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«Legality as Reason: Dicey, Rand, and the Rule of Law Mark D. Walters McGill Law Journal / Revue de droit de McGill, vol. 55, n° 3, 2010, p. ...»

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"Legality as Reason: Dicey, Rand, and the Rule of Law"

Mark D. Walters

McGill Law Journal / Revue de droit de McGill, vol. 55, n° 3, 2010, p. 563-586.

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Mark D. Walters* For many law students in Canada, the Pour bon nombre d’étudiants en droit au idea of the rule of law is associated with the Canada, l’idée d’une primauté du droit est assonames of Professor A.V. Dicey, Justice Ivan ciée au professeur A.V. Dicey et au juge Ivan Rand, and the case of Roncarelli v. Duplessis. It Rand ainsi qu’à l’affaire Roncarelli c. Duplessis.

is common for students to read excerpts from Il est courant pour les étudiants de lire des extraits traitant de la primauté du droit dans Dicey’s Law of the Constitution on the rule of law, and then to examine how the rule of law is, l’œuvre de Dicey intitulée Law of the Constituas Rand stated in Roncarelli, “a fundamental tion, puis d’examiner comment la primauté du postulate of our constitutional structure.” In- droit est, comme l’a affirmé Rand dans Roncadeed, Roncarelli marked a point in time, fifty relli, « [l’]un des postulats fondamentaux de noyears ago, at which the academic expression tre structure constitutionnelle ». En effet, l’arrêt “the rule of law” became a meaningful part of Roncarelli a été rendu au moment où, il y a cinthe legal discourse of judges and lawyers in quante ans, l’expression académique « la priCanada. mauté du droit » s’intégrait au sein du discours des juges et des avocats au Canada.

In this article, the author considers the relationship between the rule of law as an aca- Dans cet article, l’auteur étudie la relation demic or conceptual idea and the rule of law as entre la primauté du droit comme idée acadéa practical or doctrinal idea. A distinction is mique ou conceptuelle et comme idée pratique drawn between two traditions of theorizing ou doctrinale. L’auteur fait une distinction entre about the rule of law, which are labelled “legal- deux traditions de la théorie de la primauté du ity as order” and “legality as reason”. The au- droit, soit « la légalité en tant qu’ordre » et « la thor then reconsiders the views of both Dicey légalité en tant que raison ». L’auteur reprend and Rand and argues that both advanced the alors les approches de Dicey et de Rand et souidea of legality as reason. The author concludes tient que tous deux souscrivaient à l’idée de la that, although Canadian judges now tend to légalité en tant que raison. L’auteur conclut que emphasize legality as order, we are better malgré le fait que les juges canadiens aient placed to understand the special features of maintenant tendance à mettre l’accent sur la constitutionalism in Canada if we remember légalité en tant qu’ordre, nous comprendrons that the rule of law has, both conceptually and mieux les traits particuliers du constitutionnadoctrinally, another dimension—that which is lisme canadien si nous nous rappelons que la associated with the idea of “legality as reason”. primauté du droit comporte une autre dimension, celle associée à l’idée de « la légalité en tant que raison ».

* Faculty of Law, Queen’s University. I am grateful to the Social Sciences and Humanities Research Council of Canada for its financial support and to Bernie Adell, Trevor Allan, John Allison, Christine Ashbourne and William Kaplan, as well as all of the participants in the Roncarelli symposium for their comments and assistance relating to this paper. I also wish to thank All Souls College, Oxford University, for permission to quote from A.V. Dicey’s unpublished papers held in the Codrington Library, and I wish to thank librarians Norma Aubertin-Potter and Gaye Morgan for their kind assistance in helping me to access these papers.

