Online Papers
This
column will feature papers on issues relevant to Postcolonialism
from a multidisciplinary point of view. Researchers who are investigating
any aspects of this general topic are invited to submit articles
they would like to be posted on this site to any of the editors:
· Professor Ersu
Ding, Lingnan University, Hong Kong, P. R. China
· Professor Rajan
Gurukkal, Mahatma Gandhi University, India
·
Professor Hairudin Harun,
University of Malaya, Kuala Lumpur, Malaysia
Critical discussions of the articles online
can be addressed to their authors by clicking on the names.
Simon B. Archer
Law's Empire, or First
Time Tragedy, Second Time Farce(Html) (Draft)
Hairudin
Harun,
Post-Colonial Discourse In Malaysia:
Some exploratory Themes.
John
K. Noyes
Hegel and the fate of negativity after
empire
Others will be added shortly
|
Law’s
Empire, or First
Time Tragedy,
Second
Time Farce
Draft
for Circulation
Postcolonialism
Today
September
29, 2002
S.B.
Archer
I.
Globalization as neocolonialism or, Neocolonialism for globalization?
There are affinities between the debates over consequences
of the end of empire (postcolonialism in an age of globalization) and
those around the end of law’s empire
(the “Rule of Law” in an age of brute economic and military power
and utter cynicism). They
have in common: the conflict between the core and the periphery, between
the universal and the other, between the explicit and the implicit,
between the inevitable and the contingent, between form and function,
between idealized beliefs and social reality, between “good” and “bad”
outcomes, among others. While both law and imperium were mutually reinforcing
and have similar material consequences, both are socially constructed
and therefore invite deconstruction. But deconstruction is not enough:
reconstruction is the moral goal. We will test some reconstructed proposals.
In May this year, Sir Robert Cooper,
a Senior Foreign Policy Advisor to the Blair government, published “Why
We Still Need Empires” arguing the case for a new “enlightened liberal
empire”.
Cooper surveyed violent conflict world-wide, noted an absence of the
Rule of Law, and recommended there be one. Two months later, Michael
Ignatieff, Director of the Carr Centre at the Kennedy School of Government,
put the case equally as frankly, but didn’t see the need to involve
the British, recommending instead that the U.S. government take “nation-building”
seriously as an enterprise, and stop trying to do it on the cheap.
Both authors diagnose conflict as arising out of economic
exploitation and humanitarian inequalities within the process called
“globalization”. They propose a solution that in their view has been
missing: the Rule of Law. This is the “precondition
to reaping the humanitarian and economic benefits of globalization.”
About a year ago, however, globalization, or at least one version of
it, was the answer, not the problem; and in large part, the Rule of
Law in its classical definition – a state monopoly on legitimate use
of violence, and its normative form, state regulation – was considered
part of the problem, not the answer.
Clearly something changed, even “gone horribly wrong.
Almost overnight, globalization has become the most pressing issue of
our time, something debated in boardrooms and Op-Ed pages, and schools
all over the world.”
This paper contains two related inquiries;
it is in fact two papers. Part One proposes to examine some aspects
of what Ignatieff and Cooper mean by the Rule of Law amidst conditions
of globalization, and make some speculations as to its prospects. Part
Two seeks to test our understanding of globalization and the Rule of
Law by examining its reception in Canada. The final section briefly
examines some case law on the theme that runs between the two parts:
how the Rule of Law of market-based liberal democracy places priority
on the principle of the market, epitomized by the right to exclude others
from property, over the principle of equality.
Consequently, in Part One we will
examine what briefly globalization can mean and what the Rule of Law
entails to it, and whether globalization ignored or, as we suspect,
contained the Rule of Law all along. Perhaps unsurprisingly, we find
the Rule of Law supported a model of a market-based neoliberal democracy
by placing priority on the protection of property rights and the enforcement
of contracts. Through these two protections, the Rule of Law guarantees
that fundamental legal basis of property relations in capitalism, the
right to exclude others from property, and the right to withhold capital
from the marketplace. This finding raises questions about the Cooper-Ignatieff
proposals for the Rule of Law.
We will digress to examine some key
aspects of the discourse of globalizations and models explaining the
operation of legal systems within globalization. We find common descriptive
terms and common analytical problems among both, and suggest that these
are at the root of the prescriptions of Ignatieff and Cooper. Perhaps
their key assumption is that the rule of law and global capital are
not mutually constituted, or sufficiently de-imbricated so that one
can “correct” the other. Our discussion explores the fragility of this
assumption.
Whatever the prospects for the Cooper-Ignatieff
vision, it is apparent the Rule of Law has been given two new jobs:
to facilitate the operation of the “weak state” under conditions of
globalization, that is, to somehow produce and/or distribute the “economic
and humanitarian benefits” of globalization. Second, it is being asked
to compensate for failed democratic practices where the welfare state
has eroded significantly and mistrust of government and democratic practice
is growing.
In Part Two we will proceed to locate
this argument in the Canadian reception (and production) of globalization,
in the responses of the institutions of the Rule of Law: courts and
the utterances of judges. The territory is large and our review is necessarily
impressionistic, so we group observations into four themes: the absence
of local case law mooting globalization; the new relationship or configuration
of courts vis-a-vis the state; crises of legal professionalism such
as judicial activism; and finally, sporadic pre-figurative judicial
criticism of globalization.
As well as an indication of a new
state form that may be emerging under conditions of globalization, the
Canadian experience offers some cautionary tales. We have had some experience
as a liberal democracy in a welfare state. Whatever the precise meaning
of Cooper’s “enlightened” liberal empire, there is much that can be
learned about the actual capacity of that rule of law to deliver “the
economic and humanitarian benefits of globalization” from case law decided
under a market based liberal democratic system. In the final section
of this paper, we canvass a handful of “case studies” for those interested
in what the rule of law can provide in a model of market-based liberal
democracy. They are cautionary tales about great expectations.
PART ONE: Globalization and the Rule of Law
a. Globalizations
Globalization has been a part of
mainstream discourse for about 15 years,
but has been around in one form or another for 30 years in the modern
era. Perhaps the processes it describes have been around in one form
or another for much longer than 30 years, depending upon definitions
and scope of inquiry.
Many if not most discussions attribute
three topics to the discourse: economic, political and cultural topics.
The economic components of globalization are often cited as the dominant
discourse, whether pro- or anti-globalization.
The aim here is to review these aspects, in anticipation of a discussion
of the rule of law and relation to a market-based liberal democratic
model. However, it is recognized immediately that each of these three
topics is part of the other, and causes and effects spin off in all
directions.
The main features of the economic
discourse are: (i) the re-organization of methods of productions of
goods and services, or the new ‘international division of labour’;
(ii) the transnationalization of capital and massive capital transfers;
(iii) the role of new technology, especially information technology
in facilitating these processes; (iv) the organization of state economies
into regional trading blocs (e.g., North American Free Trade Agreement
or NAFTA, European Union); and, (v) subjugation of national economic
policy to fiscal restraint and particularly the Bretton Woods institutions,
the World Trade Organization, the International Monetary Fund and the
World Bank.
Since last September, we might add another dimension, international
security, but in fact this new development may be problematic for the
core tenets of economic globalization, as we will moot below.
These features are incorporated into
an economic logic or system variously called a neoliberal model, a market-oriented
development model, or more broadly and optimistically, late capitalism.
