The Pithlord may maintain a chin-pulling ambivalence about the merits of the Charter. But he becomes an unhinged, screeching partisan in opposition to the Supreme Court of Canada's post-1997 "discovery" that it can invalidate legislation on the basis of "unwritten principles" not found in the actual constitutional text.
Over at The Court, the Pithlord has been bitching about the fact that the Supreme Court of Canada changed the fundamental locus of sovereignty in our system without any of 35 the lawyers appearing before them even arguing that this was possible. I was then accused by a David Cheifetz of making a fallacious argument from authority:
So now the validity of an argument - either the procedural validity of the analysis or the substantive content of the premises - may be supported by counting the number of apparent experts who are prepared to agree it is right?
Do tell what school of (il)logic teaches that.
It follows from your assertion that that when most of the people on the planet believed the earth was flat, it was correct to say that it was flat. Or would you say we don’t have to count them because they weren’t experts.
The thread after that focuses on the merits of the Provincial Court Judges' Reference and the ethics of posting pseudonymously. Both are interesting issues, worthy of further discussion. But if I am ever going to crack the two digit mark in AdSense revenue, I am going to have to get better at giving the people, especially the critical veteran demographic, what they want. And what they want down at the Legion, I am told, is more post-structuralism. Fortunately, Mr. Cheifitz's question does raise some interesting issues about the ontological status of legal propositions, so I can easily segue into the relationship between power and knowledge,
Is it really fallacious to conclude from the fact that all or almost all experts with an opinion on a point of law believe P to be true that P is in fact true? A cartoon post-structuralist would say that about the shape of the earth or the number of planets in the solar system. In fact, a real post-structuralist would agree that some propositions about astronomy are true and others false, but would say that the development of astronomy as a discipline with epistemic criteria is (a) necessary for there to be astronomical propositions that could be true or false and (b) not itself the kind of thing that can be true or false. And our real post-structuralist would point out that the question of how many planets there are in the solar system depends critically on what counts as a planet, and that is a matter of stipulation and therefore politics. But this is the Internet, and we certainly aren't supposed to be fair to post-structuralists on the Internet.
Even if we assume a naive realist account of truth as "out there" and even if we were talking about scientific propositions, I still wonder if the argument from authority is really fallacious. After all, courts rely on the "consensus of the experts" all the time. Isn't that just the rational thing to do when the acquisition of knowledge is necessarily specialized? The fact that the relevant experts all think P may not prove that P is true, but it should move you to revise your Bayesian priors upward somewhat.
Nonetheless, and all caveats aside, I suppose that we all agree that Galileo was right that Jupiter had moons and everyone else was wrong, including the experts in the Holy Inquisition. It might not have been wise to have said so, but it was still the facts.
But does this mean that when Chief Justice Lamer "discovered" that he had the power to overturn statutes based on unwritten principles, contrary to what the legal profession and judiciary as a whole had thought from the seventeenth century on, he was analogous to Galileo. Could he have just seen further, understood better than the staid conformists who came before?
I think most of us would say, "No. That can't be. Law, unlike astronomy, really is a social construct. If all the lawyers think that legislatures are supreme within the bounds of the written constitution, then that must be the law." When it comes to law, we are all Foucauldians -- knowledge and power, in the end, amount to the same thing. So Lamer might have had the ability to change the constitution, but he couldn't really discover that it was always as only he knew it to be. The implication would be that Mr. Cheifetz's reproach was unjustified. It does follow from the fact that all the lawyers arguing before the Supreme Court in 1997 assumed that they would only invalidate legislation for violating the written constitution, and that they were representative of their profession in this respect, that this was then the law. If the law is different now, it is not that some new truth has been discovered, but that some new power has been won (and therefore lost).
All of this is true enough. But legal advocacy is nonetheless structured around the idea that there IS a law. "Out there", just like the starry heavens above. And, to a suprising extent, this assumption works. The big question is "why" and the answer, I am pretty sure, will come from evolutionary biology.
Photo of "Galileo" by beanic. Photo credit for portrait of former Chief Justice Lamer Phillipe Landreville, Supreme Court of Canada Collection.