The Law Makers: Judicial Power and the Shaping of Canadian Federalism

by John T. Saywell, Emeritus Professor of History, York University. Published with University of Toronto Press, 2002.

For those who believe that the history of the Judicial Committee of the Privy Council’s decisions on the Canadian constitution is an oft-told story, this book will be a revelation indeed. One of Canada’s outstanding scholars, Professor Saywell draws on previously unknown sources and new evidence to write a book which offers a remarkable re-interpretation of Canadian constitutional history. Focussing on the always controversial relation between national and provincial governments, it adds an engaging human dimension as it illuminates the remarkable vagaries of law lords and judges. Critical of the jurisprudence of the Judicial Committee, which he argues virtually eliminated some of the essential legislative powers of the federal government and destroyed its capacity to act on the economic and social problems of the twentieth century, Saywell credits the Supreme Court with restoring the balance in the federation and strengthening the national government. Above all Saywell’s analysis demonstrates that then as well as now, judges did not hesitate to “make law” – whatever the consequences. Comprehensive, ambitious and detailed, The Law Makers will be the definitive work on the evolution of the law of Canadian federalism.

Reviews of The Law Makers: Judicial Power and the Shaping of Canadian Federalism

The fully mature product of a fulsome career of research, teaching, and administration. Most emphatically, John T. Saywell's seminal The Lawmakers is well worth the wait. It is by far the most impressive piece of Canadian legal/historical scholarship that has appeared in a long time... In a brilliant tour de force, [Saywell] weaves together rich unexplored archival sources with the full range of approaches embedded in the existing historiography... The Lawmakers, without reservation, will stand indefinitely as a very high benchmark for all future studies on judicial power and the making of Canadian federalism. Michael D. Behiels, Policy Options Politiques, April 2004.
[The Lawmakers] will long be a must-read for any real student of Canadian constitutional history.... As John Saywell's The Lawmakers: Judicial Power and the Shaping of Canadian Federalism ably and provocatively demonstrates, the place of the Judicial Committee of the Privy Council (JCPC) in Canada's constitutional history has not yet been fully explored. Indeed Saywell makes the case that a reappraisal of the JCPC and judicial power is overdue.... The greatest contribution of The Lawmakers is in treating Law Lords Watson, Haldane, and Atkins as human beings with all their foibles, peculiarities, and, all too often, their prejudices.... John Saywell has provided us with new light to explain what has been, in many cases, a series of judgements that too often seem inexplicable. Jonathon Swainger, Canadian Historical Review, Vol 85, 2004.
The fact is, in spite of reams of writing on the judicial interpretation of Canadian federalism, there has never been a book-length study of this kind. Saywell combines the precision and focus of the legal scholar... with the broad sweep and contextual awareness of the historian. Philip Girard, Literary Review of Canada, Vol 11, No 6, 2003.
Un ouvrage qui plonge le lecteur dans le réalité canadienne au-delà du seul “squelette” que constitue le BNA Act de 1867. Paule-Marie Duhet, Etudes Canadiennes/Canadian Studies, No 53, 2002.

Reviews have also appeared in the following publications:

  • Gilles Renaud, Provincial Judges' Journal, Vol 26, No 2, 2003.
  • Bryan Schwartz, Winnipeg Free Press, May 11, 2003.