900 Days, 15 ‘Roos, No dice

Blazingcatfur
#1. August 7th, 2008, at 5:16 AM.

Too many lefties fear free speech, they know it will be used against them.

truewest
#2. August 7th, 2008, at 6:18 AM.

Jay,
The only person jumping up and down (while screaming “Send money! Send money!) is Ezra.

Cooler heads are merely noting that this result was entirely predictable, given the jurisprudence. And continuing to wonder how Ezra spent $100,000 in legal fees answering a complaint that never went to hearing, in which he submitted a response written in his own hand (but delivered by his lawyers) and attended one interview (oh, sorry, interrogation) accompanied by a lawyer who sat on his hands while Ezra played to the camera.

Did Ezra hire Steven Speilberg to shoot the video? Did Ezra’s lawyers paint his house and wash his car every weekend? And where did he come up with the figure of $500,000 forthe cost of the investigation? Inquiring minds want to know. Actually, inquiring minds don’t believe a damn word Ezra says until we see proof.

Those of you who think that free speech requires that everyone should be able to circulate gross caricatures of minorities - whether in money-losing right-wing rags, on the Internet or on your local community bulletin board - without fear of complaint from those targetted may join Ezra in jumping up and down and grunting “Fire. Them. All.” After all, what’s free speech without images of Jews draining the blood from Christian children to make matza, Catholics gathering around to cheer as the local priest sodomizes their children or regular Yellow Peril warnings?

Cooler heads, however, recognize that there may be some value in a process that allows those attacked to respond to blood libels, racial and religious smears and other expression designed only to deny vulnerable groups a place in society. And that while the process, like any legal process, may be open to marginal complains and even abuse, only an idiot or a politically-motivated charlatan would suggest that the process be judged on the complaints it receives rather than the results it produces.

dcardno
#3. August 7th, 2008, at 8:04 AM.

Or an hour and a half which is how long it should have taken to say, “Hey, this is news, bugger off you twits.”

Which still misses the point. The right response from the Commission is not to determine what is “news” and what is “not news” so their answer should have simply been “this is not hatred (now bugger off, you twits)”

ebt
#4. August 7th, 2008, at 1:28 PM.

You’ll notice that this decision is based on nothing more than actually reading the piece complained about. Had it been rendered the day after the complaint was filed, we could say that the system worked. It’s about 899 days late for that shit now.

Ron Good
#5. August 7th, 2008, at 6:20 PM.

“Cooler heads, however, recognize that there may be some value in a process that allows those attacked to respond to blood libels, racial and religious smears and other expression designed only to deny vulnerable groups a place in society.

Truly cooler heads call what you ask for “a court“, not a tribunal, not a commission…in other words, not an agency whose raison d’etre is specifically political not judicial.

As for: “only an idiot or a politically-motivated charlatan would suggest that the process be judged on the complaints it receives rather than the results it produces“…

Oh, BS. I don’t care if a “tribunal” comes to a reasonable decision or not. The real issue is really whether or not a decision needed to be (or ever should be) made by that kind of political body in the first place.

Blazingcatfur
#6. August 7th, 2008, at 6:22 PM.

The “Cooler Heads” in this affair constitute the vast majority who recognize the true nature of the threat posed by our rogue HRC’s. The hyperventilating hysteria of those on the left who are afraid of freedom is telling.

Brett_McS
#7. August 7th, 2008, at 8:26 PM.

The HRC need to investigate themselves for making it likely that they have exposed (or will expose) themselves to feelings hatred and/or contempt. Indications are that it would be a solid case.

truewest
#8. August 8th, 2008, at 7:51 AM.

Ron,
A tribunal is not a political body (or at least not any more than a court is). A human rights tribunal, like a securities commission, a labour relations board, or a competition tribunal is quasi-judicial body that deals with disputes between parties. Those who insist on everything being determined by the courts, as you do, typically have no experience with either tribunals or courts.
Do try to keep up.

Ron Good
#9. August 8th, 2008, at 2:56 PM.

