Reddit mentions of Governing from the Bench: The Supreme Court of Canada and the Judicial Role (Law and Society)

For information about government institutions:

Protecting Canadian Democracy: the Senate You Never Knew---a compilation of papers on the Senate, on upper houses in general, and on Senate reform. Put together by Senator Serge Joyal.

Governing from the Bench: The Supreme Court of Canada and the Judicial Role---by Emmett MacFarlane, a very good analysis of the Supreme Court of Canada and its role in modern lawmaking.

House of Commons Procedure and Practice---also known as O'Brien & Bosc after its editors, the House of Commons procedural reference manual and roughly the Canadian equivalent of the seminal Erskine May. The manual includes a comprehensive coverage of the institutions of government, especially as they relate to Parliament and lawmaking, and good coverage of parliamentary privilege. Don't dismiss it out of hand for being a procedural manual; the parts on the structure of the government are surprisingly accessible.

>A constitution prevents certan laws from being written and invalidates certain laws (generally very new ones, the first time their application is appealed up to the highest court). What it does not do is induce the passing of new laws.

I gave you an example with Canada where the SCC compelled parliament to write new legislation concerning assisted suicide. They also compelled government to write legislation concerning prostitution. Governing from the Bench is an academic book by professor Emmett Macfarlane about the role that the SCC and the courts in general play in legislation and governance in Canada.

Beyond that, norms can be a prohibition on certain actions or behaviors. Striking down legal restrictions in line with social norms is just as much changing a law as writing new legislation.

>Laws are written by elected representatives, those elected because they reflect the norms of the country. The intention is that any law passed reflects the norms of that country.

That's certainly the idea in theory, but it doesn't always work out like that. Access to political institutions and representatives is a huge and often forgotten factor. A 10 year study by two political scientists found that upwards of 90% of new legislation in municipal, state, and federal legislative bodies benefited those in the top 10% of wealth, providing some evidence for a theory in political science and sociology known as elite theory. Elite theory holds that pluralistic democracy is either a utopian folly or can't be realized within a capitalist system where those in positions of economic privilege and power can exert a large amount of control over the legislative and policy decisions of governments.

But even if you reject that wholesale, depending on the political structure that's being dealt with. For example, Canada has a parliamentary political system with three major parties. A minority government may very well compromise with the third place party and present and pass legislation against certain social norms in order to ensure that third party's vote. Or the opposite might happen. In Canada a majority government may only have a plurality of the popular vote but a majority of the seats in the HoC. That means that they are able to pass legislation unopposed (due to strong party loyalty) that could very well be against collective beliefs and values of a majority of the populace.

There are more ways than that. Access to representatives and political institutions can be exceptionally useful for unpopular legislative changes, which can be done through lobbying. The role of funding and campaign financing has the potential to present a conflict of interest for politicians. The list goes on and on.

>A constitution is a force against change. It might prevent a law being written despite being reflective of the country's norms but it cannot create a law that contradicts them.

But it is changing the law, which is what this whole debate has been about. It's not just about writing laws, it's about changing them.

>The rarity of referendums and (in some places) requirement for more than a simple majority are further forces against change. They mean that norms must swing even further before certain aspects of the law will change.

But referendums aren't the norm for most legislative, legal, and political issues. Pointing to the fact that they exist does not in any way undermine or rebut anything that I've said at all.