Liberalism

As both a framework for and political tradition in Western legal thought, “liberalism” is core to the logic of Anglo-Canadian law and related legal orders in a globalized world.¹ As Ian McKay argues:²

[T]he category ‘Canada’ should … denote a historically specific project of rule, rather than either an essence we must defend or an empty homogeneous space we must possess. Canada-as-project can be analyzed through the study of the implantation and expansion over a heterogeneous terrain of a certain politico-economic logic–to wit, liberalism.

The basic tenant of liberalism holds that all human beings should be free to pursue their own ends and, in pursuit of those ends, free to compete with one another. A central dilemma arises, however, when we recognize that society as a whole can only benefit from free competition when social controls limit individual freedoms to some degree. In other words, individual freedom for any one person–as measured by the degree to which that person is free from societal control–is simply impossible without putting societal limits on the freedoms of everyone else.

The “vocabulary” of common law legal arguments—the lexicon of typical, patterned argument types used by judges and lawyers to debate and reason through the merits of a case–gives rise to a nagging question: how can arguments with this structure ever help us to resolve a case, to decide which judgement is more convincing or persuasive? If every argument bite has one or more predictable counter-argument bites, how does one side ever “win out” over the other?

From a historical perspective, the answer to this question depends on when we are asking it. Borrowing from legal-historical studies in other liberal Western democracies, we can compare two contrasting traditions in Anglo-Canadian legal thought over the past few hundred years: the classical tradition and the modern tradition. While legal arguments in these two traditions share a basic structure or “grammar” of liberalism and the liberal dilemma, they differ dramatically in terms of “style”–that is, how this basic grammar is employed and presented to persuade its audience.³

How Anglo-Canadian jurists have tried to resolve the basic dilemma of liberalism has given rise to the different traditions of legal thought we’ll explore throughout the course. To help us define the features of the “classical” and “modern” styles, we can ask three guiding questions:⁴

1. Which side of the liberal dilemma is emphasized or given priority in the reasoning–free competition between individuals (classical) or societal limitations on this freedom (modern)?

2. Are “public” and “private” treated strictly as separate and distinct spheres of social life (classical) or does the reasoning work to collapse or erode the distinction between them (modern)?

3. Is law understood to develop by means of “discovery” and reasoning from settled principles (classical) or by reasoning backward from the societal consequences of legal decisions (modern)?

Keep each of these questions in mind as you read the cases we will study this year.