Environmental challenges, public health crises and the rise of artificial intelligence are but a few pressing issues that are contributing to current debates among constitutional scholars, including discussion of whether or not our fundamental laws need to be adapted to better reflect and respond to the realities faced by Canadians.
We see these issues arise, for example, in the debates between living tree constitutionalism and originalism, in the discussion of the proper role of unwritten constitutional principles, and in the ongoing debates regarding the proper judicial role.
In order to shed light on these matters, Professor Peter Oliver has been awarded an Insight Grant from the Social Sciences and Humanities Research Council (SSHRC) to fund a research project on sustainable jurisprudence – that is, a theoretical framework that sees law as both an authoritative standard and as an enduring, necessarily adaptable, ongoing project -- one that is able to meet the needs of the present even as it helps future generations meet their own, possibly quite different needs.
Professor Oliver’s project seeks to establish this new theoretical framework as a means to make laws both predictable and adaptable enough to be appropriate to changing contexts. To do so the project will consider several factors for this framework such as the legitimacy and authority of rules emanating from recognized sources, as well as the moral quality of these rules. Most distinctively, however, sustainable jurisprudence encourages us to consider the appropriateness of those rules to an ongoing, often changing context. This will be done with the likely outcome of finding a middle ground or a bridge between traditional, doctrinal legal research and empirical, social-legal inquiry. According to this approach, it is not enough just to confirm that enacted law is made by the proper institutional source; the quality of that law and its appropriateness to context are also relevant to its sustainability, and therefore to the ongoing project of the rule of law. A law that is not appropriate to a changing context does not cease to be law in a narrow sense, but it dissipates the force of law in the wider sense preferred by this approach. In terms of judge-made law, sustainable jurisprudence explains why judges need to heed context, notably in hard cases, while at the same time encouraging judicial humility given the complexity of human affairs.
Professor Oliver will use the grant to fund research that applies the fundamentals of sustainable jurisprudence to key issues in Canadian constitutional law, with the aim of publishing several scholarly articles in leading journals. Moreover, the grant will fund research and travel that will assist in the production of a monograph on sustainable jurisprudence.
SSHRC’s Insight Grants aim to support and foster excellence in social sciences and humanities research that aims to deepen, widen and increase our collective understanding of individuals and societies, as well as to inform the search for solutions to societal challenges.
Congratulations to Professor Oliver!