Canadian Justice-Swainger 5/5/00 10:48 AM Page 19

Canadian Justice-Swainger 5/5/00 10:48 AM Page 19 2 An Apolitical Advisor: The Fiction of the Attorney General Edmund Morgan’s compelling book Inventing the People: The Rise of Popular Sovereignty in England and America opens with an assertion that the success of any form of government requires the acceptance of a number of fictions. In democracies, for example, it is necessary for the population to “believe that the people have a voice or ... that the representatives of the people are the people.”1 While a necessary deception, the fiction “must bear some resemblance to fact. If it strays too far from fact, the willing suspension of disbelief collapses. And conversely it may collapse if facts stray too far from the fiction that we want them to resemble.”2 Morgan was not, of course, referring to the legal fictions whereby the common law historically responded to novel situations falling outside the traditional forms of action or to the crafted narratives identified by Natalie Zemon Davis in her study of “pardon tales” in sixteenth-century France.3 Nor was he describing a delusion or untruth. Rather, he was concerned with those instances of “make-believe” where we willingly suspend disbelief so that our world con- forms “to what we want it to be.”4 Or, from a different perspective, fictions serve to frame uneven relationships as constituting a desirable and natural order of things. Sometimes depicted as “self-evident truths” or practical arrangements advantageous to the public, these rationalizations traced observable contours of political, economic, and social authority in tandem with the subdued means whereby power could be exercised. In this particular instance, a version of Morgan’s fiction refers to the illusory contention that the attorney general functioned as an apolitical legal advisor. Indeed, this particular fiction has been an unwavering theme in the history of the attorney general and, with the creation of the Department of Justice, it too came to be served by this specious notion. The ingredients of this fiction exist as embedded and often untested assumptions about the very essence of law. Its primary source rests in what Harry Arthurs identifies as the basic paradigm shaping the way in which most legal professionals and much of the public regards the law. Canadian Justice-Swainger 5/5/00 10:48 AM Page 20 20 An Apolitical Advisor The law is formal; it exists as a thing apart from society, politics, or eco- nomics; law has the capacity to achieve, and does achieve, results by encouraging or discouraging behaviour, by attaching specified consequences to behaviour that facilitate it, deter it or undo its harmful effects; law is made and administered by the state; and access to law is provided in courts by legal professionals – lawyers and judges – who invoke a body of authoritative learning in order to argue and decide cases.5 This view sustains a layered assertion that law and its practitioners are both “apolitical and necessary.”6 In effect, those who practise or interpret the law benefit from the notion that its ultimate goal is the pursuit of idealized justice. Or, as Robert Gordon writes, from one perspective, “The law ... is an artificial utopia of social harmony, a kind of collectively maintained fantasy of what society would look like if everyone played by the rules.”7 Accepting for a moment that such a utopia is attainable, it is a risky proposition to conflate the law with the ideal of justice, or the practical realities of its daily administration.8 Essentially, the law or the administration of justice ought not be confused with the pursuit of justice. Yet the very fact that these distinct elements are viewed as synonymous is the bone and mar- row of the fiction casting the attorney general as an apolitical legal advisor. It would be disingenuous to suggest that this willing suspension of disbelief was solely the product of those outside of the legal community. As Arthurs points out, the fiction also reflects how the legal profession has viewed itself historically.9 Common-law training consciously created the ideology of law that claimed those schooled in the law were endowed with highly specialized and ancient knowledge, which, in course, affirmed the status of those who possessed that learning: “The tradition associated law with both science and high culture, and justified the prestige and power of its practitioners. Law was authoritative because [it was] autonomous; and its autonomy derived from two sources, its formality (or technicality) and its antiquity.”10 Although most practitioners would have disavowed such lofty intellectual pretensions and taken refuge in the self-acclaimed role as skilled artisans applying technical rules, this merely substituted one char- acterization for another. Either way, lawyers were apolitical because, in one instance, they applied ancient principles that theoretically were not coloured by political interests or, in the other, because they pulled levers in a mechanical legal structure. While it may be imprudent to leap from the