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From Montreal to Graz

Montag, 06.02.2023

Our Land Steiermark Fellow Stephane Beaulac takes a look at the relationship between constitutionally conforming legal interpretation and the concept of unwritten constitutional principles

REWI Uni Graz: Your research topic focusses on the relationship between constitutionally conforming legal interpretation and the concept of unwritten constitutional principles. Please tell us a little bit more about it! How did you come across this topic?

Stéphane Beaulac: I am an international law scholar by training and interest, but also a specialist in what is known in the Anglo-American legal tradition as "statutory interpretation", i.e. the methodology of interpretation applicable in judicial decision-making, which essential is a subject of (domestic) public law with constitutional ramifications. Over the years - some 25 of them since I started as a law prof - I have written extensively on the different issues pertaining to "interlegality", that is the domestic use of international law, with actually some doctrinal influence on the judicial approach adopted by the Supreme Court of Canada, the country's highest court. One of my (humble) contributions is in terms of the operationalization of international normativity within the domestic legal sphere (building upon, but going beyond the monist and dualialist theories), with concrete arguments of statutory interpretation by means of which national judges resort to treaty and customary norms of internationl law, based on a reasoning that they are relevant and persuasive sources for the interpretation and application of domestic law, be it legislative or judge-made-law (i.e. "jurisprudence" in French). The two main gateways for international law are, therefore, the argument of contextual interpretation and the presumption of conformity with international law (known as the "Charming Betsy Rule" in the USA). My research at Graz Jurisprudence, within the activities of Prof. Matthias Klatt's Research Centre for Legal Philosophy and Global Constitutionalism, during the winter term 2023, essentially explores further this theme by examining the canon of conforming legal interpretation, how it falls within the presumption of conformity with international law, and ultimately the justifications for resorting to this operationalizing technique to invoke and rely on unwritten principles (not only specific treaty or customary obligations) from the international legal sphere.


What are your outcomes so far?

Although some groundwork had been conducted before me leaving from my home university in Montreal (Canada), I have been using my time researching and writing a paper on the topic of interlegality, conforming legal interpretation and unwritten principles since I have arrived at the University of Graz, mid-January. If everything goes as planned, I shall have a good draft of the said paper, to be included in a collective book Prof. Klatt is preparing and editing on the subject of unwritten legal principles, by the time I leave Austria in March. The deadline being end of May, I will have time to review and finalize my paper upon my return to the University of Montreal, in the spring.


Are there any other exciting research topics you are dealing with?

I am tempted to say that, perhaps like Sylvester Stallone (with Rocky Balboa and John Rambo), I tend to have double identities as far as my scientific research is concerned. Beside interlegality, my other main area of interests - which, incidentally, also overlaps public international law and domestic constitutional law - relates to the self-determination of peoples and the right of secession. Of course linked to the situation of the province of Quebec within the Canadian federation, as well as the two episodes of referendums on international independence (held in 1980 and in 1995, respectively), I have studied thoroughly and dwelled upon the legal framework relevant to these issues set out by the Supreme Court of Canada (which is also our constitutional court) in the famous 1998 Reference case on Quebec secession in my scholarship, including a couple of books on the law of independence. This research brought me to also examine the situations, among others, in Kosovo with the International Court of Justice decision on the compatibility of a unilateral declaration of independence with international law, as well as the cases of Catalonia and of Scotland, for which I did empirical work during the last referendum held in the latter, during the fall of 2014.


Your home university is the University of Montreal, Canada. Given that Canada’s legal order follows two different legal traditions, civil law in the French-speaking part and common law in the English-speaking part, could you tell us a little bit more about how these two legal systems relate to each other or influence each other?

Actually, my basic training is in both the civil law and the common law; I'm also a lawyer for the Quebec bar (civil law) and for the Ontario bar (common law). Indeed, my legal practice (I am "avocat-conseil" at Dentons LLP) has brought me numerous cases where these two legal traditions overlap, especially in commercial litigation. As a matter of fact, a few years back, I co-authored a book entitled: "Common Law and Civil Law: A Comparative Primer" (LexisNexis Canada, 2017), aimed at the need for practitioners to at least flag the differences and the "false friends" in these two legal tradiditions. This question being vast and my research topic while in Graz having little to do with comparative law, I suppose I may just refer you to this book (which I notice is not in Graz Law Library, yet) for all the details on the mutual influences of civil law and common law within the jurisdictions of Quebec and Canada.


Last but not least: What was your motivation to apply for a fellowship at REWI Uni Graz?

During the winter of 2023, I am on a so-called sabbatical leave from my home institution, the University of Montreal. This does not mean holidays, of course, but rather that I have an opportunity to visit and research in foreign places of learnings. For instance, I spent my first sabbatical in 2006-2007 in Florence (Italy), at the European University Institute, working with Prof. Jacques Ziller and Prof. Neil Walker. This time, I am glad to have the opportunity to spend some time as a visiting professor at Graz Jurisprudence, at the Research Centre for Legal Philosophy and Global Constitutionalism, in the company and under the leadership of an internationally recognized authority in legal philosophy, Prof. Matthias Klatt. I am so very thankful to the Faculty of Law at the University of Graz and the Land Steirmark Fellowhips programme for making possible my stay in Austria.


Stephane Beaulac will give a talk titled "Metaprinciples, Interlegality and Recent Case Law (from CAN, GRB, DEU)" on 9 February 2023 @ Graz Jurisprudence (more).

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