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Judges of the Court
Remarks of the Right Honourable Beverley McLachlin, P.C.
Given at the 2005 Lord Cooke Lecture in Wellington, New Zealand
December 1st, 2005
A few years ago, a new subject emerged on the hot list of legal academe –
unwritten constitutional principles. It was greeted with interest and optimism
by some, but puzzlement and scepticism by others. What were these principles?
Was the phrase “unwritten constitutional principles” not an oxymoron,
given that constitutions are generally understood to be written documents? And
if one surmounts these difficulties, how and by whom are these so-called unwritten
constitutional principles to be discovered? The judges, you say? But 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?
Yet despite these inauspicious murmurs, the subject has engaged judges, parliamentarians
and academics in countries as far flung as Israel, Australia and the United
States. It has been debated both in countries that have written constitutions
and countries that do not. In fact, many political scientists and legal scholars
observe that participation in the “rights revolution” may be less
about the precise wording of constitutional texts - or even about bills of rights
at all - but instead a reflection of a certain kind of supportive legal and
political culture.1 Whatever the cause, it is
certainly clear that the post-Second World War period can properly be called
the “age of rights.”2 Clearly something
is going on here; something that cannot be dismissed with a wave of the judicial
hand. Tonight I would like to explore that question. Hence the title of my address:
“Unwritten Constitutional Principles: What is Going On?”
I will suggest that actually quite a lot is going on, and that it is important.
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.
And the idea is important, going to the core of just governance and how we define
the respective roles of Parliament, the executive and the judiciary.
Lord Cooke, for whom this lecture is named, has played a key role in the debate
about these principles in New Zealand and more broadly in the common law world.
In his decision in Taylor v. New Zealand Poultry Board, he identified
an inherent limit in the capacity of Parliament to enact enforceable laws: “I
do not think,” he wrote, “that literal compulsion, by torture for
instance, would be within the lawful powers of Parliament. Some common law rights
presumably lie so deep that even Parliament could not override them.”3
He elaborated on this sentiment in an article in 1988 written for the New
Zealand Law Journal, where he concluded that
Within very broad limits Parliament has the constitutional role of laying
down policy, and undoubtedly there is a corresponding duty on the Courts to
uphold and respect Parliament’s role. But...one can no longer talk about
‘some vague unspecified law of natural justice’ or resort to similar
anodynes. One may have to accept that working out truly fundamental rights
and duties is ultimately an inescapable judicial responsibility.”4
This understanding of the role of judges in relation to fundamental rights
did not depend on a written bill of rights, although it is not surprising that
Lord Cooke also supported the constitutional entrenchment of rights protection,
based on the model of the Canadian Charter of Rights and Freedoms.5
In his prescient way, Lord Cooke put his finger on a question that would come
to more and more preoccupy the common law world in the years that followed:
do judges have the right to invoke fundamental norms to trump written laws?
And in his usual forthright way, he staked out his turf on the issue in no uncertain
terms. He argued that an independent judiciary is the safeguard of parliamentary
democracy, and 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.
Not everyone, of course, accepted the position that Lord Cooke had so eloquently
defended. Critics argued that the invocation of unwritten norms cloaks unelected
and unaccountable judges with illegitimate power and runs afoul of the theory
of parliamentary supremacy propounded, as they see it,6
by the venerated legal scholar, Dicey.7
It is for Parliament, and Parliament alone, they argued, to set out the fundamental
constitutional principles of the nation. Some went so far as to suggest that
the idea of unwritten constitutional principles was a barely concealed power
grab by activist judges.
So who is right? Lord Cooke, who asserts that upholding fundamental norms,
even those that have not been written down, is an inherent and legitimate aspect
of the judge’s role? Or the critics, who assert that the judges have no
business going beyond the written word of the constitution?
But I’m getting ahead of myself. The proper outcome of this debate depends
on the answer to more profound questions. What do we mean when we speak of unwritten
constitutional principles? Are there some principles or norms that are so important,
so fundamental, to a nation’s history and identity that a consensus of
reasonable citizens would demand that they be honoured by those who exercise
state power? What do we mean by a constitution? Is the idea of unwritten constitutional
principles really a new idea, or is it merely a new incarnation of established
legal thought?
To these questions I would answer as follows. First, unwritten constitutional
principles refer to unwritten norms that are essential to a nation’s history,
identity, values and legal system. Second, constitutions are best understood
as providing the normative framework for governance. Seen in this functional
sense, there is thus no reason to believe that they cannot embrace both written
and unwritten norms. Third - and this is important because of the tone that
this debate often exhibits - the idea of unwritten constitutional principles
is not new and should not be seen as a rejection of the constitutional heritage
our two countries share.
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.
As Professor Walters has argued in the Canadian context:
Insofar as unwritten fundamental law is regarded as an assertion of the
supremacy of natural law, right reason or universal principles of political
morality and human rights over legislation, it is part of a rich intellectual
tradition that had informed common law thinking from medieval times, through
the English and American revolutionary ages, and into the high Victorian era
of empire out of which Canada’s written constitution emerged.8
If the Professor is right, and I think he is, then this idea is neither American
nor British, but is shaped by both legal traditions and a common heritage that
goes back much further.
