University of Alberta Faculty of Law Blog

Book Review

God's Joust, God's Justice
John Witte, Jr.

Grand Rapids: William B. Eerdmans Publishing Company, 2006

 498 Pages

 

Witte, a professor at Emory University, offers an intriguing account of the role of religious life shaping our legal heritage, and makes a case of its continued relevance in tracing our history and its role both in continuing our particular historical circumstances, as well as an argument for its necessity in interdisciplinary legal studies. 

The book is a compilation of previously published articles that have been moulded together, so one can expect less of an exhaustive argument, but rather illustrative “snippets” that highlight and emphasize issues that align more with both his methodological approach and traditional American preoccupations, viz. human rights, constitutionalism and American founding, and understandings of family before and after Roe v. Wade. As such, for the purposes of contextualization, it does bear the marks of a distinct tradition and most notably in its debt to his mentor Harold Berman.

 

Overview of approach:

 

“For me, history is more than a series of tricks that we play on the dead, or that the dead play on us. History is more than simply an accidental chronology of first one thing happening, and then another. For me, history is also a source of revelation, a collection of wisdom...The challenge of the Christian historian is to search within the wisdom of the ages for some indication of the eternal wisdom of God. It is to try to seek God’s revelation and judgment over time without presuming the power of divine judgment. It is to try to discern God’s justice within God’s joust” (4).

 

Witte puts forth what he calls “the binocular of law and religion” which is to say that, in the Western tradition, the historical vision is one part law, one part religion that interact and bounce off each other, and the means that informs the major currents of change has been dialectic: “Every legal tradition has known both theocracy and totalitarianism – the excessive sacralisation and the excessive secularization of law.  But the dominant reality in the West is that law and religion stand not in monistic unity, nor in dualistic antinomy, but in dialectic harmony” (5). The modes of cross-fertilization include, but are not limited to:

Conceptual overlap – eg, sin and crime, covenant and contract, righteousness and justice

Formal overlap – eg, liturgy and ritual, habits of tradition and precedent, shared sources of authority and power

Methodological overlap – analogous hermeneutic interpretation, casuistic and rhetorical methods of argument and instruction, systematic methods of organizing doctrine

Professional relationship – both have officials

Institutional interaction – political and ecclesiastical officials and institutions (5)

 

As he notes, the goal of the “binocular” is to avoid the monocular view of looking to history with law or religion alone, for the purposes of:

Grand civilizational pictures – in which he follows Berman by identifying a distinctly Western tradition with its distinct watershed moments, particularly Rome and its conversion under Constantine, the Papal Revolution, the Protestant Revolution, The Enlightenment, and Post-WWII.

Narrower denominational pictures – in which emphasis is placed on mainly Protestant interactions and influences post-Reformation

Discrete doctrinal pictures of law and religion in Western history – revealing origins and trajectories of issues as they have played out and influence our understanding, with an emphasis on human rights and the family (6)

 

 The merits of the approach is an illuminating perspective that casts light on panoramic glimpses of history and ways of conceiving unifying threads that persist and continue to inform. It situates itself comfortably and contents itself as being detached from other scholarly investigations of the past. The student of history will find the approach most problematic, especially since it refuses to engage itself with defences from competing interpretations and problems. One issue comes notably to mind, that law and religion are not defended from the critiques that would displace them as foundational, nor an outline of the basis of granting them similar status in historical investigation, which would require deeper theorization. Thus, the reader is left with an interesting approach, but which presses no compulsion in acceptance. However, one suspects a combination of textual approachability, time, faith, and perhaps other unarticulated theological underpinning grounds the apparent complacency.

 

So much for me trying to sound academic. Bottom line: interesting book, controversial issues, moderated tone.

 

Constituting Difference

"Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion."

Moreover, how to interpret equality within a caste substructure? Yes, India's Bill of Rights give us pause for thought.

International influence of USSC waning; SCC's on the rise

Thanks to our colleague Linda Reif for bringing our attention to this story in the New York Times detailing the declining influence of the United States Supreme Court on other constitutional courts around the world. Our own Supreme Court, in contrast, has become increasingly influential.

