{"id":19495,"date":"2017-12-01T17:55:55","date_gmt":"2017-12-01T22:55:55","guid":{"rendered":"https:\/\/lawjournal.mcgill.ca\/?post_type=articles&p=19495"},"modified":"2019-11-19T17:22:19","modified_gmt":"2019-11-19T22:22:19","slug":"toward-the-unity-of-constitutional-value-or-how-to-capture-a-pluralistic-hedgehog","status":"publish","type":"articles","link":"https:\/\/mcgill-lawjournal-new.nixa.ca\/fr\/article\/toward-the-unity-of-constitutional-value-or-how-to-capture-a-pluralistic-hedgehog\/","title":{"rendered":"Toward the Unity of Constitutional Value\u2014Or, How to Capture a Pluralistic Hedgehog"},"content":{"rendered":"

L\u2019honorable Mme<\/sup> Deschamps, vice-doyen Gold, Mesdames et Messieurs, chers coll\u00e8gues, ch\u00e8res coll\u00e8gues, chers \u00e9tudiants, ch\u00e8res \u00e9tudiantes. I wish to thank you all for taking the time this evening to come and listen to this lecture.<\/p>\n

Je voudrais exprimer mes sinc\u00e8res remerciements \u00e0 Mme<\/sup> Deschamps pour ses g\u00e9n\u00e9reux mots d\u2019introduction. C\u2019est pour moi un honneur d\u2019\u00eatre pr\u00e9sent\u00e9 par une des plus grandes juristes du Canada, une personne dont le dossier en mati\u00e8re de service public est aussi vaste.<\/p>\n

This evening I will defend a view of the constitution that is premised upon the ideal of normative unity. Evidence of this view may be found, I think, in the reasons authored by Mme <\/sup>Deschamps when she was a justice of the Supreme Court of Canada\u2014in particular in her insistence upon critical reflection about long-established cases and doctrine in light of underlying or unwritten constitutional principles or values. My students present here this evening are, I hope, mentally listing the names of the relevant cases right now. Mme <\/sup>Deschamps, je vous remercie d\u2019avoir pris le temps d\u2019\u00eatre ici ce soir. Cela signifie beaucoup pour moi.<\/p>\n

I wish to thank also Associate Dean Gold for his kind introductory remarks. Although he is unable to be here this evening, I wish also to thank the Dean of the Faculty of Law, Robert Leckey, for the tremendous support that he has shown me since I arrived at McGill last summer.<\/p>\n

Finally, I am thankful for the presence this evening of my parents, Wynn and Mary Margaret Walters, and my spouse, Gillian Ready.<\/p>\n

 <\/p>\n

***<\/p>\n

 <\/p>\n

 <\/p>\n

We are gathered this evening within the traditional territory of the Kanien\u2019keh\u00e1:ka people, a place that has long been a meeting point for other nations too, including the Anishinaabe and especially the Algonquin peoples. Indeed, this reality is one aspect of the themes of unity and pluralism that I want to address this evening. I return to this point in a few moments.<\/p>\n

I am delivering the second inaugural F.R. Scott lecture. I want to start by going back to the first one, given by my predecessor, Rod Macdonald, on February 16, 1996. On that occasion, the Scott Professor reminded those present of the many ways in which Frank Scott had been, as Rod put it, \u201ca \u201cgreat Canadian\u201d.[1]<\/a> That Frank Scott could win the Governor General\u2019s Award twice, once for his work in constitutional law and once for his work as a poet, is evidence of his unique capacities and contributions to public life.[2]<\/a> Rod said that it was an \u201chonour\u201d to deliver his lecture but also a \u201cdaunting task\u201d, for Frank Scott was \u201can intellectual giant; [and] I do little more than walk in his shadow.\u201d[3]<\/a><\/p>\n

Of course, at this time Rod Macdonald was already one of Canada\u2019s distinguished intellectuals himself. I will not list his accomplishments now\u2014that would take more time than we have. But I do wish to register for the record my own view that Rod was beloved at McGill and throughout the legal academy in Canada and beyond because of his generous and original spirit, because of his ability to infuse within his students and colleagues a sense of wonder and optimism about law\u2019s potential for good, and because of his steadfast refusal to accept orthodoxy as authority.[4]<\/a> If Rod Macdonald was walking in the shadow of Frank Scott, what am I doing? If it possible to walk in the shadow of a giant who walks in the shadow of a giant, then that is what I am doing. Rod may have been appointed to the Scott Chair because of his achievements, but I get the sense that I have been appointed because of my potential<\/em> achievements. My new colleagues have placed their trust in me to fulfill that potential, and I am deeply honoured and humbled to be given the opportunity.<\/p>\n

So, then, let me begin. This evening, I want to defend a theory of constitutional value that is premised upon what I will call \u201cnormative unity\u201d. I have, however, chosen the title of my lecture carefully. First, I wish only to gesture \u201ctoward\u201d such a theory. I will not try to offer a complete account. I am, as it were, letting myself off the hook. Second, you will have noted that I have also alluded in the title to that most-important of McGill ideas, \u201cpluralism\u201d. My objective, then, is to offer some critical reflections about the ideals of unity and pluralism in constitutional law and how they may be seen to be mutually reinforcing<\/em> rather than conflicting<\/em> ideals. In particular, I want to examine and ultimately reject a view that appears to be gaining ground in Canada: the view that the Canadian constitution is characterized by something called \u201cagonistic constitutionalism\u201d. \u201cAgonism\u201d is a term derived from the Greek word agon<\/em>, meaning conflict or strife, and within moral and political philosophy it has come to represent a conflict-focused account of pluralism.[5]<\/a><\/p>\n

I should, however, be clear in this respect. There is no question that persistent disagreement and therefore debate about basic constitutional values is not just inevitable but should be welcomed and cherished within any democratic pluralistic society. I want to suggest, however, that disagreement is not inconsistent with the commitment to the kind of normative unity that is necessary for the ideals associated with legality or constitutionalism to flourish. My concern is that the invocation of agonism may obscure this fundamental point. We are not yet in a post-truth world, though that world seems at times threatening, and so I think that we need a theory of constitutionalism that allows us to take a stand and to defend the truth about the meaning of certain basic constitutional values, including liberty, equality, democracy, justice, and, of course, legality or the rule of law. That theory must, at the same time, accept and defend another constitutional value, the value of pluralism. These are the values that must hold together, somehow, as a coherent whole if individuals, communities, and nations are to be equally valued and respected within Canada and the world beyond.<\/p>\n

But what about this business of the hedgehog? It was, of course, Isaiah Berlin who famously stated in a 1953 essay: \u201cThere is a line among the fragments of the Greek poet Archilochus which says: \u2018The fox knows many things, but the hedgehog knows one big thing.\u2019\u201d[6]<\/a> Berlin proceeded to explain that certain scholars are like foxes because they are fast and clever and pursue many ends and hold many ideas not all of which are related or consistent, and others are like hedgehogs because they seek gradually to reveal a single central vision that is more or less coherent. The commonly accepted view is that Isaiah Berlin was a fox par excellence.[7]<\/a> In his most famous essay, \u201cTwo Concepts of Liberty\u201d, Berlin argued that liberal societies are, or should be, marked by two basic features: first, a commitment to so-called negative liberty, the idea that the individual has the right to exercise freedoms protected from the state; and, second, the acknowledgment of pluralism or value pluralism, the idea that freedom allows each person to develop conceptions of value or good of their own which will invariably be, among the people of any liberal community, multiple and conflicting.[8]<\/a><\/p>\n

The basic question that I would like to address is whether pluralism means we must be foxes\u2014or, in other words, whether if we are hedgehogs, we must deny pluralism. The answer to this question given by the legal philosopher Ronald Dworkin in his epic account of ethics and political morality, Justice for Hedgehogs<\/em>, is that we should be hedgehogs and reject value pluralism.[9]<\/a> But what does this really mean? Does the hedgehog really have to reject pluralism altogether? Hedgehogs are notoriously shy creatures. They are hard to find at the best of times. Finding a pluralistic <\/em>hedgehog might well be impossible. But that is our task this evening.<\/p>\n