This “rich intellectual tradition” of natural law seeks to give
the law minimum moral content. It rests on the proposition that there is a distinction
between rules and the law. Rules and rule systems can be good, but they can
also be evil. Something more than the very existence of rules, it is argued,
is required for them to demand respect: in short, to transform rules into law.
The distinction between rule by law, which is the state of affairs in certain
developing countries, and rule of law, which developed democracies espouse,
succinctly captures the distinction between a mere rules system and a proper
legal system that is founded on certain minimum values. The debate about unwritten
constitutional principles can thus be seen as a debate about the nature of the
law itself and what about it demands our allegiance.9
Modern democratic theory, as espoused by most developed western democracies,
combines two inherently contradictory doctrines. The first is what is often
identified as the Diceyan doctrine that it is for Parliament and Parliament
alone to establish the law, and, by implication, the fundamental norms upon
which it rests. The second is the belief, widely accepted in developed modern
democracies since World War II, that legal systems must adhere to certain basic
norms. At a minimum they must allow citizens to vote for those who rule them,
and they must not kill any (or many, depending on the state) of their citizens.
This much we insist on since the Holocaust. Beyond this minimum, there is a
variance, although still a solid core of agreement. States, most hold, should
not torture their citizens. States should not discriminate on the basis of gender,
race or religion. Finally, at the developing fringes of the new natural law,
which goes by the name human rights, are other assertions. Not only should states
not directly kill their citizens, they should avoid killing them indirectly
by famine, medical neglect, and degradation of the environment.
Although cast in the language of religion, early natural law theories saw
the manifestation of the divine in something that became the foundation of the
Western world’s conception of itself: human rationality. For Thomas Aquinas,
it was human reason that allowed individuals to access, in some form, a deeper
understanding of justice. Natural law was, he wrote, “something appointed
by reason.”10 And yet the limits of
that reason made written law incomplete in two important ways. On the one hand,
lawmakers may abuse their power by deviating from reason and enacting unjust
laws. On the other, because lawmakers can never imagine all possible circumstances
under which their laws apply, just laws will become unjust in certain circumstances.11
Today’s fundamental norms are cast more clearly and exclusively in terms
of reason that take at their heart the notion, in some form, of basic human
dignity. There is no doubt that the norms I mentioned earlier - government by
consent, the protection of life and personal security, and freedom from discrimination
- can all be advanced by moral argument. It is worth noting, however, that they
can also be supported by a democratic argument grounded in conceptions of the
state and fundamental human dignity that we have developed since John Stuart
Mill.
If the state, as we believe, exists as an expression of its citizens, then
it follows that its legitimacy and power must be based on the citizens’
consent. Hence, citizens must be given the right to vote their governments into
and out of office. Similarly, as Canada’s Secession Reference illustrates,
transitions from one form of citizenship to another must be premised on democratic
norms.12 This is so whether the right is written
down or not; it flows from our conception of the democratic state. Similarly,
if one agrees that the raison d’être of the modern state is to promote
the interests of its citizens, it follows that states should not be allowed
to exterminate entire sectors of the society. And if we accept equality based
in the fundamental dignity of every human being, then it follows that states
should not be able to single out innocent groups or individuals for torture
or death. These precepts can be seen as the expression of unwritten constitutional
principles based on the structure of democracy itself.
Thus the legitimacy of the modern democratic state arguably depends on its
adhesion to fundamental norms that transcend the law and executive action. This
applies to all of the branches of state governance – Parliament, the executive
and the judiciary. For example, the Commonwealth Principles on the Accountability
of and the Relationship Between the Three Branches of Government, which
were based on the Latimer House Guidelines of 1998 and endorsed by heads of
government in 2003, state in Article 1:
Each Commonwealth country’s Parliaments, Executives and Judiciaries
are the guarantors in their respective spheres of the rule of law, the promotion
and protection of fundamental human rights and the entrenchment of good governance
based on the highest standards of honesty, probity and accountability.13
Rule of law. Human rights. Good governance. Principles that all branches of
government, including the judiciary, must seek to uphold. Principles that may
be written down, in some measure in some countries. But principles that the
Commonwealth countries have asserted should prevail everywhere.
One way to confirm the link between fundamental norms and our understanding
of statehood and the law is by examining the work of courts operating in systems
with no written constitutional bill of rights. Even without clearly written
constitutional powers of enforcement, courts have found ways to ensure fundamental
justice.14
In Canada, decades before the Charter, Rand J. of the Supreme Court
alluded to enforceable – if unwritten – norms of fairness, stating
that “[i]n public regulation of this sort there is no such thing as absolute
and untrammelled discretion” and good faith must always be presumed.15
To do otherwise, he wrote, “would signalize the beginning of disintegration
of the rule of law as a fundamental postulate of our constitutional structure.”16
Nearly eighty years before Justice Rand, the courts of British Columbia
struggled with a series of anti-Chinese provincial and local laws and used the
division of powers in our constitution to strike them down.17
Members of the Supreme Court of British Columbia - a court on which I
would serve a hundred years later, at the time of the introduction of the Charter
- relied on the text of the constitution, but also on the principles of English
law that underlay that text.18 In 1938, in
the Reference re Alberta Statutes case19
, in the absence of a written guarantee, the Supreme Court held that freedom
of political expression must be recognized as inherent in the nature of democracy.
