Impoverishment of the Law by the Law: A Critique of the Attorney General's Vision of the Rule of Law and the Federal Principle
Constitutional Forum, Vol. 10, pp. 1-8, 1998
8 Pages Posted: 6 Sep 2011
Date Written: September 6, 1998
This brief article is devoted to a critique of the arguments put forward by the Attorney General of Canada in connection with the Reference concerning certain questions relating to the secession of Quebec heard by the Supreme Court of Canada in 1998. This critique is not presented from a plainly positivist standpoint. On the contrary, the author examines in particular (1) how the approach taken by the Attorney General impoverished the legal concepts of the rule of law and federalism, both of which were, however, central to her submission; and, in a more general way, (2) how the excessively detailed analysis of constitutional texts contributed to the impoverishment of the symbolic function of the law, however essential that dimension may be to its legitimacy. The author's criticism takes into account the reasons for judgement that were delivered by the Supreme Court of Canada in the Reference.
Keywords: Canada, constitutional law, secession, Quebec, rule of law, federalism, reference, constitutionalism
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