The main implications of this model are: opening national economies
to trade and associated price mechanisms, fiscal and monetary policy
are mandated to price stability and balance of payments stability, the
protection of private property rights against expropriation, the privatization
of productive state-owned businesses, minimal government regulation
of economic decision-making (in favour of allocation by market), and
the allocation of residual state revenues to security, education and
other social policies. In Canada, we can add integration of security
policy and forces, and integration of immigration policies.
This model is institutionalized if
not epitomized in “the three main institutions that govern globalization:
the IMF, the World Bank and the WTO.” Collectively these institutions
and their policies were labeled the “Washington Consensus”, and emerged
out of the Bretton Woods agreements in 1945.
Fiscal austerity, privatization and the liberalization (or opening)
of markets were the three hallmarks of the Washington Consensus. While
these economic policies were initially developed to address hyperinflation
in Latin American mixed economies in the 1970s, they became a universal
economic policy prescription.
The effects of these economic policies diverge greatly in the context
applied, and is further complicated by the interaction between the cultural
topics and the political topics.
What has this meant for Canada? This
country has a relatively small open economy relative to the U.S., and
for Canada “globalization, regional integration within NAFTA and continentalism
are all more or less synonymous, all imply closer integration of Canada
into the economic structures, idiosyncratic ideology and powerful culture
of American capitalism.” This process has entailed
the de-funding and “contracting out” of the welfare state, which was
created in tandem with Canadian post-war political consciousness and,
it might be argued, as an important component in those relations we
call identity.
Arthurs
and Kreklewich summarize that the effect of these forces of globalization,
in creating the so-called “new economy”, is that, more and more activities—especially those related to economic activity—are
being moved beyond the reach of state intervention, with a corresponding
expansion of the scope of individual—especially entrepreneurial—action.
Within the residual area of state competence, various constraints—internal
and external, legal and political—are further disabling the state and
to that extent expanding the scope of civil society.
b. Law’s Empire?
Ignatieff and Cooper recommend the Rule of Law to correct
the ills of globalization, but what is the Rule of Law? That question
has never been satisfactorily answered, but in our inquiries it has
two different meanings: the Rule of Law that protects “private” rights,
most importantly property rights and the enforcement of promises or
contracts. These form the core legal principles that allow a market
system to function. The second meaning is a more expanded Rule of Law,
one that acts as a corrective to the failures of the market system,
which is the principle reason for government intervention. The authors
move back and forth between these two conceptions, sometimes unconsciously,
which effectively allows them to retain the assumptions of the neoliberal
market model while advocating for a Rule of Law that would correct those
market failures.
By looking at some definitions and
recent history of the Rule of Law amidst globalization, and the implications
for the arguments of Cooper and Ignatieff, we turn up some frailties
with the two key elements to their arguments that, we will argue, will
prove fatal to the reconstructive mission. We also come across affinities
in the debates between postcolonialism in an age of globalization and
the Rule of Law at the end of law’s empire.
i. Definitions
A common way to classify the Rule
of Law is according to whether it emphasizes formal characteristics,
substantive outcomes, or functional considerations. Formal definitions
of the rule of law look to the presence or absence of specific, observable
criteria of the law or the legal system. Common criteria include: a
formally independent and impartial judiciary; laws that are public;
the absence of laws that apply only to particular individuals or classes;
the absence of retroactive laws; and provisions for judicial review
of government action. What formal definitions have in common is that
the rule of law is measured by the conformity of the legal system to
these explicit standards.
An alternative to the formal approach
to the rule of law is one that looks to substantive outcomes such as
“justice” or “fairness.” This approach is not concerned with the formal
rules, except inasmuch as they contribute to the achievement of a particular
substantive goal of the legal system. Unlike the formal approach, which
eschews value judgments, the substantive approach is driven by a moral
vision of the good legal system, and measures the rule of law in terms
of how well the system being assessed approximates this ideal.
A third approach to the rule of law
is similar to the substantive definition, but tries to avoid the normative
issues by focusing on how well the law and legal system perform some
function – usually the constraint of government discretion, the making
legal decisions predictable, or some combination of both.
As with the substantive definition, the relationship between the legal
system and the functional goal can pose problems.
Anticipating later argument, it is
prudent to add that legal historians tell us that since the middle ages,
there were several sources of law, there being many legal systems applicable
to any individual or group from the initial reception of Roman law or
“learned law” through to rationalist natural law associated with liberal
democracy and theories of the social contract. Most date Western liberalism
and its associated legal forms from Locke, Hobbes and Rousseau. When the state form became
prominent or priviledged site of political and legal discourse in the
19th century, sociologists in the Weberian school equated
the rule of law with the state monopoly on the legitimate use of violence,
and the rational use of that monopoly, and legal scholars and political
scientists have equated the growth of statism with the expansion of
the market economy (variously called capitalism).
But neoliberals and other legal pluralists question whether that monopoly
ever existed, can exist or ought to exist, and there are a series of
analyses that find sources of law outside the state form in theory and
practice.
ii.
Conceptual implications
Formal definitions suffer from two
major drawbacks. First, the formal conception may place too much emphasis
on the “law in the books” and not pay sufficient attention to the “law
in action.” Official rules do not always (or even often) map onto the
actual operation of the legal system. Second, the formal criteria are
chosen because there is an often unarticulated empirical presumption
that those formal characteristics will lead to some substantive or functional
outcome.
Further, plural, or perhaps “non-state”
production of law is an area of study ranging from community norms to
international mercantile law. It is the theoretical domain of legal
pluralism.
One of the insights of this thinking is that a “rule of law”, narrowly
conceived, is not necessary to achieve behavioural outcomes.
Second, determining how “just” a particular legal order is requires
a subjective judgment, and the definition of “good” may be so vague
so as to be useless in making distinctions. This points to a primary
criticism of “legalizing” politics itself: that it proceduralizes politicial
decisions into individual cases, and distracts from unfair substantive
outcomes.
Another problem is the fact that looking at predictability
or official constraint or any other function makes it hard to make any
definitive statement about the level of rule of law in a whole society,
because of the sheer volume of individual decisions made in a legal
system. Aggregating them is a mammoth task.
Finally, despite contemporary rhetoric,
there is no a priori reason to believe that the rule of law (defined
functionally or formally) is necessarily always a good thing, or will
have the intended effects.
The problems associated with
these definitions point toward a two tentative conclusions. First, that
a substantive definition of a rule of law (Cooper’s “enlightened liberalism”)
is subject to a political debate about those values, a debate that is
arguably as much political or extra-legal as it is law “working itself
pure.” Second, a rule of law is by no means necessary to achieve behavioural
outcomes, perhaps even an undesirable way to do so. These may seem somewhat
tangential points, but for Cooper’s and Ignatieff’s proposals to work,
there is an assumption that the Rule of Law is sufficiently separate
from “political” contamination that it can serve to effectively treat
the symptoms of globalization gone awry. These conceptual criticisms
of the Rule of Law indicate that in one of two important ways, the Rule
of Law is not separate from a political debate about its specificities,
and moreover, about the role of the Rule of Law in postcolonial societies
vis-à-vis late capitalist industrial societies. (The other important
way is that the Rule of Law is integral to the functioning of a market
economy.) The Rule of Law has specific political content, which we will
explore in its economic elements below; it is not ahistorical or a universal
corrective.