Mark D. Walters 2010 Citation: (2010) 55 McGill L.J. 563 ~ Référence : (2010) 55 R.D. McGill 563 564 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

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Introduction In my memory of law school, the names of Dicey and Rand are knotted together with a bundle of ideas that I learned to call the “rule of law”. Indeed, the very first thing I read as a law student on the subject of public law was an excerpt from A.V. Dicey’s Law of the Constitution on “The Rule of Law”,1 and the fourth thing I read was an excerpt from the case of Roncarelli v. Duplessis, including, of course, Justice Ivan Rand’s famous affirmation of “the rule of law as a fundamental postulate of our constitutional structure.”2 There is nothing unusual or surprising in the way that I learned to associate Dicey and Rand with the rule of law. Since 1960, the year after the Supreme Court of Canada’s decision in Roncarelli, student casebooks in Canada have consistently linked Dicey with Roncarelli, and thus with Justice Rand.3 The statements by Dicey and Rand concerning the rule of law have become canonical in legal education in Canada. We are almost tempted to say that Frank Roncarelli’s case against Quebec Prime Minister Maurice Duplessis was, from the beginning, a vehicle for teaching Dicey. In May of 1950, the “heroic” constitutional law professor, F.R.

Scott, who had learned his Dicey at Oxford University, borrowed barrister’s gowns and entered the Quebec Superior Court on behalf of Roncarelli in order to, as Scott himself later put it, deliver his class lectures—to teach what Dicey had taught about the rule of law, including the proposition that, with us, everyone from the prime minister down is subject to the ordinary law of the land.4 We might also say that the judges proved themselves able students. “Again and again,” one commentator wrote, 1 Bernard Adell, Public Law Readings (Faculty of Law, Queen’s University, 1989) at 1-3, 14-24, excerpting A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London, U.K.: Macmillan, 1908).

2 Roncarelli v. Duplessis, [1959] S.C.R. 121 at 142, 16 D.L.R. (2d) 689, Rand J. [Roncarelli]. For what it is worth, the second and third things I read were respectively: Entick v. Carrington (1765), 19 Howell’s St. Tr. 1030, 95 E.R. 807 (Common Pleas); Liversidge v. Anderson (1941), [1942] A.C. 206 (H.L.).

3 See e.g. Bora Laskin, Canadian Constitutional Law: Cases, Text and Notes on the Distribution of Legislative Power, 2d ed. (Toronto: Carswell, 1960) at 940; J. Noel Lyon &

Ronald G. Atkey, eds., Canadian Constitutional Law in a Modern Perspective (Toronto:

University of Toronto Press, 1970) at 5-21; François Chevrette & Herbert Marx, Droit constitutionnel : notes et jurisprudence (Montréal: Presses de l’Université de Montréal,

1982) at 33, 60; The Constitutional Law Group, Canadian Constitutional Law, 3d ed.

(Toronto: Emond Montgomery, 2003) at 634, 640-44.

4 The description of Scott as “heroic” is Laskin’s: Bora Laskin, Book Review of Civil Liberties and Canadian Federalism by F.R. Scott, (1960) 13 U.T.L.J. 288 at 288. For Scott, Dicey, and the trial, see Sandra Djwa, The Politics of the Imagination: A Life of F.R.

Scott (Toronto: McClelland & Stewart, 1987) at 308, 311.

566 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL “the courts [in Roncarelli] referred to Dicey’s classic statement.”5 The way that the trial judge, the first beneficiary of Scott’s “lectures”, introduced Dicey’s passage on the subjection of the prime minister to the ordinary law—Dicey, he said, “deals with what is termed the Rule of Law”—might even suggest an enthusiastic novice uttering an unfamiliar academic phrase.6 This characterization of the case is neither fully accurate nor completely fair. But to appreciate Roncarelli today, fifty years later, it is instructive to think about the case in light of the interplay between practical and academic accounts of the rule of law. The case marks the point when the expression “the rule of law” moved from lecture halls and books of jurisprudence to courtrooms and case reporters in Canada. Of course, principles associated with that expression were already part of the common law tradition, and had been (it is said) since at least Magna Carta.7 However, it is one thing for a series of principles to be legally enforced and another thing for a professor of law to rope them together into a unified theory of what legality means. And, we may add, it is a different thing again for judges to take up that theory and weave it back into the fabric of the law. Using terms that Ronald Dworkin has used, we may say that there are close connections but also important differences between legality in a “conceptual” or “jurisprudential” sense, and legality in a “practical” or “doctrinal” sense.8 In this essay, I will explore some of these connections and differences by returning to the beginning of my own education about the rule of law and reconsidering the views of Dicey and Rand. I now know more about both Dicey and Rand—enough, at least, to appreciate that they came from very different places and times, and held very different opinions. We are told that Roncarelli is “perhaps [the] most classical application in Canadian jurisprudence” of the “Diceyan concept of equality and the rule of law.”9 But the legacy of Dicey and of Roncarelli, and thus of Rand, is very 5 Claude-Armand Sheppard, “Roncarelli v. Duplessis: Art. 1053 C.C. Revolutionized” (1960) 6 McGill L.J. 75 at 89-90 [footnote omitted], reprinted in (2010) 55 McGill L.J. v.

