Podcast: Orientations of the Rule of Law – Visiting Speaker Jeremy James Waldron

Title: Orientations of the Rule of Law

Speaker(s):

Jeremy James Waldron, Professor School of Law, New York University
Jean Thomas, Associate Professor, Queen's Law
Jacob Weinrib, Associate Professor, Queen's Law

Date: Friday, October 2, 2026

The rule of law serves as both a guiding ideal and a framework for evaluating the conduct of citizens, lawmakers and governments. This lecture explores how these distinct perspectives relate to one another and how they can deepen our understanding of the rule of law.

Podcast:

Queen's Law · QLaw Pod - Episode 62 - Jeremy James Waldron - Orientations of the Rule of Law

Transcript:

00:00:00 Speaker 1
Hello, everybody.
00:00:04 Speaker 1
Good afternoon, everybody.
00:00:06 Speaker 1
Thank you for joining us here today.
00:00:08 Speaker 1
My name is Colleen Flood and I have the honor of serving as the dean here at Queen's Law.
00:00:16 Speaker 1
Before we begin, I'd like to acknowledge that we're here on the traditional lands of the Anishinaabe and the Haudenosaunee peoples and that we are always truly grateful
00:00:28 Speaker 1
to be able to study here, to work here, to live here, to raise our families here.
00:00:34 Speaker 1
We just celebrated or commemorated, I should say, Truth and Reconciliation Day.
00:00:39 Speaker 1
I was very grateful to Professor Lindsay Burrows, who helped lead us in ceremony to tie some tobacco and to walk together to the sacred fire with some of you.
00:00:53 Speaker 1
And my grateful thanks to her for helping
00:00:58 Speaker 1
lead us in this event.
00:01:01 Speaker 1
You know, my gratitude today is even greater because we get to welcome one of the world's leading legal and political philosophers whose work has challenged generations of scholars, lawyers and judges to think more deeply about dignity, equality, the rule of law and the foundations of democratic governance.
00:01:27 Speaker 1
So it is a great pleasure to welcome Professor Jeremy Waldron.
00:01:31 Speaker 1
You're not going to hear it so much in his dulcet tones, but he has the same as mine that we both came from New Zealand and that is where the comparisons end.
00:01:41 Speaker 1
And then he did his first degrees in New Zealand and then at Oxford and his career has included appointments in Edinburgh, Berkeley, Princeton and Columbia.
00:01:55 Speaker 1
Until recently, he combined his position, his position at NYU with the Chircelli Chair in Social and Political Theory at All Souls College in Oxford.
00:02:06 Speaker 1
He's well known, of course, for his work on constitutionalism, human dignity, historic injustice, national security issues, and the rule of law, as well as the history of political philosophy.
00:02:19 Speaker 1
His book includes Law and Disagreement,
00:02:22 Speaker 1
published in 1999, The Dignity of Legislation by Cambridge in 1999 as well, Torture, Territory, Terror and Tradeoffs, Philosophy for the White House, dot, dot, dot, 2010, and The Harm and Hate Speech by Harvard in 2012.
00:02:41 Speaker 1
A collection of his issues, of his essays, I'm sorry, on political institutions entitled Political Political Theory was published by Harvard in 2018.
00:02:51 Speaker 1
And some of his essays on the rule of law were published in Thoughtfulness and the Rule of Law by Harvard in 2023.
00:03:00 Speaker 1
He's had many, many distinguished awards, including being elected to the American Academy of Arts and Sciences in 1998, and in 2015, the American Philosophical Society Prize, which awarded him its Phillips Prize for lifetime achievement and jurisprudence.
00:03:20 Speaker 1
He's been a fellow of the British Academy since 2011 and delivered major lectures all over the world.
00:03:28 Speaker 1
I hear from him that he really goes on the lecture circuit at the moment.
00:03:35 Speaker 1
So we're very honored that we were able to persuade him to come here this year.
00:03:43 Speaker 1
And we want to thank very much the Law Commission of Canada
00:03:49 Speaker 1
that has established some funding to hold a series on the rule of law across Canadian law schools.
00:03:57 Speaker 1
And so we were able to use that funding and with the leadership of Sherry Metcalf to bring Professor Waldron here today with you.
00:04:06 Speaker 1
I'd also like to welcome and thank a couple of people who you all know pretty well, Professors Jean Thomas and Jacob Weinreb, who have agreed to serve as discussants on the presentation by Professor Waldron.
00:04:21 Speaker 1
So could you all join me in welcoming Professor Waldron?
00:04:25 Speaker 2
Thank you very much.
00:04:33 Speaker 2
Thank you, Colleen.
00:04:34 Speaker 2
I want to join my thanks to the land acknowledgement and to the commission that has helped to fund this event.
00:04:43 Speaker 2
I also wanted to thank Natalie at the back and Sherry Metcalf, everybody who's helped make this a wonderful visit so far, and I think it will continue to be so.
00:04:56 Speaker 2
As Colleen said, I've been writing incessantly, it seems, about the rule of law, and I must be reaching the end of my
00:05:05 Speaker 2
sensible thoughts in this.
00:05:06 Speaker 2
I find myself asking, what holds the rule of law together as an ideal in political morality?
00:05:12 Speaker 2
We've always known that it comprises a number of distinct principles.
00:05:17 Speaker 2
You remember Albert Van Dyce, that great Victorian relic who gave us 3 principles of the rule of law as he thought it was embedded in the British Constitution.
00:05:27 Speaker 2
Or you'll remember the 8 principles of law and fuller's in a morality of law.
00:05:32 Speaker 2
I've become convinced that besides these clusters of principles, with the very specific work that each of them does, the rule of law also embraces two or three distinct orientations towards those who are subject to its authority.
00:05:50 Speaker 2
Fuller's internal morality of law with its eight principles is one such orientation.
00:05:56 Speaker 2
The requirement that the state submit itself to legal constraint and legal accountability
00:06:01 Speaker 2
is another such orientation.
00:06:03 Speaker 2
And the requirement, the insistence that ordinary people obey the law and accept legal sanctions when they are appropriate is a third orientation.
00:06:11 Speaker 2
So what I want to ask is about these facets or facings or orientations of the rule.
00:06:16 Speaker 2
What's the relation between them?
00:06:18 Speaker 2
Are they simply distinct ideas or are they interrelated?
00:06:24 Speaker 2
After years of studying and teaching and scribbling about the idea of the rule of law, I find myself puzzled.
00:06:30 Speaker 2
and wanting to ask, is this plurality of perspectives irreducible?
00:06:35 Speaker 2
Or can we boil the three facets of the rule of law down to a single normative proposition or an interlocking series of propositions?
00:06:43 Speaker 2
Can the ideal hold itself together?
00:06:45 Speaker 2
Does it matter whether it can?
00:06:46 Speaker 2
Perhaps it's just irreducibly pluralistic and what's wrong with that?
00:06:50 Speaker 2
But anyway, that's what I wanted to consider.
00:06:54 Speaker 2
So what exactly is the rule of law and what does it require of us?
00:06:59 Speaker 2
Well, and who does it require it of?
00:07:04 Speaker 2
Most of us would say, I think, and most people outside the law school world would say that the rule of law is a set of principles that are supposed to constrain the state, requires the state to operate within a framework of law and not in an arbitrary or ad hoc manner.
