Social Revolution and Constitutional Revolution in Canada:
Some Reflections on the Philosophy of Legal Change
Edward McWhinney *
The Fulton-Favreau formula (the planned new, autonomously
Canadian, self-operating, amending machinery for the British North
America Act of 1867), has disappeared into history, and so far as
one knows not a dog has barked at its passing. I personally felt
that, so far as constitutional amending machinery goes, it was a
not unreasonable compromise: the best evidence of its reasonable-
ness, surely was that, where it was opposed, it seems to have been
opposed for wildly conflicting reasons –
by some English-speaking
socialists or left-of-centre political opinion on the score that it would
put the constitution “into a strait-jacket” by arresting the war-time
and post-war trends to concentration of social and economic powers
in Ottawa; by some English-speaking, right-wing political leaders
or publicists on the score that it represented a “shameful surrender”
by Ottawa to the demands of Quebec nationalism; by French-speak-
ing nationalists and separatists on the argument that it would frus-
trate and defeat Quebec claims for a re-writing of the constitution
on behalf of Quebec separatism or at least of a constitutionalism of
biculturalism for the future. A formula with so many different ene-
mies on so many different grounds must have had something af-
firmative to recommend it, after all !
There is reason to believe that very many of the Provincial pre-
miers who supported adoption of the Fulton-Favreau formula in
their own Provincial legislatures, went along, not so much out of
positive enthusiasm for it, as in an acceptance of its more modest
virtues of reasonableness and compromise, as between a number of
conflicting viewpoints on the constitution. Certainly Conservative
Premier John Robarts of Ontario, in a number of public addresses,
and for that matter also the Opposition (Liberal) leader in the On-
tario legislature, Andrew Thompson, and the Ontario NDP leader,
Donald MacDonald, have indicated more or less that. In the Ontario
* Edward McWhinney, Professor of Law and Director, Institute of Air and
Space Law, McGill University, Montreal: formerly Professor of Law, Special
Lecturer in Political Science, and Member of the Centre for Russian and East
European Studies, University of Toronto, Toronto.
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legislature, .at least, the all-party, non-partisan support for the Fulton-
Favreau formula’s adoption seems to have been in the ultimate, an
exercise in “good Canadianism”, and this the more so because a
number of provincial leaders seem to have had considerable private
reservations about the wisdom of the federal government’s bringing
the formula forward in the first place. These provincial leaders also
had doubts about whether the devising of an autonomous, self-oper-
ating amending machinery for the BNA Act was really a matter of
high constitutional, or political, priority for Canada at the present
time, warranting the diversion of any really substantial intellectual
resources and energies to its achievements.
Premier Robarts of Ontario, as a provincial Conservative, has
indicated his public opposition to federal Opposition (Conservative)
leader, John Diefenbaker’s, call for a national constituent assembly
to draft a new constitution for Canada, as indeed has the Ontario
Opposition (Liberal) leader, Andrew Thompson. While the actual
political motive, in the case of both Premier Robarts and Opposition
leader Thompson, may be different, I believe the constitutional law
thought is essentially the same, rooted as it is in distinctively com-
mon law, pragmatic, empirically-based, problem-oriented, scientific
legal method. On the record of past historical experience, constituent
power, whether exercised in terms of new constitution-making or
else of fundamental re-writing of an old constitutional instrument,
has not really been too successful in terms of yielding viable, en-
during constitutional change. The recourse to constituent power, in
comparative constitutional law, has been all too often a recourse or
abandonment to constitutional oratory, with very little regard to
the practical legal results to be achieved thereby. In fact, as with
the effectuation of legal codes, there are’very few times that seem to
be ripe for constitution-making as such, where, on balance of pains
and gains, the social cost of the exercise in constituent power, when
properly quantified, would be outweighed by the social results to
be achieved by that exercise.
The really fundamental changes, in Western constitutional law
experience, have tended to come, not by direct change through formal
amendment, or formal re-writing, but indirectly, or interstitially,
through developing constitutional custom and convention.,
is
clear that law must change, as society itself changes: otherwise an
It
1 Some of the general concepts referred to here are developed in greater detail
in other writings of the author, for example, Judicial Review in the English-
Speaking World (1st ed., 1956; 3rd ed., 1965); Comparative Federalism (1st ed.,
1962; 2nd ed., 1965); Federal Constitution-Making for a Multi National World
(1966).
