Vol. 10 No. 4 (May 2000) pp. 304-306.

IDEAS IN ACTION: ESSAYS ON POLITICS AND LAW IN HONOUR OF PETER RUSSELL by Joseph Fletcher (Editor). Toronto: University of Toronto Press, 1999.

Reviewed by W. A. Bogart, Faculty of Law, University of Windsor.

Academics are a funny lot. Filled with high-minded ideas they, too often, at close range, reveal quite a different side. Still, at times, they do rise to the occasion in recognizing the substantial contributions of one of their own. A fine tradition in that regard is the "Essays in Honour of..." celebrating the end of a brilliant career. IDEAS IN ACTION is such a book. The focus of the well-deserved praise is Canadian political scientist Peter Russell. Peter Russell's story is both a great and unconventional one, at least in terms of academic paths these days. He is among Canada's most prolific scholars in regard to issues of law and politics. He has received many honours, and he has been extraordinarily influential as a public intellectual in terms of development of public policy, a range of governmental commissions, and media attention to his ideas. Yet, he has no earned Ph.D., is skeptical of Canada's new found faith in an entrenched bill of rights (the Charter of Rights and Freedoms) and, perish the thought, has always been open about his religious convictions. In this age of extremes he has consistently advocated pragmatic and incremental approaches to society's dilemmas.

IDEAS IN ACTION is a collection of essays based on a conference held in 1997 to celebrate Russell's early retirement from the Political Science Department at the University of Toronto. The book is divided into five parts to reflect Russell's varied interests that share the common ground of law and politics: constitutional politics; aboriginal peoples; security intelligence; law and the courts; and rights and the Charter. The essays are written by a diverse group of legal academics, political scientists, politicians, and judges. This is as it should be, given Peter Russell's range of interests and areas of influence. At the same time, such diversity means that many of the essays, even within the same part of the book, are only loosely related to one another. Thus, for example, in Part IV - "Law and the Courts" - there are essays on gender differences in judicial appointments by judge Maryka Omatsu, a comparison of trial and appeal courts as state actors by political scientist Carl Baar, a comparison of the process of choosing juries in border towns in the United States and Canada by law professors Martin Friedland and Kent Roach, and South Africa's constitutional dilemmas by law professor Hugh Corder. All these papers address important subjects in challenging ways, but they are unconnected to each other except in terms of linkage to the theme of law and courts pitched at a very general level.At the same time, the essays do echo most of the important issues that Canada has had to face over the last two decades,

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including endless battles over its federal system, most prominently the role of Quebec; the plight of aboriginal peoples; security intelligence (Russell has played a very prominent role in these issues, especially regarding dampening zealous efforts of governments); and the many dilemmas respecting entrenching a bill of rights and the effects upon Canadian society. Many of the authors return again and again to the predominant themes in Russell's own scholarly and policy work. These are, on the one hand, a belief in gradualism that eschews a search for grand solutions, and, on the other, an abiding faith in the capacity of deliberative politics. Those who know Peter Russell have, on more than one occasion and in a variety of contexts, heard him quote Matthew (6: 34) "Sufficient unto the day is the evil thereof." They have often heard him speak of the need for more democracy and of greater recognition of the enormous diversities within Canadian society, even as those needs sometimes bitterly conflict. Thus, it is ironic that, as Russell's ideas are celebrated, they are increasingly out of favour. Incrementalism is having an especially hard time just now. Canadian society has undergone enormous transformation in the last decades. There are a number of reasons for such sea change, but an important one lies at the heart of Russell's interests -- the relationship of law and politics as manifested in the influence exerted by an entrenched bill of rights.

In 1982 Canada adopted the Charter of Rights and Freedoms. The outcomes produced by this development are immersed in controversy, a point that we will come to in a moment. However, almost everyone would agree that Russell was as accurate as he was pithy when he suggested that entrenching rights would "judicialize politics and politicize the judiciary". The Charter and its trail of litigation has become a vehicle for involving judges and litigation lawyers in all manner of issues that before were only peripherally within their domain. Thus, it is appropriate that the last section, (Part V) of the book be devoted to "Rights and the Charter". Included are essays on: the judicial role in the development of law by judge Rosalie Silberman Abella, the Charter and Canadians as a sovereign people by political scientists Rainer Knopff and F. L. Morton -- the title alludes to one of Russell's own books, and, legislative scrutiny as an approach to protecting rights by political scientist Janet Hiebert. In addition, there is a very thoughtful essay in Part I "Constitutional Politics" on the eclipse of reform liberalism by political scientist Robert Vipond that addresses the way in which the Charter has transformed Canadian politics so that many progressive impulses have been pushed to the margins.

What are the outcomes produced by this turning to judges and courts to tackle a myriad of complex questions under the rubric of rights? If the court advocates are to believed, Canada is on the road to betterment. An independent and tenured judiciary is ensuring that impetuous legislatures, rigid bureaucracies, and a dulled citizenry do not reject rationality and principle. At the same time, minorities, particularly the disadvantaged, can harness that rationality and principle to further alleviate their conditions. The skeptics paint a different picture. In their depiction, a move to courts, lawyers, and judges is sure to sap the forces of representative government. Those on the right insist that a ragtag bunch have invaded courts and invoked rights in an attempt to achieve all sorts of ambitions denied to them by popular politics. Those on the left fear that the turning from popular politics will sap efforts

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to use government to achieve the centre-left set of social programs that have been a hallmark of Canada's reputation as a temperate society. Indeed, these two outcomes could be produced simultaneously: a clamoring for rights, with an occasional victory for the have nots matched by a waning of commitment to the common good achieved through a popular, moderate politics. As someone who is also skeptical of the Charter and overreliance on litigation to tackle complex issues, the essays that echo Russell's warnings about entrenchment of rights seem more compelling. Certainly Canada's waning commitment to its social programs, the growth in the disparity of wealth and income, and the election of governments enthusiastically committed to market solutions for all manner of ills, real and perceived, gives one pause. The Charter cannot be held solely responsible for all these developments. However, it is surely more than coincidence that a turning to courts to tackle our problems has been matched by politicians and, yes, popular sentiment that proclaim that governments should do less in all sorts of areas (and, if the scope for markets increases, so much the better). It is hardly chance that extravagant assertion of judge recognized rights proceeds apace even as commitment to the common good ebbs. One thing seems clear. The incrementalism that Russell has espoused is now pronounced pass‚. Radical alterations are all about -- and urged as the preferred route. From technology, to trade, to globalization, to "judicializing politics and politicizing the judiciary" solutions premised on gradualism are seen as ineffectual and, more darkly, the product of connivance. Russell has had many wise things to say to the Canadian people about how to find their way. Even as his life and work are honoured is his sound advice being cast aside?