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Full-Text Articles in Law
Constitutional Arguments: Interpretation And Legitimacy In Canadian Constitutional Thought, Joel C. Bakan
Constitutional Arguments: Interpretation And Legitimacy In Canadian Constitutional Thought, Joel C. Bakan
Osgoode Hall Law Journal
The author provides an analysis and critique of the various types of arguments advanced by Canadian constitutional jurists to establish formal grounds for the legitimacy of judicial review under the Canadian constitution. He demonstrates how two variables - constitutional truth and trust in the judiciary - are relied upon in past and contemporary debates about constitutional adjudication to construct four different types of argument about the legitimacy of judicial review. Each of these types of argument is then criticized in the context of recent Charter decisions. It is argued that none of them can sustain the burden of legitimating judicial …
Diagnostic Adjudication In Appellate Courts: The Supreme Court Of Canada And The Charter Of Rights, Carl Baar, Ellen Baar
Diagnostic Adjudication In Appellate Courts: The Supreme Court Of Canada And The Charter Of Rights, Carl Baar, Ellen Baar
Osgoode Hall Law Journal
Three distinct adjudicatory processes are found in appellate courts: decisional adjudication (applying principles), procedural adjudication (choosing among principles), and diagnostic adjudication (defining and developing principles). The Supreme Court of Canada has traditionally used procedural adjudication, in which the adversary process frames issues and generates supporting material. However, the Court's decreased caseload, its increased discretion to select cases, and the arrival of a new wave of issues under the Charter of Rights has shifted the Court's work to diagnostic adjudication. As judgment becomes less a choice problem and more a creative exercise, both the degree and kind of judicial involvement changes. …
Are Constitutional Cases Political?, Brian Slattery
Are Constitutional Cases Political?, Brian Slattery
Articles & Book Chapters
To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that …