Roach K. A Dialogue About Principle and a Principled Dialogue: Justice Iacobucci’s Substantive Approach to Dialogue

Подождите немного. Документ загружается.

A Dialogue About Principle and a Principled Dialogue: Justice

Iacobucci’s Substantive Approach to Dialogue

Roach, Kent.

University of Toronto Law Journal, Volume 57, Number 2, Spring

2007, pp. 449-477 (Article)

Published by University of Toronto Press

For additional information about this article

Access Provided by York University at 10/15/11 3:05PM GMT

http://muse.jhu.edu/journals/tlj/summary/v057/57.2roach.html

Kent Roach

A DIALOGUE ABOUT PRINCIPLE AND A

PRINCIPLED DIALOGUE: JUSTICE

IACOBUCCI’S SUBSTANTIVE APPROACH TO

DIALOGUE

I Introduction

Frank Iacobucci played the lead role in introducing the metaphor of judi-

cial review as a form of dialogue between courts and legislatures into

Canadian constitutional law.

He discussed dialogue in reference to inter-

preting both rights and limitations under the Canadian Charter of Rights

and Freedoms,

but also in relation to devising remedies under the

Charter

and using the s. 33 override.

Justice Iacobucci’s interest in dia-

logue was not, however, limited to thes e many different aspects of Charter

adjudication. He recognized the importance of dialogue between courts

and legislatures with respect to the development of the common law

and

in the interpretation of statutes.

One of the strengths of the dialogue

metaphor is that it can facilitate thinking about the respective roles of

courts and legislatures throughout much of the law.

It also travels well

and is increasingly the focus of attention in many parts of the world

that seek to build on the traditions of common law, or what some call

Commonwealth constitutionalism.

The dialogue metaphor illuminates

* Faculty of Law, University of Toronto.

1 Christopher Manfredi, ‘The Life of a Metaphor: Dialogue in the Supreme Court,

1998–2003’ (2004) 23 Supreme Court L.Rev. (2d) 105 at 112 [Manfredi, ‘Metaphor’].

2 Mv.H, [1999] 2 S.C.R. 3.; R. v. Hall, [2002] 3 S.C.R. 309; Vriend v. Alberta, [1998] 1

S.C.R. 493.

3 Little Sisters Book Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 [Little

Sisters]; Doucet Boudreau v. Nova Scotia, [2003] 3 S.C.R. 3.

4 Vriend, supra note 2.

5 R. v. Mills, [1999] 3 S.C.R. 668.

6 Bell ExpressVu Partnership v. Rex, [2002] 2 S.C.R. 559 [Bell ExpressVu].

7 For my arguments that the dialogue metaphor case can assist in understanding some

forms of common and international law see Kent Roach, ‘Common Law Bills of

Rights as Dialogue between Courts and Legislatures’ (2005) 55 U.T.L.J. 733 [Roach,

‘Bills of Rights’]; Kent Roach, ‘Constitutional, Remedial and International Dialogues

about Rights: The Canadian Experience’ (2005) 40 Tex.Int’l L.J. 537.

8 Stephen Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49

Am.J.Comp.L. 7071; Aharon Barak, ‘A Judge on Judging: The Role of a Supreme Court

in a Democracy’ (2002) 116 Harv.L.Rev. 16 at 133–6 [Barak, ‘Judge on Judging’];

(2007), 57

UNIVERSITY OF TORONTO LAW JOURNAL

the relation between courts and legislatures in any common law system in

which legislatures can reply to the rights-protection decisions of courts

and under any bill of rights that leaves space for legislatures to justify

limits or derogations from rights.

At the same time, the metaphor of judicial review as a form of dialogue

between courts and legislatures is controversial. There have been two

main forms of criticism. One is that actual dialogue does not, in fact,

occur very often between courts and legislatures; instead, what courts

and commentators call a dialogue is more often a monologue.

second form of criticism is that the dialogue metaphor does not justify

the role that courts play in the dialogue.

In this essay, I will deal only

with this second critique, arguing that in Justice Iacobucci’s hands,

dialogue had a substantive and principled core.

