{"id":1752,"date":"2016-03-23T18:35:39","date_gmt":"2016-03-23T18:35:39","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=1752"},"modified":"2018-08-31T18:50:12","modified_gmt":"2018-08-31T18:50:12","slug":"permanent-problems","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/permanent-problems\/","title":{"rendered":"Permanent Problems"},"content":{"rendered":"

The law\u2019s ideals and problems have not changed too much in 400 years<\/strong><\/h3>\n

I have only now read Francis Bacon\u2019s essay \u201cOf Judicature<\/a>.\u201d Bacon seems not to enjoy anything like the reputation of his rival Coke, in the law schools anyway \u2015 I suspect that they haven\u2019t heard much of Coke in the science faculties, where Bacon is regarded as \u201cthe father of the scientific method.\u201d Still, his essay is fascinating, because it shows just how little the law\u2019s aspirations and failings have changed in the 400-odd years since it was published.<\/p>\n

Bacon\u2019s essay is essentially a collection of advice to judges about how to discharge their office.\u00a0A good deal of it could still be repeated today. My point, in drawing attention to it, is not to say that all of this advice is good, at least in an unqualified form. It is, first and foremost, to remind the reader of the remarkable historical continuity which, for better and for worse, characterizes the law as a field of human activity. \u00a0Here are a few of Bacon\u2019s recommendations, with some accompanying thoughts or comments of my own.<\/p>\n

Judges ought to remember, that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.<\/em><\/strong><\/p><\/blockquote>\n

Sounds familiar, doesn\u2019t it? If and when there is at last a confirmation hearing for the next judge of the Supreme Court of the United States, you will hear this exhortation\u00a0repeated ad nauseam<\/em>; you might even hear it if there is any sort of public hearing involving the next judge of the Supreme Court of Canada. John Finnis quoted Bacon\u2019s exhortation\u00a0in his very interesting recent lecture on \u201cJudicial Power: Past, Present and Future<\/a>\u201d (whence I learned about Bacon\u2019s essay). But the very fact that this limitation on the judicial role has for so long, and so often, been reiterated should alter us to the habitual futility of the appeal. The Supreme Court\u2019s equivocation over \u00a0whether it discovers or makes up the legal rules which it articulates<\/a> for the first time seems to the suggest that the ideal of the law-saying judge has some appeal to those already holding judicial office \u2015 but not as much as Bacon would have liked.<\/p>\n

[W]hen there appeareth on either side an high hand, violent prosecution, cunning advantages taken, combination, power, great counsel, then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.<\/em> <\/strong><\/p><\/blockquote>\n

This is also a familiar idea in 2016. Richard Posner, to give but one \u2015 perhaps unexpected \u2015 example has been very vocal about the need for active judicial intervention \u201cto make inequality equal\u201d by correcting the disparities of resources between parties to litigation, whether in his judgments<\/a> or in a recent\u00a0extra-judicial indictment of \u201cWhat Is Obviously Wrong with the [American] Federal Judiciary, Yet Eminently Curable<\/a>\u201d (see 190-91).\u00a0There are situations,\u00a0it is worth noting, where judges might be making things worse, not better. I have been arguing for a while now that this may be happening in constitutional law, as judges increasingly expect expert evidence to support Charter<\/em> challenges<\/a>, and thus increase the inherent disparity of resources between citizens and government. (In a recent post<\/a> over at The Court, Lillianne Cadieux-Shaw seems to share this concern.)<\/p>\n

Patience and gravity of hearing, is an essential part of justice; and an overspeaking judge is no well-tuned cymbal.\u00a0It is no grace to a judge \u2026 to prevent information by questions, \u2014 though pertinent.\u00a0<\/em><\/strong><\/p><\/blockquote>\n

