Law, Life and Lore

LAW, LIFE, AND LORE
Law is best interpreted in the context of the traditions and cultures which
have shaped its development, implementation, and acceptance. However,
these can never be assessed truly objectively: individual interpreters of
legal theory need to reflect on how their own experiences create the
framework within which they understand legal concepts. Theory is not
separate from practice, but one kind of practice. It is rooted in the world,
even if it is not grounded by it. In this highly original volume, Allan
C. Hutchinson takes up the challenge of self-reflection about how his
upbringing, education, and scholarship contributed to his legal insights
and analysis. Through this honest examination of key episodes in his own
life and work, Hutchinson produces unique interpretations of
fundamental legal concepts. This book is required reading for every
lawyer or legal scholar who wants to analyse critically where he or she
stands when they practice and study law.
allan c. hutchinson is a Distinguished Research Professor at

Osgoode Hall Law School, York University, Toronto. He was awarded
the University-wide Teaching Award, and has held a variety of visiting
appointments around the world, including Cardiff, London, Sydney,
Monash, Toronto, and Harvard. He has been elected to the Royal
Society of Canada. As well as publishing more than 25 books, he is the
author of many essays, notes, and comments in a range of popular news-
paper outlets and is a regular contributor to the media.
Published online by Cambridge University Press

LAW, LIFE, AND LORE
It’s Too Late to Stop Now
ALLAN C. HUTCHINSON
Osgoode Hall Law School, York University, Toronto

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www.cambridge.org
Information on this title: www.cambridge.org/9781108421058
DOI: 10.1017/9781108363242
© Allan C. Hutchinson 2018
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A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Hutchinson, Allan C., 1951–, author.
Title: Law, life, and lore : it’s too late to stop now / Allan C. Hutchinson.
Description: New York : Cambridge University Press, 2017.
Identifiers: LCCN 2017030641 | ISBN 9781108421058 (hardback)
Subjects: LCSH: Hutchinson, Allan C., 1951– | Law teachers – Canada – Biography.
Classification: LCC KE416.H88 A3 2017 | DDC 340.092 [B]–dc23
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ISBN 978-1-108-42105-8 Hardback
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and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.

LAW, LIFE, AND LORE


LAW, LIFE, AND LORE
ALLAN C. HUTCHINSON


www.cambridge.org
DOI: 10.1017/9781108363242
ISBN 978-1-108-42105-8 Hardback

LAW, LIFE, AND LORE


LAW, LIFE, AND LORE
ALLAN C. HUTCHINSON


www.cambridge.org
DOI: 10.1017/9781108363242
ISBN 978-1-108-42105-8 Hardback

A2J4

CONTENTS
Preface page ix
1 Taking a Stand: Politics, Prisons, and Football 1

2 Doing the Business: Judges, Academics, and
Intellectuals 23
3 If Derrida Played Football 40
4 Hurly-Berle: Corporate Governance and Democracy 52
5 Fashion Police v. Supreme Court: A Dressing Down? 82
6 The Politics of the Charter: A Critical Approach 95
7 Judicial Indiscretions: Asking about Law in all the
Wrong Ways 117
8 Why I Don’t Teach Administrative Law (and Perhaps
Why I Should) 133
9 Into the Black Hole: Towards a Fresh Approach to
Tort Causation 149
10 Some ‘What If ?’ Thoughts: Notes on Donoghue 173
11 Les Misérables Redux: Law and the Poor 185
12 It’s Too Late to Stop Now: Law, Life, and Teaching 213
Index 227
vii

PREFACE
I completed the final draft of this book around my sixty-fifth birthday.

This is an unwelcome milestone, as many will attest, that is not easy to
come to terms with – how did I get to be so old? Where did time go? And
what does it mean for me as a person and an academic? It seemed
a suitable time to look back and also to look forward. I wanted to take
a step back and see if there were any sustaining themes to my work.
In making that effort, I wanted to be as much a reader as a writer. But
I also wanted to remind myself (and others) that there is still much more
to do and, hopefully, much more to come. As the book subtitle suggests,
it’s too late to stop now.
Fittingly, this collection of essays draws on old work and offers new
work. However, even the older work has been substantially reworked not
only to make it more pertinent, but also to adjust it so as to reflect better
where I now stand. Many thanks to Nicole Daniel for her help in bringing
this book through to publication. I recognize that some will find my
efforts to thread together (auto)biography and scholarship entirely too
pretentious and indulgent. But I maintain that the central thrust of my
critical work has been to interrogate others about their ‘standing’ when
they offer truths and insights about law, life, and their workings. As I have
made a career out of putting others’ feet to the critical fire, as it were, it
behooves me to make a similar bracing challenge to my own work.
In reaching this point in my professional and personal life, I owe
enormous debts to all manner of people – teachers, mentors, friends,
colleagues, loved ones, protagonists, antagonists, research assistants,
reviewers, students, and many more. To name only a few of these
would do a grave injustice to the many I would omit. However, that
said, I want to mention one person who has been there throughout and
has not always received the thanks and recognition she deserves – my
mum. Through her example and her energies, she has constantly shown
me the worth of commitment and caring. I cannot claim to have lived up
ix

x preface
to the standards she has set, but I proudly and lovingly acknowledge all
that she has done for me. Thank you.
In reworking some older material, I am grateful to several sources for
permission to draw on parts of published papers – Dalhousie Law
Journal, German Law Journal, Jurisprudence, Law Society Gazette,
Osgoode Hall Law Journal, Seattle University Law Review, Southern
California Interdisciplinary Law Review, and University of Queensland
Law Journal.

1
Taking a Stand: Politics, Prisons, and Football
When I was a 14- or 15-year-old schoolboy, we studied the English

Reformation in history class. Our teacher explained to us what were
considered to be the accepted reasons for that pivotal event in English
history and politics. He told us that one of its leading causes was the
desire to challenge and reject the authority of the pope and the corrupting
influence of the Catholic Church generally. Always being one quick to
challenge the teacher’s authority, I asked him whether they taught the
English Reformation in the same way that we were taught it at the
Catholic school down the road from my non-religious (but squarely
Protestant) school. He smiled at this and contented himself with the
reply that this was a good question, but one that we need not deal with at
that time. As I now appreciate, my question had much deeper ramifica-
tions than I even glimpsed; it was a lucky strike by a mouthy teenager. It
raised the whole issue of the nature of historical inquiry and scholarly
objectivity. Shortly after that, the same teacher gave me a small book and
recommended that I should give it a read. It was What Is History? by
Edward Hallet Carr and published in 1961. Looking back, although I
might not have appreciated it at the time, this book (which I still have)
was the start of my career as a general and serious sceptic; it put me on the
path to being the kind of critical theorist that I became and now am.
Carr’s lauded monograph is less about history and more about what it
means to be in the business of history-writing. Although Carr did not see
himself as particularly radical in his approach and insights, he opened up
a way of seeing and being in the world that was entirely subversive. He
was rebelling against the prevailing scholarly orthodoxy that passed off
the historian’s role as akin to that of a factory store-person – keeping
https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

2 t a k i n g a s t a nd : p o l i t i c s , p r i s o n s , an d f o o t b a l l
track of what went in and out, making sure that it was catalogued
appropriately, and assigning it to its proper place in the grander scheme
of artefactual things. Carr was having none of this. He saw the historian
as having a more active role; there was a continuing interaction between
both the historian and the facts he generated and between the present and
the past. In an arresting phrase (which I vigorously underlined), he wrote
that the historian adopted ‘an angle of vision over the past’.1 This
challenged ideas that there was a fixed or objective reality, but a con-
stantly shifting ground that eluded a final or impartial accounting. Of
course, events occurred at different times and places and their basic
reporting could be right or wrong, but determining their larger signifi-
cance and meaning was a much more ambitious and fluid affair.
At his most provocative, Carr was suggesting that there was a moral or
political dimension to history-writing that could be fudged or hidden,
but never completely done away with. Reality was not the unadorned
certainty that most imagined or craved. As he put it, “the facts speak only
when the historian calls on them: it is he who decides which facts to give
the floor, and in what order or context”.2 If historians were store-persons,
they wielded enormous power; their role and authority was more akin to
that of an architect as opposed to a lowly gatekeeper. According to Carr,
therefore, historians or scholars generally not only created or, at least,
relied upon the organizational scheme that was most in line with or
supportive of their own sense of importance and significance, but also
allocated the inventory to its allotted place in a scheme very much to their
own liking. What Carr said about history always seems to me to be
pertinent to any mode of inquiry or theorizing, especially when it is
done in the name of truth and objectivity.
Carr’s influence upon me has been enormous. The line going back
more than 50 years now seems to go directly to that occasion of reading
What Is History? I have spent much of my professorial life asking the
question “where are you standing when you speak?” I have pushed that
question not only about the work and writings of others, but also about
my own writing. Carr hit upon an insight that far exceeds the discipline of
history-writing. For me, it has been a general invitation to challenge any
and all efforts to speak in the accent of Truth and Objectivity. I reject any
claim that it is possible or even desirable to achieve the ‘view from
nowhere’. In taking this line, I do not intend to suggest that all views
are subjective and that one view is no better than another – on the
1 2
E. H. C A R R , W H A T I S H I S T O R Y ? 86 (1961). Id. at 11.

a b ack s t r eet bo y? 3
contrary. I take a pragmatic line that defends the idea that there is no
Method of methods and no Context of contexts.3 There are only those
arguments and reasons that have passed social muster in an open and
intelligent exchange. Along with this comes the relentless insistence that
there are no bright-line or ‘stand-less’ boundaries between theory and
practice, natural and social science, facts and values, philosophy and
conversation, and, of course, law and politics. It is not that these catego-
rical distinctions collapse in on each other and have no relevant differ-
ences at all, but that such differences are contingent and social because
they always arise from and within, directly or indirectly, their sustaining
historical and political context.
So where do I stand when I think about and write about law? Who is
this ‘I’ that raises the issue about where one stands? What is my ‘angle of
vision’? My answers to these questions are, of course, themselves behol-
den to some context and sense of context that will itself be unfixed and, in
some ways, be unfixable. By this, I mean that not only can I be unsure
about whether I have accurately identified the place from which I stand,
but also that this place will itself be shifting and changing. It is somehow
folly to think that I have always stood in the same place and that, as I
change, the place on which I stand has also not changed (see Chapter 2).
Indeed, I may be entirely the wrong person to make any convincing or
compelling observations about the place on which I stand. There may be
others who can get a clearer or more revealing picture of where I stand
from where they stand; I might be too close or too immersed in that place
to get any distance from it. Nevertheless, with that caution in mind, it
seems appropriate that I should take a general stab at trying to explain
where I think that I am standing or what is my ‘angle of vision’ when I
write about law.
A Backstreet Boy?
As much as I have spent my life trying to deny or downplay it, my parents
have had the most influence on my intellectual career as much as on my
life generally. I grew up in north Manchester as the only child of my
working-class parents. My dad was a bus mechanic and my mother,
3
See A L L A N C . H U T C H I N S O N , T H E P R O V I N C E O F J U R I S P R U D E N C E D E M O C R A T I Z E D
(2009). The strongest modern influence on me has been the philosophical pragmatism
of the late Richard Rorty. See, for example, R I C H A R D R O R T Y , P H I L O S O P H Y A N D S O C I A L
H O P E (1999).

4 t a k i ng a s t a n d : p o l i t i c s , p r i s o n s , an d f o o t b a l l
unusually for those days, was a comptometer clerk at the local co-
operative society. They were both from large families and made some
sort of decision that their only child would not be deprived of some of the
opportunities they had missed as part of a large family. I was also the
oldest grandchild on my mother’s side, but the youngest on my father’s
side. We were not well-off, but we were not poor. I never experienced
wanting for much or being worried about whether I could do the things I
wanted. Of course, what I wanted was conditioned by what I thought we
might be able to afford; my horizons were limited by the terraced street
on which we lived and the people who lived there. As a post-war baby,
born in 1951, I was part of a boomer generation and, therefore, blessed
that I would not be exclusively defined geographically, socially, or pro-
fessionally by the place of my birth or upbringing.
My mother (who is still alive at 91) was the driving force of my family.
As the eldest daughter of her family, she had already put in time as a
caregiver and assumed responsibility for her siblings. They were a close, if
fractious family who lived in public housing in the inner suburb of
Newton Heath. My grandmother stayed at home and, when my mother
went to work, took care of me. My granddad was an archetypical, flat-
capped northerner who worked in a steel factory near Trafford Park and
was as loving to me as he was gruff to others. The only time I really saw
him get emotional was on that tragic day in February 1958 when the
Manchester United football team was killed on the snowy runway at
Munich Airport. Like many such men, he seemed more comfortable
shedding a tear for those heroic strangers than for those closer to
home. But my granddad had a great influence on me in one of the
connecting themes of my life – supporting Manchester United. My
granddad and my father did not get on too well, in part because my
dad was not a Red, but a Blue who supported Manchester City.
On looking back, two particular incidents involving my mother stand
out as having a very significant effect on me and my life’s trajectory; both
involved education. When she was about 11, she took a school exam and
did so well that she was offered a place at the Manchester Grammar
School instead of the local secondary school. However, she was unable to
go to the grammar school as my grandfather decided that spending the
money on a school uniform would not be the best use of the family’s
meagre resources in light of the increasing size of the family. This was a
huge blow to my mother and no doubt had an enormous influence on
how her life would play out. Resentful of being deprived of her chance at
educational and personal success, she was determined that such a fate

a b ack s t r eet bo y? 5
would not sabotage the potential of her children once she had them. I was
the future beneficiary of that defeat and her determination. I did win a
local scholarship to Oldham Hulme Grammar School and, at the insis-
tence of my mother over my own resistance to the idea, I was able to
accept it.
For all my railing against the traditionalism of the institution and
its curriculum, I owe much to the school and its teachers: it taught me
structure and discipline in refining my ideas. After all, I tended (and
still do to some extent) to define myself by what I was against, not
what I was for. I left the school under something of a cloud. Caught
between the old hierarchical order and the promise of a newer, freer
one at the end of the 1960s, I went off the academic rails for a while. I
had enough of doing what everyone wanted me to do or to be, so I
had a delayed teenage tantrum. I did not take my final exams ser-
iously and was duly rewarded with miserable grades. This was a cause
of deep regret to my parents and deep anger from my teachers. I
managed to get back on the rails over the next few years, but my
educational trajectory was far from conventional. However, without
being too Panglossian, it all turned out for the best. I carried a large
academic chip on my shoulders which has served me well, at least
most of the time – I do not take success for granted, know the worth
of hard work, pull for the underdog, and recognize that timing is
everything. I still own my old school tie which acts as a reminder to
me of both the better and worse aspects of my school days.
The second incident involved me directly. On our first day at junior
school as five-year-olds, my classmates and I were asked who could write
and spell their name. Being something of a show-off, I immediately put
up my hand and spelled out my name ‘A-L-L-A-N’. The teacher in
gracious, but no uncertain terms told me “that was almost right – it is
spelled ‘A-L-A-N’”. I went home that afternoon and told my mother that
she had been spelling my name incorrectly and that henceforth I would
spell it properly. The next day my mother went to the school and told the
teacher that I did not spell my name ‘Alan’, but that it was ‘Allan’ and she
should remember that. Even at my young age, the significance of this
encounter was not lost on me, although I did not grasp its full importance
until much later. It took a lot of courage for my mother to go to the school
and take on the teacher. While she was polite, she was not prepared to
bow to the assumed authority of the teacher. She knew right and wrong
and was prepared to take a stand. Tellingly, it showed me that the teacher
was not always right and that authority should not always be confused

6 t a k i n g a s t an d: p o l i t i cs , p r i s ons, and footb all
with correctness: you should show respect to people, but that was not the
same as kowtowing to them simply because they had some power over
you. My days as a critical theorist can be traced back to that incident.
My father and my relationship with him were more complicated than
my mother and my relationship with her. However, if my mother gave
me a strong sense of myself and who I could be in the world, my father
provided some of the content and substance. I spent much of my time
banging heads with him. He was uneducated in any customary sense, but
he was no fool. Unlike me, he was also a good listener. He would hear me
out, but almost never changed the view he had begun with. He was as
stubborn as he was supportive of me. When I was younger, I saw only the
stubbornness, but later I appreciated the supportiveness. He set an
example of what it meant to work hard (and for that to be its own reward)
and to give your best effort at all you do. But two particular aspects of his
life had the most impact on me – politics and football (Chapter 3).
My dad was a trade unionist. He worked at the main bus depot in
Manchester and, apart from fitting engines, he was the works shop-
steward. He was proudly pro-worker in his few words and many deeds.
He took the view that the working man (and occasionally, but less
importantly, woman, unfortunately) was deserving of greater respect
and remuneration than he received. Unlearned in any treatises on soci-
alism, he was an instinctive and unrelenting champion of the proletariat.
If he was to be labelled, it would be as a Fabian in the tradition of the
Webbs and George Bernard Shaw; he was for a safe and steady march to a
better life for all, not a man of revolutions and grand gestures. Although I
used to be unwilling to attribute my own sense of politics to him, I now
appreciate that his ‘democratic socialism’ is exactly what I subscribe to
(see Chapter 4). I spent a period as a young man dabbling in the
celebrated and daunting texts of the political left, but I never really
subscribed to their revolutionary fervour and apocalyptic scenarios. I
liked to rock the boat (and took great pleasure in doing so), but, perhaps
with my mother’s more guarded sensibility, was never really prepared to
scuttle the boat entirely. After all, it is hard to be any kind of revolu-
tionary while being a professor at a prestigious and established law
school.
My dad and I did not talk much about law. He was very proud that I
had become a professor, although he was wont to say as much to me.
Early on in my career, I went back to Manchester before I went on to give
a lecture at Cambridge as part of a series for Canadian lawyers and
judges. He asked me what I was going to talk about. I told him that I

kicking t he ha bit 7
was going to take what was considered a radical stand by demonstrating

how judges tend to advance and benefit established interests and con-
servative values under the guise of doing law and being objective (see
Chapter 5). He laughed at this. His basic response was – what else would
anyone expect them to do? He thought it simply trite and silly to have to
point out that judges would act that way. He was not offended by this and
certainly not surprised by it: it would be obvious and apparent to most
working-class folks that this was the case. If he were a judge, he would
also follow his own political views and values. But he was pleased that I
was taking such a stand and even more delighted that I could make a well-
paid career out of doing this kind of common-sense criticism.
My politics have remained reasonably in the democratic socialist camp
(see Chapter 6). I have tried (and, no doubt, failed on many occasions) to
live up to the challenge this commitment brings. Thanks to the ideas of
people like Duncan Kennedy and Roberto Unger, I have resisted the
temptation to subscribe to structural and monolithic accounts of social
hierarchy and deprivation. Instead, I have been more drawn to the idea
that, for all the insights of such uncompromising texts, the world and its
informing ideas are a much messier place than some would like to insist
or pretend; they tend to defy explanation in terms of ‘The-One-Big-Idea’.
Instead, I have opted to draw on all manner of influences and ideas and
cobble them together in an equally untidy way. The resulting approach –
as I firmly reject the whole notion of ‘grand theory’ – has been vulnerable
to claims of inconsistency and lack of rigour. But at least it has enabled
me to capture and retain something of the unpredictability and seren-
dipity of life itself. Of course, in applying this mish-mash of ideas to law
and my own legal career in its many manifestations, I have taken many
detours and gone down my share of blind alleys (see Chapter 7). But, with
the vast and ameliorating benefit of hindsight, I think that I have man-
aged to hew a fairly similar course over the years about how law works as
a medium for both oppressing people and offering them the opportu-
nities to improve their lives.
Kicking the Habit

The other gift my father gave me was ‘football’. He had been a promising
young player until he was injured playing for Stockport County around
age 25. From then on, he threw all his efforts into becoming the best
referee he could be. He worked his way up the ladder and refereed in the
then Football League and even got in a couple of games at the

8 t a k i n g a s t a n d : p o l i t i c s , p r i s o n s , an d f o o t b a l l
international level. He was deservedly proud of his achievements. After

he retired from the big leagues, he remained fully involved in both the
refereeing of local leagues and their organization; he championed refer-
ees and the central importance to the game. Indeed, he was still refereeing
in his 80s and received a prized medal and certificate from the Football
Association for his 60 years of involvement in the game. But, for me
personally, it was his enthusiasm for the game in all its forms and failings
that ignited my life-long passion for the game. If somewhat overstated,
being a professor is what I do, but being a football fan is what I am.
Football has been part of my life (and, therefore, a part of me) since
before I can remember. In so many ways, football has been one of the
defining threads and formative experiences of my life – playing, watch-
ing, talking about, arguing over, thrilling over, and simply living football
takes up a large amount of my waking and, occasionally, sleeping hours. I
was one of those kids who was rarely seen without a football at my feet or
under my arm; my shoes were always scuffed from kicking a ball around
on concrete pavements or schoolyards. For some, this might be taken as a
sad confession, something that I am embarrassed by or I ought to be
resigned to rather than enthusiastically embrace. But the truth is much to
the contrary. I love football. And I hope that it loves me. Football has
been good to me. I played at a fairly high level and was even paid for my
efforts. But, along with a series of injuries and other opportunities, I likely
plateaued in my late teens.
As regards my professional life, in case my claims are seen as a
sentimental overstatement, I should note that, when I was first consid-
ered for a teaching job at Osgoode Hall Law School in 1978, it was said
that “Allan is probably more at home on the football field than he is in the
classroom or library, but we should take a chance on him.” I took – and
still take – that as a compliment; it suggests that law and teaching is what I
work at, but playing and watching football is what I do. While I hope that,
over the years, I have become more at home in the classroom and library,
I still bring with me onto those educational and scholarly fields a deep
sense of life as a game and as a reflection of a footballing sensibility.
In both law and football, I recognize that I love to contest; it is the fuel
that keeps my engine turning over. Whether it was for the ball or over
some point of law, I was always in the thick of the action. As some of my
colleagues and students can attest, I am occasionally too combative for
my own good. But, over the years, I appreciate more and more that it
really is the case that it is the playing as much as the winning that counts:
you need to be a good winner as much as a good loser. Indeed, these days,

k icking the ha bit 9
it is the watching more than the playing that dominates my involvement;

the couch has replaced the pitch in my not-so-sporting life. Nonetheless,
I still thrill to the possibilities and magic of football’s field of dreams,
especially if it involves Manchester United.
With the considerable benefit of hindsight and more than 25 years in
law, I can now not only see the man in the boy and the boy in the man, but
I can also detect the critical legal theorist in the ebullient football player –
authority was to be challenged, rules were to be disputed, conventions
were to be broken, facts and context were vital, neutrality was a pious
pretence and ‘right’ and ‘wrong’ were always situational (see Chapter 8).
Although it has taken me more than a couple of decades to grasp the
connection, I realize now that there is much more of a link between my
professorial life and my footballing passions; each was not an alternative
and separate pursuit to the other. I take very seriously the idea of using
games as a metaphor to understand social life and activity. I now see that I
could have been learning as much about philosophy on the football pitch
and as much about football in the library if I had been a bit quicker and
sharper.
Through my father (who died a couple of years ago at 93), my political
values and my footballing passion were brought together. In short, foot-
ball has helped me to understand and develop a political approach to life.
My involvement as player, official, organizer, and fan has been as valuable
as any grand theoretical proposal drawn from the shelves of the great
philosophers and critics. The thing about football is that it demonstrates
time and time again that the best-laid plans can fail, not through lack of
planning or for want of more rigorous analysis, but because of the
unpredictable and always-moving quality of life – chance and necessity
travel together, defying any fixed or enduring idea or practice of what it
means to play the game (see Chapter 10). The best moves in the game,
whether it is football or life, are those that contribute to the advancement
of a more flexible and less oppressive structure; something that is less
hostage to itself and more open to transformation. Liberated from the
need to get it right, people can begin to confirm a democratic belief in
themselves by adopting a simple and playful ethic – “act for the best, hope
for the best, and take what comes”.4 In a society that attempts to embrace
the contingency and playfulness of life, there is likely no better way.
In his wonderful book 4–2, an affecting chronicle of a young kid’s life
through the prism of the 1966 World Cup Final, David Thomson
4
J . F . S T E P H E N S , L I B E R T Y , E Q U A L I T Y , F R A T E R N I T Y 270 and 271 (2nd ed. 1874).

10 taking a stand: politics, prisons, and f ootball
manages to capture something of the magic and possibility the game of

football holds. With lyrical ease, he captures both the lightness and
profundity of being the game of football is capable of encompassing:
A game, a piece of sport, is valuable because it is unnecessary, unimpor-
tant, not just trivial but weightless. And because a game is all of those
things, it can reach a profundity that the solemn events will never claim. A
game can always be read as a metaphor for deeper conflicts, antagonisms,
and violence – a game is a prelude to war, in that sense. But a game, or
play, is also a way of passing time when time is all we have; it is an urge
toward movement, action and maybe even grace as opposed to being
stagnant and inert. And winning doesn’t matter, because victory is always
an illusion.5
My own particular education in life through football is probably best

captured by my early involvement in local street games. I lived on Lord
Lane in Failsworth on what were then the outskirts of Manchester. When
we first moved there, the lane was wide and unpaved. There was a
decrepit air-raid shelter outside my aunt and uncle’s house that was a
couple of doors away from ours. The beauty of this arrangement – an odd
description for such an unpretty part of the world – was that there were
few cars and we could play football in the lane to our heart’s content or, at
least, until it rained too hard, the woman across the street confiscated our
ball, or our mothers called us in for bed. Often, there would only be a
handful of us: attack-and-defence was the order of the day. But, on
occasion, when the older kids would let us join, there would be enough
for pick-up teams.
These impromptu games were grand affairs that, at least in my mind’s
eye, lasted for hours. Apart from observing some basic rules about
kicking the ball and seeking to score goals, the structure and organization
of the game was very fluid – players came and went (and some came again
after they had gone home for their tea); the goals grew or contracted in
height or width depending on the size and ability of the goalkeeper;
people rotated in position and sometimes between teams; the pitch was
of fairly flexible and changing dimensions; the score seemed to go up and
down and usually stayed sufficiently close that the match was ended by a
‘next goal wins’ resolution; fouls and infractions were called in relation to
the identity of the perpetrator and the victim (i.e., little kids got to do
more with their elbows and have less done to them by bigger kids);
5
D. T H O M S O N , 4–2 171 (1996).

kicking t he ha bit 11
discipline was enforced by not passing the ball to ball-hoggers or by not

letting them join in for the next couple of nights; and so on.
While I did not appreciate it then, I was learning some basic social
skills and civic values; playing games was one way that you picked up
what it meant to become a decent person and a good citizen. Most of all,
you realized that there was not one way to do things and that the rules
and expectations had to be modified to accommodate the changing
conditions and talents of those involved: there had to be some give-
and-take if there was to be any genuine sense and reality of a communal
activity – football is a team game played by individuals who play best
when they play with and for others. People had different contributions to
make and it was important that even the least gifted players should have
some sense that they were part of a team and had a role to play. Similarly,
the best players also had to realize that, without the support and help of
others, their talents did not count for much. Also, you soon accepted that,
while there had to be flexibility and responsiveness in the rules, there also
had to be a certain degree of certainty and predictability at a particular
time and place. Of course, the rules might change at any time, but it was
reasonable to assume that they would not change capriciously or cor-
ruptly and that you would get a say in how and when they changed. Of
course, it was far from idyllic – people did cheat, bully, and take home
their ball if things were not going well. But there were valuable lessons in
that too.
My participation in these games taught me that game-playing need not
be a trivial retreat from the more serious and grounded pursuits of the
world. Treating football as a game of life encourages people to think
about all the social culture of people’s lives as a playful context that can be
constantly reshaped and in which people can constantly reshape them-
selves. Far from trivializing life or living, a playful understanding of life as
a game of football seems to enlarge the space in which otherness and
experimentation can be explored. In a social setting, like my childhood
pick-up games, in which freedom and constraint as well as responsibility
and authority were continually renegotiated and reworked, I sensed that
it was possible to achieve a precarious, but exhilarating experience of
personal empowerment and communal involvement. And, in doing so,
my pals and I were able to experiment with life in a safer context; we
perhaps glimpsed that it was through such playful interaction that people
might be able to confirm themselves in their humanity and its limitless
possibilities. For people and players brought up on such experiences,
there was ample opportunity to learn that there is no established

12 t a k i n g a st a n d : p o l i t i c s , p r i s o n s , a n d f o o t b a l l
playbook or script of acceptable moves in life’s game. While as many

probably miss the message as decipher it, there is useful instruction on
how to perform the vital responsibilities of democratic citizenship, by
viewing their role “as theatrical, its style as poses, its clothing as costumes,
its rules as conventional, its crisis as arranged, its conflicts as performed,
and its metaphysics as ideology”.6 In this sense, life and football can be a
playful game in the most serious and promising sense of the term.
For all the romance and the glory of that time, I also learned a lot of
valuable lessons which have all probably been respected as much in the
breach as in the observance. For one, it takes a whole lot of hard work and
organization to have fun – nothing rarely just happens: you need to put in
the effort if you are to take out the pleasure. It taught me that there is not
only a need to be able to work with others, but a positive and galvanizing
satisfaction in doing so. By sharing the responsibilities and the efforts
with others, you can double the satisfaction and rewards which come
from it. Again, the game showed us that, football, like life, is a team game;
the presence and participation of others is not so much a curb on your
individual expression and achievement as a spur and support – you can
do a lot with real talent and genuine will, but you can do even more (and
enjoy it more as well) if you do it with others and, not to be under-
estimated, for others. In this important sense, football can be a training
ground for democracy and civic responsibility.
If Plato and most of the philosophers of the Western tradition had
played football, they might have glimpsed some of these possibilities. For
example, despite occasions of slavery and imprisonment, Plato remained
adamant in his belief that “justice is concerned not with the outward
man, but with inward which is the true self and concernment of man”.7
Having contrasted the world of ideas which was permanent, unchanging,
ordered, and real with the world of ordinary experience which was
contingent, fleeting, chaotic, and illusory, he stipulated that their rela-
tionship was causal and hierarchical. For Plato, what is valuable is,
therefore, singularly intellectual and distinctly not physical. If one is
virtuous, then no physical experience can affect or detract from that.
Indeed, Plato’s follower, Plotinus, was said to forego personal hygiene as
a route to this complete otherworldly and slightly mystical state: the
intellectual apprehension of virtue and justice were the only real or true
experiences of those valued states.
6 7
J. C A R S E , F I N I T E AND I N F I N I T E G A M E S 56 (1986). P L A T O , T H E R E P U B L I C , Book 2.

k icking the ha bit 13
In his famous allegory of the cave, Plato introduced a group of people

who were ‘living in an underground den’ where “they have been from
their childhood, and have their legs and necks chained so that they
cannot move, and can only see before them, being prevented by the
chains from turning round their heads”. Living in this horrible state,
these prisoners were to be pitied. Yet, for Plato, this allegory was intended
to impress upon us that the only escape from the shadowy world of the
senses is by ‘a steep and rugged ascent’ to an enlightened reality of pure
thought where “the idea of good appears last of all, and is seen only with
an effort; and, when seen, is also inferred to be the universal author of all
things beautiful and right, parent of light and of the lord of light in this
visible world, and the immediate source of reason and truth in the
intellectual”.8 As such, Plato remained firmly attached to an entirely
formal notion of freedom in which bodily torment is nothing compared
to mental anguish.
If Plato had played football, he might have developed a less alienating
concept of freedom. And he might have realized that the spirit needs
sustenance if it is to flourish: a desolate material is no more conducive to
freedom than a materially rich culture that feeds people’s desires, but not
their spirits. For Plato, freedom was an entirely intellectual and solitary
experience; a person was most free when they saw the light of reason,
whether they were in the direst or most straitened of circumstances. If
Plato had played football, he might have begun to consider a different
vision of a freedom centred on the individual’s search for an appropriate
balance between separateness from others and union with them.
According to this alternative approach, freedom is not an intellectual
exercise, but depends on individuals synchronizing the bonds and struc-
tures that tie them to others with their own autonomy as moral agents.
The challenge, as one critic put it, is to construct “a liberal society that is
not libertine, a structure of authority that is not authoritarian . . . a world
in which choices are more than an invitation for endless actes gratuities,
and bonds are more than painful restrictions of individual develop-
ment”.9 As I will try to suggest, if Plato and others had played football,
he might have been a little more sympathetic to his allegorical cave-
dwellers and his real-life slaves (see Chapter 9).
8
Id. at Book 7.
9
R. D A H R E N D O R F , L I F E C H A N C E S : A P P R O A C H E S TO SOCIAL AND P O L I T I C A L T H E O R Y 33
(1979).

14 t a k i n g a st a n d : po l i t i c s , p r i s o n s , a n d f o o t b a l l
Strangeways
I enjoyed my time in prison: I have been inside twice. The first time was
in Manchester’s Strangeways gaol and the other time was in Leicester’s
high-security prison, Gartree. On both occasions, my time spent inside
was thankfully short, more of a fleeting visit than a long stay. Unlike most
inmates, I had gone there of my own free will; no bewigged judge had
consigned me there for some real or perceived social calumny. My reason
for being there, of course, was to play football. Like most prisons, the ones
I visited had football teams which used to participate in local competi-
tions and leagues: recreation was one way in which the authorities
managed to ease the tensions, improve the chances for less indiscipline,
and give the fortunate few something to look forward to in the bleak
weeks of incarcerated existence. But those brief visits inside did give me a
different view on life and football. In a game of such basic moves and
operating rules, simple freedom can be readily appreciated in all its
complexity.
The first time I played in prison was in a local Manchester game. We
were drawn against the inmates in a Manchester County Cup game. It
was before the infamous riots of April 1990 when the lid came off and the
seething resentments poured over in frightening scenes of violent may-
hem. Before being rebuilt after the riots, Strangeways was one of those
places Dante probably had in mind when he let his infernal imagination
go on a walkabout; around 100 hangings took place there. But he would
likely have rejected it for his literary masterpiece as far too incredible
even down among the hellish circles of his own overwrought vision. Of
course, prisons are not meant to be everyone’s favourite picnic spots. But
the thought of anything more than an afternoon visit was anathema to
my sensibilities. The combined stench of urine and disinfectant is enough
to make anyone gag; a pervasive sense of nausea and desperation wreaks
throughout it. And the building is reminiscent of the worst in lavatorial
design: whoever thought prisons had anything to do with education and
rehabilitation only had to spend five minutes in Strangeways to know that
the perpetrators of such a cruel myth were the real criminals.
I do not remember much about the game itself. However, my lasting
recollection of the fixture was what happened before the game; it was a
salutary reminder about not getting too abstract or precious when it
comes to freedom. We had been shepherded into the place and escorted
to our changing room by the guards. Small as the room was, it was
probably one of the larger rooms in the whole place. We had to wait

strangeways 15
until we were all ready to leave before they would let us out. Once
assembled, we were trooped out to make the short walk to the pitch.
However, part of the way there, I realized that I had left my chewing
gum – an indispensable ritual of my game – back in the dressing room. I
strolled back to the room and found my gum in my jacket pocket. But,
when I tried to leave the room, I found that the door was locked. With
little conviction, I pushed and shoved the door, but realized that I was
likely to have as much effect as constantly pushing a lift button in the
ridiculous hope that it will make the lift come quicker. After a couple of
minutes of knocking on the door and a few apologetic and feeble efforts
to shout “Hello?” I sat down and smiled. What else was there to do – in
prison and locked up; it seemed fitting. After a short while, one of the lads
came back with a guard and they let me out; there was the relieving sound
of the key turning in the lock and the door creaking open. When I trotted
onto the pitch, the game was about to begin and I received a warm round
of applause from both my team and the prisoners.
Fortunately, I escaped largely unscathed from this experience. But not
entirely. Unlike Plato’s brushes with confinement, that visit to
Strangeways was an important part of my education, as an aspiring
lawyer, a dilettante theorist, and a growing young man. Similar to my
visit to a local coal-pit, I never thought the same again about the people
who had to spend their time in those dank and depressing places; both
were horrendous places in which no one in their right mind would have
spent time, unless they had no other choice. Prisons and coal-pits, each in
their own way, were monuments to the harsh imperatives of an industrial
society and as much part of law as the freedom it touted itself to uphold. I
suppose that, if I had been more principled and less cowardly, I would
have taken the much-quoted injunction of the American Henry David
Thoreau to heart and committed myself to life as a criminal lawyer –
“under a government that imprisons any unjustly, the true place for a just
man is also a prison”. But I had neither the stomach nor the skills to make
it as a good defence lawyer.
Looking back now on that rather trivial Strangeways incident, I can see
a pertinent reminder of how it might be possible to think in more realistic
and helpful ways about ‘freedom’. I know it’s a cliché, but the fact is that
‘prison changes you’. Even on such short and almost surreal visits as
mine, it forces you to re-evaluate many things you took for granted. And
it obliges most people to ponder what freedom is all about and how
precious it is. I have never bought the frequent line that “freedom is just a
state of mind”; that people can be free, living in the most abject of

16 t a k i n g a st a n d : po l i t i c s , p r i s o n s , a n d f o o t b a l l
conditions, as long as their minds remain their own and their wills are not
crushed. Unfortunately, this Pollyanna-ish and Platonic view has been
given a romantic seal of poetic approval by the seventeenth-century poet
Richard Lovelace – “stone walls do not a prison make/ Nor iron bars a
cage;/ If I have freedom in my love,/ And in my soul am free;/ angels
alone, that soar above,/ Enjoy such freedom.” Well, if more people took
the time to visit prisons, they might not be so blasé in their roseate view of
prisons (and freedom for that matter); this is propaganda at its most
insidious.
To me, this idea of freedom as a state of mind is so much errant
nonsense: it reflects a whole tradition of philosophy and political theory
that not only separates body and mind, but posits people as autonomous
and independent individuals who slip in and out of social relations and
connections with others as they choose. It assumes that we are most free
when we are left alone, out of others’ reach and interference. I suppose
that is why such intellectuals maintain that the great rights and freedoms
are all individual and must be protected from interference by the state at
all costs. Of course, the rights to so-called free speech, freedom of
religion, and the like are important, but they seem so much window-
dressing if you do not have the means to survive or flourish. Entitlements
to food, shelter, clothing, health care, and the like seem to be a precondi-
tion to real freedom. The fact is that the bulk of philosophers do not so
much dismiss such claims, but overlook them as they speak from their
securely middle-class vantage point where food, shelter, clothing, health
care, and the like are taken for granted (see Chapter 11). And, living in
the segregated and hierarchical society of ancient Athens, Plato was no
exception.
What people need is the support and sustenance of a community; they
need to be part of a society which recognizes that freedom is not simply
being left alone – to be left alone is cold comfort if you have no devices to
speak of. For those who are poor and disadvantaged, this often means
that they are simply left to become poorer and even more disadvantaged;
the community or the state might be the only friend they have. Indeed,
the community or the state is less of a threat to their freedom and more of
a friend in need. Most of those who posit freedom as a ‘state of mind’ or as
‘being left alone’ simply take for granted the web of communal supports
and facilities which enables them to adopt the luxury of such a stance.
Also, when their cherished freedom is threatened, they will be the first to
insist that the state or community must exercise its collective force to
protect their zone of privacy in a robust and uncompromising fashion.

strangeways 17
To put it another way, people are always situated within a context of

freedom and restraint. The game of life is played out in the existential
tension between free-play and structural constraints, not in the privile-
ging of one over the other. People are never fully restrained nor are they
ever fully free (and nor might they want to be). People give meaning to
their lives in the constant struggle to negotiate and change the forces of
freedom and restraint which frame their lives. In this way, people are
freely restrained and restrainedly free. While it is true that people often
participate in their own restraint, it is also the case that such participation
is not voluntary in all circumstances, as prisons and their curtailments on
freedom show. As such, freedom is less about a lack of constraints and
more about the particular set of constraints which are in place. In other
words, freedom is not found in an absence of restriction and demands
imposed by others, but in the security and support which the web of
social relations in which we are all immersed is balanced in a respectful
and productive way. Like foot and ball are in football, so freedom and
restraint are in life generally – they are mutually dependent and can only
be made sense of in light of the other.
Being locked in that dressing room, I experienced an anxiety-inducing
lack of freedom; it made me realize that freedom is a fragile sense of self
and the conditions in which it can be nurtured and flourish can be so
easily and so quickly taken away: the person involved in a disabling car
crash, the theft of a cherished possession, or the loss of a loved one.
Freedom is about getting the balance and the context right. Being locked
in a prison tilts the balance too far in the direction of constraint. Yet, in
other circumstances, that locked door might have been the only protec-
tive barrier between me and the grossest assaults on my freedom: safety
and security might have been afforded by my confinement and isolation
from the others. If Plato and his theoretical ilk had played football, he
might have experienced that sense of freedom from being involved in a
collective exercise in which the constraints of the game are the context for
the realization of genuine liberty. It is together, not apart, that people
experience their most joyful, fulfilling, and life-affirming moments. In
football terms, fans can feel most liberated when they are crammed
together with 50,000 other supporters in their home stadium.
Connected in a long tradition of celebration and commiseration, fans
understand that freedom means, in its affecting Liverpudlian rendition,
that “You’ll Never Walk Alone.”
There is an important difference between anarchy and freedom.
Whereas anarchy is committed to dispensing with all rules and

18 t a k i n g a st a n d : p o l i t i c s , p r i s o n s , a n d f o o t b a l l
constraints on personal action (as impossible an ambition as there ever

was), freedom is about getting the balance right between the individual
liberty and social organization – freedom of one is dependent on the
restraint of another. In this regard, football offers the perfect illustration.
The critical dynamic at the heart of playing football is the existential
tension between freedom and restraint. It is only within the rule-based
restriction of the game that players experience the true sense of freedom.
If there were no touchlines and no rules about what you can do with the
ball, anarchy would rule and ‘freedom’ might go to the strongest and
dirtiest player. Thought of in this way, the referee’s whistle is not the
calling card of the kill-joy, but can be the sweet sound of liberty: it is the
slight, but symbolic hedge against the crushing boot of tyranny. Of
course, entrusted to the mouths of zealots or idiots, the referee’s whistle
can become a shrill instrument of oppression and restraint. As always,
whether in life or football, officialdom is not the problem, but the identity
and vision of those who are entrusted with its responsibilities.
Open and Shut

The other time I went to prison was when I was a law student. Not that
being a student was a confining experience; I mostly enjoyed both the
personal and intellectual challenge it gave me. Although, again, the free-
dom of intellectual inquiry was only made possible through the restrain-
ing discipline of work and concentration. However, it was, of course,
football which put me in prison. In the week, we used to play against
other colleges. But, on the weekend, we played in the Market Harborough
League which covered a large part of rural Leicestershire. Gartree Prison
was one of the teams. It was always a much-anticipated fixture – or, I
should say couple of fixtures because we played our home and away
games in the prison compound. The high-security prison usually put out
a strong team, so we knew we were in for a good afternoon out and, if we
were lucky, we might rub up against a celebrity or two.
You get to the prison, which is out in the countryside, by way of a long,
winding road through the adjacent flat fields of middle England. Unlike
the Victorian monstrosity that is Strangeways, Gartree was a modern
facility. Instead of the high brick walls and the small enclosed spaces,
Gartree had relatively low, but electrified perimeter wire fences which
contained the prisoners in fairly expansive grounds. The buildings were
separate and there was a sense of space. However, the appearance of more
openness and freedom of movement was quickly dispelled when one

open and shut 19
entered the prison. There was an elaborate security system of body checks
and x-ray inspections. Even though we were privileged visitors, we had to
go through a thorough search. Unlike Strangeways, Gartree housed some
very serious and long-term criminals, as we were soon to discover.
Indeed, playing at Gartree marked one of the few times myself and my
student teammates could actually say we brushed shoulders with history,
even if it was of the notorious and infamous kind.
About five minutes before kick-off, the doors to the dressing room
were unlocked and we were allowed out onto the deserted field to warm
up. A few minutes later, the prison team joined us; they were an equally
odd cast of characters in that they comprised young and old, fat and thin,
and, as we found out, talented and tough. While some of them looked
uncompromising and intimidating in a way many think prisoners should
look, we were never worried about being attacked or threatened by the
prisoners. In an odd way, we knew this was probably going to be one of
the least physical or rough-house matches of the year. The prison team
were under strict instructions not to engage in any violent or unruly play;
whether the referee noticed it or not, the watching prison guards would
simply refuse to select them for the next game if there was a hint of
trouble. Indeed, the only pressure we were under was to resist the
constant requests for cigarettes. In the days before more serious drug
use, ‘snout’ was the universal currency of the prison which could pur-
chase whatever or whoever was on offer.
After the game had been in progress for about 10 minutes or so, the
rest of the prison population was let out to watch the game. Dressed in
their drab uniforms of blue or grey cloth, their encircling presence gave
the match a rather eerie quality. The most memorable incident of the day
happened in the second half. The pitch was on a fairly big slope and, with
a strong wind behind us, we were playing down the hill. Putting a lot of
pressure on their goal, we won a series of corners. Aware that they could
not do much by way of restraint or retaliation, our cowardly plan was for
me to take the goalkeeper out of the action by some subtle holding (subtle
enough, anyway, to avoid the referee’s attention) when the ball was
swung into the goalmouth. After a couple of these, the goalkeeper became
predictably annoyed; one of his defensive colleagues came over to me and
quietly assured me that “if you do that again, I’ll break both your fucking
legs”.
With the bravado of young years and footballing tradition, I brushed
this off with an equally ripe riposte. A few minutes later, while the action
was in another part of the field, a small and chatty member of their team

20 t a k i n g a s t an d : p o l i t i cs , p r i s ons, and f ootb all
came over to me. With his friendly Cockney accent, he introduced

himself as ‘Buster Edwards’, one of the Great Train Robbers. He went
on to inform me that “perhaps you should be careful about who you
tangle with; that bloke who you just exchanged pleasantries with is one of
the Richardson Gang”. After that, I decided we should adopt a different
tactic in our pursuit of goals – the Richardsons were rivals of the more
well-known Kray Brothers and used to deploy the same methods of
persuasion and enforcement; they nailed people to tables, razored them
with novel tattoo designs, and, if the media got it right, stored people in
concrete in motorway flyovers. I never did like tables, tattoos, or
concrete.
Nothing more transpired; I played the rest of the game in a more
subdued fashion than usual. After the game, we were treated to some of
the strongest tea I have ever tasted; you could almost stand a spoon up in
it. As we left our dressing room (a small cubicle of a room off to the side of
a large assembly hall), some trusted prisoners were beginning the task of
setting out chairs for the ‘highlight of the week’, as one put it. Saturday
night was film night for those prisoners who had not blotted their copy-
books over the preceding week or who were not considered too disrup-
tive to join the general mass. For some reason, this event struck a deeply
depressing note within me – that was it, the one thing you could look
forward to in order to break the numbing monotony of the daily regimen.
It was not the confinement or the violent undercurrents which would
probably wear me down, but the mindlessness and numbing routine of it
all; the fact that life was simply passing you by as you moved through one
dreary day to another. I still get a shiver down my spine when I think
back.
Whatever the extraordinary example of Antonio Gramsci and Nelson
Mandela, prison is not the place you want to be or need to be. It is, after
all, a place which is intended to curtail and limit your freedom. But its
unique problem is not so much that it imposes a disciplining structure or
imposes constraints on people. Very few situations do not place restric-
tions on what people can and cannot do or be. Of course, different people
experience those constraints differently. The billionaire is not quite under
the same limitations as others, but he does operate and live in a system of
constraints, even if those constraints can often work to his benefit. This is
not to suggest that freedom is only about money: people can be free who
are relatively poor. However, if freedom is a state of mind, it is one which
is not unconnected to the material conditions in which people live and
struggle. Plato might have been less confident about the purely spirit

open and shut 21
quality of freedom if he had not been rescued from a life as a slave and
had been obliged to endure the deprivations of such an inhuman status.
The balance of rule-structured settings and open spaces for disruptive
play is at the heart of the human search for freedom (see Chapter 11).
And football suggests a discrete context within which this general tension
is brought down to more manageable proportions and becomes more
amenable to understanding.
The fact is that, once it is grasped that people give meaning to their
lives in the constant struggle to negotiate and change the forces of free-
dom and restraint which frame their lives, it is possible to use this insight
to great and unsettling effect. In the game of life and football, the
structure of rules and the continuing play of creativity interact and feed
off each other, like a good pair of strikers. There is always a tension
between order and disorder or freedom and constraint which cannot be
resolved by a totalizing account or performance of what it means to play
the game. Different theoretical candidates are locked in a relentless
historical struggle for dominance which allows only temporary respites,
but no final resolution or ultimate balance. And, in this sense, football
can be thought of as the exemplary democratic game. Democracy is about
play because it ought to be committed to maximizing everyone’s oppor-
tunity to play and replay life’s game; it labels as unjust that which
“prohibits that the question of the just and unjust be, and remain,
raised”.10 People who are truly political are those who are empowered
by their recognition that rules are necessary, but who realize that such
norms and expectations – for what are rules other than that? – are always
up for grabs.
Understanding life as an infinite game whose performance both deter-
mines and is determined by the prevailing rules of play is a far from trivial
lesson or achievement. Although this all might be cold comfort for those
locked up in some awful prison cell, it lets us get a different handle on
what ‘freedom’ is and what it might become. Moreover, by thinking
about freedom in terms of football, it might become clearer that freedom
is not about a lack of constraints, but about the kind of constraints which
are in play; freedom only makes sense within a context of constraints.
Again, in a democratic society, citizens might learn from the best of
football players who are singled out by their capacity to imagine and open
10
J-F L Y O T A R D , T H E P O S T M O D E R N C O N D I T I O N : A R E P O R T O N K N O W L E D G E 67
(G. Bennington and B. Massumi trans. 1984). See, also, D. K E N N E D Y , S E X Y D R E S S I N G ,
E T C . 184 (1993).

22 t a k i n g a st an d: po l i t i cs , p r i sons, and f ootb all
themselves up to possibilities other than those presently available. By dint

of talent and commitment, they are not fated to be always players in
another’s game or to play according to another’s understanding of what it
means to play the game. In such a society, the game-playing of politics
might not be something people care to do, but something people always
live and, in living, live for.
Conclusion
So my life, as both person and professor, has been informed by ‘taking a
stand’. I have adopted a stance which recommends that doing theory is an
activity which should not be thought of as an attempt to escape from the
world so that universal insights can be gleaned about the human condi-
tion and then foisted on a credulous readership. Instead, I have worked
from the position that theorizing is not separate from practice, but one
kind of practice. It is rooted in the world, even if it is not grounded by it.
In short, it is always the case of ‘taking a stand’ whether you accept or
deny that fact (see Chapter 12). Also, the stand I have taken is one which
tries to put the interests and circumstances of the have-nots at the heart of
things. In so doing, I have not sought to speak for those people (although
I have likely slipped on many occasions in achieving that), but to open
spaces and create opportunities for them to speak for themselves.
Throughout, I have been guided by the modest principle of ‘democratic
play’ in both politics and life – people need to be good winners as much as
good losers. More importantly, it is not the winning or losing which
matters most, but being able to play in such a way as to broaden the game
so that more can play another day, in their own way, and define their own
way of winning. As the inimitable Danny Blanchflower (of Spurs and
Ireland fame) might have put it about life and learning as much as about
football:
The great fallacy is that the game is first and last about winning; it is
nothing of the kind. The game is about glory. It is about doing things in
style and with a flourish, about going out and beating the other lot, not
waiting for them to die of boredom.

2
Doing the Business: Judges, Academics,

and Intellectuals
Some years ago, I ran into a former colleague and ex-dean. He was now
an appellate judge. After some friendly banter, he commented that he had
recently read a piece I had published about the hoary problem of ‘state
action’ in constitutional law. It argued that the persisting doctrinal
dilemmas encountered were attributable to the contradictions of the
underlying liberal basis of rights-talk around the public/private distinc-
tion. He had reason to read it, he said, because he had to decide a case
which raised related problems about the institutional reach of Canada’s
Charter of Rights. However, after he had generously complimented me
on the piece, he made a familiar complaint – “For all the force of your
critique, you never tell us what we should do. Don’t you think that you
should tip your hand and give us a sense of what we should decide?” I
simply responded with my customary shrug and by saying that “I’m not
in the business of judging – that’s your challenge, not mine.” His implicit
sense of what academics do and should do was very different from
my own.
In this chapter, I want to explain what is the ‘business’ which I think I
am in as an academic or, more grandly, as an intellectual. In particular, I
will explore and explain what the implications of these intellectual com-
mitments are for the fraught and misunderstood relationship between
the academic and judicial (and, by implication, the professional) sectors
of the legal community. In order to do this, I will first of all introduce an
important distinction between two different types of intellectual role – a
traditional one and a critical one – that polarize law schools; this duality is
far from original or unfamiliar. Then, I will take the relatively recent
confirmation process of Elena Kagan in her appointment to the U.S.
Supreme Court to illustrate the political characteristics and institutional
context that give rise to and sustain the pervasive acceptance by most law
23

24 doing the busi ness
professors of their role as traditional intellectuals. Next, I will look at how

this continuing nexus between judges and law professors affects aca-
demics in the way in which they go about doing their intellectual busi-
ness. Finally, I will look at the intellectual arc of Richard Posner’s
astounding career as both academic and judge in order to bring together
some of the main themes of my critique of what it means to ‘do the
business’. Throughout this chapter, I will emphasize that ‘law is politics’
and that there is no site of political innocence or independence which
academics or judges can inhabit in fulfilling their professional roles and
responsibilities.
The Intellectual Business

While all law professors are intellectuals, they are not all intellectuals in
the same way. Legal academics are squarely within the intellectual busi-
ness of producing and trading in ideas and values about law, lawyers, and
judging. That said, there is little more which can be stated by way of
generalization about how they go about doing this, why they do what they
do, and what interests they serve by doing it. While extensive and
frequent debate occurs within law schools about the role of judges and
lawyers in society, little real continuing or regular debate takes place
about these more general intellectual roles and responsibilities of law
professors. Indeed, law professors seem to go about their work as edu-
cators and scholars with little apparent anxiety about the particular
intellectual and institutional context within which these roles are for-
mulated and performed. Ironically, this stands in sharp contrast to the
judicial community, where there is considerable soul-searching, aided
and encouraged by law professors, about what judges are doing and are
supposed to be doing when they judge.
There are, of course, many different kinds of academics within law
schools: they cover a broad spectrum of approaches, motivations, and
interests. However, leaving aside those few who have become jaded and
disengaged from any genuine work of a scholarly or even professional
nature, serious law professors can be effectively divided into two main
groups – the traditional and the critical. Although many law professors
would resist this bifurcation as simplistic and a few straddle the divide,
the great bulk of legal academics can be easily categorized as ‘tradi-
tional’. Some might claim that many legal academics have relinquished,
if they ever upheld, the general designation as intellectuals at all. In
Twining’s familiar imagery, a large number of law professors are

t h e in t el l ect ual b us iness 25
content to be thought of as talented plumbers, albeit with a touch of

Periclean sophistication.1 Indeed, many legal academics wear the badge
of non-intellectualism and occasionally anti-intellectualism with a
certain perverse pride.
Intellectuals are those who articulate and analyse the ideas, values, and
commitments of the community, specialized or general, in which they
live and function. For legal academics, therefore, the focus is on the
intellectual constructs (e.g., legal doctrine, processes, institutions, per-
sonnel, etc.) which constitute and energize the world of law and lawyers.
While all legal academics do this work and gain their identity from it,
they differ sharply over their approach to doing this. While traditional
intellectuals are content to work within the established paradigms and to
identify with its general interests and ambitions, critical intellectuals are
less committed to the status quo and seek to question the benefits gained
and the interests served by those established values and ideas.2 Whereas
traditional intellectuals see themselves as part of the same professional
community as lawyers and judges, critical intellectuals align themselves
with a broader and often different social community of allegiances. In
short, traditional academics are members of the legal profession first and
foremost: critical academics see their involvement with the legal com-
munity only as a necessary corollary to their more general identity as
members of the professoriate.
The fact that most law professors operate and identify as traditional
intellectuals does not mean that they commit themselves unreservedly or
uncritically to the present values and ideas of the established order.
Notwithstanding the few out-and-out careerists, they are not generally
willing lackeys for the ruling elites or mindless dupes of a manipulative
system. It is not the good faith of traditional intellectuals that is at issue.
Many legal academics spend much of their time and effort criticizing
legal decisions, lawyerly practices, doctrinal deficiencies, and the like.
However, they do so in the name of enabling the overall legal process and
personnel to fulfil better their customary purposes and expectations; they
are there in an important sense as help-mates to lawyers and judges.
Whether as critical doctrinalists or policy-wonks, they want to advance
even as they alter the basic structures of law and its liberatory potential;
their prestige and importance is tied to that of the legal process which
1
William Twining, Pericles and the Plumber, 83 L.Q.R. 396 (1967).
2
I am obviously drawing upon the general insights of Antonio Gramsci. See A N T O N I O
G R A M S C I , S E L E C T I O N F R O M T H E P R I S O N N O T E B O O K S (1971). However, I want to offer
some important modifications to Gramsci’s typology in the legal academic context.

