Willis, ‘Theology,’ and the Rule of Law
University of Toronto Law Journal, pp. 767-795, 2005
Posted: 25 Apr 2011 Last revised: 14 May 2011
Date Written: 2005
Abstract
The influential work of the late Anglo-Canadian public law scholar John Willis is used as a launching pad to explore several of the shortcomings and strengths of the functionalist and realist views he espoused in his writings. His analytic approach is then contrasted with Lon Fuller’s functionalism in order to disclose how, in Canadian jurisprudence, the unwritten principle of the rule of law appears as a fundamental Fullerian politico-legal fiction requiring the endorsement and practice of the three ‘cults’ Willis dismissed as dangerous and unpromising: individualism, participatory democracy, and openness as a principle of good government. Contrary to Willis, courts are no longer the least important branch and constitutional democracies can no longer distinguish so cleanly among lawyers’ values, civil servants’ values, and citizens’ values. Canada now has a blend called ‘Charter values’ that define and shape both the legal imaginary and the imagined political community. While appreciating the strengths of Willis’s perspective on the dangers of judicial review, and acknowledging several shortcomings in Fuller’s thought, the author argues that Fuller’s thinking about the rule of law best elucidates the idea of ‘institutional dialogue’ in contemporary constitutional discourse. The article concludes by suggesting that when judges use this metaphor, they are engaging in a public discourse about the legislature and the judiciary as coordinate institutions in a constitutional order and how this ideal relationship can be realized through concrete institutional practices.
Keywords: Administrative Law, Constitutional Law, Rule of Law, Legal Realism, Functionalism (Social Sciences), John Willis, Lon Fuller, Jurisprudence, Legal Theory, Public Law, Institutional Dialogue
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