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Judging the nation: the Supreme Court of Canada, federalism and managing diversity

Schertzer, Robert S. (2012) Judging the nation: the Supreme Court of Canada, federalism and managing diversity. PhD thesis, The London School of Economics and Political Science.

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Abstract

This thesis examines the management of diversity through federation and the role of the federal arbiter. It does this by focusing on the plurinational federation of Canada and its federal arbiter, the Supreme Court of Canada (SCC). Its aim is to advance federal theory and policy (both for Canada and beyond) by looking at the important role the SCC has played in the management of conflict over the very nature of the federation. Through a comprehensive review of the SCC’s federal jurisprudence since 1980, the thesis demonstrates that the Court tends to impose particular understandings of the federation through its decisions. I argue such an approach by a federal arbiter is detrimental to the legitimacy of the federation and its ability to manage diversity. However, in a number of decisions, the Court recognizes federation as the process and outcome of negotiation between the subscribers of legitimate perspectives on the nature of the order. I argue this approach, which seeks to facilitate negotiation, can generate legitimacy for the federation and the way it manages conflict. These two lines of analysis support the point that federal arbiters are particularly important in managing conflict in diverse federations. The thesis consists of two broad sections. The first looks at the main approaches to managing diversity via federation and the associated roles for the federal arbiter, both in the Canadian context and more broadly. The second section looks at the SCC’s work as the federal arbiter to determine the extent to which it adheres to the facilitative approach. The thesis concludes by reflecting on the potential issues with this approach to managing diversity via federation and role for the federal arbiter, including its applicability beyond Canada.

Item Type: Thesis (PhD)
Additional Information: © 2012 Robert S. Schertzer
Library of Congress subject classification: K Law > K Law (General)
Sets: Departments > Government
Supervisor: Loughlin, Martin and Hutchinson, John
URI: http://etheses.lse.ac.uk/id/eprint/376

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