Federal arbiters as facilitators: Towards an integrated federal and judicial theory for diverse states

• Autores: Robert Schertzer
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 15, Nº. 1, 2017, págs. 110-136
• Idioma: inglés
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• Resumen

  • In the majority of federations, the judiciary plays a critical role arbitrating conflict between the orders of government. In general, where this institution is considered within federal and conflict management theory, scholars and policy makers argue the institution should be an independent and neutral body, acting as either a restrained umpire or activist guardian. This article reflects on the foundations of this perspective by looking at the linkages between the main approaches of using federalism to manage diversity and theories of the judicial role. Focusing on the linkages between these two sets of theories illuminates the shared flaw with the traditional focus on independence in the umpire and guardian role-perceptions: the inability to effectively account for the inherently contested nature of diverse federations. To help address this shared flaw, the article sketches an institutional model and theory of judicial review that calls on federal arbiters to recognize the validity of competing viewpoints on the nature of a federation. In adopting this approach, federal arbiters can play a critical role of facilitating ongoing negotiation to manage conflict in diverse states. To help ground the discussion and demonstrate how this more facilitative approach can be implemented in practice, the article briefly highlights how the Supreme Court of Canada is increasingly adopting this role.