Constitutional Theory and the Quebec Secession Reference

“Constitutional Theory and the Quebec Secession Reference” (2000) 13(2) Canadian Journal of Law and Jurisprudence 143-169 (with R. Howse) (reprinted in D. Dyzenhaus & A. Ripstein, eds., Law and Morality: Readings in Legal Philosophy (Toronto: University of Toronto Press, 2001) 634-71).

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From the moment that it was handed down, the judgment of the Supreme Court of Canada in the Quebec Secession Reference produced a torrent of public commentary. Remarkable as the decision is, however, and given the fundamental issues about the relationship between law and politics that it raises, the discussion in question has remained almost entirely in what we describe as the pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. Yet some of the crucial elements of the judgment beg for adequate theorization—especially the reliance on unwritten constitutional principles and the Court’s self-limitation of its judicial review function with respect to the application of the law by the political actors. The respect of citizens for the Court depends importantly on their view of it as a forum of principle and of reason. Indeed, absent such a belief, it is doubtful that the judgment of the Court could play any role whatever in restraining or informing political behavior in the circumstances of the secession, where hateful passion and prejudice are likely to be running at their highest, and the potential “end game” nature of the situation removes many of the usual pragmatic constraints on the degeneration of political action into force and fraud. Thus, even from a pragmatic perspective dominated by a concern with political effects, the question of the legitimacy of the Court ’s decision deserves serious attention. And this question, especially given the apparent novelty and anomaly of some of the Court’s holdings in this case, can only be answered through an excursion into constitutional theory.