TOWARD THE UNITY OF CONSTITUTIONAL VALUE - OR, HOW TO CAPTURE A PLURALISTIC HEDGEHOG.

Author:Walters, Mark D.
Position:Professor F.R. Scott Inaugural Lecture
 
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L'honorable Mme Deschamps, vice-doyen Gold, Mesdames et Messieurs, chers collegues, cheres collegues, chers etudiants, cheres etudiantes. I wish to thank you all for taking the time this evening to come and listen to this lecture.

Je voudrais exprimer mes sinceres remerciements a Mme Deschamps pour ses genereux mots d'introduction. C'est pour moi un honneur d etre presente par une des plus grandes juristes du Canada, une personne dont le dossier en matiere de service public est aussi vaste.

This evening I will defend a view of the constitution that is premised upon the ideal of normative unity. Evidence of this view may be found, I think, in the reasons authored by Mme Deschamps when she was a justice of the Supreme Court of Canada--in particular in her insistence upon critical reflection about long-established cases and doctrine in light of underlying or unwritten constitutional principles or values. My students present here this evening are, I hope, mentally listing the names of the relevant cases right now. Mme Deschamps, je vous remercie d'avoir pris le temps d'etre ici ce soir. Cela signifie beaucoup pour moi.

I wish to thank also Associate Dean Gold for his kind introductory remarks. Although he is unable to be here this evening, I wish also to thank the Dean of the Faculty of Law, Robert Leckey, for the tremendous support that he has shown me since I arrived at McGill last summer.

Finally, I am thankful for the presence this evening of my parents, Wynn and Mary Margaret Walters, and my spouse, Gillian Ready.

We are gathered this evening within the traditional territory of the Kanien'keha:ka people, a place that has long been a meeting point for other nations too, including the Anishinaabe and especially the Algonquin peoples. Indeed, this reality is one aspect of the themes of unity and pluralism that I want to address this evening. I return to this point in a few moments.

I am delivering the second inaugural F.R. Scott lecture. I want to start by going back to the first one, given by my predecessor, Rod Macdonald, on February 16, 1996. On that occasion, the Scott Professor reminded those present of the many ways in which Frank Scott had been, as Rod put it, "a "great Canadian". (1) That Frank Scott could win the Governor General's Award twice, once for his work in constitutional law and once for his work as a poet, is evidence of his unique capacities and contributions to public life. (2) Rod said that it was an "honour" to deliver his lecture but also a "daunting task", for Frank Scott was "an intellectual giant; [and] I do little more than walk in his shadow." (3)

Of course, at this time Rod Macdonald was already one of Canada's distinguished intellectuals himself. I will not list his accomplishments now--that would take more time than we have. But I do wish to register for the record my own view that Rod was beloved at McGill and throughout the legal academy in Canada and beyond because of his generous and original spirit, because of his ability to infuse within his students and colleagues a sense of wonder and optimism about law's potential for good, and because of his steadfast refusal to accept orthodoxy as authority. (4) If Rod Macdonald was walking in the shadow of Frank Scott, what am I doing? If it possible to walk in the shadow of a giant who walks in the shadow of a giant, then that is what I am doing. Rod may have been appointed to the Scott Chair because of his achievements, but I get the sense that I have been appointed because of my potential achievements. My new colleagues have placed their trust in me to fulfill that potential, and I am deeply honoured and humbled to be given the opportunity.

So, then, let me begin. This evening, I want to defend a theory of constitutional value that is premised upon what I will call "normative unity". I have, however, chosen the title of my lecture carefully. First, I wish only to gesture "toward" such a theory. I will not try to offer a complete account. I am, as it were, letting myself off the hook. Second, you will have noted that I have also alluded in the title to that most-important of McGill ideas, "pluralism". My objective, then, is to offer some critical reflections about the ideals of unity and pluralism in constitutional law and how they may be seen to be mutually reinforcing rather than conflicting ideals. In particular, I want to examine and ultimately reject a view that appears to be gaining ground in Canada: the view that the Canadian constitution is characterized by something called "agonistic constitutionalism". "Agonism" is a term derived from the Greek word agon, meaning conflict or strife, and within moral and political philosophy it has come to represent a conflict-focused account of pluralism. (5)

