Viscount Haldane: The Wicked Stepfather of the Canadian Constitution.

• Author: Schneiderman, David
• Position: Book review

When historians proffer historical truths they "must not merely tell truths," they must "demonstrate their truthfulness as well," observes Hackett Fisher. As against this standard, Frederick Vaughan's intellectual biography of Richard Burdon Haldane does hot fare so well. Vaughan argues that Viscount Haldane's jurisprudential tilt, which favoured the provinces in Canadian federalism cases before the Judicial Committee of the Privy Council, was rooted in Haldane's philosophizing about Hegel. He does so, however, without much reference to the political and legal currents within which Haldane thought, wrote, and thrived. More remarkably, Vaughan does not derive from his reading of Haldane and Hegel any clear preference for the local over the national. We are left to look elsewhere for an explanation for Haldane's favouring of the provincial side in division-of-powers cases. Vaughan additionally speculates about why Haldane's predecessor Lord Watson took a similar judicial path, yet offers only tired and unconvincing rationales. Vaughan, lastly, rips Haldane out of historical context for the purpose of condemnmg contemporary Supreme Court of Canada decision making under the Charter. Under the guise of purposive interpretation, Vaughan claims that the justices are guilty of constitutionalizing a "historical relativism" that Vaughan wrongly alleges Hegel to have propounded. While passing judgment on the book's merits, the purpose of this review essay is to evaluate the book by situating it in the historiographic record, a record that Vaughan ignores at his peril.

Quand les historiens presentent des verites historiques, ils << ne doivent pas uniquement dire des verites >>, ils doivent egalement en << demontrer leur veracite >>, observe Hackett Fisher. Au regard de cette norme, la biographie intellectuelle de Richard Burdon Haldane par Frederick Vaughan ne fait pas bonne figure. Vaughan affirme que l'inclinaison jurisprudentielle du vicomte Haldane, qui prenait parti pour les provinces dans les litiges sur le federalisme canadien portees devant le Co-' mite judiciaire du Conseil Prive, etait ancree dans la lecture que Haldane faisait de Hegel. Toutefois, cette affirmation ne tient pas suffisamment compte des courants politiques et juridiques dans lesquels Haldane pensait, ecrivait et prosperait. Plus encore, la lecture que Vaughan fait de Haldane et Hegel ne demontre aucune preference claire de ces auteurs pour le local par rapport au national. Nous sommes donc obliges d'aller voir ailleurs pour trouver ce qui explique la preference de Haldane pour la partie provinciale dans les decisions portant sur la division des pouvoirs. Par ailleurs, Vaughan specule a propos des raisons qui ont pousse le predecesseur de Haldane, Lord Watson, a prendre une voie judiciaire similaire, en n'offrant a son support que des justifications mal ficelees et peu convaincantes. Enfin, Vaughan arrache Haldane de son contexte historique en l'employant pour condamner le processus decisionnel contemporain de la Cour supreme du Canada sous la Charte. Sous le couvert d'une interpretation intentionnelle, Vaughan affirme que les juges sont coupables de constitutionnaliser un << relativisme historique >>, que Vaughan attribue a tort a Hegel. Tout en evaluant les merites du livre, l'objectif de cette recension est d'evaluer cet ouvrage en le situant dans son contexte historiographique, un contexte que Vaughan ignore a son peril.

Introduction I. Hegel Relafivized II. Haldane Decontextualized III. Watson Unexplained IV. Reign of Simplicity Introduction

Historians "toil and sweat to get the last ounce of inferential knowledge out of the sources [they] possess." (1) Unlike scientists who offer theorems built upon processes that tan be replicated, historians are at the mercy of the "strictly limited quantity" of their sources, which are "seldom free from grave defects." (2) All historians "tan do is to build lean-to sheds of inference," Collingwood admits. (3) Preliminary conclusions are defensible, however, to the extent that they comply with the historical "rules of the game": (4) extant sources need to be scoured, inferences checked against all of the evidence, and simple-minded theories of causation rejected. When historians proffer historical truths, adds Hackett Fischer, they "must not merely ten truths, but [they must] demonstrate their truthfulness as well." (5)