Do try not to be presumptuous.

Among other things, I spent a few years as the Human Resources Director for a decent sized company and a few more in Employment Development/Counselling. Although I am not a lawyer, I have some experience with both tribunals and courts.

Anyways, a couple of examples: Labour relations boards were generally set up because organized labour was becoming exempted from the same restraint of trade laws that (usually the same leftist folks) insisted be enacted to bind private companies. In other words, they were the result of–and designed to support–the decision that organized labourers were a class with privileges not available to either individuals or companies. The *courts* up to that point had usually held that restraint of trade laws should apply to unions and companies alike–or neither.

Competition tribunals were set up, well…because up till the tribunals, actual courts had been very hesitant to involve themselves in the relationships between buyers and sellers, and between sellers and other sellers, except regarding clear cut cases of theft, misrepresentation or fraud.

Another way of looking at it is this: historically, the existence of tribunals and such have generally resulted from legislative, not judicial, activism (and I don’t necessarily mean activism in the pejorative sense).

Ron Good
#10. August 8th, 2008, at 3:10 PM.

truewest: just a historical note that may explain my thinking:

The trial of Charles I was one of the first notable clashes between judicial (common) as opposed to legislative law, and Charles had this to say at his trial: “For if power without law, may make laws, may alter the fundamental laws of the Kingdom, I do not know what subject he is in England that can be sure of his life, or any thing that he calls his own.”

I may be the odd man out, but I generally prefer the slower but less willy-nilly, judicial/court approach to law-making and dispute resolution as opposed to the often “whichever way the popular wind blows” legislative/tribunal method.

truewest
#11. August 8th, 2008, at 5:00 PM.

Ron,
Thank you for making the argument that the courts are political bodies and, contrary to the received wisdom on the right, profoundly conservative political bodies. Saves me the trouble.
As for your analysis of the origins of administrative tribunals, what does that have to do with price of rice in China? The legislatures have delegated the adjudication of various disputes to bodies that have more expertise in particular areas than the courts and are, for good measure, far more efficient than the courts. Where’s the problem?

Ron Good
#12. August 9th, 2008, at 2:36 AM.

truewest, re: “Thank you for making the argument that the courts are political bodies and, contrary to the received wisdom on the right, profoundly conservative political bodies

Meaning absolutely no disrespect: you’re welcome. I just don’t see what you’re terming “conservatism” there as a bad thing.

Where I’d disagree is where you say: “The legislatures have delegated the adjudication of various disputes to bodies that have more expertise in particular areas than the courts and are, for good measure, far more efficient than the courts“. I’d say instead: “that legislatures have usurped the adjudication of various disputes to bodies that have more immediately socially palatable biases in the concerned areas than the courts, and are, for bad measure, far more willing than courts to trade expediency for thoughtful, albeit slower, consideration”.

In other words, I find that the usual justification for tribunals and such is that statists of any description find them more efficient in achieving and enforcing interventionist/collectivist ends.

I certainly may misunderstand you because I’m not familar with you but, so far (and I mean no insult), your comments don’t change my mind about that.

In a sense I’m sure you’d understand, I am very conservative politically (more accurately I’m closer to anarcho-capitalist or classical liberal)–but not at all typically conservative individually. Most small-c conservatives and certainly most Big-C types(for example, the religious right) would find my general ethical thinking quite unacceptable. It might be clearer to say, for example, that I generally agree far more with people typically termed “leftists” than “rightists” when it comes to individual moral freedom as it pertains to things like drug laws, gay marriage and so on. I just think that individual economic freedom is a corollary to individual moral freedom.

Anonymous
#13. August 9th, 2008, at 1:26 PM.

“Cooler heads are merely noting that this result was entirely predictable,”

Ha! It only became “predictable” after Levant turned the spotight on that nest of vindictive trough guzzlers and their ethically vacant clients.

This was not the outcome they wanted but the outcome they were forced into for fear of having their little racket exposed in a higher court.