At this point, you will not be surprised to hear me declare my position. As
a modern natural law proponent, I believe that the world was right, in the wake
of the horrors of Nazi Germany and the Holocaust, to declare that there are
certain fundamental norms that no nation should transgress. I believe that it
was right to prosecute German judges in the Nuremberg Trials for applying laws
that sent innocent people to concentration camps and probable deaths. I believe
that the drafting and adoption of the Universal Declaration of Human Rights
in 1948 was a giant step forward in legal and societal thinking. And I believe
that judges have the duty to insist that the legislative and executive branches
of government conform to certain established and fundamental norms, even in
times of trouble. In short, I am with Lord Cooke on this issue.
The real debate, it seems to me, is not about whether judges should ever be
able to rely on basic norms to trump bad laws or state action. At least in some
circumstances they must be able to do this. If a state were to pass a genocidal
law, for example, I think it would clearly be the duty of the judges to deny
the law’s validity on the ground that it offended the basic norm that
states must not exterminate their people. It we agree on this – and I
suspect most of us would – then the debate is not about whether judges
should ever use unwritten constitutional norms to invalidate laws, but rather
about what norms may justify such action.
The argument I have been advancing may dispose of the suggestion that, as
a matter of principle, it is inherently wrong for judges to rely on unwritten
constitutional norms, if constitutional is understood here in the sense of an
overriding principle that can invalidate laws and executive acts. However, it
does not dispose of the contradiction alluded to earlier between the theory
that sees Parliament as the source of all law, and the idea that the law may
include principles that Parliament has not made. Professor David Dyzenhaus calls
this a central contradiction in modern democracies, and he articulates it in
terms referable to judges:
On the one hand, if they fail to give the rule of law substantive content,
they will appear to be more concerned with upholding their sense of role than
with doing the job that explains why they should have that role. On the other
hand, as they give the rule of law content, so they run the risk of appearing
to usurp the legislative role...20
Either way, judges lose.
The same conundrum is described by Professor Benjamin Berger, who observes
that since the adoption of the Canadian Charter in 1982, “[r]ightly
or wrongly...when Canadians hear the word “Constitution” they hear
the promise of a just society. The post-Charter Constitution is held out as
a justice-seeking document.”21 What
Berger makes clear is that if Canadians have embraced their constitution as
a means to achieve justice, they have not yet established a consensus on where
that justice comes from and on what it’s based. As he notes:
But if this symbolic change is clear, we are not at all resolved on our
sense of the rightful source of justice in our political structure. Is a just
society the fruit of reason or will? Our commitment to democratic institutions
that represent the views of the populace – a deep commitment grounded
in our history of Parliamentary supremacy – suggests that justice is
a question of the authentic representation of will. By contrast, our modern
faith in human rights (of which the Charter is our national manifestation)
suggests that justice is not a matter of majoritarian or popular debate, but
an expression of a reasoned commitment to the dignity of all human beings.
What we are seeing in the debates ... is an expression of this tension.
The answer to the conundrum between justice as an expression of Parliamentary
will and justice as an expression of fundamental principles, sometimes unarticulated,
lies in the answer to three more particular problems that arise from the concept
of underlying unwritten constitutional norms. The first is the problem of how
unwritten norms can be squared with the precept that law should be set out in
advance of its application. The second is the problem of how to identify these
fundamental unwritten principles that are capable of trumping laws and executive
action. The third is the problem of judicial legitimacy. I now turn to these
problems, dealing with each in turn. It will quickly become apparent, however,
that all three are related to a central issue: the legitimacy of unwritten constitutional
norms.
I turn first to the precept that the law must be known in advance of its application,
and the problem that - on their face - unwritten constitutional norms violate
this principle. One of the foundational concepts in law, it is said, is the
importance of the “law on the books”. The rule of law signifies
that all actors in our society – public and private, individual and institutional
– are subject to and governed by law. The rule of law excludes the exercise
of arbitrary power in all its forms. It requires that laws be known or ascertainable
to citizens, and ensures that laws are applied consistently to each citizen,
without favouritism, thus ensuring the legitimacy of state exercise of power.
This is a greater problem in some jurisdictions than in others. Many countries
have adopted written bills of rights, which may be seen as an attempt to provide
clarity, both to citizens and other jurisdictions, about the law of the land.
The Magna Carta of the thirteenth century can in many ways be seen
as the first of what we would recognize as a bill of this sort, and of course
the eighteenth century revolutionaries of the United States and in France produced
impressive documents that sought to capture the essence of the values of their
political movements and mechanisms to express them. In the United States, the
constitutional texts have achieved mythical status as embodying not only the
limits on government, but the basic values of the state. Renewed interest in
setting out basic principles in written form emerged last century out of the
horrors of the Second World War and the perceived need for clarity about basic
principles that would not be violated. Even in countries with strong common
law traditions, the need to set out basic principles in writing increasingly
gained currency among both elites and the masses.