Judging Bastarache

As my colleagues have pointed out below Justice Bastarache was no comrade - and the empricial evidence confirms this. The Canadian Constitution Foundation (on whose board I sit), released a study detailing his record on the Supreme Court. The study, is accompanied by a quick summary, which states:

A 70-page study posted at www.CanadianConstitutionFoundation.ca, “Judging Bastarache” reveals that the retiring Justice had an over-all strong record of defending individual freedom, economic liberty, and equality before the law. As between those three topics, his record was strongest on cases involving economic freedom (eg. upholding contracts) and equality rights, but weaker in respect of the individual freedoms set out in Section 2 of the Charter: freedom of expression, association, religion and conscience.

Is the tide turning

against the legal front of the US's war on terror? It seems so. The United States Court of Appeal for the District of Columbia, which was one of the more sympathetic courts to the U.S. Administration issued this opinion (via Bashman) ordering the release or the grant of a new trial for a Chinese Muslim who is being held in Guantanamo. More on the story here, as the court's opinion is very terse given the national secuirty and classified nature of the facts. What is interesting about the case is that the three judge panel consists of a Reagan, Clinton, and Bush II appointee - and the decision was unanimous. While I had suspected that the US Supreme Court would deal the administration a setback, I didn't expect the lower courts to responde so quickly.

Mildred Loving RIP

With Barack Obama's mixed racial backgorund making headlines, the racially ambiguous Derek Jeter injured, and the multi-racial Tiger Woods teeing off into the record books, mixed-racial couples today are taken for granted.  And yet, once upon a time in 17 states in the United States (not sure if it ever was the case here in Canada), inter-racial marriages were illegal.

Over 40 years ago, Mildred Loving who was black and her husband Richard who was white challenged their conviction for marrying each other in the Commonwealth of Virginia.

The Supreme Court of the United States had intentionally avoided granting cert. on the question of laws banning the marriage between races, even after Brown v. Bd. of Educ. Chief Justice Earl Warren felt that the Nation could not handle such a ruling so soon after Brown.  It is worth noting that one of the reasons schools were segregated in the South, even though residential districts were not (as opposed to the North where schools were not officially segregated but residential neighborhoods were), was because of the fear that white and black children who would become familiar with each other over time could marry each other.

The Lovings were initially banished from Virginia, and they left for Washington, DC.  Later, the ACLU approached them to see if they be part of a test case. Though the Supreme Court had twice denied cert. on two other cases, there was a feeling that the time was right. The Loving returend to Virginia, and were immediately arrested. The Supreme Court of Virginia upheld the conviction, on a variety of grounds, but mostly on a judicially conservative philosophy of non-activism. The Court states that this was really the province of the legislature and not the courts to decide. Furthermore, the Court pointed to the denial of cert. by the US Supreme Court as evidence of the validity of these laws (big mistake as any first year should know).

The United States Supreme Court heard the case and reversed. Arguing for the Lovings was a young ACLU attorney Philip J. Hirschkop (who still practices in VA) and Bernard Cohen. The oral arguments can be heard here, and the Earl Warren opinion in Loving v. Virginia can be read here.  The Court reversed the convictions and struck down such laws.

Richard died a few years later in a car accident, and Mildred passed away yesterday. She was 68.

Scalia on the Law

Once again Justice Antonin Scalia speaks to a group of students and does not disappoint. 

More on Personal Injury Caps

Having just returned to town (more about that in a later post), I've just caught up on the latest posts.  Moin's post on the Morrow v. Zheng decision striking down the minor injury regulation capping non-pecuniary damages at $4000 caught my eye.

What is ironic (although not necessarily wrong, at least for the purposes of this post) about this decision is that, while the Alberta Legislature's cap on minor injuries is gone (pending appeal), the judicially-imposed cap on catastrophic injuries (in Andrews) - a much bigger sop to the insurance industry - is still in place.   