Predictability of this PC enforcement racket is a matter of weighing political survival options…not justice.

truewest
#14. August 10th, 2008, at 4:10 PM.

Anonymous,
Actually, people who are familiar with human rights law and procedure predicted this result about 875 days ago. If you believe Ezra’s whining claim that he triumphed because he turned a simple interview with Shirlene McGoverns into an episode of America’s Funniest Home Videos, I’ve got some swampland in Florida I’d like to talk to you about.

Ron Good
#15. August 11th, 2008, at 8:00 AM.

truewest: I’m not baiting; I’d appreciate your opinion and this is a serious question: what then are qualitative the differences between Ezra’s case and Mr Boisson’s that make it so that Ezra’s case is let go (and you describe as being expected to be let go), but Boisson’s proceeds to what amounts to a gag order?

truewest
#16. August 11th, 2008, at 9:06 PM.

Ron,
They’re as different as chalk and cheese.

While it was possible to view the Western Standard’s publication of the Danish cartoons as a poke in the eye of Muslim’s generally — certainly people who knew Levant well saw an underlying enmity towards Muslims as one motivation in his decision to publish — it was clear that that’s not all it was. While the cartoons may have stoked the hatred of Muslims that was already bubbling within the WS’s readership, it was clear to any reasonable viewer that both the original artists and the republication of them in the context of a new article was more than an attempt to demonize Muslims. And while the cartoons may have offended some Muslims, that is not the test set out in the jurisprudence nor the one applied by human rights tribunals.

It is certainly not the test applied in Boissoin. The reverend’s letter was a call to arms : “war has been declared so as to defend the precious sanctity of our innocent children and youth, that you so eagerly toil, day and night, to consume”; “It is time to stand together and take whatever steps are necessary to reverse the wickedness”.

While it might be argued that these are merely vigorous metaphors, the same argument can be made about various anti-semitic slurs, for example, those comparing Jews to cancers. In both cases, the metaphor invites a particular and possibly violent response from the reader and tends to make the targetted group feel less safe.

truewest
#18. August 11th, 2008, at 10:03 PM.

Jay,
Bullshit. The claim that the despised group victimizes children is hallmark of hate propaganda, from the claim that Jews use the blood of Christian children to make passover matza to this gay=pedophile nonsense that Boissoin trafficks in.
Boissoin’s target is not pedophilia at all; it is homosexuals, whose insistence on living openly in society, with all the rights of other citizens, he characterizes as a “horrendous atrocity” and a form psychological abuse of children. He targets ALL homosexuals except those who renounce homosexuality (”those who are suffering from an unwanted sexual identity crisis”): “These activists are not morally upright citizens, concerned about the best interests of our society. They are perverse, self-centered and morally deprived individuals who are spreading their psychological disease into every area of our lives. Homosexual rights activists and those that defend them, are just as immoral as the pedophiles, drug dealers and pimps that plague our communities.”

So spare me this nonsense about “moral war” — these are fighting words, designed to inspire action, likely to provoke violence and intended to intimidate.

truewest
#20. August 11th, 2008, at 10:48 PM.

Jay,
There’s a significant difference between saying that I don’t like Reverend Boissoin (and I don’t) and disagree with him (and I do) and suggesting that his presence in my community is akin to a disease or a cancer, that he abuses children and commits atrocities and that my neighbour should take “whatever steps are necessary” to rid the town of him. If someone, perhaps inspired by those words, whups the pastor upside the head or chucks a rock through his window I can probably expect a visit from the state, who might be of the view that I have exceeded the limits of freedom of speech. And I probably have.
There is a line between denunciation and disagreement and calls to arms. Boissoin crossed it. His letter was more than offensive; it created a reasonable risk of harm to a vulnerable group.
(It’s worth remembering that this Red Deer, where Stockwell Day tried to score points by demanding that the local museum give back a grant it had received to mount an exhibit on local gay and lesbian history. And where Day later stiffed taxpayers for nearly $800,000 in costs and damages when he refused to apologize and settle a libel action brought by a local defence lawyer and school board member who he had accused of supporting pedophilia and child porn.)
That said, I think the panel overstepped its bounds in terms of remedy.