The second criticism questions the ability
of the Rule of Law to effect outcomes at all, and would have us seek
causes and effects of normative behaviours in other sources, law from
“the ground up”. This criticism anticipates a finding in Part Two, in
which we find that globalization does not present itself in (Canadian)
case law in any significant way. Before we examine reception in Canada,
it is necessary to discuss the role of the state in the Rule of Law,
and the problems of the regulatory state that led to our current predicament.
iii. Law and the regulatory state
Three main arguments or diagnoses
are made about the rule of law and the state in the modern era, dubbed
the “regulatory trilemma”.
The first is that the welfare state, the form of state until 1970 or
so, manifested a “colonization” of society by subjecting individuals
and their particular contexts to abstract bureaucratization, wherein
legal regulation of some sphere destroyed local arrangements and patterns
of self-production (family, economies, education). Where the monolithic
state intended integration along some abstract standard, it created
disintegration of its object of regulation. The second argument is that
this process resulted in the overproduction of law, the overregulation
of society, and as it did so it became captured by politics or regulatory
systems, a phenomenon called “agency capture” in administrative law.
Finally, this system results in legal ineffectiveness to the extent
that there is discrepancy between the regulation and the patterns of
social life that state law is meant to regulate.
Many solutions are proposed to the
regulatory trilemma including: the neoliberal solutions (less regulation
altogether), better proceduralization,
moving from regulation to constitutionalization,
law as autonomous and reflexive body,
law as relational as opposed to institutional,
and others.
The neoliberal solutions have been
widely adopted. We now speak of the “decentred” state, of the devolution
of power from the state level to the supra-state level, as in the ceding
of economic sovereignty to global institutions or agreements, or the
sub-state level, with the privatization and contracting out of the provision
of services. Indeed, this process has gone farther than many suspected,
with the very monopoly on violence contracted out to Whakenhut, who
run private prisons and monopolize the growth of private security forces.
This leads to a “narrower but longer”
characterization of the Rule of Law under conditions of globalization.
Narrower in that it de-emphasizes the state role altogether, and with
it the administrative state, the site of production of law that traditionally
“corrected” market failures. But even under conditions of globalization,
and perhaps more than ever, business goes on and deals go sour, so organizations
and individuals want their contracts enforced and their property protected.
So, the Rule of Law is longer in the sense that it still protects core
property rights (in fact, more vigorously than ever), and does so transnationally,
though not always or even usually through state bodies. We will now
turn to the transnationalization of the Rule of Law, and revisit the
content of it.
iv.
The experience globalizing the rule of law
The primary national institutions
of the rule of law, courts, have been difficult to globalize, which
may be what has lead to the allegation that there has been no Rule of
Law under globalization. Santos attributes this resistance to the identification
between state or national character and the institutions of courts.
But there have been efforts to globalize the Rule of Law, and Cooper
identifies the institutions of the Washington Consensus as examples
of the new imperialism, and so we can quickly review their role.
The transnationalization of the Rule
of Law is primarily achieved by state-negotiated instruments in trading
blocs, such as the North American Free Trade Agreement (NAFTA), and
equally as importantly, by international law merchant, developed in
the arbitration of disputes between transnational private actors. The
former are in effect conditioning frameworks on the intentions and abilities
of national governments. The latter is the private generation of a set
of business law norms that owe a lot to the New York law firm. Both
these areas have been widely discussed as globalizing phenomena, or
more exactly, as localisms globalized and then made localisms (again)
in their reception in other countries. The institutions of the Washington
Consensus promote a model or ideal path to achieve the same phenomena,
developed out of concerns about the Rule of Law in Latin America in
the 1980s, and subsequently made global. It is this model we will dwell
on as a representative of the globalized localism, or specific content
of the Rule of Law as it is being promoted today.
It is a firmly market-based conception
of the rule of law (and of democracy) that the World Bank calls “legal
institutions in the market economy”, and in countries subject to their
interventions, they have been very aggressive in reforming local judicial
institutions.
The Bank writes that “an effective legal system is intrinsically valuable
and promotes development by protecting persons and their property, allowing
peaceful resolution of disputes, facilitating economic exchange, and
letting citizens hold their government accountable.”
These are all key characteristics of the liberal view of the Rule of
Law: property rights and protection from “arbitrary” government intervention.
Former World Bank General Counsel
Ibrahim Shihata set out in 1991 as requisites for functioning rule of
law: 1) a set of rules known in advance, 2) rules that are actually
in force, 3) mechanisms to ensure proper application of rules but allow
controlled departure when deemed necessary, 4) existence of an independent
judicial or arbitral body to make binding decisions when conflicts in
application of rules arise, and 5) procedures for amending rules.
This is a formalist structure, but in combination with the mandate of
the bank, creates a patina of proceduralization over a substantive content,
that is privileging the principle of the market over that of equality
or community.
So in
combination we might say these prescriptions are very much the functionalist
approach to the Rule of Law. We can glean from the mandate that the
content of the rules are basically intended to cover the working of
efficient markets, which is very much reflected in the programming of
the World Bank, which seeks to protect property from crony capitalism,
corruption, and arbitrary use of state power.
There
are several well-recognized criticisms of this approach. It ignores
the potential benefits of informal mechanisms for maintaining social
order and fostering economic development. It focuses on a “the rule
of law, not men,” that separates law from politics, which is not only
impossible, as the United States demonstrates, but dangerously demonizes
politics. And as we have hinted and will shortly explore, the key question
is the assumption that the rule of law so conceived is unequivocally
necessary for economic growth.
It is
also entirely relevant here to note that the institutions of the Washington
Consensus are not subject to a rule of law as they define it. They may
be subject to laws applicable to the U.N., as they are U.N. agencies
via the Bretton Woods agreements, and to international customary law.
Current analyses agree that these institutions are not accountable to
any national and very few international legal norms (the main exception
being international customary law, which is very limited). These institutions
consistently evade attempts to make them legally accountable for their
interventions in state economies, by either the immunity written into
the articles of agreement, or by not acknowledging national or international
jurisdictions.
Whatever
their status legally, and it is not at all clear, the institutions of
the Washington Consensus embody a more fundamental contradiction in
the discourse of globalization and the Rule of Law. Their original mandates
are respectively development and financial stability, primarily through
fiscal and monetary policy – economic policy – intervention. They are
state or quasi-state institutions that are designed to intervene in
the economic order. However, for the past 30 years, and exactly consistent
with prescriptive economic globalization, these institutions have been
requiring states to do exactly the opposite, as described above: to
reduce intervention in markets and to privatize public businesses.
v. Further implications
Among these definitions and models
is a distinction between “public” and “private” that is echoed in the
globalization narrative in the division between public (or state) regulation
and provision of services versus private regulation (or self-regulation)
and provision of services. This distinction, if it ever had robust explanatory
value, is blurred or even meaningless under conditions of globalization.
With the advent of deregulation, public and private are mixed (if they
were ever separate). Correspondingly, the doctrines of private law are
increasingly the focus of analysis, asking, for instance, whether the
private law of contract can be stretched to cover formerly public administrative
law problems, whether there is a contractual “duty of fairness”.
Recently too there has been
greater “recognition” that the domain of the private sector, the market
economy, is bounded and even constructed by the private law of contract,
tort and property. Historically, the socially harmful “gaps” in the
private law were “corrected” by competition regulation, labour relations
regulation, and so-forth. This “correction” forms the basis for the
insight of the authors quoted in the introduction, but it introduces
a direct conflict with a central tenet of globalization, the neoliberal
or “weak” administrative state.