No. 4] SOCIAL AND CONSTITUTIONAL REVOLUTION
481
impossible tension will develop between law and society, leading,
at a pathological stage, (such as reached, for example, in Imperial
Russia by the end of 1916), to a break-down of the organised society
and of course, concomitantly, of the positive law that is supposed
to represent it. This notion of the necessary, and more or less in-
evitable, symbiosis between law and society, and the correlative no-
tion of continuing change or revolution in the positive law, is central
to Common law legal thinking of the North America pragmatist-
realist schools. On this view, law is not a frozen cake of doctrine
that jelled once and for all in some bygone age, but a dynamic pro-
cess of continuing adjustments and reconciliation of old positive law
doctrine to new societal expectations and demands. The positive law,
if it is to continue to be viable, must reflect, in measure, the complex
of de facto claims and interests pressed in society at any particular
time.
These propositions are, of course, sufficiently well-known and
accepted, by now, among Common lawyers as to amount almost to
articles of legal faith. They are also, however, not altogether un-
known to Civil Lawyers, and were indeed partly anticipated by well-
known Continental European jurists like G6ny, von Ihering, Stam-
mler, Duguit, Durkheim, Ehrlich and Max Weber.2 It is therefore
rather surprising to find so much of the Sturm und Drang of current
French-speaking legal nationalist thinking directed to such matters
as an overthrow of the B.N.A. Act or fundamental novation of its
key institutional provisions. In legal scientific, experiential terms,
such an emphasis and thrust seems unwarranted and unnecessary,
2 The debt of the North American Sociological school, and of Roscoe Pound in
particular, to von Ihering, Stammler, Duguit, and Durkheim, is patent: less
direct and obvious as a general source of ideas, but powerful nevertheless in
individual cases, is the influence of G6ny, Ehrlich, and Max Weber on various
members of the North American legal realist group. Yet while Continental Euro-
pean legal theory and North American legal theory thus acknowledge, equally,
the continuing and decisive role of organic, customary change in general legal
development, this does not seem to have been fully accepted or acknowledged, as
yet, in Civil Law thinking in Canada. Marcel Faribault chides me, in a recent
issue of the Revue du Barreau de la Province de Quebec, [vol. 26, no. 5, at pp.
333-5, (May, 1966)], for sharply contrasting, in this regard, the intellectual
attitudes of Common Law lawyers and Civil Law lawyers, in Canada, as to legal
change generally and as to the best instrumental devices available for practically
achieving and effectuating it. Yet the point seems basic, and incontrovertible
on the facts of the actual rublished record of the contributions of Civil Law
layers to the current constitutional “great debate” in Canada. One might add,
too, that there seems to be also a certain weakness in general legal theory, among
Canadian Civil Law lawyers at the present time in comparison not merely to
Canadian Common Law lawyers but also, and more importantly perhaps, to Conti-
nental European Civil Law.
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and to miss the main possibilities as to legal effectuation of funda-
mental social and economic change in Canada.
In many respects, it seems to me, such current French-speaking
legal nationalist thinking commits the pre-Marxist legal error of
confusing the legal superstructure with the social reality –
the
underlying base of productive relationships – in any given society
which so materially shapes and determines the substantive content
of its laws, constitutional or private, at any time. On any legal
realist-based, ruthlessly empirical, examination of the Canadian con-
stitution-in-action, since its adoption in 1867, it is apparent that,
while the formal superstructure, or B.N.A. Act, has not changed
too markedly, (in its actual written terms), in the century since
1867, in actual substantive content it has been fundamentally trans-
formed and recast, and this over a number of distinct periods during
that century. The history of the B.N.A. Act, as law-in-action, is in
fact one of pendulum-like swings in meaning and practical import.
To over-simplify somewhat, from an initially highly centralist con-
stitution, the B.N.A. Act was transformed by pressure of Canadian
political events that were amply recognized in Privy Council and
Canadian Supreme Court decisions, into a markedly decentralized,
provincially-weighted constitution. It is only, really, since the era
of World War II planning and the post-war reconstruction, that the
pendulum can be said to have swung at all noticeably the other way.
There is no reason at all why the World War II, centralising, trend
could not be reversed in the future, and this without any formal
change in the B.N.A. Act’s terms: indeed, such a process seems
already to have begun, and to be recognized, as such, in the decisions
of the Canadian Supreme Court of the 1960’s.
The point is, of course, that the B.N.A. Act, as written, is, as
befits a document conceived of and adopted in the Imperial, “Roman”
era of British constitutional history, largely value-neutral. It was
expected, of course, to be supplemented, in its practical, day-by-day,
workings, by general constitutional philosophy –
in the particular
space-time dimension in which the B.N.A. Act was drafted, laissez-
faire liberalism with its determinedly politically libertarian, eco-
nomically non-interventionist, credo. But so politically impartial is
the B.N.A. Act, as written, that even today it could, without fun-
damental institutional change, encompass just about any political
system within it – whether liberal Capitalist, Socialist, Fascist, or
even Communist (if Vyskinsky’s constitutional dogmas and polemics
against separation of powers were to be dismissed, as I am sure they
would be now by contemporary Soviet legal theorists, as latter-
day, Stalinist public law perversions) – provided only that the neces-
sary supporting community opinion or “Volksgeist” were there.
