With apologies to the Bard,[1]
I’ve come to the conclusion that in law, sometimes the fault lies not in our stars,
but in our stare decisis. In many ways, legal precedents are less like
a north star, fixed in the firmament, and more like an inconstant moon,[2]
that waxes and wanes with the passage of time.
Literary and stellar comparisons aside, it is in this last sense that I
think a true appreciation of law requires an understanding of its temporal
quality.
These effects are apparent in both principle and in
practice. In common law, the principle of stare decisis means taking a legal
precedent articulated in earlier cases, and applying it to determine current
legal issues. The effects of this
process make law inherently historical in the sense that, to paraphrase David
Luban, all legal argument represents an attempt to infuse the past with present
meaning.[3]
If legal argument is in part a looking backwards,
then it’s also often an attempt to project into the future. Legal decision-makers apply precedent in
current cases. Sometimes novel factual
circumstances or theoretical reinterpretations require that a longstanding
holding in law be adapted in new ways. In
this manner, a present legal decision and a fresh precedent can serve as a prospective
guide for new jurisprudence.
This temporal complexity in considering the function
of stare decisis is, of course, one that some of the great minds of legal
philosophy, like Jeremy Waldron, have considered in some detail, see eg
here. I love, for example, the quote
from Schauer that I think captures the spirit of this principle of dynamic
interaction in law over time. He says,
“today is not only yesterday’s tomorrow, it is also tomorrow’s yesterday”.[4]
As a matter of practice in Canada, the dynamic function of stare decisis means that over time the perceived
significance of a legal decision may change.
Eric Adams recently presented an interesting example of this phenomena
in the context of the famous Roncarelli v Duplessis case.[5] This decision remains one of the most
commonly cited decisions in Canadian public law, though the main reasons why seem
to have shifted.
Today it is most commonly associated with law,
constitutionalism and limits on governmental authority. However, at various times the case has also
been highlighted as an example of the limits of provincial legislation or to
explain the pre-Charter scope of
freedom of religion. More broadly, for
decades in Canadian legal classrooms, the case was used to describe the scope
of common-law legal rights.[6]
The perceived significance of a decision can change
over time in law, but also in the popular imagination. This was made very apparent on my social
media feed on October 18th, which was the 87th anniversary of another
important legal decision in Edwards v Canada (AG). This case is more
commonly know as the Persons Case,
because the decision of the British Judicial Committee of the Privy Council
interpreted a constitutional provision that only “qualified persons” could be
appointed to the Canadian Senate to include women. The anniversary of this case is popularly
referred to by some on social media as #PersonsDay.
Despite that seemingly straightforward description,
the popular significance of the case appears somewhat misunderstood. The most common misperception I saw was that
the Persons Case was directly connected to women earning the right to vote, which is categorically untrue.
Others thought that prior to the case, women in
Canada could not hold public office.
While women could not be appointed to the Senate until the legal
decision, women held a wide variety of public offices, including as provincial
MLAs, judicial officials and as Members of Parliament.
Others seemed to think that it was only by reason of
the Court’s interpretation of the constitutional term “qualified persons” as a
requirement for Senatorial appointment, that women were recognized as ‘people’,
which is at best, inaccurate.
I was, frankly, a little astounded at the numerous
individuals, including several elected Canadian officials, who misstated the
importance of the Persons Case in
public postings on October 19th, including at least one Member of
Parliament, see here, and the current Premier of British Columbia, see here.
For those interested, the Historica #HeritageMinute video, from the perspective of Emily Murphy, one of the 'Famous Five' in this event, is here.
To be fair though, these politicians were not alone, and there were numerous examples of others who misunderstood or appeared ignorant of what the case actually stands for, see the #PersonsDay tag on Twitter for many more such examples.
In any event, how
precedent is remembered popularly and in law, along with how it is sometimes
uncertainly applied is one of the things I’ve been thinking a lot about in my
research and writing. In this respect,
as someone whose initial training was in history, I was happy to see that
#PersonsDay was being celebrated, but also a bit perplexed that the legal importance of the Persons Case appears
to be so often misunderstood.
For those interested, the Historica #HeritageMinute video, from the perspective of Emily Murphy, one of the 'Famous Five' in this event, is here.
To be fair though, these politicians were not alone, and there were numerous examples of others who misunderstood or appeared ignorant of what the case actually stands for, see the #PersonsDay tag on Twitter for many more such examples.
[1] The
quote from Shakespeare is more accurately “the fault, dear Brutus, is not in our stars /
But in ourselves,” Julius
Caesar, Act I, Scene III.
[2]
Science fiction fans will know this alludes to Larry Niven’s short story of the
same name, in which lunar inconstancy symbolizes change, but also foreshadows a
global apocalypse.
[3] David
Luban, “Difference Made Legal: The Court and Dr King”, 87 Michigan L R 2152
(1982) as quoted in J Feinberg & J Coleman eds, Philosophy of Law, (Wadsworth/Thompson Learning, Belmont CA, 2000)
at 227.
[5] Eric
M Adams, “Building a Law of Human Rights: Roncarelli
v Duplessis in Canadian Constitutional Culture” (2010) 55 McGill LJ 437
which is available online through SSRN < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2030502>.
