46 S. C. L. Rev. 819 (1994-1995)
Divided Justice--Judicial Structures in Federal and Confederal States

handle is hein.journals/sclr46 and id is 835 raw text is: Divided Justice? Judicial Structures
in Federal and Confederal States
H. Patrick Glenn*
The division of legislative authority is the mark of the contemporary,
complex state whether it is federal or confederal in character.' The division
of judicial authority enjoys less favor. Even in states recognized as federal,
there may be resistance to application of federal principles to the judiciary.
What explains the reluctance to divide the pursuit of justice? Why is the
reluctance overcome in some instances? What are the results? This Paper will
attempt to provide responses to these questions from the perspective of the
Canadian Confederation (as it has been known),2 as compared to the United
States and Australian federations3 by examining successively: (1) Basic
Premises; (II) Structural Variations; and (III) inevitably, Resulting Problems.
Attitudes toward judicial structures appear heavily influenced by
underlying attitudes concerning the nature of law, the nature of the particular
complex state, and the administration of justice. Differences have emerged in
these regards among Canada, the United States, and Australia, although it is
interesting to observe that the same themes have figured in the debates in all
three countries.
Canadian judicial structures clearly have been influenced by underlying
ideas concerning the nature of both the common and civil laws. In neither
legal tradition has there been institutional acceptance of the idea of law as the
product, exclusively, of national political or legal officials. In common-law
Canada, a national, binding concept of stare decisis never has been accepted
* Peter M. Laing Professor of Law, of the Faculty of Law and Institute of Comparative Law,
McGill University.
1. The same is true of the essentially unitary state which tolerates a level of regional or local
autonomy in one or more regions.
2. The language of federalism, as opposed to confederalism, has been increasingly used in
Canada in recent years, largely as a reflection of the growth of Federal power. In terms of
judicial authority, however, the confederal character of the structures still is very much in
3. For similar treatments of the subject, see Peter Hogg, Federalism and the Jurisprudence
of Canadian Courts, 30 U.N.B.L.J. 9 (1981) and Bora Laskin, Comparative Constitutional
Law-Common Problems: Australia, Canada, United States of America, 51 AUST. L.J. 450

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