00:07:20 Speaker 2
An awful lot of the rule of law literature, particularly outside legal philosophy, focuses on this business of imposing effective limits on the state.
00:07:28 Speaker 2
on the things that it does and the constraints on its doing them.
00:07:33 Speaker 2
But then there's another question.
00:07:35 Speaker 2
When the rule of law faces the state, it sometimes seems to do so in different ways.
00:07:40 Speaker 2
Ensuring legal constraint and accountability, that's one of them.
00:07:42 Speaker 2
That's what we're preoccupied with President Trump and his administration in the United States at the moment.
00:07:49 Speaker 2
Ensuring legal constraint and accountability is one thing, but where does Lon Fuller's in a morality of law fit him?
00:07:56 Speaker 2
Because if you try to apply that to
00:07:58 Speaker 2
to Trump and his administration, it's not entirely clear how it works.
00:08:02 Speaker 2
Is it irrelevant then, or is it just picking up on a different set of ideas?
00:08:06 Speaker 2
You remember in Fuller's conception, the rule of law makes certain demands on the manner in which power is exercised over us.
00:08:15 Speaker 2
The manner in which power is exercised over us is to take the form of rules that are clear, general,
00:08:22 Speaker 2
prospective, forward-looking, constant, relatively constant, practicable, consistent, and so on.
00:08:29 Speaker 2
They're not to be changing so frequently that people have trouble keeping up with them.
00:08:33 Speaker 2
They're not to be kept secret.
00:08:34 Speaker 2
They're gonna be publicized, and they're gonna be prospective and character, not retroactive or retrospective.
00:08:41 Speaker 2
So the idea is that as well as being constrained by law, the state is also faced with restrictions on the manner in which it operates.
00:08:48 Speaker 2
Fuller's 8 principles of what he called the inner morality of law.
00:08:54 Speaker 2
Has to do with the how of governance.
00:08:57 Speaker 2
If the rule of law for lawmakers has to do with to limit what our officials do, this has to do with the way that they do it and the mode in which they operate.
00:09:09 Speaker 2
So then, so that's a couple of facings, a couple of orientations that are oriented in different ways to the state.
00:09:16 Speaker 2
I'm not saying they're incompatible, that it's different.
00:09:19 Speaker 2
Now, is it only the government that's faced with rule of law demands?
00:09:22 Speaker 2
No.
00:09:23 Speaker 2
The rule of law is sometimes thought to make demands on ordinary people like us too.
00:09:27 Speaker 2
In the spirit of law and order, we require that the people in their individual capacity should be law abiding.
00:09:34 Speaker 2
We require that the state should do what's necessary to uphold proper deterrence, enforcement, and retribution.
00:09:40 Speaker 2
We think that we should do what the law requires of us even when we disagree with it.
00:09:44 Speaker 2
Even if we disagree seriously, we still have to pay our taxes.
00:09:48 Speaker 2
slow down on the freeway, act with reasonable care, refrain from overthrowing elections, and so on.
00:09:55 Speaker 2
We ought not to take the law into our own hands.
00:09:57 Speaker 2
We should submit our disputes to legal institutions, and we should accept legal sanctions and liability when we're found to have violated legal rules or obligations.
00:10:07 Speaker 2
The government is still involved here because it upholds and enforces the rules.
00:10:12 Speaker 2
And it's surely part of the law and order conception that the state must maintain a credible power of
00:10:18 Speaker 2
Deterrence, you see, Sherry's already thrown her microphone on the floor.
00:10:25 Speaker 2
Anarchy.
00:10:26 Speaker 2
Anarchy.
00:10:28 Speaker 2
Government's still involved because it makes and enforces the rules.
00:10:31 Speaker 2
And it's surely part of the law and order conception that the state must maintain a credible power of deterrence.
00:10:37 Speaker 2
However, with the law and order in view, it's ordinary people who are faced in the first instance by the demands of the rule of law.
00:10:44 Speaker 2
Their compliance is what's at issue.
00:10:47 Speaker 2
So what's the relationship between this people facing conception of the rule of law and these other two state facing conceptions of the rule of law?
00:10:59 Speaker 2
Both the constraint conception and Fuller's conception face questions about content notoriously or famously, depending on your point of view, Fuller's very thin conception of the morality of law so far as its form is concerned.
00:11:14 Speaker 2
can be applied to norms and orders with all sorts of contents.
00:11:18 Speaker 2
It looks like laws that are unjust or oppressive might satisfy his requirements.
00:11:22 Speaker 2
They too could be consistent.
00:11:23 Speaker 2
They too could be prospective.
00:11:25 Speaker 2
They too could be relatively stable in the way that an apartheid legal order was relatively stable.
00:11:31 Speaker 2
People sometimes even say that the Nazis had clear law that satisfied fullers in a morality.
00:11:37 Speaker 2
He didn't believe that for a moment, and I think he was right not to do so.
00:11:42 Speaker 2
But he speculated
00:11:44 Speaker 2
Fuller speculated that a lawmakers following his eight principles would make it more likely that he would come up with substantively just laws, or that substantively just laws would emerge from this process.
00:11:58 Speaker 2
Many doubt this as well.
00:12:00 Speaker 2
For some, it's the only point of interest in Fuller's conception, because legal philosophers tend to be preoccupied with the debate about legal positivism.
00:12:08 Speaker 2
And I'm thinking that that's not necessarily a healthy preoccupation if it's taken to be the be all and end all of jurisprudence.
00:12:15 Speaker 2
There's an awful lot that's important in this hypothesis of Fuller's, but there's an awful lot else in Fuller's conception that's important as well, and it tends to be neglected.
00:12:26 Speaker 2
But still, that doesn't help us with this issue that we're dealing with.
00:12:29 Speaker 2
Anyway, so what we have is a rather congested understanding of
00:12:36 Speaker 2
with at least three possible orientations presented by the rule of law operating in three slightly different directions.
00:12:43 Speaker 2
There's the constraint conception requiring that the state and its officials must be bound by law.
00:12:47 Speaker 2
There's Fuller's conception, seeing the rule of law as a set of requirements on how laws present themselves to those whom they constrain.
00:12:54 Speaker 2
And the law and order conception, which is a requirement of legal compliance incumbent on ordinary people.
00:13:01 Speaker 2
Other theorists might identify other facets besides these three.
00:13:05 Speaker 2
These are just mine to get the question going.
00:13:08 Speaker 2
Also, there may be controversies about the contents and implications of a given facet.
00:13:12 Speaker 2
Should Fuller's account be read as including procedural concerns?
00:13:15 Speaker 2
I mean, concerns of procedural due process, as well as formal concerns, concerns about the form of law.
00:13:21 Speaker 2
I think so.
00:13:22 Speaker 2
Others don't.
00:13:24 Speaker 2
The constraint conception might or might not be viewed as comprising the institutions that have been established to make it viable, particularly the independence of the judiciary.
00:13:34 Speaker 2
Where does the rule of law's hostility to administrative discretion fit in?
00:13:38 Speaker 2
What about anti-corruption?
00:13:40 Speaker 2
Can that be brought under the auspices of any of these other concerns?
00:13:44 Speaker 2
And then, quite apart from all this, and I'm not going to get into this today, there's the whole business of the dispute about whether we want a thin or a thick conception of the rule of law.
00:13:53 Speaker 2
Do we want to include under the heading of the rule of law commitment to individual rights?
