Plural Public Law: Methodologies

I gave my inaugural lecture as the University Research Chair in Administrative Law at the University of Ottawa earlier this month. 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. This is the fourth post in a series: the first, second and third installments can be accessed here, here and here.

I have argued that public law is shaped by a plurality of principles and that these principles can be derived from a plurality of sources. The last component of my “plural public law” is methodology.

This plurality of sources calls for a plurality of methodologies, or more prosaically, a variety of ways of looking at the world. Methodology has a bad reputation in the legal academy, viewed by public lawyers with the disdain my children reserve for steamed vegetables, but careful attention to method is the academic equivalent to the regular ingestion of antioxidants. Those who do not take methodology and method seriously will end up with nothing more than a “vast rubbish heap of miscellaneous facts”.[1] This is not the path to relevance and influence in any world and certainly not in ours.

Public law has been enriched by the plurality of scholarly approaches to its subject matter. There is of course classic doctrinal work by “faiseurs de systèmes”,[2] describing the current structure of the law, occasionally supported by historical research.[3] Normative theories, such as liberalism[4] and republicanism,[5] have been applied with great profit to areas of public law. Empirical studies, of both judicial decisions[6] and (from a social-legal perspective) front-line administrative decision-making[7] have enriched our understanding of how institutions work. Interpretive approaches have provided broad frameworks for understanding vast bodies of law. Institutionalist and economic theorists have offered helpful advice on how to rationalize and increase the efficiency of public administration and judicial review.[8] Work done in cognate disciplines, such as political science, is also extremely valuable, for instance in enhancing understanding of the law-making process[9] and how it relates to statutory interpretation.[10] Canadian public lawyers are particularly fortunate in this regard, as the jurisdiction’s multiple legal traditions – common law, civiliste and indigenous – provide a multiplicity of perspectives on the same or similar problems.

An appreciation of the plurality of methodological approaches should lead fairly quickly to a high degree of epistemic humility. Given the vast and rich literature looking at public law from a broad array of perspectives, it would require breath-taking arrogance to think that individual scholars are anything more than visually challenged participants in the parable of the blind men and the elephant. In social sciences, the notion that there are multiple schemes of intelligibility is widely accepted, each scheme “giving only partial access to reality” and not involving the elaboration of “some grand global theory”.[11] A unified field theory is quite beyond us — indeed, my observations about the plurality of principles lead to the conclusion that no matter how elegant the theoretical straitjacket, the facts will stubbornly refuse to fit it, a problem which sometimes arises for Canada’s civiliste public lawyers when they attempt to impose top-down taxonomies as a means of bringing order to the chaos of the common law.[12] We must, as Grant Gilmore advised in his Storrs Lectures, “keep our theories open-ended, our assumptions tentative, our reactions flexible” and continue to learn from the work of others with different methodological inclinations.[13]

A related observation is that, often, what seems like heated academic disagreement is the product less of personal enmity than of methodological divergence. Students of constitutional and administrative law when I taught at the University of Cambridge were treated to lectures and supervisions on the so-called “ultra vires” debate between Professors Allan, Craig, Elliott and Forsyth.[14] The debate generated more heat than light,[15] primarily because the antagonists had different methodological approaches. Forsyth sought to reconcile judicial creativity in administrative law with the doctrine of parliamentary sovereignty, a top-down theoretical approach which proceeded by remorseless analytical deduction from first principles.[16] Craig sought to refute Forsyth’s arguments by virtue of a descriptive and historical analysis.[17] When Allan and Elliott added interpretive analysis to the literature,[18] Craig responded with further history and description.[19] To students reading the angry back and forth in the pages of the law journals, the Professors might seem to be gladiators fighting to the death in the Colosseum. From my perspective they resemble nothing more than ships passing quietly in the night. For my part, although I have favoured doctrinal and interpretive approaches in my work, I appreciate that mine is only one perspective on the world and that my understanding of the material can be continually enriched by contributions from others with different methodological approaches. In analyzing the plurality of sources and deriving a plurality of principles, pluralism in methodology is a friend, not an enemy. 