Justice Iacobucci engaged in a dialogue of principle in the sense that

he brought questions of principle, rights, and the protection of vulner-

able minorities to bear on his development of the common law, the

interpretation of statutes, and his Charter jurisprudence while recogniz-

ing that the legislature also retains the option of justifying limits or

even overriding such principles altogether. In this sense, much of the

substantive core of institutional dialogue about the place of principle in

governance can be found in the important work of Alexander Bickel. I

will also argue that, for Justice Iacobucci, judicial review was part of a prin-

cipled dialogue in the sense that the dialogue should be conducted in a

fair and open manner that respects the distinct roles and abilities of

Aharon Barak, The Judge in a Democracy (Princeton, NJ: Princeton University Press,

2006) at 236–40 [Barak, Judge]; T.R.S. Allan, ‘Constitutional Dialogue and the

Justiﬁcation for Judicial Review’ (2003) 23 Oxford J.Legal Stud. 563; Richard

Clayton, ‘Judicial Deference and “Democratic Dialogue”: The Legitimacy of Judicial

Intervention under the Human Rights Act’ [2004] Pub.L. 33; Leighton McDonald,

‘Rights, “Dialogue” and Democratic Objections to Judicial Review’ (2004) 32

Fed.L.Rev. 1; Tom Hickman, ‘Constitutional Dialogue, Constitutional Theories and

the Human Rights Act, 1998’ [2005] Pub.L. 306; Christine Bateup, ‘The Dialogic

Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue’

(2006) 71 Brooklyn L.Rev. 1109. For an excellent review of the Canadian literature

on dialogue see Peter Hogg, Allison Bushell Thornton, & Wade Wright, ‘Charter

Dialogue Revisited’ (2007) 45 Osgoode Hall L.J. [forthcoming] [Hogg et al.,

‘Dialogue Revisited’].

9 Mark Tushnet, ‘Judicial Activism or Restraint in a Section 33 World’ (2003) 53 U.T.L.J.

89; Christopher Manfredi & James Kelly, ‘Six Degrees of Dialogue’ (1999) 37 Osgoode

Hall L.J. 513.

10 Andrew Petter, ‘Twenty Years of Charter Justiﬁcation: From Liberalism to Dubious

Dialogue’ (2003) 52 U.N.B.L.J. 187; Keith Ewing, ‘Human Rights’ in Peter Cane &

Mark Tushnet, eds., The Oxford Handbook of Legal Studies (Oxford: Oxford University

Press, 2003) 306; Alan Hutchinson, ‘Judges and Politics: An Essay from Canada’

(2005) 23 Legal Stud. 464; Luc Tremblay, ‘The Legitimacy of Judicial Review: The

Limits of Dialogue Between Courts and Legislatures’ (2005) 3 Int’l J.Const.L. 617.

450 UNIVERSITY OF TORONTO LAW JOURNAL

courts, legislatures, and the executive. In this sense, much of the substan-

tive core of principled dialogue can be found in the important work of

Lon Fuller.

II The intellectual and substantive origins of dialogue theory

Justice Iacobucci’s ﬁrst explicit discussion of dialogue between courts and

legislatures was in Vriend v. Alberta,

where he prefaced his decision to

‘read in’ sexual orientation as a prohibited ground of discrimination in

Alberta’s human-rights code with a general discussion of the relationship

between courts and legislatures under the Charter. In that discussion he

cited the famous article on dialogue written by Peter Hogg and Allison

Bushell

a year earlier, stating that

the Charter has given rise to a more dynamic interaction among the branches of

governance. This interaction has been aptly described as a ‘dialogue’ by some

(see e.g. Hogg and Bushell, supra). In reviewing legislative enactments and

executive decisions to ensure constitutional validity, the courts speak to the leg-

islative and executive branches. As has been pointed out, most of the legislation

held not to pass constitutional muster has been followed by new legislation

designed to accomplish similar objectives (see Hogg and Bushell, supra,at

p. 82). By doing this, the legislature responds to the courts; hence the dialogue

among the branches.

To my mind, a great value of judicial review and this dialogue among the

branches is that each of the branches is made somewhat accountable to the

other. The work of the legislature is reviewed by the courts and the work of

the court in its decisions can be reacted to by the legislature in the passing of

new legislation (or even overarching laws under s. 33 of the Charter). This dialo-

gue between and accountability of each of the branches have the effect of enhan-

cing the democratic process, not denying it.