In pursuing this end in this inaugural lecture, it will be helpful for me to go back to the point where my predecessor ended his inaugural lecture. After a careful assessment of Frank Scott\u2019s understanding of the Canadian constitution, Rod Macdonald concluded that this understanding left several challenges for the constitution unaddressed. One of those challenges he identified as follows:<\/p>\n

[H]ow should governments respond to the challenges of pluralism? The forging of a unitary Canadian civic identity, so central to F.R. Scott\u2019s constitutional vision, has little to say about the recognition and accommodation of ethnic and cultural diversity in a modem multicultural state such as Canada. Rather, it is the theme of multiple allegiances\u2014the need to mediate between different and divided loyalties within a state that does not seek to impose a homogeneous view of citizenship\u2014that makes the explicit claims of Charter <\/em>patriots possible.[10]<\/a><\/p>\n

Rod no doubt understood that Scott was a product of his time, and that given his experiences of living through the Depression and the Duplessis era in Quebec it would have been natural for him to assume that the ambitious project of building a modern social-democratic state would require strong federal vision and action\u2014or a unitary civic identity. Macdonald\u2019s actual concern about Scott\u2019s constitutionalism ran to a different, deeper level. Rod was struck by the fact that Scott, despite his stature as a great Canadian poet, was relatively unpoetic in his approach to the constitution. The constitution according to Scott was, Rod thought, all reason<\/em> and no rhyme<\/em>. As Rod concluded: \u201cThe key challenges now facing Canada\u201d\u2014he had just mentioned pluralism, divided loyalties, multiple allegiances, and a heterogeneous view of citizenship \u201ccannot be addressed without the rediscovery of rhyme and the celebration of both rhyme and reason in Canadian constitutionalism.\u201d[11]<\/a><\/p>\n

The idea that rhyme is important to the value of constitutionalism in a pluralistic society strikes me as an important insight. Two figures overshadow much of modern legal and jurisprudential thought. These figures have been known by different names at different times and in different places. Facing off against each other, we find, for example, reason and will, principle and policy, right and might, jus<\/em> and lex<\/em>, justice and power, rationality and politics. Whatever names they bear, the power of their influence upon legal thought often leads us to accept an artificial binary that obscures essential truths about the value of legality. Law is not just a matter of either reason or right on the one hand and power or politics on the other. There is between them, Rod Macdonald reminds us, the moderating and humanizing influence of rhyme.<\/p>\n

I am not certain that Rod would have agreed with me, but I think that rhyme is evident in two venerable strands of European legal thought. Renaissance humanists in France, and the English common lawyers in the time of Sir Edward Coke who were influenced by them, developed new approaches to the understanding of \u201clogic\u201d by turning to the ancient idea of \u201crhetoric\u201d and its insistence upon harmony or elegance in the structuring of arguments.[12]<\/a> The common law, on this view, becomes, as the early seventeenth-century judge John Doderidge said, an \u201cart\u201d of reasoning in which \u201cthe truth is found out by [a]rgument, debate, and discourse of reason on both parts\u201d.[13]<\/a> There is arguably a sense of rhyme implicit within rhetoric.<\/p>\n

Rhyme may also be seen within the ancient concept of \u00e6quitas<\/em>, or equity in its broadest sense. The jus gentium<\/em> in Roman law, wrote the nineteenth-century legal philosopher John Austin, was \u201cthe law common<\/em> to …various nations, or administered equally<\/em> or universally<\/em> to members of these various nations\u201d and was thus also styled \u201cjus \u00e6quum<\/em>, jus \u00e6quabile<\/em>, \u00e6quitas<\/em>\u201d, with the term \u201c\u00e6quitas<\/em>\u201d meaning, he said, \u201cconformity<\/em> or consonance<\/em> to a common or equal law.\u201d[14]<\/a> Given its \u201clarge and liberal spirit\u201d, \u00e6quitas<\/em> came to be known for its \u201cuniversality<\/em>\u201d and \u201cgradually came to signify impartiality<\/em>.\u201d[15]<\/a> Its \u201cradical idea\u201d, Austin concluded, was that law \u201cshould be applied uniformly<\/em> to all<\/em> the cases which come within its principle\u201d and so it was based upon the value of \u201charmony or elegantia<\/em>\u201d and it was opposed to \u201cincoherency.\u201d[16]<\/a><\/p>\n

Like Austin, Sir Henry Maine extolled the virtues of the Roman pr\u00e6torian system with its vibrant body of case law based on \u201c\u00c6quitas\u201d.[17]<\/a> And like Austin, he emphasized the basic ideal of equality underlying this law: through the judicial search for \u201cequal or proportionate distribution\u201d, the principle of the \u201c\u2018equality\u2019 of laws\u201d led to a \u201cconstant levelling<\/em> or removal of irregularities.\u201d[18]<\/a> The Roman jurisconsults had \u201cfreely surrendered themselves\u201d to \u201ctheir sense of simplicity and harmony\u2014of what they significantly termed \u2018elegance.\u2019\u201d[19]<\/a> As the sixteenth-century English jurist, Christopher St. German, wrote\u2014summarizing a point accepted by centuries of common law judges\u2014 the unwritten law of reason ensures that \u00e6quitas<\/em> is implicitly part of every written or positive law, rounding off its edges to avoid unjust results that general terms may produce in specific cases.[20]<\/a><\/p>\n

Ideas of harmony, elegance, balance, proportion, coherence, integrity, symmetry, consistency, and reconciliation all have something to do with the juridical union of rhyme and reason. These are ideas that suggest an ideal of normative unity. How else could the objective of equal respect for everyone implicit within the concept of legality be realized? Yet the application of this ideal of legal elegance or harmony was not a matter of cold logic or reason aimed at bland sameness. It was not difference, but the prospect of discordance or disharmony within the law that was the concern.<\/p>\n

There is probably good reason to think that the concept of constitutional rhyme informs Indigenous legal traditions as well, though, if so, in very different ways. My thoughts in this respect are offered tentatively and with a sense of humility, for my ability to interpret traditions of a very different set of cultures from my own is limited and even the attempt comes with moral risk.[21]<\/a> As far as I can gather, however, it does seem that for the peoples indigenous to this part of the world, that is, the Great Lakes watershed and the St. Lawrence River valley\u2014the Haudenosaunee and the Anishinaabe peoples in particular\u2014legal order was, and perhaps still is, a matter of seeking harmony between a complex series of shifting normative spheres or domains.[22]<\/a> Families, clans, villages, nations, and confederacies of nations represented a dynamic network of interconnecting jurisdictional domains\u2014a kaleidoscope of jurisdictions really\u2014within and between which normative meaning evolved through conference and council, and the forging of duties of trust and care by exchanges of gifts that formed a sort of spiritual kinship between peoples and communities.[23]<\/a> These normative spheres shifted constantly in part because they were integrated within a dynamic physical environment that was alive spiritually with its own shifting normative spheres, and the constant search for normative order among people involved seeking balanced relations within and between these spheres or domains. Legality was thus grounded within the homeland of the people, though it was not territorial in the European sense, and did not involve the assertion of authority by a single sovereign over the land. It came rather through the daily effort to negotiate good relations in a swirling jurisdictional environment that shaped multiple sets of allegiances for people with layered and complex senses of identity.<\/p>\n

The customary norms that governed relations within and between Haudenosaunee and Anishinaabe communities were extended to the treaty relationship with Europeans and informed, for example, the \u201ccovenant chain\u201d relationship linking all nations within the Great Lakes region with the Crown, a relationship that was affirmed at (among other treaty councils) the Niagara council convened by the Crown\u2019s representative, Sir William Johnson, in 1764.[24]<\/a> On this occasion, as on many others, wampum belts\u2014belts, that is, of white and purple sea shells carefully woven together to produce images of national friendship and national autonomy\u2014were exchanged, including belts with the classic covenant chain imagery of a series of links between an Indigenous mountain and a European vessel.[25]<\/a> The objective of these treaties was to establish duties of care and trust by forging with the Crown something like the kind of spiritual harmony and kinship that brought normative unity within and between their own communities.[26]<\/a> There was a rhyme and reason to the covenant chain constitution. Consider, for example, the written account of a speech given by an unnamed Mohawk orator at a covenant chain council:<\/p>\n

