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Legal Philosophy

Constitutional Law

Schulich School of Law, Dalhousie University

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Ivan Rand's Ancient Constitutionalism, Jonathon Penney Jan 2010

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

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Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …