Plural Public Law: Principles

I gave my inaugural lecture as the University Research Chair in Administrative Law at the University of Ottawa last week. You can watch the lecture here (after some introductory remarks from Dean Sylvestre, Chief Justice Wagner and Justice Bich). The comments from my respondents, Justice Stratas and Professor Cartier can be found here. I posted the first part of the text earlier this month. Here is the second installment.

Our public law, and here I include the public law of Quebec,[1] is drawn from the English tradition. Historically, as is now well recognized, public law has evolved, incrementally, step by painstaking step, in response to changing circumstances.[2] Indeed, the common law has been described as “chaos with a full index”,[3] and common lawyers act as indexers, focusing above all else on concrete situations and, especially, remedies. Therefore, imposing on the common law a theoretical straitjacket derived from abstract philosophizing is certainly ahistorical and quite probably wrongheaded. One will search, in vain I fear, for areas of law united by one, single meta-principle (or, if you prefer, meta-value or meta-purpose).[4]

Public policy scholars might describe this as ‘muddling through’, which is not a pejorative but often a rational way of dealing with complexity and uncertainty.[5] Sure enough, when common lawyers have been faced with the remorseless logic of arguments proceeding ineluctably from first principles, they have recoiled: for instance, laws found to be unconstitutional are not really void ab initio as logic would have it; rather, judges have developed a variety of tools to respond to the practical difficulties created by declarations of unconstitutionality.[6]

This is not to say that the common law is unprincipled. Far from it. But it is to say that any principled account can only be derived from practice, not from abstract theory. Doctrine – the body of laws and judicial decisions – is not an inconvenient obstacle but the cornerstone of any principled reconstruction.

I would not deny either the insight of those theorists of sociology who insist that law is a closed normative system.[7] Indeed it is. That is why we all laugh when the lawyer before the High Court of Australia in the movie The Castle rests his case on “the vibe of the constitution”. Rather, as Edelman J recently put it, a constitution “is not merely a jumble of letters capable of being given entirely new essential content at different times like alphabet soup”.[8] Accepting that the law is a closed normative system, however, tells us nothing about how the system operates. Experience teaches that the common law does not operate by virtue of remorseless deduction from first principles developed in the abstract.[9] There is no meta-principle from which all else follows.

Several examples will illustrate the point. First, when a judge finds that an administrative decision was unlawful, she has discretion to manage the consequences of that finding.[10] It is not simply the case that a finding of unlawfulness means that the decision never existed and was thereby incapable of having legal consequences. Rather, a plurality of considerations goes into the formulation of the appropriate remedy. Administrative law is not based on “such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity” but on principles derived from attempts to apply those concepts.[11] As mentioned, this point can be pressed with even greater force in the context of constitutional review, where judges use discretion to manage the consequences of findings that statutory provisions are unconstitutional.

Second, statutory interpretation does not turn simply on the text of the provision at issue but, instead, on the text, purpose and context of the provision and, also, on the application of any relevant constitutional principles – a plurality of considerations.[12] Even Richard Ekins’ sophisticated attempt to reduce statutory interpretation to an exercise in deducing “legislative intent” – a meta-concept if ever there was one – does not quite succeed.[13] For Ekins, legislators have the intent to act upon an agreed set of procedures for producing law. This is background information which “is held in common amongst legislators and [which] structures how they act together”^[14] before they set to work in the legislative chamber.[15] But there is no reason that these legislators could not also be said to act with the knowledge that purpose, context and relevant constitutional principles will be brought to bear on the interpretation of the statutes they create through these procedures. Why isn’t the wisdom of Lord Steyn also “held in common”, such that the legislators agree that “Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law”?^[16] There is, as far as I can see, no satisfactory intentionalist answer to this question.[17]

Third, constitutional interpretation has never been solely an exercise in determining the original meaning of the document but rather has always required resort to a plurality of modalities of interpretation, which include historical, precedential, structural and consequentialist arguments.[18] The Supreme Court of Canada’s recent decision in R. v. Comeau,[19] is a chef d’oeuvre in this regard: unanimously, and to the chagrin of all those who thirst for free interprovincial trade in liquor, the judges decided not to return to the original meaning of s. 121 of the Constitution Act, 1867, because of a variety of contextual and structural concerns; the consequences, grounded in the principle of federalism, for provincial regulation of a return to the visions of the Fathers of Confederation chief amongst them.

Finally, the common law courts have come to recognize that public power in private hands is properly the subject of judicial oversight and the application of norms of public law. Some such bodies have “a Giant’s strength”, which calls for the courts to flex their accountability muscles.[20] There is no strict divide between that which is public and that which is private. At least for the purposes of the common law, it is impossible to put individual decisions in boxes marked “public”, “governmental” or “state”, for there are no watertight compartments but instead a difficult borderline which needs to be navigated by reference to a variety of considerations.

I would say that each of these examples illustrates a plurality of considerations at work. I could multiply the examples, broadening the range and deepening the discussion of particular areas. But my point would be the same: there is no one meta-principle, be it “nullity”, “legislative intent”, “original meaning” or “governmental”, from which all else follows ineluctably. There is only, instead, a plurality of principles derived in classic common law fashion from the bottom up rather than from the top down.[21]

[1] Québec (Procureur général) v. Labrecque, [1980] 2 SCR 1057, at pp. 1081-1082, per Beetz J.

[2] SA De Smith, “The Prerogative Writs” (1951) 11 Cambridge Law Journal 40, at p. 48.

[3] Sir Thomas Holland, cited by Gerald Postema, “Introduction: Search for an Explanatory Theory of Torts” in Gerald Postema ed., Philosophy and the Law of Torts (Cambridge, Cambridge University Press, 2001), p. 1, at p. 1.

[4] Paul Daly, “A Pluralist Account of Deference and Legitimate Expectations” in Matthew Groves and Greg Weeks eds, Legitimate Expectations in the Common Law World (Hart Publishing, Oxford, 2017).

[5] Charles Lindblom, “The Science of ‘Muddling Through’” (1959) 19 Public Administration Review 79 and “Still Muddling, Not Yet Through” (1979) 39 Public Administration Review 517.

[6] See generally, Robert Leckey, Bills of Rights in the Common Law World (Cambridge University Press, Cambridge, 2015).

[7] Niklas Luhmann, Law as a Social System trans. Klaus A Ziegert (Oxford University Press, Oxford, 2004).

[8] Love v Commonwealth of Australia [2020] HCA 3, at para. 399.

[9] Oliver Wendell Holmes, The Common Law (Little, Brown & Co, Boston, 1881), at p. 5.

[10] See e.g. State (Cussen) v Brennan [1981] IR 181, at p. 195, per Henchy J; Seal v Chief Constable of the South Wales Police [2007] 1 WLR 1910, at para. 33; Walton v Scottish Ministers [2013] Env LR 16, at paras. 81 (Lord Reed), 103 and 112 (Lord Carnwath) and 155-156 (Lord Hope); R (New London College) v Secretary of State for the Home Department [2013] 1 WLR 2358, at paras. 45-46; Vavilov, at para. 142.

[11] R (Privacy International), at para. 132, per Lord Carnwath.

[12] See generally Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 and see e.g. R (Evans) v. Attorney General, [2015] UKSC 21, [2015] 1 AC 1787; Privacy International.

[13] The Nature of Legislative Intent (Oxford University Press, Oxford, 2012).

[14] Ibid. at p. 231.

[15] As Ekins puts it, ibid. at p. 220:

The particular intention of the group is the intention on which it acts in any particular legislative act, which is both that for which it acts—changes in the law that are means to valuable ends—and the plan it adopts to introduce those changes—a complex set of meanings that expresses a complex set of propositions. This particular intention arises from within the standing intention, in that it is formed by following the structure the group has adopted as its means to the end of being ready and able to legislate. Each particular legislative act may be said to be a more specific means to that same end. However, this depiction is somewhat misleading. A particular legislative act is best seen not to be a means to the end of reasonably exercising legislative capacity, but to be an instantiation of that end. Thus, the group intends to exercise legislative capacity by means of this set of procedures and its legislative action in any particular case is an instantiation of the legislature acting, as it should, in fulfilment of its reason to be.

[16] R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539, at p. 587.

[17] See also Mark Elliott, The Constitutional Foundations of Judicial Review (Hart, Oxford, 2001).

[18] Philip Bobbitt, Constitutional Fate: Theory of the Constitution (Oxford University Press, New York, 1982).

[19] 2018 SCC 15, [2018] 1 SCR 342.

[20] R v. Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815, at p. 845, per Lloyd LJ.

[21] See e.g. Paul Daly, “Introduction: Apex Courts from Top to Bottom” and Beverley McLachlin, “The Role of the Supreme Court of Canada in Shaping the Common Law” in Paul Daly ed., Apex Courts and the Common Law (University of Toronto Press, Toronto, 2019).

This content has been updated on March 12, 2020 at 14:07.