Kislowicz on Law, Faith, and Canada's Unwritten Constitution @HowieKislowicz @UCalgaryLaw

Howard Kislowicz, University of Calgary Faculty of Law, is publishing Law, Faith, and Canada’s Unwritten Constitution in volume 25 of the Review of Constitutional Studies (2021). Here is the abstract.

This article argues that the Canadian judicial attachment to the unwritten Constitution is faith-like. The faith-like aspects of this jurisprudence include the following explicit and implicit commitments:

 

1. The Constitution is incompletely and imperfectly stated by the constitutional text;

 

2. The Constitution is revealed through the act of interpretation in glimpses over time to authoritative interpreters;

 

3. The unwritten Constitution has provided and will provide reliable and morally good guidance for action, sometimes overtaking the written text of the Constitution; and

 

4. The precise nature and location of the Constitution eludes description, leading to reliance on metaphors and references to tradition.

 

This matters because the Canadian Constitution is often called upon, through the courts, to settle disputes surrounding religious practices. In resolving such disputes, the law must claim some form of authority over religion. I claim that the Court normatively justifies this assertion of authority by implicitly contrasting its own rationality with religion’s faith-based way of encountering the world. This claim is unstable because of the faith-like aspects of the law. This, however, is not a reason to overhaul the case law. It is instead a reason for judicial humility.

Download the article from SSRN at the link.