In Defence of Theory

5 08 2010

I’ve said it before and I’ll say it again: theory is (or should be) an important part of the law school curriculum. This point was once again brought to my attention by a post over at Slaw. Swan is certainly entitled to her opinion, but I must say that I do not agree for two reasons. First, the law-medicine analogy is not always a helpful one and second, a non-academic faculty of law sits awkwardly inside a large, research intensive university.

Of Law and Medicine

I do agree with Swan that analogies between the study and practice of law and the study and practice of medicine can be helpful. I do, however, think they can also be rather dangerous. For example, there are certain basic truths about the human body that, once learnt, will remain true forever; barring any radical changes in our genetics, of course. The same, by and large, cannot be said of the law. It can and does frequently change and this is true of even its most basic elements.

This poses a problem for law schools attempting to prepare would-be lawyers. Should these students be taught material that will be out of date before they even graduate if not sometime thereafter? It might be argued that there are breakthroughs in the life sciences all the time and that the practice of medicine has changed radically in the last 20 years alone. While this is true, I would argue that there still remains a fairly stable foundation that medical school can teach in terms of facts and procedures that will continue to serve a doctor well, even if the tools or techniques change with time.

In this respect, I think theory plays a vital role in any law school. First of all, it serves as a foundational topic upon which to build an understanding of otherwise disjointed and, at times, arbitrary subjects. Second, and perhaps more importantly, it prepares soon-to-be lawyers for thinking about the law. Given its changeable nature, it seems only right that the emphasis of a legal education be upon learning how to think and understand the law rather than learning particular statutes inside and out.

Faculty or Trade School?

It is not at all surprising that faculties of law have been drifting more and more into theoretical or, perhaps, academic waters as of late. Given the tendency across Canada for law schools to exist only at what are, in the Canadian context, major research universities, it is rather unsurprising that they are drawn into emulating the methods of other disciplines. This may also be a product of the fact that most law school students today have already completed an undergraduate degree in a more traditionally academic faculty. One important fact also remains, however, and that is that the education that leads one to be called to the bar in Canada is billed as a university level course, whatever the final degree is actually called.

With this in mind, then, it is surprising that so many commentators think that law schools should be less theoretical, less abstract. Instead, they argue, the focus should be on practical skills and doctrine. In some respect, law school should be more like other ‘professional’ schools with, perhaps, business school coming most readily to mind. Though many of these professional schools sit somewhat uneasily in the university environment, some would argue that we as a society have made our peace with that.

Again, I think this model of ‘professional’ schools falls apart when you leave the applied sciences such as engineering and the medical-related professions. The topics in these courses are both intellectually challenging and demonstrably practical. They solve real world problems, every time. Softer, human created subjects like law and commerce less obviously lend themselves to the same kind of study. For them, the practical is not, or so I’m told, all that intellectually challenging while what is does not pass the test of practicality. In short, you risk ending up with a sea of paralegals out of which the occasional ivory tower looms. The lawyer, I think, should sit somewhere between these two extremes and, I think, that is what a theoretically driven, but not dominated, legal education delivers.

Conclusion

Another thing I’ve said before and also that bears repeating is that it is not law schools that must become less theoretical, but it is articling that must become more practical. True enough the 10 months spent articling involve learning the practice of the law by observation and handling small matters with the supervision of a mentor. That said, it is only 10 months. While it is certainly the case that every lawyer, no matter how senior, is always learning, it is also true that few feel fully confident to practice with only 10 months under their belt, whatever the law society proclaims to the contrary.

To go back to the law-medicine analogy, I think one of its more helpful applications is to consider not law school vs medical school, but articling vs residency. The latter is a much longer and more involved process than the former and perhaps it is that which we should learn from those medical types.


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The Importance of (Civil) Rights

2 06 2010

Civil (or private) rights enjoy an odd existence: at once foundational and largely ignored. Even when they are considered, the reasoning that surrounds them tends to invoke so-called public policy concerns. I would suggest that there are good reasons for this ambiguous existence. I would also argue, however, that those reasons do not excuse the prevailing dearth of discussion surrounding civil rights in contemporary society.

