Between Populism and Juristocracy: The Republicanism of Rainer Knopff

Abstract

Rainer Knopff’s scholarship on Canadian constitutionalism has offered some of the most trenchant criticism of the exercise of judicial review under the Charter, yet his theory has largely been misunderstood (alongside his frequent co-author F.L. Morton). This article exposes two prominent critiques of Knopff’s constitutional writings as straw man arguments and provides a republican account of his constitutional theory. The first straw man argument is that Knopff supports a majoritarian or populist conception of direct democracy. This is belied by Knopff’s embrace of representative democracy and institutions structured to encourage reflexive deliberation. The second straw man argument is that Knopff is a moral rights skeptic. Knopff’s rights skepticism is a legal skepticism about the determinacy of many rights that is merely a function of his inclusive legal positivism. The article concludes by reflecting on the republican lessons Knopff’s constitutional scholarship continues to offer, including how holding legislatures responsible for settling reasonable disagreements about legally indeterminate Charter rights might help counteract the twin threats of populism and juristocracy.

Keywords: Rainer Knopff, Canadian Charter Rights, Republicanism, Inclusive Legal Positivism