November 14, 2005


America the Just (David Frum, November 14, 2005, National Post)

Critics of American society have a habit of equating justice with equality--the more equal the society, the more just it is. By this criterion, Canada is more just than the United States, and France is more just than Canada, Denmark is more just than France, and so on. By this criterion, the Soviet Union was more just than post-Soviet Russia, Mao's Cultural Revolution was more just than Hong Kong, and North Korea may well be more just than South Korea--and down the backward slide we go, from error to absurdity to horror.

There's another and better way to think of justice: A just society is not one that seeks to achieve fair results, but one that lives by fair rules, fairly enforced. The philosophers describe this kind of justice as commutative rather than distributive justice. Lawyers describe it as "the rule of law." Maybe it's most vividly summoned up by a British music-hall song from the 1930s quoted in one of George Orwell's essays:

"Oh you can't do that here,

No you can't do that here.

Maybe you can do that over there,

But you can't do that here."

What is it that they can do over there--but can't do over here? Lawyers and philosophers have battled over precise definitions for centuries, but here are some of the main elements of a society under the rule of law:

1. The rules are equal: What is lawful for one person should be lawful for all; what is forbidden to one should be forbidden to all.

2. The rules are predictable: Individual rights and duties should be knowable in advance, and should not be changed after the fact without the individual's consent.

3. The rules are stable: When the rules change, they change only with enough notice so that individuals can alter their behavior in time.

4. The rules are supreme: Nobody can be punished unless they have violated one of those equal, predictable, and stable rules.

You can find some version of those rules in every bill of rights of every modern democracy, including Canada's. But it was the Americans who were the first to incorporate them into their fundamental law, 216 years ago. And even now, all these years later, the Americans still live by the principles of the rule of law more consistently than any other nation--and far more consistently, it is sobering to reflect, than Canadians. . . despite Canada's free health care.

You can have liberty or you can have equality, but you can't have both. Canada, for whatever reason, follows continental Europe in seeking the latter, unlike the rest of the Anglosphere.

Posted by Orrin Judd at November 14, 2005 2:55 PM

We're equal under the law.

Posted by: erp at November 14, 2005 3:48 PM

Canada's leaders and too many of its urbanites want to be perceived as equally sophisticated as those urban dwellers in East Coast Blue State cities, and adjust their politics to curry favor with the elites in those areas. They'd be much more supportive of the war in Iraq if it had started during the Gore Administration (well, as long as the eastern elites didn't turn Gore into the new LBJ after a couple of years).

Posted by: John at November 14, 2005 3:52 PM

This is wildly overstated--David is getting a little carried away with his ideological purity on both sides of the border. We aren't nearly as judicially committed to equality as he makes out with his selective choices of cases. This is the same judiciary that upheld corporal punishment by parents, threw gay marriage right back at Parliament and took the first shot at medicare in the name of individual rights. The problem exists, of course, but it's more of a hodge-podge than he leads us to believe.

Besides, if a teensy dose of collectivist thinking keeps us from aping your tort and criminal law systems, I'll take it. As for individual rights and the rule of law, what about Title IX enforcement and the EPA when they are out to save the planet?

Posted by: Peter B at November 14, 2005 3:53 PM

The US has a problem with prosecutors cherry-picking laws for politically motivated prosecutions. The Equal Protection clause is not enforced nearly enough.

If Scooter goes down, then every leaker in the Belt ought to go down too.

Posted by: Gideon at November 14, 2005 5:52 PM

Scooter isn't alleged to have leaked, he's alleged to have lied. Remember.

Posted by: erp at November 14, 2005 6:25 PM

For those of you who have forgotten all you learned during those many years of post-graduate work in Canadian Studies, John nails it. Our problem is that our left just loves America too much--starting with Michael Moore, Noam Chomsky, Al Gore, etc..

Posted by: Peter B at November 14, 2005 6:55 PM

Peter, our problem is the same as Europe -- Trudeau's effective replacement of the church with the state. It's why the West is still conservative and the East is not. Our churches are packed to the rafters and there's one on every block.

Call it the empty cathedral syndrome.

In twenty years, demographic shifts will (hopefully) take care of the problem.

Posted by: Randall Voth at November 14, 2005 10:08 PM


We have lots of problems, and that's one. I'm not sure your East/West split is as clear as all that--it's an urban-rural divide as well. Lot's of churches in rural Ontario and not so many in Vancouver. Anyway, this article is about the judiciary and my point is that almost everything we've done in the area of judicial activism and using courts as agents of social change comes from the States. I'm unaware of any Charter of Rights and judicial activism issues in Europe.

Posted by: Peter B at November 15, 2005 6:30 AM