The Paradoxes of National Self-Determination

Some have argued that the right of national self-determination gives every national group the power to decide for itself whether to remain part of an existing state or to secede unilaterally and form its own state. Such a theory underpins the claim that Quebec is entitled to decide on its own whether or not to leave Canada. This paper examines the main philosophical arguments for the theory and finds them one-dimensional and inadequate; they fail to take account of the full range of complex issues arising in actual cases of proposed secession. If the right of national self-determination is understood as involving a right of unilateral secession, it cannot be attributed to national groups across the board. It arises only in specific historical circumstances, usually involving oppression or other forms of grave injustice

Three Concepts of Law: The Ambiguous Legacy of H.L.A. Hart

The law presents itself as a body of meaning, open to discovery, interpretation, application, criticism, development and change. But what sort of meaning does the law possess? Legal theory provides three sorts of answers. The first portrays the law as a mode of communication through which law-makers convey certain standards or norms to the larger community. The law's meaning is that imparted by its authors. On this view, law is a vehicle, conveying a message from a speaker to an intended audience. The second theory portrays the law as a mode of interpretation, whereby judges, officials, and ordinary citizens make decisions about how the law applies in various practical contexts. The law's meaning is that furnished by its interpreters. According to this theory, law is a receptacle into which decision-makers pour meaning. The third viewpoint argues that these theories, while not altogether wrong, are incomplete because they downplay or ignore the autonomous meaning that the law itself possesses. This theory suggests that the law is basically a mode of participation, whereby legislators, judges, officials, and ordinary people attune themselves to an autonomous field of legal meaning. The law's meaning is grounded in a body of social practice which is independent of both the law's authors and its interpreters and which is infused with basic values and principles that transcend the practice. On this view, law is the emblem of meaning that lies beyond it. Elements of all three theories are present in H.L.A. Hart's influential work, The Concept of Law, which attempts to fuse them into a single, all-encompassing theory. Nevertheless, as we will argue here, the attempt is not successful. Any true reconciliation of the communication and interpretation theories can only take place within the framework of a fully developed participation theory. In the early stages of his work, Hart lays the foundation for such a theory. However, his failure to elaborate it in a thoroughgoing way renders the work incomplete and ultimately unbalanced. As we will see, there is something to be learned from this failure

The Tragedy and Promise of Self-Determination

The principle of self-determination, like Janus, has two faces: negative and positive. Often understood as enabling the fracture of states into national components, the principle is better seen as facilitating the creation of multinational frameworks that foster toleration and human rights

Aboriginal Sovereignty and Imperial Claims

It is commonly assumed that Indigenous nations had neither sovereignty in international law nor title to their territories when Europeans first arrived in North America. Thus the continent was legally vacant and European powers could gain title to it simply by such acts as discovery, symbolic acts, or occupation, or by concluding treaties among themselves. This paper argues that this viewpoint is misguided and cannot be justified either by reference to positive international law or to basic principles of justice. To the contrary, Indigenous American nations were sovereign entities holding exclusive title to their territories at the time of European contact, and they participated actively in the formation of Canada and the United States. This fact requires us to rewrite our constitutional histories and reconsider the current status of Indigenous nations

Aboriginal Language Rights

This paper considers several possible foundations for Indigenous language rights in the Constitution of Canada and argues for an approach that grounds these rights in inter-societal common law

Are Constitutional Cases Political?

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that constitutional adjudication should in some manner be informed by this pursuit. But to say that judges, like other governmental figures, should act for the good of the community and its members does not throw much light on what that good entails and how it can be achieved, or help us understand the relative roles of judges, legislators and administrators in the process. This paper argues that good constitutional decision-making requires a variety of particular arts and skills that are best learned by experience and practice within a certain constitutional tradition. These skills, in some degree, are possessed by able politicians, administrators and judges alike - but each role has its distinctive traditions, which emphasize different skills and abilities. Nevertheless, tradition alone is an inadequate basis for making constitutional decisions. Only on the assumption that a transcendent basis for moral and political judgment exists can debates within a society over the justice and morality of existing arrangements be anything other than a senseless battle of wind and tide

The Nature of Aboriginal Title

The concept of Aboriginal title is an autonomous concept of Canadian common law that bridges the gulf between Indigenous land systems and imported European land systems. It does not stem from Indigenous customary law, English common law or French civil law. It coordinates the interaction between these systems without forming part of them. In effect, it is a form of inter-societal common law

The Generative Structure of Aboriginal Rights

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to existing aboriginal and treaty rights . In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only a modest ability to evolve. However, as a brief review of the Court\u27s reasoning reveals, this approach left much to be desired. Nevertheless, in the decade since the Van der Peet case was decided, the Supreme Court has shown mounting signs of discomfort with the test laid down there. In a series of important decisions, it has quietly initiated the process of reshaping the test\u27s basic tenets. This process has taken place on three fronts. First, the Court has relaxed its exclusive focus on specific rights - rights distinctive to particular aboriginal groups - and allowed for the existence of generic rights - uniform rights that operate at an abstract level and reflect broader normative considerations. Second, the Court has recognized that the date of European contact is not an appropriate reference point in all contexts and looked increasingly to the period when the Crown gained sovereignty and effective control. Finally, the Court has placed ever-greater emphasis on the need for aboriginal rights to be defined by negotiations between the parties, tacitly signalling that aboriginal rights are flexible and future-oriented, rather than mere relics of the past. Here I take stock of the matter and argue that these trends presage the birth of a new constitutional paradigm, in which aboriginal rights are viewed as generative and not merely historical rights

Are Constitutional Cases Political?

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that constitutional adjudication should in some manner be informed by this pursuit. But to say that judges, like other governmental figures, should act for the good of the community and its members does not throw much light on what that good entails and how it can be achieved, or help us understand the relative roles of judges, legislators and administrators in the process. This paper argues that good constitutional decision-making requires a variety of particular arts and skills that are best learned by experience and practice within a certain constitutional tradition. These skills, in some degree, are possessed by able politicians, administrators and judges alike - but each role has its distinctive traditions, which emphasize different skills and abilities. Nevertheless, tradition alone is an inadequate basis for making constitutional decisions. Only on the assumption that a transcendent basis for moral and political judgment exists can debates within a society over the justice and morality of existing arrangements be anything other than a senseless battle of wind and tide