Against these standards, Frederick Vaughan's intellectual biography of Richard Burdon Haldane does not fare so wen. Vaughan argues that Viscount Haldane's jurisprudential tilt, which favoured the provinces in Canadian federalism cases before the Judicial Committee of the Privy Council (JCPC), was rooted in Haldane's philosophizing about Hegel. Vaughan does so, however, without much reference to the political and legal currents within which Haldane thought, wrote, and thrived. More remarkably, Vaughan does not derive from his reading of Haldane and Hegel any clear preference for the local over the national. We are left to look elsewhere for an explanation of Haldane's favouring of the provincial side in division-of-powers cases. Vaughan additionally speculates about why Haldane's predecessor Lord Watson took a similar judicial path and yet offers only tired and unconvincing rationales. Vaughan, lastly, rips Haldane out of historical context for the purpose of condemning contemporary Supreme Court of Canada decision making under the Canadian Charter of Rights and Freedoms. (6) Haldane's influence lives, Vaughan argues, by reason of Supreme Court of Canada justices channelling his Hegelianism. Like accusations contemporaneously made about Haldane's JCPC rulings, (7) the book's contribution to periods both past and present is opaque and mystical. While passing judgment on the book's merits, my principal purpose here is to evaluate the book by situating it in the historiographic record, a record that Vaughan ignores at his peril.

1. Hegel Relativized

   Like so many early twentieth-century British political figures, (8) Haldane's life has been treated to numerous book-length studies, (9) including a valuable autobiography published posthumously in the year after he died. (10) Having authored seven books, principally on philosophical matters, together with a cache of letters (he wrote daily to his mother, who died in 1925 at the age of ninety-nine), historians have not been bereft of material with which to reconstruct and recount Haldane's life. Vaughan's aire is to fill this oeuvre by situating Haldane's Canadian decisions in the context of his Hegelianism. McGill philosopher Jonathan Robinson undertook this inquiry in 1970 for the University of Toronto Law Journal. (11) Others, including this writer, have explored Haldane's Hegelianism in this context. (12) Yet there has been, to date, no book-length treatment of Haldane's interpretation of the British North America Act, 1867 in light of his reading of Hegel. Scholars should welcome Vaughan's effort, then, with open arms. Regrettably, Vaughan does not build on these earlier efforts; he all but ignores them. (13) Instead, he reads Hegel and Haldane on his own terms, ignoring alternative interpretations and running the risk of setting us back in our understanding of the period.

   The book appears to have been precipitated somewhat by John Saywell's account of Haldane in The Lawmakers, (14) his longue duree treatment of the constitution in Canada's high courts. Saywell described the Haldane judicial record as being "inconsistent", (15) "virtually incomprehensible", (16) "confused", (17) "legally absurd", (18) and "extreme". (19) Saywell, Vaughan complains, dismisses the theory that Haldane's Hegelianism was an explanatory force in his JCPC decision making. (20) While this appears a good place to start, what readers receive instead is a succession of chapters dealing with well-trodden Haldane ground: his home life in Edinburgh and Cloanden (the family's country estate), (21) his early legal career, election as a member of Parliament, running of the War Department in the lead up to the First World War and subsequent drumming out of office for alleged pro-German sympathies--all of which has been treated in detail in other works. There is a subsequent chapter devoted to Hegel and another to his precursor on the JCPC, Lord Watson. Two chapters in this work are devoted to Haldane's JCPC decisions. (22) Then there is the surprising postscript, which largely is a complaint directed at the contemporary Supreme Court of Canada. Under the guise of purposive interpretation under the Charter, Vaughan claims that the justices are guilty of constitutionalizing the "historical relativism" that Hegel is alleged to have propounded.

   At the outset, it should be acknowledged that Hegel is a notoriously difficult philosopher to decipher, having written "some of the worst prose in the history of philosophy." (23) He offered metaphysical interpretations of a wide range of subjects; principally, the philosophy of history, philosophy of religion, and political philosophy (the latter in his Philosophy of Right, (24) to which I shall refer below). These writings and lectures precipitated an even more diverse range of followers from both the right and the left, both reactionary and radical. (25) As there is no succinct means of capturing Hegel's varying depths of thought, one can point to certain distinctive markers that would have been relevant to a study such as Vaughan's: the idea that history represents reasoned progress, devotion to the state as the supreme manifestation of a people's "spirit", identification of civil society as a medium for ethical life, and belief that individual freedom is made manifest via the communal morality he called sittlichkeit. (26) All of which suggests that Hegel is a complex and multi-faceted thinker who escapes simplistic formulations and token portrayals. Rather, the burden of a work such as Vaughan's is to portray Hegel as...