The desire to reduce legal principles to writing is significant, but it should
not be used to oversimplify the complex issue of the place of unwritten norms
in our constitutions. Two points are relevant here.
First, in common law countries, it is distinctly not the case that all law
must be “on the books”. England’s attitude to the importance
of writing down the law is at best ambivalent. On the one hand, the Magna
Carta is a foundational text designed to provide written guarantees of
fundamental principles. On the other, the common law fleshed out and supplemented
these principles by a catalogue of largely judge-made rules. The presumption
of innocence, the rejection of the state’s power to use violence against
citizens implicit in the common law confessions rule, and the principle of freedom
of political expression are but examples of fundamental constraints on executive
power articulated by judges. While Parliament theoretically had the power to
attenuate and perhaps reverse these judge-made rules, the fact that it by and
large chose not to shows a relaxed attitude to the need to set laws down in
writing for the citizen’s guidance. Indeed, the ability of the common
law to develop ex post facto responses to new situations is frequently
cited as its genius.
Not everyone, of course, thought this lack of written laws a good thing. Jeremy
Bentham decried what he saw reflected in the common law of crimes. In 1792,
he wrote that it amounted to “dog law.” “When your dog does
any thing you want to break him of,” he explained, “you wait till
he does it, and then beat him for it. This is the way you make laws for your
dog: and this is the way the Judges make law for you and me.”22
The second point that should be made about the view that all laws should be
in writing, is that even when the legislature takes the trouble to write down
laws, the result is almost always incomplete. Laws are necessarily stated in
general terms. They are intended to apply to a wide variety of situations. Lawmakers
cannot conceivably foresee all the situations to which a legal provision may
apply, nor how it should do so. Judges must reduce the legislative general to
the situational particular. The result is that even where laws are written down,
it is often impossible to predict precisely how the law will apply in a particular
situation in advance of a judicial ruling on the matter. This is as true for
civil code countries where all laws are reduced to writing, as it is for common
law countries. In this sense, much of the law is never “on the books.”
This is also true of constitutions. Benjamin Berger, writing about the Canadian
constitution, has this to say:
When we think about what counts as constitutional law, we generally look
exclusively to two sources: the text of the Constitution and the decisions
of the Supreme Court of Canada. As any first-year student will learn in constitutional
law, this gaze is an under-inclusive one.
Since Confederation, many of the arrangements central to the shape and functioning
of our government have taken the form of convention and political construction.23
In other words, even inclusive, written constitutions leave much out, requiring
us to look at convention and usage. In addition, the broad, open-textured language
used in constitutional documents admits of a variety of interpretations. In
order to resolve the interpretational issues that may arise from this language,
judges may need to resort to conventions and principles not articulated in the
written constitution itself.
What then do we mean when we say law should be “on the books”?
We mean, it seems to me, that applications of the law should be connected to
generally accepted rules. It is not necessary that the law foretell precise
results. It is sufficient that the law provide a general idea of what kind of
result may ensue, and that the result, once established by judicial rulings,
be justifiable in terms of what is written on the books and legal convention
or usage.
Fundamental constitutional principles, whether written or unwritten, meet
these requirements. Unwritten common law constitutional norms, such as the right
not to be punished without a trial, to retain and instruct counsel, or to enjoy
the presumption of innocence, are so fixed in convention and usage that judicial
rulings based upon them will be understood and accepted as just. I conclude
that while it is useful to articulate fundamental constitutional norms insofar
as we can, the fact that a principle or its application does not take written
form does not provide a principled reason for rejecting judicial reliance on
it.
This brings us to the second problem: identifying those unwritten constitutional
principles that can prevail over laws and executive action. At least three sources
of unwritten constitutional principles can be identified: customary usage; inferences
from written constitutional principles; and the norms set out or implied in
international legal instruments to which the state has adhered.
Traditionally at common law, unwritten fundamental principles of constitutional
or quasi-constitutional significance have been identified by past usage, chiefly
the cases that have been decided by judges in the past. Judgments identifying
or clarifying constitutional norms are typically supported by a culture in which
Parliament and the executive accept the appropriateness of the norm and permit
it to stand. Occasional exceptions, such as states of emergency, do not negate
the general acceptance of these norms. As Dean Palmer of this Faculty of Law
notes in a forthcoming paper, bureaucratic and political actors not only respond
to constitutional interpretation, but they also engage in it themselves when
they acknowledge and respect the legitimate constraints on their spheres of
decision-making.24 Usage is thus not only
about how judges view the constitution, but how decision-makers more generally
understand their function in a broader system of governance.
The recourse to usage for constitutional guidance is clearly understood in
post-colonial countries, such as Canada and New Zealand. Thus the preamble to
Canada’s 1867 constitutional text stipulates a “a Constitution similar
in principle to that of the United Kingdom,” 25
contemplating reference to unwritten constitutional norms derived from British
history.