My support for a plurality of methodologies is not support for academic dilettantism. It might not be prudent for public lawyers to sashay across disciplinary boundaries today with the carefree abandon of some of our predecessors. WPM Kennedy’s magisterial text on the Canadian constitution[20] “traces the historical development of Canada’s constitution and institutions by cutting across the boundaries of law, sociology, political science and history”.[21] It remains a wonderfully engaging text but contemporary scholars would rightly expect greater rigour. Working across boundaries is harder than reading across them; doctrinal or interpretive work can be informed by political science, political philosophy or sociology without its rigour fading and turning to poli-sci-lite, diet philosophy or gluten-free sociology. For example, the idea, widely accepted in legal circles, that contemporary Westminster systems are a form of “elective dictatorship” has been profoundly challenged by Meg Russell and Daniel Gover’s recent political-science tour de force on how governmental action can in fact be shaped by the “anticipated reactions” to legislative proposals of their supposedly non-descript backbenchers.[22] In summary: Eat your greens, public lawyers, but as part of a balanced diet.

[1] John Finnis, Natural Law and Natural Rights, rev ed (Oxford University Press, Oxford, 2011), at p. 17.

[2] Jean Rivero, « Apologie pour les ‘faiseurs de systèmes’ » (1951) Dalloz, Chronique XXIII, p. 99.

[3] See e.g. Paul Craig, UK, EU and Global Administrative Law: Foundations and Challenges (Cambridge University Press, Cambridge, 2015).

[4] See e.g. TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, Oxford, 2001).

[5] See e.g. Eoin Daly and Tom Hickey, The Political Theory of the Irish Constitution: Republicanism and the Basic Law (Manchester University Press, Manchester, 2015).

[6] See e.g. Sarah Nason, Reconstructing Judicial Review (Hart, Oxford, 2016).

[7] See e.g. Geneviève Cartier, “Administrative Discretion and the Spirit of Legality: From Theory to Practice” (2009) 24 Canadian Journal of Law and Society/Revue Canadienne Droit et Société 313; Marc Hertogh, “Through the Eyes of Bureaucrats: How Front-line Officials Understand Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010); Jennifer Raso, “Unity in the Eye of the Beholder? Reasons for Decision in Theory and Practice in the Ontario Works Program” (2020) 70 University of Toronto Law Journal 1; Lorne Sossin and Laurie Pottie, “Demystifying the Boundaries of Public Law: Policy, Discretion, and Social Welfare” (2005) 38 University of British Columbia Law Review 147.

[8] See e.g. Peter Cane, Controlling Administrative Power: An Historical Comparison (Cambridge University Press, Cambridge, 2016); Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpretation (Harvard University Press, Cambridge, 2006).

[9] See e.g. Meg Russell and Daniel Gover, Legislation at Westminster (Oxford University Press, Oxford, 2018).

[10] See e.g. Victoria Nourse, Misreading Law, Misreading Democracy (Harvard University Press, Cambridge, 2016).

[11] Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Hart, Oxford, 2014), at pp. 92-93.

[12] Robert Leckey, “Territoriality in Canadian Administrative Law” (2004) 54 University of Toronto Law Journal 327.

[13] The Ages of American Law, 2^nd ed. (Yale University Press, New Haven, 2014), at p. 99.

[14] See generally Christopher Forsyth ed, Judicial Review and the Constitution (Hart, Oxford, 2000).

[15] Christopher Forsyth, “Heat and Light: A Plea for Reconciliation” in Christopher Forsyth ed, Judicial Review and the Constitution (Hart, Oxford, 2000).

[16] Christopher Forsyth, “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review” (1996) 55 Cambridge Law Journal 122.

[17] Paul Craig, “Ultra Vires and the Foundations of Judicial Review” (1998) 57 Cambridge Law Journal 63.

[18] Elliott, The Constitutional Foundations of Judicial Review; TRS Allan, “Constitutional Dialogue and the Justification of Judicial Review” (2003) 23 Oxford Journal of Legal Studies 563.

[19] Paul Craig, “The Common Law, Shared Power and Judicial Review” (2004) 24 Oxford Journal of Legal Studies 237.

[20] The Constitution of Canada: An Introduction to its Development and Law, reissue with introduction by Martin Friedland(Oxford University Press, Oxford, 2014).

[21] Paul Daly, “Constituting Canada: Review of The Constitution of Canada: An Introduction to its Development and Law, byW.P.M. Kennedy, introduction by Martin Friedland”, The New Rambler Review, December 23, 2015: https://newramblerreview.com/book-reviews/law/constituting-canada

[22] Legislation at Westminster.

This content has been updated on March 25, 2020 at 18:17.