January 19, 2006


John O'Sullivan's take on the upcoming Canadian elections makes some good points, particularly in that Canada has imitated the US system primarily in introducing a Supreme Court that can override laws on constitutional grounds.

One could take that point further. Canada's constitution now combines the British parliamentary system's stong prime ministership, which with a well-disciplined majority can pretty much push through whatever legislation it wants, with an American-style supreme court with very strong powers. Rather than serving as a check upon each other, they seem to act together in creating a ratchet toward a single set of solutions for any problem -- more interventions by the federal state, no matter how ineffective or obnoxious previous ones have been. Either the historical British system, or the historical American one, have been more effective in balancing government actions with freedom and an effective civil society. The Canadian hybrid seems to have imported the vices of both with the virtues of neither.

Playing mix'n'match with imported institutions is always problematic. The Japanese during the Meiji era, after it opened to the world, tried to copy the best of each Western nation. It modeled its navy after the British Royal Navy, and its army after the Prussian Army, and sent its young officers to Britain and Prussia, respectively, for training. It succeeded far better that they understood -- the officers picked up not only the skills but the attitudes of their mentors. The navy officers absorbed the British conviction that the Navy was the Senior Service; the army officers the Prussian attitude that the Army pretty much was the State. This did nothing to quench the natural interservice rivalry that most nations experience, nor did the fact that each service tended to be dominated by members of rival samurai clans, as Walter McDougall related. This interservice rivalry help spur the drive toward expansion both in the Pacific and mainland Asia, which ended up feeding the downward spiral into war.

When you mix two elements of disparate cultures in one system, it's not always clear how they will react in the new environment and combination.

Posted by James C. Bennett at January 19, 2006 06:14 PM

What do you suggest for Canada? Personally I'm inclined to modify the Supreme court law and very clearly state that in matters of legislation, the paralment has last say.

Quebec seems to have preserved paralementary supremacy (ironical eh?). There was an infamous decision called Lapierre where a young girl was inoculated for measles or mengitis but the vaccine was defective and left her permeantly inapt. The Supreme court ruled based on the old civil code that she wasn't entitled to compensation. The public and polictians were outraged at the injustice (even though in the decisions the judges left the door open) so they passed a special law to compensate her and the family
Also given the abuses of the unwritten customary laws of the PM's power, we're also need some written legislation that checks his unlimited powers.

What I fail to understand is why are some Anglospheric legislatures so deferential to ludicrious court decisions and intimidated by supreme courts? Canada's dysfuntionality we know. The American congress' sucking up of stare decisis is really nauseating. So is there anything in Anglospheric constitutionalism to rebalance the court's and legislature's rspective competencies?


Posted by: xavier at January 19, 2006 09:23 PM

Mixed systems can offer powerful solutions, but you have to have an intimate knowledge of the component systems to integrate them soundly. Here are two rather disparate examples, neither related to political science, but which I think demonstrate the advantage if the integration is done wisely. In meteteorolgy, forecast models are heading towards using what is called the super-ensemble, which mathematically combines the predictions of several models achieving a result that is superior than any one of them could achieve alone. It does this by using a weighted average for each grid point of the model assigning a percentage based on how well each model has predicted in the past for that particular area. Some models do better over the Caribbean, others do better over the Gulf, and so on. Thus the models in combination tend to correct each other's errors. The site below shows an example comparing each model with an actual hurricane track.


The second example is Bruce Lee's Jeet Kune Do, which translates to Way of the Intercepting Fist. Lee's idea was not to create a new martial art style which he considered to be a limitation on imaginative and innovative combat and thus a weakness. Rather, he thought of it as a fighting philosophy in which he combined various aspects of numerous martial arts (27 different forms I think). Most interestingly, being of Chinese descent but immigrating to America at 19, he started to combine both Eastern and Western fighting forms. He majored in philosophy at the University of Washington and so his knowledge of both Eastern and Western traditions was extensive. Instead of merely adding each form clumsily onto the rest ad hocly, he described his process as the winnowing out of each form to its essence, exhorting his students to absorb what is useful and cast off what is useless. He likened it to constantly filling a cup with water and emptying it. Students of his philosophy focus equally on the four domains of martial arts (punching, kicking, grappling, and throwing) whereas practically all the others emphasize only one or two of them. You can imagine the depth of options and greater flexibility such a fighting philosphy can yield. By integrating and molding the best of each form, a superior result can be achieved.