This brings me to the second source of unwritten constitutional principles
– inference from the constitutional principles and values that have been
set down in writing. While they may interpret their written constitutions, courts
are never free to ignore them. Confronted with a new situation requiring a new
norm, judges must look to the written constitution for the values that capture
the ethos of the nation. In Canada, the 1998 Secession Reference26
provides an instructive example of how courts may draw unwritten constitutional
principles from the written provisions of the constitution. The background was
a provincial referendum ten years ago in which citizens in Quebec defeated the
proposition that Quebec secede from Canada, but did so by a margin of just over
1%. Shocked, the Canadian government referred the question of the legality of
unilateral secession to the Supreme Court.
The texts of Canada’s constitution are silent on whether a province
can secede from the federation. No written principles set the legal framework
that would govern an attempt to secede. In order to answer the question before
it, the Supreme Court turned to Canada’s history and conventions, as well
as the values that Canadians, through their governments, had entrenched in their
written constitution. It examined these in the light of a long-recognized treatment
of Canada’s evolving constitution as a “living tree.”27
The Court identified four “fundamental and organizing principles of
the Constitution”28 which were relevant
to the question: federalism; democracy; constitutionalism and the rule of law;
and respect for minorities. Although unwritten, the Court found that “it
would be impossible to conceive of our written structure without them”29
and found that they were “not merely descriptive, but...also invested
with a powerful normative force, and are binding upon both courts and governments.”30
By exploring both the foundations and implications of each of these principles,
the Court provided the answer to the question posed by the government: under
Canadian law, unilateral succession by a province was not possible. However,
the Court went on to state that these same organizing principles imposed an
obligation on the federal and provincial governments to enter into negotiations
if the citizens of Quebec were to provide “a clear expression of a clear
majority”31 on the question of secession.
By examining constitutional texts in light of the principles that underlay them
and gave their content meaning, the Court ensured that an important legal gap
was filled. This permitted the Court to suggest concrete steps that would have
to be followed in a process that would provide the certainty, stability and
predictability that are cornerstones of the rule of law.
The third source that may suggest and inform unwritten constitutional principles
is international law. Customary international law has been accepted as a legitimate
part of the common law without controversy, largely because it is based on both
usage and on an acceptance of a sense of obligation: what we call opinio
juris. As for treaties signed by the Crown, however, the traditional “dualism”
of the common law has generally required the explicit incorporation of international
norms into domestic law. Yet as British barrister Rabinder Singh has recently
noted, judgments in the United Kingdom seem to reveal an increasing acceptance
that even unincorporated treaties can be used not only to resolve ambiguity,
but may establish a “presumption of compatibility” in the absence
of express statutory language to the contrary.32
As courts continue to struggle to understand the precise legal effect
of a country’s international commitments,33
it surely must be the case that these can inform our understanding of
the basic values that the state publicly and formally embraces. Where a country
adheres to international covenants, such as the UN Convention Against Torture34
or the International Covenant on Civil and Political Rights,35
it thereby signals its intentions to be bound by their principles. This
may amplify indications from usage and convention and the written text of the
constitution and to help to establish the boundaries of certain unwritten principles.
I return to the question: how can unwritten constitution principles be identified?
The answer is that they can be identified from a nation’s past custom
and usage; from the written text, if any, of the nation’s fundamental
principles; and from the nation’s international commitments. Unwritten
principles are not the arbitrary or subjective view of this judge or that. Rather,
they are ascertained by a rigorous process of legal reasoning. Where, having
regard to convention, written provisions and internationally affirmed values,
it is clear that a nation and its people adhere to a particular fundamental
principle or norm, then it is the court’s duty to recognize it. This is
not law-making in the legislative sense, but legitimate judicial work.
Having examined whether unwritten constitutional principles violate the idea
that laws should be written, and having identified three sources from which
these principles can be ascertained, I turn now to the final problem: the problem
of judicial legitimacy.
Here we face another apparent contradiction. On the one hand, the legitimacy
of the judiciary depends on the justification of its decisions by reference
to a society’s fundamental constitutional values.36
This is what we mean when we say the task of judges is to do justice.
Judges who enforce unjust laws – laws that run counter to fundamental
assumptions about the just society – lose their legitimacy. When judges
allow themselves to be co-opted be evil regimes, they are no longer fit to be
judges. This is the lesson of the Nuremberg Trials. It is also a lesson, however,
that should embolden judges when faced with seemingly more mundane manifestations
of injustice.
However, matters are not so simple. As judges give content to unwritten constitutional
principles, they may be accused of usurping the functions of Parliament; of
making the law rather than interpreting and applying it; in short, of judicial
activism. We should not lightly dismiss this concern – a concern that
troubles many who sincerely care about just democratic governance. They argue
that unelected judges cannot be trusted to determine issues of fundamental significance
to citizens. They say that unwritten constitutional principles are not anchored
in a text arrived at through a democratic consensus. There is therefore no safeguard
to ensure that judges do not merely express their personal preferences about
important political issues. In the words of one American scholar, “When
judges look outside the Constitution” - and here he means the written
constitution - “they ultimately look inside themselves.”37
Moreover, even if one could trust the judges to get the right answer,
asking unelected appointees to do so would be wrong on principle because it
depends not on the will of the people but of the individual. In a word, it is
undemocratic, the critics contend. These arguments are sometimes supplemented
by the concern that as members of elite groups, judges may import unwritten
constitutional principles to undermine the protection of minorities and the
vulnerable or to advance narrow interests.38
The question of judicial legitimacy returns us to the conundrum I alluded
to at the outset. To be legitimate, judges must conform to fundamental moral
norms of a constitutional nature. But when they do, they risk going beyond what
would appear to be their judicial functions. How is the conundrum to be resolved?
