RSS FeedOn democratic legitimacy of the courts
My last post talked about how judges work with each other’s decisions. Today, I’d like to take a bird’s eye look at the relationship between the judiciary and Parliament. Unelected judges handle laws passed by elected legislatures such as Parliament of Canada or provincial parliaments. How they do it helps understand why it’s ok for judges to be unelected and why we need an independent judiciary.
In Canada, judges do really only two things with laws legislatures pass (also known as acts of legislature or statutes). They apply them or strike them down as unconstitutional.
When judges apply statutes, they interpret them. Legislatures often cannot or do not want to spell out every detail in rules of law they include in statutes. But the only way a law can work is by affecting conduct of specific people in a myriad specific life situations. If somebody believes you violated their legal rights or broke the law, they can sue you or charge you with a crime. You can quickly give in if you know you have nothing going for you. In that case, you will apply the law yourself. You will adjudicate your own case in favour of the other side. You can also dispute the other side’s reading of the law. You will claim that in that particular situation, the law means something different, and you neither broke it nor violated anyone’s rights. Now a judge will have to adjudicate this dispute and impose his or her reading of the law on both sides.
For example, Parliament of Canada defines “invention” as “any new and useful art, process, machine, manufacture or composition of matter” in a statute called Patent Act. Harvard University created a gene making mice susceptible to cancer. A mouse with a gene like that can help identify carcinogens. Harvard University tried to patent the mouse in Canada, failed, and sued the government. Harvard believed that its cancer mouse was an “invention” under Patent Act, but the patent office didn’t. So it was up to a federal court judge to adjudicate this dispute, which basically came down to interpreting the language of the statute.
One reason it was ok for an unelected judge to impose his reading of the law is because the elected legislature implicitly allowed him to do so. Our Parliament chooses broad language for its statutes in full knowledge that some disputes over their interpretation will end up in the courts. The elected Parliament accepts that unelected judges will interpret its acts. If our elected politicians didn’t want the courts to interpret legislative acts, they would use more specific language or create special tribunals to interpret statutes. It happens all the time and is also known as ousting the courts’ jurisdiction. Basically, our elected politicians can shield entire areas of law from the courts, and when they choose not to they essentially delegate some of their democratic mandate and legitimacy to the courts.
Even when the courts do have the power to interpret a democratically created statute, provincial legislatures and Parliament always have an option of overriding the courts’ reading by clarifying or changing the statute. The term “dialogue” is used to describe this relationship between the courts and the legislators. When the courts ultimately decided that the cancer mouse was not an invention, they did their best, very democratically, to divine the will and intention of Parliament. They did not try to make their own ethical or political judgment, and they knew perfectly well that if they got it wrong, Parliament can always correct them by clarifying the Patent Act. Parliament didn’t.
So one huge responsibility of the courts—interpreting legislative will—is far more democratic and legitimate than some think. Of course, the courts’ other responsibility—striking down laws as unconstitutional—is a lot more controversial, but this topic is better left for its own blog post.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
The purpose of blawgs
More than a year ago I wrote a post entitled “How lawyers think.” Its basic idea is that a lawyer’s job is to maximize legal protection of his client’s rights. Protecting rights means either of two things: one, letting the world know what your rights and their legal basis are, and, two, getting a court or tribunal to change the mind of someone who disagrees. Lawyers predict what kind of rights the courts will find that you have if it comes to litigation. That’s called giving legal advice, and that’s why lawyers think by imaging what would happen if this issue gets to court and how courts have decided similar issues in the past. All lawyers think about courts whether they are in litigation or not, and the courts is where the law becomes the law.
The previous sentence means that an act of Parliament is not really the law until the courts have adjudicated a dispute about what the specific legislative act or its provision means in a specific case. If all people understood the same text and applied it to the same facts the same way, we wouldn’t need courts. Lawyers predict what the courts will say the law is for the given facts, and litigators, in addition to that, offer judges their theories of what the law is in a given dispute. So advocacy in court is trying to influence the judge’s vision of what the law is and of how to apply it in this particular case. Without impartial and binding adjudication of disputes by the courts, the law is only what the strongest party (the police, the employer, the rich, and so on) says it is.
So if lawyering is predicting how the courts or tribunals will apply the law to a particular situation, blawging, in my opinion, is the same thing but by way of informal and accessible writing in a blog. A blawg should predict what the law is in some interesting case of current interest. A blawg is always a legal opinion, but it’s almost never legal advice, because it is addressed to a broad audience rather than a client. If I write about telephone number portability, the blog post should give a basic idea about what enforceable rights you will have if your telephone company decides to take your phone number from you. A blawg is not about what will happen, but rather about what you can reasonably accomplish by taking your case to a court or tribunal, if you have the time, the money, and the expertise.