Civil Rights Defined

Perhaps what little attension they do recieve is due to the confusion to which civil rights are subject. Civil rights, properly understood, belong to a conceptual morass which can easily bog down the unwary. Part of the problem is that the different kinds of rights overlap in many respects. On one level this is obvious and to be expected. After all, they all attach to human beings. While this need not universally be the case (think corporations and outlaws respectively), it certainly describes the vast majority of rights holders. On another level, however, it is the word ‘civil’ that confuses. What is meant by civil in this context is the same as is meant in civil society, that is, a private context concerned as between individuals. This is not to be confused with the context often associated with the civil rights movement in the US. It is true that, in part, they were seeking a recognition of their civil rights in the sense used here, but it the movement has now become synonymous with the political, some would say human, rights that they also sought.

In the sense I wish to use the term, civil rights evokes those rights that you have good against your fellow members of society. Classically, at common law, these include your bodily safety, freedom of movement, your property (both real and personal), your reputation and, perhaps, not to be lied to. These are rights in the sense that they can be vindicated in court insofar as they are all torts of one kind or another: assault and battery, false imprisonment, trespass and conversion, defimation, and deceit respectively. In this respect, and due to their common law nature, they exist, in theory at least, independent of the state. Her Majesty could abolish Parliament tomorrow, but she could not detain you or seize your goods without cause. (n.b. I say in theory because if the Queen were in a position to abolish Parliament she would have to be in a benevolent mood indeed to continue to pay, and refrain from applying pressure to, the judiciary.)

The Obsession with Political Rights

Why, then, is it that we hear so much about political rights? I think there are a few reasons, some of them historical and some of them of a universally pressing nature. The latter has to do with the fact that the state is scary and, with each passing day, increasingly so. It has always been able to muster a greater force than most, if not all, could possibly hope to assemble. Add to this the legal privilege to ignore an individuals right when they have cause and you end up with the ‘who watches the watchmen?‘ dilemma. You, as an agent of the state, have the privilige to ignore my right to freedom of movement if you have cause, but what is cause and does it matter how you happend to come by it? I think we would all agree that those two questions are of great importance and that, it would seem, is the gist of political rights. These questions, and political rights themselves, seek to curtail the otherwise terrifying power of the state. In a sense, it is a real life gloss on the ‘with great power comes great responsibility’ message of Spider-Man. The state may weild imense power, but its exercise is hemed in at every turn by our political rights, rights which are good against, but only against, the state.

The historical reason for the obsession with political rights is that they were not very well respected or widely distributed. This necessarily meant that many people were left standing naked before that terrible power of the state. This, as history has shown, became increasingly unacceptable. As many would suggest, we still have yet to see the end of this process of extension, especially if we think these rights are of a substantive as opposed to a procedural nature. As such, they have often been and, indeed, continue to be the subject of great concern. The most obvious injustices are often the most one-sided and, frankly, it does not get much more one-sided than a contest between you, the signle individual of limited financial means and only your own time with which to defend yourself, and them, the state of enourmous, nearly unlimited, finances and the time of its inumerable servants. Finally, we are all acutely aware that if we allow the state to ignore its responsibilities to that particular individual today, it could be any of us tomorrow.

Enter Human Rights

In some respect, human rights are a continuation of the obsession with political rights. The problem with political rights is that necessarily depend upon the political unit to which you belong. If your right is against this state, then you must be within its jurisdiction to claim it. Now, this appears radically unfair in a number of ways. Primarily, however, the argument for human rights appears to be a concern with equality. If we are all human why should a particular accident of birth alter you basic entitlements? The term is somewhat problematic, however, as the notion of ‘human’ rights is at once under- and over-inclusive. On the one hand, all rights are, to a large extent, enjoyed by humans – not just the political rights often covered by human rights legislation. On the other, as documents primarily concerned with political rights, human rights documents emphatically do not include all the rights enjoyed by humans.

It must be noted at this point that, at least in the Canadian context, provincial human rights legislation is targeted at civil rights in the sense used herein. They are not, however, comprehensive in scope. In the Ontario context the legislation only pertains to employment, accomidation, vocational associations, and ‘services, goods and facilities’. While that certainly covers many of the areas where an individual human being might face discrimination in the civil context, it is not exhaustive. The simplest example is that nowhere are your property rights enshrined nor is you right not to be lied to. Perhaps the legislation shouldn’t be comprehensive, though. After all, we are far less squeamish about placing obligations on the state than we are on private individuals.