The Mohawks<\/em> Speaker said, \u201cWhere shall I seek the Chain of Peace? Where shall I find it but upon our Path? And whither doth our Path lead us, but into this House? This is a House of Peace;\u201d after this he sang all the Links of the Chain over.[27]<\/a><\/p>\n

This brief passage has a sort of poetic power to it. It may only be the summary of the speaker\u2019s words and songs; however, the idea that one could sing \u201call the Links of the Chain over\u201d, that the treaty relationship could be expressed through song, is significant. There was, as the wampum belts often show, a linking of arms, a physical and spiritual joining of people together. To invoke the language I have been using this evening, if I may, these societies were deeply pluralistic in the sense that laws did not emanate from a single sovereign commander. Each individual or community could go their own way should they wish to, and yet precisely because of this sense of freedom (or pluralism) there was a need to establish a deep sense of normative unity through a legal narrative that captured rhyme and reason in a very distinctive sense, one that bound peoples who were equally free in relations of care and trust.<\/p>\n

Perhaps we can say, then, that rhyme is a part of each of the three sets of legal traditions now found in Canada\u2014common law, civilian, and indigenous. Of course, these suggestions will seem rather lofty and detached from the hard realities of the Canadian constitution today. But they will, I hope, provide us with some direction in due course. Before developing these ideas further, however, it is time to address the ideas of agonism and agonistic constitutionalism.<\/p>\n

To this end, it may be helpful to return to Isaiah Berlin. Berlin did not just think that basic values, like liberty and democracy, at times conflict. He seemed to think that fundamental values are ultimately incommensurable or rationally incomparable. Without a common measure or scale to compare liberty and democracy, for example, there can be no rational discourse about how to resolve competing claims about the two. To compare a claim about liberty with one about democracy is like asking whether a metre is bigger than a litre. In these circumstances, there can be no principled reconciliation of the values, but only at best a contingent rapprochement between opposing views.<\/p>\n

Or at least this was the reading of Berlin adopted by another influential Oxford philosopher, John Gray. Taking Berlin\u2019s views on incommensurability to an extreme conclusion, Gray argued that \u201c[the] rationalist and universalist tradition of liberal political philosophy runs aground, along with the rest of the Enlightenment project, on the reef of value pluralism.\u201d[28]<\/a> Value pluralism implies not just opposing accounts of value between individuals, but also between entire cultures and cultural traditions. Once it is clear that competing visions of value between individuals and communities and indeed entire cultural traditions are incommensurable, then, Gray argues, it follows that they cannot be resolved through any \u201crational\u201d method, including any \u201cjurisprudential\u201d or \u201clegalist\u201d method.[29]<\/a> Gray thus insists that value pluralism leads us to accept what he calls\u2014with echoes, I think, of Carl Schmitt\u2014\u201cthe primacy of the political<\/em>\u201d, meaning that choices about rights and values can only be made through politics and political struggle and never on the basis of principle.[30]<\/a> This is, we may say, the legal and political philosophy of the fox. Berlin\u2019s liberalism was, in fact, Gray insisted, \u201cagonistic liberalism\u201d, a liberalism that depended entirely on political and cultural contingency and not reason.[31]<\/a><\/p>\n

It is not my objective this evening to consider whether Gray was right to call Berlin an agonistic liberal. In fact, one of my new McGill colleagues, Daniel Weinstock, writes convincingly that Gray was very wrong about Berlin.[32]<\/a> I am instead interested in the more general claim that the fact of pluralism means that we must accept value pluralism and thus also agonism. I am also interested in the troubling question of what agonism means for our commitment to the value of legality, because I think legality implies normative unity. If we are good pluralists must we accept that the value of legality or constitutionalism itself has been wrecked upon the reef of value pluralism?<\/p>\n

Chantal Mouffe, who is perhaps the leading champion of agonism today, builds her account of the idea on the concept of \u201cthe political\u201d developed by Carl Schmitt.[33]<\/a> Schmitt, the German jurist associated with the Nazi regime, famously argued that the constituent power of the people exercised through the sovereign can never be legally limited, but must always be free to decide upon the exception\u2014upon who is in<\/em> and who is out<\/em> of the demos<\/em>, who is friend<\/em> and who is enemy<\/em>.[34]<\/a> Decisionism of the Schmittian kind is accepted because of a belief in the irrationality of the political, that no other way exists to reconcile values or aspirations or rights\u2014which is, of course, the antithesis of a regime of law.[35]<\/a> Mouffe does not follow Schmitt entirely. Her objective is to transform the eliminable tension between competing political values from one that produces antagonism<\/em> within society to one of agonism,<\/em> in which competitors see themselves as respectful adversaries rather than enemies. But agonism follows from and does not displace the assumption of radical moral indeterminacy; it is ultimately a vision of politics as pure power that is inconsistent with, among other ideals, the ideals of constitutionalism and legality.[36]<\/a><\/p>\n

A form of agonism has entered constitutional discourse in Canada\u2014or at least its proponents say<\/em> it is agonism. The attraction of this form of agonism is that it responds to the reality that in Canada today there is disagreement not just about the meaning of this or that constitutional provision, but rather about the basic essence of the constitution itself, including its authority, its legitimacy, and its relationship to ideas about sovereignty. Just this week, my new colleague Stephen Scott was in the Superior Court of Quebec arguing against the constitutionality of so-called Bill\u00a099, or la Loi sur l\u2019exercice des droit fondamentaux et des pr\u00e9rogatives du peuple qu\u00e9b\u00e9cois et d\u2019\u00c9tat du Qu\u00e9bec<\/em>,[37]<\/a> a provincial statute that contains a series of propositions about the powers of a Quebec \u201cpeople\u201d to determine its future that, on their face, seem difficult to reconcile with the vision of constitutionalism carefully articulated by the Supreme Court of Canada in its famous opinion in the 1998 Quebec Secession Reference<\/em>.[38]<\/a> In this respect, we might also consider the following statement issued by the James Bay Cree, an Indigenous nation located within the province of Quebec, in October of 1995:<\/p>\n

We are Eeyou.<\/p>\n

We are a sovereign Peoples.<\/p>\n

We are the original inhabitants of Eeyou Estchee and are one with Eeyou Estchee. Our power derives from the Creator, from the Eeyou and from the living spirit of the land and waters.<\/p>\n

…<\/p>\n

We have the inherent right to self-determination and the right to govern ourselves. We have a distinct identity reflected in a distinct system of laws and government, philosophy, language, culture, heritage, values, customs, traditions, beliefs and territory.<\/p>\n

…<\/p>\n

… Cree consent is required and mandatory for any changes to our status as Eeyou or to the status of Eeyou Estchee.<\/p>\n

As Peoples with a right to self-determination, we shall freely decide our political status and associations and freely pursue our future as a people.[39]<\/a><\/p>\n

Depending upon how it is read, this statement might also be difficult to reconcile with existing statements of Canadian constitutional law found in the opinions of the Supreme Court of Canada.[40]<\/a> The Cree statement of self-determination certainly appears inconsistent with the Quebec legislature\u2019s statement concerning \u201cthe right of the Qu\u00e9bec people to self-determination\u201d in Bill\u00a099[41]<\/a>\u2014which assumes that the Quebec people speaks for Indigenous peoples within Quebec\u2019s boundaries. These appear to be diametrically opposing constitutional visions. If disagreement is this deep and is grounded in the reality of fundamental differences in cultural and national identities that demand and deserve to be respected, how can a theory of constitutional normative unity be entertained? It seems almost arrogant to suggest that it could.<\/p>\n