In fact, only four of the fifteen judges involved in the case cited Dicey. See Roncarelli v.

Duplessis (1951), [1952] 1 D.L.R. 680 at 696 (Qc. Sup. Ct.), Mackinnon J. [Roncarelli (Sup. Ct.)]; Duplessis c. Roncarelli, [1956] B.R. 447 at 461, 516-17 (C.A.), Pratte and Rinfret JJ.; Roncarelli, supra note 2 at 184, Abbott J.

6 Roncarelli (Sup. Ct.), supra note 5 at 696, Mackinnon J.

7 Re Storgoff (1944), [1945] S.C.R. 526 at 557, [1945] 3 D.L.R. 673, Kerwin J.: “In England, rights had been conferred by Magna Charta, the Petition of Right, and the Bill of Rights, under which was established the Rule of Law.” 8 Ronald Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986) at 90-96 [Dworkin, Law’s Empire]; Ronald Dworkin, Justice in Robes (Cambridge, Mass.:

Harvard University Press, 2006) at 9-18, 155 [Dworkin, Justice in Robes].

9 Beauregard v. Canada, [1986] 2 S.C.R. 56 at 106, 30 D.L.R. (4th) 481, Beetz J.

DICEY, RAND, AND THE RULE OF LAW 567 uncertain in Canadian law. The Diceyan conception of the rule of law is soundly rejected by some judges, yet celebrated by others.10 Meanwhile, Roncarelli is sometimes cited in conjunction with a rich conception of legality that goes to the heart of what authority, including legislative authority, really is,11 and sometimes in conjunction with a thin sense of legality that bends against any exertion of power that purports to be legislative.12 Fifty years after Roncarelli, we still have much to learn about the concept of the rule of law and its doctrinal manifestations.

It would take an essay longer than this one to work through the recent cases in Canada that deal explicitly with the rule of law. My objective is much more modest. I shall distinguish two distinctive approaches to the rule of law, which I will call “legality as order” and “legality as reason” (Part I). I will then revisit the ideas of Dicey and Rand and argue that the professor and the judge both appreciated and embraced something like the idea of legality as reason (Part II). Finally, I will suggest that reconsidering Dicey and Rand along these lines (which in Dicey’s case will amount to what might be called revisionism) is one way to initiate a better understanding of a basic but neglected aspect of the rule of law in Canada today—that the rule of law is as much about reason as it is about order (Conclusion).

I. Legality as Order, Legality as Reason We should begin by returning to the suggestion made at the outset that the judges in Roncarelli learned about Professor Dicey from Professor Scott. In fact, the judges were hardly in need of lessons on Dicey. Canadian lawyers and judges began citing Dicey’s Law of the Constitution on various points of law long before Scott ever stepped foot in court.13 When Dicey visited Toronto to lecture in 1898, he was surprised at the sizable student turnout. “The plain truth,” he observed, “was that they wanted to see me because they had read the Law of the Constitution.”14 Dicey was no 10 For a rejection of Diceyan rule of law, see National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324 at 1332-35, 74 D.L.R. (4th) 449, Wilson J. For a celebration of Diceyan rule of law, see Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 90, 304 D.L.R. (4th) 1, Rothstein J.

11 See e.g. Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385.

12 See e.g. British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, 257 D.L.R. (4th) 193.

13 The first edition was published in 1885: A.V. Dicey, Lectures: Introductory to the Study of the Law of the Constitution (London, U.K.: Macmillan, 1885). Early Canadian citations include: R. v. Brierly (1887), 14 O.R. 525 at 528 (H.C.); Canada (A.G.) v. Ontario (A.G.) (1890), 20 O.R. 222 at 227 (H.C.); Smith v. London (City of) (1909), 13 O.W.R.

1148 at 1151 (H.C.); Dunphy v. Croft, [1931] S.C.R. 531 at 539, [1931] 4 D.L.R. 284.

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