover, not only meanings, but also formal units, grammar, and author's intention are seen as shaped by interpretive strategies since they create the "conditions in which it becomes possible to pick them out."140 Consequently, there are potentially as many texts or interpretations of one given poem or novel as there are readers. Yet such relativism and scepticism with respect to objective texts do not lead to nihilism and to the impossibility of communication. According to Fish, readers already belong to "interpretive communities" that are "made up of those who share interpretive strategies not for reading (in the conventional sense) but for writing texts, for constituting their properties and assigning their intentions."141 Interpretive

44 Orthodox Constitutional Theory

communities are the ground for explaining the fact of shared and stable interpretation. They explain why disagreements can be debated in a principled way. They explain that some interpretations are regarded as "false" or "objectively invalid." Interpretive communities are also the place where writers and readers meet. The writings of an author are an invitation to readers to interpret them in accordance with the author's expected "interpretive strategies," which are based upon a projection of what he would do when confronted by his writings.142 The degree to which such expectations are going to be fulfilled depends on whether the reader belongs to the author's interpretive community. In Fish's theory, although the text, as traditionally conceived, totally "disappears," communication remains possible. It would be misleading to suggest that the foregoing approaches have no detractors. Various contemporary literary theorists have defended the idea of a fixed, stable, and determinate meaning and the possibility of objectively valid knowledge with respect to the interpretation of texts. E.D. Hirsch, for example, has argued that verbal meaning is a self-identical entity remaining the same from one moment to the next143 and that it corresponds to the subjective intention the author had in mind when writing the text. Accordingly, meaning exists prior to and independently of the readers. However, Hirsch recognizes that such intention can either be formulated in various ways or be understood differently according to the reader and that it may be impossible to have access to that intent. Yet that assertion does not change his basic assertions: Hirsch calls significances (and not meaning) the various textual interpretations provided by readers in accordance with their own historical and cultural context.144 Such distinction, by definition, implies that readers do not make and cannot produce meanings.145 But, even if we assume the validity of Hirsch's distinction between meaning and significances, that would not deny the centrality of readers and interpretation in the constitution and the understanding of what the text is taken to mean. Indeed, Hirsch's significances (the process by which readers formulate meanings) instead of Hirsch's meaning should become the centre of analysis. As he writes: "Almost any word sequence can, under the conventions of language, legitimately represent more than one complex of meaning. A word sequence means nothing in particular until somebody either means something by it or understands something from it. There is no magic land of meanings outside human consciousness. Wherever meaning is connected to words, a person is making the connection, and the particular meanings he lends to them are never the only legitimate ones under the norms and conventions of his language."146 Consequently, "we need a norm precisely because the nature of a text is to have no meaning except that which an interpreter wills into exist-

45

The Rule of Law

ence. We, not our texts, are the makers of the meanings we understand."147 It follows that "the authorial intention is not the only possible norm for interpretation ... The choice of an interpretive norm is not required by the 'nature of the text' but, being a choice, belongs to the domain of ethics rather than the domain of ontology."1*8 In spite of various criticisms,149 these recent developments within philosophy and critical literary theory have been welcomed by many contemporary legal theorists.150 To the extent to which their basic propositions are justified, the meaning of a text must not be regarded as something that is fixed and determinate in it but rather as something produced by the reader through a process of interpretation. That implies, first, that the process of interpretation, for all practical purposes, is logically antecedent to any meaning attributed to a given formal rule. Without it, a formally valid legal rule would be nothing more than a raw fact as devoid of content as the material symbols that constitute it. The nature of the written rule would not be different in kind from the symbolic "if p then q" or from the set of dashes inlaid into a stone by accident, that is, a mere form. Accordingly, it could neither constrain nor guide the process of legal reasoning, for such process requires constraints that have some normative content. A judge called upon to apply a positive rule has a logical and prior duty to determine its content. He must transform the black ink into formal units, formal units into words, and words into meaningful concepts. That process corresponds to what I call the interpretive stage. It may be more or less complex. It may proceed either in a consciously reasoned way or in a seemingly automatic manner. Secondly, a judge comes to the text with a set of expectations, prejudices, theories, beliefs, and presuppositions with respect to the world in general and the text in particular. Such preconceptions depend on the historical, cultural, and linguistic situation in which the judge is immersed. They vary both in time and in space. The judge's preconceptions determine what Fish calls the "interpretive strategies," that is, the set of knowledge and procedures that leads him or her to provide a rule with a particular meaning. Such strategies involve for the reader a particular conduct or attitude. Consequently, the meaning of a rule must be regarded as produced by a set of elements that belongs to the reader's consciousness. That means that, if the elements are conceived as reasons (or allowing appeal to reasons) constraining and guiding the judicial decisions, they are logically extra-legal. Consequently, any legal decision based upon the meaning attributed to a rule cannot be regarded as dictated or determined by law. It is in accordance with the whole set of extra-legal considerations that have justified a particular meaning including that very meaning.

46 Orthodox Constitutional Theory

Thirdly, the dichotomy between cases falling within the core of the rule and not requiring interpretation and cases falling within the penumbra is blurred. The distinction becomes a matter of degree not of nature. In both kinds of cases, meaning is produced by judges through a process of interpretation that involves extra-legal elements, considerations, directives, and the like, none of which are dictated or determined by the formally valid rules. Accordingly, the process of legal reasoning must never be conceived as a purely formal and logical deductive process. It always includes an interpretive premise, the purpose of which is to determine the meaning of the legal concepts enunciated in a given legal rule. Thus, the process of legal reasoning, both in core and penumbral cases, should be formulated in a way similar to this: 1 A statement of the presupposed formally valid legal rule: "If such and such conditions are fulfilled (p) then such and such legal consequences follow (q)." That statement postulates that the rule is already accepted as a valid datum to be applied (although the issue of validity is not explored here, it can be assumed that it raises the same kind of interpretive issues). However, as the concept "p" is meaningless without interpretation, we must introduce what may be called an interpretive premise. 2 An "interpretive premise" providing that the meaning of the concept "p" is constructed in accordance with the judge's (or the interpretive community's) accepted theory of meaning and/or of interpretation. For our purposes, we may assume that the meaning of a legal concept corresponds to the set of characteristics that a set of proven facts must necessarily possess so as to be characterized as "p." Thus, the interpretive premise states that "for any set of facts (f) the basic characteristics of which correspond to such and such characteristics (c) there is p." 3 A minor premise affirming two things without which no logical conclusion could be deduced from the major premise. First, that such and such facts have been established in accordance with an accepted theory of evidence and, secondly, that these established facts possess the necessary characteristics required by the legal concept. That premise can be formulated as follows: (i) "now, such and such facts (f) have been established" and (ii) "these facts (f) possess the characteristics (c) of the legal concept (p)." 4 A conclusion logically deriving from the three foregoing premises because the conditions for the application of the rule, namely a set of facts (f) corresponding to the legal basic characteristics (c) of the legal concept (p), have been fulfilled: "therefore, such and such legal consequences (q) follow."

47

The Rule of Law

The appearance of that reasoning is formal and logical. Yet, when we correctly understand the scope and the function of the interpretive premise, we see that it is, in fact, although logical, basically material.151 The discussion so far does not deny that judges and lawyers regard many cases as clear and easy.152 It does not deny, either, that all the judges of a given legal system may agree that a rule clearly applies to a given case. What it does deny, however, is that such clarity and ease come from the fact that the text has an "inner meaning" for which we may have an objectively valid knowledge. It claims that a case is clear when the reader's preconception and interpretive strategies clearly lead to one single answer. It claims that consensus happens because the judges either form an interpretive community sharing the same preconception and interpretive strategies with respect to the text or, in spite of their various interpretive strategies, they are led to the same interpretation.153 Therefore, the relevant and important issue should not be whether there are cases conceived as clear by judges, but to understand what constitutes the clarity of these particular cases. Since it is not the inner essence of the rule, one must turn towards the reader's preconceptions and presuppositions, that is, towards extralegal considerations (the interpreter's and/or the community's rules, norms, conventions, and so on guiding or constraining the process of interpretation). It might be objected that, if I claim that there are cases recognized by the whole community of judges as easy, then the theory of the core is coherent. Such objection, however, overlooks the fact that the ease or clarity of the decision is not determined by an inner essence of the rule but by the readers' interpretive strategies. Of course, the fact that some cases are clear and predictable may support another conception of the rule of law, namely, the rule of law as certainty.154 However, insofar as the rule of law as positive rules is concerned, even if some degree of certainty is possible, the rules or standards that have guided the judges have not derived from the formally valid rules. The foregoing discussion leads to a dramatic conclusion. When judges face both penumbral and core cases, the reasons for decisions are not legal. It follows that the law (as positive rules) provides the judges with no legal normative constraint. Accordingly, the judges are always legally free to decide what their consciousness tells them. The law (as positive rules) does not and cannot prevent them from supplying a legal rule with any meaning whatsoever. From a legal standpoint, any judicial decision is both arbitrary and as good and right as any other. Therefore, the rule of law as positive rules is internally incoherent: it contradicts the very concept of the rule of law.

48 Orthodox Constitutional Theory

Many scholars who have come to similar conclusions have been characterized as nihilists by some of their detractors.155 AsJ.W. Singer notes, the nihilist believes that "a rational foundation and method are necessary, both epistemologically and psychologically, to develop legitimate commitment to moral values" but does not believe that such a rational foundation and method "either already exist or can be discovered or invented."156 Thus, if the idea of a legitimate, objective, and rational judicial decision requires the existence of a law that possesses some determinate content, then the rule of law as positive rules involves nihilism because it postulates a conception of law that is not only indeterminate but materially empty. Therefore, from the point of view of law, "anything goes." Moreover, if there is no absolute standpoint from which and no method by which one may objectively reach the truth or assess the validity and the legitimacy of one's moral or ethical beliefs, any judicial decision is as good or bad or as right or wrong as any other and so-called "decisions according to law" are simply a sham hiding the exercise of arbitrary power and, ultimately, physical force. Here, nihilism reflects what Rorty calls "the fear that there really is no middle ground between matters of taste and matters capable of being settled by a previously statable algorithm."157 If, however, such middle ground does exist and if adjudication proceeds in accordance with a set of norms recognized as justified despite the fact that it is not derived from the "law as positive rules," it might well be conceived as rational, justified, and legitimate.158 It is important at this point to introduce Owen Fiss's contribution to that debate.159 Fiss, rightly or wrongly, feared that Sanford Levinson's thesis in "Law as Literature"160 involved a form of nihilism calling into question both the "very point"161 and the "legitimacy"162 of adjudication. According to Levinson, lawyers have lost "the sense of doing and speaking in the name of someone or something recognizable and unquestionably valid."163 Since the meaning of words is unstable, there are as many possible readings of the constitution as there are of Hamlet.l&4: "It would obviously be nice to believe that my Constitution is the true one and, therefore, that my opponents' versions are fraudulent, but that is precisely the belief that becomes steadily harder to maintain."165 The very "project of ultimate truth-seeking" is philosophically mistaken. It "presumes a privileged foundation for measuring the attainment of truth."166 We should therefore abandon the enterprise of seeking true principles and true methods of legal interpretation. Instead, we should assess the "results of an interpretive effort by something other than the criterion of adherence to an inner essence of the text being interpreted."167 Indeed, "there is something disconcerting about accepting the Nietzschean interpreter into the house of consti-

49 The Rule of Law

tutional analysts, but I increasingly find it impossible to imagine any other way of making sense of our own constitutional universe."168 According to Fiss, Levinson's thesis involves the choosing of one of the possible meanings that inevitably express the judge's own values, 9 and it is "impossible to speak of one interpretation as true and the other false."170 Fiss accepts a basic premise of Levinson's, namely, that "for any text there are any number of possible meanings and the interpreter creates a meaning by choosing one,"171 but he denies that that leads to nihilism. Adjudication is a form of interpretation172 that "can achieve the measure of objectivity required by the idea of law."173 Fiss's concept of objectivity is not absolute. It requires the interpretive process to be constrained by a set of norms or standards that transcend the interpreter's subjective standpoint. In law, such norms or standards correspond to a set of disciplining rules recognized as authoritative by those who compose a particular interpretive community, the membership of which is based upon a commitment "to uphold and advance the rule of law itself."174 The disciplining rules "specify the relevance and weight to be assigned to the material (e.g., words, history, intention, consequence) ... define basic concepts and [establish] the procedural circumstances under which the interpretation must occur."175 Although such rules prevent arbitrary and purely subjective decisions, they also imply that the objective quality of interpretation is bounded, limited, or relative.176 "It is bounded by the existence of a community that recognizes and adheres to the disciplining rules used by the interpreter and that is defined by its recognition of those rules ... Bounded objectivity is the only kind of objectivity to which the law - or any inter pretive activity - ever aspires and the only one about which we care."177 Adjudication is therefore objective without being universally valid or absolutely true for the idea of "objective interpretation accommodates the creative role of the reader," and it is subjective without being arbitrary and unconstrained for it proceeds within a frame of disciplining rules.178 So far, Fiss's argument is sound. Yet, insofar as it maintains the idea that the meaning of the legal text is determined in accordance with a set of norms that are both external to and independent of the set of valid positive rules, we may object that it hardly denies Levinson's nihilism since it seems to confirm that the law (as positive rules) is not the source of constraints. Apparently, Fiss has foreseen that objection. Both at the beginning and at the end of his essay he has insisted on the fact that the constitution has some meaning. Adjudication is the process by which a judge comes to understand and express the meaning of an authoritative legal text and the values embodied in that text.179

50 Orthodox Constitutional Theory My defense of adjudication as objective interpretation, however, assumes that the Constitution has some meaning- more specifically, that the text embodies the fundamental public values of our society.180

These assertions may be understood in three different ways. First, they may reflect the ontological assumption that texts have an inner meaning prior to and independent of the process of interpretation. To that extent, Fiss seems to assume the validity of what Levinson has called into question and does not come to terms with Levinson's thesis. He merely denies it without argument. Moreover, the assertions seem inconsistent with Fiss's other claim that "relative" objectivity is the only one "to which the law ... ever aspires and the only one about which w care."181 Secondly, these assertions may be seen as justified on moral rather than ontological grounds: "There is no theory of legitimacy that would allow judges to interpret texts that themselves mean nothing. The idea of adjudication requires that there exist constitutional values to interpret ... Lacking such a belief, adjudication is not possible, only power."182 The justification for that assertion depends on whether or not we believe that there is some middle ground between the necessity to recognize an absolute foundational referent and mere power. In particular, it depends on whether one agrees with Fiss's theory of legitimacy. One may doubt that Fiss's thesis justifies the assertion. In order to be regarded as a necessary condition for the legitimacy of adjudication, the meaning embodied in the text (the "public values") must constrain the interpreter in some way. Fiss seems to believe that the meaning understood by the reader is always produced in accordance with the disciplining rules: Interpretation ... is neither a wholly discretionary nor a wholly mechanical activity. It is a dynamic interaction between reader and text, and meaning the product of that interaction. It is an activity that affords a proper recognition of both the subjective and objective dimensions of human experience.183 The meaning of a text does not reside in the text, as an object might reside in physical space or as an element might be said to be present in a chemical compound, ready to be extracted if only one knows the correct process; it recognizes a role for the subjective. Indeed, interpretation is defined as the process by which the meaning of a text is understood and expressed, and the acts of understanding and expression necessarily entail strong personal elements.184

We may thus wonder whether the recognition of an inner meaning contributes in any significant way to the legitimacy of adjudication. If by

51 The Rule of Law

any chance it were the case that a given interpretation were totally and truly consonant with the so-called "public values" embodied in the text, there would be no way of knowing it. Thirdly, Fiss's assertions can be understood as meaning that the judges recognize as authoritative one disciplining rule that would be set forth in a manner similar to this: "Judges must always assume that legal texts have some internal meaning and, particularly, that the constitution embodies public values." This interpretation follows from the basic postulates of contemporary interpretive theory. It maintains that the assumption originates from the historical interpretive community (and its own theory of legitimacy) rather than from a foundational standpoint external to it. It is internal to the practice of interpreting a text. It makes clear that such an assumption is based upon a previous interpretation of the law as a whole. If the community had recognized a disciplining rule prescribing another set of assumptions such as "the constitution embodies the original intent" or "the constitution embodies the establishment of a procedural democracy," then it would have postulated another set of interpretive norms and strategies. Although I am unclear as to whether Fiss would agree with me, the third interpretation of his assertion about the existence of an inner meaning must be taken as superior to the first two.185 Yet it does not allow us to come to terms with the kind of nihilism involved by the rule of law as positive rules. It just confirms it. We now face the following alternative. On the one hand, we may conclude that the whole idea of rule of law is incoherent, that it must be rejected once and for all, and that the legitimacy of judicial decisions must be grounded upon new foundations.186 On the other hand, we may conclude that it is too early to get rid of the concept of the rule of law and decide to substitute for the rule of law as positive rules a more coherent conception. Such a conclusion can be justified upon at least two different grounds. First, it may be imposed by a given moral theory. Secondly, it may be justified as a better interpretation of the process of judicial decision in a given community. In Part Two I shall argue that a coherent conception of the rule of law can be constructed from an interpretation of the legal discourse and legal practice as they manifest themselves in the West, notably in Canada. THE "INTERPRETIVE PREMISE" Earlier in this chapter I said that the distinction between easy and hard cases was a matter of degree instead of nature on the ground that both required from the judges the introduction of an "interpretive premise" within the process of legal reasoning. In this section, I propose to

52 Orthodox Constitutional Theory

clarify the notion of "interpretive premise." Such a discussion is necessary for a proper understanding of Chapter 3 and Part Two. The purpose of the interpretive premise is to determine the meaning of the legal concept (p), namely, the set of specific characteristics that constitute it (its "comprehension").187 The act of determining the content of that premise should be seen as one particular interpretive decision logically proceeding from and involving a complex network of interpretive decisions coming within the judge's (and probably the interpretive community's) more or less articulated theory of interpretation. Such a theory is thus logically antecedent to and independent of the content given to a particular interpretive premise. For the purpose of this chapter, it is sufficient to show that an interpretive decision follows from a process that possesses three characteristics: it is rational, evaluative, and regressive. First, interpretive decisions are rational. I drive my car at 140 km/h on a highway and pass a sign that reads "Maximum 100 km/h." Instantaneously, I brake. My action appears automatic. Yet, there are good reasons to do it and, to that extent, it may be seen as resulting from a psychological process characterized by a complex network of interpretive decisions taken more or less consciously and more or less simultaneously.188 A sign is at first a mere form among all other phenomena. As such, it is not constraining. I must turn it into a practical reason. That transformation proceeds within a pre-interpreted framework conceived as relevant in the circumstances (the interpretive method, the content of all the elements I must take into account, the relevant point of view, and so on) and necessarily is a function of my own preconception or pre-understandings of the world in general (theories, beliefs, ideas, opinions, and the like) and of the law in particular. Of course, in ordinary life, there is no reason to enumerate that set of interpretive decisions and, accordingly, to conceive of the act of braking on a highway as being rational. However, when an act is done on the ground of a commitment to uphold the rule of law, even the most automatic should be conceived as rational. Thus, the process of legal reasoning, even in easy cases, should be conceived as flowing from a set of reasons and the decisions to recognize such and such reasons as authoritative should be regarded as justifiable in terms of more fundamental reasons that are accepted as authoritative. A judge must thus be capable, in principle, of supplying all reasons recognized as binding that have led to the decision to give a particular meaning to a given legal concept. In that sense, legal reasoning involves the clarification of the interpretive premise flowing from a complex network of rational interpretive decisions. For example, a judge called upon to apply the text "if a car driver exceeds 100 km/h on such and such a

53 The Rule of Law highway, his excess speed is punishable by such and such penalty" must first decide that the text is a formally valid legal rule (not a modern poem or a photograph), that it is prescriptive (not descriptive), that it should be interpreted in accordance with the English language (not Japanese), that the words must receive their literal meaning (not the best meaning from the point of view of its alleged purpose, justice, morality, or wealth maximization), that the symbol "km" refers to the metric system (not to a chemical compound), and so on. Each of these decisions may be further refined. Of course, it is very unlikely that we would ever ask a judge to enumerate all reasons that have guided his final interpretive decision. That would be tedious indeed and probably unnecessary as the community in general and/or the legal community implicitly agree with most of them. What is required, though, is to regard the judge as being capable of providing such reasons if ever he is asked to do so. Secondly, interpretive decisions are basically evaluative. They flow from a process of evaluation and constitute value judgments. As the interpretive premise requires the determination of the meaning of the legal concept "p," a judge must decide whether the rule should be materially understood as "if pi then q," "if p2 then q," "if pj then q," and so on. This decision requires a substantive evaluation of all the competing material "p." The purpose of such a process is to weigh the relative merit or worth of each material "p." The interpreter must classify and organize qualitatively all options from the best interpretation to the worst. Four elements are necessary for this process to succeed.189 First, the interpreter must enumerate all the possible meanings of "p." The image I have in mind is a set of concentric circles representing all the material "p" from the narrowest (pi) to the broadest interpretation (pn). As a judge works within a practical framework of prima facie acceptable material "p," the enumeration presupposes a set of antecedent interpretive decisions with respect to the validity of the formal rule and the relevant linguistic code. Each of these antecedent interpretive decisions is evaluative and follows the process we are describing. Secondly, the process of evaluation requires a particular point of view from which the evaluations can be made. It may vary according to the circumstances. However, for each interpretive decision one point of view must be accepted or presupposed as valid or justified. For example, the evaluation of the competing material "p" can be made from the point of view of the subjective (or "real") intention of those who have laid down the rule, the society's shared morality, the rule's purpose, the ordinary language, the typical reader, the dictionary, justice, integrity, and the like. Whatever it may be, the point of view is

54 Orthodox Constitutional Theory

logically antecedent to and independent of the material "p" accepted because it supplies the very standards according to which its meaning is constituted. As we shall see in a moment, the determination of the point of view requires a prior interpretive decision. Thirdly, the interpreter must determine the very norm required by the point of view. That norm constitutes the standard according to which all the possible interpretations of the rule can be measured, compared, and ranked. For example, if the interpretation of the rule must be made from the point of view of its purpose, the interpreter must determine the norm that concretely represents what the purpose is. In this example, the norm may vary according to the structure of the "purposive" interpretation.190 Fourthly, the interpreter must deliberate as to the degree of consistency of each possible interpretation with the accepted norm. This requires a determination of the basic characteristics of the norm and of those of each of the possible interpretations so as to compare the relative degree to which the latter fulfils the former. Then, the interpreter must decide which of the possible interpretations best fits the norm. Obviously, such a ranking is not scientifically quantifiable. Yet it is basically rational and comes within a process of "dialectical" reasoning.191 The interpreter must take into account all the arguments in favour of each possible interpretation and all the arguments against it and weigh them in accordance with his understanding of law in the light of his view of the world. Ultimately, he must be convinced that on balance, with all relevant reasons considered, a given interpretation is superior to and, consequently, better than all other interpretations. Of course, the interpreter cannot demonstrate that his evaluation is absolutely true or universally valid. Yet he should be capable of justifying his choice by pointing out good reasons for it. Moreover, he should be capable of arguing, and perhaps of persuading us, that his interpretation constitutes, in the circumstances, the best possible interpretation. Although the process of evaluation certainly involves intuition, emotion, wisdom, common sense, and passion, the nonrational statement must be supported or justified by reasons that are coherent with or derive from the set of considerations (principles, standards) accepted as rationally justified. If a judge cannot justify a non-rational statement in terms of his accepted reasons, he may either abandon the statement or revise the inconsistent accepted reasons in accordance with that statement and consistently with all other accepted reasons.192 Almost any single step of this process involves value judgments. However, all of the steps focus on the final value judgment, namely the judgment as to the best interpretation of the valid legal rule in a given context.

55 The Rule of Law Thirdly, interpretive decisions are regressive. So far, we have dealt with what may be called a "first-order" interpretation, that is, a determination of the content of the interpretive premise involved in the application of a formally valid legal rule. Such first-order decisions come within a pre-interpreted complex structure of meaning such as the relevant first-order point of view (for example, purpose), the relevant first-order norm or standard implied by it, and so on. However, since, conceivably, there are numerous possible points of view (purpose, intention, social consensus) and for any such point of view there are many possible norms, we must assume that the determinations of the first-order point of view and norm result from a rational and evaluative process. That presupposes what may be called a "second-order" interpretation by which the "first-order" point of view and norms are determined and accepted. That second-order interpretation requires an enumeration of all the possible points of view and norms of the first order, a recognition of a presupposed valid or justified second-order point of view and norm (which may vary according to contexts), and then a deliberation. Logically, for the process to be rational, the second-order point of view and norm must be determined in accordance with a set of "third-order" interpretive decisions. And so on. The process of regression, however, cannot be conceived as infinite for it would clash with the very concept of the rule of law. If such process were regressive ad infmitum then it would entail at least two absurdities. First, the process would have no reason for being and the reasons supplied by the judges would have no foundation at all. Consequently, there would be no substantial, but merely rhetorical, difference between an argued decision and an arbitrary one. Secondly, there would be absolutely no means to verify whether a given judicial decision is well founded. For some verification of a given interpretation to be possible, we must suppose some standard or some ultimate norm to which we can appeal. It follows that from the internal point of view the concept of the rule of law logically requires the recognition of some ultimate reason, that is, a norm deriving from no other norm and according to which a judicial decision can be verified. Such reason is the ultimate premise of the whole process of legal reasoning. It may be simple or complex. In order to constitute a practical reason and be regarded as ultimate, it must be accepted and postulated with a certain pre-interpreted and pre-determined content. It does not mean that it is ultimate in a "foundationalist" sense, providing an objective, true, universal, and absolute "Archimedean" point.193 No judge has to assume the validity of foundationalism in order to recognize a particular standard as an ultimate reason for the purpose of adjudication. One may accept it for various non-foundational moral, ethical, or personal

56 Orthodox Constitutional Theory

reasons. Yet, whatever the approach is, it is necessary for the judge to recognize some reason as ultimate within his adjudicative activity based upon a commitment to uphold the rule of law. Conceiving the process of adjudication as a rational, evaluative, and regressive process of interpretation based upon an ultimate reason prevents us from regarding it as arbitrary or purely subjective. One might even say that the process can be objective if by "objective" one has in mind a concept close to Fiss's "relative objectivity." Thus, a decision may be accepted as objective by those who objectivize or who accept the validity or the justification of the reasons that have or may have guided it in terms of the accepted ultimate reason. Of course, one might criticize that decision if one refutes the arguments that have led to a particular interpretive decision within the process. However, as long as the decision remains justifiable in term of the ultimate reason, the decision may be seen as rational. Indeed, something else must be present if we are also to conceive it as being based upon the law. That is the issue which I shall consider in Part Two.

CHAPTER THREE

The Sovereignty of Parliament

There are two versions of the doctrine of parliamentary sovereignty within orthodox constitutional theory: an explicit and an implicit version. In this chapter, I argue that both versions are inadequate and must be deeply amended. The explicit version corresponds to the doctrine as expressly formulated in Canadian constitutional law textbooks. Being a specific application of the formal validity thesis, this version has a dubious practical character: because it ignores the whole issue of interpretation, it cannot give a coherent and correct account of the relationship between the courts and Parliament. The implicit version, as I shall describe it, represents the doctrine of parliamentary sovereignty as it should have been expressly understood and formulated in orthodox Canadian constitutional theory and textbooks. It integrates two issues: the validity and the interpretation of legislation in accordance with the rules that are expressly and implicitly accepted by the vast majority of orthodox Canadian constitutional lawyers, judges, law professors, and scholars. I submit that the implicit version is more coherent and more appealing from a practical point of view than the explicit version. Nevertheless, I criticize and reject the implicit version on the ground that it fails to make sense of a certain number of judicial decisions widely accepted as well founded in law. Finally, I draw two conclusions that will underlie Part Two: the possibility of constructing a coherent conception of the rule of law from the practice of adjudication, and the judicial recognition of the constitutional status of various written and unwritten fundamental rights and freedoms. THE EXPLICIT VERSION OF THE DOCTRINE

According to orthodox constitutional theory, the doctrine of parliamentary sovereignty in the United Kingdom represents a rule, accepted

58 Orthodox Constitutional Theory

from the judges' internal point of view, according to which "what the Queen and its Parliament jointly enact is law."1 In the absence of a written constitution, that rule provided the supreme criteria of validity of legal rules within the rule of recognition.2 According to E.C.S. Wade and A.W. Bradley, "this doctrine consists essentially of a rule which governs the legal relationship between the courts and the legislature, namely that the courts are under a duty to apply the legislation made by Parliament and may not hold an Act of Parliament to be invalid or unconstitutional."3 Dicey defined it through two correlative propositions: 1 "Parliament... has, under the English constitution, the right to make or unmake any law whatever" and, 2 "No person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."4 By 1982 in Canada that doctrine had to cope with a more basic doctrine: the supremacy of the constitution. This doctrine meant that the "constitution" (whatever it may be) is at the top of the hierarchy of the legal norms.5 The "constitution," thus, constitutes one source of law, the essential features of which correspond to the supreme (or unique) criteria of validity provided by the ultimate rule of recognition. There is only one rule above it, the rule represented by the doctrine stating that "what the constitution provides is law." Indeed, that concept of "constitution" is taken in its formal sense.6 It refers to the very "constitution of Canada," notably the Constitution Act, iSGy. 7 Accordingly, where the provisions of the constitution are inconsistent with other legal rules, they have primacy over them and remain valid. In traditional terms, the doctrine of the supremacy of the constitution represents a rule that can be encapsulated within two correlative propositions: 1 What the constitution of Canada provides is the supreme law of the land, and 2 No person or body is recognized by the law of Canada as having a right to override or set aside the constitution of Canada (leaving aside the process of constitutional amendment).8 By 1982 it was axiomatic that the preamble of the Constitution Act, 1867 providing that the constitution of Canada was "similar in Principle to that of the United Kingdom" had incorporated into Canadian law the principle of parliamentary sovereignty.9 That principle had to be understood, however, as consistent with the text from which it derived and which established a federal state.10 Consequently, it has never been conceived in absolute terms. Hogg explains:

59 The Sovereignty of Parliament Legislative power had to be distributed between the federal Parliament and the provincial Legislatures. This meant that each legislative body was given the power to make laws in relation to certain classes of subjects, and denied the power to make laws in relation to other classes of subjects. Moreover, as we have seen, the courts assumed the power to determine whether or not the Parliament or a Legislature had acted within its powers in enacting a statute, and to declare the statute invalid if it were outside the powers of the enacting body. It follows that there is no legislative body in Canada which is sovereign in the sense of being able to make or unmake any law whatever. While federalism was inconsistent with one omnicompetent Legislature like the United Kingdom Parliament, the idea of parliamentary sovereignty remained an important influence in Canadian constitutional theory. The Constitution Act, 1867 for the most part limited legislative power only to the extent necessary to give effect to the federal principle ... The federal Parliament and provincial Legislatures, provided they stayed within the limits imposed by the scheme of federalism, received powers as "plenary and ample" as those of the United Kingdom Parliament. * *

Two correlative propositions constitute the explicit version of the orthodox doctrine and represent the rule of parliamentary sovereignty: 1 Parliament and the provincial legislatures have, under the Canadian constitution, the right to make or unmake any law whatever in relation to their own classes of subjects determined by the constitution, and 2 No person or body is recognized by the law of Canada as having the right to override or set aside the legislation of Parliament or the legislation of the provincial legislatures enacted in relation to their own classes of subjects determined by the constitution. The explicit version of the orthodox doctrine of parliamentary sovereignty was a specific application of the rule of law as positive rules. It proceeded from the formal validity thesis. It assumed that the recognition by the judges of the duty to act in accordance with the rule of the sovereignty of Parliament was confined to a duty to identify parliamentary acts in accordance with the criteria of formal validity provided by the constitution (in England, in the rule of recognition) and a duty to apply them to the cases to which they were meant to apply. As D.L. Keir and F.H. Lawson wrote: "All that a court of law can do with an Act of Parliament is to apply it."12 Unfortunately, these explicit assertions overlooked what I called the interpretive stage.13 The very rule of parliamentary sovereignty, like any other rule (either constitutional or statutory), must logically be interpreted by those who claim to comply with it. As with any other rule,

60 Orthodox Constitutional Theory

the application of that rule both requires and postulates that a judge's legal reasoning follows a process that logically includes an interpretive premise. If we- reduced the rule of parliamentary sovereignty to the "if p then q" form, it would read like this: "If a rule of conduct is prescribed by a valid law of Parliament (p) then the courts must apply it to the cases to which it is meant to apply (q)." Thus, in order to comply with that rule, a judge must introduce an interpretive premise by which the concepts "p" and "q" become meaningful. That premise raises various questions, such as "what does valid law mean?," "what does Parliament mean?," "what are these cases to which a rule of conduct is meant to apply?" The answers to these questions proceed from a network of "interpretive decisions." I submit that the interpretive premise, with respect to the application of the rule of the sovereignty of Parliament, cannot be satisfied with the issue of "formal validity." It logically relates to two types of concerns: the identity and the authenticity of the legislative text; and the meaning and the significance of the legislative text. The first type of concern raises the issue of statutory validity strictly speaking whereas the second raises the issue of statutory interpretation. We do not encounter these two concerns in every interpretation of a legal concept (p). However, because the legal concept (p) within the rule of the sovereignty of Parliament reads "a valid law of Parliament," that is, a particular text, the judges must determine antecedently both the validity of the alleged text and its interpretation. According to orthodox constitutional theory, the rule of parliamentary sovereignty is conceived as logically prior to the sources it recognizes as legal.14 According to H.L.A. Hart, "even if it were enacted by statute, this would not reduce it to the level of a statute; for the legal status of such an enactment necessarily would depend on the fact that the rule existed antecedently to and independently of the enactment."15 Equally, in Canada, the rule of the sovereignty of Parliament is logically antecedent to the very parliamentary legislation it recognizes as law. It derives from the written constitution and precedes legislative enactments. It follows that the interpretation of the legal concepts "law of Parliament" and "law of the provincial legislatures" must proceed within a set of norms that are also logically antecedent to the laws of Parliament and of the legislatures. Insofar as these norms are laid down in the constitution, they are legal and may be characterized as rules. Insofar as their source is the fact that they have been accepted as binding normative standards by the judges from their internal point of view, they should also be conceived, if not as legal/6 at least as norms or rules. That assertion is clearly recognized within English constitutional theory. R. Latham, for example, has stated it in the

61 The Sovereignty of Parliament context of the formal validity thesis: "When the purported sovereign is anyone but a single person, the designation of him must include the statement of rules for the ascertainment of his will, and these rules, since their observance is a condition of the validity of his legislation, are Rules of Law logically prior to him."l>1 As we know, orthodox theorists have not considered it necessary to study the norms related to the interpretation of valid legislation. Yet the status of these norms should also be logically antecedent to the laws of Parliament and of the legislatures if we ever conceive of them as constraining. I submit that the following passage of Latham, although written in the context of the formal validity thesis, is, in its principles, broad enough to apply to the antecedent norms of interpretation: For even in accepting that the will of the ruler is supreme, the courts must, in examining a document presented to them which purports to be an expression of the ruler's will, but whose authenticity is contested, apply not only rules of construction to the document, but rules which settle in an intelligible way what is, and what is not, to be treated as a binding expression of that will ... The extraction of a precise expression of will from a multiplicity of human beings is, despite all the realists say, an artificial process and one which cannot be accomplished without arbitrary rules. It is, therefore, an incomplete statement to say that in a state such and such an assembly of human beings is sovereign. It can only be sovereign when acting in a certain way prescribed by law. At least some rudimentary manner and form is demanded of it: the simultaneous incoherent cry of a rabble, small or large, cannot be law, for it is unintelligible.18 It was an important weakness of orthodox constitutional theory, preoccupied as it was with the formal validity of legal rules, not to have sufficiently taken into account the "interpretive stage" logically prior to any rational application of rules. That weakness has obscured a central aspect of the doctrine of the sovereignty of Parliament and, as we shall see, has prevented orthodox scholars from seeing the incompatibility between orthodox theory and many Canadian cases. An acceptable doctrine of the rule of parliamentary sovereignty must therefore integrate the set of antecedent rules both as to the validity and as to the interpretation of legislation. Yet the antecedent rules in relation to interpretation were implicit within orthodox constitutional theory. To that extent, some of them were implicitly constitutive of the doctrine. Otherwise it could not make sense of the judicial duty to comply with the rule of parliamentary sovereignty. This point is worth emphasizing. If the doctrine of parliamentary sovereignty merely represented the rules governing the validity of legislative enactments, it would purely be a formal doctrine entailing no

62 Orthodox Constitutional Theory

significant practical constraint. Indeed, it would guide the process of determining whether a given document constitutes a valid act but it would not provide the standards, norms, conventions, rules, and so on by virtue of which the meaning of the valid act could or should be constructed. Thus, from the point of view of that doctrine, the act would constitute a mere structure formally capable of receiving any meaning whatsoever and the judges would be totally free to interpret it in any way at all. If so, then, one might wonder what could be the value, the purpose, or the coherence of the doctrine of the sovereignty of Parliament: on the one hand, it would express the normative idea of judicial duty to decide or act in accordance with the legislation made by Parliament, but, on the other hand, it would not provide the judges with the very sort of practical constraints that could realize or concretize that normative idea!19 It follows that if the doctrine is to mean anything within the practical sphere, it must embody, not only the rules governing the determination of the validity, but the rules governing the determination of the meaning of the valid acts.20 In the next section, I shall elaborate the implicit version of the orthodox doctrine of parliamentary sovereignty. That version, purporting to be descriptive, takes into account both kinds of antecedent rules as recognized by the judges in Canada by 1982. Yet it is not meant to present a complete picture of the doctrine. To that extent, it is open to criticism. But that should not be disturbing. The implicit antecedent rules I have identified are likely to be those that the orthodox theorists would identify if they were compelled to take into account the interpretive stage. Moreover, although the implicit version is partial, it focuses on the fundamental assertion that no constitutional theory confined to the question of formal validity can be accepted as adequate. Statutory interpretation must become a central concern of Canadian constitutional theory. Of course, the foregoing criticism of the explicit version of the doctrine of parliamentary sovereignty applies mutatis mutandis to the orthodox doctrine of the supremacy of the constitution. The rule providing that "what the constitution of Canada prescribes is law" is logically antecedent to the constitution of Canada. It is the foundation of its legal force and effect.21 However, compliance with that rule requires the determination of the specific characteristics of the concept of the "constitution of Canada." The judges cannot be satisfied with the mere validity of the text. They must also determine its content. That is required by any intelligible account of the rule of the supremacy of the constitution.22 Consequently, constitutional theory must also be concerned with the rules guiding the interpretation of the constitution of Canada, that is, constitutional interpretation.

63 The Sovereignty of Parliament

For the purpose of this book, I shall not directly deal with that important doctrine. On the one hand, the criticism of the doctrine of parliamentary sovereignty is sufficient to show the weaknesses of orthodox theory. On the other hand, the main points of that criticism apply mutatis mutandis to the doctrine of the supremacy of the constitution. However, a constitutional theory that purports to be comprehensive should clarify it. THE I M P L I C I T VERSION OF THE DOCTRINE

The antecedent rules with respect to the validity of legislation

We may classify the antecedent rules with respect to the validity of legislation into four categories: • First, there are rules for the composition, the structure, the constitution or the definition, strictly speaking, of Parliament and of the legislatures. They specify the essential characteristics of the institutions recognized as having the power to make laws. • Second, there are rules for the internal procedures, specifying the procedural conditions, the process, often called the "manner," by which the enactments of a legislative institution can be recognized as valid laws. These rules may be quite numerous and may include various rules about the legislative process itself, the qualifications necessary to sit as a member of Parliament, the qualifications necessary to vote, and so on. • Third, there are rules for the form of the legislative enactments. They specify the formal conditions (the shape, the appearance of the document) by which a legislative enactment can be recognized by the courts as a valid and authentic parliamentary act. Together, the rules for the internal proceedings and the rules for the form of the act constitute what is often referred to as the "manner and form" requirements.23 • Fourth and last, there are rules in relation to the content, the substance, in short, to the subject-matter of the legislative enactment. These rules determine the set of substantive conditions for validity, that is, the substantive standards with which the content of a particular enactment, intended to be valid law, must be consistent. In the United Kingdom, orthodox constitutional theory claims that parliamentary acts are identified and recognized as valid in accordance

64 Orthodox Constitutional Theory

with one rule, namely, the "enrolled Act rule," which is conceived of as a rule of common law in relation to the "manner and form." 24 In fact, that rule includes our four kinds of rules. First, it provides a rule for the composition of the legislative institution. It defines it as the "Queen in Parliament," that is, the Queen, the House of Lords, and the House of Commons acting together.25 Each of these three bodies must be defined further and that presupposes further rules.26 Second, the "enrolled Act rule" specifies a rule for the form of the acts. It provides that any written document that has received the assent of the three bodies that constitute Parliament and that appears in the "parliamentary roll" or its modern equivalent is "conclusive," that is, it must be recognized as a valid act of Parliament.27 Third, it includes a rule for the internal procedures which, in negative terms, provides that "the courts must not control the validity of parliamentary acts on the ground that the process that has led to their enactment has not complied with a set of procedural requirements" and, in positive terms, provides that "each chamber has the right to determine and control its own internal procedures."28 For example, in Edinburgh &Dalkeith Railway v. Wauchope,2^ Lord Campbell said: "All that a Court of Justice can do is to look to the Parliamentary roll; if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction or what passed in Parliament during its progress in its various stage through both Houses."30 Fourth, the "enrolled Act rule" includes a rule in relation to the content of the laws which, in negative terms, provides that "the courts must not control the validity of parliamentary legislation on the ground that their content is inconsistent with a certain number of substantive standards" and, in positive terms, provides that "Parliament has a right to make or unmake any law whatever." In Lee v. Bude & Torrington Railway Co.,31 Justice Willis said: "We do not sit here as a court of appeal from parliament. It was once said, - I think in Hobart, - that, if an Act of Parliament were to create a man judge in his own case, the Court might disregard it. That dictum, however, stands as a warning, rather than an authority to be followed. We sit here as servants of the Queen and the legislature. Are we to act as regents over what is done by parliament with the consent of the Queen, lords, and commons? I deny that any such authority exists."32 By 1982, in Canada, many antecedent rules about the validity of parliamentary legislation were expressly found in the Constitution Act, 1867. Where the constitution was mute, the basic rules were derived from English constitutional law.33 With both written an unwritten rules, it was up to the courts to ascertain, to interpret, and to apply

65 The Sovereignty of Parliament those rules to the documents that purported to be valid legislative acts. It is not necessary to enumerate all antecedent rules respecting the validity of the legislation of Parliament and of the provincial legislatures. That would be laborious and one can doubt its usefulness for our purposes. It is sufficient to illustrate some of them.34 The written antecedent rules relating to validity in Canada. The basic rules for the composition of Parliament laid down in the Constitution Act, 1867 include section 17 (the federal Parliament consists of the Queen, an upper house [the Senate], and the House of Commons), section 10 (the powers of the Queen are exercised by the governor general), section 69 (the legislature for Ontario consists of the lieutenant governor and of one house, the Legislative Assembly), and section 71 (the legislature for Quebec consists of a lieutenant governor, the Legislative Council, and the Legislative Assembly). Any document that is not a product of the legislative institution so composed or defined is not a valid act. The Constitution Act, 1867 also set out a certain number of antecedent rules for the internal procedures of Parliament. For example, section 38 deals with the procedure by which the House of Commons is summoned into session. Sections 53 and 54 require a money bill to "originate in the House of Commons" only after having been "first recommended to that House by message of the Governor General." Section 55 provides various options for the governor general when he receives a bill passed both by the House of Commons and the Senate. He may declare that he assents to the bill "in the Queen's Name," that "he withholds the Queen's Assent," or that "he reserves the Bill for the Signification of the Queen's Pleasure." Section 90 of the constitution makes these sections applicable to the lieutenant governor when he receives a bill passed by the Legislative Assembly and, where it applies, the Legislative Council. Section 80 provides a special procedure for any alteration of the composition of the Legislative Assembly of Quebec by that assembly: "It shall not be lawful to present to the Lieutenant Governor of Quebec for assent ... unless the Second and Third Readings of such Bill have passed in the Legislative Assembly with the Concurrence of the Majority of the Members ... and the Assent shall not be given to such Bill unless an Address has been presented by the Legislative Assembly to the Lieutenant Governor stating that it has been so passed." A statute enacted in violation of the rules for the internal procedures is invalid.35 For example, in Gallant v. R.,^ the Supreme Court of Prince Edward Island treated section 55 as a matter of "internal procedure" that must be strictly followed. A bill passed by both houses of

66 Orthodox Constitutional Theory

Parliament was presented to the lieutenant governor of the province who, for some reason, withheld the royal assent. A few months later, while the Legislative Assembly was not in session, his successor declared that he assented to the act in the Queen's name. The court held that, although a "Bill which has been 'reserved' may later receive assent ... there is no provision for reconsideration of a 'withheld' assent."37 Chief Justice Campbell added: "The precision with which the B.N.A. Act set forth the procedure for later consideration of Bills assented to or reserved seems to me to indicate an intention to cover the whole field of Royal Assent, and to exclude the possibility of a withheld assent being later conferred by a method similar to (or, a fortiori, less precise than) the methods prescribed for later proceedings on assent granted or reserved."38 The lieutenant governor was a part of the legislature and, accordingly, section 55 "contemplates the 'presentation' of a Bill to the Lieutenant Governor by the Legislative Assembly ... Conceivably the Legislature might re-present the same Bill, and it might thereupon receive assent; but no provision being made for subsequent action on a witheld assent, the Lieutenant-Governor would appear to be functus officio, at least until the Bill is re-presented to him by the House."39 A certain number of rules could, according to the circumstances in which the issue is raised, be correctly characterized either as rules of composition or as rules of internal procedures. Overlapping both categories of rules are, for example, sections 21 and 22 setting out the rules dealing with the composition of the Senate, that is, the number of senators representing four distinct Canadian regions; section 37 providing the number of members to be elected in the House of Commons in accordance with a rule of provincial representation; and section 58 prescribing the way a lieutenant governor is appointed. The Constitution Act, 1867 set out a certain number of antecedent rules of form. Some of them are directly related to the rules of internal procedures. For example, section 55 provides various procedural rules according to which the governor general - and the lieutenant governor under section 90 - may assent to an act. At the same time, it also provides a rule of form since it implies that a particular document must have received the assent of these bodies in order to be recognized as a valid and authentic act.40 Section 133 of the Constitution Act, 1867 provides that the acts of the federal Parliament and the acts of the legislature of Quebec must be "printed and published" in both French and English. In A.G. of Quebec v. Blaikie,41 the Supreme Court of Canada held that, since section 133 could not be altered or repealed by unilateral action of Parliament or of the legislature of Quebec, their respective acts must be enacted in both languages. It would be insuffi-

67 The Sovereignty of Parliament

cient to pass an act in one language only and then, afterward, print and publish it in the other language. It said that "if full weight is given to every word of section 133, it becomes apparent that this requirement is implicit. What is required to be printed and published in both languages is described as 'Acts' and texts do not become 'Acts' without enactment. Statutes can only be known by being printed and published in connection with their enactment so that Bill be transformed into Acts."42 That requirement of section 133 can be characterized as an antecedent rule of validity about the form of the act. According to some theorists, the concept of enactment in section 133 imposes further constraints. For example, Hogg argues that "exactly what would be involved in 'enactment' was not spelt out by the Court [in Blaikie], but it would certainly involve bilingual texts of all bills and all amendments at all stages of the legislative process."43 We may agree with Hogg that, as a matter of policy, section 133 should be extended beyond the concept of enactment taken in a narrow sense. However, if the court were to so extend the interpretation of section 133, it would either extend the form requirement to texts that are not "acts" or read into that section a requirement as to the internal procedure. One can be sceptical about the legal ground for either consequence. First, insofar as the court's argument derived from a grammatical interpretation of section 133 - the court said, "If full weight is given to every word" - one should distinguish between an "act" and a "bill." Secondly, Hogg's argument has the effect of imposing a further requirement to a matter of internal procedure. That is difficult to sustain for two reasons. First, such a requirement is explicit neither in the constitution nor in Blaikie. On the contrary, they seem to exclude it. Secondly, it contradicts one fundamental principle of constitutional law, incorporated into Canadian law through the preamble of the constitution, according to which the internal procedures are beyond judicial scrutiny.44 May the court violate that principle in interpreting a section which does not appear to direct it in any way? I submit that the orthodox answer was or should have been negative. The antecedent rules relating to the content found in the Constitution Act, 1867 are those that are the best known to Canadian lawyers. They can be grouped into two main categories. First, the constitution provides a set of norms that determine which classes of subjects of legislation can be regulated by the federal Parliament and which by the provincial legislatures. For example, section 91 of the Constitution Act, 1867 provides that "it shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada" and "the exclusive Legislative Authority of the Parliament of Canada extends to

68 Orthodox Constitutional Theory

all Matters coming within the Classes of Subjects ... enumerated" in that section. Section 92 provides that in each province the legislature "may exclusively make Laws in relation to Matters coming within the Classes of subjects ... enumerated" in that section. Section 93 provides that, subject to some exceptions, each provincial legislature "may exclusively make Laws in relation to Education."45 Thus, in order to be valid, the subject matter of a document purporting to be an act of Parliament or an act of a provincial legislature must come within one class of subjects attributed by the constitution to the enacting body. In principle, various kinds of processes may be used for the characterization of the subject matter of a given purported law. However, according to the formal validity thesis, such a process has generally been considered to be formal. The determination of the "matter" of a challenged law was regarded as a process of finding the "pith and substance" of the law, that is, its "true" nature, its "true" purpose, its "true" meaning, and the like.46 As with the rule of law as positive rules, these notions suggested that legislation possesses an "inner essence," that is, a kind of fixed and determinate "substance" existing independently of the judges' own subjectivity.47 Consequently, as with the other criteria of validity, the antecedent rules relating to the content of the laws referred to various formal characteristics of the act. Moreover, following the rule of law as positive rules, although the matter of the laws was conceived as clearly identifiable in most of the cases in some cases the formal features of the various legislation indicated different matters and the judges were compelled to exercise a discretion based upon extra-legal policy considerations in which a "concept of Federalism" was often seen as paramount.48 Secondly, the antecedent rules regarding content include those rules relating to the protection and to the safeguard of some individual rights and freedoms (often called minority rights) or of some particular interests. For example, section 93 provides that the provincial legislature may exclusively make laws in relation to education but that these laws must not prejudicially affect any right or privilege with respect to denominational schools which existed in 1867. Section 133 prevents the legislature of Quebec or the federal Parliament from making laws violating the right to use either French or English in debates in the houses of Parliament and of the Quebec legislature and in the pleading or proceedings in any court of Canada and in any court of Quebec. Sections 96 to 100 safeguard the basic requirements for an independent judiciary. A document whose content is inconsistent with one of these antecedent rules is invalid. Here the process is not necessarily formal. The decision can be based upon an evaluation of the consequences of the act upon one of the constitutional guarantees.

69 The Sovereignty of Parliament Indeed, where the "matter" of the enactment appears to be inconsistent with such guarantees, it is invalid.49 It is obvious that each of these written antecedent rules must be interpreted. For example, what is the meaning of the concept of "House of Commons"? What does "second and third readings" mean? What does "printed and published" in both languages mean? What does the concept of "Peace, Order and Good Government of Canada" mean? What is the significance of the phrase "right and privilege with respect to Denominational Schools"? What is a law inconsistent with a protected right? The answers to these questions presuppose the recognition of further rules that are not necessarily written down in the constitution. As I said, these rules of (constitutional) interpretation should constitute a central aspect of the doctrine of the supremacy of the constitution.50 It is not necessary, for our purposes, to explore them. The unwritten antecedent rules relating to validity in Canada. Orthodox Canadian constitutional theorists have assumed that, in the absence of written antecedent rules, English constitutional law should apply except where the integrity of Canadian federalism requires the courts to act otherwise. Support for such unwritten antecedent rules was found in the preamble of the Constitution Act, 1867, which provides that the constitution of Canada is "similar in Principle to that of the United Kingdom" and that the provinces of Canada "have expressed their Desire to be federally united." Therefore, the power of the courts to control the validity of legislation on the grounds of unwritten antecedent rules depended on the scope of the "enrolled Act rule."51 The unwritten antecedent rules about the internal procedures and content of the law were clear: "Parliament and the Legislatures have the right to regulate the internal procedures and the right to make or unmake any law that is consistent with the Constitution and with the integrity of Canadian federalism." Accordingly, the courts cannot control the validity of an act on the ground that the legislative process has violated or that its content is inconsistent with some unwritten standards not required by the integrity of federalism. For example, in Drewery et Al. v. Century City Developments Ltd. (No. i),52 it was submitted that a legislative amendment to the Planning Act should be invalidated on the ground that the bill was obtained, passed, and assented to by the lieutenant governor without any representation from the defendant. The argument was that the "audi alteram partem rule applies to the legislature of the Province."53 The High Court of Ontario categorically rejected the argument since it would have implied judicial review of an act of the legislature on the ground that it had been enacted in violation of a rule of internal procedure not laid down in the constitution.

70 Orthodox Constitutional Theory

Justice Cromarty said that "the Act in question before me has been approved, it has received Royal assent, and my only power, the only power of this Court, is to examine whether or not the Act is constitutionally operative ... I think it obvious, therefore, that I have no power, no matter what the evidence, to inquire into anything which led up to the final passing amendment to the Planning Art."54 The court referred to Wauchopes case55 as a confirmation of its holding. Similarly, in R. v. Irwin5& the Exchequer Court said in an obiter that it must not control the validity of an act of Parliament on the ground of its internal proceedings. It is "no part of the business of the Court in construing a statute to inquire as to whether the legislature in passing it did or did not proceed according to the ' lex parliamenti.' "57 In Dupontv. City of Montreal,58 it was submitted that an act inconsistent with a set of fundamental freedoms inherited from the United Kingdom and incorporated into Canadian law through the preamble of the Constitution Act, 1867 was invalid. The majority of the court said that "none of the freedoms referred to is so enshrined in the Constitution as to be above the reach of competent legislation."59 The court would therefore control the validity of a statute on these grounds only if it were necessary to do so in order to maintain the integrity of Canadian federalism.60 By contrast, the unwritten antecedent rules would allow the courts, if necessary, to control the validity of an instrument on the grounds that it has not been enacted in accordance with a set of unwritten standards prescribing the composition of Parliament and the form of the act. The rules would derive from the judicial duty to comply with the rule of sovereignty of Parliament and would apply only if the constitution does not totally determine what constitutes an "Act of Parliament." In practice, however, the courts would probably read the content of such rules within the existing express provisions of the constitution and, thus, render them unnecessary.61 Conclusion. The foregoing discussion might suggest that, when a challenge is a matter of composition or form, it does not make sense to say that the courts review the validity of an act because the question is precisely the issue of whether or not the document is indeed an act of Parliament. One could say that the court controls the validity of an act of Parliament only when a particular document has already been accepted as being such an act.62 Thus, we should distinguish matters of authenticity (composition and form) from matters of validity (content and internal procedures). The first two issues would raise the question, "Is this particular document an act of Parliament?" and the last two issues would raise the question, "Is this particular act of Parlia-

71 The Sovereignty of Parliament

ment valid?" That suggests that the first two rules are more antecedent than the last two rules. It also makes sense of various statements suggesting that, while the courts cannot "pronounce a judgment as to the validity of an Act of Parliament,"63 they must determine whether a purported act is indeed an authentic enactment of Parliament. While this distinction might clarify the vocabulary in England, it may confuse it in Canada. As we said, a judge can comply with the rule of the sovereignty of Parliament only after he is satisfied that a particular document is an authentic and valid act. That implies that the document must satisfy the various kinds of antecedent rules. Take, for example, Re Manitoba Language Rights^ in which the Supreme Court of Canada held that section 23 of the Manitoba Act, 1870 prescribing that the acts of the legislature of Manitoba must be printed and published both in English and French was mandatory and, accordingly, any statute that was not printed and published in both language was invalid.65 It was not an issue about the composition, the internal procedure (except perhaps the last procedure which becomes the "form"), or the content of the documents. The issue was about the very form of the legislation. Were the unilingual documents acts of the Legislature? Or were they mere documents purported to be such acts? The distinction was immaterial. The court referred to them as "enactments of the Manitoba Legislature" as well as "unilingual Acts of the Legislature of Manitoba."66 The antecedent rules with respect to the interpretation of legislation

Even if judges identified all valid "acts of Parliament," they could not comply with their duty to apply them unless a prior set of norms regarding interpretation were established in respect of the interpretive premise. Contrary to the antecedent rules for the validity of legislation, the norms are not prescribed by the written constitution: they are unwritten. However, they are numerous and varied. Although it is not necessary to enumerate all of them, it is necessary to illustrate some of those that are the most likely to be accepted by orthodox theorists. The first issue is to determine the point of view from which a law (or all laws) must be interpreted. Obviously, it cannot be the point of view of the law itself, because that would presuppose that the text had already been interpreted. The point of view must be logically antecedent and external to as well as independent from the text to be interpreted. Orthodox constitutional theorists, even if they have no articulated theory in respect of that issue, assumed the validity of the

72 Orthodox Constitutional Theory

orthodox theory of statutory interpretation.6? Consequently, the legal meaning or the scope of a valid act must be ascertained from the point of view of the intention or the will of Parliament.68 Within the statutory-interpretation framework, this assertion appears to be based generally upon a theory of communication.69 Yet orthodox constitutional theory should base it upon the doctrine of the sovereignty of Parliament. AsJA. Corry writes, the "sovereign is a representative legislature which acts and speaks for the community. Its rules or laws, are binding because they emanate from the legislature as the declared will of its members. So we are inevitably preoccupied with the intention of Parliament ... Any new rule which is to have the imperative character of law must be attributed to this source, to the will and intention of Parliament."70 The concept of legislative intent or will has been strongly criticized.71 Yet, in Canada, orthodox constitutional scholars accept this controversial notion. Although it has never been regarded as theoretically satisfactory, it may be deemed a useful tool to describe the process of statutory interpretation and to represent the standard according to which the whole set of rules and principles of statutory interpretation has developed. For our purpose, it is not necessary to criticize the notion. It is sufficient to accept it as referring to what the courts honestly and reasonably think Parliament means when it enacts a set of words. To put it in a synthetic way, the intention and the will of Parliament refer to the legal meaning of an act which can reasonably be attributed to the intention of the legislative body as a whole, that is, as if it were one single agent. Thus, the paramount rule of interpretation is to give to the act the meaning that corresponds in all probability to the intention or will of the legislative body. That implies two propositions: "any Parliamentary intent 'embodied' in a valid Act of Parliament is law," and, correlative ly, "the courts must always obey the intention of Parliament 'embodied' in a valid Act of Parliament."72 Therefore, the concept "act of Parliament" enunciated in the rule of parliamentary sovereignty refers to a valid document, the meaning of which is reasonably ascertained from the point of view of the intention of Parliament. As with any concept, the concept of the intention of Parliament must be made more concrete. In principle, the intention may be ascertained through an interpretation of various elements such as the text itself, the parliamentary debates, the report of advisory committees, the speeches of the members of the government, letters, interviews, and so on. It follows that a judge must necessarily determine what elements should be regarded as relevant sources. In Canada, the basic rule is that the intention of the legislature must be inferred from

73 The Sovereignty of Parliament

the legislative enactments, that is, from the text itself.73 As Justice Mclntyre argues in Goldman v. The Queeri74: "It is elementary to say that the courts must discern and apply the legislative intent when construing the statutes. The intent must be found upon an examination of the words employed in the enactment for it is the intent which the legislature expressed which must have effect."75 Accordingly, although the courts may take into consideration the history of the text76 and the historical context in which the act was enacted,77 generally, external evidence has been held inadmissible when it is introduced with the aim of establishing the legislative intent.78 That exclusionary rule has been criticized by several authors on the ground that the courts should find the intention where it might be found, that is, in parliamentary debates, the reports of advisory committees, and the like.79 These critics accept the validity of the rule that the discovery of the intention is the paramount objective of the process of interpretation but do not agree that the exclusionary rule is a correct corollary of it. Moreover, although we may agree with the rule that the intention of Parliament must be inferred from the very words of the act, we may still disagree on the appropriate interpretive method or approach designed to construe these words. Various methods may lead to different interpretations.80 Although orthodox theory has long taken the literal approach, with its emphasis upon ordinary meaning, there has been a tendency towards the acceptance of a more purposive approach.81 According to Driedger, "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."82 R. Cross suggests that English statutory interpretation proceeds from four rules.83 Although they may not be rigorously followed in everyday judicial practice (which Cross does not mean to suggest),84 they provide us with a useful description of the orthodox view of the process of statutory interpretation in Canada: 1 The judge must give effect to the grammatical and ordinary or, where appropriate, the technical meaning of words in the general context of the statute; he must also determine the extent of general words with reference to that context. 2 If the judge considers that the application of the words in their grammatical and ordinary sense would produce a result which is contrary to the purpose of the statute, he may apply them in any secondary meaning which they are capable of bearing. 3 The judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to,

74 Orthodox Constitutional Theory alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute. 4 In applying the above rules the judge may resort to the aids to construction and presumptions.85

The first three rules correspond to the traditional literal, purposive, and "golden" rules.86 The last refers to various presumptions that may guide the courts in the process of truly, honestly, and reasonably seeking the intention of Parliament. The presumptions we are thinking of are, for example, those that assume that Parliament gives to the same word the same meaning throughout a statute, that the legislature means what it says, that it knows the meaning of ordinary language, that it does nothing in vain, that every word is meaningful, that the legislature knows the state of the law and, generally, where it uses a legal term it refers to the legal meaning which is known in the law, and so on. These presumptions may help in finding either the literal meaning or the purpose of an act of Parliament. Some of them are used where there is no serious ambiguity, other are referred to where there is a real doubt as to the meaning of the act. Most of them may be conceived as a matter of common sense, good faith, experience, and judgment which is reasonable in any context of communicative documents where the intention of the authors is the paramount constraint. When a legislative measure appears to be truly ambiguous and there is no way to determine the intention of the legislature, the court may presume that Parliament did not intend to act contrary to certain fundamental moral and political principles.87 Two corollaries of the antecedent rules

The antecedent rules with respect to validity and interpretation of legislation imply two important corollaries without which the doctrine of parliamentary sovereignty would be incoherent. First, if the legislative intention is to the effect that a standard of justice, morality, reasonableness, and the like must be overriden or disregarded, the courts must apply the valid act in accordance with that intention. In relation to the issue of validity in the United Kingdom, it was said in Pickin v. British Railways Board88 that "in earlier times, many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the revolution of 1688 any such idea has become

75 The Sovereignty of Parliament

obsolete."89 Similarly, in relation to the issue of interpretation, Lord Scarman wrote, in Duport Steels Ltd. v. Sirs90: "Parliament makes, and un-makes, the law: the judge's duty is to interpret and to apply the law, not to change it to meet the judge's idea of what justice requires ... our law requires the judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the judge may say so and invite Parliament to reconsider its provision. But he must not deny the statute."91 Lord Diplock maintained that, "when Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law ... the role of the judiciairy is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral."92 These principles have been well received in Canada. For example, Hogg says: "Because of the doctrine of parliamentary sovereignty, if a statute plainly takes away a civil liberty or plainly authorizes an official to take away a civil liberty, then the court can provide no protection."93 A court that would refuse to apply a valid act of Parliament according to the "intention" which produces unjust, immoral, or otherwise unacceptable consequences would control that act. Indeed, Parliament could not, then, make or unmake any law whatever and there would be at least one body in the state that would have the power to "set aside" parliamentary legislation. In short, as Dicey said, "the plain truth is that our tribunals uniformly act on the principle that a law alleged to be a bad law is ex hypothesi a law, and therefore entitled to obedience by the courts."94 Secondly, if the intention of the legislature inferred from a valid act of Parliament is to the effect that an existing law (either a statutory rule, a common law rule, or a customary rule) must be repealed, changed, amended, or altered, the courts must apply that act in accordance with that intention. Thus, Parliament has the right not only expressly to repeal existing laws but also impliedly to repeal them.95 The doctrine of implied repeal, formulated by the maxim leges posteriores priores contrarias abrogant, should therefore be regarded as a corollary of the sovereignty of Parliament.96 Of course, if a subsequent Parliament appears not to have intended impliedly to repeal an earlier statute, the courts must reconcile the statutes in question by con-

76 Orthodox Constitutional Theory

struing the earlier act as an exception to the subsequent act. That is often expressed in the maxim generalia specialibus non derogant.^ The basic standard is always the legislative intent of the later Parliament and, accordingly, the maxims are not of mechanical application. As justices Hudson and Kerwin said in The Kingv. Williams^: The maxim generalia specialibus non derogant is relied on as a rule which should dispose of the question, but the maxim is not a rule of law but a rule of construction and bows to the intention of the legislature, if such intention can reasonably be gathered from all of the relevant legislation." In construing statutes ... the courts have, from time to time adopted particularized rules and maxims but these must not be used in such a manner as to lose sight of the fundamental object, which is to ascertain and give effect to the intention of Parliament.100

For the same reason, the courts would not give effect to a former act which purported to prevent them from applying a subsequent act in accordance with the intention of the institution which has enacted it. For example, in the United Kingdom in Ellen Street Estates Ltdv. Minister of Health,101 Lord Justice Maugham wrote that "it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature."102 The Canadian Supreme Court has echoed that proposition in a few cases, such as, for example, Reference Re Canada Assistance Plan (JB.C./°3: "It is clear that parliamentary sovereignty prevents a legislative body from binding itself as to the substance of its future legislation." In short, at any given time, Parliament may repeal, change, or alter existing laws in accordance with the set of antecedent rules in regard to validity and interpretation that define the ordinary legislative process. This is what Dicey meant when he wrote that a legislature has the power "to alter any law, fundamental or otherwise, as freely, and in the same manner as other laws."104 That is, any law could be altered by "Parliament acting in its ordinary legislative character."105 That is linked to the doctrine of "continuing sovereignty," as we shall see in the next section. THE "CONTINUING" SOVEREIGNTY OF PARLIAMENT An important question that has been raised within Canadian constitutional theory has been whether the antecedent rules in respect of

77 The Sovereignty of Parliament

validity can effectively be altered by the legislation of the very Parliament to which they apply.106 The debate has been framed in terms of "continuing" versus "self-embracing" sovereignty of Parliament.107 A Parliament is continuing if it has no power to alter these antecedent rules for the future. Consequently, Parliament would never be bound by its own legislation; it could expressly or impliedly repeal any prior legislation, including that attempting to alter the antecedent rules for the future, according to the existing ordinary legislative process. A Parliament is self-embracing if it has the power to alter antecedent rules for the future. In this section, I examine the question of whether Parliament can unilaterally determine for the future what should count as an act of Parliament. That question must be clearly distinguished from the other question (to which it is related but often wrongly assimilated) of whether Parliament can entrench one or several of its own enactments through a provision that prescribes that, in order to amend or to repeal such legislation, its successors must proceed in accordance with a set of particular conditions referred to as "manner and form" requirements. The first issue is concerned with alteration by the legislature of the ordinary legislative process whereas the second is concerned with the power to impose a special process on legislation whose content (either its purpose or its effect) is inconsistent with the "entrenched" legislation. I shall deal with the latter issue in due course. In the United Kingdom, according to orthodox theory, the sovereignty of Parliament is continuing and the courts cannot control the validity of an act of Parliament on the ground that it has not been enacted in accordance with a particular statutory rule inconsistent with the enrolled Act rule.108 The most convincing thesis has been propounded by H.W.R. Wade.109 If the rule of the sovereignty of Parliament, which is logically antecedent to the legal source it recognizes, cannot be established by statute, "no statute can alter or abolish that rule."110 Thus, "it is always for the courts, in the last resort, to say what is a valid Act of Parliament ... This question is not determined by any rule of law which can be laid down or altered by any authority outside the courts."111 Wade's argument must not be understood as implying that the sovereignty is logically or naturally "continuing." There are two propositions in his reasoning. First, it deals with the source of the ultimate rule or principle of the English legal system. Is that rule determined by legislation or by the courts? Secondly, it deals with the content of that ultimate rule in English law. The first proposition is a conceptual issue whereas the second proposition is an empirical issue. There is no logical link between the two propositions. One may accept that it belongs to the courts to determine the content of the ultimate rule and

78 Orthodox Constitutional Theory still disagree with Wade's description of the content of that rule in English law because one disagrees with his reading of the data.112 According to Wade, two cases dealing with the Acquisition of Land (Assessment of Compensation) Act 1919 support the orthodox view.113 Section 7(1) of the act provided that "the provisions of the Act or order by which the land is authorised to be acquired ... shall ... have effect subject to the Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect." The English courts said that section 7 would not be applied against a subsequent act inconsistent with the act of 1919. In Vauxhall Estates Ltd v. Liverpool Corporation,114 Justice Avory said that "no Act of Parliament can effectively provide that no future Act shall interfere with its provisions."115 In Ellen Street Estates Ltd v. Minister of Health,116 Lord Justice Maugham wrote: "The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature."117 Yet, even if one accepts these propositions as correctly describing the content of the actual ultimate rule, that would not settle the issue forever because it would always belong to the courts, in the last resort, to lay down its content. According to Wade, since "the relationship between the courts of law and Parliament is first and foremost a political reality," the content of the ultimate rule is changed by "revolution."118 There is a revolution when a court that recognized the sovereignty of a particular institution changes its allegiance and recognizes the authority of another institution. Such a revolution generally follows from a political revolution such as a coup d'etat, a unilateral declaration of independence,119 and so on, but that causal link is contingent upon the constitutional history of one particular society. In another context, the courts might alter the antecedent rules for reasons that have nothing to do with a political upheaval.120 Various authors, while accepting the basic propositions of the orthodox view, have suggested that the United Kingdom Parliament could alter its own composition for the future. 121 But there are problems with that suggestion. For example, for Keir and Lawson, the Parliament acts of 1911 and 1949 providing that in certain circumstances a bill becomes an act without the consent of the House of Lords would have, in effect, established a Parliament composed of the House of Commons and the Queen.122 Similarly, they have suggested that a law providing that a referendum is required for some purposes would mean that the

79 The Sovereignty of Parliament

electorate constitutes one additional parliamentary body.123 As a result, Parliament would have the power to alter its own composition. Yet Keir and Lawson's characterizations may be criticized. Since the acts passed by the Queen and the House of Commons without the assent of the Lords purport to take effect "in accordance with the provisions of the Parliament Act, 1911, and by authority of the same,"124 they could be regarded as delegated legislation.125 Moreover, the characterization of the electorate as a parliamentary body leads to "absurd results" since the whole electorate should be "summoned to Westminster by Royal Writs to deliberate, vote and hear the Royal Assent."126 According to O.H. Phillips and P.Jackson, a requirement of a referendum is a procedural matter (not a matter of composition) and, as such, does not come "within the ambit of the courts."127 Yet these authors agree that Parliament may alter its own composition for the future since it may, for example, change the distribution of seats for the House of Commons, the franchise, the rules governing disqualification of membership, the qualification of Scottish peers, life peerages, Lords of Appeal, and so on.128 The question, however, is whether these acts affect the composition of Parliament conceived as the "Queen, Lords and Commons in Parliament assembled"129 or, instead, affect the internal composition of its constitutive bodies taken as independent entities.130 In the latter case, these acts could be characterized as related to the privileges of the Commons and the Lords131 and, perhaps, to the procedure. One might think that such a characterization would imply that the acts do not come "within the ambit of the courts." But that would be wrong. Even if they were related to the procedures (instead of to the composition of Parliament) they could come "within the ambit of the courts." The orthodox view is plainly consistent with the proposition that the courts may recognize and enforce a statutory rule in relation to internal procedures which does not conflict with the basic antecedent rules. The reason is that there is a distinction between enforcing a particular statutory procedural rule internal to the functioning of the Houses and invalidating a formal act of Parliament. For example, we may distinguish between enforcing a statutory rule providing that a given member of the House of Commons is not qualified and striking down a formal act assented to by the House of Commons (composed of that unqualified member), the House of Lords, and the Queen.132 Phillips and Jackson argue further that "Parliament could abolish the House of Lords."133 That assertion seems to follow from the foregoing examples. But if these examples were wrongly characterized as related to composition, they cannot support the assertion. For an act abolishing the House of Lords would plainly be an act in relation to

80 Orthodox Constitutional Theory the composition of Parliament. Consequently, the proposition that Parliament may alter its own composition, although widely believed in the United Kingdom, appears unsupported. What would the courts do with an act purporting to abolish the House of Lords? What would they do with subsequent acts enacted without the consent of the Lords? The answer is a matter for speculation because it depends on the political context in which it is raised.134 However, if the courts decided to give effect to the acts of the Parliament composed of the Queen and the House of Commons, that might amount to a revolution involving a judicial redefinition of an act of Parliament.135 Indeed, according to the orthodox view, the sufficient justification for such a shift would not be a previous legal duty. It would be the political fact that Parliament (regarded by the courts as a democratic body) intended to extinguish itself and to transfer its authority to another body.136 In Canada, prior to 1982, the orthodox answer to the question as to whether or not Parliament or a legislature in Canada was continuing or self-embracing involved a difficult, complex, and somewhat technical answer. The antecedent rules with respect to the validity of legislation One convenient way to put the issue is to distinguish between the rules that are written down in the Constitution Act, 1867 and those that are not so laid down. The written antecedent rules. These antecedent rules fall into two categories. First, we find a set of rules that are constitutionally entrenched: they cannot be unilaterally amended, altered, or repealed by the legislative institution to which they apply. Accordingly, a legislative rule that purported to alter or repeal these entrenched rules could be invalidated by the courts. The most important rules of that category are those provisions relating to content, that is, to the preservation of the federal principle, various rights and freedoms, and certain regional interests. For example, in A.G. of Nova Scotia v. A.G. of Canada,1 %7 the Supreme Court of Canada invalidated a provincial act that delegated a portion of its powers included in section 92 of the Constitution Act, 1867 to the federal Parliament. Justice Kerwin said: "The British North America Act divides legislative jurisdiction between the Parliament of Canada and the Legislatures of the Provinces and there is no way in which these bodies may agree to a different division."138

81 The Sovereignty of Parliament In A.G. of Quebec v. Blaikie^v the Supreme Court held that Quebec legislation unilaterally altering section 133 of the Constitution Act, 1867 was invalid on the ground that section 133 was "an entrenched provision ... forbidding modification by unilateral action of Parliament or of the Quebec Legislature."140 Similarly, in Re Upper House,141 the Supreme Court held that an act of Parliament abolishing the Senate was invalid because the sections in relation to the Senate were entrenched: "While [the act] does not directly affect federal-provincial relationships in the sense of changing federal and provincial legislative powers, it does envision the elimination of one of the two Houses of Parliament, and so would alter the structure of the federal Parliament to which the federal power to legislate is entrusted under s. 91 of the Act."142 These legislative rules, among others, were various attempts to alter or abolish a certain number of antecedent rules relating to content, manner and form, and composition. In the second category, we find a set of rules written down in the constitution that are not entrenched. These rules can be unilaterally amended or repealed by the legislative institution to which they apply. The legal grounds for such power are sections 91(1) and 92(1) of the Constitution Act, 1867 (now sections 44 and 45 of the Constitution Act, igSa) 143 which respectively confer on Parliament (as defined in section 17) and to the provincial legislatures (as defined in various sections such as sections 69 and 71) the power to amend from time to time (with a few exceptions) the "Constitution of Canada" and the "Constitution of the Provinces." According to the theory, it was a matter for judicial discretion to distinguish the non-entrenched antecedent rules included in the phrases "Constitution of Canada" and "Constitution of the Provinces" from the entrenched antecedent rules of the first category. The antecedent rules included in the phrases "Constitution of Canada" and "Constitution of the Province" are mandatory144 as long as they are not modified or repealed. Accordingly, any unilateral modification of these rules had to proceed in accordance with the antecedent rules then existing, including any existing antecedent rules of the second category. Otherwise, such modification would be invalid. It is true that in R. v. 7ra>m,145 the court said that it had no power to invalidate an act of Parliament which had been enacted in violation of section 54 of the Constitution Act, 1867 on the ground that it was not its duty to control the lex parliaments^ However, such an opinion was a mere obiter. The court held that the challenged act was not a "money bill" to which section 54 of the constitution applies.147 Similarly, in Re Agricultural Products Marketing Act,1^ Justice Pigeon, for the majority,

82 Orthodox Constitutional Theory

said that sections 53 and 54 "are clearly within those parts which the Parliament of Canada is empowered to amend by s. 91(1). Absent a special requirement such as in s. 2 of the Canadian Bill of Rights, nothing prevents Parliament from indirectly amending ss. 53 and 54 by providing for the levy and appropriation of taxes in such manner as it sees fit, by delegation or otherwise."149 However, that statement was also obiter. For Chief Justice Bora Laskin, speaking for the four dissenting judges, although the Canadian constitution is similar in principle to the constitution of the United Kingdom, it does not follow that "this carries any force against express enactment. It may help to identify constitutional elements just as the British precedents may help to determine what is meant by any of the terms used in ss. 53 and 54, but I do not agree that they can control the determination of the question whether obedience to the prescriptions of those sections is judicially reviewable."150 I submit that Irwin's case and Pigeon's obiter in Re Agricultural Products Marketing Act should not be received as authorities on that issue.151 Recently, in Mercure v. R.,152 the court had to decide whether section no of the North-West Territories Act (1866), prescribing that the legislation of the territories (which included what has become the province of Saskatchewan) must be printed both in French and in English and that any person may use either language in the proceedings before the courts, applied to the legislature and the courts of Saskatchewan by virtue of section 16 of the province's constituent act, the Saskachewan Act, which provides that existing laws shall continue in Saskatchewan until they are repealed by the appropriate legislature. If so, then, secondly, the court had to determine whether section no could unilaterally be altered by the ordinary law of the Saskatchewan legislature. With respect to the first issue, the majority of the court held that section no effectively applied to Saskatchewan.153 On the second issue, the majority of the court held that the legislature of Saskatchewan had the power unilaterally to alter or repeal section no. Thus, section 110 was not like section 133, which had been discussed in Blaikie.154 The difference was that "in Blaikie, the Court was dealing with an entrenched constitutional provision" whereas sections 14 and 16(1) of the Saskatchewan Act provided for the unilateral legislative power of amendment.155 However, it did not follow that the legislature was free to repeal section 11 o in any manner. Until it was repealed, section 11 o constituted a part of the manner and form defining the ordinary process of legislation. Thus, while the distinction between section 110 and section 133 was

83 The Sovereignty of Parliament critically important in relation to the manner in which the legislature can alter the law, until it is altered, the legal situation is the same as under Blaikie ... A basic provision regarding the manner in which a legislature must enact laws cannot be ignored. I cannot accept that such a provision can be impliedly repealed by statutes enacted in a manner contrary to its requirements ... Since the manner and form of enactment... was not entrenched, however, the provision may be modified or repealed, but such repeal or modification must be made in the manner and form required by law at the time of the amendment.156

