McGill Law Journal ~ Revue de droit de McGill
WITNESSING ARBITRARINESS:
RONCARELLI V. DUPLESSIS FIFTY YEARS ON
Mary Liston*
In Canadian public law, Roncarelli v. Du-
plessis stands for the proposition that arbitrari-
ness and the rule of law are conceptually anti-
thetical values. This article examines multiple
forms of arbitrariness in Roncarelli, going be-
yond the usual focus on discretionary power ar-
bitrarily exercised by the executive branch of
government.
A close reading of the case brings to the
surface other forms of arbitrariness, notably
under-acknowledged forms of judicial arbitrari-
ness. Repositioning the case in its social and po-
litical context provides an alternative vantage
point from which the core conceptual content
can be enlarged and the cases normative im-
port better gleaned. The article argues that
such a repositioning illuminates how legal ac-
tors attempt to constrain arbitrariness within
the activity of judging. Reason-giving appears
as one significant rule of law practice that can
counter institutionalized arbitrariness by seek-
ing to ensure that decision makers throughout
the state are attuned to the demands of legality,
can be held to account, and are committed to
upholding good government.
Une
larrt
Laffaire Roncarelli c. Duplessis symbolise
lide selon laquelle larbitraire et la primaut
du droit sont des valeurs antithtiques sur le
plan conceptuel. Dans cet article, lauteure
examine plusieurs formes dexercice arbitraire
du pouvoir dans Roncarelli, allant au-del de
laccent qui est gnralement mis sur le pouvoir
discrtionnaire exerc de faon arbitraire par la
branche excutive du gouvernement.
lecture attentive de
fait
ressortir dautres formes mconnues dexercice
arbitraire du pouvoir, notamment par lappareil
judiciaire. En replaant larrt dans son con-
texte social et politique, cette question peut
saborder sous un nouvel angle partir duquel
le cur conceptuel de laffaire peut tre largi et
limportance normative de larrt mieux saisie.
Lauteure soutient quun tel repositionnement
contextuel expose la faon dont les acteurs
juridiques tentent de freiner larbitraire dans
lexercice de la fonction judiciaire. Le fait de
justifier son raisonnement constitue une prat-
ique importante au sein de la primaut du droit.
Cette pratique permet de contrer larbitraire
institutionnalis en cherchant sassurer que
les dcideurs tatiques soient sensibles aux
exigences de la lgalit, quils soient imputables
et quils sengagent maintenir une bonne
gouvernance.
* Assistant Professor, Faculty of Law, University of British Columbia. I would like to
thank the symposium participants for their valuable feedback and for an invigorating
two-day discussion. The article benefited from the constructive comments and sugges-
tions from the editors and anonymous peer reviewer, as well as from participants at the
Faculty of Law Colloquium, University of British Columbia, where it was also pre-
sented. Lastly, I would especially like to thank Genevive Cartier for organizing this
retrospectivea retrospective that also honoured the memory of Professor Mike
Taggart, Alexander Turner Professor of Law at the University of Auckland.
Citation: (2010) 55 McGill L.J. 689 ~ Rfrence : (2010) 55 R.D. McGill 689
Mary Liston 2010
690 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I. Roncarellis Arbitrariness in a Nutshell
II.
III.
Witnessing Arbitrariness
A. The Subject and the Subjective Core of Arbitrariness
B. Functional Unilateralism
C. Arbitrary Horizons
Modelling Judicial Arbitrariness
A. Judging Between Politics and the Law
B. The Sounds of Silence
C. Court (Dys)functions
D. Remedying Arbitrariness
IV.
Reviewing Arbitrariness in Theory
Conclusion: Twenty-first Century Arbitrariness
691
692
693
693
696
700
702
702
705
706
708
710
718
WITNESSING ARBITRARINESS 691
In public regulation of this sort there is no such
thing as absolute and untrammelled discretion,
that is that action can be taken on any ground or
for any reason that can be suggested to the mind
of the administrator; no legislative Act can, with-
out express language, be taken to contemplate an
unlimited arbitrary power exercisable for any
purpose, however capricious or irrelevant, regard-
less of the nature or purpose of the statute.
Justice Rand1
Introduction
In Canadian public law, Roncarelli v. Duplessis stands for the proposi-
tion that arbitrariness and the rule of law are conceptually antithetical
values. Arbitrariness constitutes the central idea around which other con-
cepts in the case revolve, such as authority, discretion, legitimacy, and
reason. But what exactly are the attributes of arbitrariness in Roncarelli?
Does the judgment disclose all possible forms of arbitrariness? Moreover,
can Roncarelli still assist in understanding contemporary exercises of ar-
bitrary power?
As part of the larger reflective and retrospective exercise that this
Special Issue represents, this article first examines multiple forms of arbi-
trariness in Roncarelli (Part I). A close reading of the case demonstrates
that arbitrariness as a normative concept possesses a robustness that,
when used in legal discourse, draws on a profound historical legacy con-
cerning political and legal forms of constitutionalism (Part II). This paper
also suggests that a more comprehensive discourse of arbitrariness prof-
itably provides alternative insights into the cases iconic status in Cana-
dian public law (Part III). Here, the argument brings to the surface im-
plicit models of judging contained within the case in order to examine ju-
dicial arbitrariness. Repositioning the case in this manner provides an al-
ternative vantage point to understand the differences between legal and
political forms of arbitrariness and their possible remedies. Finally, this
paper suggests that Roncarelli provides much assistance in building a
stronger theoretical structure from which to understand and articulate
not just the rule of law, as is the conventional reading, but also an up-
dated conception of arbitrariness suitable for a modern state (Part IV).
Indeed, Roncarelli particularly invites us to revisit, revise, and reconcile
the relationship between the principle of the rule of law and that of par-
liamentary sovereignty.
1 Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140, 16 D.L.R. (2d) 689 [emphasis added,
Roncarelli].
692 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
I. Roncarellis Arbitrariness in a Nutshell
Before moving to a more detailed analysis, I will first very briefly re-
tell the Roncarelli narrative in a manner that highlights the multiple
manifestations of arbitrariness that are present in the case. This retelling
aims to show in Part II how the combined effects of these multiple mani-
festations of arbitrariness make the case exemplary. My second objective
relies on the first in order to make a modest counter-reading from a per-
spective fifty years on in Part III.
Frank Roncarelli was a Jehovahs Witness who ran a restaurant in
Montreal and was denied renewal of his liquor licence formally by
Edouard Archambault, the Chairman of the Quebec Liquor Commission,
but effectively by Maurice Duplessis, then Attorney General and prime
minister of Quebec. The denial of the liquor licence ended Roncarellis
economic activities as a restaurateur, threatened his livelihood, and pub-
licly tarnished his name. This denial appeared to be authorized by the
Chair of the Liquor Commission who possessed broad discretionary au-
thority by statute to issue or cancel licences on what appeared to be any
grounds under the statute. Due to public statements made by Duplessis
during a press conference held the day after the cancellation, as well as
legal testimony from Chairman Archambault and Duplessis, the real
grounds for the licence cancellation were disclosed. It became clear that
Duplessis was displeased about Roncarellis bail support for his fellow Je-
hovahs Witnesses who were jailed under municipal laws for unauthorized
distribution of their religious tracts, and that this was both the real mo-
tive and the real reason for the licence cancellation. Though Roncarelli
himself was not an active pamphleteer, he was singled out by Duplessis to
bear the collective burden of religious discrimination against his group.
The real motive seemed to border on vengeance, malice, and the desire for
punishment, given Duplessiss insistence that Roncarellis liquor licence
should be cancelled forever. One evidentiary focal point in the case was the
question of whether or not Duplessis had actually ordered Archambault
to cancel the licence during a telephone conversation that occurred the
night before the cancellation and subsequent police raid on the restaurant.
Duplessis further channelled the disapproval of powerful Catholic au-
thorities who wished the province to resist the possible expansion of this
alternative faith and who characterized the activities of the Jehovahs
Witnesses as near sedition. Duplessiss defence was that he was acting for
the larger public good by protecting Quebec society from disloyal agita-
tors, preserving public order, and ensuring that the justice system was no
longer clogged up by their unruly activities.2
2 For an exposition of the background world view partly shared by the Catholic authori-
ties and Duplessis, see the influential writings of Canon Lionel Groulx. See e.g. Canon
WITNESSING ARBITRARINESS 693
II. Witnessing Arbitrariness
With this brief narrative in mind, this section will further contextual-
ize Roncarelli in order to tease out the multiple manifestations of legal
arbitrariness in relation to legal subjects, arbitrariness in the legal sys-
tem, and the constitutive values of a larger political morality.
A. The Subject and the Subjective Core of Arbitrariness
Justice Rands judgment, featured in part as the epigraph to this arti-
cle, most famously captures the normative core of arbitrariness.3 Justice
Rand characterized the liquor licence as an economic near-right, and a
vested interest, contributing to Roncarellis dignity, signifying his auton-
omy, and communicating his formal status as an equal Canadian citizen.4
Archambaults apparent complicity in being the legal conduit for arbi-
trariness bordered on wholesale indifference to the effects of the licence
cancellation on Roncarellis life and dignity, and contributed to Ron-
carellis belief that due process had gone awry.
Duplessiss individualized legal order, on the other hand, manifested
the subjective core of arbitrariness traditionally characterized as ill will
and the substitution of private for public purposes by individuals in posi-
tions of power.5 Justice Rand argued that Duplessis interfered with the
Lionel Groulx, Tomorrows Tasks in H.D. Forbes, ed., Canadian Political Thought (To-
ronto: Oxford University Press, 1985) 255 (a 1936 address to the patriotic youth of Que-
bec made at the height of his influence). Groulx argued that Quebecers needed to resist
the domination of the Anglo-American economic minority by becoming masters in their
own house. A duty also lay on Francophone officials to use the state to realize the politi-
cal character of the province:
But if it is granted that a Catholic people and country represent a value of a
higher order; and if, despite our shortcomings and troubles, as a result of his-
toric causes it happens that we embody, here in our land, Catholic spiritual-
ity and vitality as no other people does, then to work towards the creation of
a French State, towards a climate of liberty for the flowering of human per-
sonality and Christian civilizationwhat is this, in short, but to give our la-
bour and our life an incomparable end: the survival of one of the highest
spiritual realities on this continent? (ibid. at 269).