Ron Good
#21. August 11th, 2008, at 11:23 PM.

truewest: again, I’m not baiting and this is a serious question: If “While it might be argued that these are merely vigorous metaphors, the same argument can be made about various anti-semitic slurs, for example, those comparing Jews to cancers. In both cases, the metaphor invites a particular and possibly violent response from the reader and tends to make the targetted group feel less safe. then why does not *every* statement made in Canada by Muslims using the term “jihad (which is an unarguable call to war, either tangible or metaphoric, against an indentifiable foe) in print or speech similarly find itself the immediate target of the HRCs with a consequent life-long ban on such speech and a judicially-obligated call for the offender to publicly apologize and to renounce the related articles of faith? I mean: is it not true that “the metaphor invites a particular and possibly violent response from the reader and tends to make the targetted group feel less safe.”

Understand me: I’m not saying that “should” happen (I’m pretty much a free-speech purist), but were the HRC rules applied objectively and neutrally, would what I describe not be the case?

truewest
#22. August 12th, 2008, at 5:25 PM.

Ron,
My understanding is that the word “jihad” means “struggle” not “war”, so your argument is flawed from the start. That said, in cases in which “jihad” is used as a threat or to invite a particular and violent response, both human rights and criminal law offer remedies that are not inconsistent with freedom of speech. Even if the US, where First Amendment rights are, at least theoretically, absolute, fighting words are not protected speech.

Ron Good
#23. August 13th, 2008, at 9:56 AM.

truewest: It took about three minutes to find these common definitions…

ji·had:
1. A Muslim holy war or spiritual struggle against infidels.
2. A crusade or struggle:

Struggle:
1. something requiring a lot of exertion or effort to achieve
2. a fight or battle

War:
1. open armed conflict between two or more countries or groups: this international situation led to war
2. a particular armed conflict: the American war in Vietnam
3. any conflict or contest: a trade war

So, you were saying about my argument being flawed from the start…???

Is it that Mr Boisson can’t legally use a strong metaphor, but others can?

truewest
#24. August 13th, 2008, at 1:39 PM.

And the source for these definitions is? Not that it matters. Jihad, translated literally, means struggle. And while it can mean a holy war, it clearly doesn’t mean that in all contexts. If you assume that it does, as you did in your post, your argument is flawed from the start.

Ron Good
#25. August 13th, 2008, at 2:21 PM.

I don’t assume that jihad means “holy wars”; that’s only one of–as you note, and as the definitions I provide show–a number of possible meanings. However, the word “war” also has range of meanings, as I also showed.

Someone assumed that Mr Boisson’s use of the term “war” meant something physical and inciting clearly enough that he should be punished. Do the HRCs employ mind-readers?

My question still stands: Is it that Mr Boisson can’t legally use a strong metaphor, but others can?

truewest
#27. August 13th, 2008, at 6:30 PM.

Jay wrote:
More confusingly, there is no clear way to tell what an imam is preaching when and if he uses the term “jihad”.

How about, lessee, context. Or are all you guys on the right tin-earred automatons unable to discern when word has a different meaning? Or perhaps there is something more.
BTW, I note that there was evidence before that tribunal in Boissoin that good reverend monitored the reaction to his hate bomb and expressed approval when someone from local youth centre responded by doing a little fag-bashing. According to one witness, who ran the youth centre, Boisson eagerly monitored the reaction the letter, and when he learned of the assault commented “God called him to be active with his beliefs.”
But he was probably speaking metaphorically.

truewest
#29. August 14th, 2008, at 7:01 AM.

Guess it depends what you mean by “incitement”. As it stands, the Criminal Code prohibits “instructing” people to carry out terrorist activity.

83.22 (1) Every person who knowingly instructs, directly or indirectly, any person to carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for life.