Since the manner and form requirements are to be found in the constitution, it should follow that any legislative rule altering or repealing any of the antecedent rules of the second category (also found within the constitution) must comply with them as they stand at the time of such amendment. These antecedent rules define the ordinary legislative process and are as mandatory as those entrenched in the constitution. One might say that, insofar as a legislative rule altering the antecedent rules included in the phrase "Constitution of Canada" and "Constitution of the Province" imposes a particular manner and form requirement, Parliament and any provincial legislature can bind itself but to do so would rob the phrase "bind itself" of its significance.157 The difficult question, indeed, is whether a legislative rule dealing with the antecedent rules is a valid and effective amendment of the constitution within the meaning of sections 91(1) and 92(1) of the Constitution Act, 1867. Should the rule deal with the subject-matter previously regulated by the constitution? Or could it deal with other subjects as well? Although this is not the place to deal with that difficult issue, it should be emphasized that the phrases "Constitution of Canada" and "Constitution of the Province" have been understood in a very particular sense. For example, the phrase "Constitution of the Province" certainly includes Part V of the Constitution Act, 1867 entitled "Provincial Constitutions."158 Thus, while section i of the Quebec Act respecting the Legislative Council159 (providing that the legislature of Quebec "shall consist of the Lieutenant-Governor and the National Assembly of Quebec" instead of its three original bodies as laid down in section 71 of the Constitution Act, 1867) may have altered the composition of the Quebec legislature,160 that act has never been challenged and the courts have always recognized and applied the laws of the Quebec legislature. In Re Upper House,*6l a passage appears to support the view that the Provincial legislatures can alter the antecedent rules related to composition because the passage emphasizes the fact that section 92(1) of the Constitution Act, 1867 provides that a

84 Orthodox Constitutional Theory "Legislature," without defining what constitutes it, can amend the "Constitution of the Province" from time to time "notwithstanding anything" laid down in the Constitution Act, iSGy. 162 It is true that the Supreme Court has maintained that the phrase "Constitution of the Province" was not confined to what was expressly laid down in Part V of the constitution entitled "Provincial Constitutions" and might even include rules in relation to matters that were not previously laid down in the Constitution Act, 1867. Section 92(1) "may, of course, cover such changes as were dealt with in Fielding v. Thomas [privileges and immunities of members of the Nova Scotia Legislative Assembly] and, also, other matters not expressly covered by the British North America Act but implicit in the constitution of the Province."1^ However, it is certain that sections 91(1) and 92(1) do not include all constitutional rules understood in a material sense. In Re Upper House,164 the Supreme Court excluded anything that would affect "the federalprovincial relationships in the sense of changing federal and provincial legislative powers," the original protection of rights and freedoms, and certain sectional and provincial interests such as the Senate or the linguistic rights: " 'Constitution of Canada' does not mean the whole of the British North America Act, i86j, but means the constitution of the federal Government, as distinct from the provincial Governments. The power of amendment conferred by s. 91(1) is limited to matters of interest only to the federal Government."165 The phrase "Constitution of Canada" in section 91(1) was described as related to "federal 'housekeeping' matters."166 Similarly, in O.P.S.E.U. v. Ontario (Attorney General),16'7 with respect to the phrase "Constitution of the Province," Mr Justice Beetz said for the majority of the court that "an enactment can generally be considered as an amendment of the constitution of a province when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(i)." l 6 S In that case, the challenged legislative provisions dealt with the operation of an organ of government, namely, the Ontario public service. Under the provisions, members of the Ontario public service were required to abstain from a certain number of political activities. As these provisions did not call into question the federal principle or the fundamental conditions of the union, they were held to be valid. However, Beetz added that "there may be more to it."169 The challenged provisions were meant to promote and implement the

85 The Sovereignty of Parliament impartiality of the public service, and impartiality is "an essential prerequisite of responsible government."170 That does not "necessarily mean it can do anything it pleases with the principle of responsible governement itself."171 Beetz argued: "The power of constitutional amendment given to the provinces by s. 92(1) of the Constitution Act, 1867 does not necessarily comprise the power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system."172 This caveat was derived from an obiter in In re Initiative and Referendum Ac£173 in which the Judicial Committee of the Privy Council said that, although a provincial legislature may delegate some of its powers to a subordinate agency, "it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence."174 In that case, a Manitoba act empowered the electorate to legislate directly by way of referendum. As Mr Justice Rand said in A.G. of Nova Scotia v. A.G. of Canada,1^5 "in constitutional theory, legislative enactment is that of the Sovereign in Parliament and in Legislature, to each of which, as legislative organs of a federal union, has been given exclusive authority over specified matters in a distribution of total legislative subject matter."176 It should follow, then, that the meaning of the phrases "Constitution of Canada" and "Constitution of the Provinces" was delimited by a set of basic principles of Canadian constitutional law taken as an integrated whole.177 Unfortunately, orthodox theory could hardly articulate what these phrases involved in law prior to decisions by the courts. Whatever the legislative rules of the second category were, their determination was a matter to be decided by the courts in the process of constitutional interpretation. According to orthodox theory, we were in the area of open texture of the constitutional text and decision was a matter of judicial discretion and creative choice. The unwritten antecedent rules. The unwritten antecedent rules with respect to the validity of legislation are those that are neither entrenched in nor characterized as coming within the scope of sections 91 ( i ) and 92(1) of the Constitution Act, 1867. According to the orthodox view, these rules, whatever they be, derived from English constitutional law as incorporated into Canada through the preamble of the constitution.178 Therefore, within their own spheres of powers, the sovereignty of the legislatures and of the federal Parliament was viewed as continuing.179 These institutions could certainly alter the ordinary legislative process within the limits prescribed by sections 91(1) and 92 ( i ) of the Constitution Act, 1867. But beyond that power, they could not bind

86 Orthodox Constitutional Theory

themselves nor their successors as to either the manner and form or the substance of future legislation. In The Queen v. Melford Developments Inc., held in 1982, Mr Justice Estey affirmed, in an obiter, that "there is, of course, no room for debate on the proposition that Parliament is supreme and can neither bind itself nor any successor of Parliament when acting within its constitutionally - assigned sovereign jurisdiction."180 Therefore, Parliament and the legislatures could not, within their own spheres of powers, use the ordinary legislative process so as to entrench particular legislation through a statutory provision prescribing that, in order to repeal it, future Parliaments must comply with a manner and form requirement amounting to a special legislative process. Until 1970,181 that was certainly the orthodox opinion.182 For example, in analysing section 2 of the Canadian Bill of Rights183 of 1960 in which the federal Parliament attempted to bind itself and its successors, many authors had maintained that that legislation would be ineffective with respect to later inconsistent statutes. According to Professor Bora Laskin, "it simply cannot be that an unentrenched non-constitutional enactment will be given force to limit Parliamentary action."184 Insofar as the orthodox doctrine of the sovereignty of Parliament should control the effect of this kind of legislative rule, Laskin's view was correct. The antecedent rules with respect to the interpretation of legislation

Orthodox constitutional theory does not directly deal with the question of whether a legislature can unilaterally alter or modify the antecedent rules with respect to the interpretation of legislation. Yet, insofar as these rules are conceived as logically antecedent to the application of an act in order to comply with the basic rule of parliamentary sovereignty, Wade's thesis should apply. If the rules cannot be established by legislation, then no statute can alter or abolish them. A legislative attempt to do so would remain of no force or effect unless the courts, for reasons independent of the very text, decide to alter the antecedent rules respecting interpretation in accordance with it. For example, a legislative provision providing that "any statute shall henceforth be interpreted in accordance with its purpose instead of its literal meaning" would not be applied by the courts if they believe that the concept of legislative intent, correctly interpreted in the light of the rule of the sovereignty of Parliament, requires a literal interpretation of statutes. It follows that it always belongs to the courts to determine, in the last resort, what a valid act of Parliament means. The judges must decide the point of view from which it must be construed (for

87 The Sovereignty of Parliament

example, the intention) and what method or rules that point of view concretely requires (literal, purposive, contextual, and so on) in order for any single act to reflect the last legislative intention. That applies especially to the various interpretation acts. These acts provide what can be conceived to be the best parliamentary account of the intention of Parliament when it enacts a particular statute or uses a particular word in it. One might think that, if the intention of Parliament is to be upheld in the process of interpreting a particular act, the first place to look should be in the Interpretation Act. Unfortunately, if the doctrine of parliamentary sovereignty implies that Parliament can (expressly or impliedly) alter and repeal any of its own laws, then it can (expressly and impliedly) repeal the Interpretation Act. Accordingly, if Parliament enacted a statute whose particular intention does not appear to fit the interpretation that would follow from an application of the Interpretation Act, the duty of the courts would be to comply with the particular statute and not with the Interpretation Act. Otherwise, the Interpretation Act would either control the intention of subsequent Parliaments or impose particular conditions on the legislative process, such as an "express" repeal or a condition of form amounting to a provision stating that a given act shall apply "notwithstanding the Interpretation Act." It follows that the Interpretation Act can be used, at the most, as a parliamentary declaration about how the intention ought to be ascertained. It provides a set of supplementary norms185 which may be referred to as presumptions of intention. These norms apply only in the absence of a "contrary intention."186 Moreover, as the Interpretation Act itself must be interpreted, we must presuppose the existence of some rules or principles of interpretation which are antecedent to it and which cannot derive from that act. We must agree with H.L.A. Hart when he says that canons of interpretation cannot "any more than other rules, provide for their own interpretation."187 QUASI-CONSTITUTIONAL LEGISLATION

In the next three sections, I argue that the orthodox doctrine of the sovereignty of Parliament, even as conceived in the light of the implicit version, is inadequate to explain many important Canadian Supreme Court decisions generally recognized as well founded in law by legal experts. In each of these decisions, the court refused to apply a valid legislative rule in accordance with the "reasonably clear" legislative intended meaning. My analysis is confined to three categories of cases: those dealing with quasi-constitutional legislation, "special nature" ordinary legislation, and presumptions of intent. Other kinds of cases

88 Orthodox Constitutional Theory would also show that orthodox doctrine does not fit the body of judicial decisions, notably cases dealing with the antecedent rules with respect to the validity of legislation. However, such analysis is not necessary for my purpose and, to some extent, has already been the concern of constitutional scholarship in the context of the formal validity thesis.188 "Quasi-constitutional legislation" may be defined as legislation enacted in accordance with the existing ordinary legislative process in respect of which a particular provision (enacted either in that statute or in other ordinary legislation) provides that that statute must have primacy over all other ordinary inconsistent enactments, even those enacted after it, unless these other enactments fulfil a certain number of specific conditions often referred to as manner and form requirements. Characterizing such statutes as "quasi-constitutional" has nothing to do with the importance of their content, be they in relation to fundamental rights and freedoms or in relation to speed limits. The characterization is merely based upon the fact that it is intended that the statute have supremacy over all other inconsistent ordinary enactments that do not fulfil the required conditions.189 A quasi-constitutional statute is accordingly "entrenched."190 According to orthodox English constitutional theory, given that parliamentary sovereignty is continuing, any legislative attempt to entrench a particular provision would be ineffectual vis-a-vis subsequent inconsistent legislation enacted "by the same body and in the same manner."191 In Canada, both Parliament and many provincial legislatures have enacted quasi-constitutional legislation.192 Although the following discussion deals with the Canadian Bill of Rights enacted in 1960 by the federal Parliament, it applies mutatis mutandis to all quasi-constitutional legislation. Some judicial decisions Section 2 of the Canadian Bill of Rights provides that "every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe, or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared." Section 5 provides that it must apply to acts of the Parliament "enacted before or after the coming into force of this Act," that is, 1960. The combination of section 2 and section 5 raised directly the issue as to whether or not Parliament can bind itself and its successors as to the manner and form or the content of future legislation. Until 1970 it was assumed that the Canadian Bill of Rights would have no effect upon future legislation.193

8g The Sovereignty of Parliament

In 1970 the Supreme Court of Canada faced the issue in R. v. Drybones.1^ Two questions had to be answered: first, whether section 94 (b) of the Indian Act providing that an Indian found intoxicated anywhere off a reserve is punishable was inconsistent with section i (b) of the Canadian Bill of Rights, which guarantees the individual right to "equality before the law"; and, secondly, whether the Canadian Bill of Rights was a mere act of interpretation which applies only when other acts of Parliament are ambiguous, or a quasi-constitutional enactment prevailing against any inconsistent legislation which does not use a "notwithstanding provision." The majority of the court held that section 94(b) of the Indian Act was inconsistent with section i (b) of the Canadian Bill of Rights and that the latter was not a mere interpretation act. Although it is not necessary to review the argument here, I must quote the following passage from Mr Justice Ritchie's opinion: "It seems to me that a more realistic meaning must be given to the words in question and they afford, in my view, the clearest indication that s. 2 is intented to mean and does mean that if a law of Canada cannot be 'sensibly construed and applied' so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized and declared by the Bill, then such law is inoperative unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights."195 The orthodox view would strike "at the very foundations of the Bill of Rights." l$6 Ritchie did not allude to the question of the sovereignty of Parliament. One reason, perhaps, was that the Indian Act was anterior to the Canadian Bill of Rights and, accordingly, the former act was impliedly repealed by the latter.19? Consequently, with respect to acts of Parliament enacted after the Canadian Bill of Rights, the generality of his opinion in the passage quoted above could be regarded as mere dicta. In his dissent, Mr Justice Pigeon specifically limited the issue to the relationship between the Canadian Bill of Rights and a statute enacted before 1960: "In thus stating the question I am not unmindful of the fact that, due to the definition of section 5(2) of the expression 'law of Canada,' section 2 applies to subsequent federal statutes equally as to existing legislation. However, because different considerations may conceivably apply in the case of subsequent statutes, I find it desirable to go no further than necessary for the decision of the case at hand which has to do with existing legislation."198 Time and again the holding of Mr Justice Ritchie in the Drybones case has been confirmed by the Supreme Court although at no time has it actually been used as a ground for decision.1" Recently, however, in Singhv. M.E.I.,200 three of the justices of the Canadian Supreme Court decided that the procedures for the adjudication of refugee-status claims set out in the Immigration Act, 1976 were inconsistent with

go Orthodox Constitutional Theory

section 2 (e) of the Canadian Bill of Rights and, since the act did not contain a notwithstanding provision, they were inoperative. Mr Justice Beetz held that there was no reason not to apply the ruling in Drybones to subsequent acts of Parliament.201 Although three other judges held that the relevant provisions of the act were of no force and effect on the ground that they were inconsistent with section 7 of the Charter, Beetz's view on that issue was undoubtedly acceptable for the majority of the court. For example, in The Queen v. Beauregard202 the majority of the court dealt with the question as to whether section 29.1 of the Judges Act as amended by the Statute Law (Superannuation) Amendment Act, 1975 was inconsistent with section i (b) of the Canadian Bill of Rights and, to the extent of the inconsistency, whether it was of no force or effect. Although the majority concluded that there was no such inconsistency, the whole discussion made sense only if we postulate that the Canadian Bill of Rights prevails over subsequent inconsistent statutes. Moreover, the minority concluded that there was an inconsistency and that section 29.1 (2) of the Judge Act should be declared inoperative.203 Thus, according to the Canadian Supreme Court, Parliament or a legislature has the power to impose a certain number of requirements such as the "notwithstanding clause" upon itself and its successors. The relevant question, by 1982, was not so much whether a Canadian legislature can bind itself and its successors but how the doctrine of the sovereignty of Parliament could fit these cases. The inconsistency

Suppose that in the Drybones case the Indian Act had been enacted after the Canadian Bill of Rights. The court would have reasoned as follows. First, it would have concluded that the intention of Parliament, as inferred from the Indian Act, was to discriminate between non-Indians and Indians. Such a conclusion would have been logically necessary for the court to have held that the act was inoperative; no such declaration is allowed except when an act cannot be "'sensibly construed and applied' so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized and declared by the Bill."204 Then, it would have concluded that such intention was inconsistent with the Canadian Bill of Rights. Finally, it would have concluded that the Indian Act is inoperative in the absence of the nothwithstanding clause. The first two steps or premises are consistent with the doctrine of parliamentary sovereignty. They involve the determination of the intention of two subsequent Parliaments and require a judgment as to

91 The Sovereignty of Parliament

whether they are both consistent with each other. By contrast, the third step or conclusion of such reasoning is inconsistent with orthodox doctrine. As we know, the antecedent rules imply and prescribe that the doctrine of implied repeal must control the effect of two inconsistent acts. Therefore, instead of employing the rule that the courts must always apply a later parliamentary enactment in accordance with the intention of the enacting legislature, the holding in the Drybones case, if applied to acts enacted after 1960, totally departs from it. The consistency thesis

Since the holding in the Drybones case was plainly inconsistent with the orthodox doctrine of the sovereignty of Parliament, orthodox scholars could claim either that the Drybones case was wrongly decided or, alternatively, that it was nevertheless consistent with the doctrine. Most of them have chosen the second option. It has been argued that section 2 of the Canadian Bill of Rights must be conceived either as a manner and form requirement or as a rule of interpretation. Since these two theses, although not totally distinct, come within two different sets of theoretical postulates, they should be studied separately. The "manner and form " thesis. The thesis that section 2 of the Canadian Bill of Rights is a manner and form requirement is a Canadian version of the so-called "new view"205 on the sovereignty of Parliament as elaborated in the United Kingdom. That thesis is probably the most accepted within Canadian constitutional sholarship and may even be regarded as the new orthodox view.206 Hogg, for example, has argued that there is "one possible escape from the remorseless logic of parliamentary sovereignty"207: "The argument would be that Parliament has bound itself to enact laws inconsistent with the Bill of Rights only in a specified manner and form: that manner and form is the inclusion of an express declaration that the statute 'shall operate notwithstanding the Canadian Bill of Rights.' The conclusion of this argument would be that the Bill of Rights is entrenched, and that a later statute inconsistent with it is invalid unless it contains the express declaration described in s. 2 (the exemption clause)."208 Similarly, Tarnopolsky has argued that, insofar as the decision in Drybones was based upon the "specific inclusion of the non-obstante clause," then "one could deduce from this that the clause was intended to protect and maintain the doctrine of Parliamentary sovereignty, by acknowledging the need for imposing a 'manner and form' requirement. Thus it could be argued that if Parliamentary sovereignty still exists today, Parliament

92 Orthodox Constitutional Theory

can direct the courts to apply laws which do not contain the nonobstante clause, whether enacted before or after the C.B.R., only if they are consistent with the C.B.R."209 The "new view" of the sovereignty of Parliament is a particular version of the idea of continuing sovereignty.210 It assumes that, so long as Parliament through its legislation does not limit the area of power of its successors in an irrevocable manner, it does not affect their sovereignty. Consequently, Parliament can regulate the manner and form of future legislation because such requirements would not affect the power of future Parliaments to regulate the substance of the law; they would merely determine what constitutes an ordinary act of Parliament and require Parliament to enact its policies in accordance with them. 211 Accordingly, the "new view" would be consistent with the basic propositions of the orthodox conception of sovereignty.212 However, if the foregoing assumptions were true, then Parliament could entrench certain legislative provisions by enacting a law providing that any amendment or repeal of these provisions must proceed in accordance with such manner and form (for example, a two-third majority, a referendum, and so on). The entrenchment would not affect the sovereignty of Parliament because it would not prevent it from regulating the substance of the law.213 Thus, according to the "new view," Parliament may not only alter the ordinary legislative process; it may prescribe a special legislative process for regulation of certain issues. The manner and form requirements have been characterized differently. However, in general, they have been characterized as laws in relation to the definition of Parliament. According to Hogg, these manner and form laws, "which purport to re-define the legislative body, either generally or for particular purposes, are binding for the future."214 In fact, such laws purport to alter the antecedent rules for the composition of Parliament (for instance, by providing that a given provision cannot be amended except in accordance with a law enacted by a specific legislative institution),215 for the internal procedures (for instance, requiring the vote of two-thirds of the members of one or two houses)216 or for the form of the act (for instance, requiring the act to contain a specific and express formula). 217 In general, the authors who accept the "new view" in Canada seem to assume its validity without argument.218 Tarnopolsky is an exception.219 His position is based on what he calls the "Jennings-Friedmann-CowenDixon view" of parliamentary sovereignty as supported by various judicial statements found in various commonwealth cases. "Legal sovereignty" is thus a legal concept meaning that "the courts will always recognize as law the rules which Parliament makes by legislation." But

93 The Sovereignty of Parliament the courts must first determine whether a purported enactment is an act of Parliament. Since such determination is a matter of law (the authority of an act of Parliament "derives from the law by which it is established" and in the United Kingdom that law is the common law), Parliament may alter it. If it does so, the courts must give effect to that law. Jennings says that " 'legal sovereignty' is merely a name indicating that the legislature has for the time being power to make laws of any kind in the manner required by the law. That is, a rule expressed to be made by the Queen with the advice and consent of the Lords spiritual and temporal, and the Commons in this present Parliament assembled, and by the authority of the same will be recognized by the courts, including a rule which alters this law itself."220 The "new view" thesis, although appealing, is not quite satisfactory. The main difficulty is that it does not fit the body of judicial decisions dealing with quasi-constitutional legislation in Canada. If a provision imposing a set of manner and form requirements is an antecedent rule as to the validity of legislation (it refers to the rules governing the composition, the internal proceedings, and the form of an act), its violation should entail the invalidity of the challenged act. In the Drybones case, Justice Ritchie maintained that the Indian Act should not be invalid but inoperative: "I think a declaration by the courts that a section or portion of a section of a statute is inoperative is to be distinguished from the repeal of such a section and is to be confined to the particular circumstances of the case in which the declaration is made. The situation appears to me to be somewhat analogous to a case where valid provincial legislation in an otherwise unoccupied field ceases to be operative by reason of conflicting federal legislation."221 Indeed, many scholars recognize that difficulty.222 Yet, unless one argues that that aspect of the Drybones decision was mistaken, orthodox theorists should have rejected the "new view" thesis as a justification of that decision.223 Unfortunately, in general, those who accept it have done neither one nor the other and still assume that section 2 of the Canadian Bill of Rights is a provision of manner and form consistent with their conception of parliamentary sovereignty! That difficulty shows that the "new view" thesis does not explain the holding in the Drybones case. However, given the fact that it has been accepted as valid by many Canadian scholars (at least since the Drybones case), and that it could justify other legislative attempts to entrench some legislation, I must emphasize some of its weaknesses. M purpose is not to claim that the courts can never accept some aspects of the "new view" thesis.224 It is to submit that, beside the fact that it does not explain Drybones, the "new view" is internally incoherent and unjustified by the existing state of law.

94 Orthodox Constitutional Theory

First, the thesis assumes that Parliament can bind itself as to the manner and form but not as to the substance of future legislation. That appears paradoxical. On the basis of its own postulates, if the rule of the sovereignty of Parliament is a rule of common law alterable by Parliament, then a statute purporting to bind its successors as to the substance of the law should also be enforced by the courts.225 But because that implies that Parliament, although "self-embracing," could irrevocably limit its sovereignty for the future and because it is not reconcilable with the sovereignty of Parliament as they see it, the "new view" theorists deny the validity of that assertion. Yet to deny it implies that there is at least one rule of common law which is fundamental and unchangeable by Parliament. And if so, then it is not true that Parliament can alter the law, including the "law affecting itself." In this regard, the "new view" thesis appears internally inconsistent. The "new view" theorists might reply that the distinction between a law altering the manner and form and a law affecting the substance is not a matter of logic but of making sense of the cases. Unfortunately, the United Kingdom cases may be understood either way. If they support the view that a sovereign Parliament cannot be prevented from regulating the content of the law,226 they do not support the view that it can redefine itself.227 Insofar as neither logic nor the body of United Kingdom cases dictate the "new view" thesis, we may wonder what would be the ground for the proposition that the courts, which recognize a rule providing that Parliament has the power to make any law whatsoever and that Parliament is not bound by its previous acts, would not define Parliament or would leave open the definition of that institution?228 Secondly, the thesis assumes that a law in relation to manner and form amounts to a redefinition of Parliament. On the one hand, while a rule altering an antecedent rule for the composition of Parliament (for example, a rule abolishing a House of Parliament) may be seen as such a redefinition, 229 it is hard to conceive of all manner and form requirements as such (for example, a law requiring a referendum or a two-thirds majority). 230 In any event, section 2 of the Canadian Bill of Rights cannot be reasonably conceived of as a matter of definition. That section does not aim at the composition or the structure of Parliament as such. It rather deals with the form which parliamentary legislation dealing with certain rights and freedoms must have in order to be applied by the courts as valid and effective laws. On the other hand, the notion of the "redefinition of Parliament for certain purposes" is ambiguous. It might mean that within a given jurisdiction there remains one omnipotent Parliament which has two meanings according to the issues involved.231 However, that sounds rather

95 The Sovereignty of Parliament

tortuous and perhaps the idea of redefinition amounts to the claim that in a given jurisdiction there may be two Parliaments, each having its own sphere of powers. But if that is true for two that should be true for three, four, or one hundred Parliaments. Whatever the validity of that claim in the United Kingdom is,232 it sounds extravagant in Canada where the whole set of powers is constitutionally divided. Section 91 of the constitution provides for the legislative authority of the Parliament of Canada over a certain number of subject matters. Such authority purports to be "exclusive" to the Parliament of Canada as defined by sections 17 and 91 of the constitution. Similarly, section 92 provides that "in each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated."233 It is therefore hard to conceive of the coexistence of two provincial legislatures within the same province or of two Parliaments, each with its own sphere of powers, at the federal level.234 Thirdly, the claim that a manner and form limitation does not affect the power of Parliament to regulate the content of the law is doubtful. On the one hand, if a Parliament has redefined itself for certain purposes, it is mere logic that with respect to these purposes it has bound itself not to regulate them. It also follows that it has bound itself as to the substance of future legislation. For example, if a Parliament enacted a law providing that "any law prohibiting abortion shall be accepted by referendum" and that "that rule cannot be amended or repealed except in accordance with the same process," it would have limited its power to regulate the substance of abortion law.235 One may certainly say that the power to regulate abortion has been transferred to a "new special body"236 which should also be conceived of as "Parliament" for that purpose. However, that should not obscure the fact that, if Parliament has transferred its legislative powers over abortion to a "new special body," for that very reason it has fettered its power over the substance of future legislation.237 On the other hand, the distinction between a rule in relation to the manner and form and a rule in relation to the substance of legislation is not a matter of nature but a matter of degree. Many authors have alluded to this point.238 For example, a provision requiring that a legislative enactment must receive the support of 95 per cent of the population before becoming law could reasonably be characterized as a provision that seeks to bind future Parliaments as to the substance of legislation although it would apparently deal only with its manner and form. Finally, the body of commonwealth cases upon which the theorists rely does not quite support the "new view." In The Bribery Commissioner v. Ranasinghe,239 the Judicial Committee of the Privy Council had to

96

Orthodox Constitutional Theory

determine whether an ordinary statute of Ceylon (Sri Lanka) enacted in violation of a set of manner and form requirements was nonetheless valid. Section 29(4) of the Ceylon Constitution Order in Council, 1946 provided that an amendment to the constitution must not be presented for royal assent unless the Speaker has certified that it has been approved by no less than two-thirds of the members of the Houses of Representatives. In 1954 the Parliament of Ceylon enacted the Bribery Act, regarded as a constitutional amendment, in accordance with section 29(4). However, in 1958 the Parliament enacted the Bribery Amendment Act according to the ordinary legislative process (it was passed by both houses and received royal assent without the certificate of the Speaker). The court held that section 41 of the 1958 act was inconsistent with section 55 of the constitution and should therefore have been enacted in accordance with the process set out in section 29(4): "Any Bill which does not comply with the condition precedent of the proviso, is and remains, even though it receives the Royal Assent, invalid and ultra vires."240 The issue was clear enough. The "two-thirds majority certified by the Speaker" rule was a manner and form requirement laid down in a constitution recognized as superior to parliamentary legislation. Section 29(4) was thus a constitutional rule providing a general constitutional-amending procedure. The mere fact that that amending process prescribed a twothirds majority rule (instead of an ordinary act of the United Kingdom Parliament) or any other process does not change its basic nature. Thus, the issue was not a matter of statutory limitation as to the manner and form of future legislation. Rather, it was a matter of constitutional amendment. The following passage of Lord Pearce's opinion is fundamental: A legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is "uncontrolled," as the Board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process. And this is the proposition which is in reality involved in the argument.241

97 The Sovereignty of Parliament

Ranasinghes begs many questions with respect to the "new view" thesis. In the United Kingdom, the issue is precisely the determination whether a manner and form requirement imposed by statute would be recognized by the courts as a "constituent instrument" for the future and whether the actual common-law antecedent rules which constitute the present "constituent instrument" can be amended by the ordinary legislative process. Yet many "new view" theorists have taken the following passage in Lord Pearce's as supporting their thesis: "No question of sovereignty arises. A Parliament does not cease to be sovereign whenever its component members fail to produce among themselves a requisite majority, e.g., when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is only a bare majority if the Constitution requires something more ... The limitation thus imposed on some lesser majority of members does not limit the sovereign powers of Parliament itself, which can always, whenever it chooses, pass the amendment with the requisite majority."242 G. Marshall, among others, has argued that this passage seems to involve the proposition that self-imposed statutory manner and form requirements would not limit, bind, or fetter the sovereignty of Parliament and, consequently, that the notion is not an argument against "entrenchment."243 Yet Marshall's claim is valid only if Lord Pearce's assertion is true. Unfortunately, as should be relatively clear to any Canadian lawyer, Lord Pearce's latter statement is misleading. If the constitution has entrenched certain matters (such as those in section 55) and if section 29(4) is a rule providing a constitutional-amendment procedure, then Parliament is not sovereign, at least with respect to these matters. As we say in Canada, Parliament is not sovereign in the sense of being able to make or unmake any law whatever; it is sovereign within its own sphere of powers. Of course, in Ceylon, the constitutional-amendment process resembled the legislative process. However, the processes should not be confused. To suggest that the Parliament of Ceylon remained sovereign because it could amend the constitution provided it complied with the manner and form rules is as misleading as saying that the Canadian federal Parliament is sovereign because it can always amend the Canadian constitution provided it complies with the various amending procedures (the assents of the federal Parliament and two-thirds of the provinces representing 50 percent of the population; for some purposes, the assents of the federal Parliament and all of the provinces; and so on). 244 That confuses the legislature, that is, Parliament as defined for the purpose of the legislative ordinary process, with the constituent, that is, in Ceylon, Parliament as differently defined for the purpose of the special process of amending the constitution.

98 Orthodox Constitutional Theory The other cases generally referred to are no more persuasive. For example, in Attorney General for New South Wales v. Trethowan,245 the Privy Council had to determine whether a bill of the legislature of the State of New South Wales purporting to abolish the Legislative Council could be presented for royal assent without first having been approved by a referendum. In 1855 the United Kingdom Parliament enacted the New South Wales Constitution Act, 1855, which provided that the legislature of New South Wales was empowered to make laws altering the Constitution Act, 1855 in accordance with the conditions imposed by that act. The Constitution Act, 1855 established, among other things, that the Parliament of New South Wales would be composed of two chambers, a Legislative Council and a Legislative Assembly. In 1865 the United Kingdom Parliament enacted the Colonial Laws Validity Act, 1865, in which section 5 stipulated that any colonial representative legislature had the power, to alter its own constitution, powers, and procedure provided that "such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law, for the time being in force in the said colony." In 1902 the New South Wales legislature enacted the Constitution Act, 1902, which altered the existing constitution. That act was amended in 1929 by the insertion of a section 7 (A) providing, first, that no bill purporting to abolish the Legislative Council should be presented to the governor for royal assent until the bill had been approved by referendum and, secondly, that section 7 (A) could not be repealed except in accordance with that process. In 1930 two bills that had not been approved by referendum were going to be presented for the royal assent. One of them provided that section 7 (A) would be repealed and the other that the Legislative Council would be abolished. The Privy Council held that these two bills could not lawfully be presented for royal assent and had they been so presented they would have been invalid. The main ground for that decision was that the legislature was subject to section 5 of the Colonial Laws Validity Act, i865-246 Section 5 of the imperial act amounted to an entrenched constitutional provision empowering the legislature to alter its own constitution, powers, and procedure provided that the changes involved comply with the manner and form required by existing law. Section 7(A), purporting to alter the constitution, powers, and procedure of the legislature, was enacted in accordance with the existing manner and form requirements, and was valid and operative. Of course, the purpose of section 7 (A) was to entrench a particular constitutional provision with respect to the Legislative Council. However, such purpose has been recognized by the courts as an "exercise by the

99 The Sovereignty of Parliament

legislature of New South Wales of its power (adopting the words of s. 5 of the Act of 1865) to make laws respecting the constitution, powers and procedure of the authority competent to make the laws for New South Wales."247 As that entrenchment required the establishment of a special process of amendment different from the ordinary legislative process, the legislature was entitled to impose a specific requirement such as the approval of the bills by referendum. According to the Privy Council, "the words 'manner and form' [in section 5 of the Act of 1865] are amply wide enough to cover an enactment providing that a Bill is to be submitted to the electors."248 Consequently, any bill purporting either to abolish the Legislative Council or amend section 7 (A) must comply with these manner and form requirements, namely, its approval by referendum before being presented for royal assent. Trethowan's case also raises questions.249 In the United Kingdom there is no such constitutional rule resembling section 5 of the Colonial Laws Validity Act providing power for Parliament to entrench some aspects of its constitution and, consequently, to alter the rules as to the manner and form of its legislation so as to impose a special legislative process. That does not mean that the courts in the United Kingdom cannot recognize a common law rule to that effect. But it does mean that the commonwealth cases, correctly understood, do not support the validity of the "new view" thesis in the United Kingdom.250 Yet there is some resemblance between section 5 of the Colonial Laws Validity Act and sections 91(1) and 92(1) of the Constitution Act, 1867 conferring on the Canadian Parliament and on the provincial legislatures the power to amend from time to time the "Constitution of Canada" and the "Constitution of the Province." Accordingly, one might think that the commonwealth cases (especially Trethowari) are better applied to Canada than to the United Kingdom. It should be emphasized, however, that those who have referred to the commonwealth cases to support the ruling in Drybones have not argued that section 2 of the Canadian Bill of Rights was an amendment of the "Constitution of Canada" within the scope of section 91(1). Their argument has been conceived independently of that section.251 Nevertheless, it is doubtful whether it could have been successfully argued that the effectiveness of section 2 of the Canadian Bill of Rights was founded upon paragraph 91(1) of the Constitution Act, 1867 as understood today. Paragraph 91(1) is a legislative power of the federal Parliament enumerated in section 91. An act based upon it is valid if its subject matter falls within that specific class of subjects. Thus, the issue is to determine whether section 2 of the Canadian Bill of Rights is in relation to subject matter encompassed within the class of subjects described as "the amendment, from time to time, of the Constitution

i oo Orthodox Constitutional Theory of Canada"; that is, as we saw, whether section 2 is in relation to the "operation of an organ of government."252 That class of subjects certainly includes the power to amend a certain number of unentrenched antecedent rules in relation to the validity of an act of Parliament. For example, an act altering for the future the ordinary legislative process might be valid and effective by virtue of paragraph 91(1) of the constitution provided it does not conflict with the entrenched rules and does not bring about a profound constitutional upheaval.253 But section 2 of the Canadian Bill of Rights is not of that nature. It neither determines for the future what is an ordinary act of Parliament nor modifies the antecedent rules as to the validity of legislation. The purpose of section 2 is to add, in parallel to the ordinary legislative process, a special legislative process the operation of which depends on criteria that are uniquely related to the very content of the subsequent acts (the substantive inconsistency with the rights and freedoms guaranteed by the Canadian Bill of Rights). The true purpose of section 2 is to prevent subsequent Parliaments from altering or repealing the content of the Canadian Bill of Rights in accordance with the ordinary legislative process as it exists from time to time. It seeks to limit the power of subsequent Parliaments with respect to a certain number of subjects. It follows that section 2 is as much a law in relation to the content of future parliamentary legislation as in relation to its manner and form. At the same time, section 2 seeks to affirm the supremacy of one particular act over all other ordinary acts. It entrenches a particular act and makes it controlling over subsequent acts that have not followed the special amending process. To that extent, it is reasonable to maintain that the purpose of section 2 comes within the caveat expressed by Justice Beetz in O.P.S.E.U. v. Ontario(Attorney General)2^4 that the unilateral legislative power to amend from time to time a certain number of unentrenched antecedent rules within the scope of section 92(1) of the constitution "does not necessarily comprise the power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system."255 Unless the courts are willing to depart from orthodox constitutional theory, it is doubtful that they would characterize section 2 of the Canadian Bill of Rights as a law in relation to the amendment of the "Constitution of Canada" within the limited scope of paragraph 91(1) of the Constitution Act, 1867. My distinction between ordinary and special legislative processes may be challenged on the ground that, insofar as the Canadian Bill of Rights applies to all future legislation, it has altered the ordinary process (as opposed to imposing a special one). But, if the Canadian Bill of Rights has altered the ordinary legislative process, it is because it has

i o i The Sovereignty of Parliament

amended the antecedent rules with respect to the content of future legislation in a way that would recall the Canadian Charter of Rights and Freedoms or section 93 of the Constitution Act, 1867. And if that is correct, the objection mentioned above cannot be coherently maintained by the "new view" theorists because it involves the assertion that Parliament could impose various limitations on the substance of future legislation. For these reasons, the manner and form thesis, such as generally understood, does not explain the decision in the Drybones case. The authors must find another ground. The rule of interpretation thesis. E.A. Driedger has submitted that section 2 of the Canadian Bill of Rights should be viewed as a rule of statutory interpretation: This provision is clearly a rule of interpretation. Granted that Parliament cannot bind future Parliaments, it may nevertheless lay down rules that are to govern the interpretation and application of its own statutes. The Interpretation Act is a long-standing example of this technique ... The effect of this provision therefore would appear to abrogate the two rules of inconsistency, namely, that a particular statute and that a later statute overrides an earlier one. Is such provision effective? Parliament has not said that its own powers are any the less, nor that a future Parliament must not enact a conflicting law. Parliament has said only that certain intentions shall not be imputed to it unless a special form of words is used.256

This thesis is consistent with the holding in the Drybones case that the Indian Act is "inoperative" instead of "repealed" or "invalid."257 Yet, insofar as it is put forward as explaining the Drybones case consistently with the doctrine of sovereignty of Parliament, it fails. The first difficulty comes from two incoherent assertions. On the one hand, Driedger admits that Parliament cannot bind itself for the future; on the other hand, he claims that it can alter or repeal any rule of interpretation. This suggests that the rules of statutory interpretation are common law rules which can be unilaterally altered and repealed by Parliament as can any other common law rules.258 However, if Parliament cannot bind itself for the future, that is because it cannot unilaterally alter the set of rules that are logically beyond its reach. Consequently, as a matter of consistency, it should follow that Parliament could not unilaterally alter the antecedent rules with respect to the interpretation of legislation. If the rule of the sovereignty of Parliament involves the rule that any act of Parliament must be construed from the point of view of legislative intention (except where

los

Orthodox Constitutional Theory

there is an inconsistent subsequent act) and applied accordingly, the courts cannot at the same time recognize the effectiveness of a legislative provision intended to alter that rule. To do so would alter the very rule of parliamentary sovereignty.259 Moreover, the fact that Parliament has enacted the Interpretation Act is irrelevant. Interpretation acts do not alter the interpretation of subsequent legislation when the legislative intention appears to contradict the meaning it should receive according to the Interpretation Act.260 One might object that the purpose of section 2 is not to alter directly the antecedent rules respecting interpretation but to tell the courts what rules they should recognize as antecedent for the determination of the legislative intention. It would be a mere invitation to the courts to follow the will of the i g6os Parliament. That raises the question of whether it is reasonable to conceive of the content of section 2 as an antecedent rule relating to legislative intention. One may doubt that this could be so. In the Drybones case, the court determined the intention of Parliament with respect to section 94(b) of the Indian Act independently of the rule contained in section 2 of the Canadian Bill of Rights. The question of whether the Indian Act complied with the requirement of section 2 or not became relevant only after the intention had been determined in accordance with the whole set of ordinary rules of statutory interpretation (literal, purposive, and so on). In fact, the relevance of section 2 truly makes sense in a context where the latter act (understood from the point of view of the legislative intention) is inconsistent with the Canadian Bill of Rights. Thus, Driedger's claim that Parliament has said that the courts must never assume that it has the intention to violate the Canadian Bill of Rights unless the requirement of section 2 has been complied with cannot be understood as related to the determination of the intention. It appears to be just the opposite. Where the Canadian Bill of Rights conflicts with a later act, it requires the court to disregard the actual intention of Parliament in favour of the intention of the Parliament of 1960. Consequently, if section 2 of the Canadian Bill of Rights was an invitation to alter the antecedent rules judicially, it would not be directed towards the antecedent rules for the determination of the intent. It would aim at the basic postulates of the orthodox doctrine of parliamentary sovereignty. One might reply that, after Drybones, Parliament knew of the existence of that rule. Accordingly, facing a post-igyo statute that has not followed the requirements of section 2, a court may presume that Parliament intended that its enactment be construed in accordance with the Canadian Bill of Rights. That argument has some weight with respect to ambiguous laws. However, one must not press the point too far

log The Sovereignty of Parliament

because one Parliament cannot be answerable for the intention of its successors. For example, an ambiguous act may reveal that it is more probable, for some reasons (coherence, historical context, and so on), that the intention of Parliament was to limit some rights and freedoms protected by the Canadian Bill of Rights than to affirm them. In any event, such reply has no weight at all when the act is clearly inconsistent with the Canadian Bill of Rights. Indeed, a presumption of intent in favour of the Canadian Bill of Rights would paradoxically imply that the intention of Parliament was to do something it was not its intention to do and that it intended not to do what it intended to do! A second difficulty comes from the supposition that section 2 of the Canadian Bill of Rights was neither a manner and form provision nor an attempt to limit Parliament's own powers with respect to substance. That assertion is doubtful. As J. Grant Sinclair has said, section 2 "is directed not only to the courts, but also to Parliament itself, and prescribes, if not the manner, then the form in which legislation must be expressed if it is to override the Bill."261 And, as we saw, if section 2 is a limitation related to the form of legislation, it has some implications on the substance of future legislation. Sinclair correctly argues that, if we impose a particular form on a future law of Parliament so as to make it effective, "to this extent, the powers of a. future Parliament are less."262 But Driedger might have claimed that his view is consistent with the proposition that "Parliament cannot bind itself" because, whereas the Canadian Bill of Rights cannot be disregarded while it is in force, nothing prevents a subsequent Parliament from directly repealing it in accordance with the ordinary legislative process. If so, then Parliament would not have divested itself of its powers. Even if that proposition were valid, section 2 of the Canadian Bill of Rights provides that "every law" shall be construed and applied so as not "to authorize the abrogation, abridgment or infringement of any of the rights or freedoms" recognized in that act, and it implies that if a conflict between a law and that act cannot be avoided then the conflicting law shall be inoperative unless the law expressly complies with the form requirement. That seems to include an ordinary law purporting directly to repeal any section of the Canadian Bill of Rights, including section 2. If so, then the Canadian Bill of Rights as a whole would be entrenched. But even if it were not, the fact that a subsequent Parliament, whose intention is to enact a law inconsistent with the Canadian Bill of Rights, is first required to repeal it expressly should be seen as a limitation upon the powers of the subsequent Parliament. Thus, the decision that Parliament cannot impliedly repeal the Canadian Bill of Rights while it is in force remains inconsistent with the doctrine of the sovereignty of Parliament as postulated by Driedger.263

104 Orthodox Constitutional Theory A better view is that the ruling in Drybones is inconsistent with the doctrine of the sovereignty of Parliament. It abolishes the doctrine of implied repeal, it contradicts the rule according to which the law must be applied in accordance with the intention of the actual Parliament, and it imposes a particular requirement which is not theoretically necessary to clarify its intention. Instead of seeking the intention of Parliament, it seeks to control it. Therefore, the orthodox theory has not succeeded in coherently incorporating the ruling in Drybones.

"SPECIAL NATURE" LEGISLATION "Special nature" enactments are statutes enacted in accordance with the ordinary legislative process which, even in the absence of clear legislative indication to that effect, have preponderance over all other ordinary laws in cases of conflict unless those other laws indicate in clear and express terms that they are intended to prevail notwithstanding the special nature legislation. Contrary to "quasi-constitutional" legislation, strictly speaking, there is no particular legislative provision (enacted either in the special nature law or in any other statute) expressly prescribing that a special nature enactment must prevail over all inconsistent ordinary laws unless the latter fulfils a certain number of specific conditions. The primacy of the special nature enactments depends on the mere fact that the courts have reason to believe that their content, or the values these enactments seek to promote and protect, is more fundamental or, at least, more important than all other ordinary laws. Some judicial decisions In Insurance Corporation of British Columbia v. Heerspink,264 the issue was whether section 3(1) of the 1973 Human Rights Code of British Columbia, providing that no person shall deny to any person a service customarily available to the public "unless reasonable cause exists," had any effect upon section 5 of the 1960 Insurance Act, which provided that an insurer may terminate an insurance contract provided that he gives to the insured fifteen days' notice of termination. In that case, the insurer had given the insured the appropriate notice with respect to insurance coverage on buildings for the unexpressed reason that the insured had been committed to trial on a charge of trafficking in marijuana. According to Heerspink, such termination denied the insured, without reasonable cause, of a service that was customarily available to the public. According to the insurer, the Human Rights

105 The Sovereignty of Parliament Code was legislation of a more general nature than the Insurance Act and, accordingly, should have no effect upon a more particular and specific prior act. Mr Justice Ritchie, for a majority of the Supreme Court, argued that the maxim generalia specialibus non derogant applies only where the two provisions are "absolutely at variance" with each other,265 which was not the case here. An insurer may terminate an insurance contract on fifteen days' notice and may show that a "reasonable cause" justifies it. Yet the interesting point of that decision lies in an obiter expressed by Mr Justice Antonio Lamer on behalf of three judges. He said that, "whilst agreeing with my brother Ritchie that 'the two statutory enactments under review can stand together as there is no direct conflict between them,' I should add that were there such conflict, the Code would govern"266: When the subject matter of a law is said to be the comprehensive statement of the "human rights" of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises. As a result, the legal proposition generalia specialibus non derogant cannot be applied to such a code. Indeed the Human Rights Code, when in conflict with "particular and specific legislation," is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law. Furthermore, as it is a public and fundamental law, no one, unless clearly authorized by law to do so, may contractually agree to suspend its operation and thereby put oneself beyond the reach of its protection. ... I find nowhere in the laws of British Columbia that s. 5 of the Statutory Conditions set forth in s. 208 of the Insurance Act, R.S.B.C. 1960, c. 197, as amended, is to be given any special treatment under the Human Rights Code.z^ That obiter has been agreed to in a unanimous court decision in 1985 in Winnipeg School Division No. i v. Craton, et al.268 There, the Court had to determine whether section 50 of the Public Schools Act of 1980, conferring on school boards the power to fix a compulsory retirement age for teachers employed by it, applied independently of paragraph 6(1) of the 1974 Human Rights Act, which prohibited discrimination in employment on account of age. Craton, a teacher in Winnipeg School District No. i, was notified that she would have to retire upon turning sixty-five by virtue of a provision of the collective

106

Orthodox Constitutional Theory

agreement between the school division and the Manitoba Teachers' Society. According to Craton, such a provision was invalid because it violated section 6(1) of the Human Rights Act. The Winnipeg School Division claimed that the provision was valid because it was based upon section 50 of the Public Schools Act, which was an exception to the Human Rights Act since it was both a more specific and a later enactment. The Supreme Court rejected that argument on the ground that the Public Schools Act of 1980 was a consolidation of the Public Schools Act of 1964. Because a consolidated provision cannot be regarded as a provision enacted after the intermediate section 6(1) of the Human Rights Act, it cannot repeal it by implication.269 Consequently, section 50 of the Public Schools Act could not be viewed as an exception to section 6(1). However, the court mentioned another reason, apparently conceived as autonomous, leading to the same conclusion. Mr Justice Mclntyre introduced the argument as follows: "In any event, I am in agreement with Monnin C.J.M." whose opinion "is in accordance with the views expressed by Lamer J. in Insurance Corporation of British Columbian. Heerspink."2^0 Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims. In this case it cannot be said that s. 50 of the 1980 consolidation is a sufficiently express indication of a legislative intent to create an exception to the provisions of s. 6(1) of The Human Rights Act.*71

The principles that can be drawn from that passage have been reaffirmed several times by the Supreme Court.2"72 It thus appears to be established in Canadian constitutional law that there are ordinary enactments of a special nature because of the importance of the values they uphold. With respect to these laws, the implied repeal doctrine is not applicable. A special nature enactment must have primacy over any other inconsistent ordinary legislation unless this other legislation provides for the contrary in clear and express language. The inconsistency These judicial decisions are inconsistent with the orthodox doctrine of parliamentary sovereignty. First, a special nature enactment does not

107 The Sovereignty of Parliament

expressly provide that it should prevail over all other ordinary laws unless these other laws indicate in clear and express language that they are intended to be applied notwithstanding the special nature legislation. Thus, the Supreme Court decisons were based neither upon the words of the legislation nor upon a clear intention of the legislature. It is not sufficient for the court to say that "the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are ... more important than all others,"273 for even assuming that that were true it would not follow that that law was intended to prevail over all other laws.274 Moreover, as Dicey maintained, even if "the electors can in the long run always enforce their will ... the courts will take no notice of the will of the electors. The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament."275 Because the Canadian constitution does not formally provide for the recognition of such special nature legislation, it follows that the court has taken upon itself the authority to recognize the primacy of certain legislation. Such an initiative is inconsistent with the doctrine of the sovereignty of Parliament. It assumes that the courts have the power to determine among all ordinary laws which ones are substantively more important than all others and which ones actually promote the most important values. It assumes that the judges have the right and the power to organize all laws into a hierarchy according to their relative substantive importance. Such a hierarchical order cannot be construed except in accordance with a set of moral principles and standards which are not legal (at least, according to legal positivism). Secondly, in all the cases where special nature legislation prevails over a law enacted after it, the court does not apply the latter in accordance with the intention (reasonably inferred from the act) of the Parliament that enacted it. Insofar as an act is construed in accordance with a former special nature enactment, the courts violate the antecedent rules as to the interpretation of an act of Parliament. Thirdly, the court has imposed a condition of form on all Parliaments whose intention is to override or set aside the special nature legislation, namely the requirement of clear and express language. To that extent, the court has imposed an unwritten requirement similar in principle to that of section 2 of the Canadian Bill of Rights. The consistency thesis

As far as I know, no orthodox scholar has ever attempted to reconcile the principles underlying Heerspink and Craton with the doctrine of parliamentary sovereignty. H. Brun and G. Tremblay have argued that "manifestement, une approche de ce type ne porte pas atteinte a

108 Orthodox Constitutional Theory

la souverainete parlementaire."276 By contrast, Dale Gibson has said that "the Supreme Court has broken another mold."277 Although "neither the doctrinal basis of this ruling nor the full extent of its operation is altogether clear, it may be viewed as a judicially created 'manner and form' requiring an express statutory 'opt-out' before legislation concerning fundamental rights can be restricted by subsequent amendment, or it may simply be treated as a special principle of statutory interpretation."278 Gibson's views directly flow from the consistency thesis discussed above with respect to the Drybones case. To that extent, the same conclusions apply here. They would, in fact, be weightier because the source of the rule is neither a parliamentary act nor the written constitution.279 Yet two other theses must be considered. First, one might argue that special nature legislation is not only special but specific with respect to rights and freedoms. Consequently, the maxim generalia specialibus non derogant always applies against all other inconsistent laws conceived as more general. Unfortunately, such a thesis is unacceptable. The rule providing that "it is prohibited to discriminate on account of age" is obviously more general than the rule providing that "the members of a teacher's union shall retire at the age of sixty-five." Equally, the rule prescribing that "no person shall deny to any person ... any service ... unless reasonable cause exists for such denial" cannot be regarded as more specific than the rule providing that "an insurer may terminate a contract provided that it gives to the insured fifteen days' notice of termination."280 Indeed, the Supreme Court has not justified its decisions on the basis of such play on words. Secondly, one might follow the United Kingdom Court of Appeal's decision in Macarthys Ltd v. Smith.281 In that case, the court discussed the effect of sections 2(1) and 2 (4) of the European Communities Act 1972 upon all other United Kingdom legislation enacted both before and after 1972. The purpose of section 2(1) was to incorporate into English law European Community (EC) law deriving from the Treaty of Rome which provided, among others things, that European law must prevail over inconsistent national law. Section 2 (4) provides that any United Kingdom legislation enacted for the purpose of implementing EC obligations "shall be construed and have effect" subject to EC law. The European Communities Act 1972 does not expressly provide that it has primacy over subsequent inconsistent United Kingdom legislation. Macarthys had hired a woman to fill a position previously held by a man who was paid at higher rate. For the woman, the employer's decision to employ her at a lower rate of pay violated section i (2) (a) (i) of the Equal Pay Act 1970 as re-enacted by section 8 of the Sex Discrimi-

i og The Sovereignty of Parliament

nation Act 1975. The Court of Appeal was split on the interpretation to be given to the relevant provisions. According to Lord Denning, section i ( 2 ) ( a ) ( i ) of the Equal Pay Act 1970 was ambiguous because it did not clearly say whether a woman holding a position subsequently to a man was entitled to receive the same rate of pay as the man had received. However, section 119 of the Treaty of Rome enunciating the broad general principle of equal pay for equal work could be interpreted as applying to women who are employed on like work in succession to a man. According to sections 2(1) and 2(4) of the European Communities Act 1972, Lord Denning said, "we are entitled and I think bound to look at art. 119 of the EEC Treaty because it is directly applicable here ... We should, I think, look to see what those provisions require about equal pay for men and women. Then we should look at our own legislation on the point, giving it, of course, full faith and credit, assuming that it does fully comply with the obligations under the Treaty. In construing our statute, we are entitled to look to the Treaty as an aid to its construction."282 Consequently, section i (2) (a) (i) of the Equal Pay Act 1970 should be interpreted in accordance with section 119 of the Treaty of Rome. For the majority of the Court of Appeal judges, section i(2)(a)(i) was clearly confined to the protection of men and women who worked on like work at the same time. Nevertheless, they considered it their duty to comply with section 119 of the Treaty of Rome. Lord Justice Lawton said: "We cannot... ignore art. 119 and apply what I consider to be the plain meaning of the Act. The problem of implementation of art. 119 is not one for the EEC Commission to take up with the government of the United Kingdom and Northern Ireland ... Article 119 gives rise to individual rights which our courts must protect."283 However, since they regarded section 119 as ambiguous as to whether it was confined to situations in which men and women work at the same time, they referred the case to the European Court of Justice and the issue of primacy with respect to irreconcilable conflict between a United Kingdom law enacted after 1972 and EC law remained open. However, Lord Denning said (obiter) that EC law may be used "not only as an aid but as an overriding force"284: "If on close investigation it should appear that our legislation is deficient or is inconsistent with Community law by some oversight of our draftsmen then it is our bounden duty to give priority to Community law."285 But there was a caveat: "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament."286

no

Orthodox Constitutional Theory

The majority of the Court of Appeal seemed to agree with Denning because, when the case returned to the Court of Appeal, the three judges agreed on the following passage in Denning's judgment: "It is important now to declare - and it must be made plain - that the provisions of article 119 of the EEC Treaty take priority over anything in our English statute on equal pay which is inconsistent with article 119. That priority is given by our own law. It is given by the European Communities Act 1972 itself. Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it."28>7 The effect of that decision would impose a requirement of form on post-1972 Parliaments the intention of which is to enact a law inconsistent with EC law.288 The important issue is thus whether this position is consistent with the doctrine of parliamentary sovereignty. One answer may be drawn from the opinion of Lord Justice Lawton: "I can see nothing in this case which infringes the sovereignty of Parliament ... Parliament's recognition of European Community law and of the jurisdiction of the European Court of Justice by one enactment can be withdrawn by another."289 However, as we saw in our discussion about "quasi-constitutional laws," that assertion is untenable. If post-1972 Parliaments cannot repeal the European Communities Act 1972 in accordance with the ordinary legislative process, they are bound by a requirement of form amounting to a special legislative process.290 Another answer may be drawn from Lord Denning, who assumed that Parliament, "whenever it passes legislation, intends to fulfil its obligations under the Treaty."291 He said that "in point of fact ... the United Kingdom has passed legislation with the intention of giving effect to the principle of equal pay ... No doubt the Parliament of the United Kingdom thinks that it has fulfilled its obligations under the Treaty."292 That second argument is more interesting, for it is reasonable to maintain that the purpose of the Equal Pay Act 1970, as amended by the Sex Discrimination Act 1975, was to implement a EC obligation with respect to the principle of equal pay regardless of gender. It would then follow that the purpose of the 1975 act was the execution of an obligation resulting from EC law as incorporated into English law by the European Communities Act 1972. To that extent, the court's decision did not infringe upon the doctrine of parliamentary sovereignty; it upheld it. Indeed, that argument would not be acceptable if the court decided to declare inoperative a post-197 2 Act clearly inconsistent with EC law.293 Denning's assumption, although appealing in the United Kingdom, does not fit Canadian special nature enactments. In Heerspink and

in

The Sovereignty of Parliament

Craton, the laws regarded as inconsistent with special nature enactments were not intended to implement various obligations deriving from the latter. On the contrary, the purpose of these laws was determined independently of the special nature legislation. It might even be claimed that, in the case of such laws, the very purpose was to limit what the special nature legislation sought to protect (for example, a right or a liberty). Consequently, the judicial decisions with respect to special nature laws were not meant to uphold the legislative intention. THE P R E S U M P T I O N S OF INTENT

A presumption of intent is a reasoning by which the judges suppose that, when the legislature enacts a law, it intends to conform to a cer tain number of standards, norms, principles, or rules deemed as relevant to guide the process of statutory interpretation. Insofar as the paramount rule of interpretation is to ascertain the intention of the legislature, several presumptions of intent are logically required. First, some of these presumptions frame the basic postulates without which the process of interpretation would be circular and contradictory.294 For example, if the intention of Parliament is seen as a matter of applying the literal and grammatical meaning of the words enacted, the judges must logically presume that Parliament had the intention of expressing its will through ordinary language. One must equally presume that Parliament knows the ordinary language, that it means what it says, that it does not speak in vain, and so on. Secondly, some of the presumptions of intent allow the more or less automatic elimination of various difficulties that may appear in the process of interpretation. For example, whenever a provision admits of two interpretations, one of which would be ineffective (or absurd, or totally unreasonable, or totally inconsistent with the rest of the act), the court may presume that the intention of Parliament corresponds to the meaning which gives effect to the act (or avoids the absurd, the totally unreasonable, or the totally inconsistent meaning). If an enactment can receive more than one single interpretation, the judge may presume that the act is coherent and logical. Let us call these presumptions the set of formal presumptions of intent.295 Thirdly, when the set of formal presumptions do not eliminate the difficulties, that is, when an act possesses serious ambiguities or where there is a real doubt as to the intention of Parliament, the judges are guided by presumptions of intention of another kind.296 They presume that Parliament intended to act in accordance with a set of basic substantive political and moral principles or standards accepted as relevant by the judiciary and referred to as principles derived from public

112 Orthodox Constitutional Theory

and legal policy or from the "spirit or reason"297 of the law. Some of these principles correspond to various common law maxims.298 Let us call these presumptions the set of substantive presumptions. Insofar as these presumptions are used as a guide to find the real legislative intention, the process of interpretation may be regarded as proceeding from the rule of the sovereignty of Parliament and, to that extent, I shall assume that they may be legitimately appealed to by the courts. The problem, however, is that often the courts appeal to the substantive presumptions, not to ascertain and apply the parliamentary intention, but to uphold and to secure the principles attached to them. In these cases, the courts generally strictly construe the meaning of the legislative words so as to reconcile them with political and moral principles. Moreover, the courts seem to require that a legislature which intends to act contrary to these principles must state this intention in the enactment in clear and express terms. This is what H.M. Hart and A.M. Sacks have called the "policy of clear statement."2" In this section, I analyse three paradigmatic cases. However, many other Canadian cases could illustrate the foregoing propositions. Some judicial decisions

In Boucher v. The King,3°° the Supreme Court of Canada had to construe the phrase "seditious intention" used in section 133 and section i3ga of the Criminal Code: 133

(i) Seditious words are words expressive of a seditious intention. (2) A seditious libel is a libel expressive of a seditious intention.

(4) Without limiting the generality of the meaning of the expression "seditious intention" everyone shall be presumed to have a seditious intention who publishes, or circulates any writing, printing or document in which it is advocated, or who teaches or advocates, the use, without the authority of law, offeree, as a means of accomplishing any governmental change within Canada. 133A No one shall be deemed to have a seditious intention only because he intends in good faith,

(b) to point out errors or defects in the government ... of any province ... or in any legislature, or in the administration of justice ...; or

113 The Sovereignty of Parliament (c) to point out, in order to their removal, matters which are producing or have a tendency to produce feelings of hatred and ill-will between different classes of His Majesty's subjects.301

In 1946 Aime Boucher, a member of the Jehovah Witnesses, published and distributed copies of a pamphlet entitled "Quebec's burning hate for God and Christ and freedom is the shame of all Canada." The pamphlet described various acts of repression against the Jehovah's Witnesses in the province of Quebec and affirmed that they were caused by the fact that Quebec was a society dominated by Catholic priests.302 Boucher was charged with sedition and convicted by a jury of having published a seditious libel contrary to section 133 of the Canadian Criminal Code. The majority of the Canadian Supreme Court judges held that the concept of "seditious intention" required an intent to incite the people to violence against the government or an intent to disturb such established authority by force or to create disorder for such purpose. A mere intention to bring the administration of justice or the government into hatred or contempt was not seditious. The opinion of Mr Justice Rand in this case has been generally taken as the most important.303 Rand first recognized that the crime of seditious libel was "well known to the Common Law"3°4 and that it had been "thoroughly examined" by J.F. Stephen, W. Holdsworth, and other scholars. The traditional definition had at least three components relevant to this case:3°5 to bring into hatred or contempt, or to excite disaffection against the administration of justice; to raise discontent or disaffection amongst His Majesty's subjects; and to promote feelings of ill will and hostility between different classes of such subjects. However, Rand argued that such a definition, based upon a conception of government that had been modified in the nineteenth century, was now unacceptable. Up to the end of the i8th century it was, in essence, a contempt in words of political authority or the actions of authority. If we conceive of the governors of society as superior beings, exercising a divine mandate, by whom laws, institutions and administrations are given to men to be obeyed, who are, in short, beyond criticism, reflection or censure upon them or what they do implies either an equality with them or an accountability by them, both equally offensive. In that lay sedition by words and the libel was its written form. But constitutional conceptions of a different order making rapid progress in the igth century have necessitated a modification of the legal view of public criticism; and the administrators of what we call democratic government have come to be looked upon as servants, bound to carry out their duties accountably to the public.306

114 Orthodox Constitutional Theory

The characteristics and conditions of a democracy are basically incompatible with the common law definition of seditious intention. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality ... Controversial fury is aroused constantly by differences in abstract conceptions; heresy in some fields is again a mortal sin; there can be fanatical puritanism in ideas as well as in mortals; but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability. Similarly in discontent, affection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and, as we believe, in the search for the constitution and truth of things generally.307

The concept of seditious intention should therefore be interpreted narrowly. "The basic nature of the Common Law lies in its flexible process of traditional reasoning upon significant social and political matter."308 Thus, what a seditious intention "must in the present day be taken to signify is the use of language which, by inflaming the minds of people into hatred, ill will, discontent, disaffection, is intended, or is so likely to do so as to be deemed to be intended, to disorder community life, but directly or indirectly in relation to government in the broadest sense."309 The majority of the court was in line with Rand's conclusion. Mr Justice Locke argued that the authorities justifying the broad definition formulated by Stephen "have not been closely examined" and, particularly, that it had not been considered whether or not "in view of the alteration of the respective functions of the Sovereign and the elected representatives of the people since the days preceding the passing of the Bill of Rights in 1688, the old authorities are to be accepted as now binding."310 After having analysed the authorities related to the protection of the administration of justice, he said: "Assuming Coke's statement accurately declared the common law of England at that time, the reason which formed its basis has disappeared with the changed status of the judges and the manner in which they are chosen and appointed and this is, in my opinion, no longer the law either in England or Canada: cessante ratione legis cessat ipsa fex"311 Accordingly, "the existence of this right of public discussion is wholly inconsistent with a rule of law that judges or others administering justice or Ministers of the Crown, are immune from criticism on the ground that

115 The Sovereignty of Parliament

to impugn their honesty or capacity is a reflection upon the government."312 It should be noted that two of judges in the majority reached the same conclusion on the basis of modern authorities. According to Mr Justice Kellock, Stephen's own view on his definition of seditious intention, correctly interpreted, implied "an intention to incitement to violence," and a correct interpretation of the authorities implied that "incitement to violence toward constituted authority, i.e. government in the broad sense, or resistance having the same object," was a necessary ingredient of the intention.313 In Roncarelliv. Duplessis,^4 the Supreme Court of Canada had to determine whether section 35(2) of Quebec's Act Respecting Alcoholic Liquor providing that "the Commission may cancel any permit at its discretion" conferred on the commission an "absolute" discretionary power to cancel any liquor permit.315 The act created a commission responsible for the administration and exploitation of the provincial monopoly of the sale and distribution of alcoholic beverages in the province. The commission had only one member. Section 9 empowered the commission to "grant, refuse or cancel permits for the sale of alcoholic liquors." Certain sections provided various conditions under which the commission had the duty to either grant, refuse, or cancel a permit. Other sections provided no standards on which the commission could base its decision. That was the case in section 34(1), which provided that the commission "may refuse to grant any permit," and in section 35(2). The facts are well known. The premier and attorney general of the province of Quebec had ordered the manager of the Quebec Liquor Commission to cancel Roncarelli's licence to sell alcoholic beverages in his restaurant in accordance with section 35(2) on the ground that the appellant, who was a Jehovah's Witness, used the profit gained from the sale of liquor to finance that religious sect, regarded as subversive, and to provide bail money for its members. The majority of the court concluded that section 35(2) did not confer upon the commission such absolute discretion. It held that any cancellation of a liquor permit must be based upon reasons relevant or related to the sale of liquor. Since the cancellation was based upon the fact that Roncarelli was a Jehovah's Witness and not on a reason related to the sale of liquor, the decision had not been made in accordance with the law. Again, the opinion of Mr Justice Rand has generally been accepted as the most important.316 I must quote the relevant passage at length: The field of licensed occupations and businesses of this nature is steadily becoming of greater concern to citizens generally. It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and

n6 Orthodox Constitutional Theory legitimate, should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute: the duty of a Commission is to serve those purposes and those only. A decision to deny or cancel such a privilege lies within the "discretion" of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration. In public regulation of this sort there is no such thing as absolute and untrammelled "discretion," that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. "Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislature cannot be so distorted. To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred. There was here not only revocation of the existing permit but a declaration of a future, definite disqualification of the appellant to obtain one; it was to be "forever." This purports to divest his citizenship status of its incident of membership in the class of those of the public to whom such a privilege could be extended. Under the statutory language here, that is not competent to the commission and -A fortiori to the government or the respondent.317 In Colet v. The Queen,^18 the Supreme Court had to determine whether a mandate issued in accordance with section 105(1) of the Criminal Code of Canada, which provided that in certain circumstances the court may issue a warrant authorizing the seizure of any firearm, offensive weapon, ammunition, or explosive substance, implied the power to authorize the entrance and the search for the objects to be seized. The city council of Prince Rupert instructed the employees of its public works department that Colet's shelter must be "cleaned up" and totally destroyed. Colet said that he would not permit any of the employees to enter onto his property and that he would defend it by all possible means. The RCMP, fearing that Colet might use firearms or other offensive weapons to achieve his end, applied for a warrant under section 105 ( i ) . A warrant was issued and some members of the

117 The Sovereignty of Parliament

RCMP went to Colet's property in order to seize the weapons. Colet resisted on the ground that the police officers had no authority to search for these weapons. He climbed on the roof of his shelter, threw gasoline at the policemen, and tried to ignite it. Finally, Colet was arrested and charged with five counts, including two counts of attempted murder and two counts of intending to cause bodily harm. The Supreme Court unanimously held that since the warrant and section 105(1) authorizing the seizure did not specifically carry with them the right to enter and search,^1^ "the police officers were acting without authority in attempting to enter and search the appellant's property and they were therefore trespassers."320 The court dealt with two arguments. First, it was contended that a law enacted in the public interest must entail a limitation on the common law principle enunciated in Semayne's case321 - that "the house of every one is to him as his castle and fortress" - so as to justify a trespass in certain circumstances. The argument was supported by the unanimous Supreme Court decision in Eccles v. Bourque^22 in which three police officers had entered the appartment of Eccles to apprehend a third party against whom they had three warrants of arrest. Since the Criminal Code did not authorize the tresspass, the court had to determine whether it was justified on common law principles. The court's answer was affirmative: "There are occasions when the interest of a private individual in the security of his house must yield to the public interest ... [therefore] the broad basic principle of sanctity of the home is subject to the exception that upon proper demand the officials of the King may break down doors to arrest."323 Yet, in Colet, the Supreme Court refused to accept the argument. First, it was clear that Eccles's case was confined to a trespass carried out by police officers "in search of a fugitive from justice whose arrest they consider to be justified."324 Secondly, the court should not create exceptions to the basic common law principle whenever the "public interest" is involved. As Justice Ritchie explained: "All sections of the Criminal Code are presumably enacted in the 'public interest' and it would in my view be dangerous indeed to hold that the private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by police officers whenever they can be said to be acting in the furtherance of the enforcement of any section of the Criminal Code although they are not armed with express authority to justify their actions."325 The second contention was based upon section 26(2) of the federal Interpretation Act providing that any statutory power given to someone to do or to enforce something shall include all such powers which are necessary to do or to enforce it. It was argued that a power to seize

118 Orthodox Constitutional Theory

must be interpreted as including the powers to search and to enter since these two powers were necessary to execute the seizure. The court, through Justice Ritchie, refuted that argument for the following reasons: Any statutory provision authorizing police officers to invade the property of others without invitation or permission would be an encroachment on the common law rights of the property owner and in case of any ambiguity would be subject to a strict construction in favor of the common law rights of the owner ... It appears to me to follow than any provision authorizing police officers to search and enter private property must be phrased in express terms and the provisions of the Interpretation Act are not to be considered as clothing police officers by implication with authority to search when s. 105(1) and the warrant issued pursuant thereto are limited to seizure.326

This proposition was confirmed by the fact that, "when Parliament sought to include the right to search in providing for the authority to seize, it did so in specific terms."327 Consequently, "if Parliament intended to include the power 'to search' in the provisions of s. 105(1), the failure to do so was a clear case of legislative oversight, but that power which has not been expressly conferred cannot be supplied by invoking the provisions of the Interpretation Act."$2^ The inconsistency

In the three foregoing cases, as in many others, the court appealed to various principles attached to presumptions, and it did so less to ascertain the intention of Parliament or to resolve various ambiguities or uncertainties than to control the intended consequences. That assertion is by no means new. In 1938 John Willis wrote: In origin the presumptions were, as the name indicates, canons of legislative intent ... If, in 1937, a court resorts to these old presumptions, it is doing something very diffferent from attempting to ascertain the probable intention of the legislature, it is flying in the face of the legislature. Only one conclusion can be drawn from the present judicial addiction to the ancient presumptions and that is that the presumptions have no longer anything to do with the intent of the legislature; they are a means of controlling that intent. Together they form a sort of common law "Bill of Rights."329

However, the impact of such controls upon the doctrine of parliamentary sovereignty has never been seriously taken into account.

