From Constitutionalism to Legalism: Trial by Jury, Responsible Government, and the Rule of Law in the Canadian Political Culture

Abstract

The influence on the Canadian political culture of two conflicting tendencies in common-law constitutional thought,constitutionalismandlegalism, merits attention. By constitutionalism, I mean a particular response to the apprehended infringement of civil rights and liberties by the state: an appeal to standards of state conduct that are supposedly sanctified by long usage, implied contract, or both. By legalism, I mean the justification of alleged infringements by invoking the lawfulness of the authority by which such actions are taken. These definitions deviate from common usage, but they serve to represent a dichotomy within common-law constitutional thought that has been crucial to the development of the English political culture and of cultures derived from the English.