Dicey’s ghost walks free

David Hume’s is-ought problem is oft-forgotten in Canadian political and legal circles, and it bears some repetition. We often forget the value of deduction in an algorithmic age, for computers and the science from which they stem cause us to increasingly rely on inductive logic. In this age of induction, we formulate general rules based on observations when those observations admit to much more limited claims that, taken together, might build a general rule.

These different approaches have characterized debates between sciences and humanities since Plato and Aristotle. David Hume’s contribution extends beyond his is-ought principle, but this principle does bring the immediate problem in political science and law into focus:

Morality is a subject that interests us above all others: We fancy the peace of society to be at stake in every decision concerning it; and ’tis evident, that this concern must make our speculations appear more real and solid, than where the subject is, in a great measure, indifferent to us. What affects us, we conclude can never be a chimera; and as our passion is engag’d on the one side or the other, we naturally think that the question lies within human comprehension; which, in other cases of this nature, we are apt to entertain some doubt of.

A Treatise of Human Nature,

Hume does not directly touch upon the dichotomy I’ve expressed. Induction and deduction are not mentioned in this passage; they underlie the debate. Hume takes aim at morality deployed in argument. Prescriptions for the good life are erroneously ascribed inductive weight, which skews arguments toward what a subject thinks ought to be. Similarly, the invocation of a status quo becomes sufficient argument for a desirable state of affairs.

Hence that opening appositive: ‘We fancy the peace of society to be at stake in every decision concerning it’. An apposite example is some political scientists’ desire to limit the Crown’s ability to prorogue Parliament (see ‘Constitutional Peace, Political Order, or Good Government? Organizing Scholarly Views on the 2008 Prorogation’, p. 114; ‘(Mis)Representing the 2008 Prorogation: Agendas, Frames, and Debates in Canada’s Mediacracy’). This prescription for the good life—or, better stated, the popular-democratic life—is a fantasy borne from induction. It makes a claim for what ought to be, yet some political scientists and administrative lawyers will claim that our polity is threatened by prorogation when Parliament is noticeably at odds with cabinet. The so-called prorogation crisis in 2008 took on existential significance because academics and lawyers billed the Crown’s possible intercession as a crisis. They imposed their own view of the right society—be it increased responsible government, increased cabinet proceduralism, etc.—to argue for and against prorogation, which was itself a political issue.

Courts have historically refused to intercede in these affairs because they rightly identify (though they rarely discuss) the is-ought principle at work. Politicians have the latitude to make empty promises and sweeping proclamations. Judges are technicians whose province is, in common law at least, the application of legal rules through deductive means (see Operation Dismantle, para. 52, restated in Hupacasath, para. 66). The ‘subject matter’ is, to refer to our quotation, ‘indifferent’ to a judge. What ought to be done does not enter a common lawyer’s mind. The law is applied, and even equity follows the law. The application of rules to fact often proceeds without regard for broader policy or moral questions.

Charter litigation does, to be sure, change the game somewhat. These general rules are imposed by universal legislation on every aspect of Canadian law and politics. The Charter‘s prescriptions are a form of moral induction that allows academics, lawyers, and litigants to channel their passion into a cause of application for ‘one side or the other’. Courts have restrained such passion by imposing fairly strict legal tests on every cause of action. The government, moreover, always has an advantage in its promoting a ‘free and democratic society’.

The limiting tests build a deductive framework into Charter litigation, and it is the frustrating deduction of a particular worldview. I cannot enter into this subject in the depth required to do it justice. Suffice, for the present, to say that the judicial perspectives that have shaped Charter jurisprudence have represented a very normative and centralizing view of what may and may not be tolerated in a ‘free and democratic society’. The resulting deductions have constrained minorities even as the majority has adopted the Charter as something of a ‘passion’. Hume’s worry about morality is that the passion we feel when our colours are up on an issue gives us a false certainty. What ought to be becomes a statement of fact: ‘we naturally think that the question lies within human comprehension’. Hubris obtains, and Hume explains such arrogance in his Problem of Induction:

Shou’d it be said, that we have experience, that the same power continues united with the same object, and that like objects are endow’d with like powers, I wou’d renew my question, Why from this experience we form any conclusion beyond those past instances, of which we have had experience? If you answer this question in the same manner as the preceding, your answer gives still occasion to a new question of the same kind, even in infinitum; which clearly proves, that the foregoing reasoning had no just foundation.

A Treatise of Human Nature,

The problem with induction is that inductive reasoning’s premises become self-referential. The observed occurrence must be true all the time for the proven rule to obtain. The experience on which we attempt to theorize a general rule is not broad enough to determine the general rule, and this problem repeats itself throughout the reasoning. Its premises cannot lead to a logical conclusion, but it is tempting to place our faith in this conclusion when our experience and our emotions inspire worldviews or strong opinions.