ideology of law to that of the illusory attorney general functioning above politics, a link does exist. It entails the assertion that law and politics are so thoroughly intertwined that it is neither practicable nor useful to pull them apart. Such an attempt would only serve to distort and oversimplify the nexus.11 Legal decisions Canadian Justice-Swainger 5/5/00 10:48 AM Page 21 The Fiction of the Attorney General 21 are by their nature inherently political. Further, the legal profession’s desire to deny this indissoluble connection through the benefit of an apolitical veneer is yet another political act. Therefore, when the decision was made in the fifteenth century to secure an additional counsellor to further protect and proliferate the English monarch’s interests, the newly minted attorney general assumed the status of a personal advisor to the King, to defend at law, the King’s interests.12 If the political character of the attorney general’s origins and function are so easily revealed, why then is it necessary for the fiction to obscure this basic attribute? The answer lies with the rationale for creating, sustaining, and subscribing to such fictions in the first place; in their broadest sense they act as a palliative for a complex and sometimes frightening world. Essentially, the notion that the law and its practitioners are apolitical and can be the means for the pursuit of either idealized or practical justice is obviously more comforting than the contrary proposition. As such, the community and the profession have both an emotional and pragmatic interest to accept and propagate the fiction. The subsequent “social bargain” asserts that the profession, through and by the application of law, dis- passionately shoulders a wide range of activities and behaviours on behalf of the community. In exchange, it acquires both individual autonomy and professional self-governance.13 For the attorney general, this bargain, with its embedded notion of independence facilitating objectivity in applying impartial law, creates and reifies the notion that both the legal advisor to, and the advice tendered for a government, is necessarily apolitical. Not surprisingly, we find caveats in this world of law, lawyers, and politics. In this instance, we must be mindful that the ideological assertion that lawyers are apolitical and necessary is not written in stone.14 Indeed, the measure of a fiction rests in its ability to respond in accordance with chang- ing times and attitudes. Lacking this flexibility, the distance between real- ity and fiction becomes too great and the fiction collapses. For the attorney general, sustaining the fiction requires avoiding, as much as possible, public behaviour demonstrating or suggesting the confluence of law and politics. This is orchestrated by the deft assertion that the attorney general merely provides the government with a selection of legal or constitutional alternatives, but that the final decision ultimately rests with the politicians. Such adroitness veils the political considerations in determining suitable policy alternatives while affirming, for public consumption, the fictional distinction between legal and political decisions. Although this fiction has coloured the attorney general’s history since its inception, the reforms of mid-nineteenth-century British North America fundamentally reoriented the Canadian office. Administrative innovations such as filing systems that engendered an institutional memory, the notion Canadian Justice-Swainger 5/5/00 10:48 AM Page 22 22 An Apolitical Advisor of governmental possessory rights to departmental records, along with ministerial responsibility, were changes introduced in the wake of Lord Durham’s 1839 report on the Canadian political situation. The very idea of political responsibility, both inside the cabinet and to the legislature, raised concerns for the attorney general, such as whether poor legal counsel mer- ited the same consequences as poor political advice.15 The emergence of individual attorney generals as political leaders served to further muddy the waters. That it remained possible to successfully assert, after the mid- century, that the attorney general functioned as an apolitical legal advisor, even in the face of the evident political role that the office had assumed, was a masterful effort of nurturing the fiction. This effort did not pass entirely unchallenged and on at least five occasions between 1850 and 1878, the attorney general’s political character was subjected to scrutiny and public debate. Indeed, as late as 1863, it was observed that the law officers’ departments in Canada West and Canada East shouldered too much political responsibility for the other departments of state while being, on the other hand, rather loosely organized.16 Although creating the federal Department of Justice in 1868 tightened the administrative organization, the act served to mask these political responsibilities through a reassertion of the fictional attorney general, who merely tendered legal advice.

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