In this sense, blawgs can be a little removed from reality because most people don’t have the time, the money, and the expertise to go to court. In fact, of those who do begin litigation, most never sustain it all the way to trial, which would be the first chance a judge will get to decide the case. That’s why lawyers, of course, must give practical advice in addition to pure legal advice, and it’s hard, and that’s why there is a disconnect between the public and lawyers. The client expects a solution and doesn’t care about the method, and the lawyer often must think in terms of courts because that’s all he or she may be qualified to do.
Perhaps blawgs can bridge this gap by educating the public about the law and teaching the public to self-regulate due to better knowledge of legal consequences. But unless we make access to the courts cheaper and easier so judges can hear and decide more cases that deserve to be heard and decided, blawgs alone will face an uphill struggle.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
How lawyers think
We as a society know too little about lawyers. We believe some myths about lawyers (for example, that they are rich), but we know little truth about them. It’s pretty strange given the two critical things lawyers do in our society: ensure access to justice and help regulate behaviour. The good news is it’s easy to learn the basics of how lawyers think, which empowers you in dealing with your lawyer and as a citizen.
The basic premise of legal reasoning is that it’s all about the courts. Everything lawyers do is about predicting the outcome of litigation that may or may not happen (at least in common law countries like Canada). That is ultimately the only thing lawyers do even though it may look like your average lawyer is busy with a million other roles. It’s clear that litigators think about litigation, but the other kind of lawyers—those who draft or vet contracts, wills, letters and applications—also always have the courts in mind. The difference is that the litigators already have a dispute on their hands, and non-litigators go out of their way to prevent a dispute.
Courts have the power to review any private or government action and decide if it’s legal. Our courts’ rulings are binding on all parties to the dispute, even the government. Because our courts are independent and have constitutional powers, anyone can sue anyone else including the Prime Minister and have a fighting chance. This is called the rule of law, and that’s why we have so many lawyers.
Good lawyers try to think the way judges would think because lawyers have only two purposes: to prevent litigation and to win in litigation. It’s all about the courts in our legal system. In my previous essay, I asked a question about inalienable rights in Canada. It was a legal question. Its purpose was to figure out if there was any way for Canadian courts to uphold taking away of all Charter rights. I concluded that courts could technically do that, and that’s why my answer was that there were no inalienable rights in Canada.
My reasoning wasn’t political: I didn’t look at the balance of power among political parties or their inclination to attack Charter rights. It wasn’t economic: I didn’t crunch numbers to see when Canadians could no longer afford Charter rights. It wasn’t social: I didn’t look at what groups in our society would take what position on the issue. My reasoning was legal: I tried to predict what arguments could convince judges to allow the elimination of Charter rights.
The legal argument doesn’t take politics or economics into account but it’s still powerful because the courts have huge power in Canada. Court will listen to economic and political arguments (they are called policy arguments), especially in constitutional cases. But I assumed in my previous essay that the country must be in an emergency politically and economically for the extreme legal argument against Charter rights to succeed.
So lawyers always try to predict what the courts will say, even when the police or a government ministry will most likely resolve the issue. In some areas, such as immigration, government officials have enormous discretion, and the courts often trust their judgement. In those cases, the lawyers certainly try to predict what the government official will decide, but even in those cases, lawyers know that every official is subject to judicial review. The government understands this too, and it certainly limits how far agents of the state go in their discretion. So the courts are still in the picture, at least because they leave the government alone. But they can pull the leash quickly if the government oversteps its bounds or if the courts change their interpretation of how much they should trust the government’s judgement in the given area.
Lawyers (at least when they earn their keep) think like judges. A good legal argument resembles a judicial decision that a judge could almost copy in potential litigation. And even lawyers who draft contracts and wills think about the courts, because they try to describe their clients’ rights in words that no judge will question. That’s why Mr. Burns’s lawyer said “this should hold up in any court” handing his boss yet another evil contract in one of The Simpsons episodes.
Knowing that lawyers think in terms of disputes in courts can empower an ordinary citizen. First, when you go to court without a lawyer, you will know that you really should get one, even if it’s a law student. The courts are the be–all and end–all, and you need someone who knows what judges want to hear. Second, if you have a lawyer, it will be easier to see if he is doing a good job. Try to think of future disputes over your contract or will, and see if your lawyer is taking care of that in the text. Finally, you should know about the power of lawyers and judges because the courts are the only unelected branch of power in Canada, and you as a citizen should know why and how the system works and how to make sure it continues to work in the future.
Further reading: Frederick Schauer, Thinking like a Lawyer: A New Introduction to Legal Reasoning, (Cambridge: Harvard University Press, 2009).
