© 2004  Karen Selick
Conservatives on Wrong Track
An edited version of this article first appeared in the October, 2004 issue of Canadian Lawyer under the title "Fighting the 'immoral' mindset".  If you wish to reproduce this article, click here for copyright info.


Conservatives on Wrong Track


Among the most vocal critics on legal issues these days are those who call themselves conservatives.   I think the label is misleading.  According to the dictionary, conservatism is not a pre-packaged philosophy with any particular content.  It does not stand for being tough on crime, or banning abortion, or reducing taxes.  Rather, it’s a mindset that desires to maintain the status quo and avoid abrupt change.  Today’s self-styled conservatives actually detest the status quo.  They want to change it radically and now.  That’s not very conservative of them, but for convenience I’ll use the conventional label. 

Conservatives frequently rail against judge-made law, against judicial activism, and against courts usurping the functions of parliament.  To hear them speak, one would conclude that legislatures and statute law are unfailing boons to mankind, and that if only those asinine judges would stop mucking about on frolics of their own, we’d have good, sound laws upholding traditional values that decent conservatives could happily live with.

I think these conservatives have lost their perspective and forgotten their history.  They need to refresh their memories of the virtues of the common law system under which freedom originally developed and flourished.  A good start would be to read or re-read Bruno Leoni’s libertarian classic, Freedom and the Law. 

Born in Italy in 1913, Leoni was both a law professor and a practicing lawyer.  Freedom and the Law was published in 1961.  In the ensuing 43 years, the legal trends Leoni warned of—away from individual freedom and towards authoritarianism, away from privately made law and towards publicly imposed law—have become even more starkly apparent. 

Leoni reminds us of the traditional English notion that “the law is something to be discovered more than to be enacted.”  English common law developed slowly over centuries as judges sought out accepted legal principles from prior cases and applied them to new situations arising from technological or institutional changes.   This is actually a very conservative way of doing things.  It respects tradition and it makes change glacially slow.

Even when legislatures first began energetically enacting statutes—a phenomenon which Leoni places at the beginning of the nineteenth century—it “was intended chiefly as a compilation of past rulings, and its advocates used to stress precisely its advantages as an unequivocal and clear-cut abridgment”, saving lawyers and judges from having to laboriously tease out the law from the “rather chaotic mass” of precedents and commentaries.

Since then, the purpose of enacting legislation has turned around 180 degrees.  Increasingly, legislation consists of brand-new decrees or edicts which the winning minority imposes upon the losing minorities, “…often,” says Leoni, “with the result of overturning long-established individual expectations and creating completely unprecedented ones.”

Another feature of common law courts was that “they could never decide anything that had not been previously brought before them by private persons.”  This meant that “the process of lawmaking …was, essentially a private affair concerning millions of people throughout dozens of generations and stretching across several centuries.”   

That’s certainly not the situation in our courts these days.  In 2003, for instance, the Supreme Court of Canada released 72 decisions.  Of these, 57 involved some level of government, or some government-created agency or body, as a party.  Of the 15 other apparently private cases, 4 involved some level of government as an intervener.  In another 8 cases, the state hovered over like an evil spirit while the parties disputed the interpretation of a statute.  Only 3 were old-fashioned common-law cases between private parties seeking to discover how prior law applied to their novel situation. 

I would argue that it is the growth of the state, and governments’ attempts to micro-manage every aspect of human existence through legislation, that have driven the expanded role of the courts, not the other way around.  Calls for greater deference to legislatures are merely begging for more of the same.

Conservatives are kidding themselves if they think that reining in the courts and reasserting parliamentary supremacy will change the country more to their liking.  The will of the people, expressed every four or five years via ballot and then massaged by the politicians who get elected, is currently no more likely to resemble conservative values than the will of the judiciary does. 

Conservatives spend an inordinate amount of time discussing modifications to the mechanics of the state—things like the judicial selection process or senate reform—in the almost mystical hope that altering these things will usher in a conservative world.  This obsession with  concrete trivia diverts their energy from the real task necessary to effect meaningful change:  creating a philosophical revolution. 

It’s not enough to demonstrate that  the current government wastes money or that existing laws discourage productivity among the best and brightest.  It must be shown that the prevailing collectivist philosophy (everyone owns a piece of everyone else’s life) and the accompanying authoritarian mindset (the government will get it for us) are immoral.

I don’t foresee conservatives pulling this off.  Many are at best ambivalent on these issues.  Some fall squarely into the collectivist-authoritarian camp themselves, often led there by religion.  The few who get it should denounce modern conservatism as a lost cause and dump it.  It’s lonely being a libertarian, but it can become less so. 



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October 3, 2004