Why You Should Care About Civil Rights

That said, the state is not the only entity before which individuals tend to stand naked and alone. Mill’s concern in On Liberty was as much about the tyranny of the majority as it was about arbitrary exercises of the state’s authority. Now, some will object to this notion of ‘society’ as a singularity, as an entity unto itself. They will not be alone, sharing the notable company of Baron Bramwell and many liberal theorists. Without requiring your ontological conversion, however, it is sufficient to accept that civil society exists, in some respect, and provides us with a number of goods. It can, as I have alluded to, be a source of harm as well. In this respect, at least, claim rights against the state are of little worth.

Now, it would be question begging in the extreme to assert, with nothing more, that we should all have claim rights good against the world, against both you and the state in equal measure, to non-discrimination in all things. It is not question begging, however, to wonder why civil rights, in the sense used herein, do not attract the same kind of attention as political/human rights. My concern is that if we are serious about tackling discrimination, in the popularly understood sense of confronting irrational and arbitrary distinctions, then it is not at all apparent that we can safely ignore this aspect of our social existence. It is cold comfort that the state treats you with dignity and equal respect if you cannot get a job or hold certain forms of property because of who you are.

With all respect to those who are of the contrary opinion, it is no answer to point to the Human Rights Code. There are many things for which the state should be responsible, but it is not obvious that it should be the arbiter of our common decency. While the common law does seem loathe to impose positive duties upon individuals, it would be absurd to suggest that it would therefore countenance an abdication of individual responsibility to the state. Indeed, it is not hard to appreciate that the common law’s distrust of positive duties is merely the correlative of a deep and abiding respect for individual responsibility. If so, then there might be more to our civil rights than we thought. In this respect, at least, perhaps the way forward looks a lot more like our past than it does our present.

n.b. this post is heavily indebted to the work of Robert Stevens in Torts and Rights.



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Loopholes: Rights and Taxes

10 03 2010

I was planning on responding to this article I had read earlier, but then I read this and I began to see a theme and I asked myself: what relationship is there, if any, between so-called ‘loophole’ or ‘override’ provisions and their parent statutes? The answer, I would suggest, might go against our common sense.

Tax Code

What do Canadians like to complain about besides the weather (and losing to the US in hockey)? In a word: taxes. The Globe & Mail article linked to above seemed to think it was doing us a favour in that regard. It was purporting to educate ‘wealthy’ Canadians about their options when it came time to file their taxes (though, perhaps, a little too late for this year). What did the enlightened individuals who habitually post comments to G&M articles have to say about that? Well, in two words: loopholes bad.

Why are they bad? Because they allow these ‘wealthy’ Canadians to shirk their responsibility to society by not paying the maximum amount of taxes possible to the government(s). My question is: why should they have to? The tax code says, among other things, that certain entities are taxed at certain rates and sets out the way in which tax brackets work. What it does not do (as far as I am aware) is forbid those who are not wealthy from taking the same liberties (yes, I chose that word on purpose). Now, as with many private/civil rights (‘civil’ as in distinguished from the Charter, not as in the 1960s movement in the US), many of the liberties that the tax code affords are simply not worth pursuing unless you happen to be wealthy. I say this because the right to sue someone who has totalled your car is worth far less when the car in question is a 1992 Corolla than if it were a Bentley. The same, I would suggest, applies to the tax code. Just because your means don’t make the setting up of holding companies and trusts or the making of spousal loans worthwhile doesn’t mean they are ‘loopholes’.

My problem with the term, is that it suggests that those who avail themselves of their legal rights are engaged in some kind of moral breach. If (big if for some, I know) paying your taxes is a morally good thing and if these moral goods are set out in a certain statutes, then it is unclear to me how other provisions of that statute come to take on this sinister moral character. Now, this is not to suggest that you can’t claim that certain parts of a statute are immoral without impugning the entire thing (certain parts of the Criminal Code come to mind). It is to suggest, however, that if a statute explicitly provides for a course of action, then that course of action should not be labelled a ‘loophole’. This is for the simple reason that this course of action does not occupy some weird conceptual space left hanging between (hypothetically) ss. 3.4(1) and 3.4(3); it is actually s. 3.4(2). A loophole, then, would properly be a course of action that,while not explicitly forbidden in a statute, is nonetheless not explicitly provided for either. The scary part about that statement? It describes most of your ‘civil rights’ (as understood above) and, in fact, characterizes most of the common law.

