In 1987 UBC
political scientist Philip Resnick published an interesting journal article:
“Montesquieu Revisited, or the Mixed Constitution and the Separation of Powers
in Canada”.[1] It was good to see a sophisticated
theoretical approach to Canadian politics, for once, though I would like to
offer some correction to his argument.
This post will not discuss at any length Resnick’s study of the idea of
a mixed constitution, the origins of which dates with Cicero; suffice it to say
it is less intriguing – and less persuasive. Instead we will focus on the
concept of the “separation of powers”, for which Montesquieu is indeed most famous,
in order to bring greater historical perspective to the SNC-Lavalin issue.
Overall,
there is agreement with Resnick that Montesquieu’s case for “moderation”[2]
as the path to political liberty is more characteristically Canadian than, say,
Locke, whose Huguenot-inspired resistance theory belongs to a tradition which
is far stronger in the USA.
We can point to aspects of official reaction to the Winnipeg General
Strike, the October Crisis, and, more recently, the G20 protests in Toronto
(while Stephen Harper was prime minister) as examples of a weak Lockean tradition. This is not to suggest, conversely (as
Resnick explores), that Hobbes prevails in Canada, though his political philosophy
plays a huge role in Stephen Harper’s thinking, a modern-day phenomenon, for
which there are few, if any, national antecedents.
Resnick
examines Montesquieu’s magisterial work The
Spirit of the Laws (1748) focusing on the celebrated discussion “Of the
Constitution of England” (Book XI, Chapter 6) as the source of inspiration for
Canada’s political order. Montesquieu
begins this particular chapter stating: “In each state there are three sorts of
powers: legislative power, executive power over things depending on the rights
of nations, and executive power over the
things depending on civil right.”[3]
He goes on to clarify that liberty
ceases to exist “when legislative power is united with a single person or in a
single body.”[4] Furthermore,
there is no liberty “if the power of judging is not separate from legislative
power and from executive power.”[5]
Resnick
places great emphasis on Chapter 6 as a political mirror to England, and from
there he makes a great leap to Canada. He offers no textual evidence of a
Canadian equivalent to Federalist 47 which mentions “the celebrated Montesquieu”.[6] American constitutionalists can also point to
Thomas Jefferson’s translation of Destutt de Tracy’s A Commentary and Review of Montesquieu’s The Spirit of the Laws
(1811).[7]
In other words, compared to the American constitutional experience, there
appears to be a dearth of references to Montesquieu in Canada, either in English
or French (as far as I am aware).[8]
Possibly a
more forthright approach to Montesquieu in the Canadian context would be to
identify his thinking in terms of a religious – as opposed to a strictly
political – framework, for The “Spirit”
of the Laws is an allusion to the continuing influence of Augustine, who is
mentioned in the text. More
significantly, Montesquieu’s ”trois
pouvoirs” (an oft-repeated phrase) is but another iteration of Augustine’s
Holy Trinity, which is why one admirer could refer to The Spirit of the Laws as “the Bible of all politicians.”[9] This religious dimension also helps explain
why Madison in Federalist 47 calls the separation of powers “the sacred maxim of free government”, but we
are getting ahead of ourselves.[10]
It is
important to point out that Montesquieu does not use the actual phrase séparation des pouvoirs and only uses
the word séparée once in Chapter 6. Furthermore, he uses the words puissance exécutrices, puissance législative and - distinctly – puissance de juger instead of pouvoir judiciare.[11] He also describes the power of judging as
becoming “invisible & nulle”
which suggests that it is the weakest link in the Trinity.[12]
This point is repeated, and it is worth noting (as quoted here in English):
“Among the three powers of which we have spoken that of judging is in some
fashion null.”[13]
In other words, there is some question in Montesquieu’s thinking as to whether the
judiciary had equal status with the legislative and executive powers.[14]
Moreover,
for all his devotion to Book XXI, Chapter 6, Resnick seems to ignore
subsequent Chapter 7, where Montesquieu speaks of the “distribution” of powers:
“The three powers are not distributed and cast on the model of the constitution
which we have mentioned; each instance shows a particular distribution of them
and each approximates political liberty accordingly.”[15]
Indeed, one may question whether Montesquieu intended a strict “separation” of
powers; rather, there appears to be an element of ‘balance’ (or the famous ‘checks
and balances’) in operation as the following two paragraphs below imply:
Here, therefore, is the fundamental
constitution of the government of which we are speaking. As its legislative body is composed of two
parts, the one will be chained to the other by their reciprocal faculty of
vetoing. The two will be bound by the
executive power, which will itself be bound by the legislative power.
