This paper argues that efforts to resolve Canada's constitutional conundrum with the distinct society clause, or unique character clause, are likely to fail because the legal recognition of Quebec's distinctiveness and the entrenchment of collective rights is inimical to the liberal understanding of equality held by many Canadians outside the province of Quebec. The paper suggests, however, that the aspirations of Quebec could be realised within a framework of federalism, if Canadians outside Quebec are prepared to accept a classical form of federalism as a system of government with legally divided sovereignty.
Selon cette etude, les efforts visant h resoudre l'enigme constitutionnelle / l aide d'une clause portant soit sur la societe distincte ou sur l'idee d'une caracteristique unique, ont de tres fortes chances d'echouer. En effet, la reconnaissance juridique de la specificite du Quebec et l'enchassement des droits collectifs ne s'accordent pas avec la comprehension liberale de l'egalite telle que definie par beaucoup de Canadien/nes hors de la province de Quebec. Cet article suggere cependant que les aspirations du Qu6bec peuvent etre atteintes a l'interieur du cadre federal si les Canadien/nes hors Qu6bec sont pret/es a accepter la forme classique du federalisme, a savoir, un systeme de gouvernement a partir d'une souverainete6 jurdiquement divisee.
The Quebec referendum of 30 October 1995, took Canada to the precipice of constitutional dissolution. The razor-thin margin of victory achieved by those who voted "non" has led most observers to conclude that the current constitutional status has no quo. While Quebec sovereignists relish the prospect of being at the threshold of statehood, Quebecois federalists have insisted that the Canadian constitution must recognise Quebec as a "distinct society,"' the phrase they have adopted to present themselves as a "national community" within Canada,2 or, at the very least, the constitution must acknowledge the "unique character" of Quebec.3 This, they have asserted, is necessary to obtain Quebec's accession to the repatriated constitution. Many Canadians outside Quebec, however, have been reluctant to embrace this constitutional prescription.4 They have argued, without much precision, that a distinct society clause would violate the principle of equal citizenship.5
These two positions are informed by different, and ultimately incommensurable, political philosophies. The Quebecois tend to exhibit a communitarian conceptualisation, while most Canadians outside Quebec have a liberal understanding of equality. Liberalism and communitarianism are "mega-constitutional orientations" with heuristic, not definitive, value. They represent the broad constitutional beliefs of Quebec and the rest of Canada, but they are not universally nor exclusively held by the citizens of these regions.6 In as much as they are irreconcilable orientations, the distinct society, or unique character, clause cannot serve as the basis for an overlapping constitutional consensus. Quebec's political objectives could, however, be realised by federalism, if Canadians explicitly recognise that the essence of federalism is a system of government with divided sovereignty. A thorough re-examination of federalism may thus yield an "overlapping consensus."'
Liberalism and Communitarianism
Liberalism and communitarianism are broad philosophical traditions, both with enormous internal differentiation.8 While they may share certain values, such as beliefs in democracy, the rule of law, the value of public participation, welfare and cultural diversity,9 they are informed by fundamentally different assumptions. Amy Gutmann articulates four distinctive characteristics of liberalism: I) A liberal theory begins by stipulating what constitutes an individual's interest. 2) Among such interests is an interest in liberty: in doing what one chooses without interference from others. 3) A state is then justified if and only if it satisfies the interests of individuals as previously understood. …