Theoretical Perspectives on Public Law and Administration

1. Theoretical Perspectives on Public Law and Administration GS/Law 6761 March 25, 2010 Instructor: Ian Greene

2. Preliminary Matters • Introductions • Origin of this course: Justice John Evans • Evaluation • Presentations

4. My own background • Grew up in a small Alberta town (population 1000) • Attended the U of Alberta (Edmonton), and did a student exchange to Bishop’s University (Sherbrooke, Quebec) during 2nd year • Majored in political science • Wanted to be a lawyer BUT got a scholarship for an MA at U of T • MA in Political Science at University of Toronto: loved political science study of courts

5. Post MA • Traveled around the world for 2 years: New Zealand, Australia, Indonesia, Singapore, Malaysia, Thailand, Burma, India, Nepal, Pakistan, Afghanistan, Iran, Turkey, Europe • Accepted to law school, but decided to do a Ph.D. first. Studied the causes of unreasonable delay in courts • Theory: we didn’t understand the proper relationship between judicial independence and ministerial accountability • What I found: friction, misunderstanding, and “passing the buck” amongst judges, lawyers, crown attorneys and court administrators is the major cause of unreasonable delay

6. British Columbia & Alberta • Worked for Alberta gov’t for 4 years • Assistant to a cabinet minister 1 year • Middle manager in Alberta Social Services 3 years • First teaching job: College of the Rockies in Columbia Valley, BC

7. My family

8. York University Years • Research on judicial behaviour & ethical politics • The Courts (2007) • A Question of Ethics (2006) • Honest Politics (1998) • Final Appeal (1998) • Judges & Judging (1991) • The Charter of Rights (1988)

9. A.C. Grayling:- Professor of Philosophy at the University of London. - Has an MA and DPhiil from Oxford. - believes in making philosophy accessible to lay people; does TV interviews and had a weekly column in the Guardian - Born in East Africa and started reading philosophy when 12.

10. A.C. Grayling, Towards the Light • Published in 2007 because of concern that contemporary political leaders in liberal democracies do not appreciate the long struggle for liberty, rights and freedoms, and are too willing to dispense with them because of the threat of terrorism. • Argues that the greatest progress toward equality and freedom has been made during the past 5 centuries. Most citizens of liberal democracies have a degree of freedom possessed by only a few aristocrats possessed 500 years ago. • The progress toward freedom and equality has come at a great price. Those willing to challenge the absolute authority of monarchs or religious leaders frequently had to sacrifice their lives. Rights and freedoms thus won are in danger unless the history of their development is deeply understood by leaders and public officials.

11. Towards the Light (2) • During WWI, British gov’t enacted temporary security measures because leaders understood the intrinsic value of freedom. Today, liberal democracies are enacting permanent legislation. • Terrorism is “wholly different” from traditional war – “a crime on a monstrous scale – mass murder.” But if liberal democracies over-react, they “commit suicide” • Notes that because liberal democracies are opposed to “singling out” minorities, security measures tend to restrict everyone and not just would-be terrorists. Suggests that a more intelligent approach is needed.

12. Towards the Light (3) • He suggests that the road to liberal democracy is long and difficult for any society. Thus, current authoritarian regimes cannot become liberal democracies overnight. Protesters will struggle against authoritarian governments and authoritarian religious leaders and many will be killed, just as they were in Europe, the US and Canada. • He does not present a solution – other than that wise leaders need to be aware of this situation. • University and high-quality education has had a huge impact on freeing human beings from tyranny.

13. Towards the Light (4) • Benjamin Franklin: “he who would put security beore liberty deserves neither.” • Points out that although religious doctrines usually advocate equality, toleration and justice, much of the struggle against authoritarianism has been against religious leaders not willing to tolerate deviation from their official positions. He is critical of all fundamentalist religious and sees as threats to liberty. • The book itself is fascinating – a detailed account of struggles for rights and liberty in liberal democracies.

14. Towards the Light (5) • What is the application to administrative law & theoretical perspectives? • The rules and procedures of administrative law were developed to protect and advance the rights and freedoms that have been developed from 1500-2000. • Political leaders and public servants who have a poor understanding of the struggle for rights & freedoms may sacrifice some of the safeguards built into administrative law for administrative convenience, or because of failing to realize the dangers of sacrificing traditional rights and freedoms for security reasons.

15. A.V. Dicey (Melanie Toolsie) • Albert Venn Dicey - British jurist (1835-1922) • Oxford graduate & later professor & Oxford & London School of Economics • Introduction to the Study of the Law of the Constitution – 1885 • Refined idea of “unwritten constitution” • Constitutional conventions (generally recognized as mandatory practices – monarch should dismiss a government that clearly breaches a convention) • Responsible government: cabinet responsible to legislature, cabinet solidarity, ministerial accountability

16. Basic principles of British constitution: • Parliamentary (legislative) Sovereignty • Distinct from U.S. system of separation of powers • The rule of law (law applies equally to everyone unless exceptions written into the law) • No need for a British bill of rights: judges who apply the rule of law properly safeguard human rights far better than having to apply a rigid bill of rights • Judicial independence • Parliamentary supremacy means that the legislature determines the jurisdiction & organization of courts, but once appointed, judges are independent as protected by the Act of Settlement, 1701

17. Act of Settlement Superior court judges appointed “during good behaviour” (security of tenure), and their salaries are “established” by Parliament (not the cabinet) (In Canada, Valente (1985): -security of tenure (judges can’t be removed except as recommended by an inquiry that conducts a fair hearing) -salaries must be set by legislature and high enough to discourage bribery -judges control those aspects of court administration that directly affect adjudication

18. Parliamentary Supremacy vs. Separation of Powers • U.S. constitution of 1787 recognizes “separation of powers,” not legislative supremacy. Why? • Fathers of U.S. constitution read Montesquieu (~1750) who argued that the British protected their liberty through a separation of powers. But British government was evolving toward parliamentary supremacy and responsible government • Dicey argued that separation of powers meant judicial supremacy. British unwritten constitution infinitely superior.

