The Representation of Canadian Law In Art and Architecture

David DesBaillets, University of Quebec, Montreal (UQAM), Faculty of Law; University of Ottawa, Faculty of Law, has published Representations of Canadian Justice: The Iconography and Symbolism of the Supreme Court of Canada. Here is the abstract.

The goal of this paper would be to bridge the world of artistic and architectural representations of the law, primarily in the form of the constitutional court house, and the legal cultures and values that inspire their design. I will proceed by undertaking a comprehensive research of the Supreme Court of Canada, including its history, esthetics, architectural and design innovations, personal input of the architects, social and historical contexts, as well as some of the legal and constitutional concepts that they embody. The assumption of my hypothesis being constitutional court houses, with their often impressive artistic details and inscribed legal maxims, seem to possess a quasi-spiritual significance, being an extension of what has become in many societies, especially developed liberal democracies with strong rule-of-law traditions, the secular approximation of a religious institution and, thus, transform the courts into a kind of temple of law. However, the challenge of creating a courthouse, especially the Supreme Court, that reflects the legal traditions and social norms (the former often being in conflict with the latter) as well as the ever evolving aspirations of a dynamic and highly diverse, pluralistic society such as Canada’s is ,in many respects, an impossible one, and it remains an open question whether the image that the court conveys to the visitor, be they layperson or legal official, is ,as Gournay & Vanlaethem state in their essay found in The Supreme Court of Canada and Its Justices 1875-2000: A Commemorative Book , the most “eloquent three dimensional representation of the role the Supreme Court has assumed in the life of the nation.”

The full text is not available from SSRN. 

The Development of Western Constitutional Ideas

Jean LeClair, Université de Montréal Faculty of Law, has published L'Avènement Du Constitutionnalisme En Occident: Fondements Philosophiques Et Contingence Historique (The Advent of Western Constitutionalism: Philosophical Foundations and Historical Contingency) in volume 41 of the Revue de droit de l'Université de Sherbrooke (2011). Here is the abstract.

Pour le bénéfice des non-initiés aux arcanes du droit constitutionnel occidental, l’auteur, après avoir brièvement décrit les notions de droit constitutionnel et de constitutionnalisme, s’attarde à retracer les idées-force qui, en Occident, ont rendu possible l’avènement de ces notions. Par la suite, il examine la trajectoire historique empruntée plus spécifiquement par les constitutionnalismes anglais, français et américain. L’auteur cherche ainsi à démontrer que, malgré la contingence historique du constitutionnalisme canadien, les principes philosophiques qui en sont à la source tirent leur origine de ce qu’on pourrait appeler un « patrimoine intellectuel occidental.

For the benefit of those unacquainted with the arcane features of Western Constitutional law, the writer, after briefly describing the notions of “constitutional law” and “constitutionalism”, seeks to set out the fundamental ideas which have enabled these notions to develop in the Western World. He then examines the historical trajectory of British, French and American constitutionalism. In so doing, the author seeks to underline that, notwithstanding the historical contingency of Canadian constitutionalism, the philosophical ideas upon which it is grounded may be described as originating from a “Western intellectual patrimony.”

Download the article from SSRN at the link. (NB: Text is in French).

Understanding Allegiances Through Narrative

Jean LeClair, University of Montreal Faculty of Law, has published Federalism, Socrates and Ulysses. Here is the abstract.

Aboriginal scholars sometimes convey abstract ideas through the use of stories. And so, as a means of introducing a thesis about federalism developed in a longer piece written in French, this short paper relates two stories that express some of the most basic ideas that, according to the author, a normative theory of federalism entails. These stories enable one to understand that federalism could be understood as a conceptual institutionalization of reflexivity; as an intellectual posture that makes it mandatory to think problems with a critical eye toward both ourselves and others.

A true federal spirit requires that we be “gadflies”, “stinging bees” always on the lookout for totalizing approaches. Approaches whose conceptual coherence requires that one aspect of reality be obliterated.

Sovereignty, nationalism, cultural authenticity, rights, as “all or nothing” concepts, are unable to explain the complexity of the relationships between aboriginal peoples and Euro-Canadians. All these concepts call for reality to be jammed into one single pigeon-hole.

Instead of emphasizing the particular nature of the relationships between individuals, between groups and between individuals and groups, these concepts seek to identify a quintessential substance: the existence of a “state” where sovereignty is concerned; of a volkgeist or “spirit of the people” where nationalism is appealed to; a cultural essence where authenticity is invoked and, finally, the definition of what distinguishes so radically a person that it deserves to be elevated to the level of a “right”.

From these perspectives, nurturing many allegiances is oftentimes conceived as a symptom of false consciousness. However, envisaged from a federal perspective, duality, and even ambivalence, is not pathology. At the same time, one must recognize that individuals do sometimes feel a stronger attachment to one particular political community or social group.

Federalism is not only an attempt at acknowledging the existence of these social groups to which the citizen’s multiple attachments are engrafted. It also aims at structuring relationships so that these individuals and groups can coexist peacefully together. Unlike the concept of sovereignty, nation, cultural authenticity and rights, federalism makes compromise, concessions and even renunciation plausible, possible and honourable.

Download the paper from SSRN at the link.

Canadian Legal Norms On Film

Ed Morgan, University of Toronto Faculty of Law, has published "The Mild, Mild West: Living by a Code in Canadian Law and Film," at 2 Law, Culture, and the Humanities 115-135 (2006).

Canadians live by the rules. If the overriding myth of American history is that of rugged individualism and the conquest of the frontier, the story told of Canada is one of socialized, orderly engagement with and development of the north. This article probes the national image as it appears in the poplar and the legal realms. The vehicles for this exploration are Canadian constitutional law and Canadian film. A species of case law - that dealing with the division of powers and, more specifically, with federal criminal jurisdiction - will be juxtaposed with a species of movie - the Canadian North Western and, more specifically, The Grey Fox (1982). The imagery and national aspirations expressed in one medium help illuminate the equivalent motifs in the other. It turns out that if Canadians live by anything, it is a code of continuous dissent, since the constitutional rules that govern national life are in an evolving state of debate.

Download the article from SSRN here.