Abstract
The passage of time influences the content of the law and therefore also the validity of legal arguments. This is true even for charter-arguments, despite the widely held view that constitutional law is made to last. In this paper, I investigate the reason why the sanctity-of life argument against physician assisted suicide lost its validity between the Supreme Court decision in Rodriguez v. British Columbia in 1993 and Carter v. Canada in 2015. I suggest that a rhetorical approach to argument evaluation is the best basis for a satisfying explanation.
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Notes
I will here say that if, in 2005, I make the argument: “Jon and Sue are married, so they will see each other often.”, and Jon and Sue get divorced in 2009 and you make the argument: “Jon and Sue are married, so they will be happy to see each other.” in 2011, then we have used two arguments with the same premise, and the truth of the premise has changed. I am aware that it is also possible to say: The premise you used in 2005 was not fully represented in the formulation “Jon and Sue are married”—really the premise would be more fully represented by saying: “Right now, John and Sue are married.”—and with the time-code, this premise is not the same as the premise represented by the formulation “Jon and Sue are married” that was uttered in 2011. Which of the two ways to talk about the phenomenon I am interested in here is more appropriate is an interesting question that would, unfortunately, lead us too far afield. I think that it is possible to make the argument in this paper even if I change my language to reflect the second view. But trying to do so would make the paper unwieldy and overly complicated.
I will here use “valid” in a broad and intentionally vague sense to indicate the goodness or cogency of an argument. A valid argument is an argument that should convince its addressee. I do not commit to any specific theory of what constitutes validity in this sense.
It is an issue of contention whether only the decisions of officials can change the law over time or whether the law also allows for other ways in which it can change. This makes the way in which the passing of time can have an influence on the validity of legal arguments a complicated and sometimes puzzling issue. More on this below.
I think that my claims about charter arguments are probably also applicable to legal arguments in a common-law context in general, but arguing this would lead us too far afield in this paper.
Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.
“241. Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.” (Criminal Code, R.S.C. 1985, c. C-46, s. 241 [Criminal Code].)
14 No person is entitled to consent to have death inflicted on them, and such consent does not affect the criminal responsibility of any person who inflicts death on the person who gave consent. (Criminal Code, R.S.C. 1985, c. C-46, s. 14 [Criminal Code].)
Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.
Section 14 was not under consideration.
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” (Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.)
“15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (…).“(Charter of Rights and Freedoms, s 15, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.)
He interpreted the right to life, which was also part of section 7, as a call to protect life as a value in itself. The infringement of section 7 could be saved under section 7 itself. The infringement of section 15 could be saved under the limitations clause of section 1 of the Charter: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Charter of Rights and Freedoms, s 1, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.)
In Rodriguez, the claimants also alleged that section 12, prohibiting cruel and unusual punishment, was infringed, but this claim was swiftly dismissed by the court.
The requirement to follow or distinguish applicable precedent. See section 3.1 for a more detailed explanation of stare decisis.
Hereby the SCC showed that it took the reasoning laid out in earlier precedent opinions as an important part of the precedent set by its former self—it did not reject the need to deal with the arguments presented in Rodriguez’ majority opinion, but instead acted as though the sanctity-of-life argument had not really been made.
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Charter of Rights and Freedoms, s 1, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.)
This was acknowledged even by critics of Rodriguez when that decision was made. Weinrib (1994), for example, argued that Sopinka had been wrong to hold a general societal value (the sanctity of life) over the well-being of individuals.
“15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (…).“(Charter of Rights and Freedoms, s 15, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.)
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Charter of Rights and Freedoms, s 1, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.)
It is also possible that Carter v. Canada was an instance of what Eisenberg calls “inconsistent exceptions”, distinguishing in a way that is clearly inconsistent with the precedent’s meaning and spirit. This is a form of hidden overruling that courts sometimes practice in order to avoid the (potentially negative) attention that comes with overruling, or when they do not have the power to overrule. But given that this is not recognized as a legitimate way to deal with precedent, I will here also assume, charitably, that this is not what happened (Eisenberg 1988, p. 136).
See, e.g. MacCormick’s distinction between pure practical argumentation and institutional argumentation (MacCormick 1995), or Eisenberg’s distinction between reasoning based on social propositions and reasoning based on doctrinal propositions (Eisenberg 1988). For this paper, I choose to assume that an argument always purports to present a reason, but may sometimes be so bad that it fails to do so.
