Some Thoughts on the “Rule of Justice”

A Short Essay on Justice Rosalie Abella, Legal Progressivism, and Originalism

The New Digest is thrilled to feature our first guest author - Professor Stéphane Sérafin, who is an Assistant Professor at the Faculty of Law, Common Law Section, University of Ottawa

In the American context, it has been assumed over the past few decades that any opposition to self-styled “progressive” legal thought must take the form of originalism, textualism, or some other approach that purports to anchor legal argument directly in a posited legal text. This position has been difficult to fully countenance in Canada, which lacks a fully written constitution, and where courts have never been saddled with an equivalent to the American Erie doctrine. Nonetheless, originalist/textualist arguments have gained some currency among those who would reject the version of progressive legalism that dominates Canadian courts and law schools. Much as in the United States, then, to stake out a view different from originalism/textualism is to risk being lumped in with progressive legal thinking, and to be taken to endorse its guiding metaphor, the “living tree”.

I have previously co-written on the fundamental errors that underlie this view of the alternatives to originalism/textualism. In this post, my aim is to supplement that exposé by engaging with recent extra-judicial pronouncements by former Supreme Court of Canada Justice Rosalie Abella. To say that Abella has a cult following among “progressive” Canadian legal jurists is perhaps something of an understatement. Although she is frequently compared to the late Ruth Bader Ginsberg, I do not recall an American equivalent to the multi-day “Abellafest” conference put on last year on the occasion of Abella’s retirement from the Supreme Court. Nor has Ginsberg to my knowledge been the subject of a feature-length documentary aired in cinemas and promoted by the mainstream press, as Abella has.

All this is to say that when Abella repeatedly claims to reject the value of the (mere) rule of law, in favour of what she has termed the “rule of justice”, such statements can be taken as representative, in their broad outlines, of the views held by much of the progressive Canadian legal establishment. As Abella put her views most recently, in a Washington Post op-ed:

We need to put justice back in charge, and to do that, we need to put compassion back in the service of law and law in the service of humanity. We need the rule of justice, not just the rule of law. Otherwise, what’s the point of law? Or lawyers? What good is the rule of law if there’s no justice? And to make justice happen, we can never forget how the world looks to those who are vulnerable. It’s what I consider to be the law’s majestic purpose and the legal profession’s noble mandate.

As per the false dichotomy referenced above, an originalist/textualist reading this paragraph will undoubtedly see the arguments of his or her competitors on the legal “right” reflected in it. Since the originalist/textualist equates law with enacted text, the call to “put justice back in charge” is read to mean the subordination of law to the moral and political preferences of the speaker. These may well be progressive preferences, as in Abella’s case, but they can be conservative as well – a position that originalists/textualists ascribe to common good constitutionalism, among others. Whatever the values or preferences given precedence over “the law”, such a perspective is thus taken to imply the subordination of law to subjective individual preferences.

This charge is not entirely incorrect, at least where the progressive legalism of the type that Abella exhibits is concerned. While proponents of this view would probably not express it in terms of “preferences” – a phrase reminiscent of the economic jargon popular in some segments of the liberal right –the bare instrumentalism of this type of progressive legalism is not difficult to discern. It is quite explicit, in fact, in the excerpt reproduced above, most notably in the question, “Otherwise, what’s the point of law?” This framing alone suggests that the law has no point, no value, other than in the service of “justice”, as Abella conceives of it. Law is a mere means, perhaps one of many, in the service of some higher end – i.e., the “service of humanity”. Since a law that does not serve this end has no intrinsic value, such a law is ultimately unworthy of enforcement, and should potentially be changed by judicial fiat to better align with “justice”.

These conclusions are far too quick, however, where the originalist/textualist purports to apply them to proponents of common good constitutionalism and similar views. To paint these approaches with the same brush as the progressive legalism Abella espouses is to miss key assumptions that underlie her position, and which are required to make that position intelligible in the first place. The most important is the assumption that law and justice are distinct notions, such that it is possible to have law without justice, and, at least potentially, justice without law. To suggest that “[w]e need the rule of justice, not just the rule of law” supposes such a distinction exists. The classical legal tradition that common good constitutionalists defend, meanwhile, admits no such distinction at all.

