[Editor’s Note: This is the third entry in our symposium on “Constitutional Boundaries.” The introduction to the symposium is available here, the first entry is available here, and the second entry is available here.]
—Peter Oliver, Full Professor and Vice Dean Research, Faculty of Law, University of Ottawa
In keeping with the theme of the workshop, my paper identified a boundary: that between the past and the future. It attempted to explore the extent to which the future is a relevant, even essential, aspect of law, especially constitutional law.
This way of approaching (constitutional) law goes against the grain. The idea that law is a pre-existing source, enacted or declared in the past and applied in the present in the form of legal advice or legal implementation, is deeply embedded in our assumptions about the rule of law. The future doesn’t really seem to be relevant. Are there any indications in legal practice that suggest that the future aspect of law merits greater attention? Much could be said about the common law and the way that rules and principles developed in the past interact with new facts, and whether consideration of the latter factual context involves having a mind to the future; or about the way that advocates arguing cases at the highest level so often talk about the undesirable consequence of following their opponent’s approach and the more favourable results flowing from their client’s position. One could also think about parental authority, by way of analogy, and the way in which insufficient and excessive attachment to pre-established parental rules and insufficient and excessive attention to contextual considerations in exercising parental judgement can place the ongoing effectiveness of that authority in jeopardy.
Perhaps the most efficient way of summarizing the argument in the paper is to set it out in a series of propositions:
1. The first point is the most important, because it recommends a shift of emphasis in terms of what most of us are accustomed to thinking. Although we often speak of law when referring to specific texts, that usage necessarily assumes that the system of laws will remain available in the future. The rules that prevent or allow expropriation or destruction of property, for example, would lose the quality we look for in law if those rules, other related rules and the relevant institutions that enforce them were not in place and functioning properly tomorrow, next month and next year. This amounts to saying that our concepts of law and legal system require not just a hierarchy of norms and chain of validity beginning in the past and ending in the present, but their healthy continuation into the future. Or stated otherwise, the requirement of an efficacious legal system, which is present in virtually all concepts of law and legal system, involves forward looking as well as backward-looking elements.
2. If this first point is correct, then it means that our concepts of law and legal system necessarily have two co-existing aspects. The first, historically dominant, past-focussed aspect is identified, at least in the positivist conception, according to well-known source-based criteria and assessed in binary terms (law/not law; or valid/invalid). The second, future-oriented aspect of law is a judgement in the ordinary, non-legal sense of that word, and therefore not susceptible to binary assessment; but it is no less vital to the concept of law for being so. Good judgements aim to contribute to the ongoing health and vitality of law and legal system in all parts of the body politic, this second aspect being essential in order to bear out our understanding of law as authority as contemplated in its first aspect. Standard positivist accounts of so-called ‘justified’ (Kelsen) or ‘social’ (Hart) normativity are insufficient to account for future-directed judgements.
3. The future-focused judgements of constitution-makers, legislators and courts must, as a necessary matter for law (keeping in mind its past and future aspects), take into account something like the central case for law (Aristotle, Weber, Finnis), the service conception of law (Raz) and law as two-way reciprocity rather than unidirectional managerialism (Fuller). These internal accounts of law correspond more closely with what external historical (Loughlin) and sociological (Habermas) accounts of (public) law reveal about the vital relationship between legality and legitimacy. The common denominator between all of the approaches just mentioned is that they appear to require that legal judgements move back and forth in a form of reflective equilibrium, between considerations of more abstract rules and principles and considerations based on knowledge of the relevant factual context. In many cases, the backward-looking aspect of law appears predominant, even self-sufficient, precisely because functioning legal systems ensure as much as possible that backward- and forward-looking aspects align. However, laws which persecute or fail to protect human beings, and laws which are radically out of touch with the context in which legal subjects live, may qualify as laws by a backward looking standard, even as they jeopardize the health and vitality of law as an ongoing project when assessed according to forward-looking considerations.
4. The preceding comments relate generally to law and legal system. However, they inevitably have implications for the concept of adjudication, especially with regard to ‘hard cases’. According to well-known positivist accounts, where (past) legal sources do not provide an answer in a hard case, legal decision-makers must exercise their (free) discretion. They might take the legal and constitutional future into account, but nothing in the traditional positivist concept of law obliges them to do so. This last state of affairs is, of course, vigorously resisted by antipositivists, such as Ronald Dworkin, who argue that hard cases call upon decision makers to look further into the resources of the past (including principles and the relevant political morality) in order to come up with a form of constructive interpretation that makes law the best that it can be. This would seem to be consistent in some ways with the argument set out above. However, Dworkin’s famous chain novel makes clear that even the forward-moving process of constructive interpretation is evaluated according to its fidelity to the past rather than its appropriateness given what is known about the context into which that new interpretation will play out in the future. This part of the paper notes that while certain judges may be confident in basing their decisions on (pre-existing) legal principle and political morality, they should feel less confident (though by no means helpless) regarding their ability to gauge matters concerning future context. However, it also points out that wise judges have for many years managed to balance both the need for forward-looking judgement and the limits of judicial capacity to gauge that future context by engaging in a wide range of forms of incrementalism that are already familiar to most lawyers.
I have for some time written about the importance of context (past, present and future) in dealing with hard cases in constitutional law, notably regarding the evolution of Commonwealth legal systems. This workshop provided a very welcome opportunity to explore ideas about the general importance of context in relation to the past/future boundary. I am conscious of the fact that the argument which emerged in this paper is more ambitious than I originally intended, and that no doubt there are issues that I have left unexplained or undefended. However, I still like where this argument ends up, not least because it recommends a bridge between more orthodox, analytical theories of law and socio-legal studies that strikes me as worthwhile and necessary. I am very grateful to the organizers for providing me with such a wonderful opportunity to discuss these ideas. I am also grateful to the workshop participants for their helpful feedback and questions.
Suggested Citation: Peter Oliver, I-CONnect Symposium on “Constitutional Boundaries” — The Relevance of Past, Present and Future to the Concept of (Constitutional) Law, Int’l J. Const. L. Blog, Apr. 25, 2018, at: http://www.iconnectblog.com/2018/04/i-connect-symposium-on-constitutional-boundaries-the-relevance-of-past-present-and-future-to-the-concept-of-constitutional-law