Legal philosophy
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Constitutional Amendment and the Law
I have been a bit harsh on the Supreme Court in my first post on its opinion in the Reference re Senate Reform, 2014 SCC 32, saying that it had reduced the constitutional text to the status of a façade, which hid as much as it revealed of the real constitutional architecture, which only the Continue reading
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Precedent and Democracy
“Long-standing” precedent is generally regarded as more authoritative than one of recent vintage. But there is reason to question that assumption, too. The more ancient a rule, the more likely it is that the reasons that made it sensible or good (whatever one’s criteria for the goodness of legal rules!) at the time it crystallized Continue reading
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Storm and Havoc
Time for more shameless self-promotion, after my rant on Thursday about not being cited by the Québec Court of Appeal. A paper of mine, called “Storm and Havoc: The Rule of Law and Religious Exemptions,” is coming out any time now in the Revue Juridique Thémis de l’Université de Montréal, a mere three years after Continue reading
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The Harm Is Not in Hate Speech
I wanted to come back to the sad events of last weekend, when a mosque in Saguenay, in Québec, was smeared with, purportedly, pig blood, and angry letters were sent both to the mosque and to the local Radio-Canada station, demanding that Muslims “assimilate or go home.” As Radio-Canda reported, police are considering charges, both Continue reading
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Real Intellectual Life
I have recently come across a great paper by Mark D. Walters, “Dicey on Writing the Law of the Constitution”, (2012) 32 OJLS 21. (UPDATE: The original link is no longer working, alas, and the paper is no longer freely accessible.) It’s not brand new (it was published last year), but as prof. Walters, unfortunately, Continue reading
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Nothing Like It
Law, perhaps even more than man, is a creature of habit. It thrives on the humdrum. It likes nothing better than demonstrations that one case is just like some other in all relevant respects. It is a creature of habit in a more literal sense too, in that legal rules often crystallize out of the Continue reading
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Looking Back
Rule of Law theorists invariaby insist that legislation must be prospective ― that the law must be changed, if changed it must be, for the future only and not for the past. But a thoughtful opinion delivered last week by Justice MacDonnell of the Superior Court of Ontario shows that sometimes at least, things are Continue reading
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Law, Art, and Interpretation
The idea that interpretation in law is similar to interpretation in music is not exactly new. For example Joseph Raz, in “Authority, Law, and Morality,” first published in 1985, wrote that “Judicial interpretation can be as creative as a Glenn Gould interpretation of a Beethoven piano sonata.” But Jack Balkin, in a wonderful paper, “Verdi’s Continue reading
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What Will They Be Thinking?
Jack Balkin has an interesting post on Balkinization, discussing what he calls “arguments from the future” in constitutional law―arguments to the effect that a constitutional issue has to be resolved a certain way because of what people will think about it at some point in the future, say in 20 years. “If,” he writes, like Martin Continue reading
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What Judges Do
First of all, my most abject apologies for the silence of the last couple of weeks. I was swamped (and then trying to recover from being swamped). I have a lot to catch up on, if I can, not least the Supreme Court’s hate speech decision, Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11. But I want to Continue reading
Double Aspect 