00:13:58 Speaker 2
commitment to constitutional constraints, or is that a separate star in the constellation of our political ideals?
00:14:06 Speaker 2
I won't say much about that, but it's in the background here.
00:14:12 Speaker 2
So I've said that these conceptions, these three conceptions face in different directions.
00:14:17 Speaker 2
What do I mean by facing?
00:14:19 Speaker 2
Well, when I talk about the way in which the rule of law faces, I mean to identify what sort of conduct by what sort of person
00:14:27 Speaker 2
Acting in what sort of capacity the rule of law is supposed to affect?
00:14:31 Speaker 2
What sort of conduct by what sort of person acting in what capacity is it supposed to affect?
00:14:35 Speaker 2
Where's its primary force oriented, as I've been saying?
00:14:40 Speaker 2
In as much as the rule of law is a normative doctrine whose conduct is affected, whose conduct is affected by the norms it comprises?
00:14:47 Speaker 2
In what capacity does it address?
00:14:50 Speaker 2
And then also there's a second basis of distinction, the kind of normativity involved.
00:14:56 Speaker 2
We think of the rule of law as a normative part of our ideals, but normativity comes in many different shapes and sizes.
00:15:02 Speaker 2
Does a rule of law principle confront its addressees, whoever they are, in the spirit of a simple normative requirement, this ought to be done, this ought not to be done?
00:15:14 Speaker 2
Is it like a deontic demand, a Nozickian side constraint?
00:15:18 Speaker 2
Or is it a policy value, a rather good idea, a good reason, a lament, a basis for regretting things that have developed, as it certainly was for Albert Van Dicey?
00:15:30 Speaker 2
Or what?
00:15:31 Speaker 2
Is it just a matter of value-laden description with limited implications for what anybody or any person or any organization is actually required to do?
00:15:39 Speaker 2
Various NGOs, as you will know, produce rule of law rankings for the world.
00:15:44 Speaker 2
The World Justice Project is the best known and probably the most respectable of these.
00:15:48 Speaker 2
Canada ranks 13th at the last count, New Zealand 5th, United States 27th.
00:15:58 Speaker 2
And so it doesn't just generate a list of prescriptions, but it generates a list of factors to consider when they're doing some sort of calculation or counting.
00:16:10 Speaker 2
These distinctions too enter into what I have in mind for the orientation of the rule of law.
00:16:18 Speaker 2
And remember that a given normative principle can often face two ways.
00:16:22 Speaker 2
It can face officials in what they are required to do.
00:16:26 Speaker 2
So face them with a duty.
00:16:28 Speaker 2
And correlatively to that, it can face citizens with a benefit or a right.
00:16:35 Speaker 2
So the state has an obligation to legislate prospectively.
00:16:41 Speaker 2
And maybe the citizen has the right not to be confronted with retroactive legislation.
00:16:46 Speaker 2
So it faces two directions.
00:16:47 Speaker 2
Sometimes it matters which is which, which is primary and which is secondary.
00:16:55 Speaker 2
We know that the rule of law, which is really part of what I've been saying so far, is a complex ideal.
00:17:02 Speaker 2
Are there limits on its complexity?
00:17:04 Speaker 2
Is this a matter of methodology?
00:17:06 Speaker 2
Does the role of the rule of law require simplicity?
00:17:09 Speaker 2
Why would it?
00:17:10 Speaker 2
Does it matter if the rule of law's complexity appears haphazard?
00:17:14 Speaker 2
Can't we just weave the various themes I've mentioned into one single formulation with a whole lot of and, and, and?
00:17:24 Speaker 2
I've tended to just run the two themes that have interested me, follows conception and the constraint conception, together as though they added up to a single broad understanding, but it's purely cumulative.
00:17:35 Speaker 2
It's not hard to find a formula that will take in both sets of requirements, but verbal dexterity is not enough here.
00:17:41 Speaker 2
We want some sort of understanding.
00:17:44 Speaker 2
But it's a problem.
00:17:45 Speaker 2
How can we answer this?
00:17:46 Speaker 2
There's no canonical formulation of the rule of law.
00:17:49 Speaker 2
There's a canon of things that we read.
00:17:51 Speaker 2
We read Fuller's book.
00:17:52 Speaker 2
We read Dicey's book.
00:17:54 Speaker 2
We read E.P.
00:17:55 Speaker 2
Thompson's postscript to Whigs and Hunters.
00:17:57 Speaker 2
We read some works of Hayek, some works of Raz, some works of Finnis, and God help us, some works of Waldron on these matters.
00:18:07 Speaker 2
So it's not clear what we are to do about this complexity, whether it matters.
00:18:13 Speaker 2
And it both helps and perhaps doesn't help that each of these facets presents us with a list.
00:18:24 Speaker 2
The eight or nine ideas associated with Fuller's in a morality of law, the three or four points that go with the constraint account, the three ideas associated with diocese's work, the eight ideas in Joseph Raz's discussion, which varies in some respect from Fuller's,
00:18:41 Speaker 2
Eight in John Finnis's account, which mostly overlaps with Fuller's, four in John Rawls's outline in The Theory of Justice, and eight factors in the World Justice Project's conception, again, quite different from the octuples presented respectively by Fuller, Raz, and Finnis.
00:18:59 Speaker 2
So we have-- and when you get to the World Justice Project so that they can rank Canada 13th, they just take in a whole lot of what seemed to them to be rather good ideas, good labor relations,
00:19:11 Speaker 2
decent attitudes towards poverty, good attitudes towards social justice, and all of which are admirable.
00:19:17 Speaker 2
The question is, under what heading are we to list their admirability?
00:19:22 Speaker 2
Anyway, once the listishness is acknowledged, why can't we just accumulate the list we have to form a sort of master list?
00:19:28 Speaker 2
So we have
00:19:30 Speaker 2
The rule of law involving two or three things plus eight things plus one thing plus four things plus another eight things.
00:19:36 Speaker 2
The list of 24, if I'm counting right, that results may not be much more ad hoc than some of the lists that are already in play.
00:19:43 Speaker 2
It's just one damn thing after another.
00:19:46 Speaker 2
Would that be a problem?
00:19:48 Speaker 2
We don't think a problem that with a similar plurality does damage to the idea of human rights.
00:19:54 Speaker 2
I mean, human rights also presents itself as a list, there's a right to this,
00:19:59 Speaker 2
And never mind that, there's a right to that, there's a right to this other thing, and there are several rights relating to process, and there are these rights relating to welfare, and these rights relating to torture and so on.
00:20:12 Speaker 2
Human rights present themselves as a list.
00:20:14 Speaker 2
They don't always integrate themselves into a single body of theory.
00:20:19 Speaker 2
Although recently, as you'll know, there have been attempts to do that under the auspices of a conception of dignity.
00:20:25 Speaker 2
But would that be a problem just to frankly acknowledge that the rule of law is not just one thing, but a series of perhaps unrelated demands with not much more common in common than that each of them make some reference to the law?
00:20:37 Speaker 2
We could approach the rule of law this way.
00:20:40 Speaker 2
And maybe it's a waste of time to do anything else.
00:20:42 Speaker 2
But we're not short of time and we're not short of ink.
00:20:46 Speaker 2
So we might as well see if there's any progress to be made.
00:20:50 Speaker 2
Because we know you can come up with points of contact.
00:20:52 Speaker 2
There seem to be bits of dicey.
