Law’s Empire, or

First Time Tragedy, Second Time Farce

Draft for Circulation

Postcolonialism Today

September 29, 2002

S.B. Archer[1]

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”.[2] 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.[3]

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.[4] This is the “precondition to reaping the humanitarian and economic benefits of globalization.”[5] 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.”[6]

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.[7]

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,[8] 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.[9] The economic components of globalization are often cited as the dominant discourse, whether pro- or anti-globalization.[10] 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’;[11] (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.[12] 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.[13] 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.”[14] Collectively these institutions and their policies were labeled the “Washington Consensus”, and emerged out of the Bretton Woods agreements in 1945.[15] 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.[16] 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.”[17] 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.[18]

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.24

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.[19]

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.[20] 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.[21] Most date Western liberalism and its associated legal forms from Locke, Hobbes and Rousseau.[22] When the state form became prominent or priviledged site of political and legal discourse in the 19^th 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).[23] 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.[24]

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.[25]

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.[26] 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”.[27] 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.[28]

Many solutions are proposed to the regulatory trilemma including: the neoliberal solutions (less regulation altogether), better proceduralization,[29] moving from regulation to constitutionalization,[30] law as autonomous and reflexive body,[31] law as relational as opposed to institutional,[32] 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.[33] 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.[34] 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.”[35] 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.[36] 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.[37] 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.[38]

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”.[39]

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). [40] 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.[41]

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.[42]

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.[43] 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.[44] 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.[45]

That idea has its proponents[46] and critics[47], 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”).[48] At least one author and one collection of essays have mapped the similarities in globalization studies with those of postcolonial studies,[49] 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.[50]

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).[51] 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.[52]

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.[53]

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.[54] 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”,[55] 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.[56] 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.[57] Locally, we might look to the Reference Re: Quebec Secession.[58]

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 20^th 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,[59] and has filiations in the sociology of legal fields.[60] Recent critical legal work has sought to demonstrate this reciprocal relationship.[61] 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.[62] 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.[63] There are excellent discussions of these general divisions, and of global production of law.[64] 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.[65]

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).[66] Other forms of data can provide indicators as well, such as survey data. These sources are conventional, but require some caveats.[67]

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.[68] 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.[69] 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”.[70] 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.[71]

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[72] 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.[73]

(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.[74] 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.[75] 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.[76]

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.[77] 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.[78] Here, a sort of nostalgia for the professional model cloaks the sublunar motive and protection of the professional monopoly.[79]

(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.[80] 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[81] and self determination,[82] economic and social security[83] and gay and lesbian rights.[84] 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.[85]

Judges respond variously by denying that they are doing anything different,[86] 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.[87]

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.[88] 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).[89] 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.[90]

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.[91] Two cases betray some a small shift position: New Brunswick (Minister of Health and Community Services) v. G. (J.)[92] and Winters v. Legal Services Society.[93] The New Brunswick case marks a broader scope to the s. 7 arguments for state-funded counsel in some circumstances.[94] 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.[95] 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.[96] M. v. H. stands for the proposition that same sex couples have an equal right to spousal support.[97]

            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.[98] 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.[99]

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.[100]

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.[101] 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”.[102] 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.[103] 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.[104] 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”.