But some “level” of the
rule of law is now being linked to both economic growth (the reform
phases of the pro-globalization movement) and even distribution or “equality”
(by union economists and others). One group of economists have attempted
to statistically link the presence of a rule of law protecting property
and enforcing contracts with economic growth (but not yet distribution).
Accordingly, the Rule of Law is associated by economists with economic
benefit, including growth. Using a version of survey data, at least
one study has found growth positively correlated with the Rule of Law
as measured in a subjective survey. But these correlations are subject
to serious reservations of definition and method.
v. The alternative? Cooper and Ignatieff on the rule
of law
Cooper diagnoses pre modern states as having weak governments,
and “weak government means disorders and disorder means falling investment”
so that “a world in which the efficient and well-governed export stability
and liberty seems eminently desirable.” He instead imagines an “imperialism
compatible with human rights and cosmopolitan values” that “aims to
bring about order and organization but which rests upon the voluntary
principle”. This imperialism, in which “order means empire [and] those
within empire had order, culture and civilization.” This sounds familiar
to many of us.
Cooper imagines two forms of postmodern
imperialism: a “voluntary imperialism” of economic globalization and
an “imperialism of neighbours.” The former is epitomized by the institutions
of the Washington Consensus, which he maintains, without irony, have
intervened to create stability in pre-modern states. The latter is the
creation of voluntary protectorates in pre modern states by neighbour
states when they show signs of “collapse.” The Bosnia-Herzegovina and
presumably Afghanistan are examples of this neighbourliness.
The imperialism is summed as “common
liberty and security without ethnic domination or centralized absolutism
…the cooperative empire offers a domestic political framework in which
each has a share in the government, in which no single country dominates
and in which the governing principles are not ethnic but legal”
(my emphasis). This is an interesting distinction, not only for what
it omits – ethnic norms – but what it assumes. Cooper is rather thin
on what legal means here, but we can glean from the rest of his genealogy
that he is talking about a market-based liberal rule of law. It is also
a formalist-functionalist approach to the Rule of Law, which would de-emphasize
differences among values, even as it promotes market-based rights.
In a typically blunt transatlantic
display, Ignatieff immediately contradicts Cooper by noting that “whatever
we want to call it” empire is alive and well, and it is the American
empire, a colonial project in all but name. Like Cooper, his main diagnosis
is that the rule of law has been too long subjugated to other concerns:
“the failure to grasp that democracy works only when it goes hand in
hand with a rule of law has been the costliest mistake of the Balkans”.
His solution is “to build in checks and balances from the start … to
rewrite the criminal and civil code and train a new generation of lawyers,
prosecutors and judges and criminal investigators.” Ignatieff is speaking
about Afghanistan, but generally wants more resources in consistent
way “effective imperial power also requires controlling the subject
peoples sense of time, convincing them that they will be ruled forever.”
The difference between Ignatieff and Cooper appears to be that the former
is sensitive to rights culture, and would include “ethnic norms” in
some way re-written through the prism of U.S. imperial priorities.
We can say that both Cooper and Ignatieff
(and most others) preserve the primacy of the market in their vision
of the state form and rule of law, either explicitly or by implication.
They want contracts enforced and property protected. Others, like Chrétien,
speak of bringing Africa “into the benefits of globalization”. It is
also fair to say they have a functionalist model of a legal system in
mind, one that places much emphasis on proceduralization or sequencing
of steps of sort of one that has certain markers (independent judiciary)
and performs certain tasks (checks and balances) but tries to avoid
the thorny problems of substantive definitions where they are acknowledged,
and assumed market principles where they are not.
What these authors are less clear
on is the way in which the Rule of Law will help individuals reap “the
economic and humanitarian benefits” of globalization. Cooper argues
that the new imperialism must be “compatible with human rights and cosmopolitan
values”. But he displays little awareness that, in the neoliberal and
arguably liberal models of the rule of law, the principle of equality
was traditionally “traded off” against the principle of the market,
when the market is not treated as anterior to the “politics of equity”
itself.
Perhaps we can impute to Cooper a
rule of law that undertook distributive functions, one that vindicated
economic, social and political rights with equal vigor, but Cooper provides
one more clue as to his model, which mitigates against this presumption.
He argues that we, and this means postmodern nations, must “get used
to double standards, to hypocrisy” in the new enlightened liberal empire.
Distribution of wealth and vindication of rights are something that
postmodern nations can pursue and enjoy, but that pre modern nations
may not, instead, they may be subject to interventions for reasons of
security, they may be subjugated for the good of the whole.
We know more about Ignatieff’s
ideas of rights and the rule of law from a previous discussion in his
2000 Massey Lecture, entitled “The Rights Revolution” which argued the
challenge is to “enhance equality while safeguarding difference”, with
reference to group and individual rights. His thesis is that the Canadian
experience with negotiating group versus individual rights is a good
example of the future of rights and “the principle of equality.”
Within two forms of rights under
a rule of law, Ignatieff argues that some group rights are necessary
preconditions to individual rights, and not necessarily “traded off.”
But he also acknowledges another tradeoff.
He acknowledges that rights in Canada, as in other capitalist democracies,
have focused on justice for ethnic, linguistic and cultural minorities,
and for women, gays, lesbians and disabled people, but have not been
concerned with the economic and social inequality resulting from capitalism.
In an unconscious nod to the depth of globalizations’ assumptions, he
assures us that “I’m no Marxist,” when he worries that “rights talk”
on the whole “can capture civil and political inequalities, but it can’t
capture more basic inequalities, such as the way in which the economy
rewards owners and investors at the expense of workers.” Indeed he suggests
that the prevailing rights talk diverts political attention from these
inequalities.
Ignatieff’s vision is more nuanced,
but essentially the same as Cooper’s (and he may have changed his position,
as did many, after last September). In the final section, we will examine
three case studies that speak exactly to Ignatieff’s unease in the tradeoff
between the principle of equality and the principle of the market.
vii. Some conclusions
The debates about the Rule
of Law and capitalism continue, but we can make some observations. The
first is that capitalism relies upon (or lies upon) some basic legal
constructions that were articulated early in the development of liberalism.
These are the core definitions incidents of property, the important
one of which is the right to exclude others from property, and “freedom
of contract”, which also includes “freedom from contract”. These rights
form the basis of the wage labour relationship, and in the eyes of conservative
theorists, form the essential political foundation of capitalism and
justification as a moral order.
They permit property holders to withdraw their property as they see
fit, and maximum freedom to contract or not to contract. Forms of these
rights are at the heart of the reforms enforced by the Washington Consensus,
such as laws permitting the free flow of capital across borders, and
were present during the welfare state, during the ensuing period of
globalization, and are implied in the Rule of Law Cooper and Ignatieff
propose.
The second is conclusion
must be that there is insufficient data to determine whether the Rule
of Law is sufficiently distinct from the political and economic order
it is set to correct, whether it is a “semi-autonomous self-ordering
system”, which is further complicated by the status of “the state” in
relation to the Rule of Law. The state is both integral to the Rule
of Law (monopoly on violence, corrective actions of the administrative
state) and the anathema to it in the neoliberal world. Moreover, in
the places that Cooper and Ignatieff identify as needing a Rule of Law,
states are not functioning (pre modern states).
