Professor Grégoire Webber wants to enrich people’s understanding of governments’ responsibilities to citizens and of citizens’ duties to each other and to the law. To do this, he explores how practical questions like “How should I act?” or “What is right for me to do?” situate law within the wider study of human affairs. This is part of his work as the Canada Research Chair in Public Law and Philosophy of Law, an appointment that was renewed by the Social Sciences and Humanities Research Council earlier this month. 

According to Webber, inquiry into the study of human affairs is directed by a strategic question: why? “Why did persons act the way they did?” he asks. “Synonymously: What were their reasons for so acting? I argue that ‘why?’ is strategic because it is a question that one cannot proceed without if one is to study human affairs.”

An example from Aristotle that Webber likes to share in class goes like this: Someone is walking to the cupboard. “Why?” we ask the person, who answers, “To get some herbs.” “But why?”, we ask. “To mix a potion,” the person responds. “But why?”, we query further. “To lose weight,” the person replies. “But why?”, we keep probing. “To be healthy again,” the person answers. 

The example, Webber says, illustrates the thought that human action is ordered to a purpose, a point, an end, a goal; and illustrates how each immediate purpose, point, end, goal can be related to a more basic purpose, point, end, goal. 

“In acting, we can choose to pursue worthwhile ends or not and we can choose to pursue them reasonably or not,” he explains. “The reasonable pursuit of worthwhile ends is identified by the ‘should’ and the ‘right’ in the questions ‘How should I act?’ and ‘What is the right thing for me to do?’”

By focusing his research around these two practical questions, Webber aims to improve peoples’ understanding of other questions citizens and governments confront every day, like when tax returns are filed, when conflicts are resolved between freedom of expression and the right to privacy, or when determining how far the official opposition can go in opposing a government majority. These questions include: Do we have a moral obligation to obey the law? Can we justify the infringement of human rights in certain situations? How do the traditions of behaviour we inherited from the British Parliament guide and limit the actions of our prime ministers and parliamentarians? 

One theme of Webber’s research since graduate school has been on rights and how to conceive of them. A dominant understanding in the law, he explains, is that rights can be defined according to a set of interests (such as the interest in expressing oneself) and that competing interests (such the interest of others not be defamed) do not affect the definition of the right. Instead, competing interests may infringe the right, and this infringement may sometimes be justified. 

“I have argued that this is the wrong way to think about rights,” he says. “Where competing interests are justified in infringing the right, the better way to think about rights is to say that the right is specified so that it does not run up against the competing interests. It is wrong to think that, in acting according to my rights, I act without justification, as I would if my right would allow me to do what it would be wrong for me to do.” 

Recalling the priority of his two practical questions, he gives an example, “When our law says that legal prohibitions against hate speech, child pornography, false advertising, and the like are all justified infringements of freedom of expression, I say that freedom of expression never goes so far as to empower one to engage in hate speech, child pornography, false advertising, and the like.”

Over the next five years as a Canada Research Chair, Webber will be further interrogating the foundations of law and government. This research includes two manuscript projects. 

His first project is on human goods and their relationship to law. To describe this idea, he refers back to his Aristotle example that illustrates how immediate purposes, points, ends, and goals can be related to more basic purposes, points, ends, and goals. “If the chain of more immediate to more basic purposes, points, ends, and goals is to terminate – in Aristotle’s example, it terminates at ‘health’ – then it will terminate in a purpose, point, end, and goal that is truly basic – a basic good,” he explains. “A justification for law’s role, I argue, is to facilitate our participation in the basic goods.” 

For a second manuscript project, Webber aims to bring together much of his writing on the political constitution. A main theme of this aspect of his research is to explore how political activity and relationships – such as the interactions between the Prime Minister and Leader of the Opposition, between cabinet and caucus, between Commons and Senate – are constitutional. “I do not mean that these relationships are constitutional in the sense that they are consistent with the written constitution. Rather, I mean that they are part of the constitution, that the constitution is more than what is written or what comes before the courts,” he explains.

During his first five years as Canada Research Chair, Webber has made several contributions to our understanding of the foundations of law and government. One academic highlight was the publication of Legislated Rights (Cambridge University Press 2018, pb 2019), a collaborative research project with five other authors that has benefited from generous academic engagement. That book and his solely authored The Negotiable Constitution (Cambridge University Press 2009) were cited in Frank v Canada, an important Supreme Court of Canada decision on the limitation of rights. “The Court interrogated the meaning of what it is to limit a right, with some members maintaining the Court's longstanding view that to limit a right is to infringe it, and other members (correctly!) reasoning that to limit a right is to specify it,” he says.

Among his other contributions since 2015 is the publication of the jointly edited Constitutional Dialogue: Rights, Democracy, Institutions (Cambridge University Press 2019) and articles on a conservative disposition and constitutional change, on the loyal opposition, on the priority of “asking why” when studying human affairs, and on proportionality and balancing in human rights law.

“I wish to express thanks to my colleagues in the Queen’s Faculty of Law, the Department of Philosophy (where I am cross-appointed), and the Department of Political Studies for creating such a rich intellectual community,” Webber says. “I have grown as a scholar through countless conversations with them all.”