Most legal theorists, perhaps with the exception of exclusive legal positivists (see, e.g. Raz 1979), accept that the law sometimes does not provide a determinate answer, and that it then needs to be supplemented with first order moral and political considerations. For a famous formulation of this thought, see Hart’s distinction between the core and the penumbra of rules (Hart 1961). Hart explains that all rules will be obviously applicable or obviously inapplicable to many cases, simply because these cases do or do not fall under the categories specified in these rules. But there will always be cases for which it is not entirely clear whether they do fall under these categories—they fall into the penumbra of the rule. With respect to these cases, the rule is then unclear, and the judge needs to make a decision based on other considerations.
The relationship between arguments presenting first order moral/political reasons and arguments presenting reasons provided by valid, authoritative legal sources is a topic of ongoing, intense debate, because it is directly connected to the relationship between law and morality. The disagreements about this relationship all revolve in one way or the other around a central disagreement about whether and to what degree the moral acceptability of a norm impacts the norm’s relationship to the law (e.g. whether it can be a valid part of the law, whether the morally better way of understanding it is also the legal way of understanding it etc.). The discussion continues to see extreme positions, like exclusive legal positivism according to which all and only what has been duly enacted as law is law, no matter its moral merit, and according to which morality has impact neither on the validity nor on the interpretation of legal sources (see, e.g. Raz 1985). On the other extreme end of the spectrum is natural law theory, according to which both the validity and the correct interpretation of legal sources depend on moral merit (see, e.g. Finnis 2011). There are also more tempered positions. One example is Dworkin’s position. He argues that the law commits itself to certain moral principles (though not to all of them) via their inclusion as necessary justificatory elements for statutes, precedents etc. These principles have to be treated as equally or sometimes more important than explicitly enacted legal norms. Questions of legal interpretation should be answered by weighing both the fit of a proposed meaning with what other authoritatively enacted legal sources say and the moral justifiability of that proposed meaning in the context of the law as a whole. This gives morality import into the law without denying that the law is created and formed by legal officials (See, e.g. Dworkin 1986). Another example is Waluchow’s inclusive legal positivism, according to which enacted legal norms may include references to moral norms, which get integrated into the law via these references and then need to be included into the interpretation of the meaning of those enacted legal norms (see, e.g. Waluchow 1994). All these positions, in spite of their vast differences, have two things in common: First, no author claims that enacted legal norms, if they are immoral, should always be obeyed (natural law theorists say this because those norms are not really law, positivists say this because the fact that something is law does not, in their view, mean that it should necessarily be obeyed). Second, and more important for this paper, no author rejects the view that the main vehicle by which the law is developed is through the authoritative, promulgated decision of legal officials (judges who make precedents, legislators who make statutes etc.), and that it is important for other legal officials to take the resulting promulgated legal sources seriously and, in general, follow them as they are promulgated. This is so because none of these scholars reject the importance of the rule-of-law ideal, the idea that people should be governed by the law, and not by powerful individuals (no matter how morally well-meaning) and that people should be able to predict how the law will deal with them by accessing legal sources. This second common commitment allows me to assume that the law generally changes via the decisions of officials and along certain norms about how valid legal norms are established by officials.
I have modelled this argument after MacCormick’s legal syllogism, as he describes it in (MacCormick 2005, Chapter 4).
Criminal Code, R.S.C. 1985, c. C-46, s. 241 [Criminal Code].
Of course, if the available legal reasons change too rapidly and if the validity of legal arguments is too fleeting, problems arise because the subjects of the law lose the ability to form reliable expectations about the way in which they will be treated by the state. For this reason, the rule-of-law ideal requires that the law as a whole is stable. See, e.g., the inclusion of “stability” in Fuller’s famous list of rule-of-law requirements (Fuller 1963). But this requirement is fulfilled already if legal change does not outpace the ability of the law’s subjects to adjust to it.
The Canadian constitution, for example, can be amended only if both the House of Commons and the Senate, as well as at least two thirds of the provincial legislative assemblies, representing at least 50 percent of Canada’s population, adopt resolutions to this end (see, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s. 38–49.)
The tyranny-of-the-majority problem was made famous by Mill, who argued that even in a democratic government, tyranny is still possible because uncaring majorities can enact laws that oppress unloved minorities without having to worry that they will also be adversely affected by these laws (Mill 2007).
The rather extreme changes in the way that section 7 is interpreted and used by the SCC have been documented in Hogg (2012).
Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Supporters of textualism, the theory of constitutional interpretation that suggests that the meaning of constitutional rights should be determined according to the straight-forward meaning of the language these rights are written down in, do not pretend as if there is no need to argue for their theory (see, e.g. Scalia 1997).
This has been pointed out, explicitly, by Fallon (2008).