A.V. Dicey, for his many faults, valued the deductive principles that animate common law. He holds in one part of the Introduction to the Study of the Law of the Constitution that ‘there runs through the English constitution that inseparable connection between the means of enforcing a right and the right to be enforced which is the strength of judicial legislation’ (p. 186). The practical nature of judge-made law builds upon the facts of each case. Dicey again valorizes deductive reasoning when he puns on the word:

So far, therefore, from its being true that the sovereignty of Parliament is deduction from abstract theories of jurisprudence, a critic would come nearer the truth who asserted that [John] Austin’s theory of sovereignty is suggested by the position of the English Parliament.

p. 68

Dicey means to dispute John Austin’s theory of sovereignty while making clear that the dispute relies on his and Austin’s observations of the English Parliament. Both writers are working to deduce a truth based, as Hume might say, on impressions left by the institution of Parliament.

An example adjacent to prorogation evokes Hume’s problem alongside the is-ought principle even as it seeks to reject some of Dicey’s views. Leonid Sirota (author of Double Aspect) has recently published a piece, ‘Immuring Dicey’s Ghost: the Senate Reform Reference and Constitutional Conventions’, in the Ottawa Law Review in which he argues that Canadian constitutional conventions have or can be turned into law by an activist Supreme Court (p. 318). He treats the Supreme Court’s decision in the recent Senate Reference as a convincing precedent for granting constitutional conventions force of law. A telling paragraph from his conclusion summarizes the argument:

Contrary to what some scholars have suggested, [the Court’s decision that the Senate could not be made elected by simple legislation] does not mean that the Court was oblivious to the existence of conventions regulating the Senate’s place in the constitutional framework, let alone hostile to the very notion of conventions. Rather, conventions are the principal component of the “constitutional architecture” that the Supreme Court invokes, but only defines as consisting of assumptions underlying the constitutional text. The text—first the Constitution Act, 1867, and then the amending formulae included in the Constitution Act, 1982—has been written with conventions, including those governing the Senate, in mind. The Supreme Court’s opinion recognizes this but does not say so.

p. 359

Sirota focuses on the Court’s use of ‘architecture’ in the Senate Reference and in two previous references, the Secession Reference and the Supreme Court Act Reference, without properly evoking the word’s use and meaning. He uses induction to appeal to scholars who share his view. The final sentence in the above-quoted paragraph bears this reading out. Sirota may be reading an opinion into the Court’s use of ‘architecture’: the Court’s recognition of conventions as law depends on a ‘metaphor’ (p. 320). The metaphor later receives treatment as a ‘concept’ (p. 327), which appellation subtly turns the illustrative figure of speech into ‘a general idea or notion, a universal; a mental representation of the essential or typical properties of something’ (OED). This change is disingenuous because it casts an image of the constitution as an idea about the constitution. This elision is more fully pronounced: ‘Under the Canadian Constitution [sic], conventions are sometimes essential evidence of the acceptance of fundamental principles’ (p. 438, emphasis original). Conventions become evidence of a metaphor that has been turned into an idea suitable for use in constitutional interpretation. Sirota’s induction imposes his argument on the word instead of showing the word’s ability to move past metaphor.

Sirota’s inductive account is confirmed when he proclaims that

whatever label one might use, the real issue is whether the Court incorporated constitutional rules that were previously regarded as matters of politics alone into law. As I have argued above, it did just that, and this is significant.

p. 335

Sirota argues here that there has been historical shift in judicial appreciation of convention, yet he fails to show how the Supreme Court demonstrated its acknowledgment of conventions as law: ‘the Supreme court is well aware that “conventional constitutionalism” was always meant to supply the regulations that the Fathers of Confederation knowingly left unstated in the constitutional text’ (p. 334). The Court’s careful avoidance of convention is read as acknowledgment of conventions’ normative, thus legal, value. The absence of evidence has become the evidence of a norm: Sirota concludes that the Court’s mention of ‘constitutional architecture’ allows him to show that the Court has allowed itself to enforce certain conventions.

A further elision of terms is suggestive of induction: Sirota holds that certain conventions are constitutionally entrenched ‘and thus enforceable, if only against attempts to amend the Constitution’ (p. 339. sic). This sentence contains a category shift: bars to amending the constitution do not allow the courts to enforce constitutional convention. Judicial enforcement occurs when a legal right is negated. Amendment purports to alter a legal right. Constitutional conventions in this system ‘carry only political sanctions’ (Reference re Secession of Quebec, para. 98). Those sanctions are under-explored in Sirota’s piece, but they may (as I have elsewhere suggested) be considered Parliament’s inherent jurisdiction, thus depriving courts of any power to enforce convention. Sirota’s category shift refers to his identification of the real issue in the Court’s Senate Reference decision: if the Court incorporates a political rule into legal treatment, that rule becomes law; if the Supreme Court notices a political rule to bar constitutional amendment, the noticed rule is a legal rule. This premise sustains Sirota’s argument because it is repeated in different form.

This objective assessment of Sirota’s piece incorporates Hume’s Problem of Induction; the is-ought principle digs into Sirota’s motives for writing. Those motives are only properly known to him. The is-ought problem can only be used to caution scholars writing on constitutional conventions or the royal prerogatives: the inductive fantasy leads you astray when you ‘fancy the peace of society to be at stake’ and write to correct the situation. Canadian law will change when scholars identify remedies and show courts how these solutions work alongside other cases in which the same rights were asserted. In so hewing to recorded experience, counsel and academics better demonstrate how the solution is supported by ‘human comprehension’. If common law may stand for one progressive thing, let it be that our collective previous experience may be used to advance judicial remedies.