The answer, I would suggest, is that the conundrum is a false one; that judges
must be able to do justice and at the same time stay within the proper confines
of their role.
The role of judges in a democracy is to interpret and apply the law. The law
involves rules of different orders. The highest is the order of fundamental
constitutional principles. These are the rules that guide all other law-making
and the exercise of executive power by the state. More and more in our democratic
states, we try to set these out in writing. But when we do not, or when, as
is inevitable, the written text is unclear or incomplete, recourse must be had
to unwritten sources. The task of the judge, confronted with conflict between
a constitutional principle of the highest order on the one hand, and an ordinary
law or executive act on the other, is to interpret and apply the law as a whole
– including relevant unwritten constitutional principles.
This presupposes that the constitutional principle is established having regard
to the three sources just discussed – usage and custom; values affirmed
by relevant textual constitutional sources; and principles of international
law endorsed by the nation. Determining whether these sources disclose such
principles is quintessential judicial work. It must be done with care and objectivity.
It is not making the law, but interpreting, reconciling and applying the law,
thus fulfilling the judge’s role as guarantor of the Constitution.
How does the judge discharge this duty? First, it seems to me, the judge must
seek to interpret a suspect law in a way that reconciles it with the constitutional
norm, written or unwritten. Usually, this will resolve the problem. But in rare
cases, it may not. If an ordinary law is clearly in conflict with a fundamental
constitutional norm, the judge may have no option but to refuse to apply it.
In the 1961 film Judgment at Nuremberg, Judge Dan Haywood - played
by Spencer Tracy - delivers a powerful set of justifications for punishing those
who not only had violated the law, but who had done so under the cover of their
own allegiance to the state and its positive law. The judge rules as follows:
But the Tribunal does say that the men in the dock are responsible for their
actions, men who sat in black robes in judgment on other men; men who took
part in the enactment of laws and decrees, the purpose of which was the extermination
of humans beings; men who in executive positions actively participated in
the enforcement of these laws -- illegal even under German law.39
By this, I take the judge to mean that these laws and decrees were unconstitutional
under the higher principles as affirmed by Germany’s history, culture
and constitution. Moments later the judge notes that what is shocking about
the atrocities is the degree to which they were normalized. Had the defendants
been “degraded perverts” or “sadistic monsters and maniacs,
then these events would have no more moral significance than an earthquake,
or any other natural catastrophe.” Judges must resist this normalization
– this making “law” out of what cannot be just, and hence,
in a profound sense, cannot be legal. To do otherwise is to allow injustice
to hide itself under the cloak of false legality.
Critics often concede the point, but suggest that this duty is narrow and
limited. Professor Jeffrey Goldsworthy’s landmark critique40
of the judicial enforcement of unwritten principles, for example, allows
that it may at times be proper, morally, for a judge to contradict Parliament
in the face of injustice. At the same time, he argues that to turn this kind
of moral obligation into a legal one is to confuse morality and legality.41
He goes on to argue that a view of the law that affirms its moral content
is one that shows insufficient concern for the democratic consequences of this
kind of judicial role:
In a healthy democratic society, cases of clear and extreme injustice are
rare; in most cases, whether or not a law violates some basic right is open
to reasonable arguments on both sides. The whole point of having a democracy
is that in these debatable cases the opinion of the majority rather than of
an unelected élite is supposed to prevail.42
Goldsworthy’s refutation, however, is a partial one. It applies only
in a “healthy democratic society,” where cases of “clear and
extreme injustice are rare”, and only to “debatable cases”,
where it is easy, and arguably right, to say that judges should leave the final
resolution to the legislature or the executive. But what of unhealthy societies,
less debatably wrong laws?
Interpreting and applying constitutional principles, written and unwritten,
requires that the judge hold uncompromisingly to his or her judicial conscience,
informed by past legal usage, written constitutional norms and international
principles to which the nation has attorned. But judicial conscience is not
to be confused with personal conscience. Judicial conscience is founded on the
judge’s sworn commitment to uphold the rule of law. It is informed not
by the judge’s personal views, nor the judge’s views as to what
policy is best. It is informed by the law, in all its complex majesty, as manifested
in the three sources I’ve suggested.
