Theoretical Perspectives on Public Law and Administration

GS/Law 6761March 26, 2010

Instructor: Ian Greene

John Stuart Mill (1806-1873)

• On Liberty [1859] : Sam Goldstein

• (worked for Br East India Co until 1858)

Peter Hogg

• Constitutional Law of Canada

Hogg: Responsible Government• After 1688 the king/queen still controlled the executive even though the

legislative branch was supreme. • Cabinet gov’t developed in UK between ~1714 and ~1835 because of

conflicts between the administration and the majority party in the House of Commons. This was resolved through the monarch (beginning with George I, a weak king) appointing leaders of the majority party in the House of Commons to the “cabinet,” or king’s council.

• By about 1835 it was accepted as a constitutional convention that the Prime Minister must be the leader of the majority party in the house of Commons, and that the Prime Minister had the right to recommend appointments of cabinet ministers, most of whom would be members of the House of Commons (but a few could be members of the House of Lords). This became one feature of “responsible government.”

Hogg: Responsible Government (2)

• Canadian colonies, once well-established (mid-1700s to mid-1800s) wanted the same kind of representative gov’t established in England after 1688. In 1832 in UK, male adult suffrage was increased from 5% to 16%, and the Canadian colonies got the same kind of partly-representative government.

• Tension between executive (appointed by UK Governor) and colonial legislature.

• Armed rebellions in Upper and Lower Canada in 1837.• Lord Durham’s report: 1839: recommended “responsible gov’t “ for the

remaining British North American colonies. Recommendation finally implemented in 1848 in Nova Scotia, province of Canada, and NB. PEI: 1851; Nfld: 1855. Responsible gov’t recognized in UK and Canada as a “constitutional convention.”

• Convention: constitutional principle, not legally enforceable, that promotes democratic accountability (Dicey).

Conventions of Responsible Gov’t• PM is leader of a) majority party in H of C or b) party most likely to command

support from majority in H of C. • December 2008 crisis: Do Canadians understand that we elect a Parliament,

not a government?• PM appointed by GG.• PM selects members of cabinet and GG appoints.• Cabinet ministers are responsible to H of C

– Question period– Responsible for maladministration (resignation if personal; appropiate action if not min’s

fault – still evolving)

• Cabinet solidarity – cabinet collectively responsible for all administration decisions. – Ministers must support cabinet policy or resign. – Cabinet must support individual ministers whose decisions they have sanctioned and take

responsibility for them.

Parliamentary Sovereignty• Yesterday we reviewed Diceyan description of “parliamentary sovereignty.”• In Canada, the same principle better described as “legislative supremacy”

because we have 11 sovereign legislatures.• Each legislature is sovereign in its own sphere of jurisdiction – superior to

executive (cabinet and public service) and judiciary, except that judicial branch must be impartial [Locke] therefore independent (independence promotes impartiality).– Valente: 3 essential ingredients of JI: security of tenure, salary

establishment, judicial control over matters affecting adjudication.• Legislative supremacy in Canada limited not only by division of powers, but

by Charter of Rights.• To what extent should administrative tribunals be “independent” to promote

impartiality, and to what extent are they instruments of government policy?• Future legislation: 1991: - Supreme Court held Parliament could amend

promises made to provinces (CAP) because of [Diceyan] legislative supremacy.

Hutchinson & Monahan

• “Democracy & the Rule of Law”• Paul Johnson

Greene, Baar, McCormick, Szablowski, Thomas

• Final Appeal (1998)

Judicial Discretion & Democracy• Judges have discretion within bounds. Not anti-democratic: HOW IS IT

EXERCISED?• Critical of positivist approaches of Dicey and others• For most cases, numerous possible “wrong” decisions, several possible

“right” decisions.• Legalization of politics argument (Mandel)• Common law courts have engaged in judicial review for centuries• Courts should perform a “corrective” role [as advocated by Locke, Dicey &

others]. They strengthen liberal democratic values by tring to prevent abuse of power.