In his discussion in Vriend, Justice Iacobucci recognized a need to

respond to what Bickel had described as the ‘counter-majoritarian difﬁ-

culty’ of unelected judges’ striking down democratically enacted laws.

In Vriend, Justice Iacobucci described Bickel’s The Least Dangerous

Branch: The Supreme Court at the Bar of Politics as an ‘outstanding work.’

Bickel developed a nuanced and sophisticated theory of judicial review

under the American Bill of Rights as a form of dialogue between the

court and both legislatures and society. Bickel wrote about how many

11 Supra note 2.

12 Peter Hogg & Allison Bushell, ‘The Charter Dialogue Between Courts and Legislatures’

(1997) 35 Osgoode Hall L.J. 75.

13 Vriend, supra note 2 at paras. 138–9.

14 Ibid. at para. 133.

A DIALOGUE ABOUT PRINCIPLE AND A PRINCIPLED DIALOGUE

451

Supreme Court decisions ‘are the beginnings of conversations between

the Court and the people and their representatives’

and about how

the Court ‘interacts with other institutions, with whom it is engaged in

an endlessl y renewed education conversation .. . And it is a conversation,

not a monologue.’

Bickel was well aware that, under the American Bill of

Rights, ‘the Court has the edge’

in the dialogue, but much of his work

encouraged the court to minimize full-blown constitutional decisions and

instead to use a variety of sub-constitutional devices, such as presumptions

of statutory intent and the creative use of delay, to engage ‘in a Socratic

colloquy with the other institutions of government and with society as a

whole concerning the necessity for this or that measure, for this or that

compromise.’

In other words, Bickel struggled, within the conﬁnes of

the American Bill of Rights, to ﬁnd functional equivalents to ss. 1 and

33 of the Canadian Charter of Rights and suspended remedies. Bickel

is a founder of a modern

theory of dialogue between courts and legisla-

tures, and it is signiﬁcant that Justice Iacobucci cited Bickel in introdu-

cing the theory of dialogue to Charter jurisprudence. Bickel also had a

substantive approach to judicial review in that he argued that courts

can, in appropriate cases, act on principles of fairness and non-discrimi-

nation that the executive and legislatures are inclined to neglect. Bickel

defended Brown v. Board of Education, but he also recognized the ability

of legislatures and society to resist that just decision.

Building on the work of Bickel, Guido Calabresi argued in 1991 that

the Canadian Charter is ‘Bickellian’ in its promotion of dialogue

between courts and legislatures.

Calabresi’s obs ervations were part of a

larger argum ent that American constitutionalism had been dominated

15 Alexander Bickel, The Supreme Court and the Idea of Progress (New Haven, CT: Yale

University Press, 1970) at 91 [Bickel, Progress].

16 Alexander Bickel, The Morality of Consent (New Haven, CT: Yale University Press, 1974)

at 111.

17 Bickel, Progress , supra note 15 at 91.

18 Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics,2d

ed. (New Haven, CT: Yale University Press, 1985) at 70 –1 [Bickel, Least Dangerous

Branch].

19 Before Bickel, Thomas Jefferson, James Madison, and Andrew Jackson all appealed to

the strong dialogic idea that the elected branches of government could act on their

interpretations even when they departed from the Court’s interpretation. For a

contemporary defence of this form of coordinate construction see Mark Tushnet,

Taking the Constitution Away from the Courts (Princeton, NJ: Princeton University Press,

1999).

20 Guido Calabresi, ‘Foreword: Antidiscrimination and Constitutional Accountability

(What the Bork Brennan Debate Avoids)’ (1991) 105 Harv.L.Rev. 80 at 124. Cass

Sunstein is another scholar who, inspired by Bickel, has argued for constitutionalism

minimalism as a device to allow increased dialogue between courts and legislatures

under the American Bill of Rights. See Cass Sunstein, One Case at a Time

(Cambridge, MA: Harvard University Press, 1999).

