Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and its Lessons for the United Kingdom
Questions relating to the disintegration and destruction of legal systems or what H.L.A. Hart called the 'pathology of legal systems'" are extremely difficult to confront as questions of law. When political allegiance to one legal system begins to erode, the natural tendency of judges may be to struggle to save the system from collapse, thereby putting at risk the chance of orderly transition to succeeding nascent legal systems. However, just as it is best for a natural person to order his or her affairs and write a will while of sound mind, perhaps a legal system even one with promise and potential remaining should likewise plan for its orderly, and lawful, demise. Indeed, by confronting the unthinkable, perhaps it can (unlike a natural person contemplating eventual death) achieve partial survival, so that in the aftermath of its dismemberment a remnant of the system remains worthy of allegiance from at least some of its citizens. This was, in essence, the task that the Supreme Court of Canada accepted in Reference re the Secession of Quebec from Canada.2 In what the Chief Justice of Canada, Antonio Lamer, described as the most important judgment in the Court's history,3 the nine Supreme Court justices ruled unanimously that the Dominion of Canada is divisible and (by implication) destructible, and that there are legal rules governing such division and destruction. The case arose when the federal government of Canada invoked the advisory jurisdiction of the Court by referring to it three questions, namely: (1) Can the government or legislature of the province of Quebec effect the secession of Quebec from Canada unilaterally under Canadian law? (2) Can the government or legislature of Quebec effect secession unilaterally under international law? (3) If Canadian and international law conflict on this point, which prevails?4 Thus, the Court confronted the same basic legal issue as did the Judicial Committee of the Privy Council in the famous case of Madzimbamuto v LardnerBurke5 with the critical difference that, in that case, the Rhodesian government had