Legality as reason: Dicey, Rand, and the rule of law.

• Author: Walters, Mark D.
• Position: Canadian Professor A.V. Dicey, Justice Ivan Rand

For many law students in Canada, the idea of the rule of law is associated with the names of Professor A.V. Dicey, Justice Iran Rand, and the case of Roncarelli v. Duplessis. It is common for students to read excerpts from Dicey's Law of the Constitution on the rule of law, and then to examine how the rule of law is, as Rand stated in Roncarelli, "a fundamental postulate of our constitutional structure." Indeed, Roncarelli marked a point in time, fifty years ago, at which the academic expression "the rule of law" became a meaningful part of the legal discourse of judges and lawyers in Canada.

In this article, the author considers the relationship between the rule of law as an academic or conceptual idea and the rule of law as a practical or doctrinal idea. A distinction is drawn between two traditions of theorizing about the rule of law, which are labelled "legality as order" and "legality as reason". The author then reconsiders the views of both Dicey and Rand and argues that both advanced the idea of legality as reason. The author concludes that, although Canadian judges now tend to emphasize legality as order, we are better placed to understand the special features of constitutionalism in Canada if we remember that the rule of law has, both conceptually and doctrinally, another dimension--that which is associated with the idea of "legality as reason".

Pour bon nombre d'etudiants en droit au Canada, l'idee d'une primaute du droit est associee au professeur A.V. Dicey et au juge Ivan Rand ainsi qu'a l'affaire Roncarelli c. Duplessis. Il est courant pour les etudiants de lire des extraits traitant de la primaute du droit dans l'oeuvre de Dicey intitulee Law of the Constitution, puis d'examiner comment la primaute du droit est, comme l'a affirme Rand dans Roncarelli, >. En effet, l'arret Roncarelli a ete rendu au moment off, il y a cinquante ans, l'expression academique > s'integrait au sein du discours des juges et des avocats au Canada.

Dans cet article, l'auteur etudie la relation entre la primaute du droit comme idee academique ou conceptuelle et comme idee pratique ou doctrinale. L'auteur fait une distinction entre deux traditions de la theorie de la primaute du droit, soit > et >. L'auteur reprend alors les approches de Dicey et de Rand et soutient que tous deux souscrivaient a l'idee de la legalite en tant que raison. L'auteur conclut que malgre le fait que les juges canadiens aient maintenant tendance a mettre l'accent sur la legalite en tant qu'ordre, nous comprendrons mieux les traits particuliers du constitutionnalisme canadien si nous nous rappelons que la primaute du droit comporte une autre dimension, celle associee a l'idee de >.

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Introduction I. Legality as Order, Legality as Reason II. Dicey and Rand Conclusion: Fulfilling the Aspirations of Legality as Reason 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, "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 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).

1. 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 doubt right. As William Robson observed in 1939, there was "scarcely anyone over thirty-five years of age who studied law, politics or constitutional history ... in England and the British Dominions who was not 'brought up' on Dicey." (15) The book was standard fare among lawyers throughout the common law world.

   Still, before Scott's arguments in the Roncarelli trial, Canadian judges rarely invoked the expression "the rule of law", either as explained by Dicey or otherwise. (16) Before then, the rule of law was implicit in what judges did, not something they mentioned. As long ago as 1830, Canadian judges asserted the basic points for which Roncarelli is now famous. In that year, judges of the Upper Canada King's Bench reasoned that statutory discretion must be exercised for "sound", "bond fide", and not "arbitrary" reasons, and that it was "inherent in the constitution" and in the idea that the "laws we enjoy extend equal protection to all" that the courts might intervene when discretion was abused. (17) And so it followed that when discretion granted by statute to take property for purposes of building a canal was used to prevent a member of a particular group (i.e., a "Yankee") from operating a tavern, an action in trespass against the officials involved was possible. Chief Justice Sir John...