The Rawlsian Paradox and the Governance of Canada

Abstract

Canada, Governance and the Rawlsian Paradox Governance, culture and diversity are themes that encourage a discussion of the Rawlsian Paradox, a concept that seeks to explain constitutional evolution in the Canadian context during the post-Charter era. Constitutions, of course, are the basic documents - and their construction represents the most fundamental process - of governance, and a thriving culture in a diverse country such as Canada requires a solid institutional foundation. However, as will become apparent, the divided and fractious Canadian polity of 2005 is a product of a deeply paradoxical constitutional order. At this time of writing, the distribution of seats held by the respective parties in Parliament is more regional than ever before, with even the traditionally successful Liberal Party all but shut out of some provinces. Prospects for a reduction in geographically based confrontation politics are not good, at least in the foreseeable future. The most ominous signal, perhaps, comes out of Quebec, within which nationalist sentiment may be at an all-time high or at least matching a level not seen in many years. This paper seeks an explanation for the secular decline in national integration and identifies the Constitution Act and Charter of Rights and Freedoms as a turning point in constitutional history that brought about unfortunate and highly negative consequences that have become more apparent with time. The changes wrought in 1982 exacerbated rather than ameliorated problems that, in some cases, date back to before Confederation itself. After patriation, referring to the transfer of constitutional authority from Britain to Canada, the latter witnessed the creation of explicitly regional parties, Reform (later the Alliance) and the Bloc Quebecois (BQ), with origins traced at least in part to the circumstances that brought the constitution home as well as its content. Rather than being on the fringe, these parties have transcended short-term protest movements. The BQ held opposition status in the House of Commons at one point and Reform eventually merged with and become the predominant force within a revamped Conservative Party; in each instance, the long-term message of the party concerned is seriously at odds with the vision of Canada put forward by Ottawa in 1982. This study focuses on the Rawlsian Paradox as an explanation for some problematic features of Canadian politics that otherwise might be accounted for by an assortment of ideas with no significant degree of connection to each other.1 The Paradox does not focus on short-term, personality-related factors or other superficialities in accounting for the difficulties associated with the Canadian constitutional order. It is always possible to explain a problem away with a proximate cause such as 'people just hate the prime minister', 'the economy is not very good right now' or something else of that nature. Instead, the Paradox emphasises the inherently self-defeating character of the existing constitutional regime, which reflects a brilliantly conceived theory that, unfortunately, has been implemented outside the conditions intended for its application. As will become apparent, the basic idea is that, while Rawls (1971) produced an impressive normative theory of justice as fairness, its manifestation at an empirical level in Canada has not met with the same degree of success. This paper unfolds in three additional sections. The second section explains the nature of the Rawlsian Paradox and derives implications from it. Third, these implications are explored in a cursory way; in other words, this section takes the form of a plausibility probe rather than a definitive test. The fourth and final section provides conclusions and suggestions for future research. The Rawlsian Paradox and its Implications One of the greatest works of philosophy in the twentieth century is A Theory of Justice (Rawls 1971). It is a landmark exposition of contractarian liberalism, perhaps understood more simply as the effort to fashion a society's governance out of an overall agreement on what is meant by political order, with some role designated for individual and even collective rights. …