The Court party (and the plaintiff's bar) might reply that the Andrews cap does not discriminate on the basis of disability, and I think that is a coherent argument:  people with less-than-catastrophic injuries receive lower awards based upon some mental calculation that judges make as well as upon comparisons with awards given in similar or as-close-as-possible-to-similar cases.  So, while the current value of the Andrews cap amount of (based upon the current value of $100,000 in 1979) somewhere between $315,000 and $335,000 (depending upon which economist you ask) would be awarded to the sentient quadriplegic, a severely burned plaintiff might receive $180,000 in non-pecuniary damages in BC (considerably less in Alberta), a plaintiff with a broken kneecap (that necessitated multiple surgeries) might receive $80,000 in BC (probably around $45,000 in Alberta) and a plaintiff with cuts, abrasions, bruising and moderate whiplash might receive $35,000 in BC (and again some lesser amount in Alberta). 

In other words, the Andrews cap (unlike Alberta's cap) applies to limit the non-pecuniary loss of every injured plaintiff.  As such, while perhaps a notorious example of judges engaging in legislative policy-making, it is constitutional (albeit in the limited sense that it doesn't violate section 15 of the Charter.)

If this is in fact the distinction that preserves the Andrews cap's constitutionality, the British Columbia Court of Appeal might want to take note.  In recent years, it has launched a campaign of sorts to subvert the Andrews cap by suggesting on a few occasions in obiter that it only applies to catastrophically injured plaintiffs, and not to people with more minor injuries.  Ignoring for a moment the perverse logic (in theory, a person with a scraped pinky could receive more in non-pecuniary damages than a quadriplegic breathing through a tube), wouldn't this mean that the Andrews cap singles out a particular form of disability for unequal treatment?  Let's hope Finch CJBC reads Morrow v. Zheng.

I don't know whether this will, as the insurance industry, Premier Stelmach and Moin all suggest, result in increased premiums, although it is hard to imagine how it won't.  To the extent that the absence of a cap was costing insurers prior to its adoption, then of course such costs had to, and will have to, be passed on to somebody, and policyholders seem the most likely group to bear them.  Of course, the converse point is that it's not obvious to me why the true cost of non-pecuniary loss (I realize that's an oxymoron, but that's how we deal with non-pecuniary loss, right?) to an innocent plaintiff resulting from a blameworthy defendant's negligence ought to be borne by the innocent plaintiff, as opposed to the blameworthy defendant (aka the defendant's insurer).  But that, of course, goes to the Legislature's decision to adopt the cap, not to the Court's competence to strike it down.

One last point:  insurers in Alberta should take a page from ICBC's book and start using civil juries as a matter of course in these minor injury cases.  Every time.  (Every time the plaintiff claims for $75,000 or more, that is, so that the streamlined (no jury) procedures don't come into play.)  While (as Moin knows from our joint work in this area) empirical evidence of jury verdicts is extremely difficult to obtain and compile, there is LOTS of anecdotal evidence, particularly from BC and Ontario, suggesting that jurors will typically award very little (much less than $4000, in fact) for the kinds of injuries that the Alberta cap covered.  Of course, they often award more than the Andrews cap (say $450,000 or $550,000 or $700,000) when the plaintiff is breathing through a tube and staring at a ceiling for the rest of his/her life.  Then the appellate courts ratchet the award down to the cap.  (Apparently, appellate judges have forgotten that damages are a question of fact.  And yes, I realize that Sopinka J. said that the Andrews cap is a matter of law, not fact.  But calling a fish a "bicycle" doesn't make it so.)  Perhaps, however, juries are telling our judges two things about damages:  (1) they are awarding WAY too much for the ordinary bumps and bruises that we run the risk of incurring just by getting up in the morning (a useful ancient maxim on this point is stercus accidit);  and (2) $300,000-plus is not enough to buy the "solace" that Dickson J. identified in Andrews as the goal of non-pecuniary damages.

Free speech except for thee?

Funny how we always love the concept of free speech except when it is against us! This story illustrates this point by pointing out how an anonymous gossip site has now become hated by students that some are calling for its access to be limited by Universities.

For those studenst worried if they are showing up on it, at least here in Alberta, be relieved: UofA is not on the list of schools covered by the site! Besides if attendance by the law students at law events is any indication, I wouldn't be holding my breath for any scandal to come out from the ranks of our graduates!

Religion vs Charter Values

Interesting story that illustrates the conflict.

Caps unconstitutional?

