Should Judges Always Be Lawyers?

[Editor’s note: the following is based upon the 2007 Laskin Lecture, “The Languages of Constitutional Dialogue: Bargaining in the Shadow of the Law,” delivered on January 23 2007 by Dr Matthew S. R. Palmer, the 2007 Laskin Visiting Professor of Law at Osgoode Hall Law School. He is currently also the 2005 International Research Fellow of the New Zealand Law Foundation and a Herbert Smith Visitor at the University of Cambridge.]

Introduction

In the lecture I examined the languages, or perspectives, used by each of the branches of government and argued that those politicians in the executive branch who are instrumental to the formulation of legislation talk and think in the language of policy analysis. Judges, as former lawyers, talk and think in the language of the law when interpreting legislation. Each language contains different biases and characteristics.

I noted that it is important for the rule of law that there be constitutional dialogue between different sets of actors over the meaning of law. But that does not require that the privileged languages in which that dialogue is conducted should necessarily be those of policy and law. The normative question is what languages or perspectives do we want those engaged in constitutional dialogue to use.

Judges, Training, and Language

I want to highlight one point: the vital constitutional need to think about who we want to be engaging in constitutional dialogue—who we want to be exercising public power and safeguarding the exercise of public power through maintaining the rule of law.

In the words of Stanley Fish (Doing What Comes Naturally, Duke University Press):

Just as rules can be read only in the context of the practice they supposedly order, so are those who have learned to read them are constrained by the assumptions and categories of understanding embodied in that same practice. It is these assumptions and categories that have been internalised in the course of training, a process at the end of which the trainee is not only possessed of but possessed by a knowledge of the ropes, by a tacit knowledge that tells him not so much what to do, but already has him doing it as a condition of perception and even of thought.

What should that course of training be?

The essence of the rule of law as I have characterised it says that law should not be made and interpreted by the same group of people. Our systems are consistent with that. But once you have difference in systems, do you need anything else to enhance the quality of the rule of law? In particular, does the rule of law require that the people who interpret and apply the law must all be formally trained, and exposed throughout their careers, to the peculiar techniques of common law legal reasoning?

I am enough of a lawyer to be relatively comfortable with this situation. I understand the potential consequences of too much innovation. I can be persuaded to look for incremental changes, consistent with historical trends, on the basis of an ad hoc judgement in relation to problems of detail. And lawyers, as far as I can see, in both Canada and New Zealand, are quite happy with a constitutional system where dialogue occurs between elected representatives and selected lawyers (i.e. judges).

Perhaps most of us here think that a long-term perspective of the public interest, that is conservatively inclined not to part with the past too quickly, that is taken by those trained in the subtlety of exercising Alexander Bickel’s passive judicial virtues—is a valuable antidote to populist posturings of politicians.

But we would, wouldn’t we!

I suggest that we lawyers need to examine some of our core assumptions. And if we don’t, policy advisers considering issues of constitutional design—such as that involving the elevation of the bargaining power of legal reasoning in a Charter-type environment, for example, should.

Maybe applying a policy analysis to the question of whether law should be a privileged language in constitutional dialogue would simply reinforce the validity of the existing regime. If we:

• explicate our views of the objectives that should underlie our constitutions;
• identify all the various options of groups of people between whom there should be constitutional dialogue; and
• carefully analyze all the relevant sets of considerations that relate to all of those options;
  then maybe we would agree that legal training, in the way in which we currently deliver it, in the common law world, should be constitutionally privileged in terms of the exercise of power.

But maybe we wouldn’t.

[For other writings by Matthew Palmer see http://works.bepress.com/matthew_palmer/]