In my last post I was pretty hard on legal academe, especially on its tendency to usurp the public's voice. It is perhaps necessary to explain why this is not a personal attack on legal academics.
Legal scholars have an important role in the legal system, independent of teaching incoming lawyers. I don't know the history as well as one might like to, but it is my belief that legal scholarship has functioned, to date, as a sort of quality control function within law.
It has been written in places other than here that judicial accountability is the flip side of judicial independence. But most of what I have seen written on the subject of judicial accountability basically says that judges hold themselves to high standards, and where they do not, the appeal courts step in. In the event of a conduct problem, there too the remedy is entirely internal to the judiciary.
In a change mindset, we are often so busy looking forward that we fail to examine a system for what it is actually doing before we launch campaigns to change it. That is, I think, what happened when the CJC was formed a few decades ago. And that is why, perhaps, everyone missed the importance of legal academe in judicial accountability.
The idea that the judges would hold themselves to relentlessly high standards without any pressures to do so is absurd; as absurd as the idea that doctors would do so without the threat of malpractice suits hanging over them - and growing awareness of medical error is revealing just how ineffective even that threat is. In law, there is no parallel even to the threat of malpractice.
That said, I do think judges have historically taken their work very seriously and have functioned in an intellectual atmosphere that predisposed to excellence. The impetus to do so came, in part I think, from the fact that, like medicine, law was a life-or-death enterprise. Until the death penalty was abolished in Canada, the stakes in law were high. We know, of course, from the Truscott case that the high stakes did not preclude mistakes. Even then, perhaps, hubris and privilege were taking their toll. Perhaps they always have. Idealizing the past is as dangerous as utopian thinking about the future.
But in the many branches of law where the death penalty has never been an option, as well as in criminal law, there is supposed to be some force that can mitigate or even respond to judicial abuses of power. Scholars are the only legal faction that can offer that response.
In law, judges are supposed to have power, even to have almost unassailable power. One mechanism for the sustenance and exercise of that power is "officer of the court" status. The duties of officers of the court include upholding the court. Judges have supervisory powers over officers of the court. Both those stipulations mean that lawyers, even the most experienced ones, cannot be relied upon to mitigate any excesses of the judiciary; to call attention to laziness, corruption, ignorance, or malfeasance that might merit repercussions - repercussions that, in a democratic system, are supposed to emanate from the political realm.
It is for this reason that the margin between sufficient and excessive judicial independence is razor-thin.
Officer of the court status is an essential component of maintaining order in the legal system. To a degree, as far as I've divined so far, it puts the judge in the same position as umpires and referees: themselves subject to rules, but granted near-absolute power to ensure the game played out under their authority is fair (because law is a competitive sport due to the adversary system).
Officer of the court status dampens criticism, which any system needs to stay healthy. In law, the criticism function is addressed by means of the open court principle, which is generally exercised by actions of the media and the public. But media and the public are not experts.
Expert systems are often granted self-regulatory status on the understanding that the work is so specialized that only fellow experts can determine whether avoidable mistakes have been made. That is why aviation experts, and not judges, investigate plane crashes.
Legal scholars are uniquely able to fill the role of experts. The fact that they are not officers of the court relieves them of the muzzle and duty to uphold the courts that limits what lawyers, court clerks, transcriptionists, and even legal regulators can do. The fact that they are experts in the law allows them to analyze even the most specialized level of work.
When legal academics stick to their knitting (as I advised in a previous post that all legal factions should do), they analyze and debate patterns among cases and the finer points of law within individual cases. Their analysis feeds back into the system as meat for practitioners to chew on: for lawyers to take into new cases and even to allow them to select what cases they take, and for judges to factor into their analysis. Secondarily, legal scholarship informs the political system - both the people and the leaders we elect - so that (a) laws can be made and changed as needed, and (b) the judiciary can be held answerable where necessary and action taken if the third branch of government escapes the boundaries of its legitimate jurisdiction. The political system, however, is meant to function absent the actual voices of legal scholars: the scholars play their role via the analysis and research that they feed into it. They have academic freedom, not public power.
Third and finally, legal academe has an intake function in which the practitioner realm feeds back into academe the problems and weaknesses encountered in the field. These might include, for example, the recent pressures experienced in the field due to the advent of self-represented litigation, changing rape laws, and the application of private sector labour law to the public sector.
But the give-and-take between scholars and practitioners and the political realm takes place across the boundary that delineates their separate realms. It is always tempting to jump those boundaries; everyone likes to expand their empire and their sphere of influence. But when those boundaries are muddied, each realm suffers and the rule of law becomes unstable. The rule of law, in fact, rests on that tripod of realms, each holding the other somewhat in check. When one realm lengthens its leg beyond what the others can respond to, equilibrium is lost.
The boundary is simple and clear: the role of academe is to listen, digest and critique, and then inform. Any academic voice that is opining or pressuring rather than informing is outside its jurisdiction.
One of the things I find amazing about the law is its breathtaking capacity for nuanced analysis, and the capacity to express the finest distinctions between ideas. One of the most neatly articulated distinctions I have come across is that between exceeding jurisdiction, and declining jurisdiction. That really captures the loss we all experience when legal scholars decide to enter the public realm directly with opinions and beliefs rather than staying in their lane with information and knowledge.
Not only do they exceed their jurisdiction by letting their personal belief system override what they know and have tested from a basis in expertise. In addition, they decline the jurisdiction they have to provide expert analysis of the practical functioning of the field and rob us of the best mechanism we have for evaluating judicial performance in the application of the law.
Without that, not only do they crowd others out of lanes they properly inhabit, but also, the scholars' own lane stays empty. And then we are all bereft.