Constitutional Theory and The Quebec Secession Reference

Canadian Journal of Law and Jurisprudence 13 (2):143-169 (2000)
  Copy   BIBTEX

Abstract

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a 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. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 91,219

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

The Migrating Spirit of the Secession Reference in Southeastern Europe.Zoran Oklopcic - 2011 - Canadian Journal of Law and Jurisprudence 24 (2):347-376.
Toward a Proceduralist Theory of Secession.Daniel Weinstock - 2000 - Canadian Journal of Law and Jurisprudence 13 (2):251-262.
The Problems of Correction of the Official Constitutional Doctrine.Egidijus Jarašiūnas - 2009 - Jurisprudencija: Mokslo darbu žurnalas 115 (1):39-70.
International law and morality in the theory of secession.David Copp - 1998 - The Journal of Ethics 2 (3):219-245.
On theories of secession: minorities, majorities and the multinational state.Josep Costa - 2003 - Critical Review of International Social and Political Philosophy 6 (2):63-90.

Analytics

Added to PP
2015-01-22

Downloads
7 (#1,323,891)

6 months
5 (#565,734)

Historical graph of downloads
How can I increase my downloads?