Though ideologically congruent, Groulx and Duplessis were, in fact, political opponents.
3 For the best elaboration of the normative core in Rand J.s judgment and what this
means for common law constitutionalism, see David Dyzenhaus, The Deep Structure of
Roncarelli v. Duplessis (2004) 53 U.N.B.L.J. 111 [Dyzenhaus, Deep Structure].
4 For further discussion of the import of citizenship in Rand J.s thinking, see Matthew
Lewans, Roncarellis Green Card: The Role of Citizenship in Randian Constitutional-
ism (2010) 55 McGill 537.
5 The psychological dimension should be distinguished from the legal core of arbitrari-
ness in administrative law, where an improper motive, rather than ill will or spite, is
required in order to obtain a legal remedy. By contrast, and as discussed below, malice
is considered an essential element of the tort of abuse of power. See Suing Government
694 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
implicit statutory purposes of the Alcoholic Liquor Act6 because Duplessis
knew that these purposes did not further his preferred outcome. Perhaps
Duplessiss actions stopped short of outright vengeance or vindictiveness,
but Roncarellis restaurant and livelihood were nevertheless dealt a mor-
tal blow.7 In legal terms, the effect of Duplessiss actions therefore
amounted to an abusive act that violated an interest essential to Ron-
carellis autonomy and sense of dignity.8 In political terms, it amounted to
a form of domination from the perspective of liberal-republican theories of
governance: Quebecs French-Canadian Catholic community was exercis-
ing its power as a national majority through public institutions in order to
marginalize and silence a disruptive and sometimes aggressive minority
religious group.
We might also label Duplessiss actions as subjectively capricious if we
understood caprice to include truly pernicious actions rather than those
that are simply aberrant, quirky, or whimsical in a quaintly humorous
way.9 Ordering the lunchtime public raid on Roncarellis restaurant con-
for Abuse of Power (Vancouver: Continuing Legal Education Society of British Colum-
bia, 1987). See also Mark Aronson, Some Australian Reflections on Roncarelli v. Du-
plessis (2010) 55 McGill L.J. 615; David Mullan, Roncarelli v. Duplessis and Damages
for Abuse of Power: For What Did It Stand in 1959 and For What Does It Stand in
2009? (2010) 55 McGill L.J. 587. Aronson and Mullan offer rewarding insights into the
potential role of the tort of misfeasance in contemporary public law.
6 R.S.Q. 1941.
7 Claude-Armand Sheppard, Roncarelli v. Duplessis: Art. 1053 C.C. Revolutionized
(1960) 6 McGill L.J. 75 at 75, reprinted in (2010) 55 McGill L.J. v.
8 Joseph Raz argues that only some types of interference will count as an offence to the
dignity of a person: insults, enslavement, and manipulation. See Joseph Raz, The Rule
of Law and Its Virtue in Liberty and the Rule of Law, ed. by Robert L. Cunningham
(College Station, Tex.: Texas A&M University Press, 1979) 3 at 14 [Raz, Rule of Law].
Duplessiss treatment of Roncarelli does not easily fit here unless we accept Razs un-
derstanding of implicit insult: An insult offends a persons dignity if it consists of or
implies a denial that he is an autonomous person and deserves to be treated as one
(ibid.). Implicit insult necessarily relies on a theory of adjudication authorizing judges
to do a lot of interpretive work with background understandings. If correct, this conclu-
sion is at odds with the positivist desire for determinate and predictable judgments.
9 But aesthetic inferences may also be relevant. Arbitrariness, for example, is completely
permissible in aesthetic judgment. Aesthetics also leads us to the concept of the sub-
lime, a related concept that played a political role in the Romantic period. Following the
republican American and French Revolutions against monarchical forms of arbitrary
power, the Romantic Movement embraced the necessity of revolutionary violence.
Though mindful of the destruction wrought by Jacobinism and the Terror in the French
Revolution, such costs were deemed necessary in the democratic struggle for political
liberty. For a conservative proponent of limited power like Edmund Burke, this view il-
lustrated the simultaneous irresistibility and danger of the sublime as a mode of uncon-
strained power. Aesthetically, it might be terrifically pleasurable to be thunderstruck
by the beauty of natural wonders, to be bowled over by powerful beasts, to be thrilled by
spectacles, and to enjoy many other delicious fears. Some forms help us realize our
smallness and might then lead us to grasp the infinite or the power of God. But the po-
WITNESSING ARBITRARINESS 695
notes this kind of arbitrariness and Duplessis presumably felt fairly
chuffed about the powerful public symbolism of his commandsa satis-
faction he later revealed that same day at the press conference. Neverthe-
less, Duplessis denied that he or Archambault had anything personal
against Roncarelli and so he did not consider his actions reprehensible on
this more subjective level.10 It is not possible to establish with any cer-
tainty whether or not Duplessis took great pleasure in causing such pain
to Roncarelli. Moreover, Duplessis honestly believed he was acting for the
greater good and his certainty about this belief lured him into thinking
that the law would find for his side. He publicly stated several times, I
have no family. My only responsibility is the welfare of Quebec. I belong to
the province.11 His subsequent testimony confirms his conviction that the
harm done to the Jehovahs Witnesses was clearly outweighed by the good
for the larger society and was not an example of arbitrary interferencea
defence that captures the battle between right and good that was so
prominent in debates between liberals and communitarians.12 Duplessis
also characterized his approval of Archambaults suggestion to cancel the
permit as a necessary and noble duty, and so was not arbitrarily moti-
vated either.13 The former defence tapped into public law justifications to
limit individual rights in order to further the public good, while the latter
shielded Duplessis from a finding of fault in tort.
Hubris also brings into play one of Diceys three features of the rule of
lawthat no public official is above the law. Duplessiss attitude brought
him to that thresholda disturbing result from a man trained as a law-
litical forms of the sublimeeither an overawing government grounded in fear or an in-
fatuation with uncontrollable political violencecould not be positively valued by
Burke. See William Keach, Arbitrary Power: Romanticism, Language, Politics (Prince-
ton: Princeton University Press, 2004) c. 6 (The Language of Revolutionary Violence).
See also Louis I. Bredvold & Ralph G. Ross, eds., The Philosophy of Edmund Burke
(Ann Arbor: University of Michigan Press, 1960) (selections from Edmund Burkes writ-
ings on the sublime).
10 See Roncarelli v. Duplessis (1951), [1952] 1 D.L.R. 680 at 693 (Qc. Sup. Ct.) [Roncarelli
(Sup. Ct.)].
11 Pierre Laporte, The True Face of Duplessis (Montreal: Harvest House, 1961) at 33, cited
in George Steven Swan, A Preliminary Comparison of Longs Louisiana and Duplessis
Quebec (1984) 25 Louisiana History 289 at 294, n. 42.
12 From a liberal perspective, individual differences are arbitrary and cannot be endorsed
as the unproblematic result of a pre-existing natural order. Institutions are therefore
just when no arbitrary distinctions are made between persons in the assigning of basic
rights and duties and when the rules determine a proper balance between competing
claims to the advantages of social life: John Rawls, A Theory of Justice (Cambridge,
Mass.: Belknap Press of Harvard University Press, 1972) at 5. Rights reconstitute the
natural person so that legal and political attributes, not natural attributes, possess
moral significance and all possess formal equality as a result. Systemic discrimination
occurs when patterned asymmetries occur widely along one attribute (e.g., gender or
race).
13 Roncarelli (Sup. Ct.), supra note 10 at 692.
696 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
yerand the effects of his arbitrary actions were further exacerbated by
the overlapping sources of power stemming from his two executive func-
tions: the political role of prime minister and the advisory legal role of At-
torney General. This blending of functions recalls Montesquieus most fa-
mous institutional remedy for the risks of arbitrariness: to separate and
distribute power among several institutions and corresponding persons so
that no institution or official possesses an effective monopoly or strangle-
hold.
The connection between the subjective attitude of the man and the
concentration of power is isomorphically suggestive. In this case, the
closed mind of a powerful man confronted by the problem of pluralism ul-
timately resulted in the unilateral projection of power from the top down
without regard for those subject to it. Duplessiss normative and func-
tional unilateralism resulted in antilegality and a resounding denial of
the broader principles of audi alteram partem. It also approached political
absolutism. Unlike the world of mathematics, however, under the rule of
law, individuals and citizens are not to be considered arbitrary elements
or interchangeable units in a vast and neutral system that may be put to
any use by their master. On the contrary, a shared political belief in the
equal moral worth of and respect for individuals requires that institu-
tional practices attend to this status and that public power-wielders mani-
fest their commitment to a constitutional bond of shared law.
B. Functional Unilateralism
The blending of functions discussed above leads us from the subjec-
tiveindividualized with respect to the relationship between the two
main actors that provides the overall drama and emotional resonanceto
the functional dimensions of arbitrariness. Instead of Duplessiss deliber-
ate and wilful disregard for the rule of law, the law or its institutional fail-
ings constitute, whether overtly or inadvertently, another type of legal
harm.14 In this section, identifiable weaknesses take four forms: the overly
broad delegation of discretion; the lack of institutional independence; the
failure to give reasons; and the denial of access to justice.
A chief source of mischief was the statute15an act of legislative
thoughtlessness.16 The statute contained an overly broad delegation of
14 For a treatment of arbitrariness in the context of technical deficiencies in criminal law,
see Marc Ribeiro, Limiting Arbitrary Power: The Vagueness Doctrine in Canadian Con-
stitutional Law (Vancouver: UBC Press, 2004).
15 Alcoholic Liquor Act, supra note 6.
16 Henry Richardson, Democratic Autonomy: Public Reasoning about the Ends of Policy
(New York: Oxford University Press, 2002) at 7. Joseph Vining sums up this common
judicial view of legislation. What then is legislation? The implication, strongly hinted
but never fully stated, is that legislation is action that need have no reason and need
WITNESSING ARBITRARINESS 697
discretionary power unconstrained by any overt signalling of purposes re-
garding the overall liquor licence scheme or any guidance through sug-
gested decision-making criteria.17 A literal reading of this seemingly open-
ended statutory provision leads to the conclusion that the decision maker
could base his decision to grant, cancel, or refuse a liquor licence on any
ground without losing his legal authority. While the language of the pro-
vision was itself clear, the intended scope was extremely vague. It caused
confusion and uncertainty not only to those who were subject to it, but
also to those who applied itborne out by Archambaults need to consult
Duplessisbecause it neither channelled nor guided the exercise of
power. This power therefore appeared absolute and untrammelled.