26 doing the business
they work to enhance. Problems with the legal process and its personnel
are more about bad apples than the professional barrel itself.
On the other hand, critical intellectuals should not be portrayed as
saintly and uncompromised figures who are entirely immune to the
seductive blandishments and co-optive lure of traditional professional
prestige. Although they strive to place some significant distance between
themselves and the institutional milieu of law, they still remain within
much the same professional culture. Nor should critical intellectuals be
seen as always against everything the law claims to stand for; they are
oppositionalists on behalf of some other set of commitments, not nihi-
lists. Furthermore, critical intellectuals are not simply those who seek to
represent the poor and oppressed underclasses.3 While this is an appeal-
ing prospect, it is unrealistic. The critical intellectual is opposed to
established and vested interests which might well exclude a range of
interests and ideas, some of which will not necessarily be consistent
with or benefit the goals of the social underclasses.
It is tempting to assert that critical intellectuals speak ‘truth to power’.
However, this is a problematic notion. If that means that they should be
“a disturber of the status quo” and be prepared to challenge “ideas and
values despite the restrictions of a professional culture”,4 that is all well
and good. But if speaking truth to power is meant to suggest that the
critical intellectual can or should reside entirely outside the existing
matrices of power, then this is too remote and detached a standard.5
There is no place of exile to which the intellectual (or anyone else) can
retire which is beyond the reach or influence of prevailing power struc-
tures and norms. There is no available ‘outside’ from which to engage in
transformative action: all struggle for change is already situated and
framed within the very mechanisms and mediums to be resisted and
reworked. While the university is often less infiltrated by those values
than many other locations, it is not the fabled ivory tower of popular
imagination; the university is subject to a whole host of powerful forces,
public and private, which combine to create a distinct discourse of values,
ambitions, and restrictions. This is especially so of law schools. They exist
with a foot in both the academic and professional communities. As is
often the case in such straddling situations, law professors are deeply and
thoroughly compromised.
3
See infra, ch. 6.
4
E D W A R D S A I D , R E P R E S E N T A T I O N S O F T H E I N T E L L E C T U A L x and 76 (1994).
5
See, for example, J U L I E N B E N D A , T H E T R E A S O N O F T H E I N T E L L E C T U A L S (1927).

a c o n f i r m i n g pr a c t i c e 27
Accordingly, critical intellectuals must walk a thin line between being

organically connected to and active on behalf of those people and inter-
ests which are outside the established order and being to the side of or on
the margins of traditional institutions and contexts of power. This loca-
tion will shift as the currents and tides of the professional establishment
ebb and flow. As such, the work of critical intellectuals is always vulner-
able to being used by others to legitimize the very professional institu-
tions and ideas they oppose. Because they must live in law schools if they
are to understand fully the professional culture’s wiles and ways, they
occupy a precarious ledge of existence; they are dwellers on the threshold.
This ensures that there are bound to be a few missteps and falls from
critical grace.
Many will resist this depiction of the intellectual life of law schools.
In my classification, they will see a too-ready demonization of the
traditional intellectual and a holier-than-thou romanticization of the
critical intellectual. Indeed, my account might be exposed as too self-
serving and apologetic by half. There may well be some hints of that,
but that is not my intention. However, I maintain that the basic
thesis – most law professors are traditional intellectuals – is correct.
A cursory glance at much contemporary scholarship, many law
school curricula, and pervasive pedagogical methodology confirms
that the commitment to a very strong and relatively uniform ethos
of professional culture prevails. And this should come as no surprise.
If one looks at the typical profile of the leading law professors and
their institutional connection to bench and bar, it would be startling
if this professional and traditional orientation was not the governing
ethos of legal academe. Whether by way of cause or effect, the traffic
between the bench and academe is most revealing of the mind-set of
law professors as they go about their intellectual business.
A Confirming Practice
In May 2010, President Barack Obama nominated Elena Kagan for the
vacancy on the Supreme Court of the United States on the retirement of
89-year-old Justice John Paul Stevens. After a relatively benign confirma-
tion process, she was approved by a Senate majority of 63–37 and took up
her appointment in August 2010. She was only the fourth woman
appointed to the Supreme Court in its 219-year history. This is achieve-
ment enough in itself. However, her background and career offer a neat
encapsulation of the main theme of this chapter – the close and mutually

28 d oi n g th e bus i n es s
sustaining relationship between the judicial and academic worlds and its
effect on the intellectual climate of law schools.6
The daughter of a teacher and an attorney, Elena Kagan was an excellent
student. After obtaining an undergraduate degree at Princeton and a
postgraduate degree at Oxford in history, she received her JD (magna
cum laude) from Harvard Law School in 1986; she was supervisory editor
of the Harvard Law Review. From there, Kagan went on to be a law clerk
for Judge Abner Mikva of the U.S. Court of Appeals for the District of
Columbia Circuit in 1987 and then for Justice Thurgood Marshall of the
U.S. Supreme Court in 1988. After a short period in private practice as an
associate at the Washington, DC, law firm of Williams & Connolly, she
joined the faculty of the University of Chicago Law School in 1991 and was
promoted to a tenured professorship in 1995. Almost immediately, she
then left Chicago to serve as an associate White House counsel and later
policy adviser under President Bill Clinton. After a nomination to the U.S.
Court of Appeals for the DC Circuit in 1999 (which expired without
action), she took a visiting appointment at Harvard Law School, where
she was subsequently granted tenure in 2001. She became its first woman
dean in 2003. In early 2009, she was appointed by President Obama
(himself a Harvard Law School graduate and former Chicago Law School
professor) as the United States’ solicitor-general.
This is a stellar career by any standards. It is difficult for anyone to
gainsay her achievements and talent. Although some commentators
questioned her allegedly limited scholarly productivity, others noted
that the quality of her work was very high and more than met any
reasonable standards for academic or judicial competence. Throughout
her life and work, she earned plaudits as a pragmatic consensus-builder
who was balanced and constructive in her decisions and analyses. In both
the corridors of power and the hallways of academe, she largely managed
the not inconsiderable distinction of being able to gain the confidence
and respect of both mainstreamers and more marginal figures. At the
same time, she held firm to her own liberal convictions and was no fence-
sitter. All in all, she blazed a trail which not only exceeded any reasonable
expectations of her, but she did so without leaving a path of used and
embittered individuals behind her. This is no mean feat in any field of
contemporary endeavour. Her record to date on the Supreme Court
6
Professional propriety requires me to state that I know Elena Kagan; she was dean at
Harvard when I was a visitor there. We remain on friendly terms. However, nothing in this
chapter speaks to her personal character or impugns her professional integrity.

a c on f irmi ng pr ac tic e 29
bench has continued this trajectory and approach. As she has gained
seniority and experience, she has begun to assert herself more.
Much of the confirmation process and public debate around her nomi-
nation was taken up with her lack of any judicial experience. She was not,
of course, the first person without prior judicial experience. About 40 of
the 110 or so past justices joined the Supreme Court without holding any
earlier judicial post; the last was William Rehnquist in 1972 and others
include such luminaries as Earl Warren, Robert Jackson, Joseph Story,
Louis Black, and John Marshall. However, it is fair to state that this
particular path to the Supreme Court is not as popular or accepted as it
once was. Perhaps more revealingly for my purposes, Kagan is also not the
first career academic to find her way to the Supreme Court. The most well-
known is Felix Frankfurter, who went straight on to the Supreme Court
from his tenured chair at Harvard; Kagan spent a short spell after leaving
Harvard as solicitor-general before her nomination. Also, the late Justice
Antonin Scalia went from Chicago Law School on to the U.S. Court of
Appeals for the District of Columbia Circuit as did present Justice Ruth
Bader Ginsburg, who went the same route from Rutgers and Stanford.
Many others have spent part of their career in the classroom and have
added a scholarly publication to the resume.
It is the cyclical trajectory of Kagan’s career which is most revealing.
She did well in law school, clerked on the courts, went back to law
school, and, after periods of government work, went back to the court.
In this regard, she represents the archetypical model of the traditional
academic and her route to judicial appointment is not uncommon
among judges. Indeed, Justice Stevens, whom she replaced, had him-
self been a clerk to Justice Wiley Rutledge during the 1947–48 term
and had been an adjunct professor at Chicago from 1953 to 1955.
Furthermore, Stevens himself had replaced Justice William Douglas on
the Supreme Court, who had also been a full-time professor at
Columbia and Yale Law Schools. As well as Stevens, four other
Supreme Court justices previously clerked for other Supreme Court
justices: Justice Byron White clerked for Chief Justice Frederick M.
Vinson, Justice Stephen Breyer clerked for Justice Arthur Goldberg,
and Chief Justice John Roberts Jr. clerked for Chief Justice William
Rehnquist (who himself had previously clerked for Justice Robert H.
Jackson). Also, Breyer had been a Harvard law professor for more than
25 years before his appointment to the Supreme Court.
Although many law professors do not get the chance to join the
Supreme Court or other judicial bodies, many of the professors at elite

30 doin g th e bus ine ss
American schools followed exactly the same path as Kagan from law
school to a judicial clerkship and back to law school; it remains the most
common and most reliable route to elite academic appointment. As such,
Kagan’s career path evidences the very tight and mutually reinforcing
dynamic between bench and academe. Her capacity and talent for mov-
ing almost seamlessly between and among the different sectors of the
legal profession is especially remarkable. While her scholarly output (like
that of other academic-judges, such as Breyer and Ginsburg) was far from
uncritical of the courts and judges generally, the tenor of her writings falls
squarely within the traditional genre of intellectual endeavour in that
they are broadly devoted to chastising and correcting legal doctrines,
processes, and personnel so that they better live up to and attain the
professional ideals of law and judicial law-making.7 This, of course, is
hardly surprising.
Of course, it does not mean that all those who follow a similar path will
always end up at the same destination. The great majority of the law
professors who were Supreme Court law clerks (and about 30 per cent or
so of those law clerks go on to be legal academics)8 do fall within and often
openly align themselves with a more or less traditional intellectual orienta-
tion. Although there has been a greater extent of interdisciplinary research
in recent years and a move away from purely doctrinal exegesis, the great
bulk of contemporary scholarship remains devoted to advising courts how
they might make a better job of their allotted institutional task.
Nevertheless, a number of former law clerks have taken the road less
travelled; these are the exceptions which prove the general rule. For
example, Duncan Kennedy, who was a Harvard law professor, former
law clerk to Justice Potter Stewart, and founder/leader of the Critical
Legal Studies Movement, has largely rejected the traditional paradigm
and has sought to develop a consistent practice of being a critical intellec-
tual in his scholarship, teaching, and general professional activities.9
7
See The Changing Face of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan
and the Problem of Content-Based Underinclusion, [1992] S U P . C T . R E V . 29 and Private
Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63
U. C H I C A G O L . R E V . 413 (1996).
8
See William E. Nelson et al., The Liberal Tradition of the Supreme Court Clerkship: Its Rise,
Fall, and Reincarnation?, 62 V A N D . L . R E V . 1749 (2009) and A R T E M U S W A R D A N D
D A V I D W E I D E N , S O R C E R E R S ’ A P P R E N T I C E S : 100 Y E A R S O F L A W C L E R K S A T T H E
U N I T E D S T A T E S S U P R E M E C O U R T (2006).
9
See D U N C A N K E N N E D Y , L E G A L R E A S O N I N G : C O L L E C T E D E S S A Y S O F D U N C A N K E N N E D Y
(2008).

intellectual p olitics 31
This close, interdependent, and sustaining relationship between aca-

demics and judges is by no means unique to the United States. While it
may be more marked and entrenched in the United States, other jurisdic-
tions exhibit similar patterns and dynamics. In Canada, the most com-
mon path to the professoriate remains a graduate degree combined with
an appellate clerkship (which became available from 1967 onwards).
About 25–30 per cent of academics followed this route and, if allowance
is made for the number of non-Canadian members on Canadian law
faculties, the percentage is even higher among Canadian-trained law
professors. Since the late 1970s, the overwhelming majority of
Canadian Supreme Court justices have had at least a brief teaching career
at law faculties. Indeed, some of the most renowned Canadian justices
have been drawn from the ranks of academe – Chief Justice Fauteaux was
dean at McGill before being appointed to the Superior Court of Quebec
in 1947 and the Supreme Court of Canada in 1949; Chief Justice Laskin
was a career academic and was appointed directly to the Ontario Court of
Appeal in 1965 and to the Supreme Court in 1970; and Justice Beetz was
dean at the University of Montreal before being appointed to the Quebec
Court of Appeal and then to the Supreme Court in 1974. Also, several
former clerks have now gone on to become judges themselves; Louise
Arbour is a prime example of someone who was a law clerk at the
Supreme Court, a career academic, and later a justice of the Supreme
Court of Canada. If one looks to the provincial courts of appeal, the
numbers of academics who have been appointed is relatively high.
Intellectual Politics
It should be obvious from this broad accounting that the links between
academics and judges are very close. However, this in itself says little
about the nature of that relationship. In order to make my case, I need to
show that there is a strong intellectual as well as institutional connection
between academe and the judiciary. And, of course, I think there is.
Whether acting as plumbers or, more grandly, in a Periclean role, law
professors tend to position themselves and produce work in support of
the legal and especially judicial establishment; they create scholarship
which strives to rationalize and legitimize the central importance and
non-ideological performance of courts. Indeed, it is worth noting that
Pericles himself was primarily a politician and military leader. Although
he is lionized for his contributions to the artistic and literary world, he is
viewed by many as tailoring those efforts to his overall imperialistic and

32 do ing th e b usin es s
civic ambitions.10 As such, insofar as he was an intellectual, he is very

much of the traditional kind.
The major intellectual effect of this close allegiance between academics
and judges is twofold – the primary focus of legal education and scholar-
ship; and the approach taken towards it. First, while other important
factors are no doubt in play, the institutional interchange between judges
and law professors has kept the details and doings of adjudicative
decision-making at the very intellectual heart of the educational and
scholarly agenda. Most classroom and scholarly debate centres on the
work of judges in developing the common law, interpreting statutes, and
exercising constitutional review. Moreover, it is the work of appellate
courts (where the clerkship process is concentrated) which occupies law
students’ energies and practicing lawyers’ mentalities. All other legal
activities are given secondary attention and, when considered, are studied
in light of the judicial process. Of course, preoccupation with courts
might be warranted in its own terms, but this is unlikely. Today is a
legislative and regulatory age; the great bulk of law-making and law
application is not done by courts, but by other agencies, officers, and
citizens in less formal settings. Attention to such processes is still scant in
law schools, if growing, compared to that given to the output of courts
and litigation generally. As inculcated and nurtured by law professors,
the primary knowledge and talent of lawyers is the capacity to slice and
dice judicial rulings and pronouncements.
This court-centric focus is ample evidence of the intellectual conse-
quence of the close academic-judicial nexus. However, it is the approach
which most law professors and scholars bring to that subject matter
which is most revealing. To put it bluntly, traditional legal intellectuals
recognize that their prestige and influence are closely tied to that of the
courts. Therefore, there is a self-interested drive to show that the work of
courts and, by implication, their own work is professional as opposed to
political, independent as opposed to aligned, and balanced as opposed to
partisan. Consequently, despite the occasional (judicial) lamentation that
“too few law professors are producing articles or treatises that have direct
utility for judges”,11 the major ambition of most traditional scholarship
10
See, for example, V I C T O R E H R E N B E R G , F R O M S O L O N T O S O C R A T E S : G R E E K H I S T O R Y
A N D C I V I L I Z A T I O N D U R I N G T H E 6 T H A N D 5 T H C E N T U R I E S BC (1990).
11
Harry Edwards, The Growing Disjunction Between Legal Education and the Legal
Profession, 91 M I C H . L . R E V . 34, 36 (1992). There is a long tradition of this kind of
objection. More recently, the U.S. Chief Justice has contended that “pick up any law review
that you see and the first article is likely to be, you know, the influence of Immanuel Kant

i n t el l ect ual po l i t i cs 33
and teaching is to promote and defend the claim that judges can and
should perform their responsibilities in a politically neutral manner.
This does not mean that traditional academics approve of everything
judges do – far from it. However, as critical as they might be of particular
judges and discrete judgments, they are defensive of the overall judicial
project; the underlying thrust of their work is to defend the role of courts
in constitutional democracies and to fashion accounts of how judges can
do that in a manner which is determinate, just, and non-ideological.
Although there is massive disagreement among academics about how
this best can be done, they are largely unified in their insistence that the
ambition is both appropriate and realizable. The most obvious demon-
stration of this tendency is in the area of constitutional law where
scholars proffer ever more imaginative and elaborate theories – textualist,
originalist, republicanist, developmentalist, structuralist, moralist, popu-
larist, organicist, etc. – to explain how judges can and usually do fulfil
their constitutional obligations in sufficiently objective and neutral ways.
Other areas of law are no less rife, if less frenetically so, with similar
efforts – utilitarian, Kantian, economic, evolutionary, etc. – to ground the
judicial process in some neutral and fixed footings.
Notwithstanding the merits and weaknesses of any particular theory or
scholarly contribution, this entire intellectual project is as ideological as it
can get. There is little more political in scope and effect than the tradi-
tionalist claim that ‘law is not politics’, but is somehow a mode of social
activity and thinking which can lay claim to being both technically
rigorous and substantively disinterested. Yet it is hard to imagine other
disciplines which claim a genuine intellectual legitimacy so closely con-
nected to and part of the activities of those of whom they stand in
judgment. It would be close to ridiculous to imagine literary scholars
spending most of their time defending and acting as apologists for the
publishing trade or political theorists devoting their energies to rationa-
lizing and shielding the machinations of the political establishment.
Similarly, when law professors not only act as a group to bolster the
extant and general performance of the judicial ranks, but also do so as a
matter of professional imperative, it is a conflict of intellectual interest on
a massive and largely unacknowledged scale.
on evidentiary approaches in eighteenth-century Bulgaria, or something, which I’m sure

was of great interest to the academic that wrote it, but isn’t of much help to the bar”. Chief
Justice John Roberts Jr., Judicial Conference, June 25, 2011: www.cspan.org/video/?300203–
1/conversation-chief-justice-roberts.

Adjudication, especially at the highest appellate level, is not only a

special social activity which causes or conditions other social activities
and planning, but it also serves the important function of glossing its
outcomes with an important veneer of naturalness and neutrality. As
official bureaucrats, the judges help to persuade citizens that the courts
are both a part of and apart from established political order and that their
decisions, therefore, should be treated as less political than those of other
government actors: “[it] is not so much that the court is the natural
expression of popular justice, but rather that its historical function is to
ensnare it, control it and to strangle it, by re-inscribing it within institu-
tions which are typical of a state apparatus”.12 Consequently, participa-
tion in the legal process as lawyer or litigant, no matter how radical the
claim or cause, runs the risk of reinforcing as it challenges the dominion
of the status quo. As hackneyed as it sounds, law professors contribute to
the vital political task of designing and stitching together those fashion-
able ideological outfits which outfit the judicial emperors who would
otherwise appear even more institutionally naked. None of this is to
suggest a full-blown conspiracy between and among judges and law
professors: it is simply the professional image academics and judges
adopt through a combination of self-interest, training, institutional alle-
giance, and routine.
In law schools, visiting judges are treated with a reverence which is
more suitably reserved for visiting dignitaries or religious leaders; they
are held in the highest regard and frequently placed on a ceremonial
pedestal. It is simply taken for granted that, unless the judges themselves
indicate otherwise, they will be treated with kid gloves and spared any
penetrating critique of their work. Of course, this is hardly conducive to a
serious and unflinching intellectual inquiry of such powerful govern-
mental actors. In terms of the intellectual fulcrum of legal scholarship,
the overall flavour and sense of this academic-judicial imbalanced rela-
tionship is neatly captured by Mike Taggart:
In the common law system it is the judge rather than the scholar that has
had pride of place. The academic role has not been as glorious, central, or
appreciated as the judicial one. . . . Still, the barricades between the
academy and the profession . . . may not be completely gone today, but
they are hardly visible. So a balanced approach to intellectual history
would look at the thought and judgments of the more reflective and
12
Michel Foucault, The History of Sexuality in P O W E R / K N O W L E D G E : S E L E C T E D
I N T E R V I E W S A N D O T H E R W R I T I N G 1972 –1977 (Colin Gordon ed. 1980).

i n t el l ect ual po l i t i cs 35
influential judges. For the most part those judgments have been the
building blocks of scholars.13
This is quite the condemnation of the status and legitimacy of legal

academics’ work and standing. Under this depiction, the legal academic
is not only engaged in a blatantly justificatory task, but is also very much
the junior and less ‘glorious’ partner in this scholarly enterprise. While it
is understandable that judges themselves might want to assure the public
that their decisions are driven more by legal methodology than by their
personal ideology, there are no reasons why academics should be enthu-
siastic promoters of such a legitimating project. Indeed, as I have sought
to explain, there are many reasons why it might behove legal academics
not to do so. Ironically, this tendency is most apparent at the Supreme
Court level because such courts are not only political in the effects their
decisions have, but also in the style, substance, and strategy of those
decisions.
The transparency of this effort by most traditional academics is most
obviously on display in and around the American confirmation process.
Despite the paper-thin packaging and stylized posturing of various
players, it is patently clear and almost universally accepted that mod-
ern-day presidents select and nominate candidates who will hopefully
uphold (and certainly not oppose) their own political values and thereby
influence American politics long after the appointing president leaves
office.14 For all her undoubted ability and intellectual competence, Elena
Kagan was not selected in spite of her Democratic leanings or because of
indifference to them, but because of them. Both sides of the political
spectrum, for good and bad, expect her to rely on her political commit-
ments in fulfilling her judicial duties. It simply beggars belief that law
professors can maintain that, once Kagan writes and delivers judgments,
she will somehow no longer be following her political convictions.
Indeed, although there is no absolute match, the available studies are
unanimous that ideological factors play an extensive role in judges’
decisions and decision-making process. While judges may well drift
over time in their ideological predispositions (and, in the process, con-
found the partisan wishes of their appointing president), there is little
13
Michael Taggart, Prolegomenon to an Intellectual History of Administrative Law in the
Twentieth Century: The Case of John Willis and Canadian Administrative Law, 43
O S G O O D E H A L L L . J. 223, 234 (footnotes omitted) (2005).
14
President Trump’s nomination of Neil Gorsuch was predictably and openly based on his
conservative approach to the judicial task. See Richard Primus (January 31, 2017). Trump
Picks Scalia 2.0. P O L I T I C O . Retrieved February 2, 2017.

doubt that these political commitments frame and direct the more
legalistic arguments of judges.15 It is not that judges ignore exclusively
‘legal’ arguments and methods, but that no such arguments and methods
are available which can be utilized or relied on in an apolitical way.
A Phenomenal Turn-Around
Someone who has occupied (and perhaps dominated) both sides of the
academic/judicial divide is Richard Posner. He is no ordinary Tom, Dick,
or Harry. By any standards, Richard Posner is a true phenomenon. If I
had not seen him in person, I would not have believed he existed or, more
accurately, I would have presumed there were at least three or more
persons out there working under the name of ‘Richard Posner’. He has
published prolifically as an academic, a judge, and a public intellectual.
His output would be extraordinary in any one of these guises alone, but it
is entirely incredible when they are all rolled into one person. However,
his fame and notoriety cannot simply be reduced to his astonishing feats
of publishing – more than 50 books, 500 articles, almost 3,000 opinions,
and countless essays and notes. As prolific as he truly is, his work is
deservedly considered original, important, influential, and, of course,
controversial. Critics can love him or hate him, but he cannot be ignored.
He brings a singular, provocative, and unmatched quality to the study of
law and its judicial performance. Like his judicial heroes, Henry Friendly
and Billings Learned Hand, he is that great and puzzling oxymoron – the
iconoclastic icon.
In his most recent work, Posner has brought together two of his
favourite themes – the failings of the judicial branch and the detachment
of the professorial ranks. It is hard not to agree with many of his shoot-
from-the-lip criticisms; he manages to skewer pretension and posturing
at all turns. So much that he says about the entrenched shortcomings of
judges and academics and their unwillingness to confront or change
them is refreshing and insightful. In particular, his recommendations
for transforming the institutional practices of both judicial decision-
making and the law school curriculum are especially trenchant and on
the mark.16 However, he overreaches himself by failing to turn his critical
lens on his own career as both academic and judge. Despite (or perhaps
15
See A L L A N C . H U T C H I N S O N , T O W A R D A N I N F O R M A L A C C O U N T O F L E G A L
I N T E R P R E T A T I O N ch. 8 (2016).
16
R I C H A R D P O S N E R , D I V E R G E N T P A T H S : T H E A C A D E M Y A N D T H E J U D I C I A R Y 74–192
and 297–344 (2016).

a p henomenal t urn-around 37
because of) his enormous contributions to both fields of endeavour, he

overlooks his own contradictory embrace of his ‘if-I-ruled-the-world
sensibility’17 as judge, academic, and judge-academic.
Unlike almost all other working judges, Posner holds little or no brief
for the way in which most of his judicial co-workers go about their
work; he considers them too secretive, too limited in focus, too stand
pat, and too backward-looking, to name but a few criticisms. Not
surprisingly, he has not endeared himself to his judicial colleagues. He
urges them to be more expansive, ambitious, and realistic in their sense
of themselves and, therefore, their performance of their responsibilities.
However, for all his realist-inspired blast at judges, he still maintains
that, although “hunch, ideology, . . . and personal experiences of various
sorts” play a part in judicial decision-making,18 it can still be done in a
relatively objective and neutral way; it is not entirely reducible to
political preference. Although he is unrelenting in his critique of form-
alism in both courts and law schools, he still clings to a pseudo-scientific
variant of this confining and confined mode of thinking. As Posner
defends it, his pragmatism has limits, albeit wide ones, which can be
found in law, not politics – the law is out there independent of the
efforts of its expositors to locate, explain, and apply it.
All that said, Posner now proposes that academics must make a con-
certed effort to abandon their arcane ‘pie-in-the-sky’ preoccupations and
turn to helping judges in their scholarship. In particular, he wants them to
offer practical tools from statistics, psychology, and other social sciences to
judges so that they can be better judges. This is all intensely ironic
as Richard Posner can lay claim to having devoted his academic career,
pre- and on the bench, to urging lawyers and judges to inform themselves
about and incorporate law-and-economics reasoning into their work. He
could rightly claim to be the preeminent scholar of his generation in
establishing a very different and interdisciplinary theoretical approach to
law and its study from an economics and broadly social science perspec-
tive. Indeed, by both reputation and results, he might be described as one
of those very ‘social science manqués’ which he targets and dismisses in his
critique of academic scholarship and inquiry.19 However, in recent years,
he has toned down his system-building claims. He now adopts a more
pragmatic approach whereby law-and-economics is utilized more as a
resource for acquiring interdisciplinary techniques which will serve judges
17 18
W I L L I A M D O M N A R S K I , R I C H A R D P O S N E R 107 (2016). Supra, note 16 at x.
19
Id. at 9.

38 d oi ng th e b us i n es s
well in their fact-finding and law-applying duties; he has abandoned his

earlier mission to scientize law so that it became ‘more precise, objective,
and systematic’.20 He is content to expand the toolbox of judges with
academically crafted instruments and to let the judges get on with their
traditional task of deciding practical disputes.
As regards my own stance on the relationship between academics and
judges, Posner seems to have started off as more of a critical-leaning
intellectual and then moved over to a more solidly traditional stance. His
earlier theoretical law-and-economics work can be fairly described as a
concerted and relatively successful effort to demonstrate that law was
lacking in theoretical rigour, but that this failure could be remedied by a
bracing and relentless application of economic theory. Although his sub-
stantive political thrust was much too conservative for my liking, he took
law and its practices to task as falling short of a defensible theory of social
justice. However, even in this incarnation, he was part of the overall
traditional project of making the law more consistent and truer to what
he saw as its deep wealth-maximization logic and foundations; he sought to
pull law up by its own normative, if hitherto unnoticed, bootstraps.21 Yet, as
he moved into the judicial phase of his career, he turned away from these
more theoretical and grander ambitions. Instead, he adopted a more prag-
matic and less doctrinaire approach to both his judicial responsibilities and
his intellectual orientation. Judge Posner became Professor Posner-lite.
Whatever else Posner’s truly unique career has achieved (and it has
deservedly done a very great deal), it drives home the importance of ‘taking
a stand’. He has unfailingly put his money where his mouth is and called law
and life very much as he sees them; this has infuriated critics and supporters
alike. However, he has also taken a stand in that the way he views the world
has been very much affected by where he was standing at the time he
formulated and aired those views. As he moved from being primarily an
academic to being primarily a judge, his opinions and approach changed. To
his pragmatic credit, he never claimed to speak from nowhere or to present
his views as part of a fixed or objective reality. Nor are his views reducible
only to the place where he was standing as judge or professor. But life and
career confirm the banal, if often ignored caution that “where you stand
often determines what you say”. In more formal terms, jurisprudential views
always arise from and within, directly or indirectly, their sustaining
20
Afterword, 1 J. L E G A L S T U D . 437 (1972).
21
For an extended evaluation of the jurisprudential footings of law-and-economics, see
A L L A N C . H U T C H I N S O N , E V O L U T I O N A N D C O M M O N L A W ch. 3 (2005).

co nclusion 39
historical and political context. It is folly to think that where Posner stood or
stands has not affected both the style and substance of his views. To think
otherwise is to commit an error of enormous proportions. By and large,
Posner has not fallen into that trap, even if others have.
Conclusion
No matter how much they try to deny or finesse it, judges and law
professors are all in the politics business. And the greater vehemence
with which they try to protest otherwise is only further evidence of their
political complicity. The most pressing task is most definitely not to purge
intellectual inquiry and debate of its inescapable politicalness – this is a
self-defeating and impossible endeavour. What divides the traditional and
critical intellectual is not whether they are engaged in a political enterprise,
but whether they accept that they are, to which political interests they are
prepared to harness their energies, and what they are prepared to do about
it. To recognize this is not the end of genuine scholarship or intellectual
inquiry as some contend; such doom-mongering is merely a further and
disabling move in the traditional law professors’ academic game.
Recognition of the inescapable political dimensions of any intellectual
pursuit is the first step in fulfilling its demands. This will not mean that
all intellectuals move to the political left (even if I would prefer them to);
there is nothing in the nature of critical scholarship, even at its most
radical, that necessarily leads to, even if it leans towards more progressive
than regressive results. Any alternative to the traditional legal project must
look to engage, not escape, those social forces and political interests which
combine to establish the prevailing economies of truth, power, and pro-
fessionalism. Tackling those head-on is the best way of ‘doing the business’.
My former colleague who was appointed to the courts likely deserved
better than my off-hand remark that “I’m not in the business of judging –
that’s your challenge, not mine.” I could have told him what to do in the
facts of the case before him, but this would not have been any kind of legal
or professional response: it would have been a political and personal one.
He was looking for some internal, objective, and coherent solution to his
doctrinal and systemic dilemma which would in some way relieve him of
responsibility for what he would decide. Of course, I would only be
offering him my particular take on the problem in line with those political
interests I hold to and seek to advance. I suppose that amounts to
‘business as usual’ for me (and him).

3
If Derrida Played Football
“Is football a matter of life and death?

No, it’s much more important than that.”
– Bill Shankly
In a candid interview in 1991, when he was 60, Jacques Derrida let the
cat out of the bag. For all his academic achievements and popular
acclaim, his abiding dream for himself remained that of his youth –
‘becoming a professional footballer’.1 In this innocent aside, Derrida
revealed as much about himself as both philosopher and person (if they
can be entirely separated) as in almost all his voluminous writings,
speeches, reviews, and interviews. How fitting, therefore, that this
passing remark should take us from the expressive margin into the
subversive heart of this man of thought and reveal him as a frustrated
man of action; the philosophical life was only a consolation for an
unfulfilled and frustrated life as sporting hero. In his dreams, Derrida
saw himself less as Parisian savant and more as a footballing Raymond
Kopa or Michel Platini.
Yet, in so many ways, so much can be learned and understood
about the Derridean oeuvre by treating its author as a footballer, as
someone who plied his trade on the fields of sporting endeavour as
well as in the classrooms and libraries of the world. Indeed, if Derrida
had played football, both philosophy and life might have been the
better for it. Not because he would have spared the world his philo-
sophical interrogations, but because he might have made even more
of an impression on the sensibilities and senses of his times. It is as a
footballer of attacking flair, not as an intellectual of defensive legend,
that I hope Derrida will be remembered best. True, it is hard to
imagine the debonair Derrida in the garishly coloured synthetic
shirt of his favourite team with a number ‘7’ and ‘Derrida’
1
G. B E N N I N G T O N , J A C Q U E S D E R R I D A 71 (1991). Of course, by ‘football’, I mean what
North Americans choose to call ‘soccer’.
40

a l l in t he ga m e 41
emblazoned on the back. But I feel a sense of genuine excitement at

the prospect of him careening down the field, tantalizing and tor-
menting the opposition in his own version of ‘the beautiful game’. I
like to think he knew that those who knew nothing of football knew
little of life (and philosophy).
All in the Game

Everyone needs a foil, someone or some style against which they can
develop and display their own talents. For Derrida, Plato and his
followers were the epitome of all that was wrong with football. Plato
wanted to find the perfect game, the game of games, the one true and
only real way to play the game, a God’s-eye view of the game. His
mission was to distinguish the necessary from the contingent, the
universal from the particular, and the conceptual from the concrete.
Plato’s belief was that there was one Game of games and one way to play
that Game. Although he talked of ‘wonder’, he was driven by the fear
that, without such an ideal possibility, the show would be over, that
anything could and would go, that all the ways of playing the game were
as good as any other way of playing the game, and that there would be
no way to criticize or approve of such ways of playing the game in any
general or objective way. As such, Plato cast a dismal shadow over the
game of philosophy, its coaching, and its performance. Derrida was
determined to change all that.
For Derrida, the problem with Plato’s approach was his failure to resist
the debilitating temptation to divide the world up into categories. To
understand and control the world, Platonists employ a set of rigid dis-
tinctions which are treated as natural and obvious, such as objective/
subjective, reason/emotion, or mind/body. Indeed, the ‘natural’ was a
particularly treasured category to be contrasted with the contrived or
constructed. This means that any coherent and cogent account of fixed
meaning and grounded knowledge must not only explain the precise and
stable relation between these oppositions, but also find a way of talking
about them which is itself precise and stable. In a signature move which
has underpinned and distracted Western thinking, philosophers claim to
do this by privileging one over the other and granting metaphysical
authority to it – objective over subjective, reason over emotion, and
mind over body. And, of course, this has had implications for what we

42 i f derrid a played football
value in people and how we go about understanding and organizing the

world. For instance, in the tradition of Western rationality, there is a
marked tendency to associate objectivity, rationality, and intellectuality
with sound thinking in contrast to a less valued emphasis on subjectivity,
emotions, and physical instinct. This has often been used to distinguish
and discriminate against women as compared to men.
To its eternal loss, much of the thinking and practice in football has
been influenced by this Platonic strategy. However, in the twentieth
century, several different approaches to the importance of games and
their relation to play have begun to assert themselves. Influenced by the
formidable insights of those German Übermenschs, Friedrich Nietzsche
(who subscribed to the “no pain, no gain” school of endeavour) and
Martin Heidegger (who never made a simple or easy pass when a more
complicated or obscure one was available), a number of European the-
orists – Ludwig Wittgenstein, Hans-Georg Gadamer, and Johan
Huizinga, to mention but a few – sought to rehabilitate the neglected
idea of ‘play’ and to reimagine football and philosophy in its suggestive
terms. Their basic line was that football, like all games, was a form of play;
games were rule-based, but they allowed for play and choice within them.
Moreover, they insisted that play was never ‘mere play’, that its signifi-
cance was not to be underrated because play, in its game and non-game
form, offered a subversive challenge to stilted values and rational styles of
understanding. At its most grandiose, these philosophical play-masters
wanted to treat all human activity as part of the Great Game of Life and
World-Play; the rules, lines, and goals were never fully established and
were actually part of the game itself. In the Nietzschean sense, history
consisted of a violent, arbitrary, and ecstatic play of forces in which
individuals are both players and playthings. In this decidedly non-
Platonic view, life was an exuberant match of dynamic proportions and
performances.
Derrida picked up on this tradition. While his work owes much to
the legacy of Friedrich Nietzsche, it neither begins nor ends with him.
In the playful spirit Derrida embodied, he worked with the tradition
as he worked against it. Although Nietzsche had found the right tree,
his barking up it did little to help his cause. Seemingly preferring
excess over moderation in all things, Nietzsche went very close to
reinforcing the hold of absolute truth by celebrating its flip-side –
nihilism. He inverted Plato and emphasized the Dionysian madness
in which there is no good or bad, only the will to power. Derrida took
up this theme that life is less a pilgrimage, as Plato thought, and more

making moves 43
a carnival, as Nietzsche suggested. But Derrida introduced a subver-

sive rigour to the Nietzschean insight and pushed in different direc-
tions. While embracing the idea that there are no objective
foundations to knowledge or living, he insisted that this did not
render all knowledge illusory, turn all truths into falsehoods, throw
all order into chaos, or reveal all objectivity as mere sham. Being a
believer in an open and fluid game, Derrida did not pin his hopes on
finding an ultimate foundation and guarantor of knowledge, truth,
and the rest. Instead, he concentrated on keeping the game going so
that different ideas of knowledge, truth, and the rest might be tried
and tested. Like great footballers, philosophers needed passion as well
as intellect; they needed to be a part of the game, not apart from it,
and they needed to pull apart the game, not follow it as if by rote.
The oft-mentioned example of the Dutch team of the 1970s with their
brand of ‘total football’ makes the point. With the extravagant talents of
Cruyff, Neskens, and others, their commitment to an attacking style of
football which had people popping up in different positions all over the
park is often heralded as the epitome of individual flair and panache. But
the truth is that, without the highest degree of discipline and organiza-
tion, such an approach would have been suicidal. Under the tutelage of
Rinus Michels, the tactics only worked because each player understood
that, while they had the freedom to roam and crop up in unexpected
places, they also had the shared responsibility to do so with a conscious-
ness of the team’s overall shape and balance: not everyone could roam or
wander at the same time or in the same way. To be as effective as they
were (and they were, reaching the World Cup Final in 1974 and 1978),
they had to have not only extraordinary individual talent, but also a
collective discipline; restraint was as important as creativity. It was not
so much a case of unrestrained chaos, but of disciplined unexpectedness –
the startling act of individual initiative within a calculated context of
collective orderliness. As played by the Dutch, this was Derrida’s decon-
structionist ambition and tactics personified.
Making Moves
An Algerian by birth, Derrida became the enfant terrible of the French
intellectual team. His views tended to polarize debate around the notion
of play and life generally. While some embraced Derrida as a sporting
guru of genius, others (particularly the stuffy English strongholds of
traditional philosophy) decried him as the worst kind of athletic poseur.

44 if derrida p layed f ootball
When Derrida was awarded an honorary degree in 1992 from Cambridge

University (and, incidentally, Cambridge United was Wittgenstein’s
favourite football team), his critics were sufficiently well-organized and
influential that he was denied this accolade. As the more intransigent
critics phrased it:
M. Derrida describes himself as a [philosopher/footballer], and his [scholar-
ship/performances] do indeed bear some marks of . . . that discipline, . . .
[but] M. Derrida’s work does not meet accepted standards of clarity and
rigour; . . . he seems to us to have come close to making a career out of what
we regard as translating into the [academic/sporting] sphere tricks and
gimmicks similar to those of the Dadaists.2
In this pompous piece of academic snobbery, there are the usual bifur-
cating motifs of inclusive and exclusive, serious and playful, and genuine
and gimmicky which Derrida spent much of his life challenging. Indeed,
this rejection makes many of the points and reveals much of the inse-
curity which his career was so cannily able to underscore. Indeed, insofar
as it is possible to claim to have threaded a way through all the nuanced
wisdom and exaggerated nonsense of his difficult fixtures, Derrida might
well be a kind of philosophical Maradona of the footballing conscious-
ness, a crazy combination of incomparable technical skills, unpredictable
temperament, and exquisite eye for the main chance who dazzles and
deconstructs with his audacious fakes and feints, mazy dribbling, and his
deadly finish. Pinning down Derrida is no less a hopeless challenge than it
was trying to mark Maradona out of the game.
For Derrida, human life and history were to be treated, like football, as
one big playground with no inherent design or natural purpose. There
have been imposed a whole set of social games which privilege certain
kinds of activities and ideas; they channel the free-play of human inter-
action, beliefs, and practices into arbitrary structures and confining
patterns. In contrast to traditional thinking, Derrida’s deconstructive
critique goes behind those hierarchical dichotomies – objective/subjec-
tive, reason/emotion, and mind/body – and shows that they have a
history; they are far from natural or obvious. Within such an approach,
play is treated not so much as irrational, but more as part of what it means
to be rational: there is no Reason for settling arguments about reason that
are not themselves part of the game of reasoning. It is less a matter of
either/or and more one of both/and.
2
Barry Smith et al., Letter, The Times (London), May 9, 1992.

making moves 45
In the Derridean playbook, the ambition is not to privilege play at the

expense of structure or to value the subjective over the objective; those who
simply want to invert the relation and privilege play over structure remain
trapped within the very Platonic system they claim to subvert and reject.
Instead, meanings are found in the ungrounded and multiple ‘play of
differences’ between the opposites.3 All understanding is interpretive and,
therefore, playful – there is no neutral or disinterested apprehension of
objective authority. Moreover, the element of play can never be repressed or
disciplined entirely: it continually reasserts itself to disrupt and reconfigure
the way in which different games are played. In seeking to express itself, play
is not pursuing some ultimate goal, but is simply opening up the game of life
so that new games, with new players, and in new moves can move in from
the margins. There is nothing beyond play but more play; there is no Game
of games which can save us or satisfy us. Nor is there any Play of plays; there
are only more and different games to play in and be played. For Derrida, life
and thinking about it is a game with no final whistle or score.
Whether playing or talking about playing, Derrida emphasized that
football puts into question all kinds of issues about the way to play the
game of life. And, of course, issues of legality, ethics, politics, and moral
judgment in each person’s life and daily social practices inform the
performance and understanding of football. In the academic jargon of
the day, football is a ‘social text’ within which are inscribed signs from
other social texts and experiences: football is a rare blend of military
battle, religious ritual, class warfare, sexual encounter, cathartic release,
and much else besides. Understood as textual artifices, football games,
although ostensibly rule-based and rule-structured activities, are never
quite or only what they seem; there is more to them than meets the eye
and what meets the eye is filtered through a host of interpretive blinkers.
Football can be treated as a social practice or performance that invites
interpretation and obtains its meaning through its production, position-
ing, and role as a cultural artefact. While it has no core or any enduring
essence, its followers make frequent appeals to some transcendent arche-
type or imagined version of the game to understand and assess its
intrinsic meaning as well as its broader import. Any understanding of
what it really means to play the game is constantly evolving and changing.
In other words, the heart of football is the inconclusive and passionate
game over what it means to play the game.
3
JACQUES DERRIDA, MARGINS OF P H I L O S O P H Y 1–28 (A. Bass trans. 1982) and P O S I T I O N S
39–49 (A. Bass trans. 1982).

46 if derrida p layed f ootball
Most importantly, Derrida was adamant that football, like all other games,
must be understood as being played out in that historical and social space
which is defined by the tension between the game as a ‘game’ and the ‘game’
as an embodiment of cultural lessons and broader messages. At different
times and in different ways, football is both a finite and infinite game or,
to put it another way, finite episodes of football take place within the
infinite possibilities of Football. In each game, there is a result and, over
the course of a season, there are winners and losers: one team is able to
claim victory over others in competitions and championships of local
and national play. Nevertheless, the broader game of football and life
continues unabated; the result in the finite occasion of a particular game
is one strategic episode whose general performance becomes open to
revision and reformulation at the very moment in which it brings to a
close that particular instance of footballing play. Accordingly, as a
cultural drama, football captures the concentrated fizz that is life itself;
football’s text is woven in and through life’s texture. In every kick, every
header, every tackle, every half, every shot, every injury, every goal,
every miss, we can see, know, understand, and give meaning not only to
‘the game’, but to our lives in all its complexity and possibility.
As Derrida showcased, football, like life, is an infinitely variable pro-
cess in which there is never any ultimate victory or performance, but only
the repeated and unrepeatable working of the space between order and
chaos, freedom and constraint, acceptance and possibility, and perma-
nence and contingency. Being a game of infinite possibilities, football
only has the present shape and style which it has because its players and
fans are largely satisfied with its present practice or are unwilling to
change it. But there is nothing about football today that should be
thought of as The Way Football Really Is. At best, it only amounts to a
contingent understanding of what it means to play the game. Efforts to
isolate and define the essence of Football are irresistible, but irresolvable.
Of course, this means that what passes for good football or play in the
future might bear little or no resemblance to its present or past under-
standing; it is not that ‘anything will go’, but that ‘anything might go’.
Moreover, what counts as good football will depend upon what people are
persuaded temporarily to accept as a proper or appropriate way to play the
game: it is a matter of social fact and popular persuasion, not official edict
and technical analysis. As an activity which is always beyond absolute
determination and never fully finished, football not only passively allows,
but also actively encourages transformative and disruptive acts because,
without them, the game risks paralysis and irrelevance. As another French

rebel w ith a cause 47
sage rather opaquely put it, “the novelty of the unexpected ‘move’ . . . can
supply the system with that increased performativity it forever demands
and consumes”.4 And Derrida was a past master at the novel and unex-
pected. Like the best of footballers, he was at his most dangerous and
effective when he seemed to be most contained and controlled. It was his
ability to conjure up the mysterious out of the familiar (as much as the
familiar out of the mysterious) that was his calling card. Yet he knew that
too much of the unpredictable was predictable and so he could do the
expected in an entirely exceptional way.
Rebel with a Cause

The quality of greatness, in footballing or philosophizing, is never fixed; it
is a contingent and contested notion. All great players not only possess
special qualities, but also put their unique spin on what counts as great.
What it means to be a great player is part of the infinite and contingent
game over what it means to play the game. The hallmark of great players
is not simply their ability to beat everyone at their own game: it is the
capacity to envision and dictate a different game to be played. Greatness
is found in the inestimable genius to improvise, experiment with, and
transform conventional standards for playing law’s infinite game. For
such artists (because that is what they are), the best accolades are earned
not for their technical prowess, but their capacity to reveal possibilities
the rest of the football community have not even seen or thought
possible. By making novel moves, they play the game of football and
life as much by playing with the game as playing within it. At its most
audacious, this style of play demands an almost dare-devilish approach,
not only a willingness to chance spectacular failure, but also the courage
to court it in the pursuit of the greater glory of the game itself; it is a
precarious and potent recipe for greatness which only a few can even
aspire to, let alone successfully achieve. In short, they are great players in
and on their own terms; they surpass existing standards as they transgress
and transform them. By my reckoning, Derrida was not only a great
player, but also a great player at the game of defining greatness.
Of course, Derrida owes some of the mystique which surrounds his
work to its opaque, obscure, and, frankly, often incomprehensible nature;
he was an enigmatic player who managed to be both conservative and
4
J-F L Y O T A R D , T H E P O S T M O D E R N C O N D I T I O N : A R E P O R T O N K N O W L E D G E 15 (1984).
See also J - F L Y O T A R D A N D J- L T H E B A U D , J U S T G A M I N G 28, 43 (1985).

48 i f der r i da p l ay ed f ootb all
revolutionary as well as backward-looking and non-traditional. Yet, for all

that, his style of play had the mark of greatness in it. Indeed, much in
Derrida’s performance resonates with the artistry and career of Maradona.
Like Maradona, Derrida was his own player and played his own game and
controversy seemed likely to follow him wherever he went; he had good
games and bad games. His skills were extravagant and his global effect on
the world could not be ignored in his relatively short career. However,
perhaps the one modern player who best epitomizes the style and achieve-
ment of Derrida is his fellow Frenchman Eric Cantona. While playing in
and against some of the most established teams, they both took on some-
thing of the role of the ‘outsider’. In this, they both resembled Camus’
eponymous rebel, the outsider Meursault, who refused to submit to con-
ditions and circumstances that stifle humanity and deprive them of their
justified and rebellious destiny: “rebellion cannot exist without the feeling
that somewhere, in some way, you are justified”.5
A self-styled Gaelic savant, Cantona cultivated the weighty persona of
the outsider and bad boy. In a career arc which had equal measure of
footballing genius and disciplinary transgression, philosopher-king Eric
played football like he played life: he was unpredictably talented and
talentedly unpredictable. He built up a moody reputation which served
him well in his dealings with defenders on the field as well as his
detractors off it. Such was his skill at surrounding himself with mystery
that he was able to get away with the obvious and straightforward as if he
had done the most unexpected and feigned of moves. For some, his
demeanour was more psychotic than philosophic, his displays of footbal-
ling virtuosity more artifice than art, and his petulance more definitive
than distracting. Nevertheless, his influence on the English game is surely
undisputed; he introduced a continental element to the English style of
play whose transformative effect is likely to continue for decades to come.
Yet, like Derrida’s, Cantona’s career was haunted by a notorious incident
which both blighted and blessed his reputation.
After being sent off in a league game against the delightfully named
Crystal Palace, Cantona dived into the stands feet first to attack a racially
abusive fan. He was duly suspended from playing for six months and
received a conditional criminal sentence for assault. In responding to a
barrage of media attention, Cantona was asked whether it was important
5
A. C A M U S , T H E O U T S I D E R 19 (J. Laredo trans. 1982). Sadly, Maradona will be remem-
bered as much for his disputed ‘Hand of God’ goal in the World Cup encounter with
England in 1986 and his banishment from the sport for drug use as for his unique talent.
While Derrida had his moments, they were more ill-judged than illicit.

r e b el wi t h a c a u s e 49
for players to set an example to youngsters. His reply was characteristi-

cally direct and controversial:
I think that one should stop treating the heart and soul of youngsters as
clay to be modeled in whatever fashion you like. I am not there to educate
anyone; I don’t see that as my role. They should be able to work things out
for themselves. Children go where they find sincerity and authenticity. In
my way of working, of carrying out my career, I don’t betray anybody and
they know it. I don’t consider that it would be better to teach them to deny
their own emotions for the benefit of the established order. Is it in
teaching people to be submissive that they become adult citizens?6
There is much here to ponder á la Derrida. It seems optimistic, at best, to

think that kids ‘work things out for themselves’ and that they ‘go where
they find sincerity and authenticity’. Indeed, the identity and antics of
contemporary football celebrities do little to support such a claim.
However, there is much that is good in Cantona’s views. Contrary to
conventional views, education is often seen as an occasion to inculcate
dominant values and ideas; it is less about opening up young people’s
minds than keeping them tightly shut. Although Cantona is not advocating
that everyone should go around attacking and kicking everyone who says
something which you do not like, he is stressing that obedience to the
established order is not always the best course of civic action. Of course,
you have to be prepared to take the consequences of what you do and for
what you believe, but the responsibilities of citizenship are best met by
holding up society to its own cherished ideals, by pointing out any shortfalls,
and by sticking to your own principles when the going gets tough. In putting
authenticity over submission, Cantona acted in a virtuous and honest way.
Although many disagree with what he considered a defensible moral code,
they should not contest his sense of honour. Cantona, like Socrates, deemed
it important to be true to himself, almost whatever the consequences.
Similarly, Derrida made a principled, if ill-judged intervention in a
festering incident which provided fuel to the self-righteous fire of his
would-be detractors. In the late 1980s, Derrida came to the defence of his
long-time friend and teammate Paul de Man. In 1988, five years after his
death, the literary critic Paul de Man was outed as a Nazi or, at least, as a
Nazi sympathizer. In particular, while living in Belgium, he had written a
commissioned essay in 1940 for the pro-Nazi newspaper Le Soir. In it, de
Man had observed that “one can thus see that a solution to the Jewish
problem that would lead to the creation of a Jewish colony isolated from
6
Eric Cantona, My Philosophy in N O T J U S T A G A M E 65 (S. Kelly ed., 1995).

50 if derri da played football
Europe would not have, for the literary life of the West, regrettable con-
sequences”. The Jewish Derrida stood by de Man and offered a decon-
structive defence intended to demonstrate that de Man was not actually
saying anything bad about the Jews. While Derrida’s valorous act of friend-
ship was commendable, his political discretion was lacking. For some, he
seemed to expose the duplicitous quality of much deconstructive work by
demonstrating how its interpretive techniques could be used almost at will
to render the meaning of texts non-sensible and to defend the indefensible.
However, for the less judgmental and ill-disposed, Derrida offered a gallant
and very real act of loyalty which put his whole conventional reputation at
risk for the sake of an important personal commitment. It was the legend-
ary stuff of hermeneutical opacity and heroic naïveté.
Beneath the theatrical snarls and Gallic shrugs, both Cantona and
Derrida sought to embody an authentic responsibility to rebel against
the very system which gave them their privileged and, in some quarters,
adored status. In a world of convenient values and even more expedient
justifications, they each took a stand which characterized as it threatened
their whole legacy: they were prepared to be counted as more than deft
performers and to stake their claims for a better world. Justice might
always be deferred and elusive as a general virtue, but it could be estab-
lished, however contingently and conditionally, by an impassioned blow
against tyrannical resignation. While each may have acted rashly, they
brought attention to the moral force of probity in a hypocritical world.
And took a kick at it as an act of courage, not cowardice or complicity.
Indeed, there was an authenticity to Cantona and Derrida which Camus
would have admired, even if somewhat conditionally. They knew how
they wanted to play the game in life and in football. Neither was prepared
to play by others’ rules – victory was less important than integrity. Never
beyond interpretation, Cantona’s and Derrida’s interventions were also
interpretive gauntlets thrown down to the pusillanimous ranks of the
chattering classes. They both left the game richer for their participation
and more attuned to its own possibilities for renewal. Harnessing vision
and inventiveness, they grasped that greatness was found in oneself,
especially in the act of having the courage of one’s convictions.
Final Kick
For all the huff and puff of his lengthy career, Derrida knew that football, no
matter how well or wonderfully played, can never attain that cherished
independence from contingent considerations; what it means to play the

f i n a l ki c k 51
game is destined to be born and die, flourish or perish in the hands of

historical circumstance. However, like few before (or after him?), Derrida
profoundly appreciated that and sought to impress its inevitable force on
others. He grasped that the most important contribution he could make was
most definitely not to bring the competing games of life to a stop so that we
can fix and settle upon what it means to play the game of LIFE for all time
and in all places. Instead, he committed himself to inspiring all those who
played with him or participated vicariously through him that the best way to
play the game is to do so with abandon and commitment. If the accumulated
performances of his career add up to anything, it is that life’s challenge is not
to bring the game to a close, but to keep it going with all the freshness and
diversity which can be mustered. Matches and seasons end, players come
and go – some more tragically than others – but the game lives on, unending
and unsullied in its possibilities to tease, to thrill, and occasionally to redeem.
It is sport as life and life as sport in which, as the old poem says, triumph and
disaster impost forever.
In 1991, one fan of the beautiful game made a pessimistic assessment of
football. He said that “in the world we live in, if you put it terms of a football
game, the dark side is 3–0 up and it’s half-time. I can’t accept that this is the
way it’s gotta be.” And Derrida assures us that it doesn’t have to be. We must
remember that we tend to get the world we deserve as much as the world we
want. However, we must also not forget that we can change that world;
things only end up as they are not because it is meant to be that way, but
because we have not yet got around to changing them. It is always half-time
in that there is always at least another 45 minutes to play in which anything
is possible, even if it does not always work out the way we hope it will or
expect. But, sometimes, the dark side is vanquished. On a cold December
Saturday in 1957, Charlton Athletic were down to 10 men and losing 5–1
against Huddersfield Town, with only 20 minutes left to play. Undaunted,
Charlton battled back and pulled off one of the great comebacks of all time.
Led by Johnny Summers’ five goals, they went on to win the game 7–6. The
example of that humble Charlton side should give hope to all of us. It’s never
over until it’s over. And that’s the case whether the large lady has sung or
not. Whether we like it or not and whether we choose to or not, there is no
way not to be in the game of what it means to play the game. Jacques Derrida
is a philosophical Johnny Summers for the ages.

4
Hurly-Berle: Corporate Governance

and Democracy
Few books have been as influential or as misread as Adolf Berle and

Gardiner Means’ The Modern Corporation and Private Property.1
Although much has been done in its name and under its auspices, its
deeper critique and proposals for change have been ignored. Although
Berle and Means intended to redirect the governance of corporate
affairs away from furthering private cupidity and towards advancing
public policy, their ideas have been put to use by those who wish to
legitimize private cupidity by equating it with the development of
public policy. This is not only unfortunate, but also unnecessary.
Although The Modern Corporation forms the bedrock of the prevailing
paradigm in corporate law and governance, it also contains some very
suggestive materials from which to construct an alternative and more
democratic way of proceeding which actually subverts and transforms
the established model. Consequently, if this celebrated volume is to
remain relevant to contemporary ideas and practice, it must do so as a
conceptual corrective to, not as a traditional prop for the prevailing
paradigm of corporate governance. What counts as ‘good corporate
governance’ must be rethought and reconstructed from the conceptual
ground up. In particular, I propose moving beyond the traditional
evaluative focus of economic success to a more inclusive and demo-
cratic standard of social well-being.
The time has come to effect a re-visioning of The Modern Corporation.
After setting out the book, I will look to the shifts in corporate history
since 1932 and explore the basic inadequacy of the traditional Berle and
Means paradigm of corporate governance. After offering a different and
more democratic-inspired reading of The Modern Corporation, I
1
ADOLF A. BERLE JR. AND GARDINER C. MEANS, THE MODERN CORPORATION AND PRIVATE PROPERTY
(Harcourt, Brace & World rev. ed., 1968) (1932). Hereinafter page references are in the text
in parentheses.
52

1 9 3 2 a n d al l t h a t 53
examine how it might be feasible to move from the present situation of

corpocracy to a future milieu of democracy. Finally, I lay out the main
features of a democratic agenda for reforming corporate governance.
Throughout this chapter, the emphasis is on capturing the suggestive
possibilities of a democratic approach rather than laying down a dog-
matic program for changes in corporate governance models. I take
seriously the idea that “the Berle-Means corporation . . . is an adaptation,
not a necessity”.2
1932 and All That

The eighty-fifth anniversary of the 1932 publication of Adolf A. Berle and
Gardiner C. Means’ The Modern Corporation and Private Property passed
without too much notice. This classic work is universally acknowledged
as one of law’s undisputed canonical texts. While it has aptly been
described as “arguably the most influential book in U.S. business his-
tory”,3 its importance is not merely as a historical curiosity; it has
remained a mainstay of corporate law and scholarship up to the present
day. While the book’s detailed analysis of corporate governance and the
particulars of its reform proposals have become less important over time,
it still exerts extensive conceptual influence. The fact that the book is no
longer referenced as frequently is less an indication of its dated quality
and more a testament to its foundational status. Indeed, it would be no
exaggeration to report that, as befits a book of its stature, The Modern
Corporation continues to provide the general intellectual framework
within which much traditional thinking about corporate governance in
both law and business takes place. This is true for the status quo’s
defenders as well as its detractors. Therefore, any serious effort to
appreciate, let alone transform, the theory and practice of contemporary
corporate governance must pay close and critical attention to The
Modern Corporation.
2
MARK J. ROE, STRONG MANAGERS, WEAK OWNERS: THE POLITICAL ROOTS OF AMERICAN CORPORATE
FINANCE 287 (1994).
3
Peter F. Drucker, Reckoning with the Pension Fund Revolution, 69 HARV. BUS. REV. 106, 114
(1991). In a similar vein, it has been said that “[n]o field of American law has ever been so
totally dominated by one work as the corporation law area has been by the Berle and
Means classic”. Henry G. Manne, Intellectual Styles and the Evolution of American
Corporate Law in ECONOMIC IMPERIALISM: THE ECONOMIC APPROACH APPLIED OUTSIDE THE
FIELD OF ECONOMICS 219, 223 (Gerard Radnitzky and Peter Bernholz eds., 1987).

