In his latest research project, “Recovering the Good in Law,” Professor Grégoire Webber is looking at the interplay between moral philosophy and the making of law. While the idea of the “good” has long served as dialectical fodder for philosophers, he believes it also underpins how legislators make laws. 

“Governments, in formulating public policy and legislation, often premise new laws on the promotion of goods like education, health, and family,” says Webber, Canada Research Chair in Public Law and Philosophy of Law. “At the same time, under Canada’s Charter of Rights and Freedoms, judges are often reluctant to have recourse to such ideas of the good when evaluating whether legislation is justified.” 

As he explains, “When governments appeal to philosophical claims about what is good for persons, courts regularly dismiss such appeals as hypothetical, intangible, or lacking in evidentiary support. The worry – sometimes formulated, sometimes left unsaid – is that it would be illiberal for the government to justify its laws based on contested and controversial understandings of what is good for persons.” 

That is the main argument in Webber’s new project, for which he has been awarded an $85,000 Insight Grant by the federal government’s Social Sciences and Humanities Research Council (SSHRC). 

“Almost all of my SSHRC grant funds will be devoted to help train the next generation of brilliant researchers and provide them with an intellectual community so that they can pursue their thinking with others working in philosophy, political theory and law,” he says. “This summer, I have three research assistants working on the project, a JD student and two PhD students in Philosophy.”

The appeal to ideas of “the good” in evaluating legislation has evolved over the life of the Charter. Looking back to some early Charter cases, Webber points out that the Supreme Court of Canada was willing to evaluate legislative objectives by reference to what is good for persons. “For example,” he says, “in the 1983 case R. v. Edwards Books, the Court reasoned that Sunday-closing legislation pursued ‘the fulfilment offered by [leisure activities with family and friends]’ and addressed ‘the alienation of the individual from his or her closest social bonds’ in the absence of a common day of rest. Here, the Court appealed to the goods of family and friendship.”  

Over time, the Court’s approach to evaluating the objectives pursued by legislation shifted to requiring evidence of harm or a “reasonable apprehension” of harm. “This focus on what is tangible and measurable was developed alongside a general reluctance to rely on ‘social and political philosophy’ as a basis for evaluating the justification of legislative objectives,” he says. “Most recently, a Supreme Court majority held that while ‘moral philosophy doubtlessly has some role to play in the legislative sphere, it cannot readily serve as a source for a pressing and substantial objective’ under the Charter.” 

As suggest by his project title, Webber and his interdisciplinary research team will aim to recover the good in law. His goal is to produce a book that complements the arguments he pursued in The Negotiable Constitution (2009) and Legislated Rights (2018), both published by Cambridge University Press and, most recently, in Droits et droit (Thémis, 2020).

Professor Webber, along with other distinguished researchers and scholars from Queen’s University, was included as part of a major research announcement made by François-Philippe Champagne, Minister of Innovation, Science and Industry today. The federal government’s Insight Grants support research excellence in the social sciences and humanities. Funding is available to both emerging and established scholars for research initiatives.