No. 4] SOCIAL AND CONSTITUTIONAL REVOLUTION
483
In some respects, the absence, in terms, of fundamental limitations
on governmental power, within the B.N.A. Act itself, could be a
source of great political danger, if the present, predominantly rela-
tively bland, governmental philosophies should ever be replaced by
authoritarian anti-libertarian, political creeds. The facts remains
however, that there is nothing in the B.N.A. Act as it now stands
that provides any real barrier to the practical effectuation of a
constitutionalism of biculturalism, or even of outright separatism,
provided of course the necessary community support for that should
emerge. There would certainly be no need for either a new consti-
tution or even a major re-writing of the existing one; and to say
that there is is really to confuse the constitutionally honorific and
trifling with the constitutionally substantial.
This leads me to my last main point. There are at least two
distinct and different revolutions going on in Canada today. One is
the Quebec “revolution” whose exact dimensions and scope and di-
rection are not yet clearly a matter of general agreement or consensus
even within the Province of Quebec. The other revolution in Canada
is simply a projection, in a new form, of that continuing revolution
that occurs all the time in any viable political community –
the
dynamic process of legal growth and change represented by the
continuing struggle and tension between old positive law and new
societal conditions and expectations. We are witnessing, I think,
another of those pendulum-like swings in the weighting and emphasis
of the B.N.A. Act as between the federal government and the
provinces. The powers and responsibilities of the federal government
in the World Community are noticeably contracting today as part
of the general movement to concentration of decision-making, as to
defence and foreign-policy, at the supra-national, or at least political-
bloc, level. Canada’s international military role, for example, is de-
clining markedly in proportion as Canada’s power of independent
political-military decision declines: this means a corresponding re-
duction in the need for large defence expenditures. (A French inter-
national jurist quipped to me, recently, that President de Gaulle
had kindly saved the Canadian tax-payers some fifteen million dollars
annually, by enforcing the closing of Canadian military bases in
France). On the other hand, Provincial responsibilities in the fields
of education and of social services are increasing greatly, in pro-
portion as community expectations and the desire not to lag behind
other countries increase.
It seems desirable that greatly increased provincial responsibilities
in these fields be matched by revenues, and perhaps also revenue
sources, appropriate to the new responsibilities. By the same token,
it is also clear that a more permissive attitude on the part of the courts
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is needed to new provincial initiatives in community policy-making,
in areas where the B.N.A. Act may not be too explicit, one way or
another, and where there is no obvious conflict of the provincial
action with overall, national interest. It is, of course, a new Supreme
Court of Canada that we now have in the 1960’s –
less interesting
intellectually, and certainly less exciting and colourful personally,
but maybe a little more pragmatic and politically practical than the
court of the 1950’s; and so we are beginning to notice, in recent
court decisions, elements of a new jurisprudence of common-sense
and reason that tries to avoid conflicts of governmental power in
the abstract and to concentrate on saving (and not destroying)
exercises in community policy-making, whether provincial or federal,
wherever possible.
It is as to this wider, constitutional revolution that one notes
the rapidly increasing area of common ground, as between
the
Province of Quebec and other provinces, especially perhaps the more
heavily industrialised provinces like Ontario. That this should be so
is, of course, simply another demonstration of the elements of truth
in the Marxist, and in the North America legal realist, teachings,
equally, that, in the ultimate, basic societal and economic factors are
the really significant determinants in community change. It would
be suprising, indeed, if it were not true that the wealth and well-
being of the inhabitants of two communities that have attained such
relatively similar stages of social and economic development, as
Quebec and Ontario, would best continue to be achieved and extended
by essentially similar methods and techniques, focussing on continuing
economic and industrial expansion and the attraction of large-scale
financial investment from outside as the key to that growth.
All of this suggests, then, that the prime legal device for translat-
ing societal change into constitutional change, in Canada, will con-
tinue to be indirect or interstitial change, to be achieved through
developing constitutional custom and convention and either expressly
sanctioned or else tacitly accepted by the courts; and that the main
arena for constitutional law-making, in this way, will continue to
be the Dominion-Provincial conferences where mutual advantage and
reciprocity of interest can be best effectuated in the give-and-take
and bargain, and the compromise, inherent in inter-person negoti-
ations between political leaders, provincial and federal. I would
venture to predict, also, that the current trend to constitutional de-
centralisation, in terms of and within the framework of the B.N.A.
Act, will be maintained; and that the substance of Quebec claims
(so far as they are, really, at bottom, social and economic), will
tend to become increasingly identical with those of other provinces
that are at similar levels of economic and industrial development.
