Help Yourself

As I said in the beginning: The Idea File is chiefly about Canadian affairs: old, new, borrowed, and blue. Some items derive from my books. Some don’t. Help yourself to anything that takes your fancy.

Please do. Here’s an overhead I used at a recent talk:

On Making Policy:
Courts versus Parliament

Courts are less democratic. Judges are not accountable and not easily removable. They sometimes profess to speak for the public interest but don’t answer to the public.

  • Parliamentarians are subjected to constant scrutiny and criticism. Public opinion can bring down a government, punish an opposition party, reject an individual member at the constituency level.
  • Members of Parliament can be visited, phoned, etc., chatted up on Face Book. Petitioned.
  • In contrast, the public has little access to judges and the judicial system; applicants seeking resolution of an issue in the courts must have “standing.”

Courts are less effective. Judges don’t choose their cases and are not in a position to build policy systematically.

  • Parliament can take the initiative, responding to current events and changes in public opinion. It can introduce legislation on any issue, for any reason, at any time. It can amend laws, throw them out, re-enact them. A parliament that “reverses” itself is acting as a parliament should: responding to political deliberation and public opinion.
  • Courts less often “reverse” themselves. They’re traditionally reluctant to overthrow precedents or to advance strikingly new interpretations of law because such moves cast doubt on the reliability of constitutional law and the appeal to the courts as last resort. Courts are designed to put an end to disputes and controversy.
  • Parliamentarians and parliamentary committees can summon political interest groups and experts, and request information, opinions, statistics from the various “stakeholders.” The research resources available to parliamentarians of all parties are impressive: the Library of Parliament and its researchers; the great departments of government, which are research industries in their own right. Each party has a research budget; each Member of Parliament has a budget. Committees sometimes travel.
  • In contrast, the courts have comparatively little access to social data. Even where a court entertains the opinions of several interest groups (“friends of the court”), the traditional adversarial model of decision-making prevails, making it difficult for judges to resolve multi-sided policy issues.
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1 Response to “Help Yourself”


  1. 1 anonymous April 8, 2009 at 4:30 pm

    1) “Courts are less democratic … * In contrast, the public has little access to judges and the judicial system; applicants seeking resolution of an issue in the courts must have “standing.”

    – True – but courts are still held accountable when they publish the reasoning for their decision. And decisions can be reversed. Let’s not forget that courts are very much attuned to public opinion and respond accordingly.

    Courts are less effective. Judges don’t choose their cases and are not in a position to build policy systematically.

    2) “* Courts less often “reverse” themselves. They’re traditionally reluctant to overthrow precedents or to advance strikingly new interpretations of law because such moves cast doubt on the reliability of constitutional law and the appeal to the courts as last resort.”

    – How true is this statement, especially since 1949 when the SCC became the court of final appeal in Canada? The problem is, we don’t have any empirical studies that track this supposed trend, nor do we have explanatory studies that explain this trend.


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