Culture, Postmodernism, and Canadian Legal Hermeneutics: A Comment on Reference Re Secession of Quebec

When I was an undergraduate, I recall having heard Canada described as the world\u27s first postmodern state in a history seminar. The professor who made this contention based this opinion on the fact that Canada is unlike most of the world\u27s nation-states in that it was founded and structured to accommodate the needs and aspirations of two founding peoples, instead of one. At the time, I was quite taken with this idea. I return to it now in order to explore and interrogate the postmodernity of the Canadian polity and Canadian law. In the years since that history seminar, Quebeckers have voted in a second sovereignty referendum, and I feel that I have developed a more sophisticated understanding of postmodern ideas and the (in)ability of the Canadian state to accommodate cultural difference. I am no longer so optimistic that Canadian law is capable of reconciling the often divergent demands of liberal statehood and cultural pluralism. To date, most culturally-based critiques of Canadian law have been articulated with regard to the difficulties faced by First Nations in their encounters with the law. Mary Ellen Turpel and others have argued persuasively that the whole structure of Canadian law, with its complex of ingrained cultural assumptions, militates against a genuine recognition of the cultural difference of aboriginal peoples. Such a recognition seems an impossibility to Turpel given the current state of Canadian law, since it would reveal a lack of interpretive authority in legal reasoning and decision-making, and problematize ... the rule of law as one particular expression of social life. While this failure of Canadian law is deplorable, it is perhaps not surprising given the long history of oppression and discrimination suffered by aboriginal people and peoples in Canada. My goal in this paper is to determine whether the inability of Canadian law to take proper notice of the cultural difference of aboriginal peoples is an indication of a broader incapacity, and whether the status of Quebec as a legal entity within Canada is limited in similar ways