54 h u r l y - b e r l e: c o r p o r a t e g o v e r n a n c e an d d e m o c r a c y
Although Berle and Means’ work had a prescient quality to it, The
Modern Corporation was very much a product of the 1920s. Along
with a rise in economic development and prosperity, there was a shift
in production from small businesses to huge conglomerates; the
accumulation of vast fortunes and the concentration of corporate
power in elite hands were hallmarks of the period. Culminating in
the stock market crash of 1929 and the Great Depression, this era of
unfettered capitalism was beginning to collapse under its own bur-
geoning weight and the juggernaut of corporate power was being
more closely scrutinized. In what began as a research project for the
Social Science Research Council of America, Columbia law professor
Berle sought out an economist with a statistical bent to work with
him to produce a more empirical and technical understanding of
corporate development; he was paired up with Gardiner C. Means.
Their unusual collaboration sought to appreciate the corporation as a
social institution as well as an economic organization. This huge
undertaking was projected to be ‘the work of a lifetime’. The
Modern Corporation was to be the opening volume “intended pri-
marily to break ground on the relation which corporations bear to
property” (xli). As such, it was meant to be the first, not the last word
on the corporation.
Means’ extensive mapping of the contemporary corporate terrain was
novel and revealing. In an examination of the 200 largest non-financial
corporations in 1929, he found that in only 11 per cent of the firms did
the largest owner hold a majority of the firm’s shares. Further, establish-
ing ownership of 20 per cent of the stock as a threshold minimum for
control, it was discovered that 44 per cent of those firms had no indivi-
dual who owned that much of the stock. These 88 firms, which were
classified as management controlled, also accounted for 58 per cent of the
total assets held among the top 200 corporations. As analysed by both
Berle and Means, the upshot of these statistical insights was that there
were two significant and pressing features to be addressed – the growing
concentration of power within a relatively small number of large cor-
porations and the increasing dispersal of stock ownership resulting in a
widening gulf between share ownership and executive control within
those corporations. While each trend was important in itself, their
combination persuaded Berle and Means that a corporate revolution
had occurred and that a new frame of reference was required to deal
with its legal and social ramifications. Although the fact of growing and
concentrated corporate power provided the informing backdrop, the

1 9 3 2 a n d al l t h a t 55
major thrust of their report was the struggle to come to terms with the
separation of ownership and control.
In examining the organizational implications of the historical shift
from family-owned firms to large, widely held corporations with
separation of ownership and control, Berle and Means insisted quite
straightforwardly that corporations ought to be run by the management
whose powers were to be held in trust for stockholders as the sole
beneficiaries of the corporate enterprise. As the separation widened,
they worried about ‘the concentration of economic power’ creating
‘empires’ which permit ‘a new form of absolutism’ to be exercised by
‘the new princes’ and ‘economic autocrats’ of controlling management
(116). In an arresting phrase, they noted that “a Machiavelli writing
today would have very little interest in princes, and every interest in the
Standard Oil Company of Indiana”.4 Indeed, so concerned were they
about the power of management, they compared the board of directors
to ‘a communist committee of commissars’ and cast the director as
someone who “more nearly resembles the communist in mode of
thought than he does the protagonist of private property” (245). In
combating such disturbing consequences of the historical shift, Berle
and Means maintained that the primary role of corporate law was to
ensure that “all powers granted to a corporation or to the management
of a corporation, or to any group within the corporation, . . . are
necessarily and at all times exercisable only for the ratable benefit of
all the shareholders” (220). Because it is the liquidity of their property,
not their involvement in the corporation’s management, which most
concerns shareholders, corporate law could rightly arrogate to itself the
task of acting as general overseer of management and subscribe to the
commitment that “a corporation should be run for the benefit of its
owners, the stockholders” (293).
For Berle and Means, therefore, the task was to work out how best to
shape corporate law so that it could respond effectively and efficiently to
the operational consequences of the divide between diffuse owners and
self-serving managers. Put more bluntly, their main focus was on ensur-
ing that managers do not ignore the absentee owners and line their own
pockets at the expense of the shareholders. Although retaining a con-
tinuing, if partial faith in the market to discipline management and to
4
Adolf A. Berle Jr. and Gardiner C. Means, Corporations and the Public Investor, 20 AM.
ECON. REV. 54, 71 (1930).

protect shareholders’ expectations, they pinned their reform hopes on

judicial intervention to discipline managers in the name of shareholder
confidence. With varying degrees of success, this was to be achieved by
mandating the primacy of shareholder voting in all-important corporate
decisions and the imposition of fiduciary duties on management (i.e.,
demanding that managers place the corporation’s interests ahead of their
own). In effect, they gambled on the willingness and suitability of courts
to fashion and police a series of strict and equitable obligations such that
“corporation law becomes in substance a branch of the law of
trusts” (242).
The main legacy of The Modern Corporation, therefore, is Berle and
Means’ framing of the ownership/control problem as the central dynamic
of corporate law and organization. More than 80 years later, this remains
the fundamental and taken-for-granted framework within which con-
temporary thinking occurs. But their reform proposals have been seen as
something of ‘a policy relic’.5 Their reform proposals failed because they
could not or would not move beyond the ‘private property’ logic of the
traditional paradigm; profit maximization and the protection of share-
holders’ ownership entitlements were still the order of the day. Their
support for governmental and judicial intervention was premised on the
limitation that these official agencies would act as public surrogates for
private shareholders’ control. In anointing managers as the ‘princes of
industry’(26) and recommending that they must serve the community as
a whole by ordering their affairs “on the basis of public policy rather than
private cupidity” (313), there was the distinct whiff of noblesse oblige
around even relatively liberal boardrooms in matters of corporate gov-
ernance. Indeed, with their commitment to the idea that shareholders are
‘the owners of the corporation’, Berle and Means offer a lament for the
lost ‘active’ shareholder who is left with ‘a mere symbol of owner-
ship’ (65).
After all, the book’s full title is The Modern Corporation and Private
Property. For Berle and Means, a private property regime provides the
5
William W. Bratton, Berle and Means Reconsidered at the Century’s Turn, 26 J. CORP. L.
737, 739 (2001). Many democratic critics echoed Berle and Means’ concerns about the
owner–manager divide. See generally JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM, AND
DEMOCRACY (1942); Seymour Martin Lipset, Introduction in ROBERT MICHELS, POLITICAL
PARTIES 15–39 (1962). Not all saw the disjuncture as problematic, but viewed the greater
dispersal of capital as a harbinger of ‘people’s capitalism’ and greater democracy. See
generally Mark S. Mizruchi, Berle and Means Revisited: The Governance and Power of
Large U.S. Corporations, 33 THEORY & SOC’Y 579 (2004).

chro nicle of a n end foreto ld 57
best incentive to ensure that property is used efficiently because “the

quest for profits will spur the owner of industrial property to its effective
use” (9). Accordingly, the central thrust of Berle and Means’ reform
proposals was to close the gap between owners and management as
much as the legal imposition of equitable duties can do so as to
approximate the ideal situation of owner-managers. Theirs was less of
a break with the tradition of ‘shareholder primacy’ and more of a
continuance of it. There may well have been a ‘corporate revolution’
by 1932, but Berle and Means were far from revolutionary in their
response.
Chronicle of an End Foretold

Much has changed since 1932 in the world of capitalist economies and
corporate organization. If the forces of ‘concentration’ and ‘separation’
were in play in Berle and Means’ day, they have been supplemented by
others – institutional investors, mutual funds, takeovers and mergers,
financial entrepreneurship, and the like – and become even more
powerful and relentless today. Yet, despite (and even perhaps because
of) the crisis of 2008, Berle and Means’ account of the problem to be
solved still informs most corporate law thinking. Almost all scholars
and commentators are still in the grip of a traditional mind-set in which
the interests of shareholders are paramount; shareholder primacy
remains the guiding light of corporate law and scholarship. What has
changed over the past 85 years or so is that there have been varied and
umpteen efforts to explain and rationalize this informing mandate so
that it can have the largest possible claim to normative legitimacy.
Along with a continuing reliance on the ‘private property’ rationale,
contemporary theorists rely on three other dominant arguments to
explain and support the continued reliance on shareholder primacy as
the preferred rationale for corporate law and governance; they are
market discipline, social wealth, and shareholder democracy. Each of
these arguments is deeply flawed and unconvincing.
A Property Ownership
The defence of shareholder primacy that runs most directly from Berle
and Means’ ideas is the claim that those who own the corporation are
entitled to have the corporation operate in their interests and receive any
resulting profits. While this defence still has its supporters, it has lost

much of its argumentative appeal.6 The private property rationale mis-

construes both the particular import of owning shares in a corporation
and the general consequences of property ownership. While there can be
little doubt that shareholders have property rights over shares, which can
traditionally be treated as ownership, it does not mean that they, there-
fore, have similar ownership rights over the corporation. For instance,
while owning a lottery ticket gives certain traditional property rights (e.g.,
to destroy it or give it to someone else), it does not mean that the ticket
buyer is a part owner of the lottery. While shareholders have various
rights of ‘ownership’ (e.g., to sell stock, vote proxies, sue directors, receive
certain information, get residual pay-outs from a corporation’s liquida-
tion), it is not convincing to assert that shareholders own the corporation
in the same way in which people own their cars or houses. Moreover,
even if it is conceded that shareholders are to be treated as the owners of
the corporation, it by no means follows that they are entitled by virtue of
that status to have the corporation run entirely in their sole interests.
Whatever property ownership was originally considered to entail, the
claims of property owners are no longer envisaged or enforced as if
they were unreserved and trumped all other competing claims and
interests. The rights of property owners are fundamental, but not
absolute.7
The private property argument begs the very question it is intended to
answer. In a democracy, private property has its important place, but it is
not the foundational source of all other rights and no longer the right
against which all other claims are to be measured. Corporate law itself is
chock-full of examples which contradict the stark idea that shareholders
own the corporation – shareholders can be restricted as to whom they sell
their shares, how they vote for management, when they must offer to buy
others’ shares, etc. Furthermore, in an economy of relatively diffuse
shareholding, many shareholders are decidedly passive by preference
and have no interest in being involved in the management of the cor-
porations in which they invest; the self-image of the average investor is
not one of corporate owner. Accordingly, corporate shareholding does
not comprise a black-and-white set of fixed entitlements, but is a colour-
ful, shaded, and dynamic process: property ownership is a matter of
6
See, for example, Lucian Bebchuk, The Case for Increasing Shareholder Power, 118 HARV. L.
REV. 833 (2005).
7
See SAMUEL BOWLES AND HERBERT GINTIS, DEMOCRACY AND CAPITALISM: PROPERTY, COMMUNITY,
AND THE CONTRADICTIONS OF MODERN SOCIAL THOUGHT, at xi (1986).

social calculation in which individual interests are measured with and

against other people’s interests.8 As the state creates and gives legal
identity to corporations, it is for the state or the public to determine
who gets ownership over it and what that ownership entails. As such, the
ownership of a share will not convey any necessary rights on its owner
nor will it necessarily amount to ownership of the corporation from
which the shares arise. As with all property ownership, shareholding
will consist of a bundle of rights whose content and extent will not be a
natural given, but will vary over time and across contexts.
B Market Discipline
The most sweeping modern defence of shareholder primacy comes from
economics scholars. The world of corporate governance is considered an
informal institutional venue for self-interested and motivated entrepre-
neurs to enter a series of consensual deals to advance their own private
economic interests. Although the market is far from ideal or even optimal
in its operations, it is touted as the preferred or least-worst alternative
through which to coordinate productive endeavours and meet the mixed
needs of its participants. From such a standpoint, the public regulation of
corporate governance is considered merely facilitative rather than direc-
tive. Corporate actors are to be left to exercise their private discretion in
determining what is best for particular corporations and, by virtue of
that, the public interest: the market will fill the gaps and exact a penalty
on the deviant few who engage in dubious activities and unreasonable
practices.9 This competitive market behaviour is supposed to solve the
separation of ownership and control by a variety of disciplinary devices –
minimizing agency costs (i.e., keeping managers in line with shareholder
interests), containing the ever-present threat of takeovers, responding to
competition among firms for successful managers, monitoring share
prices in the stock market, etc. Corporate law clearly favours the interests
of shareholders over others because shareholders are more vulnerable;
they are less able to find alternative outlets in the market for their
services. Because they risk all their equity in the corporation’s ventures,
they warrant greater protection by being beneficiaries of the directors’
fiduciary duty over the fate of the corporation.
8
Jeremy Waldron, Property Law in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 3, 7
(Dennis Patterson ed., 1999).
9
See, for example, FRANK H. EASTERBROOK AND DANIEL R. FISCHEL, THE ECONOMIC STRUCTURE OF
CORPORATE LAW 31–34 (1991).

The confidence placed in the capacity of market forces to fulfil these

onerous responsibilities is extravagant and entirely suspect. The ‘great
tragedy’ of economics is that it is one more beautiful theory brought to its
knees by ugly facts – it is reductionist in its insistence in viewing all social
conduct in terms of market behaviour; it manages, by giving everything a
monetary value, to overvalue and undervalue much of human interac-
tion; its leading concepts (voluntariness, transaction costs, etc.) are
theoretically vague and practically indeterminate; it is ethically bankrupt
in that it takes all personal preferences at face value and refuses to
distinguish among them; it is self-serving in that it treats all personal
preferences as independent of the social or market system in which they
are generated and satisfied; it ignores the distinction between willingness
to pay and ability to pay; and it celebrates individual autonomy over
communal attachment.10
Any plausibility the market has as a disciplinary technique through
which to advance the larger public good is confounded by the sheer size
and influence of today’s corporations. These massive institutions begin to
serve their own interests at the expense of everyone else’s and distort
rather than personify the entrepreneurial spirit of a market economy.
Even Berle and Means accepted this, although they were not prepared to
act fully on it. Accordingly, although many scholars preach the gospel of
free markets, the cruel irony is that corporations are one of the greatest
threats to the operation of free markets: competition is attenuated and
limited to a few large players. As such, corporations have become super-
citizens with enormous powers and influence that rival those of the state
and the latter-day church, but with much less popular legitimacy and
social accountability. Rather than be the justificatory underwriter of
corporate institutions and enterprise, the validating operation of today’s
market is effectively hobbled by the continuing involvement of today’s
mega-corporations.
C Social Benefit
A third justification for shareholder primacy is that it is the best way to
ensure that corporations work to the benefit of everyone in society: it is
an “on a rising tide, all boats will rise” defence. Although it might appear
paradoxical, it is argued that, even though interests of shareholders
10
See Robert Ashford, The Socio-economic Foundation of Corporate Law and Corporate
Social Responsibility, 76 TUL. L. REV. 1187, 1198 (2002).

deserve no greater weight in this social calculus than those of any other
members of society, there is “as a consequence of both logic and experi-
ence, . . . convergence on a consensus that the best means to this end . . . is
to make corporate managers strongly accountable to shareholder inter-
ests and, at least in direct terms, only to those interests”.11 In short, it is
contended that the more wealth generated in a society, the better off or
more satisfied the whole of society will be. By holding corporate powers
in trust for shareholders, it will be the same as holding corporate powers
in trust for the entire community: any efforts (and this is proportionately
true for the efforts of corporations) which contribute to the increased
wealth of a society are to be applauded. In short, maximizing profits and
increasing share prices will not only benefit everyone, but also corporate
profit-making and social service, far from being at odds with each other,
can be understood as mutually reinforcing aspects of the same enterprise.
Despite its ingenious nature, this ‘rising tide’ defence of the desirability
of prioritizing the pursuit of corporate profits in the social scheme of
things is as unconvincing on second look as it is on first glance: it is
unsupported by ‘logic’ and no evidence of ‘experience’ is offered. There is
surely no reason to accept at face value that, if a corporation declares
profits of $1 million, social wealth is increased whether that profit is all
distributed to one person, shared among the shareholders at large, spread
among the various stakeholders, or distributed evenly across society.
Economic growth will not in itself ensure that a society’s economic
health, let alone its broader democratic or social health, is rude or
improving. Indeed, many small boats are sinking or capsizing in this
economic flow.12 Accordingly, while a society’s overall economic growth
is important and telling, it is not the sole or most important indicator of a
society’s general condition and improvement. That being the case, there
is no self-evident reason to accept that an increase in its GDP is, without
more, a consistent or convincing indication that a society is better off.
Indeed, an increasing GDP may actually exacerbate social divisions.
While an increase might be better than a decrease, the circumstances of
the increase or decrease and the distribution of those gains or losses will
need to be measured against a broader and less exclusively economic
standard. If some smaller or less sturdy boats sink before the increasing
11
Henry Hansmann and Reinier Kraakman, The End of History for Corporate Law, 89 Geo.
L. J. 439 at 441 (2001).
12
BRANKO MILANOVIC, WORLDS APART: MEASURING INTERNATIONAL AND GLOBAL INEQUALITY 116–19
(2005). For instance, the financial wealth of the top 1 per cent of U.S. households exceeds
the combined wealth of the bottom 95 per cent.

tide, then that is the price of progress. But this response seems crass, at
best, because it is difficult to take satisfaction in society’s overall increased
wealth if people in that society still live in relative poverty and
destitution.13
D Shareholder Democracy
The final rationale for shareholder primacy is that it actually facilitates
the achievement of democratic control over corporate activities and
governance. The basic assertion is that, whatever the historical record
suggests, the present distribution of shareholding is so diffuse and exten-
sive that large corporations are actually controlled by society at large. In
the early 2000s, more Americans owned stock than ever before (at
around 60 per cent) and the United States had one of the most widely
held corporate economies in the world (with only about 20 per cent of
corporations owned or controlled by a single shareholder).14 Moreover,
this situation was enhanced by the increasing role of institutional share-
holders, like mutual funds and pension funds, which supposedly enabled
investors to exert their aggregated influence in a more effective manner.
However, even at this time, the ownership of stocks, direct and indirect,
was heavily skewed – the bottom 75 per cent of households owned less
than 15 per cent of all stock, barely 33 per cent held more than $5,000 in
stock, and almost 50 per cent own no stock at all.15 Today, the statistics
are much less reassuring – only 55 per cent in total are invested in stocks,
but this figure goes down to 21 per cent for those who earn less than
$30,000; those who earn more than $75,000 dominate ownership.
This is all very soft ground on which to support the claim that ‘share-
holder democracy’ is alive and well. Not only does the unequal distribu-
tion of share ownership fatally impair such claims, but the fact that most
of these investors remain passive also does little to bolster them. Indeed,
the incidence of institutional investment has actually exacerbated
the divide between ownership and control. Even greater power is
13
For a broader discussion of economic inequality, see infra, ch. 6.
14
See Rafael La Porta et al., Corporate Ownership Around the World, 54 J. FIN. 471 at 492
(1999). Some have gone so far as to suggest that plutocratic rule is at an end and that the
age of ‘pension fund socialism’ is now upon us. PETER F. DRUCKER, THE UNSEEN REVOLUTION:
HOW PENSION FUND SOCIALISM CAME TO AMERICA 205 (1976).
15
See, for example, David Callahan, The Myth of the Populist Stock Market, CHRISTIAN
SCIENCE MONITOR, January 8, 2004, www.csmonitor.com/2004/0108/p09s01-coop
.html. See Justin McCarthy, Little Change in Percentage of Americans Who Own
Stocks, GALLUP ECONOMY, April 22, 2015, online.

b a c k t o t he f u t u r e 63
concentrated in a small cadre of investing professionals who have enor-

mous control over the market and seem intent on exercising it to align
themselves closer to management so as to obtain further business and
advance their own interests. Not surprisingly, the advancement of private
interests has been the primary goal of institutional investors; the public
interest has taken a distinct second place or has been reduced to much the
same as the aggregate maximization of private interest. There is, at best, a
faux-democracy at work in contemporary corporate governance.
Back to the Future

Accordingly, already well into the twenty-first century, society’s most
important and influential institution remains decidedly Victorian, if not
occasionally feudal in its orientation and organization. A small, unrepre-
sentative elite of controlling shareholders, directors, and management
effect a command-and-control regimen over the lives and fates of count-
less people. As such, after a run of more than 150 years, the basic model
for corporate regulation is in need of serious revision. The time has come
to effect a complete rethinking of our fundamental theories about and
expectations of corporations in modern Western industrialized society.
As in mid-nineteenth-century England, it is now imperative to bring
about a massive transformation in the structure, organization, and out-
look of large corporations.16
Up to the 1860s, there was the First Age of corporations in which they
began life as state-sponsored enterprises to support the schemes and
ambitions of fledgling nation-states in commerce and colonization.
Between the 1860s and today, there has been the Second Age of corpora-
tions as private-controlled agencies for wealth accumulation and tech-
nological innovation. Giving birth to robber barons, corporate raiders,
and dotcom billionaires, private corporations have become more global
and only a little less exploitative in their operations than the state-
directed agencies of old. There is now the need and, as importantly, the
possibility for the emergence of a new paradigm for the corporation. The
move away from a private conception of corporate life to a more public
vision of corporations need not be a misconceived return to the pre-1860
understanding of corporations as delegated centres of state power. The
16
For contrasting histories of the modern corporation, see JOHN MICKLETHWAIT AND ADRIAN
WOOLRIDGE, THE COMPANY: A SHORT HISTORY OF A REVOLUTIONARY IDEA (2003) and JOEL BAKEN,
THE CORPORATION: THE PATHOLOGICAL PURSUIT OF PROFIT AND POWER (2004).

new age of corporations must be one in which these vital organizations

are treated as vibrant and democracy-enhancing vehicles for public and
private benefit. Within such a newly emerging sensibility and milieu, the
power and prestige of corporations can be harnessed to the realization of
a more democratic society generally. Indeed, precisely because corpora-
tions are so pervasive and so potent in their impact on most people’s daily
lives, they offer a vital site at which to begin this paradigmatic overhaul.
And the neglected sub-theme of Berle and Means’ The Modern
Corporation is an excellent place to begin that important endeavour.
A Re-vision
It seems to be the fate of almost all canonical texts that they become not
only more cited than read, but also affixed with one received and uncon-
troversial meaning. Berle and Means’ classic monograph is wonderful
proof of that tendency. If the great bulk of secondary literature is to be
believed, The Modern Corporation comprises a series of secondary motifs
around a primary theme – the need to bridge the gap between owners and
management as much as the legal imposition of equitable duties can do so
as to approximate the ideal situation of owner-managers. But that read-
ing is not the only or best reading. Rather than be understood as a
nostalgic lament for a lost and traditional age of simple economic
arrangements, it can also be apprehended as a romantic yearning for a
new and revolutionary vision of social organization. Once it is appre-
ciated that “size alone tends to give these giant corporations a social
significance not attached to the smaller units of private enterprise”, it is
not so large a step to conclude that “new responsibilities towards the
owners, the workers, the consumers, and the State thus rest upon the
shoulders of those in control” (7).
This alternative and more capacious reading comes alive when Berle
and Means’ concern with the rise of the corporation as organizations that
have “passed far beyond the realm of private enterprise . . . [and] have
become more nearly social institutions” (46) is placed front and centre
ahead of the ownership-and-control thesis. Indeed, in 1932, they felt able
to conclude The Modern Corporation with a chilling appraisal of
American corporate power. They opined that not only did corporations
represent “a concentration of economic power which can compete on
equal terms with the modern state”, but also that “the modern corpora-
tion may be regarded not simply as one form of social organization but
potentially (if not yet actually) as the dominant institution of the modern

world . . . possibly even superseding [the state]” (313). If that day of

‘actually’ has not yet arrived, it is perilously closer; the march of corporate
power has continued apace. To appreciate fully the extent to which
corporations have consolidated and increased their economic sway, it is
necessary to place their operations and performance in a wider global
context. When this is done, the almost unrivalled dominance of these
‘non-Statist collectivisms’ in social and political as well as economic
spheres can be grasped.17
If corporate sales and national GDPs are treated as interchangeable,
corporations comprise about 50 per cent of the world’s 100 largest
economies. Of course, American corporations dominate the global
group, with around 40 per cent in the top 200. So, in terms of revenue,
Walmart is bigger than Australia, Spain, and Norway; Toyota is bigger
than India; Apple is bigger than Belgium; and BP is bigger than Norway.
In terms of GDP, Apple is bigger than Ecuador; Microsoft is bigger than
Croatia; Proctor and Gamble is bigger than Libya; Ford is bigger than
Morocco; General Motors is bigger than Bangladesh; General Electric is
bigger than New Zealand; Exxon Mobil is bigger than Thailand.18 Indeed,
the top 200 corporations’ combined sales are bigger than the combined
economies of all countries, except for the biggest 10. Also, the top 200
corporations’ sales are growing at a faster rate than overall global eco-
nomic activity. But while the sales of the top 200 corporations are the
equivalent of 27.5 per cent of world economic activity, they employ only
0.78 per cent of the world’s workforce. Furthermore, although those
corporations’ profits grew 362.4 per cent in the past 20 years, the number
of people they employ has increased by only 14.4 per cent. The economic
clout of the top 200 corporations is particularly staggering compared to
that of the poorest segment of the world’s humanity: their combined sales
are 18 times the combined annual income of the 1.2 billion people, or 24
per cent of the world’s total population, living in severe poverty (those
surviving on less than $1 per day).19
17
Adolf A. Berle Jr., Foreword in THE CORPORATION IN MODERN SOCIETY, at xiv (Edward S.
Mason ed., 1959).
18
See “The Fortune 2016 Global, 500”, beta.fortune.com/global500/ and “CIA World
Factbook”, www.cia.gov/library/publications/the-world-factbook/fields/2056.html and
Vincent Trivett, 25 US Mega Corporations: Where They Rank If They Were Countries,
BUSINESS INSIDER, June 27, 2011, online www.businessinsider.com/25-corporations-bigger-
tan-countries-2011–6.
19
Sarah Anderson and John Cavanagh, Top 200: The Rise of Corporate Global Power, INST.
FOR POL’Y STUD., December 4, 2000, www.corpwatch.org/article.php?id=377.

Once what Louis Brandeis termed the ‘curse of bigness’ is placed in

contemporary context,20 the concerns of Berle and Means become even
more compelling. They appreciated that, because “the economic power in
the hands of the few persons who control a giant corporation is a
tremendous force which can harm or benefit a multitude of individuals,
affect whole districts, shift the currents of trade, bring ruin to one
community and prosperity to another” (46), the people who exercised
power over these burgeoning corporate empires would become the new
‘princes of industry’ (4) and a new despotism would take hold. As such, it
was essential that this enormous power “shall be subjected to the same
tests of public benefit which have been applied in their turn to power
otherwise located” in modern society (310). In short, therefore, if
‘accountability’ is seen as the primary theme of the book, its concerns
and proposals for change take on a very different emphasis and orienta-
tion. The private property owners become as much a part of the problem
as the solution; their powers and entitlements must be harnessed to and
disciplined according to the public interest. When read in this way (and
almost despite the efforts of the authors themselves), The Modern
Corporation remains a robust and still-relevant critique of corporate
governance at the beginning of the twenty-first century. More impor-
tantly, it still resonates strongly as a rallying call to populist arms – for all
those who are committed to making the large modern corporation a
worthy and welcome participant in the all-important project for demo-
cratic empowerment.
B Second Thoughts?
In many ways, it was Berle and Means’ own ambivalence about pursuing
the more radical implications of their critique which hindered efforts to
move away from a private property regime to a more fully public re-
envisioning of the corporate role and responsibility. At the end of their
celebrated monograph, they begin to build on the established fact that the
modern-day shareholder has clearly “surrendered a set of definite rights
for a set of indefinite expectations” (244). Indeed, they go so far as to
concede that, with the entrenched separation of ownership and control,
20
LOUIS DEMBITZ BRANDEIS, THE CURSE OF BIGNESS: MISCELLANEOUS PAPERS OF LOUIS D. BRANDEIS
(Osmond K. Fraenkel ed., 1935). See also GAT ALPEROVITZ, AMERICA BEYOND CAPITALISM:
RECLAIMING OUR WEALTH, OUR LIBERTY, AND OUR DEMOCRACY (2005) and WILLIAM K. CARROLL,
CORPORATE POWER IN A GLOBALIZING WORLD: A STUDY IN ELITE SOCIAL ORGANIZATION (2004).

the shareholders’ ‘relation to [their] wealth’ has changed and that the
corporation should be seen as a public entity and “the logic applicable to
that change should itself change” (298). Yet Berle and Means refused to
take the next logical step, which was not only to accept the passivity of
shareholders, but also to recognize that the very idea of the shareholder as
property owner was no longer valid or applicable, and that reliance on a
private property rationale for corporate governance was no longer com-
pelling or desirable.
Even at its publication in 1932, The Modern Corporation’s focus on the
importance of the disjuncture between ownership and control did not
persuade everyone. Dissenting voices could be heard, although their
force and caution have long since been ignored. In particular, E.
Merrick Dodd Jr. argued that corporate directors and officers should
not be viewed solely as agents of shareholders, but should also be
required to act as stewards for the interests of others, even if that meant
curtailing the proprietary rights of those shareholders. Indeed, Dodd
went so far as to suggest that managers might go further and actually
consider themselves “guardians of all the interests which the corporation
affects and not merely servants of its absentee owners”.21 Berle took up
the challenge and responded to Dodd by arguing that a broad corporate
duty to serve society would not only violate shareholders’ private prop-
erty rights, but also be so vague as to put no meaningful constraint on
managers’ use of corporate assets: “Unchecked by present legal balances,
a social-economic absolutism of corporate administrators, even if bene-
volent, might be unsafe.”22 But by the late 1950s, a chastened Berle
seemed to have at least conceded considerable ground in his debate
with Dodd. While he recognized that managerial discretion might be
viewed as a positive attribute which could allow managers to act in the
interests of society as a whole,23 Professor Berle insisted that he did not
accept that Dodd was right in any absolute or prescriptive sense: “It is one
thing to agree that this is how social fact and judicial decisions turned out.
It is another to admit this was the ‘right’ disposition; I am not convinced
it was.”24
21
E. Merrick Dodd Jr., For Whom Are Corporate Managers Trustees?, 45 HARV. L. REV. 1145
at 1157 (1932).
22
Adolf A. Berle Jr., For Whom Corporate Managers Are Trustees: A Note, 45 HARV. L. REV.
1365, 1372 (1932).
23
See ADOLF A. BERLE JR., POWER WITHOUT PROPERTY: A NEW DEVELOPMENT IN AMERICAN
POLITICAL ECONOMY 107–10 (1959).
24
Berle, supra, note 17 at xii.

By 1968, in their new and separate prefaces for The Modern

Corporation, Berle and Means had begun to recognize many of the
limitations in the original edition. Nevertheless, they were still not fully
prepared to abandon their established ways of thinking. After describing
the even greater level of concentration and lack of genuine competition
among American corporations, the economist Means contented himself
with simply asking, “Is the concentration of power in the managements
of the large corporations consistent with the maintenance of a demo-
cratic society?” (xxxviii). On the other hand, the law professor Berle
stated that, while the nature of the property rights of shareholders has
changed, there is still very much a property right at work. Although “a
new classification has been superimposed on the old theory” (xi) and “the
‘private’ and, still more, individualized, aspects [of property] will become
increasingly attenuated” (xiv), there has now been a break-up of “the
package of rights and privileges comprising the old conception of prop-
erty” (xix). Nevertheless, Berle came back to the conclusion that, even
though there has been a move away from treating stock as primarily a
vehicle for raising capital and more “a channel for distributing income
whose accumulation for capital purposes is not required” (xxvii), the
modern corporation and “property used in production [i.e., shares] must
conform to conceptions of civilization worked out through democratic
processes of American constitutional government” (xxvi). He was con-
vinced that the era of private corporations (or, at least, the understanding
of corporations as extensions of private shareholding) was no longer
coherent in practice or theory.
The time has come, however, to take the obvious steps that Berle and
Means illuminated, but felt unable or unwilling to pursue themselves. In
a compelling conclusion to The Modern Corporation, they floated the
idea of rejecting both a strengthening of the rights of passive investors
and a realpolitik acceptance of managerial control. Instead, they offered
the possibility that, because existing corporate arrangements had “cleared
the way for the claims of a group far wider than either the owners or the
control [group]”, the community could “demand that the modern cor-
poration serve not [only] the owners or the control [group] but [also] all
society” and that the governing principle of corporate governance should
be ‘the paramount interests of the community’ (312). Indeed, Berle and
Means end with a hope that the separation between ownership and
control will result not in a triumph by one faction over the other, but
with the rise of a new paradigm of corporate governance: “The law of
corporations . . . might well be considered as a potential constitutional

from corpocracy to demo cracy 69
law for the new economic state” (313). While they were wrong in believ-
ing that the control of corporations and the balancing of interests might
be “brought about by a purely neutral technocracy”, they were on the
right track when they expressed the hope that this might be done “on the
basis of public policy rather than private cupidity” (312–13). The chal-
lenge, therefore, is to move from ‘private cupidity’ to ‘public policy’ while
both retaining the best of private initiative and resisting the worst of a
domineering state. This can be achieved by ushering in a new era of
corporate history in which democracy is the standard and the goal of
corporate governance. In such a vision, corporations might begin to
function as a democratic nexus at which public and private, political
and economic, individual and state, and personal freedom and civic
responsibility meet. Corporations will become less an anomaly in con-
temporary democratic terms and more a primary site for the advance-
ment of democratic politics.25
From Corpocracy to Democracy

In seeking to nurture and develop suitable forums and settings which are
more local and less hierarchical, and are more participatory and less
private, large corporations recommend themselves as almost ideal loca-
tions for enabling people to become full citizens in their society. They
stand squarely between the market and the government, and they exert
the kind of power which needs to be opened up if there is to be any real
progress in closing the democratic gap between the governors and gov-
erned. Of course, such a political enterprise will demand that several
crucial relations and contexts be transformed and reworked – those
between corporations and the state; those inside corporations (i.e.,
between shareholders, management, and workers); and those between
corporations and the general public. Nevertheless, only if such a bold
strategy to advance the democratic project is commenced can any real or
meaningful change be expected in the democratic condition generally,
25
I am not against profit maximization or private property per se. From a democratic
perspective, profit maximization will not be eschewed entirely, but will no longer be an
exclusive or a predominant social goal; shareholders will be one kind of constituency
member. Also, the whole idea of private property need not be abandoned or the means of
production put in public hands. I am against an overbearing state as well as a rampant
private sphere. The theory and practice of democracy should be used to address the socio-
economic conditions of people’s lives as well as their politico-civil entitlements. The
market must be made to serve, not control people’s interests. See infra, ch. 6.

and in corporate governance particularly. There are risks attached to

such a commitment, but there are greater dangers to maintaining the
status quo.
A A Democratic Gambit
In the quarter century since Lindblom’s conclusion that “the large private
corporation [does not fit] into democratic theory and vision”,26 the
situation has hardly improved. Although the power and influence of
corporate activities has continued to expand and deepen, a democrati-
cally inspired agenda for corporate governance has lost much of the plot.
Reform efforts remain too reactive, too piecemeal, too modest, and too
trapped within the prevailing paradigm. In contrast, I want to offer, in
the spirit of a reworked Berle and Means approach, an unabashedly and
robust democratic proposal for corporate law and governance. By
understanding corporations as neither wholly public nor wholly private
institutions, the hope is to move beyond the cramped language of the
public-private and harness the traditional strengths of the corporate
form to the more civic agenda of democracy. By envisaging and con-
cretizing a democratic form of corporate organization, it might become
possible to cultivate the kind of hybrid institution for civic interaction,
both economic and political, which will be true to the democratic
ambitions of all its participants.
The fact that large corporations are major players in the political,
economic, and social system seems indisputable; they exercise enormous
power over the lives of ordinary people. While any accumulation of
power must be treated with suspicion and mistrust in a democracy,
there is no need to consider it illegitimate by its aggregation alone.
Power is not the problem in and of itself, but the basis for its exercise
and legitimacy. When it comes to the pedigree and consequences of
corporate power, there is a considerable burden on its operatives and
apologists to offer a suitable series of justifications; corporate power
seems presumptively undemocratic, if not actually anti-democratic.
Because the goal of shareholder primacy has become almost an incon-
testable given, it is necessary to offer a pragmatic alternative to the neo-
liberal philosophy which has proven so effective in insulating large
corporations from regeneration in the public interest. As the line between
26
CHARLES E. LINDBLOM, POLITICS AND MARKETS: THE WORLD’S POLITICAL-ECONOMIC SYSTEMS 356
(1977).

from corpocracy to demo cracy 71
government and business has blurred, politicians are persuaded that

government’s only legitimate role is to facilitate business.
Despite its many different and innovative efforts, traditional theorizing
has failed to make a persuasive case for how the modern corporation can
be reconciled with the rhetoric and reality of democratic governance in
contemporary society. In particular, a major source of bewitchment in
this process is the conceptual tendency to insist that there is an almost
cast-iron distinction between public undertakings and private interests.
Whereas the former are considered the legitimate domain for democratic
participation, the latter are treated as something aside from that. In this
formalized approach, emphasis is placed on the source and pedigree of
power rather than its effects and consequences. In a world of enormous
corporate power and influence, such a disciplinary device is almost
guaranteed to ignore and even condone extensive abuses of power. It
guts the whole emancipatory dynamic of accountability and makes
democracy safe for the private exercise of corporate power. In short,
large corporations are the favoured offspring of neoliberalism’s attach-
ment to the public–private distinction.27
B Beyond Public and Private

When viewed from a thoroughly democratic perspective, the operations
and decision-making of the modern corporation cannot be immune from
public oversight in the public interest. It is ‘abuse of power’ in substantive
and real terms which is the focus of attention. The formal source of power
is secondary to its effects and deprivations. Reliance on a strict public–
private distinction exacerbates the pernicious effects of privatized corpo-
rate power on people’s lives. Of course, it does not follow that, when
understood as ‘the dominant institution of the modern world’ (313),
corporations are to be treated in the same way as other large-scale public
institutions by having the full panoply of duties and responsibilities
under the administrative or even constitutional law regime imposed on
them by the courts. This is to misunderstand both the nuanced and
pluralistic insights of democratic governance and the structural and
democratic limitations of judicial review. Instead, a different and more
substantive set of measures must be introduced which can grapple more
directly and effectively with the substantive and formal dimensions of
27
See Morton J. Horwitz, The History of the Public/Private Distinction, 130 U. PA. L. Rev.
1423, 1428 (1982).

what counts as good corporate governance. If corporations can be made

to function as a democratic nexus at which public and private, political
and economic, individual and state, and personal freedom and civic
responsibility meet, they will become less an anomaly in contemporary
democratic terms and more a primary site for the advancement of
democratic politics.
At the heart of a democratic compact is a reinvigoration of the
neglected fact that the corporate form is a distinctly public institution
which is brought into existence by the state and has certain conditional
powers delegated to it by the state. As constructions and emanations of
the state, modern corporations have a distinctly public origin and a
decidedly public purpose.28 The debate about corporate governance is,
therefore, about the nature and parameters of those public purposes.
Once corporations are understood in this way, it no longer continues to
be a question of whether it is appropriate or reasonable to ask corporate
owners and administrators to pursue the public interest at all. Instead, the
more telling issue is what public interests should the corporation pursue
and how they operationalize them. The advancement of private interests
will remain important, but will not exhaust the public interest. By taking
the advantages of incorporation, investors and entrepreneurs are enter-
ing into a bargain with the state and the community. In return for the
benefits of pursuing their private ambitions through corporations, people
must accept the public responsibilities which come with it. Shareholders
and stakeholders would become different kinds of members who would
include owners, directors, managers, workers, customers, suppliers, len-
ders, neighbours, community, etc.
A Democratic Agenda
There will be nothing easy about determining for the purposes of corpo-
rate governance which groups are to classify as members, by what means
their interests are to be ascertained, how to ensure that those interests are
adequately represented, and on what basis those often competing inter-
ests are to be weighed and balanced. But a commitment to democracy
demands that such efforts be made.29 While a variety of strategies lend
28
John Dewey, The Historic Background of Corporate Legal Personality, 35 YALE L. J. 655, 669
(1926).
29
For my efforts to meet these challenges in a Canadian context, see ALLAN C. HUTCHINSON,
THE COMPANIES WE KEEP: CORPORATE GOVERNANCE FOR A DEMOCRATIC SOCIETY (2006).

a d e mocr at ic age n d a 73
themselves to this emancipatory project, I will concentrate on four

particular initiatives – limits on limited liability; a broadening of direc-
tors’ fiduciary duties; the increased representativeness of the board; and
the enactment of substantive regulatory standards. While each of these
innovations is not novel in itself, they will, when taken together as a
package, help to bring about a genuine and thoroughgoing change in the
democratic thrust of corporate governance.
A Limited Liability
Although the limited liability of corporations is considered one of the main
attractions of incorporation, as it encourages investment at less risk and
with greater diversification, it has some severe shortcomings. Specifically, it
tends to reallocate risk rather than reduce it; it places this reallocated risk
on those stakeholders (e.g., employees, neighbours, etc.) often less able to
shoulder it; and it can encourage riskier behaviour as corporations are
excused from internalizing the full costs of their risk-taking. To make
democratic sense of this debate, however, it is necessary to keep a broader
and more encompassing view of corporate activity. As I have been at pains
to emphasize, the whole notion of governance implies much more than
simply doing profitable business; it suggests a public and accountable
aspect to the dealings of the corporation which encompasses, but is not
only reducible to, private gain and economic profitability. When under-
stood from a democratic perspective, it is the limits of limited liability
rather than limited liability itself which must be reconfigured.
Under such a democratic conception of corporate governance, it seems
entirely unconvincing to establish an institutional framework for legal
liability which shifts almost all the costs onto some persons and all the
benefits onto others. At the moment, on one hand, there is management/
shareholder control without responsibility and, on the other hand, there
is stakeholder responsibility without control. This is anathema to the
democrat who is committed to closing, not maintaining, the gap between
the powerful and the less powerful. If people claim the rights of owner-
ship and the authority to govern the corporation in their own best
interests, it seems almost axiomatic that they should bear at least some
responsibility for its actions and behaviour. That said, if the shareholders’
lack of responsibility is to continue to any extent, then there seems no
compelling reason to object to the reduced control of shareholders or
their displaced focus as the corporation’s main concern. From a demo-
cratic perspective, the price of limited liability is the cost of reduced

influence. While there are other legal mechanisms by which to reduce

negative externalities created by corporate conduct (i.e., general welfare
laws designed to deter corporate conduct through criminal and civil
sanctions), the imposition of some liability in some circumstances on
shareholders seems democratically optimal.
Rather than take an all-or-nothing stance, it is better to provide a series
of initiatives which can be combined to affect the limited and selective
availability of limited liability. Possible legal strategies for limiting limited
liability include narrowing its scope to contractual risk as opposed to tort
liability, introducing pro rata liability for shareholders,30 lifting the
corporate veil more, imposing selective liability on controlling share-
holders, abolishing limited liability for shareholding corporations, and
greater vicarious liability of directors in certain circumstances.31 Each has
the distinct potential to affect a more acceptable balance of control and
risk; traces of each approach can already be detected in corporate law.
But, when understood as part of an integrated and democratic approach
to corporate governance, they can work together to provide a more
subtle, balanced, and measured solution.
B Extended Duties
The next step in transforming the modern corporation into a more
democratic and more public-oriented institution is to take seriously the
assertion that the board of directors must exercise their powers and fulfil
their fiduciary duties ‘in the best interests of the corporation’. In defining
which interests best comprise the corporation, it will be necessary to take
a more expansive view than the limited focus on the interests of one set of
stakeholders, namely, the shareholders. Such interests are entirely deser-
ving of consideration, but they will be only one set of interests to be taken
into the balance and not the exclusive or primary ones. The ghost of
Dodge must be exorcized once and for all.32 The corporation is an organic
entity with multiple and shifting constituents whose interests will vary
over time and in different contexts; no one set of interests will have its
thumb on the governance scales. In advancing the welfare of the corpora-
tion, it will be important to assess the directors’ performance over an
30
See Theresa A. Gabaldon, The Lemonade Stand: Feminist and Other Reflections on the
Limited Liability of Corporate Shareholders, 45 VAND. L. REV. 1387, 1447 (1992).
31
See Timothy P. Glynn, Beyond ‘Unlimiting’ Shareholder Liability: Vicarious Tort Liability
for Corporate Officers, 57 VAND. L. REV. 329 (2004).
32
Dodge v. Ford Motor Co., 170 N.W. 668 (Mich. 1919).

extended time frame rather than on a single-decision basis; the best

interests of the corporation will not be reducible to a simple formula or
set of fixed interests. This will be a challenging undertaking for directors
and one which will demand a variety of skills and sensitivities.
Traditional critics will be right to point out that such general obligations
will not easily be rendered operational, instilled with specific substance,
or given effective teeth; this broad responsibility can become a shield to
justify any action by the board. As Berle himself observed, “unchecked by
present legal balances, a social-economic absolutism of corporate admin-
istrators, even if benevolent, might be unsafe”.33 These are reasonable
objections, but insufficiently compelling to derail the whole project.
As things presently stand, the directors must often balance the compet-
ing interests of different shareholders in a constantly shifting market – are
long-, medium-, or short-term interests of the shareholders to be served?
Are directors to concentrate on increasing dividends or managing the
share price? How is equity to be ensured among majority and minority
interests? These are far from easy questions and require considerable
sophisticated judgment by the directors. Of course, extending the direc-
tors’ fiduciary duty to stakeholders will not lessen that challenge. But it also
will not move it into a qualitatively different realm of operational difficulty.
There are already several fiduciary relationships imposed by law (e.g.,
executors) which encompass duties to a class of persons or groups
whose interests might well be far from unitary or readily compatible.
Consequently, while demanding and difficult, the application of a broader
fiduciary duty is certainly not outside the competence of sophisticated
businesspersons. Rather than be an exceptional duty, the fiduciary respon-
sibility of directors would be brought in line with the idea that fiduciaries
are to be held “to something stricter than the morals of the marketplace . . .
Only thus has the level of conduct for fiduciaries been kept at a level higher
than that trodden by the crowd”.34 In the campaign to democratize the
corporation, this seems an essential and welcome reform.
C Representative Boards
Corporate duties to stakeholders are an improvement, but they are not a
lasting or substantial solution, and their effects will be muted. Unless
33
Berle, supra, note 17 at 1372. See also FRIEDRICH A. HAYEK, LAW, LEGISLATION AND LIBERTY:
THE POLITICAL ORDER OF A FREE PEOPLE vol., 3 82 (1979).
34
Meinhard v. Salmon, 164 N.E. 545 (N.Y. 1928).

there is a change in the composition of those entrusted with the power

and responsibility to run the corporation, it will always be what managers
or shareholder-appointed directors think is in the best interests of the
broader stakeholder community rather than stakeholders being able to
determine that for themselves. After all, democracy is not only supposed
to be for the people, but by the people. No matter how benign or
progressive the decisions made by elite groups may be, they remain
decisions which lack the important imprimatur of democratic participa-
tion: accountability is only a poor second to participation as a mode of
democratic governance. As with other institutions and agencies charged
with advancing the public interest, there is a compelling need for public
participation. Accordingly, as well as reforming the rules for proxy
voting, strenuous efforts must be made to introduce reforms which will
facilitate involvement by those stakeholder groups whose interests are
directly and substantially at stake in corporate behaviour.
Because the potential effects of large-scale corporate activities are truly
wide-ranging and often global, however, this challenge is beset by prac-
tical difficulties. The two main initiatives to date for dealing with this
conundrum are ‘diversified shareholding’ and ‘independent directors’.
While they both make important inroads into present arrangements, they
fall short of any truly democratic goal. Whereas independent directors
are themselves appointed by and are often beholden to the existing
shareholder-appointed board, diversified shareholding tends to reinforce
the existing scheme of corporate governance by perpetuating the idea
that financial contribution is the best measure of democratic participa-
tion. When employees become shareholders, the real threat is that they
will be persuaded to adopt the same purely economic mentality to
corporate planning and success as today’s shareholders; they will be
more interested in short-term gains in the secondary stock market than
in long-term contributions to the primary goods-and-services and jobs
markets.
A more convincing avenue of democratic reform would be to intro-
duce independence and diversification in a more direct manner. For
instance, it might be possible to divide affected persons and stakeholders
into three main constituencies. Each constituency would represent and
give increased involvement to different members of the corporate com-
munity. The three constituencies would be the shareholders, the employ-
ees, and the other stakeholders or the public. As regards the shareholder
constituency, all shareholders might have the same entitlements and
responsibilities with no one shareholder being able to exercise more

than 25 per cent of the overall total of votes available to shareholders.

When it comes to the employees, all existing and permanent employees,
part-time and full-time as well as management and rank-and-file, would
be eligible to vote for a third of the board; those who stood for election as
employee-representatives would themselves have to be employees.
Finally, as regards the public constituency (which would include all
other stakeholders, such as creditors, suppliers, customers, local com-
munity, etc.), there might be an attempt to designate a third of the board
as ‘general public directors’ whose mandate would be to represent the
public interest as it applies to the operations of a particular corporation.
These directors could be selected by a two-thirds vote of the rest of the
already elected board of shareholder and employee representatives from
a list of approved candidates maintained by a public agency.35 The agency
would have ultimate authority to approve or disapprove such elected
persons as suitably diverse and pertinent to the specific corporation’s
operations. To be admitted to this list, candidates would have to satisfy
the regulatory body that they not only had general directorial compe-
tence, but that they also appreciated the public role and democratic
responsibilities of corporations.
By establishing such a balanced scheme of membership, certain impor-
tant advantages will accrue. Apart from the general conformity of the
proposal to a democratic vision of corporate governance, the most
obvious benefits are twofold. First, even if individual directors take a
very self-regarding stance by pushing only for the interests of those
groups who elected them, they will still have to persuade others of the
more general wisdom of that stance. It will likely require a more long-
term approach to directorial debate so that priorities and plans will be
able to proceed on a more consensual basis. Also, exposure to different
perspectives might well loosen the more parochial concerns of particular
directors. Moreover, the active presence of the public directors will oblige
other directors to develop and frame their views in ways which are more
conducive to the promotion of the general public interest. Second,
because the board of directors would be under a broad fiduciary duty
to advance the interests of the whole corporation, the considerable
challenge of balancing competing interests and objectives might be
more easily accomplished. By having a more diverse and representative
board, an appreciation of what is in the best interests of the corporation
35
CHRISTOPHER D. STONE, WHERE THE LAW ENDS: THE SOCIAL CONTROL OF CORPORATE BEHAVIOR
152–83 (1975).

as a whole will be more informed and immediate: the various stakeholder

communities will have a direct voice in discussions. This will also help to
destabilize the ruling elite, which presently has a virtual lock on corporate
decision-making and culture. Accordingly, the odds on making the
democratic wager are significantly shortened by the appointment of a
more diverse and representative board of directors.36
D Substantive Measures
Nevertheless, while such reforms in representation will be extremely
important, they again will be insufficient in themselves to implement a
democratic system of corporate governance. The introduction of more
stakeholder-representative boards, greater responsibility for corporate
actors and beneficiaries, and better protections for minority shareholders
will be vitally important. But they will not be enough. If the goal is to
ensure that large corporations act in a more democratic and responsive
manner, it will also be essential to lay down certain minimum substantive
standards against which corporate performance and behaviour can be
judged. Accordingly, there will need to be a mix-and-match balance
between structural reform and substantive regulation. As traditional
scholars insist, it is naïve to believe that asking present corporate officers
to act responsibly for the benefit of stakeholder communities will be
sufficient or that making structural changes without some accompanying
ethical shift will achieve a marked degree of democratic modification. In
order to accomplish genuine change and transformation in corporate
behaviour, it will be necessary for society as a whole to participate in the
continuing responsibility of determining what is ‘in the public interest’.
As public institutions, and government-created ones at that, corpora-
tions must at a minimum be obliged to ensure that they do not act in a
way which is inimical to the public interest. As things presently stand, the
public interest is too often a by-product of what happens to advance
corporate and private interests at any given time and place. In a democ-
racy, the public, through democratic institutions and processes, determines
what the public interest is; the determination is not for corporations either
by design or default to appropriate that task entirely for themselves.
36
In Germany (and Japan), worker representation on the supervisory boards of large public
corporations is mandated. Not only has this innovation not brought German capitalism
to its knees, it also has been seen as contributing to the relative success of German
industry. See Peter Cornelius and Bruce Kogut, Creating the Responsible Firm: In
Search for a New Corporate Governance Paradigm, 4 Ger. L. J. 45, 47 (2003).

As well as improved transparency in corporate transactions and deal-

ings, it would also be necessary to introduce mandatory disclosure and
reporting on a whole range of economic and social issues which might
include, for example, information on the products a company produces
and the countries in which it does business; on the corporation’s law
compliance structure; on its domestic labour practices; on its global
labour practices and supplier/vendor standards; on its domestic and
global environmental effects; on corporate charitable contributions, poli-
tical contributions, or the effects of using a corporation’s products on
consumer health and safety.37 But if corporate governance is to be taken
seriously on its own terms, the enactment and enforcement of such
regulations must not be left only to securities regulators. While the
protection of shareholder interests is a necessary feature of any advanced
economy, it is not and should not be the only game in town. Of course, it
is not surprising that the authorities persist in treating corporate govern-
ance as largely about the protection of shareholder interests alone when
the informing vision of corporate governance is so shareholder-centred
in orientation, content, and enforcement. Accordingly, under a demo-
cratic model of corporate governance, it will be essential to create and
empower a public regulatory body whose exclusive responsibility is to
deal squarely with corporate governance in its own right and not only as a
function of the protection of shareholder interests. Because the size and
power of large modern corporations has assumed such significance, it is
clear that they warrant their own regulatory body.
E Democracy and Capitalism

Finally, in offering this robust critique of contemporary approaches to
corporate law and governance, it bears emphasizing that my intention
has not been to defend the claim that productivity or profit-making is a
bad thing. Nor am I recommending that all jobs will be forever safe or
that the workers’ and other stakeholders’ interests will always outweigh
those of shareholders. This would be plain silly. There is nothing wrong
with productivity, efficiency, profitability, etc. Indeed, they are essential
values for any modern society to embrace and foster. But it is the
elevation of such values to a cluster of meta-values against which all
social processes and other values must be judged which is the problem.
37
See Cynthia A. Williams, The Securities and Exchange Commission and Corporate Social
Transparency, 112 HARV. L. REV. 1197 (1999).

As both a matter of historical record and as an issue of public policy, it is

mistaken to suggest shareholder value maximization is or ought to be the
sole or primary goal of the business corporation. This would be, as an
incredulous critic notes, “to define the business corporation . . . as a kind
of shark that lives off the community rather than as an important agency
in the construction, maintenance, and transformation of our shared
lives”.38 In particular, there is no sense in thinking about large corpora-
tions as a democratic venue for democratic engagement between political
equals. While a cost-benefit analysis is necessary and desirable, it ought to
be the first step in making any corporate decision, not the first, last, and
only consideration. The process of formulating benefits and entitlements
is important in itself under a democratic theory; an appreciation of the
social context within which individuals exist and thrive is essential.
There is simply no reason to be persuaded that capitalism and democ-
racy are somehow synonymous. Indeed, the link between capitalism and
democracy is weak at best and counterproductive at worst. If capitalism is
to remain, then it must serve rather than master the interests of democ-
racy. Citizens are entitled to basic economic protections by virtue of their
membership in society and not only through their efforts at contractual
negotiations. Democrats appreciate that, while everything has a cost, it is
not the sole measure of value: citizens are not only consumers. And
democracy is not only or best sold in the marketplace. The obvious
challenge is to ensure that politics is played out throughout social life
and not merely confined to areas outside the economic sphere; people are
entitled to participation and accountability in their dealings with and
inside businesses as much as with politicians and governments.
Accordingly, a shift to more democratically structured corporations
will likely galvanize the democratic instinct generally. As President
Woodrow Wilson famously opined, “the cure for the ills of democracy
is more democracy, not less”.
Conclusion
Although the prospects for turning the present system’s failings to
transformative effect are far from rosy, the need to bring to an end the
Age of the Corporation as a private-controlled agency for wealth accu-
mulation is as urgent as ever. Uncoupled from ‘market capitalism’ and
38
James Boyd White, How Should We Talk about Corporations? The Languages of
Economics and of Citizenship, 94 YALE L. J. 1416, 1418 (1985).

c o n cl u s i o n 81
hitched to a more democratic vision of governance, the institution of the

corporation can become a social, political, and economic organization in
which public, political, and distributive ends are in play as well as private,
economic, and productive ones. Berle and Means have a definite con-
tribution to make to that project if its traditional reading is abandoned
for a more enlightened one: a shift must occur from ‘private property’ to
‘democratic accountability’ such that public policy is not only consistent
with private cupidity. When large corporations are understood in the
larger setting of democracy, it will be possible to move forward. By
carrying out such a democratic stock-taking, it might be possible to
provide a more telling critique of corporate governance and more con-
structive proposals for change. Indeed, it is only when corporations are
viewed as part of, not apart from, democratic society more broadly that
progress will be made. As the eighty-fifth anniversary of The Modern
Corporation and Private Property approaches, there would be no more
fitting or timely way to celebrate than with a move towards a democratic
corporation. Indeed, it might well be that, as goes corporate governance,
so goes democracy.

5
Fashion Police v. Supreme Court: A Dressing

Down?
Under small protest, I watched an episode of Fashion Police. I had

caught glimpses of it before, but had never sat through a complete
show. The topic was the previous night’s Emmy Awards. As was its
brief, the five-person panel held forth about and voted for the best-
and worst-dressed celebrities among television’s elite on the red
carpet. Regrettably, if predictably, the focus was much more on
what the women were wearing; almost all the men went for the
basic black-and-white tuxedo look with varying, if narrowly distin-
guished sartorial results. There was considerable disagreement about
which female celebrities and their outfits should qualify for comment.
Indeed, the same person might be treated by different members of the
panel as a candidate for both the best-dressed and worst-dressed lists.
Of course, entertainment was the order of the day: fun was poked at
various people for the bad fashion choices they had made either
because the dress itself was so awful or their appearance in it was
so unbecoming. Policing was very much an occasion for social
chastisement.
While most of the commentary was witty and brutal, there was also
some stern debate about what standards were being used to make these
determinations of fashion kudos or crimes. Each of the judges, celebrities
in their own right, had some claim to expertise in the field – they had
studied fashion, were part of the fashion industry, or were generally
acknowledged as fashionistas in their own right. When their turn came
around, they gave an impassioned explanation for what counted as good
or bad fashion and why a particular celebrity’s dress succeeded or failed
in meeting those sanctioned norms. There was some give-and-take as
decisions were made about who had the ‘must-see look’, who had ‘the hot
ticket’, and ‘who is trending’. But, by and large, particular judges stood
82

fashion p olice v. supreme court: a dressing down? 83
their ground and defended their picks. To round things off, a vote was
taken and the lucky (or unlucky) winners and losers were announced.
As I took all of this in (and laughed at some of the outrageous
comments made about outfits worn), it struck me that there seemed to
be more than a passing resemblance between what the Fashion Police
critics were doing and what Supreme Court judges do. Allowing for some
obvious differences in the importance and effects of such decisions (e.g.,
people can literally live and die by court decisions), both panels of
arbiters were in the business of setting general standards for what is
and is not acceptable and then applying them to particular instances.
Each went through a similar process of laying down, even if they dis-
agreed among themselves, the rules to be followed, offering justifications
for them, and then measuring up whether people had complied with or
run afoul of them. Whether about fashion or law and whether it involved
Melissa Rivers or Chief Justice Beverley McLachlin, the task was
‘judging’.
In this chapter, I want to explore what many will consider a very
dubious, even ludicrous comparison. My goal is not to ridicule or take
cheap shots at Supreme Court judges (or Fashion Police panelists, for that
matter). Taking this analogy between Fashion Police and the Supreme
Court seriously, I want to examine the traditional arguments which are in
place and taken for granted about why Supreme Court judges are under-
stood to engage in a very different and more exalted enterprise than their
Fashion Police counterparts – in what way is judging in law a qualitatively
distinct mode of reasoned evaluation from judging fashion? In what way
is how judges judge in law distinct from how judges judge in fashion?
After all, if judges are doing nothing different from fashion mavens, there
are some troubling questions to ask and answer about the legitimacy and
authority of the decisions of Supreme Court judges in a society com-
mitted to democratic constitutionalism. Or, if members of the fashion
police are acting more like Supreme Court judges, then are they deserving
of more respect than people might otherwise be tempted to assume?
From a jurisprudential standpoint, I will tackle the central challenge of
whether Supreme Court judges or their academic apologists can demon-
strate that judicial decision-making is defensible and justifiable as some-
thing more than the considered opinions, no matter how well-informed
or well-intentioned, of the people who are judges. In short, whether Ryan
Gosling is adjudged to look good or bad by fashion pundits in a particular
ensemble is supposed to be of a very different order of analytical judg-
ment than whether Justice Russell Brown has rendered a valid or

84 f a s h i o n p o l i ce v . s up r eme co urt: a d ressing d own?
defensible judicial decision about, say, the constitutionality of assisted

suicide. Why is Justice Brown’s decision deserving of respect as a legal
decision and not simply as a personal or political preference (as those of
the fashion police are considered to be)? After introducing the traditional
defence of legal interpretation and judicial decision-making as an exer-
cise in constrained and reasoned thought, I offer a more sceptical account
of law and adjudication. This is followed by some practical illustrations of
these theoretical observations. Throughout, the focus will be on seeking
to differentiate and identify the essential features of judging in both law
and fashion.
Come Dancing
The democratic status of judges has always been suspect. As law has
moved closer to the centre of constitutional politics, the continued
legitimacy of judicial review became even more dependent upon a suc-
cessful demonstration of its essential objectivity and apolitical character.
The fragility of the courts’ legitimacy arises not so much from their
exercise of power, but more from the nagging doubts about the warrant
under which they wield such authority. Judges must claim to speak and
act in a voice other than their own; they must justify themselves by
reference to an authority beyond themselves – the law. Borne and
practiced in politics, the idea is that law somehow manages to retain a
distinct identity which is related to politics, but is not entirely subsumed
by that politics. The persistent claim is that legal interpretation and
judicial decision-making can and should be performed in a way which
distinguishes it from the more open-ended ideological debates which are
the stuff of outright political struggle. The burden of the mainstream
jurist, therefore, is to show that, even if legal doctrine does not compel
definite results, it places sufficient constraints on judges to save them
(and us) from themselves or, at least, to justify placing our trust in them.
How is it possible, in matters of normative judgment, to get beyond a
discredited formalism, without turning law into an open forum of ideo-
logical debate? And by a group of people who have little democratic or
occupational mandate for such debate?
Of course, no self-respecting modern lawyer or legal theorist pretends
that law is Holmes’ ‘brooding omnipresence in the sky’ which lends itself
to formulaic application or provides robotic predictability.1 It is trite
1
Southern Pacific Co. v. Jensen, 244 US 205 at 222 per Holmes J. (1917).

come da ncing 85
learning that legitimacy cannot be grounded in law as a sealed system of

normative directives. Nevertheless, there remains a tenacious commit-
ment and aspiration to the idea that a difference exists between what the
law is and what judges say it is. To draw on Yeats’ imagery – “O body
swayed to music, O brightening glance,/ How can we know the dancer
from the dance?”2 – the challenge is to demonstrate that Law’s Dance is
not merely reducible to the preferences of those lawyers who happen to
be dancing at a particular time. The resort to political values is accepted
as inevitable, but the insistence persists that this process can be done in a
neutral way which insulates the judges against the charge of ideological
indulgence. While Law’s Dance is not disembodied nor alien and judges
are not incapable of moderating its direction or tempo, it is still treated as
much more than the accumulated pathways of lawyers’ peregrinations
over time. It is more a choreographed ballet than a free-form melee.
In earlier times, some judges and jurists managed to convince them-
selves as well as others that law was the imperfect echo of a heavenly tap-
dancer or the approximate waltz of an enlightened Reason. But today, in
an era of increased democratic transparency, the origins and legitimacy
of law’s dance can be no longer assumed. Indeed, in recent years, the
advent and vigour of Charter adjudication has served to reinforce the
anxiety about the democratic validity and merit of judicial decision-
making. Sceptics argue that it is not possible for judges to fulfil their
responsibilities in an objective, neutral, or apolitical way; law is simply
politics in more and, occasionally, less sophisticated garb. Legal inter-
pretation and decision-making is another site for ideological conflict, not
a method by which to avoid or neutralize such engagement. In blunt
terms, the vaunted Rule of Law is little more than the Rule of Lawyers/
Judges.
As Law’s Dance is not an optional exercise and can be coercively
imposed, the independence and impartiality of its legal choreographers
and practitioners is of pressing and paramount concern. Their authority
and immunity depend upon the assumption that they dance to some pre-
existing script and are not making it up as they go along. Legal reasoning
must be something more than simply what lawyers happen to do because,
if it were only that, it would warrant no greater (nor lesser) respect and
deference than what ideologues or bus-drivers to. To provide a convin-
cing justification of the crucial distinction between law and lawyers, it
must be shown that the doctrinal materials and judicial conventions
2
Among School Children in T H E C O L L E C T E D P O E M S OF W I L L I A M B U T L E R Y E A T S (1940).

