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Canadian Federalism in Design and Practice: The Mechanics of a Permanently Provisional Constitution

Abstract

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation by governments. Furthermore, changes in practice initiated by Canadian subnational actors have produced changes in the allocation of national and subnational authority that are plausibly characterized as constitutional in magnitude. The paper concludes that the design of the Canadian federal system may inadvertently undermine its capacity to stabilize itself at any particular point of constitutional evolution, making it ‘permanently provisional.’

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The Canadian Living Tree Doctrine as a Comparative Model of Evolutionary Constitutional Interpretation

Abstract

This paper starts with a general contextualisation of how Canadian constitutional law acquired an important role in global constitutional conversations in recent decades. It then considers, in particular, the well-known Canadian Living tree doctrine as a model of evolutionary constitutional interpretation, and argues that it is a relevant case study for our purposes since it is able to precisely link the ‘history, evolution, influence and reform’ of constitutional law in a comprehensive doctrine. The doctrine's comparative influence will be analysed in particular: the Living tree is especially relevant, since its comparative influence is traceable both in the work of courts that are historical participants in transnational judicial conversations, and courts that are new players in the game.

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Constitutional Judges and Secession. Lessons from Canada … twenty years later

Abstract

In constitutional theory, the referendum is an instrument that allows for the expression of the popular will in government decisions and through which people are asked to vote directly on an issue or policy. Over the last decades, the referendum has been the instrument used by minority groups to claim their independence supported by popular will. This paper examines trends in constitutional jurisprudence on the issue of independence referendums. The birth of this constitutional trend can be found in the 1998 decision by the Supreme Court of Canada in the Reference Re Secession of Quebec. The principles developed therein have been further explored in two recent cases, issued by the Italian Constitutional), and by the Spanish Constitutional Tribunal in the latest decision of the Catalonia saga (Judgment no. 114/2017).

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Franchises Lost and Gained: Post-Coloniality and the Development of Women’s Rights in Canada

Abstract

The Canadian constitution is to some extent characterised by its focus on equality, and in particular gender equality. This development of women’s rights in Canada and the greater engagement of women as political actors is often presented as a steady linear process, moving forwards from post-enlightenment modernity. This article seeks to disturb this ‘discourse of the continuous,’ by using an analysis of the pre-confederation history of suffrage in Canada to both refute a simplistic linear view of women’s rights development and to argue for recognition of the Indigenous contribution to the history of women’s rights in Canada.

The gain of franchise and suffrage movements in Canada in the late nineteenth and early twentieth century are, rightly, the focus of considerable study (Pauker 2015), This article takes an alternative perspective. Instead, it examines the exercise of earlier franchises in pre-confederation Canada. In particular it analyses why franchise was exercised more widely in Lower Canada and relates this to the context of the removal of franchises from women prior to confederation.

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