Prosecution
(2) An offence may be committed under subsection (1) whether or not

(a) the terrorist activity is actually carried out;

(b) the accused instructs a particular person to carry out the terrorist activity;

(c) the accused knows the identity of the person whom the accused instructs to carry out the terrorist activity; or

(d) the person whom the accused instructs to carry out the terrorist activity knows that it is a terrorist activity.

As for making it an “immigration offence”, that would be redundant, given the CC provision.

Ron Good
#30. August 14th, 2008, at 11:00 AM.

Hmmm…

truewest: Is Mr Boisson lying when he speaks directly to the points you are making in your latest comment in a post at another blog?

truewest
#31. August 14th, 2008, at 2:27 PM.

He might be lying. He might not be. Unlike the panel in the hearing, you and I are not in any position to judge the credibility of either Boissoin or Ms. Dodd, the woman who testified against him and whom he smears on this blog. Nor will the court hearing an appeal of the decision assess credibility .
BTW, it’s a bit rich that Boissoin, who was represented at the hearing by a senior lawyer, decides attack findings of fact and credibility at this later date. He may have some success on his appeal of the remedy, which was over-reaching, but his opportunity to challenge the finding has passed.

Ron Good
#32. August 17th, 2008, at 12:15 AM.

truewest, are you serious when you say: “Unlike the panel in the hearing, you and I are not in any position to judge the credibility of either Boissoin or Ms. Dodd, the woman who testified against him and whom he smears on this blog“?

I don’t lose my ability to judge things when there are bureaucrats in the area. Do you?

I’m in a perfectly decent position to presume innocence, both on the part of Mr Boisson and Ms Dodd. I wasn’t there and neither were you. And I’ve been in court enough to know the difference between testimony and truth–or at least that there is one.

The tribunal can evidently make any judgement they wish. But if that’s all it takes to make such a finding, a single recollection of a single sentence without any corroboration, added to a tenuous attachment of what Mr Boisson expressed to the behaviour of someone else over which Mr Boisson had no control, I think you’ll find it difficult to convince me I should recognize such a tribunal as having authority in my life.

Anyways, have some fun: explain to me which parts of Mr Boisson’s penalty you’d describe as over-reaching. And then when you’re done, use those “over-reaches” as examples as to why I should trust the tribunal’s judgment more generally. I’d think the examples would point in the other direction.

And “troubled” is a “smear”? I’m sure Mr Boisson would describe *me* as troubled, but that’s just an opinion he’d have. I’d reserve “smear” for something a bit more…uh…detailed. I mean, I could take *your* use of the term “smear” as a smear–but I’m sure you were just expressing an opinion.

truewest
#33. August 18th, 2008, at 6:19 PM.

Ron,
An appellate court, armed with a transcript and years of experience with witnesses, won’t make findings of crediblity. But you, with “some experience with both tribunals and courts” are quite happy to weigh in on the “difference between testimony and truth” in a case you understand solely on the basis of the tribunal’s decision and some self-serving web posts from the unsuccessful respondent? Please.
The presumption of innocence, upon which you purport to rely, has nothing to do with findings of credibility. And despite your babbling about “corroboration”, all the objective factors in this battle of credibility favour Ms. Dodd. Unlike Boissoin or Lund, she has no particular interest in the outcome; indeed, it might be said that it’s not in her interest to testify against Boissoin. To suggest as you do that her testimony requires “corroboration” is unsupported in law and, frankly, idiotic.
Meanwhile, Boissoin desparately attempts to both discredit Dodd(she’s “troubled”) and put words in her mouth (”she was talking about me”, not the ag basher). Pathetic. (That said, the limits the tribunal placed on his speech are overbroad and will likely be cut back on appeal.)
Boissoin had the opportunity to bring up everything he mentions in his post at the hearing. He was represented by counsel — Gerry Chipeur QC, the evangelicals’ go-to lawyer — while the complainant was not. Either he didn’t raise them or he did and wasn’t believed. And as far as I know, he hasn’t appealed the finding - only the remedy.
As for the authority of tribunal, I don’t give a rat’s ass whether you believe the tribunal should have authority over you. so far, you haven’t said anything persuade me that it shouldn’t. And, as we both know, the law is on my side. Aren’t you conservatives supposed to be big champions of the rule of law ? Or does that support depend on whose ox is being gored?