When St. Pierre brought in his beloved Charter of Righst and Freedoms, I am sure he had many issues on his mind regarding what the Charter was meant to address. We know that the drafters thought it was meant to guarantee procedural rights - but lo and behold it has become the social activist's handmaiden. A judge here in our city has decided that efforts by a democtratically elected (yes even in our one party state we have elected government as opposed to one appointed judge) government to curb the rising auto insurance premiums is unconstitutional!

The more these judgments are issued, we risk one day throwing out the baby with the bathwater - we may just return to a pre-charter era. The backlash against such undemoctratic grabs of power will only result in either the repeal of the Charter, the appointment of anti-Charter judges, or moves for the election and recall of judges. Wait till you get your higher insurance bill - you can think the Charter for that!

What is interesting is how the hapless opposition leader is so un-imaginative that he suggests the creation of a state-owned insurance company. Given, however, the socialistic tendencies of Premier Stelmach with his assault on the oilpatch with his royalty review (and let us not forget the federal tories with their confiscation of the Income Trusts), is it any wonder that other political leaders would tout socialism here?

Torture anyone?

Conservative darling icon tells Europeans to get stuffed! Well that is my paraphrashing of what he said. He aslo stated that he thought torture was acceptable in the case of the ticking bomb. That is a scenario that many have touted as when torture is permitted. I should say, I am not sure if there ever has been a ticking scenario actualize, and it is not clear that torture would yield anything.

But if one took this idea seriously, then why stop at the ticking bomb? What if someone was part of a gang that had kidnapped a child and this person was now in custody - could the police torture the suspect to reveal the location of the child? What about a suspected drug dealer who was involved in a ganga that had been committing a string of drive-by shootings - could torture be used to reveal the identities of the gang members? What about serial killers (and we in Canada have had plenty of these as a recent trial just showed) - could we torture them to reveal the location of the bodies and to confess? If anything the social utility from that information in terms of lives saved on a daily basis far outweighs any possible lives saved from this so-called ticking bomb scenario.

In fact, in most developing countries that do not obey the rule of law, torture by the police of suspects is routine. Most confessions are extracted by torture in those countries.  That is why (warning - sarcasm alert) those countries are so safe, criminals never get away with their crimes, and we all want to live under those legal regimes!

Torture and the Bush Justice Department

The New York Times today published a stunningly comprehensive and incisive report on the role of an elite Justice Department office in providing (disturbingly misguided) legal justifications for the worst excesses of America’s war on terror. The story highlights the role of young, ultra-conservative lawyers in sanctioning brutal (and according to many intelligence officials, mostly ineffective) forms of torture. It is becoming clearer and clearer that history will judge the Bush administration’s efforts (including the efforts of Justice Department and White House lawyers) on this front in the same light as the “Red Scares” and the internment of Japanese Americans during WW II. Truly shameful.

John Carpay takes on Medicare

John Carpay of the Canadian Constitution Foundation takes on the Canadian state healthcare monopoly! (Disclosure: I sit on the CCF's board).

Leviathan Grows

Why does the Federal government have jurisidiction over Mental Illness? This so-called conservative government has been more interested in growing the federal machinery.

John Carpay on Health Care

John Carpay of the Canadian Constitution Foundation (full disclosure: I just joined its board of directors) on the Canadian healthcare system and CCF's legal attack on it. Technically, they are challenging the system in the various provinces, one by one; but the basic legal argument is the same in each case.

Talkin' Constitutional Blues

For several years those privileged to teach constitutional law at Canadian law schools have been relieved of the need to make space in the first year curriculum to discuss freedom of association in section 2(d) of the Charter of Rights and Freedoms. Now, thanks to a remarkable decision from the Supreme Court of Canada issued on June 8, 2007, those days may be over.

In Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia [2007] S.C.J. No. 27, the Court ruled by a 6-1 majority that provisions of a B.C. statute dealing with health sector employment were unconstitutional. In doing so, the Court backtracked on a trilogy of labour law cases it decided in 1987, and ruled that section 2(d) of the Charter includes a right to collective bargaining.

In early 2002, B.C.'s new Liberal government under Premier Gordon Campbell enacted legislation rolling back gains that health sector unions had made in matters such as contracting out, lay offs and seniority rights. The legislation aimed to provide much greater flexibility in these areas to employers, including the government itself, and to thereby reduce labour costs. The unions challenged the constitutionality of the legislation, but lost before both the B.C Supreme Court and the Court of Appeal. They lost largely because those courts relied on existing Supreme Court of Canada jurisprudence.

