For the last 150 years, Canadian courts of general jurisdiction have exercised a special function. At the request of the executive, they issue advisory opinions in the absence of a live “case or controversy”. Borrowed from the 1833 Judicial Committee Act, but absent from the U.K. domestic context as well other Anglo-American systems, advisory opinions have been critical to Canadian jurisprudence and, in particular, to its constitutional law. They are so familiar that a basic tension at their core has become obscured. The tension arises from the asymmetry between references' formal and practical status. Formally, such opinions as “non-binding” – they do not provide independent reasons for compliance by other actors. In actual practice, though, they are treated as though they do. Drawing upon Chapter 9 of my book (forthcoming, Hart), the paper discusses what created and explains this tension, and what it can reveal about the nature of authority and about law as such.
Our next Annual Conference will take place from July 6-9, 2021. It will be held in a completely novel way as a fully online Conference: ICON•S Mundo. Stay tuned.
The Call for Papers for ICON•S Mundo is now closed. Successful applicants will be notified by the end of May.
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