The Canadian Government is Brain Damaged

Exposing the Contradiction at the Heart of the Liberal Legal Order

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People are sometimes surprised to find that I am folkish but also absolutist. Even among people of cultivated common sense, absolutism means something like tyranny and folkishness means something like popular sovereignty—thus they see a contradiction. I see these two as not only not in tension, but deeply continuous, for reasons that may become apparent in this article.

In my political journey I began as a libertarian but soon realized the limitations of that philosophy. It cannot provide a reasonable account of how rights come into being, or of the ground of authority, and ends by vesting all authority in the individual, which is the same as denying all authority, since all normativity is heteronomous. Libertarianism is just consistent liberalism, and in recognizing the limits of liberalism I started searching elsewhere, and absolutism quickly prevailed upon my reason. It provides an account that is not only reasonable, but virtually incontestable. In the shortest possible formulation, absolutism holds that the sovereign is above the law because law cannot exercise itself.

In denying this, the liberal legal order rests upon a contradiction. It can hide this contradiction by force, but only for a time. But invariably this contradiction rises to the surface like a festering abscess: you can cover it over, but the pressure keeps building until it finally bursts through. This is what has happened in the case of the Cowichan Tribes land decision. In this article we will explain why the Canadian government’s commitment to a brain-damaged legal foundation leads it to admit that its own sovereignty is null and void. It doesn’t care, but it should—a legal order that disagrees with itself can govern by nothing beyond naked force.

Claiming Sovereignty Without Possessing It

In August 2025 the British Columbia Supreme Court declared that the Cowichan Tribe’s land rights do not derive from the Canadian state but precede it, and that Crown actions inconsistent with those rights were beyond the Crown’s lawful power. The decision does not instantly dispossess private owners, but it does something deeper: it reveals that Canada cannot determine the scope of its own authority without appealing to an older, external sovereignty.

Modern liberal states claim unitary, indivisible sovereignty: the state is the final authority over territory. But here, the Canadian state acknowledges that another authority, older than the state itself, possesses rights that the Crown cannot revoke. This means that the Crown is not the final arbiter of land ownership—a pre-Crown polity is.

The problem is crystallized when viewed through an absolutist lens. Sovereignty is absolute, perpetual, and unlimited—or it is not sovereignty at all. Jean Bodin defines sovereignty as “the highest power over citizens and subjects, unbound by the laws.”¹ Thus if another authority can bind or constrain the prince, that other authority is the real sovereign:

For it is a well-established rule that not only privileges, but not even laws or edicts retain their force after the death of a prince, unless they are confirmed by the authority—or even the tacit con­sent—of subsequent princes…

As Pomponius says: “No obligation can be val­id which depends entirely upon the will of the one making the promise.” This is not merely a probable reason, but one that is logically necessary for con­viction: namely, that a prince cannot in any way be bound by his own laws and commands.

Just as the interpreters of canon law say that the Supreme Pontiff cannot bind his own hands, so too the supreme prince—indeed not even a magistrate or private citizen—can issue an edict or command to himself.

Hence that common formula at the end of all laws and edicts, as in Rome: We have willed and decreed it, to be understood as meaning that laws, however just, depend solely on the will of the one who commands them.²

A sovereign cannot share or delegate sovereignty without ceasing to be sovereign. If Canada cannot revoke or delimit Aboriginal title—because it is not Canada’s to alter—then Canada is not a sovereign entity. Sovereignty is a simple test: Who commands, and who must obey? By accepting that Indigenous title limits the Crown, and that these limits arise from a polity older than Canada itself, the liberal state effectively concedes that its sovereignty is neither absolute nor final. Liberal states try to hold together two incompatible claims: that the Crown is supreme, and that the Crown is bound by an authority it cannot alter. The absolutist tradition simply reveals this inconsistency with brutal clarity.

The Facts: What the Court Actually Decided

Under Canadian jurisprudence (from Calder to Tsilhqot’in), Aboriginal title is an inherent right: it does not flow from the Crown, nor it is a delegated right, nor a gift of legislation. The court in Cowichan simply applies this doctrine: Cowichan title originates from pre-contact political societies, not from Canadian law. This is crucial: Aboriginal title is recognized, not created, by the Crown—its source lies outside the Canadian constitutional order.