119 The Sovereignty of Parliament

According to the orthodox view, a statutory text is ambiguous or imprecise when, in a particular context, the rules for the determination of the intention of the legislature with respect to that text cannot reasonably ascertain it. Thus, not only the words, the sentences, or the whole text of the statute must be imprecise but the court must be unable reasonably to determine the purpose of the enactment. It is not enough for a text to be capable of conveying more than one meaning (indeed, any text could be ambiguous). It must be capable of conveying more than one meaning from one valid point of view, that is, the legislative intention! It is therefore a very qualified ambiguity or uncertainty. That is why a legitimate appeal to the substantive presumptions presupposes real ambiguity or substantial doubt. Indeed, if the legislative intent is reasonably clear, the courts must abide by it independently of its anticipated consequences.330 Any other attitude would amount to a form of judicial review of the legislative intent, that is, of parliamentary enactments. What seems to be unjust or undesirable may be exactly what Parliament intended. None of the legislative provisions dealt with in the cases discussed above possessed the degree of ambiguity or uncertainty required to make legitimate an appeal to the substantive presumptions. In Boucher1?, case, the contention that the concept of seditious intention was ambiguous or imprecise on the ground that the Criminal Code did not provide any specific definition of it overlooked both the text and the historical legal context in which sections 133 and 133A of the code were enacted. It is generally accepted that a literal and grammatical interpretation of a word or of a provision must proceed within the broader context of the act in which they are expressed.331 The rule, which is also an "ordinary principle of language,"332 is often taken to mean that the act must be viewed as a whole and the words or phrase to be interpreted as a part of it.333 Of course, one possible consequence of that method is to give a narrow interpretation to general words or phrases which, if read in the abstract, would have a broader meaning. However, where such a narrow interpretation is not intended, Parliament may introduce in the act a formula providing that such and such provisions are not meant to restrict the generality of those terms that could otherwise be interpreted narrowly. In Bouchers case, as instanced by Chief Justice Rinfret, it could reasonably have been claimed that Parliament had taken exactly that action. First, Rinfret argued that section 133(4) provided "some indication of the legislator's mind."334 Although it was an amendment added to section 133 in 1936 creating a presumption of seditious intention, it was expressly qualified by the clause "without limiting the

12o Orthodox Constitutional Theory

generality of the meaning of the expression 'seditious intention.'" This indicated that advocating force was not the only instance in which an accused could be found guilty of a seditious intention.335 Secondly, in order to delimit the scope of what should be included in seditious intention, Rinfret looked at section i33a, introduced in 1930, and argued that it also "undoubtedly contains some indication of the legislator's view."336 Section i33a referred specifically to various individual actions "intended" in "good faith" which should not be deemed as revealing a seditious intention. Among these, paragraph (c) referred to good-faith actions that were intended to point out, and thus effect the "removal" of, various "matters" which produce or have a tendency to produce feelings of hatred and ill will between different classes of His Majesty's subjects. Therefore, a contrario, "if you have a matter which is producing, or has a tendency to produce feelings of hatred and ill-will between different classes of His Majesty's subjects, a jury would be justified in finding that a man, under Canadian jurisdiction, ought to be found guilty of seditious libel, unless the jury comes to the conclusion that the man in question pointed out these matters 'in order to their removal' and that he did so 'in good faith.'" 337 From the perspective of orthodox constitutional theory, that opinion was beyond reproach. The paramount guiding point of view in the process of interpretation was the intention of Parliament. Similarly, the legislative intent was reasonably clear if one was to determine it in accordance with the pre-statutory state of law. According to orthodox theory, the courts can presume that the legislature knew the existing state of the law and, unless it clearly manifested a contrary intent, that it intended not to change it. That presumption of intent may take various forms. First, it is assumed that any ambiguity within a law of codification is intended to be resolved in accordance with pre-existing law.338 Secondly, it is presumed that a consolidated statute merely reformulates the existing law and does not change its substance.339 All interpretive difficulties must be resolved according to antecedent legislation.340 Thirdly, it is presumed that an act of Parliament is not meant to alter existing law beyond what is clearly intended.341 Fourthly, if a word, a provision, or a phrase has already been interpreted by the courts before its enactment, it is presumed that Parliament intended that word, provision, or phrase to be interpreted in accordance with its previous meaning. Fifthly, as P.A. Cote explains, "when the enactment is inspired by foreign legislation, the courts can assume that in most cases, Parliament was aware of the interpretation given by foreign courts."342 In Bouchers, case, these guideslines converged. The Canadian Criminal Code, enacted in 1892, was a codification of the existing common

121 The Sovereignty of Parliament

law and Canadian statutory law.343 Moreover, it was consolidated in 1906 and in 1927. Insofar as the concept of "seditious intention" was relatively well defined in Canadian law before 1892, section 133 of the Canadian Criminal Code should have reflected that meaning. By the year 1892, the crime of sedition was well known in common law. In particular, the definition of seditious intention propounded by Sir James Stephen in the Digest of the Criminal LauP44 had gained a preeminent authority both in England and in Canada. In 1878 the commissionners who drafted the English Draft Code on Criminal Law accepted Stephen's definition and described it as "as accurate a statement of the existing law as we can make."345 In 1886, in R. v. Burns,^ Mr Justice Cave approved Stephen's definition.347 In 1892 it was clear that the Canadian Criminal Code was intented to emulate the English Draft Code, Stephen's Digest of the Criminal Law (ed. 1887), Burbidge's Digest of the Canadian Criminal Law (ed. 1889), and Canadian statutory law.348 Leaving aside the issue of admissibility of the extrinsic materials, the attorney general who introduced the bill on its second reading said that "substantially it follows the existing law."349 Accordingly, the Canadian Criminal Code was introduced into Parliament for enactment with a provision defining the words "seditious intentions" in terms similar to Stephen's definition. That provision was ultimately not enacted but that does not mean that Parliament found it too repressive; it might just have found it unnecessary. The sections relating to the crime of sedition have been amended from time to time by the federal Parliament. Section i33a was added in 1930 and section 133(4) in 1936. However, section 133(2) remained unchanged until 1946, despite the amendment and consolidation in 1906 and 1927. Accordingly, the pre-existing state of the law has a strong persuasive weight regarding the meaning of "seditious intent" as intended by Parliament. Mr Justice Cartwright appears to have argued along those lines. After analysing a certain number of pre-existing textbooks and cases,350 he concluded that a seditious intention referred to "an intention to bring into hatred or contempt, or to excite disaffection against the administration of justice"351 qualified by a "good faith" exception.352 He confessed that, "strictly speaking," none of the authorities to which he made reference were binding upon the Supreme Court. However, "I do not think we should disturb a current of authority, which I can find no reported judgment, unless we are clearly of the opinion that such authority was wrong in principle. Far from entertaining any such view, it appears to me that it is right in principle."353 Nothing in the provisions of the Criminal Code could be interpreted so as to negate that view.354 On the contrary, the text appeared to support his view. Following Chief Justice Rinfret's argument, the concept of seditious intention

122

Orthodox Constitutional Theory

was broader in scope than what was dealt with in section 133(4), section i33a had to be interpreted a contrario: "The wording of this proviso seems to indicate the view of Parliament that under some circumstances an attack on the administration of justice is to be regarded as seditious."355 I submit that Cartwright's general approach was consistent with the orthodox doctrine of the sovereignty of Parliament. The paramount guiding point of view was the legislative intention and, insofar as one tries to infer it from the pre-existing state of law, that intention was reasonably clear. In Roncarelli's case, one might have thought that the phrase "at its discretion" was ambiguous or imprecise because the Alcoholic Liquor Act provided no definition of it. However, that would have ignored the words expressed in the text itself. Of course, an interpretation of the word "discretion" merely based on the dictionary may have implied that the power of the commissioner was absolute with respect to licence. But there was more to it. A contextual interpretation of section 35 in the light of the other relevant sections would have led to the same conclusion. On behalf of two dissenting judges, Mr Justice Cartwright said: On a consideration of these sections and of the remainder of the Act I am unable to find the Legislature has, either expressly or by necessary implication, laid down any rules to guide the commission as to the circumstances under which it may refuse to grant a permit or may cancel a permit already granted. In my opinion the intention of the legislature, to be gathered from the whole Act, was to enumerate (i) certain cases in which the granting of a permit is forbidden, and (ii) certain cases in which the cancellation of a permit is mandatory, and, in all other cases to commit the decision as to whether a permit should be granted, refused, or cancelled to the unfettered discretion of the commission.^

Cartwright's reasoning was not a mechanical application of the dictionary's meaning. The judge analysed the text of section 35 in the light of the general context of the Act; he did not limit his inquiry to section 35 itself. He wondered whether or not the legislature either "expressly" or by "necessary implication" provided the commission with standards in section 35. That was consistent with the principle of parliamentary sovereignty. Finally, in Colet's case, one might have thought that section 105(1) of the Criminal Code was ambiguous or imprecise as to the question of whether or not the power to seize the goods included the power to enter and to search. It is true that, according to a literal approach to the interpretation of section 105(1) of the Criminal Code, the power to seize the arms must means a power to seize and not a power to enter

123 The Sovereignty of Parliament and to search.357 However, if one accepts the validity of the literal method for the interpretation of statutes, section 26(2) of the Interpretation Act should be broadly construed because "all necessary powers" would mean "all necessary powers." In any event, according to the orthodox theory, if a provision admits of two meanings, the court must decide in favour of the meaning that best fulfils the statutory purpose. If such purpose is hard to determine but one of the two meanings produces an absurd effect, the court must choose the other.358 In Colefs case, these two rules, whether applied jointly or not, would have led to one parliamentary intention. According to the unanimous Court of Appeal of British Columbia, "the purpose of s. 105(1) is to promote the safety of the individual, or, to put it another way, to prevent possible harm or injury from improper, or negligent, use of any of the items which are mentioned. It is legislation in the public interest. The interest is paramount; the rights of the individual are secondary. Surely, then, the right to seize any of the things mentioned in the subsection must include the right to search for any of these things. If not, the subs should be viewed as necessary in order to uphold the purpose of the act and not to frustrate the intention of Parliament: "In order to give effect to the intent of s. 105 ( i ) we should hold that authority to seize an offensive weapon (or any other article referred to in the subsection) includes the right to search for the article and includes the right to enter on a person's property to make the search."360 From the point of view of the orthodox doctrine of sovereignty of Parliament, the decision of the court of Appeal was basically correct. One might object that my discussion thus far has been misleading because, although 133(2) of the Criminal Code, section 35 of the Alcoholic Liquor Act, section 105 of the Criminal Code, and section 26(2) of the Interpretation Act may be regarded as reasonably clear, the majority of the court considered them as "really" ambiguous provisions and their conclusion was reasonable in the circumstances. I cannot agree. However, if we assume that the majority of the court did regard these sections as "really" ambiguous, it is important to understand what reasons brought the court to its conclusion since these reasons had nothing to do with the intention of Parliament and everything to do with the consequences of such intention. If the court had applied the acts in accordance with the legislative intent as inferred from the text and the legal context, the acts (and, consequently, the judicial decisions) would have produced undesirable consequences upon particular social institutions such as democracy, commerce, property, and so on and/or worked counter to a set of moral and political principles upholding positive values such as freedom of religion, freedom of

124 Orthodox Constitutional Theory

expression, the right to equality, and the right to property. (These principles were recognized independently of the act itself or of any other legislative enactment.) It was not a matter of first concluding that the acts were ambiguous and then looking at the consequences in order to infer what might have been the most reasonable intent taking everything into consideration. It was a matter of first concluding that the acts, if interpreted in accordance with the legislative intention as inferred from the text and the context, would produce undesirable consequences and then concluding that the acts were ambiguous. Since the purpose of the process of statutory interpretation was not so much to determine the intention of Parliament as to control it, that process was inconsistent with the orthodox doctrine of parliamentary sovereignty. In Boucher's case, for example, Mr Justice Rand re-examined the whole area of sedition law in the light of its impact upon freedom of expression, which was conceived both as a corollary of the institution of a free and democratic society and as a good in its own right.361 Similarly, in Roncarelli's case, Rand's reasoning was not a process of interpretation through which he sought to determine the legislative intent. Indeed, it would be begging the question to maintain that Rand applied a purposive method because he held that the discretion conferred should be limited to the purposes of the act. The issue in Roncarelli was exactly to determine whether or not the discretion conferred in section 35(2) of the Alcoholic Liquor Act was intended by Parliament to be strictly limited to the purposes of the act. A purposive interpretation of section 35(2) should have taken into consideration not only the object of the act as a regulation of the sale of liquor but also the purpose of section 35(2) itself read in the light of the whole chapter dealing with the powers of the commission. Instead, Rand postulated the relevance of the principle of administrative law according to which "in public regulation of this sort there is no such thing as absolute and untrammelled 'discretion,'"362 even if according to orthodox theory a Parliament may confer upon an authority just such an absolute and untrammelled discretion. He insisted that "no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose."363 Accordingly, a reasonably clear intention to delegate such an absolute power would not be recognized by the court unless laid down in express terms! That amounted to a postulate. Rand was concerned indeed with the impact of section 35(2), if it were to receive a broad interpretation, upon the freedom of commerce and upon the integrity of the institution of commerce. He insisted upon the fact that, "in the absence of regulation," commercial activity "would be free and legiti-

125 The Sovereignty of Parliament mate."364 Moreover, a broad interpretation of that section would have undesirable consequences upon the principle of equality. It would allow the commission to make distinctions between two citizens or classes of citizens on arbitrary grounds such as the province where one was born, the religion one adheres to, or the religion of those for whom one otherwise has a right to stand bail. That would bring about undesirable consequences upon an "unchallengeable right" (the right to put up bail money or to practise a religion) and upon the status of citizenship. These concerns were not devices to clarify an ambiguous provision; they were the very considerations upon which he pleaded an ambiguity justifying a strict construction of the act. Equally, in Colet's case, the court was less concerned with the issue of determining the legislative intent than with the fact that a broad interpretation would produce undesirable consequences upon the institution of and the right to property. The very formulation of the question by the Supreme Court of Canada was significant: "This appeal raises the all important question of whether the property rights of the individual can be invaded otherwise than with specific statutory authority." $65 Accordingly, the court strictly construed both section 105(1) and section 26(2) of the Interpretation Act. That latter aspect of the judgment is puzzling. Although the Interpretation Act cannot be conceived of as a binding antecedent rule as to what the intention of Parliament is in a given case, it may be seen, if not as a matter of common sense, as a parliamentary declaration of legislative intention which can be recognized by the courts.366 In that act, Parliament says, "If you have any doubt about the scope of the authority I have conferred upon somebody in a particular Act, assume that I have conferred all the powers that are necessary to execute its basic power." Obviously, the court did not like the consequences of such an intention: "The provisions of the Interpretation Act are not to be considered as clothing police officers by implication with authority to search."367 Such a "consequentialist" approach is inconsistent with the orthodox doctrine of parliamentary sovereignty in another way. In all three cases, the judges have necessarily evaluated the moral value and the moral worth of the consequences produced by the various possible interpretations in the light of basic moral and political principles. The search for an interpretation in accordance with the legislative intent was but one such substantive consideration accepted by the court. The court assessed what the law ought to be with respect to the desirability, the wisdom, the merits, and the appropriateness of the acts and of their underlying policies. Moreover, because the legislative intent was not the fundamental and exclusive point of view for the interpretation of statutes, the court

126

Orthodox Constitutional Theory

could follow an evolutionary approach which allowed it to adapt legislation to important social and political changes. As a result, the rule according to which the legislative intent must correspond to the intent Parliament had at the time of enactment could be altered by the court.368 In Boucher, for example, that was obvious: "The basic nature of the Common Law lies in its flexible process of traditional reasoning upon significant social and political matter; and just as in the i7th century, the crime of seditious libel was a deduction from fundamental conceptions of government, the substitution of new conceptions, under the same principle of reasoning, called for new jural conclusions."369 Finally, that role for the substantive presumptions of intent had the effect of imposing a requirement of form on the legislature similar to that of special nature legislation. A Parliament that intends to override a set of political and moral principles must indicate that intention in clear and express terms. For the reasons given in the preceding discussion, such requirements of form are inconsistent with the orthodox doctrine of parliamentary sovereignty. The consistency thesis For most Canadian lawyers, judicial appeal to the presumptions of intention is "legitimate"370 and consistent with parliamentary sovereignty, for these presumptions help to ascertain the legislative intent.371 Although that may fit many Canadian cases, it does not suit many others. In Spooner Oils Ltd. v. Turner Valley Gaz Conservation Board,^2 Chief Justice Lyman Duff argued that the "express language" rule upholds the intention of parliament because of the existence of a parliamentary practice not impliedly to violate a certain number of principles, rights, and so on: A legislative enactment is not to be read as prejudicially affecting accrued rights, or "an existing status" (Main v. Stark (1890) 15 A.C. 384, 388), unless the language in which it is expressed requires such a construction. The rule is described by Coke as a "law of Parliament" (2 Inst. 292), meaning, no doubt that it is a rule based on the practice of Parliament; the underlying assumption being that, when Parliament intends prejudicially to affect such rights or such a status, it declares its intention expressly, unless, at all events, that intention is plainly manifested by unavoidable inference.373

Unfortunately, that argument hardly fits the Boucher, Roncarelli, or Colet cases, where the intention could be characterized as "plainly mani-

127 The Sovereignty of Parliament

fested by unavoidable inference." Moreover, the doctrine of the sovereignty of Parliament is not based upon a presumption that Parliament acts in the same manner as it used to do in the past. The doctrine requires the courts to find the intention of the actual Parliament. The practice of Parliament might be one element to take into consideration when the act is ambiguous. But, where the intention is reasonably ascertained, the requirement that the actual Parliament must indicate its intention in express terms on the ground that past Parliaments did act in such a manner would frustrate the intention of the present Parliament. To a certain extent, that would suggest that past Parliaments could implicitly bind their successors as to the form of their legislation. For the reasons already enunciated, that would not be consistent with the doctrine of the sovereignty of Parliament. One might argue that the decisions are consistent with the doctrine because most of the judicial decisions appealing to the substantive presumptions of intent deal with the scope of the powers of the executive and administrative branches and not those of Parliament (for example, Roncarelli and Colei). Unfortunately, this distinction between a matter of administrative law and a matter of constitutional law is mistaken. First, it does not explain all the cases (Boucher, for instance). Secondly, as the courts must interpret the scope of the statutory powers conferred on the executive or administrative body, the issue raises a fundamental question of constitutional law, namely, the relationship between judicial and legislative powers. Thirdly, insofar as the courts seek to control the intention of Parliament and impose a requirement of form, the issue cannot be viewed as a mere matter of administrative law. It directly calls into question- the doctrine of parliamentary sovereignty. THE LEGAL AND CONSTITUTIONAL CHARACTER OF THE P R I N C I P L E S

It is now necessary to go into two aspects involved in the foregoing judicial decisions: their relationship with the rule of law, arid the constitutional status of certain individual rights. The rule of law

If judicial decisions not to follow legislative intention were arbitrary, not only would they be inconsistent with the rule of the sovereignty of Parliament but they would be inconsistent with the very concept of the rule of law. But the process of adjudication is not arbitrary. Judges

128 Orthodox Constitutional Theory

justify their choices. They enunciate the reasons that argue in favour of one particular interpretation so as to persuade us that the meaning they give to the words is justified. They criticize the reasons that argue in other directions. To that extent, the process is basically rational. For example, in Drybones, the majority of the court said that to conceive of the Canadian Bill of Rights as a simple rule of interpretation would "strike at the very foundations" of that act and ignore "its apparent character as a statutory declaration of the fundamental human rights and freedoms which it recognizes."374 In Craton, the court said that "to adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to ... give scant protection to the rights it proclaims."375 In Boucher, various judges took into consideration the consequences of a broad interpretation of seditious intention upon freedom of expression.376 In Roncarelli, the court's decision was made with respect to freedom of commerce, freedom of religion, and the right to equality before the law.377 In Colet, the court refused to follow a purposive approach on the ground that it would "be dangerous indeed to hold that the private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by police officers whenever they can be said to be acting in the furtherance of the enforcement of any section of the Criminal Code."?*78 These considerations, among others, justifying the decision not to provide the act with the authors' intended meaning should be characterized as principles. A principle, as I use the term, is a valuable normative standard guiding and constraining a particular decision. A general reason for decision is a principle if its content or the consequences it is meant to produce, or both, are regarded as valuable by those who refer to it in the process of adjudication. As N. MacCormick has said, a principle is "a relatively general norm which from the point of view of the person who holds it as a principle, is regarded as a desirable general norm to adhere to, and which thus has explanatory and justificatory force in relation to particular decisions, or to particular rules for decisions."379 A principle, thus, should be distinguished from a "rule," strictly speaking. According to Ronald Dworkin, the two differ in the "character of the direction they give."380 Rules are applicable in an "all-or-nothing fashion." They are meant to apply as soon as the facts correspond to the conditions enunciated in the rules. On the contrary, a principle "states a reason that argues in one direction, but does not necessitate a particular decision" because for the same set of facts, other principles can argue in other directions. Where this is the case, a judge must take into consideration all the relevant principles.381 Principles are further distinguishable from rules by a "dimension of weight or importance": "When principles intersect ... one who must resolve

12Q The Sovereignty of Parliament

the conflict has to take into account the relative weight of each" and decide according to those that have more weight. A rule is meant to apply independently of its weight. Accordingly, where two rules are in conflict, one must be invalid.382 It follows that, if a rule can be symbolically formulated as "if p then q," a principle should be formulated as "if p then it is desirable that such and such a thing happen," or simply as "it is desirable that such and such a thing happen." The phrase "it is desirable" has three advantages. First, it indicates that the principle, whether binding or not, does not impose a concrete and specific decision but merely enunciates one reason to decide in a particular way. Secondly, it indicates that a principle enunciates a norm either conceived as valuable in itself or as promoting or securing some valued end. Thirdly, it indicates that the judges must take into account all the relevant principles because they are all conceived as being of positive value. Thus, in Drybones and Craton, for example, the judges have weighed the importance of the principle according to which "it is desirable that the Acts related to the protection of individual rights and freedoms have primacy over all other legislation," or, more generally, "it is desirable that individual rights and freedoms recognized as fundamental by a majority of Parliamentary members be adequately protected." In Boucher, Roncarelli, and Colet, the court evaluated the relative weight of the principle that "it is desirable that democracy, freedom of speech, freedom of commerce, freedom of religion, equality rights, the rights deriving from the status of citizenship, and property right be adequately protected." Although "principled," a decision cannot be regarded as complying with the rule of law unless the reasons are, in some sense, legal.^ It is thus important to determine whether the principles that have guided the decisions were, in some sense, legal. That question has been deeply considered within contemporary legal theory.384 Dworkin, in particular, has argued that Anglo-Saxon legal positivism such as Hart's legal theory was committed to a conception of law that necessarily and logically entailed that "principles" were extra-legal.385 When legal positivists claim that in difficult cases judges may legitimately appeal to "legal principles," they do not mean that these principles are a part of the law. They mean that the principles are "summaries of what mostjudges 'make it a principle' to do when forced to go beyond the standards that bind them."386 Consequently, a principle may be characterized as legal not because it is in the law but because it represents a good extralegal explanation or justification o/law conceived as a system of rules. For Dworkin, that description of law is inadequate. Principles are as much a part of the law as rules. They are binding and determine the rights and the obligations of the citizens. His demonstration is not

130 Orthodox Constitutional Theory

purely empirical although it is true that the judges sometimes affirm that principles are a part of the law.387 In general, however, the judges do not say whether the principles to which they refer are "legal." Many legal positivists have replied that at least some principles are in the law. J. Raz, for example, has maintained that it "has never been denied by anyone, least of all by the positivists" that there existed certain "legally binding principles."388 When Hart used the term "rules," he meant "what Professor Dworkin seems to mean by 'standards,' namely rules, principles or any other type of norm."389 R.E. Sartorius has argued that a certain number of principles were part of the law and that we must keep "some ultimate criterion" consonant with legal positivism "by loosening a bit Hart's concept of a rule of recognition."390 MacCormick's positivist theory postulates that many principles are legal.391 Some of them can be identified through the observation of the "internal point of view" of the judges,392 others can be inferred from the rules as they constitute their "underlying reason."393 Of course, each of these theorists has his own reasons for reaching such a conclusion and may differ on the extent to which a given principle is in the law. Yet there seems to be agreement among positivists and non-positivists: the law can and does contain a certain number of legal principles. The important question for the clarification of the rule of law is to determine whether Supreme Court judges have regarded the justifying principles as being a genuine part of the law. Since the answer cannot follow from an empirical survey of the cases, we must infer it from a coherent construction of the court's decisions based upon the rule of law.394 On the one hand, there is no logical reason to believe that the judges could not consider the principles to be within the law. First, we cannot assume that a principle, by nature, cannot be legal.395 As we just saw, such an assumption would be rejected even by legal positivists. Secondly, we cannot postulate a conception of law that would discard principles a priori because the very issue is to know whether the judges from their internal point of view conceived law as entailing the principles that guided their decisions.396 On the other hand, there are good reasons to believe that such principles were conceived by the judges as being part of the law. First, we know that they recognized the duty to decide in accordance with the law (and that might encompass the cases where the "rules" do not seem to supply a clear answer) ,397 Secondly, if the judges considered the principles to be extra-legal, then they would have voluntarily decided not to apply the law as understood from the point of view of the intention. Such interpretations would mean that the judges voluntarily acted contrary to their duty to promote the rule of law. Thirdly, the decisions could not be legitimated by democratic principles since in all

131 The Sovereignty of Parliament

these cases the judges discarded the law intended by the legislature.398 Fourthly, if the principles were conceived as extra-legal, the judges would have voluntarily taken upon themselves the creation or the extinction ex post facto of rights, obligations, and powers of the parties contrary to what the law (understood from the author's intention point of view) prescribed. Consequently, unless one assumes that the judges have no scruples in voluntarily and consciously making retroactive decisions that are legitimized neither by the law nor by the democratic principle, one must conclude that the judges regard their guiding principles as legal reasons for decision.3" I submit that that is the best interpretation to be given to the process of adjudication when we attempt to make sense of the decisions in which the judges appeal to principles in order to comply with their duty to decide according to law. Therefore, the body of decisions studied reveals that they were rational and that the reasons for decisions were (or, at least, could be), in some sense, seen as legal by those who followed them. Although that does not tell us in what sense they were (or could be) seen as legal, at least it tells us that it might be possible, in principle, to construct a coherent conception of the rule of law from the practice of adjudication. I shall examine that issue in Part Two. The constitutional status of certain rights and freedoms

We know that the orthodox doctrine of parliamentary sovereignty postulated that, beyond the written constitution and a few unwritten antecedent rules, all constitutional norms could be altered by the ordinary legislative process. To that extent, the Canadian constitution was said to be flexible, and insofar as it dealt with certain fundamental rights beyond those expressly laid down in the written constitution,400 these rights could be characterized, in fact, as a residual area of freedom delimited by parliamentary legislation.401 By contrast, constitutional norms were said to be rigid if they were hierarchically superior to all other legal norms and if, in case of conflict with an ordinary legal norm, had primacy.402 Rigid constitutional norms cannot be altered or set aside except in accordance with a special process of amendment (or repeal or override) different from the ordinary legislative process.403 To that extent, a rigid constitution is supra-legislative. Although in general the rigid constitutional norms are written and are contained in the constitution of the state, there is no conceptual bar to a set of unwritten rigid constitutional norms.404 The body of judicial decisions analysed so far reveals that the courts did regard a certain number of individual rights and freedoms

132 Orthodox Constitutional Theory

as guaranteed in various rigid constitutional norms, both written and unwritten, beyond those laid down in the Canadian constitution. Consequently, these rights were not merely a residual area of freedom but a set of entrenched rights which were protected from ordinary legislative actions infringing upon them. For example, if the Canadian Bill of Rights cannot be overriden by an ordinary act of Parliament, it is hierarchically superior to all ordinary laws. In cases of conflict, it should have primacy over them unless the latter have complied with the special-process requirement, namely an express declaration that the act is intended to apply notwithstanding the Canadian Bill of Rights. The Canadian Bill of Rights must be conceived as a rigid set of constitutional norms even if it has often been called "quasi-constitutional" in order to distinguish it clearly from the written constitution.405 The same reasoning applies to special nature legislation because an act of Parliament cannot override such enactments except in accordance with a special process of amendment, namely, that the act clearly and expressly indicates that it is intended to override it. The court has come to that decision on the ground that the very content of the special nature legislation is more important and promotes values that are more fundamental than any others. Special nature legislation is therefore superior to any other ordinary laws and, in case of conflict, has primacy over them. Such enactments should be seen as containing rigid constitutional norms which may be characterized as quasi-constitutional. It follows that the set of rights and freedoms guaranteed in these documents was entrenched in various written quasi-constitutional instruments or in various written constitutional norms. Similarly, the body of judicial decisions reveals that a number of principles (some of which are known as principles of the common law) expressing the desirability of promoting and securing a certain number of rights and freedoms (generally attached to various social institutions) were regarded by the courts as rigid constitutional norms. Boucher, Roncarelli, and Colet, for example, illustrate that a legislature which intends to override these rights and freedoms or to act in violation of them should indicate that intention in clear and express language. The ordinary legislative process being insufficient, Parliament should comply with a special process of amendment. Therefore, in Canada, by 1982, a certain number of rights and freedoms were entrenched in an unwritten constitution. The foregoing conclusions are likely to be contested. Though some lawyers may accept that the entrenchment of certain rights and freedoms was the effect of the Drybones ruling,406 many would deny it with respect to special nature legislation and even more would deny that the "Common Law Bill of Rights" is a rigid unwritten constitution. Yet

133 The Sovereignty of Parliament

any theory of Canadian constitutional law which purports to be adequate should come to terms with the conclusions raised here. Unfortunately, neither the orthodox doctrine of parliamentary sovereignty nor the various theses advanced to reconcile that body of cases with the basic propositions of the orthodox doctrine have done so. It is therefore imperative to lay the foundations of an alternative constitutional theory which takes into account the above criticisms of the orthodox conception of the rule of law and the sovereignty of Parliament.

This page intentionally left blank

PART TWO

An Alternative Constitutional Theory In Part One we concluded that orthodox constitutional theory failed to make sense of various important features of the legal practice. Its basic postulates, notably those associated with the formal validity thesis, suggested, first, that for judges the rule of law implicitly means the rule of law as positive rules. Unfortunately, that conception is internally incoherent: it contradicts the very concept of the rule of law. Secondly, the postulates suggested that the rule of the sovereignty of Parliament is a mere matter of determining the validity of parliamentary legislation. Yet we saw that such a rule cannot be complied with unless we also introduce into the doctrine of parliamentary sovereignty the notion of antecedent rules as to the interpretation of valid legislation. Then, we demonstrated that even if we integrated into this doctrine the set of orthodox antecedent rules of interpretation, that implicit version of the doctrine would not succeed when confronted with various important judicial decisions which are regarded as well founded in law. It, therefore, becomes imperative to amend radically some of the basic postulates of orthodox constitutional theory or to abandon them altogether. In Part Two I propound an alternative constitutional theory based upon a coherent conception of the rule of law which purports to make sense of the judicial practice and discourse as a whole in Canada. In Chapters 4, 5, and 6 I defend the general claim that the concept of the rule of law can be internally coherent if it is interpreted as one version of the rule of law as "idealtype," namely, the rule of law as justice. In Chapter 7 I offer an account of the rule of law as justice in Canada by 1982 in the light of four basic material principles - the constitutional principle, the democratic principle, the liberal principle, and the federal principle. In Chapter 8 I show how that conception relates to a few issues of constitutional law for which the orthodox theory is

136 An Alternative Constitutional Theory

ill-suited. The alternative theory will be constructed against the background of our previous discussions, notably the rule of law as positive rules and the doctrine of the sovereignty of Parliament.

CHAPTER FOUR

The Rule of Law as "Idealtype"

A conception of the rule of law can be internally coherent if it represents the body of principles constituting the idealtype of the conception of law which is recognized and accepted by the judges of a given jurisdiction as the ultimate binding norm within the process of adjudication. I shall call that conception the rule of law as idealtype. THE LEGAL IDEALTYPE AS ULTIMATE REASON

The concept of idealtype is familiar within social theory.1 It is a rational, coherent, and abstract mental representation of a thing (for example, social phenomena) which appears in a confused and incoherent form in the world. It is basically a conceptual construction of something which manifests itself in another form. An idealtype represents and is represented by the constitutive features of what it purports to construct. It is not "ideal" in a moral sense nor a replica of the "true" reality. It is formed by the "one-sided accentuation of one or more points of view and by the synthesis of a great many diffuse, discrete ... concrete individual phenomena."2 In Max Weber's sociology, the idealtype is a means of understanding the significance of human actions and institutions, their interdependencies, their causal relationships, and the extent to which social reality departs from it.3 Yet there is no logical or natural reason to confine it to these purposes. The idealtype is best seen as a tool for understanding in a clear and pragmatic way the various ideas, concepts, or beliefs that govern human conducts, practices, and discourses and that are more or less clearly defined, articulated, or rigorously understood by those whose actions and discourses are consciously determined and constituted by them. Accordingly, it may be used by constitutional theorists

138 An Alternative Constitutional Theory

whenever they seek systematically and unambiguously to clarify and describe the body of concepts, ideas, and beliefs with which they make sense of various features of constitutional law.4 Similarly, and this is the most important proposition for my purpose, judges themselves, whenever they try rigorously and unambiguously to clarify the body of concepts, ideas, or beliefs they recognize and accept as reasons for decision within the process of adjudication, must refer to one or many idealtypes. Certainly, as Weber claims, we must distinguish the legal from the sociological points of view on the ground that lawyers are concerned with the normative meaning to be given to legal norms and sociologists with what happens in fact in the community.5 However, there is nothing in the idea of idealtype which prevents the judges from determining the normative meaning of legal norms in accordance with a number of idealtypes.6 The rule of law is certainly a concept (or body of ideas) to which the judges refer in the process of adjudication. Since it postulates the supremacy of a body of legal reasons governing the process of adjudication, it suggests that judges basically accept as binding a particular conception of law which determines what should count and what should not count as a legal reason. And since that conception of law is clearly understandable only in the form of an idealtype, it follows that, correctly interpreted, the concept of the rule of law implies, first and foremost, the supremacy or the rule of one legal idealtype recognized by the judges from an internal point of view as the ultimate reason for decision within the process of practical legal reasoning. The rule of law as idealtype thus refers to the constitutive features of the governing abstract conception of law accepted by the judges. The idealtype of one conception of law is constituted by the principles without which that conception would not be what it is.7 Taken together, the principles of that idealtype may be correctly characterized as the principles of the rule of law. The coherence of the rule of law as idealtype

The rule of law as idealtype, without further refinements, is internally coherent. It implies that the law itself constitutes the foundation of the process of adjudication. It ultimately constitutes the normative criteria (points of view, norms, standards) of validity and interpretation of all other legal norms including the set of positive rules. A judicial decision would therefore be according to law if the content of the norms accepted as reasons for decision constituted the best interpretation and the best application possible of the principles of the idealtype. It would be according to law if it were guided, dictated, or otherwise determined by a set of regressive normative considerations ultimately

139 The Rule of Law as "Idealtype"

justified by the constitutive principles of the conception of law recognized as supreme. Therefore, the idealtype provides the judges not only with reasons but with a set of legal reasons for decision and supplies a standard (or criterion) from which and according to which all decisions and all other norms must be derived and the validity of which verified.8 According to the rule of law as idealtype, the recognition of one particular conception of law as supreme presupposes that its constitutive principles are not conceived to be mere forms. Each principle must logically be recognized by the judges as possessing a particular content - even if it is convenient to formulate it in formal terms. To that extent, from the internal point of view, an idealtype is always pre-interpreted and, therefore, meaningful. Thus, the duty to uphold the rule of law requires each judge to determine for himself the content of the constitutive principles and, accordingly, what abstract conception of law as idealtype should be realized in practice. These fundamental decisions must always be taken by each individual judge. They may follow from various approaches, theories, or beliefs accepted as appropriate according to the judge's own preconception and pre-understandings of the world. As I said before, the "ultimate reason," although ultimate within the process of adjudication, may not be so philosophically.9 Theoretically, there may be as many recognized idealtypes as there are judges who recognize the duty to uphold the rule of law.10 However, in practice, the idealtypes recognized by the judges of a given community may resemble each other closely. Various reasons may explain that. First, the judges are likely to be influenced by the political, moral, and religious practices and traditions of the community in which they are immersed. Secondly, insofar as the law is seen as a professional or scientific discipline requiring academic training, the students and, then, lawyers and judges are likely to conceive it according to a certain number of shared axioms. That should be even more the case where the law is taught as deriving from a set of dogmas.11 Thirdly, if by any chance one constitutive principle of most of the judges' idealtypes postulates in some way that the law is a matter of coherence, those judges are likely to incorporate into their own conception of law the basic principles that have justified the existing body of legal norms.12 After a while, their idealtypes should inevitably converge.13 In fact, the political and moral tradition of the community, the academic training, and the recognition of the principle of coherence allow the development of a genuine legal tradition understandable in accordance with a shared idealtype. Yet a judge's idealtype does not have to be inferred or constructed from the pre-existing legal order. Of course, it is likely to be so in any mature legal system.14 But unless one dismisses a priori (contrary

140 An Alternative Constitutional Theory

to what the history of Western legal tradition would show)15 the assertion that the rule of law as ideal type is possible in a primitive legal order or in the formative years of a legal order, one should admit that the idealtype may derive from some antecedent normative moral, political, and religious conceptions.16 In a sense, each individual judge is thus in a situation analoguous to the artist who is committed to promoting and upholding the "rule of art." The artist who elaborates for herself a set of guiding principles and norms does not necessarily postulate that she must act in accordance with the set of works already realized and socially recognized as "artistic" or with the propositions that constitute the best explaination and the best justification of the existing practice of creating pieces of art. Nothing prevents her from accepting a set of principles constitutive of one abstract conception of art independently of the pre-existing artistic social practice.17 Indeed, otherwise one could hardly make sense of various breaks with tradition in art. In practice, a judge may not have the opportunity or the will to articulate clearly the content of the idealtype that ultimately guides him. In a certain number of cases, perhaps most of the cases, that should not be disturbing because the decisions will appear consistent with and justified by the set of principles that we generally recognize as constitutive of our own legal idealtype. However, in other cases, for his decisions not to appear arbitrary and unjustified, the judge must necessarily clarify, at least for himself, the nature and the content of his idealtype. If he carefully abides by that duty over a period of time, in the end he will make up a highly sophisticated and relatively complex legal idealtype and the content of his decisions will be consonant with the content of that idealtype. That does not imply that each decision is going to be perfectly consistent with the idealtype postulated as supreme. For example, the fact that a judge recognizes as constitutive the principle that the law is coherent does not assure that all his decisions are going to be, in fact, perfectly coherent. However, in such a case, the rule of law would require the judges to try to achieve coherence through their concrete decisions and to read the whole legal practice (statutes, decisions) as if it were a coherent whole. The theory of the rule of law as idealtype is superior to the rule of law as positive rules. By postulating one legal idealtype as the ultimate practical reason internal to the process of adjudication, that theory gives an account of the logical precedence of law (that is, a body of norms) over any concrete judicial decision. It claims that for any single case, whether easy or difficult, the law may possess a norm logically antecedent to the judicial decisions, that is, to the determination of both the validity and the interpretation of the relevant legal norms and positive rules and to the determination of the concrete solutions. It implies

141 The Rule of Law as "Idealtype"

not that the legal positive rules determine the content of the law but that the law determines both the validity and the content of the legal positive rules. In short, the rule of law as idealtype contains the necessary potential for the concrete realization of the political and moral idea of judicial decision according to law.18 A positivist objection

According to legal positivists, what I call the idealtype of one conception of law is not law at all. It merely represents an idea, "vision,"19 or "working conception"20 of the law. At the most, it would be a political and moral standard of evaluation according to which the law ought to be elaborated.21 An idealtype is not the law as it is but one criterion of the law as it ought to be. According to Hart, for example, "the criterion which makes a decision sound in such [hard] cases is some concept of what the law ought to be."22 But such association between the idealtype as I conceive it and the law as it ought to be is mistaken. First, according to Hart, the word "ought" refers to "some standard of criticism; one of these standards is a moral standard but not all standards are moral."23 These standards are functions "of aims, purposes, and policies"24 of the legal system as it is. By contrast, the rule of law as idealtype refers to the constitutive principles of one conception of law. It follows that the law "as it is" is at least constituted of the basic principles of the idealtype and one may say that the law "as it is" is fused with the law as it must be realized in concrete cases. That theory does not deny that the idealtype may be elaborated according to some standard of criticism prescribing to the judges what the law ought to be. But it does not follow that the idealtype amounts to such a standard: its principles are recognized as legally binding by judges committed to uphold the rule of law. Secondly, the idealtype is not a new formulation of the idea of law in the long-standing controversy about the "law behind law" or the "higher law."25 That debate postulates a distinction between two normative systems, one amounting to natural law, that is "a system of independently existing and inherently valid law having its source wholly outside government,"26 and the other being positive law. The rule of law as idealtype, by contrast, postulates that the idealtype forms a part of the legal order. Its constitutive principles are accepted by the judges as practical reasons as much as any other good legal reasons such as the interpreted positive rules. Thus, even if, for some reason, we accepted that an idealtype is an idea (which it surely is), such an idea would not have the significance it has traditionally received within jurisprudence. On the one hand, this idea would be accepted by the judges as legally

142 An Alternative Constitutional Theory

binding within the process of adjudication and would constitute the ultimate practical legal reason. On the other hand, it would not postulate the existence of a higher law, that is, of an objectively and universally valid legal order existing independently of human will and subjectivity. The idea would be internal to the practice of adjudication and its significance would necessarily depend on the historical situation of the judges who recognize it as binding.27 Thirdly, such an objection seems to postulate the validity of legal positivism without demonstrating it. Indeed, if we were to decree that law must mean and must only mean the set of positive rules, the idealtype would be, by definition, an extra-legal idea. But why should we accept such a definition? Of course, there are no logical reasons against the notion of a legal idealtype conceived as a constraining norm internal to the practice of adjudication. Imagine that a group of persons lands on a recently discovered uninhabited island for the purpose of founding a new nation. Suppose that these persons recognize the authority of no existing legal order and leave the power to adjudicate to a judge - call her Themis P8 - who recognizes the basic duty to uphold the rule of law. What would the concept of law then mean for Themis I? The set of positive rules? As there is no custom, no precedent, no statute, and no constitution, such a conception of law would make no sense of her duty to uphold the rule of law, leaving aside the question of interpretation. Indeed, a positivist may claim that the rule of law is consistent with the fact that the first decisions of Themis I must be purely discretionary and amount to legislative acts based upon moral and political considerations. However, the problem in such a context is that the first decisions may be quite numerous and one may wonder whether Themis I will live long enough to make one single decision according to law as positive rules as established (and interpreted) in her own precedents. In any event, such a claim would presuppose the validity of legal positivism independently of an interpretation of the internal understanding of the concept of law for those who are committed to uphold the rule of law.29 It is therefore much more reasonable to admit that the duty to promote and uphold the rule of law in the formative years of a legal sys tem would require those who recognize it to conceive of law as an antecedent abstract conception of law constructed as a legal idealtype to be concretely realized in the practical sphere. Indeed, the history of the Western legal tradition seems to corroborate that assertion.30 If the notion of law as idealtype makes sense in the context of the formative years, why would it become unacceptable in the context of a mature legal system? Suppose that after a busy career, Themis I retires and is replaced by Themis II, that all decisions of Themis I have been reported, and that Themis II expressly holds that a decision according

143 The Rule of Law as "Idealtype"

to law requires the judge to follow precedents. Is Themis II a legal positivist? Not necessarily.31 As the rules laid down by Themis I cannot be the source of the duty to follow them, there is logically a norm antecedent to and independent of these precedents prescribing Themis II to follow them. Of course, such a norm can take the positivist form, such as "the law is what Themis I has laid down." But one may ask why should Themis II recognize that norm instead of others - such as "the law is just," "the law is predictable," "the law is consistent," "the law is stable" - all of which also require her to take the existing decisions of Themis I into account? As MacCormick argues: "From the internal point of view" acceptance of "the rule of recognition" of a system by the officials of, and (some at least of) the citizens subject to, the system, is not a blind datum, a pure brute fact. They can and do have reasons for accepting it: e.g. "it is good that judicial decisions be predictable and contribute to certainty of law," which they are and do when they apply known rules identified in accordance with commonly shared and understood criteria of recognition; "it is good that judges stay within their assigned place in the constitutional order, applying established law rather than inventing new law"; "the existing and accepted constitutional order is a fair and just system, and accordingly the criteria of recognition of laws which it institutes are good and just criteria which ought to be observed"; and so on.32

If the decision to follow precedents does flow from more basic reasons, we should ask whether such reasons may and do constitute a part of an abstract conception of law conceived as idealtype or whether they may and do reveal or unveil a part of such idealtype. If the answer were affirmative, judges would recognize as authoritative and binding the constitutive principles of one antecedent conception of law even when they expressly claim that their reasons are purely moral standards. The process of legal reasoning reveals that the most basic reasons for decisions constitute or derive from and, accordingly, unveil one particular legal idealtype. A judge required to justify a particular interpretive decision claimed to be based upon purely moral and political considerations would follow a chain of regressive reasoning that may resemble, for example, the following: "I have decided that the rule meant 'ps' and not 'pi' or 'p3' because any rule must be construed from the point of view of the ordinary meaning of the words (or any other point of view)." Why? "Because the ordinary meaning is the best standard to follow from the point of view of legal certainty (or any other point of view) and because legal certainty is the best standard to follow from the point of view of the legitimacy of judicial decision."33 The judge has not said that he has materialized an idealtype of law. Yet the accepted

144 An Alternative Constitutional Theory

principle of legitimacy (postulating and/or presupposing that law is a matter of certainty), the notion of certainty (postulating or presupposing many principles, such as "law is a matter of ordinary meaning," "law is a matter of prospectivity," "law is a matter of stability"), logically amounts to the elaboration of and reveal one accepted abstract conception of law. If such conception is further refined it may become an idealtype. In short, if a judge in a mature system determines the particular standards according to which the law must be concretely elaborated, we may legitimately assume that he has already recognized and postulated the validity and/or the justification of a particular abstract conception of law, the constitutive principles of which have constrained him to recognize these particular standards as binding.34 If there is no logical reason against the rule of law as idealtype, why should we accept the validity of the positivist conception? Independently of reasons deriving from a normative moral theory,35 the best reason would probably be that the rule of law as idealtype is unknown to the very judges who make decisions. The judges do regard as "law" only the set of formally valid positive rules and anything that could amount to the idealtype is perceived to be a moral and political consideration. If that were true, it would only confirm what we already know, namely, that legal positivism is the dominant conception of law expressed within legal discourse. Nevertheless, such an answer would be self-defeating. Since the rule of law as positive rules is basically mistaken,36 it cannot be accepted as an argument against the rule of law as idealtype without dismissing at the same time the coherence and the possibility of the rule of law. But there is more to say. The reason discussed in the previous paragraph assumes the validity of a particular methodological approach, namely, the empirical observation of legal discourse. Of course, the notion of legal idealtype does not appear anywhere in the body of judicial decisions. The judge does not (or, if so, very rarely) expressly state his or her basic reasons for decision in terms of idealtype. Consequently, if we assumed that the truth of the proposition that the rule of law represents a legal idealtype depends on whether it can be objectively verified in accordance with empirical evidence, it would be false. However, I am suggesting that the empiricist postulates of the orthodox theory are misleading, at least insofar as the understanding of the rule of law is concerned. Not only, as we said in Part One, do the external and observable manifestations of Canadian constitutional law (for example, the constitution, statutes, and judicial decisions) not instance all the rule-of-law elements that would make up an intelligible conception, but, insofar as the judges recognize a duty to uphold the rule of law, that concept has a dimension that no purely empirical

145 The Rule of Law as "Idealtype"

approach could reach and adequately represent. This dimension corresponds to what may be called its internal meaning, that is, the meaning the concept has for those whose actions are basically determined by a commitment to uphold it. We must understand that meaning if we are to understand the concept of the rule of law in a given country.37 It follows that the relevant approach, for the purpose of clarifying the concept of rule of law, may be associated with some versions of the hermeneutical approach in social sciences.38 Basically, such an approach assumes that human behaviour (actions, decisions, practices, and so on) has a meaning (a point, a raison d'etre, a purpose) for those involved and that it must be understood from the actors' own point of view. Indeed, that meaning is generally hidden; it is beyond what is empirically observable; it goes deeper than what is expressly said. Yet it is assumed that it may be uncovered through interpretation. Methodologically, the theorist must enter into a version of the hermeneutical circle according to which the understanding of a thing must paradoxically proceed from the whole to the parts and vice versa, the whole being interpreted in accordance with the parts and the parts in accordance with the whole.39 The understanding of human behaviour thus requires an understanding of the system of practical reason (values, beliefs, goals, norms, concepts) more or less articulated that guides the agents and upon which the behaviour is based. But in turn, in order to understand that system, one must share a certain common language and make sense in a coherent way of all human behaviour in terms of that language.40 Such an approach cannot be regarded as purely empirical, though it can be characterized as descriptive, for theorists see themselves as external observers who seek to represent, not identifiable brute data, but the meaning of behaviour through a reconstruction of the actors' internal point of view.41 For the judge, the basic point, purpose, or raison d'etre of the practice of adjudication is to decide according to law. Accordingly, the fundamental meaning of the practice, from the internal point of view, is to uphold the rule of law. That concept, central to adjudication, might correspond to what Charles Taylor has called the "inter-subjective meaning," that is, the set of meanings and norms implicit in and constitutive of a practice and against which individual and shared subjective meanings are formed.42 To the extent that proposition is accepted, it follows that each judge should accept for himself a norm of rationality and a set of legal reasons to which he may legitimately appeal in the process of adjudication. That presupposes, as we said, the recognition of a particular conception of law accepted as binding and supreme which cannot be unambiguously and clearly understood except under the form of an idealtype. Therefore, a coherent account

146 An Alternative Constitutional Theory

of the practice of adjudication, notably the judicial discourse,43 should reveal that the judges who recognize a duty to uphold the rule of law do act in accordance with a set of principles which ultimately are understandable as the set of principles constitutive of the idealtype of one abstract conception of law. As such, the duty of the judges to construct an idealtype (for the purpose of upholding the rule of law) is, as is the very concept of the rule of law, a part of the inter-subjective meaning constitutive of the practice of adjudication. Since the concept of the rule of law allows for various competing conceptions, we may conceive various legal idealtypes. In fact, each judge may, for various reasons, interpret the rule of law as he thinks best. The conception is a function of what may be called the judge's "subjective meaning," that is, the norms, values, purposes, raison d'etre, the rationale, he understands as constitutive of the rule of law and, accordingly, of the practice of adjudication. Of course, in a given jurisdiction, all the judges (or some of them) may share the same subjective meaning and, consequently, the same idealtype. Yet these shared meanings are never clearly expressed in the body of judicial decisions. They constitute part of the conceptual background against which the practice takes place. Thus, the concept of idealtype and the content given to one idealtype in the light of the judges' subjective meanings do not represent a brute datum, a bare fact empirically verifiable. The existence of an idealtype, as well as the particular content associated with it in a given jurisdiction, cannot be made manifest otherwise than by interpretation. Constitutional theory must therefore go well beyond empirical evidence if it wishes to reconstruct the meaning of the rule of law in a given jurisdiction. It must be an interpretation of the meaning which the rule of law has for the judges whose practice is to uphold it. The practice should make sense in terms of one or more conceptions of the rule of law, but the meaning of this or that conception depends on the reasons or the rationale supporting each concrete judicial decision. The understanding of these reasons is a function of each decision, but each decision can make sense only in relation to the whole, the governing conception or conceptions of the rule of law. One particular account of the rule of law is therefore contingent on one particular reading of the practice, but that particular reading is guided by the account of the rule of law. The hermeneutical circle does not assume that all judicial decisions are internally coherent and free from confusion or contradiction or that we must try to reconcile them as much as we can. It merely postulates that, even if the decisions (norms and reasons) were confused and incoherent, it should be possible to explain them as making sense in terms of one coherent meaning, notably, the rule of law. The coherence should be between

147 The Rule of Law as "Idealtype"

the decisions and that meaning, not necessarily between decisions. A good account of the rule of law is the one that succeeds in making sense in a clear, unambiguous, and persuasive way of the practice of adjudication. Any account of the rule of law, being an interpretation, is contestable and may be supported or contradicted by further interpretive arguments. That involves a certain degree of uncertainty but hermeneutics does not seek certainty at all costs, especially at the cost of obscuring various important features of law. Accordingly, it would be pointless to deny the validity of the hermeneutical approach on the ground that all propositions of law must meet the criteria of validity or the "correspondence" criterion of truth postulated by empirical constitutional theory. The only criteria by which we may verify whether an interpretation is well founded or not come within hermeneutics. In particular, it should come within a "coherence" theory of truth.44 To deny that would put an end to the discussion or situate it at the level of epistemology, where, I suggest, the ultimate practical criterion by which we may adjudicate between the two approaches might be pragmatic: Does a constitutional theory that takes into account the notion of legal idealtype and that seeks to construct it coherently in accordance with the judicial discourse and practice as a whole succeed better in explaining and making sense of important features of the constitutional discourse than one that does not?45 THE LEGAL IDEALTYPES

For the purpose of his sociology of law, Weber classified law into four distinct idealtypes.46 The distinctions between them revolve, on the one hand, around the idea of rationality and, on the other hand, around the dichotomy between form and substance.47 Weber characterizes as irrational all legal orders in which judicial decisions are not based upon a rule that is itself based upon principles. Consequently, a legal order is irrational if, first, it cannot "be controlled by the intellect,"48 and, secondly, it does not aim at the systematization of the law. A legal order is formally irrational when the legal decisions depend exclusively on authoritative formal rules found within the legal order, such as the primitive procedures based upon oracular pronouncement, ordeals, or magical formula.49 Such a legal order rests upon the "supernatural character of decisive acts of procedure"50 which has nothing to do with "real truth" inferred from "real facts."51 A legal order is substantively irrational when the substantive considerations, either "ethical, emotional, or political,"52 are based neither upon general norms nor upon systematic rules or principles but are rather of an ad hoc sort, chosen in the light of the merit of the case.53 On the

148 An Alternative Constitutional Theory

other hand, a legal order is formally rational when it is based upon a process of "logical rationality,"54 that is, upon the "unambiguous general characteristics of the facts of the case ... disclosed through the logical analysis of meaning," and when "accordingly, definitely fixed legal concepts in the form of highly abstract rules are formulated and applied."55 According to Weber, the logical interpretation of meaning allows "the collection and rationalization by logical means of all the several rules recognized as legally valid into an internally consistent complex of abstract legal propositions."56 Finally, a legal order is substantively rational when it aims at "a material, rather than formal, rationalization of the law,"57 when it adheres to fixed principles "in the sense of the pursuit of substantive principles of social justice of political, welfare-utilitarian, or ethical content."58 These four ideal types have been construed from the point of view of an observer. They constitute an abstract representation of the legal reality as Weber conceived it. It is now advisable to determine whether judges, from their internal point of view, have ultimately recognized the normative character of one or many of these idealtypes. It should not be necessary to deal with the two irrational idealtypes because, being irrational, they postulate a conception of law that contradicts the concept of rule of law. Moreover, according to Weber, they do not characterize Western legal tradition.59 However, if we conceive the rational idealtypes as normative from the internal point of view, they require the body of judicial decisions to be based upon general norms that transcend the purely subjective, arbitrary, and personal opinion of the judge. Consequently, they form a relevant starting point for the understanding of the internal significance of the rule of law. In fact, insofar as Weber's interpretation of the legal practice was adequate, it is reasonable to believe that that the constitutive principles of his idealtypes were ones that judges already believed (from their internal point of view) they had a duty to uphold and to realize in the practical sphere. In the next two chapters, I shall propound, analyse, and criticize two idealtypes that come within Weber's classification. These idealtypes should be regarded as an abstract interpretation of the most important conceptions of law (leaving aside legal positivism) which, in our political and legal culture, have been accepted as supreme or "ruling" within the process of adjudication. Many authors and many judges may not recognize them as representing their own explicit conception of the rule of law. Yet they adequately group together the most important conceptions of law relevant for the purpose of the rule of law. I shall respectively call them the rule of law as certainty and the rule of law as justice.

CHAPTER FIVE

The Rule of Law as Certainty

The rule of law as certainty postulates a conception of law in which the fundamental characteristic of its constitutive principles is to promote a legal framework for citizens so that they can predict with certainty the legal consequences of their acts. F.A. Hayek has proposed the following definition: "Stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge."1 H.W.R. Wade maintains that the law is "concerned not with the problem of how a man can best live, but with the provision of a secure environment within which he can live as he pleases, provided he allows his neighbour to do the same."2 Joseph Raz writes that the "basic intuition from which the doctrine of the rule of law derives" is that "the law must be capable of guiding the behaviour of its subjects."3 According to Lon L. Fuller, "the very essence of the Rule of Law is that in acting upon the citizen ... a governement will faithfully apply rules previously declared as those to be followed by the citizen and as being determinative of his rights and duties ... [Law] is basically a matter of providing the citizenry with a sound and stable framework for their interactions with one another."4 This conception of the rule of law has deep roots within our legal tradition.5 However, it has become particularly important as an ideal to promote and realize under the growing influence of liberalism.6 Liberalism assumes that individuals are rational beings capable of determining for themselves a set of coherent goals and a conception of the good life as well as the means of realizing them.7 A legal system whose norms were certain would allow individuals to know the sphere of freedom in which they could act as autonomous beings without fearing

150 An Alternative Constitutional Theory

unpredictable and, thus, unjustified, governmental intrusions.8 In classical liberal theory, legal certainty even appears as a necessary device for the flourishing of a free market economy.9 Consequently, legal certainty appears to be an essential tool for the maintenance of liberal values. One may rightly believe that the rule of law as certainty is still the dominant explicit conception within contemporary legal, political, and social theory10 and that it constitutes the explicit political and moral conception of many positivist constitutional theorists.11 Indeed, legal certainty is a good complement to legal positivism. For the purpose of the rule of law as certainty, I submit that the three following principles are constitutive of the idealtype: the law is prospective; the law is clear; the law is general. THE CONSTITUTIVE PRINCIPLES

The three constitutive principles of the rule of law as certainty - prospectivity, clarity, generality - are postulated by the judges with a certain pre-interpreted and pre-determined content. That content depends on what is regarded by the judges as required by the idea of predictability and certainty. It happens that these principles are characterized as formal. This is correct if by "formal" one means that they are concerned with the very form the legal system as a whole should possess so as to be certain and predictable independently of its matter. To that extent, the constitutive principles postulate an instrumental conception of law12 or, as Fuller claims, a "procedural natural law."13 Yet one should not be misled. The principles are postulated with a given content and, as such, they supply a set of material norms internal to the law. Indeed, bein constitutive of the legal idealtype, they provide judges with the ultimate meaningful accepted standards that must guide and justify the elaboration and the construction of the legal system. The law is prospective

In order for governmental actions and judicial decisions to be predictable so as to enable citizens to plan and lead their lives in accordance with the law, the law must be prospective. It must not impose a posteriori or ex post facto legal consequences to particular actions. An individual action may entail certain legal consequences if and only if a known legal norm has prescribed them in advance. That implies three important corollaries. First, the principle of prospectivity implies the existence, antecedent in time, of positive legal rules.14 Thus, the rule of law as certainty requires the "creation and the maintenance of an actual order of positive laws."15 Secondly, retroactive and ex post facto laws

151 The Rule of Law as Certainty

must be of no force or effect (either inoperative or invalid).16 Thirdly, any new legal rule created by the judiciary must apply for the future only in accordance with a doctrine similar to the American "prospective overruling" doctrine.17 The law is clear

The constitutive principle providing that the law is clear means that citizens must understand the content (the meaning and the scope) of the prospective legal rules in the same way as do their government. Otherwise, they could not predict with certainty the legal consequences of their acts. That entails at least six important corollaries. First, the prospective legal rules must be laid down in a formal legal text such as a statute, a precedent, a decree, and so on.18 Secondly, the text must be promulgated and published19 or, at least, sufficiently available and accessible so as to allow the citizens to know it before acting. Thirdly, the law must be relatively stable.20 After all, the law can hardly be clear if citizens do not know in advance the state of existing law or are engaged in actions which, although lawful at the beginning, become unlawful in the course of execution. Indeed, the expectation of legal instability may create a chilling effect inconsistent with the rule of law as certainty. Fourthly, the law must be precise. The content of the legal rules must not be undetermined, vague, ambiguous, obscure, or contradictory so as to leave the government, the judges, and the citizens with discretionary power. That corollary is opposed to using or appealing to vague, confused, and general standards such as "public policy," "good morals," "reasonabless," "good faith," "public interest," "equity," "fairness," and the like.21 Judicial application of such standards is unpredictable because they require the judge to make substantive value judgments based upon considerations that are not clearly laid down in advance in a formal legal text.22 Fifthly, the legal rules must be interpreted in accordance with rules that are themselves clear, precise, and shared by all members of the community to which the law applies. The rule of interpretation that best achieves that task is likely to be the literal rule, that is, the rule that prescribes that legal concepts must be understood in accordance with common usage as exemplifed by the dictionary.23 Sixthly, the content of the legal rules must be specific. That aims both at the description of the essential characteristics of the facts to which the rule refers and at the nature and scope of the legal consequences that must follow them. It is the legal consequences distinctly formulated in a rule and only these that must follow from the realization of

152 An Alternative Constitutional Theory

the facts that correspond to the conditions distinctly stated in it. Thus, extensive interpretation and analogical reasoning, which are used to apply a given legal rule to facts that are not distinctly formulated in it but that sufficiently resemble the specified characteristics in some relevant aspects, are not suited to the rule of law as certainty because the determination of what is relevant and what is not depends on substantive reasons that are not clearly known in advance.24 The judges must argue a contrario and not a simili.25 The principle of clarity implies that all acts that are not distinctly illicit are licit and that all behaviour that is not specifically prohibited is allowed. The rule of law as certainty, thus, postulates that the law is complete and without gaps. The traditional rules according to which certain legal rules (penal, fiscal, and so on) and rules of exceptions must be strictly construed - as well as the known maxims of penal and criminal law, nulla poena sine kge and nullum crimen sine kge — derive directly from the principle of specificity. However, they are also required by the other corollaries: there can be no offence and no punishment without a precise and specific promulgated formal text prescribing it.26 The law is general

The constitutive principle of generality is more difficult. It may mean that everyone must be formally and materially treated equally. A legal rule is consonant with that principle if it imposes the same burdens and duties upon each citizen.27 Thus, the law should not distinguish between classes of individuals or between classes of actions.28 This first conception of the principle of generality is not an acceptable interpretation of the rule of law as certainty. It is based upon a conception of equality interpreted in accordance with various political doctrines such as socialism, communism, and liberalism. To that extent, it may constitute an aspect of the "rule of law as justice," as we shall see in the next chapter.29 According to another interpretation, the principle of generality admits differences of treatment among different classes of individuals and classes of actions. Yet legal rules must never refer to particular facts such as a concrete action or an individualized person.30 The law must consider the world of facts in an abstract and impersonal way even where the legal consequences aim at a given class of persons or acts. As Jean-Jacques Rousseau wrote: "When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. Thus the law may indeed decree that there shall be privileges, but cannot confer them on anybody by name."31

153 The Rule of Law as Certainty

This second interpretation is misleading. First, the rule of law as certainty cannot imply that the law may never aim at one particular individual or one concrete action. On the one hand, we may easily imagine a legal system composed of a certain number of particular legal rules and remaining as certain and predictable as it would be without them. Indeed, what seems to be required by the rule of law as certainty is that all rules (general and particular) must be prospective and clear. On the other hand, although theoretically conceivable perhaps, we may hardly conceive a functional and practical legal system in the sense of "certainty" uniquely composed of particular legal rules.32 For that reason, the principle of generality may be regarded as constitutive of the rule of law as certainty. Secondly, the rule of law as certainty cannot imply, as is often thought, that the law may never confer upon administrative agencies some broad and vague powers to make particular legal orders on the ground that such orders are always inconsistent with the principle of generality. On the one hand, insofar as the particular administrative order is rational and justified, it is necessarily based upon some general norms that are logically antecedent to that order. Otherwise, the decision would result from mere unarticulated intuition, emotion, feeling, or by the toss of a coin. John Dewey clearly explained that point: "Exposition implies that a definitive solution is reached, that the situation is now determinate with respect to its legal implication. Its purpose is to set forth grounds for the decision reached so that it will not appear as an arbitrary dictum, and that it will indicate a rule for dealing with similar cases in the future. It is highly probable that the need of justifying to others conclusions reached and decisions made has been the chief cause of the origin and development of logical operations in the precise sense; of abstraction, generalization, regard for consistency of implications."33 On the other hand, however, such a general norm is unwritten and seems to be created by the administrator at the time of its application. Consequently, the administrative orders based upon broad and vague delegated powers always clash with the principles of prospectivity and clarity. To that extent, although they are consistent with the principle of generality, they certainly contravene the rule of law as certainty.34 Significantly, many contemporary authors agree with the foregoing claim. Raz, for example, has argued that his conception of the rule of law "does not object to particular legal orders as long as they are stable, clear, etc."35 However, since they are often used to introduce flexibility into the legal system, they infringe upon the principle of stability. In order to overcome that consequence, particular legal orders must be "enacted only within the framework set by general laws which are more durable and which

154 An Alternative Constitutional Theory

impose limits on the unpredictability introduced by the particular orders."36 These general laws include "those which confer the necessary powers for making valid orders and those which impose duties instructing the power-holders how to exercise their powers."37 And so the assertion that the principle of generality is inconsistent with any particular legal rule does not derive from the rule of law as certainty.38 But if the principle of generality does not mean that a law can never aim at particular individuals or actions, what does it mean? I submit that it should be understood as follows. For the law to be predictable, citizens must expect each legal rule to apply and to be applied to all cases that correspond to the conditions stated in it. As E.W Patterson maintains, "because of the generality of law, men can be enabled to predict the legal consequences of situations that have not yet been litigated, and hence can plan their conduct for a future which is thereby rendered less uncertain."39 This may find expression in the assertion that all legal rules, including particular legal rules, whatever their content, must be conceived in terms that are "universalizable." The principle of generality, so conceived, entails at least three important corollaries. First, it implies that the law incorporates the principle of equality before the law and the principle of formal justice.40 Equality before the law simply means that each legal rule must be correctly applied to all the cases that correspond to the conditions stated in it so as to treat like cases alike and different cases differently.41 Indeed, if two like cases aimed at by a given rule could be treated differently, the law would be unpredictable. But if a legal rule is conceived in terms that are universalizable, then it will logically apply equally to all the cases it aims at. Secondly, because all the cases corresponding to the conditions for the application of a rule entail the same legal consequences, the principle of generality implies that the law is logically consistent.42 Thirdly, that principle implies that some doctrine of precedent43 and/or some form of codification or legislation (in the classical continental sense)44 must be elaborated. The three constitutive principles and their corollaries are both necessary and sufficient for the idealtype of the rule of law as certainty. Certain authors have proposed a longer list.45 However, the other principles are not constitutive of the idealtype. They are rather institutional since they enunciate the conditions whereby the rule of law as certainty can be effectively guaranteed and realized through the governmental institutions. Some of them limit the governmental powers and may be associated with liberal constitutionalism, such as the separation of powers, judicial independence, judicial review of administrative action and legislation, and so on. Others impose procedural requirements, such as the principles of natural justice ("no man may be judge in his own

155 The Rule of Law as Certainty

cause" and "no man may be condemned unheard"). Still others, institutional in nature, recognize a right of access before the courts within a reasonable time and at reasonable cost. If all these principles, among others, are sometimes included in what is required by the rule of law, that is because they are pragmatically conceived as necessary, even essential, for the maintenance of the rule of law as certainty. Nevertheless, they must not be confused with its constitutive principles for they do not derive from them nor do they constitute the rule of law as certainty. THE INTERNAL COHERENCE OF THE RULE OF LAW AS

CERTAINTY

The rule of law as certainty, although attractive and popular, is nevertheless internally incoherent. The conception which postulates that judicial decisions must be ultimately justified by its constitutive principles would indeed be acceptable if the set of positive legal rules foresaw all possible cases, all possible actions, and all possible facts susceptible of producing legal problems, if it used no general, vague, or confused notions, and if it clearly provided for each case one and only one legal answer. Unfortunately, as we have known for a long time,46 legal positive rules produce uncertainties47 caused by semantic and syntactic uncertainties (the "open texture" of text)48 or by the fact that two or more legal positive norms prescribe inconsistent solutions to a given case (the legal "antinomies").49 According to the rule of law as positive rules, legal uncertainties are not resolved by the law and the judges must exercise discretion and "create" the law in accordance with extralegal considerations.50 By contrast, the rule of law as certainty postulates that, even where the set of legal positive rules is uncertain, the law as a whole produces certainty. The judges must act as if there were no obscurity, no ambiguity, no antinomy. At an abstract level, judicial decisions may be seen as according to law if they are ultimately justified by and consistent with the idealtype of law as certainty. Therefore, we may assume that, in order for a decision to be rationally justified by legal reasons, such reasons must be - at least - prospective, clear, and general. The issue is to determine at a more concrete level what the constitutive principles entail. Where the uncertainty is caused by an antinomy, a judge may resolve it by a set of relatively formal rules. For example, if the conflict comes from two valid positive rules situated at different levels in the hierarchy of legal norms, a judge may apply the prospective, clear, and general rule according to which the superior rule has primacy and the other is of no force or effect. If such antinomy comes from two rules situated at

156 An Alternative Constitutional Theory the same level in the hierarchy, the judge may follow the prospective, clear, and general rule that the most recent rule has primacy over the oldest (leges posteriores priores contrarias abrogani) unless the older rule is clearly more specific than the recent rule, in which case the older has primacy (generalia specialibus non deroganf).51 The problem is to determine what is entailed by the rule of law as certainty where no such formal rules of interpretation are available for use in the case. For example, what should a judge do where the antinomy is produced by two rules (or words) enacted in the same legal text or where a given rule is subject to more than one reasonable interpretation? The rule of law as certainty, correctly interpreted, implies that the law must be elaborated in accordance with what Weber has called a "formally rational" legal order.52 As we shall see, such an idealtype is specifically designed to achieve legal certainty. The rule of law as certainty implies that each decision in which an interpretation of a rule is preferred to all other inconsistent interpretations, or in which a rule is applied instead of all other inconsistent rules, must be based upon a set of prospective, clear, and general norms. The judges must therefore postulate, first, that each legal rule and decision is based upon a more general substantive norm (principle or rule) which is logically antecedent to their decision and which transcends the concrete factual situation. However, as the application of that more general substantive norm may be uncertain for causes of ambiguity or antinomy, the rule of law as certainty requires the judges to resolve the difficulty on the basis of a further general substantive norm. If that other norm is still uncertain, the judges must ascertain a further general substantive norm, and so on until they reach the furthermost bounds of their reasoning, that is, the point where they find a general substantive norm which is certain and from which derive all the principles and all the rules that are relevant to their decision. This regressive process logically implies that no legal decision is arbitrary. Each rule and each principle upheld by the judges is justified by a more general substantive norm of which it is a concrete application. As these general norms admit no contradiction and no formal inequality, the judges must apply them in a coherent and consistent way. In practice, the rule of law as certainty implies that all legal norms (rules and principles) from the most abstract to the most concrete, must be integrated into a system. Yet, as such, the rule of law as certainty does not require any particular content to that system. It merely requires the rules and the decisions to be justified by general substantive norms, whatever their substance is. Such general norms are concerned indeed with the content of the rules (whatever it is) to the extent to

157 The Rule of Law as Certainty

which they justify the rules and cohere with all the other general, prospective, and clear legal norms. Secondly, the constitutive principle of prospectivity implies that the general norms must be antecedent in time and, in some way, inferred from the positive legal order. The question is to determine the method by which the judges can identify them. According to the principle of clarity, that method must be intelligible for all members of the community. Otherwise, it would be futile to claim that the general norms recognized by the judges are predictable and that the citizens can foresee with certainty the legal consequences of their acts. Moreover, such a method must not involve value judgments because that would make the law dependent upon one's bias, convictions, interests, or conception of what is good, just, useful, fair, and so on, which might be too subjective and, accordingly, too unpredictable and uncertain. The general norms must therefore be ascertained, identified, or determined in accordance with an impersonal, abstract, and logical process similar to formal logic. Legal rules must be conceived as logical consequences from a more general norm. Because they are assumed to be coherent and consistent, it should be possible to ascertain the set of norms from which they logically derive. The law must be assimilated to an axiomatic deductive system. The judges and the citizens must be logicians,53 mathematicians, and geometrists,54 and the legal system must operate like a "technically rational machine."55 All this clearly explains why the rule of law as certainty has often been associated with formalism and conceptualism.56 Perhaps the most sophisticated version of that conception leads to something like what the German legal theorists have called the doctrine of concepts, or begriffsjurisprudenz, and the doctrine of legal constructions, or juristiche construction.^ These doctrines assume that all principles and all rules of the legal system can be reduced to a certain number of pure concepts or legal categories, postulated a priori, that fix in advance the meaning of the legal terms independently of concrete facts and the application of which depends on a process of formal deduction in accordance with the rules of strict logic. R. Vonjhering has ironically described such system based upon pure abstraction as the "paradise of concepts."58 Contemporary legal and constitutional theorists associated with the rule of law as certainty have generally underestimated what Max Weber clearly saw, namely, that a guiding conception of this kind involves a formally rational legal order. As we have noted, a formally rational legal order is characterized by a formalism based upon "logical rationality," where "the legally relevant characteristics of the facts are disclosed through the logical analysis of meaning and where, accordingly,

158 An Alternative Constitutional Theory

definitely fixed legal concepts in the form of highly abstract rules are formulated and applied."59 According to Weber, such a legal order proceeds from five postulates: First, that every concrete legal decision be the "application" of an abstract legal proposition to a concrete "fact situation"; second, that it must be possible in every concrete case to derive the decision from abstract legal propositions by means of legal logic; third, that the law must actually or virtually constitute a "gapless" system of legal propositions, or must, at least, be treated as if it were such a gapless system; fourth, that whatever cannot be "construed" rationally in legal terms is also legally irrelevant; and fifth, that every social action of human beings must always be visualized as either an "application" or "execution" of legal propositions, or as an "infringement" thereof, since the "gaplessness" of the legal system must result in a gapless "legal ordering" of all social conduct.60

Indeed, the systematization of the law required by the rule of law as certainty is best achieved in a formally rational legal order61: "The rationality of ecclesiastical hierarchies as well as of patrimonial sovereigns is substantive in character, so that their aim is not that of achieving that the highest degree of formal juridical precision which would maximise the chances for the correct prediction of legal consequences and for the rational systematization of law and procedure ... Juridical formalism enables the legal system to operate like a technically rational machine. Thus it guarantees to individuals and groups within the system a relative maximum of freedom, and greatly increases for them the possibility of predicting the legal consequences of their actions."62 Weber's formally rational legal order, although theoretically the best interpretation of what is required by the constitutive principles of the rule of law as certainty, must have some practical value in order to be accepted as an internally coherent conception of the rule of law. In other words, it must set a possible task for itself. Unfortunately, the rule of law as a formally rational legal order is internally incoherent. In order for it to succeed, all members of the community must effectively conceive the law as formally rational and must have the capacity to master the process of formal logical reasoning; otherwise, it would be absurd to claim that citizens can predict with certainty the legal consequences of their acts. However, such an assumption is obviously unacceptable. Paradoxically, too, the more the law is required to be abstract and conceptual, the more unreasonable it is to believe that the citizens may know it in advance. Consequently, the more the idea of certainty theoretically requires the law to be conceived in terms of formalism and conceptualism, the less certain and predictable it becomes in fact. This probably explains why the famous "paradise of

159 The Rule of Law as Certainty

concepts" described by von Jhering was inhabited only by legal theorists.6^ It could be argued that citizens themselves do not have to predict for themselves with certainty all the consequences of their actions. It would be sufficient for them to consult lawyers who would predict with some certainty the legal consequences of their actions. Such an argument is obviously a retreat from what the rule of law as certainty seems to require. Yet it could be accepted if lawyers were able to ascertain effectively the law in accordance with the postulates of a formally rational legal order. But of course, as it is generally recognized today among legal theorists, such an hypothesis is inconsistent with the process of practical legal reasoning. First, it assumes that the legal system is comparable to those axiomatic systems such as geometry, mathematics, and formal logic, and that the axioms are true and do not have to be demonstrated since they are accepted by all. These assumptions are unacceptable since they import a set of metaphysical and epistemological postulates similar to those we have met in our discussion on the theory of the core.64 They postulate that the axioms constitute some transcendental entities that permanently and objectively exist, that their meanings are fixed and determinate independently of the judges who uphold them, and that they are the object of universally valid knowledge. This form of legal dogmatism, which has been called the "science of transcendental nonsense,"6-5 has been strongly criticized by various philosophical and legal schools of thought throughout the twentieth century.66 I will not recite these criticisms here. On the other hand, the views we have associated with critical theory fully show that our understanding of a thing is fundamentally historical, that is, necessarily conditioned, structured, and constrained by preconceptions (prejudices, pre-understandings, strategies), which, themselves, result from the historical situation in which we are always immersed and which provides our own horizon of understanding.67 Insofar as the judges recognize and uphold a certain number of the so-called "axioms," that is, ultimate principles, categories, or concepts, these should not be conceived as transcendental entities existing as objects in the universe. They must rather be seen as the product of interpretation. Accordingly, their existence and significance may vary both in time and space and we have no guarantee at all that the law can ever be certain. Second, the formally rational legal order assumes that if all axioms are assumed to be true then they cannot contradict each other; indeed, formal logic does not admit the validity of both A and non-A within a given system. This assumption is also unacceptable. On the one hand, all law students know that legal interpretation is based

160 An Alternative Constitutional Theory

upon contradictory formal and substantive norms. For example, K.N. Llewellyn has enumerated a set of formal contradictory canons of interpretation.68 More recently, many scholars associated with the critical legal studies movement have identified various fundamentally inconsistent substantive norms within liberal legal thought derived from opposed conceptions of human beings and their relation with society. R.M. Unger has argued that the law and the theory of contract were "an expression of a small number of opposing ideas: principles and counterprinciples"69 and that there existed no meta-principle capable of reconciling them. Consequently, independently of the limitations of language, the law would be essentially indeterminate, contradictory, "disharmonized."70 Moreover, even if the principles were not "contradictory" in a logical sense, many of them would be at least "competitive" in Dworkin's sense since they may "pull in different directions."71 On the other hand, if we accept the interpretive perspective, we should not be surprised that the law is often understood in terms of contradictory and inconsistent norms. The law has been elaborated at different times by different people who have approached it in accordance with their own historical horizons and preconceptions. It is consequently probable, indeed inevitable, that the law has been read differently at different times and construed as being based upon contradictory or competitive principles. Third, the rule of law as certainty assumes that the very process of legal reasoning in all cases corresponds to the classical formal syllogism. In an "easy" case, the premise of the syllogism corresponds to a general, clear, and prospective legal positive rule and the conclusion formally derives from it. In a difficult case, the premise of the syllogism is true and valid if it can be demonstrated that it derives from a further premise accepted as true by virtue of its axiomatic character or by virtue of the fact that it derives from further premises either true or derived. And so on until we reach the ultimate axiomatic premise. The final conclusion is true if it can be demonstrated from the premises which, according to the chain of formal reasoning, are true. Legal propositions can be assimilated to theorems deduced from a set of axioms. As we saw in Chapter 2, these assumptions ignore the interpretive step within legal reasoning. Specifically, they ignore the fact that each legal syllogism must contain an interpretive premise involving a complex network of interpretive decisions. Such an interpretive process cannot be regarded as merely logical and formal. It is basically evaluative and requires various value judgments from the interpreter. Indeed, even the determination of the so-called axioms, that is, the set of ultimate substantive reasons, requires a choice. As Lord Lloyd of Hampstead and M.D.A. Freeman say, "such a choice is not logical in the sense of being deductively inferred from given premises, but it

161 The Rule of Law as Certainty

has a kind of logic of its own, being based on rational considerations which differentiate it sharply from mere arbitrary assertion."72 That kind of logic may be characterized as material and postulates a process of dialectical reasoning.73 Therefore, there is no such thing as a formal deductive logic in law. It follows, at least in "difficult" cases, that the rule of law as certainty is internally incoherent. It postulates an idealtype that is impossible to realize in practice; indeed, one may claim that with respect to "easy" cases it remains a coherent conception. Yet, as we said for the rule of law as positive rules, if the easy cases represented most of the cases then it might be a valid statement. Unfortunately, at least with respect to constitutional law, most of the cases are difficult. In that field, the prospective, clear, and general rule of literal interpretation does not lead us very far. Consequently, the rule of law as certainty leaves both the citizen and the judge with three constitutive principles that do not succeed in performing their function, namely, making the law predictable. It does not constrain the judge to determine the legal consequences of individual actions on the ground of legal reasons. Of course, one may think of other versions of the rule of law as certainty. However, any retreat from the formally rational legal order is a step towards the "rule of law as justice" analysed in the next chapter. For example, the elaboration of Fuller's legal order, in which we find "a relatively stable reciprocity of expectations,"74 would lead, in the last analysis, to a substantive interpretation of what constitutes the reasonable expectations of the citizens. In an interesting article, T.R.S. Allan propounds a conception of the rule of law and purports to square it with the rule of law as certainty understood in Fuller's terms.75 But he has been forced to admit that "implicit in this understanding is the expectation that Parliament will conform to generally accepted notions of fairness and justice."76 In other words, the idea of reasonable expectation would imply certain substantive evaluative judgments on the judges' part as to what are the prevalent moral and social values in the community. In that context, legal certainty is not likely to be realized. For these reasons, Allan's interpretation of what is required by the rule of law as certainty reveals that he is rather committed to a version of the rule of law as justice.77 THE CONSTRAINING CHARACTER OF T H E C O N S T I T U T I V E PRINCIPLES

Some authors have argued that the principles of the rule of law as certainty constrain and limit the discretion left to legislative and other governmental institutions by making it difficult, indeed impossible, to

162 An Alternative Constitutional Theory

pursue and to realize certain substantive ends. Hayek, for example, has claimed that compliance with the principles of the rule of law prevents the realization of distributive justice.78 Fuller has maintained that the principle of clarity prevents the enactment of discriminatory rules such as those based upon race.79 Since these theses have been elaborated so as to limit the discretionary power of the legislature, they should, as a matter of coherence, apply to the discretionary power of the judiciary as well. The argument would read as follows: Even if the formally rational legal order leaves the judges with the obligation to interpret and evaluate the weight of the substantive norms and values that should guide them, the constitutive principles of the rule of law as certainty restrict the nature of the substantive principles to which the judges may legally appeal. If these constitutive principles effectively did constrain the kind of substantive ends the judiciary can pursue or uphold, we would have good reason to believe that the rule of law as certainty is internally coherent. Unfortunately, they do not have that result. I shall demonstrate this point using Hayek's thesis. Hayek's main argument is that "any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law."8° First, political decisions in relation to distributive justice are inconsistent with the principle of prospectivity. Decisions such as how many pigs are to be raised, how many buses are to be run, or at what prices shoes are to be sold cannot be settled for long periods in advance since they "depend inevitably on the circumstances of the moment."81 Legal rules may lay down in advance what action the state will take in certain situations or the conditions by which one may engage in an activity.82 However, in order to be prospective, such situations or conditions enunciated in the rules must be "instrumental," that is, they must be useful "to yet unknown people, for purposes for which these people will decide to use them, and in circumstances which cannot be foreseen in detail."83 Secondly, distributive justice is inconsistent with the principle of clarity because, depending as it does upon the circumstances of the moment, it must inevitably be formulated in terms of vague and unspecific standards. That explains why, in practice, as planning increases in society, it becomes necessary for the legislator to include in the law vague provisions referring to what is "fair" or "reasonable." That provides the delegated authority with broad discretionary powers to settle concrete cases since its reasons for decision at the time of conflict will necessarily be based upon its discretionary and arbitrary judgment as to the "relative desirability of particular ends or values" instead of according to clear and specific rules previously laid down.84 Of course, a judge who would appeal to a conception of distributive justice in a difficult case would be in a situation similar to that

163 The Rule of Law as Certainty

of the body to which a legislature has delegated a broad discretionary power. Thirdly, distributive justice is also regarded as inconsistent with the principle of generality. We have seen that generality in law implies the principle of equality before the law. According to Hayek, the realization of social justice involves a "deliberate discrimination between particular needs of different people and allowing one man to do what another must be prevented from doing."85 Since we do not possess any objective standards to assess the various needs, goals, and ends which are at stake and which a government can legitimately address, such a decision is "necessarily ... discretionary," ad hoc, and based upon "essentially arbitrary grounds."86 Hayek's thesis postulates a distinction between political decisions in relation to distributive justice and decisions in relation to other subjects such as fixing the conditions by which the existing resources can be exploited. The first kind of decision deals with "planning," that is, with the implementation of "a policy which determines for what specific purposes particular means are to be used,"8*7 whereas the second kind of decision establishes an instrumental framework adaptable to the various individuals' needs and interests. Hayek assumes that the first kind of decision cannot be based upon prospective, clear, and general rules but the second can. An easy answer to this thesis would be that the instrumental framework may give rise to as many difficult cases as the rules of distributive justice. Accordingly, the judge may have to interpret the instrumental rules in accordance with his own conception of the instrumental end these rules are meant to realize. Such an interpretation may be as unpredictable in terms of the actual positive legal order as a judicial decision in relation to an ambiguous rule of social justice. But there is more. If the instrumental framework can be enacted in accordance with rules that conform to the constitutive principles of the rule of law as certainty, then so too can the rules in relation to distributive justice.88 Accordingly, it should be possible to enact a rule in relation to social justice that applies for the future only, that is, promulgated, published, available, accessible, stable, precise, specific, and so on, and that is universalizable, that is, that requires like cases to be treated alike. Indeed, as Hayek himself recognizes, a government may regulate social-economic activities such as health and security.89 Such regulations do not logically depend on the circumstances of the moment and do not necessarily require a broad and arbitrary discretionary power. Indeed, any system of social justice may have to deal with hard cases. In that event, it should be possible for a judge to uphold a particular norm in a decision and to apply it for the future only.90 Similarly, it should be possible for a judge to enunciate the prospective

164 An Alternative Constitutional Theory

rule in clear terms. Finally, it should be possible to formulate it in terms that are universalizable. Indeed, to a certain extent, any consideration can be turned into a rule and any rule can be turned into a universal rule. Even where a decision aims at one particular individual and one particular action, it is possible to lay down a rule describing some general features of either the individual, the situation, or the action, and then, order what is to be done. Consequently, the rule of law as certainty as such does not prevent the judges from taking into consideration some particular substantive ends such as distributive justice. Before leaving the matter, I must consider one particular argument related to the principle of generality. Some passages of Hayek's thesis, if taken literally, seem to imply that the principle of generality prohibits the pursuit of social justice on the ground that such goals, by nature, provide for the unequal distribution of resources: "Because the rule is laid down in ignorance of the particular case and no man's will decides the coercion used to enforce it, the law is not arbitrary. This, however, is true only if by 'law' we mean the general rules that apply equally to everybody ... As a true law should not name any particulars, so it should especially not single out any specific persons or group of persons."91 However, Hayek recognizes that certain rules may discriminate among citizens and classes of actions: "The requirement that the rules of true law should be general does not mean that sometimes special rules may not apply to different classes of people if they refer to properties that only some people possess."92 That may be enough to claim that the principle of generality is consistent with distributive justice. Yet Hayek goes farther and argues that, in order to be legitimate, a legislative distinction must comply with a set of specific criteria: "Such distinctions will not be arbitrary, will not subject one group to the will of others, if they are equally recognized as justified by those inside and those outside the group. This does not mean that there must be unanimity as to the desirability of the distinction, but merely that individual views will not depend on whether the individual is in the group or not. So long as, for instance, the distinction is favored by the majority both inside and outside the group, there is a strong presumption that it serves the ends of both."93 The criteria suggested by Hayek necessarily involve the assessment of the moral character of the value underlying the distinction. This goes beyond the idea of predictability and certainty. It is based upon the idea that the law should be accepted in some sense by the community, as morallyjust and equitable. Originally designed to meet the conception of the rule of law as certainty, Hayek's principle of generality may be understood in terms akin to the rule of law as justice. Raz correctly notices that this was "the slippery slope leading to the identification of the rule of law with the rule of good

165 The Rule of Law as Certainty

law."94 If the principle of generality merely requires the formulation of the rules or norms in terms that are universalizable, Hayek's argument is misleading. Thus, the rule of law as certainty is neutral as to whether a judge may or may not base his decision upon considerations derived from some conception of social justice. The judges remain as free or as constrained as with the upholding of any other end. The constitutive principles of that idealtype are consistent with most of the substantive ends, just or not, right or wrong.95 It is in that sense that Fuller's "procedural natural law" must be understood.96 His principles are concerned "not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be."97 It follows that we are back to the end of the preceding section. The rule of law as certainty is constituted of principles that do not constrain the judges as to the content of the very decisions they hold in many cases. Consequently, in practical terms, law is condemned to uncertainty.