Do Sniffer Dogs Violate the Charter?

As I prepare to write my very first blog, I am reminded of the cautionary words of Jim Rome: "have a take and don’t suck."

These days, discussions of governmental surveillance tend to focus on the impact of sophisticated, modern technologies on individual privacy. But the Supreme Court of Canada will soon decide the constitutionality of a surveillance technology that is (in a sense) millions of years old. Specifically, it will determine whether a "sniff" conducted by dogs trained to detect drugs or explosives is a "search" within the meaning of section 8 of the Charter of Rights and Freedoms, which protects everyone’s "right to be secure against unreasonable search or seizure."

If a dog sniff is a search, police will have to get a warrant and/or demonstrate that it is justified by objective grounds for suspicion. As in the United States, the Court will decide the issue by asking whether people have a "reasonable expectation of privacy" in the smells emanating from their possessions. The U.S. Supreme Court says "no," and judging by its decision in Tessling, our own Court is very likely to do the same. (Provincial courts of appeal have split on the issue. See Brown, A.M., and Lam.)

In Tessling, the Court decided that there is no reasonable expectation of privacy in heat escaping from people’s homes. Without first obtaining a warrant, police used an infrared camera to detect heat emanating from the high-intensity lights used in marijuana grow-ops. Since the "pictures" generated by the camera were very crude, and did not reveal any details of what was going on inside (other than the fact that an area was unusually warm), the Court decided that section 8 was not violated.

Tessling generated considerable academic criticism. But as I have argued in an article to be published in the Journal of Criminal Law and Criminology, this criticism is misguided. When the information generated by a surveillance technique captures only illegal contraband or conduct, that technique should not generally be considered a search under section 8. If, on the other hand, the technique reveals information about legal (but potentially stigmatizing) behaviour, there may be good reason to restrict its use (for example, by requiring a warrant). Such regulation can enhance social welfare by encouraging beneficial, lawful activity and reducing costs that people might otherwise incur in protecting their privacy by non-legal means. Restrictions on wiretapping, for example, free people to be candid in their communications and minimize their need to resort to less efficient (but more private) means of communicating (such as payphones). Requiring warrants and/or individualized suspicion may also minimize racial profiling and other discriminatory and inefficient policing practices.

None of these benefits are likely to flow from restricting dog sniffs. Though estimates vary, properly trained dogs are able to detect contraband with considerable precision. They certainly generate fewer false positives than most searches based on reasonable and probable grounds. Equally important, they reveal nothing more than the presence or absence of something illegal. In the language of the Court’s section 8 jurisprudence, they uncover even less about "personal lifestyle or private decisions" than infrared cameras. And because they reveal so little, they are unlikely to generate any of the social costs that I’ve referred to.

This does not mean that police should be able to use dogs in any way they wish. Both police and their dogs can be intimidating, so people should not be confronted by them in the absence of reasonable suspicion. The usual rules limiting police detention powers, however, are available to address this. But where no detention is involved (e.g. sniffs of school lockers and unattended baggage), dogs should be allowed to what comes naturally and sniff without restriction.

Secession Reference: Constitution or Constitutional Law

Is case law that interprets the Constitution part of the Constitution, or just constitutional law?

This point come up during a sessional I taught a few months ago with regard to the following statement identified as the correct answer to an exam question: A decision by the Supreme Court of Canada declaring that a provincial statute is ultra vires is part of Canada's Constitution." My view then was that a distinction must be made between "part of Canada's Constitution" and "source of constitutional law". Case law is not included within the definition of the "Constitution of Canada" in s.52(2) of the Constitution Act 1982, and as such is not part of the Constitution. However, it is a source of constitutional law. Professor Hogg agrees with me, as he also makes the distinction in his classic text. Perhaps the most compelling argument in favour of the distinction lies in the entrenchment (s.52(3)) and amendment provisions of the Constitution. Case law is neither entrenched in the Constitution nor amendable "in accordance with the authority contained in the Constitution of Canada." Indeed, only judges can directly change case law.

Am I forcing the distinction here? Probably not.