The form of these three powers should be rest
or inaction. But as they are constrained
to move by the necessary motion of things, they will be forced to move in
concert. [16]
In other
words, the ‘balanced’ distribution of powers working “in concert” became – as understood in the USA - the ‘separation of powers’, and so Montesquieu became the first in a long line of prominent French thinkers to
be appropriated by American intellectuals. Madison’s Federalist 47 of
January 1788 codifies Montesquieu’s Trinity: “the preservation of liberty
requires that the three great departments of powers should be separate and
distinct.”[17] Note:
the phrase “separate and distinct” is repeated a number of times in Federalist
47. After being imported for the Constitutional purposes of the “thirteen colonies”, Montesquieu was likely then exported to affect the wording of France’s Declaration of the Rights of Man and Citizen
of August 1789 (Article 16): ”Any society in which the guarantee of rights
is not secured, or the separation of powers not determined, has no
constitution at all.”[18]
It is significant that, historically-speaking, Article 16 was regarded in its
own time as “somehow disconnected from the other articles of the Declaration.”[19]
So what is
Montesquieu’s influence in Canada? If
one looks to the British North America Act of 1867 we see the well-worn Trinity
of “Peace, Order and good Government”, the significance of which Resnick misses,
but does this reflect the ongoing influence of Augustine – or Montesquieu? Our Canadian Constitutional motto, such as it
is, corresponds to other Trinities, for example the American Declaration of
Independence’s “life, liberty and the pursuit of happiness” and the French
Revolution’s liberté, égalité, fraternité.
Given that these Trinities are still today prominent in their respective
Constitutions, Montesquieu might be considered the primary inspiration (which
is not to diminish the Christian subtext), yet – as Resnick and others point
out – significantly, the powers of the judiciary are not included in the BNA
Act.[20]
In other words, the judiciary was “invisible and null” (to borrow again from
Montesquieu) so Canada’s constitutional framework in 1867 was much like
Montesquieu’s understanding of England in the eighteenth century, taken
literally, as Resnick writes.[21]
Canada’s Supreme Court was formed in 1875, but it was by no means supreme: up
until 1949 appeal could always be made to the Judicial Committee of the Privy
Council, which met in London, England. If our judiciary was separate from the other
two orders of government – it was separated, constitutionally-speaking, by the
Atlantic Ocean.
To sum up,
it seems difficult to speak of an explicit, textual tradition of a “separation
of powers” in Canadian Constitutional history: at best it was perpetuated by
the pervasive mantra of the Trinity. The
“spirit” of separation was implied by the unwritten factor which is to suggest
that, in Montesquieu’s original thinking, de
jure separation did not mean de facto
separation.[22] This may help to explain why - most recently -
the Liberals (not unlike other political parties in Canada) could employ
“department store” politics, appealing “to customers of all classes, doctrines
and social persuasions”, when faced with repercussions from the SNC-Lavalin
Affair: Justin Trudeau’s claim that he
was simply ’protecting jobs’ falls under this category.[23]
The prime minister’s argument is still consistent with Montesquieu’s original
notion of ‘balancing’ or ‘counter-balancing’ or even ‘distributing’ the orders
of government, which was informed by the unwritten constitution as examined in The Spirit of the Laws.
But the
English constitution has moved beyond its eighteenth-century mooring; moreover,
Canadians have since fallen sway to countervailing American constitutional
expressions. Those elements of Montesquieu that came to Canada, Resnick argues,
were “refracted through American lenses” (largely after 1949). [24]
He also argues - and this is widely acknowledged - that the Charter of Rights
and Freedoms of 1982 has changed everything, as now Canadians have a written
document which grants greater dignity to the judiciary, especially the Supreme
Court, which today more closely resembles its counterpart in the USA as the
final arbiter of law in the land.[25]
The matter of separation of powers - and consequently the rule of law and the power of the courts -
are much more doctrinaire these days, with the possible exception of Quebec
today, where the CAQ’s Bill 21, inspired by Rousseau’s ‘general will’ turns on
a notion of non-separation.
