The Role of the Judge in Law Development
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This essay is about the role of judges in the development of the law. This essay may begin with a clear enumeration of the tasks, which the judge performs, with the qualities he must possess to execute successfully his profession, or with a historical account about the court institution and its development. I will cover some of these topics, more or less, on the pages ahead, but I would like to start with something that crystallized in my mind while I was reading the materials necessary for the preparation of this paper. It is the impression that the positive law always has limits and sometimes there is no other way for these limits to be expanded except through the work of the courts and judges. Perhaps, for the educated in jurisprudence mind this is a simple conclusion, or may be wrong one, but from my position, I see it as an important deduction that helps to explain how and why the judge develops the law.
If I start with the assumption that the positive law has limits and sometimes the judges are obliged to expand its frontiers, first I have to answer the following questions: What is a positive law? Why does it have limits? And why and how is the judge able to change and expand the law when it is necessary?
When I say "positive law", I mean the law that is sanctioned by the Parliament and Legislature, I mean the state law, produced by legitimate and democratically elected representatives, codified and accepted by the society in general. In democratic societies and countries, this law is a result of the work of elected officials and it reflects the political and social preferences of the majority of people and the pressures of the groups with special interests. But the social preferences are always changing, the majorities are mobile, and the lobbyists are different. One law or statute reflects the will of a nation or community in a definite time and while the social and cultural preferences do not change quickly, yet there are always situations in which the existing law does not reflect the prevailing attitudes.
The democratic societies have found a way to deal with the dangers of such discrepancies with creation of Constitutions and Charters that bind the positive law with general principles of justice that successfully can test the adequacy of an existing or planned law. The Charters are true reflections of the so-called "natural law." They are expression of the society's finest aspirations for justice. Therefore, the limits of the positive law, or the inability of the existing law to respond to some injustice, have been overcome through the existence of the written and universally recognized fundamental principles in the Charters.
Where is the place of a judge in a situation when the existing law does not respond to a clear act of injustice? Or as Beverly McLachlin, Chief Justice of Canada, asks in an article entitled "The Supreme Court and The Public Interest " - when are judges making a "rare but vital judicial leap." The task of the judge is clear - to resolve disputes between members of society or between members of society and the state. (McLachlin 110) His task is not to create laws, his job is to interpret the existing law. However, the social attitudes, as we have said, change over time, and for that reason, the written law does not always reflect the general understanding of right and wrong. If the judge is responsible, dedicated to the public interest, he cannot apply the law mechanically. (McLachlin 109) Here is the point where a judge from a simple "oracle" (or interpreter ) of the law becomes an instrument for its development. The "good judge" always endeavours to find a balance between the principles of natural and positive law, and the public interest. This effort sometimes leads to a real legal change. According to McLachlin, the judicial leap is justifiable when the judge faces a case of central importance to society and rule of law; when there is a broad acceptance (although not necessarily consensus) on the need for change; when the change is built on fundamental values and principles laid down in earlier decisions; and finally when there is legislative inability or failure to address a pressing problem at stake (McLachlin 114).
All this can be illustrated through the popular case Vriend v Alberta. In this case, there is an act of injustice according to our present understanding of right and wrong (the dismissal of Delwin Vriend, a homosexual, from work only on the basis of his sexual orientation). There is a contested state law (Alberta's Individual's Rights Protection Act, IRPA). There are also doubts of political will or lack of such will the state law to be tailored in a way to deal with forms of discrimination on sexual orientation. Further, we have a provincial law under the test of the Canadian Charter of Rights and Freedoms. Besides Vriend, we have involved groups with special interests or representing such interests as appellants and interveners (Gala-Gay and Lesbian Awareness Society of Edmonton, Gay and Lesbian Community Centre of Edmonton Society and Dignity Canada Dignité for Gay Catholics and Supporters, Alberta Civil Liberties Association, Equality for Gays and Lesbians Everywhere, and etc.). The public interest in the case is obviously high; there are public debates in media and press discussing not only the existing forms of discrimination in Canadian society, but also the extent to which a federal law can overrule the provincial one. There is also a change in general attitudes, the public sensitivity in Canada to incidents of discrimination on sexual orientation have grown since the adoption of the IRPA in 1972 (although the Alberta legislature explains its reluctance to amend the Act with the public attitudes that, according to majority in Parliament, treat discrimination on sexual orientation as a "marginal" problem, Vriend ¶ 4 ). Eventually, we have judges and courts who have to decide whether IRPA contradicts to the Charter ( Vriend ¶ 40 ) and whether this state law fails to respond to its goal, which is the dignity of every citizen of Alberta to be defended recognizing him or her as "an individual and not as a member of a particular class" ( Vriend ¶ 2).