• Critiques by Morton-Knopff, Manfredi, Mandel• S. 33 “override” controversy• Cut to the point: study of Federal Court of Appeal decisions re leave to

appeal in 1990 re ~refugee applications rejected by IRB: pp. 20-21.

Janet Hiebert: Limiting Rights

• Chris Rogers

Linden: Ipperwash Inquiry

• Robin Dafoe

Barker and KernaghanPublic Administration in Canada, Ch 1

& 2: Wendy Walberg

Ron Ellis

• Executive Branch Role Reconstituted: – Edward Christie

Harry Arthurs

• “Without the Law: Administrative Justice and Legal Pluralism in 19th Century England”

• Carrie Liddy

Loughlin on FunctionalismSybille Rohatgi

Martin Loughlin, Prof. of Public Law, London School of Economics

Allan Hutchinson: Critical Legal Theory

“Crits and Cricket: A Deconstructive Spin”

Allan Hutchinson, Osgoode Hall Law School (and soccer star)

Critical Legal Studies

• Movement “officially” born in 1977, but had its origins before that amongst left and social activist lawyers.

• A diverse group, but united by “opposition to the intellectual and political dominance of the liberal establishment.”

• Liberalism was once a progressive force, but has become a “snug cover” for vested interests.

• Roots in “legal realism” movement of early 1900s to 1960s. Realism a reaction to judicial (Diceyan) positivism. Eg. studies of Supreme Court decisions indicating “liberal” and “conservative” wings. Also allied with more radical forms of Marxism.

• Legal discourse is a “stylized” version of political discourse.

Critical Legal Studies (2)• Modern legal theory (Rawls, Nozick, Hayek, Dworkin) is a

cover-up of what is actually taking place: legal institutions act as a rationalization to protect powerful interests.

• Doctrines of jurisprudence are constantly being re-invented because all of them are fictions.

• “Legal consciousness” persuades rulers and the ruled that the judicial process results in impartial decisions. But the legal process is politics in another form.

• Uses the example of a 1977 English Court of Appeal case, Miller v. Jackson. A housing estate was built near a cricket ground, and the Miller’s garden was peppered with cricket balls. They sued the cricket club. The 3 judges, including Lord Denning, reached 3 different conclusions.

Critical Legal Studies (3)• Denning: no negligence and no nuisance. Club had offered to

pay $800 and that was sufficient.• Lane: both negligence and nuisance; club given 12 months to

move.• Cumming-Bruce: both negligence and nuisance, but $800

sufficient compensation.• “Doctrinal predictability, determinancy and integrity are

ransomed to the cause of a spurious and crude political instrumentalism” when current legal theory is applied to determine which judge was “right.” All 3 decisions are internally contradictory; Hutchinson “deconstructs” them. All 3 judges ignored the municipal planning process that approved the housing development. It’s a question of politics.

Critical Legal Studies (4)

• But CLS is neither Nihilistic nor irresponsible or “cheerless cynicism.” “By encouraging people to understand themselves as the makers of decisions and not as the amanuenses of received wisdom, they will begin to assume great responsibility for those decisions’ consequences and the ensuing society will become truly theirs.”

Kathleen Lahey on Feminist Legal Theory

• Rani Khan• “On Silences, Screams and Scholarship: • An Introduction to Feminist Legal

Theory”– Kathleen A. Lahey was the lawyer for three of the B.C. couples who won the right to marry

from the B.C. Court of Appeal as of July 8, 2003. She is the author of Are We 'Persons' Yet? Law and Sexuality in Canada (1999), and has published and consulted on a wide range of legal issues relating to equality and human rights. The founding editor of the Canadian Journal of Women and the Law, she has also served on various advisory boards, including the Sexual Orientation and Gender Identity Committee of the Ontario Bar Association, Egale Canada, and the Ontario Advisory Council on Women's Issues. She is a professor at Queen's University Faculty of Law.