452 UNIVERSITY OF TORONTO LAW JOURNAL

by the extremes of judicial or legi slative supremacy. Inspired by Bickel, as

well as by Paul Weiler’s defence of the override as an alternative to legis-

lative or judicial supremacy,

Calabresi argued that there should be

increased interest in middle-ground positions in which courts require leg-

islatures to justify and, if necessary, reconsider their policy objectives in

light of concerns about the effects of legislation on vulnerable minorities

and legal principles. Judicial review, for Calabresi, should be focused on

protecting ‘society’s outcasts’ and on ensuring that legislatures do not

hide but, rather, justify their attempts to limit a broader range of rig hts.

Calabresi’s concerns about anti-discrimination and constitutional

accountability well capture the essence of Justice Iacobucci’s comments

in Vriend.

Both Bickel’s and Calabresi’s writings on judicial review emerged from

the legal process tradition of legal scholarship. This tradition is some-

times associated with a simp le and stark separation of powers between

courts and legislatures and a positivistic view of law.

Writing in the late

1950s, and without regard to developments such as Brown v. Board of

Education, Henry Hart and Albert Sacks somewhat complacently argued

for a principle of institutional settlement whereby ‘a decision which is

the duly arrived at result of a duly established procedure’ ought ‘to be

accepted as binding upon the whole society unless and until it has

been duly changed.’

In the 1960s and 1970s, however, the legal

process evolved as scholars began to ask questions about whether all

groups in society were included in the ‘duly established procedures.’

Some of the most important and enduring work that emerged from

the legal process era was Bickel’s theory of judicial review, Lon Fuller’s

theory of the ‘internal morality’ of law

and John Hart Ely’s theory

that robust judicial protection of minorities can be justiﬁed on process

grounds.

Both Bickel and Fuller contemplated a principled dialogue that

rejected the positivist elements of the legal process tradition, and both

saw courts as having an important and distinct role in democratic govern-

ance. For Bickel, the courts must fulﬁl a function that ‘differs from the

21 Paul Weiler, ‘Rights and Judges in a Democracy’ (1984) 18 U.Mich.J.L.Ref. 51.

22 See William Eskridge & Philip Frickey, ‘An Historical and Critical Introduction to the

Legal Process’ in Henry Hart & Albert Sacks, The Legal Process (New York: Foundation

Press, 1994) li. See also Kent Roach, ‘What Is New and Old about the Legal Process?’

(1997) 47 U.T.L.J. 363.

23 Henry Hart & Albert Sacks, The Legal Process (New York: Foundation Press, 1994) at 5.

24 Lon Fuller, The Morality of Law, rev. ed. (New Haven, CT: Yale University Press, 1969).

For a recognition of the relevance of Fuller’s theory to dialogue between courts and

legislatures see Mary Liston, ‘Willis, “Theology” and Rule of Law’ (2005) 55 U.T.L.J.

767 at 785.

25 John Hart Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980).

A DIALOGUE ABOUT PRINCIPLE AND A PRINCIPLED DIALOGUE

453

legislative and executive functions; which is peculiarly suited to the

capabilities of the courts; which will not likely be performed elsewhere

if the courts do not assume it.’

Courts would participate in a

dialogue by bringing points of principle to the attention of governments

and the people. Bickel believed that no good society can live without prin-

ciples but also that no functioning society can function solely on the basis

of principle. The dialogue between courts and the elected branches of

government is the means to reconcile these tensions.

Fuller’s approach to law differed from Bickel’s in extending to all law and

not only to the role of courts but also to that of the executive and the legis-

lature. At the same time, however, the idea of dialogue between courts and

other branches of government, and between individuals and courts, is

implicit in Fuller’s understanding of law as a collective collaborative enter-

prise. In other words, Fuller stressed not so much the dialogue about prin-

ciple presented by Bickel but, rather, the idea of a principled dialogue that

would occur between individuals, courts, bureaucrats, and the legislature. In

the judicial arena, ‘principled dialogue’ meant that the parties are guaran-

teed a right to participate and address arguments to the judge in a way not

guaranteed in the political arena.

The participation of the parties increases

the legitimacy of judicial decisions. Fuller’s ideas about principled dialogue

also apply to legislatures through his argument that legislatures, no less than

courts, should be inﬂuenced by the internal morality of law. This means that

legislatures should rule through public, prospective, understandable, and

general rules. A legislature that fails to rule in this way fails to make law.

Finally, Fuller also extended his theory of law to the executive, stressing

that there should be congruence between law and the administration of

law by the executiv e.