But the distinctions made
above point toward two characterizations of the Rule of Law, on including
an interventionist administrative state that can access the monopoly
on violence to coerce or correct economically-created ills, or alternately
a non-intrusive, negative sense of the Rule of Law that protects core
property and contractual rights upon which functioning markets rely,
but does not “intervene” in markets. It is a passive private ordering
that “legitimizes” the tacit assumption that the owner of property keeps
the surplus benefits derived from its hazard into the market, or otherwise
may exclude others from it. It is this second, non-interventionist Rule
of Law that Cooper and Ignatieff assume should be present to facilitate
functioning markets. In addition, they would link those markets with
direct access to coercive power, the dimension of “security” in the
new imperium. Finally, they acknowledge in some ways the competing principle
of equality, which has traditionally relied upon an interventionist
state. These are difficult and sometimes contradictory jobs for a Rule
of Law.
That distinction echoes
the passive/active operation of key terms in globalization and models
of legal systems that we examine shortly. It is in part responsible
not only for disjunction between the rule of law as part of the problem
(the interventionist state) and the rule of law as part of the solution
(enforcement of private law in independent courts). In the economic
domain, then, the idea of private law is likely to be the focus of proponents
of a new rule of law.
That idea has its proponents
and critics, but on the whole it emphasizes
“fairness” as between individuals, in what has been called an Aristotelian
notion of justice, and eschews the role of “policy” in the development
of law, where policy means social or political questions not strictly
arising from the archetypal Plaintiff v. Defendant relationship. Two
implications flow. The first is that this is a narrow view of the rule
of law that focuses on tort, contract and property to the exclusion
of “policy” concerns, which might include distribution. Second, this
idea of the rule of law radically individualizes social problems.
c. Some
speculations on the effects of globalization and legal systems as discourse
We have been discussing the Rule of Law amidst globalization,
and have identified a core set of principles of the Rule of Law, the
protection of property and enforcement of contracts, and a large assumption
about the Rule of Law, that in this form it is sufficiently distinct
from capital so as to be able to “correct” it. A brief digression on
the semantics of globalization and model of the legal system within
it may help to understand the argument and problems with it.
In an age of so many endings (the
end of history, the end of ideology, the end of the business cycle)
it is refreshing to find that economic globalization and the Rule of
Law are progress narratives. It has a direction (consumption, more “growth”),
a mechanism or dynamic (by integration, by Rule of Law) and in some
readings, a purpose or goal (a “new world order”).
At least one author and one collection of essays have mapped the similarities
in globalization studies with those of postcolonial studies,
and perhaps a
standard treatment of the term “globalization” in this vein is found
in Petras and Vletmeyer, Globalization Unmasked, where
in chapter three they argue that globalization is better understood,
as Ignatieff indicates, as a gloss for U.S. imperialism.
Globalization contains operational
terms of unity (global) and dynamics (globalizing, localizing), terms
that operate both actively (globalization is the agent of change) and
passively (globalization is the effect of change), that are the markers
of a naturalist rhetoric. Interestingly, it has been argued that this
naturalist framework has been converted into legalist restrictions (a
“conditioning legal framework” and a “globalization of the mind”) to
guard against the reversal of globalization’s “advances” (and as perhaps
a tacit acknowledgement that it is not inevitable).
These assumptions about globalization are deep-set enough so that commentators
diagnosing conflict as a symptom of globalization do not pause to examine
the causes, or if they do, assume those causes are necessary and inevitable.
As a discourse analysis, our
main observation is that the ambiguity of the term globalization enables
writers to shuttle back and forth between description and prescription
in their analyses, confusing descriptive validity with prescriptive
validity. This “slippage” is not new but probably the key tactic of
the analyses of Cooper and Ignatieff. It allows them to combine the
seeming inevitability of the underlying economic order with the need
to intervene with the Rule of Law, perhaps even propose that the need
for the Rule of Law is implied in the processes of globalization. They
move between an organic notion of the Rule of Law that in the narrow
definition is integral to global capital, so necessary and inevitable
that it is barely acknowledged, and the activist sense in which the
Rule of Law is somehow to correct global capital.
This characterization
has strong affinities with a model of legal systems within globalization.
This model, law as autopoetic system, is probably the best developed
argument for understanding the Rule of Law on a broader canvass as a
semi-autonomous social system operating among other social systems.
It is the model that speaks to our main argument, that the Rule of Law
and the market system are sufficiently distinct so that one can “correct”
the other. Autopoesis describes law as an autonomous self-reproducing
entity that only reproduces itself. Its main mechanism or dynamic is
“reflexivity” in reproduction of law. Such a model would have law in
some “semi-autonomous” relation to the state.
The ability for terms like “variation” or “reflexivity” to take
on both active and passive meanings in the context of the autopoeitic
system invites a grammatical slippage, the very slippage we have paused
to note in the discourse of globalization and in the arguments of Cooper
and Ignatieff. Rhetorically, it is the shuttling back and forth between
denotations of background, explanation, context that is passively “observed”
and scientific, and the individual, active connotation of agency and
purpose that is interesting to us. These key terms, especially “reflexivity”,
provide this narrative explanation with so much suasive power. In a
sense, these slippages are the substance of naturalist rhetoric that
lead to the conclusions (or “findings”) of unity and inevitability.
Autopoeisis
claims that law generates from law, as against politics, (whatever that
dichotomy can mean) and is yet connected to it: exactly how this works
is the crux, and if our reading is accurate, there are not yet clear
answers. But there are preliminary criticisms. The rules or the initial
conditions of a self-ordering system must have come from somewhere,
and second, exactly where the connection to other social systems happens,
and where internal generation happens is unclear. Finally, the attempt
to create an autonomous or at least seemingly semi-autonomous model
suffers the same problem as others, and that is that method is not a
guarantor of autonomy, nor guards against the necessity of introducing
a political element as either an initial condition or guiding principle.
Once this is admitted, then the claims of autopoietic law are reduced
from “self generating law” to somewhat self-generating law dependent
upon the socio-political content of legal decisions.
A leading scholar in this school,
Jacobson, proposes to solve some of these problems with a “revelatory”
innovation in which some God-term (his phrase) is the value operating
in an application of law, and one supposes, in instances of dynamic
change in the law.
This brings us full circle, and we are left not so much with a sociolegal
insight as much as law as machina
ex Deo.
Jacobson’s solution is one that
appeals to an external perspective to the system, a revelatory perspective
accessing an extra-legal norm: and as such it points to of the very
problematic premises of autopoeisis (and most foundationalist theories
of law): the ability for these autopoeitic processes to account for
the internal viewpoint, the reason for an actor to act in accordance
with laws. It is this problematic that gets highlighted by the idea
of legal tradition, with its “great cases”,
that the applications of social systems theory try to address by unifying
structural and individual behaviours within a total system. However,
even according to its proponents like Jacobson, the theory does not
get as far as understanding individual behaviour, remaining “valid”
only for larger-scale, structural changes. To be fair, that is exactly
what qualitative reasoning is designed and aims to do: individual outcomes
are not part of project. The trouble with that is, court processes typically
decide cases, they are individualized,
relatively ambiguous or unpredictable, and it is a common observation
(and one of our tentative conclusions in the final section) that in
this way, legal institutions de-politicize public life. So much must
remain the constraint of autopoetic theory among the human sciences.
This is not a trivial point, either. Below we will explore how courts
are being asked to do the former work of the administrative state, and
how their decision-making processes individualize social problems, and
so de-politicize them.
d. The
Rule of Law in a new state form?