The Charter

It seems that Mr. Yunusov’s concern in his article (link above) is that between ss. 1 and 33 the rights guaranteed in the Charter aren’t worth the paper they are written on. He’s not in bad company, to be sure, but his argument about the Charter sounds decidedly similar to the arguments about the tax code above. Both s. 1 and s. 33 of the Constitution Act, 1982 are part of the ‘Charter’ which is the first 34 sections of that document. In what sense are those two sections loopholes? They both allow government actors to behave in ways that otherwise limit a Charter right, either by establishing that the limitation is a reasonable one in the circumstances (s. 1) or by passing legislation notwithstanding that particular right (s. 33). In short, both sections allow the government to dodge their obligations and undermine the Charter, much the same way the wealthy do with their taxes every year.

My response here is substantially the same. I also want to highlight what is, in my opinion, a paradigm example of why we have s. 33 in the first place. First, a constitutional loophole (i.e. something that would really allow a government to disrespect someone’s rights) would be the result of a poorly worded constitution, not the result of a particular section of the constitution itself. A perfect example would be  s. 15′s protection of equal treatment irrespective of a set of characteristics (race, colour, faith, gender, etc.). Sexual orientation was left out of that list, and quite deliberately I’m told, and that, in my mind, constitutes a loophole that some governments attempted to exploit (Alberta, that would be you). Now, the courts are, unsurprisingly, not thrilled when such bona fide loopholes are brought to their attention. They tend to close them quite quickly, as they did here, by reading sexual orientation into s. 15 as a protected ground.

Does this make rights (both civil and human) a little uncertain? Sure. Does it allow for a more flexible approach to complex questions? Sure. Some, like Mr. Yunusov, might argue that to protect something so important as your Charter rights such flexibility is a cost he is willing to accept. He is entitled to that view (s. 2(a) and/or (b) if you’d like to check), but I cannot share it. Rights are never absolute (see all the ink spilt over ‘fighting words‘ in the US for but one example). Sure, their Bill of Rights makes for a more stirring read than ours, but does that surprise anyone coming from a country whose founding principles are “peace, order, and good government”? We’ve always had a more practical bent, but, perhaps ironically, we also tend to have a better record when it comes to protecting those rights. Perhaps its a cold comfort, but in our jurisprudence we explicitly recognize when we are limiting someone’s rights. In other systems, the protection isn’t engaged because the argument is that the right wasn’t engaged, that is, it wasn’t limited. Often that is patently false (as with fighting words – you are clearly limiting my ability to express myself. It is, obviously, a reasonable limitation, but that doesn’t change the fact that it is a limitation).

This brings me to my second concern, about those who would wage war against ‘loopholes’ and that is the recent SCOTUS decision in Citizens United. I’m just going to guess that Obama & Co. would really like a s. 33 of their own right about now. Their alternative? The intellectually honest, precedent respecting, and time honoured tradition of waiting for a judicial opening and filling it with someone who thinks like you do. This is clearly the President’s prerogative, but it is also a far less principled way of dealing with the issues at stake. Furthermore, while any appoint to the bench carries a degree of uncertainty, any statute passed pursuant too s. 33 is subject to renewal every five years or else the exception expires (and brings the legislation back into the realm of Charter scrutiny). You can’t say the same about binding Supreme Court decisions.

Tomato, Tomato you say?

It seems to me that if the ‘offending clause’ (let’s call them) is part of the document itself, then it was intended to be there as a matter of positive law. If this is true, then we cannot suggest that those who are taking advantage of them are doing something wrong. The objection at this point would be: we aren’t suggesting they are doing anything wrong, only that they are doing something immoral. That is a tougher question, indeed. Still, I would think that the blame would be on the offending legislature(s), not on the particular person who happens to be exercising their liberty. If there is something immoral about reasonable and demonstrably justified limits on rights or on paying less taxes through the proper use of trusts, then it is the legislature’s fault for endorsing them.

‘But they’re still immoral then!’ you say. I don’t dispute that, I only dispute the imputation that it is a legal problem. It is not. It is decidedly a political problem and, in the case of the Charter, a fairly intractable one. Both cases, however, allow governments to be flexible in their approach to complex problems and, that alone, seems laudable. They won’t get it right every time, but as long as it keeps them from getting it spectacularly wrong, that seems good enough.


