Between Populism and Juristocracy: The Republicanism of Rainer Knopff

Abstract

Rainer Knopff's scholarship on Canadian constitutionalism has offered some of the most trenchant criticism of the exercise of judicial review under the Charter, yet his theory has largely been misunderstood (as has that of his frequent co-author F. L. Morton). This article exposes two prominent critiques of Knopff's constitutional writings as straw man arguments and provides a republican account of his constitutional theory. The first straw man argument is that Knopff supports a majoritarian or populist conception of direct democracy. This claim is belied by Knopff's embrace of representative democracy and institutions structured to encourage reflexive deliberation. The second straw man argument is that Knopff is a moral rights skeptic. Knopff's rights skepticism is a legal skepticism about the determinacy of many rights that is merely a function of his inclusive legal positivism. The article concludes by reflecting on the republican lessons that Knopff's constitutional scholarship continues to offer, including how holding legislatures responsible for settling reasonable disagreements about legally indeterminate Charter rights might help counteract the twin threats of populism and juristocracy.

The Parliamentary Regime: The Political Philosophy of Confederation

“…After all, other Westminster systems, including federations, do not have systems dominated by the prime minister and party discipline to the extent Canada does. Similarly, while the entrenchment of the Charter of Rights of Freedoms certainly strengthened the courts, as Harding (2022), Russell (2009) and Sigalet (2021) observe, it is not so much that the courts have smothered parliamentary deliberation on normative issues but that legislators have used the Charter as an excuse to avoid deliberating. Nor, as Baker points out, does responsible government entail executive dominance (2007: 99-100).…”