Hogg, P. W.

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Book Review: Constitutional Theory, by Geoffrey Marshall

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Osgoode Hall Law School of York UniversityOsgoode Digital CommonsArticles & Book Chapters Faculty Scholarship1973Book Review: Constitutional Theory, by GeoffreyMarshallP. W. HoggOsgoode Hall Law School of York UniversityFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/scholarly_worksThis work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works4.0 License.This Book Review is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted forinclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons.Recommended CitationHogg, Peter W. "Book Review: Constitutional Theory, by Geoffrey Marshall." Canadian Bar Review 51.3 (1973): 536-538.BOOK REVIEWSREVUE DES LIVRESConstitutional Theory . By GEOFFREY MARSHALL . Oxford: Claren-don Press. 1971 . Pp . ix, 238.(Y-2 .25 U.K.)This is a book about "constitutional theory" : it seeks, in the au-thor's words, "to sketch out some of the basic questions that facestudents of constitutional government".' The topics considered in-clude the definition of constitutional law; the Crown ; sovereignty;the functions of judges and legislators ; the enforcement of civilrights ; equality under the law; freedom of speech and assembly ;and civil disobedience . It is something of a salad, and yet the topicsall share the characteristic of being fundamental to the study ofconstitutional law. In my mind too they share the characteristic ofbeing inherently interesting . They lose none of their inherent in-terest, and they gain greatly in sophistication, when subjected tothe critical and thoughtful analysis of Dr . Marshall .In Canada there has always been such an abundance of pressingconcerns with the federal distribution of powers that much of thisconstitutional theory has tended to be pushed out of law schoolsyllabi. And yet constitutional theory has practical implicationsin Canada . The proposals which have been made from time to timeto "patriate" the constitution suggest some of Marshall's basic ques-tions. Indeed the problems of patriation (or autochthony) wereanalyzed in his book on Parliamentary Sovereignty and the Conz-monwealth.' There is more discussion in the present book .' Hepoints out that the more extreme proposals for patriation involve aconfused identification of continuity between an old and a newsystem with subordination of the new system to the old; the authordescribes them as "a wish on the part of the offspring of the Motherof Parliaments simultaneously to cut the umbilical cord and to denythat it ever existed" .4The Canadian Bill of Rights also raises some fundamentalquestions. If it is to be effective with respect to federal statutes' P. v.a (1957), eh. 7.s Pp. 57-64.4P. 63 .1973]	Revue des Livres 537enacted after 1960, then a federal Parliament has succeeded (insome sense) in binding its successors . Curiously, there has beenonly a little discussion of the constitutional (or political) theorywhich would justify such a result .' Unfortunately Marshall's earlierbook on Parliamentary Sovereignty was published in 1957-beforethe enactment of the Canadian Bill of Rights . I would have thoughtthat the problem was sufficiently interesting to warrant discussionin the present book . Instead it is dealt with in a single sentence-almost an obiter dictum-which implies (1) that the notwith-standing clause in the Bill of Rights is not a "manner and form"limitation, and (2) that the notwithstanding clause is neverthelesseffective even with respect to future legislation .' If these two ap-parently inconsistent propositions are indeed correctly inferredfrom what is an uncharacteristically cryptic sentence, then thetopic would certainly seem to justify more elaborate discussion .Another topic which is becoming important for the Canadianreader is the idea of equality under the law, or "equality beforethe law", as section 1(b) of our Bill of Rights would have it. TheCanadian courts have been using this guarantee to strike downvarious provisions of the Indian Act, and the most recent decisionat the time of this writing seems to leave the entire Act vulnerableto judicial attack.' My own view is that these dec'==s=ons articulateabsurdly crude concepts of "equality", and that, unless counsel andjudges take the time to examine the literature and refine their con-cepts, the guarantee of equality in the Bill of Rights is goingto bz-come an unmanageable nuisance . The discussion of equality inthis book, although fairly short,' analyses the various possiblemeanings of the concept and shows how difficult it is to keep with-in justiciable bounds . He offers no solution, but he does "unpack"the problem in a way which should help us to avoid the grosser,judicial excesses .Anyone with so much as a nodding acquaintance with the lit-erature of Commonwealth constitutional law is familiar with someof Marshall's work . All constitutional lawyers are indebted to hisscholarship and pow:rs of analysis . The present book is not asoriginal and important as Some Problems of the Constitution s orParliamentary Sovereignty and the Commonwealth," each of whichtook a narrower field and explored it more thoroughly . The present' E.g., W. S. Tarnopolsky, The Canadian Bill of Rights (1966), ch . 3.P. 42 .' Canard v. A .G. Can. (1972), 30 D.L.R . (3d) 9 (Man. C.A.) . See alsoR. v. Drybones, [19701 S.C.R . 282, 9 D.L.R. (3d) 473 ; Re Lavell and A.G.Can . (1971), 22 D.L.R. (3d) 188 (Fed. C.A .) ; Bedard v. Isaac (1971),25 D.L.R . (3d) 551 (Ont. H.C.) .s Pp . 136-153 .'With G. C. Moodie (1959) ."Supra, footnote 2.538	THE CANADIAN BAR REVIEW [VOL. LIbook is more introductory in nature . In fact the author says in thepreface that he has written it for political scientists rather thanlawyers. Nevertheless it is compulsory reading for all serious stu-dents of the constitution, whether political scientists or lawyers, andnone of them will fail to learn from the experience . It is a verygood book .P. W. HOGG*The Canadian Law of Trade Marks and Unfair Competition. ThirdEdition. By HAROLD G. Fox. Toronto : The Carswell CompanyLimited. 1972 . Pp. 848. ($80.00)The formidable textbooks of the late Harold Fox have been thestandard Canadian works on patents, trade marks and copyrightfor the working lives of most Canadian practitioners. Fox was aprincipal author of the present Canadian Trade Marks Act, andhas been its most scholarly interpreter . The second edition of hisbook on trade marks was written in two volumes in 1956, shortlyafter the statute was enacted. In the third edition those two volumeshave been compressed into one by eliminating almost 300 pages oftext, and by leaving out appendices which included some obsoletelitigation forms, the old Canadian statutes, and the valuable 1953 re-port of the TradeMarksLaw Revision Committee of which Dr. Foxwas chairman . The third edition retains the historical matter that islikely to remain of- practical value. The appendices still include thepresent Trade Marks Act and Rules, the Paris Convention as re-vised at Stockholm in 1967, and a list of trade marks that havebeen considered by the courts .The manuscript of the present work was completed beforeseveral sections of the Trade Marks Act were renumbered in theRevised Statutes of 1970, before the repeal of section 61 in theRevised Statutes relating to appeals to the Supreme Court of Can-ada, and before the transmutation of the Exchequer into the Fed-eral Court. To take account of these developments, the text hasnot been revised but the publishers have reproduced the TradeMarks Act in its present form and have provided a table showinghow the sections have been renumbered, and they have insertedunder "Exchequer Court" in the index a note advising the readerto refer to the Federal Court Act and Rules. The chapter on in-come tax takes into account the major tax changes of 1972, butthe 1969 amendment of the Trade Marks Act, now appearing as* P. W. Hogg, of Osgoode Hall Law School, York University, Toronto,Ontario.

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Book Review: Constitutional Theory, by Geoffrey Marshall

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