Graham Gee

Same-Sex Marriage in Canada: Contributions from the Courts, the Executive, and Parliament

In this case comment on the Supreme Court of Canadas 2004 Reference re Same-Sex Marriage, we situate the judgment within the wider judicial and political climate and inter-institutional relationships surrounding the recognition of same-sex marriage in Canada, which ultimately culminated in the Civil Marriage Act 2005.

Rationalism in Public Law

Rationalism is ‘the stylistic criterion of all respectable politics’. So lamented political philosopher Michael Oakeshott in a series of essays published in the 1940s and 1950s. Rationalism, for Oakeshott, is shorthand for a propensity to prioritise the universal over the local, the uniform over the particular and, ultimately, principle over practice. It culminates in the triumph of abstract principles over practical knowledge in a manner that erodes our ability to engage in political activity. Although Oakeshotts critique was made with the practice and study of politics in mind, it has a wider relevance. Rationalism, as we see it, has become the dominant style in public law. We draw upon Oakeshotts critique to elucidate the risks associated with rationalism in public law and call for a renewed engagement with practical knowledge in the study of the constitution.

Debating Judicial Appointments in an Age of Diversity

This is an age of diversity. In a pluralistic polity such as the UK, diversity often serves as shorthand for a series of related questions about how best to respond to our mutual differences of, amongst other things, gender, race, sexuality and social background. Over the last twenty-five years or so there has been growing recognition that these questions are as relevant to the courts and tribunals as for other areas of public life. Today, across the UK, there is widespread agreement that the judiciary should reflect the society it serves. Especially welcome is the evidence in recent years that this agreement traverses the judicial and political spheres, with the need for faster and more visible progress on judicial diversity increasingly acknowledged across the ideological spectrum. There is, in other words, a political salience to debates about judicial diversity largely absent just a few years ago. This has significant spill-over effects for the design, working and assessment of judicial appointments: previously relatively discrete debates about the independence, legitimacy and accountability of the appointments regime are frequently now framed in terms of, and by reference to, widely shared concerns about the need for judges who are more visibly reflective of society. Diversity is not the only goal of a selection regime of course, but it has begun to shape how those other goals are viewed. In brief, there is now such widespread agreement about its importance that judicial diversity ‘has in recent years become a truth almost universally acknowledged’

The Persistent Politics of Judicial Selection: A Comparative Analysis

The politics of judicial selection runs deep. Decisions such as whom to select as judges and how to select them will inevitably have political dimensions, whether these relate to ideological politics, party politics, regional politics, group politics and so forth. Because selection processes ultimately shape the ability of courts to hold political institutions to account – and, in some countries, their ability to enforce constitutionally entrenched limits on the legislature – it could hardly be otherwise. The political dimensions vary, of course, from country to country, and, within any one country, from period to period, and perhaps even from court to court. But, in the final analysis, whether our focus is on civil law or common law systems, there will always be political dimensions to the selection of judges. In this essay, I want to sketch some of the ways in which judicial selection is distinctively political in character (and, here, I use the term selection to include not only initial recruitment into the judiciary, but also a judge’s subsequent progression up the judicial ranks). I do so as part of a larger argument against the depoliticization of judicial selection. Any and all attempts to eliminate politics are bound to fail, and all too often efforts to restrict the role of political institutions in the selection of judges are misdirected. Politics cannot be removed from the recruitment and selection of judges, and nor should it be. The political dimensions must instead be brought into the open and publicly acknowledged. For at the end of the day, political institutions must always have a role in judicial selection.