The agonistic response thus appears to be the respectful<\/em> one, the one based upon humility<\/em>. But it also has a reformative or redemptive edge too. In arguing that the assertion of Indigenous legal traditions in Canada today may be seen to subvert or disrupt established constitutional assumptions in Canada, John Borrows invokes the theoretical insights of James Tully. In particular, Borrows invokes Tully\u2019s exploration of the critical unbalancing of received political and legal notions and the patterns of domination they instantiate, a process that, Tully says, enables us \u201cto see our island of disputation and negotiation\u201d not as a utopian process of rational and transparent communication, but rather \u201cas it is, in the rough and agonistic sea of relations of power.\u201d[42]<\/a> From relations of domination and power and the resistance that disrupts them cannot emerge a singular vision of constitutionalism, though workable compromises may be possible. As Jeremy Webber argues, Canadians have succeeded in sustaining a polity that does not require a single constitutional vision of its members; with the claims by Indigenous nations and Quebec nationalists in mind, he observes that \u201ceven questions of sovereignty, are held in abeyance.\u201d[43]<\/a> Webber, who also relies upon Tully\u2019s work, writes as follows:<\/p>\n

This might be called agonistic constitutionalism<\/em>: a constitutionalism in which contending positions are seen to be essential to the society, animating it, and where these positions are not neatly contained within a comprehensive, overarching theory. … It takes the diversity of the country as it finds it, and treats the development of its constitution as something that must proceed day by day, not through the fiat of a closed set of founding fathers or their privileged successors.[44]<\/a><\/p>\n

Webber observes that the Supreme Court of Canada has, in effect, adopted a kind of agonistic constitutionalism, by seeking, where possible, to address constitutional conflict not by definitive, substantive rulings about rights and duties, but by crafting procedural and substantive principles designed merely to inform, shape, discipline, and channel on-going dialogue between political actors who appear to hold fundamentally opposed visions of the constitution.<\/p>\n

The Canadian school of agonistic constitutionalism offers powerful insights into governance within divided societies. Relations of domination should be disrupted. Constitutions should be understood as the product of the daily practice of constitutionalism, as individuals and communities work to understand better what just relations might look like. Each of these propositions seems right.[45]<\/a> And yet, I remain concerned about a theoretical framework for considering the experience of constitutionalism that is based on the agonistic assumption of radical moral indeterminacy and the privileging of power over principle.<\/p>\n

It is fair to say that Canadian constitutional agonists are not of the Mouffe-Schmitt kind.[46]<\/a> Tully\u2019s agonism is a kinder and gentler agonism.[47]<\/a> His inspiration is not Schmitt but Michel Foucault. He invokes Foucault\u2019s argument that the very idea of power implies the existence of freedom, that one can only exercise power over people who have some degree of freedom, and hence freedom itself is only to be understood through the existence and response to power. \u201cRather than speaking of an essential freedom,\u201d writes Foucault in a passage upon which Tully relies, \u201cit would be better to speak of an \u2018agonism\u2019\u2014of a relationship which is at the same time reciprocal incitation and struggle, less of a face-to-face confrontation which paralyzes both sides than a permanent provocation.\u201d[48]<\/a><\/p>\n

Yet, for this \u201cpermanent provocation\u201d to produce the kind of redemptive effect for the marginalized and the oppressed that Tully hopes for, it is necessary, Tully himself says, to imagine \u201cdiverse forms of citizen participation involv[ing] agonic dialogues and negotiations in which audi alteram partem<\/em> (always listen to the other side) is the immanent rule of reciprocity.\u201d[49]<\/a> In this way, \u201cthe rules of intersubjective recognition [may] be open to question and subject to the interplay of reasons and re-descriptions among free and equal citizens\u201d, including both \u201cmulticultural citizens\u201d and \u201csuppressed nations and indigenous peoples.\u201d[50]<\/a> Tully\u2019s agonic dialogue needs a normative framework premised upon a classic principle of natural justice or due process, or, in other words, the rule of law, that is in turn premised upon an underlying commitment to the idea that people are equally free. Agonistic dialogue seems to require a decidedly non-agonistic constitutionalism. Has the hedgehog infiltrated the pluralist camp?<\/p>\n

It could be said that these framework requirements merely structure or contain power politics loosely and that real<\/em> agonism flourishes within. If only form and substance could be so neatly divided. Once a respectful (agonic) dialogue unfolds, once, that is, the sides in a relationship of power and domination begin to listen to each other, what will be said? It seems to me almost inevitable that, at some point in this deliberative process, one side will try to explain to the other that maintaining the unbalanced relationship of power involves moral incoherence\u2014that the situation cannot be defended by the other side unless they abandon convictions or ideals that they, and indeed those on both sides, cherish; that the continued acceptance of the status quo shows their convictions as a whole to be in a state of discordance, indeed a shambles; that there is no reason<\/em> to the way the positions that they try to defend fit together, but also no rhyme<\/em>. The implicit lesson of the renaissance humanists and the old common lawyers is that truth is something toward which we work through an attempt to show, through discourse or disputation, how the specific or concrete convictions about value we do share or the established cases we do accept\u2014there must be some\u2014may be seen to hold together as coherent and unified in light of a theory of more abstract or general value which they presuppose.<\/p>\n

This style of normative discourse is ancient, though it is now often associated with and also obscured by its principal modern champion, Ronald Dworkin, who calls it \u201cinterpretation\u201d.[51]<\/a> It is \u2018interpretivism\u2019 of some kind, whether Dworkinian or not we leave to the side for now, that, I think, offers a compelling alternative to agonism that allows us to reconcile normative unity with pluralism. Dworkin\u2019s account does provide some useful starting points. On Dworkin\u2019s view of the unity of value, truth about value is not anchored in some foundation or source external to the interpretive process; rather, different accounts of truth are presented and defended through a process of critical reflection involving the constant oscillation between concrete and general in search of equilibrium. The great insight offered by this style of normative discourse is, in my view, that it is a thoroughly non-foundational or \u201ccircular\u201d theory of value generally, and it implies a \u201ccircular\u201d theory of legality or the concept of law in particular, one in which there is no extra-legal or pre-legal fact or command or norm that holds the law together.[52]<\/a><\/p>\n

However, there are (at least) two things missing or under-emphasized in Dworkin\u2019s interpretive account of normative unity. The first is that rhyme, though present, is not held up as a special feature of interpretation. If the interpretive process yields truth at all, it will not be by virtue of formal logic or analytical purity. Values may well be, as agonists say, incommensurable as a matter of strict reason, because no scale or measure exists to compare them scientifically. But humans are not machines and we should not expect their values to be explicable through mathematical formul\u00e6. The interpretive process is an art not a science, and a good argument about value will be, at some level, an aesthetically attractive arrangement of ideas\u2014one that manifests harmony, equity, proportion, or elegantia<\/em>.<\/p>\n

Second, the idea of normative unity must of course address the reality of pluralism. How can an interpretive or circular theory of law, with its incessant drive for normative unity, integrity, or coherence, account for and accommodate\u2014let alone nurture and celebrate\u2014the reality of a pluralistic society? There is much in Dworkin\u2019s work suggestive of a monolithic liberal legalism: he does, after all, refer to law\u2019s empire<\/em> and he imagines a superhuman judge Hercules who can find the<\/em> right answer to any legal question.[53]<\/a> It all sounds very imperialistic. I am reminded at this point about an exchange that I witnessed in a seminar led by Dworkin at Oxford (he was, for a time, my doctoral supervisor and so naturally I attended all of his seminars). The discussion focused upon the very issues we are now addressing, and a student, no doubt a Canadian and perhaps a Quebecer, asked whether the Quebec sign laws, mandating the use of the French language on commercial signs, could be reconciled with liberal values.[54]<\/a> My recollection is that Dworkin was far too dismissive of the possibility in answering no.<\/p>\n

There are two reasons to think that he was wrong, on the basis of his own theory of interpretation, to be so dismissive. First, his is a circular theory. There is no sovereign root to the law or to any value, and values that are freed from a positivist foundation may have a distinctive ability to accommodate difference without forgoing the commitment to unity. The unity of value to emerge through interpretation must accept all differences that are necessary to accept in order to make coherent sense of a world full of diversity. Whether this approach might justify restrictive laws to protect a linguistic minority is, of course, still an open question\u2014but it is an open<\/em> question. A commitment to normative unity is hardly a commitment to normative sameness.<\/p>\n