Application of the law represents the second failing, for Archambault
did not apply his discretionary judgment at all. Indeed, his decision ap-
peared to be dictated by Duplessis who therefore substituted his own
judgment for that of the authorized decision-maker. Alternatively, if we
accept that Archambault did make the decision prior to his phone conver-
sation with Duplessis, then his decision was not fully determined by Du-
plessis. But, his decision still lacks independence and, with the public re-
cord as evidence, appears primarily politically motivated and biased.
Archambault also admitted that he had had Agent Y-3 secretly inves-
tigate Roncarelli before cancelling the permit in order to determine con-
clusively that Roncarelli was both restaurant owner and bail furnisher.18
Surveillance was indirectly authorized by Duplessis in his capacity as At-
torney General.19 Political motivation, while not outright denied by the
statute, violates an underlying set of expectations regarding good-faith
decision-making and fair treatment in this statutory licensing regime. Po-
litical interference brings into play the principles of natural justice with
respect to independence, impartiality, and bias. The fact that Archam-
bault held an at pleasure appointment buttressed these concerns since
meet no standards of consistency: Joseph Vining, From Newtons Sleep (Princeton:
Princeton University Press, 1995) at 256. One potential danger of this view is the con-
comitant arrogation of institutional reason to the courts alone.
17 See Alcoholic Liquor Act, supra note 6, s. 35: The Commission may cancell any permit
at its discretion.
18 Sheppard, supra note 7 at 79.
19 Claude-Armand Sheppard reports this incident as follows:
Archambault, after verifying the facts, telephoned the prime minister in
Quebec. He relayed to Duplessis the information he had received and men-
tioned his intention to cancel Roncarellis licence. Duplessis told him to be
careful and to make sure that it was the same Roncarelli who gave bonds.
Secret agent Y-3 confirmed Roncarellis identity. Archambault then called
Duplessis and it was decided to cancel the permit (ibid.).
The passive voice in the last sentence signals the legal uncertainty about whether Du-
plessis was the actual determining cause of the cancellation.
698 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
he could hardly reject Duplessiss advice, else risk losing his statutory
office.
As a third weakness, Roncarelli received neither a hearing nor legal
reasons for the decision; instead, he received public shaming and self-
serving public statements from the prime minister of Quebec. Roncarelli
therefore lacked any institutional reasons for the decision and possessed
no concrete legal grounds from which he could dispute the decision.
On a positivist model of adjudication, a formally valid decision would
not be legally suspect because it was issued without reasons or reasonable
reasons. Justice Cartwrights dissenting judgment at the Supreme Court
of Canada reflects this approach to the judicial review of discretionary de-
cisions. According to Justice Cartwright, an administrative decision made
within jurisdiction requires full deference from a court when its enabling
statute grants absolute and unfettered discretion to the decision maker.20
For Justice Cartwright, the expressly worded legal materials, literally
read, determined the legal answer: an administrative tribunal, when ex-
ercising broad discretion, is a law unto itself.21 According to Justice
Cartwright, the proper remedy for this situation lay with the legislature,
not the courts.22 The absence or presence of reasons as a component of le-
gality becomes a neutral or even insignificant factor in this model of judg-
ing. Indeed, Justice Cartwrights approach to statutory interpretation goes
beyond broad deference to appear as a judgment without judging: the sup-
posedly unambiguous materials themselves dictate the correct answer.
For judges of a less positivist persuasion, on the other hand, the ir-
relevant reason for cancelling the licenceRoncarellis unquestionably le-
gal actions as bondsmanwas certainly unreasonable from a rule of law
perspective and clearly took Duplessis outside of his ministerial immunity
under article 88 of Quebecs Code of Civil Procedure, despite the fact that
he was not served notice of the suit as stipulated by the provision.23 On
20 Moreover, this conclusion entailed that Duplessis could not be found liable in tort law
for approving or dictating the decision if the statutory language permitted such an ex-
ercise of discretion. In administrative law, by contrast, an unreasonable or irrational
exercise of discretion would be found invalid as an abuse of power.
21 Re Ashby, [1934] O.R. 421 at 428, 3 D.L.R. 565 (C.A.), Masten J.A., cited in Roncarelli,
supra note 1 at 167.
22 Ibid. at 168.
23 Article 88 of Quebecs Code of Civil Procedure stated:
No public officer or other person fulfilling any public function or duty can be
sued for damages by reason of any act done by him in the exercise of his func-
tions, nor can any verdict or judgment be rendered against him, unless notice
of such action has been given him at least one month before the issue of the
writ of summons.
Part IV, below, probes this matter further.
WITNESSING ARBITRARINESS 699
this account, Duplessis furthered arbitrariness by severely damaging the
integrity of the legal order.
Finally, we come to the fourth main functional failing concerning the
citizens legal ability to challenge a potentially arbitrary exercise of public
power. Section 12 of the Alcoholic Liquor Act barred Roncarelli from suing
Archambault for damages except by express permission of the Chief Jus-
tice of Quebec or a senior judge of the Quebec Court of Appeal.24 This
route was denied by Chief Justice Ltourneau. The statute, under section
12, also permitted Roncarelli to sue the Liquor Commission but only with
the consent of the Attorney General, who was then Duplessis. At this
point, the case takes on distinctly Kafka-esque tones since under the cir-
cumstances, Duplessiss consent seemed remote at best. Given the facts of
the case, the rule of law fides of this institutional arrangement are ren-
dered suspect because the statute appeared to bar, in some cases, the abil-
ity to recover damages for arbitrary executive action. From the safety of
the outside perspective where one can indulge in black humour, these ob-
stacles might appear to be a kind of system whimsy or loop of illogic with
Duplessis as a perverse gatekeeper.
But Roncarelli, frustrated every step of the way, finally took action to
sue Duplessis personally for abuse of power in a paradigmatically Diceyan
use of tort law in the ordinary courts of the land. David Mullan terms this
the operation of Diceyan principles in the best sense.25 The tactical shift
to the private law also provided surer grounds for judicial review of the
decision at issue. Given the state of administrative law at the timea
situation best exemplified by Justice Cartwrights judgmentit remains
doubtful that he was legally entitled to natural justice and in this statu-
tory context. The inability of law to recognize procedural fairness in these
early cases in terms of access to justice and grounds for review of the sub-
stance of the decision illustrates the institutional forms of arbitrariness
and the frustration of one important function of a legal system committed
to the rule of law.
Combined, these four functional failures illustrate the lack of systemic
rigour or integrity where law as a system is motivated by the desire to
limit arbitrariness according to a fundamental postulate of our constitu-
24 Alcoholic Liquor Act, supra note 6, s. 12. The provision read:
No one appointed under this act as manager of the Quebec Liquor Commis-
sion may be sued, for acts done or omitted to be done by him in the exercise of
the duties vested in him under this act, except by the Government of this
Province, or with the authorization of the Chief Justice of the Province, or if
he be prevented from granting such authorization, by the senior judge of the
Court of Appeal.
25 Mullan, supra note 5 at 589.
700 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tional structure, namely, the rule of law.26 The rule of laws dynamic
standards are contextually grounded in the very examples that we use to
understand the abstract concept of arbitrariness. Arbitrariness, then, ap-
pears to be a permanent property of a legal order, much like bad grammar
is of the structure of language systems.27
C. Arbitrary Horizons
Expectations bring us to the third dimension of arbitrariness, the so-
ciological.28 This dimension bears on not only the jurisprudential path of
the case, but also the several judgments in the Supreme Court of Canada
as they bring to the surface differing views regarding the judges adjudica-
tive role. The importance of the sociological view will be further elabo-
rated on in the counter-reading in Part III below. Here, I will simply high-
light the set of competing societal expectations, all of which appear to
merit varying degrees of legitimacy in Canadian political culture and are
recognized in the case as strands of a generally shared world view. Ron-
carelli, for example, expected procedural fairness and predictability from
the administrative body, the courts, and the executive branch of govern-
mentnone of which he received and to which any Quebecer would have
felt entitled. The Jehovahs Witnesses expected to enjoy religious freedom
and association as well as widespread nonfearful interactions with other
individuals as a fundamental basis for civil relations within Quebec. Que-
becers, in turn, expected their provincial government to protect and pro-
26 Roncarelli, supra note 1 at 142, Rand J.
27 Arbitrariness neutrally describes the relationship between the word and the signified in
linguistic analysis. Language is completely arbitrary and conventional because there is
no necessary connection between words and what they signify. Ferdinand de Saussure,
the originator of the concept of the arbitrary sign, did not claim that language was an
absolutely arbitrary system or that the signs were always wholly arbitrary. Though the
signified is not naturally connected to the signifier, a language system generates over
time a gravitational pull and stability that resists the arbitrary substitution of one sig-
nifier for another. On naturalist accounts, language is determined by or grounded in
something outside of itself such as a biological structure, a universal grammar, the force
of society, neural networks, etc. In a structurally analogous way, the early positivist
tradition saw law as completely conventional and only accidentally or contingently re-
lated to justice. Deconstruction has run furthest with both of these insights suggesting
that law, as a discursive system, is arbitrary all the way down and through. The dichot-
omy between nature and convention in law is important because it generates systemic-
ity with respect to a complex, seemingly chaotic, and sprawling activity. Lastly, accord-
ing to natural law theory, external justice inevitably determines human laws and the
legal order cannot eliminate the judicial duty to determine what justice requires. See
John E. Joseph, Limiting the Arbitrary: Linguistic Naturalism and Its Opposite in
Platos Cratylus and Modern Theories of Language (Amsterdam: John Benjamins,
2000).
28 For a discussion of the sociological dimensions of the concept of the rule of law using lit-
erature, see Mary Liston, The Rule of Law Through the Looking Glass (2009) 21 Law
& Lit. 42.