00:20:54 Speaker 2
that overlap with little bits of Fuller and so on.
00:20:57 Speaker 2
But again, overlaps are not what we want.
00:20:59 Speaker 2
What we want is understanding.
00:21:07 Speaker 2
Blah, blah, blah.
00:21:11 Speaker 2
Look, here's the best that I can come up with in the way of a more substantial connection.
00:21:18 Speaker 2
Let's think, for example, the relationship between the constraint conception, constraining the state and its officials, and Fuller's conception, number one and number two.
00:21:27 Speaker 2
in my idea.
00:21:30 Speaker 2
I really ought to have had a PowerPoint with all this up, but it doesn't matter.
00:21:38 Speaker 2
The constraint conception that we want our rulers like President Trump and the members of his administration and other officials to be constrained in what they do in the purported exercise of their powers.
00:21:50 Speaker 2
Now, it's not just that we envisage them being constrained by it doesn't matter by what,
00:21:56 Speaker 2
or constrained in any old way.
00:21:58 Speaker 2
What we envisage is there being constrained by law, right?
00:22:02 Speaker 2
That we want legal constraint, not the same as constraint by bishops or constraint by colonels in the military or constraint by mob action.
00:22:11 Speaker 2
Remember Lewis Namier referred to the governance of Britain in the 18th century as oligarchy tempered by riot.
00:22:17 Speaker 2
So rioting was one of the institutional sources of constraint.
00:22:21 Speaker 2
It's not even just political checks and balances constraint by Congress, if you can imagine that.
00:22:26 Speaker 2
It's that we want the officials to be constrained by law, and that has a specific character.
00:22:34 Speaker 2
And the character that it has is given in Fuller's account.
00:22:37 Speaker 2
We want them to be constrained by laws that are prospective and clear and add up to a constant, relatively permanent framework and that are consistent and that are
00:22:52 Speaker 2
that are practicable.
00:22:53 Speaker 2
We want the state to be constrained by norms that satisfy Fuller's principles.
00:22:58 Speaker 2
We want something like Fuller's perspective in place in order to develop the first, the constraint conception as a powerful and appealing idea.
00:23:08 Speaker 2
We want there to be something like law in the community and we want that to be the mechanism that constrains President Trump.
00:23:16 Speaker 2
So not just any old constraint will do if we want legal constraint, at least under the auspices of the rule of law, that's what we want.
00:23:22 Speaker 2
And so Fuller's account partly serves that by telling us what legal constraint amounts to in very abstract terms, admittedly.
00:23:30 Speaker 2
And I think that's a sort of substantive connection that I'm looking for.
00:23:36 Speaker 2
Now, the trouble with this is that it seems to read as though it puts the constraint conception in the driver's seat.
00:23:42 Speaker 2
as though it's the most important thing.
00:23:44 Speaker 2
And what we are asking is what does it presuppose?
00:23:47 Speaker 2
What does it assume in order to work properly?
00:23:50 Speaker 2
But we would like to have some other movement in the opposite direction.
00:23:54 Speaker 2
And we still haven't said anything about the law and order conception of the rule of law.
00:24:03 Speaker 2
I said near the beginning that the principles set out in Fuller's conception are in some sense binding on the state.
00:24:12 Speaker 2
The state is not to legislate retroactively.
00:24:14 Speaker 2
The state is to make sure that its laws are clear and stable.
00:24:18 Speaker 2
The state is to operate procedurally correct institutions for dispute resolution.
00:24:22 Speaker 2
These obligations are not exactly what the proponents of the first constraint conception have in mind, but they are not nothing.
00:24:29 Speaker 2
A state that follows Fuller's conception in regard to the legal system that it administers is a state that has to get used to doing things in a certain way.
00:24:39 Speaker 2
and hence not following certain strategies of government that might otherwise be tempting.
00:24:44 Speaker 2
The state's acceptance of this discipline sets it on the road, as it were, to be cut to the acceptance of constraints in sense one.
00:24:51 Speaker 2
So Fuller's account is a constraining idea.
00:24:52 Speaker 2
It says no retroactivity.
00:24:55 Speaker 2
You should feel bad about retroactivity.
00:24:57 Speaker 2
Shouldn't do it.
00:24:59 Speaker 2
No laws that are inconsistent.
00:25:00 Speaker 2
No laws that are changing so often that people can't keep up.
00:25:04 Speaker 2
And it's addressing that to lawmakers.
00:25:07 Speaker 2
And so addressing it implicitly to the whole state apparatus that is required to act in this sort of way.
00:25:12 Speaker 2
Why?
00:25:13 Speaker 2
Because we want this network of operating institutions to be available to check government, among other things, as well as to order the society.
00:25:23 Speaker 2
We don't want just any old order, just any old constraint.
00:25:25 Speaker 2
We want constraint under law, subject to the specific demands that make something count as law.
00:25:38 Speaker 2
So let's ask now how the law and order idea might be related to these two other conceptions.
00:25:45 Speaker 2
Let's begin by acknowledging that it's an open question whether law and order is even comprised in the rule of law.
00:25:51 Speaker 2
And calling it an open question is not meant to be a sneaky philosopher's trick of inferring that it's false from the fact that it's not obvious.
00:26:00 Speaker 2
I think it really is an open question and exploring it will be a large part of what the rest of this lecture involves.
00:26:07 Speaker 2
And yes, the answer may well be that some version of law and order is comprised in the ideal we call the rule of law.
00:26:14 Speaker 2
Some rule of law theorists won't have anything to do with that.
00:26:17 Speaker 2
Do you know Jerry Postumer?
00:26:19 Speaker 2
Yeah, great friend of mine and a wonderful legal philosopher.
00:26:24 Speaker 2
He thinks of the rule of law as particularly ideal of legal constraint on government, which is where we began at the start of this lecture.
00:26:31 Speaker 2
And he believes that any preoccupation with whether or not citizens are obeying the law is a distraction and a distortion.
00:26:38 Speaker 2
Law and order, he says, is a distortion of the rule of law because the first and governing concern of the rule of law is not with broken rules, but with abused power.
00:26:48 Speaker 2
Not with broken rules, but with abused power.
00:26:50 Speaker 2
That's the conception.
00:26:51 Speaker 2
And relative to that, focusing whether the citizens are playing their part is perhaps a distraction.
00:26:59 Speaker 2
And maybe he's right about that.
00:27:00 Speaker 2
I go back and forth on this.
00:27:02 Speaker 2
There's nothing in the way of conclusion in this paper that I'm striving to realize, except that it's worth investigating these connections.
00:27:13 Speaker 2
When we talked about the constraint conception, we acknowledged that that kind of presupposes that there is an up and running legal order available to do the constraining.
00:27:24 Speaker 2
We didn't just want constraint by bishops or constraint by colonels or constraint by mobs.
00:27:29 Speaker 2
We wanted constraint by people acting under legal auspices, and that required a legal system in good shape, as John Finnis would say under the heading of his Valerian conceptions.
00:27:40 Speaker 2
Well, maybe it's the same with the law and order conception.
00:27:44 Speaker 2
When we envisage the state being constrained by law, we envisage law being up and running, not just as an institutional enterprise, but as an important facet of our society.
00:27:57 Speaker 2
that the society has succeeded in establishing its business relationships, its employment relationships, many aspects of its family relationships, its ordinary relationships among political competitors, the state of the society have developed in their own self-understanding a view that all of this should be subject to laws.
