Roslyn KuninDealing with difficult fiscal constraints and respecting our laws requires more than just the rule of law. It takes negotiation and a keen sense of economic reality.

Our democracy is thankfully governed by the rule of law. To deal with things we really don’t want, like murder or robbery, we can pass laws. Laws don’t eliminate evil, but they generally reduce and control it. Laws against murder and theft, morally in religious traditions and legally through court systems, have been in place for millennia.

Since laws, like human beings, are not always perfect, in free countries we also have a court system to deal with those who break the laws, and to provide interpretation and application of the law.

However, there are limits on what the legal system and the court system can do.

Much as we might like to, we can’t pass a law against the common cold. No law can make cold bugs disappear.

Closer to reality are cases where courts pass judgments with financial implications. Perhaps a debt is deemed to be owed or damages are awarded. Should the debtors or the damagers not have the money, the plaintiffs can’t collect what they are owed no matter what the court decrees. Putting the debtor in jail won’t make the cash appear. It will, however, incur incarceration costs for taxpayers.

So economic realities put limits on what our justice system – and even our health system – can do.

No country in the world has a more open, honest court system than Canada. New immigrants are often incredulous to learn that our judges are not on the take. But we still must be able to pay lawyers if we want the legal system to function on our behalf.

That economic reality is beginning to be addressed. Alternate dispute mechanisms are being put in place for those who can’t or choose not to pay what can be very high costs for their day in court. Bar associations in Canada are looking at unbundling legal services so high fees aren’t paid for things that clients could get done more cheaply or even do themselves.

Health care is another area where economic reality bites. Every Canadian is entitled to care, provided by government at no direct cost to the patient. But the law doesn’t say where the billions of dollars will come from to build and operate enough capacity to provide healthcare in a timely fashion. Hence wait lists. And, as those in Quebec have learned, having a court say that undue waits defy the law has not eliminated those waits.

Rather than just passing laws or making judgments that we don’t have the economic resources to fulfil, Canadians and those they elect have a much more difficult task. We need to consider economic and legal realities and see what we can afford. If we can’t afford to provide everyone with prompt healthcare or expensive drugs, can we invest in much less costly illness prevention? Can we educate people and businesses to minimize scams and unpaid debts?

Even though our legal system isn’t omnipotent, it’s still a vital mainframe of our free society. We can’t ignore or disavow contracts on the grounds that we can’t afford them. Ask the B.C. Teachers Union (BCTU). Provincial legislation nullified terms in their contract with the province, in part likely to pare the cost of that contract. However, the Supreme Court of Canada has ruled the original 2002 contract language should be restored – and that will come at a very high cost to the B.C. government and its taxpayers.

The mistake here was not that the contract was too rich for the province. The mistake was not respecting the law under which the contract was written and signed.

Amending the contract to deal with hard fiscal constraints must take place at a bargaining table. That’s where we can deal with economic realities and maintain respect for our laws.

Troy Media columnist Roslyn Kunin is a consulting economist and speaker. 

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