Fuller deﬁned law as an ongoing ‘enterprise’ and a ‘complex,

collaborative effort’

that requires participation and nurturing from

judges, legislators, bureaucrats, and citizens, as opposed to a positivistic

‘one-way projection of authority.’

For Fuller, law and democracy was a

neverending dialogue that will best be conducted if citizens, legislatures,

administrators, and courts all respect basic procedures of fairness in their

interactions, in other words, if all involved in democratic governance

conduct a principled form of dialogue.

Some scholars inspired by

Fuller have articulated the idea of a culture of justiﬁcation of all public

26 Bickel, Least Dangerous Branch, supra note 18 at 24.

27 Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Har v.L.Rev. 353.

28 Fuller, Morality of Law, supra note 24 at 39 et seq.

29 Ibid. at 134.

30 Ibid. at 192.

31 On the connection between Fuller’s view of law and the rule of law see T.R.S. Allan,

Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University

Press, 2001) at c. 3.

454 UNIVERSITY OF TORONTO LAW JOURNAL

power

that is consistent with the idea of dialogue in which individu als

can require the state to justify limits on rights in terms of both legality

and proportionality.

Although a full intellectual biography must be left to others, it is likely

that Justice Iacobucci was inﬂuenced by legal process thought and

perhaps even by Bickel and Fuller. He was educated in law in the early

1960s, during the height of the legal process inﬂuence on scholarship.

Although he did not attend Harvard Law School, which was the centre

of legal process, his wife Nancy did, and she studied with both Hart

and Sacks. Iacobucci’s academic work in corporate law was concerned

with legal process questions such as the basic structures of cooperation

and legality in complex organizations.

His subsequent experience as a

very senior administrator, ﬁrst at the University of Toronto and later in

the federal government, made him keenly aware of the complexities of

governance, the impo rtant role of fair process, and the reality of back-

and-forth dialogue in any process of democratic governance. I would

also suspect that, as a ﬁrst-generation Canadian, Justice Iacobucci was sen-

sitive to the importance of process and of more inclusive participation for

those who are not normally in power. He also had an aspirational view of

law as goals to be pursued as opposed to rules to be obeyed. By the time

he became a judge, he already had extensive experience in both the insti-

tutional and the human sides of governance.

This short discussion of the intellectual and substantive origins of dialo-

gue theory has been designed to illustrate that dialogue theory did not

emerge from nowhere and that it is not simply a positive study of the inter-

actions between courts and legislatures. Rather, dialogue theory emerges

from a legal process tradition that deﬁned a distinct role for the indepen-

dent judiciary, with its commitment to fair adjudication, but situated that

role in an ongoing collaborative enterprise of democratic governance

involving legislatures, executives, and the people. Those who believe that

dialogue between courts and legislatures is simply a debatable empirical

proposition, or that it is devoid of any justiﬁcation for the judicial role,

should more carefully examine its intellectual origins. Dialogue theorists

starting with Bickel and Fuller attempt to situate the judicial role in the

context of both democratically enacted governments and the endless

democratic quest to establish and re-establish the legitimacy of state

power and the broadest consent of the governed.

32 David Dyzenhaus, ‘Law as Justiﬁcation: Etienne Mureinik’s Conception of Legal

Culture’ (1998) 14 S.Afr.J.Human Right 11. For an argument inspired by Fuller that

the rule of law binds the executive and the legislature as much as the courts, see

David Dyzenhaus, The Constitution of Law (Cambridge: Cambridge University Press,

2006).

33 Frank Iacobucci, ‘The Business Corporations Act’ (1971) 21 U.T.L.J. 416 & 643.

A DIALOGUE ABOUT PRINCIPLE AND A PRINCIPLED DIALOGUE

455

III Dialogue and the common law

Dialogue between courts and legislatures is not a product of the Charter.

It builds on longstanding traditions of development of the common law

and judicial interpretation of statutes. Justice Iacobucci recognized that

Parliament clearly can amend the common law when he stated in 1999

that ‘[i]f the common law were to be taken as establishing the only poss-

ible constitutional regime, then we could not speak of a dialogue with the

legislature. Such a situation could only undermine rather than enhance

democracy. Legislative change and the development of the common

law are different.’