00:28:19 Speaker 2
And when they think of themselves as being subject to a government of laws and not men,
00:28:23 Speaker 2
It's not just that they want laws and not men to order the actions of the officials, but they want laws and not men to provide the basis of the social interactions that we frame and make provision for in our society.
00:28:37 Speaker 2
We certainly want legal institutions to exist.
00:28:41 Speaker 2
We certainly want legal, a general spirit of law abidingness to exist.
00:28:45 Speaker 2
And we want to take all of that now substantively, not just institutionally, take that and say, and that is what we want.
00:28:53 Speaker 2
President Trump to submit to, to submit to the same order that up and running is operating in our lives as well.
00:29:00 Speaker 2
Not that it operates perfectly, but most of us go about in a law abiding way, conscious of the laws, making adjustments to our behavior, monitoring our behavior for compliance with our laws.
00:29:12 Speaker 2
I was driving from Toronto Airport last night to Kingston and conscious as I was driving in darkness that I had to constantly monitor the circumstances
00:29:23 Speaker 2
the speed limits, the state of the traffic, my own conduct, my heavy foot on the accelerator, so that I could internalize the laws.
00:29:32 Speaker 2
I had to quickly do that because of the laws of Canada, not New York.
00:29:36 Speaker 2
I had to quickly do that, internalize the laws, draw down on the general notion that the laws are sensible, show respect for other drivers under the auspices of the framework that constrains us both.
00:29:50 Speaker 2
monitor my behavior in relation to these norms and modify my behavior.
00:29:54 Speaker 2
I had to use my agency in these quite sophisticated ways.
00:29:57 Speaker 2
One of the things that I talk about in the thoughtfulness in the law of law book is the importance of self-application.
00:30:02 Speaker 2
Thank you.
00:30:05 Speaker 2
Is the importance of self-application in the operation of law.
00:30:10 Speaker 2
Not that the law, that's the Montreal contribution.
00:30:17 Speaker 2
Not that law applies itself,
00:30:20 Speaker 2
but the law often works by people applying it to themselves and complex laws as well as simple ones.
00:30:27 Speaker 2
Anyway, the ethos, the framework of a whole society organized around law, that's what we want the Trump administration to be constrained by, not just laws which in the abstract as textual propositions satisfy the demands of consistency or generality or whatever it is.
00:30:45 Speaker 2
If ordinary people are by and large ignoring the law,
00:30:49 Speaker 2
or flouting it or treating it as though it doesn't matter, then the whole business of using it, using law to constrain the state and its agencies will fall rather flat.
00:31:00 Speaker 2
Brian Tanamaha, who writes excellent work on the rule of law, has said the state can be constrained only if there are robust, functioning legal institutions, prosecutorial or judicial ones, widely dispersed at various levels and
00:31:17 Speaker 2
settings of government along with a vigilant civil society.
00:31:20 Speaker 2
Or perhaps this is possible only if enforcement officials already have their experience of using their resources and their institutions in respect of ordinary people.
00:31:31 Speaker 2
It's not that the prosecution of a state official is just the same as the prosecution of a private individual, but many of the legal values are the same and the legal culture that surrounds it is importantly the same.
00:31:42 Speaker 2
And what I'm insisting is it's not constraint in the abstract that we want.
00:31:46 Speaker 2
the government it's constrained under the auspices of this enormously valuable culture instead of institutions and way of thinking that we call law and the rule of law tries to bring all of that to bear on our conduct as well as the conduct of our officials again blah blah blah you'll be pleased to hear we're sort of heading to the end here I was running out of pages that I wanted to talk about
00:32:19 Speaker 2
I'm not sure whether we should be satisfied with what I've given you so far.
00:32:22 Speaker 2
I think it's the kind of argument that we want.
00:32:25 Speaker 2
And it's an argument that takes account of the presence of law in our lives and puts that available as part of our political morality.
00:32:36 Speaker 2
But if we're not satisfied with the strategies explored so far, then what about just simply going back to the cumulative list?
00:32:45 Speaker 2
Thinking back to what was said about the listishness of the rule of law, why not just posit
00:32:49 Speaker 2
a freestanding principle or set of principles of law and order as a distinct but important component of the rule of law and leave it at that.
00:32:57 Speaker 2
Well, you may say, we can't just posit something, can we?
00:33:00 Speaker 2
can't just make something up.
00:33:02 Speaker 2
Well, when Dicey made-up his third principle of the rule of law, which had to do with constitutional induction, whatever that means, he just made it up, just came from some conversation between him and Mrs.
00:33:12 Speaker 2
Dicey over a fireside one night.
00:33:17 Speaker 2
Many of our political
00:33:19 Speaker 2
political ideals, the ones that we talk about, the ones that we reproach others with, the ones that we triumphantly wave in our banners, many of those have emerged in a rather haphazard way from the lives of ordinary people.
00:33:30 Speaker 2
And they're not our property, the legal philosophers.
00:33:33 Speaker 2
We are stewards of them, perhaps, but it's not our responsibility to make them, to construct them.
00:33:40 Speaker 2
But it is our responsibility to understand the various strands and the various themes that have been involved in this heritage
00:33:47 Speaker 2
of thinking about rule of law that still seems to matter with us.
00:33:53 Speaker 2
I still think that given that there's no shortage of time or ink, we have an obligation to do what we can to see what the relation is among these various ideas and to try to think about ways in which we might reduce the plurality of ideas, not because we're against plurality, but we just want to see how things fit together.
00:34:13 Speaker 2
So I'm sorry, people, if this exploration has been so inconclusive.
00:34:17 Speaker 2
And God help my commentators.
00:34:19 Speaker 2
I have to react to it.
00:34:22 Speaker 2
I do think it would be a pity if my various audiences were to conclude that the rule of law has decomposed itself into a mishmash of varying perspectives.
00:34:33 Speaker 2
It's a prospect that the late Richard Fallon, who used to teach law at Harvard, described in these terms, the rule of law might be seen as an analytic jumble.
00:34:43 Speaker 2
that can foster nothing but confusion until its diverse and competing values are disaggregated.
00:34:49 Speaker 2
In short, it might appear that the rule of law upon analysis is easily reducible into its component parts, all reasonably independent of each other, and there is no larger whole worth retaining.
00:35:00 Speaker 2
That's possible.
00:35:01 Speaker 2
It may be the conclusion that we're left with.
00:35:04 Speaker 2
And that might be grist to the mill of his Harvard colleague Judith Schlar's confession that ideological abuse
00:35:11 Speaker 2
and analytic equivocation have led her to the view that no further effort need be wasted on this piece of ruling class chatter.
00:35:19 Speaker 2
To avoid a conclusion like that, and you will have noticed that, you know, I'm in favor of the rule.
00:35:25 Speaker 2
I'm doing this from a position of love.
00:35:29 Speaker 2
To avoid a conclusion like that, I've tried to establish a bit of structure.
00:35:32 Speaker 2
I've followed some leads and investigated a couple of presuppositional relations back and forth between the constraint facet
00:35:40 Speaker 2
and the fullerian facet and between the constraint facet and the law and order facet.
00:35:45 Speaker 2
And some presuppositional relations exist and they're important.
00:35:49 Speaker 2
Maybe it's too much to hope that we could secure a dense, unitary and powerful account of analytic relations among the three faces of the law that I've been considering.
