Friday, 27 July 2012

Justice for sale? Market values and the law

In the concluding passages of his reasons for judgment in Vilardell v.Dunham, the court hearing fees case, BC Supreme Court Justice McEwan calls in aid the American political philosopher Michael Sandel to argue that:

“the Court cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace…Some  things cannot be for sale.”

 I confess I have not yet read Professor Sandel’s latest book (What Money Can’t Buy, the Moral Limits of Markets) though I have read the article in the April 2012 issue of The Atlantic which distills the book, and contains this wonderful passage:

“The great missing debate in contemporary politics is about the role and reach of markets. Do we want a market economy, or a market society? What role should markets play in public life and personal relations? How can we decide which goods should be bought and sold, and which should be governed by nonmarket values? Where should money’s writ not run?”

I particularly like that sentence “where should money’s writ not run?”  It’s an invitation to explore an aspect of our legal system that I think needs more discussion.

Here are three examples of harm:

-          An arm broken in a car crash caused by a driver’s negligence

-          A reputation injured by the false statements of another

-          An employment terminated maliciously.

What do all three of these harms have in common?  Two things.  First, they are not, in themselves, economic harms.  Second, courts have monetized them. 

The pain and suffering of a broken arm is just that – debilitating, disabling hurt.  The loss of respect and self-esteem that follows an unjustified attack on someone’s reputation injures our dignity and sense of self-worth – it’s just harder to hold your head high when folks are publishing lies about you.  And while the loss of employment income is obviously about money, the affront that occurs when someone is fired not simply without cause, but in a manner that is intended to belittle and scorn can be deeply and enduringly stressful and traumatic.

None of this is about money, though.  It’s about other precious components of our quality of life.

But these harms have all been recognized by the courts as a basis for claiming money damages, when they are caused by a breach of legal rights.   Damages for negligence, damages for defamation, and aggravated and exemplary damages for wrongful dismissal.

I have chosen these examples deliberately because they all come from what lawyers call the common law – that is, the law made by judges.  The right to compensation for physical pain and suffering or injury to reputation, and the right to additional aggravated or exemplary damages in certain cases were not established by legislatures, or governments. They were created by courts. 

I agree with Michael Sandel when we calls us to broaden the terms of our public discourse and grapple more explicitly with competing notions of the good life. I also agree with Justice McEwan that some things cannot (or ought not to) be for sale.  But let’s be careful when we dress the courts and the law in that high-minded notion.  Because one thing the courts have done for hundreds of years is to apply and extend the values of the marketplace into the law.

Oddly enough, I’m not saying this just to hint at a latent hypocrisy in the reasoning of Justice McEwan, although his complaint about the government “selling justice” by imposing court fees is a bit hard to take, given what courts do everyday in putting a dollar figure on anguish.  I actually think it would be interesting to challenge the notion that money is the best – or even an appropriate - form of solace for the harms I have described.  Courts themselves acknowledge that money does not fully repair the hurt of non-economic harms.  But damages for these harms are awarded because… well, just because a poor substitute is better than nothing.

Of course, lawyers have a direct interest in ensuring that this practice continues, because their fees are paid from damage awards.  But although I admit I have never exhaustively researched the point, I have never seen any empirical research into how and in what way money for these kinds of harms actually makes anyone or anything any better.  This is a heretical notion to be sure, in particular given (for example)  the enormity of the on-going project of compensating Indian residential school survivors for their continuing pain and dislocation.  Psychological and economic research tells us that, above a certain threshold, more money does not buy happiness. Perhaps pain and suffering should not be for sale?  What if we were to start thinking more seriously about other forms of redress for non-economic harms?  Where should money’s writ not run?

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