1. Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994)Google Scholar at 254.

2. The distinction between discovering and making law is not the only point of disagreement between inclusive and exclusive positivists. Another point of disagreement, and one which has received much attention recently, is whether inclusion of morality in a legal system’s rule of recognition vitiates the practical authority of laws validated under it. Though the two are certainly related, they represent different areas of disagreement which require separate treatment. For a most recent treatment of the argument from authority, see Jules Coleman, The Practice of Principle (Oxford: Clarendon Press, 2001) at chs. 6-10.

3. Waluchow, W. J., Inclusive Legal Positivism (Oxford: Clarendon Press, 1994)Google Scholar at 2 [hereinafter ILP].

4. Waluchow’s version of inclusive positivism is what is now referred to as a “necessity version,” in which conformity with morality may be a necessary condition for the existence and validity of law. There is also a “sufficiency version,” whose primary defender is Jules Coleman, in which conformity with morality may be sufficient for the existence and validity of law. For an account of both versions, see Coleman, supra note 2.

5. Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. All sections of the Charter cited will be to this Act.

6. ILP, supra note 3 at 144-45.

7. [1986] 4 W.W.R. 242 (B.C.C.A.) [hereinafter Andrews].

8. Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, s. 42.

9. Section 15(1) states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Supra note 5.

10. Section 1 states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Ibid.

11. ILP, supra note 3 at 152.

12. Likewise, the inclusion of the right not to be subjected to a citizenship requirement to practise law in section 15 (equality) of the Charter (and to pass the section I threshold) was found or discovered, and not made or created by the Court.

13. ILP, supra note 3 at 154-55.

14. Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979)CrossRefGoogle Scholar at 47-48.

15. Ibid, at 151.

16. It is open to Raz to claim that ‘recognition’, by its very nature, must ultimately rest with people (and more specifically officials); because recognition carries an active connotation, it only makes sense to claim that a person recognizes, and not that moral reasons can recognize. Given that it is the rule of recognition which determines validity, and only people can recognize rules, principles, or statutes as law, then ultimately only people, and not moral reasons, can determine legal validity. Such an interpretation seems supported by Hart’s explanation of the rule of recognition: “It may, as in the early law of many societies, be no more than that an authoritative list or text of the rules is to be found in a written document or carved on some public monument. No doubt as a matter of history this step from the pre-legal to the legal may be accomplished in distinguishable stages, of which the first is the mere reduction to writing of hitherto unwritten rules. This is not the crucial step, though it is a very important one: what is crucial is the acknowledgement of reference to the writing or inscription as authoritative, i.e. as the proper way of disposing of doubts as to existence of the rule.” [emphasis added] Supra note 1 at 94-95. As Hart appears to claim, without acknowledgement or recognition, legal validity or the existence of a rule is removed, thus making acknowledgement or recognition the crucial factor for legal validity.

17. Raz, Joseph, “The Inner Logic of The Law” in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford: Clarendon Press, 1996)Google Scholar at 238-53 [hereinafter EPD].

18. Ibid, at 239.

19. Ibid, at 242.

20. Ibid, at 243.

21. Raz makes a similar observation in a recent article on constitutional interpretation, there distinguishing between pre-existing, valid, binding law and the merit of this or that aile: “The merit of a rule may also be grounds for giving it binding force, either through the courts, by turning it into binding precedent, or by legislation. But the merit of a rule is not the sort of consideration which can establish that it is already legally binding.” Joseph Raz, “On the Authority and Interpretation of Constitutions: Some Preliminaries” in Larry Alexander, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998) at 157-58.

22. EPD, supra note 17 at 249.

23. Section 1 (reasonableness test) of the Charter is, on the exclusive account, part of the objective of each provision found in the Charter, namely that any infringement of a Charter right must be reasonable and demonstrably justified in a free and democratic society to be constitutional.

24. Note however that this is not necessarily the case. For example, there may exist a previous case in which a citizenship requirement included as part of the requirements to practise law was struck down as unconstitutional. If this were the case, then in Andrews there would be no need for direct appeal to moral considerations but simply appeal to pre-existing law.

25. Stephen Perry, “The Varieties of Legal Positivism,” (1996) 9 Can. J. Law & Jur. 361 at 367, 376.

26. For an excellent response to the political objection, see Peter Hogg and Allison Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn’t Such A Bad Thing After All)” (1997) 35 Osgoode Hall L. J. 75. Hogg and Bushell argue that Charter cases are best viewed as part of a ‘dialogue’ between the courts and legislatures, and not an usurpation of democratic power on the part of the courts. They suggest that the courts simply help the legislatures in their responsibility to Charter-proof their laws.

27. ILP, supra note 3 at 158.

28. Ibid, at 158-59.

29. Ibid, at 159.

30. Edwards v. Attorney-General of Canada [1930] A.C. 124 (P.C.).

31. Egan v. Canada [1995] 2 S.C.R. 513.

32. It is important to note that the connection between specification and appeal to moral reasons is not a necessary one. Appeal to moral reasons may involve the creation of law wholesale, and not simply the specification or development of pre-existing law. Also, specification may result from purely definitional considerations, such as when ‘spouse’ is defined to include both husbands and wives. What is important however is that both appeal to moral reasons and specification involve some kind of change in the law, whether or not they are co-extensive in particular cases.