00:35:58 Speaker 2
There's much more work to be done, but at least we've got ourselves to something a little bit more than just arbitrary juxtaposition.
00:36:06 Speaker 2
So I'm just putting this forward for your consideration.
00:36:09 Speaker 2
Thank you.
00:36:10 Speaker 2
Thank you very much indeed.
00:36:24 Speaker 3
OK, I'll just head over there then.
00:36:27 Speaker 2
You want me to move this stuff out of the way, Jean?
00:36:29 Speaker 3
Oh, no, it's OK.
00:36:30 Speaker 2
Are you sure?
00:36:31 Speaker 3
Well, maybe.
00:36:35 Speaker 2
I want you to see the parts I've missed out.
00:36:39 Speaker 3
So I, some of me, but what you might not know is that I had the great good fortune to have Professor Waldron as my PhD supervisor.
00:36:45 Speaker 3
And I owe him a great, great deal.
00:36:47 Speaker 3
He was not only an excellent teacher, as I'm sure you can imagine, but a really inspiring one.
00:36:52 Speaker 3
And I will always be grateful to him for that and for many other things.
00:36:57 Speaker 3
So I wrote some thoughts about Professor Waldron's thinking about the rule of law
00:37:05 Speaker 3
And the way that he has presented it here today is in terms of these two competing ideals of the Fullerian constraint and the law and order and the way that these orientations face one another.
00:37:17 Speaker 3
And the one thing that he didn't really talk all that much about is one of the things that he has written the most about, which is the procedural conception of the rule of law and the role of procedure and legal procedure in the rule of law.
00:37:29 Speaker 3
And in my view, the rule of procedure is perhaps a way in which those two facets of the rule of law come together.
00:37:37 Speaker 3
The state is constrained also by legal procedures.
00:37:41 Speaker 3
Procedures are also the way in which individuals bring their complaints to the state, the way in which that correlative relationship between the complaints against the state for its violation of the Filerian principles and the correlative rights that individuals have against the state, those are brought together in legal procedure.
00:37:57 Speaker 3
And so I'm going to talk a little bit about that aspect of Professor Waldron's conception of the rule of law.
00:38:05 Speaker 3
Because I think it's
00:38:07 Speaker 3
I think one of the things about it that makes it really new from all these and distinctive from these other conceptions that have been going on for some thousands of years is that he, as the book says, it asks us to be thoughtful.
00:38:22 Speaker 3
It conceives of the law as facilitating thoughtful self-application.
00:38:25 Speaker 3
Professor Wildron referred to that when he talked about the application of a standard like reasonableness or the judicial application of a standard like cruel and inhuman treatment.
00:38:37 Speaker 3
So he conceives of the law as facilitating thoughtful self-application and opening a space for shared deliberation.
00:38:45 Speaker 3
So this is one of the things that I see as uniting or holding together the rule of law in its different facets in the way Professor Waldron has presented it.
00:38:57 Speaker 3
And the most important thing for me that the rule of law on this account requires is that people be allowed to bring their points of view before a legal process that treats them as dignified.
00:39:05 Speaker 3
Legal procedures conform to the rule of law when they are open to competing arguments and when judges conversely show that they have engaged properly with the claims of parties by giving well-reasoned decisions.
00:39:16 Speaker 3
Professor Waldron's conception, the rule of law treats persons as somewhat distinctly from other conceptions of the rule of law.
00:39:23 Speaker 3
He describes persons as active centers of intelligence.
00:39:26 Speaker 3
This is what allows for the thoughtful self-application of the law.
00:39:30 Speaker 3
And I think this is important because it creates A reciprocity of entitlement and responsibility in the way we engage with the law as persons.
00:39:37 Speaker 3
And I think that reciprocity of entitlement and responsibility coalesces nicely with the kind of duality that Professor Waldron was describing today.
00:39:48 Speaker 3
So this procedural element of aspect of the rule of law emphasizes our entitlement to speak on our own behalf, to advocate for our interests, to present our own points of view.
00:39:58 Speaker 3
And of course, this resonates with Professor Waldron's work elsewhere on the concept of dignity, which for him means that everyone has equally high status.
00:40:06 Speaker 3
He describes this way of thinking about dignity elsewhere as a sort of moral orthopedics
00:40:11 Speaker 3
according to which we can each stand tall and present ourselves to the world as owed the regard and respect due to a being of noble bearing.
00:40:19 Speaker 3
And the rule of law fits into this picture partly by requiring that legal procedures create spaces when we come into conflict with the state, for instance, to present ourselves in that way, demanding the respect due to us as beings who are entitled to our own views on things.
00:40:35 Speaker 3
The rule of law here requires that law be a space of active argumentation in which competing points of view are given space and given voice so that we're treated with dignity in the right way.
00:40:45 Speaker 3
So far so compelling.
00:40:46 Speaker 3
But I also want to draw attention to one of the things that the rule of law asks of each of us morally speaking in this procedural context or in the institutional legal context.
00:40:56 Speaker 3
What is the moral virtue required by this way of thinking about the rule of law?
00:41:01 Speaker 3
This is just one suggestion that or one thought that I had.
00:41:04 Speaker 3
Because one way of thinking about this is to ask how the rule of law might break down.
00:41:07 Speaker 3
What moral failure might cause that to happen?
00:41:09 Speaker 3
Of course, we're seeing this all around us, right?
00:41:11 Speaker 3
Procedures could be shut down altogether.
00:41:13 Speaker 3
Hooded agents could take people off the street and turn them, deport them without giving them a chance to explain their points of view.
00:41:19 Speaker 3
But in my view, something that insidious isn't necessary on Professor Waldron's account of the rule of law as he's been developing it for the rule of law to break down.
00:41:27 Speaker 3
And that's because for the rule of law to do its work, we must behave and treat others, as he says, in these legal settings as active intelligences.
00:41:35 Speaker 3
When we hear the point of view of someone else presented in those settings, we are called on to pay attention and I think in good faith, be open to what they have to say.
00:41:45 Speaker 3
And it is thus the deploying of our active intelligence in good faith that breathes life into the rule of law, into those general constraints that are operating at a very high level.
00:41:53 Speaker 3
Because widespread or systematic failure to listen in good faith to the point of view that someone else is presenting is fatal to sustaining a society imbued with the rule of law.
00:42:02 Speaker 3
Both the presentation and the hearing must be in good faith.
00:42:06 Speaker 3
Again, you have that reciprocity, right?
00:42:07 Speaker 3
Otherwise, the possibility of persuasion
00:42:10 Speaker 3
and even if meaningful disagreement disappear, overshadowed by contemptuous indifference for those with different points of view.
00:42:16 Speaker 3
And that, I think, when we see the rule of law break down around us, in particular to the south of us, that is what we see.
00:42:22 Speaker 3
But engaging with others as active intelligences in good faith is the opposite of contemptuous indifference.
00:42:28 Speaker 3
And it's at the heart of how I understand Professor Waldron's vision of the rule of law and what it demands of us in terms of bringing together the state and its responsibilities and the individual and our responsibilities and our entitlements.
00:42:41 Speaker 3
Now this is not to say that the rule of law calls on us to reach some sort of happy compromise, to become comrades or friends.
00:42:47 Speaker 3
It's rather a conception of the rule of law that engages human dignity in both the entitlement of noble bearing and self-presentation, the moral orthopedics,
00:42:55 Speaker 3
and in the responsibility to listen, to reason, and even deeply disagree in good faith.