Ron Good
#34. August 20th, 2008, at 7:30 AM.

Me? A conservative?!?!?!?!?

Heh. Check my blog, truewest. I ain’t no conservative

More later.

Ron Good
#35. August 20th, 2008, at 2:28 PM.

Truewest: Did this from me, earlier in this thread, I am very conservative politically (more accurately I’m closer to anarcho-capitalist or classical liberal)–but not at all typically conservative individually. Most small-c conservatives and certainly most Big-C types(for example, the religious right) would find my general ethical thinking quite unacceptable. confuse you?

Sincerely, and without a hint of sarcasm, I’m sorry if it did.

My position is that I generally support the Common/Judicial Law tradition much more than the legislative law tradition. Commissions, tribunals and such are normally a result of legislative actions.

truewest
#36. August 20th, 2008, at 5:37 PM.

I take from “legislative law” you mean “adminstrative law”, unless of course you oppose legislative action generally. If the former, you might describe youself as a Diceyan, after the British constitutional scholar A.V. Dicey who frowned on the rise of administrative tribunals.

Ron Good
#38. August 20th, 2008, at 11:58 PM.

truewest: I’ve described what I mean before, in post #9 and post #12. I read up on Dicey, and though I make my arguments from a less lofty perspective (I hardly have Dicey’s experience or legal education) we come to some similar conclusions I gather.

I had put it like this in post #12:

“legislatures have usurped the adjudication of various disputes to bodies that have more immediately socially palatable biases in the concerned areas than the courts, and are, for bad measure, far more willing than courts to trade expediency for thoughtful, albeit slower, consideration.

In other words, I find that the usual justification for tribunals and such is that statists of any description find them more efficient in achieving and enforcing interventionist/collectivist ends“.

In post #35 I noted that “Commissions, tribunals and such are normally a result of legislative actions” and I gave specific examples in post #9 where the legislatures had created such bodies specifically to enable what I see as an end run around Common Law restraints.

I generally agree with Jay when he says “the entire idea of delegating authority to quasi-judicial bodies which make up their rules as they go along is a 20th century invention which we might well do better without“. The Charles I example I gave, though, shows that the trend Jay notes started well before the 20th century.

And thank you for your suggestion; I have no trouble accepting and using the terminology that you suggest from here on if it makes my point clearer, although the terminology I used above was accepted by my prof (admittedly an English prof, not a law prof) when I wrote a paper on the…maybe conflict is the right term…differing qualities and results between and based on the differing derivations of law.

I do remember that I used, among others, both Alan Dershowitz and especially Bruno Leoni (citing sections of Leoni’s “Freedom and The Law”) as references in the paper and I remember also that Leoni used the term “legislative law” specifically. Leoni was Professor of Legal Theory and the Theory of the State at the University of Pavia, Italy.

Ron Good
#39. August 21st, 2008, at 12:27 AM.

This quote I found (net surfing) from Leoni puts it nicely:

“Substituting legislation for the spontaneous application of nonlegislated rules of behaviour is indefensible unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system. This preliminary assessment is simply unthought of by contemporary legislators. On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree. …

… legislation, especially if applied to the innumerable choices that individuals make in their daily life, appears to be something absolutely exceptional and even contrary to the rest of what takes place in human society. The most striking contrast between legislation and other processes of human activity emerges whenever we compare the former with the proceedings of science. I would even say that this is one of the greatest paradoxes of contemporary civilization: it has developed scientific methods to such an astonishing degree while at the same time extending, adding, and fostering such antithetic procedures as those of decision groups and majority rule.” [emphasis mine]

I do not think that the Tribunal cases we are discussing are the result of any proof that that “the [non-legislated rules] are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system.“

truewest
#40. August 21st, 2008, at 6:45 AM.

