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Copyright (c) 1995 University of South Carolina
South Carolina Law Review

ARTICLE: Divided Justice? Judicial Structures in Federal and Confederal States

Summer, 1995

46 S.C. L. Rev. 819


H. Patrick Glenn *



The division of legislative authority is the mark of the contemporary, complex state whether it is federal or confederal in character. 1 The division of judicial authority enjoys less favor. Even in states recognized as federal, there may be resistance to application of federal principles to the judiciary. What explains the reluctance to divide the pursuit of justice? Why is the reluctance overcome in some instances? What are the results? This Paper will attempt to provide responses to these questions from the perspective of the Canadian Confederation (as it has been known), 2 as compared to the United States and Australian federations 3 by examining successively: (I) Basic Premises; (II) Structural Variations; and (III) inevitably, Resulting Problems.

I. Basic Premises

Attitudes toward judicial structures appear heavily influenced by underlying attitudes concerning the nature of law, the nature of the particular complex state, and the administration of justice. Differences have emerged in these regards among Canada, the United States, and Australia, although it is interesting to observe that the same themes have figured in the debates in all three countries.

Canadian judicial structures clearly have been influenced by underlying ideas concerning the nature of both the common and civil laws. In neither legal tradition has there been institutional acceptance of the idea of law as the product, exclusively, of national political or legal officials. In common-law Canada, a national, binding concept of stare decisis never has been accepted
fully and an earlier tradition of the common law as ...
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