00:43:01 Speaker 3
The procedures of the rule of law, which are, Professor Walter didn't speak of them so extensively today, but has spoken extensively about them elsewhere, and which are lauded by him, those procedures are denuded of their moral potential if people enter into them only superficially, failing to recognize the equal status of the other, for equal entitlement not just to speak, but to genuinely be heard.
00:43:24 Speaker 3
And this idea about the relation between legal procedure and its capacity to protect human dignity has long been a strand of Professor Waldron's work.
00:43:31 Speaker 3
I just want to call your attention to this.
00:43:32 Speaker 3
He's written about how the law protects dignity by, among other things,
00:43:37 Speaker 3
creating a space in which parties are treated respectfully and, as he says, listened to by a tribunal that is responsive to their arguments.
00:43:44 Speaker 3
So we might think of this aspect of the rule of law as emphasizing a particular mode of relating to one another in the legal context, namely with genuine openness to persuasion and simply in good faith.
00:43:57 Speaker 3
And it is in this sense, I think, that Professor Waldron's rich conception of human dignity as conferring both entitlement and responsibility is engaged by his conception of the rule of law.
00:44:06 Speaker 3
The final thing I want to say is about the kind of capaciousness of the concept of rule of law that he's described.
00:44:14 Speaker 3
That people in society disagree about things and their disagreement is a reflection of their thoughtful agency and basic human dignity, forms the basis of some of Professor Waldron's most famous contributions to legal philosophy.
00:44:26 Speaker 3
But it's important to notice the role of disagreement for Professor Waldron, as well as its moral significance in relation to the articulation and analysis of concepts more generally, as in the concept of the rule of law that we're talking about here today.
00:44:40 Speaker 3
This, in my view, is one of his most salutary contributions to philosophy more generally, because concepts are, in Professor Waldron's work, both complex and evaluatively charged.
00:44:50 Speaker 3
They are, as he says, morally motivated by the reasons for which the thing in question is valuable.
00:44:56 Speaker 3
And what's really important about this, especially for here today, is that these reasons must be broad and inclusive enough to allow for people to have different views about what a good law is or what a good conception of the rule of law is or how democracy is best instantiated or what exactly dignity means and requires.
00:45:13 Speaker 3
And this means that Professor Waldron gives accounts of concepts characteristically as complex rather than reductively analytic.
00:45:21 Speaker 3
whose application requires intelligent and thoughtful interpretation, and which can therefore sustain particular substantive positions that people can disagree about while sharing a concept that they all understand.
00:45:34 Speaker 3
And that's all I have to say.
00:45:36 Speaker 3
Thank you.
00:45:54 Speaker 4
Exercise part of you.
00:45:57 Speaker 4
Yes.
00:46:00 Speaker 4
So Jeremy's lecture and Jean's comment focus on a puzzle about the rule of law.
00:46:08 Speaker 4
What does the rule of law itself require?
00:46:10 Speaker 4
What are its parts?
00:46:11 Speaker 4
What are the interrelations of its parts?
00:46:13 Speaker 4
But the rule of law also raises a further puzzle.
00:46:17 Speaker 4
How does it operate when confronted by an ideal that makes opposing demands?
00:46:24 Speaker 4
Now, in his illuminating book, Thoughtfulness and the Rule of Law, Jeremy touches on this question when he explains that the rule of law is, as he puts it, but one star in a constellation of political ideas and that trade-offs are sometimes necessary.
00:46:41 Speaker 4
And he leaves it at that.
00:46:43 Speaker 4
And I think there's a difficulty lurking here that we need to confront.
00:46:47 Speaker 4
One aspect of the rule of law is that it stands against arbitrariness.
00:46:53 Speaker 4
And so we routinely contrast the rule of law with the rule of men.
00:46:57 Speaker 4
And some of you may have attended a lecture earlier this week where I fulminated about the importance of drawing a sharp distinction between the purposes of a public office and the purposes of the person who happens to occupy it.
00:47:14 Speaker 4
But if the rule of law can be traded off against other ideals, and there are no standards governing those trade-offs, then arbitrariness seems to return.
00:47:24 Speaker 4
It would seem that whenever the rule of law conflicts with another ideal, the official who is bound by the law in applying a rule would be unconstrained in deciding whether and to what extent the rule of law should yield to the opposing ideal.
00:47:40 Speaker 4
So I want to ask, what would a principled account of the relationship between the rule of law and our other political or constitutional ideas look like?
00:47:49 Speaker 4
I think that a compelling answer can be found in the most difficult case in the history of the Supreme Court of Canada, the secession reference.
00:47:58 Speaker 4
And if you haven't encountered it yet, I know there's someone else in the room, you will in the next few weeks.
00:48:02 Speaker 4
The central issue in this case was whether Quebec could unilaterally secede from Canada.
00:48:08 Speaker 4
The court identified four constitutional principles that bore on this question.
00:48:12 Speaker 4
One, federalism, two, democracy, three, constitutionalism and the rule of law, and four, respect for minorities.
00:48:19 Speaker 4
The court explained that these are not free floating principles of political morality.
00:48:23 Speaker 4
Each is at home in our constitutional structure, and each constrains the exercise of public power.
00:48:30 Speaker 4
The court found itself confronted by two positions in this reference.
00:48:36 Speaker 4
each of which attempted to establish a hierarchy among these principles.
00:48:41 Speaker 4
Canada's position made constitutionalism and the rule of law the master principle.
00:48:45 Speaker 4
Since no constitutional provision empowers a province to secede unilaterally, unilateral secession is unlawful.
00:48:53 Speaker 4
Notice what follows.
00:48:55 Speaker 4
Even if every Quebecer answered yes to a clear referendum question concerning secession, the vote would have no legal consequence.
00:49:05 Speaker 4
In other words, democracy would count for nothing.
00:49:09 Speaker 4
In contrast, the amicus curiae arguing the sovereigntist position made democracy the master principle.
00:49:15 Speaker 4
Quebecers are a people.
00:49:17 Speaker 4
A people has the right to determine its own future and may do so by referendum.
00:49:21 Speaker 4
From this standpoint, democracy counts for everything.
00:49:26 Speaker 4
The other principles count for nothing.
00:49:29 Speaker 4
The court unanimously rejected both of these reductivist positions.
00:49:34 Speaker 4
From its reasons, we can draw three conditions that govern conflicts between constitutional principles, including the rule of law.
00:49:44 Speaker 4
First, the constitutional principle can be traded only against other constitutional principles, not against policy, expediency or the preferences of officials.
00:49:54 Speaker 4
In other words, trade-offs must preserve the supremacy of constitutional law.
00:50:00 Speaker 4
Second,
00:50:01 Speaker 4
Neither the rule of law nor any competing constitutional principle can be traded away in its entirety.
00:50:07 Speaker 4
The Constitution presents each of these principles as equally binding.
00:50:12 Speaker 4
It establishes no hierarchy among them.
00:50:16 Speaker 4
Ranking them, creating a hierarchy, would not only introduce arbitrariness, it would blur the distinction between constitutional interpretation and constitutional amendment.
00:50:27 Speaker 4
Thus, the position of the government of Canada and of the sovereigntists
00:50:31 Speaker 4
These positions were defective for the same reason.
00:50:34 Speaker 4
Each treated one or more constitutional principles as if they were nothing.