86 f a s h i o n p o l i ce v . s up r eme co urt: a d ressing d own?
which comprise the law can offer objective (i.e., it does not collapse into
the personal opinions and deep-seated commitments of sitting judges or
academic commentators, but is governable by principles and values
which inhere in the law itself and constitutional traditions separate
from judges and jurists) and determinate (i.e., the general principles
established are capable of being applied directly and distinctively to the
resolution of concrete disputes) guidance in the resolution of most legal
cases. To put it in fashion terms, is there something about the law’s
substance and stylings which can be separated from the preferred styles
and renderings of the individual judges who comprise the Supreme Court
at any particular time?
In an oft-cited essay, now Chief Justice Beverley McLachlin of the
Supreme Court of Canada took up this challenge. She offered a spirited
defence against the critical and ‘fashionable’ attacks on the democratic
legitimacy of judicial power. Contending that it is wrong to characterize
the judiciary as excessively powerful or political, she insisted that “a
strong judiciary is essential to the maintenance of our democratic insti-
tutions”.3 At the heart of her argument was the claim that, at every turn,
the potentially despotic power of judges is hedged and controlled by the
traditions, conventions, and rules of the law itself. In an important couple
of statements, she maintained that “judges are guided by precedents
which dictate particular results, quite apart from the judge’s personal
views” and that “the power of the courts is constrained by many factors,
including their own rules, which forbid the exercise of power beyond
their own statutory and constitutional mandate”.4 For her, it is because
of, and not in spite of this respect for the Rule of Law that constitutional
democracies and, in her case, Canada manage to preserve the freedoms
which are consonant with a democratic society.
An initial response to McLachlin’s thesis is that its two main claims
seem to be in flat contradiction of each other. If the judiciary is as
circumscribed and restricted in its power as she suggests, it is difficult
to understand how it can carry out effectively its avowedly democratic
‘role of protecting minorities’ against governmental abuse.5 Similarly, she
argues that, while the judiciary is subservient to the legislative and
executive arms of government, it is entrusted with the avowedly anti-
majoritarian task of opposing the popular will in the name of
3
Beverley McLachlin, Of Power, Democracy and the Judiciary, 25 L A W S O C ’ Y G A Z . 20
(1991).
4
Id. at 21 and 27. 5 Id. at 25.

bo o t -s t r ap p i n g 87
constitutional rights. Contrary to what McLachlin asserts, it is surely the

case that the unelected judiciary is powerful precisely because it can pass
judgment on the actions of the elected legislature and its executive
leaders. The issue, therefore, is whether this exercise of anti-majoritarian
authority can be put on a democratic footing by virtue of the modes of
reasoning and methods used to interpret and implement constitutional
texts and principles.
Notwithstanding this, the central and enduring difficulty with
McLachlin’s argument is that it begs the very question to be answered.
She assumes the operative force of the supposed restraints – legal pre-
cedents, constitutional conventions, and judicial traditions – whose very
existence and efficacy is at stake and in contention. Any adequate defence
of judicial power in a democratic society must demonstrate that such
alleged limitations are capable of affecting the necessary control. It is, of
course, my contention that such a demonstration cannot be made and
that the power of the judges is indeed more ideological and, therefore,
undemocratic than is traditionally allowed. Accordingly, I will argue that
the political neutrality and determinacy of law cannot be maintained. In
other words, legal interpretation and decision-making is thoroughly
ideological because its performance and product can never be detached
from the identities and interests of its legal interpreters and judicial
decision-makers. As such, Supreme Court judges claim at the same
time to judge others by an allegedly independently created and indepen-
dently existing set of (fashion) standards they themselves have created
and relied upon.
In this way, the Supreme Court is engaged in a similar rhetorical and
self-referential exercise to its Fashion Police counterparts – the justices
claim to judge by standards whose existence and validity are as much part
of the argumentative discourse as their application of them. But these
very restraints are no more fixed, neutral, or objective than those of the
fashion police. In this sense, both justices and fashion police are engaged
in an entirely boot-strapping process. However, as befits both the
Supreme Court and the fashion police, it is more Louboutin than Wal-
Mart in cache and quality.
Boot-Strapping
Under the rubric ‘law is politics’, I take a very different view of the
theoretical status and methodological validity of judges’ claim to legal
determinacy. Legal doctrine does not conform to any simple internal

88 fashion p olice v. s upreme court: a d ressing down?
rationality nor is it reducible to a cluster of external organizing principles.

With imagination and industry, legal materials can be organized and
reorganized to support and justify incompatible outcomes: it is not a
matter of doctrinal rationality, but a question of political orientation.
More a constructive activity than a given thing, law involves an inescap-
able dimension of human choice. This is particularly true of Supreme
Court judges as they acknowledge openly that their task is not only to
apply precedents, but also to change and create new ones when circum-
stances so require. In a crucial sense, therefore, it is never possible simply
to ‘follow the rules’ because the question of what is the relevant and
precise rule and what following it entails remains irresolvably contest-
able: the law must be spoken for; it cannot speak for itself.
None of this is to imply that legal doctrine is nothing, but does assert
that it is a special kind of something which has to be interpreted to mean
anything. While there will be occasions of overt manipulation, it is as
mistaken to suggest that the judge has complete interpretive freedom as it
is to claim that the law effects complete interpretive control. Judges are
never fully restrained nor are they ever fully free; freedom and constraint
are mutually dependent and can only be made sense of in light of the
other. As such, judicial decision-making involves the constant struggle to
negotiate and change the pull of freedom and the push of restraint which
frame their work. In this way, judges are both freely restrained and
restrainedly free. It is not so much that we cannot know the dancer
from the dance, but we will always know Law’s Dance by the identity of
its legal dancers. Contrary to what McLachlin concludes, there is sub-
stantial cause to “be dismayed by the inescapable marriage of fallibility
and finality in the judicial function”.6
From a sceptical standpoint, law is always in the process of becoming
rather than in a state of being – the law never simply is. The very act of
interpreting law changes it and, on important occasions, redraws it
substantially. Nevertheless, it is a mistake to draw a distinction between
those who believe that interpretation is about objective reliance and those
who believe that there is only subjective creation; it is neither one nor the
other. Law is not simply created in the interaction between the legal
materials and the judge, but is found in the interplay itself; it is the
process of interpretation as much as the resources and the product
which counts as law. Indeed, law cannot be broken down into its con-
stituent parts without losing its essential dynamism. As such, law is less a
6
Supra, note 3 at 27.

boot-s trapping 89
thing and more an activity. It is inextricably bound up with the contested

values and divergent commitments of society. Law is a site of activity
which occurs both within and against a set of ideological values. Much
like fashion products, the law is not simply there in its object-like given-
ness, but is always waiting to be constructed, deconstructed, and recon-
structed by the active crafting of its judicial designers and tailors. Most
tellingly, when a legal rule or principle has outlived its perceived useful-
ness, it is simply abandoned and replaced by something thought to be
more fashionable and appealing.
Understanding judicial decision-making in this way helps to explain
why determinacy and indeterminacy are not pre-interpretive features of
the law, but qualities generated in the process of legal interpretation
itself.7 An area of law can be both determinate and indeterminate in
almost equal measure depending on the broad and immediate context of
its availability, apprehension, and application. Even the most apparently
settled areas of law are always vulnerable to being destabilized and
thereby reconfigured. Moreover, once it is grasped that the law is never
simply there, it becomes possible to appreciate that law’s normal condi-
tion is to be in a state of constant about-to-be, not already-is. Judges are
presented with a range of options and choices which are as much con-
strained by their capacity to rework the materials as by the materials
themselves. The judge is an artisan or craftsperson who works the law’s
nooks and crannies to cobble together the materials at hand so as to
manufacture and re-manufacture the law. Therefore, while judicial deci-
sion-making is very much an exercise in professional argumentation,
law’s resources are so capacious and its techniques so adaptable that it
can easily justify a range of plausible and contradictory results.
In presenting this sceptical account of law, it is important to emphasize
that a dismissal of traditional accounts does not commit me to an
explanation which reduces judging to ‘purely personal choice’, as
McLachlin puts it, or to a whimsical exercise of idiosyncratic choice.
This depiction of judging is merely the flip side of an unrepentant
formalism. For it to have any theoretical bite will depend on the possible
validity of a philosophically bifurcated inverse of decision-making in
which there is only objective truth or subjective opinion. For those like
7
See Duncan Kennedy, Thoughts on Coherence, Social Values and National Tradition in
Private Law in T H E P O L I T I C S O F A E U R O P E A N C I V I L C O D E 9 (Martijn Hesselink ed.,
2006) and Duncan Kennedy, A Left Phenomenological Alternative to the Hart/Kelsen
Theory of Legal Interpretation in D U N C A N K E N N E D Y , L E G A L R E A S O N I N G : C O L L E C T E D
E S S A Y S 154 (2009).

90 f a s h i o n p o l i c e v. su p r e m e c o u r t : a d r e s s i n g d o w n ?
McLachlin who do work within such a paradigm, the decision to criticize

a judge for his or her failure to follow and respect the presumed objective
truth of the Constitution or its developed doctrine more generally carries
some very harsh implications. The charge of indulging personal predilec-
tion suggests that, knowing the real truth of the Charter’s meaning in any
particular instance, the judge made a calculated decision to deviate from
it. In other words, the judges are accused of acting in bad faith. For these
defenders of the traditional practice of constitutional adjudication, the
admonition of a judge for using the wrong interpretive method or
applying it wrongly is considered tantamount to proposing that he or
she is not only a bad judge, but also a dishonest and irresponsible one.
In contrast, my sceptical account of law and adjudication makes no
such claims or allegations. I reject entirely that philosophical paradigm
and, as such, accept neither the objectivist account of judging nor its
subjectivist bête noir. Legal doctrine is not simply ‘out there’, but is always
in need of collective retrieval and re-creation. There can be no law
without interpretation, no interpretation without interpreters, and no
interpreters without politics. The distinction between ‘that to be inter-
preted’ and ‘who interprets’ cannot be sustained: doctrine and judges
interact to shape each other in a contingent context of political power.
Contrary to McLachlin’s views, judicial decision-making is neither the
intelligible articulation of objective meaning nor the raw expression of
subjective preference; it moves and shifts between the constraining rules.
This sceptical account of law and adjudication manages to incorporate
the judges’ sense of felt boundedness and, at the same time, exposes and
challenges the supposedly detached grounds of contestable values on
which judges claim to rest their decisions.
Of Principles and Puddings

The proof of any theoretical pudding is in the eating. This is as true for
the sceptics’ position as it is for the traditionalists’. The major argument
which must be defended is that law is different from politics in that the
application of legal reasoning to particular problems will make an appre-
ciable difference to their resolution. If such cases had been left to the ebb-
and-flow of candid ideological exchanges between judges, the traditional
argument must be that the outcome might be different. It will not always
be different, but there needs to exist at least the possibility that judges will
rein in their individual political preferences. If this were not the case and
judges’ values always lined up with their legal judgments, then the space

of principles and p uddings 91
between law and politics will have been effaced. In short, the law per se
must make a difference. Consequently, I will offer three short and
celebrated examples of where the Supreme Court has not been able to
defend the McLachlin-esque claim that “judges are guided by precedents
and principles which dictate particular results, quite apart from the
judge’s personal views”.
The first example is the Secession of Quebec Reference in which the
Supreme Court had to decide whether Quebec could secede unilaterally
from the rest of Canada. In a wide-ranging and unpredicted judgment, the
Court not only decided that the constitutional text was not the sole source of
constitutional guidance, but also that the text was not even the primary
source. The Court held that the constitutional structure was tied together and
supported by principles that “inform and sustain the constitutional text; they
are the vital unstated assumptions upon which the text is based”. However,
mindful of the Constitution’s character as ‘a living tree’, the list of these
overarching and foundational principles – federalism, democracy, constitu-
tionalism and the Rule of Law, and respect for minority rights – were not
considered fixed in identity or in application, even though they might ‘give
rise to substantive legal obligations’.8 These are breath-taking assertions by
the Supreme Court. While they might meet with general and political
approval by many, it is extremely difficult to see how they are not judge-
created or, at least, judge-recognized; ‘democracy’ is a recent and welcome, if
unexpected, addition to the list as a principle that takes precedence over
other ideas. Moreover, the application of such abstract commitments is such
an open-ended process that it is of almost no disciplinary or restraining
effect. In short, the Constitution is what the Supreme Court judges think it
should be as a matter of political commitment or acceptability.
Chief Justice McLachlin’s more recent efforts to deflect this criticism
are unconvincing. Invoking ‘the ancient doctrines of natural law’, she
insists that the identification and application of such unwritten constitu-
tional principles can be performed by the tried-and-true methods of ‘a
rigorous process of legal reasoning’ and resort to ‘judicial conscience’.
For her, judges are not acting illegitimately because they are guided and
restrained by “a nation’s past custom and usage; from the written text, if
any, of the nation’s fundamental principles; and from the nation’s inter-
national commitments”.9 In short, she suggests that this task is no
8
See Reference re Secession of Quebec, [1998] 2 SCR 217 at paras. 49, 32, 52, and 54.
9
Beverley McLachlin, Unwritten Constitutional Principles: What’s Going On? www.scc-csc.ca/
court-cour/judges-juges/spe-dis/bm-2005–12-01-eng.aspx.

92 fashion p olice v . s upreme court: a dressing d own?
different than any other mode of judicial work and is part of the commit-
ment to abide by the Rule of Law; it is business as usual. Yet it is hard to
see how these vague and contested sources – custom and usage, written
texts, international law, and judicial conscience – can do the heavy lifting
the Chief Justice asks and expects of them. Again, the tools and resources
available are so abstract and general as to be of no practical assistance in
specific circumstances or so loaded with partial and particular content as
to be of no neutral or objective legitimacy. After all, for these unwritten
principles to be triggered, the legislative and executive branches must
have reached different conclusions on the import and effect of those
contested sources. As such, the troublesome issue of democratic legiti-
macy is not resolved, but further underlined.
The second example is the effort to decide what the Canadian Charter’s
bare ‘right to vote’ means in regard to electoral districting. The
Saskatchewan Court of Appeal determined that equality of voting
power was the primary concern and, therefore, the legislature’s efforts
to draw electoral boundaries based on other considerations, like geogra-
phy, history, and community, were unconstitutional. The Supreme Court
took a different approach and held that “the values and principles
animating a free and democratic society are arguably best served by a
definition that places effective representation at the heart of the right to
vote”:10 districts could vary by up to plus or minus 25 per cent of the
provincial average. There is much to recommend this outcome as a
matter of political compromise. However, again, it is difficult to appreci-
ate how this follows as a matter of law. As the Supreme Court notes, this
approach is ‘arguably’ superior. By that, it seems to be conceding the
point that its attractiveness is more a matter of good politics than valid
law. And, by that, McLachlin’s majority opinion acknowledges that
reasonable people can disagree about what ‘best serves’ democracy. If
the political arguments pulled the other way, the law would have come
out differently. In other words, McLachlin’s supposed restraints of ‘legal
precedents, constitutional conventions, and judicial traditions’ are inside,
not outside the law and are, therefore, less a grounding of the law than a
contested feature of it.
The third and final example involves two important decisions –
Saskatchewan Federation of Labour11 on the right to strike and Carter12
10
Reference re Provincial Electoral Boundaries (Sask), [1991] 2 SCR 158 at 175 per
McLachlin J.
11
Saskatchewan Federation of Labour v. Saskatchewan, [2015] 1 SCR 245.
12
Carter v. Canada, [2015] 1 SCR 331.

co nclusion 93
on assisted suicide – which overturned previous constitutional decisions.

In both cases, the Supreme Court made plain that this was explicable as a
result of the law’s ‘evolution’, the need for ‘a generous and purposive
approach’, and the support of history, jurisprudence, and by Canada’s
international obligations. In particular, in Carter, it was decided that the
radical step of overruling or distinguishing a prior and long-standing
ruling precedent was acceptable and perhaps necessary “where there is a
change in the circumstances or evidence that ‘fundamentally shifts the
parameters of the debate’”.13 This rationale has a certain appeal and
legitimacy, but it does serious damage to claims that the judges’ authority
is a corollary of their interpretive power being constrained by ‘legal
precedents, constitutional conventions, and judicial traditions’. Indeed,
the upshot of this approach seems to be that such an imperative about the
disciplinary effect of ‘legal precedents’ is only binding until the court
decides to abandon that precedent. Of course, this means that the
Supreme Court and its judges are only bound by precedents until they
are not. Again, this kind of circuitous and politically charged argument
will only be persuasive to the already converted acolytes of the Supreme
Court. It confirms rather than confounds the critical claim that ‘law is
politics’.
Conclusion
So are Supreme Court judges engaged in a very different and more
exalted enterprise than their Fashion Police counterparts? Is judging in
law a qualitatively distinct mode of reasoned evaluation from judging
fashion? The answers to these questions are for others to reach. But my
own take is that the difference, if any, is more elusive and insubstantial
than many would like to think. Of course, the participants believe that
they are involved in different enterprises. Although the Fashion Police
judges take what they do with some seriousness, they accept that they are
not in as solemn a business as their Supreme Court counterparts: the
fashionistas play to the gallery in a way that is more light-hearted and less
earnest than the jurists. Also, the defining currents of fashion sensibilities
are much more serendipitous than those of law, even though there are
important, if different and changing socio-economic forces at work in
both fashion and law. But, beyond that, there is a certain commonality to
their respective efforts to work with standards and principles which they
13
Id. at para. 44.

94 fashion p olice v . s upreme court: a dressing down?
consider relatively objective and to apply them in good faith. In both

cases, what counts as a ‘good decision’ has more to do with whether
people like it politically or aesthetically than with whether the decision
was reached in a methodologically appropriate and detached way. As
Coco Chanel said (and a critical Supreme Court judge might concede), “I
don’t do fashion. I am fashion.”

6
The Politics of the Charter: A Critical Approach
Oddly enough, the advent of the Charter proved a boon and a blessing to
critical scholars – the claim that ‘law is politics’ was given a new depth
and dimension. This is not to say that there was no critical edge to legal
scholarship in the more than 100 years of Canada’s constitutional tradi-
tion.1 It is only that Charter adjudication brought to the fore the political
quality and contestable nature of rights adjudication in a constitutional
setting. More than discussions about the division of powers between
federal and provincial governments, it ensured that legal theorists and
commentators had to contend with the obviously political nature of
constitutional law and adjudication. The challenge was to demonstrate
that the courts could be political in a neutral and objective way which was
not hostage to any controversial political ideology and would advance
democracy in a positive way.
However, after almost 25 years of Charter experience, many of the
fears of the Charter’s critics have come to pass – judicial review under the
Charter of Rights and Freedoms operates as an institutional device to
curb more than advance democratic politics and to entrench more than
challenge a conservative ideology.2 The Charter is indeed a potent poli-
tical weapon, but one which has been and continues to be used to benefit
1
PAUL WEILER, THE LAST RESORT: A CRITICAL STUDY OF THE SUPREME COURT OF
C A N A D A (1974) and P A T R I C K M O N A H A N , P O L I T I C S A N D T H E C O N S T I T U T I O N : T H E
C H A R T E R , F E D E R A L I S M , A N D T H E S U P R E M E C O U R T O F C A N A D A (1987).
2
See, for example, J. B A K A N , J U S T W O R D S : C O N S T I T U T I O N A L R I G H T S A N D S O C I A L W R O N G S
(1997); A. H U T C H I N S O N , W A I T I N G F O R C O R A F : A C R I T I Q U E O F L A W A N D R I G H T S (1989);
M. M A N D E L , T H E C H A R T E R O F R I G H T S A N D T H E L E G A L I S A T I O N O F P O L I T I C S I N C A N A D A
(2nd ed., 1994); and A N D R E W P E T T E R , T H E P O L I T I C S O F T H E C H A R T E R : T H E I L L U S I V E
P R O M I S E O F C O N S T I T U T I O N A L R I G H T S (2010).
95

96 t he p o l i t i c s of t he c ha r t er : a c r i t i c a l ap pr o a c h
vested interests in society and to debilitate further an already imperfect

democratic process of government. For such critics, whether or not that
was the intention of its proponents and drafters is beside the point.
Indeed, despite some of the best intentions of the ‘Charter party’, the
courts have not delivered on the touted democratic promise of the
Charter. Of course, there are occasions of progressive justice (e.g., gay
rights and electoral reform), but the overall direction and content of the
Charter is far from the ‘People’s Charter’ which was promised and
predicted.
In this chapter, I will canvass the different critical challenges to the
Charter. In so doing, I will explain the force and legitimacy of an
unconditional critical stance as compared to shallow criticisms of most
Charter commentators. In short, the critical approach rejects the deep
and disturbing assumption that judicial power can be exercised in an
apolitical, objective, and neutral manner. It is not that judges are unpro-
fessional or biased in some surreptitious manner, but that adjudication is
inescapably political and non-objective. Judges must stand somewhere
when they judge, and that somewhere is political in place and orientation.
To make this central point, I will anchor the discussion in practical and
doctrinal instances which illustrate and affirm the critical approach.
The Critical Challenge

Until almost 20 years after the introduction of the Charter, the Supreme
Court had not staked out any comprehensive position on the precise role
of courts in remedying Charter wrongs. In Doucet in 2003, it took that
first step. A trial judge had ordered Nova Scotia to use its ‘best efforts’ to
provide French-language school facilities and programs in certain areas
by specified dates and had retained continuing supervision of the matter.
The Province contended that this continuing judicial supervision inap-
propriately trespassed onto the government’s political discretion. The
Nova Scotia Court of Appeal agreed and held that, while courts have
broad-ranging powers under s. 24(1) of the Charter to fashion remedies,
the Charter does not extend a court’s jurisdiction to meddle in the details
of a province’s administrative management: there were limits to the
courts’ authority to interfere with what were matters of political
judgment.
A majority of the Supreme Court of Canada had no such qualms. By
the narrowest of margins, 5-4, the Supreme Court decided that the
Constitution and legal tradition demanded that the trial judge should

t h e c r i t i c a l c ha l l en g e 97
remain seized of the issue. Speaking for their colleagues, Iacobucci and
Arbour JJ recognized that, while the courts should be cautious in invol-
ving themselves in such matters, they must complement their purposive
interpretation of Charter rights with a purposive approach to remedies.
While the court must also be sensitive to the limits of its role as judicial
arbiter and not interfere unduly with the roles of the other branches of
governance, the judicial crafting of remedies will vary according to the
right at issue and the context of each case: the advancement of democratic
ends should not be accomplished by undemocratic means. Accordingly,
the majority held that, in the particular circumstances of the Nova Scotia
schools and mindful that delay might defeat the parents’ rights, a super-
visory remedy “took into account, and did not depart unduly or unne-
cessarily from the role of courts in a constitutional democracy”.
The dissenting judges took a much more restrained line. The minority
maintained that, once a court had issued its decision, it ought to rely
upon the government to act with reasonable diligence and in good faith:
it was not the role of courts to act as direct overseers or superintendents
of the executive function. LeBel and Deschamps JJ insisted that it was
vitally important that the courts respect the appropriate constitutional
boundaries and balance between the different branches of government
power: democracy demanded that the judicial role be limited and mod-
est. Although it was imperative that citizens’ Charter rights be properly
and fully enforced, the minority took the definite view that this did not
permit the courts to interfere in the legitimate exercise of executive
discretion. As such, the minority considered that invasive remedies,
such as the trial judge’s in this case, were illegitimate and amounted to
a virtual administrative micromanagement that “led to the improper
politicisation of the relationship between the judiciary and the
executive”.3
Not surprisingly, the Supreme Court’s decision was greeted with a
deluge of public and academic commentary. ‘Activism’ was the word on
most people’s lips. At the heart of these responses was the concern that
the courts might have gone beyond the bounds of what unelected judges
should be doing in a constitutional democracy; they might have vacated
the realm of legal decision-making and trespassed into the arena of
political discretion. After more than 20 years of debate about the legiti-
macy and reach of Charter review by courts over government action, the
main thrusts of the response were predictable and well-rehearsed. On one
3
Doucet, [2003] SCC 62 at 45, per LeBel and Deschamps JJ, as joined by Major and Binnie JJ.

98 t he p o l i t i c s of t he c ha r t e r : a c r i t i c a l ap p r o a c h
side were those who viewed the majority decision as further evidence that
the judges had overstepped the bounds of their authority and compe-
tence: it was blatant and unwelcome ‘judicial activism’. By interfering in
the fiscal administration of public programs, an unelected, unrepresen-
tative, and unchecked judiciary had violated the separation of powers and
imperilled ‘established traditions of responsible government’. Some went
so far as to see the decision as a ‘gratuitous and arrogant’ power grab
which bordered on the ‘monarchical’. However, on the other side, there
was applause for a bold court which had overcome the pusillanimity of
some of its members to provide meaningful and effective protection to
people’s constitutional rights. If the Rule of Law was to be truly respected,
it was thought essential that constitutional entitlements be effective
remedies; it was not only desirable, but also necessary that governments
not be allowed to evade, complicate, or ignore court orders. Far from
imperilling responsible government, the Doucet decision had contributed
to the legitimacy of Canada’s democratic commitments by giving the
Charter ‘muscles’ and ‘teeth’.4
While both sides of this debate have something important to contri-
bute, neither manages to capture the full thrust of a truly ‘critical’
approach. From a critical standpoint, the Charter debate is much broader
and deeper than both sides contemplate or accept – whether activist or
restrained, the judges are involved in an inevitably and thoroughly
political endeavour. Indeed, all efforts to separate law from politics are
doomed to failure; this is especially true of the more traditional position
taken by the minority and championed by a cadre of conservative aca-
demic critics. Accelerated by Charter adjudication, but not restricted to
it, the Canadian judicial system is considered to have lost its way. The
courts, especially the Supreme Court of Canada, are condemned as
having become highly politicized and highly interventionist in their
decisions and judgments. Effectively abandoning established legal prin-
ciples and modes of legal reasoning, the judiciary has unwisely and
indulgently shifted its focus to an analysis based on ‘values’. Moreover,
unlike the traditional understanding of judicial decision-making, this
resort to values has more to do with a judge’s own personal political
4
For a sampling of these responses, see Gunter, Judicial Arrogance Borders on Monarchical,
N A T I O N A L P O S T , November 20, 2003, p A18; Makin, Top Court Pursuing Activism, T H E
G L O B E A N D M A I L , November 13, 2003, p A16; Judicial Rule, Editorial, N A T I O N A L P O S T ,
November 8, 2003, p A19; Young, Court Gives Our Toothless Charter Sharp Fangs, T H E
T O R O N T O S T A R , November 23, 2003, p F07; and Roach, Do We Want Judges with More
Muscle?, T H E G L O B E A N D M A I L , November 13, 2003, p A27.

t h e cr i t i c a l c h a l l e ng e 99
commitments than an impersonal assessment of a case’s legal merits.

These critics charge that, when recent judicial pronouncements are
looked at as a body of work, they have not only become blatantly political,
but reflect and instantiate a particular and partisan set of liberal-feminist
commitments. In effect, these critics charge that ‘judicial activism’ is not a
careless aberration by an overworked judiciary, but a concerted derelic-
tion of official duty by a politically motivated judiciary. As such, there is
an indignant call to return to the passive and neutral virtues of judicial
restraint so that the promise of Canadian democracy can be redeemed. Of
course, judicial activism has no part to play in such a restorative vision of
law.5
While this traditional critique is long on the details of the judiciary’s
current political fall from constitutional grace, its adherents are very light
on how a purely legal mode of principled adjudication can be performed
and when a golden age of apolitical decision-making happened. While
these exhortations to ‘stick to the law’ are seductive, they offer little
suggestion of how such a seemingly prosaic practice can be achieved.
At a theoretical level, three initial observations come to mind. First, the
ascertainment of legal principles is itself fraught with political contam-
ination and content. ‘Established’ is simply a way of saying that certain
controversial moral or political commitments are now accepted by the
legal community as settled; this is less an endorsement of the principles’
apolitical nature and more an acknowledgement that general acceptance
is a form of political validation. Secondly, the range of established
principles is extremely broad and often encompasses competing maxims;
there is no neutral or apolitical way to select between contradictory
principles. Thirdly, even if it is possible to isolate a relevant and exclusive
legal principle, it is far from obvious how that general principle can be
applied to particular facts in an entirely objective or impartial manner. In
short, despite the critics’ yearning for a simpler and more professional
age, there is no purely technical and apolitical way to engage in a
principled mode of adjudication. This is especially true of the Charter.
Not only is what amounts to ‘freedom’ or ‘equality’ the stuff of fierce
ideological debate (and how one relates to the other), but how such values
are to be enforced within s. 1’s ‘such reasonable limits as can be demon-
strably justified in a free and democratic society’ merely invites judges to
5
See, for example, F. M O R T O N and R. K N O P F F , T H E C H A R T E R R E V O L U T I O N A N D T H E
C O U R T P A R T Y (2000); and R. M A R T I N , T H E M O S T D A N G E R O U S B R A N C H : H O W T H E
S U P R E M E C O U R T O F C A N A D A H A S U N D E R M I N E D O U R L A W A N D O U R D E M O C R A C Y (2003).

100 the politics of t he charter: a critical a pproach
wade even deeper into the political waters. Adjudication necessarily

involves political choice.
The fact is that the dissatisfaction with ‘judicial activism’ is itself a
political campaign. Behind the traditional rhetoric of principled adjudi-
cation is a very definite and partial political agenda. While it is under-
standable why such critics would prefer to occupy the neutral territory of
formal constitutional technique rather than the contested turf of sub-
stantive political alignment, the effort to portray and promote an apoli-
tical mode of constitutional adjudication as possible and desirable is a
neat but deceptive manoeuvre. When a closer look is taken at those
occasions on which the critics raise the spectre of activism and those on
which they do not, it will be seen that the difference is a blunt ideological
one. Those decisions that do not fit their political agenda are condemned
as activist and those that do fit are defended as appropriate. The con-
stitutional line is one of their own political making. In general, those
decisions which promote greater equality (e.g., gay rights, aboriginal land
claims, etc.) are dismissed as activist and illegitimate, whereas those
which defend greater liberty (e.g., election spending, male property
rights, etc.) are showcased as valid exercises of judicial authority. Yet,
in terms of their fit with the opaque constitutional text and the courts’
activist tendencies, there is nothing to choose between them. It is only
that some substantive values are preferred over others. Accordingly, the
claim of ‘activism’ is simply a veiled criticism that the courts are being too
progressive and making decisions which do not reflect desirable conser-
vative values: any court which stands by and lets constitutional values be
ignored or belittled is at fault. But there is no technical or purely legal way
to decide what those values are – law is politics by other means. The
Charter is a contested site for political debate, not a definitive or neutral
contribution to that debate.
Indeed, the Doucet decision itself is a good example of the disingenuity
of those who reject ‘judicial activism’ in the name of traditional judicial
virtues. As the judgments of the minority reveal, theirs is less a rejection of
political decision-making and more a championing of a particular and
partial view of constitutional politics. Despite repeated incantations about
‘the separation of powers’ and that ‘the legislature and the executive are . . .
the principal loci of democratic will’, the minority makes no real effort to
demonstrate that this is somehow an accepted legal principle as opposed to
a contested political commitment. It is not at all that the majority reject
these general principles, it is that it has have a different view of what those
commitments demand in the particular circumstances. Moreover, it is

an d th e de bat e goe s o n 101
unconvincing for the minority to maintain that the judiciary “should avoid
turning themselves into managers of the public service”. The entire history
of administrative law confounds such trite observations about the need to
“avoid interfering in the management of public administration”.
Furthermore, while it is important to recognize constitutional boundaries
to judicial action, those boundaries are not independently given, but are
developed and negotiated by the courts themselves. While judges must
respect that the executive and legislative branches are ‘the principal loci of
democratic will’, that is not the point. In light of the fact that the judges,
including members of the Doucet minority, regularly and rightly interfere
with executive and legislative authority when they breach the Charter, the
real point is when and how they should so interfere as a matter of
constitutional requirement, not whether they ever should. Accordingly,
the difference between the majority and minority judgments is not
between legitimate and illegitimate modes of adjudication, but between
competing visions of an appropriate constitutional and democratic order.
Each has to be defended in political terms: there is simply no method by
which to declare that one is more intrinsically legal and, therefore, non-
contestable than another. It hardly advances the democratic cause to
deploy subterfuge and to pass off political commitments as constitutional
mandates. Decisions should be celebrated or condemned for the substan-
tive values they uphold, not for their vague failure to respect some spurious
formal distinction between making and applying law.
And the Debate Goes On

The Charter crystallized the long-standing dilemma of the courts in
trying to reconcile their new role as active guardians of fundamental
values with the democratic values and traditions of Canadian society.
They had to develop a way to act decisively as well as legitimately. In the
Charter’s early years, judges relied upon the old standby of ‘liberal
legalism’ – a sharp public/private distinction, neutral interpretation,
and objective balancing – as a method for legitimizing their decisions
and reconciling the courts’ role with democracy. However, it soon
became clear that this jurisprudential modus operandi was failing to
placate either liberal or more radical critics who complained that judicial
review was not fulfilling its functions as effectively or as democratically as
it might. Not only were the courts’ efforts at preserving a sharp distinc-
tion between legal analysis and political judgment becoming more trans-
parent and unconvincing, but the substantive political values which

102 the p olitic s o f the char ter : a cr iti cal app r oac h
animated their decisions were being revealed as increasingly outdated

and unresponsive to contemporary Canadian sensibilities. Indeed, ‘lib-
eral legalism’ was unable to command a sustained consensus even
amongst judges. In response, the Supreme Court began to nurture a
less legalistic and more pragmatic approach to its constitutional duties.
The Supreme Court did modify and mollify its approach in light of these
criticisms, especially in its approach to equality (abandoning the old Bill
of Rights approach) and to the reach of the Charter under s.32 (rejecting
unsustainable distinctions). Moreover, the general thrust of the law-is-
politics critique was heeded to the limited extent that the courts backed
off from a transparent and discredited version of ‘legal formalism’ which
pretended that constitutional law was simply a matter of interpretive
conformity which had no connection to wider debates about national
values and social policies.
Ironically, these very efforts to bolster their democratic legitimacy by
relying on an apparently more overt mode of democratic justification
revealed even more starkly how undemocratic was the judges’ involve-
ment in judicial review under the Charter.6 In recent years, there has been
a turn to ‘dialogue theory’ as an alternative justification for judicial
review. Judges and jurists have begun to accept that that some reliance
on contested political commitments is not only inevitable, but also
desirable. The primary concern is less with politicization itself and
more with “the degree to which judges are free to read their own
preferences into law”.7 As such, activism is less about whether judges
rely on political preferences at all and more about the sources of such
values and the extent to which they rely on them. Cautioning that judges
are not free to go wherever their personal political preferences take them,
the dialogic approach does not abandon the idea or practice of maintain-
ing a barrier between legitimate legal analysis and illegitimate political
decision-making. Instead, in contrast to the anti-activists, it is argued that
the distinction is much fuzzier, that the domain of law is much more
expansive, and that the boundary between law and politics is much less
breached. However, like the anti-activists, they do concede that there is a
point at which the judges can be said to be no longer doing law; they will
have wandered off into other parts of the constitutional and political
6
Petter, supra, note 2.
7
K. R O A C H , T H E S U P R E M E C O U R T O N T R I A L : J U D I C I A L A C T I V I S M O R D E M O C R A T I C
D I A L O G U E (Toronto: Irwin Law, 2001) p. 106. See also Hogg and Bushell, The Charter
Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad
Thing After All) (1997) 35 O. H. L. J. 75 (1997).

a n d th e de ba te goe s on 103
domain. In some important sense, law is to exist separately from its

judicial spokesperson such that law places some non-trivial constraints
on what judges can do and say. While legal principles are more open and
sensitive to political context, law is not reduced to the contingent political
preferences of the judiciary.
Consequently, the general thrust of the dialogue theory is that, because
the legislature possesses the final word on Charter matters by virtue of the
s. 33 override power, the courts can engage in a more overt balancing of
political values under the s. 1 ‘reasonable limits’ provision. The claim and
hope is that the courts and the legislature will engage in an institutional
conversation about the Charter and its requirements on particular and
pressing issues of the day: the courts and the legislators have comple-
mentary roles which enable legislation to be carefully tailored to meet the
government’s political agenda and respect Charter values. The most
prominent judicial advocate of a dialogic approach was Justice
Iacobucci, who insists that “judicial review on Charter grounds brings a
certain measure of vitality to the democratic process, in that it fosters
both dynamic interaction and accountability amongst the various
branches”. In establishing a ‘dialogic balance’ and ‘retaining a forum
for dialogue’ between the different branches of government, the courts
must tread a thin, but vital line between deferential subservience and
robust activism. The courts and legislatures are to be dialogic partners in
an institutional conversation to advance shared democratic goals.
While this resort to ‘democratic dialogue’ does at least concede the
normative nature of Charter decision-making and represent an effort to
get beyond a discredited liberal legalism, it seems to have let the political
cat out of the judicial bag without any plan for getting it back in or
keeping it suitably leashed. The majority judgments in Doucet again offer
compelling evidence of this claim. Indeed, suspiciously bereft of any
reference to ‘dialogic theory’, the judgment of Iacobucci and Arbour JJ
spends much of its time, directly and indirectly, trying to repel the
debilitating spectre of judicial activism. Although the majority empha-
sizes time and again that “courts must ensure that government behaviour
conforms with constitutional norms but in doing so must also be sensi-
tive to the separation of function among the legislative, judicial and
executive branches”, it is relatively quiet on how that separation is to be
achieved. Eschewing the notion that there is some ‘bright line’ in exis-
tence, their only serious suggestion is that judges must be thoroughly
pragmatic and contextual in their assessments: “determining the bound-
aries of the courts’ proper role, however, cannot be reduced to a simple

104 the po l itic s of the char ter : a cr itic al a pp r oach
test or formula; it will vary according to the right at issue and the context
of each case”. The conclusion that “the judicial approach to remedies
must remain flexible and responsive to the needs of a given case” is
unlikely to give comfort to those critics who look for some discipline in
or direction to the courts’ future performance. Indeed, an uncommitted
observer might be forgiven for thinking that, on the question of whether
‘law is politics’, the court has given up the ghost rather than exorcised the
wraith of judicial activism.
Accordingly, with its apparent rejection of judicial objectivity, lack of
normative content, and vague invocations of democracy, the most recent
juristic approaches to judicial review actually serve to undermine fatally
the project of justifying Charter adjudication’s democratic legitimacy.
Although dialogic theory is intended to calm fears that the courts are
undisciplined and unlimited in their powers, it manages to reinforce the
perception that courts are not only at the centre of the crucial process
through which political discourse and values are shaped and sustained,
but also that courts get to determine the role and contribution of the
other branches of government. The ‘degree to which judges are free to
read their own preferences into law’ seems to be reducible to the rather
oxymoronic conclusion that they will be as ‘free to read their own
preferences into the law’ as ‘their own preferences’ allow. There is a
huge gap between the rhetoric of democratic dialogue and the reality of
judicial performance. Presenting judicial review as part and parcel of a
democratic dialogue merely underlines the extent to which democracy
has become a caricature of itself. An elite and stilted conversation
between the judicial and executive branches of government is an entirely
impoverished performance of democracy; it is an empty echo of what
should be a more resounding hubbub.
A Critical Proposal
It is understandable why most judges and jurists wish to ground an
objective practice of judicial interpretation which obviates judicial
value choices and does not tread on the democratic toes of legislative
or executive decision-making. However, it is a misplaced ambition and
doomed to failure. As judicial review involves unelected judges invalidat-
ing the actions of elected legislators or executives, all judicial review is
anti-majoritarian and, therefore, presumptively undemocratic; no theory
can reconcile judicial review with majority rule. The Doucet minority is
surely correct to emphasize that “the legislature and the executive

a c rit ica l pr op osal 105
are . . . the principal loci of democratic will”. Because there is no way to

bring such a project to a satisfactory conclusion, continuing attempts to
do so merely exacerbate the problem of democratic legitimacy and erode
the very confidence the legal establishment is trying to maintain. A better
response would be to acknowledge that adjudication in a society of
diverse and conflicting politics is an inevitably ideological undertaking.
Once this is done, courts will not necessarily become otiose or surplus to
democratic requirements. Instead, it might be accepted that both courts
and legislatures are involved in the same game, namely delivering sub-
stantive answers to concrete problems. In doing so, neither courts nor
legislatures have a lock on political judgment about what is the best thing
to do. Having abandoned the crude Bickelian counter-majoritarian chal-
lenge to the courts’ democratic legitimacy,8 the Supreme Court should
follow through on the political logic of its own analysis; it must have the
institutional courage of its own jurisprudential convictions about democ-
racy being more than a formal and majoritarian ideal.
Once liberated from the confining strictures of traditional thinking,
the question of how and whether courts act with democratic legitimacy is
of a very different order and character. The Bickelian difficulty has little
to say about what values are important to democracy other than an
unthinking regard for majoritarian processes. Once the principle of
democracy is accepted to have a substantive as well as formal dimension,
the justification for judicial action must also be viewed in substantive as
well as formal terms. The work of courts needs be judged neither by
their capacity to be objective and impartial nor by their willingness to be
consistent with, and not interfere with, majority politics. Instead, they
can be evaluated in terms of the value choices they make and the
contribution their decisions make to advance substantive democracy
in the here-and-now. If the traditional presumptions – that legislatures
are unprincipled and political and that courts are principled and
reasoned – are dropped, it is possible to arrive at a very different
understanding and account of the relation between courts and legisla-
tures. For instance, the conclusion is possible that legislatures and
courts are both principled and unprincipled to greater and lesser
extents at different times and that each can further (as well as inhibit)
the cause of democratic justice on a particular issue as much as the
other. Moreover, as Doucet suggests, reliance on ‘principles’ is no less
8
See A. B I C K E L , T H E L E A S T D A N G E R O U S B R A N C H : T H E S U P R E M E C O U R T AT THE BAR OF
P O L I T I C S 14–18 (2nd ed., 1986).

106 the po l itic s of the char ter: a cr itic al a pp ro ach
political and no more legal in any essential sense. The more pressing
conundrum, therefore, is that, if democratic procedures do not guar-
antee democratic outcomes and democratic outcomes need not result
from democratic procedures, how can we best organize constitutional
arrangements so that democracy as a whole is more than less likely to
prevail?
Accordingly, the appropriate inquiry in a constitutional democracy is not
to ask whether the courts have acted politically and, therefore, improperly,
but whether the political choices they have made serve democracy. Because
this democratic assessment is substantive and political undertaking, not
formal and analytical, it will always be a contested and contestable issue.
Nevertheless, what counts as a democratic decision is not entirely reducible
to a political and, therefore, open-ended debate about what is most appro-
priately democratic at the time and under the circumstances. The formal
dimension of democracy insists that some account is taken of the general
institutional location and position of relative governmental agencies. The
fact that legislators are elected and judges are unelected has some political
salience. However, as Doucet evidences, while judges must respect that
distinction, such an allocational decision will itself be political and con-
text-specific. In determining the courts’ role in a functioning democracy,
there is no authoritative and organizing meta-principle to which the courts
can resort which is not itself political and controversial. The scope of the
courts’ role and power is itself part of the continuing debate about democ-
racy which is a task of the most enduring and political kind. Of course, the
concern that courts are interfering too much in the political process is also a
valid one. There is a keen need to be vigilant about what courts are (and are
not) doing. Any court which tramples too often on the policy-making
prerogative of Parliament and legislatures is asking for trouble: judges
need to recognize that they are part of democracy’s supporting cast, not
its star performers. It is what the courts are active about which is the key. It
is no more or less political to maintain the status quo than it is to subvert it;
conservatism is as ideological as progressivism.
Despite the denials and resistance of traditional judges and jurists,
constitutional common law is awash in the roiling and mucky waters of
political power. While judges and lawyers claim to keep relatively clean
and dry by wearing their institutional wetsuits of abstract neutrality and
disinterested fairness, they are up to their necks in ideological muck. And
this is no bad thing. Because it is only when judges come clean, as it were,
and admit that they have political dirt on their hands that they will
appreciate that adjudication generally and constitutional adjudication

a r adical interventio n 107
particularly amount to an organic and messy process which has a simi-

larly organic and messy connection to those social needs it claims both to
reflect and shape. So enlightened, judges might begin to accept that they
are involved in a political enterprise whose success and legitimacy are
best evaluated not by the courts’ formal dexterity and technical compe-
tence, but by their substantive contribution to the local advancement of
social justice. Abandoning the persistent attachment to a false distinction
between a relatively unsoiled practice of principled adjudication and a
contaminated involvement in crude politics would be an excellent place
to begin such a commitment. As long as its practitioners and their juristic
apologists present the constitutional law as an insulated and insular
process, courts will run the considerable risk of being unresponsive to
and unreflective of the needs they are supposed to address. On the other
hand, if judges and jurists are more willing to concede that the worlds of
law and politics are intimately related, it might become possible to give
society’s needs the kind of direct and substantive attention they merit. It
is difficult enough for judges to fulfil their daunting roles without them
also pretending at the same time that they are engaged in an entirely
different enterprise. Efforts at local substantive justice are not enhanced
by a mistaken belief that universal or formal coherence is at stake.
Legitimacy is best attained by candour and frankness, not by denial and
dissemblance.
A Radical Intervention
Few decisions bring together the critical challenge to the Charter better
than the Supreme Court’s decision in Chaoulli.9 A patient and physician
contested the validity of a legislative prohibition on private health insur-
ance: they insisted that the prohibition deprived them of access to private
health care services which do not have the longer waiting times inherent
in the public system. The essence of the claim was that the Quebec
legislative provisions violated their rights under s. 7 and s. 1 of the
Quebec Charter of Human Rights and Freedoms. The Court struck
down the provisions on the basis of the Quebec Charter and by implica-
tion the Canadian Charter. In short, any notion of a public or social good
was eclipsed by a privatized vision of social justice in which the privileges
of the haves hold the have-nots hostage to their own economic freedom.
Quite simply, the decision in Chaoulli confirms that the Charter has
9
Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791.

108 the p olitic s of the char ter : a cr itic al a pp r oac h
allowed the political right to hijack democracy in the name of constitu-

tional justice.
Of course, this decision against socialized heath care in favour of
private initiatives did not come out of the blue. A rich and substantial
context set the table for such a radical serving. The Charter is supposed to
enshrine those values which Canadians believe are so fundamental to
their society that they should be beyond the vagaries and vanities of the
immediate political process. While those exact commitments are never
beyond controversy, most agree that these values are intended to be
constitutive of a ‘free and democratic society’. In the Charter’s earlier
days, the Supreme Court decided, without much debate, that corpora-
tions count as an ‘everyone’ in the constitutional rush to legislative
judgment; they could claim basic rights and freedoms. Having made
this fateful step, the Court completed the rest of the march in the mid-
1990s when, in RJR-Macdonald, it upheld tobacco companies’ challenge
to legislative efforts to curb their ‘freedom of expression’ by demanding
explicit warnings on their products.10 The basic rationale was that
‘expression’ was such a fundamental activity in a democracy that it
must be protected even in dubious circumstances. Why this applied to
so-called commercial speech as much as political expression was left
largely unexplained.
In 2002, Gosselin involved whether a Quebec regulation providing for
reduced welfare benefits for individuals under 30 not participating in
training or work experience employment programs infringed, among
other things, welfare recipients’ s. 7 right to security of the person.11
The majority of the court held that s. 7 does not place positive obligations
on the government to guarantee adequate living support, but simply
restricts the state’s ability to deprive people of their right to life, liberty,
and security of the person. Although it is not too difficult to demonstrate
that the difference between ‘support’ and ‘deprivation’ is not as airtight or
different as the Court suggests, Gosselin is not wholly objectionable and
reprehensible on its own terms. However, when it is put together with
RJR-Macdonald, the full ideological thrust of the Charter and the
Supreme Court’s approach to s. 7 takes a more sinister shape. While
the welfare recipients are told to pursue their interests unaided in the
political arena, tobacco companies are given the considerable leverage of
constitutional benefit in their continuing (and well-funded) efforts to
negotiate with government.
10 11
RJR-Macdonald [1995] 3 SCR 199. Gosselin [2002] 4 SCR 429.

a r adical intervention 109
This deeply troubling approach was brought further home with a

vengeance a couple of years later. In Auton, the Supreme Court decided
that autistic children had no constitutional right to require British
Columbia to fund expensive therapy for them.12 The Court was very
sympathetic to the children and their parents (and hoped that the
province would reconsider its decision to deny funding), but held that
health policy was not part of the Constitution. The Court determined,
following the logic of Gosselin, that it was a matter for fiscal calculation by
politicians, not constitutional principle by lawyers. Such a decision
sounds not entirely unreasonable on its own terms. That is, until it is
viewed against the Court’s findings in the tobacco advertising cases. By
what frame of reference or set of values can it be argued that the
commercial opportunities of tobacco companies are more deserving of
constitutional protection than the well-being of autistic children? Judicial
apologists will no doubt rely on the fact that the former is about keeping
government’s intrusive tendencies in check, whereas the latter demands
that government dig into its own pockets to finance such measures at the
courts’ behest. Ironically, however, the cost of the children’s requested
therapy is decidedly meagre compared to the truly huge social cost of
coping with smoking-related illnesses. At the end of the day, both
decisions have significant resource implications for society: it is simply
that one is more direct than the other.
Mindful that it is possible to make legal arguments to support almost
any political position, it is not difficult to draw fine distinctions between
basic legal principles and established constitutional categorizations. But
the essential point is that, regardless of fancy legal arguments and subtle
rationalizations, autistic children and welfare recipients are seen to
simply count for less than tobacco companies in the constitutional
scheme of things. And, therefore, they count for less in the calibrations
of democratic decision-making. Moreover, the courts come to this pass,
not as a conclusion of contested political judgment, but as a purported
constitutional fact of the matter. This lamentable state of affairs should
deeply trouble all Canadians. However, if Gosselin and Auton were
disappointing and debilitating, then Chaoulli is all in a class of its own.
As it should be, the contemporary debate on health care is vigorous
and engaged. Canadians hold a variety of views on how health care
should be funded and organized. Yet a consensus is emerging that the
Canadian system of health care is ailing. Yet whatever agreement there is
12
Auton, [2004] 3 SCR 657.

110 t he p o l i t i c s of t he c ha r t e r : a c r i t i c a l ap p r o a c h
on the system’s present condition, there is no firm or shared under-

standing on what to do about it. There are widely divergent views about
how to remedy the situation. Although there are many different
approaches, the central tension is between those who maintain that
increased public funding and restructuring of the present system is
necessary and those who hold that greater opportunities for private
intervention must be allowed. The present debate is sharply joined over
whether individuals should be able to purchase privately those medical
services which are exclusively available under the public scheme. There
are no easy answers here and none that transcend entirely contested
ideological commitments. As much as many strive to deny it, health
care is inevitably and unavoidably a political matter.
In a democracy, the pressing issue is often as much about who gets to
decide divisive matters as it is about what gets decided. By most demo-
cratic lights, the objective is less about getting it right in some absolute
sense and more about arriving at decisions that engage public opinion
and respect. The value of democratic decisions is measured by their
enabling procedures as well as by their resulting content: democracy is
about organizational form as well as substantive enactments. Health
care is perhaps the most compelling illustration of this democratic
conundrum. Moreover, because the subject matter is so contested and
its resolution is so contingent, it is important to ensure that the deci-
sions of one generation do not bind entirely the options of the next
generation. Indeed, the evolving history of health care in Canada can be
understood as one indicator of Canada’s emergence to maturity as a
developed and democratic country. However, Chaoulli challenges the
very nature of both Canadian health care and Canadian democracy. In
its monumental decision, the Supreme Court barged into the political
fray and took a decidedly partial stance in the debate over health care. In
the process, the Courts undermined not only the debate on health care,
but also the democratic foundations of the Canadian polity. In the
starkest terms, Chaoulli obliges all Charter-watchers to accept for
good or bad that Charter adjudication is presently energized by a
political ideology which emphasizes, among other things, that indivi-
dual entitlements are much more important than social responsibilities,
that negative liberty is to be promoted at the expense of positive liberty,
that people’s capacity to exercise their rights is a matter of choice rather
than circumstance, and that legislatures are not only not to be trusted,
but are the breeding grounds of capricious and arbitrary decision-
making.

a r adical interventio n 111
In Chaoulli, the political vision which prevailed was highly individua-

listic and anti-state. The legitimate role of the state is limited to facilitat-
ing freedom by imposing a minimum of formal and equal constraints
upon people’s activities. People are treated as rational and private indi-
viduals who share little more than an abstract humanity. By treating
everyone as the same and equally placed to exercise rights, this political
approach ignores the very different material and social conditions in
which people live. It depicts a just society as one in which the achieve-
ment of personal liberty and social justice can be effected without con-
cern for serious economic equality. Indeed, rather than the courts being
‘the last line of defence for citizens’ as Deschamps J presumes, her
decision instead reveals that they are the last line of defence for the
affluent and the privileged. When Deschamps J contends that “the ques-
tion is whether Quebeckers who are prepared to spend money to get
access to health care that is, in practice, not accessible in the public sector
because of waiting lists may be validly prevented from doing so by the
state”, she conveniently fails to mention that it is not simply whether one
is ‘prepared to spend money’, but whether one has money to spend.13
Emphasizing that shifting the design of Canada’s health system to the
courts is not a wise or desirable idea, the dissenting opinions of Binnie
and LeBel JJ hit the nail squarely on the head:
Those who seek private health insurance are those who can afford it and
can qualify for it. They will be the more advantaged members of society.
They are differentiated from the general population, not by their health
problems, which are found in every group in society, but by their income
status. We share the view of Dickson CJ that the Charter should not
become an instrument to be used by the wealthy to ‘roll back’ the benefits
of a legislative scheme that helps the poorer members of society. He
observed in Edwards Books, at p. 779: “In interpreting and applying the
Charter I believe that the courts must be cautious to ensure that it does not
simply become an instrument of better situated individuals to roll back
legislation which has as its object the improvement of the condition of less
advantaged persons.”14
Indeed, Chaoulli confirms that the extent of a person’s wealth and

resources remains the real measure of citizenship; the ability to partici-
pate and take advantage of one’s civil claims is limited by and propor-
tionate to one’s material status. The Supreme Court again missed entirely
the irony of Anatole France’s praise for “the majestic equality of the laws,
13 14
Chaoulli, [2005] 1 SCR 791 at paras. 96 and 4. Id. at para. 274.

112 the politics of t he charter: a c ri tical approach
which forbid rich and poor alike to sleep under the bridges, to beg in the
streets, and steal bread”.15 What is the ‘progressive’ notion on health care
is not open-and-shut, but it would surely give considerable weight to the
commitment that a system which provides a certain and similar level of
care for all is to be preferred to a system which allows some to buy a level
of care which is better or higher than for others. Equality of opportunity
demands more than the dismantling of formal barriers to participation, it
also requires substantive and affirmative measures to actualize those
opportunities and possibilities. The holding in Chaoulli strengthens
rather than dismantles those barriers. According to the Supreme Court,
while the Chaoullis of the world must not be prevented from spending
their resources and wealth on obtaining health care, those without such
resources and wealth have no corresponding social and affirmative right
to health care. In light of Gosselin, it would seem that, if government
decided to opt for an entirely or mostly private system of health care, the
Supreme Court would not recognize a duty on government to provide
services for those who could not afford a decent level of health care.
While this scenario is unlikely (at least in the near future?), it does reveal
the cut and consequences of a Chaoulli-style approach to constitutional
law and health care.
As such, Chaoulli persists in the absurd notion that the true basis of
individual freedom is the absence of collective constraint and state
interference – individuals are most free when they are left entirely to
their own devices and desires. Yet the roots of this belief run deep in the
law. Even some of the more progressively inclined decisions of the
Supreme Court, such as the recognition of gay rights and abortion rights,
build on this flawed and discredited foundation. For instance, in
Morgentaler, even Wilson J grounded her more expansive interpretation
of s. 7 in order to protect pregnant women’s freedom on a negative and
solitary concept of personhood. She perpetuated and gave comfort to the
conservative claim that the state which governs best is the state that
governs least: “the rights guaranteed in the Charter erect around each
individual, metaphorically speaking, an invisible fence over which the
state will not be allowed to trespass”.16 In effect, Wilson’s adoption of an
individualistic ideology leaves women to their own devices and stymies
the struggle to encourage government to fulfil its progressive and affir-
mative obligations to provide appropriate health facilities and services.
15
A. F R A N C E , T H E R E D L I L Y 91 (W. Stephens trans. 1970).
16
R. v. Morgentaler, [1988] 1 SCR 161 at 164.

a radical intervention 113
Sadly, any progressive spin of Morgentaler is curtailed by its conservative

underpinnings and Chaoulli is the fruit of such a poisoned tree.
However, notwithstanding the Supreme Court’s affirmation of a
regressive constitutional ideology, the most unconscionable feature of
Chaoulli is the majority’s conclusion that restrictions on private health
care are ‘arbitrary’: “a law is arbitrary where ‘it bears no relation to, or is
inconsistent with, the objective that lies behind [it]’”.17 The claim that
there is no rational basis whatsoever for the established policy that the
best way to preserve universal health care is by curtailing the operation
and availability of private health insurance is an affront to Canadian
democratic history and politics. It is one thing for the majority to disagree
with the political appeal and rightness of a scheme of socialized medicine,
but it is another thing entirely to dismiss such a view as ‘arbitrary’.
Universal and non-private health care may not be the best scheme in
some reasonable people’s eyes, but how can it be capricious or despotic as
‘arbitrary’ implies – is the explanation that the Quebec and federal
legislature did this for the sheer hell of it with no purpose in mind or
only an oppressive one? Such a conclusion grossly misrepresents and
condemns the past half-century of political struggle and governmental
policy in Canada. It may be that the majority believes that allocating
health care on the basis of status or wealth rather than need is preferable,
but it is simply insulting to declare any other view to be not only wrong-
headed, but also arbitrary. This is a breath-taking piece of judicial hubris.
Deschamps J has it entirely backwards when she states that the courts
are “an appropriate forum for a serious and complete debate” and that “it
must be possible to base the criteria for judicial intervention on legal
principles and not on a socio-political discourse that is disconnected
from reality” (para. 86 and 87). It is the courts and not the legislators
who are ‘disconnected from reality’. Her claim that “the courts have a
duty to rise above political debate” (para. 89) is much more honoured by
her (and her colleagues) in the breach than the observance. Not only is
there no such fabled place outside of ‘socio-political discourse’, but her
judgment is the best evidence that she has failed to meet her own earnest
standards; ‘legal principle’ is revealed as simply one very transparent and
partial kind of ‘socio-political discourse’. As Binnie and LeBel JJ in their
scathing dissent assert, “the debate is about social values; it is not about
constitutional law” (para. 166). Or, perhaps, more accurately, a constitu-
tional law which entrenches the social values represented in the
17
Supra, note 13 at para. 130 per McLachlin CJ and Major J.

114 t h e p o l i t i c s of t he c h a r t e r : a c r i t i c a l ap p r o a c h
majority’s reasoning is bad constitutional law. Notwithstanding Binnie

and LeBel JJ, constitutional law is always about social values; the only
issue is whose social values.
Conclusion
Much of the immediate Canadian response to cases like Doucet has been
framed by the concern over whether the judiciary had trespassed on
forbidden political ground. However, there seems a broader and more
troubling dynamic underlying the litigated issue – that democratic choice
should not be only between rule by a judicial elite or a governmental elite,
but through a political process which is more responsive to broader
constitutional and democratic concerns. To conceive that the Doucet
decision resurrects only the dilemma of whether courts can or should
invade the political domain misses the main point: courts cannot exercise
their powers and responsibilities without reference to contested values
and principles of governance. The real and neglected issue is not the
politicization of the judiciary, but the democratic failure of the executive
and legislative in fulfilling their constitutional responsibilities and man-
date. If governments and legislatures were truly representative and were
doing more of what they were supposed to being doing in a constitutional
democracy, the question of what judges do would be less pressing and
more incidental. If there is a crisis in Canadian democracy, it is found in
the fact that politicians and legislators are simply not ‘democrats’ in the
full sense of the term. ‘Democracy’ is used more as a rhetorical cloak for
elitist practice than a measure and guide for popular politics.
Ironically, the Canadian Charter of Rights and Freedoms is viewed
favourably and increasingly so by large majorities in all regions of
Canada. A majority of Canadians says that the Court and not Parliament
should have the final say when the Supreme Court declares a law uncon-
stitutional because it conflicts with the Charter. Nevertheless, the fact that
public opinion polls show considerable support for the Supreme Court is
less an accolade for judges and more a slap in the face for politicians,
particularly those leaders who preside in and over the Cabinet. Judges can
only ever do a second-best job at making up the democratic deficit in the
present performance of Canadian politics. The Supreme Court decisions in
Doucet and Chaoulli are indicative of that. While the judiciary has some
defined and important function in Canadian politics, it must be limited
and partial. Being neither elected by nor representative of Canadians,
judges can never be entirely or rightly sanguine about the force and solidity

con c l usion 115
of their democratic legitimacy. On the other hand, while the executive can
lay claim to greater democratic legitimacy, its practical exercise of power
offends its democratic pedigree. Too often, political leaders seem to dance
to their own tune rather than that of the people they represent. Increased
‘rule by Cabinet’ is hardly better than extended ‘rule by the Supreme
Court’. While the statistics reveal interesting support for the courts, they
express profound dissatisfaction with political leaders.
To revamp the legislative and executive process in line with greater
popular participation and political accountability will require a monu-
mental effort. Any changes – proportional representation, recall legisla-
tion, accountability audits, genuine ministerial responsibility, referenda
etc. – must themselves be products of the very democratic process which
is to be enhanced. There are no easy solutions to the present undemo-
cratic trends. However, the debate around judicial activism is something
of a distraction. Improvement in Canada’s democratic status will not
come from increased interventions by judges in the micromanagement of
governmental policies. Indeed, judicial supervision is a short-term crutch
which actually harms a limping polity in the medium and long term. The
replacement of one elite rule (executive) by another (judicial) can only be
considered positive under the most warped sense of democracy. So, if
there is a desire to rein in the judges, there must also be a commitment to
ensuring that elected politicians and officials are living up to their own
and demanding constitutional and democratic responsibilities. At pre-
sent, they are palpably not. But simply construing the democratic chal-
lenge as being about whether the judges stay out of or stray onto the
political terrain is to misrepresent the problem and, therefore, to hamper
any genuine solutions.
Despite the regular rounds of self-congratulation about Canada’s
ranking as one of the best societies to live in, there is a serious erosion
of basic democratic precepts. The twin foundations of democracy –
popular participation and political accountability – are going the way
of the polar icecaps. There seems to be an implicit Faustian bargain
between elite and rank-and-file that the price of socio-economic
advancement (which is still questionable when looked at in other than
mean or median terms) is at the cost of democratic involvement. The
Charter and its judicial enforcement are part of that arrangement.
Whatever else it means, democracy demands that there be more power
to the people and less to the elites. Aristocratic rule is no less palatable
because judges and political leaders are the new dukes and barons. And it
is certainly no more acceptable when such elites wrap themselves in the

116 the p olitics of t he charter: a c ritical approach
trappings of democracy. While there has never been a golden age for
Canadian democracy, what now passes for ‘democracy’ is an exclusive,
sporadic, and sketchy conversation between the judicial and executive
branches of government over what is best for the country. In this
exchange, the voices of ordinary Canadians play no real or substantive
role. Of course, a robust judiciary has a definite role in a vital democracy,
but judges can only ever do a second-best job at making up the demo-
cratic deficit in the present performance of Canadian politics; they are
neither well positioned nor appropriately skilled to do so.

