A Common Law Theory of Judicial Review: The Living Tree (review)

For many Canadian jurists, the coming into force of the Charter of Rights and Freedoms in 1982 was something of a tragedy; for others it was the arrival of the New Jerusalem. Of course, the Charter was only part of a larger package of constitutional reform brought about by the Canada Act, 1981 (U.K.). Moreover, however much jurists like to think that the Constitution Act, 1982 of which the Charter comprised the first 33 sections was a legal event of great moment—involving, notably, "patriation" of the power to amend the larger part of the Canadian constitution—others understood the process of constitutional reform quite differently. For them, the central objective pursued by Mr. Trudeau was political and sociological: the abandoning of a conception of Canada as being simply a "compact" between "two founding peoples"; and the forging of a new Canadian identity grounded in a set of shared commitments about the purposes, scope and limits of governmental action. Over the quarter-century since the signing ceremony on Parliament Hill in April 1982, the juristic interpretation has come to dominate scholarly assessments of the Charter, even though for most Canadians the political dimension seems more present. "Charter patriots", "children of the Charter", "equality seekers" and "multicultural entrepreneurs" are expressions that capture their aspirations for what it now means to be a Canadian.

Waluchow, a professor of Philosophy at McMaster University and a student of H.L.A. Hart, whose legal theory permeates this monograph, locates himself among those who focus on the Charter as a legal instrument. He sets himself a difficult, but centrally important, task: How to explain and justify constitutional review of legislation. Before attending to Waluchow's thesis it is appropriate to clarify a few points about the scope of his claim. Although the book is entitled A Common Law Theory of Judicial Review, most lawyers would find the title curious, given its contents. To begin, the book has very little to say about "judicial review" as the subject is traditionally understood in the Anglo-Canadian world. Almost no attention is paid to judicial review of administrative action, for more than 400 years the lifeblood of common law constitutionalism. Certiorari, mandamus, quo warranto and habeas corpus were judicial remedies of high moment. Through them, the Court of Kings Bench developed the basic contours of what we now know as the Rule of Law. It exercised a supervisory authority over inferior tribunals and statutory decision-makers, constraining them to act within their delegated jurisdiction, imposing minimal norms of procedure through devices like the "rules of natural justice", checking the exercise of discretionary power, limiting abuses of regulation-making authority, and implementing various implied principles of the common law constitution such as "no expropriation without compensation." In addition, the book says little about constitutional review on federalism grounds, a feature of Canadian constitutional jurisprudence since at least 1867 and certainly one of the prime vehicles through which courts articulated a conception of democratic government in a Parliamentary system. Finally, even on the terrain of Charter review, the focus of the monograph is on constitutional review of legislation, by far the lesser remit of the courts, rather than on constitutional review of state action by public officials acting under constitutionally valid authority.

Admittedly, a review is not the place to critique the book an author did not write. Still, it is worth noting the disjuncture between title and content, if only to show that the manner in which the author, and the vast majority of those theorists he cites, frames his subject is decidedly presentist. The book's goal is to set out a nuanced understanding of the role of courts in "protecting" fundamental constitutional rights even in defiance of Parliament, and the justification for a legal order that assigns them this role. While the focus is predominantly Canadian, comparisons are made with jurisprudence under the American Bill of Rights and with the British experience, where fundamental rights have not been...