Unwritten Constitutional Principles: The Challenge of Reconciling Political and Legal Constitutionalisms[Notice]

  • Jean Leclair

Professor, Faculty of Law, Université de Montréal. I wish to thank my friends and colleagues Noura Karazivan and Han-Ru Zhou for their invaluable comments on a preliminary version of this paper, and Bradley Wiseman for his elegant editorial work.

Citation: (2019) 65:2 McGill LJ 153

Référence : (2019) 65:2 RD McGill 153

On March 21 and 22, 2019, a symposium entitled “Unwritten Constitutional Norms and Principles: Contemporary Perspectives” was held at the Faculty of Law of the University of Ottawa. This special issue comprises five of the papers that were then presented. The organizers of the symposium, Vanessa MacDonnell and Se-shauna Wheatle, graciously asked me to participate, initially as a commentator, and subsequently, as the author of the foreword to this special issue. How one envisages the unwritten constitution in general and unwritten constitutional principles (UCPs) in particular is deeply rooted in one’s understanding of, and convictions about, both constitutionalism and democracy. Such understanding is also closely connected to what we as scholars believe to be the factors that trigger constitutional evolution—namely, speculative reason or political struggle, or both—and the role played by institutional actors in such evolution. And, most importantly, since a researcher’s conceptual theorization, however abstract it may be, is always—if only implicitly—based on a certain anthropological premise, our understanding of UCPs is linked to the kind of individual citizen we wish a particular constitutional regime to foster. The papers featured here are all intellectually stimulating, not only because of the thought and meticulousness with which they were written, but also because they cover most of the central issues raised by the conceptual nebula the “unwritten constitutional principles” have become. As I have written many papers on this subject, in both French and English, some of my own work is analyzed and criticized in this special issue. My position as author of this foreword is therefore somewhat uncomfortable. On the one hand, I cannot simply recount and summarize these papers, for although they are all excellent pieces of scholarship, I at times strongly disagree with what some authors assert, and with the manner in which my own work is sometimes depicted. On the other hand, it would be unjust to criticize colleagues deprived of the full opportunity to respond. I have therefore chosen the following strategy, one that does not require direct references to specific papers. This foreword will take the shape of a short essay. In Part I of this text, I will delineate what exactly is controversial about UCPs. In Part II, I shall inquire into the role of speculative reason and political struggle in constitutional evolution. I will discuss how our emphasis, as legal scholars, on one over the other testifies to our understanding of democracy and constitutionalism, and therefore impacts the degree of latitude we are willing to afford to judges in recognizing and enforcing UCPs. Throughout, I will argue for a just equilibrium to be struck between legal and political constitutionalisms, and more particularly, for the cultivation of a measure of skepticism toward a judge’s or a scholar’s capacity to find the “best answer” to a question of law. The five papers comprising this special issue showcase most of the major arguments commonly invoked in favour of or in opposition to UCPs, and they all, in one way or another, address the issues I intend to examine. Consequently, although I will purposely avoid any explicit mention of the papers, “authors” in this essay must be understood not as a general reference to scholars having written about UCPs, but rather as alluding to some or all of the five authors featured in this special issue. To conclude on this point, I must emphasize that this is not a contest. Even if the authors with whom I disagree were identified, no great harm would follow. It would in no way mean that my position is better in absolute terms than theirs. In his famous lecture “Science as …

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