Beyond Intersecting Rights: The Constitutional Judge as 'Complex Self'

I Introduction

Frank Iacobucci has been described in many ways: as warm, reasonable, brilliant, and loyal. We talk in this essay about his complexity. The literature on legal complexity attends usually to the transaction costs of complex and uncertain legal rules¹ or to the political economy of legal complexity that inures to the benefit of legal elites.² We draw upon a different understanding of complexity. Our use of 'complexity' refers less to economic incentives and more to circumstances in which competing and important loyalties come into conflict. The sciences understand 'complex relationality' as describing systems that adapt and evolve through modes of continuous interaction. The resulting uncertainty leaves systems in an unsteady equipoise, in a balance between 'order and chaos.'³ We imagine judging under a bill of rights as calling for this sort of organized uncertainty, where indeterminate outcomes are likely because no simple hierarchy or priority of values is self-evident. Complexity, in our view, arises in those hard Charter cases in which seemingly intractable rights claims cannot be resolved easily – in which no obviously correct answers are available. This can be considered the external aspect of complexity. There is also an internal dimension of complexity, premised on the idea of 'pluralism.'⁴ Individuals, according to pluralist thinking, will have multiple affiliations and loyalties – not only are they citizens of a state, they also are workers, scholars, bloggers, closet Coasians, or s&m devotees. To admit these multiple affiliations to intermediate groups results in the likelihood that, when we make important decisions, there will be disagreement, if not strains, between these competing loyalties. It suggests that 'the judgment of the individual concerning the ordering of the groups in which he or she is embedded is made by a complex agent.'⁵ As Charles Taylor puts it, there is no single and monolithic source but multiple sources of the self.⁶

Ordinarily, we will not be required to order or prioritize these commitments. Judges, however, are often called upon to make these very choices. And judges are not immune to the sociological fact of pluralism, which means that they will be required to draw upon their own complex and conflicting selves in making judicial determinations. To be sure, in most constitutional democracies, judges do not purport to rule in complex constitutional cases with reference to personal loyalties. The discipline of judging calls for public reasons constrained by such things as text and precedent. In the case of competing rights claims in the external realm, these constraints often melt away. One need not go so far as Judge Posner has in saying that, in these instances, all judging is 'political in the sense of having and exercising discretionary power as capacious as a legislature's.'⁷ Rather, all we need admit here, following Stephen Waddams, is that material that is 'inherently complex is not better understood by concealing its complexity.'⁸ It is the professional calling of judges, then, to lend order to these complex legal claims. In so doing, they will be asked to compromise competing rights, perhaps even themselves, in the process.

Our notion of complexity bears some relationship to the idea of 'intersectionality' or 'complex inequality.'⁹ Intersectionality theorists argue that members of multiple marginalized groups are reduced, in equality analysis, to a single, essentialized characteristic. Equality claims must be framed in familiar categorical terms – whether race, sex, or nationality – cognizable to liberal legal systems with bills of rights. Formalistic equality analysis, in this way, is not faithful to the multiple sources of oppression authentically experienced by vulnerable persons (a reality that Justice Iacobucci acknowledged, to his credit, in his opinion in Law).¹⁰ Intersectionality theorists sought to complicate equality analysis by admitting the multiple sources of the self. In our analysis, we aim to move beyond intersectionality to consider how, if at all, our multiple selves might be reconciled in situations of conflict and tension. In hard cases, choices must sometimes be made. We deploy the concept of complexity to explore ways in which these hard choices can be confronted and negotiated...