Edward McWhinney

Federalism, Biculturalism, and International Law

The Contemporary “Great Debate” over the future of Canadian Confederation, whatever else it may have done, has at least shattered a number of comfortable old maxims as to the inevitable course and development of federal constitutions. “Bryce’s law” — or the asserted axiom that federalism is simply a transitory step on the way to political unity — has been exposed for what it really is, a generalization based too easily upon the experience of the essentially “Anglo-Saxon,” English-speaking federal systems with which Lord Bryce happened to be acquainted at the time he was writing. Even Dicey’s triadic critique long accepted as a truism in Empire and Commonwealth legal circles — that federalism inevitably means weak government, conservatism, and legalism — may be seriously doubted, as to its first two points at least, in the light of the strongly centripetal governmental trends in the main federal systems in modern times, and the concomitant association of that centralizing trend with political concepts of social and economic planning and community determination and direction of financial policy. It may be, as a French-Canadian jurist contended at a conference on Federalism held in Toronto in November 1964, that those English-speaking Canadian jurists who, in the 1930’s and the 1940’s, preached both the desirability and also the inexorability of the march to Ottawa were “plucking the Socialist fruit from the tree before it was fully ripe.” We are, in any case, indebted to French Canada for reminding us that theories of historical inevitability, when applied to social phenomena, must inevitably tend to break down if they ignore the crucial variable of the human factor. For while complex political-legal relationships and interactions often seem to be shaped and conditioned by intractable social and economic forces, in the end the dynamic element in the community power process must still be the free will of the main actors or participants in it. This is in essence William James’s point that truth is not an abstract quality inherent in an idea but something that happens to it in the unfolding of events. In constitutional law, what may have seemed right and proper and, if you wish, true for Canada in the 1930’s and the 1940’s may not necessarily be so today.