Courts, in developing the common law, are commonly

responding to legislative inertia, which can be seen as a tacit delegation of

authority to the judiciary. This delegation of authority is revocable,

however, because the legislature can always reclaim the ﬁeld through

the enactment of clear legislation. To my mind, this suggests that

courts can be quite creative when developing the common law. Indeed,

much of administrative law, evidence law, and criminal law have been

built on the judicial creativity that thrives in the absence of legislative

direction. If the judges become too creative for the legislature’s liking,

the legislature can enact reply legislation; reply legislation, however,

cannot simply undo common law. As Fuller reminds us, legislation

should, except in extraordinary circumstances, be prospective and

general, an d this will mean that the Court’s application of the common

law will govern already-decided cases. For Justice Iacobucci, this suggested

that courts should be quite cautious in developing the common law.

Justice Iacobucci considered the judicial role in developing the

common law in one of his ﬁrst cases he decided on the Supreme

Court. The case involved the question of whether the common law rule

that a spouse is not a compellable witness should continue to apply in

a case where the spouse was irreconcilably separated from the accused.

Justice Iacobucci held for the Court that the common law rule should

evolve in light of social and legal acceptance of divorce and the values

of the Charter. He wrote,

To give paramountcy to the marriage bond over the right of individual choice in

cases of irreconcilable separation may have been appropriate in Lord Coke’s time,

when a woman’s legal personality was incorporated in that of her husband on mar-

riage, but it is inappropriate in the age of the Charter. As Wilson J. put it in

R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 166, the Charter requires that individual

choices not be restricted unnecessarily.

34 Mills, supra note 5 at paras. 57, 60.

35 R. v. Salituro, [1991] 3 S.C.R. 654 at 674.

456 UNIVERSITY OF TORONTO LAW JOURNAL

In so holding, Justice Iacobucci placed the development of the common

law into the institutional context of dialogue between the courts and legisla-

tures. He carefully considered, but ultimately did not accept, the argument

that Parliament had implicitly afﬁrmed the old common law rule of spousal

incompetence by making only limited exceptions to that rule in relation to

certain violent and sexual crimes. This decision recognized the special role

of courts in advancing universal principles, in contrast to legislatures, which

typically respond to speciﬁc political pressures such as demands to reform

laws concerning spousal abuse and sexual assault. He appealed to general

principles of free choice and autonomy to conclude that the separated

spouse should be competent to testify in her ex-husband’s forgery trial,

even though forgery was not a crime that had commanded speciﬁc attention

from the legislature. Consistent with the dialogue model, the legislature

could always reply with new legislation afﬁrming the old common law rule

of spousal incompetence. The fact that this was not done, however, should

be seen as evidence that the Court’s decision was acceptable to the legisla-

ture and to society, given our evolving social and legal values. When the

Supreme Court develops the common law, it is on trial because the legisla-

ture can reject the premises of its ruling.

Although Justice Iacobucci changed the common law in Salituro,he

struck a note of caution about how far courts should be prepared to

use the common law to achieve law reform. He deﬁned the judicial

role as making ‘incremental changes to the common law to bring legal

rules into step with a changing society.’

He also argued that

the court has before it a single case; major changes in the law should be predi-

cated on a wider view of how the rule will operate in the broad generality of cases.

Moreover, the court may not be in a position to appreciate fully the economic

and policy issues underlying the choice it is asked to make. ... Finally, and

perhaps most importantly, there is the long-established principle that in a consti-

tutional democracy it is the legislature, as the elected branch of government,

which should assume the major responsibility for law reform.

These statements follow Fuller’s warnings that the bipolar structure of

adjudication makes courts less adept at deciding multifaceted and poly-

centric issues, especially those concerning the distribution of scarce

resources.

They also reﬂect an appreciation of what Bickel recognized

as the counter-majoritarian difﬁculty inherent in unelected courts’

making law in a democracy.

Although Justice Iacobucci’s note of caution about the development of

the common law in Salituro reﬂects aspects of legal process thought, it

36 Ibid. at 666.

37 Ibid. at 668.

38 Fuller, ‘Forms and Limits,’ supra note 27.

A DIALOGUE ABOUT PRINCIPLE AND A PRINCIPLED DIALOGUE

457