In the political realm this blog has pointed to the advantage the Anglo-Saxons obtained by melding the adminstrative efficiency of the Roman system with the individualism of the Teutonic tradition. Closer to the present day, when America's Founders looked for models for the Federal government they borrowed aspects of the Iroquois Confederate system of six seperate tribes as none of the European systems were developed for governing a republic spread over such a vast area.


So importing systems can work though given the complexities involved I wonder how much luck is a factor in a successful mingling. As you noted, the Canadians took the worst of both systems and achieved a weaker system than either of the two by themselves.

Posted by: Gregory McDowall at January 20, 2006 12:03 AM

So is there anything in Anglospheric constitutionalism to rebalance the court's and legislature's rspective competencies?

One third of the Senate is re-elected every two years, the President, every four.

It is not clear that the court is doing anything of which the legislature disapproves. It is simply relieving the legislators of the responsibility for explaining to the voters what has been done and the voters are acquiesing by re-electing the legislators. But things are changing. Slowly. It's designed to work that way. When it doesn't, you get the New Deal and the Great Society.

Posted by: Richard Heddleson at January 20, 2006 07:35 AM

"So is there anything in Anglospheric constitutionalism to rebalance the court's and legislature's rspective competencies?"


The problem is not with the system of goverance but with the nation's heterogeneous nature. As even J.S. Mill conceded, liberty is founded on homogeneity.

Unlike the US which began as an ethnically and religiously homogeneous nation, Canada was multiculti from the get go. And a Peter Brimelow has long asserted, the development of asymetrical federalism, Quebec appeasement, denied English Canada its natural (WWI or WWII where both French and southern and eastern European minorities resisted participation) conservatism. The default imperative of unity at all costs, allowed Brimelow's 'New Class' (bureaucrats et al)to keep their nose in the trough longer at the expense of the majority English. The then massive unfettered immigraton, from non-northern European origins that has followed over the last 20 years, has taken that asymmetry to a new level. The federal government will not challenge court rulings on abortion or gay marriage because they've convinced minorities, who are not necessarily partial to SSM, to support it because if they don't they will be the victims of some future 'discrimination'.

Heterogeneous will always trend to more illiberal governance.

Posted by: Charles Tupper at January 20, 2006 11:37 AM

Powerlineblog is usually right on the money, but with their post on Olmert I must disagree most strongly, and would comment there, but it is not possible.
The US should stay out of Israeli politics much like the reverse, but to be against Olmert is to be against Sharon’s policy, which has proven effective in furthering Israeli and American security in the long view. My explanation here:


Posted by: jp at January 20, 2006 11:45 AM

The American deference to judicial review probably comes from the huge influence of Blackstone on American political thought. Juudicial review, like many things, is an English ideal implemented in America and forgotten in the land of its origin.

As to what to do with the Canadian constitution, entrenching the nonwithstanding clause is probably a good idea. We'll see what the Tories manage to do, and what kind of deal they may end up making with the Bloc Quebecois. Beyond that, it's a question of exactly how radical a surgery do you want to contemplate.

Posted by: Jim Bennett at January 22, 2006 08:47 PM

Jim B:

Good point in your post, that the power of the Cabinet and the power of the Supreme Court have tended to reinforce one another. Two other factors you didn't mention work in the same direction:

1. Parliament itself has been ground down by intense party discipline and by the Cabinet's hold on Parliament, making it hard for Parliament to exercise control on either the Cabinet or the Court.

2. Cabinet advises the appointment of all the justices, so the tendency is to have like-minded people in both camps. Hence court decisions can often be cover for something the Cabinet wants, but fears to take political heat for it (same-sex marriage, for example).

As for "entrenching" the notwithstanding clause, it's just as entrenched as any other part of the Charter (s 33). The problem is the political fallout from using it; the chattering class has pretty much made it a taboo. Robert Martin (in his The Most Dangerous Branch) has suggested decreasing the appropriation for the Supreme Court and a more vigorous use of s 33 to counteract the judges' habit of legislating from the bench. Both are good ideas that do not require us to reopen any constitutional wrangles.

In my own view, tossing out a few justices (via s 99 of the BNA Act) could be salutary, if a little extreme. From a lot of quarters that would be called an interference with judicial independence. But judges are supposed to be independent of the Crown, not independent of Parliament; that was what the Act of Settlement was about, anyway.

Posted by: Jim Whyte at January 26, 2006 03:13 PM
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