(Post sponsored by AdviceScene)
Access to justice and elected judges (conclusion)
(Part 1)
So anyone demanding the election of judges should understand this: there is a conflict between accountability and impartiality. It’s often hard to get the judges both to be independent and to answer to the people. For example, when the government throws a citizen to the wolves in a foreign country, an independent judge will lawfully award her damages. A judge worried about re-election may cave to his sense of the mood among the majority of taxpayers.
When judges apply straightforward law to straightforward facts, the accountability argument is especially weak. The law is an expression of the majority’s will. When legislatures pass laws, their straightforward applications are obvious. We expect judges to apply such laws almost mechanically. In these cases, judges are pretty much delegates of the legislature. They don’t make any law so they should not be accountable beyond the basic professional standards.
And don’t forget the Constitution—the super law. Its very purpose is to protect some principles against the majority’s will. In Canada, these principles include the makeup of our political system and the fundamental human rights. Judges can strike federal laws when they overstep the constitutional bounds. This is an awesome power of the judiciary. It usually uses it against the majority, so how can anyone expect it to be accountable to the majority at the same time?
When judges apply ambiguous non-constitutional rules, the accountability appears more important. The legislature, either intentionally or accidentally, leaves gaps in the law. It is up to the judiciary to choose one interpretation of the law when some new, unusual dispute finds a hole in the rules. Trial judges have another important power that may need accountability. They are free to decide what facts to take as the truth and what facts to ignore after hearing both parties. Sometimes, juries of ordinary citizens do this job, but in Canada usually judges “find facts”.
But even when accountability is reasonable, it is practically too difficult to have. Judges are different from politicians. Majorities have a right to call the government to account on every political decision. But as we just saw, citizens can claim a right to scrutinize only some judicial rulings. This brings difficulty and uncertainty. Most people do not have legal training. Citizens will have a hard time telling decisions open to their scorn from untouchable rulings. Using more government resources to explain or filter judicial decisions will overburden a system that is already bursting at the seams.
The good news is there are alternatives to the judiciary’s direct accountability through elections. First, we can choose judges very carefully. The Parliament is free to set standards for judicial selection. Second, we can monitor the judiciary for obvious abuse. The police are free to investigate judges suspected of crimes. The Crown is free to charge them if there is enough evidence. Third, we have the appeal route when judges make errors of law. It’s a time-tested but expensive mechanism. Finally, perhaps we should have more juries to make fact-finders more representative of the general population. Unlike the US, Canada has very few jury trials. When a jury makes a verdict, it’s one fewer judge to accuse of being unaccountable to the people.
There are good reasons to demand election of our judges. But the reasons not to are even better. In conclusive cases and in many constitutional disputes the judges should not owe any accountability to the majority. Telling the difference could be too costly for the public, but any mistakes can undermine the administration of justice or the Constitution. Judges protect us not only from illegality but also from ourselves. It’s a huge role. Much accountability is already there through law enforcement and regulation of the bench. If that’s not enough, we could use juries more often. Beyond that, we will have to trust our judges. They have usually been doing a good job anyway.
Access to justice and elected judges
Every once in a while, a big legal case takes over the press. Murder, corruption, shareholder disputes, and Canadians stuck abroad eventually come before our courts. And when judges hand down their decisions, some people take issue with the outcome of the case. A common protest, especially among non-lawyers, is that the judges are unelected. How can the judge find that bus killer not criminally responsible? He is unelected! Or something like that.
If we take critics of the current judicial appointment system at face value, electing judges will ensure justice better. Presumably, it will work because judges will reflect values held by the majority. In the exercise of their discretion, judges will be more likely to apply those values and standards instead of principles alien to the majority of people. Access to justice, therefore, will increase because more cases will be decided justly.
According to Merriam-Webster, justice is the “maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments.” The law determines what is just, but sometimes a judge must use his or her discretion. In many cases, the law is ambiguous. A judge then has to choose one interpretation of the law. With so much discretion, the impartiality mentioned in the dictionary definition is crucial to justice.
If justice requires impartiality, no justice is possible without judicial independence. If somebody can influence a judge, a bias is possible, and the judge is not impartial any more. A simple example is bribing the court, and a more complex one is paying the court’s salary. The courts should be independent from any party including the government or its agents. A more interesting question is whether the courts should be independent from the Parliament, provincial legislatures, and even the opinion of the majority of Canadians.
(to be continued)
Murder in German court
This woman is dead, and her husband is in critical condition in a hospital. A man accused of screaming “terrorist” and “Islamist whore” at her on a children’s playground, stabbed the woman, who was pregnant, 18 times during his own trial. When her husband ran to protect her, a police officer shot him.
http://www.guardian.co.uk/world/2009/jul/07/german-trial-hijab-murder-egypt