In Robert Bolt’s drama, “A Man For All Seasons”, we encounter
a scene in which Cardinal Wolsey, seeking to advance the King’s interests,
confronts the conscience of Sir Thomas More, not yet Lord Chancellor, who serves
as symbol of the law and the constitution in the face of arbitrariness and the
demands of politics. The Cardinal presents arguments of expedience, personal
and public, for assisting the King, who requires a divorce. Appeals are made
to More’s “common sense” and he is implored to abandon the
blinders of his “moral squint” to better see the political picture.43
But Thomas More cannot forsake a conscience grounded in deeper legal
principles. He states his creed this way: “I believe, when statesmen forsake
their own private conscience for the sake of their public duties...they lead
their country by a short route to chaos.”44
While Bolt’s More speaks of “private conscience,” it is
clear that what he means is the legal conscience of a jurist who has considered
the nature of the law. Indeed, the historical Thomas More viewed conscience
as the foundation of law precisely because he did not see it as an expression
of personal feeling or passion. Instead, what he termed “conscience”
was what allowed all individuals, even traitors and tyrants, to access justice
if they applied their reason.45 Never advocating
open resistance by the masses in the face of unjust laws, and expressing concerns
about lawlessness, More nevertheless understood that the positive laws did not
define the boundaries of law. His correspondence with his daughter while imprisoned
- in what would be his final days - reveals a man burdened by his own reasoned
legal conscience. In what has been called More’s “Dialogue on Conscience,”46
he takes some comfort, even in prison and facing death, from his certainty
that his conscience was clear and was the product of good faith, reason and
diligence.47
It is a similar conscience, grounded and schooled in custom and the law, that
is the surest guide to upholding the fundamental principles upon which justice
and democracy rest. Modern judges may not be called upon to exercise the courage
of Thomas More, who described his choice as lying between “beheading and
hell.”48 But I do suggest that a judge,
if he or she is to take seriously the duties of the office, must apply his or
her judicial conscience and reason, and that this may at times mean making decisions
that are difficult or unpopular.
Lest I be accused of advocating “dog law,” let me say again that
the principles that guide these difficult decisions are not those of individual
judges, but those implicit in the very system that gives the judges their authority.
Ignoring one’s judicial conscience is not about staying within one’s
role, but instead about abdicating one’s responsibility to the law. There
do indeed exist unwritten principles without which the law would become contradictory
and self-defeating, and it is the duty of judges not only to discover them,
but also to apply them. To forsake them, in Robert Bolt’s phrase, is indeed
to take the short route to chaos.
_____________________
Notes
- See Charles R. Epp, The Rights
Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective
(Chicago: University of Chicago, 1998).
- Lorraine E. Weinrib, “The Supreme
Court of Canada in the Age of Rights: Constitutional Democracy, the Rule of
Law and Fundamental Rights Under Canada’s Constitution” (2001),
80 Can. Bar Rev. 699.
- [1984] 2 N.Z.L.R. 394.
- “Fundamentals,” [1988]
N.Z.L.J. 158 at 164-5.
- Ibid.
- This view of Dicey’s constitutionalism
is not universal. Some academics have attempted to re-cast it by noting his
discussions of “judicial legislation” and seeking to reconcile
them with his conception of a supreme Parliament. For this proposed “more
plausible reading,” see T.R.S. Allan, Constitutional Justice: A
Liberal Theory of the Rule of Law (Oxford: Clarendon Press, 2001) at
13.
- See generally, A.V. Dicey Introduction
to the Study of the Law of the Constitution (10th ed, 1959).
- M. D. Walters “The Common Law
Constitution in Canada: Return of Lex non Scripta as Fundamental
Law” (2004), 51 U.T.L.J. 91 at 136.
- The Hart-Fuller debates are, of course,
a particularly striking manifestation of the dividing lines in the discussion.
See H.L.A. Hart, “Positivism and the Separation of Law and Morals”
(1958) in Essays in Jurisprudence and Philosophy (Oxford: Oxford
University Press, 1983) and The Concept of Law (Oxford: Oxford University
Press, 1961); Lon L. Fuller, The Morality of Law (New Haven, CT: Yale University
Press, 1969).
- Summa theologiae I-II, Question
94, First Article. Cited from William P. Baumgarth and Richard J. Regan, eds.,
Thomas Aquinas, On Law, Morality and Politics (Indianapolis: Hackett,
1988) at 45.
- Summa theologiae I-II, Question 96,
Sixth Article. “Since, then, the lawgiver cannot have in view every
single case, he shapes the law according to what happens most frequently,
by directing his attention to the common good. Wherefore, if a case arise
wherein the observance of that law would be hurtful to the general welfare,
it should not be observed.” Ibid. at 75.
- Reference re Secession of Quebec,
[1998] 2 S.C.R. 217 (“Secession Reference”).
- Commonwealth Principles on the
Accountability of and the Relationship Between the Three Branches of Government
(Commonwealth Secretariat et al., 2004).
- Charles R. Epp, supra note
1, at 201. He concludes that a bill of rights “may be only a secondary
effect” in the empowerment of judiciaries given that these “seem
capable of deriving legitimacy from sources other than a bill of rights; and
constituencies of support for judiciaries have not always been oriented toward
a bill of rights.”
- Roncarelli v. Duplessis,
[1959] S.C.R. 121 at 140.
- At 142.
- Tai Sing v. Maguire (1878),
1 B.C.R. (Pt. 1) 101 (S.C.); R. v. Wing Chong, (1885), 1 B.C.R. (Pt.
2) 150 (S.C.); R. v. Mee Wah (1886), 3 B.C.R. 403 (Cty. Ct.);
R. v. Gold Commissioner of Victoria District (1886), 1 B.C.R. (Pt. 2)
260 (Div. Ct.); and R. v. Corporation of Victoria (1888), 1 B.C.R.
