Peter C. Oliver

Sovereignty in the Twenty-First Century

SOVEREIGNTY SEEMS a relatively simple concept. Its associations with the allpowerful Kings and Queens of our literary and historical past underline this apparent simplicity. The basic idea relates to the effectively undefeatable ability to determine the law and to have those determinations obeyed; that is, to have the final word, or to hold the trump card. However, sovereignty is anything but a simple, accepted concept. Not only does it represent a single-word cover for a wide range of difficult questions, but the very relevance of the concept is frequently challenged nowadays. What difficult questions underlie sovereignty? First, we have to acknowledge that sovereignty takes in issues related not only to law, but to politics, economics, culture and morality. We might then ask questions such as how economics, politics and culture relate to legal sovereignty. A state with all the attributes of legal sovereignty may have lost much of its ability to control its destiny politically, economically and culturally.1 Considerations such as these bring us on to a central moral question: what is sovereignty for?2

Canada's Two Solitudes: Constitutional and International Law in Reference Re Secession of Quebec

This article begins by examining two different perspectives on the accommodation of Quebec and the French fact in Canada. The first, exemplified by Canadian Prime Minister Pierre Trudeau, emphasized equality of the French and English languages across Canada. The second approach, adopted by Trudeau’s contemporary Rene Levesque, Prime Minister of Quebec, focused on the province of Quebec, and the state of French language there. The second part of the article recounts the history of Quebec in Canada, emphasizing throughout the varied range of legal and political accommodation that has occurred over the years. This section concludes with a brief description of the constitutional falling out between Quebec and Canada which has occurred over the past twenty or so years. The article concludes with a detailed analysis of the recent Supreme Court of Canada decision in Reference re Secession of Quebec. This case is especially important for the way in which it mixes considerations of international law and domestic constitutional law. The author concludes by asserting that the survival and strength of the French fact in Canada is dependent upon a strong Quebec; and that a strong Quebec must show corresponding respect and recognition for its own minorities: aboriginal, Anglophone and other.

Law, Politics, the Commonwealth and the Constitution: Remembering R. T. E. Latham, 1909-43

Engraved above the south door to King’s College London chapel are the names of two law lecturers listed among other members of the College who lost their lives in the Second World War. One of them, R. T. E. Latham, would now be recognised as an eminent constitutional lawyer had he not died in active service at the age of thirty four. His best known publication,The Law and the Commonwealth, is rarely referred to without accompanying superlatives, the most common being “brilliant.” One of the reasons for the praise is that Latham offered wonderfully well-written and original insight into central constitutional questions. His work served as the theoretical grounding for Jennings’ ideas just as H. W. R. Wade’s articles, beginning with “The Basis of Legal Sovereignty,” later provided the strongest justifications for Dicey’s views on sovereignty of parliament. But Latham had already moved beyond Jennings and would certainly have used his brilliant intellect and trenchant style to make an independent mark for himself. His interest in the Commonwealth would have brought him to the forefront of the legal side of the decolonisation process, alongside scholars such as Wheare, de Smith and Marshall.Latham was the first constitutional lawyer in Britain to make detailed use of Hans Kelsen’s notion of the Grundnorm, or basic norm, and much of Latham’s anglicised interpretation of Kelsen anticipates, and even transcends, H. L. A. Hart’s The Concept of Law and “rule of recognition.” Although Latham’s preoccupation was the constitutional structure of the Commonwealth after 1931, when one Imperial legal system was splitting into many, his analysis is still relevant to the evolution of British and continental systems into one European legal order. He would have participated powerfully in the debates regarding United Kingdom versus EC sovereignty, taking issue with writers such as Neil MacCormick,T. R. S. Allan, Neil Walker and, again, H. W. R. Wade. The University of London’s already formidable group of constitutional lawyers lost a highly valuable collaborator.Anyone who has read W. K. Hancock’s Introduction to the 1949 reprint of The Law and the Commonwealth will know that there was another side to Latham. Perhaps the account of Latham’s personality found here is tinted by the still recent loss of such a relatively young life, but the factual account of Latham’s extra-legal work is undeniably impressive. Latham’s personality was more elusive. There are many indications in Latham’s papers that he was a strong, difficult and easily misunderstood individual. Hancock captures some of this quoting from one of Latham’s friends: “He was quite well-liked by most people, very much admired by some, and in a small circle greatly loved. That was true of him throughout, I think.” Hancock goes on to describe how Latham’s academic and intellectual achievements — first class degrees at every level of his university studies, an indelible impression left on visiting Oxford fellow Felix Frankfurter, election to a fellowship at All Souls’ to name just a few — ran along-side “that other adventure in the common experience of life”. This adventure took him “to Republican Spain to drive a lorry for the relief societies on the Bordeaux- Barcelona route”. Apparently, Latham’s friends thought him an incompetent driver, but there were no mishaps. He returned all the more determined “to make his own personal answer” to fascist bullying.This was to include research and writing on the issue, but it also extended to working with the growing number of refugees who were then fleeing the European continent. Given these first-hand experiences of fascism, it was always likely that Latham would volunteer himself, to the height of his ability, once war had begun, first in official refugee work and then in the Royal Air Force. Hancock writes: “In retrospect, his decision seems inevitable: for it was the same brutal abuse of power which threatened both the freedom of intellectual life and the decencies of common life. He believed in both. In defence of both he offered not only his intellect — for him that was not enough — but himself.”It seems appropriate, especially in the University of London, to remember something of the life, contribution and ideals of such a person.

Abdicating and Limiting Parliament's Sovereignty — Reply to Goldsworthy

Jeffery Goldsworthy’s thoughtful review article is just the sort of response that one hopes for in writing a monograph. Inevitably, authors focus on certain puzzles which are of greatest interest to them. In spending so many evenings and weekends worrying about the detail of these puzzles, one’s greatest hope is not only that other readers will find those efforts helpful and worthwhile, but that they will be motivated to join issue. And this is exactly what Jeffrey Goldsworthy has done in his review article.Goldsworthy’s writing covers a wide range of comparative constitutional law and theory. He has already presented carefully thought out views on many central constitutional and theoretical puzzles. It is not surprising, therefore, that he does not agree with me in many regards. However, it is gratifying that he has taken the time to engage so thoroughly with the arguments presented in The Constitution of Independence.The purpose of this Reply is to isolate points of agreement and disagreement in aid of future research and writing in the area of comparative constitutional law and theory. As both Goldsworthy and I acknowledge, a certain amount of complexity, even confusion, is inevitable in this area. I have tried to keep this Reply relatively brief in order not to add to that complexity, and in the hope of avoiding confusion. The point of this sort of mise au point is to assist readers in knowing where to direct their own contemplations of these topics.The balance of this Reply will deal first with central points of debate or disagreement, and later with points of agreement.