In sum, the “legal institutions of the market economy”
promote a largely neoliberal model of the state, that is, a small state
that privatizes many regulation functions, but retains a sufficiently
sized and sufficiently independent judiciary to protect property and
enforce contracts. To the extent that courts and the judiciary are part
of the state, we can see these functions working in opposite directions,
or better, working toward a reconfiguration of power and rule-making
away from legislatures and toward an “independent” judiciary.
In thinking about the state and the rule of law in
this way, perhaps the most salient observation is that the decentring
of the state has meant a degradation of social performance of the responsiveness
of the state (in Anglo-American democracy, the party system) to its
constituents both in mandates and the provision of social goods. But
it has not necessarily followed that the state has reduced in bureaucratic
size, it has in fact grown by many measures, so that we may conclude
that the state has reorganized.
The attendant disorganization and weaknesses of ill-integrated bureaucracies
are a source of the problems of globalization.
One
author has speculated that this configuration is a new state form.
It will remain regulatory
and interventionist state strong enough to produce its weaknesses efficiently
opening the space for partial replacement of social rights with contractual
relations among citizen-consumers, corporations, NGOs and the state
itself. … because they (judges) act in individual not collective disputes,
and because they are ambiguous, given the relative unpredictability
of their rulings, courts tend to depoliticize public life. The courts
thus inject political legitimacy into a weak state producing inefficiencies.
As important decisions get decided
by courts where once they were decided by administrative bodies of the
state, we might expect to see courts politicized or politics legalized,
or both. Bush v. Gore is perhaps the best example of the
former, albeit in a country with a long history of judicial activism,
it is still amazing to have the constitutional right to vote interpreted
as not including the right to have that vote counted.
Locally, we might look to the Reference Re: Quebec Secession.
The latter is equally as troubling.
One line of thought argues that the legalizations of politics individualizes
social that may require social solutions, through the instrument of
the state. The history of labour conflict and legislation is an excellent
example, but we might also include family law and poverty law in these
areas. And this is precisely where the rule of law in a neoliberal model
prohibits state administrative action.
Both Cooper and Ignatieff would change
that state of affairs by inserting an “enlightened” rule of law. Or
we might say, they wish to take the “neo” out of neoliberal, and, in
what we could call a politics of nostalgia, (re)assert a model of enlightened
liberal democracy, such as we have seen some versions of in the 20th
century. But this new enlightened liberal Rule of Law shares a key characteristic
with its precursors and filiations, and that is the centrality of the
protection of property and enforcement of contracts. In this sense at
least, the Rule of Law was not ignored by globalization, but was very
much a constituent of it.
The effectiveness of the new Rule
of Law rests on one key assumption that we have touched upon in several
ways above: that the Rule of Law and capital are not mutually constituted,
or sufficiently de-imbricated so that one can correct the excesses of
the other. Here there are two conflicting arguments that are glossed:
the Rule of Law is some system free from political questions or “ethnic
norms”, but that is integral to the functioning of capital and most
especially reaping the benefits of globalization. We have explored one
aspect of this contradiction, the greater or lesser presence of the
administrative state within the Rule of Law. Our analysis suggests rather
that the Rule of Law has a specific political content in its privileging
of the principle of the market over the principle of the community or
the principle of equality.
We can see that “reaping the benefits
of globalization” is an ambitious prescription for a concept of the
Rule of Law that prioritizes the protection of private property and
the enforcement of contracts but not intervention. But there is some
force to this position, and it has its school of thought, stemming perhaps
from Hayek through the law-and-economics school,
and has filiations in the sociology of legal fields.
Recent critical legal work has sought to demonstrate this reciprocal
relationship. Still others question the
necessity of the Rule of
Law in the functional sense, and much of the experience of the courts
in a neoliberal state support that position. It will remain for us to
test that assertion in at least a cursory way when we examine the Canadian
experience of courts under globalization in the next section.
PART TWO: A
Cursory Look at Canadian Juridical Responses to Globalization
To make sense of this discussion locally, it will be useful, it
is hoped, to examine the rule of law under conditions of globalization
in Canada. But the project requires some paring down. First, the law
generated by institutions of globalization (such as trade dispute mechanisms)
has been extensively and critically reviewed not least by the anti-globalization
movement worldwide.
Just as globalization is not a univocal or unidirectional discourse,
these institutions represent various strands of globalization, most
notably the trade-related legal norms and on another hand the production
global human rights.
There are excellent discussions of these general divisions, and of global
production of law.
These manifestations of globalization will not be discussed, primarily
because they do not reflect local juridical attitudes (Canadian courts),
however relevant they are as transnational sources of law.
To seek out local juridical responses there are four
sources in declining order of importance to the formal legal system
(roughly corresponding to persuasive weight in court): case law, institutional
commentary (addresses to the opening of the courts), utterances of judges
in legal academic work and legal academic work itself (treatises, speeches,
essays), and the work of quasi-legal bodies (law reform commissions,
royal commissions).
Other forms of data can provide indicators as well, such as survey data.
These sources are conventional, but require some caveats.
As a second iteration, it is useful
to employ a more targeted approach, searching more extensively within
an area of law in which judicial attitudes might be gleaned and that
is injunction law. Injunctions are granted at short notice and without
full legal argument, and usually involve a balancing of values and convenience
between the two parties. This is an area that we might expect to find
judicial commentary if not attitudes.
a. Emergent
themes
Four themes emerge from a review of these sources: (i) the relative
unimportance of globalization in case law and formal legal expression;
(ii) reconfiguration of the roles of state and courts; (iii) crises
of professionalism and, (iv) pre-figurative criticisms of globalization.
i) Case law and the discourse of globalization
The first theme that emerges from this cursory review
is that domestic case law does not moot globalization in a significant
way, with the exception of some specific areas dealing within conflict
of national laws and new forms of property. The former, the conflicts-of-laws
cases, primarily note that the conflicts arise because of increased
transnational exchange of goods or travel of persons, and so-forth.
The main questions in conflicts of law are which jurisdiction should
hear the case and what substantive legal principles should apply. The
second area is primarily concerned with intellectual property, a special
area of international agreements that is both developing very rapidly,
is dominated by U.S. legal developments, and is subject pressures to
harmonize to U.S. norms.
To the extent that it is a subject of case law, these are data we would
expect to see in the globalization narrative.
But in other important areas such
as the law of migration or labour law – which is perhaps the primary
area we would expect to see affected in the new international division
of labour – the case law does not produce a significant body of judicial
commentary. This quantitative conclusion is very tentative on this review,
but will hopefully be confirmed by an exhaustive review now being completed.
A first observation on this theme
is that case law is just not important in the discourse of globalization,
and vice versa, the discourse of globalization does not figure in case
law. Keeping in mind the limitations of search terms and allowing for
a “judicial lag”, having only perhaps had 20 years to cope with new
changes, and seven since Paul Martin trumpeted the end of the welfare
state in 1995, we can observe that cacophony of globalization has not
stilled itself into legal doctrine.
This observation has two implications
for our discussion, the first is that this result appears to confirm
legal pluralists’ emphasis on non-state production of law (here we are
treating the courts as part of the state). That is, the production of
the norms of globalization appears to happen outside and without the
need for a state-based rule of law. It affects how we are to conceive
of the rule of law in conditions of globalization, a decentred rule
of law for a decentred state.
