Why ask "What is Law?"

The debate between legal positivists and natural lawyers quickly become semantic. If you are so inclined, you can stipulate that "law" means "the occasions on which coercion is morally permissible/obligatory." Or you can say it refers to the social fact of how specialists in social practices like litigation and staute passing think. Each are perfectly sensible things to think about, and there is really no point in arguing about it: chacun à son gout. Study what you want.

So let's take the positivists preferred course, and study how legal specialists think. There's no doubt that they often refer to constitutive proclaimations of legal authorities. The law is X because Parliament or the Supreme Court said so. I can agree that it is X, even if I think it should be Y because the said bodies, however legally authoritative, are being morons.

But then you notice that Parliament, the Supreme Court, and everybody else will state the law in such a way that it needs everyday moral intuitions if we are going to apply it to physical events going on in the world. Contracts in Quebec and the US need to be interpreted in good faith. Statutes in Canada need to be seen as means to address some social mischief. Liability in negligence depends on whether the defendant acted reasonably.

And incorporating these moral intuitions into legal decision-making sometimes makes the law more, rather than less, predictible. The hardest thing to give an opinion about is how non-morally-inflected legal language will be interpreted. Most of us have a better idea what a jury or gut-based judge will think. So even on the dimension of certainty and respect for the will of the parties/legislature, which are the selling-points of positivism, we might be better off just incorporating moral intuitions into law.

Of course, we aren't always better off. People disagree about moral intuitions (although the extent to which this is true is probably exaggerated), and a big part of the point of law is to have a predictible way of resolving those differences. A natural lawyer would say that this fact is a major justification for authority. So just as looking at the actual practices of lawyers (as positivists recommend) provides partial support for natural law, looking at the moral justifications for coercion provides a basis for positive authority.

The difference is that the natural lawyer would say that authority is always limited by the reasons for it, and has less incentive to exaggerate the extent to which the actual legal system depends on command, rather than moral intuitions.

Anyway, if we actually concentrate on the way that a legal system does (or should) rely on each is a more interesting question than "what is law?"

The Dog Materially Contributed to the Risk of My Homework Being Eaten

A while back, reader David Cheifetz assigned the Pithlord a number of articles on the subject of the Supreme Court's "causation" jurisprudence, and why it sucks. I haven't said anything about it since, so I wanted to get my excuses out there.

If you want to sue someone about a car accident, it isn't enough that you are hurt and that they were driving badly. Their car also has to hit you, and cause your injuries. Most times, we get by with the "but for" test: the injury can only be compensable if it wouldn't have happened without the accident. But there is a more exotic form of legal causation, "material contribution." The theme of the articles Cheifetz sent me is that the "but for" test is just fine, and the Court's varying statements about when other forms of causation should be applied is confusing and confused.

I'm not totally sure. Humans are given intuitions about countefactuals by divine providence or natural selection, but they are very hard to get a more scientific grip on. That means that we can be sensible about what would have happened when the events are the kind of things we have pre-scientific intuitions about, but breaks down when the white lab coats get involved. Sure, there are some forensic experts who don't mind opinionating on what would have happened, but they shouldn't necessarily be trusted.

If it is granted that there is a genuine practical problem here, what is the solution? I'd say it isn't a better verbal formula for what causation really means. It is a more concrete sense of what kind of evidence needs to be called to get to liability in various contexts.

Which gets me out of the uncomfortable world of counterfactuals and into my favourite legal process point. People in general are better at deciding what should be done in particular situations than stating coherently the general principles behind them. Judges are people. So we should expect that they get cases right more often than doctrine. It follows that they might have avoided Mr. Cheifetz's well-founded criticisms by being a bit quieter. The only time it is legitimate to talk about how evidence that doesn't support an inference of "but for" causation should result in liability, is when the court decides that evidence that doesn't support an inference of "but for" should result in liability. Then the facts of the case gives guidance as to what the hell the abstract language is supposed to mean. On the other hand, if there are well-understood reasons to reject liability anyway, doctrinal language is just going to confuse everybody.

So, in Resurfice, there was no need to throw out incomprehensible dicta.There was nothing wrong with zamboni, its design didn't increase the risk of the accident, and that's all that had to be said.

"Duty to Consult"?

If you were going to pick the most important development in the Supreme Court of Canada in the last decade, you could do worse than the proliferation of constitutional duties to consult. The Red Nine have imposed such duties in relation to judicial compensation, land use decisions affecting aboriginals, the secession of Quebec, and now public sector labour legislation.

At the University of Alberta law blog, Peter Carver takes note of this development, and hopes it represents "an intriguing effort to expand the constitutional base for deliberative democracy in Canada." We mix it up in the comments box.

The discussion has helped me figure out what I dislike about these duties. The common law's general attitude to negotiation is to put a veil over the process and be hard line about enforcing the results, so long as everyone's an adult and had a chance to get appropriate advice. Government decision-making, on the other hand, has typically attracted the requirements of a hearing and an unbiased decision maker.

The "duty to consult" is neither fish nor fowl. As Carver puts it, "TThe goal must be to seek a mutually acceptable resolution to the dispute at hand, even if a solution is not found." A unilateral decision isn't excluded, but if it happens the courts may review the attempts at bilateral compromise to determine if they were conducted nicely enough. The trouble is that the negotiations will therefore be conducted with an eye on how a court will interpret them, which is inconsistent with genuine negotiation. Moreover, the whole development is the opposite of trying to create clearly-defined rights in the event of a bargaining impasse, which is how negotiation is actually facilitated.