33. Admittedly, exclusive positivists must concede that this explanation does not rule out all retroactivity in the specification of the right to equality and any forthcoming remedy under s. 24; inclusive positivists may claim that any remedy provided for by s. 24 must have been, in Andrews, for the unjustified infringement of the right to equality which already included the rule of construction not to be subjected to a citizenship requirement to practise law. However, not all retroactive applications of laws are objectionable. While a retroactive application of a law which has the effect of punishing or harming someone is objectionable (since it seriously violates the rule of law or the maxim nulla poena sine lege), the application of a retroactive law which has the effect of compensating someone for unjustified infringement of a fundamental right or fundamental principle of justice (though not yet fully recognized in law) by the state is not objectionable. Further, I believe this observation holds on both moral grounds as well as descriptive-explanatory grounds in Charter challenges and is coherent with the overall exclusive positivist picture I have sketched throughout this paper.

34. I say ‘typically’ because not all decisions which do not simply repeat existing law can be said to change the law. Although a decision may remain legally binding for the parties involved (unless successfully appealed), the decision will not change the law if it is not treated or observed as precedent by future officials. For example, we may say that R. v. Oakes [1986] 1 S.C.R. 103 did not develop and hence change section 1 of the Charter if later judges or other officials systematically ignored it and instead devised their own ways of interpreting and applying the reasonableness test. However, since officials did (and do) rely on and cite Oakes in their interpretations and applications of section 1, we may say that Oakes did in fact develop and hence change section 1. Further, we would also say that the Court in Oakes, though it gave further specification (indeed very useful specification) to section 1 of the Charter, nonetheless did not create section 1.

35. Hogg, Peter, Constitutional Law of Canada, 4th ed. (Toronto, ON: Carswell, 1997)Google Scholar at 1339-40.

36. Ibid, at 922.

37. John Finnis gives much the same explanation of decisions of nullification as Hogg: “…legal rules about void or voidable acts are ‘deeming’ rules, directing judges to treat actions, which are empirically more or less effective, as if they had not occurred (at least, as juridical acts), or as if from a certain date they had been overridden by an intra vires act of repeal or annulment.” [emphasis in the original] Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 353.

38. Although it is certainly true that Supreme Court decisions change the law more so than do lower court decisions. (As well, often lower courts simply function to repeat existing law but make authoritative determinations of fact or exercise their discretionary powers to determine sentences or compensation.) I believe there is much truth in the common wisdom that cases which reach the Supreme Court of Canada do in fact present novel cases involving unsettled law.

39. ILP, supra note 3 at 159-60.

40. Of course, the inconsistency need not necessarily receive recognition from the Court. It is also possible that the B.C. Law Society may give recognition to the inconsistency by amending its requirements.

41. A clear example of a situation in which inconsistencies existed yet went unrecognized and unenforced is Reference Re Manitoba Language Rights [1985] I S.C.R. 721. In this case, the Manitoba Legislature enacted nearly all its laws in English, which was in clear violation of s. 23 of the Manitoba Act, 1870, which required all laws in Manitoba to be enacted in both English and French. Thus, for approximately ninety years inconsistencies existed yet went unrecognized and unenforced. Further, and more important for our purposes, all those laws enacted between 1890 and 1985 in Manitoba clearly possessed many salient features of ‘law’, since they were not repealed, and were in fact used and recognized by all the relevant legal officials (including judges). Thus, if the account of change and validity I have offered is accurate, and validity is best identified with official practice or recognition, in 1985 when the Supreme Court decided to give temporary validity to the laws in Manitoba until they could all be enacted in French as well, this can be viewed simply as an extension of validity which in fact existed all along.

42. The underlying suggestion of this line of response is that the moral provisions explicitly recognized in the Charter are not best understood as conditions or criteria for the existence or validity of law (as inclusive positivists maintain), but rather are better understood as conditions or criteria for the binding force of existing law. Courts which find laws lacking the necessary binding force (and hence fail to meet the objectives of the moral provisions) may be directed to subsequently invalidate those laws. In this sense, the moral provisions may also be usefully understood as analogous in function to precepts of natural law. As Finnis points out, the precepts of natural law do not serve as validity conditions for existing law, but are rather the conditions of the binding moral force of existing positive law. A positive law which fails to secure or observe a precept of natural law is one which, under most circumstances, ought not to be obeyed, applied, or enacted, and further, ought to be repealed or invalidated. Supra note 37 at 23-29. Thus there may be something to the fact that constitutional law is often equated with the ‘supreme’ law of the land. It may suggest that constitutional law is more analogous to precepts of some higher law such as natural law rather than to conditions of validity for positive law.

43. It is important to note that this is a conceptual challenge, not an empirical one. It may be that all but a few laws do not meet the Charter’s requirements, since with its enactment all Canadian jurisdictions (except Quebec) engaged in a review of their statutes and made amendments to a large number of statutes in light of perceived Charter violations. See Hogg, supra note 35 at 801. Again, it is important to note that exclusive positivists can maintain that what invalidated these statutes or statutory provisions was not the adoption of the Charter simpliciter, but rather the amendments and repeals of the officials of each jurisdiction.

44. [1998] I S.C.R. 493. See Manfredi, Christopher P., Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed. (Oxford: Oxford University Press, 2001)Google Scholar at 3, 132, 152.

45. Sharpe, Robert & Swinton, Katherine, The Charter of Rights and Freedoms (Toronto, ON: Irwin Law, 1998)Google Scholar at 1.

46. This phenomenon is well documented and evaluated in Morton, F.L. & Knopff, Rainer, The Charter Revolution and the Court Party (Peterborough, ON: Broadview Press, 2000)Google Scholar.