Writing in the Globe and Mail, Macdonald-Laurier Institute Managing Director Brian Lee Brian Lee CrowleyCrowley argues that the Supreme Court has overstepped its bounds in recent decisions – and undermined the rule of law in the process.

By Brian Lee Crowley, Feb. 20, 2015

Even the Supreme Court’s friends are starting to get nervous at the gay abandon with which our highest court sweeps aside the annoying resistance of mere elected governments to its increasingly imperious  will.

But the real long term damage being done isn’t in this or that decision over the right to strike, assisted suicide, national securities regulators, Senate reform or who is entitled to sit on the Court.

From an economic point of view the real damage that is being done is in the insidious corruption of purpose of the law, the legal profession and the courts.

It is a commonplace that one of the greatest destroyers of growth and prosperity is uncertainty.  Not all uncertainty can be eliminated, and indeed it is the risk of loss that entrepreneurs take in investing in the face of uncertainty that justifies their claim on any profit.

In a market economy you cannot get rid of the fickleness of consumer taste, the risk of currency movements and interest rate hikes, the unpredictability of the weather and technological breakthroughs, the perfidy and wiliness of competitors and employees and the instability of commodity prices.

But societies that can reduce uncertainty enjoy a leg up in the prosperity stakes compared to their riskier peers. If your schools graduate students who are reliably literate and numerate, your central bank maintains the value of your currency, the tax and regulatory regime is stable and predictable, and the police and the courts keep your property safe from fraud and theft, strong institutions are helping to squeeze uncertainty out of the world in which your business operates.

This brings us back to the law. One of the most basic purposes of the law is to help introduce certainty in human relations. One great blessing of the most stable and transparent legal regimes is not that you can get your dispute quickly before a judge. It is that the clarity of the law and the consistency with which it is applied means that the vast majority of disputes are never taken to court because the outcome can be confidently predicted in advance. Why spend time money and energy on a case you cannot win?

A robust legal regime that reliably settles disputes according to established principles and is therefore deeply respectful of precedent, contract and private property confers a huge advantage on the society in which it operates.

Before the Charter of Rights, judges in our legal tradition were therefore a profoundly conservative force in the very best sense of that word. They were not on the bench to indulge their social theories or ride their favourite hobby horses. They were there to state what the law was in any particular case, not to make the law – a job reserved for lawmakers. And being bound by precedent and subject to accountability via the appeal process helped ensure judges spoke for the law, not their political and social beliefs.

The Charter did not set out to undo this enormously beneficial arrangement. It was intended merely to make our rights into a privileged form of law that overrode other kinds of law. The intention was a noble one. But the worm in the heart of the Charter apple has been the dawning realisation in the minds of lawyers, law professors and judges that they have unaccountable control over a document that trumps all other law.

The temptation to throw seemly judicial caution to the wind is both powerful and insidious. You can import your personal beliefs into the law merely by reinterpreting a word here, a concept there. The right of association becomes a right to strike. The right to life becomes the right to doctor-assisted death.

They don’t even hide their imperialist ambitions behind the Charter justification anymore. Like Russia’s slow-motion invasion of Ukraine, each breach in the wall of judicial self-restraint emboldens the court to expand its empire such as inventing new good faith obligations in well-established and well-functioning contract law. The law schools that produce our legal minds have gone from bastions of small-c conservatism focused on certainty-enhancing torts and contracts and wills to the vanguard of social engineering where the disaffected and the unscrupulously ambitious vie to produce new strategies for turning the law into an instrument of social change.

The cost to the rest of us isn’t just the annoyance of unaccountable judges foisting their view on us. It is the corruption of the law, transforming it from a bulwark of certainty in an uncertain world into a new source of instability and risk. The cultural rot in the legal and judicial world will take a generation of patient and determined effort across a broad front to fix. Best get to work.

Brian Lee Crowley (twitter.com/brianleecrowley) is the Managing Director of the Macdonald-Laurier Institute, an independent non-partisan public policy think tank in Ottawa: www.macdonaldlaurier.ca.

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