Monday, October 03, 2005

The New

Hopefully we will be posting more consistently now that the fall season is here: a new session of parliament, a new session of the Supreme Court, and for some contributors of this blog, a new life parter. As for me, I now have a bit of a life back, since I have just written my LSAT.

Today, I want to post about two brief things:

  1. An excellent post (click here for it) at the Legal Theory blog on the Veil of Ignorance.
    The basic idea is that principles of justice for the basic structure of society are to be chosen by representative parties behind a veil of ignorance....

    Whereas classical social contract theory asks, "What would be chosen in a state of nature?," Rawls asks, "What would be chosen in the original position from behind the veil of ignorance?"
    The original position is analogous, but not precisely the same as, the state of nature. The idea behind the original position is to relate it to the Veil of Ignorance, where fairness and justice is determine ex ante.

  2. There is an important ruling by the Supreme Court out on whether BC has the right to sue tobacco companies. Here are some of my thoughts on the matter:
    • BC is attempting to collect $10 billion from big tobacco companies over the past 50 years on having to deal with health related costs related to smoking. Over the past 35 years, BC has collected over $25 billion in taxes from tobacco sales. Point: it doesn't seem consistent to tax a company to disuade people from buying a potentially dangerous product and to cover health costs AND try to sue them in civil court for additional damages.
    • The legal reasoning the Supreme Court used was, in my opinion, questionable. The reasoning was an interesting exploration on the Rule of Law. The substantive version of the RoL was dismissed by the court; so was the formal conception. This, to me, is boggling.

      Take retroactivity, for example. The Court argued that legislatures can produce retroactive legislation: a concept in fierce opposition to nearly every conception of the Rule of Law ever elucidated. Yet, it manages to do so with incredible reasoning:

      ...developments in the common law have always had retroactive and retrospective effect.
      The Court approvingly cites Donoghue v Stevenson [1932], a case decided by the British House of Lords. Is the Supreme Court correct in doing so?

      NO. The debate in this case is whether the government can punish Tobacco companies for the past 50 years, when it allowed them to sell products that the government knew harmed people's health.

      However, I would assert that the Rule of Law requires that the law must be prospective and can't be retroactive, as the legislatures assert, and still be in compliance with the rule of law. But don't take it from me. Take it from the English sage Blackstone: "[a]ll laws should be...made to commence in futuro, and be notified before their commencement." This rule undoubtedly limits the power of the legislature. Although the Court says that retroactive laws are "sometimes perceived as unjust" it does nothing substantial to quiet such concerns. The acknowledgement amounts to being nothing more than the concept of retroactivity being debatable. It does nothing to attack the strongest arguments against retroactivity: that retroactive laws are unjust because our history/convention, common sense, the Bill of Rights, the Charter, and International agreements consider it unjust to punish someone for acting legally in the past.

    The Supreme Court decision effectively has now effectively said that the Rule of Law provides no protection against the government punishing its citizens or legal entities for actions that are entirely legal in the present. For all I know, this blog posting can legally be construed as being illegal by future legislatures on the basis that laws can be retroactively applied (not withstanding the issues involving the supposed right of freedom of speech).
I strongly dislike smoking. I don't sympathize with the tobacco companies one bit. However, I completely disagree with several aspects of the reasoning behind the Supreme Court ruling.