Indeed, from my limited understanding of Indigenous legal traditions, I get the sense that these traditions assume that respect for deep difference and the search for ultimate harmony are twin objectives sensibly pursued together. On this point, it may be helpful to contrast Indigenous and non-Indigenous images of the constitution as a (so-called) \u201cliving tree\u201d. In the hands of non-Indigenous judges, the living-tree constitution consists of an impressive set of branches and leaves, alive and growing, but all emanating from one single trunk.[55]<\/a> It is a very linear account of law. Indeed, it is arguably a positivist conception of law according to which every legal norm is traceable back to a single originating phenomenon that is itself outside the law, whether Austin\u2019s sovereign, Kelsen\u2019s grundnorm<\/em>, or Hart\u2019s rule of recognition.[56]<\/a>. It is a conception of law that reduces constitutional pluralism to a system of delegated and subordinate constitutional powers. The Great Tree of Peace central to Haudenosaunee traditions of constitutionalism, in contrast, places equal emphasis on the branches and<\/em> the complex network of roots under the tree that are also growing and extending, spreading, according to the tradition, the ideal of peace.[57]<\/a> This tree has no real beginning. It draws distinctive peoples to its shade where they may meet in council. It was under the tree that, according to one version of the tradition, the chiefs of different nations, themselves \u201csymbolized as trees\u201d, bound themselves together \u201cby taking hold of each other\u2019s hands firmly and forming a circle,\u201d a \u201ccircle of unity\u201d.[58]<\/a> This is a much more complicated constitutional arrangement, for it lacks a single sovereign root. However, it does suggest that normative unity can exist even when an exclusive or singular conception of sovereignty does not.<\/p>\n

Second, we need to attend to the distinction Dworkin draws between external and internal skepticism about value. Value pluralism is a form of external skepticism. It involves stepping out of the interpretive circle and passing judgment on the process, concluding that there can never be any truth about any value, only a plurality of different opinions or traditions all contingent upon culture or politics or power. Slavery and genocide are evil on this view\u2014for us, perhaps, but perhaps not for others. If this is value pluralism, Dworkin was right to reject it. We all should. However, this does not end the matter. Pluralism may itself be reconceived as a value with its own truth and normative implications. In other words, if value pluralism<\/em> is exchanged for a conception of pluralism as a value,<\/em> then we can re-enter the interpretive circle and begin to construct interpretations about how, in specific situations, pluralism may be reconciled with the other constitutional values we cherish. If we can figure out how to engage in this interpretive process\u2014if we accept pluralism as a value in place of value pluralism\u2014then I think we will have captured the pluralistic hedgehog.<\/p>\n

An interpretive theory of the normative unity of constitutional value permits us to develop and defend accounts of constitutionalism that seem true, right, or best to us, but it does not guarantee convergence of ideas among different interpretations. It is a mechanism for ongoing constitutional discourse, and, in part, of constructive dis<\/em>agreement; agreement and acceptance will emerge, if at all, through arguments aimed at truth rather than at agreement and acceptance as such.[59]<\/a> The theory does not take an a priori position on whom in our system should, as a practical matter, determine which interpretation shall be, for the time being, legally enforced. Jeremy Webber is entirely right to say that a judicial pronouncement on deeply contested constitutional fundamentals may, on many occasions, hinder rather than help the search for just relationships.[60]<\/a> But I remain worried about characterizing the space left by courts for dialogue and deliberation between political actors and citizens as one defined by agonism. The ensuing dialogue will go better, I think, if we begin with the assumption that we are all striving to show each other the best meaning of the constitution, as if there really is some truth to the matter, rather than just incomparable or incommensurable opinions to be compromised through political struggle. We do better if we accept and listen to Indigenous claims, for example, as if they really are claims about justice that must be accommodated in a way that shows all of our convictions about value as something more than a random or arbitrary jumble. Despite our intense differences, we should not be afraid of the ideal of normative unity. Indeed, the ideal of normative unity in constitutional value is what allows us to insist upon the right,<\/em> rather than just the fact of difference.<\/p>\n

There is <\/em>an answer about how to accommodate competing nationalisms within Canada, as well as the many other visions that compete for ascendancy, but we can only find it by engaging in an interpretive enterprise that seeks to show how our conclusions cohere with the general values of equality and integrity that these conclusions presuppose. A Hercules could find the answer\u2014but fortunately such a mythical creature does not exist. For us, the best we can do is to nurture an interpretive discourse that allows the constitution to evolve, in the incremental fashion that ordinary legal interpretation enables, with the belief that our sense of integrity and justice and our appreciation for the diversity and the unity of views about equality and respect for others will deepen and converge over time and with experience. A state of constitutional harmony that respects the equal freedom to be different is just over the horizon, but we can get there only by forging the best path possible for the part of the journey that we confront today.<\/p>\n

Rod Macdonald ended his inaugural lecture by reciting several passages from the poems of F.R. Scott. Given the emphasis on constitutional rhyme this evening, perhaps it is appropriate if I do the same. You will forgive me in advance if this seems overdramatic\u2014but if not now, then when?<\/p>\n

Another great Canadian poet, Leonard Cohen, who was also a great songwriter and musician, and who passed away just a few months ago, once recorded a performance of Frank Scott\u2019s poem \u201cVillanelle for our Time\u201d.[61]<\/a> Cohen was, I should remind you, a student here in the Faculty of Law at McGill, though, fortunately for the literary and musical heritage of Canada and the rest of the world, only for one term.[62]<\/a> Cohen\u2019s performance of Scott\u2019s poem was, I think, a fitting tribute to the law professor who gave him encouragement as a young poet.[63]<\/a> The poem can be understood to be about constitutional unity amongst peoples characterized by diversity\u2014or at least I like to read it that way. Here, then, is Scott\u2019s \u201cVillanelle for our Time\u201d:<\/p>\n

From bitter searching of the heart,
\nQuickened with passion and with pain
\nWe rise to play a greater part.<\/p>\n

This is the faith from which we start:
\nMen shall know commonwealth again
\nFrom bitter searching of the heart.<\/p>\n

We loved the easy and the smart,
\nBut now, with keener hand and brain,
\nWe rise to play a greater part.<\/p>\n

The lesser loyalties depart,
\nAnd neither race nor creed remain
\nFrom bitter searching of the heart.<\/p>\n

Not steering by the venal chart
\nThat tricked the mass for private gain,
\nWe rise to play a greater part.<\/p>\n

Reshaping narrow law and art
\nWhose symbols are the millions slain,
\nFrom bitter searching of the heart
\nWe rise to play a greater part.<\/p>\n

 <\/p>\n

Thank you.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/u><\/p>\n

[1]<\/a> \u00a0\u00a0\u00a0 Roderick A Macdonald, \u201cFR Scott\u2019s Constitution (Inaugural Lecture)\u201d (1997) 42:1 McGill LJ\u00a011\u00a0at\u00a013. Another great Canadian and (one-time) Chief Justice of Canada once described Scott as \u201cheroic\u201d: see Bora Laskin, Book Review of Civil Liberties and Canadian Federalism<\/em> by FR Scott, (1960) 13:2 UTLJ\u00a0288 at\u00a0288.<\/p>\n

[2]<\/a> \u00a0\u00a0\u00a0 Francis Reginald Scott (1899\u20131985), who studied at Bishop\u2019s, McGill, and Oxford Universities, was a long-standing member of the Faculty of Law at McGill University, a leading mid-century Canadian poet (see e.g. FR Scott, The Collected Poems of FR Scott <\/em>(Toronto: McClelland and Stewart, 1981)), and a founding member of the Co-operative Commonwealth Federation, the precursor to the New Democratic Party of Canada. He was the author of a series of important books and essays on constitutional law. See e.g. FR Scott, Civil Liberties & Canadian Federalism<\/em> (Toronto: University of Toronto Press, 1959); Frank R Scott, Essays on the Constitution: Aspects of Canadian Law and Politics<\/em> (Toronto: University of Toronto Press, 1977). See also Sandra Djwa & RStJ Macdonald, eds, On FR Scott: Essays on His Contributions to Law, Literature, and Politics<\/em> (Kingston: McGill-Queen\u2019s University Press, 1983); Sandra Djwa, The Politics of the Imagination: A Life of FR Scott<\/em> (Toronto: McClelland and Stewart, 1987).<\/p>\n