Second, it has implications for the
Cooper-Ignatieff thesis. If they advocate for a rule of law compatible
with globalization, then it appears that it will form absent a significant
administrative state presence, or a “single political authority” if
it is to remain consistent with globalization. Second, it appears that
to the extent that courts have been taking on decisions formerly the
domain of the administrative state, they have not integrated a discourse
of globalization into that decision-making except in an indirect way.
We will examine some of these ways below, in pre-figurative criticisms.
ii) The courts in the state: judicial resources and procedural innovations
The administrative state presence has been markedly
reducesd, both in terms of deregulation and defunding. Two events, among
many, bracket the timing of these developments locally: the 1982 Canadian
Charter of Rights and Freedoms,
which expanded the jurisdiction of Canadian courts, and the 1995
Federal (Martin) Budget, which is an excellent example of reductions
to the welfare state, declaring that the state had been returned to
“1952 levels”.
Just as symbolically, the introduction of the Canada Health and Social
Transfer marked the end of federal funding of civil legal aid in Canada,
the main source of access to justice. Provincially, legal aid funding
has been effectively capped, and the scope of coverage reduced. The
pattern is reflected in human rights commissions, which are chronically
underfunded and inefficient, to the point that the B.C. government has
dismantled its commission entirely.
Courts themselves have coped with the situation as
most rational institutions would, by cutting costs, streamlining procedures
and reducing, where possible, applicants and litigants. This comes at
a time when we would expect to see a rise in the work of the courts
corresponding to a decline in state fora and provision of services.
Procedurally, the courts have streamlined
procedures, made more criminal offences summary procedures, (which,
by the way, has resulted in problems with preliminary hearing, disclosure
and other fair trial rights), introduced mandatory mediation, created
larger specialty courts like family court, and encouraged the use of
alternative forms of dispute resolution at various stages in different
proceedings. In Ontario specifically there have been changes on costs
of litigation (Rule 49 of the Ontario Rules of Civil Procedure)
that encourages settlement by penalizing with costs the party that refuses
the reasonable settlement made at an appropriate time, the introduction
of class actions. These actions are consistent with the tenets of globalization,
or at least do not challenge it.
There have also been extra judicial changes, including
the rise of legal insurance
and alternative dispute resolution. More broadly, non-juridical responses
to globalization include the proliferation of voluntary self-governance,
which the federal government has actively promoted.
(iii) Crises of professionalism
The third general theme that emerges
from the review is a re-assertion of a model of legal professionalism,
a multi-faceted phenomena that Upendra Baxi has termed the “politics
of nostalgia … the practice of re-imagining the past in order to restore
a future”. But, nostalgiacally speaking, because the past and indeed
globalization are not univocal, despite the alleged inevitablility of
globalization, or necessity of the rule of law, so too the politics
of nostalgia is not univocal, and this is the source of pre-figurative
criticisms of globalization in the legal fields.
It has several manifestations in
the legal fields in Canada, two that we will pause to mention. The first
is a debate over the role of courts in the decentred state, usually
by accusations of judicial activism and the role of a judiciary in a
market-based democracy, and second in the role and organization of the
legal profession and of law firms specifically.
Both crises of professionalism are
captured in a speech of Canadian Supreme Court Justice John Major to
an audience of law students in 2000.
While noting the increasing number of unrepresented litigants before
him, he bemoaned the pursuit of profit in large law firms, agonized
that it threatened to change the practice of law from a profession in
to a business or worse a mere trade, noted the high rates of large firms
beyond the reach of the average litigant, and the temptation to conflicts
of interest and loss of vision of lawyering in the public interest.
He valourized his day practicing law in a small community in Alberta.
He ended with an exhortation, echoed by senior jurists around the country,
to re-assert professionalism in the public interest, to de-imbricate
the business of lawyering from the profession lawyering.
It is easy to be cynical about such
exhortations, all the more so when tuition fees at some select schools
have been deregulated, and under Dean Daniel’s tenure, projected to
hit an astonishing $25,000 per year for a so-called public education.
But that is not the main point; in fact, Major J. has articulated in
a half-conscious way exactly what Cooper and Ignatieff would recommend,
the deployment of the rule of law to somehow curb the worst excesses
of profit and power in conditions of globalization.
This is an important point, perhaps
the main point. It assumes that the production of law was perhaps not
central or not integral to globalization, and somehow the production
of law can be separated from capital and made to reform it. In its own
way it is a critique of globalization that, as we will argue below,
has not worked out its own implications very well. The question, how
far will a rule of law accomplish the taming of globalization, and at
whose cost, is not thought out.
This curative nostalgia has a more
pointed manifestation within the bodies governing lawyers, the law societies.
In Ontario the Law Society of Upper Canada is now struggling with the
question of the way law firms organize themselves as businesses. The
transnationalization and rationalization of law and other similar services,
such as accounting or engineering, and through law firm mergers has
led to the combination of law firms and accounting firms known as multidisciplinary
practices.
This form of firm has caused large debate within law societies. Self-regulation
by law societies (the dominant model in common law jurisdictions) is
premised in large part on protecting a public interest (the delivery
of legal services) by independence from conflicts of interest. But as
recent events show, conflicts of interest are not easily avoided through
“Chinese walls”, and the how the anti-corruption movement handles the
pressures of the transnational business model on one hand, and the protection
of the local monopoly on the other. Two esteemed Ontario jurists have
both recently made note of the changes in professionalism of lawyers.
They cite a lack of civility and access to justice primarily, it seems,
as the result of avarice or other “economic pressures”, and recommend
a return to older ways or else lose the right to self-regulation. Here, a sort of nostalgia
for the professional model cloaks the sublunar motive and protection
of the professional monopoly.
(iii)(a)
Judicial protagonism
Judicial activism is the most common topic or expression
of the globalization of the rule of law, and is another example of the
globalization discourse treating an institution simultaneously as part
of the problem and part of the solution. Before 2001 and continuing
is an attack on courts’ higher profile and increased role, if only in
relief against the weak state, and increased jurisdiction in some cases.
In Canada judicial activism is more
or less coterminous with the introduction of the Charter, which
as noted marked an expansion of judicial jurisdiction. This expansion,
while the state began contracting under the two successive regimes,
conforms neatly with the experience of many OECD countries at this time.
As such, judicial activism is a debate about the scope of judicial decision-making
under the Charter, but a very selective one. To be sure, criticism
of courts generally does not target trade-related or commercial decision
making, instead favours with its vitriol decisions in social and political
rights, especially aboriginal title
and self determination,
economic and social security
and gay and lesbian rights.
I hesitate to add the law of migration, because the Immigration Act
has been systematically gutted, but a few interesting Charter
cases arise from issues in migration.
Judges respond variously by denying
that they are doing anything different,
to insulating authorship of contentious decisions, to taking a more
active media-relations program (the Supreme Court of Canada). Academic
discourse has examined this tension and two positions are established.
The optimistic version is represented by Dean Hogg and Allison Bushnell,
in a much-quoted essay in the higher courts, describes the tension as
a “dialogue” between the courts and the legislature.
The other is known as “Charter
skepticism” and maintains that in many areas, the Charter has
not produced any significant change in substantive rights, or at most
has produced purely formal and not substantive gains. This is especially
so in rights related to the market, such as labour rights. It is perhaps
telling that decisions of the top court will often cite reasons of “fiscal
restraint” on the part of the state, thereby maintaining proper “judicial
deference” to the legislature as reasons for not expanding the substantive
rights of individuals via the Charter.
