Sovereignty, Referendum, and the Will of the People in Canada and the World (LAW259H1S)

This course considers how the concept of sovereignty both shapes discourse in public law and structures the relationship between legal subjects and their governments. It seeks to answer at least two central questions: First, what do we, or should we understand sovereignty to mean? Second, is the referendum an appropriate mechanism for the expression of popular sovereignty? We will explore these questions from both theoretical and practical perspectives. 

The course rests on a theoretical foundation that blends classical discussions of popular sovereignty (Hobbes, Locke, Rousseau) and modern constitutional theory (Carl Schmitt, Andreas Kalyvas), rule of law theory and twentieth century jurisprudence (Dicey, Hart, Fuller), and leading contemporary work on referendums (Stephen Tierney, Oran Doyle). On the practical side of the course, we will explore procedural mechanisms purporting to allow the exercise of sovereign political power, looking both at constitutional changes by referendum (whether adopting a new constitution or amending an existing one) and at significant political changes brought about – or sought to be brought about – by referendum (Brexit, an independent Quebec, Catalonia or Scotland, same-sex marriage and abortion in Ireland). We consider also alternative routes to the exercise of sovereign power, particularly by politically marginalized or disenfranchised groups such as Indigenous peoples in Canada and socio-economically disadvantaged people in the developing world. 

Readings for the course will include chapters from a forthcoming edited volume on referendums, prepared by leading constitutional law and political science scholars. I hope to have at some of these scholars join us in class or by videolink for class discussions.