The Importance of Not Being Ernest

Abstract

One particular dream that has withstood the reality of waking history is about ‘a government of laws, not men’. Although this constitutional vision is predominantly American, it has retained a firm grip on the Canadian popular and legal imagination; it has been a major source of governmental authority and legitimacy. There is a long-standing belief in the United States and in Canada, especially in these post-Charter years, that Law is more than the sum total of extant laws: it is felt to be the expression and repository of a political wisdom that transcends the bounds of its temporary articulation. Democratic law-making cannot be left entirely to its own promptings, but must be judged by its willingness to conform to the dictates of a higher law. Whereas Reason and Natural Right used to hold considerable sway, recent sightings of these transcendent authorities are of a more specific and prosaic nature. Recognising that, whatever else it might be, law is a human activity, contemporary legal theorists strive to explain and justify the delicate (and elusive) relation between law's immanence the idea of law as the rational embodiment of an indwelling necessity and law's instrumentality – the practice of using law as a democratic tool for social engineering.