WITNESSING ARBITRARINESS 701
mote their distinctive culture, which, at that time, included freedom of re-
ligion as a constitutive feature. And lastly, the general publicincluding
both adherents and nonadherents of the Jehovahs Witness faith
expected a political community committed to safety, stability, and order,
and ruled by a government that was responsive to their interests.
Despite potentially broad overlap, a sociological perspective suggests
that Roncarelli and Duplessis possessed significantly different under-
standings of the concept of law, the efficacy of the rules of law, and the
satisfactory legal balancing of competing expectations represented in the
decision to cancel the licence. Jurisprudence and historical hindsight ap-
pear to endorse the Roncarellian version as normatively better and per-
missibly prioritizing individual rights over a competing conception of the
public good.29 Roncarelli and Duplessis possessed two different mindsets
regarding the scope of public power, its directionality, and how such scope
and directionality should be made manifest in law. On Duplessiss ac-
count, law was primarily a system of rules, such that the legislative draft-
ers and enactors simply and unthinkingly omitted several important
rules, thereby appearing to authorize untrammelled discretion. But Du-
plessis argued that his actions were also not arbitrary because he was mo-
tivated by a political conception of the public good and constrained by an
ethical duty to realize that good. According to Roncarelli, on the other
hand, law was better conceived as a purposive and principled system
where discretion is never untrammelled despite legislative lacunae, and
the state of mind of the statutory decision-maker is never left without
some form of legal guidance. Moreover, if the statute had explicit grounds
of decision making, Archambault would have faced effective constraints
on his discretion or else would have risked vocational outlawry if his sub-
jective mind considered abdication of his statutory responsibility.
But what if, in the words of Justice Rand in the epigraph, the statute
had expressly authorized religious discrimination? How then might we
understand the nexus between individual responsibility and institutional
responsibility for valid exercises of public power? This prospect raises the
disconcerting conclusion that we need our public-law decision-makers to
adopt both a strong professional morality recognizing legal constraints,
and an inevitable endorsement of more controversial normative commit-
ments made at the communal level, even with an express bill of rights
29 But see Roderick A. Macdonald, Was Duplessis Right? (2010) 55 McGill L.J. 401.
Macdonald provides a provocative and insightful argument supporting aspects of Du-
plessiss position using internormative social theory, communitarian political theory,
and pragmatic instrumentalism in legal theory in order to hear the world view repre-
sented by Duplessis.
702 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
such as the Canadian Charter of Rights and Freedoms,30 to further chan-
nel executive discretion and democratic judgment.
III. Modelling Judicial Arbitrariness
Up to this point, we have encountered legislative arbitrariness in the
statute. We have also seen administrative arbitrariness in Commissioner
Archambaults abdication of responsibility and concomitant loss of institu-
tional independence. And we have seen executive arbitrariness mani-
fested in Duplessiss interference in the institutional integrity of an inde-
pendent administrative body. But what forms of judicial arbitrariness, if
any, might be disclosed?
A. Judging Between Politics and the Law
As discussed in Part II.B above, access to justice proved difficult be-
cause of the influence of politics and bias. When Roncarelli decided to
complain about the treatment he received at the hands of the Liquor
Commission, provincial Chief Justice Ltourneau, the first of fifteen
judges to consider this case, refused to permit Roncarelli to sue Commis-
sioner Archambault under section 12 of the Alcoholic Liquor Act.31 Ron-
carelli then appealed to Attorney General Duplessis who also unsurpris-
ingly refused to permit a suit for damages.32 After Duplessiss press con-
ference where he publicly announced the permanent cancellation of Ron-
carellis licence, Roncarelli petitioned the Chief Justice of Quebec to sue
the Commissioner, but again to no avail. Chief Justice Ltourneaus deci-
sion went unreported, a perhaps innocuous result but one that, when
situated in the discourse of arbitrariness, raises accountability concerns
about the integrity of judicial institutions and practices due to the viola-
tion of the principle of publicity within the rule of law and democracy.33
In a defeat for public law, Roncarelli was therefore forced to sue Du-
plessis in private law for an abuse of public power. He resoundingly won
in the Quebec Superior Court.34 Claude-Armand Sheppard notes that
none of Quebecs official or private reporters published this favourable
judgment and hints that politics may have been a motivating factor in the
30 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 [Canadian Charter].
31 Roncarelli v. Archambault, [1947] B.R. 105 (K.B.) [Roncarelli v. Archambault]. Claude-
Armand Sheppard, without any detail, asserts that Ltourneau C.J.s decision rested on
rather flimsy grounds (Sheppard, supra note 7 at 76).
32 The second paragraph of s. 12 read, The Commission itself may be sued only with the
consent of the Attorney-General (Alcoholic Liquor Act, supra note 6, s. 12).
33 Roncarelli v. Archambault, supra note 31, cited in Sheppard, supra note 7 at 76, n. 5.
34 Roncarelli (Sup. Ct.), supra note 10.
WITNESSING ARBITRARINESS 703
reporting branch of the judicial system.35 The Quebec Superior Court
judgment also confirmed that English authorities governed Quebecs pub-
lic law and ruled that Duplessis lost both his entitlement to procedural
fairness and his claim to ministerial immunity because he had stepped
outside of his proper functions in ordering the cancellationa key but
disputed factual finding.
Duplessis successfully appealed this decision at the Quebec Court of
Appeal, which rejected the lower courts finding of fact regarding the or-
derthe next stage of this bumpy institutional ride. The Quebec Court of
Appeal emphatically reversed the Quebec Superior Court decision, except
on the issue of the immunity of Crown officers. In a unanimous lapse in
judicial reasoning, the five Quebec Court of Appeal judges felt no need to
demonstrate jurisprudential support regarding the denial of Crown im-
munity, instead writing that the English authorities were too numerous
to be cited.36 At the Supreme Court of Canada, only Justice Abbott consid-
ered this issue and he too did not find it necessary to cite from the wealth
of authority supporting the principle that a public officer is responsible for
acts done by him without legal justification.37 For such an important con-
clusion, one would have hoped that the courts might have found one or
two precedents despite the obviousness of the proposition.
Roncarelli appealed to the Supreme Court of Canada, winning the
support of six of the nine judges.38 The dissents written by the two
French-Canadian judges regarding article 88 of the Code of Civil Proce-
dure provide two further models of judging. Recall that article 88 set out
the necessity of acting in the exercise of his functions in order to secure
Duplessiss immunity as well as his right to notice. The legal treatment of
this provision raises intriguing questions about the differing approaches
between those trained in the common law and those trained in the civil
law.39 The majority held that Duplessis was clearly outside of his execu-
tive functions, regardless of Duplessiss own perception of good faith, and
was therefore neither legally immune nor entitled to receive notice as a
form of procedural protection. In his judgment, Justice Rand went so far
as to characterize Duplessiss actions as exclusively private in nature such
that Duplessis had completely stepped outside of legal authority.40
35 Sheppard, supra note 7 at 79, n. 17.
36 Duplessis v. Roncarelli, [1956] B.R. 447 at 460-62 (C.A.).
37 Roncarelli, supra note 1 at 184, Abbott J.
38 Cartwright J.s dissenting opinion is discussed in Part II.B above.
39 See Macdonalds ideological profile of the judges on this point: Macdonald, supra note
29 at 411.
40 Roncarelli, supra note 1 at 144.
704 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Justice Taschereau, on the other hand, argued on formalist grounds
that Duplessis never ceased being a public officer despite his misappre-
hension about the nature and scope of his functionsa position that is as
at odds with the concept of the rule of law as Justice Cartwrights judg-
ment now appears to be. Justice Taschereau concluded that Duplessiss
error, if any, did not disentitle him to notice.
Justice Fauteux, in contrast, duly examined all of the relevant legal
materials as well as the interpretive and statutory history of article 88
predicates of careful judging and a more structured approach to the statu-
tory interpretation of legislative intent. Archambaults abdication of au-
thority invalidated his cancellation of the licence and, therefore, Ron-
carelli was entitled to sue for damages under article 1053 of the Civil
Code of Lower Canada. While Roncarelli had a right, he was however de-
nied a remedy. Based on the analysis of legislative history, Justice Fau-
teux determined that the right to notice in article 88 was peremptory even
if the public official was acting in bad faith in the exercise of her func-
tions.41 But for the express and clear legal materials and statutory history
to which he felt he was bound, Justice Fauteux wrote that he would have
ruled in Roncarellis favour on the merits. Even if one disagrees with Jus-
tice Fauteuxs interpretation and conclusion, his methodological approach
to the legal materials contains at least as much judicial integrity as Jus-
tice Rands looser style, and certainly more than the bare formalism ex-
hibited in Justice Cartwright or Justice Taschereaus judging.
The existence of these different models within one case, however, un-
derscores the types of constraints judges perceive themselves bound by
when indeterminacy requires them to elaborate on what the law requires.
Minimalist judges like Justice Cartwright and Justice Taschereau look to
what the legislature explicitly says in the statute and no more. Others,
like Justice Fauteux, seek to complete the legislative process through in-
terpretive strategies that are simultaneously discretionary, contextual,
and purposively constrained by the legal materials at hand. Still others,
such as Justice Rand, take a more aspirational stance, seeking to
thicken what appears to be a thin veneer of legality through recourse to
principles and content found in a larger political morality. While Justice
Rands approach is laudable in its goal to impose genuine constraints on
political power, its greater discretionary scope raises the problem of judi-
cial arbitrariness, thereby risking the legitimacy of the exercise of legal
authority as expressed in judicial institutions.