For proponents of progressive legalism, the distinction between law and justice is typically informed by a peculiar but nonetheless widely held reading of 20^th-century history. Stripped down to its essentials, this reading holds that law alone was powerless to prevent the atrocities committed by the Nazi regime. On some accounts, it may even have abetted those atrocities. Similarly, law is understood as the basis on which overt discrimination was allowed to operate in the U.S. South and Apartheid South Africa. From these example cases, progressive legal thought has learned to deprecate law, and even to fear it as an instrument of oppression. Law, taken on its own, does not guarantee or even necessarily further justice. In some cases, it may even amount to a source of profound injustice – or so the reading goes.

Such a separation of law from justice has important consequences for both the value of law and the nature of justice. Insofar as law can exist without justice, law is emptied of normative content, and can scarcely be said to have value in and of itself. What value law does have is necessarily contingent, depending upon its compliance with a separate moral or political argument of the kind that Abella offers in the remainder of her op-ed. (In her case, those who do not fully accept the worldview of the average Washington Post op-ed writer will not find much reason to buy in). But insofar as justice can exist without law, justice also undergoes a transformation. Far from being a specifically legal virtue, the realization of which must take place through law, “justice” becomes synonymous on this view with the realization (by virtually any means) of the ideal political and moral order proponents of progressive legalism hope to have realized. In other words, justice ceases to be a concern for the rendering to each person of his or her due, and becomes an unbounded, and thus utopian, political project.

Suffice it to say that this view of the relationship between law and justice is not shared by the classical legal tradition, nor does it appear in the writings of those who currently claim its mantle. For the classical legal tradition, law and justice are not distinct, but rather inextricable from one another. On the classical account, law has intrinsic value precisely because it embodies justice. It is not a “neutral”, value-free mass of rules, but a set of authoritative statements establishing what the members of a given community owe each other and the community as a whole. It is an essential, and thus inescapable, part of communal life, of which it is partly constitutive.

Conversely, where justice is understood as inextricably tied to legal form, it cannot be comprehended as an unbounded political project. Its aims are necessarily narrower, with “justice” being first and foremost concerned with the concrete resolution of disputes arising in a given political community. What the law authoritatively settles is the need for justice that inevitably arises within the community, whether between its members or between its members and the community as a whole. In doing so, the law also serves a prospective function: it is because law guarantees the measure of each person’s due that it can also serve to facilitate cooperation within the community, whether between individuals, most notably via the law of contract, or between the various branches of government that tend to arise within any society that achieves a certain degree of complexity.

Framed in these terms, proponents of common good constitutionalism and similar views can hardly be understood to endorse the “rule of justice”, as Abella conceives of it. Their conception of the relationship between law and justice precludes it. If law and justice are inexorably intertwined, then the claim that “[w]e need the rule of justice, not just the rule of law”, is simply unintelligible. Law is the only means through which justice, properly bounded, can be instantiated. And justice so understood must necessarily operate through law, properly conceived not as a mass of normatively inert rules, but as an authoritative statement of right and duty.

This same conclusion is not, however, precluded by the view of the relationship between law and justice at least typically endorsed by originalists/textualists. Indeed, proponents of the latter set of views tend to accept something very much like the distinction implicit in the above excerpt. They merely disagree with the subordination of law to justice and instead attempt to subordinate “justice” (broadly conceived) to the value of (bare) law. Whether such attempts are successful is beyond the scope of this post, though I will chance a brief comment: having accepted that law is distinct from justice, whatever arguments originalists/textualists muster in favour of law’s own value are, like those of progressive legalism, necessarily instrumental and contingent. To say that law so understood has value because it provides certainty and predictability, for example, is to make a political argument of precisely the kind Abella makes.

I make one further comment, concerning the nature of justice under the classical framework. As mentioned above, the aims of justice on this account are narrower than those that are associated with “justice” by legal progressives (and, if I am right, by textualists/originalists as well). No doubt there are many who will find this narrow conception of justice and the correspondingly narrow role that it suggests for law, wanting. To my mind, however, it offers an important counterweight to the hubris that has so often tended to claim contemporary jurists, whose instrumentalist view of law would see it put in the service of any and every conceivable political project. If law has value because it embodies justice, and justice is so given a relatively narrow scope of operation, then it is because there is more to life in a human community than can be expressed in terms of either.