[3]<\/a> \u00a0\u00a0\u00a0 Macdonald, supra<\/em> note\u00a01 at\u00a013.<\/p>\n

[4]<\/a> \u00a0\u00a0\u00a0 This is, of course, hardly just my own view. For accounts of Rod Macdonald\u2019s contributions to Canadian public and academic life, see e.g. Richard Janda, Rosalie Jukier & Daniel Jutras, eds, The Unbounded Level of the Mind: Rod Macdonald\u2019s Legal Imagination<\/em> (Montreal: McGill-Queen\u2019s University Press, 2015); Andr\u00e9e Lajoie, La vie intellectuelle de Roderick Macdonald: un engagement <\/em>(Montr\u00e9al: Th\u00e9mis, 2014).<\/p>\n

[5]<\/a> \u00a0\u00a0\u00a0 See generally Mark Wenman, Agonistic Democracy: Constituent Power in the Era of Globalisation<\/em> (Cambridge: Cambridge University Press, 2013) ch\u00a01.<\/p>\n

[6]<\/a> \u00a0\u00a0\u00a0 Isaiah Berlin, The Hedgehog and the Fox: An Essay on Tolstoy\u2019s View of History<\/em> (London, UK: Weidenfeld & Nicolson, 1953) at\u00a01.<\/p>\n

[7]<\/a> \u00a0\u00a0\u00a0 See generally Michael Ignatieff, Isaiah Berlin: A Life<\/em> (Toronto: Viking, 1998). It is worth noting, however, that Ignatieff saw certain hedgehog qualities in Berlin. See ibid<\/em> at\u00a07, 201, 203.<\/p>\n

[8]<\/a> \u00a0\u00a0\u00a0 Isaiah Berlin, Two Concepts of Liberty: An Inaugural Lecture Delivered Before the<\/em> University of Oxford on 31 October 1958 <\/em>(Oxford: Clarendon Press, 1958) at\u00a056\u201357.<\/p>\n

[9]<\/a> \u00a0\u00a0\u00a0 Ronald Dworkin, Justice for Hedgehogs<\/em> (Cambridge, Mass: Belknap Press of Harvard University Press, 2011) at\u00a01 [Dworkin, Justice for Hedgehogs<\/em>].<\/p>\n

[10]<\/a> \u00a0\u00a0 Macdonald, supra<\/em> note\u00a01 at\u00a023\u201324.<\/p>\n

[11]<\/a> \u00a0\u00a0 Ibid<\/em> at\u00a023.<\/p>\n

[12]<\/a> \u00a0\u00a0 I explore these ideas in Mark D Walters, \u201cLegal Humanism and Law-as-Integrity\u201d (2008) 67:2 Cambridge LJ\u00a0352.<\/p>\n

[13]<\/a> \u00a0\u00a0 Sir John Doderidge, The English Lawyer: Describing a Method for the Managing of the Lawes of this Land <\/em>(London: I More, 1631) at\u00a062\u201364.<\/p>\n

[14]<\/a> \u00a0\u00a0 John Austin, Lectures on Jurisprudence <\/em>(London, UK: John Murray, 1863) vol\u00a02 at\u00a0249 [emphasis in original].<\/p>\n

[15]<\/a> \u00a0\u00a0 Ibid<\/em> at\u00a0272 [emphasis in original].<\/p>\n

[16]<\/a> \u00a0\u00a0 Ibid<\/em> at\u00a0275\u201377 [emphasis in original].<\/p>\n

[17]<\/a> \u00a0\u00a0 See Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas<\/em> (London, UK: John Murray, 1861) at\u00a058.<\/p>\n

[18]<\/a> \u00a0\u00a0 Ibid<\/em> at\u00a058\u201360 [emphasis in original].<\/p>\n

[19]<\/a> \u00a0\u00a0 Ibid<\/em> at\u00a079.<\/p>\n

[20]<\/a> \u00a0\u00a0 See TFT Plucknett & JL Barton, eds, St German\u2019s<\/em> Doctor and Student<\/em> (London, UK: Selden Society, 1974) at\u00a097. See generally Mark D Walters, \u201cSt. German on Reason and Parliamentary Sovereignty\u201d (2003) 62:2 Cambridge LJ\u00a0335.<\/p>\n

[21]<\/a> \u00a0\u00a0 Like many other legal academics, I have been influenced in my views on this topic by the works of John Borrows, including his books. See e.g. John Borrows, Freedom and Indigenous Constitutionalism<\/em> (Toronto: University of Toronto Press,\u00a02016) [Borrows, Freedom & Indigenous Constitutionalism<\/em>]; John Borrows, Canada\u2019s Indigenous Constitution<\/em> (Toronto: University of Toronto Press, 2010) [Borrows, Canada\u2019s Indigenous Constitution<\/em>]; John Borrows, Drawing Out Law: A Spirit\u2019s Guide<\/em> (Toronto: University of Toronto Press, 2010).<\/p>\n

[22]<\/a> \u00a0\u00a0 See Mark D Walters, \u201cRights and Remedies within Common Law and Indigenous Legal Traditions: Can the Covenant Chain be Judicially Enforced Today?\u201d in John Borrows & Michael Coyle, eds, The Right Relationship: Reimagining the Implementation of Historical Treaties<\/em> (Toronto: University of Toronto Press, 2017) 187 at\u00a0195. I have (no doubt na\u00efvely) tried to summarize some of my views on this topic in the following essay: Mark D Walters, \u201cThe Morality of Aboriginal Law\u201d (2006) 31:2 Queen\u2019s LJ\u00a0470.<\/p>\n

[23]<\/a> \u00a0\u00a0 See Roderick A MacDonald, \u201cKaleidoscopic Federalism\u201d in Jean-Fran\u00e7ois Gaudrault-Desbiens & Fabien G\u00e9linas, eds, The States and Moods of Federalism: Governance, Identity and Methodology<\/em>, (Cowansville, Qc, Brussels: Yvon Blais, Bruylant, 2005)\u00a0273, where a similar theme is discussed.<\/p>\n

[24]<\/a> \u00a0\u00a0 See John Borrows, \u201cWampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government\u201d in Michael Asch, ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference <\/em>(Vancouver: UBC Press, 1997)\u00a0155 at\u00a0161\u201362. See also Jeremy Webber, \u201cRelations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal peoples\u201d (1995) 33:4 Osgoode Hall LJ\u00a0623.<\/p>\n

[25]<\/a> \u00a0\u00a0 The covenant chain wampum belts exchanged at Niagara in 1764 are now lost, but drawings of them can be found in AF Hunter, \u201cWampum Records of the Ottawas\u201d in Annual Archaeological Report\u00a01901, Being Part of Appendix to the Report of the Minister of Education Ontario<\/em> (Toronto: LK Cameron, 1902)\u00a052 at\u00a052\u201353, online: University of Toronto <scans.library.utoronto.ca\/pdf\/1\/9\/
\narchaeologicalre00royauoft\/archaeologicalre00royauoft.pdf>.<\/p>\n

[26]<\/a> \u00a0\u00a0 See Mark D Walters, \u201c\u2018Your Sovereign<\/em> and Our Father\u2019<\/em>: The Imperial Crown and the Idea of Legal-Ethnohistory\u201d in Shaunnagh Dorsett & Ian Hunter, eds, Law and Politics in British Colonial Thought: Transpositions of Empire<\/em> (New York: Palgrave Macmillan, 2010) 91 at\u00a094, 99.<\/p>\n

[27]<\/a> \u00a0\u00a0 This speech was delivered at a treaty council that took place at Albany in September 1685, as reported in The Honourable Cadwallader Colden, The History of the Five Indian Nations of Canada Which are Dependent on the Province of New-York in America, and are the Barrier between the English and French in that Part of the World<\/em> (London, UK: T Osborne, 1747) at\u00a057, online: Internet Archive <https:\/\/archive.
\norg\/details\/historyoffiveind04cold> [emphasis in original].<\/p>\n

