I have been teaching a course in the Foundations of Canadian Law.
The overall theme of the course is not easy to discern; I did not set the syllabus, it was set by various Canadian Law Societies acting together. At first it seems to be just different topics strung together without apparent order - but there is a theme.
The theme is not one expressly stated, because were it put as baldly as I will put it many would be offended. And it may seem to some that the theme smacks of an arrogance of power and lawyers taking unto themselves a control undue to them - and that may be so, but I state the theme as clearly as can be so that it may be understood.
Canada is a Monarchy, but not a Tyranny, and the Monarch has delegated her powers to her judges.
Sovereignty in Canada is constrained, and always has been constrained, by the supervision of the Courts.
The concerns that animated the Federalist papers in the United States - mob rule or conspiracy to deprive the People of liberty by oligarchs - were dealt with in Canada not by a finely tuned balance of power, but rather by limiting the scope of democracy. The elected representatives of the people can never be allowed to act arbitrarily, or for personal interest, and are always constrained to act according to law.
Canada has never been an unrestrained democracy - the Supremacy of Parliament has never applied here. Yes, Parliament is sovereign but the Constitution (which is to say the judges) is supreme.
And where aboriginal rights conflict with the power of the settlers the response is not to deal with the matter by force of numbers or raw power but rather by the curious arguments of lawyers, puzzling over Blackstone, and assimilating the needs of the aboriginals and settlers into supplicants to the Courts.
As King Charles said just before his head was taken off on the scaffold:
For the people. And truly I desire their Liberty and Freedom as much as any Body whomsoever. But I must tell you, That their Liberty and Freedom, consists in having of Government; those Laws, by which their Life and their Gods may be most their own. It is not for having share in government that is nothing pertaining to them. A subject and a sovereign are clean different things, and therefore until they do that, I mean, that you do put the people in that liberty as I say, certainly they will never enjoy themselves.
8 comments:
It is a tyranny nevertheless. Judges are answerable to the people they judge. One day the judges will go too far and one day that will result in revolution. Already the courts are held in ill repute by the people and justice is unaffordable and therefore unattainable.
Rat, your point is taken. I guess the trouble is all power tends to corrupt.
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