Thursday, December 08, 2005

Law and the Interpretation of Unwritten Principles: Why the Law must not be viewed as Comprehensive

In a recent email exchange between a group of lawyers and legal academics a question was raised in relation to a speech given in New Zealand by Canadian Chief Justice Beverly McLachlin in which she is quoted as saying that: "The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion" See: Janice Tibbetts, National Post, CanWest News Service, Monday, December 05, 2005. Listed were "norms that are essential to a nation's history, identity, values and legal system" and she mentioned several such as: "the right to not be punished without a trial, to retain counsel and to enjoy the presumption of innocence".

These are rather unobjectionable and no one would disagree that these are essential parts of the "rule of law" referred to in the Charter's Preamble.

What people object to, however, are not these "motherhood" types of legal principles but the application of general terms such as "equality" to such claims as same-sex marriage for example.

The question about whether judges should or should not "go beyond" the written words of a constitution needs to be carefully unpacked lest we accept Justice McLachlin's claims (and I have not had the benefit of reading her full paper) and rope in some kinds of claims (i.e. same-sex marriage) to others such as "fundamental" freedoms.

Much of law is necessarily beyond the written words whether as a result of, with statutory laws, interpretative necessity (by application to "facts" the trier of fact must determine or as a result of the ambiguity of meaning in words, phrases and intentions or a combination of the two to particular situations) or because the case-law (being unwritten save in factual contextualized prior cases) has to be found to be governed or not governed by the developing tradition of the law (such as common law "incrementalism").

In both cases, the judge is necessarily operating, in a sense, "beyond" precise words since the whole question is one of application and meaning to specific cases. In the same-sex marriage decisions the written ("equality") and unwritten ("dignity") were being applied from and towards the written (constitution) and unwritten "common-law development" streams of law. Debates on both sides engaged every aspect, one of which was whether marriage was and is properly a creation of law at all. The courts simply ignored this.

What is interesting therefore about our current discussion isn't so much whether the words are there or not (they are both in written or unwritten cases) but the assumptions upon which the interpretations are based and the telos (usually unarticulated) to which the decisions are oriented and what this shows us about certain contemporary jurists understanding of the scope of the rule of law.

Thus, when "same-sex marriage" is found to be within the meaning of "equality" and the common-law principle of incremental development (where the second leg is that there not be "unforeseen consequences") and the whole analysis was driven by the same-sex claim for "dignity" read as the desire for social recognition as against concerns from many religious groups (for example) about their own dignity being pressured, we get a glimpse of what the assumptions are and where they tend.

In this case, the assumption that "my desire for social recognition as a gay or lesbian" is something that the law can and should be cognizant of, was rank-ordered as higher than the concerns from the religious groups that "our recognition of marriage will now lead us to be social outcasts" due to the assumption that that the law can drive us towards the promised land of equality where, some day, all will agree with the new direction....

In the new dispensation (self administered) law is not just capable of driving us to consensus, but must do so as a divine (small "d") mandate.

What is at issue is actually the role of law in the state and its role in relation to society. McLachlin's paper and Jean Elshtain's response in the McGill Press volume edited by Douglas Farrow, Recognizing Religion in a Secular Society (available from the Centre's website) is key here: is or is not the law a system of "comprehensive claims?" McLachlin says "yes", Elshtain "no".

How we answer that question determines in many ways how we will line up with respect to the original question. After all, the "natural law" was never created by the jurists but elsewhere in days when Bracton and Blackstone simply stated that there were these divine principles at the beginning of their works then focused upon the practical principles thereinafter.

Now if law is a replacement theology in the contemporary era - - as some seem to think and talk (how else can "law" be a "comprehensive" claim to meaning in any sense?) it ought not to surprise us that it will be subject to the same "theocratic" temptation religions faced and face.

Thus, the assumption of eventual agreement and of the constitution's capacity to get us there "with a little help from its judicial midwives" based upon a confidence that law has ultimate capacity to answer ultimate questions is the real problem not whether a principle is or is not within the written law or whether a judge is or is not "emboldened".

We want bold and just judges, we just don't want them to be gods. Law that goes all the way up will surely take us all the way down however levelheaded its proponents seem to be.

CENTREBLOG: Volume 107
Iain T. Benson ©