Sovereignty, Difference & Constitutional Pluralism: The European Union and Canada in Dialog

Abstract Both Canada and the European Union feature multiple overlapping legal systems, each with independent sovereignty claims and distinctive cultural traditions. Courts in both settings have therefore been forced to reckon with ‘constitutional pluralism’. In Canada, the contested relationship between Indigenous and settler legal orders has been mediated largely through s35, which recognizes Aboriginal rights, and s25 which shields them from the Canadian Charter. The resulting jurisprudence has focused on protecting cultural difference by creating limited spaces of autonomy within the Canadian state but has largely neglected questions of sovereignty. In Europe, the relationship between European Union and member-state law has been mediated through an emergent judicial dialog which allows each court to maintain its sovereignty claim by making its acceptance of the other’s authority conditional. The resulting jurisprudence focuses on sovereignty without dealing as closely with questions of difference. The two contexts therefore represent divergent approaches to shared conceptual and practical problems. To my knowledge, however, no scholarship has seriously compared the two. The following article takes a modest step towards filling this lacuna, introducing European thinkers to Canadian constitutional pluralism and vice versa before reflecting on some of the ways further comparative research can add depth to existing comparative literature, deepen our understanding of constitutional pluralism as a theory and, in particular, raise important questions about constitutional pluralism’s relationship to liberalism.