Rand's legal republicanism.

• Author: Dyzenhaus, David
• Position: Canada

Justice Rand's judgment in Roncarelli v. Duplessis is best understood in light of recent political and legal theory that argues for the importance of the republican ideal of non-domination for in it he sets out an account of the rule of law that gives clear expression to that ideal, one founded in a more basic ideal of respect for persons. As Rand understood things, Roncarelli was a member of a disliked minority, who was singled out for persecution when he had done nothing more than exercise his rights as a free and equal subject of the law: Those who singled him out for persecution sought to achieve their ends through law.

The author argues that since government under law is valuable because it helps to secure non-domination (the rule of law rather than the arbitrary rule of men), to use law to single out an individual for domination is, as Duplessis discovered, rather a complex business. No matter one's grip on power, one might find that one's ends simply do not count as public ends within a system of public law because such a system is predicated on respect for the persons who are subject to its authority.

Le jugement du juge Rand dans l'affaire Roncarelli c. Duplessis se comprend le mieux a la lumiere de la theorie politique et juridique recente qui defend l'importance de l'ideal republicain de >. En effet, l'approche de Rand quant a la primaute du droit exprime bien cet ideal, qui est a son tour base sur l'ideal plus fondamental du respect des personnes. Selon Rand, Roncarelli etait membre d'une minorite qui n'etait pas appreciee, il a ete pointe du doigt et persecute alors qu'il n'avait rien fait d'autre que d'exercer ses droits en tant que sujet libre et egal de la loi. Ceux qui l'ont persecute ont tente d'atteindre leurs objectifs par l'entremise du droit.

Toutefois, comme l'a appris Duplessis, le fait pour un gouvernement d'etre soumis au droit aide a garantir la >, c'est-a-dire la primaute du droit et non l'etat arbitraire de l'homme, et rend plus difficile l'utilisation du droit pour viser un individu afin de le dominer. Peu importe son emprise sur le pouvoir, une personne pourrait decouvrir que ses objectifs ne constituent pas des objectifs publics dans le cadre d'un systeme de droit public puisqu'un tel systeme est fonde sur le respect des personnes qui sont sujettes a son autorite.

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Introduction I. Liberalism and Its Critics II. Legal Republicanism Conclusion Introduction

The decisions of apex courts are immortal in the way that very famous people are: they live on in the public record, even if much of that record fades from active memory. And like a small group among the very famous, a decision such as Roncarelli v. Duplessis (1) lives on not only through its place in the public record, but also because it is part of active memory. It is remembered as having a significance beyond the fact that the apex court of the land considered the legal issue in the case fit for its scrutiny and resolution.

That the Supreme Court of Canada considered an issue fit for its consideration is in itself supposed to indicate that the issue and its resolution are matters of national legal importance. But often the Court's view is not borne out by the attention the decision gets--at least not beyond the ritual of recital by lawyers and in judgments in related matters of its style of cause for some years afterwards. Even when the Supreme Court of Canada specifically articulates its view that a decision is a particularly important contribution to the law, intended to provide a definitive resolution of some difficult and important issue, that decision might earn more ritualistic respect than others for a time, but be doomed to fade from active memory if neither its reasoning nor its rhetorical power suffices to capture the legal imagination of lawyers, whether in the academy or in practice. (2) Rhetorical power, however, is not a necessary element for such capture. Powerful reasoning may not be memorably expressed, though many decisions are remembered for a passage that exhibits the rhetorical power with which a judge articulated some general insight rather than for any bit of substantive reasoning.

Justice Rand, of course, had a rare gift for both rhetoric and reasoning, which is why, as Thomas Berger put it in Fragile Freedoms, his "judgements ... cannot be read swiftly, and certainly they require thought, but the truths they yield make a careful reading of them deeply worthwhile. [They] are the Canadian judiciary's greatest monument"; (3) that is, Justice Rand's judgments are remembered as a part of active memory, both for what they conveyed and how they conveyed it, though as Berger suggests, the "how" sometimes gets in the way of the "what".