Overall,
however, Canadians have moved beyond any memories of political trinitarianism, thanks
to former Prime Minister Pierre Elliot Trudeau, who introduced written
Constitutional principles enforced by a scrutinizing and independent “pouvoir de juger”. In other words, it is with certain irony that Justin
Trudeau’s greatest headache in the SNC-Lavalin Affair was perceived to be all
the more problematic – as it was his own father who, in 1982, did the most to
bring Montesquieu’s “separation” of powers (as understood in the USA) into the
Canadian fold than anyone else before him.
[1] Philip Resnick, “Montesquieu
Revisited, or the Mixed Constitution and the Separation of Powers in Canada,” Canadian Journal of Political Science/ Revue
canadienne de science politique, Vol. 20, No. 1 (Mar. 1987), 97-115. For more recent perspectives on Montesquieu
see also: Rebecca E. Kingston, ed. Montesquieu
and his legacy (Albany: State University of New York Press, 2009). Kingston
teaches at the University of Toronto’s political science department. It’s worth noting that her edited book was
published in the United States – not Canada.
[2] “Men must not be led to extremes;
one should manage the means that nature gives us to guide them.” Cf. Montesquieu,
The Spirit of the Laws, ed. and tr.
Anne Cohler, Basia Miler, Harold Stone (Cambridge: Cambridge University Press,
190), Book VI, Chapter 12, p.
85. Again: “… men almost always
accommodate themselves better to middles than to extremities.” Book XXI,
Chapter 6, p. 166.
[6] James Madison, Federalist No. 47 in
Alexander Hamilton, John Jay and James Madison, The Federalist Papers and the Constitution of the United States: The
Principles of the American Government (New York, NY: Racehorse, 2016), p.
277.
[7]
See Jacob T. Levy, “Montesquieu’s Constitutional Legacies” in Kingston, ed. Montesquieu and his legacy, p. 136, n.
37.
[8] Readers
might be interested in Stephen L. Newman, “Free Speech and The Spirit of Laws in Canada and the United States: A Test of
Montesquieu’s Approach to Comparative Law” in Ibid., Ch. 11, pp. 221-236.
[9]
Aurelian Craiutu, A Virtue for Courageous
Minds: Moderation in French Political Thought, 1748-1830 (Princeton:
Princeton University Press, 2012), p. 33.
This is an important and impressive work with fresh ideas on Montesquieu
and moderation from which I have drawn a number of salient points.
[10] Federalist No. 47, p. 282. Emphasis added.
[11] Craiutu, A Virtue for Courageous Minds, p. 49. Craiutu makes this observation, and it is
rather evident when read in the original French.
[12] Montesquieu, De ‘Esprit des Lois, Tome 2,
ed. Irina Montreal (Paris: Librairie Ch. Delagrave, 1892 [Reprint]), p. 96.
See The Spirit of the Laws, Book XI,
Ch.6, p. 158.
[14] Craiutu, A Virtue for Courageous Minds, p. 49.
[17] Federalist No. 47, p. 277.
[18]
Laura Masson and Tracey Rizzo, The French
Revolution: A Document Collection (New York: Houghton Mifflin, 1999), p.
104. Toute société dans laquelle la garantie
des droits n’est pas assurée, ni la séparation des pouvoirs déterminée, n’a
point de constitution.
[19] Craiutu, A Virtue for Courageous Minds, p. 90.
[20] Resnick, “Montesquieu Revisited,” p.
110. See also: Peter McCormick, Supreme
at Last: The Evolution of the Supreme Court of Canada (Toronto: James
Lorimer, 2000), p. 2.
[21] Resnick, “Montesquieu Revisited”, p.
110.
[22] Craiutu, A Virtue for Courageous Minds, p. 52.
[23] The metaphor of the “department
store” for political parties in was created by Joseph Harsch, an American., who
used it to compare their function in the USA with those in Britain. It was Frank Underhill who was the first to
apply the metaphor to Canadian politics.
See Frank H. Underhill, In Search
of Canadian Liberalism (Toronto: Oxford University Press, 2013), pp.
251-251.
[24] Resnick, “Montesquieu Revisited,” p.
111.
