A Curious Miscellany of Items Philosophical, Historical, and Literary

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Friday, November 18, 2011

Expert Blind Spots

The Act of Settlement, 1701
So, I’ve been reading an introductory casebook on Canadian public law, entitled Public Law: Cases, Materials, and Commentary (Toronto: Emond Montgomery, 2011). Don’t ask me why; I’m not exactly sure myself. In part, I suppose it’s because I realize that I now know more about American constitutional law than I do about Canadian, which I say with some degree of shame, since Canada is my home and native land. But it has actually ended up being an engrossing read so far. In particular, I’m finding interesting the intellectual blind spots of respected jurists, and the rubbish that consequently makes it into the textbooks they write. (Of course, to be fair, experts from every discipline will invariably display peculiar blind spots, so it’s not just a jurisprudential shortcoming.)

Here is an example. It comes in the context of a discussion of the famous (in Canada at least) “persons” case of Edwards v. AG Canada [1930] AC 124 in which s. 24 of the British North America Act (1867) empowered the Governor General to appoint “qualified persons” to the Senate. Now the question that came up in this case was whether or not the BNA Act, one of the most fundamental of this nation’s constitutional documents, intended “persons” to include women. In 1930 Canada didn’t have a Supreme Court per se. Rather, the Privy Council back in London decided matters of fundamental justice on our behalf (one of many reasons why I find it amusing that 1867 is considered Canada’s national independence year). Luckily, in this case the Privy Council was wiser than any of the lower courts in Canada, for it found that women are indeed persons, and are thus eligible to sit in the Senate.

The editors of Public Law pronounced this a triumph. No doubt it was a step forward, but it was hardly a basis for them to trumpet that “while gender discrimination is no longer part of the Canadian Constitution, the appointments process [to the Senate] continues to fuel substantial controversy” (p. 155). For the sad fact is, the ultimate constitutional source of all legislation in this “country” is the British Crown. And the even sadder fact is, no woman can be the representative of that Crown so long as she has a brother with a pulse, even if that brother is a mere babe in arms. For some reason, the editors of the text allowed this plain fact to slip their minds.

It also slipped their minds at another place, while they were discussing the Act of Settlement (1701): “This venerable statute bars Catholics from assuming the Crown, and even precludes the monarch from marrying a Roman Catholic. Furthermore, the monarch must be in communion with the Church of England. The Act’s dictates are clearly discriminatory, viewed from the optic of modern human rights law” (p. 150). The term “venerable” was obviously used with a sense of the utmost irony, and they rightly deplore such a discriminatory piece of legislation, which is still of force and effect as I write. But again, nary a mention of the fact that it discriminates against women. The editors, it seems, are more concerned about the rights of Papists than of the fair sex.

Public Law was put together by a team of seven editors, only one of whom is a woman, and so perhaps this partly explains the text’s gender blind spot. But the discussion of the Act of Settlement is illustrative of a blind spot that is shared by many in Canadian society. Allow me to explain what I mean.

At a meeting of the Commonwealth nations recently, a reform was approved which would remove the gender discrimination in the laws of succession to the British Crown: women will now be able to succeed to the Crown in preference to their younger brothers (but not their older ones). This was being hailed by the media as a giant leap forward into modernity. As if somehow the monarchy is a fundamentally modern and just institution that only needs a bit of tweaking to bring it into the 21st century. In reality, the removal of gender discrimination from the laws of succession is just a red herring, to make us forget about the fact that the very institution is inherently discriminatory, regardless of whether or not the person wearing the Crown happens to possess a penis. You see, in Canada, I still cannot teach my child that if (s)he works hard and plays by the rules, (s)he can someday hope to become our monarch. This is not because of gender. It is not even because (s)he is Canadian rather than British (although this is true too). It is because (s)he was born in the wrong family.

Imagine a job posting concocted by a malicious and demonic HR hiring manager, the qualifications for which are so peculiar, so narrow, and so seemingly capricious that only one person on earth could possibly qualify for the job. Imagine further that these qualifications are such that you could never have possessed them, no matter how hard you tried to acquire them. And finally, imagine that even if you are that one qualified person, you have the job whether you applied for it or not. That, brothers and sisters, is the core injustice of hereditary monarchy. And it cannot be removed save by the removal of the institution itself. No amount of reform can scrub away this moral blemish on the fair face of our constitution.

I suppose that there is this to be said for the monarchy: It is pretty much the only political appointment process in Canadian society that discriminates against both rich and poor equally. You can be rich as Crassus, yet you will still never even have a shot at becoming Monarch of Canada. Of course, the fact is that the one unique person who is qualified to be King or Queen will ipso facto be rich as Crassus.

I can’t forebear mentioning another injustice attached to the institution of monarchy in this country, although at least this one is not inherent to the institution and could in principle be reformed. Take a look at s. 17 of the Interpretation Act (1985), the legislation governing how federal courts are to interpret the terms of federal statutes. There you will find that unless otherwise stated, a statute is to be construed as not binding on the Crown. The Queen is not to be considered bound by the laws she enacts in right of Canada unless Parliament includes in the bill words to the effect that she is so bound. In other words, the Crown’s default position in our constitution is that it is above the law. This I find repugnant to every republican bone in my body.

Returning to the blind spots of writers of legal texts, here is another one. There is a (disproportionately) long chapter in Public Law devoted to the concept of judicial independence. Much here is said on the need for judges to be well-remunerated, and for this pay to be independent of political decision-making. Unseemly bargaining over pay between judges and politicians is to be avoided at all costs. There then follows an excerpt from a couple of cases, including Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island et al. [1997] 3 SCR 3.

Both the writers of the text and the court in the reference case seem inordinately concerned with making sure judges are not underpaid. The great fear is that their independence would be compromised if legislatures were to have the power to reduce their pay. I find two striking blind spots here, both of them so obvious to the non-expert, that they can only be the result of a kind of self-serving false consciousness on the part of the legal experts.

First, the jurists concerned show no awareness of the possibility of legislatures overpaying judges. After all, if politicians can threaten judges with financial sticks, can they not just as easily bribe them with financial carrots in the form of promised pay raises contingent on good political behaviour? And yet, it is only pay reductions that are spoken of as a threat to judicial independence. It seems these jurists’ high-minded scruples about judicial independence show a remarkable “quantitative easing” at the prospect of greater remuneration.

Second, why in the reference case (and others like it) do the judges involved never once question the legitimacy of their bearing responsibility for deciding cases involving the remuneration of themselves and their peers? Isn’t there something rather strange about the practice of having the bench literally acting as judges in their own case? It seems to violate the most fundamental maxims of justice. Apparently, judges (along with the textbook writers) are not overly scrupulous when it comes to possible conflict of interest on the part of the legal profession — though they are untiringly vigilant in sniffing it out on the part of politicians.

Of course, what do I know? I am, after all, a mere layman, not an expert.

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