[28]<\/a> \u00a0\u00a0 John Gray, \u201cAgonistic Liberalism\u201d (1995) 12:1 Social Philosophy & Policy\u00a0111 at\u00a0114 [Gray, \u201cAgnostic Liberalism\u201d]. See also John Gray, Isaiah Berlin <\/em>(Princeton: Princeton University Press, 1996) at\u00a022.<\/p>\n

[29]<\/a> \u00a0\u00a0 Gray, \u201cAgonistic Liberalism\u201d, supra <\/em>note\u00a028 at\u00a0114.<\/p>\n

[30]<\/a> \u00a0\u00a0 Ibid <\/em>at\u00a0122 [emphasis in original].<\/p>\n

[31]<\/a> \u00a0\u00a0 Ibid<\/em> at\u00a0116.<\/p>\n

[32]<\/a> \u00a0\u00a0 See Daniel M Weinstock, \u201cThe Graying of Berlin\u201d (1997) 11:4 Critical Rev\u00a0481 at\u00a0490.<\/p>\n

[33]<\/a> \u00a0\u00a0 See Chantal Mouffe, \u201cDemocracy and Pluralism: A Critique of the Rationalist Approach\u201d (1995) 16:5 Cardozo L Rev\u00a01533; Chantal Mouffe, \u201cCarl Schmitt and the Paradox of Liberal Democracy\u201d (1997) 10:1 Can JL & Jur\u00a021; Chantal Mouffe, The Democratic Paradox<\/em> (London: Verso, 2000) at\u00a04; Chantal Mouffe, On the Political <\/em>(Abingdon: Routledge, 2005) at\u00a014\u201316; Chantal Mouffe, Agonistics: Thinking the World Politically <\/em>(London: Verso, 2013) at\u00a0137\u201338.<\/p>\n

[34]<\/a> \u00a0\u00a0 See Carl Schmitt, Constitutional Theory<\/em>, translated by Jeffrey Seitzer, ed (Durham: Duke University Press, 2008) at\u00a0405. See also Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty<\/em>, translated by George Schwab (Chicago: University of Chicago Press, 2005) at\u00a05\u20137. See generally Carl Schmitt, The Concept of the Political<\/em>, expanded ed, translated by George Schwab (Chicago: University of Chicago Press, 2007).<\/p>\n

[35]<\/a> \u00a0\u00a0 See David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar<\/em> (Oxford: Clarendon Press, 1997) at\u00a068, 96.<\/p>\n

[36]<\/a> \u00a0\u00a0 For a scathing critique of Mouffe\u2019s agonism, see Radhika Desai, \u201cFetishizing Phantoms: Carl Schmitt, Chantal Mouffe, and the \u2018The Political\u2019\u201d in Abigail B Bakan & Eleanor Macdonald, eds, Critical Political Studies: Debates and Dialogues from the Left<\/em> (Montreal: McGill-Queen\u2019s University Press, 2002) 387. See also Martin Beckstein, \u201cThe Dissociative and Polemical Political: Chantal Mouffe and the Intellectual Heritage of Carl Schmitt\u201d (2011) 16:1 J Political Ideologies\u00a033.<\/p>\n

[37]<\/a> \u00a0\u00a0 RSQ c\u00a0E-20.2 [Bill\u00a099<\/em>]. Judgment in this case has now been rendered in Henderson c Procureure g\u00e9n\u00e9rale du Qu\u00e9bec<\/em>, 2018 QCCS\u00a01586 (j.c.s. Claude Dallaire). See also Graeme Hamilton, \u201cQuebec Independence back in Spotlight as Challenge of 17-year-old Secession Law goes to Trial\u201d, National Post<\/em> (March 20 2017), online: <nationalpost.com>, archived at https:\/\/perma.cc\/4ZG3-LVCQ.<\/p>\n

[38]<\/a> \u00a0\u00a0 Reference re Secession of Quebec<\/em>, [1998] 2 SCR\u00a0217, 161 DLR (4th)\u00a0385 [Quebec <\/em>Secession Reference<\/em>].<\/p>\n

[39]<\/a> \u00a0\u00a0 Grand Council of the Crees, \u201cEeyou Estchee Declaration of Principles\u201d (17\u201319 October 1995), online: <www.gcc.ca\/gcc\/other.php>, archived at https:\/\/perma.cc\/C33Z-3ZNY (original website now offline). This statement was issued just weeks prior to the 1995 referendum on Quebec independence.<\/p>\n

[40]<\/a> \u00a0\u00a0 On competing conceptions of Indigenous sovereignty in Canada see generally Mark D Walters, \u201c\u2018Looking for a Knot in a Bulrush\u2019: Reflections on Aboriginal and Crown Sovereignty\u201d in Patrick Macklem & Douglas Sanderson, eds, From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights<\/em> (Toronto: University of Toronto Press, 2016)\u00a035.<\/p>\n

[41]<\/a> \u00a0\u00a0 Bill\u00a099<\/em>, supra<\/em> note\u00a037, s\u00a01.<\/p>\n

[42]<\/a> \u00a0\u00a0 James Tully, Public Philosophy in a New Key<\/em>, vol\u00a01 (Cambridge: Cambridge University Press, 2008) at\u00a0130, cited in Borrows, Canada\u2019s Indigenous Constitution<\/em>, supra<\/em> note\u00a021 at\u00a0288.<\/p>\n

[43]<\/a> \u00a0\u00a0 Jeremy Webber, The Constitution of Canada: A Contextual Analysis<\/em> (Oxford: Hart, 2015) at\u00a08 [Webber, Constitution of Canada<\/em>].<\/p>\n

[44]<\/a> \u00a0\u00a0 Ibid<\/em> [emphasis added]. For a link between Webber\u2019s idea of \u201cagonistic constitutionalism\u201d and Tully, see Jeremy Webber, \u201cWe Are Still in the Age of Encounter: Section\u00a035 and a Canada beyond Sovereignty\u201d in Macklem & Sanderson, supra<\/em> note\u00a040, 63 at\u00a064, n\u00a01, citing James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity<\/em> (Cambridge: Cambridge University Press, 1995).<\/p>\n

[45]<\/a> \u00a0\u00a0 As John D Whyte, representing the Attorney General of Saskatchewan, stated in his oral submissions before the Supreme Court of Canada in the Quebec Secession Reference<\/em>, supra<\/em> note\u00a038 at\u00a0para\u00a096: \u201cThe threads of a thousand acts of accommodation are the fabric of a nation.\u201d<\/p>\n

[46]<\/a> \u00a0\u00a0 See e.g. Jeremy Webber, \u201cNational Sovereignty, Migration, and the Tenuous Hold of International Legality: The Resurfacing (and Resubmersion?) of Carl Schmitt\u201d in Oliver Schmidtke & Saime Ozcurumez, eds, Of States, Rights, and Social Closure: Governing Migration and Citizenship<\/em> (New York: Palgrave Macmillan, 2008) 61 at\u00a061\u201362:<\/p>\n

For me, reading Schmitt is like looking the devil in the face. The implications of his arguments are objectionable but they are also undeniably and powerfully seductive. He uncovers\u2014indeed celebrates\u2014claims and motives that have more bite than we would like to admit. We have an obligation to look at him, understand his attraction, and be very clear where and why he goes off the rails.<\/p>\n

[47]<\/a> \u00a0\u00a0 Tully does occasionally cite Mouffe when explaining agonism (see e.g. James Tully, \u201cThe Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy\u201d (2002) 65:2 Mod L Rev\u00a0204 at\u00a0208, n\u00a08; James Tully, \u201cStruggles over Recognition and Distribution\u201d (2000) 7:4 Constellations\u00a0469 at\u00a0<\/em>476, 479 nn, 16, 23). Tully has been grouped with Mouffe among the agonists who pursue a \u201cpolitics of compulsion\u201d over one of principle, though, it is also acknowledged, that members of this group perceive \u201cthe potential for actual enjoyment, liberation and hope in aspects of the bleak coercive political world\u201d (see Marc Stears, \u201cLiberalism and the Politics of Compulsion\u201d (2007) 37:3 British J Political Science\u00a0533 at\u00a0545).<\/p>\n