00:50:40 Speaker 4
The third condition is that the principles must coexist.
00:50:44 Speaker 4
The task is not to stipulate a hierarchy, but to explain how to give effect to each principle in the circumstances at hand.
00:50:53 Speaker 4
And so the court explained a clear majority supporting secession on a clear question would engage the democratic principle and impose a reciprocal duty on the federal government and all the provinces Quebec included to negotiate.
00:51:07 Speaker 4
Secession must still be accomplished lawfully through amendment.
00:51:11 Speaker 4
No province can remake the federation on its own and minority rights would have to be protected in this process.
00:51:19 Speaker 4
Taken together, these conditions mean that when constitutional principles collide, each may yield only to other constitutional principles only in part and only within an arrangement that gives effect to them all.
00:51:34 Speaker 4
Even when the rule of law yields, it yields according to legal standards.
00:51:40 Speaker 4
So my question for Jeremy is this.
00:51:43 Speaker 4
When he says that trade-offs are sometimes necessary between the rule of law and other ideals, does he accept these standards?
00:51:52 Speaker 4
And if not, what prevents the trade-offs from reintroducing the very arbitrariness that the rule of law exists to exclude?
00:52:02 Speaker 4
Thank you very much.
00:52:08 Speaker 2
Thank you.
00:52:14 Speaker 5
I just like to get my microphone on the floor.
00:52:17 Speaker 5
Want me to respond to these?
00:52:35 Speaker 5
Would you like to just, do you want just a minute to respond?
00:52:38 Speaker 5
Yes, yes, yes, please do.
00:52:50 Speaker 2
In my mind.
00:52:52 Speaker 2
If, as I go around saying all the time, we have multiple stars in the constellation of our ideals, not just within the constitutional framework, but within our consciousness of political morality, does that mean that I'm quite happy with any old trade-offs between them, any sort of arbitrariness in the trade-offs?
00:53:09 Speaker 2
And the answer is no, and for exactly the reasons that Jacob indicated.
00:53:13 Speaker 2
You have to have
00:53:15 Speaker 2
You have to introduce something like non-arbitrary trade-offs.
00:53:17 Speaker 2
And one of the wonderful things about law is it establishes A framework to deliberate on these things.
00:53:23 Speaker 2
The 3 conditions that Jacob set out, I don't know whether I accept all of them, but they seem to me to be of the right sort, that within the highly artificial framework of deliberation that the law provides for us, and this applies to Jean's discussion as well.
00:53:40 Speaker 2
It's not just that it provides A framework for active intelligences.
00:53:44 Speaker 2
to interact, but it provides quite a rigid liturgy.
00:53:49 Speaker 2
There is this to do in the way of pleadings, and there is this in the way of hearings.
00:53:54 Speaker 2
And at a hearing, this person speaks, and then somebody else speaks.
00:53:57 Speaker 2
And there are only certain things that you can be responsive to.
00:54:00 Speaker 2
By the standards of philosophy seminars, ha ha, this might seem sort of highly fetishistic and formalistic, but it's what law does in a community of 1/4 of a billion people
00:54:14 Speaker 2
You know, most of them highly opinionated, furious, angry, many of them on drugs.
00:54:20 Speaker 2
And they have to find a way, sort of a way of dealing with one another in the midst of their disputes that maximizes the possibility for something compromise emerging on this basis.
00:54:35 Speaker 2
So I want to just add that element to what Gene said and what Jacob said.
00:54:41 Speaker 2
What we look for from law is not just a framework for deliberation, but a relatively rigid framework, a framework that can stand up robustly and order our thoughts and expression and the sharing of our thoughts and the back and forth, even when we are at each other's throats, even when we have to invoke very serious resources of civility to even stand in the same room with and listen to each other.
00:55:06 Speaker 2
So that's important.
00:55:07 Speaker 2
And that again sounds like it's
00:55:11 Speaker 2
introducing procedural values, and in a way it is.
00:55:14 Speaker 2
I am much indebted to Gene for mentioning the procedural side of my work on this.
00:55:19 Speaker 2
I only alluded to it very briefly.
00:55:22 Speaker 2
Basically, my view is, look, Lon Fuller was one of the great proceduralists within the legal process school.
00:55:28 Speaker 2
His paper on forms and on limits of adjudication is a fabulous one.
00:55:33 Speaker 2
Where else would you find the suggestion that the reason why we asked judges to write opinions is to make sure that they were listening?
00:55:41 Speaker 2
And they could show in good faith that they were listening to the parties, and that's why they have to write these little essays that accompany their decisions in the way that, say, judges in a skating contest don't have to do.
00:55:53 Speaker 2
So the stuff about frameworks of procedure I had wanted to include under the fuller conception, but it has an important relationship to individual dignity and to respect the dignity that law promises.
00:56:10 Speaker 2
And Jean Thomas was absolutely right to put that front and center in her comments.
00:56:17 Speaker 2
I much appreciated the comments of both my commentators.
00:56:20 Speaker 2
We should all be so lucky to have this sort of wonderful responsiveness.
00:56:29 Speaker 2
The kind of deliberation that we seek among a bunch of people who are at each other's throats doesn't block or sound much like what we have in this room.
00:56:37 Speaker 2
But there's always a morality of aspiration as well as a moral minimum.
00:56:42 Speaker 2
I'm mostly talking about the moral minimum, but I've been blessed with the morality of aspiration being instantiated here today.
00:56:50 Speaker 2
So thank you very much indeed.
00:56:52 Speaker 2
I look forward to questions.
00:57:02 Speaker 5
Yes, Mike.
00:57:03 Speaker 5
Okay.
00:57:04 Speaker 5
So yeah, so we'll just, if you want to put up your hands and I can try to keep a queue except that I don't know everyone in the room because we have so many people here.
00:57:12 Speaker 5
But if you, let's have just a few people who can put up their hands and then if there's questions online, you know, just type them into the chat.
00:57:22 Speaker 5
All right, we'll start.
00:57:23 Speaker 5
Just maybe just say your name before you ask your question.
00:57:27 Speaker 6
Thank you for the lecture.
00:57:29 Speaker 6
My question was about your suggestion of having the list for the rule of law.
00:57:33 Speaker 6
Like right now, rule of law, as I understand it seems to be very abstract.
00:57:38 Speaker 6
And I see that, or at least interpret that as almost a benefit, like that was a useful thing that it was very abstract so it can be used to reason in different ways.
00:57:47 Speaker 6
Wouldn't having the list kind of limited because anytime you would wanna add something to the list, then it would be
00:57:53 Speaker 6
almost accompanied by a more rigid justification for it, which now that I think about it could be useful as well.
00:57:59 Speaker 6
But yeah, your thoughts on that?
00:58:04 Speaker 2
Thank you.
00:58:05 Speaker 2
That's nearly enough to meet it.
00:58:10 Speaker 2
If we just have a list and therefore our first response when anybody brings up something else is to say, okay, we'll add that to the list.
00:58:16 Speaker 2
That sounds offhand.
00:58:17 Speaker 2
It doesn't sound very thoughtful.
00:58:20 Speaker 2
And if it's an abstraction that we're adding to the list, it's just one more thing in the miasma of our understanding.
00:58:25 Speaker 2
Whereas what we want in the suggestion and in the responsiveness to it is real insight into what difference is being made.
00:58:32 Speaker 2
So I accept entirely the point that you make.