I should, however, be clear in this respect. There is no question that persistent disagreement and therefore debate about basic constitutional values is not just inevitable but should be welcomed and cherished within any democratic pluralistic society. I want to suggest, however, that disagreement is not inconsistent with the commitment to the kind of normative unity that is necessary for the ideals associated with legality or constitutionalism to flourish. My concern is that the invocation of agonism may obscure this fundamental point. We are not yet in a post-truth world, though that world seems at times threatening, and so I think that we need a theory of constitutionalism that allows us to take a stand and to defend the truth about the meaning of certain basic constitutional values, including liberty, equality, democracy, justice, and, of course, legality or the rule of law. That theory must, at the same time, accept and defend another constitutional value, the value of pluralism. These are the values that must hold together, somehow, as a coherent whole if individuals, communities, and nations are to be equally valued and respected within Canada and the world beyond.

But what about this business of the hedgehog? It was, of course, Isaiah Berlin who famously stated in a 1953 essay: "There is a line among the fragments of the Greek poet Archilochus which says: 'The fox knows many things, but the hedgehog knows one big thing.'" (6) Berlin proceeded to explain that certain scholars are like foxes because they are fast and clever and pursue many ends and hold many ideas not all of which are related or consistent, and others are like hedgehogs because they seek gradually to reveal a single central vision that is more or less coherent. The commonly accepted view is that Isaiah Berlin was a fox par excellence. (7) In his most famous essay, "Two Concepts of Liberty", Berlin argued that liberal societies are, or should be, marked by two basic features: first, a commitment to so-called negative liberty, the idea that the individual has the right to exercise freedoms protected from the state; and, second, the acknowledgment of pluralism or value pluralism, the idea that freedom allows each person to develop conceptions of value or good of their own which will invariably be, among the people of any liberal community, multiple and conflicting. (8)

The basic question that I would like to address is whether pluralism means we must be foxes--or, in other words, whether if we are hedgehogs, we must deny pluralism. The answer to this question given by the legal philosopher Ronald Dworkin in his epic account of ethics and political morality, Justice for Hedgehogs, is that we should be hedgehogs and reject value pluralism. (9) But what does this really mean? Does the hedgehog really have to reject pluralism altogether? Hedgehogs are notoriously shy creatures. They are hard to find at the best of times. Finding a pluralistic hedgehog might well be impossible. But that is our task this evening.

In pursuing this end in this inaugural lecture, it will be helpful for me to go back to the point where my predecessor ended his inaugural lecture. After a careful assessment of Frank Scott's understanding of the Canadian constitution, Rod Macdonald concluded that this understanding left several challenges for the constitution unaddressed. One of those challenges he identified as follows:

[H]ow should governments respond to the challenges of pluralism? The forging of a unitary Canadian civic identity, so central to F.R. Scott's constitutional vision, has little to say about the recognition and accommodation of ethnic and cultural diversity in a modern multicultural state such as Canada. Rather, it is the theme of multiple allegiances--the need to mediate between different and divided loyalties within a state that does not seek to impose a homogeneous view of citizenship--that makes the explicit claims of Charter patriots possible. (10) Rod no doubt understood that Scott was a product of his time, and that given his experiences of living through the Depression and the Duplessis era in Quebec it would have been natural for him to assume that the ambitious project of building a modern social-democratic state would require strong federal vision and action--or a unitary civic identity. Macdonald's actual concern about Scott's constitutionalism ran to a different, deeper level. Rod was struck by the fact that Scott, despite his stature as a great Canadian poet, was relatively unpoetic in his approach to the constitution. The constitution according to Scott was, Rod thought, all reason and no rhyme. As Rod concluded: "The key challenges now facing Canada"--he had just mentioned pluralism, divided loyalties, multiple allegiances, and a heterogeneous view of citizenship "cannot be addressed without the rediscovery of rhyme and the celebration of both rhyme and reason in Canadian constitutionalism." (11)

The idea that rhyme is important to the value of constitutionalism in a pluralistic society strikes me as an important insight. Two figures overshadow much of modern legal and jurisprudential thought. These figures have been known by different names at...

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