CHAPTER SIX

The Rule of Law as Justice

The rule of law as justice postulates a conception of law in which the fundamental characteristic of its constitutive principles is to promote justice. The law is conceived as a normative order whose function, purpose, and subject is to determine the rights, the obligations or duties, and the powers of each individual, and to distribute the advantages and the burdens between the members of the community regulated by it, as is their due.1 This conception of the rule of law is old.2 It derives from classical natural law theories which state that, in order to be accepted as valid law, positive law (for example, legislation and judicial decisions) must be ultimately justified by and consistent with the norms of natural law, that is, with a set of objective, universal, permanent, and ultimate norms prescribing what is morally obligatory.3 According to Cicero, "there is in fact a true law - namely, right reason - which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong ... To invalidate this law by human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it wholly is impossible ... But there will be one law, eternal and unchangeable, binding at all times upon all peoples; and there will be, as it were, one common master and ruler of men, namely God, who is the author of this law, its interpreter, and its sponsor."4 The state, the laws, the magistrates, all were subject to the fundamental principles of natural law. According to G.H. Sabine and T.L. Thorson, "force is an incident of the state and is justified only because it is required to give effect to the principles of justice and right."5 In the third century A.D., Domitius Ulpian maintained that "justice is the constant and perpetual desire to give to every one that to which he is entitled. The precepts of the law are the following: to live honourably,

167 The Rule of Law as Justice

to injure no one, to give to every one his due. The science of the law is the acquaintance with Divine and human affairs, the knowledge of what is just and what is unjust."6 These ideas were taken up again and adapted by Christian medieval political theorists.7 The whole universe was conceived as a coherent and rational order deriving its unity from God. There existed both an ultimate divine law and a natural law inherently right and just that could be respectively revealed and discovered by human reason. These laws were superior and antecedent to all human actions and were consequently binding upon those who governed. According to Allen, "It would never have occurred to a political theorist in the Middle Ages to doubt that the whole aim of law was approximation to ideal justice, or to regard particular laws merely as rules of thumb for the mechanical regulation of society. It was because they found in human law an aspiration towards ideal justice that the men of the Middle Ages were so deeply concerned with the Law of Nature."8 The Christian theory of natural law has been the framework within which Western law has developed.9 Thus, following the discovery of Justinian's compilation in about 1080, the medieval jurists regarded Roman law as "a single authoritative expression of right order,"10 the "repository of all wisdom,"11 in short, "a written natural law, a ratio scripta, to be taken ... as sacred."12 They assumed that the text, in spite of its apparent contradictions, was a coherent and consistent whole embodying fundamentally true and just norms of conduct.13 According to scholasticism, they had to reason dialectically and, where the difficulties persisted, they appealed to justice, reason, or natural law.14 In such a spirit, canon law15 and secular law such as common law and equity principles16 have developed. In the Middle Ages, therefore, the law was conceived as a normative order deriving its ultimate validity and justification from its conformity with "right reason." Accordingly, the rule of law as justice could be called the rule of law as reason. According to H.J. Berman, "as the medieval theologians asserted that Reason governs the universe, so medieval jurists said that Law governs the universe, including all human relations, even the relation of the sovereign to his subjects. Thus from the principle that Law is Reason came the idea that Law is complete, covering all situations, as well as the idea that Law is supreme, governing all men." 17 Such a legal order should be highly rational, that is, all legal propositions must be coherent and consistent as representing a system of law.18 Moreover, the legal order should be reasonable, that is, all legal propositions purporting to be true must be accepted as just and equitable.19 The rule of law as justice or reason implied that it was necessary to alter or to set aside any legal rule which, if construed

168 An Alternative Constitutional Theory

either literally, logically, or in accordance with its traditional meaning, would produce a result inconsistent with what justice would require. Indeed, in England, from the fifteenth to the seventeenth centuries, the chancellor expressly recognized it to be within his jurisdiction to decide in accordance with equity, that is, with what conscience required.20 Moreover, from the sixteenth century, the judges of the common law courts also recognized it to be within their jurisdiction to alter or set aside formal legal rules so as to uphold justice and equity.21 It might be assumed that, with the growing acceptance of legal positivism in the nineteenth and twentieth centuries, the rule of law as justice became obsolete.22 Yet that, plainly, is not so: the rule of law as justice, in spite of the dominant theory of legal positivism, had an important number of influential defenders in the nineteenth century and still has some today.23 Further, this conception of the rule of law has been the one accepted by the vast majority of judges from their internal point of view, not only when natural law was the paradigmatic political theory but also in more recent times. I do not claim that contemporary judges accept the Christian theory of natural law or that they believe in some objective, universal, permanent, and foundational principles of justice. I do claim, however, that the best construction of the conception of law they recognize as supreme within the process of practical legal reasoning is the rule of law as justice. To that extent, Fuller is right when he says that "the chief value of the older books on natural law for us of the present day does not lie so much in the systems they expound, as in the kind of legal thinking they exemplify."24 For the purpose of the rule of law as justice, the three following principles are constitutive of the idealtype: the law is formally just; the law is materially just; the law is equitable. THE CONSTITUTIVE PRINCIPLES

The constitutive principles of the rule of law as justice are postulated by the judges who recognize it with a particular pre-interpreted and pre-determined content depending on what is understood as required by justice. It is generally admitted that the notion of justice consists of two elements, one of which is common to all conceptions of justice, the other being indeterminate and variable and supplying the criteria by which one conception can be distinguished from all others.25 The common element corresponds to what is generally called formal justice and the indeterminate and variable element corresponds to what is called material justice. Here, the concepts "formal" and "material" do not characterize the legal order as such but the very notion of "justice." Where it is defined independently of the material criteria by

169 The Rule of Law as Justice

which rights, obligations, powers, advantages, and burdens are determined and distributed, the definition is formal. By contrast, it is material where that definition is concerned with such criteria. Indeed, if the principles that the law is both formally and materially just are constitutive of the idealtype, the rule of law as justice postulates the supremacy of a substantive conception of law and not merely an instrumental one. It roughly corresponds to what Weber called a materially rational legal order. The judicial decisions must be ultimately based upon a set of substantive norms (principles, rules) of justice. However, contrary to what Weber suggested, such substantive norms of justice are not merely "extra-legal."26 They are constitutive of the legal idealtype recognized as supreme by the judges from the internal point of view. They are thus constitutive of law and constitute the very legal foundation of the whole legal order. The law is formally just

The constitutive principle providing that the law is formally just means that, whatever the content of the legal norms (principles, rules) is, it must be interpreted and applied so as to treat in the same way those who are alike from a particular point of view.27 The principle of formal justice imposes upon those who are committed to uphold the rule of law, therefore, the fundamental obligation to treat in the same way those who are alike from that particular point of view. Yet the principle of formal justice does not indicate the relevant criteria of similarity or dissimilarity between different cases and persons nor the manner according to which they should be treated. Consequently, the principle of formal justice is often regarded as being an empty shell.28 But that is somewhat misleading. It has a content which implies important consequences for the integrity of the legal order. First, it implies that the law must be constituted of legal norms (principles or rules) prescribing both the treatment of the various categories and the relevant criteria by which the members of such categories must be determined. These norms may be either written or unwritten. Secondly, it implies that the law must be consistent. A given normative treatment must be applied equally to all individuals and only to those who possess the relevant characteristics prescribed by the norm for being a member of the essential category. In turn, that implies, on the one hand, that the legal rules must be conceived to be universalizable even where they aim at a relatively small set of cases.29 On the other hand, it logically implies the principle of equality before the law. According to C. Perelman, "it is not the idea of equality that constitutes the basis of justice, even of formal justice, but the fact of applying one

170 An Alternative Constitutional Theory

rule to all members of an essential category. Equality of treatment is merely a logical consequence of the fact of keeping to the rule."30 Accordingly, the principle is likely to imply the development of some doctrine of precedent and then the realization of a particular form of positive legal order. Third, the principle of formal justice implies that the law is coherent. On the one hand, one rule must not be in conflict with another because that would mean that two like cases could be treated differently. On the other hand, the very rules of the system must be based upon general principles that are internally coherent, that is, upon principles that do not justify at the same time the existence of two or more contradictory rules. Thus, if two rules appear to be in conflict, the law postulates that there exists a more general principle that can reconcile them or that can guide the judge to determine which rule must be of no force or effect. If two principles appear to be in conflict, the law postulates the existence of further principles capable of reconciling them. And so on, until we reach the ultimate substantive principles of the system, conceived as internally coherent and constitutive of the legal ideal type. Thus, the principle that the law is coherent requires us to conceive of law as an integrated system of norms and, consequently, the principle of formal justice postulates that for any given case there is always one uniquely correct answer. The corollaries of the first constitutive principle show that the rule of law as justice is not opposed to the idea of certainty in law. On the contrary, if the principle of consistency should develop some doctrine of precedent and a positive legal order, judicial uniformity should follow and, then, an increase in predictability. Moreover, as the principle that the law is coherent leads to the systematization of the law, it is likely to increase, as we saw in Chapter 5, its degree of certainty. Finally, insofar as the principle of formal justice justifies in its own right the legal recognition of the so-called principle of legality, as I argued elsewhere, it directly contributes to legal certainty.31 Yet, to the extent that it ever happens, legal certainty would be an effect of the principle of formal justice and not one of the logical consequences or the raison d'etre of the constitutive principle. The law is materially just

The second constitutive principle postulates that the law is a materially just normative system. We all know that what constitutes materially just is contested within legal, political, and moral theory and admits of various conceptions of justice.32 Yet, for the purpose of the rule of law as justice, it is sufficient to say that whatever it may embody, it must be

171 The Rule of Law as Justice

understood as meaning that the content of the law, from the ultimate principles of material justice to the judicial decisions, through all the norms (principles, rules) that guide the process of adjudication, must be acceptable as morally just. That assertion is intentionally formulated in abstract and formal terms so as not to prejudice the very content of these norms in any particular legal system in which they may vary. Yet, even so formulated, the principle that the law is materially just has a pre-interpreted content and, accordingly, provides us with various practical reasons. First, it implies that the judges must elaborate a substantive conception of justice. They must determine the very content of the ultimate substantive principles of justice acceptable as morally just. They must determine the fundamental criteria according to which the law distributes rights, duties, powers, advantages, and burdens among the members of the community and by virtue of which two cases must be conceived as similar or different in some relevant respects. Obviously, that corollary requires the judges to make various value judgments. These judgments are ultimate within the process of adjudication since they determine and constitute the norms of the ultimate point of view (that is, what is materially just) from which all judicial decisions must derive. That does not mean that the judges have to believe in natural law to postulate that there exist some absolute principles of morality or search for objectively true or universally valid moral values and principles "out there." The rule of law as justice, as described in this chapter, might perhaps be consistent with certain moderate versions of moral relativism (but that should be argued for). What is required, however, from the internal point of view of judges, is the determination of the fundamental moral values of the law and the content of the ultimate principles of material justice. For that purpose, judges may proceed in accordance with various approaches and the principles may take various forms. In Western legal tradition, some of them have been referred to as the general principles of law. Secondly, the second constitutive principle implies that all judicial decisions must be acceptable as morally just. Consequently, the ultimate outcome of the process of adjudication, as well as the set of reasons that justifies the criteria by which a judge classifies similar and different cases and establishes the treatment that is due to each, must be acceptable as morally just in accordance with the ultimate principles of mate rial justice. Thirdly, the second constitutive principle implies that, for any legal question, the law always supplies one single right answer. Thus, faced with two or more acceptable solutions, the judges are compelled to uphold the one which, for them, on balance, taking everything into

172 An Alternative Constitutional Theory consideration, seems the best or the most acceptable. Of course, from an external point of view, one may disagree with a judge's decision as to the best resolution of a legal conflict because there might often be more than one acceptable solution. But, even if it was not the best solution, one could regard it as an acceptable solution. However, from the internal point of view, the judges are always compelled to uphold the solution that seems to them to resolve a conflict in the best manner. Obviously, a decision not to uphold the solution that would appear to be the most acceptable from the judge's point of view would not be acceptable. In fact, therefore, for the judge, the issue is simply this: What is the right thing to decide?33 The second constitutive principle also confirms that the rule of law as justice is not opposed to the idea of certainty in law. Insofar as the judges recognize and uphold a certain number of principles of justice acceptable as morally just, it is likely, at least in our political and legal tradition, that one of them, at some point in the chain of norms, embodies the value of legal certainty. It may derive from various principles implying, for example, a commitment to autonomy, to liberty, or not to violate the legitimate and reasonable expectations of the citizens. W.G. Miller clearly expresses the latter proposition: "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposing principles. If a case was decided against me yesterday when I was defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights."^ Here, contrary to the principle of formal justice, legal certainty would not be a mere effect of the constitutive principle. It would truly be a logical consequence of one of its ultimate principles. Moreover, that would mean that the rule of law as justice would recognize the validity of the principles of prospectivity, clarity, and generality as well as their corollaries. Yet, because they are not ultimate, these principles would not be absolutely preponderant nor rigidly applied. Where, from the point of view of material justice, competing principles appear weightier or more important than the value upheld by the principle of certainty, they must prevail. The law is equitable For the purpose of the rule of law as justice, the constitutive principle that the law is equitable comes within a long-standing tradition that goes as far back as Aristotle: What creates the problem is that the equitable is just, but not the legally just but a correction of legal justice. The reason is that all law is universal but about

173 The Rule of Law as Justice some things it is not possible to make a universal statement which shall be correct. In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error. And it is none the less correct; for the error is not in the law nor in the legislator but in the nature of thing, since the matter of practical affairs is of this kind from the start. When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, when the legislator fails us and has erred by over-simplicity, to correct the omission - to say what the legislator himself would have said had he been present, and would have put into his law if he had known. Hence the equitable is just, and better than one kind of justice - not better than absolute justice but better than the error that arises from the absoluteness of the statement. And this is the nature of the equitable, a correction of law where it is defective owing to its universality.35

Although that passage is open to interpretation, it has generally been understood as meaning that a judge may legitimately refuse to apply a legal norm (rule, principle) according to what would be required by the principle of formal justice if such an application would be inconsistent with a principle of material justice.36 The third constitutive principle, therefore, postulates that general legal norms, even if clear, may not contemplate all and only those relevant circumstances of a given case. A judicial decision that would attach too much weight to the principle that the law is formally just may overlook the principles of material justice and, consequently, produce a result that would be inconsistent with the fundamental postulate according to which the law must be acceptable as morally just. The principle of equity, therefore, asks the judge to verify, for each case, if the conditions of application enunciated in the norm take into consideration all and only those relevant circumstances of the particular case in the light of what is postulated as materially just. Where this is not the case, the judge must decide whether he must alter or set aside the norm otherwise formally applicable. It follows that, according to the third constitutive principle, the law admits individual justice of some sort. The principle of equity, far from being inconsistent with the idea of a just normative order, must be conceived as an essential complement to the first two principles. On the one hand, it favours the principle that the law is materially just because it implies that the judges have the duty to determine for each case whether a decision according to the principle of formal justice would be acceptable as morally just. On the other hand, by taking into consideration all and only those relevant characteristics of a case from the point of view of what is accepted as materially just, it favours the principle that the law is formally just

174 An Alternative Constitutional Theory

because it ensures that only like cases must be and are going to be treated alike. Contrary to the first two constitutive principles, the principle that the law is equitable is in conflict with the idea of legal certainty. By allowing any judge to alter or set aside a rule where the conditions of application are apparently met by the concrete case, it prevents the citizens from predicting with certainty the legal consequences of their acts. Insofar as the idea of legal certainty was implied by one of the principles of material justice, the third constitutive principle would confirm what we said earlier, namely, that legal certainty should not be taken as an absolute or rigid. It should be only one reason weighed against all the other considerations relevant to the case through the principle of equity. That is why many authors associated with the rule of law as certainty are opposed to any form of equity in law.37 The principles providing that the law is formally just, materially just, and equitable, in addition to their corollaries, constitute the idealtype of the rule of law as justice. As for the rule of law as certainty, one may imagine a set of required standards ensuring that the institutions are going to act in accordance with the rule of law as justice. To that extent, they should be regarded as institutional principles. For example, one may think of the principles of legality, separation of powers, judicial independence, natural justice, judicial review of governmental acts, and so on. However, one particular conception of the rule of law as justice may imply a commitment to uphold one or more of these institutional principles on the ground that they logically derive from the fundamental principles of material justice. Where that happens, these principles are required by the rule of law as justice. Otherwise, they must be justified on pragmatic grounds. THE INTERNAL COHERENCE OF THE RULE OF LAW AS J U S T I C E

The rule of law as justice is an internally coherent conception of the rule of law. On the one hand, it supplies an interpretation of the concept of the rule of law which is consistent with its basic propositions. It provides the judges with a set of legal reasons well designed to constrain and guide the process of judicial decision. It supplies both the formal and the substantive normative standards (points of view, norms) according to which judicial decisions must be made and the ultimate criteria by which we can evaluate their correctness (justesse) and their Tightness (justice). On the other hand, it fits the process of judicial decisions as it appears in practice. It admits the inherently evaluative aspect of all judicial decisions. It recognizes that the process of

175 The Rule of Law as Justice

legal reasoning is logical in a material sense. It does not deny that intuition, emotion, practical wisdom, common sense, or passion may play a role in adjudication.38 However, it requires such non-rational elements to be rationally justified, that is, revised, tested, or verified in accordance with the conception of justice embodied within the idealtype.39 Finally, it makes plain that the distinction between clear and difficult cases is one of degree. Ultimately, it makes sense of the judicial duty to read the law as a coherent, consistent, morally just, and equitable body of norms or, as MacCormick puts it, to justify decisions on the basis of "consequentialist" arguments, arguments from "coherence," and arguments from "consistency," all presupposing "an adherence to the principle of formal justice."40 Yet this duty, as we know, is neither derived from the law as it empirically manifests itself in fact (indeed, the law as positive rules does not expressly say so and is neither totally coherent nor perfectly just) nor a mere moral requirement prescribing what the judges ought to do. The duty is not based upon an undemonstrable and empirically unverifiable hypothesis nor is it a mere extra-legal postulate or assumption by the judges. The judicial duty to so read the law is actually required by the constitutive principles of the rule of law as justice. Accordingly, it is plainly required by law.41 More precisely, the constitutive principles of the idealtype supply, on the one hand, what MacCormick has called the "underpinning reasons"42 justifying both the recognition of certain criteria of validity of legal rules, the rules and standards according to which such criteria must be interpreted, and their concrete significance. On the other hand, these principles constitute the reasons justifying and guiding the determination of the rules for the interpretation of the set of valid legal rules, of the appropriate substantive interpretive standards (point of view, norms), and, then, of the very significance of the rules. Thus, the various methods of interpretation (literal, purposive, systematic, logical) and the various presumptions of intent must be regarded as required and justified by law to the extent to which they derive from the constitutive principles of the idealtype. Norberto Bobbio, a legal positivist, has rightly argued that the formal rules of interpretation used to resolve antinomies in law either chronologically (leges posteriores primes contrarias abrogani), hierarchically (constitution versus statute; statute versus administrative order), or in the light of the general or specific character of the law (generalia specialibus non derogant) are presumptions of justice.43 We may assume that the courts may legitimately follow these formal rules of interpretation because the more recent legal rule is likely to be more just than the older rule (it best reflects contemporary standards of justice or currently has the support of the majority);

176 An Alternative Constitutional Theory

upholding the specific rule is required by the principle of formal justice; and the superior rules are likely to embody more fundamental values than the inferior rules. However, as these rules are mere presumptions of justice, they do not hold for the principles of the rule of law as justice. If, in a given case, they lead to solutions inconsistent with the constitutive principles or if there is a conflict between two formal rules of interpretation, a judge must determine which rule he must follow (or set aside) on the ground of his understanding of what is required by the rule of law.44 Similarly, but more concretely, the rule of law as justice may require, for example, that any rule must be interpreted in accordance with its reasonably clear meaning, that is, its literal meaning or the meaning an ordinary citizen reading that rule would reasonably understand by it. However, if the reasonably clear meaning of a rule (or any other meaning) is inconsistent or produces a result inconsistent with a more basic principle of formal or material justice or with what is equitable when everything is taken into consideration, the law may require the judge to alter or set aside such meaning. Suppose that a municipal bylaw reading: "It is prohibited to introduce animals into this bus" is posted on a bus, and that a judge has to decide whether a bus driver is entitled to forbid a blind woman who is accompanied by her dog from boarding the bus. According to the rule of law as certainty, the driver's order is clearly justified. Yet, the rule of law as justice, by contrast, requires the judge to determine whether such interpretation of the rule is just and equitable in the light of its constitutive principles, taking all the relevant circumstances into consideration. A negative conclusion would compel the judge to set the reasonably clear meaning of the rule aside, whereas an affirmative conclusion would compel him to hold that the bus driver's order was justified. Consequently, if an inter pretation of a rule corresponds to its reasonably clear meaning, it is not because that rule is inherently clear or because we must always follow the reasonably clear meaning. It is because the judge who interpreted it became convinced that such meaning is justified and required by the constitutive principles of the rule of law as justice. Many authors believe that the judicial attitude towards legal interpretation is based upon more or less consistent practical compromises between two extreme ideologies: stability, legal security, and certainty on the one hand, and justice and equity on the other.45 However, that may be quite misleading if it postulates that the process of interpretation is an intermediate way between two contradictory, indeed opposed, systems of values. From the point of view of the rule of law as justice, the process of legal interpretation is the materialization or concretization of the coherent and integrated system of justice embodied

177 The Rule of Law as Justice

within the constitutive principles of the idealtype. Therefore, there is no natural, logical, or inherent contradiction, indeed opposition, between the realization of justice on the one hand and the promotion of legal certainty on the other. The latter norm may be just a logical consequence (in a material sense) of the former. It may compete with all other norms that may also derive from the idealtype. In some cases, such a system may compel a judge to uphold legal certainty on the ground that the principle that justifies it has more weight than those that require an unpredictable decision. However, in other cases, the constitutive principles may require that judge not to uphold the principles of legal certainty. A critic might object that the rule of law as justice is nevertheless internally incoherent for two reasons. First, assuming that judges determine the set of ultimate premises according to which they should decide cases, these premises, being conceived in abstract and general terms, cannot constitute a set of constraining legal reasons required by the concept of the rule of law. Secondly, because there are limits to practical reason, the system of values embodied within the ultimate principles of justice can neither be justified nor justifiable and judges may never verify whether or not their principles are truly just. The first argument reveals a deep misunderstanding of the process of reasoning according to the rule of law as justice. We know that a judicial decision is not an uncontroversial logical deduction from universally valid premises but the result of an essentially interpretive process requiring a complex network of interpretive decisions. In theory, that process may be totally unconstrained. However, in practice, the duty to uphold the rule of law as justice, if taken seriously, entails a process of reasoning which may be associated with what moral and political philosophers call the coherence theory or "constructivism."46 The rule of law as justice, postulating the principle of formal justice, implies the principle that law is coherent. It follows that the whole set of decisions, reasons for decision, or norms should be constructed as an integrated whole, internally coherent in the light of a body of unifying principles and values. Such a construction allows the judge, not only to understand in concrete terms the conception of material justice embodied within the law, but the sort of meaningful and concrete legal constraints required by the concept of the rule of law. The process requires the judge to identify the set of "initial commitments,"47 that is, the body of existing norms or decisions (assigning rights, duties, liability, powers, and so on) which must be coherently explained and justified in terms of the ultimate premises. Then, he must ascertain the set of abstract and general principles of material justice that apparently harmonize his initial commitments. He must assess the degree to which

178 An Alternative Constitutional Theory

these principles adequately make sense of (that is, explain and justify) these commitments. The judge seeks to maximize the degree of systematic integration between the justifying principles and the particular norms and decisions. He is compelled to interpret the more concrete meaning of each basic principle in accordance with each particular element of the law. The judge proceeds within a spiral of norms evolving from the most general and abstract to the most concrete, the interpretation of the former being altered by, and in turn altering, the understanding of the latter. Each principle is going to be adjusted, reformulated, and materialized in accordance with each element of the law. The more the concrete interpretation of the principles succeeds in providing a coherent account of initial commitments, the more justified it is. If a particular interpretation of a principle is inconsistent with one of these commitments, the judge may either set the principle aside, reinterpret it so as to take that commitment into account, or regard the initial commitment as a "mistake."48 In all cases, the interpretive decision should be the one that maximizes the coherent integration of all parts of the legal order. By the end of the process, the legal order should be understood as a meaningful whole in the light of a set of unifying principles, and the concrete interpretation of the latter should make sense of all its parts. These concrete interpretations make the ultimate premises meaningful and constraining upon the judges. In any new concrete case, the judge's duty is to reach the decision for which the ultimate principles, understood in terms of their concrete interpretation, supply the best justification. That decision inevitably will be the one that coheres best, or at least to as great a degree as any other decision, with the whole system. According to the objection cited above, however, the rule of law as justice is nevertheless internally incoherent because, even assuming that a decision may be accepted as coherent within the legal system, there are no means by which to show and to verify whether it is acceptable as morally just. First, the ultimate principles of a system of justice could not be logically grounded upon a more fundamental reason because that would mean that they are not ultimate. Second, they could not possibly be demonstrated because they can be neither true nor false. Since they do not describe anything, they cannot be tested against experience or observation. They would seem rather to prescribe a value (an "ought") which, as we know, cannot logically be derived from a judgment of fact (an "is").49 Perelman once said, "[Our] attempt to justify rules in order ... to eliminate the arbitrary from them must come to a halt at an unjustified principle, an arbitrary value."50 Thirdly, statements of value would not be acts of reason but

i79 The Rule of Law as Justice

the product of emotions or non-rational intuitions, reason being "the slave of passion."51 Many legal and constitutional scholars have accepted the validity of this form of ethical scepticism.52 Let us assume that, if moral assertions were ultimately arbitrary in the foregoing scepticist sense, the rule of law as justice would be internally incoherent. It would require the judge to elaborate a substantive conception of justice but would not supply any criterion external to that conception which would allow us to test whether the ultimate principles of justice are truly just and whether the decision is reasonable. That objection admits that it does not make sense to require within the legal system itself further justifications for the constitutive principles of justice because such principles provide, at any given time, the ultimate criteria for testing the validity of what should count as just or unjust. However, it raises an important question as to whether the judges may justify, in some way, the truth or the soundness of the recognized principles of material justice. Each judge may and does have reasons to recognize that a particular set of principles is acceptable as morally just. That may be sufficient indeed for the idealtype not to be arbitrarily constructed. As MacCormick has said, even if our ultimate normative premises are not reasoned, nor the product of a chain of logical reasoning, it does not follow that "no reasons at all can be given for adhering to such ultimate normative premises - 'principles' - as grounds for action and judgment."53 That set of justifying reasons logically constitutes or derives from a more general substantive moral theory accepted by the judge as appropriate. An ultimate principle of justice is really just in a material sense if it agrees with that moral theory. In practice, however, the judge is compelled to clarify the content of the more general moral standards by which he may determine what is or is not acceptable as morally just. Of course, as we said, these moral norms may not be as universally valid, objective, or absolute as natural law or other foundationalist theories would claim them to be, and their values may not be self-evident. The rule of law as justice does not presuppose that, in order to have a rational assertion with respect to morality, we must postulate the existence of absolute objective truth.54 On the one hand, the validity of that presupposition has not been demonstrated and, on the other, it seems to be contradicted by the practice of ethical discourse, which consists of determining whether such ultimate ethical premises are well founded within that discourse. This practice seems to show that the participants do not seek to "demonstrate" the objective validity or truth of the premise or value but to convince themselves as well as others that a given ultimate premise is adequately justified from an agreed point of view within the practice of morality.55

180 An Alternative Constitutional Theory

It is not necessary, for the time being, to analyse the various approaches or theories that provide the reasons for justifying and assessing the recognition of the particular values or the ultimate principles of substantive justice. It is sufficient to emphasize that an adequate interpretation of the judicial practice would certainly reveal that, in general, such reasons are based upon a coherent construction of what is accepted as morally just within the community to which the law applies.56 It may be said that communities such as our own pluralistic one do not have a unique and coherent conception of justice, that there is no consensus as to what is acceptable as morally just, and that there are many contradictory opinions with respect to moral problems. However, there do exist widely shared opinions and beliefs with respect to what is acceptable as morally just in relation to many moral issues (for example, there is general agreement on the issue of slavery, child exploitation, freedom of religion, and so on). It should thus be possible, in principle, to bring out, through a coherent construction of the foundation of generally accepted beliefs and opinions, some consensus with respect to a certain number of fundamental values, provided that we formulate them in relatively abstract and general terms.57 For that purpose, a judge may legitimately follow an existing articulated moral theory if he has good reasons to believe that it constitutes an interpretation that adequately fits the basic and fundamental community's sense of justice.58 But he may also seek his own interpretation. If that is the case, the judge is likely to proceed in accordance with the postulates of coherence theory or constructivism.59 He will start with a set of principles that apparently make sense of the set of specific moral judgments on which most members of the community are in agreement. These judgments constitute the sort of initial commitments for which justification in terms of general moral principles is needed. As for the construction of the legal system, the judge should proceed along a spiral of interpretive decisions from the most abstract to the most concrete and vice versa until he is satisfied that his understanding of the general moral principles maximizes the unity of the accepted moral convictions. Whatever the approach is and whatever moral system is accepted as justified, the judge should further show that his legal decisions (with regard to the set of ultimate principles of justice accepted as making sense of the legal order, as well as his concrete decisions in particular cases) are justified by that moral system. For that purpose, he should assume that a particular interpretive decision within the process of legal reasoning is acceptable as morally just if its content, consequences, and justifications are supported by the moral system in terms of "fitness,"

181 The Rule of Law as Justice

"consonance," or, in short, "coherence" to at least as great a degree as any other possible interpretive decision. That requires a complex process of verification involving an evaluation of the judge's understanding of the law in the light of that moral system. It follows that he may be compelled to alter or abandon his actual interpretation of the ultimate premises or to introduce new interpretations, or even new principles, into the law. That may sound illegitimate to those who accept the validity of legal positivism, but it is properly required by law provided that the law is conceived in the light of the rule of law as justice. The process of legal reasoning according to the rule of law as justice seems to involve three different steps: the construction of two distinct normative orders, the legal and the moral, and the assesment of the first in the light of the second. Yet, in practice, as should be obvious, these steps proceed simultaneously and the two normative orders are interlocked. At any given time, a particular judicial decision is controlled by the concrete meaning of the ultimate premises but the understanding of these premises is simultaneously informed both by the initial commitments (themselves understood against the background of the moral system) and by the accepted moral system. The spiral of norms leads the judge from what is substanlively acceptable as morally just according to the accepted moral system to what is formally just according to the existing norms and decisions. Yet the understanding of the law (the ultimate premises, the existing rules and decisions, and the best solution) is at any given time interpreted in the light of what is also substantively acceptable as morally just. Therefore, the rule of law as justice would be best conceived as requiring a unique interlocked process of justification. Moreover, one may say that the moral system is thus never exclusively external to the law. The rule of law as justice, postulating that the law must be materially just, requires a form of incorporation into the law of the principles of that accepted moral system. Therefore, logically, any appeal to such a system is required by the law. The judge refers to it so as to execute his duty to uphold the rule of law. It should be recalled, however, as argued elsewhere,60 that interpreting a thing cannot proceed independently of background assumptions and anticipations, theories and meta-theories, or beliefs and conceptions with respect to political morality, ethics, history, sciences, society, metaphysics, religion, and any other field of knowledge constitutive of our world view. Interpretation is a matter of determining which possible meaning of a thing makes best sense within our "horizon of understanding."61 Accordingly, the meaning of a legal text does not only depend on the community's sense of justice; it also depends on the

182 An Alternative Constitutional Theory

background normative considerations which have something relevant to say about that meaning. Similarly, interpreting the community's sense of justice partly depends upon the law as enacted and as interpreted by that community and upon background assumptions and anticipations. In turn, the meaning, the relevance, and the weight of each background belief and conception for the purposes of interpreting a given thing are partly dependent upon the relevance, the weight, and the meaning of each other belief and conception. It follows that the right interpretation in any given case is the one which, after reflection, best coheres with the whole body of relevant normative considerations constructed as a coherent and meaningful whole.62 Yet the rule of law as justice contributes to that picture in the following way. First, it constitutes the regulative idea of the process of constructing the body of normative considerations as a coherent and meaningful whole by supplying its main rationale, purpose, or focal point. It contributes to give the process of interpretation the meaning and the structure it has. Secondly, the rule of law as justice provides an internal set of material constraints which are particularly weighed within the body of relevant normative considerations. It states that, among the normative considerations which have something relevant to say about the proper decision to take, a number of principles possess particular force. It follows that the rule of law as justice prevents the judges from seeing background normative considerations as a general repertoire in which they can draw any reason they wish, or as a thing which can be constructed in any number of ways or manipulated to justify any interpretive decision they happen to prefer.63 Other kinds of objections may be formulated against the rule of law as justice. One may argue, for example, that the judges have neither the resources nor the democratic legitimacy to determine the right, the wrong, the just, or the unjust, and if they ever attempted to do so they would necessarily impose the values of one social class, their own, upon the whole community, or they would either bind the law to traditional values or cause it to evolve haphazardly. One may argue that the rule of law as justice is an elitist conception that is likely to discourage citizens from participation in political life, to legitimize an unjust and oppressive political system, or, on the contrary, to discredit it. All these objections derive from what is required by some acceptable normative theory of legitimacy or by some normative conception of what it is appropriate for the judiciary to do. For our purposes, it is not necessary to come to terms with these objections. It is sufficient to show that the rule of law as justice is an internally coherent conception of the concept of the rule of law. It is obvious that, if I were to argue that the rule of law as justice is commendable from a moral or political

183 The Rule of Law as Justice

point of view, I would need to assess the validity of these objections. A conception of the rule of law, even internally coherent, should be rejected if, overall, it proves to be illegitimate or inappropriate; indeed, insofar as the rule of law as justice is claimed to be the only internally coherent conception, we should abandon the whole idea of upholding the rule of law. However, such discussion goes beyond the main purpose of this book, which is to defend the coherence of the concept of the rule of law and to offer a preliminary understanding of that concept in the light of Canadian constitutional law.

CHAPTER SEVEN

The Rule of Law as Justice in Canada

The foregoing chapters imply that a coherent construction of the conception of the rule of law in a given jurisdiction can (and, I believe, should) proceed from the assumption that the judges do recognize from the internal point of view a duty to act in accordance with a set of principles constitutive of a particular understanding of the rule of law as justice. The constitutive principles of the rule of law as justice may be characterized as formal and substantive. A constitutive principle is formal if it is concerned with the form or the appearance of the legal order (norms and judicial decisions) independently of its content. For example, the principle that the law is coherent is formal because it provides that the law is a body in which all parts are closely unified and harmoniously integrated but does not tell us what its content is or should be. Similarly, the principle that the law is based upon a certain number of principles of material justice may be classified as formal because it does not tell us what conception of material justice should be embodied in the law. Most of the formal constitutive principles of the idealtype have been seen in the preceding chapter. Many others derive from them. These formal principles should be accepted by all judges who recognize a duty to act in accordance with the rule of law as justice because they are logically postulated by it. They constitute the common element of all possible concrete interpretations of the idealtype. A constitutive principle is substantive if it postulates an element of the material conception of justice of the given idealtype. For example, the principle that the law promotes equality of opportunity would be substantive because it would not consider the form of the legal order but its content, that is, its basic substantive values.1 The substantive constitutive principles are obviously not universally recognized. Even

185 The Rule of Law as Justice in Canada in a given jurisdiction, two individuals accepting the authority of the rule of law as justice may disagree as to what they are and as to what they materially imply. For that reason, they constitute the variable and indeterminate elements of the rule of law as justice. The nature of the rule of law as justice prevents us from determining once and for all the set of accepted constitutive principles of material justice shaping a given legal system. First, their content may never have been expressly established in the body of legal decisions. Secondly, all the judges may not recognize exactly the same principles since each has a duty to determine for himself the content of the idealtype. Finally, the substantive conception of justice may have evolved and been altered in a relatively short period of time. Consequently, as for the very concept of rule of law, we should not proceed purely empirically. The best theoretical approach is hermeneutical and constructive: w must construct the internal meaning of the rule of law as justice. We may start from the postulate that the set of formal principles of the rule of law as justice has structured judicial practice. Thus, according to the principle of coherence (deriving from the principle of formal justice), we may postulate, first, that the legal discourse, as manifested in the whole body of judicial decisions, is based upon a set of coherent abstract principles of material justice. Secondly, we must try to identify them. That requires us to construct the meaning these principles have for the judges who have upheld them in their decisions. Practically, the substantive principles of justice of a given legal system must be those that maximize in terms of explanation and justification the systematic coherence of all initial commitments, that is, the substantive norms and decisions. The principles do not have to make sense of all elements of the law (norms, decisons). But, at the very least, they must make sense of all the elements recognized by the judges as central and well founded in law. Thirdly, since the process of construction does not operate in a vacuum, we may assume that the judges' set of substantive principles of justice is consonant with a certain moral theory likely to be inferred from a sense of what is acceptable as morally just in the community to which the law is applied. It is thus necessary to construe the judges' interpretation of that moral system, likely to be inferred from the community's sense of justice, in the light of the body of legal norms and decisions. In fact, we enter into a circle: the content of the idealtype is a construction of the body of accepted decisions and norms in terms of ultimate justificatory principles of justice understood against the background of the accepted moral system which, itself, is revealed through an understanding of the idealtype accepted by the judges. Moreover, as we know, such construction cannot proceed

186 An Alternative Constitutional Theory

without background assumptions and anticipations partly determined by the coherent understanding of the whole body of theories and metatheories constituting our world view. In this chapter, I set out the set of principles of material justice which constituted the best construction of Canadian constitutional law as it stood in 1982. Moreover, being constitutive of the ideal type, they may form the ultimate principles of material justice of the whole legal order (for example, contract law, criminal law).2 These principles will be formulated in relatively abstract and general terms. Accordingly, one might believe that they apply to almost any liberal democratic state and, consequently, do not highlight what would constitute distinctive Canadian constitutional principles as opposed to British, American, Australian, and so on. But my purpose, in this chapter, is not to produce a unique set of constitutional principles that could mark out the distinctive Canadian constitutional territory. It is to clarify material principles of the rule of law as justice in Canada by making coherent sense of its legal practice and discourse (including those values and principles that would be distinctively Canadian). That involves the formulation of the most basic normative values which have constrained the process of constitutional adjudication over the years. If these principles happen to be fundamental within other Western legal systems as well, the following discussion may constitute a general contribution to the understanding of the rule of law in the Western world. However, the mere fact that these material principles apply to other liberal democratic states should on no account be interpreted as a good reason to conceive them as irrelevant to Canadian law or not sufficiently distinctive to make some contribution to the understanding of the rule of law as justice in Canada. Their more concrete meaning does correspond to the principles that by 1982 Canadian lawyers, judges, law professors, and scholars, in general, already accepted as part of Canadian constitutional law and that can be seen as distinctively Canadian. The rule of law in Canada by 1982 consisted of these substantive principles: the constitutional principle; the democratic principle; the liberal principle; the federal principle. These four principles are not necessarily watertight. One may conceive a coherent theory of the rule of law as justice based upon only one of them and from which the other three would be derived. Yet for the purpose of understanding the rule of law in Canada in 1982, it is advisable to conceive of them as four independent ultimate principles. They represent multiple values which are often in tension and, in many concrete cases, constitute independent reasons for decisions pointing in different directions. To that extent, the rule of law as justice is best seen as a case of value pluralism.

187 The Rule of Law as Justice in Canada

The foregoing principles of material justice, especially the way I describe them, are unavoidably debatable. First, they cannot be shown empirically or logically; there is no verification procedure based upon an independent and neutral standard according to which we may test their validity. Since the process is constructive, the verification must also be constructive. The only "truth" criterion, therefore, is a coherence test. That test is argumentative. If one is not persuaded by the principles I submit there is no alternative procedure other than to continue to offer arguments in favour of my interpretation so as to convince my interlocutor that they justify the whole body of decisions and norms better than any other. Similarly, if one still disagrees with my description, one has no way to invalidate it but through the construction of a coherent conception supported by better arguments. Secondly, the very labels of each of the principles, as well as their content, are debatable since they correspond to contested concepts.3 But my interest is not with the label of a particular ideology but with a coherent construction of the ultimate guiding principles of material justice in Canadian constitutional law in 1982. Thirdly, the formulation of the principles is essentially unstable. My conception of the ideal type is bound to evolve because each new judicial decision, each argument, each consideration guiding the judicial process constitutes data that must be incorporated into a systematic whole and that may require a new understanding of the ultimate principles. For example, the process of constructing the Charter since 1982 has introduced values, principles, and commitments into legal discourse that may require some readjustments of my description. For these reasons, what follows is submitted as adequate but merely temporary. THE CONSTITUTIONAL PRINCIPLE

The constitutional principle groups together the set of principles which, in our legal tradition, have generally been associated with the political doctrine of constitutionalism. A state is constitutional if it is constituted, regulated, and constrained by a set of fundamental norms whose object is the garantisme,4 that is, the protection of certain individual rights and freedoms against arbitrary governmental actions either legislative or executive. It is not sufficient for a state to possess a written constitution in order to be characterized as constitutional. To have a constitution for the purpose of constitutionalism a state must have, as G. Sartori says, "a fundamental law, or a fundamental set of principles, and a correlative institutional arrangement, which would restrict arbitrary power and ensure a 'limited government.' "5 A

188 An Alternative Constitutional Theory constitutional state thus corresponds to what political and legal continental theorists generally call, without further characterization, I'etat de droit6 or the rechtsstaat.17 The constitutional principle is often wrongly confused with other important political ideologies such as democracy and liberalism. In fact, it is seldom found without them. Yet, conceptually, it remains a distinct principle. Therefore, although the constitutional state is generally democratic, nothing in the principle is opposed to a "constitutional monarchy,"8 as European constitutional history has shown.9 Similarly, it would be an overstatement to claim that the constitutional principle is consistent only with a liberal state. Of course, through its emphasis upon the importance of upholding the set of fundamental individual rights and freedoms against arbitrary governmental actions, liberal theory has elaborated the doctrine of constitutionalism.10 However, the idea of curbing government is much older than liberalism. We find traces of it in the Middle Ages in the theory of natural law postulating the supremacy of the law1: and in the Christian conception of human dignity.12 Moreover, as CJ. Friedrich argues, "it would seem, in the light of present evidence, to be quite probable that constitutionalism is combinable with a considerable variety of economic systems."13 Therefore, a socialist state could be constitutional. Similarly, constitutionalism must not be confused with the concept of the rule of law.14 Insofar as the rule of law is conceived as an ideal type the content of which defines a conception of justice, constitutionalism may be one of its constitutive principles. But it does not constitute its totality. Such confusion may result either from a modest version of the rule of law as positive rules, which could be called "the rule of law as constitutional rules," or from one corollary of the constitutional principle which has often been taken as the very concept of rule of law, namely the "principle of legality"J5 or the notion of "government under law." The constitutional principle merely asserts that the state is founded upon a set of antecedent norms, called the constitution, whose content organizes and limits governmental institutions (legislative and executive) so as to safeguard individual rights and freedoms against arbitrary governmental actions. The principle has various corollaries. First, the state must have a Constitution or a set of written or unwritten constitutional norms setting out the limits of governmental actions.16 These norms must be hierarchically superior to the acts of government. That implies, on the one hand, a certain form of constitutional review such as judicial review of governmental actions.17 On the other hand, the constitutional norms must be rigid, that is, they must not be altered or set aside except in accordance with a special process of amendment, repeal or override distinct from the ordinary legislative process.18 It is often assumed that constitutionalism requires neither a form of consti-

189 The Rule of Law as Justice in Canada

tutional review nor a rigid constitution because it would be sufficient to find moral or conventional norms forming what is called the "spirit of the constitution": England would constitute the very prototype of such a constitutional state.19 Indeed, insofar as the government in a state is self-disciplined and acts in accordance with the moral or conventional principles of constitutionalism, the recognition of the legal supremacy of the constitution may not be a necessary condition. However, to the extent that the constitutional principle is conceived as constitutive of the rule of law as justice, it implies the recognition of rigid constitutional norms enforced through a certain form of constitutional review. Secondly, governmental powers must not be concentrated in the same hands because, as Montesquieu put it, "it has eternally been observed that any man who has power is led to abuse it."20 Various devices may be imagined: the best known is the separation of powers.21 The principle of separation of powers may be conceived in various ways, but Vile's formulation is adequate for our purpose: It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislative, the executive and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.22

The function of the legislative power is to elaborate policies through its enactments. Determining on whom such power should be conferred depends on other constitutive principles of the idealtype, notably the democratic principle. The executive power executes and applies the enacted legislation. The judicial power interprets and applies such enacted legislation when there are conflicts between two or more individuals or between individuals and the state. It is, in fact, impossible to conceive of a state where the three powers are perfectly separated. On the one hand, such a state would rapidly become unnecessarily inefficacious.23 For example, we know that the judiciary must necessarily elaborate the law as it applies it. On the other hand, in some states, such as England and Canada, it is not possible to have more than a partial separation of persons and functions.24 Thus, compliance with the idealtype embodied in Vile's formulation varies from one state to another.

190 An Alternative Constitutional Theory

A constitution may provide for other devices, such as a division of powers (not to be confused with the separation of powers) between various levels of government through a decentralization of powers which may lead to a form of federalism. The constitution may institute what has been called a balanced or a mixed government, that is, a government in which all major interests of the society are represented so as to prevent a group of particular interests from imposing its views upon the whole community.25 That may be achieved through bicameralism, the attribution to each group of interests the power to check the actions and decisions of the other such as by according them the right of veto, and so on. Therefore, although the principle of nonconcentration of powers is relatively clear, its concrete materialization may take various forms depending on the particular political tradition and, indeed, the other constitutive principles of the rule of law as justice. Thirdly, a set of fundamental rights and freedoms of the individuals must be safeguarded against arbitrary governmental acts. These rights and freedoms must be entrenched in some form of written or unwritten Bill of Rights. The determination of the rights and freedoms that must be so protected does not depend upon the consitutional principle as such but on other principles of material justice such as liberalism, socialism, democracy, and social-democracy. Similarly, the determination of what constitutes an arbitrary act of the government depends on the other constitutive principles of the idealtype. For example, the question of whether the rights are protected merely against illegal acts or decisions and unpredictable rules and actions, or whether they are protected against any unreasonable act, may depend on the conception of liberal principle. However, the constitutional principle implies at least a minimal conception of what is or is not arbitrary, namely, the conformity of the acts or decisions with the principle of legality, to which I now turn. Fourthly, the constitutional principle implies the famous principle of legality. That principle may be expressed as follows26: 1 Any executive or administrative action or decision that infringes upon individual right or freedom recognized by law must be "authorized" by law. 2 An executive or administrative action or decision is "authorized" by law when it is in accordance with the specific criteria of validity provided in a valid legal rule that is logically superior within the formal hierarchy of legal norms. These criteria of validity, therefore, are logically antecedent to the validity of the executive or administrative action or decision.

191 The Rule of Law as Justice in Canada

3 The criteria of validity generally concern the composition of the governmental body (the essential characteristics of the body, for example), the procedures according to which the powers may be exercized, the very form of the action or decision, and/or the substantive standards, norms, or goals according to which the action or decision must comply (these standards, norms or goals may condition the justification, the purpose, or the consequences of the action or decision). 4 An executive or administrative action or decision that corresponds to the criteria of validity provided in a valid legal rule is itself valid since it is authorized by law: it possesses a legal foundation, that is, a legal pedigree. That principle is more difficult to conceive as a corollary because it seems to duplicate the very concept of the rule of law. Basically, and without further characterization of the word "law," it means that the government as a whole - the legislature, the executive, and the public administration - is under the law. More specifically, the governmental institutions cannot act or make a decision whose effect would infringe in some way upon the individual rights and freedoms protected without being previously authorized by law. All governmental actions and decisions must thus have legal authorization. The principle of legality resembles the concept of the rule of law because both seem to require the government to act according to law. Ye the former is much narrower than the rule of law. First, the principle of legality is essentially concerned with the legal pedigree of the governmental action, that is, whether it meets the specific criteria provided in the legal source that has conferred upon the governmental institution the authority to act. By contrast, the rule of law requires the reasons for governmental actions and decisions to be legal. Secondly, the principle of legality is directly concerned with the formal hierarchy of positive legal rules independently of their content. It requires all governmental actions to be authorized by a legal norm formally superior in the formal hierarchy of norms. The rule of law implies an organization of the law that goes well beyond such hierarchy. Indeed, it could even justify as legally effective a governmental action or decision formally unauthorized.27 Thirdly, the principle of legality comes within the formal validity thesis as understood by those who accept the postulates of legal positivism. If a governmental action or decision is not authorized by a set of formal criteria provided in a formally valid legal rule hierarchically superior to it, it must be declared invalid. These criteria of validity may correspond to a set of rules, some of which provide for the composition of the governmental body, its

igg An Alternative Constitutional Theory

process of decision, and the form of its actions and decisions and their content.28 That explains why those who conceive the rule of law as the rule of law as positive rules generally take it as synonymous with the principle of legality.29 Yet, although that may appear desirable, we must not assimilate the rule of law to the principle of legality. First, the principle of legality would thereby become redundant and useless. Secondly, we would have to find a new label for the principle we have associated with the principle of legality. Thirdly, we would contravene the Anglo-Canadian legal tradition, which has elaborated a widely agreed on conception of the principle of legality even if lawyers educated according to the British constitutional law tradition generally fuse together this principle and the concept of rule of law. It follows that the principle of legality does not imply that the government as a whole is directly subject to the rule of law as justice. However, since the principle requires a particular legal authorization, it should be emphasized that within the process of judicial review of governmental actions, the positive legal rules upon which the authority of these actions is based must be interpreted. Such interpretation must necessarily proceed in accordance with a set of interpretive norms antecedent to the source of authority. Consequently, the rule of law as justice, to a certain extent, does ultimately control the powers of the government. Although conceptually distinct from the principle of legality, the rule of law as justice therefore has some hold upon governmental actions.30 In principle, the principle of legality applies to all governmental institutions because the constitutional principle from which it derives limits the powers of each. However, in the Anglo-Canadian tradition, the principle of legality is not conceived as applying to acts of Parliament. For example, in the United Kingdom it merely aims at the public administration and at its agents. The reason is, however, contingent. As we know, since orthodox English constitutional theory postulates the validity of the absolute sovereignty of Parliament, the principle of legality can apply merely to other governmental institutions, namely the executive and the administration. That is also the understanding of the phrase "government under law."31 In Canada, although we find a rigid written constitution superior to parliamentary acts, the principle of legality is also generally conceived as applying only to the executive and the administration. The reasons for such a distinction are hard to accept. One is linguistic. Where the governmental act is not authorized by the constitution, we say that it is unconstitutional. Therefore, we maintain a distinction between the principle of constitutionality, which aims at the conformity of governmental actions with

1Q3 The Rule of Law as Justice in Canada

the written constitution, and the principle of legality, which requires the conformity of executive and administrative actions with authorizing legal rules other than the constitution, notably, the legislative rules. A second reason is based on tradition. As we said, orthodox Canadian constitutional theory has proceeded from English constitutional theory and has borrowed from it various concepts some of which hardly fit Canadian law. Yet these reasons do not reduce the scope of the principle of legality according to which all government actions are required to be authorized by legal rules, whether constitutional or other. The principle of legality has many important corollaries. First, an institution on which a particular power has been conferred may not delegate it unless such delegation has been expressly or implicitly authorized by a superior valid legal rule. That is an application of the maxim delagatus non potest delegare. An act done on the basis of an unauthorized delegation of powers is invalid because its legality cannot be supported. Secondly, a decision taken or an act done under the dictation of another body or person amounts to an unlawful delegation of powers because the third party has no legal authority to act. Thirdly, the acts done or the decisions taken by an organism, the constitution of which (or the process it has followed) is inconsistent with the formal rules of composition (or manner and form) prescribed by a superior valid legal rule, are invalid because they cannot show their legal pedigree. Fourthly, a governmental action or decision based upon an erroneous interpretation of the conditions for the exercise of its powers enunciated in the empowering valid legal rules is invalid for the same reason.32 Finally, the principle of legality implies that the individuals who have reason to believe that their rights or freedoms have been infringed or denied by an invalid governmental act or decision must have the right to apply to an independent and unbiased institution so as to obtain an authoritative declaration of invalidity and to order the government to act within the principle of legality. That may involve various types of procedures and remedies of which certiorari, prohibition, evocation, injunction, mandamus, and habeas corpus are best known to Canadian lawyers. The question of whether a governmental action or decision may be substantively arbitrary without infringing upon the principle of legality is more difficult. Of course, if the empowering legal rules contain a set of rules in relation to the content of the actions prescribing a set of norms or standards to be followed, then, logically, the decision or the action having to be consistent with these norms or standards cannot be arbitrary. However, does the principle of legality imply that a substantively arbitrary or unreasonable decision or action, based upon a valid

194 An Alternative Constitutional Theory

legal rule in relation to the content conferring an absolute and unlimited discretionary power on the governmental body (and where no other superior valid legal rules provide for standards or norms to be followed), is nonetheless invalid? In my view, the answer is no. That explains why so many authors have maintained that the principle of legality (as such) offers an uncertain protection against governmental arbitrary acts.33 It would be sufficient for a constitution to confer on Parliament or for a Parliament to delegate to a given administrative organism an absolute discretionary power in relation to an important number of subjects in order for the notion of limited government to become a mockery. As the protection offered by the principle of legality is formal and confined to the legal pedigree of the acts, it is indeed limited. However, it does not follow that the rule of law as justice offers no broader protection. In fact, the very principle of constitutionalism, by seeing government as limited, could be understood as implying a general principle the purpose of which is to prevent the arbitrary exercise of a discretionary power formulated in absolute and unlimited terms.34 The principle of separation of powers, or the recognition of a bill of rights, could be understood as implying that in law there is no such absolute discretionary powers authorizing arbitrary governmental actions infringing upon individual rights and freedoms. But, most important, as we have already seen, the very process of interpreting a valid legal norm that confers an absolute discretionary power upon a governmental institution does control the acceptable character of any decision or action based upon such power. That assertion will be justified in the next chapter. THE DEMOCRATIC PRINCIPLE

In its broadest sense, the word "democracy" characterizes those states in which governmental institutions are committed to a complete social philosophy, including the constitutional principle, the liberal principle, the egalitarian principle, the principle of popular sovereignty, and so on.35 Such a broad conception of the democratic principle, however, would not allow it to be distinguished from the other constitutive principles of the rule of law as justice. Following many political theorists, I maintain that it should merely correspond to a particular form of government.36 A democracy is different from other forms of government by reason of the set of rules determining the characteristics of the persons who have authority to take the political decisions generally accepted as binding by the community and the procedures these persons must follow in order to reach such decisions. The democratic principle groups together that set of norms which characterize a procedural democracy.

1Q5 The Rule of Law as Justice in Canada

It is not possible to enumerate all the various institutional arrangements that may with justification derive from the democratic principle. Yet it is possible to draw a certain number of corollaries that characterize all democratic theories.37 Basically, the principle of democracy claims that the power to take authoritative political decisions must be conferred upon the people or, at least, upon an important number of the members of the community to which the decisions apply.38 In theory, all those upon whom such power is conferred should become directly involved in the decision-making process and give their opinion, indeed their verdict, on any political question.39 That could require the government to hold a referendum at least upon each fundamental and/or controversial issue. However, for pragmatic reasons, popular power can be only indirectly exercised and this gives rise to "representative democracy."40 The corollaries of the democratic principle derive from the notion of representative democracy. First, the people must effectively control the binding political decisions even if such control is merely indirect. For that purpose, government must be accountable. It must be required to expound and justify its policies to the people and, when the people disapprove of these policies, they must have the power to replace the policy makers. In other words, the people must be able to choose their representatives at periodic elections. The vote must be free, without coercion, intimidation, fraud, or corruption. The secrecy of the ballot must be respected. The presence of at least two candidates propounding alternative policies must be allowed and favoured. That implies the safeguard of a certain number of "procedural political freedoms,"41 of which the most well known are the freedom to run for office, the individual right openly to support one candidate and to criticize all others as well as their policies, freedom of speech, freedom of the press, freedom to assemble peacefully, and freedom of association.42 Secondly, a democratic system must recognize what is referred to as political equality. In theory, each person should have an equal right to control the government and to vote at the election. However, the democratic principle admits a few exceptions with respect to those who do not have the capacity to exercise adequately the right to vote, such as children. In practice, therefore, the right to vote must belong equally to all mentally competent adults, independently of their sex, race, religion, and wealth. This corresponds to universal adult suffrage. Each adult is entitled to one vote and each vote must be counted equally.43 Consequently, the number of elected representatives entitled to form the government must be directly proportional to the number of votes cast on their behalf. That corresponds to the principle of proportional representation. Thirdly, the democratic principle holds that all disagreements among the representatives about a given

196 An Alternative Constitutional Theory

political question must be settled in accordance with majority rule. Accordingly, binding political decisions are likely to be in line with the will of the majority of the electorate.44 These corollaries may be conceived both as criteria by virtue of which it is possible to explain what a democratic state is, and as standards by virtue of which we may evaluate the democratic character of a given state. In fact, the democratic character of a given state is a matter of degree. Yet no state can be characterized as democratic if it totally contravenes one of these corollaries. Thus, descriptively, Canada is democratic because the parliamentary system is consistent to a certain degree with the basic characteristics of a representative democracy. According to Anthony H. Birch, there is a "theory of parliamentary democracy" corresponding to the British parliamentary system45: In the British system of government supreme power lies with Parliament, which has direct and exclusive control over legislation and indirect control over the actions of the executive and the central administration. In respect of legislation, Parliament is said to be both omnipotent and omni-competent ... Within Parliament the House of Commons is now the centre of power, and ... the members of that House have to answer to the electorate ... Ministers have to answer to Parliament between general elections, but at elections the Government and all its parliamentary supporters have to answer to the electorate, who either endorse their policies by returning them to power or reject them and give a mandate to the rival party ... The system is said to be democratic because it ensures that government policies reflect "the will of the people."46

The democratic principle may also be conceived as one of the very norms justifying the whole constitutional order or, at least, an important component of it. Insofar as it is one of the constitutive principles of the rule of law as justice, it must be conceived as such. Many orthodox constitutional theorists have claimed that the democratic principle is the very justification of the rule of the sovereignty of Parliament. Mr Justice Brian Dickson, for example, in an extra-judicial statement, has affirmed that "of course, the principle of democratic control has always been the theoretical basis underlying the notion of parliamentary sovereignty."47 Naturally, given their positivist background, these theorists do not mean that the democratic principle is the legal justification of the rule of parliamentary sovereignty. Instead, they claim that the principle is the moral and political justification providing the "underpinning reason" for its judicial recognition.48 Yet, if that argument were sound, the rule of law as justice could have legally been the justification for the orthodox doctrine of the sovereignty of Parliament. Unfortunately, the argument is mistaken.

197 The Rule of Law as Justice in Canada

It is difficult to understand a version of the democratic principle which would justify the orthodox doctrine of parliamentary sovereignty. As we know, in the United Kingdom (as in Canada), that doctrine means that Parliament (or Parliament and the legislatures) can enact any law, "no matter how outrageous," upon any subject matter (or in relation to their own valid subject matters) .49 The legislative assemblies are certainly subject to a number of moral, political, social, or economical constraints,50 but such limitations are not legal and have nothing to do with the doctrine of parliamentary sovereignty.51 Legally, as Dicey claimed, "the one fundamental dogma of English constitutional law is the absolute legislative sovereignty or despotism of the King in Parliament."52 Consequently, an act of Parliament abolishing freedom of speech or freedom to criticize the government, women's right to vote, free elections, and so on, would be perfectly valid and operative unless, in Canada, the courts could interpret the Canadian constitution so as to safeguard (directly or indirectly) these rights and freedoms.53 Only a radical version of the majoritarian theory of democracy may fit and justify such a political system. Majoritarian theory is often conceived as synonymous with the concept of democracy. Lord Bryce, for example, used the word democracy "in its old and strict sense, as denoting a government in which the will of the majority of qualified citizens rules."54 In a representative democracy, that would imply that any political decision must be made by the majority of the representatives who are elected by a majority of voters. If that proposition were interpreted in a radical fashion, no political decision could be taken and laid down as law by individuals or groups of individuals who are neither elected by nor accountable to the majority of voters nor accountable to the representatives. Consequently, any form of second legislative chamber in which membership depends on heredity or appointment by the executive would be anti-democratic. Any form of judicial review of legislative acts or of any decision made by the majority of the representatives would be inconsistent with majoritarian democracy. The reasons are well known. Judges constitute a minority within society and within government. They are not elected by a majority of citizens. They are not accountable to the electorate, to the legislature, or to the government. They cannot be removed except for very exceptional reasons and in accordance with a particular process. Moreover, by reviewing legislative acts, the courts make political decisions and set aside those taken by a majority of elected representatives who are accountable to the electorate. As Alexander Bickel has said, judicial review is a "counter-majoritarian force" in the system.55

198 An Alternative Constitutional Theory

Such a radical version of the majoritarian theory fits harmoniously with the orthodox doctrine of the sovereignty of Parliament. The problem, however, is that it cannot be justified by the democratic principle because no democratic theory can coherently justify such consequences. A principle cannot justify a rule which, when applied, justifies an act that contradicts it. Or, in other words, a rule cannot justify an act which is fundamentally inconsistent with the principle that justifies the application of the rule. As H.B. Mayo has clearly argued, "no democratic theory (except the Marxists) advocates the majority principle without the other principles of democracy, in particular the political liberties; yet it is precisely this kind of rule, lacking the freedoms, which is sometimes re-defined as "democracy" and - perhaps naturally enough - equated with tyranny. Where the political liberties are gone and the government cannot be turned out at the next election, democracy as I have defined it and as I think most people understand it simply ceases to operate and we have a system that is not democracy, whether the majority gets its way or not."56 Therefore, the argument that the democratic principle justifies a judicial duty to obey all parliamentary legislation consistent with the written constitution is mistaken because it would imply a judicial duty to apply acts inconsistent with the democratic principle. Either the majoritarian theory is not an acceptable version of the democratic theory, in which case it is wrong to claim that the orthodox doctrine of parliamentary sovereignty is justified by the democratic principle, or it is an acceptable version of the democratic theory, in which case it cannot justify the orthodox doctrine of parliamentary sovereignty. Of course, the mere fact that the courts actually obey all parliamentary acts does not imply the validity of the assertion that the judges are committed to the radical version of the majoritarian theory instead of to the democratic principle. Acts of Parliament may be coincidentally consistent with the postulates of a democracy. Yet coincidences, however numerous, do not produce a justification. If the democratic principle is accepted by the judges as constitutive of the rule of law as justice, it must be conceived as one of the normative standards according to which the relation between the judicial and the legislative powers is established. In particular, it must be understood in the light of all the basic corollaries necessary for the maintenance of its integrity. The courts must take these corollaries into account when they interpret the rule of the sovereignty of Parliament. Consequently, the powers of Parliament must be limited. It does not matter whether such limitations are conceived as exceptions to the set of antecedent rules recognized by orthodox theorists or as other antecedent rules. It does not matter whether the enactments inconsistent

igg The Rule of Law as Justice in Canada

with the democratic principles are declared invalid or interpreted in accordance with the principle. What is essential is that, insofar as the democratic principle justifies the obeying by the judiciary of parliamentary legislation, the courts cannot enforce those statutes that violate it. Where the democratic principle is a fundamental justification for a judicial decision, a certain form of judicial review of legislation is logically unavoidable. That does not mean that the courts have an unlimited power to review legislation on the basis of any moral and political consideration. One essential component of the democratic principle specifically implies that the elected representatives must decide by a majority what policies should be implemented. The courts, therefore, are not competent to review any kind of political question.57 That would be plainly incoherent. However, they must have the necessary power to review all legislation inconsistent with the democratic principle. Moreover, such judicial review does not presuppose the recognition of a written constitution. It is merely a logical consequence of the normative character of the principle. There is no logical conflict between some form of judicial review and a commitment to uphold democracy.58 Constitutional theorists who claim that the democratic principle justifies the orthodox doctrine of sovereignty of Parliament confuse majoritarianism or majority rule with the "rule of the majority." Whereas the former notion can be justified by the democratic principle, the latter is a version of despotism, whether or not benevolent, corresponding to what is sometimes called the "tyranny of the majority." The "rule of the majority" finds its justification in some versions of the political theory of sovereignty. That theory is relatively old and may be associated with the political thought of Jean Bodin,59 Thomas Hobbes,60 Jeanjacques Rousseau,61 and John Austin.62 The principle of sovereignty essentially maintains that in each particular political community there is one supreme authority, the sovereign, who exercises political power that is perpetual, inalienable, indivisible, and absolute over all members of that community. The sovereign is the source of all law and is thus above the law, with the power to enact and repeal any legal norm whatsoever. Accordingly, sovereigns cannot bind themselves and their successors. They may certainly recognize a duty to act in accordance with certain moral and political norms but such constraints have no independent legal effect. The principle of sovereignty is a better interpretation of the reasons justifying the orthodox doctrine of parliamentary sovereignty than the democratic principle. On the one hand, it perfectly fits what is conceived as the antecedent rules as to the validity and the interpretation

2OO An Alternative Constitutional Theory

of parliamentary legislation which, as in the United Kingdom, require the courts to obey blindly the will of the sovereign. Of course, within the process of judicial decision, and for that purpose, the principle of sovereignty is antecedent to the rules which allow the courts to recognize and determine the commands of the sovereign. But that is not necessarily inconsistent with the assertion that there already exists, as a matter of fact, a sovereign (although the determination of who such a sovereign is may be debatable). Moreover, the principle of sovereignty adequately explains and justifies the proposition of British constitutional law that the only thing Parliament cannot do is to bind itself and its successors. The notion of "sovereign self-limitations" is selfcontradictory.63 As we have said, a principle cannot justify a rule which in its application would justify an act inconsistent with the principle. Finally, the principle of sovereignty explains and justifies the orthodox belief that the courts have a duty not to take into consideration moral and political standards that have not been deliberately laid down by the sovereign. On the other hand, historically, the principle of sovereignty seems to have influenced the orthodox doctrine of parliamentary sovereignty. For example, in his Commentaries, William Blackstone maintained that "there is and must be in all [states] a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperil, or the rights of sovereignty reside."64 Blackstone even read certain passages of Edward Coke's Fourth Institute as, follows: "The power and jurisdiction of Parliament... is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds ... It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws ... what the Parliament doth, no authority upon earth can undo."65 It is true that Dicey maintained a distinction between Austin's theory of sovereignty and the legal doctrine of the sovereignty of Parliament.66 However, it did not follow that Dicey's doctrine was a logical corollary of the democratic principle. On the contrary, Dicey specifically argued that in law the concept of sovereignty meant "the power of law-making unrestricted by any legal limit."67 That implied that "the courts will take no notice of the will of the electors," that the judges "know nothing about any will of the people except insofar as that will is expressed by an Act of Parliament," that they "would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors," and that no English judge can concede that "Parliament is in any legal sense a 'trustee' for the electors."68 In short, for Dicey, "the plain truth is that as a matter of law Parliament is the sovereign

2Oi

The Rule of Law as Justice in Canada

power in the state."69 The fact that in the long run the will of the electors comes to be enforced does not change the legal doctrine. It is a mere political fact that reveals that the political sovereign is distinct from the legal sovereign. In any event, it is not necessary to demonstrate that hypothesis any further because, as we have seen, the orthodox doctrine of parliamentary sovereignty does not even fit a set of judicial decisions, some of which have been analysed in Part One, and, as we shall show, because the democratic principle is one of the constitutive principles of the rule of law as justice. THE LIBERAL PRINCIPLE

The constitutional and democratic principles are mainly concerned with the appropriate form of the governmental institutions and with the correct procedures according to which their actions may be carried out. They supply an answer to the formal questions "who must exercise the governmental power?" and "howmust it be exercised?" Ye a material conception of law such as the rule of law as justice must also supply an answer to the material question "what kind of substantive governmental actions or decisions are required and justified by the rule of law as justice?" It must supply a set of principles that basically determine the specific material rights, duties, powers, advantages, burdens, and freedoms of each individual. Thus, the rule of law as justice must guide and delimit the substantive content of governmental decisions dealing with substantive rights and freedoms. In Canada, these basic principles have generally come within the Western political tradition of liberalism, and so I shall refer to them as the liberal principle. My characterization of these principles as "liberal" is likely to be controversial. First, according to my conception of the rule of law, the liberal principle does not purport to represent an empirical fact; it is meant to be an interpretation of the legal practice as a whole. Secondly, Canadian constitutional law, as it appears in the whole body of cases, can hardly be interpreted as a perfect materialization of the liberal principle, whatever that may mean. On the one hand, as we know, the rule of law as justice postulates a set of principles which may, in some cases, appear in tension and point towards non-liberal directions. Thus, in a given case, the courts may have upheld the democratic principle - at the expense of particular individual liberal freedoms - on the ground that upholding the will of the elected representatives, taking everything into consideration, had more weight than the liberal principle.70 Of course, such cases may be retrospectively interpreted as justified by other conceptions of the good society, such as those

2O2

An Alternative Constitutional Theory

deriving from conservatism, collectivism, or communitarianism. But they may also be based solely upon the principle of democracy (upholding the interests of the greatest number) which, in some cases, might arguably be weightier than the liberal principle as understood in this chapter. On the other hand, the Canadian political tradition (as opposed to the legal tradition) has often been regarded as embodying aspects of conservatism, communitarianism, and collectivism.71 One might thus believe that these ideologies have been embodied in the law by the judiciary. However, liberalism has been the dominant feature of the Canadian political tradition to date,72 and we have good reasons to believe that by 1982 some of the values associated with liberalism had received from the courts strong recognition within Canadian constitutional law.73 Thirdly, liberalism is not a straightforward political theory. Not only has it extended across a period of nearly four centuries and been based on various political conceptions whose basic principles are not totally consistent,74 but also the various so-called liberal theories are not themselves easily reconcilable.75 One might even think that liberalism is a word appropriated for rhetorical reasons by individuals and groups as distinct as libertarians and social-democrats. In any event, it is not necessary for our purpose to propound a coherent, integrated, and comprehensive liberal theory. It is sufficient to enunciate a certain number of basic assumptions which have generally been associated with liberalism. Indeed, some of them may be conceived as constitutive of socialism, conservatism, or communitarianism (these ideologies are not watertight), and, as a matter of coherence, may underlie the other constitutive principles of the rule of law as justice.76 That should not matter. In the end, the characterization of the principles as liberal rests upon a label ready to be changed if it does not fit the legal tradition. The liberal principle, as we understand it, asserts that the individual is the supreme value to consider and, consequently, must be at the centre of all political, social, and economic organizations. It abstractly (and/or "ideally") assumes that individuals are rational beings capable of understanding and voluntarily accepting a set of moral or religious norms according to which they may evaluate, appraise, and judge what is right or wrong, criticize and self-criticize, determine a set of coherent goals and ends, choose the best means to achieve them, and enter into commitments with others. In short, individuals are seen as responsible beings, capable of autonomy, capable of determining for themselves a conception of the good life, and capable of realizing it (provided certain social and legal conditions).77 In that sense, it is often said that human beings are "free" and "equal." They are free in

203 The Rule of Law as Justice in Canada

the sense of being autonomous because they have the capacity to obey their own individual norms, goals, beliefs, and ends (it does not matter whether the ultimate ends are themselves rational), and they are equal because all individuals possess such capacities equally. The liberal principle requires social arrangements, governmental institutions, and actions to be consistent with (and to be justified upon reasons that are consistent with) the assumed "human nature" so as to allow each individual to realize fully his or her own desires, potentials, goals, ends, and the like, and respect each individual dignity. That implies, at least, two basic corollaries. First, the law must recognize, delimit, and safeguard a private area, space, or sphere in which each individual has the power to act as an autonomous and responsible being for the purpose of realizing and revising his or her own conception of the good life.78 In that area, the state cannot legitimately interfere except in accordance with the free and voluntary consent of the individual or on the basis of good reasons related to the maintenance of the liberal principle itself. That area corresponds to the well-known negative freedom.79 Although liberal theorists agree that the sphere of protected freedom is limited, they disagree as to its scope.80 Secondly, individuals being equal, the law must allot to each individual an equal space of negative freedom. That corresponds to the so-called individual right to equal liberty or the equal right of every individual to liberty.81 Thus, for the purpose of safeguarding the mutual coexistence of that right, government may legitimately (and must) limit the liberty of each individual. However, whether it may further intervene in that sphere of liberty to correct inequality (inequality of income, wealth, talent, skilfulness, powers, health, and so on) which undercuts the idea of equal liberty, to promote social or collective goals (order, peace, economic efficiency, welfare, national security), or to protect collective goods (environment, arts, architectural heritage), for example, has been and is still debated because there have been various competing conceptions of the relative weight of other values within liberal theory. Yet the two foregoing abstract corollaries imply that the courts must recognize and enforce an individual right to freedom against the actions of the state, namely, the equal right of each to the maximum liberty consistent with the right of each other to the same liberty,82 unless the state can show a good and sufficientjustification for the restriction. More concretely, the liberal principle implies the recognition by the courts of various specific rights to different kinds of freedoms, the relative importance of which may vary according to each individual conception of the principle. For the present purpose, it is sufficient to divide the area of negative freedom into three basic spheres which, in

204 An Alternative Constitutional Theory

some cases, may overlap: economic freedom, personal freedom, and privacy freedom. The so-called sphere of "political freedoms" corresponds to the rights we have associated with the democratic principle.83 The sphere of economic freedoms has been one of the central elements of classical liberalism and groups together a set of freedoms historically associated with the economic doctrine of laissez-faire.84 For example, it includes freedom of contract (the right to make or not to make a contract, to choose the contracting party, to determine the content of the contract), freedom of commerce (the right to choose the activity and control the enterprise), the right to property (the right to accumulate wealth and to use it freely), and so on. The sphere of personal freedoms groups together the rights and freedoms which, in our legal tradition, have been associated with the right to personal liberty, or, strictly speaking, the right to security and to physical integrity. That sphere includes, for example, the right to life, the right over one's own physical body, the right to mobility, the right not to be arrested or detained except in accordance with the law, the right to have the lawfulness or validity of the detention determined by a court as soon as possible after the detention, the right to be presumed innocent until proven guilty, and the right not to be subjected to any cruel and unusual treatment. The sphere of privacy freedoms includes the set of rights and freedoms conceived as necessary for individuals to realize fully their own conception of the good life, notably by allowing them to live as they wish in accordance with their most basic ethical and religious convictions. At the time of classical liberalism, in the eighteenth and nineteenth centuries, that sphere consisted solely of freedom of religion (freedom of faith, worship, and proselytization). However, from the second half of the nineteenth century,85 it has broadened to include, besides freedom of religion and conscience, the right to freedom of expression beyond what is required for the proper functioning of the democratic institutions (for example, artistic expression), the right to intimacy (the right to the secrecy of correspondence and telephone conversations, the right to professional secrecy), the right to associate with and to become emotionally involved with any person one chooses (friendships, love, marriage), the right to be a non-conformist (the right to one's lifestyle), the right to sexual orientation and practice, in short, the freedom to do whatever is conceived as harming nobody. Within these spheres of freedoms, as I have said, the state cannot intervene, except for good and sufficient reasons. The nature and the scope of these reasons may vary according to the sphere of freedom involved and, indeed, have been contested within liberal theory. Yet there have been a number of guiding principles. For example, on the

205 The Rule of Law as Justice in Canada

one hand, liberalism has tended to claim that the state cannot act on the basis of reasons that presuppose the superiority of one particular controversial conception of the good life or what ought to be valued in life, particularly (but not exclusively) with respect to religious, ethical, and economic choices that contribute to the fullest development of individual personality. In other words, the promotion of one conception of the good over any other cannot count as a good and sufficient reason for policies involving limitation of individual freedoms. That negative principle may represent one understanding of the controversial principle of neutrality, namely, the principle many political philosophers now characterize as "neutrality of aims."86 The traditional and best known justification for that principle has been the very idea of autonomy underlying liberalism. State coercion involving the imposition of one controversial conception of the good life would constitute a direct affront to the idea of treating individuals as autonomous and responsible beings.87 On the other hand, liberalism has generally claimed that the state may legitimately limit a person's freedom to secure or protect the sufficiently important and fundamental interests of others (what we may call their rights) and of society as a whole. One version of that idea has corresponded to the classical "harm prin, , ,,QQ ciple. y8 In classical liberalism, these precepts were interpreted rigorously. Consequendy, the function of the state seemed rather negative. It could delimit and protect an area of freedoms and a set of basic rights against unjustified intrusions and violations but could never interfere with them so as to promote particular substantive ends. The liberal principle, so conceived, implied that the law must be certain, that is, general, clear, and prospective. Therefore, the rule of law as justice, insofar as it has been constituted of the liberal principle, has implied a commitment to some version of legal certainty. Moreover, the laws must be general in a relatively radical sense. They must be impersonal, abstract, and universal because the right of each to equal liberty has to be interpreted as prohibiting any form of distinctions or discriminations between individuals. That could be understood as even excluding any form of distributive justice based upon individual needs because such policies involve deliberate discrimination, stemming from considerations that cannot be regarded as neutral or impartial between competing conceptions of the good.89 Yet, especially since the end of the nineteenth century, liberal theory has generally recognized that the state may legitimately correct, through positive actions, basic inequalities of wealth, talent, power, information, income, luck, and so on, caused by the free market (in the economy or in ideas) or otherwise (for example, birth) which

206 An Alternative Constitutional Theory

prevent the equal enjoyment of freedom.90 Accordingly, it would be legitimate for the state to promote socio-economic goals and to intervene, for instance, in the sphere of economic freedom to achieve such ends as the regulation of the free-market economy, the redistribution of resources through taxation, the establishment of a system of public health and compulsory education, the setting of a minimum wage, the introduction of programs for the elderly, and the prohibition of discrimination on the basis of non-relevant attributes (race, religion, sex, ethnic origin). The state may also legitimately promote what liberals call equality of opportunity.91 That has involved the recognition of specific individual rights sometimes characterized as social or egalitarian, such as the right to education (the right to free, available, and accessible primary and secondary education), the right to the enjoyment of mental and physical health (the right to a free national health service, environmental hygiene), the right to work, the right to the enjoyment of just conditions of work (fair wages, equal remuneration for work of equal value, safe and healthy working conditions, a right to rest, leisure, and reasonable limitation of working hours), the right to form free and independent trade unions (the right of collective bargaining, the right to strike within reasonable legal limits), the right to social security (unemployment and social insurance), the right for those who are responsible for the care and education of children to be assisted and protected (maternity leave with social security benefits), the right to an adequate standard of living (housing, food, clothing) ,92 The legitimacy of state action to promote socio-economic goals and to secure social and egalitarian rights, even at the cost of restricting more traditional liberal rights and freedoms, has been gradually recognized by the judiciary, especially since the ig6os.93 Instead of resisting socio-economic intervention on the part of the state, as they traditionally used to do,94 the courts have gradually come to act as the state's partner within the collective enterprise of promoting social justice.95 Consequently, at least certain socio-economic goals and social and egalitarian rights may be conceived as constitutive of the rule of law as justice. One might argue that such partnership, insofar as it has existed, merely reveals a commitment towards democracy. But, since judicial obedience to statutes restricting traditional rights and freedoms has not been consistent,96 there are good reasons to believe that it has been guided by the statutory underlying purpose or justification conceived by the courts as desirable and legitimate. Other might claim that such a partnership should be seen as judicial commitments towards the collectivist, socialist, or conservative features of the Canadian political tradition. My view is that the growing judicial acceptance

