A few years ago at a Bar Call for Alberta’s next new lawyer, the attending judge had an interesting question for those of us gathered to watch and celebrate a centuries’ old tradition in admitting a new member to the legal profession.
The judge looked over at the excited soon-to-be lawyer, then looked over at the family, friends and colleagues gathered in the gallery to share in acknowledging the hard work and achievement in reaching this important day.
He then asked a simple, if somewhat perplexing question:
“How many of you enjoyed a good night’s sleep the previous evening?”
Given the curiousness of the enquiry, those gather exchanged puzzled glances, prompting the judge to ask again:
“How many of you enjoyed a good night’s sleep the previous evening?”
To this second request, a few tentative hands went up and, as the number of hands slowly increased, it became almost unanimous that all had indeed slept well the previous evening.
In surveying the show of hands, the honourable judge asked a subsequent question:
“Anybody know why we almost all had a good night’s sleep?'
Again, some puzzled expressions were exchanged followed by a few shrugs.
Acknowledging the puzzlement, the judge went on to say:
“We slept well because of the rule of law. Most of us slept without worry or concern for personal well being or property because the rule of law acted as the protection all of us enjoy in both our day-to-day lives including the overnight hours.”
Now this statement does not ignore or preclude the use of locks and alarms to thwart those who may choose to violate the law, but the rule of law is in place to both prohibit harmful behaviour and to put in place an apparatus to apprehend, try and punish those guilty of criminal offences.
Taken further, it is the rule of law that allows us to proceed through a green light with some confidence, to enter into contractual agreements, draft Last Wills & Testaments, to protect children and those otherwise vulnerable to power imbalances in employment, housing and basic human rights. It is hard to enter into a single area of life where the promise of the protection derived from the rule of law is not active, including when we are all asleep.
It is not difficult then to see a functioning society depends, first and foremost, on the rule of law to ensure rights, safety, transactions both personal and commercial and to provide protection from those of ill intent. The rule of law attempts to provide a just measure of enforcement , punishment and to an extent, rehabilitation to those found guilty in transgressing the rights of others.
This is no small matter and thusly requires the creation and enforcement of laws through legislatures, enforcement bodies and courts. Furthermore, in the Western world, steps have been taken to create independent courts that are designed to hear allegations, listen to testimony, review evidence and to ultimately pass judgment on those accused in transgressing the law. The courts are independent bodies, free from political and governmental influence and control. In the western democracies it is this independence that separates it from the dictatorships and government-controlled courts found in totalitarian nations.
The creation of the rule of law goes back centuries in the West. The 1215 Magna Carta was created as a recognition of law as an authority unto itself and that the monarchy and the government would not be above this authority. Further, the new authority of the law as expressed in the Magna Carta limited the crown and the government in its exercise of power and to prevent the arbitrary application of law upon the governed. As the law in Western nations expanded, the need for independent courts, with a fair and impartial tryer of fact looking to duly enacted legislation and legal precedent, was required to ensure equal application of the law in criminal matters, contract and property disputes and, increasingly in the 20th Century, human rights.
“L’Etat c’est moi”
Where there is some dispute as to whether French King Louis XIV actually uttered this phrase (“the State, it is me”) before Parliament in 1655, the expression does summarize the power of the monarchy and absolute authority that existed prior to the recognition of the rule of law in Western nations.
Following the overthrow of the French monarchy in 1789 and the ensuing Reign of Terror where various factions struggled for power, eventual dictator Napoleon Bonaparte put in place the Civil Code (aka The Napoleonic Code) in an attempt to restore order, certainty in legal proceedings and fairness to all citizens in the newborn French Republic. The Civil Code endures to this day not only in France but in many other jurisdictions including Quebec.
Where the Civil Code (which in itself began in Roman law) is an attempt to broadly codify the law, Common Law as derived from the British legal system looks to legal precedent and legislation in deciding on a dispute or allegation. This is the system of law throughout Canada (excluding Quebec), the United States and most western democracies. It has been noted the uniform and fair application of the law has allowed for an evolution in property and civil rights, intellectual property, global trade through international and business law and, as noted above, an expansion in human rights.
Common Law itself is divided into 2 further subheadings: Public Law which deals with the individual’s relationship with the government (Constitutional Law, Criminal Law and Administrative Law) and Private Law which deals in matters between individuals or groups (Property and Contract Law, Family Law and Tort Law). (In some cases, private law is often referred to as civil law within many jurisdictions). A very thorough review of the Canadian legal system is available on the Federal Government Justice website at https://www.justice.gc.ca/eng/csj-sjc/just/img/courten.pdf.
Where it is often stated that Canada is a democracy and is thusly ruled by the people, this misstates the nature of Western democracies of which Canada is a member: we are in fact ruled by the law as the law itself is enacted by duly elected representatives who themselves serve as a result of free and fair elections.
This then leads some to believe that these elected representatives must carry out the will of the electors regardless of that representative’s personal stance, information and judgment. The role of the elected representative has been debated for several centuries and revealed itself yet again in Calgary over the dispute of revising existing residential zoning regulations. Several days of hearings were held before city council where positions were put forward by those for and against the revisions. When council voted in favour of the revisions, many expressed unhappiness that “the will of the people” was not followed. But, as elected representatives, they are expected to hear all sides, to review information, recommendations and expertise in order to make a decision they believe will best suit the needs of the larger community now and into the future.
If this were not a representative democracy and instead a “direct democracy” whereby each citizen would be expected to make a myriad of municipal decisions affecting each area of life from residential tenancy, crime, property, traffic and zoning. To expand that outward, we would each be expected to decide on provincial, federal and international matters! Clearly, such a system would not last very long, with disastrous results.
So, in looking at the rule of law and the creation and enforcement of these laws, we look to elected representatives to act on our behalf. The duties of the elected representative, that is whether to follow the instructions and wishes of the constituents or to make decisions based on judgment, experience and the review of expertise has been debated for centuries.
Often called “the father of modern conservatism”, British parliamentarian Edmunde Burke spoke to this issue in his Speech to the Electors of Bristol in November, 1744. He noted how much happier a representative would be “..to sacrifice his repose, his pleasures, his satisfactions” to the wishes of his constituents. But he noted it is the duty of a representative to not sacrifice “his unbiased opinion, his mature judgment, his enlightened conscience” to the dictates of his constituents. He remarks: “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.” He adds:
“…parliament is a deliberate assembly of one nation, with one interest, that of the whole; where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of parliament.”
Consequently, if a constituent is unhappy with the opinion and judgment of the representative, he or she can be voted out of office in the next election. This then is the role of the citizen in a democracy – to gauge the performance and judgment of the representative and vote accordingly. This is how the will of the governed is expressed in a representative democracy under the rule of law.
Law is in place to assure (as best as possible) the creation and enforcement of laws to both serve and protect the citizenry. The rule of law exists to avoid chaos, to provide certainly and to tamp the worst excesses of individual and group actions that have revealed themselves throughout human history.
As the honourable judge noted in the Bar Call several years ago, the establishment of the rule of law allows us to remain secure in our homes, in our dealings with others and, yes, to enjoy a good night’s sleep.