There has been much discussion of this point following the recent death of Justice Scalia. He was a famously active interrogator\u00a0of the lawyers who appeared before the US Supreme Court. Surviving him is his colleague Justice Stephen Breyer, whose questions occupying entire pages in the oral argument transcript Josh Blackman lovingly (?) documents<\/a>. By contrast,\u00a0Justice Clarence Thomas, of the same court, had spent a decade without asking a single question until finally doing so recently<\/a>. Justice Thomas, one supposes, would agree with Bacon. Those who derided him for his self-imposed silence presumably would not.<\/p>\n

[T]hose, that engage courts in quarrels of jurisdiction, \u2026\u00a0are not truly <\/em>amici curiae, but <\/em>parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.<\/em><\/strong><\/p><\/blockquote>\n

Here at least, I agree with Bacon wholeheartedly. Those who, in the pursuit of their own \u2015 these days usually political \u2015 agenda, seek to draw the courts beyond their proper remit are not the courts\u2019 friends, though they may present themselves as such. I have said as much<\/a> in response to a call for the Supreme Court to decree, by judicial fiat, the \u201cdepoliticization\u201d of judicial appointments. I wish I\u2019d known the phrase parasiti curiae<\/em> then, but I will make sure to use it on the next appropriate occasion.<\/p>\n

Judges ought above all to remember the conclusion of the Roman Twelve Tables; <\/em>Salus populi suprema lex.<\/strong><\/p><\/blockquote>\n

Perhaps the most obvious example of Canadian judges applying Bacon\u2019s prescription is the Supreme Court\u2019s opinion in Re Manitoba Language Rights<\/em>, [1985] 1 S.C.R. 721<\/a>, where the Court sought to avoid \u201cchaos\u201d that its finding of unconstitutionality of Manitoba\u2019s entire statute book by the expedient of suspending this finding\u2019s effect. But beyond such exceptional situations, Bacon\u2019s advice gets tricky fast.\u00a0For one thing,\u00a0the Latin salus<\/a>\u00a0<\/em>is ambiguous. It can mean \u201chealth,\u201d \u201csafety,\u201d or \u201cwelfare\u201d \u2015 making salus populi<\/em> not one single objective, but a complicated programme. Still it is often said that judges ought to have regard for the public safety (\u201cthe Constitution is not a suicide pact\u201d) or even welfare \u2015 Judge Posner being a foremost advocate for the latter position. But isn\u2019t there a tension between making public welfare into supreme law, and renouncing judicial legal innovation?\u00a0Bacon says, \u201clet no man weakly conceive, that just laws and true policy have any antipathy,\u201d but even if true, this point\u00a0doesn\u2019t really address the issue of the judicial role. And Bacon\u2019s concrete recommendations for achieving the salus populi \u2015 frequent consultations between the three branches of government, and a demand that judges \u201cbe lions, but yet lions under the throne\u201d would run afoul of our views on judicial independence, which are quite different from his.<\/p>\n

* * *<\/p>\n

In the essay I mention above, prof. Finnis writes that \u201c[t]he problems about the nature and reach of judicial power, about which Bacon and Coke disagreed, are with us today in forms much shifted in occasion and location but still recognizably the same.\u201d That is because they are \u201cpermanent problems, capable it seems of only provisional rather than permanent solutions.\u201d (3) The relevance of Bacon\u2019s prescriptions, and the fact that they would be contested now as they were contested when given (and again, except as specified above, I do not fully agree with them), suggests that prof. Finnis is right about that.<\/p>\n

 <\/p>\n

This article was originally published at L\u00e9onid Sirota’s award-winning blog, Double Aspect.<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The law\u2019s ideals and problems have not changed too much in 400 years I have only now read Francis Bacon\u2019s essay \u201cOf Judicature.\u201d Bacon seems not to enjoy anything like the reputation of his rival Coke, in the law schools anyway \u2015 I suspect that they haven\u2019t heard much of Coke in the science faculties, …<\/p>\n","protected":false},"author":1256,"featured_media":1757,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36],"tags":[235,62,237,76,234,236],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1752"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/1256"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=1752"}],"version-history":[{"count":3,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1752\/revisions"}],"predecessor-version":[{"id":1758,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/1752\/revisions\/1758"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1757"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=1752"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=1752"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=1752"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}