41 Ibid. at 181.
WITNESSING ARBITRARINESS 705
B. The Sounds of Silence
Tribunals like the Liquor Commission ought to act in a judicial man-
ner. But the judicial manner, given the history outlined above, is far from
perfect. With respect to legal determinations in the Supreme Court of
Canada decision, several are conclusive. Duplessis did not have the au-
thority to interfere in the Liquor Commissions operations. In Canadian
jurisprudence, Crown officers are in no way entitled to special immunity
from civil prosecution. And lastly, administrative discretion is never abso-
lute, subject to one caveat regarding legislative intent that stands as a
possible point of inconsistency in Justice Rands judgment. This is impor-
tant because it is this third determination that has proved to be of pro-
found import for the development in Canadian administrative and consti-
tutional law, and the judicial treatment of privative clauses.42
Other matters appear less certain. Did Duplessis actually dictate the
decision resulting in Archambaults silence? Duplessiss factum to the Su-
preme Court of Canada argued, It is further suggested that an order to
an administrative officer to do a thing which he has already decided to do,
cannot give rise to an action in damages.43 It would, however, be an error
in administrative law on procedural fairness grounds, if one could dis-
cover it. Nevertheless, the indeterminacy regarding the significance of the
central fact remains legally perturbing.
A second point of uncertainty originates from several judicial silences
in the three judgments. Three of the Quebec Court of Appeal judges were
conspicuously silent on the scope of Duplessiss authority. Two of the dis-
senting Supreme Court of Canada justices were silent on this point as
well. While it was clear that the Alcoholic Liquor Act gave Duplessis no
authority whatsoever, and that relevant statutes might not give him any
authority either, depending on the approach to statutory interpretation
chosen,44 several judges remained reticent about stating the legal limits
on the authority of the chief officer of the Executive and Minister of the
Crown. Did their silence mean they agreed with the majority that Du-
plessis had decisively stepped outside of his proper functions? Were they
warily sitting on the jurisprudential fence? Or does it mean they implic-
itly accepted Duplessiss argument that he did not exceed his powers as
Attorney General in his attempt to maintain peace and public order in
42 On this point, see generally Colleen M. Flood & Lorne Sossin, eds., Administrative Law
in Context: A New Casebook (Toronto: Emond Montgomery, 2008).
43 Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (Factum of the Respon-
dent) at 40 [Roncarelli FOR].
44 Arguably, s. 4(2) of the Attorney-Generals Department Act (R.S.Q. 1941, c. 46) might
provide an authorized source if one were to interpret his general superintending func-
tion over all matters relating to the administration of justice quite broadly. The major-
ity rejected this interpretation.
706 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
what he characterized as crisis conditions? If yes, does this further mean
that, though they may have disagreed with Duplessiss course of action,
they viewed the proper remedy as political and not legal? As Duplessis ar-
gued, [t]he Attorney-General is not exceeding his authority because the
proceedings he has instituted are found unfounded by the Courts, or be-
cause the wisdom of the other means adopted may be questionable.45 Ac-
cordingly, the ultimate remedy would be the ballot box.
The third silence, a focus of several other papers,46 concerns the place
of Quebecs legal order. Civil law takes a back seat in Roncarelli. Despite
dissenting opinions from the two French-Canadian judges on the Supreme
Court of Canada, only the English-Canadian judgments are remembered
in Canadian legal consciousness. As Robert Leckey argues, all three
courts trumpeted the conclusion that English authorities govern Quebecs
public law, and acknowledged that liability for damages is governed by
civil law, but did so without careful attention to the civilian statutory ma-
terials.47 It is tempting to conclude that English authorities dominated
Quebecs mixed legal order such that Roncarelli should be considered a
prime legal example of the archetypal two solitudes in the Canadian po-
litical community.
C. Court (Dys)functions
In exasperated tones, lawyer Claude-Armand Sheppard bemoaned
both the overreliance on Diceyan constitutionalism, which championed
the courts as the defenders of the constitutional order, and the failure of
the Supreme Court of Canada (indeed all three courts) to demarcate rele-
vant grounds from obiter in Roncarelli. Sheppard contended that the en-
tire issue of discretion was legally irrelevant because all of the judges
agreed that Duplessis did not have any discretion to exercise at all, and
that the Liquor Commission had abdicated its duty to exercise discre-
tion.48 His article concludes in a tone of disbelief: In effect, the courts first
decided that Duplessis had no discretion to cancel a liquor license, and
then proceeded to decide how he should have exercised such discretion. A
psychologist rather than a lawyer is needed to explain the astonishing
45 Roncarelli FOR, supra note 43 at 39.
46 See generally Eric M. Adams, Building a Law of Human Rights: Roncarelli v. Du-
plessis in Canadian Constitutional Culture (2010) 55 McGill L.J. 437; Macdonald, su-
pra note 29; Robert Leckey, Complexifying Roncarellis Rule of Law (2010) 55 McGill
L.J. 721; Derek McKee, The Public/Private Distinction in Roncarelli v. Duplessis
(2010) 55 McGill L.J. 461.
47 Leckey, supra note 46. Leckey provides an incisive analysis of the judicial treatment of
Quebecs codified procedural law.
48 On this view, the lecture was directed to the wrong audience, Duplessis. If it was di-
rected to public officials such as Archambault, then the message did little to counter the
Diceyan vision of the inherent arbitrariness of administrative discretion.
WITNESSING ARBITRARINESS 707
mental mechanism which produced such confusion.49 If we agree with
Sheppard, then it is indeed more than ironic that the substantive discus-
sion of the nature of administrative discretionwhat Sheppard character-
izes as highly obiter50has since crystallized to become the jurispruden-
tial heart of the case. And not only is this substance a part of the Ron-
carellian legacy, but the very question that Sheppard poses has since
found a permanent home in contemporary debates about post-Charter
constitutionalism:
It is not for us to decide whether it is within a courts functions to lec-
ture the country in cases of this type. But opinions on matters which
strictly speaking are extraneous should be clearly isolated. The im-
portance of realizing the irrelevancy of the holdings on discretion lies
in the probability that they will be frequently cited in the future.
Their highly obiter nature must be understood and the real ratio de-
cidendi be found, if we are to avoid erroneous derivations from this
decision.51
Whether or not one thinks Sheppard is right depends on ones model
of adjudication as well as ones appreciation of the deep context of the
case. The so-called obiter on how administrative discretion ought to be
exercised has since come to express a Canadian ideal of the rule of law.52
Roncarelli itself represents one important milestone in the development of
a distinctively Canadian public law, ultimately culminating in the
Canadian Charter. In my view, Justice Rand was most clearly engaging
in an adjudicative exercise that made clear how legal principles fit within
a larger political morality, though I agree that his legal analysis could
benefit from greater care. His judgment accords with Lon Fullers
understanding of the judge as not merely laying down a system of
minimum restraints designed to keep the bad man in check, but [who] is
in fact help[s] to create a body of common morality which will define the
good man.53 A Fullerian perspective would suggest that this judicial
lecture was meant to communicate both the normative content and the
normative force of law to all types of executive actors as a constitutional
baseline. My analysis therefore puts Justice Rands judgment on the
jurisgenerative rather than jurispathic side of this expansion of judicial
power because its principled reasoning exhibits legal integrity.
Lastly, with respect to the original context, given the turmoil that had
occurred in Quebec around the Jehovahs Witnesses, one might reasona-
49 Sheppard, supra note 7 at 90.
50 Ibid.
51 Ibid. [emphasis added].
52 See Dyzenhaus, Deep Structure, supra note 3 (outlining the increased frequency of
Roncarellis citation post-Charter).
53 Lon L. Fuller, The Law In Quest of Itself (Chicago: Foundation Press, 1940) at 137.
708 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
bly conclude that the Supreme Court of Canada was entitled to remind
the executive branch of government about its legal duties, limits, and
sources of authority, absent explicit public authorization from the legisla-
tive branch. As David Dyzenhaus, following Robert Cover, suggests in an-
other context, Roncarelli evokes a paideic community that is primarily
bound by strong internal commitments to norms rather than being bound
by fear and force.54 A judiciary that is bound in such a manner can justi-
fiably take on a dialogic and educative role, without monopolizing the in-
terpretive field at the expense of other branches of government or chal-
lenges to its interpretations from affected legal subjects.
D. Remedying Arbitrariness
Sheppard is right to argue that Duplessis was not accused of abusing,
but rather of usurping authority.55 This criticism unsettles happy compla-
cency about the form of legal action. Roncarelli should have been a public
law case but, because the proper route was denied, it was argued as a pri-
vate law case. It had to bridge administrative law concerns about bad
faith and the absence of jurisdiction with tort law findings of fault. Was
Duplessiss fault a public harm, a private harm, or both? Should the rem-
edy engage with public or private law principles of justice or both? These
questions point to the insufficiency of the legal formthe tort of abuse of
powerto articulate the nature of the legal harm and to provide an ap-
propriate remedy.56 Usurpation of authority is a public law harm requir-
ing a public law remedy: satisfaction of the citizens demand for govern-
ment legality. What Roncarelli represents is an individualized harm with
a private law remedy of damages. Not only is this a second-rate result
from a public law perspective, but also, as Sheppard is surely right to
suggest, the decision is less than helpful in the matter of sorting out pri-
vate law responsibility for public wrongs committed by public persons.57
54 David Dyzenhaus, The Puzzle of Martial Law (2009) 59 U.T.L.J. 1 at 58. Dyzenhaus
explores the problems that martial law poses for certain conceptions of the rule of law
such as that espoused by A.V. Dicey. His analysis probes laws modes of operation, fo-
cusing on the interplay between the imperial and the paideic or educative roles identi-
fied by Robert Cover in his seminal article, Nomos and Narrative. See Robert Cover,
Nomos and Narrative in Martha Minow, Michael Ryan & Austin Sarat, eds., Narra-
tive, Violence, and the Law (Ann Arbor: University of Michigan Press, 1995) 95. Dyzen-
haus considers how imperial modes of control, if committed to law as a means of legiti-
mating government, will inevitably be constrained by demands for legality and political
efforts to realize that ideal. Imperial modes will therefore be less able to respond with
violence to these demands, else risk losing legitimacy and widespread compliance.
55 Sheppard, supra note 7 at 92.
56 See McKee, supra note 46. McKee examines public and private distinctions and the im-
plications of their mingling for the purposes of finding fault in tort.
