Courts Without Cases: The Law and Politics of Advisory Opinions

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Since 1875, Canadian courts have been permitted to act as advisors alongside their ordinary, adjudicative role. This book offers the first detailed examination of that role from a legal perspective. When one thinks of courts, it is most often in the context of deciding cases: live disputes involving spirited, adversarial debate between opposing parties. Sometimes, though, a court is granted the power to answer questions in the absence of such disputes through advisory opinions (also called references). These proceedings raise many questions: about the judicial role, about the relationship between courts and those who seek their advice, and about the nature of law. Tracking their use in Canada since the countrys Confederation and looking to the experience of other legal systems, the book considers how advisory opinions draw courts into the complex relationship between law and politics. With attention to key themes such as the separation of powers, federalism, rights and precedent, this book provides an important and timely study of a fascinating phenomenon.

Reviews

This book is the first in-depth study of the profound impact on Canadian constitutional law produced by judicial advisory opinions issued in response to the direct reference of legal questions to the courts by governments. From the Persons case to the Secession Reference, reference opinions have come to dominate the Canadian constitutional landscape. But the reference procedure has been oddly overlooked by constitutional scholarsuntil now. For Carissima Mathen, this unusual point of legal procedure is the vehicle for a magisterial exploration of the history, politics, theory, and practice of constitutionalism in Canada. Courts Without Cases is a brilliant contribution to the literature on Canadian constitutional law and politics. -- Professor Mark D Walters, McGill University
Courts Without Cases is a lucid, original, insightful and highly readable contribution to our understanding of law and politics. References brought by Government to the Supreme Court have led to many of the most important Supreme Court decisions, from same-sex marriage to Quebecs secession, from the regulation of prostitution, guns and financial markets to the composition of the Senate and the Supreme Court itself. Mathen masterfully weaves the story of these significant judgments with the political and institutional dynamics which shape them. -- Lorne Sossin, Professor and Dean Emeritus Lorne Sossin, Osgoode Hall Law School, York University
All in all, this book is a very welcome contribution to our understanding of the roles and workings of courts and of the dynamics between law and politics, especially in common law settings. -- Venkat Iyer, Ulster University * The Commonwealth Lawyer *

Author Bio

Carissima Mathen is Professor of Law at the University of Ottawa.