For example, the constitution of the United States did not contain anything that forbade racist discrimination for a long time. However, a number of landmark decisions, most prominent among them Brown v. Board of Education, created a situation in which thankfully a constitutional right against discrimination on racist grounds is a deeply enshrined (though not necessarily practically realized) constitutional right (Brown v. Board of Education, 347 U.S. 483 (1954)). Strauss (2010) gives a detailed description of the legal history leading up to Brown.
Edwards v Attorney General [1930] A.C. 124, 1929 UKPC 86.
It might be interesting to know that until this case, section 7 had been interpreted very narrowly as merely requiring the deprivation of life, liberty and security of the person to be in accordance with procedural justice. This had been the framer’s expressed intention. Re Bc Motor Vehicle Act changed this, requiring the deprivation to also be in accordance with substantial justice (see Hogg 2012).
The introduction of CCM is supposed to alleviate the worry that allowing the meaning of the constitution to change gives judges too much power, a worry that causes problems, e.g. for Dworkin’s famous moral reading approach to constitutional interpretation (see, e.g. Dworkin 1996), an approach that Waluchow has otherwise much in common with. More on this in footnote 53.
See, e.g. Duxbury (2008, Chapter 3) for the various difficulties in determining the ratio decidendi from precedent opinions.
Lamond has argued that for this reason, it is wrong to think of precedents as establishing rules in the same way that statutes do (Lamond 2005).
O’Brien develops Waluchow’s idea of the community’s constitutional morality (CCM) further and presents the changes in the law that she describes as evidence of changes in CCM. However, she does not argue that these changes go beyond the changes that the SCC cites and that I discuss here. I think, therefore, that she believes that the move from Rodriguez to Carter can be explained with the method of common-law reasoning guided by CCM, as described in section 5.1 below.
Waluchow is aware of this and integrates it into his common-law theory (see Waluchow 2007, p. 200).
Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101.
The ability of courts to use legal arguments in order to influence what counts as good legal arguments is fascinating, but would lead us to far afield here.
Indeed, while the SCC in Carter all but ignored the sanctity-of-life argument, it reaffirmed the law’s commitment to the sanctity of life, treating it as if it was a value connected to the individual’s right to control her life (Carter, p. 343/367).
At least without overruling or arguing that it had already been a very weak argument in Rodriguez so that it needed the additional support from the protection-of-the-vulnerable argument and could not carry the weight of justifying S. 241 (b) by itself.
It was adopted in 1982, in the Constitution Act.
Many legal theorists and philosophers argue that the law is connected with morality in other ways too (see, e.g. Dworkin 2013; Finnis 2011). This way, I think, is one to which most legal theorists would agree, even those who reject other connections (like that morality influences the meaning of legal sources, or that deeply immoral laws are not legally valid).
I thank my reviewer for bringing to my attention that I should say that this explanation is not without support. Dworkin (e.g. 1996, 2006) proposes a moral reading approach to constitutional interpretation according to which judges should (and, he thinks, do) determine the meaning of vague constitutional passages through an interpretive process that combines considerations of fit and justification. (Dworkin’s theory of constitutional interpretation is continuous with his theory of legal interpretation in general (see, e.g. Dworkin 1986).) Having determined which interpretations of a constitutional norm would fit reasonably well with established positive law broadly construed, judges determine which interpretation among the ones that fit would represent the law as a whole in its best light, that is, as based on the best moral principles (justification). (Throughout his writings, Dworkin seems to change how strict the requirement of fit is—that is, how well an interpretation of a norm has to fit available legal sources such as past decision described in precedent opinions. I have therefore chosen the vague expression “reasonable fit” (see Raz 1985 for an account of the change Dworkin makes to the importance given to fit, and the consequences of this change.)) Dworkin allows judges to declare some individual decisions etc. that cannot be brought into a coherent whole guided by moral principles mistakes with which their interpretation does not need to fit. He claims that especially the norms found in charters or bills of rights should be understood as fixing only very broad moral principles. This suggests that the judge’s (honest) opinion about the “correct” moral reading of these norms has a considerable impact on the way they will be used to make decisions about individual cases concerning more specific questions about the constitutionality of positive legal norms. Dworkin (1996, p. 2) explains that his theory of constitutional interpretation makes sense of the fact that supreme court judges in the US can so easily be distinguished into conservative and liberal judges, aiming at making conservative or liberal decisions. Unlike some, who might think that this is reason to criticize the behavior of these judges, Dworkin integrates it in his theory.
See, e.g. Biggar (2004).
