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The Role of Theory in Canadian Constitutional Law

Forthcoming in N. Des Rosiers, P. Macklem & P. Oliver, eds The Oxford Handbook of Canadian Constitutional Law (Oxford: Oxford University Press, 2017)

Oxford Legal Studies Research Paper No. 20/2017

Ottawa Faculty of Law Working Paper No. 2017-26

20 Pages Posted: 6 Mar 2017 Last revised: 18 Jul 2017

Timothy A.O. Endicott

University of Oxford - Faculty of Law

Peter C. Oliver

University of Ottawa - Common Law Section

Date Written: March 1, 2017

Abstract

Constitutional theory has been institutionalized in distinctive ways in Canada. The Constitution Act, 1867 (formerly the British North America Act, 1867) created unique opportunities and imperatives for political leaders, advocates, judges, scholars, law students and others to articulate their understanding of Confederation. And even while the country chose a parliamentary form of government very different from American republicanism, Confederation generated a set of entrenched rules defining the powers of the federal and provincial governments, which would give judges a hand in the law of the Constitution that judges had not had in the United Kingdom. Moreover, Canadian federalism generated an extraordinary statutory provision for references (i.e., requests for advisory opinions) to the Supreme Court of Canada on matters of law and fact, including (as it would turn out) matters of convention. The judges’ reasons for decision involve them in the theoretical task of articulating the basis of the Constitution. The Constitution Act, 1982 further enhanced the judges’ role as theorists of the Constitution, through their role in the interpretation and elaboration of the Charter of Rights and Freedoms. We aim to illustrate ways in which both express theorizing and inarticulate theoretical assumptions have shaped Canadian constitutional law, and we argue that good theorizing is essential for the sound development of the law and practice of the Constitution.

Keywords: Canadian Constitution, constitutional theory, parliamentary government, federalism

Suggested Citation

Endicott, Timothy A.O. and Oliver, Peter C., The Role of Theory in Canadian Constitutional Law (March 1, 2017). Forthcoming in N. Des Rosiers, P. Macklem & P. Oliver, eds The Oxford Handbook of Canadian Constitutional Law (Oxford: Oxford University Press, 2017); Oxford Legal Studies Research Paper No. 20/2017; Ottawa Faculty of Law Working Paper No. 2017-26. Available at SSRN: https://ssrn.com/abstract=2926107

Timothy Endicott (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

Peter Oliver

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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