Such obstruction happens with Justice Rand for two reasons. First, he on occasion allowed rhetorical power to substitute for reasoning so that even the sympathetic reader might conclude that Justice Rand was engaging in rhetoric for effect rather than for insight. This is, in my view, a markedly and unfortunately persistent feature of his extracurial writings. Second, on occasion, his rhetoric alerts us to the fact that he needs to convey an insight that is part of or encapsulates a powerful chain of reasoning but one that he cannot render wholly explicit. Here we might say that rhetoric outstrips reasoning but does not substitute for it.

In my view, this second feature characterizes the judgments that make up his monumental contribution to Canadian public law. And for a set of judgments to have this claim, they must do more than mark some discrete events; they must also stand as an enduring contribution to our legal life. They must remind us of principles that would be foolish--even dangerous--to forget, since their articulation in the judgment is particularly apt and, more importantly, are capable of providing us with new insights into our contemporary situation.

As such, these judgments differ from even the small group among the very famous people who live on in our active memory, for the judgments remain live interlocutors in our debates. While those who examine the life of another in a search for its meaning might imagine themselves as engaged in a conversation, there is something different about a judgment since, if we are engaged with it, it is as alive on its fiftieth anniversary as it was on the day it was issued.

So one of the reasons we gathered to celebrate the fiftieth anniversary of Roncarelli is that we started with the assumption that there is much in Justice Rand's judgment that is still capable of providing us with such new insights. Perhaps there is even a kind of necessary aspect to the fact that some, perhaps many, great judgments are great precisely because their reasoning can never be rendered wholly explicit. For it is only with time that we understand them, or--so we suppose at any particular point of time--understand them better.

The ambition of this symposium was correspondingly to come to some new understandings, even if we differed about what they are. And even if, as the symposium proved, we should now think that the dissenting judgments in Roncarelli are valuable in ways that have not been hitherto appreciated, we might want to be more critical of Justice Rand's jurisprudence. For even if that critical stance is the correct one, we would not have been led to adopt it, as the symposium also proved, if Justice Rand had simply concurred in one of the other majority judgments in Roncarelli. Justice Rand's judgment remains the reason we read and reread Roncarelli, however differently we may read it at different times.

I have already made my own attempt at a detailed reading of RoncareUi in a Rand Lecture at the University of New Brunswick, (4) and the five-year gap since that attempt has not been sufficient for me to develop any new ideas. Instead, I choose here to refine and elaborate my understanding of the passage I used as an epigraph to that lecture. I had not given the paragraph any sustained attention at that time, however, because while clearly I had found its message attractive, I could not then, as it were, decipher its meaning.

The passage is taken from an extracurial writing, an essay penned soon after Roncarelli was handed down. As we will now see, it is to a large extent an example of rhetoric substituting for reasoning in Rand. There is no clear connection between the individual sentences, and none of the sentences by itself expresses a clear thought. I will argue, however, that the paragraph, when read together with Roncarelli, expresses an attractive legal theory that is aptly termed "legal republicanism". (5)

1. Liberalism and Its Critics

   The absence of express constitutional limitations to legislative action has not remitted the individual to the sometimes precarious and sluggish security of public opinion and legislation. The matrix of legislation in a common law parliamentary sovereignty is instinct with the paramount purpose of sustaining democratic institutions toward which the judicial process of interpretation should be both responsive and resourceful. The urgency for their effective assertion comes into play in times of stress and danger; it is then, in the confusion of fear, distrust and fanaticism, that voices uttering the deep postulates of free men should be heard and felt. (6) As I have just indicated, this is a somewhat dark and incoherent passage. Yet there is something intriguing in it. It starts with the idea that the legal subject is not abandoned to the play of public power in the absence of express constitutional limitations. It then indicates that legislation itself provides protection in a system of parliamentary sovereignty, that the protection is inherently democratic, and that judges have a special responsibility to maintain that democratic quality. Finally, Rand suggests that the assertion of these democratic institutions is particularly important in times of stress and that it is in...