At any rate, there is statistical
evidence that the phenomenon of judicial activism does not so much mark
a trend in decision-making by judges as it does a wider and separate
discourse about the role of the judiciary and courts in a weak state
democracy.
This discussion has not happened in a robust way in Canada.
(iv) Pre-figurative criticisms
There are some forms of response
to globalization that do not take the form of a re-imaging of the past
as much as they constitute pre-figurative criticisms of a type that
Santos would identify as nascent forms of
“the common heritage of humankind” or perhaps “cosmopolitan values”.
There are some procedural innovations
most usually made in the “public interest” on the theme of “access to
justice”. One is the use of intervenors. These have become an important
feature in the process of court and tribunal hearings. The 1980s and
1990s saw increase in intervenors, particularly in Charter litigation
and environmental law. Several well-known intervenor groups spring to
mind: Women’s Legal Education and Action Fund, the Sierra Legal Defence
Fund, the National Citizen’s Coalition. These operate to bring arguments
to court that might not otherwise be there, or in another view, to bring
illicit political argument to court cases.
Perhaps in response to accusations
of judicial activism, the senior court in the land attempted to restrict
the scope of activity of intervenors in Canadian Council of Churches
v. Canada (MEI).
Here, the court made remarks to the effect that public interest litigation,
in itself, is only to be brought where those it represents (individual
plaintiffs) cannot effectively assert their rights. One might wonder
if this is a radically inefficient formula for use of judicial resources.
But the decision was over a “polycentric” ordinance, the Immigration
Act, and the Supreme Court still takes the view that this is an area
for judicial deference.
Another form judicial procedural
criticism is direct reaction against state underfunding. The reaction
has on the whole has been underwhelming, and the doctrine of judicial
deference in matters of resource allocation has generally trumped the
rights or expectations of individuals.
Two cases betray some a small shift position: New Brunswick (Minister
of Health and Community Services) v. G. (J.)
and Winters v.
Legal Services Society.
The New Brunswick case marks a broader scope to the s. 7 arguments
for state-funded counsel in some circumstances.
It also marks a small victory against the way in which cutbacks have
a very gendered effect on citizens.
There
are also cases that deal with substantive issues, most notably in the
last frontier of the Rule of Law, aboriginal self government and aboriginal
title.
Delgamuukw has been both applauded and criticized for what it
recognizes (oral evidence, aboriginal title, the right to self government)
and what it fails to recognize (actual self government, unfettered title
to property). Non-citizens are protected by the Charter while
in Canada. Baker stands for the proposition that immigration
officials have a duty to give reasonable reasons when deporting applicants,
and questions some of the bases of decisions to deport.
M. v. H. stands for the proposition that same sex couples
have an equal right to spousal support.
This list sounds hopeful, and it should, but we should
not make too much of these cases as pre-figurative criticisms, for the
reasons footnoted, but also because these instances occur within a much
larger accommodation of globalization. They may portend the meaning
of “enlightened liberalism” as envisioned by Cooper, but we can just
as easily, and perhaps more realistically, turn to some case studies
of rights under a market-based liberal and neoliberal democracy.
VI.
Models and Cautionary Tales
The globalization of the Rule of Law has come to Canada
indirectly, like all colonial rules. Canada did not (and did not need
to) experience judicial reform via the Washington Consensus institutions,
as did much of Latin America and other parts of the world.
Instead, the globalization of the Rule of Law marks a new configuration
of the judiciary and the administrative state, marked by judicial activism,
crises of professionalism, and the role of the courts in smoothing the
failings of the weak state. These failings are at least twofold; the
deliberate failure to provide social goods (dispute resolution as one
of them), and second, the failure of the state as a democratic entity.
Judicial responses have also included pre-figurative
criticisms, both procedurally and substantively, and these have unsurprisingly
become one of the focuses of the debate of judicial activism. What this
signals is a new attempt to exercise political control over the judiciary,
to tighten the political grip on them. This in itself may run afoul
of the prescriptions of the anti-corruption movement.
We have noted all along that courts and the rule of law are being
asked to solve the problems of a model of market-based liberal democracy,
and to do so through a “new enlightened liberalism”. We have noted how
this amounts to enforcing a functional-formalist model of the rule of
law that is ill defined, but appears to take on the features of an older
order, most akin to that found integral to a liberal market democracy.
What isn’t considered among these is a model of democracy
that de-emphasizes the prominence and importance of the market in favour
of the state or the community, or more broadly, what C.B. Macpherson
called the principle of equality in his models of democracy.
If that is to be the assumption underlying
the rule of law appropriate to this model of democracy, then history
provides us with have examples of what we might expect from an enlightened
liberal imperial Rule of Law for a market-based democracy. Three cases
are especially pertinent to trends we have identified, in the private
enforcement of social rights and-or the replacement of social rights
with contractual relations.
Taking a chronological order, the first is a case from 1940, Christie
v. York, an infamous case
in Supreme Court jurisprudence that held that the principle of freedom
from contract allows racial discrimination in the provision of services,
or in this case, the freedom not to serve black Canadians alcohol.
One hopes that if it were litigated 50 years later, after the rise of
human rights codes, it would be decided differently. But we have seen
how human rights commissions, charged with prosecuting human rights
abuses, have been de-commissioned, and until those statutory rights
are permitted to be pursued in private litigation, Christie v.
York remains “good law”.
The case is perhaps an epitome of the principle of freedom from contract
in an unenlightened liberalism. But as we noted, since then the administrative
state, in fits of enlightenement, enacted human rights codes under the
administrative state, that very aspect of the Rule of Law that is inconsistent
with the tenets of globalization.
The second case is from 1981, in which Ms. Bhadhuria, perhaps
perceiving a slow bureaucratic process from the Ontario Human Rights
Commission, sued the board of governors of Seneca College in tort for
discrimination in hiring on the basis (again) of race.
In a sad decision, one of Canada’s most esteemed jurists and a victim
of ethno-racial discrimination himself, held that there was no tort
of discrimination, largely on the basis that the human rights code “took
the field”, but perhaps also and in fairness, on the experience of Laskin
C.J. who had seen many dubious categories of tort opened against the
labour movement. Again, that decision remains “good law” in an age wherein
human rights commissions have ceased to function except as declaratory
statements.
The vanguard of the rights revolution would note that those case
studies were pre-Charter, and many cite the Charter as
defining and protecting the rights of Canadians, and a key part of the
“enlightened” constitutional fabric that would save globalization from
itself. We have already briefly
noted the two schools of thought on the Charter, the “dialogists”
and the “skeptics”. A case dear to the hearts of Charter skeptics
will be Dolphin Delivery, in which the freedom of association
is determined not to be a foundational Charter right, and made
subject to rights of property (make no mistake, property rights were
explicitly excluded from the Charter), and furthermore, the quasi-freedom
to associate is also not to be exercised in front of courthouses.
This last insult to injury was rationalized by asserting that courts
did not constitute “government action” for the purpose of the Charter,
an assertion that our paper has sought to disprove, but Dolphin Delivery
too remains “good law”.
Legal pluralism has been
systematically studies since the 1970s. See M. Hooker, Legal
Pluralism: An Introduction to Colonial and Neo-Colonial Laws
(Oxford: Oxford University Press, 1975) and for a general overview
see J. Griffiths “What is Legal Pluralism” (1986) 24 Journal of
Legal Pluralism 1.
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