Another viewpoint.

• Author: Gander, Lois E.
• Position: Canada. Young Offenders Act 1984 - Column

In several recent Viewpoint articles, I've got up on my high horse about the importance of fairness and the principles of natural justice--due process, procedural justice, call it what you will ... I've come by my strong commitment to those concepts from having to rely on them as the only way to get significant issues that affected me and others I cared about addressed. All of a sudden it mattered a great deal whether decisions could only be made after the people who were affected had proper notice and the opportunity to speak to decision-makers about the impact of the decision under consideration. It also mattered that the ultimate decision had to be made fairly and without even the appearance of bias.

But what scared me most in this experience wasn't so much that decisions-makers acted as if they were above the law and violated provisions that were explicitly negotiated in agreements and policies. What I found worse was that there seemed to be fairly widespread support for the notion that people in authority were quite entitled to run rough-shod over such agreements and policies. This form of corruption seems to be increasingly accepted. Ends justified corrupt means. Rule of law seems to have little credence in many quarters today.

I was not always such a fan of procedural justice. Early in my career I was much taken with the critique that getting your day in court was both an expensive form of justice and a hollow one. If the law itself wasn't fair, the courts couldn't make it so. It was a commonplace criticism of the state of legal equality that both a rich man and a poor man are equally forbidden to sleep under a bridge. So the focus of my concerns at the time was on the inequity of the law itself and on ways of using the law to remedy social inequities. However, it soon became apparent to me that law reform depended entirely on who held the trump card--who could legislate. It did little good to win a case in court if the relevant legislature could immediately reverse the effect of the decision through legislative change. The real struggle was political not legal.

Over time, I have come to see that as too simplistic a view as well. Not only is law not much of a tool for social justice, it is a real constraint on reform because of its very nature. Law is not just a conservative, and even valuable stabilizing institution of society, it is a particular way of thinking--a way of casting, analyzing, and resolving problems that actually...