207

The Rule of Law as Justice in Canada

of the legitimacy of promoting socio-economic goals and securing social and egalitarian rights comes within modern and contemporary understanding of what is required by liberal ethics, sometimes called social democracy (but, again, I will not fight for a label). It would be misleading to claim that the idea of legal certainty has lost its importance. To the degree that the law is required to allow individuals to act as autonomous and responsible beings, the liberal principle, even in its contemporary understanding, must imply some compliance with the idea of legal certainty. THE FEDERAL

PRINCIPLE

I shall not linger over a description of the federal principle. First, it has been generally admitted that this principle has constituted a part of Canadian constitutional law. Secondly, its relationship to the doctrine of parliamentary sovereignty has already been clarified. Thirdly, as we know, the preamble of the Constitution Act, 1867 itself states that Canada is a federal union. Fourthly, the Canadian Supreme Court has suggested from time to time that the federal principle must be inferred from the preamble and from the general purpose of the constitution and, consequently, that it is a part of Canadian constitutional law.9? This point has been clearly expressed in Re Resolution to Amend the Constitution^ byjustices Ritchie and Martland, who, in their dissenting opinion, expressly claimed that it can "fairly be said" that "the dominant principle of Canadian constitutional law is federalism."99 They further maintained that the judiciary has developed a certain number of doctrines and principles to which "full legal force" have been accorded on the ground that they were constitutionally required by the federal character of the Canadian constitution.100 The majority opinion was somewhat more ambiguous. It said, for example, that the preamble had "no enacting force" but could be referred to as an aid in the interpretation of the constitution and that it contained internal contradictions the resolution of which owed nothing to the preamble but depended on the constitutional text.101 Similarly, the judges seemed to believe that judicial references to the theories of federalism were based not upon a legal principle but upon "political" principles that "do not engage the law"102 except as aids in the interpretation of the law,103 resembling, to that extent, pronouncements by political figures.104 In any event, the dissenting view seems to have ultimately prevailed in 1985 in the Re Manitoba Language Rights105 where a unanimous Supreme Court said that, in the Re Resolution to amend the Constitution,106 "the Court found the federal principle to be inherent in the

2o8 An Alternative Constitutional Theory

Constitution."107 Thus, in the process of constitutional adjudication, "the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada. In the case of the Patriation Reference, this unwritten postulate was the principle of federalism."108 I maintain that the federal principle is a part of the legal idealtype governing Canadian constitutional law. Accordingly, it is legally obligatory. However, it should not be conceived as a metaphysical entity embodied in the text, be it in the preamble or in the scheme of distribution of powers. The federal principle corresponds to one constitutive principle of the rule of law as justice in Canada. It is logically antecedent to any concrete meaning given to the text (preamble, distribution of powers) and to the constitutional order as a whole. Accordingly, the question of whether or not the word "federal" is expressly written into the preamble of the constitution and whether or not the court has expressly said that the federal principle is a part of the law is of secondary importance, even if the fact of them so being provides not inconsiderable support to the assertion that the federal principle is constitutive of the rule of law. The concrete meaning of the federal principle in Canada must result from a coherent construction of the body of legal decisions in which the principle has been implicitly or explicitly referred to as a good reason for decision. For our purposes, it is sufficient to enunciate the main characteristics of the federal principle in Canadian constitutional law and their basic corollaries. According to K.C. Wheare, the federal principle is "the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent."109 That implies, first, that all powers of the state must be divided between two levels of government, one being central or national and having a general authority over the whole territory, the other being local or regional and having authority over a limited geographical part of the territory. Each level of government must have the power to regulate at least one subject matter. Secondly, each level of government must be autonomous and independent with respect to the exercise of its powers in relation to its own subject matter. Neither level of government is subordinated to the other. In that sense, the central and the regional governments are "co-ordinated," that is, equal in a formal sense. Thirdly, each level of government must have a direct impact on the citizens. These three corollaries have in turn implied a set of principles related to the conditions according to which the federal principle may be materialized. First, there must be a formal constitution (establishing the authority of each level of government) and such document

209 The Rule of Law as Justice in Canada

must be supreme, that is, above any unilateral action of any of the two levels of government. Secondly, there must be an unbiased and independent institution having overall authority to determine whether both levels of government act in accordance with the constitution and enforce it over all inconsistent acts. In general, that institution is the judiciary, but nothing prevents it from being another body. Thirdly, each level of government must have the necessary financial resources to act as an autonomous and independent government in respect of its power to regulate its subject matters. Such resources may come from various sources but direct and indirect taxation remains the most common. Though often been criticized, these corollaries have ultimately guided the courts in the process of constitutional adjudication. They have been referred to for the construction of the text,110 to fill the gaps, and to create new constitutional doctrines. 1l1

CHAPTER EIGHT

Verification of the Alternative Theory

Orthodox Canadian constitutional theorists have never expressly denied that the principles of material justice (constitutionalism, liberalism, democracy, or federalism), formal justice, and equity have influenced the process of law-making, especially with regard to constitutional adjudication. However, except for the federal principle, perhaps, they generally conceive them as extra-legal, that is, as moral, political, or conventional.1 Insofar as some of them could be regarded as legal or materialized in the law (the federal principle, the separation of powers, the principle of equality before the law, the principle of legality, for example), they were seen as subordinated either to the rule of the supremacy of the constitution or to the rule of parliamentary sovereignty.2 By contrast, for the purpose of the rule of law as justice, all these principles must be viewed not only as legal but as the ultimate substantive standards by and according to which the whole legal order is understood, construed, criticized, and elaborated. They supply the criteria by which we can appraise both the correctness (justesse) and the Tightness (justice) of the particular judicial decisions and the norms from which they derive. It follows that the content of all legal norms, antecedent or not, written or unwritten, constitutional or legislative, and so on, must be based upon and consistent with them. The so-called positive legal order, however we define it, is but an aspect of the law although considerably important. Behind, above, and beside the set of positive norms there are countless numbers of legal norms. Some are indeed so obvious and accepted that we often forget that they are required by the legal ideal type.3 If the foregoing is granted, we may assume that the rule of the sovereignty of Parliament (and, accordingly, the related doctrine) has not necessarily or logically been understood and construed in accordance with one unique basic principle such as the democratic principle - or

211 Verification of the Alternative Theory

the political principle of sovereignty. It may have been understood in the light of the whole set of principles of the rule of law as justice. If that assumption is correct, the content of the antecedent rules as to the validity of legislation and the interpretation of statutes would reflect it. In turn, that would have a considerable impact upon the validity and meaning of particular legislative acts. In this chapter, I argue that this assumption is basically sound. It allows for a coherent explanation and justification of the legal relationship between the judiciary and the legislative power before 1982, and it makes sense of the body of cases for which the orthodox doctrine of parliamentary sovereignty is not suited. Similarly, the rule of the supremacy of the Constitution (and its related doctrine) would not have been understood by the judges in the light of one single principle such as federalism. The meaning of that rule would make sense in accordance with the body of ultimate principles we have associated with the rule of law as justice. In this chapter, I shall not deal with the important doctrine of the supremacy of the constitution. Yet it may be assumed that the rule of law as justice makes sense of many salient features of Canadian constitutional adjudication. In particular, the rule of law as justice succeeds in explaining the important post-ig82 case, Re Manitoba Language Rights^ in which the Supreme Court held that even if all unilingual acts of the legislature of Manitoba must be declared invalid and of no force or effect in accordance with the clear and express language of section 52 of the Constitution act, 1982,5 they should be deemed temporarily valid and effective so as to avoid the legal chaos that would result from a formal application of section 52. The ground for that decision was the rule of law. The court said that the rule of law required "the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order."6 Moreover, the court expressly said that the constitutional status of the rule of law was "beyond question" on the ground that it was laid down in the preamble of the Constitution Act, 1982, implicitly included in the Constitution Act, 1867 and in the very nature of a constitution, and recognized in various judicial decisions.7 The rule of law was conceived as an unwritten postulate which forms the "very foundation of the Constitution of Canada."8 Yet the logic of that argument implies that the rule-of-law requirement, namely the creation and maintenance of an actual order of positive laws, was a legal norm distinct from and antecedent to the order of positive laws. Otherwise, if it were conceived as a mere political or moral standard, it would imply either that it could not legitimately be appealed to because, according to orthodox theory, it directly conflicted

212 An Alternative Constitutional Theory

with a clear and specific positive rule, namely section 52, or that the court believed in a form of natural law or higher law.9 But if the ruleof-law requirement were a legal principle, it could displace other legal norms such as section 52 and its underlying orthodox justification, the supremacy of the written constitution. Thus, in order to make sense of Re Manitoba Language Rights, we should recognize that the court regarded the rule of law as a legal norm embodying a number of corollaries, one of which is the maintenance of an actual order of positive laws. The court seems to have ultimately justified its interpretation of the rule of law on the preference we have for law and order rather than anarchy, warfare, and constant strife. It quoted E.C.S. Wade and G.G. Phillips: "In this sense, the rule of law is a philosophical view of society which in the Western tradition is linked with basic democratic notions."10 The court was right when it associated the rule of law with democracy. The democratic principle, as we have seen, cannot justify a decision the consequence of which would be basically inconsistent with it. Yet the rule of law as justice offers other grounds for the court's decision. First, the principle of formal justice, requiring legal consistency, implies, as we have noted, the principle of equality before the law, which in turn implies the development of some doctrine of precedent and then the creation and maintenance of a positive legal order. Secondly, the principle of material justice, involving the liberal principle, implies respect for the rights and freedoms of each individual and legal certainty. Moreover, this principle requires the courts to uphold the right of each individual to his or her security. All these principles are above and antecedent to the written constitution. They are more basic than the manner and form of enactment of the Manitoba legislation, namely, the requirement to enact, print, and publish all acts in both official languages. They are more basic than the formal validity thesis, which implies the invalidity of all acts inconsistent with the written Constitution. The court's judgment may appear morally sound. Yet if that is so, it is not by chance or accident; it is actually required by law. In this chapter, the demonstration of the validity or the soundness of the rule of law as justice is confined to a few pre-ig82 sensitive areas within Canadian constitutional law. Of course, that will appear unconvincing to those constitutional theorists who expect a constitutional theory to be scientifically verified. Unfortunately, as I said earlier, the rule of law as justice cannot be empirically demonstrated. For a theory based upon the rule of law as justice to be acceptable, indeed a good alternative to orthodox constitutional theory, its basic assertions must be both internally coherent and justified in terms of the discourse it seeks to interpret. It is internally coherent if it supplies a consistent (indeed possible) interpretation of the two basic propositions of the concept of rule of law. It is justified if it supplies a system

213 Verification of the Alternative Theory

of assertions describing the set of legal norms (principles, rules, standards) which maximizes the internal coherence of judicial discourse (that is, decisions and reasons for decisions), such discourse being conceived as a normative order to at least as great a degree as any other system (including, for that purpose, orthodox constitutional theory). One may believe that the best demonstration should take into consideration all judicial decisions and all norms and show how and to what degree they both support and are justified by the principles of the rule of law as justice expounded previously. Although desirable, such a test goes far beyond the limits of this book. Perhaps it is even impossible except for a lawyer of superhuman skill, such as Dworkin's Hercules.11 I do not mean that Canadian constitutional theorists must never try to embark upon such an enterprise. An attempt of this kind would probably refine my own conception of the rule of law as justice. However, we must remember that one's construction of the legal idealtype that would make sense of the whole constitutional order is likely to change as the process of construction goes along. In any event, for the purposes of this book, it is enough to show that the rule of law as justice is sufficiently justified to provide a good starting point for an understanding of Canadian constitutional law. In this respect, it is instructive to recall Dicey's words. While he was searching "for the guidance of first principles" and believed he had found three such principles, he cautiously said that "to examine, to elucidate, to test these three principles, forms, at any rate (whatever be the result of the investigation), a suitable introduction to the study of the law of the constitution."12 It would be wise, at this point, to approach the principles of the rule of law as justice in this spirit of non-dogmatism. THE I N T E R P R E T A T I O N OF VALID LEGISLATIVE RULES

The rule of law as justice entails an important number of antecedent rules with regard to the validity and the interpretation of parliamentary legislation which have been overlooked by orthodox constitutional theory, an omission that has prevented orthodox theory from providing an adequate account of the rule of sovereignty of Parliament. In this section, I concentrate on certain issues respecting the antecedent rules as to the interpretation of valid legislative rules. The rule as to the intention of Parliament

Although, as we have seen, the democratic principle does not justify the orthodox doctrine of the sovereignty of Parliament,13 it does justify the antecedent rule regarding interpretation according to which

214 An Alternative Constitutional Theory

the courts must give to valid legislation the meaning that corresponds in all probability to the intention of Parliament.14 If a parliamentary act imposes legal and political obligations on the ground that it reflects the will of the majority of the elected representatives, the courts must obey it. Moreover, the democratic principle guides the interpretation of the very concept of the intention of Parliament because it supplies the legal standards by virtue of which the courts may determine what an intention consists of. Is it the real subjective intent of the members of Parliament? Is it a coherent construction of the text? Or is it a literal or purposive reading of the text?15 However, as a matter of coherence, the democratic principle cannot imply that parliamentary enactments must always be interpreted according to parliamentary intent. As we have said, a principle cannot justify a rule where its application would contradict it. Therefore, the democratic principle must imply the recognition of another antecedent rule for the interpretation of legislation requiring the courts not to interpret a valid legislative rule in accordance with the intention of Parliament where such intention is inconsistent with the principle. Such an understanding of the body of antecedent rules makes sense of many cases that are hardly explainable otherwise, such as Boucher, in which the concept of sedition, if construed according to the probable intent of Parliament, would have produced a result inconsistent with the democratic principle which embodies, notably, freedom of expression.16 Accordingly, the democratic principle, which in many cases may require the courts to follow the intention of Parliament, was then the very ground on which to set it aside. Justice Rand wrote that since the nineteenth century "constitutional conceptions of a different order" have rapidly progressed and these "have necessitated a modification of the legal view of public criticism." Such constitutional conceptions correspond to "what we call democratic government." Thus, if the crime of seditious libel is a corollary of fundamental conceptions of government, "the substitution of new conceptions ... [calls] for newjural conclusions."17 The democratic principle, therefore, was the ground of and for an antecedent rule regarding the interpretation of statutes providing that the meaning and the scope of the valid statutory rules must be consistent with freedom of expression. The orthodox doctrine of parliamentary sovereignty should therefore be amended so as to include that antecedent rule, which could be formulated as follows: "The meaning of any valid legislative rule must be determined from the point of view of the intention of Parliament except where such meaning is inconsistent with the democratic principle (and its corollaries), in which case such intention must be, to the extent of the inconsistency, of no force or effect."

215 Verification of the Alternative Theory Unlimited discretionary powers

In Roncarelli, Rand argued that an administrative discretionary power was always circumscribed by the purposes of the authorizing statute and must be exercised on the ground of relevant considerations.18 According to orthodox theory, that principle is justified by a presumption that Parliament cannot have the intent of authorizing arbitrary and unreasonable decisions.19 However, according to the same theory, such presumption should not frustrate a reasonably clear intention to delegate unlimited powers because the presumption would, paradoxically, mean that Parliament cannot have the intention to confer the power it had the intention to confer! In Roncarelli, the intention to confer such an absolute discretion upon the commission was reasonably clear and, consequently, the decision of the Supreme Court was inconsistent with the orthodox doctrine of the sovereignty of Parliament. The rule of law as justice makes better sense of the body of judicial decisions from which the principle against unlimited discretionary power has been inferred than the orthodox theory does. First, to the extent to which this principle prevents a public authority from exercising its conferred discretionary power for an improper purpose, it must be understood as required by one corollary of the constitutional principle as reinforced by the democratic principle. If the courts recognized and upheld such unlimited discretionary powers, the executive branch or an administrative body would not only exercise the executive function in accordance with general legal norms or standards, but would also create these very general norms or standards, therefore exercising a legislative function. Moreover, since its decisions would be unreviewable, the public authority would also exercise an adjudicative function. Of course, such a concentration of the legislative, executive, and judicial functions in the same hands would be consistent with the principle of legality (also required by the constitutional principle) but would be in direct conflit with the principle of the separation of powers.20 It follows that the courts have a legal duty to recognize a rule by virtue of which a discretionary power must be exercised in accordance with the purposes of and policies underlying the legislation in relation to which the power has been conferred. Moreover, for the principle of constitutionalism to be meaningful, the construction of the proper object or policy of the act must be seen as a matter of law reviewable by the courts.21 In that way, the law ensures that the general legislative standards guiding the executive or the administrative decisions are those enacted by the legislative branch because they are inferred or

216 An Alternative Constitutional Theory derived from its legislation. Obviously, the democratic principle reinforces the recognition of that rule because the recognized legislative standards must be attributed in all probability to the intent of the elected representatives (except, of course, where such intent is inconsistent with the democratic principle). The doctrine of the sovereignty of Parliament must thus be amended again. It must include an antecedent rule regarding interpretation which reads something like this: "If the legislative intent is inconsistent with one of the corollaries of the constitutional principle, it must be, to the extent of the inconsistencies, of no force or effect," or "The meaning of the statutes must be determined in accordance with the intention of Parliament except where such intent is inconsistent with the constitutional principle," and so on. This does not mean that the constitutional principle must always be applied where relevant. Other principles may be a counterweight to it in particular cases. Secondly, the principle against unlimited discretionary power, to the extent to which it prevents a public authority from exercising its conferred discretionary power on the grounds of irrelevant considerations, must also be understood in accordance with the constitutive principles of the rule of law as justice. Because the purpose and policy of a given legislative act, in general, can be formulated only in relatively abstract, general, impersonal, and universal terms, the scope of the administrative discretion, although limited, may remain relatively broad. Moreover, the democratic principle may require the judiciary to accept the judgment of Parliament that a particular public authority has some expertise or is otherwise qualified to make good decisions according to the statutory purpose and policy and to determine adequately what constitutes a relevant consideration. However, because the constitutional principle requires the courts to protect certain individual rights and freedoms against arbitrary actions, the rule of law may require a public authority that infringes upon such fundamental rights and freedoms to show that it has good reasons - not merely some reasons - for its action, that is, reasons according to law. The judiciary is thus under a duty to determine what rights and freedoms must be so protected and what reasons for state action are good ones. According to the alternative constitutional theory, the determination of both these issues depends on the principles of the rule of law as justice. With respect to the determination of the protected rights and freedoms, one should not believe that all private interests are conceived of as rights and freedoms so as to require a good reason for action infringing upon them. Take, for example, the United Kingdom case of Malonev. Metropolitan Police Commissioner,22 in which Malone's tele-

217 Verification of the Alternative Theory

phone line had been "tapped" on the authority of a warrant issued by the home secretary without the express or implicit authority of statute or common law rule. Sir Robert Megarry said that England is "a country where everything is permitted except what is expressly forbidden."23 Thus, the tapping of telephones at the request of the police does not require any statutory or common law power to justify it: "It can lawfully be done because there is nothing to make it unlawful."24 Of course, if such governmental action involved the violation of an individual right such as a property right, that would be illegal for lack of legal authorization. However, telephone tapping involved no such violation. In other words, the right to what we called "privacy freedoms," such as a right to respect for private life and correspondence, would not be conceived by Sir Robert Megarry as a part of the constitutive principles of the rule of law (assuming that the rule of law as justice has guided him). Of course, this does not mean that a good interpretation of the rule of law as justice in Canada today would support that view. In any event, in Roncarelli, Justice Rand expressly emphasized the fact that, without the provincial regulation of businesses such as that involving the sale of liquor, such businesses "would be free and legitimate."25 That was an indication that the court was committed to protect "freedom of commerce," not to say to uphold it as a right justified on the basis of one version of liberalism.26 Because freedom of commerce was regarded as one basic value the law should protect, that freedom became a reason for the court to verify whether the commission had good reasons to limit it. In Roncarelli, the criteria by which the court could appraise whether the reasons for the decision limiting Roncarelli's freedom of commerce were good were not determined by an interpretation of that freedom. The test was whether the considerations were acceptable in terms of the rule of law as justice. Thus, first, according to constitutional and democratic principles, they must have had a sufficient link with the purpose of and the policy underlying the statute for the execution of which the power has been conferred. In Roncarelli, the reasons for the commission's decision were not accepted as sufficiently related to the regulation of the sale of liquor: "To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is ... beyond the scope of the discretion conferred."27 Secondly, even if the reasons had passed that test, they should not have been inconsistent with the other basic values of the rule of law as justice. In Roncarelli, Justice Rand seems to have claimed that a certain number of considerations were unacceptable independently of the fact that they could be sufficiently related to the purpose of the act. For example, he asked, "Could an applicant be

218 An Alternative Constitutional Theory

refused a permit because he had been born in another province?" He affirmed that the fact of Roncarelli exercising an "unchallengeable right" could not be a ground for the exercise of the discretion. In that case, such considerations were hard to distinguish from those that were unrelated to the purposes of the act, because a court could say, for instance, that a discriminatory ground or the fact that the individual is exercising a basic right is irrelevant to the purposes of the act. Yet it is not sufficient for an administrative decision taking away some rights and freedoms to be rationally related to the purposes of the power conferring acts. It must further be reasonable according to the rule of law as justice. The decision must be acceptable as morally just. In principle, judicial review of administrative decisions on the ground of the rule of law as justice could be direct, that is, the principle of the rule of law could directly apply to administrative actions independently of the fact that administrative powers are generally conferred by statutes. Yet, since the courts are committed to the principle of legality, which means that the administration has no power to limit any fundamental rights and freedoms beyond what is authorized by a superior rule, usually a statutory rule, judicial review of administrative decisions proceeds indirectly through the antecedent rules for the interpretation of that superior rule. Suppose that a statutory rule in relation to the content of the administrative act confers an apparently unlimited discretion with respect to some issues. That rule, as with any other statutory rule, must be interpreted before being applied by the courts. Such interpretation must proceed within the framework of all antecedent rules regarding the interpretation of valid legislative rules, that is, in accordance with the rule of law as justice. For example, in Roncarelli, the court interpreted narrowly the words "discretion" or "discretionary power" so as to deny the power to take away individual rights and freedoms (for example, freedom of commerce) on the ground of considerations inconsistent with the principles of the rule of law as justice. More specifically, the word "discretion" excluded the validity of administrative decisions based upon various considerations such as those inconsistent with the constitutional principle requiring decisions pursuing a proper purpose (the sale of liquor) and the liberal principle requiring compliance with liberal values (freedom of religion, the equal rights of citizenship). If that reasoning was followed for the whole set of constitutive principles of the rule of law as justice, the concept of "discretion" in the act would be concretely interpreted as meaning a reasonable exercise of the discretionary power, that is, as an exercise acceptable as morally just in the sense of the rule of law as justice.

21 g Verification of the Alternative Theory

Therefore, the principle that all administrative discretionary powers must be limited to the purposes of the authorizing statutes and must be based upon relevant considerations should be understood as a generalization inferred from the process of interpretation logically antecedent to the very meaning of the statutory concept of "discretion." If the foregoing is accepted, foundation of judicial review for abuse of discretionary power is not the principle of legality as such, nor the legislative intent, but the rule of law as justice as a whole. The principle of legality comes after and justifies the decision to invalidate the ruling which has not respected the scope of discretionary power conferred by statute (or otherwise) as interpreted in the light of the rule of law as justice. The above reasoning supplies a better understanding of the body of cases than the theory of legislative intent. Take, for example, the British case Roberts^. Hopwood28 in which Lord Sumner maintained that the words "as they may think fit" contained a necessary implication of "honesty and of reasonableness"29 and Lord Wrenbury said that "such wages" and "such reasonable wages" were synonymous phrases.30 Obviously, such claims are not intelligible if we regard them as a pure representation of the legislative intent as embodied in the text. In fact, the rule of law as justice makes better sense of these cases. In particular, it is more consistent with the foundation of the principle as it appears in the Rooke's case: "And notwithstanding the words of the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound by the rule of reason and law."31 The privative clauses

Orthodox constitutional theory does not give an adequate account of many important judicial decisions in relation to "privative clauses," which are intended to prevent the decisions made by certain administrative bodies upon which Parliament has conferred certain powers from coming under judicial review. The "no certiorari clause," for example, provides that citizens cannot apply to the superior courts according to the procedures known as "prerogative" or "extraordinary" (certiorari, prohibition, evocation, mandamus), so as to obtain judicial review of not merely the wisdom or the appropriateness of the administrative decision but also its legality. Both in Canada and in the United Kingdom the superior courts have traditionally strictly construed the privative clauses. A clear example of that is supplied by the House of Lords' decision in Anisminic Ltd. v. Foreign Compensation Commission^2 which was, according to C. Turpin, a "striking instance" of a decision in which the courts "in the exercise

22O

An Alternative Constitutional Theory

of their power of interpretation, aided by recourse to a fund of common law principles, may give to an act a meaning and effect contrary to what the government had in view."33 In that case, the privative clause provided that "the determination by the Commission of any application made to them under this Act shall not be called in question in any court of law." For the House of Lords, that clause did not protect ultra vires governmental actions. The reasons expressly enunciated by the judges came within orthodox rhetoric. Lord Pearce, for example, maintained that when Parliament wrote the word "determination" it had in mind a "real determination" and not a "purported determination."34 According to Lord Wilberforce, it would be paradoxical for Parliament to lay down the standards to be followed by the commission and leave it absolutely free to depart from them.35 Indeed, such arguments are attractive. Yet they are open to criticism from the very point of view of orthodox constitutional theory. First, that interpretation of the clause made it virtually inoperative and useless, because a "real determination" is a "valid" determination and, consequently, does not need protection.36 Should we say, then, that Parliament has spoken to say nothing? Secondly, the "paradox" was merely apparent because the standards enunciated in the statute could have been understood as "non-mandatory," that is, as "directory" guides non-reviewable except by Parliament itself. Therefore, the House of Lords' interpretation of the statute has not made it more coherent than any other. In fact, as H.W.R. Wade said in a comment on Anisminic, "the starting point [was] abnormally clear: there [was] no doubt, for once, about the intention of the legislature."37 In Canada, at least up until 1981, the courts did strictly construe the privative clauses.38 For example, in L'alliance des professeurs catholiques de Montreal v. The Labour Relations Board of Quebec,^ the Supreme Court of Canada reviewed and invalidated a decision of the commission notwithstanding section 36 of the Labour Relations Act which prescribed that "no writ of injunction or prohibition or other legal proceeding shall interfere with or stay the proceedings of the commissioners in the inquiry."40 Since this clause prohibited the exercise of procedures and remedies, the court held that it must be strictly construed so as not to prohibit the application for a writ of prohibition. The following passage drawn from the opinion of Chief Justice Rinfret is particularly clear: A court cannot attribute to itself a jurisdiction that it does not have. It seems that this proposition is so evident that it has no need of demonstration. In addition, any restriction on the powers of control and of surveillance of a superior Court is necessarily inoperative when it is a question of its preventing the execution of a decision, of an order or of a sentence rendered in the absence of jurisdiction.

221

Verification of the Alternative Theory

Such decision, order or sentence is, in every way, ultra vires, and consequently absolutely null. Even if it wished, the Legislature could not declare the absurdity that a Court which acts without jurisdiction can be immunized against the application of a writ of prohibition. Its decision is null and no text of a statute can give it any validity or decide that, in spite of its nullity, that decision should nevertheless be recognized as valid and carried into effect.41

That opinion has not been accepted unanimously.42 Yet it represents what has been the general tendency of the judiciary.43 For example, in The Executors of Woodward Estate v. The Minister of Finance,^ a unanimous Supreme Court held that a privative clause does not prevent ultra vires governmental actions from being judicially reviewed: "The effect which has been given to such a provision is that while it precludes a superior court from reviewing, by way of certiorari, a decision of an inferior tribunal on the basis of error of law, on the face of the record, if such error occurs in the proper exercise of its jurisdiction, it does not preclude such review if the inferior tribunal has acted outside its defined jurisdiction."43 The court claimed that its construction was in accordance with the intention of Parliament. "Parliament could not have intended to clothe such tribunal with the power to expand its statutory jurisdiction by an erroneous decision as to the scope of its own powers."46 Yet, for orthodox theory, nothing could prevent a sovereign Parliament from having the intention to confer on the minister an absolute discretionary power directly reviewable only by Parliament itself. And if the recognition of such an intent must require a clear and express declaration of intent by Parliament, we may wonder what clause can be clearer than section 5(2^ of the relevant act: "For the purpose of subsection ( i ) the Minister, in his absolute discretion, may determine whether any purpose or organization is a religious, charitable, or educational purpose or organization and the determination of the Minister is final, conclusive, and binding on all persons and, nothwithstanding section 43 or 44 or any other provision of this Act to the contrary, is not open to appeal, question, or review in any court."47 The strict construction of privative clauses has authorized, from time to time, judicial review of various forms of administrative decisions conceived as leading to "excesses of jurisdiction." For example, the courts have regarded as such errors of law made by administrative bodies with respect to jurisdictional questions proper (determining the proper limits of the power conferred to the administrative bodies by the legislator), "preliminary or collateral" questions (determining the prerequisites to the exercise of the power conferred on the administrative bodies by the legislator) and, more recently, "patently unreasonable" interpretations of a statutory provision even if the interpretation of which is clearly recognized by the courts as constituting an "intra-jurisdictional"

222

An Alternative Constitutional Theory

question (a question that comes within the jurisdiction stricto sensu of the administrative board).48 These grounds for judicial review are inconsistent with the intention of the legislator when such intention is strictly inferred from the wording of a privative clause.49 Insofar as the argument from legislative intent is unsufficient, orthodox constitutional theory has failed to make sense of the body of judicial decisions relating to privative clauses.50 Yet, instead of acknowledging that body of decisions as central data which the theory must make sense of, and altering orthodox theory accordingly, some constitutional theorists have vigorously criticized it as ill-founded in law. For example, in 1952, Bora Laskin wrote that: There is no constitutional principle on which courts can rest any claim to review administrative board decisions. In so far as such review is based on the historic supervisory authority of superior courts through the use of the prerogative writs of certiorari or mandamus, or their modern equivalents, it must bow to the higher authority of a legislature to withdraw this function from them ... We may well feel that judicial supremacy is the highest of all values under a democratic regime of law, and a value to which even the legislature should pay tribute. But we have not enshrined it in any fundamental constitutional law or in our political system. On the contrary, the cardinal principle of our system of representative government, inherited from Great Britain, has been the supremacy of the legislature ... It does not follow, however, that the sacred privilege of making mistakes, conferred on superior court judges, must be denied to any other tribunal with whose opinions these judges disagree. Certainly it must not be denied when the legislature clearly (or as clearly as it can) indicates that it will assume the responsibility of checking board misbehaviour and will relieve the courts from that self-imposed duty. The courts usually say, however, that the legislature has not intended to give its administrative boards a free hand, despite the enactment of privative clauses. It may be, of course, that a government which sees to the inclusion of a privative clause in board legislation does so in the hope, or even certainty, that the courts will relieve it of a responsibility it is not eager to assume. But surely we must hold the government and the legislature to the objective manifestation of their policies. If we are to have judicial review, let it be as an open avowal of its desirability. By circumventing the privative clause, courts needlessly and gratuitously involve themselves in issues of policy. It may be urged, with justification, that all judicial work exhibits such involvement; but evasion of privative clauses through specious interpretation and unsupported assumptions is a trespass on the policy functions of another agency.51

In that passage, Laskin decrees the validity of orthodox constitutional theory, turns it into a normative theory, and concludes that the incon-

223 Verification of the Alternative Theory

sistent elements of judicial practice are mistaken. The problem is that orthodox theory purports to be descriptive. Accordingly, its basic doctrines must be verified according to judicial practice and, where inconsistent, altered. Indeed, if the controversial elements of the practice are further confirmed by the courts, they must not be seen as mistakes and any theory that cannot make sense of them is inadequate. The whole body of judicial decisions controling the effect of "privative clauses" must be viewed as being based upon the principles of the rule of law as justice and not on the intention of Parliament. In these decisions, the rule of law was, itself, the very legal reason to set such intent aside. More particularly, the constitutional principle, notably the principle of legality, has been construed as justifying them. We must agree with the following passage of H.W.R. Wade: "If a ministry or tribunal can be made a law unto itself, it is made a potential dictator; and for this there can be no place in a constitution founded on the rule of law. It is curious that Parliament shows no consciousness of this principle. But the judges, acutely conscious of it, have succeeded in preventing Parliament from violating constitutional fundamentals. In effect they have established a kind of entrenched provision which the legislature, whatever it says, is compelled to respect."52 We must also agree with G. de Q. Walker, who maintains that that body of decisions is justified on the principle of the separation of powers: "The principle in the ouster clause cases that even Parliament cannot deprive the courts of their proper function is consistent with no other view than that the separation of powers is finding a permanent and inalienable place in our constitutional law."53 Moreover, in these cases, the involved principles were not merely "antecedent" to the rule of sovereignty of Parliament and "supra-legislative" (such as the right to property) but entrenched54 to such a level that even the "clear and express" declarations of the parliamentary intent to override them through the privative clauses were not accepted by the courts as a sufficient special process to set them aside.55 These assertions do not mean, of course, that the courts have always correctly assessed the relative weight of all competing principles (for example, the principle of legality and the principle of the separation of powers, on the one hand, and the democratic principle arguing in favour of the legislative intent, on the other) and recognized the proper doctrine of review or restraint. What constitutes the right balance and the right doctrine from the point of view of the rule of law as justice are very controversial matters requiring the assessment of many others considerations such as, for example, the value of efficacy, the relevance of expertise, the political, economical, and social role of the administrative tribunals in a modern state, the truth of "interpretation

224 An Alternative Constitutional Theory

pluralism," and so on.56 Nevertheless, the rule of law as justice still provides a better account of the doctrine of judicial review of administrative decisions than orthodox constitutional law theory. Strict and liberal interpretation of statutes

The constitutive principles of the rule of law as justice do not always entail a strict construction of statutes. However, it generally is the case because they are particularly relevant when an interpretation of the statutory language according to the intention of Parliament would infringe upon the rights and freedoms of individuals. Yet, in some cases, the rule of law as justice may justify a broad construction of statutory language. As a matter of fact, since 1960, it appears that the courts have progressively recognized some aspects of the contemporary conception of the liberal principle, notably with respect to socio-economic legislation. This recognition has probably not been total as the judges have had to balance the weight of the values associated with contemporary liberalism against those upheld by democratic and constitutional principles and by the principle of coherence. Moreover, such a contemporary conception of liberalism has not been so much a reason to "control" the intention of Parliament as a reason to affirm and maintain it against competing claims based upon traditional negative freedoms, such as those classical "economic freedoms" and "common law rights." More concretely, that shift may be inferred from the socalled liberal approach to the interpretation of socio-economical legislation in contrast with the traditional strict construction. The whole area of labour relations is paradigmatic. From about 1960 onward, the courts, far from resisting the intention of Parliament to regulate it, have become the state's partner in its regulation. For example, in a famous passage of a decision by the Supreme Court of Canada, Mr Justice Hall affirmed the following: Counsel for the respondent, citing well-known authorities, emphasized that the provisions of the Labour Relations Act being in derogation of common law rights should be strictly construed. On the other hand, counsel for the appellants urged that the Labour Relations Act was remedial legislation and should be liberally construed. Whatever merit the arguments of the respondent had at the beginning of labour relations legislation, it seems to me that in the stage of industrial development now existing it must be accepted that legislation to achieve industrial peace and to provide a forum for the quick determination of labour-management disputes is legislation in the public interest, beneficial to employee and employer and not something to be whittled to a minimum or narrow interpretation in the face of the expressed will of legislatures which, in

225 Verification of the Alternative Theory enacting such legislation, were aware that common law rights were being altered because of industrial development and mass employment which rendered illusory the so-called right of the individual to bargain individually with the corporate employer of the mid-twentieth century.57

Passages like this reveal the judiciary's acceptance of the principle of equality of opportunity. One might argue that the rule of liberal construction is merely justified on the ground that the courts give more weight to the democratic principle than to the classical liberal principle today than they used to do. But that argument would be inconsistent with all post-1960 cases such as Colet, in which the courts have strictly construed a statute and have upheld the values of the liberal principle. Thus, if it is sound to claim that the courts in some cases give more weight to the democratic than to the traditional liberal principle, it is so because in these cases the legislative intent is itself understood as pursuing an important purpose of the liberal principle recognized by the courts, namely, equality of opportunity. The contemporary conception of liberalism, with its emphasis on personal and privacy freedoms, still justifies the strict construction of statutes. Let us illustrate this point with two cases related to the concept of "obscenity."58 In 1962, in Brodiev. The Queen,^ the majority of the Supreme Court judges strictly construed the definition of the concept "obscenity" enunciated in the Criminal Code.60 Formally, the interpretation was based upon the very words of the text, which provided that for a text to be obscene it must have as "dominant characteristic ... the undue exploitation of sex."61 Yet the court also took into consideration a set of reasons indicating a commitment to uphold individual freedoms, notably freedom of expression in "artistic" matters. Thus, it set aside the traditional test laid down in 1868 in R. v. Hicklin^2 and held that the determination of the "dominant characteristic" of a book must take into account the subjective intent of the author, that is, whether his or her purpose was to create a literary or artistic work, and that the opinions of literary theorists must be admissible as evidence related to the artistic merit of the work. The court held that the phrase "undue exploitation" must be narrowly interpreted because any "exploitation" is by definition always "undue." The book must not only exploit sex but exploit it unduly. That means that the exploitation must be excessive and for a base purpose. Consequently, there is no undue exploitation of sex "if there is no more emphasis on the theme than is required in the serious treatment of the theme of the novel with honesty and uprightness"63: "The section recognizes that the serious-minded author must have freedom in the production of a work of genuine artistic and literary merit and the quality of the work ...

226 An Alternative Constitutional Theory must have real relevance in determining not only a dominant characteristic but also whether there is undue exploitation."64 Similarly, in Dominion News & Gifts (1962) Ltd. v. The Queen,&5 seven judges of the Supreme Court agreed with the following passage drawn from the dissenting opinion of Justice Freedman in the Court of Appeal of Manitoba.66 The judge had to decide whether two magazines were obscene within the scope of the Criminal Code: I have examined both with care. That they do not qualify as reading matter which I would personally select for myself even in an idle hour is undoubtedly the case. But that does not make them obscene. In this area of the law one must be especially vigilant against erecting personal tastes or prejudices into legal principles. Many persons quite evidently desire to read these magazines, even though I do not ... Times change, and ideas change with them. Compared to the Victorian era this is a liberal age in which we live. One manifestation of it is the relative freedom with which the whole question of sex is discussed ... In cases close to the borderline, tolerance is to be preferred to proscription. To strike at a publication which is not clearly obscene may have repercussions and implications beyond what is immediately visible ... Unless it is confined to clear cases, suppression may tend to inhibit those creative impulses and endeavours which ought to be encouraged in a free society.67 This passage may or may not be consistent with the intention of Parliament. However, that was not the issue. The issue was to give to section 150(8) of the Criminal Code a meaning consistent with a contemporary conception of the liberal principle.68 THE ENTRENCHMENT ISSUE

The constitutive principles of the rule of law as justice have a key role to play in the process of judicial recognition of the supra-legislative character of legal norms. Let us accept, for the purposes of the argument, that orthodox theory adequately makes sense of the rule of the supremacy of the written Constitution and of the related process of constitutional review. In particular, we may assume that the identification of the documents that must be recognized as the supreme law of the land proceeds in accordance with relatively formal accepted amending procedures.69 Thus, we may accept that the judicial recognition of the Charter of Rights and Freedoms as a part of the constitution has required a mere process of formal reasoning.70 Yet orthodox theory has failed to make sense of an important number of judicial decisions recognizing the supra-legislative character of legal norms which could not by any means be conceived as formal amendments to the

227 Verification of the Alternative Theory written constitution.71 And, of course, according to its own postulates, it cannot follow from the fact that these norms were or could be regarded as more important or fundamental than all other norms from a moral or political point of view that the courts had the legal authority to recognize them as supra-legislative. The basic justificatory ground for such recognition is supplied by the constitutional principle. That principle, requiring the recognition of a set of legal norms hierarchically superior to all governmental actions and institutions, justifies the principle of the supremacy of the constitution. However, it does not postulate that the recognition of supra-legislative norms should always derive from a process of formal amendments to a pre-existing written constitution. If it did postulate that, it could not justify the judicial recognition of the supremacy of a document purported to be a written constitution laid down by a particular person or group of persons in a newly independent or postrevolutionary state. It follows that the constitutional principle can justify the supremacy of norms which are not formal amendments to a pre-existing written constitution.72 The body of judicial decisions delivered in cases such as Drybones, Heerspink, Craton, Boucher, Roncarelli, and Colet, in which the entrenched status of many legislative and common law norms (protecting various rights and freedoms) has been recognized and upheld, makes sense only if we recognize that they were based upon the constitutional principle. Accordingly, the rule of law as justice may be seen as the legal justification of the judicial recognition of a set of rules that we may call "the supremacy of 'quasi-constitutional' and of 'special nature' legislation" and "the supremacy of 'fundamental' political and moral principles of the common law." The determination of what norms should be recognized as supreme will be discussed below. The manner and form requirements According to many theorists, the fact that Parliament expressly binds itself and its successors to particular manner and form requirements with respect to future enactments purporting to be inconsistent with a particular set of norms legally binds the courts to uphold the supremacy of quasi-constitutional statutes. Section 2 of the Canadian Bill of Rights, for example, would have been the very ground for the judicial holding that this statute, enacted in accordance with the ordinary legislative process, has been "entrenched." The argument has been criticized earlier and I shall not repeat it here. Suffice it to say, on the one hand, that section 2 was conceived as an antecedent manner and form rule with regard to (the validity of) future legislation inconsistent with

228 An Alternative Constitutional Theory

entrenched rights and freedoms and, on the other hand, that the very rights and freedoms provisions were not conceived as antecedent rules with regard to the validity in relation to content. The latter provisions were seen merely as the criteria by virtue of which we could determine whether a particular post-1960 enactment must comply with the special manner and form requirements. The rule of law as justice requires us to see the whole matter differently. As I said, the recognition of a particular set of norms as entrenched is required and justified by the constitutional principle (the determination of what set of norms being discussed below). Consequently, section 2 of the Canadian Bill of Rights is not the ground for such entrenchment. Instead, section 2 must be regarded as the set of conditions Parliament would like the courts to recognize (an "invitation") as the required amending or special process by which a particular legal norm may override or set aside (repeal, amend, alter) the entrenched norms. If the courts did recognize such express conditions laid down in a legislative provision, such conditions would constitute the actual special amending process. The foregoing seems to suggest that the courts have no legal obligation to follow the particular conditions of manner and form expressly enunciated in a particular statute. This is true to the extent that the judicial decision directly depends on the degree to which the recognition of such conditions is consistent with and justified by the constitutive principles of the rule of law as justice. Thus, a court may coherently recognize the legal effect of a notwithstanding clause expressly laid down in a statute purporting to protect fundamental rights, but not a legislative provision requiring any amendment to such and such legislative norm to be approved by 95 per cent of the population. While the first decision could be justified on the ground that the promotion of the liberal principle (the protection of fundamental rights) counterbalances the violation of the democratic principle (the notwithstanding clause), the second decision could be justified on the ground that the requirement of 95 per cent approval is such an important infringement upon the democratic principle that no other principles of the rule of law as justice may counterbalance it. In Drybones, therefore, it is reasonable to hold that the Supreme Court concluded that the manner and form requirement laid down in section 2 was, taking everything into consideration, in the light of the rule of law as justice, sufficiently justified to be recognized by the courts as the adequate special amending process to the Canadian Bill ofRights.73 Moreover, since the judicial recognition of the notwithstanding clause as the appropriate special amending process has the effect of

229 Verification of the Alternative Theory

entrenching the set of rights and freedoms laid down in the Canadian Bill of Rights, these rights and freedoms should not be regarded as mere criteria for the determination of the legislative enactments that must comply with it. They should rather be seen as a part of the antecedent rules to the rule of the sovereignty of Parliament. It is true that, if in principle they could be recognized as antecedent in respect of the validity of legislation as well as their interpretation or both,74 in Drybones they have been construed as antecedent rules for the interpretation of all ordinary legislation. But that does not change their status as antecedent rules because they postulate the recognition of a rule which says something like this: "All ordinary legislation shall be construed in accordance with the set of rights and freedoms enunciated in the Canadian Bill of Rights even if such construction is inconsistent with the reasonably clear intention of Parliament." Moreover, these antecedent rules provide that, if an ordinary statute cannot be so construed, it must be declared inoperative unless it expressly indicates, by the use of a notwithstanding clause, that the enacting Parliament had the intention to override the Canadian Bill of Rights. Insofar as Parliament can override the entrenched provisions, provided it complies with the special amending process, that process may be conceived as the set of conditions which must be respected by Parliament if its will or intention is to be recognized as effective law. Conceptually, nothing should prevent us from characterizing such conditions as manner and form requirements provided that we do not confine the meaning of that phrase to the antecedent rules respecting the validity of ordinary legislation. But then the phrase "manner and form" becomes broad enough to include all conditions of form and procedure according to which the intention of Parliament is effectively recognized by the courts as effective law. Thus, the whole set of antecedent rules in respect of the interpretation of statutes may be conceived as manner and form requirements. For example, an antecedent rule providing that parliamentary intent must be determined in accordance with the literal meaning of the rule would prescribe to Parliament a set of manner and form requirements, such as the rule that it should lay down its intention in detailed and specific terms. Otherwise, its intent may not be effectively recognized and applied by the courts.75 The foundation of the entrenchment

Though the manner and form requirements expressly laid down in a statute should merely be seen as an indication of the parliamentary will to have the judiciary recognize a set of particular conditions as the

230 An Alternative Constitutional Theory

special amending process to a set of particular norms purported to be entrenched, the courts are not legally bound a priori to follow the legislative will to have that set of particular norms entrenched. Such decisions depend on what is required by the constitutive principles of the rule of law as justice and involve an evaluation of the relative importance or the fundamental character of all legal norms in the light of what is required for the maintenance of the idealtype. Although Drybones may support a contrary assertion, the decisions to recognize the supremacy of various special nature enactments in Heerspink and in Craton can hardly make sense otherwise. Of course, judges have often spoken as if they are upholding the legislative intent, indeed the intention of the electors, but, as we have seen, such arguments are hardly consistent with orthodox doctrine and, in fact, hardly believable at all. In Heerspink, Mr Justice Lamer wrote that "when the subject matter of a law is said to be the comprehensive statement of the 'human rights' of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others."1^1 The judge's understanding of the purpose of the content of the special nature statutes was to maintain the integrity of the constitutional principle, the liberal principle, and the democratic principle. These statutes, constituting various bills of rights, have been regarded as more important and more fundamental than all other legislations. Similarly, in Boucher, Roncarelli, and Colet, the Supreme Court recognized the constitutional status of a certain number of unwritten common law principles meant to protect various individual rights and freedoms conceived as necessary to uphold the rule of law as justice.77 All norms (legislative, common law) promoting particular individual rights and freedoms are not and should not be recognized as supralegislative. For example, the provisions of an act respecting labour standards may promote particular rights and freedoms which many would regard as fundamental. Yet it does not follow that such provisions should automatically be entrenched as the human rights codes have been. That depends on the content given to the constitutive principles, notably, the judicial understanding of the liberal principle.78 Furthermore, all legislation from which we can infer an express intention to entrench a set of legal norms must not be automatically accepted as supra-legislative. For example, a bankruptcy act expressly providing that that act cannot be altered or repealed except in accordance with a vote of approval of a two-thirds majority of all members of Parliament may not be recognized by the courts as entrenched if the

231 Verification of the Alternative Theory

judges do not understand it as justified by the principles of the rule of law as justice. The same kind of reasoning should apply in the hypothetical case in which a province unilaterally declares its independence, disregarding the existing written constitution and promulgating a new constitution.79 In such a case, the judiciary, notably the courts situated in that province, would have to decide whether they recognize the validity of the new constitution or not. According to orthodox theory, the legal answer would be easy: the courts would be bound to disregard the new constitution and to invalidate all acts purporting to be made under its authority. If they ever decided to recognize it, their decisions would not be according to law. Of course, such decisions would constitute a fact leading to the formation of the ultimate rule of a new legal system.80 But they would be legally arbitrary. By contrast, according to the alternative theory, the reasoning would be more complex. The rule of law as justice states that the process of constitutional adjudication must be ultimately controlled by its constitutive material principles. Accordingly, the constitutional principle might state a reason to recognize formally a rule providing the "supremacy of the new promulgated Constitution."81 But the courts could not be led to such a decision without taking into consideration other basic relevant legal principles such as, for example, the democratic and the liberal principles. Take an example. One day, two provinces of a federal country committed to the rule of law unilaterally declare their independence and promulgate a new constitution. In one province, that declaration and that promulgation have followed a democratic referendum in which 75 per cent of the population expressed its consent to secede. In the other province, such declaration and promulgation were achieved by violence and followed a coup d'etat made by revolutionaries. In the first province, the democratic principle would state a good reason to recognize the validity of the new constitution. At the very least, it would state a constraining reason to give legal significance to the democratic pedigree of that constitution. In other words, the very fact that the new constitution has been democratically approved by a significant majority of the population in the province would constitute a good reason in favour of the judicial recognition of its validity. Yet that might not be conclusive because other legal principles might argue against such recognition. For example, if it were demonstrated that the new constitution creates two classes of citizens based on race or religion or seeks to abolish other important liberal values, the liberal principle would state a reason not to recognize it. Similarly, since the new constitution has not been enacted in accordence with the existing formal process of amendment, the principle of legality would state another strong

232 An Alternative Constitutional Theory

reason not to recognize it. By contrast, in the second province, the democratic principle would state a good reason not to recognize the validity of the new constitution. However, that might not be conclusive either. If the courts were convinced that the population, in general, has come to accept the legitimacy of the revolutionary authority, or if they believed that judicial resistance to the de facto authority would be inconsistent with the principle of legal certainty, the rule of law as justice might require recognition of the revolutionary constitution. In other words, although a unilateral act of independence and a new promulgated constitution are always, by definition, inconsistent with the existing formal norms of constitutional amendments (hence inconsistent with the principle of legality and invalid within the jurisprudential framework of orthodox theory, namely, legal positivism), they might be consistent with the existing material principles of the rule of law as justice and, thereby, legally valid. Accordingly, one would be ill-advised to declare in abstracto whether a hypothetical new constitution promulgated in violation of the existing rules of constitutional amendment would be entitled to recognition by the courts or not. One can certainly envision various scenarios, but it is impossible to determine conclusively in advance what the law dictates on the issue. For there is no one absolute legal rule that would control all cases. The right answer depends on the political and social context within which the issue is raised, that is, within which a particular authority has unilaterally declared the independence of its state and promulgated the specific new constitution. The wisest approach to these extreme cases remains that form of pragmatism which characterizes the decision making process according to the rule of law as justice. Specific legal questions must be answered in concrete: the whole body of relevant considerations and factors must be properly balanced in accordance with the principles of the rule of law as justice.82 Otherwise, one's judgment is likely to be purely theoretical or academic in the pejorative sense of having no practical significance.83

Conclusion

In this book, I have rejected some of the basic postulates of orthodox constitutional theory. I have argued that the rule of law is the most basic concept of Canadian constitutional law and, correctly interpreted, corresponds to one version of the rule of law as idealtype, namely, the rule of law as justice. That should contribute to constitutional scholarship at both theoretical and practical levels. At a theoretical level, the book makes two claims. First, and perhaps most important, it offers a basic theory of the rule of law which may rescue the integrity of the concept. Because the "law," conceived as a body of constraining and meaningful practical reasons, cannot be found in valid positive rules which, according to orthodox theory, constitute the law,1 one might be tempted to conclude that the concept of the rule of law is empty or incoherent and, accordingly, should be abandoned. Yet, because the meaning of the reasons for judicial decisions, including the meaning of these valid positive rules, are constructed or created by judges who recognize both the duty to uphold the rule of law and the authority of certain constraining and meaningful practical reasons for decisions, we have a good reason to examine whether or not these practical reasons are legal (or can be conceived as legal) in some sense. I argue that the answer is affirmative and, consequently, that we need not abandon the idea of the rule of law. However, if it ever appeared impossible or illegitimate to construct a conception of the rule of law from a coherent understanding of the set of norms, ideas, concepts, and beliefs forming the internal meaning constitutive of legal practice and discourse, we would be compelled to reject the concept rule of law as a sham. Secondly, the book propounds an alternative theory of Canadian constitutional law. It suggests that, if the understanding of the meaning of the rule of law within Canadian constitutional law proceeds

234 The Rule of Law, Justice, and Interpretation

from a coherent construction of the judicial practice and discourse, we may succeed in making sense both of the concept of the rule of law and of the body of judicial decisions left unexplained and unjustified by orthodox constitutional theory. This book therefore invites Canadian lawyers, judges, law professors, and constitutional scholars to abandon the present paradigm,2 to agree to work within the framework of the rule of law as justice, and accordingly, to alter orthodox constitutional doctrines. At a practical level, this book supplies some of the most basic legal reasons and arguments for judicial decisions in the process of constitutional adjudication. Of course, it is no more than introductory. Yet it propounds a set of ultimate legal standards and norms on the basis of which the whole legal order must be elaborated and justified. Secondly, it suggests that, if the principles of the rule of law as justice are the ultimate legal constraint, they should directly and publicly be argued both by lawyers and by judges within the process of adjudication. They must not be seen as principles we refer to but only "on the sly." Thirdly, the rule of law as justice should prospectively cast new light on the process of adjudication dealing with statutory and constitutional interpretation. In particular, it should clarify, make sense of, and indicate the set of constraints that should shape judicial practice and discourse with respect to the Charter. It is significant that a single paragraph of the preamble of the Charter expressly provides that "Canada is founded upon principles that recognize ... the rule of law." Yet orthodox constitutional scholars have not understood its central significance. For example, Peter Hogg has maintained that, although a preamble of a constitution may in principle guide the interpretation of the other provisions, "it is difficult to see what aid can be derived from the references to the 'supremacy of God' and 'the rule of law' ... The reference to the 'rule of law' ... seems unhelpful since the phrase is so notoriously vague."3 Similarly, in an influential monograph, Dale Gibson has claimed that "in view of the preamble's incompleteness, and its obvious last-minute nature and political inspiration, it is not likely to play a very significant interpretive role."4 By contrast, the alternative theory propounded in this book makes it clear that the concept of the "rule of law" constitutes the most basic consideration within the process of Charter adjudication. And that proposition would still be valid even if the preamble had not expressly said so. This latter assertion entails a number of practical consequences with respect to the Charter. The most important bears on what I referred to in the introduction as the "break thesis." According to that thesis, the promulgation of the Charter has produced a fundamental

235 Conclusion

break within Canadian constitutional law. But, according to the alternative theory, the Charter is not a revolutionary document. On the one hand, it should not be contested that formally the Charter is not revolutionary. Its validity has been recognized in accordance with the pre-existing process of constitutional amendment requiring an act of the United Kingdom Parliament.5 Being a part of the Canada Act, ig82, 6 the Charter should be seen as formally coming within the preexisting legal order. It has not abolished nor replaced it. It has merely incorporated a set of norms into it. It follows, on the other hand, that if the Charter has constituted a break with the past, it should be a break with respect to substance. The break should be inferred from the fact that the content of the Charter requires the recognition of principles which are so inconsistent with the pre-existing body of constitutional norms that it is impossible to reconcile them without offering an affront to one or both. However, as it should not be difficult to show, there is no evidence for such a material break. First, independently of the preamble of the Charter, the judges' understanding of the Charter, that is, its interpretation, necessarily comes within a pre-understanding of the rule of law. Moreover, for the reasons submitted above, it necessarily comes within some interpretation of the rule of law as justice. Secondly, the rule of law as justice postulates that the law, and hence its construction and materialization, is a matter of "coherence." That entails what may be called a prima facie legal duty to interpret the Charter in accordance with the pre-existing body of constitutional law. That duty ceases, however, when it appears, in the light of the other principles of the rule of law, that the Charter cannot be coherently so construed. Thirdly, the Charter is a document which implies that the courts should enforce a set of basic rights and freedoms against the enactments of the Canadian legislatures, except those in respect of which these institutions have complied with a special legislative process (the overriding clause or the process of constitutional amendment). 7 It postulates that the understanding of the legitimate area of legislative interference with those rights and freedoms, as well as the definition of the latter, should come within the principles of a free and democratic society.8 That involves a form of judicial review of the legislation. Therefore, the rule of the sovereignty of Parliament should be conceived, at the most, in a limited sense. The pre-igSs constitutional order also implied that the courts had to enforce a set of basic rights and freedoms against the enactments of the Canadian legislatures except when these institutions acted in accordance with a special legislative process (the notwithstanding clause, the express and clear statement). It postulated that the understanding of the legitimate area of legislative interference

236 The Rule of Law, Justice, and Interpretation

with those rights and freedoms, as well as their definition, should come within the principles of constitutionalism, democracy, and liberalism. That involved a form of judicial review of the legislation, notably through the antecedent rules regarding interpretation. Accordingly, the rule of the sovereignty of Parliament before 1982 should also have been conceived, at the most, in a limited sense. Therefore, the Charter need not be read as if it has produced a fundamental break with the pre-i982 constitutional order. Its basic principles are not inconsistent with the pre-existing body of constitutional-law principles understood in the light of the rule of law as justice. It should thus be possible, in principle, to reconcile them without offering an affront to either. Indeed, that is exactly what is required by the judicial commitment to uphold and to promote the rule of law as justice. It follows that the Charter should be constructed as a body of norms harmoniously absorbed by the pre-existing order so as to produce an integrated whole. The most basic principles of the law, as it stood in 1982, should constrain and guide the process of Charter adjudication. Consequently, we may correctly maintain that the courts have a general duty to interpret and apply the Charter in accordance with the Canadian tradition of constitutional law so as to continue and transmit it.9 The courts are not entitled to disregard or to overthrow completely the reasons guiding past interpretations of fundamental concepts, the traditional analytic approach to individual freedoms and the traditional constitutional balance between, for example, liberal values and democratic values which have shaped Canadian constitutional law. They cannot blindly follow and incorporate American or European constitutional doctrines, create new doctrines drawn from nowhere, from a purported "purpose" attributed to the Charter's provisions, from a given political or moral theory, and so on without asking whether they are justified by the principles of the rule of law as justice. Plainly, the rule of law as justice constitutes the unifying principle that bridges the pre-Charter and post-Charter eras: it forms the cement of the constitution. This is not the place to explore any further the practical consequences of the rule of law as justice for the process of constitutional adjudication. It is sufficient to emphasize that the time has come for legal scholarship to analyse and clarify in more concrete terms just what it is that constitutes the rule of law as justice in Canada, indeed in any country in which the rule of law is a constitutive and regulative concept of legal practice and discourse.

Notes

INTRODUCTION

1 Canada Act, 1982 (U.K.), 31-32 Eliz. 11, c. 11, schedule B, Constitution Act, 1982, pt i, Canadian Charter of Rights and Freedoms. Throughout this book, it will be called "the Charter." 2 The Constitution Act, 1867 (formerly the British North America Act, 1867) 30—31 Viet., c. 3 (U.K.), reproduced in R.S.C. 1970, appendix 2, no. 5. 3 [1985] i S.C.R. 721. 4 Ibid., 748. See also Roncarelliv. Duplessis [1959] S.C.R. 121, 142. 5 I analyse and criticize the "correspondance theory of truth" in Tremblay, "La norme de retenue judiciaire et les 'erreurs de droit' en droit administratif: une erreur de droit? Au- dela du fondationalisme et du scepticisme," (1996) 56 R. duB. 141, 152-7, 166-90. 6 I explore these postulates at greater length in Tremblay, "La theorie constitutionnelle canadienne etla primaute du droit", (1994) 39 McGillL.J. 101, 103-14, 121-2. See also ibid. 7 A legal doctrine, as it is generally understood within the "orthodox theory," is a body of propositions asserted to be true representing and explaining an aspect of the law as it is. See Chapter i. 8 These movements or ideologies include, for example, American legal realism, pragmatism, American sociological jurisprudence, the jurisprudence of interests, the free-law movement, natural law, Marxist theories of law, feminism, and the critical legal studies movement. 9 Its apparent success may be partially due to its emulation of Proteus. The faces of legal positivism are so numerous that Neil MacCormick, a legal theorist who regards himself as a legal positivist, has written that "there is no such thing as an essence of positivism. The term positivism serves only to characterize an approach to or a program for legal theory held by some

238 Notes to pages 5-9 theorist or theorists. There is a range of possible uses of the term from which all one can do is stipulatively select that which characterizes the approach one wishes to defend - or attack." MacCormick, Legal Reasoning and Legal Theory (1978) 240. For the various significances of legal positivism, see, for example, Hart, "Positivism and the Separation of Law and Morals," 71 Harv. L. Rev. 593; Bobbio, "Sur le positivismejuridique," in Melanges en I 'honneur de Paul Roubier (1961), 53. 10 See Erwarth, "The Transformation of Hermeneutics: ig th Century Ancients and 2Oth Century Moderns," (1981) 64 The Monist 175. See also Phelps and Pitts, "Questioning the Text: The Significance of Phenomenological Hermeneutics for Legal Interpretation," (1985) 29 St. Louis U.L.J.

35311 See, for example, Dilthey, Introduction to the Human Sciences (1989). 12 Gadamer, Truth and Method (2 nd ed., 1975). 13 I have discussed the "coherence theory of truth" at some length in Tremblay, supra, n_5, 166-90; Tremblay, "L'interpretation teleologique des droits constitutionnels," (1995) 29 R.J.T. 459, 483-509. For an extended discussion of this theory, and of the "correspondance theory of truth" more generally, see the footnotes in these two articles. 14 See, for example, N. MacCormick, H. L. A. Hart (1981), ch. 3; Hacker, "Hart's Philosophy of Law," in Hacker and Raz, ed., Law, Morality and Society (1977). See Part Two. 15 Hart, The Concept of Law (1961). 16 Hart's "hermeneutics" can be attributed to his insistence on the importance of taking into account the "internal point of view," that is, the meaning a given practice has for the participants in that practice. Yet its adherence to the positivist epistemology and ontology is revealed by his view that the determination of that internal point of view is an empirical question of fact: "The question whether a rule of recognition exists and what its content is, i.e. what the criteria of validity in any given legal system are, is regarded throughout this book [The Concept of Law] as an empirical, though complex, question of fact." Ibid., 245. 17 Dworkin, Taking Rights Seriously (1977), ch. 2. 18 Dworkin, Law's Empire (1986). 19 See, for example, Villa, "Normative Coherence and Epistemological Presuppositions of Justification," in Nerhot, ed., Law, Interpretation and Reality (1990); Lenoble, "La theorie de la coherence narrative en droit. Le debat Dworkin-McCormick," (1988) 33 A.P.D. 121. The phrase "interpretive turn" has been used by many authors. See, for example, Kress, "The Interpretive Turn," (1987) 97 Ethics 834; Moore, "The Interpretive Turn in Modern Theory: A Turn for the Worse?," 41 Stan. L. Rev. 871 (1989). 20 The normative component of interpretive propositions has been emphasized by a number of legal scholars, Ronald Dworkin being certainly

239 Notes to pages g-io the most pre-eminent. Dworkin, supra, n.i8. See also Villa and Lenoble, ibid. My own contributions, so far, are found in Tremblay, supra, nn_5, 13. 1i See, for example, Manning, Rights, Freedoms and the Courts (1983), ch. 1-2. See also Browne, On the Entrenchment of a Bill of Rights (paper prepared for and distributed by the government of Manitoba to the First Minister's Conference on the Constitution) (Doc. no. 800-14/067, 8-12 Sept. 1980), 2: The "transfer of legislative authority would amount to a constitutional revolution, entailing the relinquishment of the essential principle of Parliamentary democracy: the principle of Parliamentary supremacy," quoted in Fairley, "Enforcing the Charter: Some Thoughts on the Appropriate and Just Standard for Judicial Review" (1982) 4 Sup. Ct. L. Rev. 217, 232. 22 See Hogg, Constitutional Law of Canada (3rd ed., 1992), 303-4, 411-12. 23 See Part One. 24 See Hogg, supra, n.22, 306-7, 377-8, 388-90. 25 See Chapter 3. 26 See, for example, Wilson, "Decision-Making in the Supreme Court" (1986) 36 U. Toronto L.J. 227, 238 ff.; Monahan, "At Doctrine's Twilight: The Structure of Canadian Federalism" (1984) 34 U. Toronto L.J. 47, 94-5. 27 Quoted in Swan, "Intervention and Amicus Curiae Status in Charter Litigation," in Sharpe, ed., Charter Litigation (1987), 27. 28 Section 33 reads as follows: "Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the Legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter." 29 The phrase comes from Hogg, Constitutional Law of Canada (2 nd ed., 1985), 637. See also Hogg, supra, n.22, 304-5, 892. 30 The Quebec National Assembly used it in legislation prohibiting public signs in English. Many Canadians have compared this legislation to "Nazism," and the use of the notwithstanding clause was the decisive reason for the Manitoba government's decision to withdraw its support for the Meech Lake Accord in 1989. See generally, Hogg, supra, n.22, 893. 31 See Chapter 2. 32 The following works constitute examples of that assertion: Manning, supra, n.2i, 80; Bender, "The Canadian Charter of Rights and Freedoms and the United States Bill of Rights: A Comparison" (1983) 28 McGillLJ. 811; Beckton, "La liberte d'expression," in Beaudoin and Tarnopolsky, ed., Charte canadienne des droits et libertes (1982), iO4ff.; Gibson, "Distinguishing the Governors from the Governed: The Meaning of'Government' under Section 32(1) of the Charter" (1983) 13 Man. L.J. 505; Monahan, Politics and the Constitution (1987); Bayefsky, "The Judicial Function under the Canadian Charter of Rights and Freedoms," in Bayefsky, ed., Legal Theory Meets Legal Practice (1988) , 1 2 1 ; Hogg, "The Charter of Rights and American Theories of Interpretation" (1987) 25 O.H.L.J. 87.

240 Notes to pages 13-16 PART ONE

1 I am not concerned with "constitutional conventions." On that concept, see Dicey, An Introduction to the Study of the Law of the Constitution (io th ed., 1959), chs. 14-15; Hogg, Constitutional Law of Canada (3rd ed., 1992), ch. i; Heard, Canadian Constitutional Convention (1991). 2 I distinguish between two classes of theories of empirical constitutionallegal science in Tremblay, "La theorie constitutionnelle canadienne et la primaute du droit," (1994) 39 McGillLJ. 101, 104-10. See also the Introduction. 3 The determination of the relevant group of reference may be controversial. See Part 2 and the Introduction. 4 I explore in greater detail the distinction between the "correspondance theory of truth" and the "coherence theory of truth" in Tremblay, "La norme de retenue judiciaire et les 'erreurs de droit' en droit administratif: une erreur de droit? Au-dela du fondationalisme et du scepticisme," (1996) 56 R. du B. 141, 150-90. See also the Introduction and, more generally, Part 2. CHAPTER

ONE

1 I have already clarified some of these postulates in the Introduction. See also, in general, Tremblay, "La theorie constitutionnelle canadienne et la primaute du droit," (1994) 39 McGillL.J. 101. 2 Many Canadian constitutional scholars have obviously produced nonorthodox works. See, for example, Gold, "Constitutional Scholarship in Canada," (1985) 23 O.H.L.J. 495, 5Ooff. I am not concerned with those works in this chapter. 3 Hogg, Constitutional Law of Canada (1977), (2 nd ed., 1985), (3rd ed., 1992). The following excellent textbook and casebook would be regarded as paradigmatic in Quebec: Brun and Tremblay, Droit constitutionnel (1982), (2 n d ed., 1990); and Chevrette and Marx, Droit constitutionnel (1982). Any list would also include, for example, Beaudoin, La constitution du Canada (1990); Magnet, Constitutional Law of Canada (1983), (4* ed., 1989); Whyte and Lederman, Canadian Constitutional Law (2 n d ed., 1977). 4 Peter W. Hogg might disagree with myjudgment. In "The Charter of Rights and American Theories of Interpretation," (1987) 25 O.H.L.J. 87, Hogg, after having denied the existence of "natural rights," expressly adds: "If that makes me a positivist, so be it" (at 89). That might suggest that he has not been really concerned by the fact of being or not being a "positivist." It might also suggest that, as a matter of fact, he has not consciously written his treatise within the theoretical postulates of legal positivism. Yet,

241 Notes to pages 16-18 in a reply to Frederick Vaugham, after having explained more explicitly why he does not believe in "natural rights," he argues that judges, in Charter adjudication, "should apply the positive law, which is the Charter as written." See Hogg, "On Being a Positivist: A Reply to Professor Vaugham," (1990) 29 O.H.L.J. 411, 417. The article that occasioned Hogg's reply was Vaugham, "On Being a Positivist: Does it Really Matter?" (1991) 29 O.H.L.J. 399. Hogg's view could be understood as a conscious confession that he agrees at least with some version of legal positivism after all. In what follows, it will be obvious that I associate Hogg's works with legal positivism for reasons that are independent of his scepticism towards "natural rights." 5 Marshall, Parliamentary Sovereignty and the Commonwealth (1957), 2. The reasons for such influence have been historical (Canada was an English colony), textual (the preamble of the constitution provided that its principles were similar to those of the United Kingdom), pedagogical (Canadian constitutional scholars have studied law through the prism of English constitutional theory), and ideological (Canadians have shared the system of values that have guided English theorists). 6 By Anglo-Saxon legal positivism I refer to the works of Jeremy Bentham, Of Laws in General (Hart, ed., 1970); John Austin, The Province of Jurisprudence Determined (2 nd ed., 1970); Hart, The Concept of Law (1961). 7 Ibid. 8 Ibid., v. See the Introduction. 9 Hart says: "The question whether a rule of recognition exists and what its content is ... is regarded throughout this book as an empirical, though complex, question of fact," ibid., 245. See generally, the Introduction. 10 See Allen, Law in the Making (7 th ed., 1964), 7; Atiyah and Summers, Form and Substance in Anglo-American Law (1987), 245, 257; McWhinney, "Legal Theory and Philosophy in Canada," in McWhinney, ed., Canadian Jurisprudence (1958), i. See also supra, n.6. 11 Hart, supra, n.6, g2ff. and ch. 6. 12 Ibid., 54ff., 97ff. 13 Ibid., 113. The mass of the population does not have to accept the rule of recognition, ibid., 59. 14 Ibid., 98, 105. 15 Ibid., 92, 98, 103-4. 16 Ibid., 56, 70, 92, i46ff. 17 Joseph Raz has broadened the concept of "sources" to include the "interpretive sources." Yet the identification of the sources remains a "formal" enterprise. See Raz, The Authority of Law (1979), 47-8. 18 Hart, supra, n.6, ch. 7. 19 See also Hart, "Positivism and the Separation of Law and Morals," 71 Harv. L. Rev. 593 (1958), 6o6ff. I shall return to that distinction in Chapter 2.

242 Notes to pages 18-22 20 That might find its direct source in Dicey's influential description of the functions of a professor of constitutional law. See Dicey, An Introduction to the Study of the Law of the Constitution (io th ed., 1959), 1-35. 21 See Tremblay, supra, n.i, 104-14, 121-22. 22 See Hart, supra, n.6, 98, 102-3. 23 Dicey, supra, n.2O, 34-5. 24 See, for example, the textbooks mentionned in supra, n_3. See also Chapter 3, "The Explicit Version of the Doctrine." 25 Generally, that was discussed in one of the first chapters of the textbooks describing the formal "sources." See supra, n.3_ For post-ig82 purposes, section 52(2) of the Constitution Act, 1982 (Canada Act, 1982 (U.K.), 3132 Eliz. 11, c. 11. schedule B) provides a formal definition of the phrase "Constitution of Canada." 26 Hogg (1992), supra, n_3, 120. 27 Ibid. 28 Ibid., 121. Brun and Tremblay (1990), supra, n_3, 194-5, admit that constitutional jurisprudence in Canada is political. Yet they remain unclear as to the issue of clear cases. 29 Hogg, ibid., 12-13. 30 Brun and Tremblay (1990), supra, n«3, 7156°., describe some of these norms, which they suggest are non-legal even if they derive from the principle of the separation of powers. They are jurisprudentiels (at 716). 31 See, for example, Hogg (1992), supra, n_3, 770, who conceives the principle of strict construction of statutes as "sound" and "reasonable" on the ground that it does not deny parliamentary sovereignty and, without the aid of a Bill of Rights, produces a statutory langage in accordance with "civil libertarian values." I shall challenge that belief in Chapter 3. 32 See, for example, ibid., 768ff. C H A P T E R TWO

1 Hogg, Constitutional Law of Canada (1977), (2 nd ed., 1985). 2 Hogg refers once to the principle of "validity," meaning the principle of legality. See Hogg (1977), 419; Hogg (1985), 630. The second edition adds that the "subjection of public officials to the private law of torts was, for Dicey, an important element of the 'rule of law' " (at 346). In the last edition, Constitutional Law of Canada (3rd ed., 1992), Hogg repeats the foregoing references (at 768, 1244). Moreover, he refers to the concept of the rule of law in various sections dealing with Re Manitoba Language Rights, [1985] i S.C.R. 721, in which the Supreme Court of Canada justified on the basis of the rule of law its decision not to declare of no force or effect unconstitutional statutes. Yet Hogg criticizes that ground: " 'Necessity' would have been the more conventional rubric" (at 912, 1258). Finally,

243 Notes to pages 22-3

3 4 5 6 7

8 9 10 11 12

13

14

15 16

the author seems to regard the concept of the rule of law as synonymous with the concept of constitutionalism. He also seems to prefer the latter notion (at 1257, 1263). I shall distinguish these two concepts in Chapter 7. In Hogg, Constitution Act 1982, Annotated (1982), 9, the author says that the phrase the rule of law in the Charter is unhelpful since it is so "notoriously vague." Dicey, An Introduction to the Study of the Law of the Constitution (io t h ed., i959),ch. 4. Ibid., 188. Ibid., 193, 202. Ibid., 203. See, for example, Brun and Tremblay, Droit constitutionnel (2 n d ed., 1990), 631; and Chevrette and Marx, Droit constitutionnel (1982), 33. Magnet, Constitutional Law of Canada (2 nd ed. 1985), 27ff., takes his definition of the rule of law from Dussault, Traite de droit administratif (i974), io8gff. Brun and Tremblay, ibid., 632-3; Chevrette and Marx, ibid., 33ff. Chevrette and Marx, ibid., 33ff.; Magnet, supra, n_7, 47. Brun and Tremblay, supra, n.7, 632; Chevrette and Marx, ibid., 34; Magnet, ibid., 50-1. Brun and Tremblay, ibid., 625; Magnet, ibid., 50-1. See Tremblay, "La theorie constitutionnelle canadienne et la primaute du droit," (1994) 39 McGill L. J. 101. I regard that article as a general introduction to this book. Dicey's traditional formulation was conceived as a set of propositions of fact representing one of the features that has "characterized the political institutions of England." See Dicey, supra, n_3, 183. Such propositions of fact could obviously accord with a particular set of propositions of political morality. See Dicey, ibid., i84ff. The modern or contemporary versions of the rule of law, by contrast, have generally been conceived by political and legal theorists as normative conceptions expressing propositions of political morality. Indeed, these versions might have, from time to time, guided the courts in hard cases. But that does not clearly indicate what is the nature of the explicit doctrines of the rule of law within Canadian constitutional theory. See generally Tremblay, ibid., 114-18. Vanguard Coatings and Chemical Ltd. c. R., [1987] i C.F. 367, as compared with R. c. Vanguard Coatings and Chemicals Ltd., [1988] 3 C.F. 560, constitutes a good example of that assertion. See Tremblay, ibid., 110-11. See, for example, Brun and Tremblay, supra, n_7, Chapter 4; Chevrette and Marx, supra, n_7, 33ff. See, for example, Hogg, supra, n.2. I describe the principle of legality in Chapter 7, in the text accompanying n.26. See also Tremblay, supra, n.12, 119.

244 Notes to pages 25-7 17 The following assertions are argued at greater length in Tremblay, ibid., 121-40. 18 See, for example, Gamblev. R., [1988] 2 S.C.R. 595, 697 (non-retroactivity of law); B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214 (court access); A.G. ofCanadav. Lavell; Isaacv. Bedard, [1974] S.C.R. 1349, 1365-67 (equality in the administration or application of the law by the law-enforcement authorities and the ordinary courts of the land); Roncarelli v. Duplessis, [1959] S.C.R. 121, 142 (illegitimacy of arbitrary and irrelevant considerations and of improper purposes in the exercise of a power vested in a public authority). 19 See, for example, Le Barv. Canada, [1989] i F.C. 603, 511-14 (the law is supreme, and the government and its officials must obey it and must be seen as being obedient to the law); R. v. Vermette, [1982] C.S. 1006, 1012-13 (all individuals are subject to law and that is a corollary of the doctrine of the separation of powers). 20 Compare, for example, Blackv. Law Society (Alberta), (1986) 27 D.L.R. (4*) 527 (Alta C.A.), 559 (upholding the ideal of certainty) with R. v. Wood, (1982) 31 C.R. (3d) 374 [N.S.], 378-80 and Bentley Nursing Home Inc. v. M.A.S., (1978) C.S. 30 (upholding the contradictory ideal of equity and the promotion of the exercise of discretionary power). 21 [1985] i S.C.R. 721. 22 Ibid., 748-9. 23 I offer further criticisms of Re Manitoba Language Rights, in Tremblay, supra, n.12, 136-40. 24 [1992] 2 S.C.R. 606. 25 Ibid., 626, 632. The doctrine of vagueness means that a law that "lacks in precision [such] as not to give sufficient guidance for legal debate" may be found unconstitutional. Ibid., 643. 26 Ibid., 632. 27 I shall call that conception the rule of law as certainty in Chapter 5. 28 See, for example, Rogerson, "The Judicial Search for Appropriate Remedies Under the Charter: The Examples of Overbreadth and Vagueness," in Sharpe, ed., Charter Litigation (1987), 242—43. See also Committee for the Commonwealth of Canada v. Canada, [1991] i S.C.R. 139, 210 (the opinion of Justice Claire L'Heureux-Dube), to which the court expressly refers in the case (at 626-7, 632). 29 Ibid., 638. 30 Ibid., 639. 31 Ibid., 641. For that purpose, the court expressly refers to various studies on the theories of the "Etat de droif and the "Rechtsstaat" (at 640). These theories are quite complex. It is not altogether clear what the proper relationship among the "Etat de droit," the "Rechtsstaat," and the rule of law is. Generally speaking, the first two concepts represent the idea of liberal constitutionalism. That calls to mind the ideas of legality and, to a lesser

245 Notes to pages 27-9

32 33 34

35 36 37

38

39 40 41 42 43 44 45 46

47 48

49

extent, certainty. See Chapter 7. Yet the court confines the comparison to the most general proposition that "the relationship of the State to the individuals is regulated by law," ibid. This suggests that the court has referred to these concepts not so much to understand the rule of law as such but to emphasize the distinction between a non-interventionist liberal state and the modern interventionist state. Ibid., 641. On the distinction between "clarity" and "universality," see Chapter 5. Ibid., 641-2. R.C.S. 1970, c. C-23 [am. 1974-75-76, c. 76, s. 14], ss. 30(2) [rep. & sub. 1986, c. 26, s. 28], 30(1) (c), (1.1) [ad. idem, s. 30], (1.3) [idem], ( 2 ) , (3), (6), 32.01 [ad. idem, s. 31], 51(7) [ad. idem, s. 47], 70 [idem]. R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 651. Ibid., 643. See, for example, Hayek, The Road to Serfdom (1958); The Constitution of Liberty (1960); Hewart, The New Despotism (1929); Ripert, Le declin du droit (1949); Henry, "Vers la fin de 1'Etatde droit?," (1977) 93 R.D.P. 1,207; Walker, The Rule of Law (1988). This has also been noticed by legal historians and social theorists: see, for instance, Berman, Law and Revolution (1983); Unger, Law in Modern Society (1976). That might explain why Peter Hogg has devoted no specific section of his work to the concept of the rule of law. From a positivist point of view, that might arguably be the most rigorous stance to take. See n.2 and accompanying text. For further criticisms of the explicit versions, see Tremblay, supra, n.i2. See Gallic, "Essentially Contested Concepts," (1955-56) 56 Proc. Aris. Soc. 167, 169. Dicey, supra, n_3, 187. Ibid., 202. Ibid., 187-8. See supra, text accompanying nn_3-6. See, for example, Robson, Justice and Administrative Law (3nd ed., 1951), 343ff.; Jennings, The Law and the Constitution (5* ed., 1959). See supra, n.i6 and the accompanying text. Holdsworth, "Review of the gth ed. (by Wade) of Dicey's Law of the Constitution,'" (1939) 55 L.Q.R. 585, 587-8, quoted in Marsh, "The Rule of Law as a Supra-National Concept," in Guest, ed., Oxford Essays in Jurisprudence (1961), 227-8. See, for example, Jones, "The Rule of Law and the Welfare State," 58 Col. L. Rev. 143 (1958), 145-6. See, for example, Marshall, "Due Process in England," in Pennock and Chapman, ed., Due Process (1977), 69; Marshall, "Notes on the Rule of Equal Law," in Pennock and Chapman, ed., Equality (1967), 26iff. Raz, The Authority of Law (1979), 213.