57 Sheppard, supra note 7 at 95-96.
WITNESSING ARBITRARINESS 709
Even the damages award raises the spectre of arbitrariness. Regard-
ing the amount, Justices Locke and Martland wrote for the majority:
However, in all the circumstances, the amount of these damages must be
determined in a somewhat arbitrary fashion. I consider that $25,000
should be allowed as damages for the diminution of the value of the good
will and for the loss of future profits.58 Roncarelli could not be faulted if,
despite his legal victory, he remained dissatisfied, for the damages rem-
edy seems inadequate on two counts. First, the amount seems dispropor-
tionately small to the amount of suffering he experienced. Roncarelli ini-
tially claimed $118,741.00 in damages, but he received $33,123.53, a mere
fraction of the total. Second, damages provide little legal or political assis-
tance in the larger fight against the systemic problem of the religious dis-
crimination faced by his fellow Jehovahs Witnesses. This result points to
the weaknesses of Diceyan constitutionalism, since ordinary law in the
ordinary courts proved ineffective in remedying the systemic harms
wrought by religious discrimination. Indeed, after his eleven-year legal
battle, Frank Roncarelli moved to the United States to run a restaurant,
living there until his death.
Nevertheless, twenty years after Roncarelli and Duplessiss death, the
enactment of Quebecs Charter of Human Rights and Freedoms (Charte
des droits et liberts de la personne)59 in 1975 represented the coming of
age of Quebecs own public law and symbolized one important legal cor-
rection for the public wrongs committed in the Duplessis era.60 As other
papers suggest,61 despite the bijural weaknesses within Roncarelli, it may
provide us with a broader lens through which we can see how a legal deci-
sion contributed, even if indirectly, to the creation of a distinctive rights-
culture within a modern, secular Quebec.62 Even more significant is the
fact that a rule of law perspective must admit that such systemic prob-
lems concerning the exercise of legal authority from all branches of gov-
ernment were simply beyond the remedial powers of the courts. In order
to satisfy the demands for a legitimate legal order, the solution
precipitated by judicial decisions like Roncarelliwas ultimately achieved
politically through institutional reform, which was stimulated by a wide-
spread commitment to make all political authorities legally accountable
58 Roncarelli, supra note 1 at 160.
59 R.S.Q. c. C-12.
60 For an overview of the constitutional history of Quebec, including the affirmation of
Quebecs commitment to individual rights in the provinces Charter of human rights
and freedoms (R.S.Q., c. C-12), see Alain-G. Gagnon, Quebecs Constitutional Odyssey
in James Bickerton & Alain-G. Gagnon, eds., Canadian Politics, 3d ed. (Peterborough,
Ont.: Broadview Press, 1999) 279.
61 See supra note 46.
62 See Adams, supra note 46 (discussion of how Roncarelli influenced the development of a
rights culture at the national level).
710 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
and, to the furthest extent possible, nonarbitrary in their decision mak-
ing.
IV. Reviewing Arbitrariness in Theory
In retrospect, what is most surprising about Roncarelli is how well it
tracks the meanings and attributes of arbitrariness found in modern legal
and political philosophy. The narrative I have constructed underscores
the subjective, the functional, and the sociological dimensions of the nor-
mative discourse of arbitrariness; each respectively has a theoretical
home in analytic positivism, instrumental pragmatism, and liberal repub-
licanism.
As an analytic positivist, Joseph Raz considers arbitrariness a neces-
sary property of the conceptual structure of law:
Arbitrary power is a difficult notion, and a detailed analysis of
it is not required here. It seems however, that an act which is the
exercise of power is arbitrary only if it was done either with indiffer-
ence to serving the purposes that alone justify use of such power, or
with belief that it will not serve them. … This condition represents
arbitrary power as a subjective concept. It all depends on the state of
mind of the men in power. As such the rule of law does not bear di-
rectly on the extent of arbitrary power. But around its subjective
core the notion of arbitrary power has grown a hard objective edge.63
Roncarellis arbitrariness is very similar to what Raz has described as the
subjective core rooted in the minds of men like Roncarelli who wield legal
and political power.
But, while agreeing with Raz, I have sought to de-emphasize the no-
tion of the subjective as presenting too bright a line between subjective
and objective attributes and modes. I considered arbitrariness a norma-
tive discourse resulting in a legal determination about how law may prop-
erly affect individual subjects. This legal determination therefore commu-
nicates substantive content informing the evaluation of accountability re-
lations among principals and agents in the state. The normative import of
human power at the core of arbitrariness serves not only to demarcate
this concept from related terms such as randomness64 and luck,65 but also
63 Raz, Rule of Law, supra note 8 at 12-13.
64 Randomness as a principle of decision making differs from arbitrariness in several im-
portant ways. Lotteries as a random selection-mode place all participants on an equal
footing regarding outcomes, though we would rarely use randomness as a general or
overarching principle of governance. Lotteries are neutral with respect to the influence
of both good and bad reasons, thereby potentially opening up debate and consideration
of plural views. Indeterminacy, then, plays a potentially positive role in this form of de-
cision making, but also ensures that it should be used for sub-task governance. This is
also why lottery-type random decision-making is antithetical to legal institutions under
the rule of law because procedural justice demands the exclusion of bad and irrelevant
WITNESSING ARBITRARINESS 711
to connect with the concept of domination, which plays such a fundamen-
tal role in republican theories of government.66 In the type of republican
theory upon which I draw (civic republicanism), a paramount value is po-
litical liberty where it is understood as nondomination or independence
from arbitrary exercises of power.67 Arbitrariness as domination means
the power of the state to interfere discursively and physically in the lives
of agents with few restraints or costs. Domination entails modes of state
interference that do not track the interests of the person or persons af-
fecteda condition I termed functional unilateralism. Both the power
that is exercised as well as the very possibility that such power might be
exercisedsuch as in the defective statute at issue in the Roncarelli
caseare arbitrary in this way.
Though not anachronistic, Razs description of arbitrariness remains
rooted in much older notions of will-to-power despotism and subjective
whim rather than more modern forms of government.68 On the interactive
reasons and cannot permit irrelevant reasons to determine a legal decision. See Peter
Stone, The Logic of Random Selection (2009) 37 Pol. Theory 375. For a provocative ex-
ploration of the potential for the use of lotteries in social and legal decision-making, see
Neil Duxbury, Random Justice: On Lotteries and Legal Decision-Making (Oxford: Ox-
ford University Press, 1999).
65 Jeremy Waldron argues that luck is ineliminable from a system of positive law and it
poses important moral problems concerning unpredictability, arbitrariness, and unfair-
ness. But luck has no bearing on arbitrariness in law unless either a judge makes an
unexpected decision that morally harms the affected individual or when she decides a
case differently from past like cases and her choice is not morally defensible. In these
cases, bad luck overlaps with arbitrariness. See the following debate concerning the role
of luck in law: Jeremy Waldron, Lucky in Your Judge (2008) 9 Theor. Inq. L. 185;
Chaim Gans, A Comment on Jeremy Waldrons Lucky in Your Judge (2008) 9 Theor.
Inq. L. 33.
66 Other papers in this Special Issue explore these theories. See David Dyzenhaus,
Rands Legal Republicanism (2010) 55 McGill L.J. 491; Evan Fox-Decent, Democra-
tizing Common Law Constitutionalism (2010) 55 McGill L.J. 511.
67 The most prominent contemporary proponent of this branch of republican theory is
Philip Pettit. See Philip Pettit, Republicanism: A Theory of Freedom and Government
(Oxford: Clarendon Press, 1997); Philip Pettit, A Theory of Freedom: From the Psychol-
ogy to the Politics of Agency (New York: Oxford University Press, 2001); Miguel Vatter,
Pettit and Modern Republican Political Thought in Melissa S. Williams & Stephen
Macedo, eds., Political Exclusion and Domination (New York: New York University
Press, 2005) 118. I have also drawn upon the republican theory of Henry Richardson
(supra note 16).
68 Older notions consider the political source of sovereignty as constitutive of an arbitrary
regime. Consider the following examples: oligarchic, democratic, and tyrannical regimes
in Aristotelian thought; modern authoritarian, dictatorial, and totalitarian regimes;
imperial and colonial powers; and absolutist historical forms of monarchy including
tsarist and orientalist despotisms. Such forms of absolute sovereign power are no longer
considered normatively desirable or politically legitimate. For further discussion of this
family of bad regime types, see Andreas Kalyvas, The Tyranny of Dictatorship: When
the Greek Tyrant Met the Roman Dictator (2007) 35 Pol. Theory 412.
712 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
plane between ruler(s) and the ruled, arbitrariness participates in a cen-
turies-old discourse about legal authority and its relation to the subjects
of law.69 Aspects of this discourse still need to be updated and refined in
Canadian public law with respect to the pervasive interaction among the
principles of the rule of law, democracy, and parliamentary sovereignty,
and their modern content. Indeed, public law theory clings to the conclu-
sion that discretion is an always unconstrained state of decision making
and is therefore a perfect synonym for arbitrariness in law.70 As Martin
Krygier suggests, it is precisely because a sufficiently complex and tex-
tured conceptual analysis of arbitrariness eludes us, that we still primar-
ily make use of (perhaps outmoded) historical examples in order to convey
its meaning.71
Raz, however, does not specify who these men in power are, except
in a general discussion about discretion exercised by administrative and
police officials.72 The state of mind of the men in power,73 however, must
also include the judiciary and their powers of discretion and interpreta-
tion. This ambiguity illustrates how much of the connotative work arbi-
69 James Daly traces the conceptual shift in and decline of the positive valuation of the
concept of absolute in the seventeenth century. In Shakespeares time, absolute pos-
sessed three sets of meanings: 1) resolved, positive, uncompromising, and complete; 2)
precise, certain, and determinate; and 3) faultless, perfect, and highly accomplished
(e.g., God). The sacred was paradigmatically the domain of the non-arbitrary. An abso-
lute monarch possessed perfect sovereignty. A unified nation was also absolute because
it was perfectly coherent and undivided. During the English Civil War, absolute lost
any of its favourable connotations and became a synonym for tyranny. Indeed, abso-
lute came to be permanently linked with the arbitrary. Here the nexus takes a familiar
Lockean form as an axiomatic evil with predictable consequences: when sovereign
power exceeds the limits of its grant, public trust is forfeited, and subjects can reclaim
their natural right of self-preservation to justifiably resist by ridding themselves of this
arbitrary power and installing a new form of government. Political power conceptually
becomes conditional and fiduciary in nature as a result. The political effect of this shift
was to exclude a form of government that arguably had been thought both valid and le-
gitimatethat is, the monarchical form. Indeed, medieval theories thought it the best
form so long as the king was truly bound by law. See James Daly, The Idea of Absolute
Monarchy in Seventeenth-Century England (1978) 21 The Historical Journal 227 at
229-37.
