Good Government? Good Citizens? Courts, Politics, and Markets in Canada.

Vol. 15 No.6 (June 2005), pp.527-530

GOOD GOVERNMENT? GOOD CITIZENS? COURTS, POLITICS, AND MARKETS IN CANADA, by W.A. Bogart. Vancouver: UBC Press, 2005. 264pp. Cloth $85.00. ISBN 0-7748-1164-1.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University. Email: Richard.Brisbin@mail.wvu.edu .

If there is a common theme in most Canadian scholarship about Canada, it is the question, “What is it to be Canadian?” Canadians might not be paranoid schizophrenics, as asserted by the premier Canadian novelist Margaret Atwood, but they certainly are introspective about their collective identity. This book by University of Windsor law professor, W.A. Bogart, exhibits the introspective strain through his answers to the questions about the nature of Canadian public life that comprise title of his book. In providing the answers to his questions, he has produced a book of interpretation and opinion that reflects the tradition of adversarial prescriptive argument rather than a book that reports new social scientific research.

Bogart’s thesis is that “momentous” change is underway in Canada. The change threatens the Canadian tradition of good government and good citizenship. The change brings alienation from the Canadian legacy of civic interaction, deference to elites and representative political decision makers, openness to regulation, collective public services, and communitarian policymaking. With the erosion of the traditional consensus comes less orderly and just government. As the sources of such change he posits the expansion of a politics of rights, the failure of representative institutions, and a change in markets and ideas about economic rights.

In a chapter devoted to rights, Bogart describes the end of a “marginal role” for courts in Canadian public life. He cites the Charter of Rights and Liberties of 1982 as the key factor in the emergence of a new role for the judiciary. The Charter, when coupled with the development of a practice of “rights talk” by the legal profession, allowed the Canadian Supreme Court to adopt a group rights orientation. After diverging into an assessment of the utility of such an orientation toward litigation on specific issues using evidence from the United States, he discusses the effect of the rights orientation of Canadian courts on representative politics. After a critique of other assessments of the Court’s actions on rights issues, he concludes that, “Our conception of individuals and their relationship to each other and to the state has been transformed” (p.42). The result, he charges, is the “myth of rights . . . . pulls people farther from a commitment to government institutions and the public welfare” (p.46).

Turning to representative government, Bogart documents a decline in public trust in parliamentary politics. He attributes the decline with the failure of the federal government to resolve the constitutional issues about the status of [*528] Quebec, the problems of First Nations peoples, the social isolation of new immigrants, and the inefficiencies of welfare state and regulatory programs. In contrast, he notes greater confidence in courts. Then he argues that the disenchantment with parliamentary politics has induced various “critical citizens” and citizen groups to seek their policy objectives in the courts.

In his chapter on markets, Bogart focuses on the influence of economic globalization on Canadian politics. He notes that the development of free trade policies, changes in technology and productivity, the decline of unionized labor, and wage stagnation provide evidence of a more laissez-faire, market-oriented economic life in Canada. With these trends, he finds the influence of representative institutions weakens. Also, he contends, the judiciary has offered mostly “symbolic victories” to the groups disadvantaged by such economic trends. Instead, as with the ideological language of free marketers, the judicial interpretation of rights reinforces the idea that government is bad.

Having set forth the causes of change in Canadian public life, Bogart then offers four examples of the results of change: First Nations issues, the Internet, education, and the treatment of older citizens. The chapter on First Nations argues that proponents of aboriginal national rights, including the judiciary, and those who argue aboriginals should share the same rights as all Canadians or become assimilated have created “fractiousness and litigation” rather than a reasonable collective effort to address the poverty and deprivation suffered by First Nations peoples. His discussion of the Internet addresses the implications of cyberspace for deliberative democracy. However, he is pessimistic that the Internet can provide an effective means to restore representative democracy or assist in “the hard labour of making representative politics strive for its ideals” (p.142).

A chapter on public education takes on a variety of issues–minority language education, the quality of education, voucher programs, the direct public subsidization of private education, and special needs education. Through a review of federal and provincial policies and judicial decisions, Bogart points to the injection of market ideas and rights talk into educational policies. These policies, he asserts, have stripped resources from public education and undercut equal access to the “public good” of education by all Canadians. Turning to the implications of an aging Canadian population for health and social policies, he finds rights talk has exposed discrimination against seniors. However, market forces and rights litigation have not provided economic dignity and the public goods that the older population requires.

As a solution to these problems, Bogart’s conclusion curiously poses a new task for courts. “They need to emphasize the limits of litigation and the boundaries of the market in tackling complex social, economic, and political issues. They ought to say that rights are essential to a free and democratic society but that rights are not enough. They should declare the critical value of good public goods” (p.202). Additionally, they need to support and vibrant representative and participatory [*529] government and generally build trust in government.

Bogart’s often nostalgic introspection about the state of Canadian public life raises interesting questions about the role judges play in the constitution of public life. These questions are not new ones, but he makes them central to his prescription for the future of Canada. Although his insights are suggestive, his examination and his prescription raise questions.

First, are judges and rights talk, including ideas of laissez-faire economic rights, really the primary cause of pathologies in Canadian public life? Bogart could provide much more hard evidence about the causes of the asserted decline of representative institutions, such as the Canadian parliament. Have courts and free market ideas really caused the loss of confidence in Canadian legislative bodies’ capacity to provide collective civic goods and build civic consensus? Canadian legislative institutions might be less legitimate for the public, but they still have an important policymaking capacity that judges and private bodies apparently have not offset. Despite a few issues such as gay rights, judges in Canada still tend to react to what legislators have done about First Nations, schools, and the aged. They do not often dream up new policies. Parliaments still structure how markets operate and the scope of economic rights. Therefore, without solid empirical evidence about the causes and effects of decline in public support for parliaments, more information about why persons use courts rather than parliaments, and information about how frequently judges generate important policies, it is not possible to accept fully Bogart’s assertions.

Further, even if the reader accepts Bogart’s argument that legislative institutions are in disarray and less capable of effectively devising public policy, why is it the case? Perhaps the disarray might be caused by the weakness of political parties rather than by rights talk and courts. By ineffectively stating a policy agenda or succumbing to the interests of campaign contributors, parties have undercut their ability to represent, define policy options, and make policy. Alternatively, with parliamentary links to popular sentiments in disarray, there is another reason Canadians have turned to other sources to secure their interests, including courts and the less regulated market that he depicts. Therefore, it could be argued that judges and corporations fill in after the legislature acts, but they do not cause the disarray in representative institutions or distrust in politics.

Regardless of whatever is transpiring in the practice of Canadian civic life and the meaning of being a Canadian citizen, Bogart is correct that a different political role for courts has emerged in Canada. Whether it will work for good or ill raises a second question: Can judges reject the current rights-oriented direction of their decisions and adopt his suggestion that they do much more to support civic ends? In his concluding prescription he offers little evidence that judges can or will change their approach to rights or whether courts are truly capable of building public trust in parliaments. Also, his remedy neglects whether the global spread of corporate power can be offset by less rights talk [*530] from courts or by more legitimate and trusted parliamentary institutions.

For this reviewer, the trends in Canadian life seem to be less determined by rights talk and less amenable to judicial solutions than Bogart suggests in his book. Traditional Canadian identity and civic life instead might have already succumbed to global corporate economic and ideological forces well beyond the control of Canadians and their judges. Nonetheless, Bogart offers an important thesis about the power of judges and rights that demands further inquiry both in Canada and elsewhere in the West. Or, to what extent can judges and rights talk reshape regime politics and civic life?

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