“Man is born free, but everywhere he is in chains.” Jean-Jacques Rousseau
The law chains people, delineating appropriate behaviour and sanctioning bad behaviour. However, the law is only as effective as it is legitimate in the eyes of the people. An important way that the law maintains its legitimacy is through reinforcing the common wisdom. Because the common wisdom is always on the move, so is the law. Twisting and turning to the times.
“The law begins to get into trouble if it strays too far from common wisdom; it can survive and command compliance only if it retains more than a nodding acquaintance with popular values.” – Allan Hutchinson, Is Eating People Wrong
The law in Canada consists mainly of the: Constitution, unwritten constitutional conventions, legislation, and the common law. The common law comes from cases decided by judges. The reasons given by the judges in their decisions amount to the law. Every now and then, some decisions gain legendary status.
Great cases earn their celebrity status in the legal chatrooms and popular opinion. However, Hutchinson asserts that these legendary decisions like Morgentaler are merely lighthouses. They simply guide the way, and once the principles underlying the decision become outdated, they lose their popular status. “…Consigned to the rubbish [bin] of errors, mistakes, and anomalies. Depending on the audience, today’s star is yesterday’s wannabe or tomorrow’s has-been.” Celebrity is harsh. But the legitimacy of the chains that restrict us all demand a ruthless pruning and reinterpretation of the leading cases.