The Crown historically treated the land as if the Crown itself possessed full sovereignty over it, but the court has now found no evidence that Aboriginal title was ever lawfully extinguished. To extinguish Aboriginal title, the Crown must act with a clear and plain intention—and historically it did not. Therefore the original Cowichan title survives into the present. The implication is dire: the Crown acted ultra vires (beyond its legal authority) for over a century. Its supposed authority rested on a legal fiction that it has now formally repudiated.

This aspect of the ruling caused public alarm, but its meaning is strictly legal: if the Crown had no right to grant the land, then the resulting private titles rest on a shaky foundation. The court did not order the expropriation of existing holders’ property, but it did acknowledge the foundational defect. So rather than deciding the matter, the court instructed the Crown to bargain. The Cowichan ruling compels the state to treat another authority as capable of vetoing or redefining Crown decisions.

Both federal and provincial governments are legally powerless to repeal Aboriginal title. Even Parliament cannot annul it; section 35 of the Constitution places Indigenous rights beyond ordinary legislation. As a result, Aboriginal title occupies a higher legal plane than most Crown actions. In some ways this mirrors the Roman law of Tribunal sacrosanctitas, which effectively made Tribunes competing sovereigns within the Roman state. This had predictable revolutionary consequences and led to the end of the Republic.

The court softened the blow by delaying the consequences to property holders for 18 months, but delays don’t change the substance of what’s happened. The Crown exceeded its powers. The state acted as if it held absolute authority, and now admits it does not. The Cowichan ruling does not need embellishment to be radical. It states plainly that Indigenous authority over parts of Canada predates the state, outlived every Crown action meant to replace it, and stands beyond the reach of Parliament. The logic of this decision is catastrophic: Canada does not possess sovereignty over all its territory, and applied consistently, one can see no reason why it would possess it over any territory.

Why the Cowichan Decision Is Philosophically Explosive

We have already discussed Bodin at length: sovereignty is the undivided, unbounded power to command. A sovereign who must bow to an older, independent authority—as Canada must bow to Aboriginal title—is not sovereign. The Cowichan decision reveals that Canadian sovereignty is split, and a split sovereignty is no sovereignty at all.

Bodin’s absolutist definition of sovereignty as “unbound by the laws” rests not upon mere assertion but upon reason. Rule of law is not, and cannot, even in principle, be valid. To place law above the agent who exercises it is a contradiction—it is in the very nature of the relationship between sovereign and law that the sovereign be above the law. Robert Filmer illustrates this with a vivid analogy:

It is not the law that is the ‘minister of God’, or that ‘carries the sword’, but the ruler or magistrate. So they that say the law governs the kingdom may as well say that the carpenter’s rule builds the house and not the carpenter, for the law is but the rule or instrument of the ruler.³

This is to say that sovereignty is something essentially personalistic: Filmer insists that power must be vested in a person, a locus of ultimate authority. But Canada’s authority is conditioned by Indigenous rights standing above it. If the Crown cannot command without permission from a pre-existing authority, then the Crown is not the sovereign person. Authority lies with the prior polity whose will constrains the state.

Joseph de Maistre illustrates a further point about sovereign authority which is latent in Bodin’s “unbound by the laws” condition, which is that the sovereign reserves to itself the right of final decision:⁴

Infallibility in the spiritual order of things, and sovereignty in the temporal order, are two words perfectly synonymous. The one and the other denote that high power which rules over all other powers—from which they all derive their authority—which gov­erns, and is not governed—which judges, and is not judged.⁵

This is so by necessity, since an anarchic vacuum where authority is never final is the venue for endless contest, or as he says, “wherever there is no sentence there is combat.”⁶ Sovereignty is the power that renders the final decision, the one authority that “judges, and is not judged.” But Canada’s decisions about land, jurisdiction, and title are not final. They are judged against Indigenous authority. This means that sovereignty—the power to decide—does not lie with the Canadian state.

The decisionist principle extends into the modern era as well. Under Schmitt’s famous definition, “sovereign is he who decides on the exception,”⁷ the sovereign is the power that decides when the normal legal order can be suspended. The ability to suspend rules is a hallmark of sovereignty, an iteration on Bodin’s “unbound” condition.⁸ But Canada fails this test because it cannot suspend Aboriginal title. It can neither extinguish it, limit it unilaterally, override it in emergencies, nor declare an exception to it. If the Crown cannot suspend or supersede Indigenous rights even in a crisis, it does not possess the exception-deciding power.

Extended Analysis Below:

• Schmittian analysis of the Cowichan decision

• Canada as post-sovereign polity

• Identification of the problem as older than liberalism