Ivan Rand's Ancient Constitutionalism

Abstract

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form of customary, or “ancient” constitutionalism, derived from, and very much akin to, the kind of ideas advanced by Sir Edward Coke and other early English common lawyers. My point will not be that Rand’s thinking was mired in centuries past, but that his knowledge of, and appeal to, these ideas, which are important precursors to modern notions of fundamental law, explain many inconsistencies and controversies apparent in his work. I also offer some explanation for why these ideas have been ignored or neglected by critics and scholars of his work.

Keywords: Ivan Rand, Canadian legal history, constitutional law, ancient constitutionalism, Supreme Court of Canada, legal philosophy, implied bill of rights