7
Judicial Indiscretions: Asking about Law in all the

Wrong Ways
In 1826, at Jeremy Bentham’s urging, John Austin was appointed as the

first professor of jurisprudence at what became University College,
London. For all his revered modern status, Austin’s contemporaries
were not as enamoured with his jurisprudential ideas and agenda as
many are now. His primary contribution was to prepare a series of
lectures which he worked up into the original 1832 edition of his The
Province of Jurisprudence Determined. Reports have it that these classes
were very poorly attended; the appeal of his dry lectures was not helped
by his nervous disposition and poor speaking manner. Austin’s work was
relatively ignored for the next few decades. Less than a decade after his
appointment, a discouraged Austin resigned his post in 1835; he was still
only 45 at the time. Although it may seem harsh, perhaps those students
had more sense than we might give them credit for. The Province was
given a fresh lease of life when his wife, Sarah, published a posthumous
publication edition of the book in 1861. In doing this, she has much to
answer for. More than a century and a half later, Austin’s project still
haunts jurisprudence. As a matter of both focus and approach, The
Province continues to set the tone for much legal theory. Jurists still
lament the fact that jurisprudence is not a science. In efforts to address
the perennial question of what is law?, they rely on ‘analytical critique’ to
mimic the claims of universal truths.
In this chapter, I want to review the state and condition of contem-
porary legal theorizing. To do this, I will use the recent publication of a
‘lost essay’ by Herbert Hart, Discretion,1 as a convenient and timely target
for my comments; he was and remains the main Austin-inspired torch-
bearer for an analytical approach to jurisprudence. After positioning the
1
Herbert Hart, Discretion, 127 H A R V . L . R E V . 652 (2013).
117

118 j u d i c i a l in d i s c r e t i o n s
publication of Hart’s essay in the prevailing jurisprudential milieu, I will

highlight the thrust and the failings of the three main traditional
approaches to contemporary legal theorizing (i.e., positivism, naturalism,
and formalism) in regard to the nature and operation of ‘judicial discre-
tion’. Then, I will suggest an alternative approach to legal theorizing
which recommends a more satisfying way of proceeding. In pursuing this
path, I hope to discourage jurists from expending further valuable energy
and insight in “chewing historic cud long since reduced to woody fibre”.2
Only if jurists kick this unproductive habit will it be possible to develop a
genuine appetite and fresh enthusiasm for shaping a legal theory which is
relevant and responsive to the conditions and circumstances of today. In
short (and with the greatest respect), Hart has had his day.
Discretion Lost?
The recent publication of Hart’s lost essay was greeted by much fanfare
and delight in the world of legal theorists and beyond. Yet, as important
as Hart’s essay is for an historical appreciation of his own work and
jurisprudence’s general evolutionary trajectory in the second half of the
twentieth century, the celebratory tone is unwarranted. The fact that a
short, sketchy, and intentionally unpublished memorandum from 1957
will generate so much interest and debate is a sad testament to the
poverty and lethargy of contemporary legal thought. A full half-century
later, jurists seem not only locked in the same sterile debates, but also
seem to revel in their arcanity and taken-for-granted pertinence. It is no
doubt true that Geoffrey Shaw’s discovery of this essay (or, more accu-
rately, a lost memorandum) is an exciting and commendable event for
those involved in historical and biographical research. Its fortuitous
unearthing will help supplement further the rich archive of textual
resources upon which scholars can draw in their efforts to paint a more
compelling portrait of a leading jurisprudential thinker; it can help
scholars develop a more nuanced and textured appreciation of the gen-
esis of Hart’s ideas on judicial behaviour and their intellectual locale,
especially the realist orientation of American jurists.
But its significance is limited to that. Whatever the essay’s utility in
filling a biographical gap in Hart’s theoretical evolution, Discretion and
its publication in arguably the world’s leading law review will not provide
2
John Dewey, The Need for a Recovery of Philosophy in J O H N D E W E Y : T H E M I D D L E
W O R K S : 189 9– 192 4 , vol. 10, 47 (Jo Ann Boydston ed. 1976–83).

d i s cr et i on l os t? 119
further or better insights into the workings of law in large or small detail
as a jurisprudential matter. It is a preliminary and reflective work-in-
progress on an important phenomenon in law and social practice which
is as inchoate in development as it is tentative in its conclusions. Its
central theme that “discretion occupies an intermediate place between
choices dictated by purely personal or momentary whim and those which
are made to give effect to clear methods of reaching clear aims or to
conform to rules whose application to the particular case is obvious” is
hardly novel or enlightening in its own right.3 Moreover, such an opinion
hardly seems revelatory in the second decade of the twenty-first century.
Surely it is reasonable and respectful to conclude that Hart made a
deliberate decision not to publish this early and preliminary fragment of
scholarship. The fact that some of its leading ideas – conceptual techni-
que, linguistic analysis, logical rigour, and anti-realism – are weaved into
his later work and that some – institutional design, judicial reasoning,
legal doctrine, and empirical research – are not is telling. While
Discretion offers a rare window on the formative process through
which leading thinkers work towards (and away from) an emphasis on
certain basic themes in their life’s work, it does little more than that. To
imply more than this is to flaunt the author’s presumed and continuing
intention over the next 36 years to his death in 1992 to forego its
publication as a stand-alone piece; the explanation that it was a result
of Hart’s forgetfulness or his ‘prodigious levels of disorganization’ is
unconvincing.4 It is a historical footnote to Hart’s ideas, not a topical
occasion to reinvigorate them.
None of this is intended to sleight Hart’s work or his deserved reputa-
tion as a colossus in the jurisprudential field. Hart’s ideas and influence
remain as strong now as they ever were. Indeed, his philosophical work is
the academic lodestar around which others must still define and position
themselves. But it is to rebuke those who persist in defining the field in
the pinched and straitened ways in which they do or who want to make a
case for one particular reading of Hart’s later and more settled views on
the nature of law and discretion. In the same way in which Discretion
relies on several quaint illustrative hypotheticals (e.g., dinner-party host-
ing), much contemporary jurisprudence is equally culpable for holding
on to a dated approach to law and jurisprudence long after its sell-by date.
3
4
Geoffrey Shaw, H.L.A. Hart’s Lost Essay: Discretion and the Legal Process School, 113
H A R V . L . R E V . 666 at 669 (2013) and N I C O L A L A C E Y , A L I F E O F H . L . A . H A R T : T H E
N I G H T M A R E A N D T H E N O B L E D R E A M 185 (2004).

120 judi cial indiscretions
If The Concept of Law is “the most influential book in legal philosophy

ever written in English” (as it might well be),5 it speaks volumes to the
thin fare with which it competes. Its massive influence is as much about
the parochial interests of contemporary jurists as it is about the profund-
ity of the book itself.
Remember that Hart “originally wrote the book with English under-
graduate readers in mind”.6 While this might have been a protestation of
undue modesty on Hart’s part, this caveat does tend to undermine its
present acclaimed standing as the authoritative manifesto of legal posi-
tivism. Indeed, there is almost a whiff of religious devotion to the con-
tinuing elevation of Hart’s writings to the status of a jurisprudential
gospel and the excessive reverence and parsing accorded to it.
Contemporary scholars seem to forget that, as Hart himself reminds us,
‘we are men, not gods’.7 From everything known about him, he would
have been doubly keen to apply that caution to his own self and writings.
If anything, Hart tended towards the insecure and humble, not the
dogmatic and hubristic. It is simply mistaken to accord his work an
almost worshipful esteem, especially a small fragment of it which he
decided not to publish. A robust aniconism is more fitting.
Questions and Answers

It seems axiomatic that, if you ask the wrong question, you are likely to
get the wrong answer. Indeed, for all the time and energy people put into
striving to get the right answer, the pertinence of the question is often
taken for granted. But it is the question, often more than the answer,
which reveals more about what is at stake in both the striving and the
resolution reached. Questions are based upon certain assumptions, inter-
ests, and values which manage to inform and direct the answers invited.
Consequently, any theoretical tendency must be judged by the questions
it asks and the methods by which it goes about answering them. Under
Hart’s general tutelage, modern jurisprudence has stumbled on both
counts. It has devoted itself largely and almost exclusively to the narrow
question of what is law? Moreover, speaking too freely in the name of
universal truths and abstract authority, it has relied on traditional analy-
tical tools – theoretical argumentation, objective evidence, conceptual
5
Leslie Green, Preface, H . L . A . H A R T , T H E C O N C E P T O F L A W xl (3rd ed. 2012).
6
H.L.A. H A R T , T H E C O N C E P T O F L A W 238 (2nd ed. 1994). Such students are around 20
years old.
7
Hart, supra, note 1 at 661. See also HA R T , Id., note 6 at 128.

q ues t i o n s an d an s wers 121
clarity, systemic coherence, ahistorical orientation, etc. – to answer its

central question. This way of proceeding has proved a debilitating com-
bination. By asking the wrong question and deploying a suspect method
to answer it, jurists have not only failed to offer convincing answers, they
have taken jurisprudence down a blind alley.
Other inquiries and approaches are viewed not as unimportant, but as
not primary or foundational in nature. Indeed, this attitude has proved
the least examined, but most damaging aspect of the history of jurispru-
dential thought. I contend, contrary to most mainstream jurists, that the
answers invited by the question what is law? depend on who is asking,
when they are asking, where they are asking, and why they are asking – it
is about where the questioner and answerer are standing. There are
almost endless permutations of situations and settings which will frame
the inquiry and point to likely answers. Apart from the historical timing
and social milieu in which it is being asked, poor people may see law as a
weapon used against them, businesspeople may use it as a convenient
resource for making deals, politicians may view it as a counter in an
ideological game, and lawyers may treat it as a source of income and
status. Each response has some validity and viability to it. Of course, it
may be that it is a legal philosopher who is asking today at a jurisprudence
conference in order to resolve an analytical puzzle. This is quite plausible
and reasonable. But it cannot claim to be the only valid way to pose
certain queries in order to elucidate particular kinds of answers.
One way to come at and justify this strong critical claim is to look at
how the three leading jurisprudential tendencies – positivist, naturalist,
and formalist – might respond to Hart’s analysis of judicial discretion.
In Discretion, Hart explains how the exercise of judicial discretion is an
inevitable feature of any legal system which cannot be done away with
entirely; the double indeterminacy of facts and aims make discretion
both a necessary and desirable evil. In staking out his jurisprudential
‘middle’ position, he offers an important clarification of discretion’s
role and operation by noting that it “occupies an intermediate place
between choices dictated by purely personal or momentary whim and
those which are made to give effect to clear methods of reaching clear
aims or to conform to rules whose application to the particular case is
obvious”.8 In other words, because law is a human endeavour, it is a
messy, but not arbitrary business: it cannot be reduced to mathematical
formulae or be left to the unlimited prerogative of one person’s desires
8

122 judicial indiscreti ons
over another. Hart seeks to occupy a middle ground of sensible

pragmatism.
For Hart, the best that can be expected is that judicial decision-makers
will have to justify their decision by reference to some set of rational
indicia which are neither universal in their appreciation nor definitive in
their application. From a Hartian perspective, the challenge is to demon-
strate that the reliance upon such indicia can provide the argumentative
foundation on which to ground a mode of justificatory reasoning which
is more than personal choice and less than scientific demonstration.
However, while Hart’s response is more convincing than the naturalists,
formalists, and most positivists, he is unable to contain the radical
implications of his supposedly analytical critique of judicial discretion.
In short, Hart has made a case against the arbitrary exercise of choice, but
not one against the political open-endedness of judicial decision-making.
A Triple Flop
The positivists maintain that law is a social fact and can, therefore, be
understood on its own terms as something different from morality, social
values, and the like. For them, it is a central article of faith that debate
about what law is is different from that about what law ought to be. The
extent to which law is kept separate and apart from other social norms
varies from one positivist account to another. If soft positivists maintain
that there are no necessary connections between law and morality, hard
positivists tend to insist that there are necessarily no connections
between law and morality. Intra-positivist debate is increasingly precious
and parochial. Nevertheless, they all subscribe to the insistence that the
jurists’ task is largely one of ‘descriptive sociology’.9
Ironically, the very existence and importance of ‘discretion’ under-
mines the validity of the positivists’ stance. Its adherents fail to take
account of the experienced reality that law is not merely a lifeless body
of stylized resources (e.g., a Hartian combination of primary and sec-
ondary rules); it is also very much an activity. Law necessarily involves
the engaged activity of developing, utilizing, maintaining, and changing
those resources; law is not simply the residue or end result of that
professional engagement. To understand law as only an artefact is to
miss the vital role of the legal artisans. As such, law is better understood
as an organic process in which lawyers play a vital and dynamic role in
9
Hart, supra, note 6 at vii.

a tr i p l e f l o p 123
tending and developing law’s rules and principles. Although his later and
more established scholarship shifts from this emphasis, the Hart of
Discretion does tend to capture something of this protean quality. He
explains the exercise of discretion as a mode of justification in that judges
“have to weigh and choose between competing interests”.10 It is in the
‘weighing’ and ‘choosing’ that law occurs as much as in the outcome of
that activity; positivists overlook this at their philosophical peril.
The naturalists distance themselves from the dominant positivist
approach and embrace law as more of a purposive entity which involves
a certain moral striving. They take the firm stance that law is inextricably
bound up with moral considerations and that any plausible account of
law must recognize and integrate an indispensable moral dimension.
This sense of the legal enterprise seems to be grounded in social reality;
it combines ideas of form, function, and substance. Nevertheless, as with
the positivists, division occurs among the naturalist ranks. Whereas some
maintain that moral considerations can invalidate legal norms and rob
them of their privileged authority as ‘law’, others take a more pragmatic
stance towards laws considered immoral.11 In each case, the naturalists
reject the idea that law is only about social facts; they insist that moral
values are not only part and parcel of the legal process, but also that they
are an essential attribute of its identity as ‘law’.
However, the naturalists overstep the mark when they insist that law
loses its status and validity, even if only partly, as law if it flaunts certain
moral values and ethical standards. Apart from there being deep dis-
agreements about what is and is not an ethically approved law or legal
process, history evidences that, even if laws can be thoroughly bad, the
legal system will still very much retain analytical legitimacy as ‘law’.
While law might well have a moral dimension (and so confound the
positivists’ claims), there is no basis for assuming that it will always be a
good one. Indeed, Hart himself seems to be acknowledging that when he
asserts that, although there is no necessary connection between law and
morality, a resort to policy or morality will be demanded in the exercise
of discretion because “reasonable and honest men may differ, however
well informed of the facts in particular cases”.12 This has obvious impli-
cations for the moral content of laws and the legal process; moral
10
Hart, supra, note 1 at 663. For a subtle insight into this, see Nicola Lacey, Lecture,
Analytical Jurisprudence Versus Descriptive Sociology Revisited, 84 T E X . L. R E V . 945
(2006).
11
See, for example, LO N L. FU L L E R , T H E M O R A L I T Y O F L A W (1964).
12
Hart, supra, note 1 at 664.

124 judicial indiscretions
judgment intersects with legal analysis and constitutes an indispensable

part of it. In short, to insist that law involves normative commitments
says nothing about the quality or consistency of those evaluations.
The formalists build on and borrow from both the positivist and
naturalist traditions. They very much accept that law is an institutional
set of designated resources which must be worked and reworked in a
reasoned way. While they differ on the precise identity of those resources
(e.g., whether they comprise only rules or rules and moral principles) and
the precise tools for working those resources (e.g., precedential analysis
or policy formation), they join forces in their insistence that, when
understood properly and handled deftly, these resources can offer up
correct and objective legal answers to disputed issues of social conflict.13
In this way, the formalists claim to have solved the riddle of how judges
can make value choices, but still claim institutional legitimacy in a
democratic polity. It is a broad church which contains a varied and
contentious congregation.
There is much appeal to this formalist stance; it captures the nature of
law and decision-making as a pragmatic craft in which lawyers and
judges struggle to offer better (and worse) responses to difficult social
problems. However, as with the other jurisprudential tendencies of
positivism and naturalism, it overreaches. The law is very much an
exercise in professional argumentation, but its resources are so capacious
and its techniques so adaptable that it can easily justify a range of
plausible and contradictory results. This is nowhere more evident than
in the operation of judicial discretion. As Hart frames it, in ‘weighing’
and ‘choosing’ between ‘competing interests’, there are “no clear princi-
ples or rules determining the relative importance of . . . constituent values
or, where they conflict, how compromise should be made between
them”.14 Accordingly, the formalists succeed in explaining legal change,
but only at the expense (at least to them) of revealing law as a mode of
political decision-making which lacks any controlling legal discipline.
From a Whisper to a Scream

Notwithstanding their failings, it can be noted that each jurisprudential
tendency – positivist, naturalist, and formalist – contains specific insights
about law and legal activity which can be utilized in a more effective and
less abstract manner. So, the positivists are correct in excavating the
13 14
See R O N A L D D W O R K I N , L A W ’ S E M P I R E (1986). Hart, supra, note 1 at 660.

f rom a wh isp e r t o a sc re am 125
factual or empirical foundations of law, but are wrong-headed in their

failure to recognize the activity involved in working with them; the
naturalists are correct in identifying the moral and principled dimensions
of law, but mistaken in insisting that they are always a consistent force for
inherent good; and the formalists are correct in proposing that law has a
designated set of working materials and methods, but mistaken in main-
taining that they can be ordered or referenced in any objectively or
determinately right way. In short, as a human enterprise, law is messy,
imprecise, flawed, sprawling, fickle, and much else besides.
What joins the three leading jurisprudential approaches is their shared
belief that law can be inhabited and understood without it simply being a
way of doing politics by other means. By this, I mean that its practitioners
resist the claim that it is impossible to do law without taking a contro-
versial and ideologically grounded stand on the important and contested
issues with which law must inevitably engage. In contrast, I insist that no
method or technique can offer lawyers and jurists a hedge against taking
personal responsibility for the legal decisions, interpretations, or inter-
ventions they make. No position of political innocence or neutrality can
allow lawyers or jurists to keep their hands clean; all positions are
ideologically compromised or ‘dirty’ in one way or the other.
This critical approach insists that there are no bright-line boundaries
or essential differences between theory and practice, natural and social
science, facts and values, philosophy and conversation, or, of course, law
and politics. It is not that these categorical distinctions collapse in on each
other and have no relevant differences at all, but that such differences are
themselves contingent and social because they always arise from and
within, directly or indirectly, their historical and political context.
Moreover, none of this commits the critic to the untenable or nihilistic
position that it will always be possible to make the law come out in the
way in which the judge or jurists want it to. But this is more because of a
lack of imaginative insight and strategic calculation; it is not because
some objective truth or ahistorical determinacy about law exists. It is a
case of ‘anything might go’, but not ‘anything goes’.
The Hart of Discretion hints at, but does not fully accept or pursue this
important critical insight in his exploratory essay. As he argues, “argu-
ments in favour of one decision or another may be rational without being
conclusive”.15 Yet there is no special or distinctive rationality that law
possesses, notwithstanding the time-hallowed insistence of Lord Coke
15

that law is ‘an artificial perfection of reason’.16 The exercise of discretion

occupies that area of human judgment “where reasonable and honest
men may differ” and where there are “no clear principles or rules
determining how compromise should be made between [competing
interests]”.17 Put more directly, the determinacy of law runs out at the
point when it is most required: law is always in a state of becoming, not
being. Hart seems to acknowledge this, but does not follow through on its
more radical implications.
Consequently, it is not so much that law does not exist (it does as a
body of resources) or that its likely development is entirely unpredictable
(it is not as a result of the general political leanings of the judiciary). The
constant ‘weighing’ and ‘choosing’, as Hart puts it, between values and
interests is so integral to law as to be largely constitutive of it; such a
concerted and engaged practice is law. Law is not something which exists
before or after interpretive work, but is constituted by that interpretive
activity. And this is no more evident than in the ample areas of discre-
tionary judgment. There is no absolute or even contingent right and
wrong, but only continuing and inescapable choices which can be
masked, but not wished away. The exercise of discretion is built on the
shifting sands of historical and political contingency, not on the stable
bedrock of truth and justice.
Nevertheless, it is a mistake to draw a distinction between those who
believe that interpretation is about objective retrieval and those who
believe that there is only subjective creation; it is neither one nor the
other. In contrast to the later Hart of The Concept of Law, law is much
more than a collection of rules which individually and inevitably possess
a degree of fuzziness and penumbral uncertainty.18 Taken as a whole,
legal doctrine is structurally indeterminate and defies efforts to fix its
necessary and precise meaning in particular cases at particular times. The
exercise of discretion is better understood as an interpretive activity in
which the possibilities of determinacy and indeterminacy are constantly
in play and available. It is not that fields of law appear as indeterminate or
determinate all the time, but that even the most apparently settled areas
of law are always vulnerable to being stabilized or destabilized and
thereby reconfigured with sufficient effort by particular jurists at parti-
cular times and with varying degrees of success.19
16
E D W A R D C O K E , C O M M E N T A R Y U P O N L I T T L E T O N 97b (Charles Butler ed., 18th ed., Legal
Classics Library 1985) (1628).
17
Hart, supra, note 1 at 664 and 660. 18 Supra, note 7 generally.
19
See supra/infra, ch. 4.

a d ifferent tack 127
The message of my critical posture is that judges cannot shirk personal

or collective responsibility by deferring to the stark thereness of the law’s
meaning and moral force. Whether dealing with so-called easy or hard
cases, judges and jurists must not fool themselves into thinking that their
task is one of merely acting as a conduit for detached or objective truths.
All legal interpretation depends on the fluid and dynamic interaction
between interpreter and text in a shifting context of social conventions,
institutional expectations, and normative values. To judge is to take a
stand. And, therefore, it is always a question of knowing where one stands
and why one is standing there and not someplace else. This task, both a
blessing and a burden, cannot be fudged or shirked; it can only be hidden.
A Different Tack
Recognition of ‘the political’ has important and inescapable implications
for what it means to engage in legal theory. One important upshot of this
stance is that the whole understanding of theorizing must be trans-
formed. In more familiar parlance, although I agree with Dworkin that
“we have no choice but to ask [judges and lawyers] to confront issues
that, from time to time, are philosophical”, I reject the analytical and
limiting understanding of what it means to be ‘philosophical’.20 Rather
than work towards flying higher or digging deeper to ascertain abstract
truths and universal knowledge about law, jurists must look to explore
and proliferate the ways in which their society’s conversations about law
can be made more useful to its members. This involves a shift not only in
the questions to be asked, but the resources and techniques to be drawn
upon in answering them. In a manner of speaking, it demands that cud-
eating be replaced by a more sustaining, varied, and nutritious diet.
One possible line of inquiry would be the recent (re)turn to empirical
legal studies. Indeed, Hart himself did much to validate, if only to ignore,
this tendency in his concession that his own work was intended to be
largely one of ‘descriptive sociology’.21 There is much to learn from
quantitative and qualitative research into law’s operation and effects; it
can enrich and inform the understanding of law as a social phenomenon.
However, while this rich body of literature has much to recommend it
and contribute, it has only a limited and inconclusive role to play in
20
R. D W O R K I N , J U S T I C E I N R O B E S 73 (2006).
21
Hart, supra, note 7 at vii. For more on this post-realist development, see generally T H E
O X F O R D H A N D B O O K O F E M P I R I C A L L E G A L R E S E A R C H (P. Cane and H. Kritzer eds.
2010).

answering the pressing challenges of an alternate and more politically

oriented jurisprudential agenda. As has often been noted, facts are
nothing on their own; they are unable to stand on their own feet. In
order to provide information and insight, they need to be understood
within a particular framework of analysis or ‘theoretical paradigm’.22 If
theory without facts is empty, then facts without theory are meaningless.
Consequently, it is not so much that empirical scholars have little to
contribute to understanding judicial discretion, but that they overreach
and make claims which cannot be substantiated by the data. As such,
more empirical legal study is a desirable and even necessary, if insuffi-
cient component of a revitalized jurisprudential project. For example, as
Hart hints at in Discretion, much can be learned from a close comparison
of the uses of discretion in different legal arenas – administrative tribu-
nals, courts, bureaucracies, etc. – about its overall structure, function, and
form. Nevertheless, any study of discretion must attend to the theoretical
framework within which data are both generated and understood; the
facts unearthed or confirmed will need to be analysed within a particular
theoretical orientation, not outside it or without one. Indeed, if positivists
define themselves as being primarily or exclusively concerned with ‘social
facts’, it must follow that they will need not only some facts on which to
work, but some sense of what counts as ‘society’ and ‘facts’ in arriving at
their jurisprudential accounts.
That said, while theory is essential to any inquiry into law – how is it
possible to study ‘law’ or anything else without first having some idea of
what it is or might be? – lawyers and judges need not engage in the kind
of armchair theorizing which is on display in Discretion. Post-analytical
jurists will need to go out, look around, interact with people, and get their
hands dirty. They must work to become part of, not apart from the social
and political milieu in which they live and theorize. Accordingly,
informed by a more political sense of vocation, jurists can begin to tackle
some of the more pressing and contemporary challenges which face their
own societies. Rather than strive to escape the contingent context of
everyday living, they must commit themselves to appreciating that con-
text and working towards law’s possible role in its improvement. Their
expertise should lie in cautioning others about both the promise and
22
T. K U H N , T H E S T R U C T U R E O F S C I E N T I F I C R E V O L U T I O N S (1962). As Ronald Coase
quipped, “torture the data and it will confess to anything”. See Gordon Tullock, A
Comment on Daniel Klein’s ‘A Plea to Economists Who Favour Liberty’, [2001] E A S T E R N
E C O N O M I C J O U R N A L , note 2.

a d ifferent tack 129
pitfalls of law as a mode of social organization and a means of achieving

social justice.
There is no canonical set of questions to be asked. To suggest so would
be to fall into the same analytical trap as those that I am chastising.
Having rid themselves of their long-standing obsession with affecting a
scientistic mind-set, jurists can eschew their misguided search for the
one-and-only answer to the one-and-only question. For instance, by
locating the historical determinants of the fact/value or epistemic/
moral distinctions relied on by analytical jurists, the social tasks they
perform, the conceptual tools they valorize, and the political interests
they continue to serve, those who engage in legal theorizing will be able to
help demystify an Austin-influenced jurisprudence and reveal how no
legal theory can or should operate as a detached and apolitical pursuit of
legal truths. As William James put it, we need a ‘philosophy of maybes’
which strives to be suggestive, not certain, to be provisional, not final, and
to be provincial, not universal.23
So, in order to revitalize jurisprudence and to bring it out of the
academic margins, jurists will need to confront, not ignore a whole
slew of normative interrogatives which can only usefully be answered
by moral and political debate in local settings. Some of these include:
– What can and should law become?
– What role should law play in achieving justice?
– What should be the substantive content of laws?
– What institutions are best suited to fulfilling those tasks? and
– What is the role of lawyers in this enterprise?
As with judges in exercising discretion, jurists must take a stand on these
questions and, as importantly, offer a defence of that stand. It is only in
this way, alive to the social forces and political interests which frame both
law and any effort to theorize about it, that jurists will then be able to
abandon the misguided search for the ‘last philosophy’ or ‘final word’.
Instead, they can work towards generating answers about the pressing
problems of contemporary life and social relations. In this way, they can
‘take a stand’ in both its perspectival and political sense.
For example, legal theorists can do much to assist in the critique and
realignment of lawyers’ professional responsibility. Today, much of the
literature on legal ethics is more of an apology for existing practices than
23
W I L L I A M J A M E S , T H E W I L L T O B E L I E V E 59 (1897). See J. S T U H R , P R A G M A T I S M ,
P O S T M O D E R N I S M , A N D T H E F U T U R E O F P H I L O S O P H Y 95–133 (2003).

anything else; there is no concerted effort to connect the practice of law to

a broader conception of law and its capacity for challenging injustice or
promoting justice. Those jurisprudentially inspired efforts which do exist
tend to rely on crude positivistic accounts of law and to skirt lawyers’
responsibility for the clients taken on, the causes advanced, and the
strategies deployed.24 Indeed, a common defence of the standard con-
ception of the ‘hired hand’ is that lawyers merely abide by and work
within the law, not make or assume responsibility for specific laws or the
legal process generally. However, the fact is that a legal system has the
laws it has because of, not in spite of what lawyers do: the clients they
represent, the causes they advocate, and the strategies they deploy all
influence the law’s content and substance. This has profound implica-
tions not only for understanding how law works and changes, but also for
jurisprudential efforts to define law.
First, the role lawyers play in changing or resisting change to law
confirms that the legal process is an organic and crafted enterprise:
lawyers are not simply the ascertainers of legal facts, but their fabricators.
Any account of law which neglects that insight is fatally flawed. Secondly
and perhaps more relevantly, lawyers cannot do their job without relying
upon some particular account of law, whether it is positivist, naturalist, or
formalist. Yet, such reliance is neither straightforward nor uncontrover-
sial. So, for instance, if lawyers are to validate what they do by reference to
the standard conception of law, they must offer some defence of that
conception’s positivistic and contested jurisprudential foundations. Such
a task will require lawyers and legal ethicists both to adopt a more
informed general account of law in their own professional and practicing
context and to offer a justification for that account rather than utilize it as
a justification for their own role and performance. In doing this, lawyers
and jurists will grasp that practical lawyering and general jurisprudence
are intimately and inseparably connected to each other.25
What I am recommending is that jurists and legal theorists embrace
and add a twist to John Maynard Keynes’ optimistic call to arms – “the
day is not far off when the [jurisprudential] problem will take the back
seat where it belongs, and the arena of the heart and the head will be
occupied or re-occupied, by our real problems – the problems of life and
24
See, for example, T I M D A R E , T H E C O U N S E L O F R O G U E S ? : A D E F E N C E O F T H E
S T A N D A R D C O N C E P T I O N O F T H E L A W Y E R ’ S R O L E (2009) and W . B R A D L E Y W E N D E L ,
L A W Y E R S A N D F I D E L I T Y T O L A W (2010).
25
See A L L A N H U T C H I N S O N , F I G H T I N G F A I R : L E G A L E T H I C S F O R A N A D V E R S A R I A L A G E
(2016).

con c l usion 131
of human relations”.26 As I have presented it, it is not so much that

jurisprudence will take a back seat, but that it will be reenergized by
reuniting head and heart in a more ennobling, if messy study of life, law,
and justice. Jurists will not take refuge or pride in distancing themselves
from law’s day-to-day workings. Instead, they will humanize and thereby
enhance jurisprudence. In contrast to the pinched and pseudo-profound
musings of much jurisprudential striving, this seems a worthy and
honourable goal for legal theory. Whether that day is near or still far
off is another matter entirely.
Conclusion
Hart is worth commending for his efforts to stay true to Jeremy
Bentham’s commitment to “pluck the mask of Mystery from the face of
Jurisprudence”.27 Discretion is a tentative and instructive essay in such
plucking. But he has only managed to pluck it away and replaced it with
his own veil of analytical abstraction. Far from ridding jurisprudence of
its Austinian mind-set, his later, more mature work has perpetuated a
continuing romance with a more modern rendition of it. Later jurists
have exacerbated that problem and turned Hart’s veil into its own kind of
mask. Of course, one response from the analytical jurists is to concede
that jurisprudence has no practical value and that philosophy has its own,
not society’s ends to serve. This might be tempting riposte, but it would
not be convincing; it is more a capitulation and evasion than anything
else. After all, the veiled face presented to the world is sometimes simply
another mask.
Accordingly, it can be reported that Hart did not take at all seriously
enough his own his own sage advice – “if we could only say clearly what
the questions are, the answers to them might not appear so elusive”.28
While he might have intended legal theory to be more pluralistic in style
and direction, his followers have taken the question of what is law? and
his general analytical approach to be, if not the exclusive, then the
preferred mode by which to reach persuasive and authoritative answers.
This is a mistake of significant proportions and implications which
26
J. M. KE Y N E S , E S S A Y S I N P E R S U A S I O N iv (1931). See also R O B I N W E S T , N O R M A T I V E
J U R I S P R U D E N C E (2012).
27
JEREMY BENTHAM, A COMMENT ON THE COMMENTARIES AND A FRAGMENT ON
G O V E R N M E N T 410 (J. H. Burns and H. L. A. Hart eds. 1977).
28

132 j udi ci al in di s cr e tions
Austin’s students perhaps were already alive to so many years ago. Too
many modern jurists have chosen to maintain the analytical front at
considerable cost to a broader jurisprudential project and its enlightening
possibilities. Instead, I recommend that jurisprudence should not be a
methodological puzzle of abstract dimensions, but become a substantive
challenge of historical proportions. On that, we can be clear.

8
Why I Don’t Teach Administrative Law

(and Perhaps Why I Should)
A couple of years ago, I was approached by my dean, Lorne Sossin, to

teach a high-enrolment course in administrative law. The school was in a
bit of a bind and the clock was ticking. I had never taught administrative
law before, but had written in the area and kept a weather eye open for
recent comings and goings in the legal doctrine. This meant that I knew
enough to sense that this was no easy undertaking and could not be done
without doing some serious preparation. Nevertheless, against my better
judgment and with Lorne’s encouraging charm, I agreed to give it a shot.
I had racked up some professional debts to Lorne and the school, so
decided that this was one way to settle my account. Administrative law, it
was to be.
As I got down to getting myself up to speed, I remembered Antonin
Scalia’s famous quip that ‘administrative law is not for sissies’.1 This
was less an across-the-bow warning to me and more of a gauntlet-
throwing exercise. I was no academic sissy and relished the idea of
taking on a fresh challenge. Also, over the years, I had made much of
the fact that my colleagues needed to be less precious in their
expressed unwillingness to teach in nothing other than their areas of
narrow specialization. In the past, I had taught constitutional law
without having much background in it and had come out of it
relatively unscathed (and much the wiser). So it was a kind of put-
up-or-shut-up moment for me. However, as I soon realized, it was
another instance when my bravado got the best of me; I had acted in
haste and now had ample time to repent at leisure. Was administrative
law a bridge too far? Was the gig up?
1
Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, [1989] D U K E
L . J. 511.
133

134 w hy i don ’t t ea ch admin is tr at ive l aw
Shovelling Smoke
As with much of my teaching, I started with the operating premise of the
great Oliver Wendell Holmes Jr. – why is it that some of the greats had
wonderful monikers to match? – that lawyers and especially judges
‘spend too much time shoveling smoke’.2 It was my job as a critical
theorist and professor to clear away some of that murkiness and reveal,
for good and/or bad, what lay beneath. My general go-to position was
that it was important to read between the lines as much as read the lines
themselves; the subtext and larger context of judgments was as illuminat-
ing as the text itself. This did not mean that legal doctrine was not to be
taken seriously, only that it was not be taken too seriously. What was not
said and why it was not said gave meaning and force to what was said and
why it was said. So, whether teaching tort law (as I had done for many
years) or administrative law (as I had not done before), I adopted the
same critical frame of analysis. To both my relief and chagrin, this proved
a worthwhile and rewarding approach.
Choosing a casebook for the course was easy. Lorne Sossin’s (and
Colleen Flood’s) book seemed the obvious choice both for reasons of
pedagogical quality and institutional loyalty – Administrative Law in
Context (2nd edition, 2013). It was as much a textbook as it was a
casebook. As the title suggested, it sought to put the law side of the
administrative process into a more practical and less abstract setting. I
supplemented the book with a series of readings from the leading cases
which were studied in the text. While the book was not the traditional
fare of law school classes, it provided a mainstream, if stimulating,
presentation of the law and courts. This would prove, I supposed, a
convenient foil for my own more critical comments and sceptical ideas.
It was both my life-belt and my target.
A good place to begin my preparation was an article I had written
many years, even decades, before. This was The Rise and Ruse of
Administrative Law and Scholarship from 1985. Fittingly, it had been
published in the Modern Law Review; this was the scholarly journal of the
London School of Economics (where I most recently gave a talk that was
the origin of this chapter).3 On re-engaging with the piece now as much
as reader as author, I was struck by its strident and uncompromising
2
Attributed in E D W A R D K N A P P M A N , W A T E R G A T E A N D T H E W H I T E H O U S E , vols. 1–2, 100
(1973).
3
Allan C. Hutchinson, The Rise and Ruse of Administrative Law and Scholarship, 48 M O D .
L. R E V . 293 (1985).

shovelling smo ke 135
tone. It was the product of an ‘angry young man’ who thought he had
much to prove to the world about the law and, as importantly, about
himself. It took a take-no-prisoners stance on the development of mod-
ern administrative law and the contributions of its judicial and academic
apologists. Although a little sheepish about this now as I am no longer as
‘angry’ or as ‘young’, I did take some solace from the fact that at least I
was, if I may, ‘man’ enough to speak my mind and that my mind was
pretty much on the right track.
The main thrust of the article was that judges are part of a deeply
ideological enterprise in which the need to make, even if masked, political
choices is inevitable. Moreover, despite efforts by mainstream theorists,
especially Ronald Dworkin, to demonstrate that these choices are the
law’s and not those of judges personally, I insisted that no background
theory could pull off that jurisprudential feat:
Legal doctrine does not conform to any simple logic and is unified only by
its enduring indeterminacy. . . . With imagination and industry, legal
materials can be organised so as to support radically inconsistent posi-
tions. In so far as it is possible to defend a variety of plausible theories, no
one proposal can lay claim to exclusivity or universality. Meaningful
interpretation is only possible where there already exists a commitment
to a shared set of values. However, as in the political domain, the legal
territory is a focus of conflict. There is a pervasive matrix of contradictory
forces that prevents the establishment of a sufficiently full tradition of
shared understandings. The indeterminacy of legal doctrine finds its
energy and power in the antithetical modalities of individual and com-
munity. This deep logic of contradiction sustains and ensures an inescap-
able scheme of doctrinal indeterminacy. Doctrine can be consistently
converted into its own opposite self-image.4
I am less dogmatic and schematic in my approach today. I am also less

persuaded that there is always a ‘deep logic’ at work; this is too formulaic
and analytic. From the more pragmatic perspective I had now taken, the
development of legal doctrine is best characterized as being about ‘mud-
dling through’ than the manifestation of some structural dynamics. The
need to connect judicial activity with legal theory remains paramount,
but I have a less imperialist and grand understanding of what theory is or
can do: it is more an artistic endeavour than a scientific one. However, I
4
Id. at 297. I also wrote another piece along similar lines a few years later. Mice Under a
Chair, Democracy, Courts and the Administrative State, 40 U. T O R O N T O L . J. 374 (1989).
The bottom line was that “the work of the courts is qualitatively incoherent and . . .
inescapably political”. Id. at 375.

136 wh y i don ’t t ea ch admin is tr ati ve l aw
still very much retain a critical stance and hold to the view that the best
account of law is summarized by the notion that it is ‘indeterminacy with
a cut’.5
First Days
When I first started teaching, I was haunted by the same insecurity I had
as a student. While preparing for an evidence class, I strove to explain and
present the relevant legal doctrine in terms of a coherent and convincing
framework. In this way, law could be understood as the entirely rational
enterprise it was proclaimed to be. Any failure to achieve that state of
academic repose I thought was a personal weakness on my part, not a
feature of the legal doctrine. As I walked into class, I thought I had it all
worked out in my mind. But, as I began to lecture (and that was what I did
to begin with in my early English years), the clarity and grasp of the
doctrine I had experienced only a few minutes earlier began to slip away.
Instead of being a finely balanced and rationally sophisticated structure,
it turned out to be so much crumbling pie in the sky. The doctrine
collapsed in on itself and became more accurately depicted as a series
of generalized rules with numerous and discretionary ad hoc exceptions
on ad hoc exceptions. I still defy anyone to articulate the law of hearsay in
other terms. It might be said that the smoke was so thick and so
disorienting that even the most flimsy hand-hold was welcomed.
At root, the problem was the foundational belief among judges and
scholars that the law did make sense on its own terms and that, if it did
not, it was the fault of judges who must be chastised and corrected by
academic commentators. For example, C. P. Harvey’s conclusion that the
law of evidence was “less of a structure than a pile of builders’ debris” and
Rupert Cross’s observation that judges and lawyers relied on “distinc-
tions absurd enough to bring a blush to the most hardened academic
face”6 were very much to the point. However, these esteemed scholars
both assumed that the jurisprudential project of showing evidence law
made deep and enduring sense and was possible and realizable: it simply
had not achieved that exalted status at that moment or in that doctrine.
5
As proof of that, I recently wrote a book based on exactly that premise. See T O W A R D S A N
I N F O R M A L A C C O U N T O F L E G A L I N T E R P R E T A T I O N (2016). See also T H E P R O V I N C E O F
J U R I S P R U D E N C E D E M O C R A T I Z E D (2008).
6
C. P. H A R V E Y , T H E A D V O C A T E ’S D E V I L 79 (1958) and R. Cross, The Evidence Report:
Sense or Nonsense?, [1973] C R I M . L . R E V . 329 at 333.

f irs t da ys 137
As I grew in confidence and read more widely, I began to reject the

traditional black-letter and even black-theory standpoint. The raison
d’être of the academic project was to make sense of legal doctrine, but
what that involved was very much open to contestation. Rather than be
content to indicate the non-rational failings of particular legal doctrines,
I set out to elucidate the non-rational failings of legal doctrine as an entire
enterprise. In other words, I set out to make sense of why legal doctrines
and judicial decisions did not make sense. However, it was essential that a
rigour and discipline was brought to that task; there might well be
instances in which the fault lay with the critic in failing to grasp the
niceties of any slice of legal doctrine. There might be stretches of doctrine
and pockets of individual rules which had a plausible coherence at any
particular time and on any particular occasion. But that was short-lived,
superficial, and contingent; it was always up for grabs and often did get
grabbed. The overall project of doctrinal scholars was a sleeveless
errand.7 Once the smoke clears, there is only debris strewn around; any
lasting or deep order was in the eye of the juristic beholder.
Of course, I did promote and purvey that critical line with perhaps an
excessive amount of zeal. On that count, I am guilty as charged. But this
ought not to have diminished or detracted from the fact that the basic
claim was accurate and compelling – legal doctrine taken as a whole is a
patchwork quilt of compromises and concessions which makes no
enduring sense over time and across discrete subject areas. If there is
any sense to be discovered or imposed, it is to be found in the ever-
changing and conflicting policies which judges and lawyers seek to
achieve as a matter of ideological balancing. In other words, legal doc-
trine is hostage to the changing personnel of law and to the changing and
often contradictory impulses of those professional actors. It is not that
this amounts to some closed-door conspiracy of judicial bureaucrats.
Most judges act in good faith in their efforts to make sense of legal
doctrines and their apparent limits; they proffer their judgments as the
product of reasoned and reasonable doctrinal analysis. But the materials
available and the resources at hand belie the claim, express or implied,
7
It should go without saying that this was not in any way a unique or untutored insight on
my part. I drew extensively on the original and path-breaking work of the so-called critical
legal scholars. Largely American in base and style, they offered me a set of resources from
which to fashion my own take on the Anglo-Canadian world of judicial opinions and
academic scholarship. In particular, the work of Duncan Kennedy has been indispensable
and influential over the years. See, for example, D U N C A N K E N N E D Y , A C R I T I Q U E O F
A D J U D I C A T I O N F I N D E S I èC L E (1998).

138 w hy i don ’t t ea ch admin is tr at ive l aw
that the law is something apart from the ideological leanings of the
judges; judicial decision-making is an enterprise of law-and-ideology.
None of this is to say that all decisions are bad. To say so would be to
mistake the critical thrust of my approach. My claim is that what makes
one decision better than another is simply whether one likes the ideolo-
gical cut or thrust of the decision. Some judgments are better crafted than
others, but what makes the good or even great decisions is that the
political agenda or interests they advance is more acceptable to more
people than less acceptable. Decisions are never right or wrong in any
enduring or internally legal way. It is simply that a decision and its
supporting argumentation are more or less palatable in terms of the
political interests it protects or promotes. Moreover, any political decon-
struction of a decision is rarely straightforward or two-dimensional. A
simple liberal/conservative analysis is facile and unconvincing; the inter-
play of different interests is complex, dynamic, and obscure. This is
particularly so in an area like administrative law. The politics of admin-
istrative law are not always obvious or easily decipherable: the technical
and institutional issues play out across a range of interests which do not
line up easily or at all with those in private law. At bottom, administrative
law is built on courts’ desire to preserve their own legitimacy and own
brand of justice in reviewing the work of the administrative state. Put
more crudely, judges want to ensure that administrators know that the
judges are the bosses.
Of course, the emphasis in administrative law on judicial action and
legal doctrine is itself problematic. The administrative process comprises
much more than that. Indeed, it is arguable that available legislative
checks and balances do much more effective work than the legal princi-
ples and guidelines which result from judicial review. Nevertheless, for
good and bad, judicial law-making and the resulting doctrinal rules
produced cast a long shadow over the workings and dynamics of admin-
istrative law and process. While this gives some legitimacy to the intense
focus on the work of the courts (along with the general and continuing
preoccupation in law schools with the courts), it cannot justify it entirely.
Indeed, legal education (including its critical antagonists) might do more
to perpetuate this state of affairs than it likes to think. Accordingly, part of
my task as a critical theorist was to expose the infirm foundations and
effects of judicial review not in order to improve the judicial process, but
to encourage greater interest in other more effective and democratic
means to enhance the operation, accountability, and fairness of the
administrative state.

a c l ass act 139
So, in approaching my responsibilities in teaching administrative law, I

carried with me a career’s worth of intellectual and jurisprudential
baggage. This makes me no different than any other teacher; everyone
carries some baggage. The difference is that my baggage is less main-
stream and more critical in substance and style. Yet, as I began my classes,
I was also weighed down by a lingering sense that my pedagogical duty
was to offer the students as coherent and rational account of the legal
doctrine in administrative law as I could muster; criticisms were to be
discrete and piecemeal. This brought back echoes of the charge that
teachers and scholars like me were ‘disappointed absolutists’.8 For all
my critical rejection of the formalist mind-set, I was still somewhat in
thrall to it. Indeed, such a schizophrenic mind-set is not surprising if you
have lived in an institution for all your professional life where the
dominant approach, despite much protestation to the contrary, is largely
formalistic and rationalistic. So, with the usual ambivalence and gusto, I
began to teach my first administrative law class.
A Class Act
I started the classes by laying my cards on the table. I was very much a
known quantity at the school, so little would come as surprising or new to
those students who had enrolled for the course. I told them that, although I
had written in the area, I had not taught administrative law before. I spun it
such that what they might lose in my expertise in administrative law would
be offset by what they might gain in terms of my overall teaching and
jurisprudential experience. Also, I made plain that, as a committed demo-
crat, I was no fan of courts and that a significant part of the course would be
devoted to providing a critical perspective on both the work of the courts
by way of judicial review and the shortcomings of the administrative
process in terms of democratic governance. The students seemed to take
this in their stride. However, as this was an upper-year course, I assumed
(correctly, as it turns out) that the amount of reading and preparation
would not be great. With that, the adventure began.
I will not trouble or bore you with a day-to-day account of the classes
and the discussions which took place within them. Suffice it to say that
there were ups and downs. However, for present purposes, what was
more important was my own engagement with the materials and
8
H.L.A. HA R T , T H E C O N C E P T O F L A W 135 (1961). He was talking about the realists or rule-
sceptics with whom I might be loosely grouped.

140 w h y i don ’t te ac h admin ist ra tive l a w
decisions of the courts, especially the Supreme Court of Canada. Like the
students, I was reading cases I had never read before. I came to them with
little preconception of what they said or did. But I did come to them, of
course, with my own critical approach to law, judicial decision-making,
and teaching: I read the cases as a critical teacher/scholar. I was not to be
disappointed in my expectations or my engagements with them. Try as I
might, it was impossible for me not to view the leading judgments as so
easily and obviously grist for my critical mill. The leading cases amounted
to what was almost a caricatured tableau of judicial decision-making
which said one thing (i.e., law) and did another (i.e., politics); they were
an example par excellence of law-as-ideology.
From its effective beginnings with Roncarelli in 1959,9 the heart of
Canadian administrative law has been the tension between the courts
and the executive. The central challenge has been to chart and justify a
path between the different institutional claims of each branch of govern-
ment to ensure that the principles and promise of democracy are best
protected and advanced. Although clothed in all manner of legal and
technical details, this is essentially a clash of politics – who gets to have
the decisive say over how the dealings between citizens and the adminis-
trative state are organized and negotiated? This question touches so many
aspects and dimensions of democratic governance and defies easy analysis.
At least as understood by the courts (and that, of course, is of great
significance), it has touched upon and given rise to three main doctrines
of legal doctrine – the procedures to be followed by tribunals and executive
officers; the remedies available to citizens to correct maladministration;
and the need for review of the substance of decisions made and actions
taken.
While there has been considerable toing-and-froing over the first two
doctrines, the third – substantive review – has generated the most activity
and anguish. This is where the institutional rubber hits the governmental
road. Most of this debate has been over how government is made
accountable to the citizenry it is supposed to serve and, as importantly,
who is best available to achieve that objective. The development of legal
doctrine has gravitated between the differing extents to which the courts
can or should interfere in the workings and wiles of administrative agents
and agencies. This is captured by the idea of deference – when and how
should the courts defer to the decisions and actions of the executive? The
courts have insisted that their task is to interpret statutes against the
9
Roncarelli v. Duplessis, [1956] SCR 121.

a cl a ss a ct 141
demands of the Constitution. But no sensible observer could pretend that

the task was as simple or straightforward as that. The push-and-pull of
institutional politics and priorities energizes and backstops that ostensi-
ble legal drama over the ‘standard of review’. Indeed, as with so much
legal doctrine, it all boiled down to who was judging and where they
stood when they did so.
Beginning with CUPE in 1979, the courts have sought to develop and
defend some crucial, but vague distinctions between jurisdictional
powers and the exercise of substantive discretion. While the former was
to be policed aggressively and adjudged by norms of correctness, the
latter was to be granted more leeway and measured only against the
standards of ‘patent unreasonableness’. This resulted in executive efforts
to squeeze courts out of the action by relying on privative or exclusion
clauses which sought to oust courts from their supervisory authority. But
the courts were having nothing of this; they raised constitutional con-
cerns and refused to vacate their role as the privileged underwriters of
democratic legitimacy.10 Even when the legislature was entirely clear that
it wanted the courts to have no supervisory role, the courts took that as
merely an indication that less deference might be warranted. By 1997, the
courts had introduced a more complicated and murky approach which
established a tripartite set of standards for reviewing administrative
action. Abandoning the jurisdiction/substance test, they placed their
faith in a nuanced balancing between correctness, reasonableness simpli-
citer, and patent unreasonableness.11
For the next decade or so, the courts sought to demonstrate how this
balancing could be operationalized with any consistency or clarity. If the
chorus of criticism was anything to go by, this was an abject failure. The
judges disagreed with themselves over how to categorize contested mat-
ters and what the subsequent categorizations meant in practical terms:
the doctrine simply collapsed of its own weight. Administrative law had
become a living manifestation of Tennyson’s telling characterization of
“the lawless science of law/ . . . That wilderness of single instances”.12
Although the judicial ambition was to forge a path through the dangerous
thickets of institutional authority and accountability, the result was to
make matters worse, not better. The doctrinal smoke the courts were
generating was not fooling anyone and, if it had any real effect, it was to
10
See, for example, Crevier, [1981] 2 SCR 220.
11
See, for example, Southam, [1997] 1 SCR 748.
12
L O R D A L F R E D T E N N Y S O N , “Aylmer’s Field” (1793).

142 wh y i don ’t te ac h admin ist ra tiv e l aw
disorient further the judges themselves. Indeed, I might be forgiven for

taking some comfort from the courts’ capacity to make the critics’ argu-
ment for them and to do so with enviable cogency – the rules of the
administrative game shifted and changed, their meaning and application
were elusive even to those who set them, and exceptions popped up as
and when the occasion demanded.
The turning point came with Dunsmuir, although it would prove
another and inevitable false dawn. The point at issue was whether
standards of reasonableness applied to the firing of public employees
and, as importantly, whether a tribunal’s decision on that issue was
reviewable by the courts. The three judgments of the Supreme Court
do as much to continue the confusion as to dispel it. All the judges agreed
that the adjudicator’s decision should be set aside, but they did so for very
different reasons and in line with different considerations. For those
looking to the Supreme Court for guidance and reassurance, they were
surely disappointed. Although touted as the last word on standards of
review, Dunsmuir is likely to be the last word only until the next last
word.
In speaking for the majority, Justices Bastarache and LeBel decided it
was time to reassess “the structure and characteristics of the system of
judicial review as a whole” and to develop a principled framework which
is ‘more coherent and workable’. To that end, they decided there should
be a reversion to two standards (i.e., reasonableness and correctness):
“Reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility.”13 In deciding which standard applied,
they were less forthcoming. While ‘reasonableness’ ought to be the norm,
a multi-factored analysis could be used to determine if ‘correctness’ was
appropriate; these factors included whether there was a ‘true’ jurisdic-
tional issue, a privative clause, a constitutional question, a centrally
important legal issue, and the level of the decision-maker’s expertise. In
line with this, the majority held that ‘reasonableness’ was the proper
standard and that the decision-maker had not acted reasonably in the
circumstances. However, Justices Bastarache and LeBel were not very
expansive or instructive in how such unreasonableness could be
measured.
Justice Binnie took a slightly different line. He was more pragmatic and
less enamoured of the majority’s analytical claims: “judicial review is an
idea that has lately become unduly burdened with law office
13
Dunsmuir v. New Brunswick, [2008] 1 SCR 190.

in the wilderness 143
metaphysics”. He took the position that, while a move back to two

standards was probably wise, “a single ‘reasonableness’ standard is a big
tent that will have to accommodate a lot of variables”.14 He went on to
indicate that any analysis must necessarily be contextual and cannot lend
itself to easy or exhaustive resolution among the relevant considerations.
Again, he concluded that ‘reasonableness’ was the proper standard and,
in relatively short order, that the decision-maker had not acted reason-
ably in the circumstances.
Justice Deschamps spoke for her two other colleagues. She went along
with the reduction of the standards from two to three. She came to the
conclusion that this was an occasion on which ‘correctness’ was the
appropriate standard as the adjudicator had strayed from his area of
administrative expertise and into the realm of legal interpretation; this
took him beyond the need for deference by way of the reasonableness
standard. So, in line with the rest of the Court, but for very different
reasons, she held that his decision should be set aside because the
decision-maker had made an incorrect decision.
In the Wilderness
When I first read the Dunsmuir decision, I experienced that usual mix of
excitement and self-doubt. It was as if I had walked into the middle of a
continuing conversation with only a very general sense of exactly what
had been said and done before. I made a game effort to make sense of the
judgments in their own terms and how they might be applied. Yet, try as I
might, there were many more questions than answers. The superficial
appearance of coherence and workability gave way to a much more
substantial sense of fundamental disagreement and empty abstraction.
Having cleared away the smoke and dug deeper, I was left with little more
than another pile of builders’ debris. It became obvious (if anything can
be obvious about the decision and its judgments) that Dunsmuir was
supposed to be the occasion on which the Supreme Court laid out for
administrative law “a principled framework that is more coherent and
workable”. Yet, judged by that standard of the Court’s own choosing, the
decision fails; it is neither coherent, workable, nor principled.
First, any coherence the decision has is merely abstract and only wafer-
thin at that. If coherence is meant to signify that a measure of balance and
intelligibility has been achieved, there is nothing more or less coherent in
14
Id. at 122 and 144.

144 wh y i don ’t te ac h admin ist ra tiv e l a w
having two rather than three categories of review. Even when viewed in
its best light, the attainment of coherence says little about the substantive
quality of the doctrine itself: it can be good or bad, even if it is coherently
so. However, if ‘coherent’ is being used as a synonym for simpler or more
rational, there is also nothing compelling about the new Dunsmuir test as
a simpler or more rational test. As Justice Binnie notes, “a single ‘reason-
ableness’ standard is a big tent that will have to accommodate a lot of
variables”.15 This strongly suggests that any claim for simplicity or
rationality in the new two-part test is more apparent than real: the real
action has simply been moved from the front to the back of the legal
doctrine. As such, coherence is the proverbial sack which can be filled
with almost any content.
Secondly, the workability of the Dunsmuir framework is undermined
by the Court’s own judges. Three of the nine judges – Justices
Deschamps, Charron, and Rothstein – pull the rug out from under the
Court by failing to agree on whether the standard of review on these facts
should be reasonableness or correctness. This is a major problem. If the
majority of the Court cannot persuade its own colleagues that the test is
workable (i.e., it will direct those who rely on it to come to the same
categorization in similar circumstances), what chances are there that
other judges, let alone academics and lawyers, will be able to agree?
Apart from the general open-endedness of what counts as ‘reasonable’,
any distinction for fixing the standard of review which cannot be utilized
consistently by Supreme Court judges seems less a serious and efficacious
test and more an accommodating screen for more free-wheeling and
independent assessments.
As for being principled, this begs the very big question the Court is
tasked with answering across administrative law – who should get to set
the terms for distributing responsibility about making the administra-
tive process more accountable and fair? Throughout the legal doctrine,
there is a taken-for-granted assumption that the legislature and execu-
tive cannot be trusted, but that the courts can be. While there are clearly
concerns about the courts overreaching, the courts maintain that they
are the trusted guarantors of fairness and justice. Yet the historical rise
of the administrative state and tribunals had much to do with the
unwillingness of the courts to perform their role with appropriate
expertise and political balance. For example, the initial reason for
establishing an administrative structure for human rights and labour
15
Id. at 144.

in the wilderness 145
relations was the poor job the courts were doing. Moreover, the
accountability of the courts is itself less than robust or extensive. The
judges are quite literally a law unto themselves; they make the law that
they then claim to be governed by.16 This seems far from being the
principled basis that the Supreme Court claims for its justification of
administrative law’s development.
This general stance was confirmed by some of the cases which
followed Dunsmuir. In blunt terms, the new Dunsmuir world was
more smoke and style than shape and substance. For all the talk about
principles and coherence, it remained a mug’s game to predict what the
courts would do in reviewing the actions or decisions of administrative
agencies. Even if there is an agreement on whether the standard is
reasonableness or correctness, there is no real sense of how a decision
will be made as to whether an administrative action is reasonable or
correct. Clearing away the doctrinal smoke, there are simply judges
muddling through in determining if they disagree enough with the
disputed administrative action or decision to set it aside. Describing
this as ‘palm-tree justice’ might be a little exotic for the Canadian
sensibility, but it captures something of the style and substance of
judicial review. Two cases will suffice to make the point.
In Khosa, it had to be decided whether a tribunal’s decision to allow
the deportation of a convicted street-racer (causing death) and to deny
‘special relief’ was reviewable. The Federal Court of Appeal applied a
reasonableness standard and set aside the tribunal’s decision as unrea-
sonable: it found that the tribunal had some kind of fixation with street-
racing being involved and no explanation had been given as to why a
favourable rehabilitation report had been ignored. The Supreme Court
took a contrary stance. A majority declared that the Dunsmuir princi-
ples were not ousted by the relevant governing legislation. The judges
agreed, therefore, that the reasonableness standard was applicable and
that the tribunal had acted reasonably or, at least, not unreasonably; the
tribunal had reached its own conclusions based on its own appreciation
of the evidence and the decision did not fall outside the range of
reasonable outcomes. Justices Rothstein and Deschamps insisted that
the Dunsmuir principles did not displace the statutory provisions.
Nevertheless, they found that the tribunal’s findings “were not perverse
or capricious and were not made without regard to the evidence”.17
16
See supra, ch. 4.
17
Canada (Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339 at 137.