[48]<\/a> \u00a0\u00a0 Michel Foucault, \u201cThe Subject and Power\u201d (1982) 8:4 Critical Inquiry\u00a0777 at\u00a0790, cited in James Tully, \u201cThe Agonic Freedom of Citizens\u201d (1999) 28:2 Economy & Society\u00a0161 at\u00a0167 [Tully, \u201cAgonic Freedom\u201d]. See also Borrows, Canada\u2019s Indigenous Constitution<\/em>, supra<\/em> note\u00a021 at\u00a0288 (where Borrows cites Tully); Borrows, Freedom & Indigenous Constitutionalism<\/em>, supra<\/em> note\u00a021 (discussing Webber\u2019s \u201cagonistic constitutionalism\u201d at\u00a0105).<\/p>\n

[49]<\/a> \u00a0\u00a0 Tully, \u201cAgonic Freedom\u201d, supra <\/em>note\u00a048 at\u00a0174 [emphasis in original].<\/p>\n

[50]<\/a> \u00a0\u00a0 Ibid<\/em>.<\/p>\n

[51]<\/a> \u00a0\u00a0 Dworkin, Justice for Hedgehogs<\/em>, supra<\/em> note\u00a09 at\u00a0130ff. See also Ronald Dworkin, \u201cLaw as Interpretation\u201d (1982) 60:3 Tex L Rev\u00a0527; Ronald Dworkin, Law\u2019s Empire<\/em> (Cambridge, Mass: Belknap Press of Harvard University Press, 1986) ch\u00a02 [Dworkin, Law\u2019s Empire<\/em>]; Ronald Dworkin, \u201cObjectivity and Truth: You\u2019d Better Believe It\u201d (1996) 25:2 Philosophy & Public Affairs\u00a087. The story of the link between ancient and modern interpretivism has not really been fully told, but I think the principal intermediary links between, say, Aristotle and Dworkin would be Henry Sidgwick and John Rawls, with countless and nameless common law judges doing the background work.<\/p>\n

[52]<\/a> \u00a0 These ideas are developed in Mark D Walters, \u201cThe Unwritten Constitution as a Legal Concept\u201d in David Dyzenhaus & Malcolm Thorburn, eds, Philosophical Foundations of Constitutional Law<\/em> (Oxford: Oxford University Press, 2016)\u00a033.<\/p>\n

[53]<\/a>\u00a0\u00a0\u00a0 See Dworkin, Law\u2019s Empire<\/em>, supra<\/em> note\u00a051 at\u00a0260\u201363.<\/p>\n

[54]<\/a>\u00a0\u00a0\u00a0 See Charter of the French language<\/em>, RSQ c\u00a0C-11. The sign laws had been the subject of a controversial ruling by the Supreme Court of Canada several years earlier (see Ford v Quebec (AG)<\/em> [1988] 2 SCR\u00a0712, 54 DLR (4th)\u00a0577).<\/p>\n

[55]<\/a> \u00a0\u00a0 See Edwards<\/em> v Canada (AG) <\/em>(1929), [1930] AC\u00a0124 at\u00a0136, [1930] 1 DLR\u00a098 (PC), Viscount Sankey (\u201c[t]he British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits\u201d at\u00a0136).<\/p>\n

[56]<\/a>\u00a0\u00a0\u00a0 See John Austin, The Province of Jurisprudence Determined<\/em>, 2nd ed (London: John Murray, 1861); Hans Kelsen, General Theory of Law and State<\/em>, translated by Anders Wedberg (Cambridge, Mass: Harvard University Press, 1945); HLA Hart, The Concept of Law<\/em> (Oxford: Clarendon Press, 1961).<\/p>\n

[57]<\/a> \u00a0\u00a0 See Paul AW Wallace, The White Roots of Peace<\/em> (Philadelphia: University of Pennsylvania Press, 1946) at\u00a07\u20138. For another recent comparison of the \u201cliving tree\u201d metaphor in Canadian constitutional law and the Haudenosaunee Great Law of Peace, see Borrows, Freedom and Indigenous Constitutionalism<\/em>, supra<\/em> note 21 at\u00a0151\u201352.<\/p>\n

[58]<\/a> \u00a0\u00a0 Arthur C Parker, \u201cThe Constitution of the Five Nations, or The Iroquois Book of the Great Law\u201d (1916) New York State Museum Bulletin No\u00a0184 at\u00a0102.<\/p>\n

[59]<\/a> \u00a0\u00a0 And so, it is different from deliberative discourse of the kind advanced by John Rawls. See Mark D Walters, \u201cDeliberating about Constitutionalism\u201d in Ron Levy et al, eds, The Cambridge Handbook of\u00a0Deliberative Constitutionalism\u00a0<\/em>(Cambridge: Cambridge University Press, 2018)\u00a0167.<\/p>\n

[60]<\/a> \u00a0\u00a0 See Webber, Constitution of Canada<\/em>, supra note\u00a043 at\u00a08, 259\u201365.<\/p>\n

[61]<\/a> \u00a0\u00a0 FR Scott, \u201cVillanelle for Our Time\u201d (1945) in Laura Moss, ed, Leaving the Shade of the Middle Ground: The Poetry of FR Scott<\/em> (Waterloo: Wilfred Laurier University Press, 2011)\u00a060. Leonard Cohen\u2019s recording of this poem is on his album \u201cDear Heather\u201d, CDROM (Toronto: Sony BMG Music Entertainment, 2004).<\/p>\n

[62]<\/a> \u00a0\u00a0 See Jeff Burger, ed, Leonard Cohen on Leonard Cohen: Interviews and Encounters<\/em> (Chicago, Chicago Review Press, 2014) at\u00a0xvi. See generally Sylvie Simmons, I\u2019m Your Man: The Life of Leonard Cohen<\/em> (New York: Ecco, 2012).<\/p>\n

[63]<\/a> \u00a0\u00a0 In relation to his friendship with FR Scott, Leonard Cohen told Sandra Djwa that he (Cohen) \u201chad attended law school at McGill for a time because it had been a good place for Scott\u201d, and that Scott had later allowed Cohen to stay at his summer house in North Hatley where he wrote much of his first novel The Favorite Game<\/em>. Cohen said that he had been reluctant to undertake the life of a writer, but Scott \u201cgave me the courage to fail.\u201d (See Sandra Djwa, \u201cAfter the Wipeout, a Renewal\u201d in Burger, supra <\/em>note\u00a062, 10 at\u00a010).<\/p>\n","protected":false},"excerpt":{"rendered":"

L\u2019honorable Mme Deschamps, vice-doyen Gold, Mesdames et Messieurs, chers coll\u00e8gues, ch\u00e8res coll\u00e8gues, chers \u00e9tudiants, ch\u00e8res \u00e9tudiantes. I wish to thank you all for taking the time this evening to come and listen to this lecture. Je voudrais exprimer mes sinc\u00e8res remerciements \u00e0 Mme Deschamps pour ses g\u00e9n\u00e9reux mots d\u2019introduction. C\u2019est pour moi un honneur d\u2019\u00eatre … Continued<\/a><\/p>\n","protected":false},"featured_media":0,"template":"","class_list":["post-19495","articles","type-articles","status-publish","hentry","article-type-speech"],"acf":[],"yoast_head":"\nToward the Unity of Constitutional Value\u2014Or, How to Capture a Pluralistic Hedgehog - McGill Law Journal<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/mcgill-lawjournal-new.nixa.ca\/article\/toward-the-unity-of-constitutional-value-or-how-to-capture-a-pluralistic-hedgehog\/\" \/>\n<meta property=\"og:locale\" content=\"fr_FR\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Toward the Unity of Constitutional Value\u2014Or, How to Capture a Pluralistic Hedgehog - McGill Law Journal\" \/>\n<meta property=\"og:description\" content=\"L\u2019honorable Mme Deschamps, vice-doyen Gold, Mesdames et Messieurs, chers coll\u00e8gues, ch\u00e8res coll\u00e8gues, chers \u00e9tudiants, ch\u00e8res \u00e9tudiantes. 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