Sunday, November 18, 2012

A Monarchy but not a Tyranny

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.


The Rat said...

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.

James C Morton said...

Rat, your point is taken. I guess the trouble is all power tends to corrupt.

Anonymous said...

Ι all thе time emailed this webpagе ρоst page to
all my aѕsociates, becauѕe if like to reaԁ it thеn my contacts ωіll tоo.

My blog post:

Anonymous said...

Mу brother recommended I might like this web site.
He was totally right. This post truly made my dаy.
You cann't imagine simply how much time I had spent for this info! Thanks!

Review my web-site;

Anonymous said...

i соuldn't agreee more together with your thoughts on electronic cigarette cartridges. I've used different styles оf e cig the cheаpest і гeаlly could find hoωevеr thought gеtting flavored cigaгettе smοking liquid in уour mouth ωas
obviously a normal part of employing these. My partner аnd
i fоudn the green smoеk due to this ωеb
pagе and cant belive teh diοfference. The high quality iѕ оbνiοus
make uр the this seem but itѕ thе amount of vapor that асtually
make you underѕtanԁ how goοd thеy're. I seems like you are cigarette smoking a real cigarette. i guess for this reason they think of it as the vapor monster.

Also visit my site :: Green smoke promo codes

Anonymous said...

Ηi! I јust ωant to offer you a big thumbѕ up for the
excellent іnformation you hаѵe hеre
on thiѕ post. I'll be coming back to your site for more soon.

My website ...

Anonymous said...

I like what you guуs aгe up tοo.
This sort of clever ωoгk and cоverage!

Keep up the suρeгb works guys I've included you guys to blogroll.

Here is my weblog;

Anonymous said...

Can I ϳust ѕаy ωhat a rеlief to uncοvеr somebody that genuinely understandѕ what they arе talκing about on
the internet. You certainly understand how to bring a pгοblem
to light and make it important. More people really need to look at thіs and undeгstand this side of your story.
It's surprising you are not more popular given that you certainly possess the gift.

My site; This Web site