Change of a law initiated by court is a serious issue for every democratic state. It looks like a violation of division of powers. The courts are part of the judicial power, which has different functions from the legislative and executive branches of government. But in the real world, as McLachin says, in resolving disputes the judges cannot avoid developing or making the law (McLachin, 111). In a dispute between a person and state, as in the case Vriend v Alberta, the judges have no choice, but to judge who is right and who is wrong. In Vriend v Alberta, they decided that the provincial law is wrong and it must be changed according to the requirements of the federal law (the Charter ) and according to the public expectations.
It is important to see how judges motivate their decisions in such situations and how this process of law development looks in the courtroom. I will use some examples from Vriend v Alberta. First, the case passes through a process of scrutiny from the lower courts before it reach the Supreme Court. Different judges and courts investigate the case and give their opinion. The judges from the lower courts try to answer the following questions: Is the IRPA subject to the Charter? Justice Hunt from Alberta court of Appeal says "Yes" ( Vriend ¶ 26 ). Does IRPA violates or is it inconsistent with the Charter? Justice Russell and Hunt say "Yes" ( Vriend ¶ 14, ¶ 34 ), Justice O'Leary and McClung say "No" ( Vriend ¶ 22 ).
But does the provincial human rights legislation have to "mirror" the federal Charter (Vriend ¶ 19)? Do the court decisions endanger or undermine the provincial autonomy or the power of legislature? Justice McClung is apprehending such dangers, he says that if the court decides that the Act is unconstitutional and invalid, the judiciary will go into the legislative domain which, as he says, "should be avoided whenever is possible" ( Vriend ¶ 21 ). He proposes the court suspend judgement and give time the legislature to address the defects of the IRPA ( Vriend ¶ 21 ).
As we see in these examples, the judges are trying to be objective and to investigate the case from all sides. They base their arguments on the existing laws and on reasoning through analogies and similar situations from former cases (Thibaudeau v. Canada, Egan v. Canada, Haig v. Canada, etc). There is a discussion, confrontation of opinions and voting. At the end, the decisions that lead to a change of a law are not under the absolute will of one person, nor outside of the legal framework.