146 wh y i don ’t te ac h admin ist ra tive l a w
However, Justice Fish dissented and held that “deference ends where
unreasonableness begins”.18 He went with the majority on the standard
of review being Dunsmuir reasonableness; he found that the tribunal
had failed to evaluate the facts and issues in a reasonable way.
Disagreement among the judges in itself is not fatal. But, in Khosa,
the difference of opinion is telling, especially in light of the fact that
Dunsmuir was supposed to represent administrative law in a new light
and as “a principled framework that is more coherent and workable”.
Again, judges on the same court could agree neither on the appro-
priate test to be applied (coherence) nor on how that test should be
applied (workability). The claim to be taking a principled stance is
entirely belied by the confusion and indeterminacy which threads
through the decision and judgments. Despite assertions about the
importance of the Rule of Law, Khosa comes close to confirming the
notion of the Rule of Five: it is not principle which counts or deter-
mines the legal doctrine, but the numbers of judicial votes (and
nothing else) which combine behind any principle of or putative
application.
The serendipity or even perversity of the judicial process was made
even more apparent in Mowat.19 This was a discrimination case and the
question was whether a human rights tribunal could award legal costs to a
successful applicant under a statutory provision which allowed payment
“for any expenses incurred by the victim as a result of the discriminatory
practice”. While the tribunal and Federal Court found that it was possi-
ble, the Federal Court of Appeal and the Supreme Court did not.
Applying a Dunsmuir analysis, Justices LeBel and Cromwell determined
that the reasonableness standard applied, not correctness. Emphasizing
that this was based upon deference to the decision-maker’s expertise and
experience, the Court still went on to insist that “no reasonable inter-
pretation supports [the] conclusion” that the tribunal may award legal
costs to a successful applicant under the rubric of ‘expenses’. After
extensive analysis, the Court set aside the tribunal’s decision to award
costs and held that:
The text, context and purpose of the legislation clearly show that there is
no authority in the Tribunal to award legal costs and that there is no other
reasonable interpretation of the relevant provisions. Faced with a difficult
18
Id. at 160.
19
Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2011] 3
SCR 471.

c on cl us ion 147
point of statutory interpretation and conflicting judicial authority, the
Tribunal adopted a dictionary meaning of ‘expenses’ and articulated what
it considered to be a beneficial policy outcome rather than engage in an
interpretative process taking account of the text, context and purpose of
the provisions in issue.20
The effect of this kind of analysis is to collapse reasonableness into

correctness. While there is scope for two courts to disagree over whether
‘expenses’ includes legal costs, it is preposterous and, ironically, unrea-
sonable to conclude that a decision that it does is unreasonable. The fact
that this done in the name of deference further exacerbates matters. Even
the Court admits that the tribunal was “faced with a difficult point of
statutory interpretation and conflicting judicial authority”. To determine
that the tribunals’ decision was unreasonable is to circumscribe so tightly
the zone of reasonableness that it amounts to “making the same decision
as the reviewing judges would make”. Moreover, the apparent hands-off
approach of the majority in Khosa was disregarded. This is a perfect
example of the courts being long on talk about deference and reason-
ableness, but short on any action or application which holds true to those
stated ideals. As such, the Mowat decision is a revealing cameo about how
administrative law does and does not work: it is about generating ‘prin-
cipled’ smoke to cover the political and normative debris which lies
beneath.21
Conclusion
So I hope that there is now some better understanding of why I do not
teach administrative law (and perhaps why I should). I do not teach
administrative law because I cannot be an administrative lawyer in the
sense of presenting administrative law as even vaguely amounting to “a
principled framework that is . . . coherent and workable” – not now, not
at any time. However, perhaps I should teach administrative law as a
legal theorist because it continues to offer substantial grist for my
critical mill in that I will be able to show that administrative law, like
most areas of law, cannot be presented as even vaguely “a principled
20
Id. at 64.
21
The smoke thickens, not clears as time goes by. As I finish this chapter, the Supreme Court
handed down another decision which does more to confuse than clarify. In a 4-3 decision,
the Court could not agree on how and what standard of review should be applied to a
tribunal’s exercise of statutory interpretation. See Commission scolaire de Laval v.
Syndicat de l’enseignement de la région de Laval, 2016 SCC 8.

148 wh y i don ’t te ac h admin ist ra tiv e l aw
framework that is . . . coherent and workable”. As I have sought to show,

administrative law is “all echoes and shadows, like looking into a box of
fog”.22 Of course, the same might be said of other courses, like torts,
which I teach as well. The structure and features of administrative law
are no different in this regard than any other subject area in terms of its
doctrinal opacity and political underpinnings. But that is a topic for
another day.
22
K A T E A T K I N S O N , S T A R T E D E A R L Y , T O O K M Y D O G 141 (2010).

9
Into the Black Hole: Towards a Fresh Approach

to Tort Causation
“I had a feeling once about mathematics, that I saw it all – Depth beyond
depth was revealed to me – the Byss and the Abyss. I saw, as one might see the
transit of Venus – or even the Lord Mayor’s Show, a quantity passing through
an infinity and changing its sign from plus to minus. I saw exactly how it
happened and why the tergiversation was inevitable: and how one step
involved all the others. It was like politics. But it was after dinner and I let
it go.”
– Winston Churchill1
One could be forgiven for experiencing the same sense of resigned

bafflement Churchill had on confronting the equally daunting subject
of causation. Few topics in law have generated as much literature and as
much confusion as causation. Law is little different from other disci-
plines, like science and philosophy. Although the context and purpose
may be different, the struggle is equally torturous and troubled. Indeed,
the extent of elucidation and clarity achieved seems to be inversely
related to the intensity and extent of analysis offered. For all the effort
invested, little progress has been made in either the legal academy or the
judicial ranks. Causation remains a veritable black hole that, once
entered, can rarely be escaped. It has claimed the scholarly lives of almost
all those who presume to have decoded or resolved its pervasive puzzles.
In this regard, Churchill escaped relatively unscathed.
So why am I entering the field and running the risk of a similar fate?
My approach is to reject the present paradigm within which existing
theories and accounts operate at both the judicial and academic levels.
Rather than seek to outline some neutral or pseudo-scientific test for
understanding or navigating the black hole of so-called factual causation,
1
W I N S T O N S. C H U R C H I L L , M Y E A R L Y L I F E : 18 74 –1 90 4 ch. 3 (1930).
149

150 into the b lack hole
I recommend abandoning that irresolvable and hopeless quest. By this, I

mean that the mysteries of causation do not lend themselves to resolution
in any analytical or pure manner. Different answers will recommend
themselves depending on the context and purpose of any inquiry: what
will pass argumentative muster in one situation (e.g., science) will not be
appropriate for another (e.g., law). In short, I take the view that, if you ask
the wrong questions about causation in torts (as most judges and scholars
do), you are guaranteed to get the wrong answers. In line with this, I will
develop a very different approach for meeting the challenge of fixing
causation in tort law. Mindful that “knowledge of facts presupposes
knowledge of values”,2 I insist that the requirement of causation must
be understood as being entirely part of the broader debate on the goals
and policies of tort law generally. Causation is a topic drenched with
normative values and should be treated as such.
Most of the scholarly action concerns those situations in which there
are multiple tortfeasors and the like. However, the efficacy of the ‘but for’
test is dubious and contested for even the most basic one-on-one
instances of tort liability. The most recent cases of Clements in Canada
and Williams in the United Kingdom offer testament to that; both involve
a possible tortious cause and a non-tortious one. Accordingly, after
introducing the present state of Canadian doctrine on causation, I exam-
ine the best, if flawed, scholarly efforts at solving the mysteries of causa-
tion; it is not my intention to offer an exhausting or exhaustive account of
the existing scholarly literature. Then, after digging deeper into Clements
and its theoretical underpinnings, I look at how causation can be dealt
with as a policy matter. The final third of the chapter lays out a different
way of looking at tort law and how a McGhee-inspired causation rule
might be designed which respects that approach. Throughout, the ambi-
tion is to get beyond the prevailing tendency to treat causation as an
exclusively factual issue and to grasp it as a thoroughly policy-based
inquiry.
Cause for Complaint

A convenient place to begin is with the most recent pronouncement on
causation in tort by the Supreme Court of Canada in Clements v.
2
H I L A R Y P U T N A M , T H E C O L L A P S E O F T H E F A C T /V A L U E D I C H O T O M Y A N D O T H E R
E S S A Y S 145 (2002). For development and defence of this broad pragmatic claim, see
infra, pp. 167–71.

ca use f or complaint 151
Clements. The defendant crashed when a nail on the road punctured his
motorcycle’s tire and he was unable to retain control of his bike. At the
time of the accident, he was travelling well over the speed limit and his
motorcycle was considerably overloaded. His wife was a passenger and
was seriously injured. She sued her husband. She won at trial, but lost on
appeal as it was found that the accident might well have happened even if
the defendant had not been negligent. The Supreme Court allowed the
wife’s appeal and ordered a new trial.3 The central question for the Court
was whether the defendant/driver’s negligence was the cause of the
accident – would the accident have occurred regardless of the defendant’s
negligence? In answering that question, Chief Justice McLachlin took the
opportunity on behalf of the Court to restate the preferred approach to
causation in personal injury litigation that the Court had been seeking to
follow, with some deviations and detours, for the past two decades or
more since Snell – the traditional and unadorned ‘but for’ test.4
After a detour of several decades, the Supreme Court of Canada
managed to end up in much the same place it began. The basic assertion
of contemporary Canadian jurisprudence on causation seems to be the
same as what Caesar Wright insisted upon almost 70 years ago in 1948 –
“cause and effect are pure questions of fact”.5 By this, both Dean Wright
and Chief Justice McLachlin (the most frequent and contemporary
Supreme Court judge to opine on tort doctrine) are claiming that, even
if its resolution is elusive and uncertain, the effort to fix a causal relation
between the defendant’s act and the plaintiff’s harm is entirely factual in
spirit and performance. Involving no normative or evaluative factors,
they defend the stance that it is possible to fix a causal nexus without any
resort to controversial matters of value or policy. As such, the causal
inquiry can be separated entirely from matters of social justice or moral
responsibility. Indeed, for Wright and McLachlin, to do otherwise would
3
Clements v. Clements, [2012] 2 S.C.R. 181. There was a dissent by Justices LeBel and
Rothstein, but it was simply about the majority’s decision to order a retrial rather than a
verdict being entered in favour of the defendant.
4
Snell v. Farrell, [1990] 2 SCR 311. For an excellent and insightful account of the pre-
Clements jurisprudence, see Vaughan Black, The Rise and Fall of Plaintiff-Friendly
Causation, 53 A L T A L. R E V . 4 (2016). My view is that the existing doctrine is now
plaintiff-hostile.
5
C. Wright, The Law of Torts, 1923–1947 (1948), 26 C A N . B A R R E V . 46 at 58. The Supreme
Court of Canada is not alone in this basic operating assumption. See the approach of the
High Court of Australia in Bennett v Minister of Community Welfare (1993), 176 CLR 408
at 412 (Mason CJ, Deane and Toohey JJ) and Roads and Traffic Authority v Royal (2008),
245 ALR 653 at 674 (Kirby J).

152 i n t o t he b l a c k h o l e
be to collapse their own philosophical division between fact and value.

This would risk severe and possibly fatal harm to their jurisprudential
and judicial projects to ground an appropriate scheme of tort liability.
In Clements, the Supreme Court emphasized that the causation inquiry
was an entirely factual one and to be based on a ‘robust common sense
approach’; scientific precision was not required.6 No liability could be
placed on a negligent defendant unless there was a showing of ‘but for’
causation – the injured plaintiff has the burden to demonstrate that the
accident would not have occurred but for the defendant’s negligence.
Only in exceptional circumstances can the ‘but for’ requirement be
abandoned in favour of a ‘material contribution to risk’ approach. Such
circumstances will generally exist only where there are multiple tortfea-
sors and when the ‘but for’ test cannot work for them separately, but only
as a group (i.e., ‘but for’ the negligence of one of the group, the plaintiff
would not have been injured). Accordingly, the question for a trial judge
is whether it can be determined on a balance of probabilities that the
plaintiff’s injuries would not have happened ‘but for’ the negligence of the
defendant.
In reaching this decision, the Supreme Court insisted that this
approach was underwritten and justified by ‘fairness and conforms to
the principles that ground recovery in tort’.7 These considerations were
offered as a basis for both a continued reliance on the ‘but for’ rule and
the limited scope of any exceptions to it. As such, it needs to be demon-
strated that “the defendant’s negligence was necessary to bring about the
injury”.8 As for a ‘material contribution’ test (i.e., did the defendant’s
negligence make a material contribution to the risk the plaintiff would be
harmed), the Court approved of the critical view that this “does not
signify a test of causation at all; rather it is a policy-driven rule of law
designed to permit plaintiffs to recover in such cases despite their failure
to prove causation”.9 Consequently, it decided that this exceptional way
of proceeding is defensible only in cases of multiple tortfeasors, not single
tortfeasors.10
6 7 8
Supra, note 3 at para. 9. Id. at para. 16. Id. at para. 8 (emphasis in original).
9
Id. at para. 14, citing Smith J.A. in MacDonald v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68,
at para. 17.
10
The United Kingdom Supreme Court did decide that a material contribution to risk
approach did apply to a single negligent employer who had exposed a plaintiff to asbestos.
See Sienkiewicz v. Greif (UK) Ltd., [2011] UKSC 10. The Supreme Court seems to have
shifted in its understanding of what counts as ‘material contribution’. In earlier cases, like
Snell, supra, note 4, it seemed to talk more about ‘material contribution to injury’, not
‘material contribution to risk’.

cause f or complaint 153
Despite the Court’s protestations to the contrary, this is ‘a radical

approach’ which stands in sharp contrast to much existing legal doctrine
and juristic commentary.11 The incorporation of a ‘necessity’ require-
ment is a regressive step in terms of the plaintiff’s burden in establishing
liability: the idea that causation is and can be understood as an entirely
policy-free inquiry is unfounded and misleading. Moreover, the radical
and regressive nature of the decision is further compounded by the
almost off-hand, yet startling statement that it is “the theory of corrective
justice that underlies the law of negligence”.12 Both these claims by the
Court are open to strong and severe disapproval. While Chief Justice
McLachlin is right to connect tort doctrine to deeper theoretical princi-
ples, she is wrong, in terms of both descriptive accuracy and prescriptive
policy, about tort law’s commitment to corrective justice generally and
the role of necessity in causation doctrine. Finally, the Court’s reliance on
a ‘robust common sense approach’ adds intellectual insult to analytical
injury; it is more an admission of explanatory failure than a genuine
attempt at elucidation. Common sense is usually neither common nor
sensible; it is a screen for much deeper and unrevealed preferences and
practical commitments.
Accordingly, as I will show, the judgment and decision in Clements is
wanting in so many ways. Although it is offered by the Supreme Court of
Canada as the definitive and state-of-the-art word on causation in tort
law, it falls well short of its lofty aim; it never really gets off the ground as a
convincing account of causation. Indeed, there can be few recent deci-
sions of the Supreme Court of Canada that have succeeded in promising
so much and delivering so little. It simply defies understanding that Chief
Justice McLachlin and the Court could think that perplexities of causa-
tion can be handled, let alone be resolved by the discredited and simplis-
tic ‘but for’ test. The Court itself has actually been a stern critic of the
limitations of the ‘but for’ rule in the past.13 As such, the challenge for the
critical theorist is to ignore what the Court claims that it is doing and
11
Supra, note 3 at para. 16. There is some support for McLachlin’s approach in the
American Restatement. There, it is contended that the ascertainment of cause-in-fact is
based on factual necessity, not on legal policy. Moreover, although it is conceded that the
‘but for’ test needs to be relaxed in multiple cause situations, the Restatement rejects a
‘material contribution’ or ‘substantial factor’ solution. See American Law Institute,
Restatement of the Law, Third: Torts – Liability for Physical and Emotional Harm
(2010). See also Boim v. Holy Land Foundation for Relief and Development, 549 F.3d
685 (7th Cir. 2008).
12
Id. at para. 21.
13
See, for example, Snell, supra, note 4 and Athey v. Leonati, [1996] 3 SCR 458.

bring to light those values and policies which actually animate the Court’s
reasoning and applications.
Into the Mystical

Efforts to come to grips with mysteries of causation in philosophy and
science are legend. Indeed, the history of Western theorizing is cluttered
with efforts to crack the metaphysical code of causation. However, many
have resigned themselves to a Humean scepticism which considers the
analytical search for general laws of causality a pointless endeavour;
causality is about convention and experience, not logic or metaphysics.14
Nevertheless, this does not mean that judges and jurists have given up on
the task of developing a workable and fact-based rule of causation which
can move forward the issue of whether a defendant should or should not
compensate a plaintiff for harms allegedly caused by the defendant.
However, the move from ‘a’ cause to ‘the’ cause of the accident demands
an evaluative filter or standard which calls upon a range of policy values
and goes beyond the supposed factual parameters of the traditional
inquiry. Many tort theorists concede this and realign their inquiry
towards more focused and practical concerns.
To ask what the cause of Mrs. Clements’ injuries was is to go down a
blind alley that leads everywhere and nowhere. There are so many poten-
tial causes of Mrs. Clements’ injuries which can claim some credence – her
presence on the bike; his ownership of a motorbike; her marriage to Mr.
Clements; the quality of the road surface; the weather conditions; and the
list goes on. Of course, it is tempting to recommend that it is possible to
isolate ‘the cause’ of the accident out of the plethora of possible causes.
Rather than devote their efforts to answering the open-ended inquiry into
“what caused the plaintiff’s harm?”, judges and commentators have turned
their attention to answering the less open-ended, but still general inquiry
into “did the defendant cause the plaintiff’s harm?” While this is a more
modest project, it is no less difficult to answer with any certainty.
Moreover, it immediately places the search for factual inquiry within an
evaluative framework – the goals and values of tort liability. Thus, the
factual test for causation is embedded in a value-laden context.
One tort theorist who has made the most progress in addressing the
perplexities of this legal inquiry of “did the defendant cause the plaintiff’s
harm?” is Jane Stapleton. She is by far the most sophisticated and
14
D A V I D H U M E , A N E N Q U I R Y C O N C E R N I N G H U M A N U N D E R S T A N D I N G Part 7 (1748).

i n t o th e my s ti cal 155
impressive of the legal scholars who reflect upon causation in torts. Her
work is always insightful, pragmatic, and rewarding. Yet, for all her
critical and compelling rejection of most causation theories on offer,
she holds firm to the informing and dominant paradigm. She insists
that it is important to be clear about the purpose for which a causal
inquiry is made; the contexts of science and law are very different and
have different objectives. However, that said, she proceeds to argue that
questions of legal causation can be resolved in their own terms without
reference to the broader policy goals of tort liability. She maintains that
the challenge of finding a test for causation which is factual in nature and
application is achievable.
Mindful that the law has been interested in and willing to impose
liability on non-necessary actions, Stapleton acknowledges that this
entails extending what can count as ‘causal’. This demands a reappraisal
of the reach and rationale of the traditional ‘but for’. As such, she offers
an extended and modified ‘but for’ test which allows for ‘contribution’
and ‘involvement’ by way of a counterfactual/hypothetical approach:
By comparing the actual world of the particular phenomenon with a
hypothetical world (which we construct by notionally omitting the speci-
fied factor and sometimes other factors) we can determine, in the context
of that comparison, the ‘involvement’, if any, of the specified factor in the
existence of the actual phenomenon. It is by using data such as our
understanding of the physical laws of nature and evidence of behaviour
that we determine whether our specified factor was involved in the
existence of the actual phenomenon. Th[ose] data also allow us to distin-
guish, on an objective basis, whether this involvement is in the form of
necessity, duplicate necessity or contribution.15
While she manages to push the debate forward by separating the legal
focus from the more general theoretical or metaphysical challenge of
causal relations, Stapleton is unable to bring it to a convincing conclu-
sion. Her contribution does much work, but it does not and cannot get
her all the way. Indeed, her account founders on the kind of basic
problem thrown up by Clements. Her extended ‘but for’ test goes beyond
the traditional rule by stipulating that a defendant’s negligence is a cause
of the plaintiff’s harm “but for it alone, (i) the injury would not exist or
(ii) an actual contribution to an element of the positive requirements for
15
Jane Stapleton, Choosing What We Mean by ‘Causation’ in the Law, 73 M I S S O U R I L. R E V .
433 at 444 (2008). See also Factual Causation, 36 F E D . L. R E V . 467 (2010) and An
‘Extended But-For’ Test for the Causal Relation in the Law of Obligations, 35 O X F . J.
L E G A L S T U D I E S 697 (2015).

156 i n t o t he b l a c k ho l e
its occurrence would not exist”.16 In the Clements context, the two main
problems with this are significant and debilitating.
First, Stapleton’s ‘alone’ requirement smacks of exactly the kind of
necessity which McLachlin references and which Stapleton claims to
have gone beyond; it implies a certain scientific stringency which she
claims to have modified or abandoned. Secondly, the central challenge
on the Clements facts is to determine whether there was any contribution
or involvement by Mr. Clements in his wife’s injuries – did the fact that Mr.
Clements was driving his overladen bike too fast contribute to or suffi-
ciently involve him in the occurrence of the accident? Was it more or less
material than the tire-bursting nail? It is not that the ‘but for’ test, extended
or otherwise, rules out a finding of causation, but that it is indecisive; it
begs the very question it was designed to answer. Moreover and most
importantly, there is no legitimate resource which Stapleton can call upon
which will resolve that uncertainty and which remains true to the self-
imposed parameters of her inquiry. Shut off from the policies or values
which inform tort law, she has backed herself into an analytical corner.
Stapleton is to be applauded for unmasking ‘the seductive simplicity’ of
the traditional ‘but for’ inquiry and for taking us beyond Chief Justice
McLachlin and other traditional ‘but for’ enthusiasts.17 And that is no
small thing. But, lacking the jurisprudential courage of her critical con-
victions, she remains committed to the possibility of a fact-based account
of causation and, therefore, to the ‘but for’ test, albeit in an extended
form. She takes the important step of justifying her extended ‘but for’ test
by reference to the law’s policies and interests in imposing tort liability on
actions which are non-necessary, but she seeks to curtain off those same
policies when she formulates and applies her neo-traditional approach to
causation. Consequently, the challenge for those who take seriously the
idea that the facts of legal causation are beholden and permeated with the
policies and values of tort law is to offer up a reinvigorated causation
inquiry which respects and incorporates those same policies and values.
A False Corrective
Ironically, although Chief Justice McLachlin insists that the causation
inquiry in tort law is exclusively a matter of necessity and fact, she ties
16
Stapleton, id., An ‘Extended But-For’ Test for the Causal Relation in the Law of Obligations
at 714.
17
Stapleton, id., Factual Causation at 476.

a f al se c orr ec ti ve 157
and justifies that conclusion in terms of “fairness and . . . the principles

that ground recovery in tort”.18 More precisely, she contends that the
traditional ‘but for’ test is a corollary of “the theory of corrective justice
that underlies the law of negligence”.19 Her major and only source for
what that theory entails is the celebrated work of Ernest Weinrib, the
doyen of corrective justice advocates. However, Weinrib himself is no
defender of the traditional rendition of the ‘but for’ test as the most fitting
component of a corrective justice account of tort law. While he does insist
that “what must be shown with respect to each bilateral pairing is that the
unreasonable risk created by a particular defendant matured into injury
to a particular plaintiff”,20 he does not demand that this entails a tradi-
tional ‘but for’ test. Instead, he offers a more capacious and value-based
account of what counts as a sufficient causal connection.
Although the requirement of a factual causal nexus between the defen-
dant’s act and the plaintiff’s harm is central to his formalist scheme of tort
law, Weinrib is not forthright or expansive in demonstrating how that
nexus will be established with sufficient exactness in practical circum-
stances. However, he does tip his hand when he responds to suggestions
that the difficulties of proving causation by traditional methods (i.e., the
‘but for’ test) have led to innovations which involve the shifting of burdens
of proof from plaintiffs to defendants. He comments that such proposals
“merely modify the evidentiary mechanisms regarding causation without
negating its systemic importance for tort liability”.21 Consequently,
Weinrib is far from wedded to a traditional ‘but for’ test as the basis of a
scheme of tort law built upon notions of corrective justice.
Indeed, in a very recent article, Weinrib has developed much further
and more directly the kind of causation rules which are necessitated and
justified by his formalist theory of tort-law-as-corrective-justice. For our
purposes, it is sufficient to report that Weinrib remains unpersuaded by
the need to adhere to a strict rendition of the traditional ‘but for’ test. He
chastises the Supreme Court for its ‘incompletely successful efforts’ in
Clements and concludes that, like English jurisprudence, Canadian doc-
trine is ‘tied up in knots’.22 His is a more subtle and nuanced analysis than
18
Clements, supra, note 3 at para. 16. 19 Id. at para. 21.
20
E R N E S T J . W E I N R I B , T H E I D E A O F P R I V A T E L A W 3 (1995). 21 Id. at 154–55 (1995).
22
Weinrib, Causal Uncertainty in Negligence Law, 36 O X F . J. O F L E G A L S T U D I E S 135
(2016). Interestingly, while the article uses Clements as an introductory hook and
canvasses a range of multiple cause situations, he does not deal with the kind of situation
which arises in Clements.

the Supreme Court’s and one which refuses to be one-dimensional in its

inquiry into and resolution of the uncertainties of causation.
Consequently, the Court’s invocation of corrective justice by way of
Weinrib to defend its continuing attachment to the ‘but for’ approach
is unwarranted and ungrounded. Even if tort law is built on corrective
justice foundations (and I strongly maintain that it is not and should not
be), this philosophical theory neither demands nor recommends adher-
ence to a traditional and simplistic ‘but for’ test.
As both the common law and the Supreme Court of Canada continue
to recognize, there are several circumstances in which tort liability is
imposed without a necessary causal linkage being established between
the defendant’s act and the plaintiff’s harm. In exceptional circumstances,
liability is imposed where there is no link at all. Examples of these
instances include:
(a) when it is not possible to determine which of two negligent defen-
dants caused the plaintiff’s harm;
(b) when there is strict liability or vicarious liability; and
(c) when there is an intervening act by a third party.
In each of these instances, the finding of tort liability has been upheld
because there are compelling values or policies in tort law which warrant
liability and outweigh the demand for a proven ‘but for’ connection
between the defendant’s act and the plaintiff’s harm.
Indeed, there is not only nothing in McLachlin’s judgment which
explicitly denies this, but there is also express confirmation that the
imposition of liability without a necessary causal linkage between the
defendant’s act and the plaintiff’s harm can still be very much part of
the law. For instance, despite her efforts to justify Cook v. Lewis23 in
terms of the ‘but for’ test, the fact is that McLachlin is willing to impose
liability on a defendant who, as in that case, did not have a proven
causal connection, necessary or non-necessary, to the plaintiff’s harm.
Further, she confirms that a defendant can be found liable where there
is a definite and proven lack of causal connection; only one of the
defendants, not both, could have fired the gun which harmed the
plaintiff. Her rationale for so doing justifies a much broader scope of
tort liability where the defendant has a non-necessary connection to the
plaintiff’s harm:
23
Cook v. Lewis, [1951] SCR 830. The American equivalent to Cook is Summers v. Tice, 199
P.2d 1, 3 (Cal. 1948).

a f te r th e f ac t 159
Compensation for injury is achieved. Fairness is satisfied; the plaintiff has
suffered a loss due to negligence, so it is fair that she turns to tort law for
compensation. Further, each defendant failed to act with the care neces-
sary to avoid potentially causing the plaintiff’s loss, and each may well
have in fact caused the plaintiff’s loss. Deterrence is also furthered;
potential tortfeasors will know that they cannot escape liability by point-
ing the finger at others.24
Where McLachlin does hold the line is when the defendant’s act is not
proven to be a necessary condition of the plaintiff, but merely makes a
material contribution to the risk of harm to the plaintiff. But this makes
little sense when it is appreciated that she would be prepared to hold a
negligent defendant liable, as in Cook, even when it is known that there is
no causal connection at all between that defendant’s act and the plaintiff’s
harm. The pressing challenge is to explain why it would be fair or just,
even on corrective justice terms, to put a negligent defendant who did not
cause harm in a worse position (i.e., being held liable) than a negligent
defendant who might have caused harm. One of the Cook defendants was
presumed to be liable even though he did not cause harm to the plaintiff,
but the Clements defendant who might well have caused or contributed to
the plaintiff’s harm might not be liable.
It is the burden of the rest of this chapter to explain and justify an
approach to causation which links and integrates the debate about the
goals and principles to be served by tort law and the nature of a causation
requirement. This ambition is not opposed to Chief Justice McLachlin’s
stance, but actually builds on its implicit and animating intention. Of
course, the debate about the goals and principles to be served by tort law
is the very stuff of heated controversy. Chief Justice McLachlin’s view
carries weight and might well convince some by way of either authority
or persuasion, but it is not the final word. Not surprisingly, I will offer a
different account of tort law’s values and purposes. Corrective justice is
part of the story, but only one part of it.
After the Fact

The House of Lords has offered a much more progressive, pragmatic, and
realistic account of causation than the Supreme Court of Canada. In
Kuwait Airways, both Lords Nicholls and Hoffman recognized that the
appropriate test for causation is intimately connected to the policy
24
Clements, supra, note 3 at para. 41.

160 into the bla ck hole
reasons for imposing any tort liability on the defendant. Lord Nicholls
observed that, because “the court may treat wrongful conduct as having
sufficient causal connection with the loss for the purpose of attracting
responsibility even though the simple ‘but for’ test is not satisfied, the
court is primarily making a value judgment on responsibility”.25 Lord
Hoffman was even more expansive. Although he was clear that there
must be some causal connection between the defendant’s act and the
plaintiff’s harm, the nature and demonstration of that connection can
vary widely depending on the circumstances. Sometimes, a necessary link
is required; at other times, it may be enough to show that a non-necessary
connection simply added to the probability the plaintiff would be
harmed:
There is therefore no uniform causal requirement for liability in tort.
Instead, there are varying causal requirements, depending upon the basis
and purpose of liability. One cannot separate questions of liability from
questions of causation. They are inextricably connected. One is never
simply liable; one is always liable for something and the rules which
determine what one is liable for are as much part of the substantive law
as the rules which determine which acts give rise to liability.26
Lord Hoffman repeated these views in Gregg v. Scott.27 There, he talked

about the need for a ‘sufficient’ causal link between the defendant’s act
and the claimant’s harm. Indeed, he confirmed that causation is “no
longer a question of all or nothing, but one of sufficiency”. This approach
was confirmed by the most recent decision of the Judicial Committee of
the Privy Council (whose personnel is the same as the House of Lords or
new Supreme Court). Drawing on precedents as far back as 1956, the
Court placed material contribution at the heart of its approach to the role
of causation in the imposition of tort liability.28
In Williams, the plaintiff went to hospital with acute appendicitis. He
was operated on later that day, but suffered severe complications. Due to
the negligence of the hospital staff, the operation had been considerably
delayed. The issue was whether the complications were caused by the
delay or whether it was a result of his existing condition on his arrival at
the hospital. In short, did the negligence cause his complications or not?
Relying on a traditional ‘but for’ test, the trial judge found that the
25
Kuwait Airways v Iraqi Airways [2002] UKHL 19 at para. 74 per Nicholls. Note that this
was a conversion case, not a negligence one.
26
Id. at para. 128 per Hoffman. 27 Gregg v Scott, [2015] 2 AC 176.
28
Bonnington Castings Ltd v Wardlaw, [1956] AC 613.

a f te r th e f ac t 161
negligent delay had not caused the complications. On appeal, a more

expansive approach was adopted and the plaintiff succeeded in his claim
against the hospital. Before the Judicial Committee of the Privy Council,
the appeal by the hospital was dismissed and the plaintiff’s claim vindi-
cated.29 The central legal question in issue was the proper test for estab-
lishing causation in such circumstances. The Committee held that, as a
matter of law and policy, the ‘material contribution’ approach applied.
The hospital was, therefore, liable even if there was no definitive explana-
tion of what actually caused the plaintiff’s complications: the conclusion
was that there was sufficient evidence to support the finding that the
defendant’s delay might have either caused or contributed to the plain-
tiff’s harm.
In contrast to Clements, it was enough in Williams to meet the causa-
tion requirement to show that the defendant’s negligent act might have
contributed to the plaintiff’s’ harm; no necessary connection was
required. It could be clearly asserted that the defendant’s negligent act
did not help the situation and that it passed a threshold of being a possible
cause. Indeed, there was strong evidence that the defendant’s negligent
act might well have worsened the plaintiff’s condition, even if it did not
cause it in any original or necessary sense. So, on the facts of Clements, a
similar approach would point towards the imposition of tort liability as
the defendant’s negligent acts might have made a contribution to the
accident, increased the likelihood of an accident, or led to more serious
harm to the plaintiff. If the defendant had not been speeding on his
overloaded bike, he might have been better able to deal with the effects of
the burst tire and avoid the accident or moderate its consequences.
However, for my purposes, the main force of both Kuwait Airways and
Williams is twofold. First, the English courts categorically reject the idea
that a ‘but for’ test is the only or exclusive test for determining causation
in tort cases; causation is about sufficiency and contribution as much as
necessity. The traditional ‘but for’ test has a role to play, but it is part of a
broader and more encompassing set of rules and principles. Secondly, the
rationale for that more expansive approach is the commitment to devel-
oping a causation test which best fits the goals and principles which
comprise and underwrite the whole scheme of tort law generally. The
need to establish a causation test does not stand aside from the other
requirements for tort liability (i.e., duty of care, standard of care,
29
Williams v. Bermuda Hospitals Board, [2016] UKPC 4. A similar Canadian case is Snell,
supra, note 4.

remoteness, etc.); it is not a purely factual inquiry divorced from more

normative concerns. Instead, causation is to be integrated into the overall
framework for justifying the imposition of tort liability on negligent
defendants in favour of injured plaintiffs. It is that task of proposing a
better approach to which I now turn.
Risk and Relief

It has been often and well stated that tort law is ‘the battleground of social
theory’.30 Precedents, politics, personalities, philosophy, production pat-
terns, and much more vie for dominance in more or less conspicuous
ways. Like most theoretical debates and unlike many of its participants’
assertions, there is no external or objective vantage from which to enter
or contribute to the tort debate. Consequently, I offer an account of tort
law’s policies and values intended to be defensible both in terms of social
justice and in terms of existing case law. As such, my account makes no
extravagant claims about its analytical truth or philosophical authority; it
is simply put forward as a principled intervention in an unfolding
ideological engagement.31
Today’s industrial and technological world is complex and interde-
pendent. While this has led to an improved standard of living for many,
the capacity to wreak havoc has also increased in both scale and gravity. It
is a world of considerable risk and harm. As well as direct threats to
people’s health and welfare, a whole host of risks works separately,
cumulatively, and in tandem to produce a hazardous and often toxic
environment. Tort law is one of the ways in which society confronts and
responds to those risks and their consequences.
The annual burden injury places on Canadians, the health care system,
and society generally is immense. In 2004, there were 13,677 deaths; more
than 211,000 Canadians were hospitalized; 3 million emergency room
visits were made; more than 67,000 Canadians were left permanently
disabled; $10.7 billion was lost in health care costs; and $19.8 billion was
30
P R O S S E R A N D K E E T O N O N T H E L A W O F T O R T S §3, 15 (5th ed. 1984).
31
For an extended defence of this position, see A L L A N C . H U T C H I N S O N , T H E P R O V I N C E
O F J U R I S P R U D E N C E D E M O C R A T I S E D 10–15 (2009). Too much of the contemporary
writing on causation in tort law is motivated by a need to rationalize existing doctrine.
The basic and boot-strapping move is to defend the general appropriateness of the ‘but
for’ test and then to justify some major deviations from it. See, for example, S A N D Y
S T E E L , P R O O F O F C A U S A T I O N I N T O R T L A W (2015). Some even go so far as to say that
the present confusion is ‘unnecessary and easily remedied’. S A R A H G R E E N , C A U S A T I O N
I N N E G L I G E N C E ii (2014).

risk an d r el ie f 163
wasted in total economic costs. As regards non-intentional injuries (i.e.,

not including suicide), transport incidents were the leading cause of
injury and deaths at 34 per cent.32 Many of these victims received no or
meagre compensation. While the existence of insurance moderates the
situation somewhat, more than 50 per cent of the relatively small amount
of compensation paid out is invested in administering and financing its
recovery, mainly to lawyers.
The common law has opted to treat the regulation of risk and the
compensation of injury as flip-sides of the same troublesome coin. This is
amply evidenced in Clements where McLachlin emphasizes the bilateral
and integrated nature of these two factors – “the basis for recovery,
sometimes referred to as ‘corrective justice’, assigns liability when the
plaintiff and defendant are linked in a correlative relationship of doer and
sufferer of the same harm”.33 Consequently, tort law is considered a
prime vehicle to achieve this vision of corrective justice. Plaintiffs must
pinpoint the particular and discrete sources of risk which gave rise to
their harm or else they will be ineligible for compensation. Yet this
narrow and blinkered view of tort law is dictated neither by legal theory
nor legal doctrine. Tort is and can be a much more expansive and
progressive regime than that posited by corrective justice. Indeed, the
history of tort law and its theoretical underpinnings recommend that
distributional values and policy commitments are as important as cor-
rective ones.
Little in tort doctrine or tort theory demands that the regulation of risk
and the compensation of harm be seen as giving rise to a mutually
reinforcing set of questions and, in particular, to a series of all-encom-
passing answers. How and whether the two enquiries are connected is
tied to why they are to be connected in the first place. While there may be
some inevitable overlap, it is surely the case that the regulation/deter-
rence issue gives rise to a different range of considerations from the
compensation issue. To ask two different questions and to expect that
the same answer will be appropriate to each is a serious error. There will
be obvious instances in which society will wish to deter conduct which
creates unacceptable risk, even if it is not entirely clear that it results in
actual injury. Similarly, there will be obvious circumstances in which
society will wish injured persons to receive compensation, even if the
32
S M A R T R I S K , T H E E C O N O M I C B U R D E N O F I N J U R Y I N C A N A D A (2009). More up-to-date
and reliable and comprehensive data are difficult to find.
33
Clements, supra, note 3 at para. 7.

precise source of risk is unclear or unknown. To use the same and single
blunt instrument to affect both a process of fair compensation and a
scheme of appropriate regulation is to portend error and misjudgment.34
Taking Policy Seriously

Numerous factors influence the ‘fairness’ of any tort doctrine which
cannot be comprehended or appreciated by the abstraction and formality
of the type of corrective justice Chief Justice McLachlin and her concur-
ring colleagues championed on the Supreme Court of Canada. For
instance, the identity of the different actors in the legal drama has a
significant and undeniable effect on their relative responsibilities and
duties. The fact that the plaintiff is most often an ailing individual and the
defendant is often a large and commercial entity or that large insurance
companies stand behind much litigation are factors which can be ignored
or marginalized only at the inevitable cost of fundamentally misrepre-
senting the worlds of accidents and harms.35 While these matters ought
not to drive entirely the development and structure of tort law, they
ought not to be rendered irrelevant either; a corrective justice approach
does that.
Treating injured individuals as comparable in their circumstances, in
their behaviour, and in their vulnerability as profit-making corporations
is not only neglectful, but also unjust. The formalistic insistence of talking
about tort law, negligence, and causation as involving a paradigmatic and
bipolar equation between A and B defies any reasonable or defensible
sense of law as any kind of vehicle for obtaining and advancing social
justice. It is neither neutral nor objective to posit litigants in personal
injury litigation as being equivalent or faceless characters. For corporate
defendants, the cost of accidents of accidents is simply that – an eco-
nomic cost and calculation.36 For plaintiffs, the costs of accidents is much
34
Of course, it might well be that the best response to this dilemma is to reject tort law
entirely. However, this chapter proceeds on the basis that tort law is here to stay. The
challenge, therefore, is how to develop the causation requirement in the least worst way
possible.
35
A good example of that is the ‘social host’ case of Childs v. Desormeaux, [2006] 1 SCR 643.
This decision can be fully appreciated only in terms of the insurance arrangements in
place. The only reason the injured plaintiffs sought recovery from the social host was that
the insurance limits of the primary tortfeasor, the drunken driver, had already been
reached and a large deficit remained in the damages recovered.
36
This is the basic message of the Learned Hand test. See United States v. Carroll Towing
Co., 159 F2d 169 (2nd Cir. 1947). Note that the law-and-economic scholars are willing to

taking policy seriously 165
more personal, physical, and irremediable. The most tort law can do to
defendants is to ask them to quantify the costs of accidents and their
prevention in monetary terms. The least tort law can do is to ask plaintiffs
to value their injuries in monetary terms alone. This is an ill-balanced and
misleading equation of equality; corrective justice is comparing apples
and oranges, with tragic consequences not only for injured individuals,
but also for society at large.
Also, it is important to understand that the individualized focus of the
common law is ill-suited to the world of contemporary risks and accidents.
Most serious illnesses, as well as many injuries, are attributable to a whole
host of interactive conditions and circumstances. Rather than being unique
and dichotomous, the modern world of risk and accidents is probabilistic
and continuous. Agent Orange, Bhopal, DES, Chernobyl, the Dalkon
Shield, and tainted blood supplies created situations in which the tradi-
tional ‘but for’ causation test is hopelessly inadequate. The unfathomable
interaction of different causes prevents the isolation of particular causes for
particular injuries: the best that can be achieved is a general correlation of
acts and consequences in terms of their statistical aggregation and impact.
The attribution of responsibility is simply a conclusion based on a rebut-
table hypothesis of a probabilistic generality. Against such an understand-
ing, it is grossly unfair to plaintiffs to persevere with the customary
individualized rules and procedures for recovery. Many plaintiffs, as
opposed to defendants, are in no position, either evidentially or financially,
to overcome the uncertainty and indeterminacy of causal evaluations
which lie at the core of modern accidents; they are victimized again by
the tort system. As such, a continuing attachment to traditional tort
doctrine, especially in regard to causation, is inimical to social justice in
the contemporary world of risks and harms. The narrow and abstract focus
of a corrective justice approach exacerbates the situation.
Instead of a corrective approach, tort law and theory is much more
multi-faceted, multi-valenced, and multi-layered. Like much else in law,
the structure and development of tort doctrine is a classic example of the
common law’s tendency for ‘muddling through’.37 No one simplistic
dispense with or downgrade the need for a strict causation test. See, for example,
W I L L I A M M . L A N D E S A N D R I C H A R D A. P O S N E R , T H E E C O N O M I C S T R U C T U R E O F
T O R T L A W 229 (1987) and Guido Calabresi, Concerning Cause and the Law of Torts: An
Essay for Harry Kalven, Jr., 43 U. C H I . L . R E V . 69 (1975). However, an approach which
concentrates on ‘the least cost-avoider’ does not so much do away with the causation
requirement as submerge or hide it within that inquiry.
37
See A L L A N C . H U T C H I N S O N , E V O L U T I O N A N D T H E C O M M O N L A W (2005).

thread ties it all together; it is a normative quilt of many different strands

and themes. At different times and in different ways, it has prioritized a
range of disparate values and competing policy commitments – moral
responsibility, economic efficiency, risk prevention, distributive justice,
entrepreneurial innovation, just desserts, fair compensation, and more.
The history of tort law shows that each of these values and aims has
played some role, to a lesser or greater extent, in the formulation of basic
doctrine and its details. The assertion that there is some consistent or
unifocal approach is simply unconvincing; most theories, including a
corrective justice approach, can claim some plausible degree of fit and
justification in the voluminous jurisprudence of tort law.38 But no one
theory can assert intellectual or normative hegemony.
Against this backdrop, a central question to be decided is how to balance
off the worlds of risk and harm. In particular, it has to be asked in what
circumstances should the creator of risks be required to compensate for
any harms which might be attributable to those risks. This is where the
causation inquiry becomes particularly acute. The compulsion to treat
causation as a factual matter runs afoul of the mandate to treat causation
as something to be determined as part of the overall policy basis for tort
liability. However, understood in a more pragmatic way, the most appro-
priate question to be answered is not what was the cause of the plaintiff’s
harm. Nor is it whether the defendant’s act was the cause of the plaintiff’s
harm. And nor is it even whether the negligent defendant’s act was the
cause of the plaintiff’s harm. The pressing question for tort liability is –
Was the existence of the defendant’s negligent act a sufficient reason in terms
of realizing tort law’s broad range of policies to warrant imposing liability on
the defendant for the plaintiff’s harm?39
This is not an isolated inquiry which stands apart from the other
details of the case or context. It looks to all the facts of the accident and
reaches a conclusion based on how the various policy values of the law
can best be served or advanced. Of course, differences of opinion about
tort law’s aims and commitments will manifest themselves in differences
about how that inquiry can be considered and resolved. Of course, it
38
One of the best surveys remains Isaak Englard, The System Builders: A Critical Appraisal
of Modern American Tort Theory, 9 J. LE G . ST U D . 27 (1980).
39
My approach is not new. See W A L T E R B L U M A N D H A R R Y K A L V E N J R . , P U B L I C
P E R S P E C T I V E S O N A P R I V A T E L A W P R O B L E M : A U T O C O M P E N S A T I O N P L A N S 8–12
(1985). The seminal piece on the insoluble relation between fact and policy in tort
causation is Wex Malone, Ruminations on Cause-in-Fact, 9 ST A N . L. RE V . 60 (1956). Of
course, the full corollary of this approach is the abandonment of tort law entirely.

sh if tin g ove r 167
seems entirely sensible to insist that, without some connection between

the defendant’s act and the plaintiff’s injury, there should be no liability
placed upon a defendant. This would apply no matter how negligent the
defendant may have been or how injured the plaintiff might be. However,
this does not explain what the nature of that connection is or how it can
be proven to the court’s satisfaction. What does explain how that is to be
characterized and demonstrated is the policy approach taken to the
imposition of tort law generally. So an attachment to corrective justice
will offer a narrow test of causation, whereas a commitment to a broader
and more pluralistic range of policy ambitions will recommend a more
expansive and less pinched account of causation.40 It is to such a policy-
based approach to causation that I now finally turn.
Shifting Over
The instances in which it is possible to prove clearly that the defendant’s
negligent act did or did not offer a sufficient reason for imposing liability
to the plaintiff on the defendant are not the stuff of controversy. They can
be easily and commonly dealt with by most approaches, even if marginal
disagreements arise over the size and character of these matters.
However, the challenge of any test is to offer assistance and guidance
when the facts or circumstances are difficult or unclear. This is exactly the
situation in cases like Clements and Williams. As I have contended, the
traditional ‘but for’ test is of no practical value in such situations as it
either over- or underdetermines what possible causes are included or
excluded. More significantly, when it is understood as a rule of exclusion
as well as inclusion as it is in Clements and Williams, the ‘but for’ test cuts
in very stark and partial lines; it will exclude most cases which fall into the
largest group of litigated cases, the not-sure category. Under a traditional
‘but for’ rule, the plaintiff has the burden risk of on-persuasion, so a lack
of knowledge about the operation or sequencing of the particular facts
will count disproportionately against plaintiffs. Defendants will be the
fortunate beneficiaries of this institutional and normative asymmetry.
The culprits are many in this doctrinal villainy. But a major one
remains Holmes’ enduring pronouncement that “the general principle
of our law is that loss from accidents must lie where it falls”.41 Of course,
40
That difference in approach to causation is what lies at the heart of the contrast between
Canadian and English jurisprudence. See supra at pp. 163–65.
41
O. W. H O L M E S J R . , T H E C O M M O N L A W 94 (1881).

modern tort law comprises a set of rules and exceptions which explain
and justify an ‘unless’ condition. So, for example, the plaintiff must
demonstrate, if losses are not to lie where they fall and are to shift from
the plaintiff to the defendant, that there is some fault on behalf of the
defendant which warrants the imposition of liability on the defendant.
This is where causation, among other things, comes into play. Even if the
defendant is considered to have owed a duty of care to the plaintiff and to
have breached that duty by acting negligently, the defendant will not be
liable unless the defendant is found to have caused the plaintiff’s injuries.
Holmes’s principle puts the onus on the plaintiff to prove such a causal
connection. If the plaintiff cannot do this, the claim will fail. This means
that in circumstances where it is not known what caused the plaintiff’s
injuries, the plaintiff will lose. This may seem entirely fair until it is
appreciated that this range of unknowns is vast.
Yet, in some situations, some courts have not allowed the ‘but for’ test’s
structural unfairness to prevail. Indeed, even Chief Justice McLachlin and
the Supreme Court of Canada concede this. Cook is the prime exhibit;
two negligent defendants were considered capable of both being liable to
compensate the plaintiff even though only one of the defendants’ acts
caused the plaintiff harm; two hunters fired, but only one hit the plain-
tiff.42 But this concession intimates that tort law is dedicated to achieving
a pluralistic range of normative ambitions in organizing tort doctrine.
The question is less whether the ‘but for’ test should be set aside, but how
and when it is to be set aside. To put it bluntly, in what situation should
the ‘but for’ test be set aside so as to ensure that unfairness is not
perpetuated by the rules for imposing liability on defendants and for
providing compensation to plaintiffs?
My response to that is clear. It is based on two primary points of
relative capability. The first is that defendants are often (but not always,
of course) in a better position than plaintiffs to overcome that uncer-
tainty; the lack of knowledge about the effects of certain products,
actions, or processes is more directly and appropriately resolvable by
those who engage in them and profit from them. The second is that
defendants, as a group, are often (but not always, of course) in a better
position through resources and/or insurance to absorb and redistribute
the amount of compensation paid to plaintiffs. In contrasts, plaintiffs are
less able to ‘redistribute’ their losses. Their injuries remain the same, no
matter what the extent of the plaintiffs’ compensation or even their own
42
See Cook, supra, note 23.

sh if t in g ove r 169
insurance; monetary compensation does not alter, even if it cushions the

physical effects of their injuries. Accordingly, there needs to be a recali-
bration of the adverse effects of ‘unknown’ situations so that their burden
is more evenly shared among plaintiffs and defendants. As one Canadian
judge squarely put it, “if causation is overwhelmingly difficult to prove or
impossible to prove then it is a matter of public policy or justice that it is
the creator of the risk who should be put to the trouble of hurdling the
difficulty or bearing the consequences”.43
In line with this policy, a McGhee-based initiative recommends itself as
an equitable and policy-based response.44 The answer to the central
question – was the existence of the defendant’s negligent act a sufficient
reason in terms of realizing tort law’s broad range of policies to warrant
imposing liability on the defendant for the plaintiff’s harm? – can be
divided into two parts:
• First, plaintiffs have to prove that they have suffered harm and that
their harm is consistent with the kind of harm the defendants’ negli-
gent act might bring about; this can be done by showing that the
defendants’ negligent act was involved in or might have contributed
to the accident which resulted in the plaintiffs’ harm; and
• Secondly, on the proof of such matters, the onus will shift to defen-
dants to demonstrate that their negligent act was not involved in or
contributed to the plaintiffs’ injuries. Unless the defendants can show
this, they will be held liable.
In particular, this approach builds on the acceptance by many judges that
they are ‘not engaged in ascertaining ultimate verities’ or anything like
it.45 Instead, they are in the business of administering justice. In unre-
solvable circumstances of causal uncertainty, it is surely fairer that a
negligent actor should carry the weight of non-persuasion as against a
relatively blameless and injured person. Provided that the plaintiff leads
some prima facie evidence about the creation of risk, the existence of a
duty of care to the plaintiff, and the occurrence of a possible harm to the
plaintiff, plaintiffs should be entitled to recover and defendants should
not be permitted to escape liability through lack of any definitive finding
43
Nowsco Well Service Ltd v. Canadian Propane Gas and Oil Ltd (1981), 122 D.L.R. (3d) 228
at 246 per Bayda J.A. See also Letnik v. Municipality of Metropolitan Toronto (1988), 49 D.
L.R. 707 at 723–4 per MacGuigan, J.
44
McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (HL). Even Weinrib countenances
this possibility. See supra at pp. 156–7.
45
Hickman v. Peacey, [1945] A.C. 304 at 318 per Viscount Simon V.C.

of causation. Any other rule would mean that plaintiffs would always lose
whenever there was doubt, as there inevitably will be, about the ‘but for’
link between the defendant’s act and the plaintiff’s injury. Moreover, my
proposal would redress the equitable balance; plaintiffs would occasion-
ally, but by no means always, win and defendants would occasionally, but
by no means always, lose. How the test is applied in detail will, of course,
represent the policy preferences of the judge and the circumstances.
This proposal builds on rather than rejects Chief Justice McLachlin’s
view in Clements that a ‘material contribution’ test “is a policy-driven rule
of law designed to permit plaintiffs to recover in such cases despite their
failure to prove causation”.46 It is simply wrong to assert, as she does, that
it ‘does not signify a test of causation at all’.47 It is very much a test of
causation; it is simply not a supposedly or exclusively factual one. Instead,
it more directly incorporates and addresses the values and commitments
to fairness which actually drive and animate the Supreme Court’s reliance
on a ‘but for’ rule which is supposedly factual in nature and application.
Also, if the judgment in Clements is to be taken seriously, my approach
advances those policy reasons which warrant the Chief Justice’s reasons
for allowing for an exception to the ‘but for’ test in the case of multiple
tortfeasors. Her mistake is not in relying on such values, but on unduly
confining them only to the context of multiple tortfeasors:
Compensation for injury is achieved. Fairness is satisfied; the plaintiff has
suffered a loss due to negligence, so it is fair that she turns to tort law for
compensation. Further, [the] defendant failed to act with the care neces-
sary to avoid potentially causing the plaintiff’s loss, and [] may well have in
fact caused the plaintiff’s loss. Deterrence is also furthered; potential
tortfeasors will know that they cannot escape liability by pointing the
finger at others.48
In Clements, a shift in focus and emphasis away from the ‘but for’ rule
would reap considerable dividends and come closer to effecting real and
substantive justice. On the facts, it was simply unknowable whether the
46
Id. at para. 14, citing Smith J.A. in MacDonald v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68,
at para. 17. In a recent criminal case, R. v. Maybin, 2012 SCC 24, the Supreme Court came
to the conclusion that the test for causation in criminal law was “whether the dangerous
and unlawful acts of the accused are a significant contributing cause of the victim’s death”.
Speaking for the Court (and, therefore, presumably Chief Justice McLachlin),
Karakatsanis J. stated that legal causation “is a narrowing concept which funnels a
wider range of factual causes into those which are sufficiently connected to a harm to
warrant legal responsibility”. Id. at para. 16. This sits uneasily, to say the least, with the
causation test and its rationale in tort in Clements.
47
Id. 48 Clements, supra, note 3 at para. 41.

s hif t in g ov er 171
defendant’s negligence or the nail was the exclusive ‘but for’ source of the
plaintiff’s injuries. Instead, under my proposal, the plaintiff would need
to show that the defendant’s negligence (i.e., driving an overloaded bike
too fast) could well have resulted in the kind of injuries she suffered. It
would then be on the negligent defendant to lead convincing evidence to
the court that such a supposition was unlikely. Driving an overloaded
bike too fast is an act which needs to be discouraged; it was an accident
which, at a minimum, was waiting to happen. As between the negligent
defendant and the blameless plaintiff, therefore, the benefit of the doubt
(i.e., placing the risk of non-persuasion on the defendant) should go to
the plaintiff. Justice is surely better served by such an outcome.
Similarly, in Williams, much the same analysis can be followed. On the
facts, it was unknowable whether the cause of the plaintiff’s injuries was
the defendant’s negligence or some other pre-existing cause. To pretend
that an extended ‘but for’ approach can resolve matters is merely wishful
thinking. Again, therefore, it seems entirely reasonable in such circum-
stances to put the weight of non-persuasion on the negligent defendant as
opposed to the blameless plaintiff. Once the plaintiff has shown that his
injuries are consistent with the type of negligent act done by the defen-
dants, then the defendant can offer evidence to demonstrate that this is
not the case. In the event of not being able to do so, the defendants will be
liable. Moreover, this will provide an incentive to defendants, like the
hospital and the medical establishment generally, to avoid future delays
and/or to develop means by which to identify the causative pathways of
different medical harms. Also, this is surely a fairer and more acceptable
outcome than simply letting the defendants walk away from the possible
effects of their negligence.
Some might contend that my proposal obliges the common law to
implode by making it into a thoroughly open-ended policy debate
between judges. However, this assumes that the common law is not
already such a process when it is. Despite claims to preserve the ‘but
for’ test as a factual algorithm, the present doctrine is a convenient screen
which hides, not obviates, the need for engagement over the best policies
to follow and operationalize.49 My proposal brings that debate out into
the open by putting the decisive policy choices of judges at centre-stage.
As such, the contribution of my proposal is not to introduce policy into
49
For a general defence of this approach to law and adjudication, see A L L A N C .
H U T C H I N S O N , T O W A R D S A N I N F O R M A L A C C O U N T O F L E G A L I N T E R P R E T A T I O N ch. 9
(2016).

the common law doctrine of causation, but to come clean on the idea that
the common law, even in its most doctrinal and technical moments, is a
policy-driven and value-laden practice. As things stand, the common law
does not finesse policy conflicts, but only hides them.
Conclusion
While it is foolhardy (and unnecessary) to suggest that my proposal offers
“the benevolent principle which smiles on . . . factual uncertainties and
melts them all away”,50 it does make practical progress and offers policy
continuity. It seeks to ensure that the effect of there being a large range of
circumstances in which the demonstrable cause of the plaintiff’s harm is
unknown or unknowable does not fall disproportionately on plaintiffs.
The resort to the negligent acts of the defendant as a tie-breaker both
makes more doctrinal sense and leads to less substantive injustice. If the
search for a test of factual causation is as doomed as I have suggested,
then the only way to avoid the fate of most scholars and judges who
persist in that search is to abandon it entirely. A more satisfying and
resolvable pursuit is to incorporate causation fully and fairly into the
overall policy framework and rationale of tort law generally. Churchill
might well have approved of that, before or after dinner.
50
Fitzgerald v. Lane, [1987] 2 All E.R. 455 at 464 per Nourse L. J.

10
Some ‘What If ?’ Thoughts: Notes on Donoghue
“All the ancient histories, as one of our wits say, are just fables that have been
agreed upon.”
– Voltaire
Donoghue v. Stevenson is so well known that its facts and judgment need
little further rehearsal or rendition. Indeed, the case and its aftermath
are some of the most documented in the long common law tradition.
Many treat Donoghue as if it were the greatest of all ‘great cases’.1 That
said, a vibrant debate about the precise meaning and ambit of its legacy
continues, especially regarding the putative leading judgment of Lord
Atkin and its influence on the development of the common law of tort.
Indeed, part of Donoghue’s greatness is considered to be its almost
Delphic sweep and interpretive elusiveness; its importance is matched
by and reinforced by its indistinctness. However, there is a tendency to
approach the case as if its origin and later pre-eminence were somehow
preordained – that it was always destined to be great and that it exerted
its huge influence by dint of its irresistible rationale and inevitable
effect.
Yet this assessment seems to depend on a very crude depiction of both
the evolution of the common law and social history generally. The
assumption seems to be that law is a rational exercise largely set apart
from social history and that both law and social history unfold in a
reasonably orderly, if unconnected manner. This Whiggish sense of
inevitability to the path of both law and social history is mistaken and
misleading. Far from a prime example of law and history’s methodical
1
[1932] AC 562. For my own account, see A L L A N C H U T C H I N S O N , I S E A T I N G P E O P L E
W R O N G ? G R E A T L E G A L C A S E S A N D H O W T H E Y S H A P E D T H E W O R L D ch. 6 (2011).
173

174 some ‘w ha t i f ? ’ thoughts : n o tes on d onoghue
and almost inexorable operation and development, Donoghue is better

understood as an occasion on which one can glimpse law and history’s
organic and catch-as-catch-can quality. In short, Donoghue is a great case
which illustrates the contingent nature of law, greatness, and history.
Despite appearances to the contrary, Donoghue (and Lord Atkin’s judg-
ment in particular) is not tantamount to a jurisprudential sermon on the
mount which wields its influence and authority by that fact alone.
In this chapter, I look at Donoghue and its legacy through the lens of a
different and speculative kind of inquiry. I seek to isolate what was and
was not important about Donoghue in exploring the development and
dynamics of legal change; the focus is upon asking what if the case had
not unfolded in precisely the way it did and what if there had been some
slight changes in the surrounding circumstances and the dramatis perso-
nae. This may seem a rather obscure and elliptical approach to the case
and the common law. However, this way of proceeding might allow a
more critical and less trite analysis of how cases achieve greatness and
how the developmental process of the common law works. Indeed,
answering these ‘what if’ questions demands confronting, if not resol-
ving, some very big questions about law, law and society, and their
change.
Reimagining History
Alternate or counterfactual history exists somewhere in that shadowy
intellectual zone between the more familiar and traditional domains of
fact and fiction. In attempting to explore a number of ‘what if’ situations,
this intellectual approach takes an authentic or agreed-upon point in
history, posits some slightly different factual assumptions, and then spins
out an alternate or competing narrative account of how events might
have worked out differently (or not). While this approach can be utilized
as an entirely fictional and imaginative endeavour,2 it can also be used to
serve more strict and rigorous historiographical ends. The latter is
achieved by isolating certain events or focusing on the role of a particular
person in the traditional historical account, imaging that that event had
not happened or that person had not existed or had acted differently, and
then seeking to evaluate whether history might or might not have
2
For two famous examples of alternative history in literature, see V L A D I M I R N A B O K O V ,
A D A O R A R D O R : A F A M I L Y C H R O N I C L E (1969) and P H I L I P R O T H , T H E P L O T A G A I N S T
A M E R I C A (2004).

reimagining h istory 175
unfolded differently. In this way, the relative importance of any particular

event or person can be better measured or adjudged. Indeed, reliance on
counterfactual analysis seems inevitable unless “we eschew all causal
inference and limit ourselves to strictly non-causal narratives of what
actually happened”.3
As such, this disputed mode of historiographical analysis can contri-
bute to more nuanced and informed accounts of history. Imaginative
reconstruction can be combined with factual reporting to offer a more
revealing and suggestive account of history. In particular, it can be
deployed to help isolate what might be central and what might be
peripheral to the unfolding and explanation of specific events which
did occur. For example, a continuing debate in history and related
disciplines is over the extent to which certain historical figures were
essential to the historical record and dynamic of the twentieth century:
would there have been a Holocaust if Hitler had not existed? Would
apartheid have been swept aside in South Africa without the leadership of
Nelson Mandela? Or would India’s independence have occurred differ-
ently if Mahatma Gandhi had not been around? In sum, what if these
characters had each fallen victim to some childhood illness or accident
which had ended their lives? Would history have turned out fundamen-
tally differently? Or, to put it another way, what if these figures had
existed, but at a different place and time? Would their impact have
been as significant or even noticed? While these questions obviously do
not have definitive answers, a serious consideration of them does oblige a
critical reassessment of certain accepted truths.
More broadly understood, these ‘what if’ questions raise the historio-
graphical chestnut of the relation between individual agency and broader
social forces in their shaping of history. Any answer to the stated ques-
tions will both depend on and illuminate what is thought to be the
balance between human personality and social circumstance. By positing
an alternative history in which these people did not exist or acted very
differently, it becomes possible to provide a more subtle, if indeterminate
assessment of the respective roles personality and social dynamics played.
While it seems reasonable to concede that events may not have happened
3
PHILIP TETLOCK AND AARON BELKIN, COUNTERFACTUAL THOUGHT EXPERIMENTS IN
W O R L D P O L I T I C S (1996). See also V I R T U A L H I S T O R Y : A L T E R N A T I V E S A N D
C O U N T E R F A C T U A L S ( Niall Ferguson ed. 1999); D A V I D L E W I S , C O U N T E R F A C T U A L S
(2nd ed. 2001); R I C H A R D E V A N S , A L T E R E D P A S T S : C O U N T E R F A C T U A L S I N H I S T O R Y
(2014); Cass Sunstein, Historical Explanations Always Involve Counterfactual History, 10
J . O F P H I L O S O P H Y O F H I S T O R Y 433 (2015).