246 Notes to pages 29-30 50 Ibid., 214. 51 Fuller, The Morality of Law (rev. ed., 1969), 209-10. See also Hayek, The Road to Serfdom, supra, 0.37, 72; Rawls, A Theory of Justice (1971), 235. 52 Dworkin, "Political Judges and the Rule of Law," in Dworkin, A Matter of Principle (1985), 11. 53 Ibid., 16. 54 Commission internationale de juristes, Le principe de la legalite dans une societe libre (1959), 353. See generally Marsh, "The Rule of Law as a SupraNational Concept," in Guest, ed., Oxford Essays in Jurisprudence (1961). 55 Ibid., 13. See also Fichte's material conception of the Rechsstaat referred to in Aubert, In Search ofLatv (1983), 39; Friedmann, Legal Theory (5* ed., 1967), 163. See also Lucas, The Principles of Politics (1985), 107, where the rule of law is understood as a restriction on how the authorities may reach a decision and what they may authorize. "Their decisions are open to rational assessment and criticism, by subjects as well as by themselves, upon the basis of human rationality and shared values that are the prerequisites of any community's existing." That involves procedures governing the use of coercive power, divisions of authority, limitations on discretion, and critiques of the exercise of discretion in accordance with general principles (freedom,justice, humanity). Ibid., 110-11. 56 See, generally, Strauss, Natural Right and History (1953); Sabine and Thorson, A History of Political Theory (4th ed., 1973); Lloyd of Hampstead and Freeman, Lloyd's Introduction to Jurisprudence (5* ed., 1985), ch. 3. 57 This conception probably derives from Hobbes's Leviathan (1651), in which human beings are conceived as motivated by self-interest and selfpreservation. Accordingly, in the state of nature, where there is no effective supreme authority and no positive laws, there is a war of everyone against everyone. It is precisely to escape violence that individuals, in accordance with the laws of nature, voluntarily consent to submit themselves to a sovereign authority entitled to make and enforce positive laws designed to promote peace and social order and, consequently, to protect their security. Yet Wade and Bradley have expressed the "law and order" conception in these terms: "A preference for law and order within a community rather than anarchy, warfare and constant strife. In this sense, the rule of law is a philosophical view of society which in the western tradition is linked with basic democratic notions." Wade and Bradley, Constitutional and Administrative Law (io th ed., 1985), 97. See alsojenning, supra, n_44, 43; Re Manitoba Language Rights, [1985] i S.C.R. 721, 748-9. The link between "law and order" and "basic democratic notions," as opposed to other forms of political governement, might not be obvious. Indeed, "law and order" are not the privileges of democracy. Yet one might think that it derives from the concepts of autonomy and rationality which underlie social contract theory both in Hobbes's political theory and in that of Locke and Rousseau.

247 Notes to pages 31-3 58 On that approach, see Soper, "Legal Theory and The Obligation of A Judge: The Hart/Dworkin Dispute," 75 Mich. L. Rev. 473 (1977); Soper, "Alternative Methodologies in Contemporary Jurisprudence: Comments on Dworkin," 36/. Leg. Ed. 488 (1986); Soper, "Book Review: Dworkin's Domain," 100 Harv. L. Rev. 1166 (1987). 59 Miller, "Linguistic Philosophy and Political Theory," in Miller and Siedentop, ed., The Nature of Political Theory (1983). 60 See, for example, Oppenheim, "Freedom-An Empirical Interpretation," in Friedrich, ed., Liberty (1966), 274. 61 Connolly, The Terms of Political Discourse (a n d ed., 1983), i4iff. 62 See, for example, Perelman, The Idea of Justice and the Problem of Argument (1963); Gallic, supra, n.39; Rawls, supra, 11.51, 5ff.; Dworkin, Law's Empire (1986), 7off. 63 Dworkin, ibid., 70. 64 See, for example, Plato, Laws (1961), 715 d, 293; Aristotle, The Politics (1986), I286a7, 221, i287aio, 226-7, 1287323, 2 26; John of Salisbury, The Statesman's Book of John of Salisbury (1927), bk. 4, ch. 7, 33ff.; Harrington, The Commonwealth ofOceana (1887), 16, 26ff.; Locke, Two Treatises of Government (1967), 2, bk. 9, ss. 131, 371; Paine, Rights of Man (1969); Dicey, supra, n_3, ch. 4; Hayek, supra, n.37_ 65 Hutchinson and Monahan, "Introduction," in Hutchinson and Monahan, ed., The Rule of Law Ideal or Ideology (1987), ix. 66 I have chosen Barker's translation: Barker, The Politics of Aristotle (1946), 146. See also Aristotle, supra, n.64, 1287323, 226. 67 Governmental actions and decisions must therefore be "reasoned": they must follow from a process of deliberation and the government must be capable of giving reasons for them. Rationality must be contrasted with "nonrational" and "irrational" actions and decisions on the one hand, and with "reasonableness" on the other. See Freund, "Rationality in Judicial Decisions," in Friedrich, ed., Rational Decision (1964), 109, no. 68 This fact has been conceived as a puzzle by various legal and political theorists. See, for example, Raz, supra, n_49, 212; Weinrib, "The Intelligibility of the Rule of Law," in Hutchinson and Monahan, supra, n.65, 59; Neumann, "The Concept of Political Freedom," 53 Col. L. Rev. 901 (1953), 910. That puzzle was compared to the quadrature of the circle by Jeanjacques Rousseau. See Rousseau, Considerations on the Governement of Poland, in Rousseau, Political Writings (1953), 161-2. 69 For an opposing view, see Aubert, supra, n.55, 34. 70 See, for example, Raz's conception of the rule of law, which postulates "an instrumental conception of law," supra, n.4g, 226; Dworkin's "rights conception" of the rule of law depends on his conception of law called "law as integrity," supra, n.62, ch. 7.

248 Notes to pages 33-8 71 On the relation between "norms" and "reasons for action," see Raz, "Reasons for Action, Decisions and Norms," in Raz, ed., Practical Reasoning (1978), ch. 9. 72 Ibid., 128. 73 Raz, supra, n.4g, 210. 74 Raz argues that, although the rule of law serves moral values, "there are so many values it does not serve," ibid., 219. 75 See supra, n_7o. 76 For example, according to the foregoing approach, the so-called "law and order" version might not appear so much as a "conception" than as a theoretical justification of the rule of law, that is, one of its foundations, or as one of its social consequences. On the one hand, order, as opposed to anarchy and chaos, might be seen as a reason, indeed treason, to recognize the supremacy of law, over all other considerations, within political morality and, accordingly, within civil society. See supra, n_57. On the other hand, "law and order" might represent a mere consequence of upholding the rule of law in a given context. 77 See Part Two. 78 That may explain why Peter Hogg calls the principle of legality the "principle of validity." See supra, n.2. 79 Hart, "Positivism and the Separation of Law and Morals," 71 Harv. L. Rev. 593 (1958), 607. 80 Ibid. 81 Hart, The Concept of Law (1961), 124. 82 Ibid., 124, 200; Hart, supra, n.7g, 612-14. 83 Ibid., 200. 84 "Balance of reasons" is understood as follows: "When conflicting reasons bear on a problem we determine what ought to be done by assessing the relative strength or weight of the conflicting reasons. In the presence of conflicting reasons we say, the agent should act on the balance of reasons. He should act on the reason or combination of reasons which override these conflicting reasons which apply to the problem facing him." Raz, supra, n.7i, 128. 85 Hart, supra, n.8i, 123. 86 See Chapter i, "Orthodox Constitutional Theory." 87 MacCormick, Legal Reasoning and Legal Theory (1978). 88 Ibid., 103. 89 Ibid., 129. 90 Ibid., iO5ff., ch. 6. "Consequentialist" arguments are conveived in a broad sense. See ibid., ii5ff., 257. 91 Ibid., 106. 92 Ibid., 107. 93 Ibid., 251. 94 Ibid., 238.

249 Notes to pages 38-41 95 96 97 98 99 100

Ibid., 233. Dworkin, Taking Rights Seriously (1977), 34. MacCormick, supra, 0.87, 251. Ibid., 254. Hart, supra, n.8i, 125. See also 119, 124. Hart himself is, however, somewhat ambiguous about "clear" cases. He says that they are those "where the general terms seem to need no interpretation and where the recognition of instances seems unproblematic or 'automatic.' " See ibid., 123. Emphasis added. 101 I do not suggest that Hart himself has ever accepted these postulates. I do mean, however, that in Canada their validity has been assumed implicitly and expressly by orthodox constitutional lawyers, judges, law professors, and scholars. 102 The idea of "objectivity" is understood in an absolute sense. It assumes the "existence" and the inherent and ahistorical validity of an "Archimedean point" supplying a method by which and a standard according to which we can rationally found our knowledge (scientific, ethical, legal) independently of our own subjective standpoint. That foundational point determines the validity and the truth of our beliefs and the legitimacy of our judgments, actions, and so on. 103 It is not necessary to postulate a particular theory of "meaning." On these theories, see Moore, "The Semantics of Judging," 54 S. Cal. L. Rev. 151 (1981). It is sufficient to assume that the theory of the core postulates that there is something "in" the text that constitutes its "inner" and "true" meaning. 104 See Abraham, "Statutory Interpretation and Literary Theory: Some Common Concerns of Unlikely Pair," 32 Rutgers L. Rev. 676 (1979). 105 See, for example, Adams and Searle, ed., Critical Theory since 1965 (1986); Eagleton, Literary Theory, An Introduction (1983); Suleiman and Crosman, ed., The Reader in the Text (1980). 106 Gadamer, Truth and Method (2 nd ed., 1975). See Palmer, Hermeneutics, Interpretation Theory in Schleiermacher, Dilthey, Heidegger, and Gadamer (1969); Warnke, Gadamer, Hermeneutique, tradition et raison (1987). 107 Gadamer, ibid., xvi-xviii. 108 Ibid., 236-7. 109 Ibid., 236, 26iff. no Ibid., 239ff. i n Ibid., 26i~3ff., 26gff., especially 272-4. 112 Ibid., 358. 113 Ibid, (for example, 359, 430). 114 "Pragmatism" developed in America in the late nineteenth century and may be associated with the thoughts of William James, John Dewey, and Richard Rorty. See Rorty, Consequences of Pragmatism (1982). 115 See ibid., 161. See also xiii-xiv.

250 Notes to pages 41-5 116 Ibid., xix. 117 Ibid., 150. 118 Ibid., 165-6. 119 Rorty, Philosophy and the Mirror of Nature (1979), 374.

Rorty, supra, 11.114, l&5Ibid., 153. Ibid. Ibid., 152. Ibid. Ibid., 153. See Eagleton, supra, 11.105, cn- 45 Adams, supra, 0.105, 79^-5 Peller> "The Metaphysics of American Law," 73 Cal. L. Rev. 1151 (1985); Symposium on Deconstruction, 69 The Monist i (1986). 127 See Adams, Searle, ibid., 163. Suleiman and Crosman, supra, n.iO5; Eagleton, ibid., 74ff. 128 Iser, The Act oj'Reading (197-8), 18. 129 Ibid., 2off. The word "constitution" of meaning is used in the French version for "actualization." See Iser, L'acte de lecture (1985). 130 Ibid., ch. 3. 131 Iser, "Interaction between Text and Reader," in Suleiman and Crosman, supra, n.iO5, no. 132 Ibid., i n . 133 See, for example, Eagleton, supra, n.iO5, 85. 134 See, for example, D'Amato, "Can Legislatures Constrain Judicial Interpretation of Statutes?" 75 Stan. L. Rev. 561 (1989). 135 See, for example, Moore, "The Interpretive turn in Modern Theory: A Turn for the Worse?" 41 Stan. L. Rev. 871 (1989). 120 121 122 123 124 125 126

136 Fish, Is There a Text in this Class ? (1980), vii.

137 Ibid., 171. 138 Ibid., 158. 139 Ibid., 172. 140 Ibid., 163. See generally, i6iff. 141 Ibid., 171. 142 Ibid., 173. 143 Hirsch, Validity in Interpretation (1967), 46.

144 Ibid., 8ff., 255; Hirsch, The Aims of Interpretation (1976), aff. 145 To a certain extent, that is based upon a philosophical debate that goes beyond my purpose, namely, the debate between Husserl's transcendental phenomenology and Heidegger's hermeneutical phenomenology. See Eagleton, supra, n.io5, ch. 2; Hirsch, supra, n.i43, 2ogff. 146 Hirsch, ibid., 4. 147 Hirsch, supra, n.i44, 76. 148 Ibid., 7, 77.

251 Notes to pages 45-7 149 See, for example, West, "Adjudication is Not Interpretation: Some Reservations About the Law-as-Literature Movement," 54 Tenn. L. Rev. 203 (1987); Moore, supra, n.ig5. 150 It is impossible to provide an exhaustive list here. But see, for example, Symposium on Law and Literature, 60 Tex. L. Rev. i (1982); Interpretation Symposium, 58 S. Cal. L. Rev. i (1985); Levinson and Mailloux, ed., Interpreting Law and Literature: A Hermeneutic Reader (1988); Miers, "Legal Theory and the Interpretation of Statutes," in Twining, ed., Legal Theory and Common Law (1986), H5ff.; Sherman, "Hermeneutics in Law" (1988) 51 Mod. L. Rev. 386; Mootz, "The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry Based on the Work of Gadamer, Habermas, and Ricoeur," 66 B.U.L. Rev. 523 (1988); Phelps and Pitts, "Questioning the Text: The Significance of Phenomenological Hermeneutics for Legal Interpretation," 29 St. Louis U.L.J. 353 (1985); Hoy, "Interpreting the Law: Hermeneutical and Poststructuralist Perspectives," 58 5. Cal. L. Rev. 135 (1985); Mclntosh, "Legal Hermeneutics: A Philosophical Critique," 35 Oklahoma L. Rev. i (1982); Symposium on Pragmatism, 63 S. Cal. L. Rev. (1990); Hutchinson, "The Three 'Rs': Reading/Rorty/Radically," 103 Harv. L. Rev. 555 (1989); Halewood, "Performance and Pragmatism in Constitutional Interpretation" (1990) 3 Can.]. Law and jurisprudence 91; Posner, R., The Problems of Jurisprudence (1990); Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989). See, in particular, Dworkin, supra, n.62; Dworkin, A Matter of Principle (1985), ch. 6-7; Fiss, "Objectivity and Interpretation," 34 Stan. L. Rev. 739 (1982); Levinson, "Law as Literature," 60 Tex. L. Rev. 373 (1982); Eskridge and Frickey, "Statutory Interpretation as Practical Reasoning," 42 Stan. L. Rev. 321 (1990); and the works of Pierre-Andre Cote: "L'interpretation de la loi, une creation sujette a des contraintes," (1990) 50 R. du B. 329; Cote, "La notion d'interpretation manifestement deraisonnable - vers une redefinition de 1'erreur d'interpretation," Actes de la XIe Conference desjuristes de 1'Etat, Conference desjuristes de I'Etat (1992). My own contribution to that debate, so far, is found in two texts: "L'interpretation teleologique des droits constitutionnels," (1995) 29 R.J. T. 459; and "La norme de retenue judiciaire et les 'erreurs de droit' en droit administratif: une erreur de droit? Au-dela du fondationalisme et du scepticisme," (1996) 56 R. du B. 141. 151 See this chapter's section "The Tntepretive Premise.' " 152 We often hear that 95 per cent of cases are clear. Such an assertion may be true. However, it does not imply that 95 per cent of cases reaching the appellate courts are clear. In fact, the contrary assertion may be closer to the reality. 153 Singer is right when he argues that "prediction" with respect to the outcome of a case does not derive from the "determinacy" of the rules but

252 Notes to pages 47-50 from the fact that the judicial choices are made in a context that includes the "institutional setting," the "customs of the community," the "role of the decisionmaker," and the "ideology of the decisionmaker." See Singer, "The Player and the Cards: Nihilism and Legal Theory," 94 Yale L.J. i (1984). On the notion of "interpretive community," see Fish, supra, n.igS; Fiss, supra, n.i5O. See also the contributions of Cote, supra, n.i5O. 154 See Chapter 5. 155 See the references in Stick, "Can Nihilism Be Pragmatic?," 100 Harv. L. Rev. 332 (1986), nn.2, 3. 156 Singer, supra, n.i53, 5n.8. See also my criticism of "scepticism" in Tremblay, "La norme de retenuejudiciaire," supra, n.i^o. 157 Rorty, supra, n.ng, 336. 158 I argue that such a "middle ground" does exist with respect to the process of constitutional and statutory interpretation and adjudication. See Tremblay, "L'interpretation teleologique," supra, n.i5o, 483-509; Tremblay, "La norme de retenuejudiciaire," supra, n.i5o, 149-90. 159 See supra, n.i5O. 160 Levinson, supra, n.i5o. 161 Fiss, supra, n.i5O, 763. 162 Ibid., 740. 163 Levinson, supra, n.i5o, 377, quoting Robertson, Language as Hero in Post-Modern Formalist Fiction, 180 (1979) (unpublished PhD dissertation, Department of English, University of Wisconsin). 164 Ibid., 391. 165 Ibid. 166 Ibid., 383. 167 Ibid., 385. 168 Ibid. 169 Fiss, supra, n.i5O, 741. 170 Ibid., 742. 171 Ibid., 762. 172 Ibid., 739-40. 173 Ibid., 744. 174 Ibid., 744-6. 175 Ibid., 744. 176 Ibid., 745. 177 Ibid. 178 Ibid., 744. 179 Ibid., 739. Emphasis added. 180 Ibid., 762-3. Emphasis added. 181 Ibid., 745. 182 Ibid., 763. 183 Ibid., 739.

253 Notes to pages 50-8 184 Ibid., 744. 185 To that extent, we may say that the text constrains the process of adjudication. But it constrains it "internally" and not from the outside. It presupposes a prior interpretation. We may even say that the core of the text is constraining. But the core would also be a fact internal to the interpretive community. To that extent, it constrains the process of decision, as does the meaning in a penumbral case. I understand Dworkin's view on interpretation and objectivity as articulating the philosophical basis of these assertions (supra, n.i^o, ch. 6-7). See my discussion in Tremblay, "La norme de retenuejudiciaire," supra, n.i5O, 166-79. 186 Some scholars associated with critical legal studies would suggest that we "give up the very concept of law once and for all." See Chow, "Trashing Nihilism," 65 Tul. L. Rev. 221 (1990), 234. 187 Vivieux-Reymond, La logique formelle (1962), 10. 188 See Bellussi, "La justification en droit," in Hubien, ed., Le raisonnement juridique (1971), 229. 189 That description has been formulated against the background of Taylor, Normative Discourse (1961), but does not proceed from it. 190 I argue elsewhere that the process of determination of the material norm required by the "purpose," at least in the context of Charter adjudication, is neither absolutely objective nor a purely subjective but a complex process of interpretation coming within coherence and constructivist theory. See Tremblay, "L'interpretation teleologique," supra, n.i5o, Part Two. See also my discussion in Tremblay, "La norme de retenuejudiciaire," supra, n.i5O, 180-9. 191 The notion of "dialectical reasoning" derives from Aristotle, The Organon (1949), discussed in Rodenheimer, Jurisprudence (rev. ed., 1974), 392ff. 192 That process of justification is similar to the idea of "reflective equilibrium." See, for example, Rawls, supra, n.5i, 47-51; Daniels, "Wide Reflective Equilibrium and Theory Acceptance in Ethics," (1979) 76 Journal of Philosophy 256. For an illustration of that process in the context of Canadian constitutional adjudication, see Tremblay, "L'interpretation teleologique," supra, n.i5O, Parts Two and Three. In the context of statutory interpretation, see Tremblay, "La norme de retenuejudiciaire," supra, n.i5O, 180-89. See a^° Chapter 6. 193 See supra, n. 102. The ultimate reason, as we shall see in Part Two, is not "external," ahistorical, and inherently valid. It depends on the judge's hermeneutical standpoint. CHAPTER THREE

i For example, Hogg, Constitutional Law of Canada (3rd ed., 1992), 301. Parliament comprises three bodies: the Queen, the House of Lords, and

254 Notes to pages 58-9

2

3 4

5 6

7

8

9 10 11

the House of Commons. See Dicey, An Introduction to the Study of the Law of the Constitution (io th ed., 1959), 39. Canadian constitutional scholars were well aware of the particular problem created by United Kingdom membership in the European Economic Community. See, for example, Hogg, ibid., 3oin.2. See Hart, The Concept of Law (1961), io3ff., i44ff.; Wade, "The Basis of Legal Sovereignty," (1955) C.L.J. 172, 18 7ff.; Phillips and Jackson, O. Hood Phillips' Constitutional and Administrative Law (6th ed., 1978), 5off. Wade and Bradley, Constitutional and Administrative Law (io th , 1985), 65. Dicey, supra, n.i, 39-40. It should be emphasized, however, that Dicey did not conceive that doctrine as describing and corresponding to a binding legal rule. His purpose was to explain, in terms of basic (scientific) principles, a social and political fact, namely, the dominant characteristics of the English constitution. Dicey's constitutional theory was much closer to Austin's idea of a "pre-legal" sovereign having the factual power to make laws than to Hart's idea of a secondary rule (such as the rule of recognition) conferring authority to act, to a person or a body of persons. See Tremblay, "La theorie constitutionnelle canadienne et la primaute du droit," (1994) sgMcGillL.J. 101. See, for example, Hogg, supra, n.i, 115-16; Dicey, supra, n.i, 144. A norm is constitutional in a formal sense when it is laid down in a particular document called the "constitution." The norm, thus, is said to be "constitutional" independently of its content. The Constitution Act, 1867 (formerly the British North America Act, 1867) 30-31 Viet., c. 3 (U.K.), reproduced in R.S.C. 1985, appendix II, no. 5. It will be called the Constitution Act, 1867. For post-ig82 purposes, section 5 2 ( 2 ) of the Constitution Act, 1982, 31-32 Eliz. 11, c. 11 (U.K.), schedule B, Canada Act, 1982, Part VII (it will be called the Constitution Act, 1982), defines the phrase "Constitution of Canada." Taking the process of constitutional amendment into consideration might involve a description of the supremacy of the constitution as follows: "What the constituent enacts is the supreme law of the land," and "No person or body is recognized by the law of Canada as having the right to override or set aside the law of the constituent." For example, Hogg, supra, n.i, 767; Brun and Tremblay, Droit Constitutional (2 nd ed., 1990), 562. The preamble of the Constitution Act, 1867 added that the colonies in British North America had "expressed their desire to be federally united." Hogg, supra, n.i, 303. See also Hodgev. The Queen (1883) 9 App. Gas. 117 (PC.), 132; Liquidators of the Maritime Bank ofCanada v. Receiver-General of New Brunswick [1892] A.C. 437, 441—3; Amax Potash Ltd. v. Saskatchewan [1977] 2 S.C.R. 576, 590; Re Resolution to Amend the Constitution [1981] i S.C.R. 753, 84iff.

255 Notes to pages 59—62 12 13 14 15 16

Keir and Lawson, Cases in Constitutional Law (4* ed., 1954), i. See Chapter 2. For example, Hart, supra, n.2, 92-3, 102-4; Wade, supra, n.2, iSyff. Hart, ibid., 108. The question of whether or not the rules are legal is discussed later in this chapter, under the heading "The Legal and Constitutional Character of the Principles." 17 Latham, The Law and the Commonwealth (1949), 523. Emphasis added. See also Wade, supra, n.2, 189; Heuston, Essays in Constitutional Law (2 nd ed., 1964), 6; Phillips and Jackson, supra, n.2, 80. 18 Latham, "What is an Act of Parliament?" (1939) King's Counsel 152, 152-3. 19 These assertions are somewhat supported by Dicey, who, dealing with governmental power, wrote: "Powers, however extraordinary, which are conferred or sanctioned by statute, are never really unlimited, for they are confined by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges. Parliament is supreme legislator, but from the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials, or to the Houses of Parliament, in the Houses were called upon to interpret their own enactments." Dicey, supra, n.i, 413-14. Emphasis added. What would be, then, the meaning, purpose, or value of the doctrine of parliamentary sovereignty if the judges remain free to interpret a statute in a mode that "would not commend itself either to a body of officials, or to the Houses of Parliament"? 20 Note that the assertion might be valid even if one believed, contrary to what I argued in chapter 2, that a valid act possesses an "inner" meaning. For, without a legal rule providing that the judges must apply the act in accordance with that "inner meaning," they would be legally free to depart from it. Such a rule, if it existed, would not be in relation to formal validity; it would be a rule governing the determination of the meaning of the act. That rule, therefore, should be part of the doctrine of parliamentary sovereignty if we are to conceive it as a body of propositions representing the normative idea of judicial obedience to statutes. 21 To that extent, section 52(1) of the Constitution Act, 1982 providing that "the Constitution of Canada is the supreme law of Canada" does not, by itself, generate its own supremacy. See Slattery, "The Independence of Canada," (1983) 5 Sup. Ct. L. Rev. 369. Hogg is more ambiguous on that issue. See Hogg, "Supremacy of the Canadian Charter of Rights and Freedoms," (1983) 61 C.B.R. 69 and Hogg, supra, n.i, 55ff. 22 For a somewhat similar conclusion, see Greenawalt, "The Rule of Recognition and the Constitution," 85 Mich. L. Rev. 621 (1987).

256 Notes to pages 63-4 23 See Latham, supra, n.i8, 153. The rules for the composition are sometimes included in the notion of "manner and form." See, for example, Conklin, "Pickin and its Applicability to Canada," (1975) 25 U. Toronto L.]. 193; Hogg, supra, n.i, 310. 24 See, for example, Wade and Bradley, supra, n«3, 76ff.; Edinburgh and Dalkeith Railways. Wauchope (1842), 8 Cl. & F. 710, 725, 8 E.R. 279 (H.L.), 285. See, generally, Swinton, "Challenging the Validity of an Act of Parliament: The Effect of Enrolment and Parliamentary Privilege," (1976) 14 O.H.L.J. 345; Conklin, ibid. 25 See Phillips and Jackson, supra, n.2, 80-1, quoting various authorities. 26 According to orthodox theory, these further rules must also be determined by the courts. Yet many English scholars have suggested that the United Kingdom Parliament may effectively alter its own composition. That raises the issue of whether a Parliament can bind its successors and whether the courts would be compelled to enforce such legislative rules for the composition. Most of these authors come within the so-called "new view" of the doctrine of the sovereignty of Parliament and, accordingly, the validity of their assertion depends on the validity of the "new view." See the section "Quasi-constitutional Legislation" later in this chapter. Other authors come within the orthodox view and the validity of their assertion depends on the internal coherence of that theory. See the section "The 'Continuing' Sovereignty of Parliament" in this chapter. 27 See, for example, The Prince's Case (1606), 8 Co. Rep. la, I3b, 2ob, 77 E.R. 481 (Ch.), 496-7, 505; Edinburgh and Dalkeith Railway v. Wauchope, (i842),8Cl. &F. 710, 8 E.R. 279 (H.L.). The "Parliamentary roll" has not existed since 1849. It has been replaced by two vellum prints of each act authenticated by the clerk of the Parliaments, one of which is in the Public Record Office and the other in the House of Lords' library. See Wade and Bradley, supra, n>3, 77; Phillips and Jackson, supra, n.2, 81; Heuston, supra, n.i7, 18. 28 The power of each house to regulate its internal procedure is generally viewed as a matter of "privilege." In a recent case, the Canadian Supreme Court has recalled at length the legal and historical foundations of parliamentary privileges. See New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] i S.C.R. 319. Also, see, generally, May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament (21 st ed., 1989). Moreover, according to section 9 of the Bill of Rights, 1689, l Will & Mar. sess. 2, c. 2, the "proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament." See Wade and Bradley, ibid., 76-7. 29 (1842), 8 Cl. &F. 710, 8 E.R. 279 (H.L.). 30 Ibid., 285. See also The Prince's Case (1606), 8 Co. Rep. la, I3b, 2ob, 77 E.R. 481 (Ch.); Stockdalev. Hansard (1839) 9 AD & E. i, io8ff., 112 E.R.

257 Notes to pages 64-8 1112, 1153ff.; Bradlaughv. Gossett (1884) 12 Q.B.D. 271, 275; Leev. Bude and Torrington Railway Co. (1871) L.R. 6 C.P. 576, 582; Pickinv. British Railways Board [1974] A.C. 765, 786-8, 790-93, 798-800. 31 (1871) L.R. 6 C.P. 576. 32 Ibid., 582. See also Pickinv. British Railways Board [1974] A.C. 765, 782. See, for example, R. v. Jordan (1967) Grim. L. R. 483; Madzimbamuto v. Lardner-Burke [1969] A.C. 645, 723. 33 The issue of whether or not a legislative institution can unilaterally and effectively enact various rules about the validity of legislation is discussed in two parts of this chapter, under the headings "The 'Continuing' Sovereignty of Parliament" and "Quasi-constitutional Legislation." 34 The following classification is certainly debatable for it depends on the characterization of the rules. For example, are the rules prescribing the number of seats in the House of Commons related to the "composition" of Parliament or to the "internal procedures"? It may be the case that the choice depends on the issue in which one is constrained to characterize them. See Marshall, Parliamentary Sovereignty and the Commonwealth (1957), 13. 35 According to certain constitutional scholars, who find support in various cases, if a legislature or Parliament enacted legislation in violation of a constitutional rule for the internal procedures for which the constitution confers to the enacting body the power to unilaterally alter it, the act would be valid and that rule would be implicitly repealed pro tanto. See, for example, Brun and Tremblay, supra, n.g, 619. I do not agree with that opinion even if it sounds consistent with the orthodox doctrine of the sovereignty of Parliament. See the section "The Written Antecedent Rules" in this chapter, nn.i43ff., and accompanying text. 36 [1949] 2D.L.R. 425. 37 Ibid., 430. 38 Ibid. 39 Ibid., 430-1. 40 See, for example, Gallant v. R. [1949] 2 D.L.R. 425. 41 [1979] 2 S.C.R. 1016. 42 Ibid., 1022. 43 Hogg, supra, n.i, 1205. Hogg also argues that these "Bills" and amendments may be included in section 133*8 phrase, "both those Languages shall be used in the respective Records and Journals of those Houses." Ibid., n_35. 44 See supra, nn.28~3o and accompanying text. See also the section "The Unwritten Antecedent Rules Relating to Validity in Canada" in this chapter, nn.52-7, and accompanying text. 45 See also, for example, section 94, 94A, 95, 132, 146. 46 See, for example, Hogg, supra, n.i, 377; Brun and Tremblay, supra, n.g, 4o6ff.

258 Notes to pages 68-70 47 The determination of the "pith and substance" depended generally on the "purpose" of the law. See Brun and Tremblay, ibid., 407; Hogg, ibid., 383-5. In the process of characterization, the courts could not assess the wisdom of the law or the opportunity of its underlying policies. See, for example, Hogg, ibid., 306-7, 388-90. 48 For example, Hogg, ibid., 388-90. 49 Here the "matter" may depend on the "effects" of the law. The relationship among the "purpose," the "effect," and the "matter" of a law will not be analysed. See, generally, Brun and Tremblay, supra, n.g, 407. 50 According to orthodox theory, most of these rules were conceived as extralegal. See Chapter i. 51 See Swinton, supra, n.24, 3&5ff.; Conklin, supra, n.23, 2o6ff. 52 (1975) 52 D.L.R. ( 3 d) 512 (H.C. Ont.). 53 Ibid., 513. 54 Ibid., 514. 55 See nn.29-30 and accompanying text. 56 [1926] Ex. C.R. 127. 57 Ibid., 129. Although the enunciation of that principle is consistent with orthodox theory, I shall argue that the court misapplied it. See nn. 144-57 and accompanying text. As noted above, the Supreme Court of Canada has expounded at length the law with respect to parliamentary privileges that underlies the right of a house or assembly to regulate and control its own proceedings. See n.28. 58 [1978] 2 S.C.R. 770. 59 Ibid., 796. The argument was linked to the "implied Bill of Rights" thesis. See Hogg, supra, n.i, 774ff. 60 For example, in A.G. of Nova Scotia v. A.G. of Canada [1951] S.C.R. 31, the Supreme Court inferred from the "federal principle" enunciated in the preamble a rule prohibiting legislative inter-delegation and declared invalid a statute purported to achieve that end. Although unwritten, that rule justified judicial review on the ground of the content of the law. Yet the rule was not unwritten in the sense of the present section since it was conceived to be directly inferred from the text. Moreover, if a statute had been enacted in accordance with that inter-delegation, it would have been invalidated on the ground that it would not have been an "act of Parliament" within the meaning of the set of written antecedent rules about composition, form, and content. See also SEFCOv. A.G. for Ontario [1987] 2 S.C.R. 2, discussed in the section "The Written Antecedent Rules" in this chapter. 61 For example, these rules may include the rules of evidence in relation to the authenticity of the act. See Swinton, supra, n.24, 34°ff62 For example, Marshall, supra, n.34, ign.i, quoting Kelsen, General Theory of Law and State (1961), 155.

259 Notes to pages 71-3 63 Ex p. Selwyn (1872) 36 J. P. 54, quoted in Phillips and Jackson, supra, n.2,5364 [1985] i S.C.R. 721. 65 Ibid., 747. 66 Ibid. 67 See Cote, "L'interpretation de la loi, une creation sujette a des contraintes" 68

69 70 71

72

73 74 75

(i99 0 ) 5°^- duB- 329> 331See, for example, Cote, Interpretation des Ms (1982), i; Driedger, The Construction of Statutes (2 n d ed., 1983), 105-6; Edgar, ed., Craies on Statute Law (7 th ed., 1971), 64-5; Langan, ed., Maxwell on the Interpretation of Statutes ( i 2 t h ed., 1969), 1-2. That postulates that the "author's intention" is not only the source but the mental act constitutive of the meaning. Meaning is conceived as identical with and fixed by what the legislator intended at the time of enactment. See Cote, supra, n.67, 332. See also Lord Hailsham of St Marylebone, ed., Halsbury's Laws of'England 44 (4* ed., 1983), 522 par. 856. Cony, "The Interpretation of Statutes," in Driedger, supra, n.68, 251. See also Cote, supra, n.68, 3-4. See, for example, A. Salomons. Salomon & Co. Ltd. [1897] A.C. 22, 38: a "very slippery phrase"; Cote, ibid., 4: a concept "fuyant"; Driedger, supra, n.68, 106: "a fiction"; Dias, Jurisprudence (3rd ed., 1970), 128: it "seems to be superfluous"; Fuller, The Morality of Law (1964), 86; Gray, The Nature and Sources of the Law (2 n d ed., 1972), 173: a "guess"; MacCallum, "Legislative Intent," 75 YaleL.J. 754 (1966); Radin, "Statutory Interpretation," 43 Harv. L. Rev. 863 (1930), 881, 870. I use the word "embodied" metaphorically. My criticism of the theory of the core in Chapter 2 should make it obvious that the "intent" is not "embodied" in a text. Moreover, if I were to describe the implicit version of the orthodox doctrine of parliamentary sovereignty in accordance with the theory of the core, such description would be self-defeating. It would merely reproduce the weaknesses of the rule of law as positive rules and, consequently, of the explicit version of the doctrine of the sovereignty of Parliament. For these reasons, the idea of "intent" must be understood in the light of the interpretive premise. See, supra, nn. 12-20 and accompanying text. The "intent" must be used as a standard (a "point of view") according to which the text should be read. Cote, supra, n.68, 243; Cote, supra, n.67, 335' Driedger, supra, n.68, 2ff. In England, see, for example, Maxwell, supra, n.68, 2. [1980] i S.C.R. 976. Ibid., 994-5. See also Toronto Railway Co. v. City of Toronto [1906] 37 S.C.R. 430, 435; Steinberg's Ltd. v. Le Comite paritaire de I'alimentation au detail [1968] S.C.R. 971, 983-4; The Queen v. AU [1980] i S.C.R. 221, 235; The Kingv. Dubois [1935] S.C.R. 378, 381. In England, see Duport Steels Ltd. v.

260 Notes to pages 73-5

76

77

78

79 80 81

82 83 84 85 86 87 88 89 90 91 92

93

94

Sirs [1980] i All E.R. 529, 555 (Lord Scarman); Black-Clawson International Ltd. v. Papierwerke Waldhof-Ashaffenburg A.G. [1975] 1 All E.R. 810, 814 (Lord Reid). By "history of the text" I mean those acts that have been amended or repealed by the act to be interpreted. See Cote, supra, n.68, 367ff. See, for example, Gravelv. Cite de St-Leonard [1978] i S.C.R. 660, 667. See, for example, Canadian Pacific Railway Co. v. James Bay Railway [1905] 36 S.C.R. 42, 89-90. For the purpose of identifying the mischief, the reports of commissions, see, for instance, Laidlawv. The Municipality of Metropolitan Toronto [1978] 2 S.C.R. 736, 743. For example, A. G. ofCanadav. The Reader's Digest Association (Canada) Ltd. [1961] S.C.R. 775, 792; Re Anti-Inflation Act [1976] 2 S.C.R. 373, 383; Re Residential Tenancies Act of Ontario [1981] i S.C.R. 714, 723; Reference re Upper Churchill Water Rights Reversion Act [1984] i S.C.R. 297, 318. See Cote, supra, n.68, 37311.577. See, for example, R v. Sommerville [1974] S.C.R. 387. Some authors believe that the purposive approach is now pre-eminent in England. See Bell, Policy Arguments in Judicial Decisions (1983), 85. But, for an opposing view, see Atiyah and Summers, Form and Substance in Anglo-American Law (1987), 101; Miers, "Legal Theory and the Interpretation of Statutes," in Twining, ed., Legal Theory and the Common Law (1986), 117. Driedger, supra, n.68, 87; Cote, supra, n.68, 19, 333. Cross, Statutory Interpretation (2 nd ed., 1987), 4&ff. Ibid., 46. Ibid., 47. See Cote, supra, n.68, second part. Ibid. [1974] A.C. 765. Ibid., 782. See supra, nn.22-30, 50-60, and accompanying text. [1980] i All E.R. 529. Ibid., 551. Ibid., 541. See also Magor and St. Mellons Rural District Councils. Newport Corp. [1952] A.C. 189; Vacher & Sons Ltd. v. London Society of Compositors [1913] A.C. 107, 117-18, 121-2. Hogg, supra, n.i, 770. See also Brun and Tremblay, supra, n.g, 717; Rosenv. The Queen [1980] i S.C.R. 961, 975 (MclntyreJ.); Wellesley Hospital v. Lawson [1978] i S.C.R. 893, 902 (Pigeon J.); City of Saskatoon v. Shaw [1945] S.C.R. 42, 48-9; Piggottv. The King (1916) 53 S.C.R. 626, 630-2. Dicey, supra, n.i, 63. Dicey says that the courts may interpret the acts "whenever possible" in accordance with morality. But that must not be understood as allowing the courts to "manipulate" the legislative intent.

261 Notes to pages 75-8 95 See, for example, Pouliotv. Town ofFraserville (1916) 54 S.C.R. 310, 314, 326-7; Reference Re Canada Assistance Plan (B.C.) [1991] 2 S.C.R. 525. See, generally, Cote, supra, n.68, 3o8ff. 96 For a contrary view, see O'Neill, "The Australian Bill of Rights Bill 1985 and the Supremacy of Parliament," (1986) 6oA.LJ. 139, 145. 97 See, for example, City ofOttawav. Town ofEastview (1941) S.C.R. 448, 462. 98 [1944] S.C.R. 226. 99 Ibid., 239. 100 Ibid., 231. See also The Queenv. Lincoln Mining Syndicate Ltd., [1959] S.C.R. 736. 101 [1934] i K.B. 590. 102 Ibid., 597. Emphasis added. 103 [1991] 2 S.C.R. 525, 563. 104 Dicey, supra, n.i, 91. Emphasis added. 105 Ibid. 106 The issue has dealt with the antecedent rules about the validity because of the importance of the formal validity thesis. 107 See, for instance, Hart, supra, n.2, 146. 108 That position has been strongly criticized by many English constitutional scholars who accept the so-called "new view." See the section "Quasiconstitutional Legislation" in this chapter. On the orthodox view, see Coke, 4 Inst. 42; Blackstone, Commentaries on the Laws of England I (1765), 90; Dicey, supra, n.i, 66; Anson, The Law and Custom of the Constitution I (1922), 8; Wade, supra, n.2. Some authors, while adhering to the orthodox position, believe that the rules for the composition (but not the others) may be altered by parliamentary legislation. See nn. 121—31 and accompanying text. 109 Wade, ibid. 110 Ibid., 187-8. The rule is a rule of common law: see, for example, Wade, ibid., 188; Dixon, "The Common Law as an Ultimate Constitutional Foundation," (1957) 31 A.L.J. 240; or a rule sui generis: see, for example, Winterton, "The British Grundnorm: Parliamentary Supremacy Reexamined," (1976) 92 L.Q.R. 591, 592. See, generally, Hart, supra, n.2, ch. 6. 111 Ibid., 189. 112 To that extent, Wade's thesis departs from prior understanding of the issue. For Austin and Dicey, for example, the proposition that the sovereignty of Parliament is "continuing" was analytical: it was conceived to be trueby definition. Thus, Dicey maintained that the "characteristics of Parliamentary sovereignty may be deduced from the term itself," supra, n.i, 87, emphasis added. For him, "the logical reason why Parliament has failed in its endeavours to enact unchangeable enactments is that a sovereign power cannot, while retaining its sovereign character, restrict its own

262 Notes to pages 78-9

113 114 115 116 117 118 119 120

121

122

123 124 125

126 127

128 129 130

powers by any particular enactment ... 'Limited Sovereignty,' in short, is in the case of a Parliamentary as of every other sovereign, a contradiction in terms,'" ibid., 68, emphasis added. By contrast, Wade's description states an empirical proposition: it is conceived as true because it purports to be verifiable: for him, it was an empirical fact that the courts (when Wade published his article) upheld the "continuing" sovereignty of Parliament. Wade's basic thesis might represent the orthodox view in the United Kingdom today. Wade also refers to the case British Coal Corporation v. The King [ 1935] A.C. 590. [1932] i K.B. 733. Ibid., 743. [1934] i K.B. 590. Ibid., 597. Emphasis added. See supra, nn.101-2 and accompanying text. Wade, supra, n.2, 188-9. The examples provided by Wade suggest that these are paradigmatical causes. See ibid., 188. For example, in Canada, the fact of the country's independence may have produced a shift within the rule of recognition. See, for example, Slattery, supra, n.2i. See also Wade, ibid., 196-7. See, for example, Keir and Lawson, supra, n.i2, 6-7; Phillips and Jackson, supra, n.2, 55-6. It should be noted that many authors have suggested the same assertion within the framework of the "new view" on the doctrine of the sovereignty of Parliament. See the section "Quasi-constitutional Legislation" in this chapter. Ibid. The same kind of argument could be maintained with respect to the Regency Act, 1937. See Wade, supra, n.2, ig3n.6o; Phillips and Jackson, ibid., 89-90; Wade and Bradley, supra, n>3, 77-8; Ibid. Quoted in Wade, supra, n.2, I93n.6o. Ibid., 193; Phillips and Jackson, supra, n.2, 89. Mirfield comes close to a similar conclusion, although denying it, arguing that the acts made under the Parliament Acts of 1911 and 1949 "are a special form of secondary or derivative legislation": Mirfield, "Can the House of Lords Lawfully be Abolished?" (1979) 95 L.Q.R. 36, 50. Phillips and Jackson, ibid., 84. Ibid., 85. The same argument would hold with respect to the two-thirds majority rule. See de Smith, Constitutional and Administrative Law (1971), 91; Marshall, supra, n.34, 17-18. Ibid., 55-6. Ibid., 51. For a contrary view, see Winterton, "Is the House of Lords Immortal?" (1979) 95 L.Q.R. 386, 387. Winterton argues that the orthodox view is

263 Notes to pages 79-82 committed to the proposition that the rules defining the composition of Parliament must include the rules for the "internal composition" of each of its entities. 131 Phillips and Jackson, supra, n.2, ch. 12. 132 Suppose that Parliament enacted a law prescribing certain conditions by which citizens are qualified for membership of the House of Commons and enjoining a commission to verify whether the candidates in an election fulfil them. And suppose that in the last election the commissioners failed to perform their statutory duty, with the result that many members of Parliament did not fulfil the legislative conditions for qualification. Suppose also that these unqualified members have voted on many bills which have become acts. It would be consistent with the orthodox view for the courts to order the commissioners to perform their statutory duty (by mandamus), to hold them individually liable, and so on, and to refuse to invalidate the acts passed by the Parliament in which the unqualified members sat. See, for example, Regina ex rel. Stubbsv. Steinkopf(ig6^) 47 D.L.R. (2 n d ) 105 (Man. Q.B.). 133 Phillips and Jackson, supra, n.2, 56. 134 See Wade, supra, n.2, 197. 135 Ibid., i88ff. 136 See Dicey, supra, n.i, 68-gn.i; Phillips and Jackson, supra, n.2, 91; Mirfield, supra, n. 125, 39, who argues that the transfer "would involve no break in legal continuity"; Wade, ibid., I94ff. !37 U95 1 ] S-C-R- 3 1 138 Ibid., 38. 139 [1979] 2 S.C.R. 1016. 140 Ibid., 1026. 141 [1980] i S.C.R. 54. 142 Ibid., 65-6. 143 Sections 91 ( i ) and 92(1) were repealed in 1982 and have become sections 44 and 45 of the Constitution Act, 1982. See Brun and Tremblay, supra, n.g, 2i6ff. In this book, I shall refer to the pre-ig82 sections. 144 See Swinton, supra, n.24, 374: "A mandatory procedure is one which will affect the validity of a statute, for its observance is a condition precedent to enactment." 145 [1926] Ex. C.R. 127. 146 Ibid., 129. See nn.56-7 and accompanying text. 147 [1926] Ex. C.R. 127 at 131. 148 [1978] 2 S.C.R. 1198. 149 Ibid., 1291. 150 Ibid., 1227. 151 Irwin has been criticized by many authors in Canada. See, for example, Swinton, supra, n.24, 375^-! Conklin, supra, n.23, 204. But see the court's

264 Notes to pages 82-4 obiter'm Reference Re Canada Assistance Plan (B.C.) [1991] 2 S.C.R. 525, 558-9, which could be interpreted as inconsistent with that assertion. 152 [1988] i S.C.R. 234. 153 Ibid., 257-70. 154 See nn.4i-2 and accompanying text. 155 Mercurev. R. [1988] i S.C.R. 234, 276. 156 Ibid., 277. Mr Justice La Forest added, "I cannot accept that in a nation founded on the rule of law, a legislature is free to ignore the law in its constituent instrument prescribing the manner and form in which legislation must be enacted. That has always been the law in this country and in the Commonwealth generally. This was, it is true, usually justified under s. 5 of the Colonial Laws Validity Acts, 1865 (U.K.), 28 & 29 Viet., c. 63; see, for exemple, Attorney-General for New South Wales v. Trethowan [1932] A.C. 526 (P.C.)."Ibid., 279. 157 The phrase "bind itself" sounds odd because sections 91 ( i ) and 92(1) expressly empower the existing legislative powers to alter the ordinary legislative process for the future. The question of whether or not they can entrench particular laws is discussed below in the section "Quasiconstitutional Legislation." The question of whether or not a Parliament can bind itself to comply with antecedent rules not coming within the scope of sections 91(1) and 92(1) of the constitution is discussed in the section "The Unwritten Antecedent Rules" in this chapter. 158 A.G. ofQuebecv. Blaikie [1979] 2 S.C.R. 1016, 1023-5. 159 S.Q. 1968, c. 9; L.R.Q., 1977, c. L-i, repl. S.Q. 1982, c. 62. 160 See also the Electoral Boundaries Readjustment Act, R.S.C., 1985, c. £—3; the Parliament of Canada Act, R.S.C., 1985, c. P-i; the Representation Act, R.S.O. 1970, c. 413, R.S.O. 1980, c. 450; the Legislature Act, L.R.Q., c. L-i, repl. S.Q. 1982, c. 62; the Territorial Division Act, L.R.Q., c. D-i i; the Legislative Assembly Act, R.S.O. 1980, c. 235, 8.3. See also Conklin, supra, n.23, 205. 161 [1980] i S.C.R. 54. 162 Ibid., 74: Sections 91(1) and 92(1) "are not, however, analogous. Section 92 does not, as does s. 91, particularize the participants in the law making process." To what extent does such power go? Can a legislature add to its own composition the whole electorate? Can it abolish itself and transfer all its power to the electorate? The orthodox view had no clear answer on these issues. Particularly, it fused together the amendements to the ordinary process and the establishment of a special process for some purposes. See Brun and Tremblay, supra, n.g, 22 iff.; Delwaide, "La legislature quebecoise peut-elle implanter un systeme complet d'initiative et de referendum," (1981) 22 C. deD. 695; Scott, "Constituent Authority and the Canadian Provinces," (1966-7) 12 McGillL.J. 528. See nn.173-7 and accompanying text. 163 A.G. ofQuebecv. Blaikie [1979] 2 S.C.R. 1016, 1024. Emphasis added.

265 Notes to pages 84-8 164 [1980] i S.C.R. 54. 165 Ibid., 70. 166 Ibid., 65. 167 [1987] 2 S.C.R. 2. 168 Ibid., 40. Emphasis added. 169 Ibid., 46. 170 Ibid., 41. 171 Ibid., 46. 172 Ibid., 47. Emphasis added. *73 U9!9] A.C. 935. 174 Ibid., 945. For a criticism, see Scott, supra, 11.162; Delwaide, supra, 11.162. 175 [1951] S.C.R. 31. 176 Ibid., 47-8. 177 On that issue, see Brun and Tremblay, supra, n.g, 22 iff.; Delwaide, supra, n.i62. 178 See supra, nn.g-i i and accompanying text. 179 See nn. 107-20 and accompanying text. 180 [1982] 2 S.C.R. 504, 513. In that case, the court interpreted an act of 1974 in accordance with an act of 1956 on the grounds that the act of 1956 had introduced into Canadian law the terms of an international agreement. Section 3 of the act of 1956 provided that that act must have primacy over all inconsistent laws. Although Justice Estey enunciated correctly the orthodox view, it is not clear whether he has correctly applied it. See the sections "Quasi-constitutional Legislation" and " 'Special Nature' Legislation" in this chapter. 181 In 1970 the Supreme Court of Canada rendered its puzzling judgment in R. v. Drybones [1970] S.C.R. 282. See the section "Quasi-constitutional Legislation" in this chapter. 182 There were a few exceptions. See, for example, Tarnopolsky, The Canadian Bill of Rights (1964), ch. 3; Scott, supra, n.i62. 183 R.S.C. 1985, appendix III (referred to as the Canadian Bill of Rights). 184 Laskin, "An Inquiry into the Diefenbaker Bill of Rights," (1957) 37 C.B.R. 77, 132. See also, Schmeiser, Civil Liberties in Canada (1964), 41-2. 185 Cote, supra, n.68, 16. 186 See, for example, Interpretation Act, R.S.C. 1985, c. 1-21, s. 3; Loi d'interpretation, L.R.Q., c. 1-16, s. i. 187 Hart, supra, n.2, 123. 188 It has been argued that the courts have controlled from time to time the validity of legislation on the ground that these statutes were inconsistent with a set of standards different from those recognized by orthodox doctrine, notably, with respect to the protection of fundamental rights and freedoms. See, for example, Weiler, "The Supreme Court and the Law of Canadian Federalism," (1973) 23 U. Toronto L.J. 307, 344. Other

a66 Notes to pages 88-90 have maintained that there existed within the Constitution Act, 1867 an "implied Bill of Rights" justifying the invalidity of legislation inconsistent with a set of basic rights and freedoms. That doctrine would be inferred from certain cases, such as Reference re Alberta Statutes [1938] S.C.R. 100; Switzmanv. Elbling [1957] S.C.R. 285. See supra, n.5g. 189 That has been, in any event, the orthodox view. In Chapter 8 of this book, I argue that the characterization by the courts of a given piece of legislation as "quasi-constitutional" is based upon, and should be justified by, the nature and the relative importance of its content in the light of what is required by the rule of law. 190 The primacy should be effective until the legislative body repeals the quasi-constitutional statute in accordance with the required conditions. See, generally, Hogg, supra, n. i, 77gff.; Brun and Tremblay, supra, n.g, 6l2ff.

191 Dicey, supra, n.i, 89. See supra, nn. 106-36 and accompanying text. 192 See, for example, Charte des droits et libertes de la personne, L.R.Q., c. C-12, s. 52; The Saskatchewan Human Rights Code, S.S. 1979, c. 8-24.1, s. 44; Individual Rights Protector Act, R.S.A. 1980, c. 1-2, s. i; Human Rights Act, S.Y. 1987, c. 3, s. 36; Prince Edward Island Human Rights Act, R.S.P.E.I. 1988, c. H-12, s. i; The Human Rights Code, S.N. 1988, c. 62, s. 6; Human Rights Code, S.R.O. 1990, c. H.ig, s. 46; Human Rights Code, R.S.M. 1987, c. Hi 75; Canadian Bill of Rights, s. 2; Loi sur 1'acces aux documents des organismes, L.R.Q., c. A-2.1, s. 168; Auditor General Act, 1976-7, c. 34, s. 13(1); Canada Pension Plan, R.S.C. 1985, c. C-8, s. 114. Canada-U.S. Tax Convention Act, S.C. 1984, c. 20, s. 3(2). 193 See supra, nn.i8i~4 and accompanying text. See also Mr Justice Davey in R. v. Gonzales (1962) 37 W.W.R. 257, 37 C.R. 56, 132 C.C.C. 237, 32 D.L.R. (2d) 290. 194 [1970] S.C.R. 282. 195 Ibid., 294. 196 Ibid., 293. 197 See, generally, Tarnopolsky, The Canadian Billof Rights (2 nd ed., 1975), 141. 198 [1970] S.C.R. 282, 301. 199 For example, Currv. The Queen [1972] S.C.R. 889, 893; A.G. ofCanadav. Law//[1974] S.C.R. 1349, 1388; Hoganv. The Queen [1975] 2 S.C.R. 574, 589-90. 200 [1985] i S.C.R. 177. 201 Ibid., 238-9. 202 [1986] 2 S.C.R. 56, 86ff. 203 Ibid., 121. See also MacBainv. Lederman [1985] i F.C. 856 (C.A.); Fordv. Quebec (Attorney General) [1988] 2 S.C.R. 712. See also the discussion in Reference Re Canada Assistance Plan (B.C.) [1991] 2 S.C.R. 525, 563.

267 Notes to pages 90-2 204 R. v. Drybones [1970] S.C.R. 282, 294. 205 The phrase comes from Heuston, supra, 11.17, 6206 Yet some constitutional scholars appear to have reservations about the "new view." Accordingly, they do not explain the holding in Drybones as a matter of "manner and form." See, for example, Brun and Tremblay, supra, n.g, 6i2ff., which distinguishes between "express overriding" laws and laws related to the "legislative process." See also Tremblay, Precis de droit constitutionnel (1982), 57; Elliot, "Rethinking Manner and Form," (1991) 29 O.H.L.J. 215. See also the discussion of the "manner and form" argument in Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525> 563207 Hogg, supra, n.i, 786. 208 Ibid., 786-7. 209 Tarnopolsky, supra, n.ig7, 142. See also Chevrette and Marx, Droit constitutionnel (1982), 93; Sinclair, "The Queen v. Drybones: The Supreme Court of Canada and the Canadian Bill of Rights," (1970) 8 O.H.L.J. 599. 210 The "new view" maybe seen as a moderate version of the "self-embracing" sovereignty. See, for example, Winterton, supra, n.i 10, 594; Allan, "Parliamentary Sovereignty: Lord Denning's Dexterous Revolution," (1983) 3 Oxford J. of Legal Studies 2 2 . 1 shall not deal with that characterization. 211 For example, Hogg, supra, n.i, 3ogff.; Brun and Tremblay, supra, n.g, 620; Chevrette and Marx, supra, n.2og, 93; Tarnopolsky, supra, n.i97, iO5ff.; Heuston, supra, n.i7, ch. i; Friedmann, "Trethowan's Case, Parliamentary Sovereignty, and the Limits of Legal Change," (1950) 24 A.L.J. 103, io4ff.; Gray, "The Sovereignty of Parliament Today," (1953) 10 U. Toronto L.J. 54, 62ff.; Jennings, The Law and the Constitution (5* ed., 1959), 144, 152-3; de Smith, supra, n.i27, y6ff.; Marshall, supra, n.34, ch. 3-5. 212 See, for example, Turpin, British Government and the Constitution (1985), 35; Hogg, ibid., 310; Hart, supra, n.2, 147; Marshall, ibid., 27. 213 Tarnopolsky writes that "it has to be emphasized that entrenchment is nothing more or less than a matter of procedure. Of itself it does not place substantive limitations on the power of Parliament, but rather procedural limitations," supra, n.i97, 141. 214 Hogg, supra, n.i, 310. Emphasis added. 215 For example, Heuston, supra, n.i7, ioff.; Wade and Bradley, supra, n.3, 73ff.; Gray, supra, n.2i i, 63; Mirfield, supra, n.i 25. 216 For example, Heuston, ibid.; Wade and Bradley, ibid., 78. 217 For example, Statute of Westminster, 1931, 22 George V, c. 4 (U.K.); R.S.C. 1985, appendix II, no. 27. 218 For example, Hogg, supra, n.i, 3ogff.; Chevrette and Marx, supra, n.2og, 93.

268 Notes to pages 92-5 219 Tarnopolsky, supra, 11.197, cn - 3- See also Scott, supra, 11.162. 220 Jennings, supra, n.2i i, 152-3. See, generally, ibid., i4gff.; Tarnopolsky, supra, n.i 97, io5ff. 221 R. v. Drybones [1970] S.C.R. 282, 294-5. 222 See, for example, Hogg, supra, n.i, 787. Yet Tarnopolsky, supra, n.ig7, i4off., does not mention the existence of that problem. 223 Conklin has maintained that "one should be sceptical of the success of classifying the bill as a 'manner and form' requirement," supra, n.23, 206. 224 I shall argue below that the decisions should depend on the best interpretation of the rule of law as justice in Canada. See Chapter 8, "Verification of the Alternative Theory." 225 For a similar argument, see Salmond, Jurisprudence (io th ed., 1947), 495-6, quoted in Marshall, supra, n.34, 60-1. 226 For example, VauxhallEstates Ltd. v. Liverpool Corporation [1932] i K.B. 733; Ellen Street Estates Ltd. v. Minister of Health [1934] K.B. 590.

227 The "new view" theorists support their view by referring to a certain number of commonwealth cases. See infra, n.239ff. and accompanying text. 228 See, for example, Winterton, supra, n.i3o, 386-7. I understand Friedmann's argument in favour of the "new view" as being controlled by the "principle of democracy." See supra, n.2i i, 105. 229 See Mirfield, supra, n.125, 38; Gray, supra, n . 2 i i , 69. 230 See supra, nn. 121-36 and accompanying text. 231 See, for example, Gray, supra, n.2i i, 56; Hart, supra, n.2, 147. 232 See the criticism of Phillips and Jackson, supra, n.2, 84ff. 233 Emphasis added. 234 That argument leaves open the issue of "delegation" to a subordinated body. See nn. 173-6 and accompanying text. See also In re the Initiative and Referendum Act (1916) 27 Man. R. 1,7, 14-15. 235 Dicey seems to have that kind of argument in mind when he wrote that "Parliament thus definedhas ... the right to make or unmake any law whatever." Supra, n.i, 39-40, emphasis added. 236 See, for example, Hart, supra, n.2, 147. 237 That is perhaps the view of the Supreme Court today. In Reference Re Canada Assistance Plan (B.C.) [1991] 2 S.C.R. 525, 564, it quotes with approval a passage drawn from West Lake Ltd. v. South Australia, (1980) 25 S.A.S.R. 389. In that case, Chief Justice King wrote: "A provision requiring the consent to legislation of a certain kind, of an entity not forming part of the legislative structure ... does not, to my mind, prescribe a manner or form of lawmaking, but rather amounts to a renunciation pro tanto of the lawmaking power." A fortiori that argument would apply if Parliament "abdicated" its whole sovereignty, "transferred" it to a new body, and "extinguished" itself. See Dicey, supra, n.i, 68-9. See the references to

269 Notes to pages 95-100 Bacon, Dicey, Anson, and Finlay in Cowen, "Legislature and Judiciary," (1953) 16 Mod. L.R. 124, 291-8. See Mirfield, supra, n.125, 38-9, on abdication as different from limitation. 238 For example, Friedmann, supra, n.2i i, iO5ff.; Cowen, ibid., 286; Gray, supra, n . 2 i i , 71-2; Hart, supra, n.2, 147; de Smith, supra, n.i27, 92; Winterton, supra, n.i 10, 605. In Canada, see, for example, Chevrette and Marx, supra, n.zog, 93; Hogg, supra, n.i, 323^55; Elliot, supra, n.2o6. 239 [i965] A-c- 172240 Ibid., 200. 241 Ibid., 197-8. Emphasis added. See also Mercurev. R [1988] i S.C.R. 234, nn. 152-6 and accompanying text. 242 Ibid., 200. 243 Marshall, Constitutional Theory (1971), 56. See also Tarnopolsky, supra, n.ig7, 86. 244 On the Canadian process of constitutional amendment, see, for example, Hogg, supra, n.i, ch. 4. 245 [1932] A.C. 526. See, generally, Friedmann, supra, n.2i i; Marshall, supra, n.34, io5ff. 246 See ibid., 539: "The answer depends ... entirely upon the consideration of the meaning and effect of section 5 of the Act of 1865." 247 Ibid., 540. 248 Ibid. 249 The distinction between sovereign and non-sovereign bodies in the context of British colonial law was not determinant. See Friedmann, supra, n.2i i, 104. 250 See also Harrisv. Minister of the Interior [1952] 2 S.A.L.R. (A.D.) 428, Harris v. Donges (1952) i T.L.R. 1245, in which the Supreme Court of South Africa invalidated an act of Parliament enacted in accordance with the ordinary legislative process on the ground that it was inconsistent with section 35 of the constitution, the South Africa Act, 1909, which was entrenched and which could be amended only in accordance with the special amending process laid down in section 152, notably, the passing of an act by both houses of Parliament sitting together and to have it agreed to at a third reading by no less than two-thirds of the total number of members of both houses. That recalls Ranasinghe's case. See Marshall, supra, n.34, pt. 3; Cowen, "Legislature and Judiciary," (1952) 15 Mod. L. Rev. 282, and n.237 above. 251 For example, Tarnopolsky, supra, n.ig7, 88-112; Hogg, supra, n.i, 3ion.36, 786-7. 252 O.RS.E.U. v. Ontario (Attorney General) [1987] 2 S.C.R. 2, 40. See nn. 164-7 and accompanying text. 253 See nn. 158-77 and accompanying text. 254 [1987] 2 S.C.R. 2.

270 Notes to pages 100-7 255 Ibid., 47. 256 Driedger, "The Canadian Bill of Rights," in Lang, ed., Contemporary Problems of Public Law in Canada (1968) 30, 37. 257 See ibid., 38, 41. 258 See, for example, O'Neill, supra, n.g6, 145. 259 One might deny that the rules of statutory interpretation have something to do with the constitutional doctrine of parliamentary sovereignty. See, for example, O'Neill, ibid., 146-57. But, as I argued, that would be mistaken. See nn. 13-30 and accompanying text. 260 See nn. 185-6 and accompanying text. 261 Sinclair, supra, n.2og, 602. 262 Ibid., 603. Emphasis added. See also nn.235-7 and accompanying text. 263 See supra, nn.95-105 and accompanying text. 264 [1982] 2 S.C.R. 145. The phrase "special nature" was used for the first time in The Winnipeg School Division No i v. Craton [1985] 2 S.C.R. 150. 265 See, for example, Stewart v. "Vera Cruz" [1884] loA.C. 59; Toronto Railway Company v. Paget (1909) 42 S.C.R. 488. 266 Insurance Corporation of British Columbian. Heerspink [1982] 2 S.C.R. 145, 158. 267 Ibid., 157-8. 268 [1985] 2 S.C.R. 150. 269 Ibid., 155. 270 Ibid., 156. 271 Ibid. 272 See, for example, Ontario Human Rights Commission and O'Malleyv. Simpsons Sears Ltd, [1985] 2 S.C.R. 536, 547; Scowbyv. Glendinning[ig86] 2 S.C.R. 226, 236; Action Travail des Femmes v. Compagnie des Chemins defer nationaux du Canada [1987] i S.C.R. 1114, 1135-6; Robichaudv. Canada (Treasury Board) [1987] 2 S.C.R. 84, 89-90; Brooks v. Canada Safeway Ltd. [1989] i S.C.R. 1219, 1245. Among "special nature" legislation, we find the following: Canadian Human Rights Act, S.R.C. 1985, c. H-6; Employment Equity Act, S.C. 1986, c. 31; An Act to Secure the Handicapped in the Exercise of Their Rights, S.Q. 1978 (3rd session), c. 7; Fair Practices Act, R.S.N.W.T. 1988, c. F-2; Human Rights Act, S.B.C. 1984, c. 22; Human Rights Code, R.S.N.B. 1973, c. H-i i; Human Rights Act, R.S.N.S. 1989, c. 214. 273 See n.267274 A somewhat similar case happened in the United States in Marbury v. Madison 5 U.S. (i Cranch) 137 (1803). Yet Chief Justice John Marshall insisted on the fact that the document was a "written Constitution" and that "all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void" (at 177).

271 Notes to pages 107-12 275 See Dicey, supra, n.i, 73-4. 276 Brun and Tremblay, supra, n.g, 585. 277 Gibson, "The 'Special Nature' of Human Rights Legislation: Re Winnipeg School Division No, i and Craton," (1986) 50 Sask. L. Rev. 175. Hogg, supra, n.i, 312^51, has reservations about the power of the courts to establish the priorities between public policies. 278 Gibson, The Law of the Charter: General Principles (1986), 19. 279 What Lysyk wrote in 1965 could apply in 1982: "It is extraordinary to find Parliament enacting a provision apparently intended to be a legal sham; it would be more intriguing still if it were found the Parliament had in fact bound itself without really trying." Lysyk, "Constitutional Law- Parliamentary Sovereignty - Can Parliament Bind its Successors?" (1965-6) 4 Alta. L. Rev. 154, 156-7. 280 See Gibson, supra, n.277, 176. 281 [1979] 3 All E.R. 325. 282 Ibid., 329. 283 Ibid., 333-4 (Lawton L.J.). 284 Ibid., 329. 285 Ibid. 286 Ibid. 287 [1981] Q.B. 180, 200. 288 See Allan, supra, n.2io, 25: "Parliament in 1972 accomplished the impossible and (to a degree) bound its successors." 289 Macarthys Ltd. v. Smith [1979] 3 All E.R. 325, 335. 290 See Allan, supra, n.288; Phillips, "High Tide in the Strand? Post-ig72 Acts and Community Law," (1980) 96 L.Q.R. 31. 291 Macarthys Ltd. v. Smith [1979] 3 All E.R. 325, 329. 292 Ibid., 328. 293 See Phillips, supra, n.2go, 31; Phillips and Jackson, supra, n.2, 99; Wade, "Sovereignty and the European Communities," (1972) 88 L.Q.R. i, 4-5. 294 For example, we would claim that the determination of the legislative intent antecedently requires a set of norms of interpretation but that the determination of such norms antecedently requires the determination of the legislative intent. 295 See, generally, Cote, supra, n.68, 387; Maxwell, supra, n.68, ch. 8. 296 See, for example, Cote, ibid., 414-15. 297 Blackstone, supra, n.i08, 61. 298 See, generally, Bennion, Statutory Interpretation (1984); Driedger, supra, n.68; Cote, supra, n.68, ch. 5. 299 Hart and Sacks, The Legal Process (unpublished teaching materials, 1958), 1412. See also Driedger, ibid., ch. 10: a "prima facie presumption"; Cote, ibid., 389. 300 [1951] S.C.R. 265.

272 Notes to pages 113-17 301 Ibid., 278. 302 The pamphlet stressed the fact that in the Quebec legislature there is a crucifix and in the Parliament buildings there is a throne for the cardinal; it declared that the persecution of the Witnesses was caused by "priest domination" and that "thousands of Quebec Catholics are so blinded by the priests that they think they serve God's cause in mobbing Jehovah's Witnesses"; it described how they have been victims of violence and injuries; it denounced police arrests based upon the grounds that the individual was a Jehovah Witness who distributed Bibles or leaflets with Bible quotations; it denounced the Quebec courts whose judges imposed "heavy fines" and "prison sentences" on the Witnesses and heaped "abusive language" on them; and it said that the judges "deliberately follow a malicious policy of again and again postponing cases to tie up tens of thousands of dollars in exorbitant bails and keep hundreds of cases pending." 303 Most Canadian textbooks and casebooks use Rand's opinion as representing the law. See, for example, Chevrette and Marx, supra, n.2og, 1283; Whyte and Lederman, Canadian Constitutional Law (2 nd , 1977), 19-11. See also, for example, Berger, Fragile Freedoms (1982), 117; Brewin, "Comment," (1951) 29 C.B.R. 193, 196. 304 Boucherv. The King [1951] S.C.R. 265, 285. 305 In fact, Rand recalls Stephen's five propositions. Ibid., 287. 306 Ibid., 285-6. 307 Ibid., 288. 308 Ibid., 286. 309 Ibid., 288-9. 310 Ibid., 317. 311 Ibid., 329-30. 312 Ibid., 330. 313 Ibid., 296. See also Justice Estey, ibid., 308. 3H [1959] S-C-R- 121 315 Roncarelli's case raised many issues of constitutional law (for instance, subdelegation doctrine, decision under dictate of a third party, bad faith, unreasonableness). It is not the place to deal with all the issues; I am concerned with one of these only. On the other issues, see Scott, "The Supreme Court and Civil Liberties," (1976) 14 Alta. L. Rev. 97. 316 Justice Judson agreed with Justice Rand. The other opinions of the majority were written by Justice Martland, to which Justice Locke agreed, and by Justice Abott. 317 Roncarelliv. Duplessis [1959] S.C.R. 121, 140-1. 318 [1981] i S.C.R. 2. 319 Ibid., 9. 320 Ibid., 11.

273 Notes to pages 117-21 77 E.R. 194, 5 Co. Rep. gia. [1975] 2 S.C.R. 739. Ibid., 743. Coletv. The Queen [1981] i S.C.R. i, 9. Ibid. Ibid., 10. Ibid., 10-11. Ibid., 11. Willis, "Statute Interpretation in a Nutshell," (1938) 16 C.B.R. 1,17. See also Cote, supra, n.68, 387ff., 4O2ff. 330 See nn.go-4 and accompanying text. 331 See Driedger, supra, n.68, 107; Cote, supra, n.68, 241-2. 332 Driedger, ibid., 109. 333 See, for example, Cote, supra, n.68, 256ff. 334 Boucherv. The King [ 1951 ] S.C.R. 265, 276. 335 Ibid., 275. 336 Ibid., 276. 337 Ibid. 338 See Cote, supra, n.68, 3off. 339 Ibid., 36. 340 The antecedent legislation is conceived as still in force. Ibid., 37. 341 Ibid., 444. 342 Ibid., 488. The translation is drawn from the English version of the textbook. 343 See Mewett, "The Criminal Law, 1867-1967," (1967) 45 C.B.R. 726, 735. 344 (gthed., 1950), art. 114. 345 Quoted in Boucherv. The King [1951] S.C.R. 265, 306. 346 (1886) 16 Cox. C.C. 333. 347 Note that a certain number of English cases seem to have strictly construed the concept of "seditious intention." See, for example, R v. Aldred (1909) 22 Cox C.C. i. 348 Hansard, vol. i (1892), 1312, quoted in Mewett, supra, ^343, 727. The preface to Burbidge's Digest notes that this work is based on Stephen's Digests iii. The definition of "sedition" is the same as Stephen's. 349 Ibid., 1313, quoted in Mewett, ibid., 728. 350 O'Connellv. Reg. (1844) 11 Cl. & F. 155; R. v. Hart and White (1808) 30 St. Tr. 1131; R v. Burns (1886) 16 Cox C.C. 355; Reg. v. Sullivan (1868) 11 Cox. C.C. 44; Odgers and Ritson, A Digest of the Law of Libel and Slander (6th ed., 1929), 432; Russell, A Treatise on Crimes (9* ed., 1936), 87ff.; Archbold, Criminal Pleading, Evidence and Practice (32 nd ed., 1949) 1238, 1146. 351 Boucherv. The King [ 1951 ] S.C.R. 265, 333. 352 Ibid., 334. 321 322 323 324 325 326 327 328 329

274 Notes to pages 121-8 353 Ibid-> 342354 Ibid355 Ibid. As a matter of consistency, Justice Cartwright should have agreed with Rinfret's broad definition. However, for reasons that are very similar in principle to those provided by Mr Justice Rand (at 333), he refused to include in the concept of "seditious intention" the intent to create ill will and hostility between different classes of His Majesty's subjects. To that extent, Cartwright's opinion might appear, not only inconsistent (as he seems to confess himself, at 342), but incompatible with the doctrine of the sovereignty of Parliament. Yet Cartwright's answer is that Rinfret's view is not supported by authority, whereas his definition is. 356 Roncarelliv. Duplessis [1959] S.C.R. 121, 166-7. Emphasis added. 357 That argument was added at the end of the decision to confirm the court's holding: Coletv. The Queen [1981] i S.C.R. 2, 10-11. 358 See, for example, Cote, supra, n.68, 318. That principle may be seen as one application of the golden rule insofar as an interpretation producing no consequence would be "absurd." 359 The Queen v. Goto (1979) 46 C.C.C. (2d) 243, 246. 360 Ibid., 247. Emphasis added. 361 See supra, n_3o7 and accompanying text. 362 See supra, n_3i7 and accompanying text. 363 Ibid. Emphasis added. 364 Ibid. 365 Coletv. The Queen [1981] i S.C.R. 2, 8. Emphasis added. 366 Supra, nn. 185-6 and accompanying text. 367 Coletv. The Queen [1981] i S.C.R. 2, 10. 368 See Cote, supra, n.68, 404. See also, generally, n.68. 369 Boucherv. The King [ 1951 ] S.C.R. 265, 286. 370 See, for instance, Cote, supra, n.68, 404. 371 Salmond, Jurisprudence (n t h ed., 1957), 158, quoted in Cote, ibid. See also Bayefsky, "Parliamentary Sovereignty and Human Rights in Canada: The Promise of the Canadian Charter of Rights and Freedoms," (1983) 31 Pol. Studies 239, 243-4. 372 [1933] S.C.R. 629. 373 Ibid., 638. Emphasis added. 374 R. v. Drybones [1970] S.C.R. 282, 293. 375 Winnipeg School Division N. i v. Craton [1985] 2 S.C.R. 150, 156. 376 See supra, nn.306-12 and accompanying text. 377 See supra, n.3i7 and accompanying text. 378 Coletv. The Queen [1981] i S.C.R. 1,9. 379 MacCormick, Legal Reasoning and Legal Theory (1978), 260. In that sense, a principle may include what Dworkin calls a "policy." See Dworkin, Taking Rights Seriously (1977), chs. 2-4, esp. at 23.

275 Notes to pages 128-31 380 381 382 383

Dworkin, ibid., 24. Ibid., 24-6. Ibid., 26-7. See Chapter 2, section entitled "Concept and Conceptions of the Rule of Law." 384 See, for example, Dworkin, supra, n.37g, chs. 2-4; Dworkin, Law's Empire (1986); MacCormick, supra, n_37g; Carrio, Legal Principles and Legal Positivism (1971); Christie, "The Model of Principles," (1968) Duke L.J. 449; Greenawalt, "Policy, Rights and Judicial Decision," 11 Ga. L. Rev. 991 (1977); Lyons, "Principles, Positivism and Legal Theory," 87 YaleL.J. 415 (1977); Sartorius, "Social Policy and Judicial Legislation," 8 Am. Phil. Quat. 151 (1971); Raz, "Legal Principles and the Limits of Law," 81 YaleL.J. 823 (1972). 385 Dworkin, supra, n.37g, ch. 2. 386 Ibid., 30, 34. 387 For example, Dworkin, refers to the case Riggsv. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), in which the court said that a statute may be "controlled" by fundamental maxims of the common law (at 190), and to Henningsenv. Bloomfield Motors Inc., 32 N.J. 358, 161 A. 2d 69 (1960), in which the court upheld a principle that had never been expressly recognized as a part of the common law. See ibid., 23-4. 388 Raz, supra, ^384, 845. 389 Ibid. Obviously, a governmental institution may enact a rule "embodying" a principle. 390 Sartorius, supra, ^384, 155. 391 MacCormick, supra, n.37g, 257. 392 See, for example, ibid., 63-4, 139-40, 133, 244. 393 Ibid., 156. 394 I shall clarify that methodology in Part Two. For the time being, I shall assume that the following reasoning is not controversial. 395 See Dworkin, supra, ^379, 35. 396 Ibid., 36. 397 Ibid. See also Greenawalt, supra, n.22, 662, 668-9. 398 One might find an exception with Boucher's case. 399 See also Dworkin's persuasive argument, supra, n_37g, 37. 400 For example, sections 93, 133 of the Constitution Act, 1867. 401 See, for example, Turpin, supra, n.2i2, 51, 92; Hogg, supra, n.i, 766. 402 See Wheare, Modern Constitutions (1966), ch. i; Grey, "Constitutionalism: An Analytical Framework," in Pennock and Chapman, ed., Constitutionalism (1979), 189, igiff. See also Hogg, ibid., 115-16; Brun and Tremblay, supra, n.g, 11. 403 See Wheare, ibid., 5; Mcllwain, Constitutionalism, Ancient and Modern (1958), 21; Grey, ibid.

