Values

It might be surprising to some that a word like “values” would have a place in a legal dictionary or encyclopedia. We do not typically think of “values” as a legal word or term of art. Perhaps more importantly, however, we simply do not think of “values” at all: it is one of the words we rely on enormously in our everyday and specialized discourses—including legal—but take completely for granted, not giving it a second thought. We do this despite its prominence in legal language games (and even formal legal instruments), and despite its close ties to our specific ways of imagining and practicing rights adjudication and judgment more generally. “Values” is our “groundword” of ethics, designating what’s important to us, what we hold dear—what, in short, allows us to evaluate. (The South African constitution, for example, widely hailed as one of the world’s most progressive constitutions, accords values a place of prominence not only in its preamble, but also in its “Founding Provisions” and “Bill of Rights.”) However, this use of “values” is a recent phenomenon, both in law and more generally. The rise of “values” signifies the transformation of the good, what is worthy of being desired, into something we pose for ourselves, and is an appropriate word for the fate of the good in an age of positive law. Like the word “culture,” the word “value” gained a distinctive use in the plural only recently, in the late nineteenth century. Until then, there were not different cultures, just more or less cultured human beings. Similarly, until then, there were not different values, just different things with more or less value. It was impossible to speak of “my values” as opposed to “your values.” According to some authors, such as Edward G. Andrew, values-talk is a product of the split of philosophy and economics. Paradoxically, this split led philosophers—who were now more ignorant of economics—to write of the good life using the language of values, all the while excluding economics from the heart of their inquiries. This split came along with a subjectivist value theory in which the figure of the consumer replaced that of the producer. Moreover, as argued by Andrew, the rise of values is tied to a “subjectivist flight from economics to aesthetics.” To this day, the rise of values is, following Nietzsche, bound up with the problem of nihilism: nothing is (intrinsically worthy). Things do not have value; rather, we evaluate things. In a world of values, intrinsic value is an oxymoron, an impossibility. “Values” likely took some time in making its way into legal discourse. For example, the language of values is a relative latecomer to the judgments of the Supreme Court of Canada and other Canadian courts. The Supreme Court has, for a long time, referred to value as a property or characteristic of, for example, witnesses or testimony, or goods, or even electrical current, but it is only in the 1960s and 1970s that values—i.e. the values we have, and with or through which, presumably, we evaluate—begin (but only begin) to find their way into Supreme Court judgments. And it is only in the 1980s, with the Canadian Charter of Rights and Freedoms, that values-talk truly explodes onto the judicial scene. (Not only is values-talk a newcomer to the judicial scene but the rise of some other significant keywords of contemporary Charter adjudication largely tracks that of values.) Paradoxically, the Charter—a document ostensibly entrenching fundamental rights and freedoms—was translated into a values-document from its birth. As opposed to the jurisprudence related to the American Bill …