Thursday, April 10, 2008

Chief Justice Beverley McLachlin's legal philosophy

In a speech in New Zealand, Chief Justice Beverley McLachlin, Alberta's current representative on the Court, asked
what gives the judges the right to set forth constitutional principles capable of invalidating laws and executive acts, when Parliament has not seen fit to set these principles out in writing in the nation’s constitution?
Indeed, inquiring minds would like to know. Justice McLachin suggests an answer:
... it is certainly clear that the post-Second World War period can properly be called the "age of rights." Clearly something is going on here; ... What is going on is the idea that there exist fundamental norms of justice so basic that they form part of the legal structure of governance and must be upheld by the courts, whether or not they find expression in constitutional texts.
Fundamental norms? An interesting choice of term. Why not fundamental truths? Apparently because "contemporary" people understand that to believe in an absolute right and wrong like Kant did is to believe in an obsolete and discredited "theology":
The contemporary concept of unwritten constitutional principles can be seen as a modern reincarnation of the ancient doctrines of natural law. Like those conceptions of justice, the identification of these principles seems to presuppose the existence of some kind of natural order. Unlike them, however, it does not fasten on theology as the source of the unwritten principles that transcend the exercise of state power. It is derived from the history, values and culture of the nation, viewed in its constitutional context.
You see? The sovereignty of Parliament and the written law can and even should be trumped by something more "fundamental", something "deeper":
Lord Cooke ... urged courts not to be afraid to assume their role in protecting certain fundamental principles as essential to the rule of law and the expression of democratic will, even if these "deep rights" were not in written form. ... I am with Lord Cooke ...
but it can't be really, metaphysically, fundamental, because that would imply that there is something transcendent to the judges, like Truth, Justice, or Reason, such that judges would be accountable to that instead of to their own spin on "the history" [of white oppression?], "values" [of the 'progressive' agenda?], "and culture" [of entitlement?].

Having knocked down the authority of Parliament, Truth, and the written law, what's left? To make a twist on a line from the Nightingales:"There ain't nobody here but us [judges]!"

In fairness, Justice McLachlin did acknowledge a role for "reason" and did not reduce everything to sociology. She called attention to Benjamin Berger's question, "Is a just society the fruit of reason or will?" and posited the Courts as the agent of the former and Parliament as the agent of the latter.

But perhaps because this might leave some doubt about her commitment to slaying the dragon of transcendent Truth, she claims that even the crimes of the Nazis are relative, citing one of Spencer Tracy's lines in Judgment at Nuremberg (a fictionalized Hollywood rendering of the trials) to suggest that the Nazis in the docket were offside with just "higher principles as affirmed by Germany’s history, culture and constitution".

What, exactly, did the "Triumph of the Will" and the "Will to Power" affirm? Hitler reportedly told Max Planck that, "If science cannot do without Jews, then we will have to do without science for a few years." I'd suggest that a judge in a culture like that can hardly be faulted for concluding that whether "a just society [is] the fruit of reason or will" is pretty much a settled question for his or her particular nation, a conclusion that would leave no mandate for resisting the government according to Justice McLachlin's account.

I actually see some merit in the Chief Justice's argument. But Posner makes the case far more comprehensively and has spent a career calling for the application of objective principles like maximizing efficiency (see "law and economics") to the adjudication of legal disputes as opposed to leaving it to subjective sociological assessments. Posner has also stepped up to the plate with respect to vigorously addressing and responding to the opposing position as articulated by Ronald Dworkin. The work of scholars like Fred Schauer, who argues for a middle position between situational morality and absolute morality, should also be addressed when the Chief Justice is making the case for a non-deferential, situational approach as strongly as she is.

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