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Book Review: Nothing To Lose But Our Chains: On Constitutional Disobedience, By Louis Michael Seidman, Carissima Mathen
Book Review: Nothing To Lose But Our Chains: On Constitutional Disobedience, By Louis Michael Seidman, Carissima Mathen
Osgoode Hall Law Journal
Book review of Nothing To Lose But Our Chains: On Constitutional Disobedience, by Louis Michael Seidman.
Democracy And Constitutional Change, Allan Hutchinson, Joel I. Colón-Ríos
Democracy And Constitutional Change, Allan Hutchinson, Joel I. Colón-Ríos
Comparative Research in Law & Political Economy
The relationship between democracy and constitutions is a long and fractitious one. Those who lean towards the constitutionalist side have tended to perceive democracy as a threat to political order and the preservation of important values, whereas those who take a more democratist stance tend to treat constitutions as elite hindrances to popular rule as much as anything else. In this paper, we will give the constitutionalist thesis a broader theoretical and political scrutiny. By way of explanation, we will address and recommend the possibilities and problems for putting into practical operation such an anti-constitutionalist stance, the recent experience of …
Diverse Persuasion(S): From Rhetoric To Representation (And Back Again To Rhetoric) In International Human Rights Interpretation, Craig Scott
Comparative Research in Law & Political Economy
This article proceeds from a way of thinking about legal-rights reasoning that is grounded in the rhetorical tradition. In light of questions of political legitimacy and personal ethics, a central premise of the article is that the rhetorical enterprise must situate itself within a paradigm of dialogic communication in which mutual persuasion is the orientation to argument and the quest for intersubjective validation of claimed premises, lines of argument, and conclusions is the purposive mode. The first step in the article is to move from a general conception of law as a field of rhetoric to an account of how …
Constitutional Accommodation And The Rule(S) Of Courts, Lorne Sossin
Constitutional Accommodation And The Rule(S) Of Courts, Lorne Sossin
Articles & Book Chapters
Constitutional authority for the development and implementation of the rules of court lies with both the legislature, by its statutory power, and the judiciary, by the constitutional principles of judicial independence. The court rules in question here are those that govern court accessibility as well as the roles and responsibilities of parties in civil litigation. The three existing models of rule-making are court-led, where a majority of government officials, and collaborative, which lacks an evident majority of either. These rule-making bodies do not control court fees, the executive does, but in a system with any model, the judiciary always has …
Reconciliation And The Supreme Court: The Opposing Views Of Chief Justices Lamer And Mclachlin, Kent Mcneil
Reconciliation And The Supreme Court: The Opposing Views Of Chief Justices Lamer And Mclachlin, Kent Mcneil
Articles & Book Chapters
The Supreme Court of Canada has said that Aboriginal rights were recognized and affirmed in the Canadian Constitution in 1982 in order to reconcile Aboriginal peoples’ prior occupation of Canada with the Crown’s assertion of sovereignty. However, sharp divisions appeared in the Court in the 1990s over how this reconciliation is to be achieved. Chief Justice Lamer, for the majority, understood reconciliation to involve the balancing of Aboriginal rights with the interests of other Canadians. In some situations, he thought this could justify the infringement of Aboriginal rights to achieve, for example, economic and regional fairness. Justice McLachlin, on the …
Aboriginal Title And The Division Of Powers: Rethinking Federal And Provincial Jurisdiction, Kent Mcneil
Aboriginal Title And The Division Of Powers: Rethinking Federal And Provincial Jurisdiction, Kent Mcneil
Articles & Book Chapters
The recent decision of the Supreme Court of Canada in Delgamuukw v. British Columbia calls for re-examination of a number of significant Aboriginal rights issues. The crucial role of oral histories in Aboriginal rights litigation was emphasized by the Court, and guidelines were laid down for trial judges to admit and give proper weight to that evidence. For the first time the Court addressed the vital issue of the content of Aboriginal title and provided direction on how that title can be proved.The Court also dealt with the constitutional protection accorded to Aboriginal title by s. 35(1) of the Constitution …
Abstract Principle V. Contextual Conceptions Of Harm: A Comment On R. V. Butler, Jamie Cameron
Abstract Principle V. Contextual Conceptions Of Harm: A Comment On R. V. Butler, Jamie Cameron
Articles & Book Chapters
This comment provides a critique of the Supreme Court of Canada's decision in R. v. Butler, which held that section 163(8) of the Criminal Code, defining obscenity, is a reasonable limit on freedom of expression under section 1 of the Canadian Charter of Rights and Freedoms. Before discussing the Charter, the Court expanded the scope of section 163(8) to include a prohibition against sexually explicit material that is degrading or dehumanizing. Initially, the author is critical of the Court's methodology, which enlarged section 163(8) at the expense of expressive freedom, without even mentioning the Charter. Once the Court had interpreted …
The Constitution Act, 1982, Sections 25 And 35, Kent Mcneil
The Constitution Act, 1982, Sections 25 And 35, Kent Mcneil
Articles & Book Chapters
The Constitution Act, 1982, proclaimed in force as of April 17,1982, supplements the other Acts and Orders which already made up the Constitution of Canada. It does not detract from any of the rights of the aboriginal peoples of Canada guaranteed by earlier constitutional instruments. Section 91(24) of the 1867 Constitution Act, the Rupert's Land Order, and the Natural Resources Transfer Agreements, which have been discussed earlier this week, all continue to apply. In fact, they are specifically included in the new Act's definition of the Constitution of Canada. However, the 1982 Constitution Act goes further than previous constitutional instruments …