Nowadays people commonly emphasize the aims and interests of groups, when creating or applying law. That approach has some value. But it often leads to rejecting any thinking which seems analytical or abstract. Such brush-offs can appeal both to lobbyists or activists, and also to practising lawyers. However, the result often is as shallow as leaves floating on top of a stream. It tells you nothing about the deeper current or its eddies, nor the rocks below.
Change can be quick, and few people study legal history today. So many old canards and inconsistencies seem novel and appealing. Rejecting any “analysis” produces a condition resembling legal Alzheimer’s. You seem to meet new topics and ideas every hour, because you no longer recognize familiar ones.
Rejecting analysis, categories, and predictable rules, brings a host of evils: too many for anyone to foresee, let alone list. And misunderstandings multiply when terminology changes every 6 months.
Here are examples showing why you still need basic legal concepts, topics, and tools.
You learned how to think like a lawyer. Practising law, you make it a habit. You learn by experience what works, what is dangerous, and what does not work at all. Especially for your clients. Words enable you to think. Forbidding you to use those concepts disables your reasoning and experience. The concepts become Crimespeak, as in George Orwell’s novel 1984.
identical legal situations today acquire two or more different names. The rules under the two names are often very different, even opposite. If you do not see that the two situations are the same, you cannot advise your clients. You will not even know what facts are relevant. You become like a physician who thinks that consumption and tuberculosis are two different diseases, or that ibuprofen and Advil are different remedies. If the legal rules for banks and for loan companies are very different, you have to know what in law is a bank and what is a loan company. That is largely an analytical exercise, based on legislation cast in abstract terms. Even if both sets of legal rules are fairly benign, administrative differences multiply. No one knows the limits of environmental law or many of its concepts, compounded by the suspicion that they will be different next year.
Many areas of law now have a bigger, stronger twin. It is constitutional or human rights principles applied in that field. Criminal law now has elephantiasis called Charter law. Guilt or innocence is becoming an old unfashionable form of mechanical or analytical law.
Conversely, lawyers are now hindered in distinguishing between different things, such as a right vs. a power. Yet a forbidden act and a nullity are not the same. That comes up every day in practice.
Legislation becomes hard to interpret reliably. Sometimes it is almost impossible, because of the extent of outside opinions or facts which can legitimately be introduced in court. The settled rules shrink or fly out the window. Trial judges become all powerful, some even declining to be bound by statute.
the decisive factor in many everyday legal situations is now presented as membership in a favored group, or the vague social aims of new legal doctrines. Now no evidence is really irrelevant or inadmissible. So a lawsuit becomes either a soap opera or a popularity contest. Each judge or tribunal makes its own policies in its own discretion. If there is any law, it is different in each courtroom and each hearing room in the province. Exacerbating that are tough standards of review on appeal or judicial review. Courts no longer can use appeals or judicial review to produce uniformity or predictability.
Certainty or predictability is no longer an objective. It is branded harmful and “mechanical”. That leaning has now spread to some judge, even on the Supreme Court of Canada. The pernicious effects on commerce and industry are enormous, the examples vast and indescribable.
Business people know that many legal minds dart at shadows, imagining rare exceptional circumstances to argue against any given broad rule or principle. The new tendentious approaches to law glorify that approach. A lawyer can usually find some argument why any legal rule, however necessary or well-accepted, violates the Charter, or “Charter values”. Or contravenes this season’s social priority which shapes all legal policy (until next season).
There are good reasons to adopt and apply different policies and principles differently in different situations. For example, legislatures, government administrators, private societies, individual citizens, and fairly-negotiated bargains, are all very different situations. To mix them all in one stew-pot and boil all of them together, ignores those differences. It is worse when the only real legal principle is “justice” or “fairness” or “expectations” or some broad notion of “honesty”. Or when the rules are subjective, not objective. How can not favoring the group whom the judge is told to grieve for or admire, ever be found socially “fair” or “just”?
Without some abstraction, logic becomes impossible. Crude logical fallacies become respectable, even compelling. Logic is increasingly sneered at. Yet the public quickly detect inconsistent or groundless rules and policies.
Though law is not merely logic or theory, it is not just thousands of isolated experiences either. Reconciling those two approaches is not political science or politics. It must organize vast experience by legal concepts and some legal principles.
Today, practising lawyers should be diplomatic and empathetic in making submissions. But to remove analysis and legal concepts and other necessary proven methods from your legal thinking would cripple you with a self-inflicted wound.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.