276 Notes to pages 131-9 404 See Mcllwain, ibid., 15. 405 See, for example, Hoganv. The Queen [1975] 2 S.C.R. 574, 597 (Justice Laskin). 406 See, for example, A.G. of Can. v. Lavell [1974] S.C.R. 1349, 1374 (Justice Abbott, dissent): "In my view the Canadian Bill of Rights has substantially affected the doctrine of the supremacy of Parliament... that result is undesirable but that is a matter for consideration by Parliament not the courts." CHAPTER FOUR

1 The concept of "idealtype" is directly borrowed from Max Weber's methodological essays. See, for example, Weber, " 'Objectivity' in Social Science and Social Policy," in Weber, The Methodology of the Social Sciences (1949). 49Ibid., 90. Ibid., 92-3. Ibid., 92. Weber, Economy and Society (1978), vol. i, 311-12. The fact that various idealtypes are constructed and referred to by the judges when they decide cases might have been marvellously recognized in 1935 by Mr Chief Justice Dixon: "The fundamental conceptions, which a legal system embodies or expresses, are seldom grasped or understood in their entirety at the time when their actual influence is greatest. They are abstract ideas usually arrived at by generalization and developed by analysis. But it is a mistake to regard such ideas as no more than philosophic theories supplied ex post facto to explain a legal structure which has already been brought into existence by causes of some other and more practical nature. On the contrary, sometimes the conceptions, even though never analysed and completely understood, obsess the minds of the men who act upon them. Sometimes indeed they are but instinctive assumptions of which at the time few or none were aware. But afterwards they may be seen as definite principles contained within the ideas which provided the ground of action. Further, when such conceptions have once taken root they seldom disappear. They persist long after the conditions in which they originated have gone. They enter into combinations with other conceptions and contribute to the construction of new systems of law and of governement." Dixon, "The law and the Constitution," (1935) 51 L.Q.R. 590, 590-1. 7 See Weber, supra, n.i, 90-2. 8 The idea of "derivation" and "verification" should be understood according to the process of adjudication conceived to be rational, evaluative, and regressive. See Chapter 2, "The Interpretive Premise."

2 3 4 5 6

277 Notes to pages 139-41 9 See ibid. 10 That would be so even if one believed that there is one foundational standpoint by which the true legal idealtype can be ascertained. See also Weber, supra, n.i, 91. 11 See Weber, supra, n.5, vol. 2, 78411. 12 In the next two chapters we shall see that the two dominant conceptions of the rule of law as idealtype in Western legal tradition have incorporated the principle of "coherence." 13 In such cases, the construction of one's idealtype may correspond to Dworkin's description of the "interpretive attitude" towards a practice, namely, that the judges come to assume that the practice has some point, value, and interest and that it requires judicial decisions to be sensitive to its point. Dworkin, Law's Empire (1986), 47-8. 14 See Dworkin's powerful argument that "law" is, from an internal point of view, an interpretive concept, that is, a concept constructed from an interpretation of the practices in which it is embedded. Ibid., ch. 2-3. 15 The idea of "supremacy of law" held some sway in the formative years of our legal tradition. See Berman, Law and Revolution (1983); Herman, The Nature and Functions of Law (1958), 368. 16 The assertion that the rule of law cannot exist in a legal system in formation because it would only be possible in a mature legal system sounds analytical: it sounds "true" by definition. Moreover, it might derive from a confusion within contemporary legal theory between the concept of law relevant for the theorist who sees himself as an external observer of a social practice already developed and capable of empirical description, and the concept of law for the judges who recognize the duty to promote the rule of law. Of course, the theorist might need an existing legal social practice. But why should the judges? The moral, political, and religious conceptions might supply the antecedent social practices and existing traditions needed to uphold the rule of law. See nn.28—30 and accompanying text. 17 Of course, at some level of abstraction, such conception comes within some existing practice, for example, the practice of theorizing about art. 18 Hart has ironically characterized that idea as the "noble dream." Hart, "American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream," 11 Ga. L. Rev. 969 (1977). 19 Atiyah and Summers, Form and Substance in Anglo-American Law (1987), 4-5, 41 iff. 20 Summers, "Working Conceptions of'the law,'" in Stewart, ed., Law, Morality and Rights (1983), 3. 21 For example, Hart, The Concept of Law (1961), 202; Hayek, The Constitution of Liberty (1960), 206. 22 Hart, "Positivism and the Separation of Law and Morals," 71 Harv. L. Rev. 593 (1958), 608. Emphasis added.

278 Notes to pages 141-5 23 Ibid., 613. 24 Ibid., 614. 25 See, for example, Corwin, "The Higher Law Background of American Constitutional Law," 42 Harv. L. Rev. 149 (1928); Dickenson, Administrative Justice and the Supremacy of the Law (1927), ch. 4. 26 Dickinson, "The Law Behind Law," 29 Col. L. Rev. 113 (1929), 114. 27 Of course, a judge might believe that his idealtype is required by natural law. 28 In Greek mythology, Themis is known as the God of Justice. Yet, in prior times, Themis personified the divine inspiration which guided or dictated judicial decisions (by contrast to statutes) made by the judges (the kings or the gods such as Zeus). Themis was therefore a divine agent supplying the judges with the judgments to be made, which were called "Themistes." See Maine, Ancient Law (1884). 29 The claim is circular because it assumes that the concept of law should be understood from the internal point of view but that this point of view must be understood in accordance with the positivist conception of law. 30 See n.1531 Dworkin has provided a powerful argument showing that a judge may based his decision on an existing body of norms and decisions without being committed to legal positivism. See n.1332 MacCormick, Legal Reasoning and Legal Theory (1978), 63-4. 33 I am obviously not claiming that this is the right answer to the issue of legitimacy. 34 That conception may derive from a more basic moral and political theory. 35 These reasons may be varied and I shall not analyse them here. See Raz, The Authority of Law (1979), 5off.; Hart, supra, n.2i, 2O3ff. 36 See Chapter 2. 37 I make this assertion in Tremblay, "La theorie constitutionnelle canadienne et la primaute du droit," (1994) 39 McGillL.J. 101. 38 The introduction of the hermeneutical approach into jurisprudence has been attributed to H.L.A. Hart. We have already made that point in the Introduction and in Chapter i, n. 13. See also, for example, Hacker, "Hart's Philosophy of Law," in Hacker and Raz, ed., Law, Morality and Society (1977); MacCormick, H.L.A. Hart (1981), ch. 3. On hermeneutics in social sciences, see Winch, The Idea of a Social Science (1958); Taylor, "Interpretation and the Sciences of Man," in Taylor, Philosophy and the Human Sciences (1985), t. 2, ch. i; Weber, The Theory of Social and Economic Organization (1964); Weber, supra, n.5, vol. i, ch. i; Gibbons, ed., Interpreting Politics (1987). Many contemporary legal theorists can be associated with hermeneutics: for example, Dworkin, supra, n.i3; Finnis, Natural Law and Natural Rights (1980), ch. i; MacCormick, supra, n«32. In general, "hermeneutics" refers to the act or science of interpretation. It has been used to

279 Notes to pages 145-7 characterize the interpretation of texts, practices, institutions, and concepts as well as the constitutive feature of man's existence. In this section, it refers to the interpretation of a practice and of the concepts that constitute it. 39 On the notion of "hermeneutical circle," see Gadamer, Truth and Method (2 nd ed., 1975). The theorist always starts with a prior understanding of the "thing" according to which he may anticipate its meaning. Gadamer calls that a "fore-project." See Chapter 2. 40 On the link between a social practice and the language of that practice, see Gibbons, supra, n.38; Taylor, supra, n.g8. 41 A hermeneutical approach is generally conceived as distinct from a descriptive approach because it involves interpretation and not pure description in a positivist sense. Yet, it remains descriptive in a broad and purposive sense: the theorist seeks to make sense of something which exists in some form in society. To a certain extent, Hart's "descriptive sociology," in supra, n.21, v, 87, may be understood as such. See the Introduction. However, that should not be interpreted as implying that the theorist is a "pure" neutral, detached, and objective observer. The theorist is an interpreter: he or she approaches the object within his or her own horizon of understanding. The theorist constructs the meaning of particular behaviour or practice against the background of his or her own "prejudices," which themselves are partly constituted by the very practice of theorizing about the object. See Gadamer, supra, n.gg, and my criticism of the theory of the core in Chapter 2. See also, in general, Taylor, "Social Theory as Practice," in Taylor, ibid., ch. 3. 42 Taylor, ibid., 34ff. It does not follow, however, that it does not constitute a form of "convergent subjective meaning" although Taylor's description of the latter seems to deny it. Ibid., 36-7. Yet I agree with the proposition that "inter-subjective meanings" are "modes of social relation" that go beyond the individual beliefs and attitudes "which can fit into the categorial grid of behavorial political science." Ibid., 36. 43 A "judicial discourse" is a "legal discourse." We follow Burton's definition: A "legal discourse" is "an argumentative social practice unified and distinguished by its own implicit concept of law." Burton, "Law as Practical Reason," 62 S. Cal. L. Rev. 747 (1989), 748. 44 I explore at greater lenght the distinction between a "correspondance theory of truth" and a "coherence theory of truth" in Tremblay, "La norme de retenue judiciaire et les 'erreurs de droit' en droit administratif: une erreur de droit? Au-dela du fondationalisme et du scepticisme," (1996) 56 R. du B. 141, 152-4, 166-79. 45 On the suggestion relating the "ultimate" consideration to pragmatism, see Tremblay, ibid., 185-7 n. 106-7 anf^ accompanying text. 46 Weber, supra, n_5, vol. 2, 654ff.

280 Notes to pages 147-9 47 The distinction between form and substance, if applied rigorously, assumes that law should be conceived through the theory of legal positivism because it makes a distinction between legal considerations that are within the legal system (within the positive rules) and the considerations that are outside the valid rules. 48 Weber, supra, n_5, vol. 2, 656. 49 "Unless the relevant question has been stated in the formally correct manner, the magical technique cannot provide the right answer ... We can now understand the fundamental principle characteristic of all primitive procedure once it has been regulated by fixed rules, viz., that even the slightest error by one of the parties in his statement of the ceremonial formula will result in the loss of the remedy, or even the entire case." Ibid., 761. 50 Ibid., 812. 51 Ibid., 762. 52 Ibid., 656. 53 Weber has called it a form of "Khadi^justice," ibid., 976ff. 54 Ibid., 657. 55 Ibid., 656-7. Weber contrasts the formal character of the "logical rational" legal order with "concrete formalism," according to which the "legally relevant characteristics are of a tangible nature" (signature, act, the utterance of certain words). Ibid. 56 Ibid., 657. 57 Ibid., 789. 58 Ibid., 844. 59 Weber's project was to explore the characteristic features of Western capitalist civilization. For him, it may be contrasted with other civilization by its high degree of "rationalization" in economic, religious, and legal matters. See ibid., 88off., especially 882-3. CHAPTER FIVE

1 Hayek, The Road to Serfdom (1944), 72. 2 Wade, "The Concept of Legal Certainty," (1941) 4 Mod. L. Rev. 183, 186. 3 Raz, The Authority of Law (1979), 214. See also Radin, "Reconsidering the Rule of Law," 69 B.U.L. Rev. 781 (1989), 785. 4 Fuller, The Morality of Law (rev. ed., 1969), 209-10. 5 See, for example, Hall, "Nulla Poena Sine Lege," 47 YaleLJ. 165 (1937); Weber, Economy and Society (1978); Marsh, "The Rule of Law as a SupraNational Concept," in Guest, ed., OxfordEssays in Jurisprudence (1961), 226. We may find some of its roots in Aristotle, The Politics (1986). See the analysis of the concept nomosin Barker, The Politics of Aristotle (1946), Ixx. 6 See, for example, Locke, Two Treatises of Government (1967), 2, ch. 9, s. 131, 371, and ch. 11, ss. 136-7, 376ff.; Montesquieu, The Spirit of the Laws

281 Notes to pages 149-50

7

8 9 10

(1989), bk. 11, i54ff.; Ruggiero, The History of'European Liberalism (i 927), 366; Hayek, The Constitution of Liberty (1960), 167-8. See, generally, Neumann, "The Change in the Function of Law in Modern Society," in Neumann, The Democratic and Authoritarian State (1957), especially ch. 2. It would be misleading, however, to suggest that liberalism has been characteristically committed to that conception of the rule of law as opposed to the rule of law as justice. See Chapter 6. Until the advent of legal positivism in the nineteenth century, liberal theorists ascribed to (the rule of) law not only the virtue of promoting certainty but the virtue of promoting justice, the common good, reason, and so on. John Locke, for example, has been often exclusively associated with the rule of law as certainty. Indeed, Locke has many passages supporting that interpretation. See ibid. Yet Locke's conception of (the rule of) law goes beyond legal certainty. At the end of section 135, for example, he writes: "The obligations of the law of Nature cease not in society ... Thus the law of Nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions must, as well as their own and other men's actions, be conformable to the law of Nature - i.e., to the will of God, of which that is a declaration, and the fundamental law of Nature being the preservation of mankind, no human sanction can be good or valid against it." Ibid. According to Locke, the legislative power is limited to the public good of the society by virtue of the social contract. Yet, in the nineteenth century, with the growing influence of legal positivism and the consolidation of liberty as one of society's most important values, many liberal and rechtsstaat theorists became committed, first and foremost, to the rule of law as certainty as opposed to the rule of law as justice. See, for example, Bentham, An Introduction to the Principles of Morals and Legislation (1982); Kant, The Moral Law (1948); Rawls, A Theory of Justice (1971); Rawls, "Justice as Fairness: Political not Metaphysical," 14 Phil, and Pub. Aff. 223 (1985). In general, see Arblaster, The Rise and Decline of Western Liberalism (1984). The concept of freedom is used in its "negative" sense. See Berlin, "Two Concepts of Liberty," in Quinton, ed., Political Philosophy (1967). See Weber, supra, n.5, vol. 2, 883; Phillips, "The Rule of Law," (1934) 16 Journal of Comparative Legislation 302, 303. For example, Salmond, Jurisprudence (i i th ed., 1957), 43-53; Raz, supra, n.3, ch. 11; Fuller, supra, n>4; Finnis, Natural Law and Natural Rights (1986), 278ff.; Rawls, A Theory, supra, n>7, 235ff.; Hayek, supra, n.6, pt. 2; Weber, supra, n_5; Aubert, In Search of Law (1983), ch. 2; Unger, Law in Modern Society (1976); Horwitz, "Book Review: The Rule of Law: An Unqualified Human Good?" 86 YaleL.J. 561 (1977); Hall, General Principles of Criminal Law (1947), 47. See also the formal rechtsstaat theorists, in Neumann, The Rule of Law (1986), ch. 12; Dietze, Two Concepts of the Rule of Law (1973); Krieger, The German Idea of Freedom (1957).

282 Notes to pages 150-2 11 For example, Wade, supra, n.2; Marshall, "Due Process in England," in Pennock and Chapman, ed., Due Process (1977), 6gff.; Marshall, Constitutional Theory (1971); Dicey, Introduction to the Study of the Law of the Constitution (io th ed., 1959); Scalia, "The Rule of Law as a Law of Rules," 56 U. Chi. L. Rev. 1175 (1989). 12 See Raz, supra, n_3, 226. 13 Fuller, supra, n.4, 96-7. 14 Theorists of the rule of law as certainty generally conceive law as a matter of rules. See, for instance, Raz, supra, n.3, 2i3ff.; Fuller, ibid., 46ff.; Finnis, supra, n.io, 27off.; Rawls, A Theory, supra, n_7, 235; Hayek, supra, n.6, 205ff.

15 Re Manitoba Language Rights [1985] i S.C.R. 721, 749-50. 16 In England, that corollary is a rule of interpretation. See Allen, Law in the Making (7* ed., 1964), 463ff. In the United States, the corollary is part of the constitution. See Hochman, "The Supreme Court and the Constitutionality of Retroactive Legislation," 73 Harv. L. Rev. 692 (1960). Fuller has argued that we may be justified in enforcing retroactive legislation when it aims at correcting past violations of the rule of law. See supra, n_4, 5 iff. Such an argument is, I submit, inconsistent with the rule of law as certainty and should make sense only for those who accept the rule of law as justice. 17 See, for example, Note, "Prospective Overruling and Retroactive Application in the Federal Courts," 71 Yale L.J. 907 (1962); Atiyah and Summers, Form and Substance in Anglo-American Law (1987), 146ff. 18 For example, Aubert, supra, n.io, 46. 19 For example, Fuller, supra, n>4, 4gff.; Raz, supra, n_3, 214. 20 Fuller, ibid., 7gff.; Raz, ibid., 2i4ff. 21 See Perelman and Vander Elst, ed., Les notions a contenu variable en droit (1984). 22 See Hayek, supra, n.i, 78, and n.6, 2i4ff. By contrast, Fuller maintains that sometimes "the best way to achieve clarity is to take advantage of, and to incorporate into the law, common sense standards of judgment that have grown up in the ordinary life lived outside legislative halls," such as "good faith" and "due care." See supra, n.4, 64. To a certain extent, that debate is empirical. If the notion is vague it violates the rule of law; if it is clear for all it does not. See also Hart, The Concept of Law (1961), 128-9. 23 See, for instance, Montesquieu, supra, n.6, bk. 6, ch. 3, and bk. 11, ch. 6. 24 The distinction between extensive interpretation and analogical reasoning may be seen as a matter of degree. Extensive interpretation is used when a rule is applied to unspecified facts which resemble specified facts in a relatively obvious way (for example, new facts following a technological change). Analogical reasoning is used when a rule is applied to unspecified facts which present sufficient similarities from the point of view of the reasons that have justified the regulation of the specified facts. See Peczenick,

283 Notes to pages 152-4

25 26 27 28 29 30

31

32 33 34 35 36 37

38

39 40 41 42 43

"Analogia Legis. Analogy from Statutes in Continental Law," in Hubien, ed., Le raisonnementjuridique (1971), 329. See Perelman, Logique juridique, nouvelle rhetorique (1976), 55ff. See Hall, supra, n_5. See, for example, Gneist, Der Rechtsstaat und die Verwaltungsgerichte in Deutschland (2 nd ed., 1879), 24-5, quoted in Neumann, supra, n.io, 181. Certain passages drawn from Hayek's theory might suggest that he goes that far: see, for example, supra, n.6, i53ff. See Chapter 6. See, for example, Hayek, supra, n.6, i53ff., 208; Schreiner, The Contribution of English Law to South African Law and The Rule of Law in South Africa (i 9 6 7 ),8 4 ff. Rousseau, The Social Contract and Discourses (1950), bk. 2. ch. 6. See also Hayek, ibid.: "It is because the lawgiver does not know the particular cases to which his rules will apply, and it is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws and not men rule ... The requirement that the rules of true law be general does not mean that sometimes special rules may not apply to different classes of people if they refer to properties that only some people possess." See Rawls, A Theory, supra, n_7, 238; Fuller, supra, n_4, 47ff. Dewey, "Logical Method and Law," 10 CornellL. Rev. 17 (1924), 24. See, for example, Goodhart, "The Rule of Law and Absolute Sovereignty," 106 U. Penn. L. Rev. 943 (1957—58), 955ff. Raz, supra, n.3, 216. Ibid. Ibid. See also Klecatsky, "Reflections on the Rule of Law and in Particular on the Principle of the Legality of Administrative Action," (1962-63) 4/. Int. Comm. Jurists, 209. It may be one consequence of the rule of law as justice. In this sense, Fuller said that when we fuse the principle of generality with the principle that the law must act impersonally, we express "a principle of fairness, which ... belongs to the external morality of the law." Fuller, supra, n_4, 47. Patterson, Jurisprudence (1953), 97. See Perelman, The Idea of Justice (1963), 5iff.; Rawls, A Theory, supra, n.7, 58; Sidgwick, The Methods of Ethics (7th ed., 1907) 267, 384-5. See, for example, Hobhouse, Elements of Social Justice, (1922), ch. 5; Perelman, ibid.; Rawls, ibid.; Ross, On Law andjustice (1959), ch. 12. That corollary involves Fuller's principle of "congruence between official action and the law." Fuller, supra, n>4, 8iff. See Goodhart, "Case Law in England," (1934) 50 L.Q.R. 40, 58: "The most important reason for following precedent is that it gives us certainty in the law."

284 Notes to pages 154-9 44 See, for example, Portalis, who said that the task of legislation is to determine the general maxims of the law. Quoted in Fenet, Recueil complet des travauxpreparatories du code civil (1968), vol. i, 470. 45 For example, Raz, supra, n.g, 2i6ff.; Hayek, supra, n.6, 210-11. 46 See, for example, Aristotle, Ethica Nicomachea, in Ross, ed., The Works of Aristotle (1954), vol. 9, bk. 5, ch. 10. 47 That fact has been an important concern of legal theory in the twentieth century. See, for example, Geny, Methode d 'interpretation et sources en droit privepositif (2th ed., 1954); Llewellyn, The Common Law Tradition, Deciding Appeals (1960); Frank, Law and the Modern Mind (1930); Hart, supra, n.22, 125; Dworkin, Taking Rights Seriously (1977); Dworkin, Law'sEmpire (1986). See also the works in the field of literary criticism cited in Chapter 2, and, for critical legal scholars, Kelman, A Guide to Critical Legal Studies (1987), 12-13. 48 Hart, ibid., i23ff. 49 See Perelman, ed., Les antinomies en droit (1965). There are also uncertainties when the body of positive rules seems to be incomplete or to contain gaps. See Perelman, ed., Etudes de logique juridique (1967). That hypothesis is, however, excluded from the rule of law as certainty because, as we saw, the principle of clarity implies the reasoning a contrario. 50 See Chapters 1 , 2 . 51 See Cote, Interpretation des lois (1982), 3o8ff. 52 See Chapter 4, "The Legal Idealtypes." 53 See, for example, Mill, A System of Logic (1973), especially bk. 2, ch. 3, no. 4. 54 Liard, L'enseignement superieur en France, 1789 a 1893, t. II, 1894, 397: "Les articles du code sont autant de theoremes dont il s'agit de demontrer la liaison et de tirer les consequences. Le juriste pur est un geometre." 55 Weber, supra, n.5, vol. 2, 811. 56 That assertion shows that the rule of law as certainty must not be confused with legal positivism, at least in its analytical version. See Hart, "Positivism and the Separation of Law and Morals," 71 Harv. L. Rev. 593 (1958), 602, 6o8ff. 57 See Perelman, supra, n.25, 51; Geny, supra, n.47, 4off. 58 See Cohen, "Transcendental Nonsense and the Functional Approach," 35 Col. L. Rev. 809 (1935). 59 See Weber, supra, n.5, vol. 2, 656-7. 60 Ibid., 657-8. 61 Ibid., 657. 62 Ibid., 810-11. 63 See Cohen, supra, n.58. 64 Chapter 2, "The Rule of Law." 65 Cohen, supra, n^S.

285 Notes to pages 159-63 66 It has been particularly criticized by the thinkers associated with philosophical pragmatism, sociological jurisprudence, and legal realism. See, generally, Summers, Instrumentalism and American Legal Theory (1982). 67 Chapter 2. 68 Llewellyn, supra, n.47, appendix C, 52 iff. 69 Unger, "The Critical Legal Studies Movement," 96 Harv. L. Rev. 563 (1983), 619. 70 Ibid., 578. See also Kennedy, "Form and Substance in Private Law Adudication," 89 Harv. L. Rev. 1685 (1976); Kennedy, "The Structure of Blackstone's Commentaries,'" 28 Buffalo L. Rev. 205 (1979). See, generally, Kelman, supra, ^47. 71 Dworkin, supra, n.47,24l> 269, 274-5. 72 Lord Lloyd of Hamstead, and Freeman, ed., Lloyd's Introduction to Jurisprudence (5* ed., 1985), 1141. In Tremblay, "L'interpretation teleologique des droits constitutionnels," (1995) 29 RJ.T. 459, 507-9,1 argue that the concept of "choice" in practical legal reasoning must not be understood as a purely discretionary decision of a judge who "chooses" the interpretation he prefers. It must be seen as describing the formal decisional act which, after reflection, is the best according to the relevant set of normative considerations. As I said, in that text, paradoxically, one may say that a judge who becomes convinced that a given decision is best has no choice: he must choose that decision. 73 See Chapter 2. 74 Fuller, supra, n_4, 209. 75 Allan, "Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism," (1985) 44 C.L.J. 111. 76 Ibid., 121. 77 That assertion seems to be confirmed by Allan's book Law, Liberty, and Justice (1993), especially ch. 2. 78 Hayek, supra, n.i, 79. 79 Fuller, supra, n.4, i5gff. 80 Supra, n.i, 79. Hayek claims that the very nature of these substantive policies would be inconsistent with the principles of the rule of law because such policies "cannot be achieved within [their] limits." Hayek, supra, n.6, 231. 81 Supra, n.i, 74. See also supra, n.6, 227. 82 Supra, n.6, 224. 83 Supra, n.i, 75. "They are instrumental, they are means put at his disposal, and they provide part of the data which, together with his knowledge of the particular circumstances of time and place, he can use as the basis for his decisions," supra, n.6, 152. 84 Supra, n.6, 219, 228, 232; see also supra, n.i, ySff. 85 Supra, n.i, 78. See supra, n.6, 232.

286 Notes to pages 163-7 86 Supra, n.6, 228. 87 Ibid., 231. 88 I emphasize that the validity of the conditional statement is assumed for the sake of argument only. 89 Supra, n.6, 224; Hayek, Law, Legislation and Liberty (1976), vol. 2, 87. 90 I refer to something similar to the American doctrine of "prospective overruling," supra, n.i 7. 91 Hayek, supra, n.6, 153-4. 92 Ibid., 154. 93 Ibid. 94 Raz, supra, n.3, 227. 95 See Hart, supra, n.22, 202. Hayek's argument aimed at social justice but hit the "broad discretionary power" delegated to officials who may, thereby, act arbitrarily. 96 Supra, n.4, 96-7. 97 Ibid., 97. Emphasis added. CHAPTER six 1 Justice consists of tribuere cuique suum. See its origin in Cicero, De Finibus Bonorum et Malorum (1951), bk. 5, xxiii, 65-7; Ulpian, in Justinian's Digest, in Scott, ed., The Civil Law (1932), vol. 2, bk. 1,1, 10; Aquinas, Summa Theologica (1952), pt. 2, 2nd pt., qu. 58, art. i. 2 There is an etymological link between the concepts of law (ius), right (ius) and justice (iusticia). See Bodenheimer, Jurisprudence (rev. ed., 1974), 212. 3 See, generally, Lloyd of Hamstead and Freeman, Lloyd's Introduction to Jurisprudence (5* ed., 1985), ch. 3; Strauss, Natural Right and History (1953); Weinreb, Natural Law andjustice (1987), 234. That conception of natural law has been criticized by Finnis, Natural Law and Natural Rights (1980), ch. 2. 4 Cicero, On the Commonwealth (1929), bk. 3, xxii, 215—16. 5 Sabine and Thorson, A History of Political Theory (4* ed., 1973), 164. 6 Ulpian, supra, n.i. 7 See, for example, St Augustine, The Teacher, the Free Choice of the Will, Grace and Free Will (1968), bk. i, ch. 5, no. 11,81: "An unjust law, it seems to me, is no law"; Aquinas, supra, n.i, pt. i, i st pt., qu. 90, art. i, repl. obj. 3: "in order that the volution of what is commanded may have the nature of law, it needs to be in accord with some rule of reason ... otherwise the sovereign's will would savour of lawlessness rather than of law." 8 Allen, Law in the Making (7* ed., 1964), 383. 9 See, generally, Berman, Law and Revolution (1983). 10 Nicholas, An Introduction to Roman Law (1962), 47. 11 Kunkel, An Introduction to Roman Legal and Constitutional History (2 nd ed., 1973).

287 Notes to pages 167-8 12 13 14 15

Berman, supra, n.g, 140—1. Ibid., i3iff. Ibid., i4off. For example, Gratian, concordia discordantium canonum (i 140), in Friedberg, ed., Corpusluris Canonici (1879), vol. i. 16 For example, Glanvill, Tractatus de legibus et consuetudinibus regni Angliae (1932); Bracton, De legibus et consuetudinibus Angliae (1968), 305-6; St Germain, Two Dialogues Between a Doctor of Divinity and a Student in the Laws of England (1518). The treatise attributed to Glanvill, Tractatus de legibus et consuetudinibus regni Anglie qui Glanvilla vocatur (twelfth century) was probably written by Hubert Walter, a clerk who became archbishop of Canterburyjusticiar, and chancellor. Bracton, who wrote De Legibus et Consuetudinibus Angliae (thirteenth century), was chancellor of the Exeter Cathedral. St Germain's Two Dialogues Between a Doctor of Divinity and a Student in the Laws of England (sixteenth century), influenced by the writings of Aquinas, held that the two most important sources of English law were "the law of reason" and "the law of God." This work had a particular impact upon the equity jurisdiction, an impact exemplified by the case R. v. Love, 5 St. Tr. 43 (1653), 172, where Justice Keble says that "there is no law in England but is as really and truly the law of God as any Scripture phrase, that is by consequence from the very texts of Scripture: for there are very many consequences reasoned out of the text of Scripture: so is the law of England the very consequence of the very Decalogue itself: and whatsoever is not consonant to Scripture in the law of England ... whatsoever is not consonant to the law of God in Scripture, or to right reason which is maintained by Scripture, whatsoever is in England be it Acts of Parliament, customs, or any judicial acts of the Court, it is not the law of England, but the error of the party which did pronounce it." See, generally, Berman, supra, n.g, ch. g; O'Sullivan, The Inheritance of the Common Law (1950); O'Sullivan and Wortley, The Spirit of the Common Law (1965); Pound, The Spirit of the Common Law (1921); Dowrick, Justice According to the English Common Lawyers (1961); Gough, Fundamental Law in English Constitutional History (1961); Maitland, The Constitutional History of England

(i9 6 3). 6 9 ff -

17 Berman, The Nature and Functions of Law (1958), 368. 18 This meaning of "rational" corresponds to one of Max Weber's definitions. See Weber, Economy andSociety (1978), vol. 2, 655-6. See also Chapters 4-5. 19 The latin word "ratio" means "rational" and "reasonable." See Glare, ed., Oxford Latin Dictionary (1982). 20 See Allen, supra, n.8, ch. 5; Baker, An Introduction to English Legal History (ig7g), ch. 6; Spence, "The History of the Court of Chancery," in Association of American Law Schools, Select Essays on Anglo-American Legal History (ig68),vol. 2, 2igff.

288 Note to page 168 21 The judges developed what has come to be called the "equity of a statute": See, for example, Eystonv. Studd (1574), Plow. 459, 465ff.: "From this judgment and the cause of it, the reader may observe, that it is not the words of the law, but the internal sense of it that makes the law, and our law (like all others) consists of two parts, viz. of Body and Soul, the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law, quid ratio legis est anima legis. And the law may be resembled to a nut, which has a shell and a kernel within, the letter of the law represents the shell, and the sense of it the kernel, and as you will be no better for the nut if you make use only of the shell, so you will receive no benefit by the law, if you rely only upon the letter, and as the fruit and profit of the nut lies in the kernel, and not in the shell, so the fruit and profit of the law consists in the sense more than in the letter. And it often happens that when you know the letter, you know not the sense, for sometimes the sense is more confined and contracted than the letter, and sometimes it is more large and extensive. And Equity, which in Latin is called equitas, enlarges or diminishes the letter according to its discretion, which Equity is in two ways: The one Aristotle defines thus, (which is touched by Catline, Chiefjustice in Stowell's case) Equitas est correctio legis generatim latoe qudparte deficit, or as the passage is explained by Perionius, Equitas est correctio quoedam legi adhibita, quia ab ea abest aliquid propter generalem sine exceptione comprehensionem, both which definitions come to one and the same thing. And this correction of the general words is much used in the law of England; as when an Act of Parliament ordains that whoever does such an act shall be a felon, and shall suffer death, yet if a man of unsound mind, or an infant of tender age who has no discretion, does the act, they shall not be felons, nor shall they be put to death. And if a statute be made that all persons who shall receive or give meat or drink, or other aid to him that shall do such an act (knowing the same to be done) shall be accessaries to the offence, and shall be put to death, yet if a man commits the act, and comes to his own wife, who knowing the same receives him, and gives him meat and drink, she shall not be accessary to his offence, nor a felon, for one that is of unsound mind, an infant, or a wife, were not intended to be included in the general words of the law. So that in these cases the general words of the law are corrected and abridged by equity ... And experience shews us that no law-makers can foresee all things which may happen, and therefore it is fit that if there is any defect in the law, it should be reformed by equity, which is no part of the law, but a moral virtue which corrects the law ... From whence the reader may observe how convenient a thing this equity is, and the wise Judges of our law deserve great commendation for having made use of it where the words of the law are rigorous, for thereby they have softened the severity of the text, and have made the law tolerable." According to Allen, the doctrine of statutory "equity" seems to have arisen

289 Notes to page 168 from two principal causes: "first, a reaction against the much stricter principles of statutory interpretation which set in during the latter half of the fourteenth century; and, second, the influence of the growing Chancery jurisdiction, and, in particular, its philosophical rationalization by St. Germain." See Allen, ibid., 454-5, and the cases cited at 45iff.: for example, Stradlingv. Morgan, (1560), Plow. 199; Stowelv. Lord Zouche, (1564), Plow. 353; Wimbishv. Tallboys (1551), Plow. 38. Various obiter have even suggested that the common law would control and. invalidate acts of Parliament: Allen, ibid., 447ff., 456ff. On the judicial power to invalidate acts of Parliament, see, for example, Dr Bonham's Case, (1610) 8 Co. Rep. 1143 (C.P.): "And it appears in our books, that in many cases the Common Law will control Acts of Parliament and sometimes adjuge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common Law will control it and adjuge such act to be void"; Day v. Savage, (1614) Hobart 85, 80 E.R. 235, 87 (C.P.): "Even an Act of Parliament, made against natural equity, as to make a man judge in his own cause, is void in itself, for iura naturae sunt immutabilia, and they are leges legum"; Sheffield (Lord)v. Ratcliffe, (1615) Obart 334, 346: "That liberty and authority that Judges have over laws, especially over statute laws, according to reason and best convenience, to mould them to the truest and best use." See also Calladyv. Pilkington, (1701) 12 Mod. 513, 88 E.R. 1485, 513 (C.P.); City ofLondonv. Wood, (1701) 12 Mod. 669, 88. 22 The assertion that the rule of law as justice has been paradigmatic in legal theory at least until Blackstone should not be contested. Thus, when Blackstone wrote that "the systems of jurisprudence in our courts both of law and equity are now equally artificial systems, founded in the same principles of justice and positive law; but varied by different usages in the forms and mode of their proceedings," Commentaries on the Law of England, Vol. 7, at 429ff., he was probably asserting a truth universally accepted. 23 The paradigmatic figure in contemporary Anglo-American legal theory is certainly Ronald Dworkin. See Dworkin, Taking Rights Seriously (1977); Dworkin, A Matter of Principle (1985); Dworkin, Law's Empire (1986). But see also the underlying conception of the rule of law in Finnis, supra, n.3- Many other legal theorists could also be associated with the rule of law as justice. The list cannot be exhaustive. But see, for example, Pound, Justice According to Law (1951); Pound, Introduction to the Philosophy of Law (1954); Cardozo, The Nature of theJudicial Process (1921); Llewellyn, The Common Law Tradition: Deciding Appeals (1960); Frank, Law and the Modern Mind (1930); Radbruch, "Gesetzliches Unrecht und Ubergesetzlich.es Recht," in Wolf, ed., Rechtsphilosophie (4* ed., 1950); Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts (1956); Esser, Voruerstandnis und Methodenwahl in der Rechtsjindung (1970); Perelman, LogiqueJuridique, Nouvelle

2go Notes to page 168 rhetorique (2 nd ed., 1979); Siches, "La logique materielle du raisonnement juridique," in Hubien, ed., Le raisonnement juridique (1971); Wasserstrom, The Judicial Decision (1961). The rule of law as justice is still very much alive. See, for example, Fried, "The Laws of Change: The Cunning of Reason in Moral and Legal History," gjour. of Legal Studies 355 (1980); Eisenberg, The Nature of the Common Law (1988); Tribe, "Revisiting the Rule of Law," 64 N.Y.U. Law Rev. 726 (1989); Brennan, "Reason, Passion and 'the Progress of the Law,'" 10 Cardozo L. Rev. 37 (1988); Barnett, "Foreword: Can Justice and the Rule of law Be Reconciled?" 11 Harv.J. Law & Pub. Pol. 597 (1988). One might even argue that the underlying conception of the rule of law in MacCormick's and Fuller's thoughts comes within the rule of law as justice. See MacCormick, Legal Reasoning and Legal Theory (1978); Fuller, The Morality of Law (2 nd ed., 1969). The rule of law as justice is exemplified by the works of the International Commission of Jurists, Le principe de la legalite dans une societe libre, Rapport sur les travaux du Congres international de juristes tenu a New Delhi (January 1959). The dissenting judgment of Judge Tanaka in the South-West Africa Cases (Second Phase), 1966, reproduced in Brownlie, ed., Basic Documents on Human Rights (1971), 482, contains various passages supporting the rule of law as justice: "Under the constitutions which express this principle in a form such as 'all citizens are equal before the law,' there may be no doubt whether or not the legislators also are bound by the principle of equality. From the nature of this principle the answer must be in the affirmative. The legislators cannot be permitted to exercise their power arbitrarily and unreasonably. They are bound not only in exercising the ordinary legislative power but also the power to establish the constitution. The reason therefor is that the principle of equality being in the nature of natural law and therefore of a supraconstitutional character, is placed at the summit of hierarchy of the system of law, and that all positive laws including the constitution shall be in conformity with this principle." See, more generally, the theorists analysed in Bodenheimer, supra, n.2, chs. 8-9; Perelman, ibid.; Brimo, Les grands courants de la philosophic du droit et de I'etat (3rd ed., 1978). 24 Fuller, The Law in Quest ofItself(i 940), 103. See, in general, the arguments of Finnis, ibid., notably in ch. X-7- Pound was right when he wrote that "in a developed legal system when a judge decides a cause he seeks, first, to attain justice in that particular cause, and second, to attain it in accordance with law - that is, on grounds and by a process prescribed by law." Pound, "The Theory of Judicial Decision" (1924) 2 C.B.R. 443. See also Willis, "Statute Interpretation in a Nutshell," (1938) 16 C.B.R i, 16: "A Court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it." 25 See Perelman, The Idea of Justice and the Problem of Argument (1963), chs. 1-2; Hart, The Concept of Law (1961), i53ff.; Rawls, A Theory of Justice (1971), 58ff.

291 Notes to pages 169-74 26 Weber conceived his four legal ideal types from a positivist point of view. He characterized the principles of justice as "substantive" or "material," not only because they were upheld on the basis of their content in accordance with a given moral, ethical, political, religious, or economic ideology, but because they constituted a set of extra-legal considerations external to the formal legal system. See supra, ch. 4, "The Legal Idealtypes." 27 See Perelman, supra, n.25; Hart, supra, n.25-1 offer a specific defence of the claim that the principle of formal justice is a constitutive aspect of the law in Tremblay, "La norme de retenue judiciaire et les 'erreurs de droit' en droit administratif: une erreur de droit? Au-dela du fonda tionalisme et du scepticisme," (1996) 56 R. du B. 141, 202-9. 28 For example, Lloyd, The Idea of Law (1980), 120. 29 See my discussion of the principle of generality in Chapter 5. 30 Perelman, supra, n.25, 3^-1 discuss the scope of that statement in Tremblay, supra, n.27, 203-5. 31 In Tremblay, ibid., 200-9,1 argue that the principle of formal justice states one of the sufficient reasons justifying the recognition of the principle of legality. The argument is that the principle of formal justice confers on each person the fundamental right to be treated as those who are alike from a legally relevant point of view; in turn, that right justifies a right to judicial and administrative decisions according to law. In Chapter 7 I maintain that the principle of legality is one of the corollaries of the constitutional principle. In fact, the values of the rule of law as justice are often interdependent, the meaning of one principle reflecting the meaning of other principles. The principle of legality illustrates that assertion. As I just said, it may constitute one corollary of the principle of formal justice as well as one corollary of the constitutional principle. Moreover, the recognition of the principle of legality may derive from a commitment to other material values, such as individual autonomy and liberty (see my arguments in ibid., 209-13), which, in this book, are associated with the liberal principle. See Chapter 7. 32 See, for example, Rawls, supra, n.25, 5^-5 Perelman, supra, n.25; Miller, Social Justice (1976). 33 On the idea of "one single right answer" and the meaning of "true proposition of law," see my discussion in Tremblay, supra, n.27, Pl- *• 34 Miller, The Data of Jurisprudence (1903), 335. Emphasis added. See my arguments in Tremblay, supra, n.27, 209-13. 35 Aristotle, Ethica Nicomachea, in Ross, ed., The Works of Aristotle (1954), vol. 9, bk. 5, ch. 10. 36 For example, Lucas, Onjustice (1980), 78; Perelman, supra, n.25, cn - 337 See, for instance, Hayek, The Constitution of Liberty (1960), 158: "As [the rules] operate through the expectations that they create, it is essential that they be always applied, irrespective of whether or not the consequences in a particular instance seem desirable." In the nineteenth century, Bentham

292 Notes to pages 175-8 maintained that it was essentially arbitrary to take into consideration the circumstances of individual cases in accordance with the "principle of sympathy or antipathy" as opposed to the "principle of utility." See Bentham, An Introduction to the Principles of Moral and Legislation (1982). William Paley wrote that "uniformity is of more importance than equity, in proportion as a general uncertainty would be a greater evil than particular injustice." See Paley, The Works of William Paley, D.D., vol. 3, 1830, 412. Ripert, Le declin du droit (1949), no. 51, 155; Roubier, Theorie generale du droit (2 nd ed., 1951), 325-6; Scalia, "The Rule of Law as a Law of Rules," 56 U. Chi. L. Rev. 1175 (1989). 38 See Chapter 2. 39 I have in mind something similar to Rawls's notion of "reflective equilibrium." See Rawls, supra, n.25, 48ff. See my discussion on "coherence theory" in nn.46ff. and accompanying text. See also Chapter 2, n.ig2. 40 MacCormick, supra, n.23, 250. 41 See also my arguments in Tremblay, supra, n.2742 MacCormick, supra, n.4O, 64, i38ff. 43 Bobbio, "Des criteres pour resoudre les antinomies," in Perelman, ed., Des antinomies en droit (1965), 245. 44 Bobbio maintains that there are ultimate circumstances "ou ce systeme ne sert a rien, ou au contraire, il peut etre genant ... Sans doute, en ce cas extreme - manque d'un critere pour resoudre le conflit des criteres - le critere des criteres est le principe supreme de la justice." Ibid., 258. 45 For example, Wroblewski, "L'interpretation en droit: theorie et ideologic," (1972) ^ A.P.D. 51,65. 46 See, for example, Feinberg, "Justice, Fairness and Rationality," 81 Yale L.J. 1004 (1972), loigff. In law, various authors have offered their own theories of legal reasoning based upon the postulates of the "coherence theory" or "constructivism." See, for example, Dworkin, supra, n.23; MacCormick, supra, n.23; Sartorius, "The Justification of the Judicial Decision," 78 Ethics 171 (1968); Sartorius, "Social Policy and Judicial Legislation," 8 Am. Phil. Quat. 151 (1971); Fallen, "A Constructivist Coherence Theory of Constitutional Interpretation," 100 Harv. L. Rev. \ 189 (1987). I have expounded and applied a version of coherence and constructivist theory in Tremblay, "L'interpretation teleologique des droits constitutionnels," (1995) 29 R.J.T. 459. See also my description of the process of interpretation in Tremblay, supra, n.2747 The term comes from Scheffler, "On Justification and Commitment," 51J. Phil. 180 (1954), 188. 48 I take the metaphor of "mistake" from Dworkin, Taking, supra, n.23, l X8However, the idea of "mistake" constitutes an important aspect of coherence theory. See, for example, Bradley, Essays on Truth and Reality (1914), 202-18.

293 Notes to pages 178-80 49 That logical principle is generally attributed to David Hume. See Hume, A Treatise of Human Nature (1961), bk. 3, pt i, s. i. 50 Perelman, supra, n.25, 52. Perelman has, however, changed his view. See supra, n.23, ioiff.; Perelman, Droit, moraleetphilosophic (2 nd ed., 1976), 45ff. 51 Hume, supra, n_49, bk. 2, pt. 3, s. 3. 52 For example, Kelsen, Theorie pure du droit (2 nd ed., 1962), 24-5; Kelsen, "What is Justice?" in Weinberger, ed., Essays in Legal and Moral Philosophy (1973), iff.; Ross, OnLaw andjustice (1959), 140-1, 274-5; Bork, "Neutral Principles and Some First Amendment Problems," 47 Ind. LJ. i (1971), 8; Ely, Democracy and Distrust (1980), 54, 58. 53 MacCormick, supra, n.23, 554 Indeed, it would be possible to base a more general moral theory upon a belief in the existence of foundationalist grounds, but one might also proceed from coherence theory, that is, from the construction of a "wide reflective equilibrium" that integrates considered convictions, abstract moral principles, moral, social, and scientific theories, and metaphysical and all other background theories into a coherent whole. See, for example, Daniels, "Wide Reflective Equilibrium and Theory Acceptance in Ethics," (1979) 76/. Phil. 256; Nielsen, "In Defense of Wide Reflective Equilibrium," in Odegard, ed., Ethics and Justification (1988), 19. See also nn.sg, 46. 55 See Perelman's theory of argumentation (by contrast to a theory of demonstration) in Perelman, supra, n.23- See also Dworkin's important contribution in Law's Empire, supra, n.23, cn- 2 56 That is supported by the theories of many legal reasoning theorists. See, for example, Cardozo, supra, n.23, 1O5' Dworkin, supra, n.23; Perelman, ibid.; MacCormick, supra, n.23, 149> 23^; Eisenberg, supra, n.23, 15> Levi, Introduction to Legal Reasoning (1949), 4ff. 57 For example, some of the general principles of law, and in particular some of the principles entrenched in various bills of rights, reflect those agreed values. Once constructed, these relatively abstract and general values may constitute what may be called for law purposes a "fundamental morality," as opposed to "particular moralities," "personal moralities," "conventional moralities," and all controversial moral views and ideals within society. 58 For example, Dworkin has argued that Rawls's Theory of Justice should be taken as such, at least with respect to the United States. Dworkin, "L'impact de la theorie de Rawls sur la pratique et la philosophic du droit," in Audard, Dupuy, and Seve, ed., Individu et Justice sociale (1988), 37. For the purposes of Charter interpretation, Patrick Monahan, among others, has defended the claim that the courts must follow those theorists who have read Canadian community's sense of justice in the light of communitarian,

294 Notes to pages 180-8

59 60 61 62 63

Tory, socialist, and democratic values. See Monahan, Politics and the Constitution (1987), 92-6 and io5ff. Whether these authors are relevant, or the extent to which they are, for the purposes of the rule of law as justice is a question that remains open. In Chapter 7,1 construct the material principles of the rule of law as justice at a level of generality and abstraction which, apparently at least, emphasizes other moral values. See supra, nn.46, 54. See Chapter 2 and 4 and Tremblay, supra, n_46; Tremblay, supra, n.27See Chapter 2. I defend that conception of legal interpretation in greater detail in Tremblay, supra, n.46; Tremblay, supra, n.27These fundamental features were absent (although implicit) in my earlier descriptions of the process of interpretation. See, for example, the texts in ibid. CHAPTER

SEVEN

1 In this example, I assume that the principle materially defines what is included in the notion of "opportunities" and what "wants" and "capacities" are legitimate in respect to which equal opportunity is required. These principles may imply, as logical consequences, some "formal" principles. 2 I shall not demonstrate that assertion here. 3 See Gallic, "Essentially Contested Concepts," (1955-56) 56 Proc. Aris. Soc. 167. 4 Sartori, "Constitutionalism: A Preliminary Discussion" (1956) 56 Am. Pol. Science Rev. 853, 855. In French in the text. On the concept of "garantisme," see Ruggiero, The History of European Liberalism (1927). 5 Ibid. 6 See, for example, Duguit, Traite de droit constitutionnel (1930), vol. 3, 58gff. 7 See Dietze, Two Concepts of the Rule of Law (1973), i6ff.; Fromont and Rieg, Introduction au droit allemand (\ 977), vol. i, 155; Krieger, The German Idea of Freedom (1957), 252ff.; Neumann, The Rule of Law (1986). 8 See, for example, Montesquieu, The Spirit of the Laws (1989), bk. 11, ch. 6, i 5 6ff. 9 From the seventeenth century onwards, absolute monarchical systems have been replaced, sometimes temporarily, by constitutional monarchy. See, for example, Vile, Constitutionalism and the Separation of Powers (1967). 10 See, for example, Burdeau, Le liberalisme (1979), 58; Gamble, An Introduction to Modern Social and Political Thought (1981), 75ff. 11 For example, see Bracton, De legibus et consuetudinibus Angliae (1968), vol. 2, 305-6. The question whether Bracton was a "constitutionalist" is more debatable. See Tierney, "Bracton on Government," (1963) Specu-

295 Notes to pages 188-91 lum 295, in Tierney, Church Law and Constitutional Thought in the Middle ^gKs(i979)> i v 12 See Friedrich, Constitutional Government and Democracy (1968); Strong, Modern Political Constitutions (1963), 15ff. 13 Ibid., 35. 14 According to Mcllwain, the essence of constitutionalism is that "it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law." Mcllwain, Constitutionalism, Ancient and Modern (1958), 21-2. 15 See n.26ff. and accompanying text. 16 See Mcllwain, supra, n.izj., 15. 17 See Grey, "Constitutionalism: An Analytical Framework," in Pennock and Chapman, ed., Constitutionalism (1979), 189, iQfyff. 18 See Mcllwain, supra, n.izj., 2; Wheare, Modern Constitutions (1966), 5. 19 See, for example, Russell, "Constitutions and Constitutionalism," in Kuper, ed., Political Science and Political Theory (1987), 38. 20 Montesquieu, supra, n.8, bk. 11, ch. 4, 155. 21 Section 16 of the 1789 Declaration of the Rights of Man and of the Citizen of August 26, 1789 reads: "Every community in which a separation of powers and a guarantee of rights is not provided for, wants a constitution." The principle of separation of powers is generally associated with Montesquieu, ibid. But see Vile, supra, n.g; Gwyn, The Meaning of the Separation of Powers (1965). 22 Vile, ibid., 13. 23 France provides an example of that proposition with the decree of 24 August 1790 on "refere legislatif." See Perelman, Le raisonnable et le deraisonnable en droit (1984), 58ff. 24 Vile, supra, n.g, 18. 25 See ibid., 33ff. 26 This formulation is drawn from Tremblay, "La theorie constitutionnelle canadienne et la primaute du droit," (1994) 39 McGillL.J. 101, 119.1 have elsewhere defended at length the contemporary value of the principle of legality and offered two other justifications for the maintenance of its constitutional character: the principle of formal justice and the fundamental right to autonomy and individual liberty. I do not intend to repeat these arguments here. See Tremblay, "La norme de retenue judiciaire et les 'erreurs de droit' en droit administratif: une erreur de droit? Au-dela du fondationalisme et du scepticisme," (1996) 56 R. du B. 141, 190-213. See also Chapter 6, n.3i. On the principle of legality in general, see Wade, Administrative Law (4* ed., 1977), 23. 27 A dramatic example is found in Re Manitoba Language Rights [1985] 2 S.C.R. 721, where the Supreme Court of Canada held that the whole body of invalid laws should remain operative (until retroactively re-enacted in

296 Notes to pages 192-5

28 29 30 31 32

33 34 35

36

37 38 39 40

41 42 43

accordance with the constitution) so as to uphold the rule of law. I shall not analyse that post-igSa case in detail. Yet it clearly supports the claim I am now making. See Chapter 8. See supra, Chapter 3. See Chapter 2. See Chapter 8. See, for example, Turpin, British Government and the Constitution (1985), 47. On this issue, see Tremblay, supra, n.26. The determination of what is "erroneous" is certainly debatable. Yet it must be erroneous from the point of view of the rule of law as justice as understood by the interpreter. See Chapter 8. See, for example, Pepin and Ouellette, Prindpes de contentieux administratif (2 nd ed., 1982), 44. See, for example, Wade, supra, n.26, 22. See, for example, Minogue, "Democracy," in Kuper, supra, n.ig, 4gff.; Raphael, Problems of Political Philosophy (rev. ed., 1976), i42ff.; Mayo, An Introduction to Democratic Theory (1960), 23. See, for example, Mayo, ibid., 27ff.; Bobbio, The Future of Democracy (1987), 24; Bryce, Modern Democracies (1924), vol. i: 23. That meaning is the oldest (see Raphael, ibid., 144) and corresponds to its ordinary meaning (see Mayo, ibid., 22-3). I shall follow Mayo, ibid., 6iff. That explains the often-made association between the doctrine of "popular sovereignty" or "sovereignty of the people" and democracy. See, for example, Mayo, supra, n.35, ch. 3. This characteristic is so basic today that many political theorists make it a part of the definition. See, for example, Schumpeter, "Two Concepts of Democracy," in Quinton, ed., Political Philosophy (1967), 153, 173-4. Mayo, supra, ^35, 65. See, for example, Mayo, ibid., I42ff.; Bobbio, supra, n.36, 25; Lively, Democracy (i975),43-4. Many democratic states do not recognize a right to vote for judges, criminals, and those who exclude themselves from society (such as monks). I do not have to determine whether these exceptions are well founded. It should be noted, however, that this interpretation of the principle of political equality has been refuted by the majority of the Supreme Court judges in the case Reference Fie Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158. The court had to decide whether the purpose of the "right to vote" enshrined in section 3 of the Charter was to guarantee "equality of voting" (the "one person-one vote" rule) or to guarantee "effective representation" for the determination of which equality is but one factor to be considered. The majority of the judges concluded that the purpose of section 3 was to guarantee "effective representation." Yet, in his powerful dissenting

297 Notes to pages 196-9 judgment, Mr Justice Cory, speaking for three judges, maintained that the right to vote involves that each vote must be relatively equal to every other vote. He sees that proposition as a fundamental prerequisite of democracy, and, as in other free countries, he believes that Canadian democracy has consciously and continuously moved towards greater equality among constituencies. Cory's understanding of section 3 is close to my description of the rule of law as justice. It sounds also much stronger both as a matter of principle and as an interpretation of Canadian political and legal tradition and history. But this is not the place to analyse that important case. 44 This corollary is linked to the issue of legitimacy of political decision. 45 Birch, "The Theory and Practice of Modern British Democracy," in Jowell and Oliver, ed., The Changing Constitution (1985), 78. 46 Birch, The British System of Government (4* ed., 1980), 21-2. 47 Dickson, "The Democratic Character of the Charter of Rights," in Morton, ed., Law, Politics and the Judicial Process in Canada (1984), 326. 48 See MacCormick, Legal Reasoning and Legal Theory (1978), 63ff., i3gff. 49 Hogg, Constitutional Law of Canada (2 nd ed., 1985), 257. It is interesting to note that Hogg's third edition has dropped the words "no matter how outrageous" in the otherwise identical formulation: Hogg, Constitutional Law of Canada (3rd ed., 1992), 301. Yet the significance of that amendment is difficult to access in the light of Hogg's constitutional theory. Perhaps it amounts to a mere matter of form, motivated by the avoidance of redundancy. 50 See Dicey's "external" and "internal" limitations on the sovereign power of Parliament. Dicey, An Introduction to the Study of the Law of the Constitution (io th ed., 1959), 76ff. 51 They were at the most "conventional." See Marshall, Constitutional Conventions (1984). 52 Dicey, supra, n.5o, 145. 53 See, for example, Switzmanv. Elbling [1957] S.C.R. 285, in which a provincial law regulating free expression through the regulation of houses used to propagate communism was held invalid on the ground of division of powers. See, generally, Chapter 3. 54 Bryce, supra, n.36, 22. 55 Bickel, The Least Dangerous Branch (2 nd ed., 1986), 16. 56 Mayo, supra, n.35, 185. 57 A powerful argument in favour of a distinction within the kind of political questions a court could decide has been provided by Dworkin in Taking Rights Seriously (1977), ch. 4. 58 See, for example, the thesis ofJ.H. Ely in Democracy and Distrust (1980), chs. 4-6, especially at 101-102; Monahan, Politics and the Constitution (1987), ch. 6. 59 Bodin, Six Books of the Commonwealth (1955).

298 Notes to pages 199-202 60 61 62 63 64 65 66 67

Hobbes, Leviathan (1987). Rousseau, The Social Contract and Discourses (1950). Austin, The Province of Jurisprudence Determined (2 nd ed., 1970). See, for example, Rousseau, supra, n.6i, bk. 2, i. Blackstone, Commentaries on the Laws of England I (1765), 49. Quoted in Dicey, supra, n.5o, 41. Dicey, ibid., 7iff. Ibid., 72. Dicey even maintained that " 'Limited Sovereignty,' in short, is in the case of a Parliamentary as of every other sovereignty, a contradiction in terms." Ibid., 68. 68 Ibid., 73-5. 69 Ibid., 75. 70 For example, the series of post-Drybones cases in which the Supreme Court, on the ground of the sovereignty of Parliament, has been reluctant to apply the Canadian Bill of Rights so as to protect the individual rights and freedoms might reveal some commitments toward the democratic principle. Moreover, certain interpretations of repressive law, such as the Criminal Code, might also reveal some commitments to democratic values at the expense of liberal values. 71 See, for example, Horowitz, "Conservatism, Liberalism and Socialism in Canada: An Interpretation," (1966) 32 Can.]. Econ. 143; Lipset, The First New Nation (1963); Grant, Lament of a Nation (1965); Hartz, The Foundation of New Societies (1964). That interpretation of Canadian political tradition has been accepted by a certain number of constitutional theorists. See, for example, Monahan, supra, n.58, giff.; Elliot, "The Supreme Court of Canada and Section i - The Erosion of the Common Front," (1987) 12 Queen'sLJ. 277. 72 For example, see Horowitz, ibid. Also, Monahan, ibid., 92: "In general terms, the dominant ideology in both Canada and the United States can be described as essentially liberal or 'individualist.' " Elliot says: "Canada, like most Western democracies, has a strong liberal tradition," ibid., 281. Yet one may wonder whether Elliot and Monahan, for example, following Lipset, ibid., have not exaggerated the significance of the "Tory touch" within Canadian liberalism. See Horowitz, ibid. For example, Charles Taylor has recently gone so far as to claim that contemporary English Canada is philosophically committed to "procedural liberalism," according to which society must remain neutral on the good life. See Taylor, "Shared and Divergent Values," in Watts and Brown, ed., Options for a New Canada (1991), 66ff. I do not wish to enter into this debate here. However, as I shall argue below, since the end of the nineteenth century, many values traditionally associated with socialism, collectivism, and conservatism have been advocated by liberals on the grounds or their own basic commitments. This has led to the recognition of the legitimacy of state

299 Notes to pages 202-5 socio-economic intervention, distributive justice, and social welfare, for instance. 73 See, for example, Yalden, "Liberalism and Canadian Constitutional Law: Tensions in an Evolving Vision of Liberty," (1988) 47 U. of Tor. Fac. L. Rev. 132; Macklem, "Constitutional Ideologies," (1988) 20 Ott. L. Rev. 117, lagff. 74 See Ruggiero, supra, n_4, 347ff.; Gamble, supra, n.io, 66ff.; Siedentop, "Two Liberal Traditions," in Ryan, ed., The Idea of Freedom (1979), 153; Cranston, "Liberalism," in Edward, ed., The Encyclopedia of Philosophy (1967)75 Compare, for example, Hayek, The Constitution of Liberty (1960) and Nozick, Anarchy, State, and Utopia (1974) with Rawls, A Theory of Justice (1971) and Dworkin, "Liberalism," in Dworkin, A Matter of Principle (1985). 76 For example, the conception of human nature and its relationship with society might also underlie the principle of constitutionalism and democracy. 77 See, generally, Arblaster, The Rise and Decline of Western Liberalism (1984). See also Chapter 5, n.'j. 78 This has been a central position within liberal tradition, at least since Locke's Two Treatises of Government (1967), vol. 2, ch. 6, sec. 57, 3O5ff. 79 See Berlin, "Two Concepts of Liberty," in Quinton, supra, n.4O, 141. 80 See, for example, ibid., 143. 81 This may also be traced as far back as Locke, supra, n.78, sec. 54. 82 See, for example, Rawls's formulation in supra, n.75, 60. 83 See supra, sec. 2. 84 Classical liberalism may be associated with the liberal ideology developed from the seventeenth to the mid-nineteenth centuries. 85 Perhaps under the influence of Mill's On Liberty. See Mill, Utilitarianism, On Liberty and Considerations on Representative Government (1972), 81. 86 See, for instance, Rawls, "The Priority of Right and Ideas of the Good," (1988) 17 Phil. & Pub. Aff. 251, 262-3. One philosopher has used the phrase "justificatory neutrality." See, for example, Kymlicka, "Liberal Individualism and Liberal Neutrality," (1989) 99 Ethics 883, 883-4. Certain authors who use the phrase "concrete neutrality" also seem to designate that principle. See, for example, de Marneffe, "Liberalism, Liberty and Neutrality," (1990) 19 Phil. & Pub. Aff. 253; Cohen-Almagor, "Between Neutrality and Perfectionism," (1994) 7 C.J.L.J. 217, 222.1 have used the phrase "neutrality of governmental action" for Charter purposes in "Le Canada de la Charte: une democratic liberal e neutre ou perfectionniste," (1995) 40 McGillL.J. 487. 87 That justification may be associated with the thought of Rant and Mill. See Larmore, Patterns of Moral Complexity (1987), 76-84; Larmore, "Political Liberalism," (1990) 18 Political Theory 339, 342-6. Moreover, Dworkin's

300 Notes to pages 205-6 theory of liberalism bases the principle of neutrality upon the fundamental idea of equality, which is akin to (although not as radical as) Kant's idea of moral autonomy. For Dworkin, the question "what does it mean for the governement to treat its citizens as equals?" is "the same question of what it means for the governement to treat all its citizens as free, or as independent, or with equal dignity." He adds, "in any case, it is a question that has been central to political theory at least since Kant." For him, the question may be answered in two different ways, one of which emphasizes governmental neutrality. "The first theory of equality supposes that political decisions must be, so far as is possible, independent of any particular conception of the good life, or of what gives value to life. Since the citizens of a society differ in their conceptions, the government does not treat them as equals if it prefers one conception to another." Dworkin, supra, n.75, 191. According to Dworkin, treating the citizens as equals means treating them with equal concern and respect, which in turn means that human beings "are capable of forming and acting on intelligent conceptions of how their lives should be lived." Dworkin, supra, n_57, 272. Within contemporary liberal theory, many authors have sought to justify the principle of neutrality on other grounds, some of which are conceived as "neutral," that is, formal or procedural, as "political," or as "ethical." For a description and a criticism of these other grounds, see da Silveira, "Quel avenir pour le principe de neutralite?" (1993) 3 Lekton 65. See also, more generally, Tremblay, ibid. 88 See, for example, Mill, supra, n.85_ See also Feinberg, Harm to Others (1984). Whether this principle should be broad enough to include mere offences, and whether it should be amended so as to accommodate some paternalistic interference, remains debated within liberal theory. On the offence issue, see, for example, Feinberg, Offense to Others (1985); Alexander, "Harm, Offense, and Morality," (1994) C.J.L.J. 199. On the issue of paternalism, see, for example, Hart, Law, Liberty and Morality (i9 6 3). 32-489 The works of Hayek constitute a good contemporary example of that ideology. See, for example, Hayek, The Road to Serfdom (1958), in which he explicitly maintains that an interventionist state cannot be impartial for it must impose upon individuals its moral views and opinions. On the idea of legal certainty, see, generally, Chapter 5, "The Rule of Law as Certainty." 90 See, for example, Dworkin, supra, ^75, i95ff.; Rawls, supra, ^75. Also see Green, "Lecture on Liberal Legislation and Freedom of Contract," (1881), in Eccleshall, British Liberalism (1986), 18off.; Hobhouse, Liberalism (1911), in Eccleshall, ibid., ig7ff.; Keynes, The General Theory of Employment, Interest, and Money (1936), in Eccleshall, ibid., 22off. 91 See, for example, Hobson, The Crisis of Liberalism (1909), in Eccleshall, ibid., 2O4ff.

301 Notes to pages 206-9 92 Most of these rights have been recognized in the International Covenant on Economic, Social and Cultural Rights, promulgated for Canada in 1976. 93 See, in general, Chapter 8. Indeed, as I said, such proposition does not purport to describe an empirical fact scientifically demonstrable. It is an interpretation of the body of cases in various areas such as administrative law, labour law, and so on. 94 See Chapter 3, "The Presumptions of Intent" and "The Legal and Constitutional Character of the Principles." Also, see Willis, "Statutory Interpretation in a Nutshell," (1938) 16 C.B.R. i. 95 I suspect that this assertion will be received with scepticism by a number of contemporary constitutional theorists. However, my claim is not that the courts have generally taken the lead in imposing concrete socio-economic goals and rights, although one could certainly find good examples of such leadership (for instance, Abrahams v. The Attorney General of Canada, [1983] i S.C.R. 2). Rather, my point is that when Parliament has taken the initiative in promoting social justice, the courts have gradually recognized the moral legitimacy of such action and, accordingly, have collaborated with the state in this area. That is particularly obvious in administrative and labour law. See, for example, Evans, Janish, Mullan, and Risk, Administrative Law (3rd ed., 1989), 390. See also, Cote, Interpretation des lois (2 nd ed., 1990), 471-3 and 444. 96 See Chapter 8. 97 Hodge v. The Queen (1883) 9 App. Gas. 117, 132; Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick [1892] A.C. 437, 441; Attorney-General for Canada v. Attorney-General for Ontario (The Labour Conventions case) [1937] A.C. 326, 35iff.; Attorney General of Nova Scotia v. Attorney General of Canada [ 1951 ] S.C.R. 31; /te Resolution to Amend the Constitution [1981] i S.C.R. 753, go5ff., 8i7ff. 98 [1981] i S.C.R. 753. 99 Ibid., 821. 100 Ibid., 844-5. 101 Ibid., 805-6. 102 Ibid., 803. 103 Ibid., 804. 104 Ibid. 105 [1985] i S.C.R. 721. 106 [1981] i S.C.R. 753. 107 [1985] i S.C.R. 721, 751. 108 Ibid., 752. 109 Wheare, Federal Government (1963), 10; Dicey, supra, n.5O, 140; Riker, Federalism: Origin, Operation, Significance (1964), 11; Sawer, Modern Federalism (2 nd ed., 1976), i. no For example, Hodge v. The Queen (1883) i App. Gas. 117; Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick [1892] A.C. 437.

302 Notes to pages 209-15 111 See, for example, Amax Potash Ltd. v. Saskatchewan [1977] 2 S.C.R. 576 (the institution of judicial review); Beauregardv. Canada [1986] 2 S.C.R. 56 (the recognition of the independence of the judiciary); Attorney General of Nova Scotia v. Attorney General of Canada [1951] S.C.R. 31 (interdiction of interlegislative delegation). CHAPTER EIGHT

1 See, for example, Tremblay, Precis de droit constitutionnel (1982), 45 (principle of separation of powers is not a legal principle but a political precept); Hogg, Constitutional Law of Canada (3rd ed., 1992), 770. 2 See, for example, Brun and Tremblay, Droit constitutionnel (2 nd ed., 1990), 687-8; Hogg, ibid. 3 I have in mind the set of linguistic rules, rules of rational discourse, common sense, and so on. 4 [1985] i S.C.R. 721. 5 "52. ( i ) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." 6 [1985] i S.C.R. 721,749. 7 Ibid., 750. 8 Ibid., 752. 9 For further criticisms, see Tremblay, "La theorie constitutionnelle canadienne et la primaute du droit," (1994) 39 McGill L.J. 101. See also Chapter 2, "The Explicit Versions of the Doctrine." 10 Wade and Phillips, Constitutional and Administrative Law (gth ed., 1977), 89. See my comments in Chapter 2, n.57. 11 Dworkin, Taking Rights Seriously (1977), io5ff. 12 Dicey, An Introduction to the Study of the Law of the Constitution (i oth ed., !959)» 34-513 See Chapter 7 "The Democratic Principle." 14 See Chapter 3, "The Antecedent Rules with Respect to the Interpretation of Legislation." 15 Other considerations deriving from the rule of law as justice might also guide the interpretation of the concept of "intention," such as, for example, the principle of legal certainty. 16 Boucher v. The King, [1951] S.C.R. 265, 286-7. See Chapter 3, "The Presumptions of Intent." 17 Boucher, ibid., 286. 18 Roncarelli v. Duplessis, [1959] S.C.R. 121, 140-1. 19 See, for example, Wade, Administrative Law (4* ed., 1977), 348ff. 20 See Chapter 7, "The Constitutional Principle." 21 See, for example, the principle stated by Lord Reid in Padfieldv. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997, 1030.

303 Notes to pages 216-22 22 23 24 25 26

27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48

[1979] Ch. 344 (Sir Robert Megarry V.-C.). Ibid., 357. Ibid., 367. [1959] S.C.R. 121, 140. Indeed, as I said in Chapter 7, a comprehensive construction of the liberal principle in Canada before 1982 is not an easy task and any attempt at one remains a matter of debate. Yet it is likely that the liberal principle constitutive of the rule of law as justice has evolved in parallel with liberal theory within Western political tradition and that it has been altered in the course of time. Moreover, I think that it is reasonably clear that, at least until about 1960, the liberal principle was generally conceived, in Canadian law, through the prism of classical liberalism. See Chapter 7, nn.g3ff. and accompanying text. [1959] S.C.R. 121, 141. [1925] A.C. 578. Ibid., 604. Ibid., 613. (1598) 5 Co. Rep. 99 b, 100 a, 77 E.r. 209, in Wade, supra, n.ig, 353. See Wrights'Canadian Ropes Ltd. v. Minister of National Revenue, [1946] S.C.R. 139. [1969] 2 A.C. 147. Turpin, British Government and the Construction (1985), 301. [1969] 2 A.C. 147, 199. Ibid., 208. See Wade, "Constitutional and Administrative Aspects of the Anisminic case," (1969) 85 L.Q.R. 198. Ibid., 199. In Crevierv. Attorney General for Quebec, [1981] 2 S.C.R. 220, the Supreme Court held that a provincial privative clause was unconstitutional. [*953] 2 S.C.R. 140. Section 36 of the act referred to section 17 of the Public Inquiry Commission Act, R.S.Q. 1941, c. 9. [1953] 2 S.C.R. 140, 155. The translation comes from [1953] 4 D.L.R. 161, 175. See, arguably, Farrellv. Workman's Compensation Board (B. C.), [1962] S.C.R. 48. See, for example, Morissette, "Le controle de la competence d'attribution: these, antithese etsynthese," (1986) 16 R.D.U.S. 591, 6i7ff. [1973] S.C.R. 120. Ibid., 127.1 do not claim that the criteria accepted by the court to determine what lies inside and outside a tribunal's jurisdiction were adequate. Ibid. Ibid., 126. Emphasis added. These grounds for judicial review have been explained, limited, or confirmed in many Supreme Court decisions. See, for example, Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R.

304 Notes to pages 222-3 227; Syndicat des employes deproduction du Quebec et del'Acadiev. Canada Labour Relations Board, [1984] 2 S.C.R. 412; Blanchardv. Control Data Canada Ltd., [1984] 2 S.C.R. 476; U.E.S. Local 2cj8v. Bibeault, [1988] 2 S.C.R. 1048; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] i S.C.R. 614; CAIMAWv. Paccar of Canada Ltd., [1989] 2 SC.R. 983; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Lester (W.W.) (icjjS) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing andPipefittingIndustry, Local 740, [1990] 3 S.C.R. 644; Domtarlnc. v. Quebec (Commission d'appel en matiere de lesions professionnelles), [ 1993] 2 S.C.R. 756. 49 Yves-Marie Morissette correctly wrote in 1986 that the notion of jurisdiction "permet depuis des lustres de dejouer les clauses privatives les plus musclees et de leur faire dire parfois le contraire exactement de ce qu'un profane de bonne foi convenablement scolarise penserait y lire." Morissette, supra, n.43, 597. Yet I argue elsewhere that the determination of the legislative intent with respect to statutes protected by a "privative clause" is more complex and more controversial than the "strict" reading of the words of the privative clause. See Tremblay, "La norme de retenue judiciaire et les 'erreurs de droit' en droit administratif: une erreur de droit? Au-dela du fondationalisme et du scepticisme," (1996) 56 R. du B. 141, especially 214-24. 50 Of course, many constitutional theorists would explain these decisions by reference to other principles, such as that of legality. See nn_52ff. and accompanying text. 51 Laskin, "Certiorari to Labour Code: The Apparant Futility of Privative Clauses," (1952) 30 C.B.R. 986, 989-91. 52 Wade, supra, n.36, 200. Emphasis added. See also at 201: "The objection to ouster clauses is that they are repugnant to a coherent legal system. The courts rightly regard it as their task to keep the system coherent. But it can hardly be denied that they do this by looking at what the intention of Parliament ought to be rather than at what it is." See also Bryden, "Canadian Administrative Law in Transition: 1963-1988," (1988) 23 U.B.C.L. Rev. 147, 158-64; "Canadian Administative Law: Where We've Been," (1991) 16 Queen'sLJ. 7, i8ff. 53 Walker, "Dicey's Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with Freedom of Religion," (1985) 59 A.L.J. 276, 282. 54 See, for example, ibid., 281: "The courts are constructing an entrenched common law doctrine of the separation of powers." 55 In another context, recently, the Supreme Court said that "there cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice." British Columbia Government Employees' Unionv. A.G. of British Columbia, [1988] 2 S.C.R. 214, 230.

305 Notes to pages 224-6 56 Although it is not the place to debate that issue here, I must say that I attach greater weight to the principles of legality, separation of powers, formal justice, legal certainty, coherence, equality before the law, equity, liberty, and autonomy, for example, than the courts actually seem to do in that specific area of law. In particular, I believe that the principles of the rule of law as justice, correctly understood, authorize the courts to review, not only "jurisdictional" errors of law and "patently unreasonable" errors of law, but all misinterpretations of statutory provisions made by administrative tribunals. That justifies judicial review of misinterpretations of a statutory provision made within the conferred jurisdiction. Of course, one might believe that my view is wrong and that the Supreme Court is right not to attach too much weight to the constitutive principles of the rule of law. But such belief needs justification. The courts have put forward four considerations: "interpretation pluralism," "parliamentary intention," "expertise," and "efficiency." See the cases, supra, n.48. In Tremblay, supra, n.4g, I argue at length that these arguments are either insufficiently weighty or internally incoherent. Accordingly, they cannot support the norm of curial deference with respect to "mere error of law" made by administrative tribunals within their own jurisdiction. One must therefore find other and better arguments. Meanwhile, the norm of curial deference in administrative law should be invalidated for it is unjustified. It can be explained only if we assume that the significance of basic constitutional values essential to a free and democratic society has been lost, confused, or obscured by a set of overvalued goals. For a detailed discussion, see Tremblay, ibid. 57 Bakery and Confectionery Workers Internanonal Union of American. White Lunch Ltd., [1966] S.C.R. 181, 292. 58 We could take as examples the large number of cases dealing with "personal freedoms." On the interpretation of penal statutes, see Cote, Interpretation des lois (2 nd ed., 1990) 45iff. 59 [1962] S.C.R. 681. 60 One of the majority judges disagreed on the issue whether the definition was exhaustive. 61 Section 150(8) of the Criminal Code of Canada read as follows: "For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene." 62 [1868] L. r. sq.b. 360. 63 [1962] S.C.R. 681,704. 64 Ibid., 705. 65 [1964] S.C.R. 251. 66 (1963) 2 C.C.C. 103, 42 W.W.R. 65.

306 Notes to pages 226-7 67 Ibid., 116; 79-80. 68 On this issue, see, for example, Mill, On Liberty, in Utilitarianism, On Liberty and Considerations on Representative Government, ed. H.B. Acton (1972); Dworkin, "Do We Have a Right to Pornography?" in Dworkin, A Matter of Principle (1985), ch. 17. Section 150(8) of the Criminal Code (now section 163(8) of the Criminal Code, R.S.C. 1985, c. 0-46) has been examined in various Supreme Court decisions. See, for example, Dechowv. The Queen, [1978] i S.C.R. 951; Germainv. The Queen, [1985] 2 S.C.R. 241; Towne Cinema Theatres Ltd. v. The Queen, [1985] i S.C.R. 494. In R. v. Butler, [1992] i S.C.R. 452, the majority of the judges expressed the idea that the "degree of harm" that may flow from exposure to certain forms of pornography should be a constitutive element of the norm by virtue of which the courts should determine whether the community as a whole would tolerate others to see them. But see the important criticisms of Butler m Cameron, "Abstract Principle v. Contextual Conceptions of Harm: A Comment on R. v. Butler," (1992) 37 McGillL.J. 1135. The author argues that the definition of obscenity has expanded by judicial interpretation after 1983 at the expense of freedom of expression. That shift, being justified by egalitarian ideals, namely gender equality, constitutes a departure from precedent. My own criticism of Butler is briefly stated in Tremblay, "Le Canada de la Charte: une democratic liberale neutre ou perfectionniste?" (1995) 40 McGillL.J. 487, 508-21. For a criticism of the liberal conception of obscenity law, see Dyzenhaus, "Should Community Standards Determine Obscenity?" 72 C.R. (3d) 49; "Obscenity and the Charter: Autonomy and Equality," (1991) i C.R. (4*) 367; "Liberalism, Pornography and the Rule of Law," in Devlin, ed., Canadian Perspectives on Legal Theory (1991), 13. 69 Until 1982, that process of constitutional amendment required an act of the imperial Parliament. See generally, Hogg, supra, n.i, ch. 4. 70 Support for the orthodox approach is found in The Law Society of Upper Canada v. Skapinker, [1984] i S.C.R. 357, 365. 71 See supra, Chapter 3, the sections "Quasi-constitutional Legislation," " 'Special Nature' Legislation," and "The Presumptions of Intent." 72 We all know that many states which have unilaterally declared their independence have disregarded the existing constitution and promulgated a new written constitution. We also know that it has often happened that the judiciary of the newly independent states has recognized the validity of the new constitution. The most famous example, I think, remains the case of American independence. See, for example, the decision of Chief Justice Marshall in Marburyv. Madison, i Cranch 137 (1803). But see also the cases of Pakistan in The State v. Dosso, (1959) i Pakistan L.R. 849; Uganda in Ugandan. Commissioner of Prisons, ex. p. Matovu, [1966] E.A. 514; and Rhodesia in Mazimbamutov. Lardner-Burke N.O. and Others, 1968 (2) S.A. 284. The most important question, for our purposes, is to determine

307 Notes to pages 228-30

73

74

75 76 77

whether such judicial recognition has been a mere matter of "fact," legally arbitrary, dictated by personal or political motivation, or whether it has been justified on the basis of existing principles of law. In the first hypothesis, the judicial recognition of the new constitution would not be "legal." It would not be according to law, for the judiciary would expressly depart from the existing body of constitutional law. It would apply the norms of the new constitution without legal authorization. Insofar as the rule of law is reduced to the principle of legality, as conceived within orthodox theory, the judicial decision would be legally mistaken. But in the second hypothesis, judicial recognition of the new constitution could be legally justified. The judiciary could have good legal reasons to recognize the new constitution. My own view, of course, is that there are legal principles that guide the process of determining whether to recognize the new constitution or not and that these principles come within the rule of law as justice. To that extent, the alternative theory allows the judiciary to see the issue of unilateral declaration of independence in a country committed to the rule of law in a new light. See nn.7gff. and accompanying text. In an interesting article, Robin Elliot came to similar conclusions through a reasoning which does not refer to the concept of the rule of law. Elliot, "Rethinking Manner and Form," (1991) 29 O.H.L.J. 215, 236ff. Yet the values of the legal and political culture according to which Elliot claims that the courts should determine whether a self-imposed "manner and form" requirement should have some legal effect might be (and, I believe, should be) conceived as part of the values expressed by the principles of the rule of law as justice. To regard them as such might even facilitate the task of convincing the courts to adopt Elliot's more flexible approach because the assessment of the relative weight of the values underlying the issue would not be conceived as a mere matter of personal and subjective preferences. It would be regarded as a matter of law. The values themselves would not merely be "moral" or "political" considerations: they would be legal reasons for decision and, accordingly, the decision would be seen as according to lam See, for example, the "reading down" doctrine by which the courts may use a given constitutional norm both as a standard of validity and as a standard of construction. See Hogg, supra, n.i, 393ffSee, for example, Atiyah and Summers, Form and Substance in AngloAmerican Law (1987), 316. Insurance Corporation of British Columbian. Heerspink, [1982] 2 S.C.R. 145, 157-8. Emphasis added. That interpretation of the manner and form doctrine might find some support in Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R-525, 563, where the Supreme Court wrote: "Both the Canadian Bill of Rights and s. 110 of the North-West Territories Act have a constitutional nature. It may be that where a statute is of a constitutional nature and governs legislation

308 Notes to pages 230-4

78

79 80 81 82

83

generally, rather than dealing with a specific statute, it can impose requirements as to the manner and form. But where a statute has no constitutional nature, it will be very unlikely to evidence an intention of the legislative body to bind itself in the future. That is the case here." The phrase "constitutional nature" seems to refer, in that passage, to constitutional norms understood in a material sense. It does not follow that these norms can never guide the interpretation of other norms. It may only mean that the courts will not use them as a reason to control the reasonably clear legislative intention. See n.72. See Chapter 3. See n_72 and accompanying text. I regard Eeckelaar, "Principles of Revolutionary Legality," in Simpson, ed., Oxford Essays in Jurisprudence (1973), as a good introduction to this issue. The obiter dictum of Lord Sankey in British Coal Corporation v. The King [1935] A.C. 500, 520, with respect to the application of section 4 of the Statute of Westminster to the Dominion of Canada, is significant. Lord Sankey said that the power of the imperial Parliament to pass on its own initiative any legislation extending to Canada "remains in theory unimpaired." He added: "Indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s. 4 of the Statute." However, he then concluded: "But that is theory and has no relation to realities." Lord Denning, in Blackburnv. Attorney-General, [1971] i W.L.R. 1037, 1040, agreed with that idea. He said that while we have all been brought up to believe that, in "legal theory," one Parliament cannot bind another and that no act is irreversible, "legal theory does not always march alongside political reality." He went on to use the Statute of Westminster as an example and concluded: "Freedom once given cannot be taken away. Legal theory must give way to practical politics." My view is that legal and constitutional theory must give coherent meaning to the idea that "legal theory must give way to practical politics" within the process of constitutional adjudication. It must recognize that the practice of taking into account the contextual political "reality" to justify a judicial departure from "abstract law" and "legal theory" reveals commitments to a deeper legal and constitutional theory. I submit, of course, that the rule of law as justice is the key to understanding that theory. CONCLUSION

1 It should be noted also that the "law" cannot be found in an objective "moral" world such as "natural law." 2 I use the term in Kuhn's sense. Kuhn, The Structure of Scientific Revolution (2 nd ed., 1970), ch. 2.