19. British system vs. French • Common law system ensures that all courts and administrative tribunals are supervised by superior court judges, who ensure liberty through properly applying the rule of law. • The French and other civil law jurisdictions have separate administrative law courts. This can lead to abuse of power. • Common law system is infinitely superior to civil law systems, and the British common law system is infinitely superior to the American common law system

20. Evans, Janisch, Mullan & Risk • Administrative Law text, Introduction • Angela Ovens

21. John Locke • The Second Treatise on Civil Government [1690]

22. Locke’s life: • (1632-1704): Lived through the tumultuous days of the English Civil War (1641-51) , & the Glorious Revolution (1688) which established the world’s first constitutional monarchy. (1689: Bill of Rights) Locke’s writing became the major defence of this new system of government. • From 1652 studied at Oxford – committed to Descartes. • 1666 – member of household of Earl of Shaftesbury, who became Lord Chancellor in 1672, but was forced into exile in Holland when James II became too absolutist. • 1668 – member of Royal Society • 1674 – bachelor of medicine • Locke went into exile in Holland with Shaftesbury in 1682 • In Holland Locke wrote several books including Second Treatise on Government. Critical of Hobbes who supported absolute monarchy. • 1688 – Locke returned to England and became friends with Newton • 1689-1700: commissioner of appeals, then of trade & plantations • In 1690 he could begin to publish them.

23. The Second Treatise of Government • Human beings are “by nature all free, equal and independent” • People form communities to protect themselves from “the corruption and viciousness of degenerate men.” • These communities have governments that govern by the consent of the people. Even various types of monarchies and oligarchies govern because the people want them to in order to preserve peace and security and their “property,” meaning “lives, liberties and estates.” No one would freely give this up, so no government has the right to deprive people of these except by the will of the majority – and even then there are natural limits to a government’s power.

24. Second Treatise (2) • The legislative branch of government acts on behalf of the people because there are too many for direct democracy. • Majority rule is the only practical way of making decisions (though Locke was familiar with the more ideal consensus form of decision-making amongst North American aboriginals), though majorities cannot interfere with the life, liberty and property of law-abiding people. • “indifferent and upright” judges are necessary to adjudicate disputes about the implementation of the law. Individuals can’t do this because they can’t help but be biased for their own causes. • Judges are part of the executive branch. All members of the executive branch need to be “indifferent and upright” in order to apply the law equally and objectively. Arbitrary decrees issued by anyone in government are unconstitutional.

25. Second Treatise (3) • The legislature cannot “transfer the power of making laws to any other hands.” • Legislatures “are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for the right and poor, for the favorite at court and the countryman at plough.” • Purpose – “the good of the people” • No taxation “without the consent of the people, given by themselves or their deputies.” • There must be a separation of powers between legislature and executive to prevent abuse of power. • The legislature is supreme, and determines the power of the executive and can set limits on the prerogative power of government over foreign affairs (the “federative” power). • The people have a responsibility to rebel against any system of government that violates the natural rights of its citizens (as James II had done).

26. Impact of Locke • Had a huge impact on persuading critics of the constitutional monarchy of its potential. • Not all of Locke’s prescriptions were adopted. Locke advocated religious toleration; Catholics could not vote for a century. • Locke emphasizes the equality of everyone, yet after 1688 only about 5% of Englishmen could vote. Locke’s writings lent support to those advocating the universal franchise and the abolition of slavery. • Locke was read by all the fathers of the U.S. constitution, as was Montesquieu, and both philosophers had a huge impact on the declaration of independence and the U.S. constitution of 1787, though like the English of 1688 they did not implement the kind of equality that Locke seems to advocate.

27. Montesquieu (1689-1755) • Greatly impressed by the constutitional Monarchy in the UK (UK as of 1707) -studied comparative constitutions; this became the “Spirit of the Laws” (1748) -the UK constitution considered to be the most effective at preserving liberty, because liberty is the most important value of the UK people. -Liberty is protected by 3 branches of gov’t – legislature, executive and judicial, which act as checks and balances on each others’ powers. Without this separation of powers, there would be no liberty. (Cabinet government developed in the UK around 1750).

28. Martin Loughlin • Public Law and Political Theory • Al Gangani • Prof. of Public Law, London School of Economics

29. Alberta provincial lawsuit settled • Ian Greene • Assured Income for the Severely Handicapped Administrator in Southern Alberta, 1983-85 • Rule of law issue: • Illustrates the relation between law and policy • Sometimes senior officials don’t understand the implications of the rule of law