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Lawyers and the Apocalypse

3 02 2010

Sounds like a bad late-night early morning, made-for-cable movie, but the recent obsession with post-apocalyptic themes has me thinking. No, not just about how much we have to thank the Mayans for; though clearly we, as a society, are slightly perturbed. This isn’t exactly new, though, and, obviously, such predictions have tended to fizzle and fade into relative obscurity.*

The First Thing We Do….

What I had in mind, rather, was what role, if any, the lawyer would play if the nut jobs, conspiracy theorist, alternative reality observers turn out to be right. Some professions have an obvious role: cops and soldiers become the enforcers/guardians; doctors, nurses and EMTs can, well, continue what they’ve been doing (although, with far less); and politicians would continue to lead (or, start to lead, depending on how you define the current game of ‘follow the poll’ played by most (all?) major parties). Others, however, probably won’t be so useful: journalists (where’s your new media now?), investment bankers (money makes the world go round eh?), and theoretical physicist (we can’t eat the organizing principle of the universe, sorry).

So, which of the two groups does the lawyer fall into? Well, that depends (surprise!) on what you think the law is. Either it is merely a collection of rules that describes the prevailing social superstructure and, therefore, has nothing deeper to say than ‘this is how we do X today in a modern, secular, Western society’ or it is a rough approximation of a higher truth about how human society is (should be) organized. By the latter I don’t quite mean something akin to natural law. Perhaps there are certain fundamental principles that are (should be) part of every human society, but you don’t need lawyers for that; a good priest or political theorist (and you thought they were totally different) would do just fine.

No, what I have in mind is more practical. Imagine a small group of survivors settling down near a river and setting about creating a small agrarian community. Now suppose a dispute arises. Maybe its over someone’s cow or maybe its because Fred and Joe had a punch-up. Is a lawyer better equipped to settle this dispute than, say, any other reasonable person? On the former view, no, not particularly. What the lawyer is acquainted with is nothing more than the way things were done, pre-apocalypse, and that doesn’t really speak to the reality they now find themselves in. On the latter view, however, the answer is very much yes.

This, I would suggest, is because what the lawyer is acquainted with is not just a by-product of a particular social structure. Rather, she is acquainted with social interaction itself. This will require a certain level of abstraction, of course, from her day-to-day experience pre-apocalypse. She will no longer be dealing with commercial contracts, but it is not entirely clear to me that the basic concept of bilateral and voluntarily assumed duties should not be equally applicable in our post-apocalyptic setting. Certainly some of the particulars will change (there will be far less, if any, written contracts, for example), but that does not mean the theory is inadequate. The same is likely true of property and tort; really any area that remains largely common law. Areas largely governed by statute pose a slightly different problem.

So does, for that matter, criminal law, regardless of its state of codification, outside the US. This is because in the majority of other Commonwealth Realms the criminal law is enforced on behalf of Her Majesty while in the US it is on behalf of the State or the People or some similar amorphous abstraction. How to characterize criminal prosecutions in a small would-be village in post-apocalyptic countryside of Southwestern Ontario decides to characterize its criminal prosecutions will, I would think, probably not be high on their initial list of concerns. That said, while the theory might be problematic, as with contract, tort, and property, the practice need not change more significantly than taking the absence of institutions and scientific evidence into account.

Less Law, More Justice?

My point is this: just because society becomes suddenly and radically less complicated doesn’t remove the need to deal with intra-group conflict in a consistent, principled way. This is, I think, what the lawyer brings to a possible post-apocalyptic future. Perhaps this won’t be the most urgent of skills during the immediate aftermath. If, however, society is to continue to be more than merely the arbitrary rule of the strongest, then I think any surviving lawyers will have a role to play. A dangerous role, I’m sure, and perhaps one that many will shirk or abuse, but a role nonetheless.

* Side Note

I’ve always been fascinated by such apocalyptic predictions. It’s kind of like Pascal’s Wager. So what if you’re right, not only are you dead, so is everyone else and, quite clearly, no one will know, care, or remember. With this in mind, then, why don’t we all get on with our lives and worry about things that are within our control like, say, poverty, disease, or maybe the environment. That is, if that lingering, chronic, real-world kind of thing isn’t too banal for you.


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