309 Notes to pages 234-6 3 Hogg, Canada Act 1982, Annotated (1982), 9. 4 Gibson, The Law of the Charter: General Principles (1986), 67. 5 See Re Resolution to Amend the Constitution [1981] i S.C.R. 753; Law Society of Upper Canada v. Skapinker [ 1984] i S.C.R. 357. 6 U.K. Stats. 1982,0. 11. 7 Section 33(1) provides that "Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter." The process of constitutional amendment is laid down in sections 38ff. of the Constitution Act, 1982. 8 See, for example, section i of the Charter: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." 9 A tradition refers to the body of principles and doctrines (including their values) that can be inferred from continuous and accumulated judicial practice and discourse. See Krygier, "Law as Tradition," 5 Law and Philosophy 237(1986); Maclntyre, After Virtue (1981), 206-7.

This page intentionally left blank

Bibliography

BOOKS

Adams, H., Searle, L., ed. Critical Theory since 1965. Tallahassee, Fla.: University Press of Florida 1986. Allan, T.R.S. Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism. Oxford, U.K.: Clarendon Press 1993. Allen, C.K. Law in the Making (7* ed.). Oxford, U.K.: Clarendon Press 1964. Anson, W.R. The Law and Custom of the Constitution, vol. i. Oxford, U.K.: Clarendon Press 1922. Aquinas, T. The Summa Theologica, tr. Fathers of the English Dominican Province, rev. DJ. Sullivan. Chicago, 111.: Encyclopaedia Britanica 1952. Arblaster, A. The Rise and Decline of Western Liberalism. Oxford, U.K.: Basil Blackwell 1984. Archbold, J.F. Pleading, Evidence and Practice in Criminal Cases (32 nd ed.), T.R.F. Butler and M. Garsia, ed. London: Sweet and Maxwell 1949. Aristotle, Ethica Nicomachea, tr. W.D. Ross, in Ross, W.D., ed., The Works of Aristotle, vol. 9, London: Oxford University Press 1954. - The Organon, tr. H. Tredennick. London: Heinemann 1938. - The Politics, tr. T.A. Sinclair, rev. T.J. Saunders. Harmondsworth, U.K.: Penguin Books 1986. Association of American Law Schools, ed. Select Essays in Anglo-American Legal History. London: Wildy and Sons 1968. Atiyah, P.S., Summers, R.S. Form and Substance in Anglo-American Law, A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions. Oxford, U.K.: Clarendon Press 1987. Aubert, V. In Search of Law: Sociological Approaches to Law. Oxford, U.K.: Martin Robertson 1983. Audard, C., Dupuy, J.-P., Seve, R., ed. Individu et justice sociale: autour dejohn Rawls. Paris: Seuil 1988.

gi2

Bibliography

Augustine (Saint). The Teacher, the Free Choice of the Will, Grace and Free Will, tr. R.P. Russell. Washington: Catholic University of America Press 1968. Austin, J. The Province of Jurisprudence Determined (2 nd ed.). New York: Burt Franklin 1970. Baker, J.H. An Introduction to English Legal History (2 nd ed.). London: Butterworths 1979. Barker, E., tr. The Politics of Aristotle. Oxford, U.K.: Clarendon Press 1946. Bayefsky, A., ed. Legal Theory Meets Legal Practice. Edmonton: Academic Printing and Publishing 1988. Beaudoin, G.A. La constitution du Canada. Montreal: Wilson and Lafleur 1990. Beaudoin, G.A., Tarnopolsky, W.S., ed. Charte canadienne des droits et libertes. Montreal: Wilson and Lafleur/Sorej 1982. Bell,J. Policy Arguments in Judicial Decisions. Oxford, U.K.: Clarendon Press 1983. Bennion, F.A.R. Statutory Interpretation: Codified, with a Critical Commentary. London: Butterworths 1984. Bentham, J. An Introduction to the Principles of Morals and Legislation, ed. J.H. Burns. London: Methuen 1982. - Of Laws in General, ed. H.L.A. Hart. London: Athlone Press 1970. Berger, T.R. Fragile Freedoms, Human Rights and Dissent in Canada. Toronto: Clarke, Irwin 1982. Berman, H.J. Law and Revolution, The Formation of the Western Legal Tradition. Cambridge, Mass.: Harvard University Press 1983. Berman, H.J., Greiner, W.R. The Nature and Functions of Law (4* ed.). Mineola, N.Y.: Foundation Press 1980. Bickel, A.M. The Least Dangerous Branch, The Supreme Court at the Bar of Politics (2 nd ed.). New Haven, Conn.: Yale University Press 1986. Birch, A.H. The British System of Government (4* ed.). London: George Allen and Unwin 1980. Blackstone, W. Commentaries on the Laws of England. Oxford, U.K.: Clarendon Press 1765. Bobbio, N. The Future of Democracy, A Defence of the Rules of the Game, tr. R. Griffin, ed. R. Bellamy. Oxford, U.K: Polity Press 1987. Bodenheimer, E. Jurisprudence, The Philosophy and Method of the Law (rev. ed.). Cambridge, Mass.: Harvard University Press 1974. Bodin, J. Six Books of the Commonwealth, tr. MJ. Tooley. Oxford, U.K.: Basil Blackwell 1955. Bracton. De Legibus et Consuetudinibus Angliae, tr. S.E. Thorne, ed. G.E. Woodbine. Cambridge, Mass.: Published in association with the Selden Society by the Belknap Press of Harvard University Press 1968. Bradley, F.H. Essays on Truth and Reality. Oxford, U.K: Oxford University Press 1914. Browne. On the Entrenchment of a Bill of Rights (paper prepared for and distributed by the government of Manitoba to the First Ministers' Conference on the Constitution, doc. n° 800-14/067, 8-12 Sept. 1980).

313

Bibliography

Brownlie, I., ed. Basic Documents on Human Rights. Oxford, U.K.: Clarendon Press 1971. Brun, H., Tremblay G. Droit constitutionnel. Cowansville, Que.: Les Editions Blais 1982. - Droit constitutionnel (2 nd ed.). Cowansville, Que.: Les Editions "Won Blais 1990. Bryce,J. Modern Democracies. New York: MacMillan 1924. Burdeau, G. Le liberalisme. Paris: Seuil 1979. Cardozo, B.N. The Nature of the Judicial Process. New Haven, Conn.: Yale University Press 1921. Carrio, G. Legal Principles and Legal Positivism. Buenos Aires: Abeledo-Perrot W1Chevrette, R, Marx, H. Droit constitutionnel, notes et jurisprudence. Montreal: Les Presses de 1'Universite de Montreal 1982. Cicero, De Finibus Bonorum et Malorum (2 nd ed.), tr. H. Rackman. Cambridge, Mass.: Harvard University Press 1951. - On the Commonwealth, tr. G.H. Sabine, S.B. Smith. Indianapolis, Ind.: BobbsMerril 1929. Coke, Sir Edward. The Fourth Part of the Institutes of the Laws of England. London: W.Clarke 1817. Commission internationale de juristes (N.S. Marsh). Le principe de la legalite dans une societe libre. Geneva: Commission internationale de juristes 1959. Connolly, W.E. The Terms of Political Discourse (2 nd ed.). Oxford, U.K.: Martin Robertson 1983. Cote, P.A. Interpretation des Ms. Cowansville, Que.: Les Editions Yvon Blais 1982. - Interpretation des Ms (2 nd ed.). Cowansville, Que.: Les Editions Yvon Blais 1990. Cross, R. Statutory Interpretation (2 nd ed.), ed.J. Bell, Sir G. Engle. London: Butterworths 1987. De Smith, S.A., Constitutional and Administrative Law. Harmondsworth, U.K.: Penguin Books 1971. Devlin, R.F., ed. Canadian Perspectives on Legal Theory. Toronto: Emond Montgomery 1991. Dias, R.W.M. Jurisprudence (3rd ed.). London: Butterworths 1970. Dicey, A.V. An Introduction to the Study of the Law of the Constitution (io t h ed.), introduction by E.C.S. Wade. London: MacMillan 1959. Dickinson, J. Administrative Justice and the Supremacy of Law in the United States. Cambridge, Mass.: Harvard University Press 1927. Dietze, G. Two Concepts of the Rule of Law. Indianapolis, Ind.: Liberty Fund 1973. Dilthey, W. Introduction to the Human Sciences, ed. R.A. Markkrel and F. Rodi. Princeton, N.J.: Princeton University Press 1989. Dowrick, F.E. Justice According to the English Common Lawyers. London: Butterworths 1961. Driedger, E.A. The Construction of Statutes. Toronto: Butterworths 1974. - The Construction of Statutes (2 nd ed.). Toronto: Butterworths 1983. Duguit, L. Traite de droit constitutionnel (3rd ed.). Paris: Fontemoing 1927.

314 Bibliography Dussault, R. Traite de droit administratif canadien et quebecois. Quebec City: Presses

de 1'Universite Laval 1974. Dworkin, R. Law's Empire. London: Fontana Press 1986. - A Matter of Principle. Cambridge, Mass.: Harvard University Press 1985. - Taking Rights Seriously. Cambridge, Mass.: Harvard University Press 1977. Eagleton, T. Literary Theory, An Introduction. Oxford: Basil Blackwell 1983. Eccleshall, R. British Liberalism, Liberal Thought from the 1640 's to 1980 's. London:

Longman 1986. Eccleshall, R., Geoghegan, V., Jay, R., Wilford, R. Political Ideologies, An Introduction. London: Hutchinson 1984. Edgar, S.G.G., ed. Craies on Statute Law (7 th ed.). London: Sweet and Maxwell !97iEdward, P., ed. The Encyclopedia of Philosophy. New York: Macmillan 1967. Eisenberg, M.A. The Nature of the Common Law. Cambridge, Mass.: Harvard University Press 1988. Ely, J.H. Democracy and Distrust, A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press 1980. Esser, J. Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts. Tubingen 1956. - Vorverstdndnis und Methodenwalh in der Rechtsfindung. Frankfurt: Athenaum Verlag 1970.

Feinberg, J. Harm to Others (The Moral Limits of the Criminal Law Series, vol. i). New York: Oxford University Press 1984. - Offense to Others (The Moral Limits of the Criminal Law Series, vol. 2). New York: Oxford University Press 1985. Fenet, P.A. Recueil complet des travaux preparatoires du Code civil: suivi d 'une etude de ce code, a laquelle sont ajoutes les lois, decrets et ordonnances formant le complement de la legislation civile de la France, et oil se trouvent indiques, sous chaque article separement, tons les passages du recueil qui s'y rattachent. Osnabriick: O. Zeller 1968.

Finnis,J. Natural Law and Natural Rights. Oxford, U.K.: Clarendon Press 1986. Fish, S. Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies. Durham, N.C.: Duke University Press 1989.

- Is There a Text in this Class ? Cambridge, Mass.: Harvard University Press 1980. Frank, J. Law and the Modern Mind. New York: Brentano's 1930. Friedmann, W.G. Legal Theory (5* ed.). London: Stevens and Sons 1967. Friedrich, CJ. Constitutional Governement and Democracy: Theory and Practice in Europe and America (4* ed.). Waltham, Mass.: Blaisdell 1968. - (ed.). Liberty, Nomos TV. New York: Atherton Press 1966. - Rational Decision, Nomos VII. New York: Atherton Press 1964. Fromont, M., Rieg, A. Introduction au droit allemand. Paris: Cujas 1977. Fuller, L.L. The Law in Quest of Itself. Chicago, 111.: Foundation Press 1940. - The Morality of Law (rev. ed.). New Haven, Conn.: Yale University Press 1969. Gadamer, H.-G. Truth and Method (a nd ed.), tr. G. Barden, J. Gumming. New York: Seabury Press 1975.

315

Bibliography

Gamble, A. An Introduction to Modern Social and Political Thought. London: Macmillan 1981. Geny, F. Methode d'interpretation et sources en droit prive positif: essai critique (2 nd ed.). Paris: Librairie generate de droit et de jurisprudence 1954. Gibbons, M.T., ed. Interpreting Politics. New York: New York University Press 1987. Gibson, D. The Law of the Charter: General Principles. Toronto: Carswell 1986. Glanvill. De legibus et consuetudinibus regnis angliae, ed. G.E. Woodbine. New Haven, Conn.: Yale University Press 1932. Glare, P.G.W., ed. Oxford Latin Dictionary. Oxford, U.K.: Clarendon Press 1982. Gneist, R. Der Rechtsstaat und die Verwaltungsgerichte in Deutschland (2 n d ed.). Berlin: Verlag von Julius Springer 1879. Gough, J.W. Fundamental Law in English Constitutional History. Oxford, U.K.: Clarendon Press 1961. Grant, G. Lament for a Nation. Toronto: McClelland and Stewart 1965. Gratian. Concordia discordantium canonum, in Friedberg, E., ed., Corpus luris Canonici, 1879. Gray, J.C. The Nature and Sources of the Law (2 nd ed.). Gloucester, Mass.: Peter Smith 1972. Guest, A.G., ed. Oxford Essays in Jurisprudence. Oxford, U.K.: Oxford University Press 1961. Gwyn, W.B. The Meaning of the Separation of Powers, An Analysis of the Doctrine from its Origin to the Adoption of the United States Constitution. New Orleans, La.: Tulane University 1965. Hacker, P.M.S., Raz, J., ed. Law, Morality, and Society: Essays in honour ofH.L.A. Hart. Oxford, U.K.: Clarendon Press 1977. Hailsham (Lord Hailsham) of St Marylebone, ed. Halsbury's Laws of England, vol. 44 (4* ed.). London: Butterworths 1983. Hall, J. General Principles of Criminal Law (2 nd ed.). Indianapolis, Ind.: BobbsMerrill 1960. Harrington, J. The Commonwealth of Oceana. London: George Routledge and Sons 1887. Hart, H.L.A. The Concept of Law. Oxford, U.K.: Clarendon Press 1961. - Law, Liberty and Morality. Oxford, U.K.: Oxford University Press 1963. Hart, H.M., Sacks, A.M. The Legal Process: Basic Problems in the Making and Application of Law (unpublished teaching materials, 1958). Hartz, L. The Foundation of New Societies. Toronto: Longmans 1964. Hayek, F.A. The Constitution of Liberty. Chicago, 111.: University of Chicago Press 1960. - Law, Legislation and Liberty, A New Statement of the Liberal Principles of Justice and Political Economy. Chicago, 111.: University of Chicago Press 1976. — The Road to Serfdom. Chicago, 111.: University of Chicago Press 1958. Heard, A. Canadian Constitutional Convention, The Marriage of Law and Politics. Toronto: Oxford University Press 1991.

316

Bibliography

Heuston, R.F.V. Essays in Constitutional Law (2 nd ed.)- London: Stevens and Sons 1964. Hewart, G. The New Despotism. New York: Cosmopolitan 1929. Hirsch, E.D. The Aims of Interpretation. Chicago, 111.: University of Chicago Press 1976. - Validity in Interpretation. New Haven, Conn.: Yale University Press 1967. Hobbes, T. Leviathan. London: Dent, Everyman's Library 1987. Hobhouse, L.T. The Elements of Social Justice. New York: H. Holt 1922. Hogg, P.W. Canada Act 1982, Annotated. Toronto: Carswell 1982. - Constitutional Law of Canada. Toronto: Carswell 1977. - Constitutional Law of Canada (2 nd ed.). Toronto: Carswell 1985. - Constitutional Law of Canada (3rd ed.). Toronto: Carswell 1992. Hubien, H., ed. Le raisonnement juridique. Bruxelles: Etablissements Emile Bruylant 1971. Hume, D. A Treatise of Human Nature. London: J.M. Dent and Sons 1961. Hutchinson, A.C., Monahan, P., ed. The Rule of Law Ideal or Ideology. Toronto: Carswell 1987. Iser, W. L'actede lecture: theorie del'effet esthetique. Bruxelles: Pierre Mardaga 1985. - The Act of Reading: A Theory of Aesthetic Response. Baltimore, Md.: John Hopkins University Press 1978. Jennings, I. The Law and the Constitution (5th ed.). London: University of London Press 1959. John of Salisbury. The Stateman 's Book of John of Salisbury; Being the Fourth, Fifth, and Sixth Books, and Selections from the Seventh and Eight Books, of the Policraticus, tr. J. Dickinson. New York: A.A. Knopf 1927. Jowell, J., Oliver, D., ed. The Changing Constitution. Oxford, U.K.: Clarendon Press 1985. Kant, I. The Moral Law, Kant's Groundwork of the Metaphysic of Morals, tr. H.J. Paton. London: Hutchinson 1948. Keir, D.L., Lawson, F.H. Cases in Constitutional Law (4* ed.). Oxford, U.K.: Clarendon Press 1954. Kelman, M. A Guide to Critical Legal Studies. Cambridge, Mass.: Harvard University Press 1987. Kelsen, H. General Theory of Law and State, tr. A. Wedberg. New York: Russell and Russell 1961. - Theorie pure du droit (2 nd ed.), tr. C. Eisenmann. Paris: Dalloz 1962. Krieger, L. The German Idea of Freedom. Chicago, 111.: University of Chicago Press

!957Kuhn, T.S. The Structure of Scientific Revolutions (2 nd ed.). Chicago, 111.: University of Chicago Press 1970. Kunkel, W. An Introduction to Roman Legal and Constitutional History (2 nd ed.), tr. J.M. Kelly. Oxford, U.K.: Clarendon Press 1973. Kuper,J., ed. Political Science and Political Theory. London: Routledge and Kegan Paul 1987.

317

Bibliography

Lang, O.E., ed. Contemporary Problems of Public Law in Canada, Essays in Honour of Dean EC. Cronkite. Toronto: University of Toronto Press 1968. Langan, P. St. J., ed. Maxwell on the Interpretation of Statutes (i2 t h ed.)- London: Sweet and Maxwell 1969. Larmore, C. Patterns of Moral Complexity. Cambridge, U.K.: Cambridge University Press 1987. Latham, R. The Law and the Commonwealth. Oxford, U.K.: Oxford University Press 1949. Levi, E.H. An Introduction to Legal Reasoning. Chicago, 111.: University of Chicago Press 1949. Levinson, S., Mailloux, S., ed. Interpreting Law and Literature: A Hermeneutic Reader. Evanston, 111.: Northwestern University Press 1988. Liard, L. L'enseignement superieur en France, 1789 a 1893. Paris: Armand Colin 1894. Lipset, S.M. The First New Nation. New York: Basic Books 1963. Lively, J. Democracy. Oxford, U.K.: Basil Blackwell 1975. Llewellyn, K.N. The Common Law Tradition, Deciding Appeals. Boston, Mass.: Little, Brown 1960. Lloyd, D. The Idea of Law. Harmondsworth, U.K.: Penguin Books 1981. Lloyd of Hampstead, Lord D., Freeman, M.D.A. Lloyd's Introduction to Jurisprudence (5th ed.). London: Stevens and Sons 1985. Locke, J. Two Treatises of Government, ed. P. Laslett (2 nd ed.). Cambridge, U.K.: Cambridge University Press 1967. Lucas, J.R. On Justice. Oxford, U.K.: Clarendon Press 1980. - The Principles of Politics. Oxford, U.K.: Clarendon Press 1985. MacCormick, N. H.L.A. Hart. London: Edward Arnold 1981. - Legal Reasoning and Legal Theory. Oxford, U.K.: Clarendon Press 1978. Maclntyre, A.C. After Virtue: A Study in Moral Theory (2 n d ed.). Notre Dame, Ind.: University of Notre Dame Press 1984. Magnet, J.E. Constitutional Law of Canada, Cases, Notes and Materials. Toronto: Carswell 1983. - Constitutional Law of Canada, Cases, Notes and Materials (4th ed.), vol. i. Toronto: Carswell 1989. Maine, Sir H.S. Ancient Law. London: John Murray 1884. Maitland, F.W. The Constitutional History of England. Cambridge, U.K.: Cambridge University Press 1963. Manning, M. Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982. Toronto: Emond-Montgomery 1983. Marshall, G. Constitutional Conventions. Oxford, U.K.: Clarendon Press 1984. - Constitutional Theory. Oxford, U.K.: Clarendon Press 1971. - Parliamentary Sovereignty and the Commonwealth. Oxford, U.K.: Clarendon Press 1957. May, E. Treatise on the Law, Privileges, Proceedings and Usage of Parliament (2i s t ed.), ed. CJ. Boulton. London: Butterworths 1989.

318

Bibliography

Mayo, H.B. An Introduction to Democratic Theory. New York: Oxford University Press 1960. Mcllwain, C.H. Constitutionalism, Ancient and Modern (rev. ed.). New York: Great Seal Books 1958. McWhinney, E., ed. Canadian Jurisprudence, the Civil Law and Common Law in Canada. Toronto: Carswell 1958. Melanges en I 'honneur de Paul Roubier, vol. i, Paris: Librairie Dalloz and Sirey 1961. Mill, J.S. A System of Logic Ratiocinative and Inductive, ed. J.M. Robson. Toronto: University of Toronto Press 1973. - Utilitarianism, On Liberty and Considerations on Representative Government, ed. H.B. Acton. London: Everyman's Library 1972. Miller, D. Social Justice. Oxford, U.K.: Clarendon Press 1976. Miller, D., Siedentop, L., ed. The Nature of Political Theory. Oxford, U.K.: Clarendon Press 1983. Miller, W.G. The Data of Jurisprudence. London: William Green and Sons 1903. Monahan, P. Politics and the Constitution, the Charter, Federalism and the Supreme Court of Canada. Toronto: Carswell 1987. Montesquieu. The Spirit of the Laws, tr. and ed. A.M. Cohler, B.C. Miller, H.S. Stone. Cambridge, U.K.: Cambridge University Press 1989. Morton, F.L., ed. Law, Politics and the Judicial Process in Canada. Calgary, Alta.: University of Calgary Press 1984. Nerhot, P., ed. Law, Interpretation and Reality. Boston, Mass.: Kluwer Academic

1990Neumann, F. The Democratic and the Authoritarian State, Essays in Political and Legal Theory, ed. H. Marcuse. London: Free Press of Glencoe 1957. - The Rule of Law, Political Theory and the Legal System in Modern Society. Leamington Spa, U.K.: Berg 1986. Nicholas, B. An Introduction to Roman Law. Oxford, U.K: Clarendon Press 1962. Nozick, R. Anarchy, State, and Utopia. Oxford, U.K.: Basil Blackwell 1974. Odegard, D., ed. Ethics and Justification. Edmonton: Academic Printing and Publishing 1988. Odgers, W.B., Ritson, R. A Digest of the Law of Libel and Slander, and of Actions of the Case for Words Causing Damage, with the Evidence, Procedure, on the Practice, and Precedents of Pleadings, both in Civil and Criminal Cases (6th ed.). London: Stevens and Sons 1929. O'Sullivan, R. The Inheritance of the Common Law. London: Stevens 1950. O'Sullivan, R., Wortley, B.A. The Spirit of the Common Law. Westmount: Corbett i965Paine, T. Rights of Man, ed. H. Collins. Harmondsworth, U.K.: Penguin Books i969Paley, W. The Works of William Paley, D.D., vol. 3. London: Davison 1830. Palmer, R.E. Hermeneutics, Interpretation Theory in Schleiermacher, Dilthey, Heidegger, and Gadamer. Evanston, 111.: Northwestern University Press 1969.

319 Bibliography Patterson, E.W. Jurisprudence: Men and Ideas of the Law. Brooklyn, N.Y.: Foundation Press 1953. Pennock, J.R., Chapman, J.W., ed. Constitutionalism. Nomos XX. New York: New York University Press 1979. - Due Process, Nomos XVIII. New York: New York University Press 1977. - Equality, Nomos IX. New York: New York University Press 1967. Pepin, G., Ouellette, Y. Principes de contentieux administratif (2 nd ed.)- Cowansville, Que.: Les Editions Yvon Blais 1982. Perelman, C., ed. Les Antinomies en droit. Bruxelles: Editions Bruylant 1965. - Droit, morale et philosophie (2 n d ed.). Paris: Librairie generale de droit et de jurisprudence 1976. - ed. Etudes de logique juridique, Droit et logique, les lacunes en droit, vol. 2. Bruxelles: Etablissements Emile Bruylant 1967. - The Idea of Justice and the Problem of Argument. London: Routledge and Kegan Paul 1963. - Logique juridique, Nouvelle rhetorique. Paris: Daloz 1976. — Le raisonnable et le deraisonnable en droit, Au deld du positivisme juridique. Paris: Librairie generale de droit et de jurisprudence 1984. - and Vander Elst, R., ed. Les notions a contenu variable en droit. Bruxelles: Etablissements Emile Bruylant 1984. Phillips, O.H., Jackson, P. O. Hood Phillips' Constitutional and Administrative Law (6th ed.). London: Sweet and Maxwell 1978. Plato. Laws, tr. R.G. Bury. Cambridge, Mass.: Harvard University Press 1961. Posner, R.A. The Problems of Jurisprudence. Cambridge, Mass.: Harvard University Press 1990. Pound, R. An Introduction to the Philosophy of Law. New Haven, Conn.: Yale University Press 1954. - Justice According to Law. Port Washington, N.Y: Kennikat Press 1951. - The Spirit of the Common Law. Francestown, N.H.: Marshall Jones 1921. Quinton, A., ed. Political Philosophy. Oxford, U.K.: Oxford University Press 1967. Radbruch, G. "Gesetzliches Unrecht und Ubergesetzliches Recht," in Wolf, E., ed. Rechtsphilosophie (4* ed.). Stuttgart 1950. Raphael, D.D. Problems of Political Philosophy (rev. ed.). London: Macmillan 1976. Rawls, J. A Theory of Justice. Cambridge, Mass.: Belknap Press of Harvard University Press 1971. Raz,J. The Authority of Law. Oxford, U.K.: Clarendon Press 1979. - (ed.). Practical Reasoning. Oxford, U.K.: Oxford University Press 1978. Riker, W.H. Federalism: Origin, Operation, Significance. Boston, Mass.: Little, Brown 1964. Ripert, G. Le declin du droit. Paris: Librairie Generale de Droit et de Jurisprudence 1949.

320 Bibliography Robertson, M. Language as Hero in Post-Modern Formalist Fiction (1979), PhD dissertation, Department of English, University of Wisconsin. Rorty, R. Consequences of Pragmatism. Minneapolis, Minn.: University of Minnesota Press 1982. - Philosophy and the Mirror of Nature. Princeton, N.J.: Princeton University Press 1979Ross, A. On Law and Justice. Berkeley, Calif.: University of California Press 1959. Roubier, P. Theorie generale du droit: histoire des doctrines juridiques et philosophic des valeurs sodales (2 nd ed.). Paris: Sirey 1951. Rousseau, JJ. Considerations on the Government of Poland, in Rousseau, J.-J., Political Writings, tr. F. Watkins. New York: Rhomas Nelson and Sons 1963. — The Social Contract and Discourses, tr. G.D.H. Cole. New York: E.P. Dutton 1950. Ruggiero, G. de. The History of European Liberalism, tr. R.G. Collingwood. Oxford, U.K.: Oxford University Press 1927. Russell, W.O. A Treatise on Crimes and Misdemeanors (9* ed.), ed. R.E. Ross. London: Stevens and Sons 1936. Ryan, A., ed. The Idea of Freedom. Oxford, U.K.: Oxford University Press 1979. Sabine, G.H., Thorson, T.L. A History of Political Theory (4* ed.). Hinsdale, 111.: Dryden Press 1973. Salmond,]^N. Jurisprudence (io th ed.), ed. G. Williams. London: Sweet and Maxwell 1947. - Jurisprudence (i i th ed.), ed. G. Williams. London: Sweet and Maxwell 1957. Sawer, G. Modern Federalism (2 th ed.). Carlton, Australia: Pitman 1976. Schmeiser, D.A. Civil Liberties in Canada. London: Oxford University Press 1964. Schreiner, O.D. The Contribution of English Law to South African Law, and the Rule of Law in South Africa. London: Stevens and Sons 1967. Scott, S.P., ed. The Civil Law, vol. 2, tr. S.P. Scott. Cincinnati, Ohio: Central Trust 1932. Sharpe, R.J., ed. Charter Litigation. Toronto: Butterworths 1987. Sidgwick, H. The Methods of Ethics (7* ed.). Chicago, 111.: University of Chicago Press 1907. Simpson, A.W.B., ed. Oxford Essays in Jurisprudence (second series). Oxford, U.K.: Clarendon Press 1973. Stephen, Sir J. A Digest of the Criminal Law (Indictable Offences) by the Late Sir James Fitzjames Stephen, Bart. (gth ed.), ed. L.F. Sturge. London: Sweet and Maxwell !95°Stewart, M.A., ed. Law, Morality and Plights. Dordrecht, Netherlands: D. Reidel 1983St Germain. Two Dialogues Between a Doctor of Divinity and a Student in the Laws of England (1518). Strauss, L. Natural Right and History. Chicago, 111.: University of Chicago Press !953Strong, C.F. Modern Political Constitutions. London: Sidgwick and Jackson 1963.

321

Bibliography

Suleiman, S.R., Crosman, I., ed. The Reader in the Text. Princeton, N.J.: Princeton University Press 1980. Summers, R.S. Instrumentalism and American Legal Theory. Ithaca, N.Y.: Cornell University Press 1982. Tarnopolsky, W.S. The Canadian Bill of Rights. Toronto: Carswell 1966. - The Canadian Bill of Rights (2 nd ed.). Toronto: McClelland and Stewart 1975. Taylor, C. Philosophy and the Human Sciences, Philosophical Papers, vol. 2. Cambridge, U.K.: Cambridge University Press 1985. Taylor, P.W. Normative Discourse. Englewood Clifts, N.J.: Prentice Hall 1961. Tierney, B. Church Law and Constitutional Thought in the Middle Ages. London: Variorum Reprints 1979. Tremblay, A. Precis de droit constitutionnel. Montreal: Les Editions Themis 1982. Turpin, C. British Government and the Constitution, Text, Cases and Materials. London: Weidenfeld and Nicolson 1985. Twining, W., ed. Legal Theory and Common Law. Oxford, U.K.: Basil Blackwell 1986. Unger, R.M. Law in Modern Society, Toward a Criticism of Social Theory. New York: Free Press 1976. Vile, MJ.C. Constitutionalism and the Separation of Powers. Oxford, U.K.: Clarendon Press 1967. Vivieux-Reymond, A. La logique formelle. Paris: Presses Universitaires de France 1962. Wade, E.C.S., Bradley, A.W. Constitutional and Administrative Law (io t h ed.). London: Longman 1985. - and Phillips, G.G. Constitutional and Administrative Law (gth ed.). London: Longman 1977. Wade, H.W.R. Administrative Law (4* ed.). Oxford, U.K.: Clarendon Press 1977. Walker, G. de Q. The Rule of Law: Foundation of Constitutional Democracy. Carlton, Australia: Melbourne University Press 1988. Warnke, G. Gadamer, Hermeneutique, Tradition etRaison. Bruxelles: Editions universitaires 1991. Wasserstrom, R.A. The Judicial Decision. Stanford, Calif.: Stanford University Press 1961. Watts, R.L., Brown, D.M., ed. Options for a New Canada. Toronto: University of Toronto Press 1991. Weber, M. Economy and Society, An Outline of Interpretive Sociology, vol. 1-2, ed. G. Roth, C. Wittich. Berkeley, Calif.: University of California Press 1978. - The Methodology of the Social Sciences, tr. E.A. Shils, H.A. Finch. New York: Free Press of Glencoe 1949. - The Theory of Social and Economic Organisation, tr. A.M. Henderson, T. Parsons. New York: Free Press 1964. Weinberger, O., ed. Essays in Legal and Moral Philosophy, tr. P. Heath. Dordrecht, Netherlands: D. Reidel 1973.

322

Bibliography

Weinreb, L.L. Natural Law and Justice. Cambridge, Mass.: Harvard University Press 1987. Wheare, K.C., Federal Government (4* ed.). London: Oxford University Press 1963- Modern Constitutions. London: Oxford University Press 1966. Whyte, J.D., Lederman, W.R. Canadian Constitutional Law, Cases, Notes and Materials on the Distribution and Limitation of Legislative Powers under the Constitution of Canada (2 nd ed.). Toronto: Butterworths 1977. Winch, P. The Idea of a Social Science and Its Relation to Philosophy. London: Routledge and Kegan Paul 1958. ARTICLES

Abraham. "Statutory Interpretation and Literary Theory: Some Common Concerns of Unlikely Pair," 32 Rutgers Law Review 676 (1979). Alexander. "Harm, Offense, and Morality," (1994) 7 Canadian Journal of Law and Jurisprudence 199. Allan. "Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism," (1985) 44 Cambridge Law Journal 111. - "Parliamentary Sovereignty: Lord Denning's Dexterous Revolution," (1983) 3 Oxford Journal of Legal Studies 22. Barnett. "Foreword: Can Justice and the Rule of Law Be Reconciled?" 11 Harvard Journal of Law and Public Policy 597 (1988). Bayefsky. "The Judicial Function under the Canadian Charter of Rights and Freedoms," in Bayefsky, A., ed., Legal Theory Meets Legal Practice (1988). - "Parliamentary Sovereignty and Human Rights in Canada: The Promise of the Canadian Charter of Rights and Freedoms," (1983) 31 Political Studies 239. Beckton. "La liberte d'expression," in Beaudoin, G.A., Tarnopolsky, W.S., ed., Charte canadienne des droits et libertes (1982). Bellussi. "La justification en droit," in Hubien H., ed., Le raisonnement juridique (197 1 )Bender. "The Canadian Charter of Rights and Freedoms and the United States Bill of Rights: A Comparison," (1983) 28 McGill Law Journal 811. Berlin. "Two Concepts of Liberty," in Quinton, A., ed., Political Philosophy (1967). Birch. "The Theory and Practice of Modern British Democracy," in Jowell, J., Oliver, D., ed., The Changing Constitution (1985). Bobbio. N. "Des criteres pour resoudre les antinomies," in Perelman, C., ed., Des antinomies en droit (1965). - "Sur le positivismejuridique," in Melanges en l'honneurdePaulRoubier(ig6i). Bork. "Neutral Principles and Some First Amendment Problems," 47 Indiana Law Journal \ (1971). Brennan. "Reason, Passion and 'the Progress of the Law,'" 10 Cardozo Law Review 37 (1988).

323 Bibliography Brewin. "Comment," (1951) 29 Canadian Bar Review 193. Burton. "Law as Practical Reason," 62 Southern California Law Review 747 (1989). Chow. "Trashing Nihilism," 65 Tulane Law Review 2 21 (1990). Christie. "The Model of Principles," (1968) Duke Law Journal 449. Cohen. "Transcendental Nonsense and the Functional Approach," 35 Columbia Law Review 809 (1935). Cohen-Almagor. "Between Neutrality and Perfectionism," (1994) 7 Canadian Journal of Law and Jurisprudence 217. Conklin. "Pickin and its Applicability to Canada," (1975) 25 University of Toronto Law Journal 193. Corry. "The Interpretation of Statutes," in Driedger, E.A., The Construction of Statutes (2 nd ed., 1983). Corwin. "The Higher Law Background of American Constitutional Law," 42 Harvard Law Review 149 (1928). Cote. "L'interpretation de la loi, une creation sujette a des contraintes," (1990) 50 Revue du Barreau 329. - "La notion d'interpretation manifestement deraisonnable - vers une redefinition de 1'erreur d'interpretation," Actes de la XIe Conference des juristes de 1'Etat, Conference des juristes de I'Etat (1992). Cowen. "Legislature and Judiciary," (1952) 15 Modern Law Review 282. - "Legislature and Judiciary," (1953) 16 Modern Law Review 124. Cranston. "Liberalism," in Edward, P., ed., The Encyclopedia of Philosophy (1967). D'Amato. "Can Legislatures Constrain Judicial Interpretation of Statutes?" 75 Stanford Law Review 561 (1989). Daniels. "Wide Reflective Equilibrium and Theory Acceptance in Ethics," (1979) 7'6 Journal of'Philosophy 256. Da Silveira. "Quel avenir pour le principe de neutralite?" (1993) 3 Lekton 65. Delwaide. "La legislature quebecoise peut-elle implanter un systeme complet d'initiative et de referendum," (1981) 22 Les Cahiers deDroitQgtj. De Marneffe. "Liberalism, Liberty and Neutrality," (1990) 19 Philosophy and Public Affairs 253. Dewey. "Logical Method and Law," 10 Cornell Law Review 17 (1924). Dickinson. "The Law Behind Law," 29 Columbia Law Review 113 (1929). Dickson. "The Democratic Character of the Charter of Rights," in Morton, F.L., ed., Law, Politics and the Judicial Process in Canada (1984). Dixon. "The Common Law as an Ultimate Constitutional Foundation," (1957) 31 Australian Law Journal 2 40. Driedger. "The Canadian Bill of Rights," in Lang O.E., ed., Contemporary Problems of Public Law in Canada (1968). Dworkin. "Do we Have a Right to Pornography?" in Dworkin, R., A Matter of Principle (1985). - "L'impact de la theorie de Rawls sur la pratique et la philosophic du droit," in Audard, C., Dupuy, J.-P, Seve, R., ed., Individu et Justice sociak (1988).

324

Bibliography

- "Liberalism," in Dworkin, R., A Matter of Principle (1985). Dyzenhaus. "Liberalism, Pornography and the Rule of Law," in Devlin, R.F., ed., Canadian Perspectives on Legal Theory (1991), 13. - "Obscenity and the Charter: Autonomy and Equality," (1991) i Criminal Reports (4*) 367. - "Should Community Standards Determine Obscenity?" 72 Criminal Reports

(3d) 49Eccleshall. "Liberalism," in Eccleshall, R., et al., Political Ideologies (1984). Eekelaar. "Principles of Revolutionary Legality," in Simpson, A.W.B., ed., Oxford Essays in Jurisprudence (1973). Elliot. "Rethinking Manner and Form," (1991) 29 Osgoode Hall Law Journal 215. - "The Supreme Court of Canada and Section i - the Erosion of the Common Front," (1998) 12 Queen's Law Journal 27"j. Erwarth. "The Transformation of Hermeneutics: ig th Century Ancients and 20th Century Moderns," (1981) 64 The Monist 175. Eskridge, Frickey, "Statutory Interpretation as Practical Reasoning," 42 Stanford Law Review 321 (1990). Fairley. "Enforcing the Charter: Some thoughts on the Appropriate and Just Standard for Judicial Review," (1982) 4 Supreme Court Law Review 217. Fallon. "A Constructivist Coherence Theory of Constitutional Interpretation," ioo Harvard Law Review i, 189 (1987). Feinberg. "Justice, Fairness and Rationality," 81 Yale Law Journal 1,004 ( 1 97^). Fiss. "Objectivity and Interpretation," 34 Stanford Law Review 739 (1982). Freund. "Rationality in Judicial Decisions," in Friedrich, C.J., ed., Rational Decision (1964). Fried. "The Laws of Change: The Cunning of Reason in Moral and Legal History," 9 Journal of Legal Studies 355 (1980). Friedmann. "Trethowan's Case, Parliamentary Sovereignty, and the Limits of Legal Change," (1950) 24 Australian Law Journal 103. Gallic. "Essentially Contested Concepts," (1955-56) 56 Proceedings of the Aristotelian Society 167. Gibson. "Distinguishing the Governors from the Governed: The Meaning of 'Government' under Section 32(1) of the Charter" (1983) 13 Manitoba Law Journal 505. - "The 'Special Nature' of Human Rights Legislation: Re Winnipeg School Division No. i and Craton," (1986) 50 Saskatchewan Law Review 175. Gold. "Constitutional Scholarship in Canada," (1985) 23 Osgoode Hall Law Journal 495. Goodhart. "Case Law in England," (1934) 50 Law Quarterly Review 40. - "The Rule of Law and Absolute Sovereignty," 106 University of Pennsylvania Law Review 943 (1957-58).

325

Bibliography

Gray. "The Sovereignty of Parliament Today," (1953) 10 University of Toronto Law Journal 54. Green. "Lecture on Liberal Legislation and Freedom of Contract" (1881), in Eccleshall, R., British Liberalism (1986). Greenawalt. "Policy, Rights and Judicial Decision," 11 Georgia Law Review 991 (1977)- "The Rule of Recognition and the Constitution," 85 Michigan Law Review 621 (1987). Grey. "Constitutionalism: An Analytical Framework," in Pennock, J.R., Chapman, J.W., ed., Constitutionalism (1979). Hacker. "Hart's Philosophy of Law," in Hacker, P.M.S., Raz,J., ed., Law, Morality and Society (1977). Halewood. "Performance and Pragmatism in Constitutional Interpretation," (1990) 3 Canadian Journal of Law and Jurisprudence 91. Hall. "Nulla Poena Sine Lege," 47 Yale Law Journal 165 (1937). Hart. "American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream," 11 Georgia Law Review 969 (1977). - "Positivism and the Separation of Law and Morals," 71 Harvard Law Review 593 (195 8 )Henry. "Vers la fin de 1'Etat de droit?" (1977) 93 Revue de droit public 1207. Hochman. "The Supreme Court and the Constitutionality of Retroactive Legislation," 73 Harvard Law Review 692 (1960). Hogg, P.W. "The Charter of Rights and American Theories of Interpretation," (1987) 25 Osgoode Hall Law Journal 87. - "On Being a Positivist: A Reply to Professor Vaughan," (1991) 29 Osgoode Hall Law Journal 411. - "Supremacy of the Canadian Charter of Rights and Freedoms," (1983) 61 Canadian Bar Review 69. Holdsworth. "Review of the 9* ed. (by E.C.S. Wade) of Dicey's Law of the Constitution," (1939) 55 Law Quarterly Review 585. Hood Phillips. "High Tide in the Strand? Post-ig72 Acts and Community Law," (1980) 96 Law Quarterly Review 31. Horowitz. "Conservatism, Liberalism and Socialism in Canada: An Interpretation," (1966) 32 Canadian Journal of Economy 143. Horwitz. "Book Review: The Rule of Law: An Unqualified Human Good?" 86 Yale Law Journal 561 (1977). Hoy. "Interpreting the Law: Hermeneutical and Poststructuralist Perspectives," 58 Southern California Law Review 135 (1985). Hutchinson. "The Three 'Rs': Reading/Rorty/Radically," 103 Harvard Law Review 555 (1989). Iser. "Interaction between Text and Reader," in Suleiman, S.R., Crosman, I., ed., The Reader in the Text (1980).

326

Bibliography

Jones. "The Rule of Law and the Welfare State," 58 Columbia Law Review 143 (1958). Kelsen. "What is Justice?" in Weinberger, O., ed., Essays in Legal and Moral Philosophy (19*73). Kennedy. "Form and Substance in Private Law Adudication," 89 Harvard Law Review 1,685 ( 1 9?6)— "The Structure of Blackstone's Commentaries," 28 Buffalo Law Review 205 (!979)Klecatsky. "Reflections on the Rule of Law and in Particular on the Principle of the Legality of Administrative Action," (1962-63) ^Journal of the International Commission of Jurists 209. Kress. "The Interpretive Turn," (1987) 97 £^^5834. Krygier. "Law as Tradition," 5 Law and Philosophy 237 (1986). Kymlicka. "Liberal Individualism and Liberal Neutrality," (1989) 99 Ethics 883. Larmore. "Political Liberalism," (1990) 18 Political Theory 339. Laskin. "Certiorari to Labour Code: The Apparant Futility of Privative Clauses," (1952) 30 Canadian Bar Review 986. - "An Inquiry into the Diefenbaker Bill of Rights," (1957) 37 Canadian Bar Review 77. Latham. "What is an Act of Parliament?" (1939) King's Counsel 152. Lenoble. "La theorie de la coherence narrative en droit. Le debat DworkinMcCormick," (1988) 33 Archives de philosophic du droit 121. Levinson. "Law as Literature," 60 Texas Law Review 373 (1982). Lyons. "Principles, Positivism and Legal Theory," 87 Yale Law Journal 415 (!977)Lysyk. "Constitutional Law - Parliamentary Sovereignty - Can Parliament Bind its Successors?" (1965-66) 4 Alberta Law Review 154. MacCallum. "Legislative Intent," 75 Yale Law Journal 754 (1966). Macklem. "Constitutional Ideologies," (1988) 20 Ottawa Law Review 117. Marsh. "The Rule of Law as a Supra-National Concept," in Guest, A.G., ed., Oxford Essays in Jurisprudence (1961). Marshall. "Due Process in England," in Pennock, J.R., Chapman, J.W., ed., Due Process (1977). - "Notes on the Rule of Equal Law," in Pennock, J.R., Chapman, J.W., ed., Equality (1967). Mclntosh. "Legal Hermeneutics: A Philosophical Critique," 35 Oklahoma Law Review i (1982). McWhinney. "Legal Theory and Philosophy in Canada," in McWhinney, E., ed., Canadian Jurisprudence (1958). Mewett. "The Criminal Law, 1867-1967," (1967) 45 Canadian Bar Review 726. Miers. "Legal Theory and the Interpretation of Statutes," in Twining, W., ed., Legal Theory and Common Law (1986).

327 Bibliography Miller. "Linguistic Philosophy and Political Theory," in Miller, D., Siedentop, L., ed., The Nature of Political Theory (1983). Minogue. "Democracy," in Kuper, J., ed., Political Science and Political Theory (1987)Mirfield. "Can the House of Lords Lawfully be Abollished?" (1979) 95 Law Quarterly Review 36. Monahan. "At Doctrine's Twilight: The Structure of Canadian Federalism," (1984) 34 University oj'Toronto Law Journal 47. Moore. "The Interpretive Turn in Modern Theory: A Turn for the Worse?" 41 Stanford Law Review 87i (1989). - "The Semantics of Judging," 54 Southern California Law Review 151 (1981). Mootz. "The Ontological Basis of Legal Hermeneutics: A proposed Model of Inquiry Based on the Work of Gadamer, Habermas, and Ricoeur," 66 Boston University Law Review 523(1988). Morrissette. "Le controle de la competence d'attribution: these, antithese et synthese," (1986) 16 Revue deDroit Universite de Sherbrooke 591. Neumann. "The Change in the Function of Law in Modern Society," in Neumann, F, The Democratic and Authoritarian State (1957). - "The Concept of Political Freedom," 53 Columbia Law Review 901 (1953). Nielsen. "In Defense of Wide Reflective Equilibrium," in Odegard, D., ed., Ethics and Justification (1988). (Note). "Prospective Overruling and Retroactive Application in the Federal Courts," 71 Yak Law Journal 907 (1962). O'Neill. "The Australian Bill of Rights Bill 1985 and the Supremacy of Parliament," (1986) 60 Australian Law Journal 139. Oppenheim. "Freedom — An Empirical Interpretation," in Friedrich, C.J., ed., Liberty (1966). Peczenick. "Analogia Legis. Analogy from Statutes in Continental Law," in Hubien, H., ed., Le raisonnement juridique (1971). Peller. "The Metaphysics of American Law," 73 California Law Review 1151 (1985)Phelps, Pitts. "Questioning the Text: The Significance of Phenomenological Hermeneutics for Legal Interpretation," 29 St. Louis University Law Journal 353 (1985)Phillips. "The Rule of Law," (1934) iQ Journal of Comparative Legislation 302. Pound. "The Theory of Judicial Decision," (1924) 2 Canadian Bar Review 443. Radin. "Reconsidering the Rule of Law," 69 Boston University Law Review 781 (1989). - "Statutory Interpretation," 43 Harvard Law Review 863 (1930). Rawls. "The Priority of Right and Ideas of the Good," (1988) 17 Philosophy and Public Affairs 251. Raz. "Legal Principles and the Limits of Law," 81 Yale Law Journal 8 2 3 (1972).

328 Bibliography - "Reasons for Action, Decisions and Norms," in Raz, J., ed., Practical Reasoning (1978). Rogerson. "The Judicial Search for Appropriate Remedies under the Charter: The Examples of Overbreadth and Vagueness," in Sharpe, R.J., ed., Charter Litigation (1987). Russell. "Constitutions and Constitutionalism," in Kuper,J., ed., Political Science and Political Theory (1987). Sartori. "Constitutionalism: A Preliminary Discussion," (1956) 56 American Political Science Review 853. Sartorius. "The Justification of the Judicial Decision," 78 Ethics 171 (1968). - "Social Policy and Judicial Legislation," 8 American Philosophical Quarterly 151 (197 1 )Scalia. "The Rule of Law as a Law of Rules," 56 University of Chicago Law Review 1.175 (1989). Scheffler. "On Justification and Commitment," 51 Journal of Philosophy 180 (1954)Schumpeter. "Two Concepts of Democracy," in Quinton, A., ed., Political Philosophy^^). Scott. "Constituent Authority and the Canadian Provinces," (1966-67) 12 McGill Law Journal 528. - "The Supreme Court and Civil Liberties," (1976) 14 Alberta Law Review g1-]. Sherman. "Hermeneutics in Law," (1988) 51 Modern Law Review 386. Siches. "La logique materielle du raisonnement juridique," in Hubien, H., ed., Le raisonnement juridique (1971). Siedentop. "Two Liberal Traditions," in Ryan, A., ed., The Idea of Freedom (1979). Sinclair. "The Queen v. Drybones: The Supreme Court of Canada and the Canadian Bill of Rights," (1970) 8 Osgoode Hall Law Journal 599. Singer. "The Player and the Cards: Nihilism and Legal Theory," 94 Yale Law Journal 1(1984). Slattery. "The Independence of Canada," (1983) 5 Supreme Court Law Review 369. Soper. "Alternative Methodologies in Contemporary Jurisprudence: Comments on Dworkin," 36 Journal of 'Legal Education 488 (1986). - "Book Review: Dworkin's Domain, 100 Harvard Law Review 1,166 (1987). - "Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute," 75 Michigan Law Review 473 (1977). Spence. "The History of the Court of Chancery," in Association of American Law Schools, Select Essays on Anglo-American Legal History (1968). Stick. "Can Nihilism Be Pragmatic?" 100 Harvard Law Review 332 (1986). Summers. "Working Conceptions of 'the law,'" in Stewart, M.A., ed., Law, Morality and Rights (1983). Swan. "Intervention and Amicus Curiae Status in Charter Litigation," in Sharpe, R.J., ed., Charter Litigation (1987).

329

Bibliography

Swinton. "Challenging the Validity of an Act of Parliament: The Effect of Enrolment and Parliamentary Privilege," (1976) 14 Osgoode Hall Law Journal 345. Taylor. "Interpretation and the Sciences of Man," in Taylor, C., Philosophy and the Human Sciences (1985). - "Shared and Divergent Values," in Watts, R.L., Brown, D.M., ed., Options for a New Canada (1991). - "Social Theory as Practice," in Taylor, C., Philosophy and the Human Sciences (1985). Tierney. "Bracton on Government," (1963) Speculum 295, in Tierney, B., Church Law and Constitutional Thought in the Middle Ages (1979). Tremblay. "Le Canada de la Charter Une democratic liberale neutre ou perfectionniste?" (1995) 40 McGill Law Journal i ,000. - "L'interprelation teleologique des droits constitutionnels," (1994) 29 La Revue Juridique Themis 459. - "La norme de retenue judiciaire et les 'erreurs de droit' en droit administratif: une erreur de droit? Au-dela du fondationalisme et du scepticisme," (1996) 56 Revue du Barreau 141. - "La theorie constitutionnelle canadienne et la primaute du droit," (1994) 39 McGill Law Journal i o i. Tribe. "Revisiting the Rule of Law," 64 New York University Law Review 726 (1989)Unger. "The Critical Legal Studies Movement," 96 Harvard Law Review 563 (1983)Vaughan. "On Being a Positivist: Does it Really Matter?" (1991) 29 Osgoode Hall Law Journal 399. Villa. "Normative Coherence and Epistemological Presuppositions of Justification," in P. Nerhot, ed., Law, Interpretation and Reality (1990). Wade. "The Basis of Legal Sovereignty," (1955) Cambridge Law Journal 172. - "The Concept of Legal Certainty," (1941) 4 Modern Law Review 183. Wade. "Constitutional and Administrative Aspects of the Anisminic case," (1969) 85 Law Quarterly Review 198. - "Sovereignty and the European Communities," (1972) 88 Law Quarterly Review i. Walker. "Dicey's Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with Freedom of Religion," (1985) 59 Australian Law Journal 2 76. Weber. "'Objectivity' in Social Science and Social Policy," in Weber, M., The Methodology of the Social Sciences (1949). Weiler. "The Supreme Court and the Law of Canadian Federalism," (1973) 23 University of Toronto Law Journal 307. Weinrib. "The Intelligibility of the Rule of Law," in Hutchinson, A.C., Monahan, P., ed., The Rule of Law Ideal or Ideology (1987).

330

Bibliography

West. "Adjudication is Not Interpretation: Some Reservations about the Lawas-Literature Movement," 54 Tennassee Law Review 203 (1987). Willis. "Statutory Interpretation in a Nutshell," (1938) 16 Canadian Bar Review i. Wilson. "Decision-Making in the Supreme Court," (1986) 36 University of Toronto Law Journal 227. Winterton. "The British Grundnorm: Parliamentary Supremacy Re-Examined," (1976) 92 Law Quarterly Review 591. - "Is the House of Lords Immortal?" (1979) 95 Law Quarterly Review 386. Wroblewski. "L'interpretation en droit: theorie et ideologic," (1972) 17 Archives de philosophic du droit 51. Yalden. "Liberalism and Canadian Constitutional Law: Tensions in an Evolving Vision of Liberty," (1988) 47 University of Toronto Faculty of Law Review 132.

Index

Allan, T.R.S., 161 analytical versus empirical proposition, 26in. 112 antecedent rules and the interpretation of legislation, 71-4; and the interpretive premise, 59-62, 71. See also sovereignty of Parliament. antecedent rules and the validity of legislation: authenticity versus validity, 70—1; in Canada, 64-71; categories of, 63; "enrolled Act rule," 64, 69, 77; in the United Kingdom, 63-5; unwritten antecedent rules, 69-70; written antecedent rules, 65-9. See sovereignty of Parliament. Attorney General for New South Wales v. Trethowan, 98-9 Austin, John, 17 balance of reasons: defined, 248n.84 Bentham, Jeremy, 17 Bobbio, Norberto, 175-6, 2g2n_44 Boucher v. The King, 112—15, 119-22, 124, 126, 127, 132, 214, 227, 230

"break thesis," 9-11, 234-6 Brun, H. and Tremblay G., 107-8 citizenship, status of: in Roncarelli's case, 125 clarity, principle of: a contrario versus a simili, 152; nullum crimen sine lege, 152; defined, 151; nulla poena sine lege, 152; precision, 151; promulgation, 151; publication, 151; specificity, 151; stability, 151, 153 clear versus difficult cases, 46-7 coherence, principle of, 277n.ia. See formal justice, principle of; generality, principle of. coherence theory, 177-8, 180, 253^190, 292^39, 293n-54 Coke, Lord, 114, 200 Coletv. The Queen, 116-18, 122-3, 125~6, 127, 132, 230 concept and conceptions,

31-*. 34 constitution, 58; flexible versus rigid, 131; formal, 58, 254^6; written versus unwritten, 131

"Constitution of Canada," 8l ~5>99- 100 "Constitution of the province," 81-5, 99-100 constitutional conventions, 18 constitutional interpretation, 9-11, 20, 62, 234-6 constitutional principle: and antecedent rule for the interpretation of legislation, 216; and the constitution, 188-9; and constitutionalism, 187-8, 295n. 14; defined, 187-8, 295n. 14; and democracy, 188; in England, 189; and entrenchment of legal norms, 226—8; fundamental rights and freedoms, 190; legality, 190-4 (see also legality, principle of); and legislative intent, 215; and liberalism, 188; nonconcentration of powers, 189—90; and privative clauses, 223; and Roncarelli's case, 215-18; and the rule of law, 188; and the rule of law as positive rules, 188 constitutional status of certain rights and freedoms, 131-3

332 Index constitutional theory: defined, 13; descriptive, 4, 9, 13; empirical, 13, 18; hermeneutical or interpretive, 6, 13, 144-7; normative, 9, 13. See also orthodox constitutional theory; hermeneutics. constructivism. See coherence theory. continuing sovereignty: analytical versus empirical proposition, 26in.i 12; antecedent rules relating to interpretation of legislation, 86-7; constitutionally entrenched written antecedent rules relating to the validity, 80-1; constitutionally unentrenched written antecedent rules relating to the validity, 81-5; defined, 77; in the United Kingdom, 77-80; unwritten antecedent rules relating to the validity, 85-6; Wade's thesis, 77-8, 86-7 core, theory of the: see rule of law as positive rules. Corry,J.A., 72 critical theory, 40; critical legal studies, 160; deconstructionism, 42, 43; interpretive communities, 43; interpretive strategies, 43-4, 45, 47; legal theory as compared with literary theory, 40; meaning and significance, 44-5; meaning of a text, 40-6; nihilism, 43, 48, 51; philosophical hermeneutics, 40-1; pragmatism, 41-2, 43; reader response, 40; reception theory, 42-3; relativism, 43; scepticism, 43; text as internal constraint, 253^185

democratic principle: and antecedent rule for the interpretation of legislation, 214,216; and Bouchers case, 214; defined, 194-5; and discretionary powers, 216; effective control, 195; and judicial review, 197-9; as the justification of the rule of the sovereignty of Parliament, 196-201; and legislative intent, 213-14; and majoritarian theory, 197-9; majority rule, 195-6; political equality, 195, 2g6n.43; political freedoms, 195, 198; procedural democracy, 194; theory of sovereignty, 199-201 Dicey, Albert Viney: legal and political doctrines of sovereignty, 200-1; the ordinary legislative process, 76; on the rule of law, 22-4, 29, 243n.i3; on the sovereignty of Parliament, 58, !97> 254n-4> 255n-19. 26in.i 12; spirit of nondogmatism, 213 disciplining rules, 49—51 discretionary power: absolute, 115-16, 124-5; improper purpose, 215-16; irrelevant considerations, 216-19;in Roncarelli's case, 115-16, 124-5:215-19 Driedger, E.A., 101-4 Dworkin, Ronald: and hermeneutical approach, 6, 253^185,38,213, 277n.i3; on positivism, 129-30; on the rule of law, 30; on rules and principles, 128-9 "enrolled Act rule." See antecedent rules and the

validity of legislation; sovereignty of Parliament. entrenchment: and the rule of law as justice, 226—32. See also quasiconstitutional legislation; sovereignty of Parliament. equality: in Roncarellis case, 125. See also formal justice, principle of; generality, principle of; liberal principle. equity, principle of: in Aristotle, 172-3; as consistent with the principles of formal and material justice, 173-4; defined, 173; and legal certainty, 174, 29in.37 etat de droit and rechtsstaat, 188, 244n.3i, 24&n_55 federal principle, 207-9 Fish, Stanley, 43-4 Fiss, Owen, 48-51, 56 formal justice, principle of: coherence, 170, 177-8, 185-6; consistency, 169-70; defined, 169; doctrine of precedent, 170; equality before the law, 169; and the existence of legal norms, 169; and the existence of a positive legal order, 170; and legal certainty, 170; legality, principle of, 170, 174, 2gin.3i; one single correct answer, 170; universalizability of legal norms, 169 formal validity thesis, 59-62 foundational standpoint: and deconstructionism, 42; and Fiss's theory, 51; and philosophical hermeneutics, 40-1; and pragmatism, 41-2; and the rule of law as justice, 168, 171, 179,

333 Index 29311.54; in the theory of the core, 39-40, 24911.102; and the "ultimate reason," 55-6, 139. See also critical theory; objectivity. freedom of commerce: in Roncarelli's case, 124-5, 217. See liberal principle. freedom of expression: in Boucher's case, 114-15, 124, 214; and obscenity, 225-6, 3o6n.68; and sedition, 113-15, 214 freedom of religion: in Roncarelli's case, 125, 217-18 Fuller, Lon L., 149, 161, 162, 165, 168 Gadamer, Hans-Georg, 5, 40-1, 42 generality, principle of: abstract and impersonal laws, 152—3; broad and vague delegated powers, 153-4; codification and legislation, 154; coherence, 156-7; doctrine of precedent, 154; and equality, 152, 164; equality before the law, 154; formal justice, 154; logical consistency, 154; particular legal rules, 153-4; and social justice, 164-5; universalizable legal rules, 154, 165 Gibson, Dale, 108, 234 Hart, H.L.A.: continuing versus self-embracing sovereignty, 77; and hermeneutical approach, 6, 17, 238n.i6; and legal positivism, 6, 16—18, 141; and orthodox constitutional theory, 17, 34, 241^9; and principles, 129; and the rule of the sovereignty of Parliament, 60;

and the theory of the core, 39, 24gn.ioo; and the theory of the penumbra, 35-6 Hart, H.M., Sacks, A.M., 112 Hayek, F.A., 149, 162-5 hermeneutical circle, 41, 145, 146, 185-6, 279n-39 hermeneutics: approach, 5-6, 185-6, 278^38, 27gn_4i; and certainty, 147; and coherence theory of truth, 6, 147; in constitutional theory, 6, 13. i45-7> l68 > 185-6, 212-13; intersubjective versus subjective meaning, 145-6; methodological, 5; philosophical, 5, 40-1; in social sciences, 145-6, 278^38; truth and objectivity, 5 Hirsch, E.D., 44-5 Hogg, Peter: and constitutional interpretation, 20; and legal positivism, 24on_4; on the manner and form thesis, 91; and the rule of law, 22, 234, 242n.2, 245^38, 248^78; on the sovereignty of Parliament,

58-9: 75 ideal type: in constitutional theory, 137-8, 148; defined, 137; formally rational, 148, 156-61; formally irrational, 147; and interpretation, 146-7; legal and sociological point of view, contrasted, 138; in the process of adjudication, 138-44, 146, 148, 27&n.6; in social theory, 137-8; substanlively irrational, i47;substantively rational, 148, 169; as ultimate binding

norm, 137-8; in Weber Max's sociology, 137-8, 147-8, 157-8, 28on.47, 2gin.26. See also rule of law as idealtype. institutional principles, 154-5. 174 Insurance Corporation of British Columbia v. Heerspink, 104-5, 227, 230 intention of Parliament: concept of, 72-3; and the constitutional principle, 215-16, 223;and the democratic principle, 213-14, 215-16; as "embodied" in the text, 25gn.72; in the implicit doctrine of the sovereignty of Parliament, 72-3; and the liberal principle, 218, 226; as the mental act constitutive of the meaning, 25gn.68; and presumptions of intent, 74, 111-12, 119-20, 123-6; and privative clauses, 220-2 interpretation. See constitutional interpretation; hermeneutics; interpretation of statutes; interpretive premise; rule of law as idealtype; rule of law as justice. interpretation acts: and continuing sovereignty, 87; and the intention of the legislature, 125; and presumptions of intent, 117-18, 125 interpretation of statutes: and ambiguous text, 119, 123-4; canons of interpretation, 36-7, 159-60; and the constitutional principle, 2i5~ig; and the democratic principle, 214; literal and grammatical,

334 and purposive, 73-4, 119, 122, 123; orthodox constitutional theory and, 20-1; orthodox theory of statutory interpretation, 71-4; and pre-existing law, 120-2; and privative clauses, 220-2; and quasi-constitutional legislation, 101-4; and the sovereignty of Parliament, 60—2; and "special nature" legislation, 108; strict and liberal, 224-6 interpretive decisions, 52-6 interpretive premise: expanded,46-7, 51-6; and the rule of law as certainty, 160-1; and the rule of the sovereignty of Parliament, 59-60, 71; and the ultimate reason, 55-6 Iser, Wolfgang, 42-3 judicial independence, 1 54> J 74 judicial review of administrative action: as institutional principle, 154, 174; and the principle of legality, 192; in the rule of law as justice, 174. See also constitutional principle. judicial review of legislation: as institutional principle, 154, 174; in the rule of law as justice, 174. See also constitutional principle, democratic principle.

Latham, R., 60-1 Laskin, Bora, 86, 222-3 law and order: as a conception of the rule of law, 30, 248^76; and Hobbes's political theory, 246^57 legal discourse, 279^43

Index

legality, principle of, 23—4, 29; defined, 190-1; and formal justice, 170, 174, 2gin.3i; and formal validity thesis, 23-4, 191; and judicial review, 192-3, 218-19; and privative clauses, 223; and the rule of law, 191-2; and the rule of law as justice, 170, 174, 192, a g i n ^ i , 295n.a6; and the rule of law as justice in Canada, 190—4; and the rule of law as positive rules, 36, 192; and the sovereignty of Parliament, 192 Levinson, Sanford, 48-9 liberal principle: broad and strict interpretation of statutes, 224-5; classical liberalism, 204-5, 224-5; controversial, 201-2, 298nn.7i-2, 303^26; defined, 202-3; and discretionary powers, 218; economic freedoms, 204; equal right, 203; harm principle, 205, 3oon.88; human dignity, 202-3; legal certainty, 205, 207; and legislative intent, 218-19; negative freedoms, 203; neutrality, principle of, 205, 29gn.87; obscenity, 225-6; personal freedoms, 204; political freedoms (seedemocratic principle); privacy freedoms, 204; private sphere, 203; and Roncarelli's case, 218; social justice, 205-7, 30in.95; state interventions, 203-7. See also liberalism. liberalism: in Canada, 298^72; and the rule of law as certainty, 149-50; and the rule of law as

justice, 28on.6. See liberal principle, literary theory. See critical theory. Lucas, John, 246^55 MacCormick, Neil, 37-8, 128, 130, 143, 164, 175, 179,2410.17 manner and form requirements. See quasi-constitutional legislation. Marshall, G., 97 material justice, principle of: decisions acceptable as morally just, 171; and the community, 180-1, 185-6, 293n_57; defined, 170-1; and elaboration of a substantive conception of justice, 171; and legal certainty, 172; one single right answer, 171. See also rule of law as justice in Canada. Mercurev. R., 82—3 moral theory: and coherence theory, 180, 293n_54; construction of, 179-82. See also rule of law as justice. natural justice, principles of, 154-5, !?4 "new view" on the sovereignty of Parliament. See quasi-constitutional legislation. nihilism: in ethics, 48; in law, 48—51. See also critical theory. objectivity: absolute and relative, 49-51, 56; in the rule of law as certainty, 159; in the theory of the core, 39-40, 24gn. 102. See also critical theory; foundational standpoint; hermeneutics; orthodox constitutional theory; positivism,

335 legal; rule of law as justice. O.P.S.E. U. v. Ontario (Attorney General), 84-5, 100 orthodox constitutional theory: basic propositions and postulates, 4, 15-21, 25-8; and Canadian constitutional thought, 15-16; central concern of, 19—21; and constitutional interpretation, 20, 62; and English constitutional theory, 16, 24in.5; essential aspects of, 18-21; formal validity thesis, 17-18, 19-21,34,57, 59, 191; and legal doctrine, 237n_7; and legal positivism, 4-6; 16-18; and statutory interpretation, 20-1, 61-2. See also positivism, legal. penumbra, theory of: see rule of law as positive rules. positivism, legal: approach, 16-17; basic assumptions, 4-6; Hart's theory, 16-18; truth and objectivity, 5; validity of, 142-4; variety of, 237^9. See also rule of law as positive rules. practical reason: and idealtypes, 138-40; and the interpretive premise, 52-3, 55; and principles, 128-31; and the rule of law, 33 practical reasoning: and common law, 114, 126; and the concept of "choice," 285^72; dialectical, 54, 161, 253n.igi; formal reasoning, 39, 160—1; and ideal type, 138-40; material, 47, 161, 175; and the rule of law as justice,

In

dex

174-6, 177-8, 180-2; substantive reasoning, 35, 160-1; syllogism, 39, 46,160-1 presumptions of intent: administrative versus constitutional law, 127; and clear and express terms, 112-18, 126; and consequentialist arguments, 123-6; defined, 74, 111-12; and entrenchment, 132; formal and substantive, 111-12; as imposing a requirement of form, 126; as inconsistent with orthodox theory, 118—26; as justified by parliamentary practice, 126-7; as a mean to control parliamentary intention, 118-19,124-6;and moral and political principles, 74,123-4, 125~6; and strict construction of statutes, 112, 114, 118 principles: defined, 128—9; general principles of law, 171, 293n_57; and idealtypes, 137—8; in judicial decisions, 129—31; legal, 129-31; and policy, i74n.37g; as reasons for decision, 12 8-31; and rules, 128 privative clauses: and antecedent rules, 223; and constitutional principle, 223, 305^56; defined, 219; and entrenched principles, 223; and liberal principle, 305^56; and orthodox theory, 222-3; strict construction of, 220-1, 304^49; in the United Kingdom, 219-20 propositions of law. See truth. prospectivity, principle of: defined, 150; ex post facto

laws, 150; and legal rules, 150; prospective overruling, 151; retroactive laws, 150 quasi-constitutional legislation: defined, 88; Elliot's thesis, 307^73; and entrenchment, 132; inconsistent with orthodox theory, 90-1, 104; manner and form thesis, 91-101, 267^213, 268n.237; the "new view" on the sovereignty of Parliament, 91-101, 267n.2o6; the rule of interpretation thesis, 101-4; and the rule of law as justice, 227-9. $ee also sovereignty of Parliament. R. v. Drybones, 89-91, 93, 99-104, 128-9, 132, 227-9, 230 R. v. Nova Scotia Pharmaceutical Society, 26—7, 244n-31 Rand, "Wan, 113-14, 115-16, 124, 214, 215 Raz, Joseph, 29, 33-4, 130, 149, 153, 164, 24in.i7 reception theory. See critical theory. Re Manitoba Language Rights, 3, 25-6, 211-12, 295^27 right of access, 155 right to property: in Colet's case, 117-18, 125; tresspass, 117 Roncarelli v. Duplessis, 115-16, 122, 124-5, 126, 127, 132, 215-19, 227, 230 Rorty, Richard, 41-2, 48 rule of law: and administrative law, 23-4; concept of, 32, 138, 145-6; and the concept of law, 33, 138—9; conceptions,

336 Index justice, 161, 164-5; and 32-4, 146; as a contested uncertainties, 155—6 concept, 29-30; explicit doctrines, 22-9; as a fun- rule of law as idealtype: compared with the rule damental principle of law as positive rules, of constitutional law, 28; 140-1; and the concept and hermeneutical of law, 138-9; and constiapproach, 145-7; imtutive principles, 138-9, plicit doctrine, 34-5; as 146, 148; defined, 138; internal meaning, 145; and the duty to uphold as intersubjective meanthe rule of law, 142, 144, ing, 145-6; modern and 146; empirical evidence contemporary concepof, 144—5; form and subtions, 23, 29-30; as stance, 139; and hermeopposed to arbitrariness, neutical approach, 32, 127-8, 247n.67; in 145-7, 278^38; and orthodox constitutional higher law, 141-2; intertheory, 19, 34—5; and nal coherence of positivist epistemologi138-41; as internal cal postulates, 25-8, meaning, 145; and inter144-5; and principled subjective meaning, decisions, 129-31; prin145-6, 27gn.42; and ciples of, 138, 139, 146; judicial decision accordand the process of adjuing to law, 138-41; as dication, 127-31, 138, part of the legal order, 145-6; as a standard of 141; and positivism, political morality, 23, 141-7; as practical rea24-5; and subjective son internal to the meaning, 146 process of adjudication, rule of law as certainty: clar141—4; and the preity (see clarity, principle existing legal practice of); constitutive prinand tradition, 139-40, ciples of, 150-5; and crit277n.i4, 277n.i6; in ical theory, 159-60; the process of adjudicadefined, 149; and distribtion, 138-41,145-6;and utive justice, 162-5; subjective meaning, 146; formalism and conceptuas ultimate reason, alism, 157; and formally 138—40; the validity and rational legal order, the interpretation of 156-8; and freedom, other legal norms, 149-50, 158; generality 138-41. See also ideal(seegenerality, principle type. of); internal coherence of, 155-61; and interpre- rule of law as justice: and the Charter of Rights tive premise, 160-1; and Freedoms, 234-6; and liberalism 149-50, and coherence theory, 28in.6; and practical 177-82, 212-13; constilegal reasoning, 159-61; tutive principles of, prospectivity (seepro168-74 (seeequity, prinspectivity, principle of); ciple of; formal justice, and the pursuit of subprinciple of; material stantive aims, 161-5; justice, principle of); and the rule of law as

correctness and rightness, 174, 211; defined, 166; and entrenchment, 226-32, 307^73; and ethical scepticism, 178—82; formal and mate rial justice, 168; and foundationalism, 179; and the intention of Parliament, 213-14; internal coherence of, 174-83, 212-13; and the interpretation of the judicial practice, 180, 212-13; and the interpretation of legal rules, 175-6, 211; and the judicial internal point of view, 168, 185; in legal and political tradition, 166-8, 287n.i6, 288n.2i, 28gnn.22-3; and legal certainty, 170, 172, 174, 176-7; as legal reason, 174, 177—8, 210; legality, 170; and manner and form requirements, 227—9, 3o7n.73, 3O7n_77; and more general substantive moral theory, 179-82, 185-6; and pluralism, 180; and privative clauses, 219-24; and the process of legal reasoning, 174-6, 177-8, 180-2, 211, 2gon.24; as regulative idea, 182; and the rule of law as certainty, 161, 164-5; and secession (see secession) ; strict and liberal interpretation, 224—6; and the supremacy of the constitution, 211—12; and truth, 178-9; and unlimited discretionary powers, 215; and the validity of legal rules, 175, 211; verification of the just character of, 178-82;

337 within practical legal reasoning, 168. See also rule of law as justice in Canada. rule of law as justice in Canada: antecedent rules relating to the interpretation of legislation, 213-14, 216, 223, 229; as a case of value pluralism, 186; the constitutive material principles of, 186 (seeconstitutional principle; democratic principle; federal principle; liberal principle); truth criterion, 187, 212-13; hermeneutical approach, 185-6, 212-13; and other liberal democratic states, 186 rule of law as positive rules: compared with the rule oflawasidealtype, 140-1; as implicit doctrine, 34-5; internal coherence of, 36-51; and legal positivism, 34-5; and legality, 35; theory of the core, 39—40; theory of the penumbra, 35-6 Sartorius, R.E., 130 secession, 231-2, 306^72, 3o8n.83 sedition, 113-15, 210-11, 214 separation of powers: as institutional principle, 154, 174; in the rule of law as justice, 174, 189 Singer,J.W., 48, 25in. 153 sovereignty, political theory of, 199-201 sovereignty of Parliament:

In

dex

analytical versus empirical proposition, 26in.112; antecedent rules and the interpretation of legislation, 71-4; antecedent rules and the validity of legislation, 63-71; continuing, 76-87 (seecontinuing sovereignty); continuing versus self-embracing sovereignty, 77; and democracy (see democratic principle); doctrine of implied repeal, 75-6, 77; "enrolled Act rule," 64, 69, 77; explicit doctrine of, 57; formal validity thesis, 59-62; implicit doctrine of, 57, 61-2; internal coherence of, 61-2, 255nn.19-20; and interpretation, 57, 59-62; interpretation thesis (seequasi-constitutional legislation); the interpretive premise and the rule of, 60; legal versus political doctrine of, 200—i; manner and form thesis, 91-101 (see quasi-consitutional legislation); "new view" on the, 91-101 (wquasiconstitutional legislation); ordinary versus special legislative process, 76, 77, 83, 88, 92,97. 99-101> 13*; in orthodox constitutional theory, 19, 57-62, 197, 254n.4, 26in.no; the rule of law as positive rules and, 59 "Special nature" legislation: compared with Macarthys

Ltd. v. Smith, 108-11; defined, 104; entrenchment, 132; inconsistent with orthodox theory, 106—7; manner and form thesis, 108 (see quasiconstitutional legislation) ; and the rule of law as justice, 230; as specific legislation, 108 Stephen, J.F., 113-15, 121 supremacy of the constitution: in orthodox constitutional theory, 19, 20, 58, 62-3, 226-7; and the rule of law as justice, 211-12, 227 Tarnopolsky, Walter, 91, 92-3, 267n.2i3 Taylor, Charles, 145 The Bribery Commissioner v. Ranasinghe, 95-7 tradition, 309^10 tresspass, 117 truth: as coherence, 6, 13, 147, 187; as correspondence, 4, 13, 16, 18, 25, 28, 147; and empirical evidence, 144; pragmatic criterion, 147; and the rule of law as justice, 178-82, 187, 212-13 ultimate reason, 55-6, 138, 253n.ig3- See also ideal type; rule of law as ideal type. Wade, H.W.R., 77-8, 86, 149, 223, 26in.i 12 Weber, Max. Sg£idealtype. Willis, John, 118 Winnipeg School Division No. i v. Craton, et al., 105-6, 128-9, 227, 230