Let us take a look how the process continues in the Supreme Court. It is not so different from the process, which we see in the lower courts. The final decision of the Supreme Court in Virend v Alberta, as we have already said, is that the exclusion of sexual orientation as a protected ground of discrimination from IRPA violates s. 15 of the Charter and the Court declares some of the sections in the IRPA as unconstitutional ( Vriend ¶ 202). This decision is based on arguments that include interpretation of the law, precedents, and pure reasoning. For example, using precedents and analogue cases ( Egan, Bremer, Eaton, etc, Vriend ¶ 70-74) the court approaches and rejects the arguments of the respondents that the IRPA is "neutral" to discrimination on sexual orientation and so it does not violate the Charter. The court also does not accept Justice McClung's notion that the judiciary will burst into the domain of legislature. The Supreme Court judges argue that the legislature is limited not by the courts, but rather by the Constitution (Vriend ¶ 56). In their argumentation, the judges use common sense noticing that the IRPA is unconstitutional simply because it fails to protect the Charter rights (Vriend ¶ 61). The court finds appropriate to explain the character and the merits of the Charter that seeks to achieve the "magnificent" goal of equal dignity for all (Vriend ¶ 67-69). The judges analyze the IRPA, and again, they use common sense to reveal the contradictions in this law. The Act is intended as a broad, comprehensive scheme for the protection of individuals from discrimination and at the same time, because of the exclusion of sexual orientation, Vriend cannot complain of discrimination and seek a legal remedy (Vriend ¶ 97). In addition, the judges give an example from American case (Romer v. Evans) where there is a similar situation of denial of protection from discrimination (Vriend ¶ 98). The less obvious harm of the Act , the judges continue, is that the "silence" of IRPA reinforces and perpetuates the existing discrimination, which is inadmissible for a law with completely contrary goal ( Vriend ¶ 99). Concluding that the exclusion sends a message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation, the judges indicate that this law is not only harmful to homosexuals, but vitiates the community's sense of justice ( Vriend ¶ 101-104). The respondents' argument for "mirroring" (provincial human rights legislation, they argue, must be somewhat independent) is rejected with contra-argument that provincial laws must conform to the supreme laws of Canada ( Vriend ¶ 106).
The new issue in this particular case is whether a "legal omission" in a provincial state law contradicts to a federal law, and whether this omission is a precondition for discrimination of a particular group of people. Resolving the dispute the judges support their decision in constrained by their legal duties way but also with creativity obtained from the existing law, the reason and the precedents. The resources they use in support of their decision are the Constitution, the Charter, and a number of legal precedents in Canada and the U.S. They acknowledge the novelty of their decision, but they do not expect that it will create a serious controversy or exceed the framework of the existing law. The change in this particular law, a change triggered by the court, does not affect the balance and division of powers. Indeed, it assists the work of legislature, adjusts the segments of the law, and it works for the public good.
Finally, I would like to say a few words about the independence of the courts. In the early Roman republic, we have the institution of consuls who possess the imperium or the supreme power; they had this power, yet their decisions were constrained by a system of institutions such as the Senate, Senturiate and the tribunes. In absolute monarchy, we have the king who is the sovereign, the only source of law and power. In modern democracy, we have the people as bearers of sovereignty; through their representatives in Parliament, they create the state laws and policy. In modern democracy, judges as oracles of the law and as an active part in development of the law are entrusted with great responsibility. The character of their profession gives them an opportunity to exceed the power of the sovereign. If the judges are corrupted and the court system distorted, the whole idea of justice and democracy would be vitiated. There are many examples of "new" democracies where the rule of law does not exist because of the lack of well functioning law system. In such counties, there are laws and Constitutions, but as inflation devalues money, the corruption in judicial system depreciates the value of the laws. There is no example of affluent society, with well functioning democracy and corrupted court system.
In Canada and other democratic countries, the danger of court corruption is resolved with the idea of judicial independence and its practicing. As Beverly McLachlin writes, in well-established democracies, the judges are appointed on the basis of their merits, they do not depend on political or other connections; they are well paid to avoid the temptation of bribes; their job is secure, they are not under the threat of removal because of their decisions. All these practices, writes McLachlin, combine to ensure that judges act not in their interests, nor in the interest of friends and benefactors, but in the interest of the public (Beverley McLachlin, 112).
As the historians do not create the history, but interpret the past hoping to find some truth in it and sell it to the public, the judges do not create the law, nor the disputes, but interpret them hoping to apply justice. The judges look like passive and passionless observers of our world, but with their work and mainly with their decisions, they certainly keep the keys to "Heaven and Hell". This metaphor about the importance of the profession of justice and the responsibility, which comes with it, seems too strong, yet it is not far from the truth.
Beverley McLachlin, " The Supreme Court and the Public Interest" (2001) 64 Sask. L. Rev. 309-21
Vriend v. Alberta,  1 S.C.R. 493
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