70 Kenneth Culp Davis offers neither a discussion of arbitrariness nor an explanation of
how it might be conceptually distinct from (though clearly related to) discretion. See
Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge: Lou-
isiana State University Press, 1969). See also Denis J. Galligan, Public Administration
and the Tendency to Authoritarianism in Andrs Saj, ed., Out of and Into Authoritar-
ian Law (The Hague: Kluwer Law International, 2003) 187. For an early exception to
this tendency, see this key article: Steve Wexler, Discretion: The Unacknowledged Side
of Law (1975) 25 U.T.L.J. 120.
71 Martin Krygier, The Rule of Law: Legality, Teleology, Sociology in Gianluigi Palom-
bella & Neil Walker, eds., Relocating the Rule of Law (Oxford: Hart, 2009) 45 at 57.
72 See supra note 63 and accompanying text.
73 Ibid.
WITNESSING ARBITRARINESS 713
trariness does in legal discourse. The concept significantly depends on
shared historical or common-sense understandings within a political cul-
turean imaginary or a horizonrequiring further elaboration.74
Such elaboration can be the task of the judiciary when interpreting and
applying legal principles, though this conclusion is highly contested in le-
gal and political theory.75
In this respect, I have used Roncarelli as a prism to refract the legal
process and to reveal several models of judging. In many theories of adju-
dication, a judgment in law represents an authoritative settlement requir-
ing reasoned elaboration.76 Judicial discretion features positively as a
permanent element, for example, as equity in the sense of correcting defi-
ciencies or strictness in the law. It more often features negatively as insti-
tutional activism, subjective preference, or pure ideology in judging. Legal
indeterminacy, uncertainty, gaps, and vagueness exacerbate the risks of
74 I used the terms imaginary and horizon earlier in Part II.C, having borrowed them
from Charles Taylor. Taylor argues that the significance of key philosophical concepts
like arbitrariness can best be understood as a historically shared project of generating
socially constructed meaning. This historically shared project is what Taylor, following
Gadamer, calls a horizon of significance that gives meaning to individual and collective
lives. Individuals therefore do not freely choose horizons but, rather, do so through
evaluative processes of dialogue with and in contestation against others over the con-
tent and worth of inherited frameworks. A social imaginary is comprised of a constella-
tion of public, inherited frameworks of meaning. Unlike Taylor, and in accord with
Daniel Weinstock, I maintain the view that liberal institutions generated by concepts
like the rule of law provide the best possible political conditions under which such
strong evaluations can take place. For further discussion of strong evaluation and hori-
zons of meaning, see the collected essays in James Tully & Daniel M. Weinstock, eds.,
Philosophy in an Age of Pluralism: The Philosophy of Charles Taylor in Question (Cam-
bridge: Cambridge University Press, 1994). See especially Daniel Weinstock, The Po-
litical Theory of Strong Evaluation in ibid., 171. Influential theories of the social
imaginary that attempt to understand how imagination, and not just reason, constructs
institutions, representations, and practices include: Benedict Anderson, Imagined
Communities: Reflections on the Origin and Spread of Nationalism (London and New
York: Verso, 1991); Cornelius Castoriadis, The Imaginary Institution of Society, trans.
by Kathleen Blamey (Cambridge, Mass.: MIT Press, 1987); Charles Taylor, Modern So-
cial Imaginaries (Durham: Duke University Press, 2004).
75 As discussed below, Ronald Dworkins theory of adjudication supports such elaboration
through judicial use of the principles of political morality in the adjudication of hard
cases. Recent theories of common law constitutionalism also endorse this kind of elabo-
ration. Legal positivists and many democratic theories, on the other hand, reject this
role as institutionally inappropriate and politically unwise. A prominent and long-time
critic of this form of judging would be Jeremy Waldron (see infra note 78).
76 The idea of judgments as reasoned elaborations that are legally authoritative because of
their justificatory potential finds support in many schools of thought including legal
process, textualism, purposivism, principled adjudication, and reason-giving in the
common law. For an overview of some of these debates, see Neil Duxbury, Patterns of
American Jurisprudence (Oxford: Oxford University Press, 1995) c. 4 (Finding Faith in
Reason); Anthony J. Sebok, Legal Positivism in American Jurisprudence (Cambridge
and New York: Cambridge University Press, 1998) c. 4 (Legal Process and the Shadow
of Positivism).
714 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
judicial discretion and competing models of judging propose different
remedies to mitigate, control, or even eliminate these risks. This article
has attempted to unpack one of Razs key claims in this regard, as well as
the considered qualification that appears in parentheses:
The one area where the rule of law excludes all forms of arbitrary
power is in the law-applying function of the judiciary: the courts are
required to be subject only to the law and to conform to fairly strict
procedures. (The rule of law itself does not exclude all possibilities of
arbitrary law-making by the courts).77
Legal positivism and legal realism have long recognized this state of
affairs and have traditionally concluded by saying that this is when law
runs out and judgment becomes subjective preference, thereby raising the
spectre of arbitrariness. Democratic positivists, like Jeremy Waldron, re-
ject this as a desirable outcome and instead prioritize expectation, cer-
tainty, and expertise via legislation in order to mitigate judicially arbi-
trary decisions.78 Viewed in the best light, Roncarelli explains Justice
Cartwrights (but not, perhaps, Justice Taschereaus) judgment on this
theoretical basis. Other theorists, such as Steven J. Burton, counter fears
of legal indeterminacy by developing a model of ethical judging in good
faith and permissible discretion.79 Justice Fauteuxs approach seems to
exemplify this model. Finally, Ronald Dworkin argues that discretion
properly understood entails a choice among alternatives according to the
needs of the situation and within a framework of rules, principles, or
standards. It is a kind of freedom in decision making, but one that is le-
gally channelled so as to become a model of judicial discretion that ranges
from weak to strong, depending on the circumstances of the case, but is
never unconstrained.80 Justice Rand clearly fits the Dworkinian approach.
In order to conceptually capture the full significance of arbitrariness
in law, then, analytic philosophy requires the assistance of other discipli-
nary approaches. One example serves to illustrate the need to combine a
variety of approaches. Of the many virtues of the rule of law, one that Raz
does not directly consider is arbitrariness as a modality of irrationality or
unreasonableness.81 The corresponding rule of law virtue would be rea-
77 Raz, Rule of Law, supra note 8 at 12.
78 See Jeremy Waldron, The Irrelevance of Moral Objectivity in Robert P. George, ed.,
Natural Law Theory: Contemporary Essays (Oxford: Oxford University Press, 1994) 158
at 163 [Waldron, Irrelevance of Moral Objectivity].
79 See Steven J. Burton, Judging in Good Faith (Cambridge: Cambridge University Press,
1992).
80 See Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University
Press, 1978) at 31-39.
81 The nexus that exists among arbitrariness, the rule of law, and law as a justificatory
system was not in Razs mind at the time and remains underspecified. He confines sub-
jective arbitrariness to the minds of the men in power but does not discuss whether he
WITNESSING ARBITRARINESS 715
son-giving or justification as a necessary legal requirement within a chain
of authorization, thereby constituting an essential ingredient regarding
the legitimacy of outcomes.82 While laws Razian purpose is to guide those
who apply and obey the law, and it is presupposed that a rule of law order
recognizes the subject as a rational and autonomous creature who desires
life options and the ability to plan, law need only meet minimum condi-
tions of rationality and not necessarily reasonableness. Such a conclusion
is in keeping with Razs approach to legitimacy, which makes claims to le-
gal authority a necessary component of the logical structure of law and
considers them not constitutive of moral and political debates about what
makes law legitimate to legal subjects. In other words, Raz treats legiti-
macy analytically as an institutional fact and not as a contested norma-
tive claim or social construct.
Contrary to the valid but minimalist model put forward by Justice
Cartwright, both liberal and republican philosophies take reason-giving to
be an essential legitimating factor, communicating legal and political
equality, and creating a permanent public law duty on government that
assists in mitigating actual and potential public acts of domination. In the
democratic republican theory of Henry Richardson, for example,
[g]overnment action without any reasons in support of it is arbitrary
in an elemental sense, epitomized by the arbitrariness of K.s judge
in The Trial. … Since both the liberal and republican aspects of free-
dom that are impinged on are individualisticpertaining, respec-
tively, to the rights and the duties of individualsan appropriate set
of legitimating reasons must be addressed to, or must pertain to, the
individuals impinged on.83
Judicial invalidation of Duplessiss arbitrary actions comports with the
republican view that nonarbitrary power tracks not just the power-
holders world view and welfarea form of unilateralismbut also the
means mentalities, ideologies, or responsible minds. Indeed, his main line of argument
is that the rule of law is essentially a negative value rather than a theory with sub-
stantive positive content. See Raz, Rule of Law, supra note 8 at 21. But, if reason-
giving is seen as a good in itself as well as a good that serves other values, then we
might reflect further on the importance of this dimension of arbitrariness, discussion of
which prevails in natural law theory and common law constitutionalism. See Mark D.
Walters, Legality as Reason: Dicey, Rand, and the Rule of Law (2010) 55 McGill L.J.
563.
82 On the importance of reason-giving in Canadian public law, see the collection of essays
in David Dyzenhaus, ed., The Unity of Public Law (Oxford: Hart, 2004). Reasons also
act in a negative fashion according to Raz. Legal authority places duties on judges to
exclude some kinds of reasons. In Razs schema, authority also protects certain reasons
that require action and provides reasons that exclude other kinds of reasons. See Jo-
seph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press,
1975) at 18-23.
83 Richardson, supra note 16 at 27. Unlike Pettit, Richardson combines republicanism and
liberalism to recommend effective and fair processes within a modern state.