176 some ‘w ha t i f ?’ thoughts : n otes on d o n o g h u e
in exactly the same way without these individuals, it seems a stretch to

suggest that the larger historical pattern and outcomes would have been
vastly different: Nazi Germany was not only about Hitler; South African
apartheid was wobbling anyway; and India, like other colonies, would
likely have achieved independence at some similar point in time. Yet, this
assessment may itself reveal certain contested assumptions and proposi-
tions about historical development and change. Accordingly, it is impor-
tant to remain open to the broader historiographical debate in offering
more focused accounts of particular historical events.
That said, what are the uses and consequences of applying this alter-
native or counterfactual thinking to Donoghue? What can such an
approach do to provide new or telling insights into the case, the common
law, and the relationship between law and society? Of course, the nature
of this jurisprudential inquiry is unavoidably conjectural and inconclu-
sive. Nevertheless, by isolating a series of occurrences and the roles of
particular people, this inquiry might uncover some suggestive and hid-
den insights into how law develops and how law and society interact over
time. Accordingly, the ambition of this commentary is not to offer
definitive or grand answers to some perennial questions of jurisprudence.
Instead, its more modest goal is to shed some light on one episode in the
contingent and experimental drama of the common law.4 It will be for
others to determine the cogency and suggestiveness of my provocations
for a broader account of the common law’s changing doctrines.
Beer and Snails

A first question to ask any theorist of the common law might be: would
the history of tort law have been significantly different if May Donoghue
had not gone to the Wellmeadow Café on that summery August evening?
Of course, this would mean that Donoghue would not have entered the
law reports. So, to that extent, at least, the history of tort law would be
different. However, it does not follow that the history of tort law would be
different in some fundamental or substantive way – whoever drank that
fateful bottle of ginger beer might well have initiated similar litigation, or
Donoghue or another person might have consumed some other noxious
substance in similar circumstances on a different date. To address and
unpack these particular queries, it is necessary to move quickly to some
4
For more on a broader understanding of the common law and society, see A L L A N C .
H U T C H I N S O N , E V O L U T I O N A N D T H E C O M M O N L A W (2005).

b e e r a n d sn a i l s 177
deep and contestable issues about how law changes and takes shape and
how the relationship between legal doctrine and social conditions is
understood. While it is hard to conclude that a general tort of negligence
would not have seen the doctrinal light of day if Donoghue had not gone
to the Wellmeadow Café, it is also unconvincing to imagine that every-
thing would have nonetheless unfolded in much the same way.5
The next task is to distinguish between those events and personalities
which might have had some alternative effect on the law’s development
and those which might not have had such an effect. For instance, while
the non-involvement of Lord Atkin or Walter Leachman (Donoghue’s
lawyer) might well have had a significant impact on what occurred and
followed, it is much more difficult to speculate that the non-involvement
of Lord Tomlin or Wilfrid Normand (David Stevenson’s appellate coun-
sel) would have had a significant effect. However, even this distinction is
open to challenge and can be seen to depend upon larger assumptions
about the dynamics of historical change. Was it important that
Donoghue went to the Wellmeadow Café as opposed to another estab-
lishment? That she had a ginger beer as opposed to another beverage?
That her friend, not her, paid for the drink? All these elements will take
on particular significance and resonance depending on what a commen-
tator’s historiographical commitments are about the progress of law,
society, and history.
So, for the sake of argument, it might be assumed that the involvement
of Lord Atkin and Leachman was significant for both the Donoghue
litigation itself and its subsequent elevation to a ‘great case’. From an
alternative history perspective, the key issue would be not only whether
this involvement was significant, but also how significant it was. What if
Leachman had not championed Donoghue’s plight? What if there had
been a different bench of law lords? What if Lord Buckmaster’s pinched
judgment had won out over Lord Atkin’s more expansive effort? Or, what
if later judges and lawyers had taken more of a shine to Lord Macmillan’s
judgment than Lord Atkin’s? As focused as these questions might be, they
5
Of course, there is an analogue to all this in so-called chaos theory in which the butterfly
effect is given pride of place (i.e., in deterministic non-linear contexts, large systems are
sensitive to changes in their initial conditions such that a very tiny change in one place can
bring about vast changes throughout the systems). See Edward N Lorenz, “Predictability:
Does the Flap of a Butterfly’s Wings in Brazil Set Off a Tornado in Texas?” (Address
delivered at the 139th Meeting of the American Association for the Advancement of Science,
Washington, DC, December 29, 1972), [unpublished], online: Massachusetts Institute of
Technology, Earth, Atmospheric and Planetary Sciences http://eaps4.mit.edu/research/
Lorenz/Butterfly_1972.pdf.

178 some ‘what if ? ’ th ough t s: no te s o n donoghue
do offer a keyhole glimpse into the wider world of jurisprudential debate

about how the common law changes – what is the nature of the relation-
ship between the common law’s development and changing social
dynamics?
Almost all legal scholars maintain that the substance and development
of law are relatively autonomous (i.e., they are neither entirely beholden
to nor completely independent of socio-economic forces). However, this
proposition is so trite and capacious as to be almost meaningless. There is
a world of difference between a stance which maintains that law is
primarily separate from society but is partly determined by it, and one
which insists that law is primarily determined by society but is partly
separate from it. So, while it might well be that law has some relative
autonomy from its larger social and historical context, the more compel-
ling questions are about how relative and how autonomous it is.
Accordingly, it is incumbent on legal scholars to give some substance
and specificity to the claim about law’s relative autonomy. A ‘what if’
approach is one way to contribute to that jurisprudential task.
The challenge, of course, is to determine why Donoghue did take place
and unfold as it did as much as why it might not have done so. There had
to be a certain confluence of forces and findings in place for the
considerable shift to a tort of negligence to occur at all.6 Unless one is a
dyed-in-the-wool legalist, it beggars belief to imagine that negligence’s
introduction and acceptance was simply a matter of internal and intel-
lectual engagement within the legal community; there were definite
political leanings and social values in place which made the creation of
a tort of negligence more likely than not or, at least, which made its
creation less than unacceptable to the judicial profession. As Lord Esher
had stated almost 50 years earlier, “any proposition the result of which
would be to show that the Common Law of England is wholly unreason-
able and unjust, cannot be part of the Common Law of England”.7
Moreover, Donoghue is an extension of a principle Justice Benjamin
Cardozo articulated in 1916 in the American case of MacPherson, to
which the judges in Donoghue referred.8 This might lead to the conclu-
sion that, even if Donoghue had not seen the doctrinal light of day, the
courts would have found another occasion on which to develop the
6
See Robert L. Rabin, The Historical Development of the Fault Principle: A Reinterpretation,
15 G A . L . R E V . 925 (1981).
7
Emmens v Pottle (1885), 16 QBD 354 at 357–58.
8
See Donoghue, supra, note 1 at 577. MacPherson v Buick Motor Co, 217 NY 382, 111 NE
1050 (App Ct 1916).

lordly matters 179
intellectual roots of negligence and to tap into the prevailing milieu

around what is ‘reasonable’ and ‘just’.
It also bears noting that, contrary to common understanding,
Donoghue did not release tort liability for negligence onto an unsuspect-
ing legal world. While contract was the primary mode of civil obligation
in the 1930s, a patchwork quilt existed of statutory and judicial schemes
of tort liability which imposed on actors a range of duties to take care.
While Donoghue extended negligence liability to some new areas and
grounded tort liability where none had existed previously, it also reduced
liability in other old areas from its existing strictness to a more negli-
gence-focused liability. As is so often the case with the common law, two
steps forward was accompanied by one step back; the path of the com-
mon law is not the unidirectional or straightforward one many envision
or wish for.
Lordly Matters
Even if Lord Atkin had not sat on the Donoghue bench (or Lord Tomlin
had sided with Lord Buckmaster), the tort of negligence might well have
emerged, albeit not in the majestic form of the ‘neighbour’ principle. In
his supporting judgment (and what is considered the swing vote), the
recently appointed Lord Macmillan refused to go as far as Lord Atkin in
extending liability to all negligent actors; he confined himself to the
manufacturer–consumer relationship in his imposition of negligence
liability aside from contract. However, as well as finding against
Stevenson on the basis of negligence, he did throw down the doctrinal
gauntlet to later generations of judges and jurists by declaring that “the
categories of negligence are never closed”.9 Similarly, Lord Thankerton
was more tentative than Lord Atkin, but hinted strongly at the possibility
that a duty of care might exist more generally even if it is “impossible . . .
to catalogue finally, amid the ever varying types of human relationships,
those relationships in which a duty to exercise care arises apart from
contract”.10 Indeed, Lords Macmillan and Thankerton’s less daring and
more step-by-step approach might well have been more in line with the
traditional incrementalist spirit of the common law.
Also, it was surely not the rhetorical potency of Lord Atkin’s bold
judgment alone which carried the day and made Donoghue into a great
case. For Donoghue to rise to its historic status, there had to be a few
9 10
Id. at 619. Id. at 603.

180 some ‘w ha t i f ? ’ thoughts : n otes on donoghue
generations of judges and jurists (and, of course, society at large) who

bought into the idea and practice of an expanding principle of negligence
liability. Although the reaction to the law lords’ decision in Donoghue
was predictably mixed, there was more support than criticism. Among
the legal community, it was celebrated as a necessary step forward in
negligence law and as a decision which brought the law more in line with
contemporary sensibilities. The eminent Sir Frederick Pollock praised
the ‘Scots Lords’, including Lord Atkin, in the Law Quarterly Review for
“overriding the scruples of English colleagues who could not emancipate
themselves from the pressure of a supposed current of authority in
English Courts”.11 Insofar as the decision pierced public consciousness,
there was warm approval. Whereas the newspaper The Scotsman wrote
that the decision ‘should be welcomed by the public’,12 the Law Times
said that the decision was ‘revolutionary’ and represented a ‘radical
change’ in tort law which was ‘strictly in accord with the needs of modern
economic times’.13
The staying power of Lord Atkin’s neighbour principle can be attrib-
uted to an organic combination of its intellectual appeal and its socio-
political acceptability. Although the House of Lords wavered in its
commitment to a principled articulation of tort law, it often sought to
satisfy Lord Atkin’s aspiration to identify “some general conception of
relations giving rise to a duty of care, of which the particular cases found
in the books are but instances”.14 Most boldly, in Anns v Merton London
Borough Council in 1977, Lord Wilberforce declared that it was no longer
necessary to proceed on a case-by-case basis. Instead, he said courts
should ask “whether . . . there is a sufficient relationship of proximity or
neighbourhood” between the harmed plaintiff and the negligent defen-
dant.15 If so, a prima facie duty of care is established unless “there are any
considerations which ought to negative, or to reduce or limit the scope of
the duty”.16 And, as late as 1990 in Caparo Industries plc v Dickman, the
House of Lords revised Lord Atkin’s neighbour principle to encompass
public policy concerns such that, even if foreseeability and proximity or
neighbourhood are found to be present, a duty of care will arise only
when it is “fair, just and reasonable that the law should impose a duty of a
given scope upon the one party for the benefit of the other”.17
11
The Snail in the Bottle, and Thereafter (1933) 49:1 L A W Q . R E V . 22 at 22.
12
(May 27, 1932), cited in A L L A N C . H U T C H I N S O N , L A U G H I N G A T T H E G O D S : G R E A T
J U D G E S A N D H O W T H E Y M A D E T H E C O M M O N L A W 124 (2012).
13
(1932) 173 LT 411. 14 Donoghue, supra, note 1 at 580. 15 [1978] AC 728 at 751.
16
Id. at 752. 17 [1990] 2 AC 605 at 618 per Bridge of Harwich LJ.

broader c onsideratio ns 181
Furthermore, even if we assume, contrary to fact, that Lord Atkin’s

judgment did not prevail over Lord Buckmaster’s narrower and more
sceptical judgment, it is by no means certain that a tort of negligence
would not have become part of the law. Lord Buckmaster’s opinion may
have galvanized opposition and given life to a political momentum to
establish an even more expansive tort of negligence or even strict liability.
Indeed, it has to be remembered that Lord Buckmaster, who had been a
relatively progressive and experienced Liberal politician in the 1920s and
1930s, was as concerned with corralling the activist role of courts in a
democracy as he was with stymieing the creation of the substantive tort of
negligence itself. Against the political and social context of the time (in
which the welfare state was midwifed), it is hard to resist the conclusion
that the government might well have introduced some form of legislation
to do exactly what Lord Atkin’s opinion did for negligence liability in the
common law.
Accordingly, asking questions from a counterfactual or alternate his-
tory can help to illuminate or, at least, hint at those historical circum-
stances and personalities which were likely more required than not for a
Donoghue-like principle to become part of the common law. There is
nothing scientific or determinative about such an approach, but it does
enable a more critical perspective which avoids a knee-jerk Panglossian
response to each and every twist and turn of legal doctrine. The common
law is constantly moving, but never arriving anywhere in particular.
Broader Considerations
One way to approach the issue of what is and is not important in
determining the role of Donoghue and its component parts in the devel-
opment of negligence liability is to gather together all of the case’s
pertinent and contextual features and then ask which ones are essential
to the development of a tort of negligence and which are not. On such a
basis, while it is clear that some small changes would undercut the
importance and even existence of Donoghue as a landmark case, it is
less obvious which changes would be sufficient to prevent completely the
establishment of a tort of negligence. In other words, while some small
changes in character and circumstances might effectively nullify the
impact of Donoghue itself and its doctrinal template, it would require
much more substantial changes to prevent entirely the introduction of
negligence liability into English law over the following decades. So, for
instance, although Lord Atkin’s presence or absence in the case might

182 some ‘w ha t i f ? ’ thoughts: no tes on donoghue
prove important in mapping out exactly how the law would have devel-
oped without his neighbour principle, it is far from conclusive that a
similar tort of negligence would not have seen the light of day.
It is a considerable analytical stretch to insist that Lord Atkin’s invol-
vement alone was pivotal to the development of negligence liability in
English law and that, without him, there would have been no tort of
negligence. After all, the tort of negligence did take hold in American law
around the same time as Donoghue. At the risk of sounding silly, it is
apparent that Lord Atkin played no role in such an occurrence; the case
occurred in another jurisdiction and several years before Donoghue. This
strongly suggests that it was less the particular characters and circum-
stances of Donoghue which drove English law’s evolution towards negli-
gence and more the social dynamics in play that propelled it towards
negligence law. In short, the time was right and, if it had not been Lord
Atkin, it might well have been someone else who seized the doctrinal day
and laid down a test for duty or proximate cause. Of course, this argu-
ment raises the obvious difficulty of explaining why English law did not
later take a similar turn to American legal doctrine in the 1960s. The
California case of Greenman v. Yuba Power Products in 1963 ushered in
the doctrine of strict liability which soon took hold across the United
States and replaced much of the jurisprudence on negligence.18
Efforts to elucidate the divergence of legal doctrine between
England’s continuing adherence to negligence liability, especially for
products liability, and the United States’ move towards strict liability
might take a number of routes. Two main ones come to mind: first, that
different regimes of legislative protection were enacted for consumers
in the two jurisdictions (i.e., the English political landscape allowed for
more consumer-friendly legislative interventions than the American
political landscape); and second, that the practical application and
judicial exception-making that occurred rendered the apparently different
legal doctrines more similar than different (i.e., the American legal doc-
trine is less strict in operation and the English doctrine is more exacting
than might be initially appreciated).19 That said, there might well be a host
of other explanations which pass historiographical muster. Again, it bears
emphasizing that there is no theoretical formula or generalizable account
18
Greenman v. Yuba Power Products, 59 Cal 2d 57, 27 Cal Rptr 697 (Sup Ct).
19
In Donoghue itself, Lord Macmillan was mindful to emphasize that he “rather regard[s]
this type of case as a special instance of negligence where the law exacts a degree of
diligence so stringent as to amount practically to a guarantee of safety”. Supra, note 1 at
611–12.

b r o a d e r co n s i d e r a t i o n s 183
which will work in all instances to explain historical development or what

is needed to reach the tipping point for significant social or legal change.
Nevertheless, it does seem possible to draw some general observations
about the role of Donoghue and its context in the history of negligence
liability. The challenge is to do so without making extravagant claims
about the overall evolution of legal doctrine across the jurisprudential
board. Both society in general and law in particular are far too messy in
their patterns and practices to be reducible to neat equations of cause and
effect. The historical interaction between one feature of society and
another cannot be described or formulated once and for all: “the system
as a whole has no single ideological imprint”.20 The fact is that not only
does law fail to conform to any internal or external deep logic, but also
the specific relation between external forces and internal rationality
resists generalization; no one account of that relation is valid for all
time and all places. The development of the common law is neither
serendipitous nor scientific. As such, the relationship between law’s
development and changing social relations is more complicated and
indeterminate than is usually allowed or conceded; it defies simple or
consistent elucidation. Nonetheless, this does not preclude a profitable
analytical account of one episode in the common law’s development.
While the history of English tort law might have unfolded differently if
May Donoghue had not walked into the Wellmeadow Café, if William
Leachman had not been on a mission to skewer Paisley’s ginger beer
manufacturers, or if Lord Atkin had not been on the bench that day, it
would not be so different a history looked at from today’s standpoint
more than 80 years later. The path travelled may have been slightly
different in timing and terrain, but the overall direction and destination
would surely have been much the same. Is it really feasible to maintain
that without these three personalities, the whole of negligence law would
be entirely and meaningfully different?
None of this is to say that the involvement of Donoghue, Leachman, or
Lord Atkin was not important. It was. They had a continuing impact on
the fine texture and local development of the law. But the impact of
particular individuals must be measured and assessed in light of the
pervasive social and historical forces in play in 1932 and soon after. To
20
D U N C A N K E N N E D Y , A C R I T I Q U E O F A D J U D I C A T I O N : F I N D E S I èC L E 225–26 (1997). For
a more fully developed account of this insight, see A L L A N C . H U T C H I N S O N , I T ’ S A L L I N
T H E G A M E : A N O N F O U N D A T I O N A L I S T A C C O U N T O F L A W A N D A D J U D I C A T I O N 216–51
(2000).

184 some ‘w ha t i f ?’ thoughts : n otes on d o n o g h u e
prioritize individual personalities over social forces (and vice versa) as a

general matter of historiographical principle is mistaken; each interacts
with and influences the other. On another day and in another case, their
involvement might well have been decisive. Accordingly, it can be con-
cluded tentatively that the precise interaction of the general social forces
in play and the particular situational dynamics in law can unfold very
differently from one context to another. Donoghue is simply one chapter,
albeit a significant one, in the evolution of the common law. The doc-
trinal story and plot of the common law might have experienced a
significant twist as a result of Donoghue’s occurrence or non-occurrence.
Whether the law’s tale would have turned out entirely differently over
time seems possible, but unlikely.
Conclusion
Shortly before I completed a draft of this this chapter, it was the fiftieth
anniversary of John F. Kennedy’s assassination. There was much talk
about how things in the United States and the world might have hap-
pened differently if he had not died in Dallas in late November 1963.
Would Vietnam have happened? Would the Cold War have played out
differently? Would the push for civil rights have been stronger? And
would Kennedy himself have become and remained the iconic figure he is
now perceived to be?21 These are each fascinating and unanswerable
‘what if’ questions. But their posing and the ensuing efforts to answer
them do offer an occasion to muse on larger questions of historical
judgment and historiographical insight. Kennedy was a ‘great man’ by
most standards, but not without his faults. Yet the extant social and
political forces of his presidency and its aftermath shaped, at least in
some part, his contemporary status and later influence; he is both a man
of his times and of our times. But, in the same way that Kennedy and his
legacy are inseparable from his and our times, so also is Donoghue’s
identity and fate. Both show that any attempt to detach the force of
personality from the impact of larger currents is folly. They also reveal
that any attempt to develop a grand account of how they work to
constitute and reconstitute each other is also foolhardy.
21
See, for example, R O B E R T D A L L E K , A N U N F I N I S H E D L I F E : J O H N F . K E N N E D Y 1 917–
1 96 3 (2003) and C A M E L O T ’ S C O U R T : I N S I D E T H E K E N N E D Y W H I T E H O U S E (2013).

11
Les Misérables Redux: Law and the Poor
“Certainly they appeared utterly depraved, corrupt, vile and odious; but it is
rare for those who have sunk so low not to be degraded in the process, and
there comes a point, moreover, where the unfortunate and the infamous are
grouped together, merged in a single and fateful word. They are les misérables –
the outcasts, the underdogs. And who is to blame?”
– Victor Hugo1
Each day, a poignant and pathetic ritual is performed outside court-

houses. Osgoode Hall in downtown Toronto is no exception. Like most
courthouses and seats of the profession’s ruling body, it is at the centre of
the city’s legal life. Built in 1832, it is an impressive building which affects
the imposing stylistic tradition of classical architecture. With its monu-
mental stone balustrade and fluted Ionic columns, the facade’s grandeur
is intended to exalt the law and awe the citizen; it is a modest monument
to law’s assumed majesty and prestige. Yet, in almost time-honoured
tradition, a street person or two stands outside the ornamental wrought-
iron railings which encircle it. Most lawyers walk past them, but some
stop to place a coin in their outstretched hands. This sad scene has been
commonplace throughout the century and across the continent.
Just as depressing and troubling is the fact that what goes on outside
the courts is only a more obvious and less refined enactment of what
goes on inside the courts. That pitiful pageant and personal exchange
symbolizes the relation between the law and the poor. It is a daily
confirmation of the law’s cruel indifference to the plight of society’s
les misérables. For all its fine rhetoric and noble posing, the law and its
1
V I C T O R H U G O , L E S M I S É R A B L E S 639–40 (Norman Denny trans., 1976) (1862).
Hereinafter, references to this work are in parenthesis in the text.
185

186 les misé r a b l e s r ed ux : l aw an d t he p oor
guardians have little time for the street people. Shepherded from its
swept steps and manicured lawns, they must hover at its perimeters and
hope for the occasional gesture of personal charity. Figuratively and
literally, law remains aloof and out of bounds for them. The law is exactly
as it is represented in its architectural embodiment: an intimidating bas-
tion of power and privilege which houses the establishment’s judicial
representatives who contrive to turn a blind eye to the underclass.
The poor and the disenfranchised might be occasionally invited into its
great halls, but their visits are temporary and tenuous. They remain only as
long as they adopt a polite and ingratiating posture of supplication, make an
appropriate display of gratitude, and affect a suitable attitude of contrition
about their condition. As for the street people, they hold few illusions about
the law’s willingness to do anything which will truly address and alleviate
their situation. It is still for the law to give and the poor to receive. They are
not allowed to take what is theirs; they remain dependent upon the law’s
occasional gesture of idiosyncratic generosity. Such a relationship impov-
erishes the law as much as it demeans the poor. Through its condescending
acts of benevolence, the law manages to affirm its own power and authority
at the same time as it reinforces the powerlessness of the poor.
In this chapter, I want to go some of the way to validating this rather
harsh and stark depiction of the law’s institutional callousness and to
condemn its pathological incompetence in responding to the needs of the
most deprived and desolate in the community. In order to throw a more
illuminating and cultured light upon the matter, I will enlist the help of
Victor Hugo’s Les Misérables. Although written more than 150 years ago,
it retains an appalling similarity to contemporary conditions and chal-
lenges. By focusing on that work’s themes and imagery, I hope both to
demonstrate the structural failings of courts as a forum for social trans-
formation and to chastise academics for their complicity in the mis-
guided efforts to litigate an end to poverty and its pernicious effects. In
particular, I will focus on a debate around whether there is or should be a
constitutional right to beg. Exploring both judicial and academic dis-
course round this topic, I will touch upon the larger matter of whether
rights-talk generally is inimical to social transformation. I contend that it
is always limited and limiting even when it is working tolerably well.
Hugo’s Harangue
For better and worse, Victor Hugo (1802–85) is a titan of Western
literature. Like most great writers, he transformed the conventional

hugo ’s h arangue 187
standards of artistic merit as he exceeded them. A prodigious writer of

poetry, drama, and prose, he manages in his work to traverse the spec-
trum of literary styles and sensibilities. Possessing technical skills and
mythic imagination in uncommon abundance, he both created and
perfected a novelistic genre which combined soaring romanticism with
earthy realism on the grandest scale. With his consummate command of
language, Hugo wrote novels which reflected his intellectual and emo-
tional bravura. The masterpiece of his extensive oeuvre is Les Misérables.
Along with Notre Dame de Paris, this work represents the high-water
mark of his literary genius. It is, at once, a sociological essay, adventure
thriller, theological sermon, historical chronicle, educational text, gothic
romance, political pamphlet, philosophical meditation, and much more.
Yet, never only a brilliant virtuoso, Hugo placed his huge literary talents
in the service of popular suffrage: “Peer through the heart of the people
and you will discover the truth” (509). He insisted that salvation is not
given from above, through God or Law, but is taken from below by the
people themselves.2
The general storyline and structure of Les Misérables is so well known as
to need little rehearsal. By combining cosmic themes with domestic details,
it manages to be both a social testimony to human suffering and an epic
tale of human deliverance. Possessing a seemingly inextinguishable belief
in the spiritual possibilities of people, Hugo presents a melodrama of
human perfectibility in which, through will and circumstance, the cor-
rupted become cleansed: “Is there not in every human soul an essential
spark, an element of the divine, . . . which goodness can preserve, nourish,
and fan into glorious flame, and which evil can never quite extinguish?”
(98). His ultimate ambition was not the individual salvation of a human
soul, but the collective resurrection of humankind. Encompassing the vast
canvas of French history in the first 40 years of the past century, the
narrative thread is the extraordinary life and travails of Jean Valjean as
convict, industrialist, fugitive, protector, philanthropist, and protagonist.
2
Hugo abandoned his middle-class family’s Bonapartism and traditional defence of con-
servative values: he became an outspoken critic for a republican form of government. After
the revolution of 1848, he sought to rally workers against state oppression; see E L L I O T T M.
G R A N T , T H E C A R E E R O F V I C T O R H U G O (1945); A N D R E M A U R O I S , O L Y M P I O : T H E L I F E
O F V I C T O R H U G O (Gerard Hopkins trans., 1956). This led to his long, but productive exile
from France in the Channel Islands. By the time Les Misérables was published in 1862,
Hugo had become a committed democrat and socialist (718 and 724). Some critics
contend that Les Misérables was a revolutionary cover for a more conservative view of
the world. See, for example, V I C T O R B R O M B E R T , V I C T O R H U G O A N D T H E V I S I O N A R Y
N O V E L 135–39 (1984).

188 les misé r a b l e s r e d ux: l aw an d t he p oor
Through him, Hugo introduces a sprawling cast of memorable characters

and romantic stereotypes – the tragic Fantine, the malevolent Thenardier,
the angelic Cosette, the lovelorn Marius, the uncompromising Enjolras,
the impish Gavroche, and, of course, the remorseless Javert. But, through-
out the book, the dramatis personae seem only convenient constructs
through which the epic stuff of life and death is animated and acted out.
More than an extravagant tableaux of a larger-than-life eighteenth-century
Paris, it is a sweeping saga of the struggle between good and evil, light and
dark, and sublime and grotesque.
Les Misérables is often too stylized, didactic, indulgent, and dithyram-
bic; Hugo’s proselytizing tendencies occasionally eclipse his poetic gifts
and his sociological ascriptions sometimes overwhelm his redemptive
aspirations. But, even flawed as all romantic novels are, it bears heroic
witness to the social consciousness and conditions of the time. More than
that, Les Misérables can still speak to us across history. Its themes remain
as relevant today as they were shocking in yesteryear: they resonate
troublingly with the social conditions of twenty-first-century North
America. In the past 150 years, while much has changed, much has stayed
the same. The plight of the downtrodden and disenfranchised remains a
powerful and permanent feature of contemporary life. Moreover, law
continues to be long on words and short on action in such matters.
That said, I will draw upon only a few of the threads which weave
together the overall thematic tapestry of Les Misérables. As such, I intend
to pursue three related tropes which suggest a neat organizational struc-
ture for this chapter: the condition of poverty and its apprehension by the
privileged; the self-serving ethics and false esteem of the philanthropic
citizen; and the crass antagonism of law and its officers to a truly
transformative vision and practice of egalitarian justice. Together, these
themes combine to form a strong indictment against law and its role in les
misérables’ continued suffering.
The first theme is that of poverty. Much like Charles Dickens and
George Orwell, Hugo captures the suffering and degradation of abject
poverty and destitution in all its graphic and nauseating detail. For him,
misery is a social condition, not an individual state of mind or moral
failing; its eradication requires action to change the material and struc-
tural circumstances of life rather than moral suasion and discipline urged
upon individual minds. Yet, generally resisting the temptation to roman-
ticize those “at the level of utmost poverty [whose] wits are too dulled to
complain at misfortune or give thanks for a benefaction” (817), Hugo
never robs them of their dignity or pride. He places blame for the

hugo ’s harangue 189
continuing conditions of miserable poverty squarely on the padded

shoulders of those who thrive. Lambasting the elite’s pitiful demoniza-
tion or patronization of unprivileged communities as a breeding ground
for crime and unrest, the real enemy is not outsiders, but “it is ourselves
we have to fear; prejudice is the real robber, and vice the real murderer”
(42). Even the most enlightened legal actors treat les misérables as a race
apart. Different from themselves, they must be tolerated, but they need
not be embraced. By way of illustration, the 1990 judgments of the courts
in Young,3 as much in their framing of the issues before them rather than
the decisions themselves, rely on a condescending and disparaging image
of beggars which informs and permeates the law.
The second theme is derivative of the first. Whereas the first speaks to
the general relation between the haves and have-nots, the second explores
its expression in the individual dealings of the pauper and the philan-
thropist. Although ‘ignominy thirsts for respect’ (86), those who offer
charity to the poor can do so as much in the spirit of self-righteousness as
from a sense of solidarity. Some philanthropists are too often motivated
by a need to assuage their own guilt rather than by a wish to eradicate
poverty. Indeed, in a provocative contribution to the legal debate over
rights and begging, Helen Hershkoff and Adam Cohen run this risk.4
They seek to speak for beggars and to alleviate their condition by arguing
that begging is fully protected speech under the American First
Amendment. However, laudable intentions do not excuse lamentable
effects. Their proposal to establish a right to beg has more likely inhibited
than enhanced the long-term prospects of les misérables for personal and
collective salvation.
The third theme is more overtly jurisprudential in focus and design.
For Hugo, the law is very much part of les misérables’ problems. The law
is considered a conservative and cold force which not only holds in place
the social conditions of poverty, but also works its own oppression when
les misérables fall under its influence. The epic encounters between Jean
Valjean and Inspector Javert represent the clash between the popular
pressures for social change and the established forces of authoritarian
order. Notwithstanding the dismal history of efforts to effect social
change through the courts, contemporary activists are unable to resist
the allure of rights-talk; they still tend to look to the courts as almost the
3
Young v. New York City Transit Authority 729 F. Supp. 341 (S.D.N.Y. 1990), rev’d in part
and vacated in part, 903 F.2d 146 (2d Cir. 1990), cert. denied, 498 U.S. 984 (1990).
4
Helen Hershkoff and Adam Cohen, Begging to Differ: The First Amendment and the Right
to Beg, 104 H A R V . L. R E V . 896 (1991).

190 les misé r a b l e s re d ux : l a w an d t he p oor
preferred forum of transformative choice. This is a fundamental error

and a tactical mistake. If there is to be real change for the progressive
good, it will not come through the courts. Indeed, only lawyers seem to
imagine that it could or will.
Poor Relations
Like Victor Hugo’s Paris of the past century, the contemporary streets of
North American cities are home to legions of the wretched and dispos-
sessed. Without support or shelter, these beggars are found everywhere,
but “become lost in that cold murk that envelops solitary destinies, the
distressful shadows wherein disappear so many unfortunates in the
somber progress of mankind” (94). Insult is added to injury by the fact
that, although the United States and Canada are a couple of the richest
countries in the world, there is a large and growing disparity between the
income and wealth of the rich and poor; the top 20 per cent possess about
80 per cent of all financial assets and the bottom 10 per cent have an
negative worth. In countries of plenty, homelessness is a condition which
afflicts more than 500,000 people in the United States on any given night
and 30,000 in Canada. The enormity of the problem reduces the pain-
searing cry of personal tragedy to the sedated murmur of a collective
statistic.5
While the suffering of today’s les misérables is everywhere and always
present, society has developed various discursive devices by which to
comprehend and contain them. Indeed, like all languages, the rhetoric of
poverty creates and classifies reality at the same time as it responds to and
is limited by that reality: “how we talk and argue about poverty reveals
what we believe about ourselves and others”.6 As such, the rhetoric of
poverty has its own history and politics because the privilege of naming is
part and parcel of the power to control. It attempts to provide an account
of poverty able both to recognize the plight and pain of the poor and to
confirm the elite’s lack of responsibility for that condition of inequality. A
way of speaking is sought which allows people to identify the suffering of
the poor without having to identify with the poor. As such, it is obviously
the voice of the non-poor which speaks from the vantage point of its own
privilege. Consequently, the poor are denied access to both material and
5
T H E S T A T E O F H O M E L E S S N E S S (2016).
6
Thomas Ross, The Rhetoric of Poverty: Their Immorality, Our Helplessness, 79 G E O . L. J .
1499, 1502 (1991).

po or r el a tio ns 191
intellectual resources. Shunned and silenced, they suffer the double

indignity of being consigned to existential penury and to intellectual
purgatory.
The chief rhetorical manoeuvre in the discourse of poverty is the
stigmatization of the poor as lazy, unmotivated, weak-willed, profligate,
and dull. Imputed with a bad attitude and even shoddier work habits,
the poor are considered responsible for their own misfortune and, as
importantly, its future amelioration; life is not a handout. This is a
discourse of difference in which the poor are treated as a race apart.
While they are considered to share a common humanity with the rest of
society, they are marked by their poverty as less deserving of common
solicitude. Because they do not play a full part in the production of society’s
wealth, they are in no position to demand or expect a full share in its
distribution. In the lexicon of strict liberalism, individuals must assume full
responsibility for their own lives because it is individuals, not the society of
which they are part, who determine their role and its possibilities.
The effect of this discursive dissemblance is twofold. First, it presents
the causes of poverty as individual and personal rather than collective
and public. Being based on a lack of moral fibre and substance, attention
is focused upon the state of a particular person’s moral constitution and
not upon the social and economic structure into which people are born
and live. Poverty is not a function of present arrangement, but is a
malfunctioning of certain sectors of the population. As such, solutions
are sought through programs of moral regeneration and civic restoration
in which the Protestant virtues of discipline, monogamy, sobriety, thrift,
and hard work are inculcated. Initiatives intended to alter the redistribu-
tion of economic resources are placed lower on the social agenda. For
example, prostitutes are castigated more for their failure of moral chaste-
ness than they are sympathized with for their lack of other means of
economic survival.7
Secondly, and as an obvious corollary of the first effect, this vocabulary
of stigmatization enables the privileged to affect an exasperated posture
of helplessness. They engage in much wringing of hands and creasing of
brows. Yet, this way of thinking about poverty excuses the privileged
from accepting or eradicating the more structural cause of poverty. It
justifies the elite’s apparent helplessness in the face of the poor’s own
7
See Jody Freeman, The Feminist Debate over Prostitution Reforms: Prostitutes’ Rights
Groups, Radical Feminists and the (Im)possibility of Consent, 5 B E R K E L E Y W O M E N ’ S
L . J . 75 (1990).

192 les misé r a b l e s r ed ux: l aw an d t he p oor
intractability in improving their moral outlook. As with most forms of

hypocrisy, it relieves the privileged from the painful duty of accepting
responsibility and beginning to do something to change matters. It
reassures them in their own privilege and confirms their earned entitle-
ment to a life without hunger. Like most forms of justification, the
rhetoric of poverty is generated for privileged persons’ own consump-
tion, for it allows them to continue in their own lives without too much
interruption or angst. Living a life of poverty, les misérables have little
need for such instruction or insight.
Hugo fully understood this discourse of poverty and difference. While
he himself never experienced the severe deprivations of utmost poverty,
his account in Les Misérables is convincing and moving. He grasps not
only the poor’s suffering, but also the sanctimony of the privileged. His
literature provides a stark challenge to the transparency of the elite’s self-
serving apologetics. However, Hugo does not always resist the tempta-
tion to judge the poor and offer the opinion that there is “in its most
noisome and ferocious aspects, a form of social ugliness that was perhaps
even more repulsive than the evil rich: namely, the evil poor” (739).
However, he rejected entirely the view that les misérables were the
architects of their own moral degeneration and material poverty: “the
very words accepted as terms of abuse – down-and-outs, riff-raff, moboc-
racy – point, alas, rather to the faults of those who rule than to the sins of
those who suffer, to the misdeeds of privilege rather than to those of the
disinherited” (987). In this, Hugo ensures that his writings are not fodder
for the elite’s propaganda, but instead oblige privileged persons to con-
front, at least, their own rhetorical complicity in the continuing domin-
ion of contemporary social conditions.
The modern tendency to abstract the poor, to portray them as essen-
tially different and, thereby, to distance the poor from privileged purview
and responsibility is forcefully captured in Hugo’s famous characteriza-
tion of the hapless Marius, a confused and idealistic law student who
bears a strong resemblance to the young Hugo. Marius falls madly in love
with Cosette. But, when she moves away without trace, he is soon thrown
into despair. Already enduring a severely frugal and ascetic life, he falls
into the abyss of penurious hardship. After five years of living in this
tortured state, he becomes curious about the family in the neighbouring
garret who seem to live in greater squalor than his own. He has a chance
encounter with the young daughter – “an ill-treated girl with the eyes of a
grown woman; a blend of fifty and fifteen; one of those creatures, at once
weak and repellent, who cause those who set eyes on them to shudder

poor relations 193
when they do not weep” (633). Confronted by a life of most utter

destitution and loveless grief, Marius recognizes that he has not until
then encountered the true meaning and hopelessness of real poverty. In a
stern lecture, Hugo delivers a strong rebuke:
People reduced to the last extremity of need are also driven to the utmost
limit of their resources, and woe to any defenseless person who comes
their way. Work and wages, food and warmth, courage and goodwill – all
this is lost to them. The daylight dwindles into shadow and darkness
enters their hearts; and within this darkness man seizes upon the weakness
of woman and child and forces them into ignominy. No horror is then
excluded. Desperation is bounded only by the flimsiest of walls, all giving
access to vice and crime.
Health and youth, honor and the sacred, savage delicacy of still-young
flesh, truth of heart, virginity, modesty, those protective garments of the
soul, all are put to the vilest of uses in the blind struggle for survival that
must encounter, and submit to, every outrage. . . .
To Marius the girl was in some sort an emissary of that underworld,
disclosing a hideous aspect of its darkness. He was near to reproaching
himself for his habit of abstraction and for the love affair that until then
had prevented him from giving a thought to his neighbors. The payment
of their rent had been an automatic response, an impulse that might have
occurred to anyone; he, Marius, should have done better. Only a thin
partition separated him from that small cluster of lost souls groping in
darkness and sundered from the living world; he had heard them living, or
rather suffering, within a few yards of him-and he had paid no attention.
All day and every day he had been conscious of their movements through
the wall as they came and went and talked together, and he had not
listened. Groans had been mingled with the words they spoke, but he
had not heeded them. His thoughts had been elsewhere, squandered in
dreams, infatuation, while these, his fellow-creatures and brothers in
Christ, were slowly rotting beside him, abandoned to their agony.
Indeed, it seemed to him that he was a part of their misfortune and had
aggravated it. If they had had a different neighbor, one less self-absorbed
and more concerned for others, a man of normal, charitable instincts,
their desperate state would not have gone unnoticed, their distress-signals
would have been heard, and perhaps they would have been rescued
by now.
(638–40)
In this moment of Marius’ revelation, Hugo pierces the rhetorical veil

which hides the privileged and self-absorbed from seeing the suffering
which surrounds them and which their own privilege sustains: they look,
but they do not see. In love with themselves, they are effectively blinded
to their own culpability in the pain and torment of their fellow citizens.

This indifference is not only the measure of the callous or the malevolent;
the callous or the malevolent at least have the virtue of honesty. As with
Marius, even the most sensitive and informed can remain truly uncon-
scious of the brute conditions which constitute poverty. Their own
relative privilege only serves to place the complete lack of privilege in
even starker relief. Indeed, the judges in Young are such an example.
Forever Young
William B. Young Jr. and Joseph Walley were homeless. They spent their
days soliciting money for themselves in the relative warmth and shelter of
the New York City transit system; they used the money to buy food,
medicines, and other essentials. Because they slept in shelters at night,
they received reduced public assistance. They approached transit users,
asking them for money and answering any questions they might have. In
1989, Young and Walley were frequently escorted from the premises by
the police in consequence of ‘Operation Enforcement’, and threatened
with criminal prosecution. After a passenger survey, the Transit
Authority had decided to implement more effectively the long-standing
prohibition on begging and panhandling in the subway. At the same
time, the Transit Authority had amended its regulations to permit, in
limited circumstances, charitable solicitation on its premises.
Through the Legal Action Center for the Homeless, Young and Walley
claimed that their constitutional rights had been infringed and that the
ban on begging was a pretext for evicting the homeless and destitute from
the subway system. In particular, it had to be determined whether beg-
ging was protected speech or restrainable conduct and whether the sub-
way system was a public forum for the purpose of First Amendment
analysis. At first instance, District Judge Leonard B. Sand decided that
begging was protected speech and that the New York City transit system
was a designated public forum. Accordingly, the regulations were held to
violate Young and Walley’s right to free speech. On appeal, the Second
Circuit reversed that decision, with Judge Meskill dissenting in part. The
court held that the regulations were not in contravention of the First
Amendment: begging was not expressive conduct and, notwithstanding
that charitable solicitation was permitted; the subway was not a desig-
nated public forum.
The holdings of the two courts traversed traditional doctrinal territory.
But, for my objectives, the more significant and fascinating dimension of
the holdings and the counsels’ arguments is their location within an

f ore ve r y oun g 195
identifiable and contestable mode of rhetorical discourse about poverty.

By making implicit recourse to a particular moral medium and uni-
verse, the judges assumed a shared understanding and representation of
poverty and its social intelligibility. In doing so, they perpetuated a
worldview whose intellectual lineage and historical pedigree can be
traced back to Hugo and before. Inadvertently, they bear eloquent
witness to the debilitating effects of that rhetoric and give a judicial
imprimatur to its legitimacy. Inherent in their holdings is the assump-
tion that the poor are different and, as such, undeserving, intimidating,
unruly, and at the root of much of the chaos and crime which threatens
the hardworking community. While the plight of the poor is to be
regretted, their suffering is not for the rest of society to endure or be
responsible for.
The whole issue in Young initially was framed and presented by the
Transit Authority’s lawyers in stark oppositional terms which distinguish
between the poor and homeless, and the hardworking denizens of New
York. For the Transit Authority, the regulations were motivated by
concerns for public safety and not the content of the beggars’ message;
the public was experiencing beggars as an intimidating and discomfort-
ing source of harassment. The already congested and crowded environ-
ment of the subway was exacerbated by the presence of beggars and the
passengers’ high levels of fear and anxiety were heightened. In his
opinion for the Court of Appeals on behalf of Judge William Timbers
and himself, Judge Frank Altimari slipped easily into the rhetoric of
poverty and gave express approval to the defendants’ characterization
of the problem and its personnel. He made clear that:
It is not the role of this court to resolve all the problems of the homeless, as
sympathetic as we may be. We must fulfill the more modest task of
determining whether the [Transit Authority] may properly ban conduct
that it finds to be inherently harmful in the subway system.8
For Judge Altimari, much of this resolution could be accomplished by

resort to common sense: “what common sense beckons the law ordains”.
This involves an acceptance that les misérables are ‘threatening, harassing
and intimidating’, that “begging in the subway often amounts to nothing
less than assault, creating in the passengers the apprehension of immi-
nent danger”, and that it “amounts to nothing less than a menace to the
common good”.9
8 9
Young, supra, note 3 at 156–57. Id. at 154, 158, and 156.

By drawing upon the demonizing rhetoric of poverty, Judge Altimari is

able to instil his judgment with a semblance of reason and rationality. He
states that “unlike burning a flag, wearing a black arm-band, sitting or
marching, begging in the subway is experienced as transgressive conduct
whether devoid or inclusive of an intent to convey a particularized
message”. Yet, his decision that begging is not sufficiently expressive to
be protected speech flies in the face of “right reason . . . and common
sense”.10 While its raison d’etre lies in the potential transfer of money,
begging is surely the most basic and compelling kind of communication.
The silent outstretched hand or the rattle of a cup comes closest to
expressing most profoundly and poignantly the ineffable quality of des-
titution. To paraphrase Felix Frankfurter, those dumb gestures articulate
more fully the pathetic poetry of poverty which Keats’ poems, Donne’s
sermons, and Hugo’s prose only stutter and stammer to convey.11
For those unconvinced by his invocation of the law’s common sense,
Altimari argues that, even if “begging and panhandling possess some
degree of a communicative nature”, regulation is permissible if there is a
sufficiently important and substantial government interest at stake. After
revealingly and unfairly comparing beggars with the purveyors of porno-
graphic films as similarly devoid of redeeming social value, he confirms
the disabling discourse of difference:
The governmental interests in the prohibition of begging in the subway
are more fully elucidated when the harms to be avoided are juxtaposed
with the good to be sustained. The subway is not a domain of the
privileged and powerful. Rather, it is the primary means of transportation
for literally millions of people of modest means, including hardworking
men and women, students and elderly pensioners who live in and around
New York City and who are dependent on the subway for the conduct of
their daily affairs. They are the bulk of the subway’s patronage, and the
City has an obvious interest in providing them with a reasonably safe,
propitious and benign means of public transportation. In determining the
validity of the ban, we must be attentive lest a rigid, mechanistic applica-
tion of some legal doctrine gainsays the common good. In our estimation,
the regulation at issue here is justified by legitimate, indeed compelling,
governmental interests. We think that the district court’s analysis reflects
an exacerbated deference to the alleged individual rights of beggars and
panhandlers to the great detriment of the common good.12
10
Id. at 154.
11
Id. (quoting Cohen v. California, 403 U.S. 15, 26 (1971) (quoting Winters v. New York, 333
U.S. 507, 528 (1948) (Frankfurter, J., dissenting))).
12
Id. at 157 and 158.

f ore ve r youn g 197
In this passage, all the familiar motifs and imagery are present: the
hardworking majority, the dangerous poor, the common good, the rea-
sonable authorities, and the sensitive judge. Judge Altimari succeeds in
completely denying the beggars’ own sense of reality and depicting the
advantaged in society as harshly treated by the recalcitrant poor.
Accordingly, the court is able not only to uphold the Transit
Authority’s regulation, but also to do so in a way which does not rely
upon a ‘mechanistic application of some legal doctrine’.13 Instead, it
makes a proud appeal to the authoritative dictates of social justice and
common decency.
Although Judges Sand and Meskill reached conclusions which are
more supportive of beggars, they still indulged in the patronizing rhetoric
of poverty. Judge Sand had no qualm with the idea that begging was an
expressive plea for charity: “While often disturbing and sometimes alar-
mingly graphic, begging is unmistakenly informative and persuasive
speech.” In a short historical survey of begging, Judge Sand acted pre-
emptively in giving the lie to the Court of Appeals’ efforts “to suggest that
begging has been universally viewed with the rancor and enmity of, say,
obscenity”. Yet the overall tone and effect of his judgment was to rein-
force the rhetoric of poverty’s core idea that the poor are essentially and
potentially different: “A true test of one’s commitment to constitutional
principles is the extent to which recognition is given to the rights of those
in our midst who are the least affluent, least powerful and least wel-
come.”14 While he demonstrated a genuine solicitude for the plight of
beggars like Young and Walley, tipping the constitutional balance in their
favour, he accepted the validity of the hardworking majority’s interests in
being relieved from the discomfort which results from face-to-face con-
frontations with beggars. Also, he relied on the same assumptions when
he found that time, place, and manner restrictions which confine beggars
to more marginal and less obvious vicinities were acceptable.
In his opinion, Judge Meskill comes closest to accepting the poor’s own
account of reality. Rejecting the notion that charitable solicitation can be
meaningfully and genuinely distinguished from begging, he notes:
In the seclusion of a judge’s chambers, it is tempting to assume that
beggars could obtain jobs and spend their free time distributing leaflets
or buttonholing passersby in the subway to further the cause of the
homeless and poor. The record in this case, however, permits no such
speculation. . . . To suggest that these individuals, who are obviously
13 14
Id. at 158. Id. at 352, 353, and 360

struggling to survive, are free to engage in First Amendment activity in
their spare time ignores the harsh reality of the life of the urban poor.
Nevertheless, like Judge Sand, Judge Meskill remains ensnared within

the privileged rhetoric of poverty. By recognizing that the interests the
Transit Authority was advancing (e.g., the protection of the public from
harassment, preservation of quality of life, and maintenance of a safe
transit system) were legitimate and significant, he engages in the domi-
nant discourse in which there are the ‘hardworking New Yorkers who
rely on the subway system’ and the belligerent beggar. Furthermore, by
distinguishing between ‘a homeless person politely requesting money’
and ‘the aggressive panhandler who accosts and intimidates subway
riders’,15 he reveals that beggars are only acceptable on the advantaged’s
own terms and that beggars are not entitled to express the genuine
anger or resentment they may feel. Sadly, even the most enlightened of
the four judges held the view that form is more important than sub-
stance; protocols of civility and politeness take priority over real suffer-
ing and distress.
Beggar Your Neighbour

Even if the ‘sympathetic’16 judges in Young felt constrained by the judicial
role from tackling the problem of homelessness, academic commentators
suffer from no such limitations. As especially privileged members of
society, legal scholars are cushioned against risk and therefore must
take full responsibility for their actions or lack of them. Like the best
kind of fools, they must go where others fear to tread. Yet all most of
them can offer is compassion and rights. As the academic analogue to
many well-intentioned philanthropists, legal scholars respond to social
problems not with social solutions, but with the bestowal of legal rights.
The work of Hershkoff and Cohen is a good example.
In their daring rejoinder to Young, Hershkoff and Cohen seek to
alleviate the beggar’s condition by arguing that begging is fully protected
speech under the First Amendment. Their larger concern is to engage
political attention and, by making “it impossible for [mainstream listen-
ers] to be oblivious to the poverty in their midst”, place its eradication
firmly on the agenda of social reform. Although their general ambition is
eminently laudable and worth struggling for, Hershkoff and Cohen’s
reliance on rights-talk as a means to that end is ultimately self-defeating.
15 16
Id. at 168. Id. at 156.

beggar y our n eighbo ur 199
The dubious achievement of constitutional recognition for beggars’

rights will likely increase, not reduce, the possibility that “the poor are
spoken of with the kind of dehumanizing imagery that makes it possible
for some to deny their existence and to expiate society from any sense of
responsibility”.17 Indeed, Hershkoff and Cohen beg the very questions
they seek to answer –why are there beggars and how might we abolish
them, expiate society from any real commitment to change, and not
institutionalize beggars?
Hershkoff and Cohen fall victim to the seductive, but flawed and
dangerous rhetoric of rights-talk. Apart from its debilitating indetermi-
nacy, the language of rights portrays and shapes a world which is inimical
to the long-term aspirations of all its citizens, especially les misérables.
Rights-talk’s abstract, universal, and decontextualized depiction of indi-
viduals as moral beings undercuts the have-nots’ demands to be treated
as fully human, and hinders efforts to establish a more egalitarian and
empowering vision of citizenship and civic justice. As such, the appeal
and limits of rights-talk flow from the same sources. At the same time as
it offers the prospect of empowering individuals and rescuing them from
collective tyranny, rights-talk also stifles the possibility of truly progres-
sive social change. It treats people as abstract individuals rather than as
situated citizens whose lives are presently constrained as well as poten-
tially satisfiable within existing socio-economic structures and relational
contexts. Like all ways of seeing and comprehending the world, rights-
talk distorts as much as it illuminates; it tends to shape the world in its
own political image. Within a capitalist democracy, the use of rights-talk
as a categorical mode of political argumentation suffers from two debil-
itating, if mutually reinforcing weaknesses – the ineradicable indetermi-
nacy of rights-talk and the alienating individualistic vision of social life
on which it is premised.
Within the liberal vision of society, people are portrayed as rational
maximizers and self-interested consumers of utilities in the neutral con-
ditions of a market economy. There is no available metewand to make
interpersonal comparisons of utility and thereby generate a plausible
account of the public good. While individuals seek to obtain the max-
imum freedom to pursue their own self-interest, their efforts to do so
require security from the subjective and selfish interference of others
engaged in the same project. The central contradiction and paradox is
that the more freedom with which individuals are allowed to pursue such
17
Herschkoff and Cohen, supra, note 4 at 912 and 915.

200 l e s mi s é rab l es re d ux: l aw an d t h e poo r
ends, the less security they have against the intrusion of others. In short,
individual freedom seems possible only through its collective limitation
and negation: my freedom can be obtained only by curbing your freedom
and your freedom can be obtained only by curbing mine. As an attempt at
mediation, the creation of a political state is posited to replace the
anarchic war of all against all with an ordered world. In order to resolve
the dilemma of order-and-security, the theory of rights is enlisted to
prescribe the extent and manner in which certain freedoms can be
limited in order to maintain sufficient social stability and peace to allow
greater freedom in general.
For such a theory to become operative, rights-talk must be capable of
deriving concrete responses to particular situations from its abstract
statements of principle. The history of liberal political theory and legal
practice provides cogent evidence of its failure to achieve that measure of
operational efficacy.18 Between axiom and application, there always exists
in law the surreptitious exercise of power to convert general rights into
particular results. As such, there is no relief from the heavy burden of
choosing. Rights-talk is more effectively understood as a convenient
screen of institutional propriety behind which competing interests can
be accommodated and behind which the ideological choices required to
effect such an accommodation can be hidden. Rights-talk is one kind of
ideology, not an escape from one. Because of its lack of operational
efficacy, it fails to be a safe methodological haven for advocates and
judges in a dangerously ideological world.
In their crafted commentary, Hershkoff and Cohen give an effective and
cogent demonstration of rights-talk’s disabling indeterminacy. Through a
dexterous and sophisticated use of normative argument and legal doctrine,
they show that “begging is speech that existing first amendment values and
case law protect”, and that it cannot be banned or unduly restricted.19 Of
course, Hershkoff and Cohen resist the temptation to insist that this is the
one and only true reading of the Constitution beyond the cavil of political
expediency. Instead, they recognize the critical imperative to accept that
there are other plausible and opposing interpretations which could also meet
the general criteria of doctrinal fit and normative justification. Rights are a
part of politics, not a precondition or boundary to the legitimate realm of
contested politics. As such, Hershkoff and Cohen’s argument is a compelling
18
See A L L A N C. H U T C H I N S O N , W A I T I N G F O R C O R A F : A C R I T I Q U E O F L A W A N D R I G H T S
(1995) and A N D R E W P E T T E R , T H E P O L I T I C S O F T H E C H A R T E R : T H E I L L U S I V E P R O M I S E
O F C O N S T I T U T I O N A L R I G H T S (2010).
19
Hershkoff and Cohen, supra, note 4 at 910.

do t h e righ t s t hin g? 201
exercise in the progressive project of deviationist doctrinalism – the attempt

to utilize routinized argumentation to transformative effect without falling
into the trap of mistaking the contingently revisable for the revealed truth.20
However, the fact that the courts have not yet been persuaded by a Hershkoff
and Cohen-like brief ought to tip them off to the precarious nature of their
undertaking. It should not only remind them of the conservative judicial
instinct to side with the established order of things, but also alert them to the
ideological orientation of rights-talk which makes it more amenable to some
appropriations and manipulations than to others.
Do the Rights Thing?

The second weakness of rights-talk flows from and reinforces the first.
The predictability of rights-talk and its general political presuppositions
rest upon an impoverished and partial notion of social life. It provides the
institutional ‘means to express a tolerant market morality’.21 As a histor-
ical artefact, it has played a positive role in social struggle and retains
obvious strengths, such as the value of privacy, distrust of bureaucracy,
and worth of rational justification. However, rights-talk overthrew the
divine right of kings, clergy, and aristocracy only to replace it with the
sovereignty of the abstract individual. It depicts individuals as separate
and egoistic, striving for a liberty which is self-regarding and a sociability
which is hollow. As such, it provides an inherently false account of
human community both in its present practice and future possibilities.
Under a regime of rights-talk, society becomes little more than an
aggregate of self-interested individuals who band together to facilitate the
pursuit of their own uncoordinated and independent life projects, which
is nothing more than a relation of strategic convenience and opportu-
nism rather than mutual commitment and support. The very essence of
individual identity is conceived of as an abstraction from its constituent
connections. In this way, relations with other individuals are understood
in terms of limitations rather than as vital contexts within which people
can become fully human. Liberal rights-talk obliges individuals to view
their connection with others and their responsibility for others as a
matter of detachment and voluntary choice. There is almost a wilful refusal
to recognize the extent to which people are socially situated, a failure to
20
See R O B E R T O U N G E R , T H E C R I T I C A L L E G A L S T U D I E S M O V E M E N T 15–22, 88–90
(1986).
21
E D W A R D A N D R E V , S H Y L O C K ’ S R I G H T S : A G R A M M A R O F L O C K I A N C L A I M S 21 (1988).

