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Comment: The Separation of Powers in 1867

Published online by Cambridge University Press:  10 November 2009

Janet Ajzenstat
Janet Ajzenstat
Affiliation:
McMaster University
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Extract

Philip Resnick argues that Montesquieu is seminal for an understanding of Canadian institutions. We find in nineteenth-century Canada, he says, not Montesquieu's separation of powers doctrine, so influential in the United States, but his teaching about the mixed constitution, that is, government by a combination of monarchic, aristocratic and democratic institutions. He argues that this influence shows in such typical features of our political culture as acceptance of hierarchical patterns, deference to authority and so on; these are reflections of the “disdain for democratic excesses” inherent in the mixed constitution. He then goes on to suggest that we have grown out of the mixed constitution in the twentieth century, but that as a result of the Charter of Rights and Freedoms relations between the political and judicial powers in Canada have so come to resemble the American that we are justified in saying that Canada in this one respect is now characterized by the separation of powers. We have moved from the Montesquieu of the mixed constitution to the Montesquieu of the separation of powers.

Type
Research Article
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 20 , Issue 1 , March 1987 , pp. 117 - 120
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1987

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References

1 Resnick, Philip, “Montesquieu Revisited, or the Mixed Constitution and the Separation of Powers in Canada,” this JOURNAL 20 (1987), 97–115.Google Scholar

2 “Modern Mixed Government: A Liberal Defence of Inequality,” this JOURNAL 18 (1985), 119–34.Google Scholar

3 See Vile, M. J. C., Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), 92Google Scholar, where he compares Montesquieu and Blackstone on this. Resnick cites Vile to support his contention that Montesquieu and Blackstone are virtually indistinguishable. In fact although Vile notes the similarities he is at least as concerned to explain the differences.

4 Commentaries on the Laws of England (New York: Augustus M. Kelley, 1969)Google Scholar, bk. 1, pt. 2, chap. 7.

5 See, for example, the election address attributed to Bédard, “A Tous les Electeurs,” bound in with Le Canadien, 3, 28 (May 27, 1809);Google Scholar and to cite just one article from Le Canadien, again attributed to Bédard, or inspired by him, the leading article, 2, 25 (May 7, 1808).Google Scholar