716 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
world view and welfare of the public. Liberalism, in turn, concentrates
this view on the individual who may be the subject of the particular exer-
cise of political or legal power and who is ideally shielded from it by
rights.84
Jeremy Waldrons democratic positivism considers reason-giving a
mechanism that checks the subjective and arbitrary moral reflex of pub-
lic decision-makers (including judges), thereby ensuring that the democ-
ratic process remains the proper site for deciding questions of social
value.85 Waldron suggests that in modern jurisprudence, arbitrariness
possesses at least three negative connotations. To be arbitrary is to be
unpredictable, unreasoned, and illegitimate. These connotations are dis-
tinct from one another because a judgment can be reasoned and not pre-
dictable, or predictable but not legitimate. On a democratic account,
judges are no better moral deliberators than either legislators or the gen-
eral populace. Democratic positivism recommends that legal decisions be
made as much as possible without the exercise of moral judgment be-
cause, under the separation of powers doctrine, the legislature is the
proper locus for generalized moral judgment. According to Waldron,
[t]hose who want to eliminate arbitrariness from law, therefore, have
good reason to be normative positivists, especially if we accept the realist
view that moral judgments do not amount to absolute truth claims.86 De-
liberate arbitrariness can therefore be checked by the disclosure of
thought, potentially demonstrating justification and consistency, and
frustrating the ability of arbitrary actors to create relations based on uni-
lateral assertions of superiority over subordinates. Furthermore, reason-
giving is of prime importance to the judiciary because reasons constitute
both the main source of legal authority and a key ground of institutional
legitimacy.
Reason-giving implicates reciprocal power-sharing, responsiveness,
and justificatory structures (as well as justified state structures) by virtue
of a commitment to both the rule of law and democracy.87 It is therefore a
form of authority that distinguishes itself from unconstrained power be-
84 Ibid. at 38.
85 Waldron, Irrelevance of Moral Objectivity, supra note 78 at 180.
86 Ibid. at 163. From an epistemological perspective, the choice between legislators and
judges will be arbitrary until objective truths are determined. So a certain degree of ar-
bitrariness regarding institutional preferences for or against democratic positivism and
judicial review will prevail.
87 In addition to Richardson on this point, see David Dyzenhaus & Evan Fox-Decent, Re-
thinking the Process/Substance Distinction: Baker v. Canada (2001) 51 U.T.L.J. 193;
Carl J. Friedrich, Tradition and Authority (New York: Praeger, 1972) at 51-53, 62; Lon
L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969);
Ernest J. Weinrib, Why Legal Formalism in Robert P. George, ed., Natural Law The-
ory: Contemporary Essays (Oxford: Oxford University Press, 1994) 341 at 355.
WITNESSING ARBITRARINESS 717
cause it rejects, among other things, unilateralism. In the face of reason-
able disagreement, instead of unilateral directives, a political community
must resort to authoritative forms of persuasion about the right course of
action or outcome to gain consent of the ruled and of those affected by au-
thorized decisions.88 A statute, for example, is more likely to acquire effi-
cacy, validity, and normative worth through processes of democratic le-
gitimation channelled by rule of law constraints. Common law constitu-
tional theorists such as Trevor Allan, David Dyzenhaus, and Mark Wal-
ters also affirm the Waldronian conclusion that the legitimacy of the legal
order has its basis in political morality. They nevertheless take issue with
his claim that the judiciary ought not to play a role in the articulation of
the content of motivating reasons through common law interpretative
practices because such a role ultimately undermines legitimacy.89 More-
over, they recognize the expressive function of legal institutions and how
these institutions, if committed to the rule of law, beneficially contribute
to the development of a shared normative language.
A normatively explicit functionalist account approves forms of author-
ity that are distinguishable from exercises of power like Duplessiss efforts
to discipline,90 via Roncarelli, the Jehovahs Witnesses as a group. Arbi-
trariness can therefore be used to identify and diagnose false or harmful
forms of authority. Conversely, a robust conception of the rule of law will
appeal to reason-giving as a constitutive practice throughout the state. It
will also view authority, especially legal authority, as the general capacity
for reasoned decisions, thereby representing the main non-Razian institu-
tional virtue entailed by the rule of law. I have also tried to highlight the
risks of accepting the more objective features in Razs understanding of
arbitrarinessfeatures that appear as mere technical deficiencies in the
application of law, and that can be resolved primarily through legal reno-
vation rather than a more thorough or transformative political overhaul.
Functional understandings of arbitrariness also describe and evaluate in-
strumental uses, institutional arrangements, and technical problems.
This approach will be familiar from the more formal and legalistic ap-
proaches to determining the content of arbitrariness, and will connect the
subjective to the hard objective edge that surrounds the concept of arbi-
trariness according to Raz. These formal and legalistic approaches also
provide the lawyers content to the concept of the rule of law. The func-
tional modality affiliates arbitrariness with associated concepts of judicial
88 The concept of the rule of law, on this account, is irreconcilable with early forms of posi-
tivism that recognize systems of law built upon sovereign force, will or power alone. It is
reconcilable with some varieties of deliberative democracy that recognize the legitimate
role of the courts.
89 On this point, see David Dyzenhaus, The Rule of (Administrative) Law in Interna-
tional Law (2005) 68:3-4 Law & Contemp. Probs. 127 at 160.
90 Roncarelli (Sup. Ct.), supra note 10 at 682, Mackinnon J.
718 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
independence and the separation of powers, both of which animate ac-
countability concerns regarding judicial forms of discretion in new institu-
tionalism. Functional approaches need not be explicitly normative, though
they must ultimately lead to normative concerns about the proper pur-
poses and ends for which power is used. I have suggested that the import
of this extension lies in understanding when remedies other than those of
courts are required or are more effective to correct for arbitrariness.
The sociological or wide-angle lens further contextualizes arbitrari-
ness and comports with Razs initial claim that arbitrary power is broader
than the rule of law to include other normative structures.91 The broadest
normative scope invites consideration of the social conditions that amplify
or counter arbitrary power. It is, for example, now a commonplace view
that the Supreme Court of Canada serves an educative function in Cana-
dian society and, more controversially, embraces a dialogic relationship
with other branches of government.92 The sociological angle stimulates re-
flection on what forms of arbitrariness Canadas particular history pro-
duces and what remedieslegal and politicalmight or might not be im-
plicated. Indeed, this broader perspective highlights the salience of our
moral choices regarding reform or redress and how they are ethically jus-
tified.
Conclusion: Twenty-first Century Arbitrariness
Roncarelli is iconic. It seems to contain the whole of arbitrariness and
that may be a primary reason why this case continues to resonate. But
this retrospective has disclosed the danger of iconic status: the subse-
quent reduction of what a case fully represents. Duplessiss autocratic po-
litical regime resembled a classical regime constituted by arbitrariness.
We might therefore be tempted to run a happy story suggesting that such
regimes belong to the past history of once upon a time in Canada, that
we will not see the likes of Duplessis again, or that such persons and gov-
ernments exist in countries far away from our shores. Such a conclusion
91 Raz does not provide any examples for this claim, but one can think of the family, the
workplace, the school, or the church as other key societal sites where arbitrary power
exists and is exercised.
92 Exemplary works include: T.R.S. Allan, Constitutional Dialogue and the Justification
of Judicial Review (2003) 23 Oxford J. Legal Stud. 563; Stephen Gardbaum, The New
Commonwealth Model of Constitutionalism (2001) 49 Am. J. Comp. L. 707; Peter W.
Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures:
(Or Perhaps the Charter of Rights Isnt Such a Bad Thing After All) (1997) 35 Osgoode
Hall L.J. 75; Christopher P. Manfredi, The Life of a Metaphor: Dialogue in the Su-
preme Court, 19982003 (2004) 23 Sup. Ct. L. Rev. (2d) 105; Kent Roach, The Supreme
Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001);
Jeremy Waldron, Some Models of Dialogue Between Judges and Legislatures (2004)
23 Sup. Ct. L. Rev. (2d) 7.
WITNESSING ARBITRARINESS 719
would be a misreading of Roncarelli, for arbitrariness takes new forms
and its old forms appear in new guises.
I have reread Roncarelli to draw out underacknowledged aspects of
judicial arbitrariness. Current models of judging cannot unquestioningly
work with older articulations of the principles of the rule of law and par-
liamentary sovereignty, and the understandings of arbitrariness they
evoke. Post-Charter interanimation of these two principles entails a rejec-
tion of absolutism on either side and a blending of their content: we are
working toward a rule of laworiented democracy and a democratically in-
formed rule of law. To paraphrase Justice Rand, this is now the larger
perspective within which our institutions are intended to operate. As the
epigraph to this article suggests, the modern content of the principle of
the rule of law and the principle of parliamentary sovereignty as democ-
racy require practices of justification that aim, through express language,
to make visible various forms of arbitrariness, and to justify the actions of
public officials no matter where they are located in the state. From a
longer time slice, Roncarelli discloses that the rule of law principles in-
herent in the procedural protections offered by common law constitution-
alism are not always in tension with, and indeed are often in the service
of, a larger democratic accountability. A theoretical approach attuned to
the sociological therefore confirms what Benedict Kingsbury calls a
nested set of theories of governance, institutions, and community and
provides a stronger structural and conceptual foundation.93
I have argued that arbitrariness is a normatively attractive language
to describe legal harms and to diagnose institutional remedies. Radiating
out from cases like Roncarelli, this discourse continues to provide a moti-
vating force in Canadian public law jurisprudence and animates the lar-
ger legal imaginary. It can be expressed politically in terms of sover-
eignty, authority, and legitimacy, as well as juridically in the recognition
of legal harm, allocation of institutional responsibility, and evaluation of
different models of adjudication. This article drew on common law consti-
tutionalism and liberal republicanism to argue that the free decision,
which seems the essence of arbitrariness, must be channelled by reason
when it involves discretionary powers in public law. Politics and aesthet-
ics may unreservedly participate in the liberating aspects of discretion,
but the principles of the rule of law and democracy demand that all dis-
cretionary decisions take a deliberate and deliberated form. Reason-giving
as one practice instantiates this principle and exemplifies the subjective
state of mind of decision makers attuned to the demands of legality. The
93 Benedict Kingsbury, The International Legal Order in Peter Cane & Mark Tushnet,
eds., The Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003)
271 at 295.
720 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
legacy of Roncarelli is therefore profound, but it is not yet fully realized
throughout the Canadian legal order.