202 l e s mi s é ra bles re d ux: l aw a nd th e p oor
grasp how people shape and are shaped by their structured relations with
others. The liberal account of self, adrift in society and often a stranger to
itself, fails to grasp the idea and practice of oppression as group-based.
In particular, liberal theory’s insistence on positing individuals as
rational, self-interested, and pre-social ethical beings who share little
more than an abstract humanity manages to treat everyone the same,
while claiming to celebrate the difference and dignity of each. It is as
though everyone is a potential beggar. Even for progressive critics such as
Hershkoff and Cohen, moral autonomy and democratic citizenship
amount to little more than being abandoned to one’s own devices and
being put at the mercy of one’s enabling or disabling social setting. In this
way, rights-talk fails to comprehend that coercion can come in many
different and subtle forms; oppression is neither exhausted by the power
of the purse nor limited to the authority of the state. Within capitalist
society, the category of the ‘abstract individual’ becomes very classist in
substance and orientation: rights-talk provides itself with little scope
within which to recognize material deprivation and the resulting social
oppression as the socio-cultural norm. Rights-talk posits an almost
libertarian vision of the morally autonomous being as one committed
to robust self-reliance and fierce competitiveness; the spectre of the
‘hardworking citizen’ is always in mind.
An important corollary of this informing vision of social well-being is
the understanding that it is possible for beggars to alleviate their own
suffering. Empowered by a suitable set of rights and fired with an earnest
sense of disciplined industry, this deliverance is achievable without the
rest of society having to change or sacrifice anything. Although peddled
as a practically viable and eminently desirable ambition, it is really a
highly objectionable and socially disingenuous vision of almost dysto-
pian dimensions. Again, it places the burden on the already disadvan-
taged and relieves the presently advantaged from doing much at all.
Furthermore, it perpetuates the pretence that the existing economic
order is only a neutral backdrop against which bargaining, exchange,
and the accumulation of private property occur, but which itself has little
impact on the nature and effects of such transactions. This, of course, is a
canard. Detaching form from substance, liberalism compresses life into
constricting forms and turns questions of power into a discourse of
power.22
22
See Glasbeek and Mandel, The Legalization of Politics in Advanced Capitalism: The
Canadian Charter of Rights and Freedoms, 2 84 (1984).

do th e rig ht s t h ing ? 203
A central claim Hershkoff and Cohen make in support of a right to

beg is that it can foster a sense of social solidarity and mutual respon-
sibility which is essential for the establishment of a truly communal
society: “the beggar implicitly proposes the communitarian vision in
which citizens have a responsibility for each other’s survival”. As
speech which engages, begging “has the ability to create social bonds
between speaker and listener”. While the recognition of the need for
solidarity is crucial, Hershkoff and Cohen’s proposal is the very nega-
tion of a truly egalitarian community. The relational engagement
between beggar and listener is based on the most egregious imbalance
of power. It does not cultivate a ‘bond of empathy’, but perpetuates a
one-sided and hierarchical relation of dependence.23 It arises in a plea
of supplication and is consummated in an act of pity. As Hugo notes, it
is “a squalid bargain: a human soul for a hunk of bread. Poverty offers
and society accepts” (180).
Rather than bridging the gulf in power between rich and poor,
efforts to legitimate beggars’ rights pretend that the gap can be bridged
by the most impersonal and patronizing of charitable gestures. By
granting formal status to the unfortunate beggar, Hershkoff and
Cohen mistake the aristocratic affectation of noblesse oblige for the
truly democratic spirit of communal welfare. It allows the haves to
salve their troubled conscience by a conspicuous display of private
charity to the have-nots. It is surely a cruel conceit to suggest that in
this way beggars serve an important social function “in permitting
others to discharge their religious obligation to give charity”.24 To
rhapsodize the beggar in such terms is almost tantamount to asking
victims of a vicious assault to feel comforted by the fact they have
acted splendidly by allowing psychopaths to gratify their anti-social
behaviour. Surely this is the worst form of rationalization and one
which does little credit to either victim or perpetrator; it is dehuma-
nizing and demeaning. Moreover, in the mutually supportive relation-
ship which is supposed to comprise begging, Hershkoff and Cohen’s
fixing of moral and cultural stigma on the listener is perversely mis-
ascribed: “the soul in darkness sins, but the real sinner is he who
caused the darkness” (30).
23
Hershkoff and Cohen, supra, note 4 at 902, 910, and 914.
24
Id. at 900 n. 18. They compound this difficulty by arguing that “the beggar nonetheless
feels himself at an advantage, because the more fortunate need him as an object of
charity”. Id. This is surely a perverse inversion of the moral hierarchy.

204 l e s mi s é ra bles re d ux: l aw an d th e po or
From Private to Public

Hugo would have had the measure of such intellectual charity and
naïveté. In a hard-hitting scene, he demonstrates the sublimated anger
beggars feel towards their benefactors. The vile Thenardier is masquer-
ading as a pitiable Fabantou, a dramatic artist fallen on hard times. At a
fateful meeting, he is visited by the philanthropic Monsieur Leblanc; he is
none other than the elusive Jean Valjean. Although Thenardier is a
conniving and thoroughly bad lot, his thoughts on the self-righteousness
of the charitable rich are pertinently tart. He understands full well that
philanthropy is not what the dispossessed want, but what they despise:
Oh, God, how I hate them! I’d like to strangle the lot of ‘em, the rich, the
so-called charitable rich, living in clover and going to Mass, and dishing
out sops and pious sentiments. They think they’re our lords and masters
and they come and patronize us and bring us their cast-off clothes and a
few scraps to eat. Bastards! That isn’t what I want. Money’s what I want,
and money’s what they never give us. They say we’ll just spend it on drink,
and that we’re all sots and loafers. And what about them? Where did they
spring from for God’s sake? Thieves, that’s what they were, otherwise
they’d never have got rich. I’d like to take the whole blasted works and
stand it on its head. Perhaps everything would get smashed up, but at least
it would mean that everybody would be in the same boat and we’d be that
much to the good.
(647–48)
On the issue of begging, contemporary America finds its Monsieur Leblanc

in the scholarly guises of Hershkoff and Cohen. By institutionalizing and
legitimating the position of ‘beggar’, they do les misérables the considerable
disservice of entrenching the fact of poverty rather than working to
eradicate it. The most begging does is to provoke charity, often generous,
but it in no way changes the general situation which permits and often
condones the poverty which begets the beggar. These destitute souls beg
not for alms, but for an end to their plight as helpless hostages to capitalist
fortune. It is public transformation they seek, not private charity.
Like most rights in the liberal vocabulary, the right to beg is formal and
not substantive. Admittedly, begging helps to counteract the view that
“poverty in America is either non-existent or insignificant” and “makes it
impossible for [mainstream listeners] to be oblivious to the poverty in
their midst”.25 But it fails to generate any substantive response by way of a
corollary right or otherwise. As a kind of speech, it is fully satisfied by
25
Id. at 898 and 912.

t he p rog re s s i v e a ge n d a 205
permitting individuals to give voice to their complaints, but without any

obligation on listeners to make any substantive response to those pleas. It
depicts a just society as one in which the achievement of moral autonomy
can be affected without concern for serious economic equality. Indeed,
taking seriously the idea of a right to beg confirms that, in contemporary
society, property remains the measure of all things. Without property,
beggars are barely people: they are almost nothing, because they own
almost nothing. Echoing the sentiments of the nineteenth-century indus-
trial elite, the vast majority continues to believe that all human beings
have a real existence only if they make money or help to make it.26
It is crass to talk of a person’s self-realization in circumstances in which
“she is destitute and needs help”.27 To speak in such terms is to fall victim
to the idealist temptation to treat freedom as a purely metaphysical state
of mind; people can be free even in the direst of material conditions,
provided that they have the liberty to think and speak for themselves. It is
a pretence of the privileged to talk of agency in such circumstances. Even
most liberal theorists, like John Rawls, concede that to talk of ‘moral
agency’ in conditions of abject poverty is nonsensical.28 The destructive
effects of such abstract analysis are the philosophical kissing-cousin of
rights-talk in the dysfunctional family of liberalism. Such political theo-
rizing commits a grievous form of intellectual harm which gives fraudu-
lent legitimacy to the content and consequences of contemporary living.
The Progressive Agenda

Progressive and non-progressive critics have failed to show that the per-
formance of the courts in fulfilling their political responsibilities has met
the exacting standards of constitutional legitimacy and justice. It cannot
claim to be a purely objective exercise in legal justification, to supply the
necessary level of operational determinacy, or to result consistently in
progressive contributions to political life. Indeed, as the institution of
judicial review in North America has over three centuries of history on
the record, evidence mounts and supports a sceptical view of the courts’
inherent incapacity to enhance or reconstruct the democratic quality of the
American polity. Benignly misguided or more sinisterly intended, the
performance of the judges has been largely conservative. There is little
26
See F R E D E R I C K E N G E L S , T H E C O N D I T I O N O F T H E W O R K I N G C L A S S IN E N G L A N D 311
(W. O. Henderson and W. H. Chaloner eds. and trans., 1958).
27
Herschkoff and Cohen, supra, note 4 at 903.
28
J O H N R A W L S , A T H E O R Y O F J U S T I C E (1971).

206 l e s mi s é ra bles re d ux: l aw an d th e po or
evidence to support a more optimistic prognosis. Yet, rather than dwell on

these failings and indulge in a cynical smugness, I recognize that there is
some obligation to be a little more constructive. This can be achieved by
concentrating on the political ambitions which unite the academic com-
batants rather than on the intellectual affiliations which divide them. As
Rome burns, it does little credit to anyone to stand idly by and take comfort
in pointing out that the city’s firefighters are using oil in the mistaken belief
that it is water.
Accordingly, progressive scholars must look for better and different
ways to empower disadvantaged groups and to improve litigation of
constitutional rights. In criticizing the political wisdom of striving to
establish a right to beg, I have suggested that the pressing issue is not
whether such a right can be doctrinally justified. Instead, the focus should
be on why such efforts are warranted and what practical effect the
recognition of such a right will have on the larger progressive struggle
to replace the capitalist economy. As such, I want to propose a more
compelling account of moral self-realization and a more constructive
route to political enlightenment, one which better appreciates and incor-
porates the politically situated and socially oriented relational character
of democratic governance. In effecting such a proposal, two steps must be
taken – raise the critical consciousness of lawyers by disabusing them of
their ingrained habit of resorting to the courts as the transformative
forum of choice and develop a posture of ‘strategic scepticism’ towards
the efficacy of even limited use of litigation in the struggle for social
justice.
Those committed to serious social change must not forget that what is
important is not the effect of a particular piece of constitutional litigation,
but the very existence of the whole adjudicative process as a privileged
mode of social action. In short, constitutional litigation and adjudication
are special social activities which do not so much cause or change, but
comprise and are constitutive of extant social conditions. As such, it is
dangerously naïve and overly romantic to contend that court-enforced
rights can, will, or should be the preferred medium for the social activist.
The language of the law often has been and continues to be the language
of the poor’s misery. While, as a practical and instrumental matter, it is
difficult to challenge subordination within and through the very institu-
tions which subordinate people, there is also the political and ideological
grip which judicial discourse places on its participants. As I have tried to
demonstrate in deconstructing the rhetoric of poverty, the law presents
and posits a reality which is partial in its values and meanings. As Robert

t he p rog re s s i v e age n d a 207
Gordon puts it, “the legal forms we use set limits on what we can imagine
as practical outcomes”.29
Throughout Les Misérables, law is one of the powerful and dark forces
which holds in place the social conditions which amount to a living hell
for many. In the enormous struggle between good and evil, law stands as
the manifestation and might of the established order. The personnel of
the law are reviled, not revered. Indeed, Marius turns away from his
chosen career of advocate because “the thought of consorting with
attorneys, hanging about the courts, chasing after briefs, was odious to
him” (591). For Hugo, the court is a place to be avoided and lawyers are
people to be chastised:
The sight of these groups of black-robed gentlemen murmuring together
on the threshold of a court of law is always a chilling one. Little charity or
compassion emerges from their talk, which is principally concerned with
guessing which way the verdict will go. They are like clusters of buzzing
insects absorbed in the construction of dark edifices of their own.
(240)
This general sentiment of ill-will to law and lawyers festers throughout

the novel, but erupts and is given full vent in several crucial incidents. By
way of setting the theme and tone of the book, Hugo begins with the cruel
tale of Jean Valjean’s imprisonment. At 24, orphaned, impoverished, and
supporting his widowed sister’s family of seven, he is found guilty of
stealing a loaf of bread and sentenced to five years of hard labour.
Valjean’s fate is used to epitomize the terrible cruelty of the law which
“decrees the wrecking of a human life . . . and consigns a sentient being to
irrevocable abandonment” (93). Like Jean Valjean, Young and Walley
were ground between the millstones of social neglect and legal attention:
their crime was more society’s than their own. While their punishment
was less ferocious and outrageous than Jean Valjean’s, Young and Walley
are entitled to be equally outraged at the imbalance between the wrong
allegedly done by them and the wrong inflicted upon them by the law. For
all three, law is the object of their outrage and a cause of their misery.
Society had concerned itself with them only to castigate them further. To
the pain caused by the indifference of social conscience was added the
indignity brought about by the solemnity of legal sanction:
Was he the only one at fault in this fateful business? Was it not a serious
matter that a man willing to work should have been without work and
29
Robert W. Gordon, Critical Legal Histories, 36 S T A N . L . R E V . 57, 111 (1984).

208 l e s mi s é ra bles re d ux: l aw a nd th e po or
without food? . . . Was not the law more at fault in the penalty it inflicted
than he had been in the crime that he committed? Had not the scales of
justice been over-weighted on the side of expiation? And did not this
weighting of the scales, far from effacing the crime, produce a quite
different result, namely, a reversal of the situation, substituting for the
original crime the crime of oppression, making the criminal a victim and
the law his debtor, transferring justice to the side of him who had offended
against it? . . . Was it not monstrous that society should treat in this
fashion precisely those least favored in the distribution of wealth, which
is a matter of chance, and therefore those most needing indulgence?
(96–97)
Nevertheless, while it is crucial not to exaggerate the contributions of the

court, it is equally important not to overstate the democratic qualities of
representative institutions or to deny entirely the possibility that legal
forums could contribute to transformative struggle. Lawyers are not
always and only the lackeys for elite interest. As the pervasive conversa-
tional idiom of modern society, it is difficult not to participate in the
stylized conversation of rights-talk in any attempt to challenge existing
arrangements and to improve the lot of ordinary people. But to join that
conversation imposes a great risk of being co-opted and becoming
vulnerable to takeover. Nevertheless, the fear of co-option must not
lead to paralysis. It is neither impossible nor imprudent to adopt the
use of traditional rights litigation as a limited strategy in the radical
practice of law: the categorical denial of rights-talk is almost as bad as
its categorical embrace. Between addiction and abstinence lies the con-
siderable expanse of mindful moderation.
In efforts to transform law and society, a sensitivity to the contingent
possibilities of any particular moment in social history is important. A
close attention to contextual detail is vital. In particular historical
conditions and social circumstances, rights-talk might not be entirely
without utility. However, its use must be informed, guarded, and clear-
headed; there is no room for romantic attachment. It must be used with
a caution which comes with the realization that it can as easily harm as
do the bidding of its user. Ultimately, any gain through litigation will
run the risk of lending popular credence to the legal system as a
legitimate arena for successful transformative activism. To engender
respect for any rights gained and to ensure their effective enforcement,
it will be necessary to instil a general reverence for the courts as a whole.
While such a strategy might allow small advances to be made, it will
actually defer and inhibit the kind of profound changes necessary for

t ak i n g t hei r l eave 209
truly progressive transformation: minor improvements are the obstacles,

not the precursors to major innovation.
For instance, when talking of small skirmishes and minor revolts,
Hugo contrasts this to large-scale insurrections. He suggests that such
acts may inspire “those it lays hold of with extraordinary and mysterious
powers, raising everyman to the level of events” (884). Such restrained
uprisings may serve best the interests of those in power:
In principle any revolt strengthens the government it fails to overthrow. It
tests the reliability of the army, unites the bourgeoisie, flexes the muscles
of the police, and demonstrates the strength of the social framework. It is
an exercise, almost a course of treatment. Power feels revived after a
revolt.
(884)
Moreover, small victories carry their own considerable price tag. Being
abstract and potentially universalistic, rights-talk has no necessary poli-
tical content and application: it can be ambushed and held hostage by
non-progressive lawyers and turned to the advantage of their own (pri-
vileged) clientele. Mindful that established interests have greater access to
courts and greater normative rapport with judges, the likelihood of
systemic defeat being snatched from the jaws of a rights victory is not
small. As Young itself clearly shows, not only have corporations been able
to reap considerable substantive protection, they have also managed to
manipulate the rhetorical agenda so that their interests receive primary
doctrinal consideration. The courts act cautiously when corporate con-
cerns are implicated. How else is it possible to understand a judicial
mind-set which fails to see the conceptual connection between corporate
advertising and charitable solicitations such that the former receives
constitutional protection and the latter does not?30 Accordingly, to direct
the have-nots to the courts as a matter of course is, in a pertinent manner
of speaking, to throw good money after bad.
Taking Their Leave

In one of the great characterizations of literature, Hugo creates Inspector
Javert, the archetypical embodiment of law. He is the incarnation of
unbending legalism and the symbol of righteous rectitude. With a ‘vul-
ture gaze’ and leading ‘a life of unswerving duty’, he is “a man with a
30
See supra, ch. 5.

profound instinct for correctitude, regularity, and probity, and with a

consuming hatred for the vagabond order to which he himself belonged”
(169, 166, and 165). In short, “law and order, morality, government, the
whole of society, were personified in him” (188). Like an indignant
bloodhound, he tracks Jean Valjean throughout his life. Their episodic
encounters represent the clash between the popular pressures for social
change and the established forces of authoritarian order. But, in the
melodramatic denouement to their titanic engagements, Javert is caught
in the throes of indecision. His life saved by Jean Valjean, he is con-
fronted by an irresolvable choice between the unfamiliar promptings of
his conscience to let Jean Valjean go free and the lifelong dictates of his
social duty to apprehend a convicted felon. Racked by the anguish of
uncertainty and like “an owl required to see with eagle’s eyes” (1106), he
is forced to admit that “there may be error in dogma, that society is not
perfect . . . that judges are men and even the law may do wrong” (1107).
Tormented and contrite, he takes his own life.
Perhaps, like Javert, judges must retire from the social scene if justice is
to prevail. Yet, even when faced with their own complicity in les
misérables’ wretchedness, it is unlikely that courts and lawyers will effect
such a noble or final retreat. Chastised by critics for its rigidity, the law
has learned to bend more and to cope better with contradiction.
Formalism has proved to have unexpectedly durable and adaptable
qualities. Indeed, the rhetorical life of contemporary law may be the
intense experience of its own contradictory logic. Paradoxically, the
best way to push courts and litigators out of the social action is for
political activists and progressive lawyers to pull themselves away.
Without constitutional litigation to invigorate it, the judicial process
might wither away as the leading institutional organ for social policy-
making. As a matter of contingent wisdom, it is a definite case of less
being more.
Like everything else, the problem with poverty is that its abasements
become bearable to its wretched victims and that it is accepted as
inevitable by those who perpetuate its condition. Although legal activists,
like Hershkoff and Cohen, might castigate the judges in Young and
mainstream society for perpetuating a phantom normalcy in which the
problems of les misérables are diminished and dismissed, they manage to
perpetuate that condition. By allowing beggars the constitutional privi-
lege to “speak to the broader society about the pain of being poor”,31 they
31
Hershkoff and Cohen, supra, note 4 at 912.

t a k i n g t he i r l ea v e 211
give formal recognition to the poor as natural residents of contemporary

American society. This moves people to anguish, but not to action. It is
not formal status or rights which they crave or which we should wish to
bestow. Rights only work for those who are already privileged. To others,
they are a travesty of justice. Change, not its promise, is needed. Neither
patronizing nor romanticizing les misérables, the ambition must be to
embrace everyone with the arms of a society which truly cares for the
plight of all.
The key issues for those devoted to improving the lot of les misérables
are to determine what substantive changes will best achieve that objec-
tive, how those measures can best be implemented, and which institu-
tions can best carry out that agenda. The details and priorities of
progressive politics must be the continuing subject of healthy debate
and respectful disagreement. There is no place for an enforced orthodoxy
or rigid conformity because “a just society is not a society that has
adopted just laws, once and for all, rather it is a society where the question
of justice remains constantly open”.32 While there must be a willingness
to utilize diverse strategies to effect progressive change and to resort to a
variety of institutional sites, such tactical calculations need to be sensitive
to the prevailing realities of social power and economic ordering. The
history of social struggle strongly suggests that the courts are not insti-
tutionally or ideologically congenial to such efforts. The prospect of
significant social change through litigation is, as Judge Jackson aptly
put it, “a teasing illusion like a munificent bequest in a pauper’s will”.33
It is not enough to invite beggars to the bourgeois banquet so that they
can, at least once, experience the good life. This not only demeans the
guests and makes the hosts feel undeservedly beneficent, but it works as
an almost celebratory occasion for the-way-things-are. To paraphrase
Karl Marx, the beggar is not freed from the tyranny of private property,
but receives the dubious freedom to beg for it.34 Not only does a right to
beg not change the underlying structure of private property and its
unequal distribution, but also it places that very structure of capital
accumulation outside the activist agenda of transformative possibilities.
Any non-liberal vision of social justice must understand and be prepared
to alter fundamentally the structural conditions which entrench the
misery and humiliation which is the enduring lot of the pathetic
32
Cornelius Castoriadis, Socialism and Autonomous Society, 43 T E L O S 91 at 104 (1980).
33
Edwards v. California, 314 U.S. 160, 186 (1941).
34
See Karl Marx and Frederick Engels, On the Jewish Question (1843), in 3 C O L L E C T E D
W O R K S 146, 164 (1975).

212 les misér a b l e s r edux : l aw and the p oor
panhandler. A progressive campaign for moral self-realization and poli-

tical enlightenment must address these deep sources of institutional
injustice which frame and valorize the lives of rich and poor alike.
Conclusion
It is a profound error to talk about poverty without also talking about
wealth. There should be no talk about food banks without talk about
investment banking; no talk about empty plates without talk about food
mountains; no talk about the working poor without talk about the idle
rich; and no talk about the homeless without talk about the property
speculator. If poverty has a moral or immoral dimension, it will not be
found in the habits and characteristics of the poor and homeless, but in
the routines and rationalizations of the rich and propertied. Moreover,
those who are presently privileged and committed to eradicating poverty
must not be content to speak for and on behalf of les misérables. They
must have a place of their own from which to speak and nurture a voice of
their own in which to speak. Beggars are saved only when they no longer
exist. Their salvation demands nothing less than that their suffering
become ours too. And still we ask – “who is to blame?” (640).

12
It’s Too Late to Stop Now: Law, Life, and

Teaching
“Well, I get up in the morning and I get my brief.

I go out and stare at the world in complete disbelief.
It’s not righteous indignation that makes me complain:
It’s the fact that I always have to explain.”
– Van Morrison
As corny as it may be, the music of Van Morrison has been the sound-
track to my life. I first discovered him in the mid-1970s. Since then, I have
become an unapologetic and unembarrassed ‘Van-atic’. I have spent
countless hours listening to and living with the words and music of the
‘Celtic Cowboy’, now Sir George Ivan Morrison O.B.E. He has given me
untold pleasure. I am not at all religious or particularly spiritual, but I can
attest that listening to some of Van’s compositions – And the Healing Has
Begun, All in the Game, and Summertime in England – is the closest I am
likely to get to an epiphanic experience. As such, Van’s work has been a
wonderful and incomparable leitmotif which has threaded together and
enriched both my professional and personal life; it explains much about
me and inspires even more in me. And, of course, I wrote this book
mostly listening to Van.
This final chapter was finished while listening to (and draws its title
from) a classic and recently reissued live album of Van’s from his 1973
three-month tour with the Caledonia Soul Orchestra. It captures a live
and spontaneous performer at the top of his game. After an extended and
uplifting back-and-forth between Van and the audience, he closes the
concerts with the shout that “it’s too late to stop now”. This enigmatic
phrase, especially at the end of the shows, says much about him and what
drives him. As I hear it in his broad Belfast brogue, it is about never
finding the perfect account or maintaining that you have all the answers;
there is always another concert (or another class) to say more and do
more. This sense of striving and restlessness is what keeps him (and me)
213

214 it ’ s t oo late to stop now: law, life, a nd teaching
coming back for more. It is the optimistic belief that, maybe next time, we
can get it right, even though we know deep down that we never will. In an
important sense, it will always be the case that there is nothing else to do
other than keep moving and, hopefully, keep moving forward. As Van
roars, “it’s too late to stop now”.
It is dangerous to dissect too closely the things which give you
pleasure. It is the music, not the man, which is the measure of his
gifts and greatness. This may all come across as too juvenile and
sycophantic by far for a person of my supposed critical sensibilities.
Doesn’t this all smack of the very kind of idol worship I have been at
pains to debunk for most of my writing career? Doesn’t my devotion
to Van seem much the same as that of the academic judge lovers? In
many ways, it does. I have little to offer by way of intellectual defence
to those who see my Van obsession as reminiscent of those who idolize
judges as participants in law’s rational and reasoned process of great
importance and worth. I might well be seen as someone who, at best,
exhibits shallow infatuation and, at worst, an uncritical admiration.
But, little as it is, I do have something to offer in my defence – I do not
foist my Van preoccupation on others nor do I pretend that I am
engaged in something objective, truthful, or transcendent. I like Van; it
is as simple as that. He brings out the best in me and lights up the day.
If others are walking on the dark side of the street, as he sings, he
keeps me on ‘the bright side of the road’. That said, I realize that, apart
from the sheer delight of his music, what I most like about him is the
way his performances reflect the kind of approach which underlies this
book and my academic career and which is celebrated by them.
Singing a Stand
It is a mark of his self-confidence that Van refuses to be pigeon-holed as
any one kind of musician/artist. Indeed, the great hallmark of his music is
that he draws upon and mines different musical genres and sources. Not
only does he make them stick together, but he also turns the resulting
product into something distinctly his own. As such, his work in the
studio and especially on the road embodies the passionately ludic attitude
which plays with, as it plays within, different musical genres and motifs.
He is not afraid to go his own way and ‘to take it where he finds it’.
Indeed, at times, he seems almost hell-bent on doing so for its own sake.
Always searching, but never finding, he suggests the productive rest-
lessness and risk-taking which is a trademark of the great player; he does

singing a stand 215
not let the fear of failure prevent him from striving for the fleeting and
elusive glory of success. That is a worthy aspiration for any legal scholar
or law teacher.
I share much with Van by way of background. He was an only child
growing up in a working-class family on a street of terraced houses in an
industrial city in mid-century: he was not to the manor born. Nor was
there anything in his background which suggested he would go on to do
the things he did. But there the biographical similarity ends; there are
large differences between us. Van is an irascible old leopard. Recently
knighted, he shows no sign of changing his spots: he is still maddeningly
evasive and contradictory. One minute, he is jovial and generous to a
fault; the next minute, he is glum and paranoid in believing that the world
is out to get him. I trust that I am not that kind of person: life has been
good to me and I am grateful for what I have. He has an irrepressible
sense of nostalgia and I do not at all. His relationship with God and
organized religion is emblematic of his compulsive and conflicted nature;
mine is not (because I have none). And, most importantly, he became a
musical superstar and I became a journeyman legal academic.
Nevertheless, there is much I can identify with as both scholar and
teacher in his beginnings and his special talents as singer, songwriter,
and social observer.
Morrison was the son of an introverted, but blues-loving dockyard
father and an evangelical mother of fine voice. These influences on the
direction of his music and the arc of his career are indisputable.1 He drew
on them and brought them together in unique and winning ways. To the
exasperation of many, Morrison is determined to hide himself from
himself, let alone from others. Rarely talking to journalists or would-be
biographers, he seems intent, when he does, on misleading and revising
the past. Janet Planet, his early muse and long-suffering ex-wife, called
him ‘a prickly bear’. But this is surely understatement. He is more like
Churchill’s Russian Bear (and looks more like it these days – short,
1
There is a lot written about Van Morrison as man and musician; most of it is unimpressive
and oscillates between hagiography and hatchet job. The most serious study is C L I N T O N
H E Y L I N , C A N Y O U F E E L T H E S I L E N C E ? : V A N M O R R I S O N (2002). Heylin does a solid job;
he travels well the Belfast streets, the American retreats, the spiritual English hideaways,
and the concert halls. While he goes beyond the typical chronological cataloguing of
albums and recording sessions, he does not stray far enough. He tends to let the plot get
lost in the details of recording, drinking, tantrums, and soul-searching. He is exhaustive, if
occasionally exhausting. Unfortunately, he never really penetrates the puzzling persona
Morrison projects around himself. In Heylin’s portrayal, Morrison remains as much
caricature as character.

216 it ’ s t oo late to stop no w: law, life, a nd teaching
stocky, and surly). He is the proverbial riddle wrapped in a mystery inside

an enigma. Indeed, any attempt to offer a meaningful, let alone definitive
explanation of ‘the real Van Morrison’ will fail unless the idea of him as a
conundrum is front and centre. Morrison is a complex web of contra-
dictions and he needs to be understood as such. Despite his obsessive
denials, Morrison’s music is his life or, more accurately, his effort to work
through his life. His Why Must I Always Explain? says it all. One moment
he is howling that “it’s just a job you know” and another he is lamenting
that he has “Bared my soul to the crowd/But, oh what the cost.” He is a
man in torment and it is that which gives him (and his listeners) those
spectacular highs and lows.
As clichéd as it is, Morrison’s searching journey is his destination and,
if he could accept it, his fate. At its best, this modern troubadour’s music
gives magical expression to ‘the inarticulate speech of the heart’. As much
as he can be a pain and a blight as a human being (although he seems to
hold no particular prejudices, disliking most people equally), he is a voice
and soul for the ages. Stretching over almost 50 years and more than 35
albums, not including bootlegs, his career has established a body of work
which is truly remarkable. Now, at 71, Morrison has almost certainly
delivered his best. Traversing the contemporary music spectrum of rock
to jazz to blues to skiffle to gospel to folk and back again, Morrison pulls it
all together with his own distinctive imprimatur. He is nothing if not his
own man, often perversely so.
But Morrison has been ill-served by his vocation. In the precious
and punishing world of celebrity music, his natural wariness has run
to paranoia, his innate melancholy to clinical and alcohol-fuelled
depression, and his contradictory personality to schizophrenic pro-
portions. As gifted as disturbed, he appears to be as much Van the
Grouch as Van the Man (or both, of course). Although I disagree with
much that he says and is, there are several aspects of him and his
work which I admire and seek to emulate – he is his own man and
marches to the beat of his own drum; he ‘takes it where he finds it’
and is not interested in being a purist or an orthodox; he refuses to
play by the given rules and defies easy categorization; he experiments
with different approaches and is not afraid to fail; he is self-con-
sciously aware of his background, but not beholden to it; he is a mass
of contradictions, but he embraces them; and he calls life as he
critically sees it, but does not deny that it might have a redemptive
quality. This may well be a roseate view of Van Morrison (and of my

still d welling on the threshold? 217
academic career, for that matter), but it is one I choose to adopt. If

others do not see it that way, then I am okay with that.
Still Dwelling on the Threshold?

At the considerable risk of being too self-indulgent and demonstrating an
inflated sense of my own jurisprudential significance, I want to suggest
that my work and my teaching strive to exhibit many of the distinguish-
ing characteristics I see in Van Morrison’s oeuvre. They play out differ-
ently and with different consequences, but they inform my approach to
law and thinking about law in its many dimensions and performances.
There may be some career-long continuity to my work from its earliest
efforts to its most recent manifestations, but I am not so sure.
Nevertheless, along the way, I do believe that I have developed a certain
‘angle of vision’, as Carr might put it,2 and acquired a certain style of
critique. So, as self-serving as it may be, I want to draw out those features
of my work which are Van-like in their derivation and drift. In short, I
suppose that I have always been and situated myself as a ‘dweller on the
threshold’ which stands with one foot in and one foot out of the (legal and
academic) establishment.3 This is a precarious and, some might say,
compromised position bound to result in more than its fair share of
pitfalls and pratfalls. I am considered too critical by the vested insiders
and not critical enough by the disaffected outsiders. I treat that as an
unavoidable occupational hazard.
Although often attributed to the enigmatic Marshall McLuhan, it has
become an almost trite insight to suggest that “you need the current to be
flowing against you if you want to steer straight”. This sums up the tone, if
not the substance of my approach to understanding law and the role of
lawyers. The main ambition of my scholarly contribution has been to
challenge the elitism which tends to pervade the legal community and to
do so in the name of a more democratic vision of law and politics. Over my
career, I think that my scholarly work has developed from a relatively
crude assault upon traditional analytical and formalistic jurisprudence to,
hopefully, a much more sophisticated and original approach to the relation
between legal doctrine and politics. Drawing upon a wide and eclectic
range of intellectual sources, I have constructed a mode of ‘critical
2
See supra, ch. 1.
3
See A L L A N C . H U T C H I N S O N , D W E L L I N G O N T H E T H R E S H O L D : C R I T I C A L E S S A Y S ON
M O D E R N L E G A L T H O U G H T (1988). This, of course, was titled after a Van song.

218 it ’ s t oo late to stop now: law, life, and teaching
pragmatism’ which melds together high European critical theory, pene-

trating legal realist analysis, and a more engaged British democratic
socialism.
Whether inquiring into judicial decision-making or legal ethics, whether
exploring the relevance of hermeneutical or economic approaches to law,
or whether unearthing the plight of accident victims or the doings of
corporate nabobs, I have come to rely on a cluster of basic tenets about
how law functions.
• Law is an activity, not a thing. Law is something people do or have

done to them; it is not a lifeless lump of rules to be learned or which is
left over from more active endeavours. To be a lawyer is to participate
in an activity, albeit largely rhetorical in nature: it demands a vigorous
and affirmative sense of engagement.
• Law is not about logic, but experience. Law is not only a rational
exercise separate from the world. As a social activity, it is closely tied to
the interests of those it serves and to the historical forces at work in
society. In order to understand fully law’s operation, a deep under-
standing of law’s experiential context is required.
• Law is an art, not a science. Rather than try to grasp the workings of
law as a set of formulaic rules to be applied passively to a recalcitrant
reality, it is vital to appreciate that lawyers have creative opportunities
and responsibilities to develop and nurture a more humane and non-
technical sense of justice through law. The skills of the lawyer are
interpretive and affirming.
• Law is organic, not static. In order to understand law, it is neces-
sary to explore its pluralistic and historical dimensions so that the
ever-changing quality of law and its legal techniques can be better
learned. Like the society of which it is part, law evolves and
changes in better and worse ways to accommodate itself to the
demands of that society.
• Law is about substance, not form. The best lawyers are not those who
simply reproduce mechanically old arguments and trite analogies, but
those who can rework legal materials in an imaginative and stylish way.
Such legal artistry demands more than technical proficiency. To be
worthy of their professional prestige, lawyers must nurture a sense of
social justice and a feel for a political vision.
• Law is political, not philosophical. Law and lawyering are not only
about the acquisition of a sophisticated set of norms and argumenta-
tive techniques. Law is less about philosophical reflection (although it

going live 219
is that as well) and more about the political and ideological values
which inform law and its thought processes. Lawyers must inevitably
get their hands dirty if they are to fulfil their social duties.
• Law is contradictory, not coherent. The effort to understand law as a
structured and coherent set of norms is mistaken. Like the society and
persons it is intended to serve, it is a site of struggle, conflicts, and even
contradictions. The challenge for the lawyer and jurist is to understand
the clashing dynamics of law’s origins and effects, not to imagine it as
an integrated whole.
Taken together, these ideas and commitments offer lines of approach;
they amount less to a philosophy, but more to a critical sensibility in
handling certain material and institutional practices. They are on display
in almost all chapters of this book. While one or two may be in the
immediate forefront on one occasion, the others are in close attendance
and in the lead on another occasion. Consequently, one of the challenges
I face in holding to such views is how to translate and incorporate them
into my teaching – how do I bring together the scholar and the
instructor?
Going Live
While it seems a little grandiose and wrong-headed to talk about having a
‘teaching philosophy’, I believe that I have been fairly consistent in my
approach to fulfilling my teaching responsibilities. My primary ambition
has been one of ‘critical engagement’ – to challenge students and to
engage them in a continuing dialogue about the role of law in society,
the basic skills of lawyering, and their own commitments to law and
lawyering. As well as teaching students about the basic rules and sub-
stance of the legal system, my overriding goal has been to oblige students
to ask (and continue to ask) difficult questions about the nature of the
enterprise in which they are involved and to take nothing on face value.
As individuals and members of a very privileged and powerful group in
society, lawyers have a responsibility not to take for granted the basic
structure of the society in which they live and work and to which they
contribute and create. In the pithy words of the realist Karl Llewellyn,
“technique without ideals is a menace; ideals without technique are a
mess”.4 A bare legal craft can too easily acquire the elite habits of a
4
Karl Llewellyn, The Adventures of Rollo, 3 UN I V . OF CHICAGO LAW SCHOOL RECORD 3
(1952).

220 it ’s too late to stop now: law, life, and teaching
Masonic order and fail to meet the civic specifications of its social calling:
a job well done is not always its own reward.
That said, I think that there are three general objectives to my teaching
philosophy:
• to illuminate – The first priority is to explain the law’s content and
workings as well as introduce students to law’s institutions, personnel,
and operative tools. Without a basic understanding of law’s key con-
cepts, norms, techniques, and ideals, students will be ill-prepared to
make any serious contribution and/or fulfil the essential duties of
lawyering. Consequently, I work to shed light on what often appear
to students to be a befuddling array of dense arcanities and pervasive
mysteries which comprise the legal process. In this sense, instruction
has to be clear, revealing, and reassuring.
• to challenge – Because law school is a profoundly political experience, it
restructures and reorients students’ whole perception and understand-
ing of social life. However, like some of the most decisive events in
people’s lives, it makes its impression unconsciously. Consequently,
once the basic workings of the law have been understood, it is vital to
bring to the surface and challenge some of those underlying structures,
assumptions, and values which animate the law and to instil in students
a certain sense of role and vocation – this is a deconstructive task. The
main objective is not to inculcate students with a particular critique of
law, but to encourage them to develop their own stance, one which is not
entirely unquestioning and beholden to the status quo. While law school
is a great feast, many students fail to appreciate that, if they are not
careful, they become as much the dinners as the diners.
• to inspire – Although this may appear to be a rather grandiose ambi-
tion, I seek to excite students about their chosen career path. I try to
motivate them to become the lawyers they can be rather than the
lawyers the legal process and legal community too often asks them to
be. I try to offer them the means and values to secure an alternative way
to do law and be lawyers. As such, I work to dispel students of the idea
that the flaws and failings of the law are not of lawyers’ doing – that ‘all
is for the best’. In contrast, I urge students not to abdicate their social
obligations, but to assume a greater responsibility for the world around
them. To be a lawyer is to be a political activist. So I strive to ensure that
students know what they are being active about and on whose behalf.
For instance, in my tort law course (which I have taught almost all through
my academic career), the three objectives combine to form an approach

going live 221
which seeks to introduce some of the ways in which the common law has
developed methods and devices to impose civil liability on persons, corpora-
tions, and other agencies as a result of harmful conduct. Throughout the
course, several themes are addressed: what the law presently is and what
values it embodies; what are the problems with the existing law and what
tools are needed to evaluate it; what might be a better set of legal rules,
principles, and doctrine for the law to adopt; and what role and responsi-
bilities can and should lawyers adopt to effect this transformation, if needed.
Throughout my classes, the overriding ambition is to foster a learning
environment in which there is healthy and spirited discussion, a critical
and constructive debate, and an appreciation of the need to question. The
fact is that law school is not about learning a set of rules or argumentative
manoeuvres which comprise law’s language or logic. It is that, but it is
much more as well. Lawyering is not carpentry. While it is true that legal
tables will wobble and precedential doors will jam without crafted care and
attention, there is an important difference between the doors and tables of
a torture chamber and of a hospital ward; a hospital bed is not a torture
rack, although it can become one. Lawyers and, therefore, law students
cannot easily evade taking responsibility for the artefacts and outcomes of
their crafted performances by taking refuge in matters of technical con-
sistency and internal coherence. This inward and insular stance unneces-
sarily cuts off law from its sustaining political context and rich historical
resources. Lawyers must be carpenters, but they must also be designers and
innovators who place their pragmatic craft in the service of a better society,
particularly its disadvantaged and disenfranchised members.
Consequently, law school and legal education are as much about
inculcating an attitude, a modus vivendi, a way of thinking about and
being in the world as anything else. Consequently, it is vital that students
be aware of that, be prepared to challenge it, and develop their own
stance. By developing new courses and nurturing a critical pedagogy, I
have committed myself to obliging my students to appreciate the thor-
oughly political nature of the legal enterprise. While I have insisted upon
a rigorous grasp of law’s basic techniques, I have also placed law in its
broader political, social, and historical context so that students can better
come to their own conclusions about law’s operation and viability.
However, if students are to enter that ‘good night’ of legal practice, they
must develop the will and resources ‘to rage, rage against the dying of the
light’. I believe that, in fulfilling those illuminating and raging roles, law
teachers best fulfil their responsibilities.

222 it ’s too late to stop now: law, life, and teaching
Putting It into Practice

Of course, a teaching agenda is only so much fancy wrapping without an
effective plan for operationalizing it and implementing into practice. This
crucial effort requires the development of a complementary series of
specific practices and strategies for use in courses and classes. As with
much else, the proof of the pudding is in the eating. Accordingly, I will
outline some of the important initiatives and precepts I have employed
and relied on to put philosophy into practice. I am not quite so dismissive
or presumptuous as Morrison in his attitude to his audience. As he puts
it, “I do not consciously aim to take the listener anywhere. If anything, I
aim to take myself there in my music. If the listener catches the wave-
length of what I am saying or singing, or gets whatever point whatever
line means to them, then I guess as a writer I may have done a day’s
work.”5 But this does capture the sense that, as I have got older and more
experienced, I do in the classroom what seems to work best for me as a
teacher. I have accepted that you need to be true to yourself and let being
popular (or not) take care of itself.
With that important caveat, I proceed to list those initiatives and
strategies I have come to rely on in implementing my teaching ambitions
and in working towards a successful teaching practice. These seem the
most prevalent and effective:
• Enthusiasm – There is simply no substitute for energy and enthusiasm

in teaching. Teachers cannot expect to instil a love of learning and law
in students and a genuine appetite for their chosen careers unless
teachers themselves embody the unalloyed virtues of passion and
commitment. If we want to illuminate the law for students and to
inspire them, it falls to teachers to ignite a ‘fire in the belly’ which can
be contagious and itself re-galvanizing. Teachers who signal in subtle
and not-so-subtle ways that teaching has become a heavy burden and a
dreary duty cannot expect nor deserve the admiration of their students.
In short, teaching can and should be ‘fun’. When the enthusiasm goes
out of my teaching, then so will I.
• Participation – Although I sometimes fall down on this, my intention
is to avoid lecturing at or sermonizing to the students. My vocation in
life is ‘teaching’ and not ‘preaching’. While there is always a certain
element of proselytizing in taking a critical stance, it is important to
5
Randy Lewis, Van Morrison Takes Listeners on His Spiritual Journey, L O S A N G E L E S
T I M E S , January 9, 2009.

p ut t i n g it in t o p r actic e 223
allow students to participate as fully as possible in their own education.

In that way, they will value it more and be more likely to take the
lessons to heart. Accordingly, I try to involve students at all levels of my
teaching from the selection of course materials (especially in my
graduate seminars) through class presentation; the students learn
best when they are part of the educational experience rather than
apart from it. That having been said, I have studiously avoided the
rightly maligned Socratic method which once dominated legal
pedagogy.
• Responsive – Along with my overriding preference for student parti-
cipation, I also try to be responsive to the interests and concerns of
participating students. Teaching is much more effective when students
are engaged on their own territory and with their own concerns than
always having to come over to the teacher’s ground. Accordingly, I am
prepared, within definite and clear limits, to keep the class on a loose
rein in terms of discussion and debate. Careful not to indulge a limited
number of vociferous and tendentious students, I am prepared to go
with the flow and cater to the students’ questions, queries, and quar-
rels. However, being responsive to students is not the same as pander-
ing to them or spoon-feeding them. A robust engagement is the
standard to be cultivated, not a fawning indulgence.
• Stretching – Mindful that law school is basically a postgraduate insti-
tution and that its students are highly educated and highly motivated, I
endeavour to stretch students and help them to meet and, if possible,
exceed their own expectations. Without becoming too zealous or
combative, I deliberately strive to push and prod those students who
rise to my challenges. Indeed, while it is vital to maintain an inclusive
and open classroom milieu, I also believe that there is a place and time
for making a class of law students feel uncomfortable in order to shake
them out of their complacency. If students are allowed to remain too
safe and cosy in their intellectual and political confines, a major
purpose and goal of a critical legal education will be lost.
• Inclusion – Especially because I strive to create a classroom in which
students are challenged and stretched, it is all the more important to
ensure that students feel secure and included in the course and its
engaged climate. I try to create a space in which quieter and less sturdy
members of the class are encouraged, but not obliged to participate and
contribute. In achieving this, the selection of inclusive materials for the
course is a necessary prerequisite. Indeed, one of the contributions to
the Osgoode curriculum of which I am most proud is my development

224 it ’s to o l a t e t o s t o p n o w : l a w , l i f e , an d t e a c h i n g
of an original course on ‘Racism and the Law’; it created controversy,

but provided a forum and focal point for addressing and tackling
racism in the profession and legal system at large as well as in legal
education. Moreover, as free-wheeling and open as I try to be in class, I
brook no participation in class which itself is exclusionary and/or
dismissive; teachers must ask students to do what teachers do and
not only what they say.
• Experimentation – There is simply no one tried and trusted way to be a
‘good teacher’, especially if you adhere to the ideas to which I have. The
effort and willingness to experiment with different initiatives, strate-
gies, and styles is a decisive attitude and practice in the backpack of any
teacher. In the same way in which teachers should challenge their
students, teachers must also push themselves and resist the insidious
tendency to stand pat and rely on familiar routines. Of course, the
adoption of such a pedagogic path is fraught with risk and not a few
spectacular flops. Improvisation means not playing it safe. Yet there is
no other way to convey the sense of adventure and relevance which
marks a serious education. If you want to achieve something out of the
ordinary, you must be prepared to run the risk of failure. In line with
this, I have tried out all manner of props and diversions – music,
vignettes, film clips, sketches, comedy, visitors, etc. – in my classes to
capture students’ imagination and stoke their creative interest.
• Evaluation – In line with the other practices I have adumbrated, I have
offered students as broad a range of evaluative options as possible. In
particular, where not hemmed in by law school general regulations, I
have avoided the traditional three-hour, closed-book examination; this
form of evaluation-by-ambush has little to recommend it. Instead, I
have sought to provide opportunities for students to write papers and
do take-home examinations, multiple assessments, and the like. As for
the content of the evaluation, I have tried to remain true to the need to
encourage experimentation, diversity, critique, and creativity; it is
essential that the mode of evaluation reflects the substance and aims
of the course. Also, I have permitted collaboration among students,
where possible.
• Tools of the trade – In line with my overall approach, I have specifically
emphasized the need to develop a ‘vocabulary’ rather than a methodol-
ogy to tackle legal issues and advance the substantive material of parti-
cular courses. In particular, on the basis that the formal validity of legal
arguments does not guarantee the substantive correctness of the out-
comes, I have insisted that a competence in formal techniques and

con c l usion 225
substantive content is a necessary, but not sufficient talent to be a good

lawyer. Understanding and challenging legal concepts and practices can
be done effectively only if students appreciate what counts as ‘justice’.
Accordingly, a major component of my teaching is the attempt to
challenge students to develop and refine a critical vocabulary through
which to explore and express a full vision of law and lawyering in both
overall design and practical details.
• Collaboration – Because law schools can be such competitive envir-
onment and can foster an individualistic sense of entitlement, I have
taken several initiatives to challenge that and have urged students to
learn the value and skills of teamwork and collaboration. By way of
example, I have taught joint classes with other professors and sought to
demonstrate the strength and benefits of collaborative effort. Also, I
have encouraged students to engage in joint presentations, projects,
and assignments. Instead of merely talking about the advantages and
merits of a less individualistic approach to law and social action, I have
tried to put collaboration into practice.
None of this offers a tried-and-true approach to teaching. Indeed, stu-
dents tend to react strongly to my classes. Some are positive about the
experience and others are negative, but few are indifferent. I am not so
naïve or inattentive to think that all or even many students subscribe to
my full critical take on law and lawyering. After all, a large number of my
students go on to jobs in large and established firms. But I take some
comfort from the fact that many are at least doing what they do with a
greater appreciation for why they are doing it; they are not simply
sleepwalking their way on to the conveyor belt which takes them down-
town without much reflection or self-analysis on their part. That may
seem like luke-cold comfort, but it is much better than nothing. It is the
lot of the dweller on the threshold. Being neither an apologist for the
status quo nor a voice in the wilderness, you have to ‘take it where you
find it’, even if there is less than you would like to find.
Conclusion
So that is my story. It will come across perhaps as too earnest and too
contrived by far. Lived in messy and half-glimpsed ways, it is only in
retrospect that it gains any semblance of direction, depth, or design.
Working through it as both writer and teacher, I did not have any
grand plan; I felt that I was putting it together essay by essay and class

226 it ’s to o l a t e t o s t o p n o w : l a w , l i f e , an d t e a c h i n g
by class. I still do. I suppose that I will keep on occupying that ledge with,
to paraphrase what an astute reviewer said of Van’s live performances,
my sights set upwards and my feet planted firmly on the ground.6 Always
hovering at law’s edge, I am not sure about what comes next. Nor am I
sure whether what comes next will be better or worse than what has
already been done. However, I do know that I will keep on doing it. And,
of course, I will do it listening to the lion – the music, voice, and words of
Van Morrison. The song, his and mine, might remain much the same,
but its presentation and styling will not. Like I always guessed, “it’s too
late to stop now”.
6
Parke Puterbaugh, A Night in San Francisco – Music Review, R O L L I N G S T O N E , July 14,
1994.

INDEX
administrative law, 101, 133–35, corporate law and governance, 52–57,

138–48 59, 66–75, 77–79, 81
Agent Orange, 165 shareholding, 57–63, 66–68, 70,
anarchy, 17–18 72–75, 78–79
Austin, John, 117, 129, 131–32 corrective justice, 153, 157–59, 163–67
Cross, Rupert, 136
Bentham, Jeremy, 117, 131
Berle, Adolf and Means, Gardiner, Dalkon Shield, 165
52–58, 60, 64–70, 75, 81 Dante, Alighieri, 14
Bhopal, 165 de Man, Paul, 49
Bickel, Alexander, 105 democracy, 12, 21, 53, 58, 62–64,
Brandeis, Louis, 66 68–81, 84–87, 91–92, 95–97,
99–108, 110, 113–16, 138–41, 199,
Cambridge, 6, 44 202, 205, 208, 217
Camus, Albert, 48, 50 democratic socialism, 6–7, 218
Canadian Charter of Rights and Derrida, Jacques, 40–51
Freedoms, 23, 85, 90, 92, 95–104, DES, 165
107–9, 111–12, 114–15, 202 dialogue theory, 102–4
section 1, 99, 103 Dickens, Charles, 188
section 24(1), 96 Dodd, E. Merrick Jr., 67
section 32, 102 Donne, John, 196
section 33, 103 Dworkin, Ronald, 127, 135
section 7, 107–8, 112
capitalism, 54, 56–57, 78, 80, 199, 202, evidence law, 136
204, 206
Carr, Edward Hallet, 1–2, 217 Fabian society, 6
Chanel, Coco, 94 Flood, Colleen, 134
Chernobyl, 165 football, 4, 6, 7–14, 17–22, 40–51
Churchill, Winston, 149, 172, 215 Blanchflower, Danny, 22
Clinton, President Bill, 28 Cantona, Eric, 48–50
Coke, Edward, 125 Maradona, Diego, 44, 48
Constitution, Canada, 90–91, 141 Michels, Rinus, 43
Constitution, US, 200 Summers, Johnny, 51
First Amendment, 30, 189, 194, 198 formalism, 37, 84, 89, 102, 104, 118,
constitutional law, 23, 33, 69, 71, 91, 95, 121–22, 124–25, 130, 139,
100, 102, 106–7, 112–13, 133, 197, 157, 210
199, 206, 210 France, Anatole, 111
living tree interpretation, 91 Frankfurter, Felix, 196
227

228 in de x
freedom, 11, 13–18, 20–22, 43, 107, judicial review, 71, 84, 95, 101–4,
111–12, 199–200, 205 138–39, 142, 145, 205
Friendly, Henry, 36 jurisprudence, 93, 117–21, 124, 128–32,
151, 157, 166–67, 176, 182,
Gadamer, Hans-Georg, 42 217
Gandhi, Mahatma, 175 Anns, 180
Gordon, Robert, 207 Auton, 109
Gosling, Ryan, 83 Caparo Industries, 180
Gramsci, Antonio, 20 Carter, 92, 93
Chaoulli, 107, 109–14
Hand, Billings Learned, 36 Clements, 150–57, 159, 161, 163, 167,
Hart, Herbert, 89, 117–28, 131 170–71
Harvey, C.P., 136 Cook, 158–59, 168
health care, Canada, 107–113, 162 CUPE, 141
Heidegger, Martin, 42 Donoghue, 173–84
Hershkoff, Helen and Cohen, Adam, Doucet, 96–98, 100–1, 103–6, 114
189, 198–204, 210 Dunsmuir, 142–46
Hitler, Adolf, 175–76 Edwards Books, 111
Holmes, Oliver Wendell Jr., 84, 134, Gosselin, 108–9, 112
167–68 Greenman, 182
Holocaust, 175 Gregg, 160
House of Lords, 159–60, 180 Khosa, 145–47
Atkin, James, 173–74, 177, 179–83 Kuwait Airways, 159–61
Buckmaster, Stanley, 177, 179, 181 MacPherson, 178
Esher, William Brett, 178 McGhee, 150, 169
Hoffman, Leonard Hubert, 159–60 Morgentaler, 112–13
Macmillan, Hugh, 177, 179, 182 Mowat, 146
Nicholls, Donald James, 159–60 RJR-Macdonald, 108
Thankerton, William Watson, 179 Roncarelli, 140
Tomlin, Thomas, 177, 179 Saskatchewan Federation of
Wilberforce, Richard, 180 Labour, 92
Hugo, Victor, 185–90, 192–93, 195–96, Secession of Quebec Reference, 91
203–4, 207, 209 Snell, 151–53, 161
Huizinga, Johan, 42 Williams, 28, 80, 150, 160–61,
human rights, 144, 146 167, 171
Hume, David, 154 Young, 189, 194, 198, 207, 209–10
Hutchinson, Allan
career, 6–9, 23, 133–34, 136, Kant, Immanuel, 33
217, 220 Keats, John, 196
education, 1, 4–6, 15, 18, 136 Kennedy, Duncan, 7, 30, 89, 137
father, 3, 6–7, 9 Kennedy, President John F., 184
grandparents, 4 Keynes, John Maynard, 130
mother, 3–6 Kopa, Raymond, 40
James, William, 129 labour relations, 145

judicial activism, 97–100, 102–4, 115 law schools
Judicial Committee of the Privy Columbia, 29, 54
Council, 160–61 Harvard, 28–30

in de x 229
McGill, 31 pedagogy, 27, 32, 49, 134, 136–37,
Osgoode Hall Law School, 8, 223 139–40, 147, 215, 219–25
Rutgers, 29 Socratic method, 223
Stanford, 29 Pericles, 31
University College, London, 117 Platini, Michel, 40
University of Chicago, 28–29 Plato, 12–13, 15–17, 20, 41–42, 45
University of Montreal, 31 allegory of the cave, 13
Yale, 29 Plotinus, 12
Leachman, Walter, 177, 183 Pollock, Frederick, 180
legal academe, 24, 27–29, 31–32, 34, 37, positivism, 118, 120–24, 128, 130
119, 135–37, 149, 155, 198, Posner, Richard, 24, 36–39
215, 217 prison, 14–21
critical legal theory, 9, 24–27, 30, Gartree, 14, 18
38–39, 138, 140, 153 riots of April 1990, 14
empirical legal studies, 127–28 Strangeways, 14–15, 18
law professors, 24–27, 29–35, 39
law school, 26–29, 32, 34, 36, 134, Quebec Charter of Human Rights and
220–24 Freedoms, 107
traditional legal theory, 24–27, 33,
35, 38 Rawls, John, 205
legal doctrine, 25, 84, 88, 119, 126, religion, 1, 16, 203, 213, 215
133–42, 144–46, 153, 157, 163, rhetoric of poverty, 190–98, 206
165, 168, 171, 177, 181–83, rights-talk, 199–202, 208–9, 211
196–97, 200, 217 Rivers, Melissa, 83
correctness, 141–47 Rule of Law, 85–86, 91–92, 98, 146
reasonableness, 141–47
legal ethics, 129–30, 218 separation of powers, 98, 100
liberal legalism, 101, 103 discretion, 96–97, 118–19, 121–24,
Lindblom, Charles E., 70 126, 128–29, 141
Liverpool, 17 Shankly, Bill, 40
Llewellyn, Karl, 219 Shaw, Geoffrey, 118–19
London School of Economics, 134 Shaw, George Bernard, 6
Lovelace, Richard, 16 social justice, 38, 107, 111, 129, 151,
162, 164–65, 197, 206, 211, 218
Manchester, 3–4, 6, 9–10, 14 Socrates, 49
Mandela, Nelson, 20, 175 Sossin, Lorne, 133–34
Marx, Karl, 211 Stapleton, Jane, 154–56
McLuhan, Marshall, 217 Supreme Court of Canada, 31, 35,
Morrison, Van, 213–17, 222, 226 83–84, 86–88, 90–94, 96–98, 102,
105, 107–9, 111–15, 140, 142–46,
natural law, 91 150–53, 157–59, 164, 168, 170
naturalism, 118, 121–25, 130 Arbour, Louise, 31, 97, 103
Nietzsche, Friedrich, 42–43 Bastarache, Michel, 142
Beetz, Jean, 31
Obama, President Barack, 27–28 Binnie, Ian, 97, 111, 113–14, 142, 144
oppression, 18, 187, 189, 202, 208 Brown, Russell, 83–84
Orwell, George, 188 Charron, Louise, 144
Osgoode Hall, Toronto, 185 Cromwell, Thomas, 146

230 in de x
Supreme Court of Canada (cont.) Black, Louis, 29
Deschamps, Marie, 97, 111, 113, Breyer, Stephen, 29–30
143–45 Cardozo, Benjamin, 178
Dickson, Brian, 111 Douglas, William, 29
Fauteux, Gérald, 31 Frankfurter, Felix, 29
Fish, Morris, 146 Ginsburg, Ruth Bader, 29–30
Iacobucci, Frank, 97, 103 Goldberg, Arthur, 29
Laskin, Bora, 31 Jackson, Robert, 29
LeBel, Loius, 97, 111, 113–14, 142, Jackson, Robert H., 29
146, 151 Kagan, Elena, 23, 27–30, 35
McLachlin, Beverly, 83, 86–92, 113, Marshall, John, 29
151, 153, 156, 158–59, 163, 164, Marshall, Thurgood, 28
168, 170 Rehnquist, William, 29
Rothstein, Marshall, 144–45, 151 Roberts, John, 29
Wilson, Bertha, 112 Rutledge, Wiley, 29
Scalia, Antonin, 29, 133
Taggart, Mike, 34 Stevens, John Paul, 27, 29
Tennyson, Alfred Lord, 141 Stewart, Potter, 30
Thomson, David, 9 Story, Joseph, 29
Thoreau, Henry David, 15 Vinson, Frederick M., 29
tort law, 134, 148–72, 220 Warren, Earl, 29
causation, 149–72 White, Byron, 29
duty of care, 161, 168–69,
179–80, 182 view from nowhere, 2
negligence, 151–53, 155, 157, Voltaire, 173
159–61, 164, 166, 170–72,
177–83 Weinrib, Ernest, 157–58, 169
Twining, William, 24–25 Wilson, President Woodrow, 80
Wittgenstein, Ludwig, 42, 44
Unger, Roberto, 7 Wright, Caesar, 151
United States Supreme Court, 23,
27–30, 35 Yeats, William Butler, 85

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LAW, LIFE, AND LORE

allan c. hutchinson is a Distinguished Research Professor at

Published online by Cambridge University Press

It’s Too Late to Stop Now

Published online by Cambridge University Press

Cambridge University Press is part of the University of Cambridge.

Published online by Cambridge University Press

allan c. hutchinson is a Distinguished Research Professor at

Published online by Cambridge University Press

It’s Too Late to Stop Now

Published online by Cambridge University Press

Cambridge University Press is part of the University of Cambridge.

Published online by Cambridge University Press

allan c. hutchinson is a Distinguished Research Professor at

Published online by Cambridge University Press

It’s Too Late to Stop Now

Published online by Cambridge University Press

Cambridge University Press is part of the University of Cambridge.

Published online by Cambridge University Press

Published online by Cambridge University Press

1 Taking a Stand: Politics, Prisons, and Football 1

Published online by Cambridge University Press

I completed the ﬁnal draft of this book around my sixty-ﬁfth birthday.

Published online by Cambridge University Press

Published online by Cambridge University Press

Taking a Stand: Politics, Prisons, and Football

When I was a 14- or 15-year-old schoolboy, we studied the English

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

was going to take what was considered a radical stand by demonstrating

Kicking the Habit

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international level. He was deservedly proud of his achievements. After

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

it is the watching more than the playing that dominates my involvement;

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

manages to capture something of the magic and possibility the game of

My own particular education in life through football is probably best

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discipline was enforced by not passing the ball to ball-hoggers or by not

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playbook or script of acceptable moves in life’s game. While as many

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

In his famous allegory of the cave, Plato introduced a group of people

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

To put it another way, people are always situated within a context of

https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

constraints on personal action (as impossible an ambition as there ever

Open and Shut

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https://doi.org/10.1017/9781108363242.002 Published online by Cambridge University Press

came over to me. With his friendly Cockney accent, he introduced