This is the main difference between Dworkin and Waluchow. In Dworkinian terms, it can be summarized like this: Where Dworkin asks judges to make decisions where the law is unclear according to what they think will make the law appear in its best light, Waluchow asks them to make these decisions according to what they think the people of a country will think will make the law appear in its best light.
Rawls’ concept of the reflective equilibrium describes a state of balance in which one’s individual normative intuitions and opinions have been brought into harmony with the broad moral principles one accepts. It is reached through a process of comparing individual opinions and judgements with the broad principles and adjusting both (Rawls 1971).
O’Brien extends Waluchow’s argument and demonstrates that communities—like the citizenry of Canada—can be seen as collective actors with sets of moral commitments (O'Brien 2016).
The third option is distinct from the second and may in fact create different results. Waluchow cites Raz’ own example to illustrate: “Imagine an orthodox, but relatively ill-in formed Jew who asks the advice of his friend who is Catholic but an expert in Rabbinical law. ‘What should I do?’ he asks, clearly meaning what should I do according to my religion, not yours. The friend tells him that he should do so and so. The point is that both know that this is not what the friend thinks that he really ought to do. The friend is simply stating how things are from the Jewish Orthodox point of view.” (Raz 1979, p. 156; Waluchow 2015, p. 40)
I thank my reviewer for pointing out that the method of reflective equilibrium might have an important role to play in the process of expanding an audience like this.
It would be possible to object here that a perfect application of a perfect method of derivation of a universal audience from a particular audience would always yield the same universal audience (for example because the perfect method of derivation would include the expansion of the particular audience over time), but such an objection is uninteresting: any arguer who tries to use the method of the universal audience is situated in time and does not have access to all particular audiences throughout time.
His example here are the racist commitments during South Africa’s apartheid (Waluchow 2007, p. 227).
This is one of the closest points between Dworkin and Waluchow (Dworkin 1986). For the relationship that Waluchow sees between his and Dworkin’s theory, see (Waluchow 2015). The main difference seems to me that where Dworkin allows a judge’s own moral commitments to play a significant role, Waluchow attempts to remove the judge’s commitments from the equation and replace them with the constitutional community’s.
This does not mean that from the constitutional community’s point of view, specific legal sources will not have any weight—after all, such values as predictability and clarity of the law will likely be deeply embedded in that audience’s point of view.
The idea that Rodriguez was decided in the midst of changing moralities, and even became a catalysator of this change, is not mine. Both Chambers (2011) and Martel (2001) point this out in connection with Rodriguez. Sopinka’s decision was harshly criticized because it favored community values over the harm caused by them to individuals. See. e.g. Weinrib (1994).
The narrowness of the 5 to 4 decision for which he wrote the majority opinion shows that things were not entirely clear even then. McLachlin already all but ignored the sanctity-of-life argument in the dissent she wrote for Rodriguez. (Rodriguez, 616 ff.)
In other words: Neither Rodriguez nor Carter have to be read as a mistaken decision. This, I think, is another advantage of Waluchow’s reading over Dworkin’s reading.
The majority of these cases were concerned with the interpretation of section 163 of the Canadian criminal code: “For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.” (Criminal Code R.S., 1985, c. C-46, s. 163; 1993, c. 46, s. 1. [Criminal Code]) My summary here is based on a private email exchange with Waluchow.
See, e.g. Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494.
R. v. Butler, [1992] 1 S.C.R. 452.
Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120.
R. v. Labaye, [2005] 3 S.C.R. 728, 2005 SCC 80.
“The appellant seeks a remedy which would assure her some control over the time and manner of her death. While she supports her claim on the a ground that her liberty and security of the person interests are engaged, a consideration of these interests cannot be divorced from the sanctity of life, which is one of the three Charter values protected by s. 7.” (Rodriguez, p. 584).
See Biggar (2004).
Steele points out that even where the Carter opinion cites and asserts the sanctity of life as a value of Canadian law, it bypasses the “sanctity”-part and instead concentrates on another interpretation: “The Court did not use this notion of life religiously, but instead recognized, much like the interveners who favoured physician-assisted dying, that there exists a profound respect for human life, which includes respecting the decisions one may make regarding the end of his or her life. In this light, the Court’s use of sanctity of life is not to suggest that life is sacred, nor a gift from a transcendental figure, but instead something that one is rightfully permitted to experience rather than endure. As expressed by the Court, one has the “right to life”, not a “duty to live”.” (Steele 2018, p. 65)
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Stevens, K. On the Puzzling Death of the Sanctity-of-Life Argument. Argumentation 34, 55–81 (2020). https://doi.org/10.1007/s10503-019-09491-1
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DOI: https://doi.org/10.1007/s10503-019-09491-1