Colloquium, October 22, 2020, “Is there a difference between law and politics?” Peter Russell

SENIOR COLLEGE COLLOQUIUM. This event is online via Zoom. It is for Fellows and External Fellows only. If you did not receive an invitation, then please contact the administrator at senior.college@utoronto.ca. This is for Fellows & External Fellows only

Colloquium: October 22: Colloquium: Is there a difference between law and politics? Peter Russell)

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I wrote an article with this title in 1980 or the inaugural issue of The Windsor Yearbook of Access to Justice. My argument was that politics and law are not separate realms of human activity, but that law is a specialized realm of politics with its distinct features. This statement turns on how I define “politics”. My definition is Aristotelian. In his Politics, Aristotle said, famously, that “man is a political animal”. He argues that what distinguishes human societies from societies of the brutes is that human societies are ordered by debates about justice. Applying that to Canada today, I would say that our discussions about how do balance our concern to control the COVID-19 virus with our concern to produce the goods and services we need is a key question about what is “just”. How that discussion and debate works out will be the way we Canadians order our society. Some of that ordering will be done through laws, and some of it through political and moral advocacy and rhetoric.

I don’t think that most people think of politics as Aristotle did (and I do). For many, politics is that smelly, stinky arena of competition for office and influence. Politicians are stink-pots. Now, I cannot talk anyone into my Aristotelian understanding politics. But the aim of my work on the politics of law is to induce those who think law is a nice cool apolitical realm unpolluted by politics, to appreciate that law is a thoroughly human activity that is often influenced, even shaped, by the less attractive aspects of politics. Law is not a lily-white, apolitical realm.

For instance laws have to be made, judges have to be appointed. They don’t float down from heaven, ready-made. Politics, however you define it, will play a big role in making the laws and on who gets to be a judge interpreting the laws. Similarly when laws are made, they have to be enforced, and politics will play a big role on whether a law is enforced and, if it is, how fairly and vigorously it is enforced. Disputes about the law will go to courts presided over by judges, and how judges decide these disputes will often be influenced by the ideas and prejudices of the judge.

Another area of inquiry is whether it is a good idea to apply law and the courts to an area of public life rather than leaving those activities to be worked out by other societal processes. For instance, I was a Charter of Rights sceptic who thought that determining the scope of rights and freedoms like freedom speech and social equality should be left to informal political processes rather than be governed by law and judicial decisions. I think I was wrong about that.

By recognizing the unavoidable ways in which politics influences the law, we can focus our moral energy, our quest for a just ordering of society, on thinking about how to minimize the bad influences of politics on law. Or to put the point a little differently what safeguards should we have to lessen the possibility of undesirable political influences on law? Consideration of that question has been the central preoccupation of the political science study of the judiciary around the world, and my biggest academic interest.

Here are a couple of questions that might arise out of what I have written above:
Do you think that law can be and should be a totally separate realm of human activity separate from politics?
Can politics be kept out of the process of selecting and appointing judges? If not, what is the best way of eliminating or reducing the undue influence of politics in the appointment of judges?

How much should we use law and the enforcement of law to get people to behave in ways that comply with rules that government and scientists believe will reduce the spread of the COVID-19 virus?

Peter Russell