Jay,
Dicey may have a point if your understanding of administrative tribunals is formed by over-exposure to talk radio and intellectually dishonest blo(g)viators like Ezra Levant. Those who practice in front of such tribunals would take a different view, understanding that:
a) tribunals don’t make up their own rules as they go along, but in fact are guided by precedent and established rules, just as court are;
b) they do a job that the courts are unwilling and unable to do, and do it far more efficiently (and often, with greater expertise) than courts could; and
c) that at the end of the day, the ordinary courts (to borrow Dicey’s phrase) get the final say on matters of law and procedural fairness.

Of course, it’s so much easier to resort to invective than to consider how the system actually works.

Ron Good
#41. August 21st, 2008, at 1:26 PM.

truewest: I’ve described what I mean before, in post #9 and post #12. I read up on Dicey, and though I make my arguments from a less lofty perspective (I hardly have Dicey’s experience or legal education) we come to some similar conclusions I gather.

I had put it like this in post #12:

“legislatures have usurped the adjudication of various disputes to bodies that have more immediately socially palatable biases in the concerned areas than the courts, and are, for bad measure, far more willing than courts to trade expediency for thoughtful, albeit slower, consideration.

In other words, I find that the usual justification for tribunals and such is that statists of any description find them more efficient in achieving and enforcing interventionist/collectivist ends“.

In post #35 I noted that “Commissions, tribunals and such are normally a result of legislative actions” and I gave specific examples in post #9 where the legislatures had created such bodies specifically to enable what I see as an end run around Common Law restraints.

I generally agree with Jay when he says “the entire idea of delegating authority to quasi-judicial bodies which make up their rules as they go along is a 20th century invention which we might well do better without“. The Charles I example I gave, though, shows that the trend Jay notes started well before the 20th century.

And thank you for your suggestion; I have no trouble accepting and using the terminology that you suggest from here on if it makes my point clearer, although the terminology I used above was accepted by my prof (admittedly an English prof, not a law prof) when I wrote a paper on the…maybe conflict is the right term…differing qualities and results between and based on the differing derivations of law.

I do remember that I used, among others, Bruno Leoni (citing sections of Leoni’s “Freedom and The Law”) as references in the paper and I remember also that Leoni used the term “legislative law” specifically. Leoni was Professor of Legal Theory and the Theory of the State at the University of Pavia, Italy.

This quote I found (net surfing) from Leoni puts it nicely:

“Substituting legislation for the spontaneous application of nonlegislated rules of behaviour is indefensible unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system. This preliminary assessment is simply unthought of by contemporary legislators. On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree. …

… legislation, especially if applied to the innumerable choices that individuals make in their daily life, appears to be something absolutely exceptional and even contrary to the rest of what takes place in human society. The most striking contrast between legislation and other processes of human activity emerges whenever we compare the former with the proceedings of science. I would even say that this is one of the greatest paradoxes of contemporary civilization: it has developed scientific methods to such an astonishing degree while at the same time extending, adding, and fostering such antithetic procedures as those of decision groups and majority rule.” [emphasis mine]

I do not think that the Tribunal cases we are discussing are the result of any proof that that “the [non-legislated rules] are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system.“

Ron Good
#42. August 23rd, 2008, at 6:05 PM.

truewest: I gather you may not want to continue with this discussion, which is OK with me, but that last post of mine was to note that, in response your last post on this thread, Dicey may also have a point if one’s understanding of administrative tribunals comes from deeper things than “over-exposure to talk radio and intellectually dishonest blo(g)viators like Ezra Levant.” In other words, such an understanding might also come from studying problems with the administrative/legislative method of deriving and applying law.

And as far as: “they [administrative tribunals] do a job that the courts are unwilling and unable to do, and do it far more efficiently (and often, with greater expertise) than courts could “…I could say *that* about a skilled axe-murderer.

Skill and efficiency are a separate subject than whether or not the job ought to be done–and done by such agencies–in the first place. It’s possible there are very good reasons the courts are both unwilling and unable to do the job.