(Pt. 2) 331 (S.C.).
- See John McLaren, “The Early
British Columbia Supreme Court and the ‘Chinese Question’: Echoes
of the Rule of Law” (1991), 20 Man. L.J. 107.
- Reference re Alberta Statutes
[1938] S.C.R. 100 at 133-135 per Duff C.J., at 145 per Cannon J.
- David Dyzenhaus “The Unwritten
Constitution and the Rule of Law” (2004), 23 S.C.L.R. (2d) 383 at 401.
- Benjamin L. Berger, “Judicial
Appointments and Our Changing Constitution,” The Lawyers Weekly,
16 September 2005 at 3.
- Jeremy Bentham, Truth Versus
Ashhurst; or, Law as it is, contrasted with what it is said to be (London:
T. Moses, 1823) at 11.
- Benjamin L. Berger, supra
note 23.
- Matthew S.R. Palmer, “What
Is New Zealand’s Constitution and Who Interprets It? Constitutional
Realism and the Importance of Public Office-holders” (forthcoming).
- Constitution Act, 1867 (U.K.),
30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.
- Secession Reference, supra,
note 12.
- Edwards v. Attorney-General for
Canada, [1930] A.C. 124 (P.C.) at 136; Secession Reference, supra note
30 at para. 52.
- Secession Reference, supra
note 12 at para. 32.
- Ibid. at para. 50.
- Ibid. at para. 54.
- Ibid. at para. 92.
- Rabinder Singh, “Globalisation
of Human Rights and International Norms,” Paper Presented at UK-Canada
Legal Exchange, London, 30 September 2005. He points in particular to Lord
Bingham of Cornhill in A. V. Secretary of State for the Home Department,
[2005] 2 W.L.R. 87 and Lord Steyn and Lord Nicholls in Kuwait Airways
Corporation, [2002] 2 A.C. 883.
- For a discussion of the Canadian
context, see Jutta Brunnée and Stephen J. Toope, “A Hesitant
Embrace: Baker and the Application of International Law by Canadian Courts,”
in David Dyzenhaus, ed., The Unity of Public Law (Oxford: Hart Publishing,
2004).
- The UN Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment was adopted
in 1984. Canada signed it in 1985; ratified it in 1987. New Zealand signed
it in 1987; ratified it in 1989.
- The International Covenant on
Civil and Political Rights was adopted in 1966. Canada acceded to it
in 1976. New Zealand signed it in 1968; ratified it in 1979.
- David Dyzenhaus, supra
note 20 at 412.
- Ronald D. Rotunda, “Interpreting
an Unwritten Constitution,” (1989), 12 (1) Harv. J.L. & Pub. Pol’y
15 at 17.
- In Canada, these democratic and social
class arguments come from both left and right. For examples, see Michael Mandel,
The Charter of Rights and the Legalization of Politics in Canada,
Rev. Ed. (Toronto: Thompson Educational Publishing, 1992); Allan C. Hutchinson,
Waiting for Coraf: A Critique of Law and Rights (Toronto: University
of Toronto Press, 1995); F.L. Morton and Rainer Knopf, The Charter Revolution
and the Court Party (Peterborough, ON: Broadview Press, 2000); and Patrick
James, Donald E. Abelson and Michael Lusztig, eds., The Myth of the Sacred:
The Charter, the Courts, and the Politics of the Constitution in Canada
(Montreal & Kingston: McGill-Queen’s University Press, 2002).
- Judgment at Nuremberg, Directed
and Produced by Stanley Kramer, Written by Abby Mann. USA, Roxton Films, 1961.
- Jeffrey Goldsworthy, The Sovereignty
of Parliament: History and Philosophy (Oxford: Clarendon Press, 1999)
at 277.
- Ibid. at 263-72.
- Ibid. at 269.
- Act I, Sc. II. Robert Bolt, A
Man For All Seasons (Toronto: Irwin, 1963) at 10.
- Ibid. at 12.
- See Gerard B. Wegemer, Thomas
More on Statesmanship (Washington: Catholic University of America Press,
1996) at 73.
- Ibid. at 210-11.
- In More’s letter of 3 June,
1535 to his daughter Margaret Roper, only a month before his execution, he
writes of his certainty about the correctness of his rejection of the King’s
positive law: “And whereas it might haply seem to be but small cause
of comfort because I might take harm here first in the meanwhile, I thanked
God that my case was such in this matter through the clearness of mine own
conscience that though I might have pain I could not have harm, for a man
in such case lose his head and have no harm. For I was very sure that I had
no corrupt affection....” Further, he notes “...I said that I
was very sure that mine own conscience so informed as it is by such diligence
as I have so long taken therein may stand with mine own salvation. I meddle
not with the conscience of them that think otherwise; every man suo domino
stat et cadit [stands and falls as his own ruler].” See James J.
Greene and John P. Dolan, eds., The Essential Thomas More (New York:
Mentor-Omega, 1967) at 277 and 279.
- Ibid. at 278.
Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Given at the 2005 Lord Cooke Lecture
Victoria University of Wellington, Faculty of Law
Wellington, New Zealand
December 1st, 2005
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