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Rule of Law, Justice, and Interpretation

Rule of Law, Justice, and Interpretation

Copyright Date: 1997
Pages: 360
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  • Book Info
    Rule of Law, Justice, and Interpretation
    Book Description:

    Tremblay's theory of the rule of law involves a set of practical principles that constitute the ideal type of a conception of law that is both constitutive and regulative of legal discourse and practice. Tremblay examines two competing ideal types, the "rule of law as certainty" and the "rule of law as justice." The former, a standard doctrine within contemporary legal, social, and political theory, is shown to be incoherent. Thus the "rule of law as justice," he shows, provides the best basis for understanding legal discourse in general and Canadian constitutional law in particular. Tremblay offers a coherent reconstruction of Canadian law from fundamental principles of the rule of law as justice and tests the theory through applications to key judicial decisions that have proven resistant to positivist interpretation.

    eISBN: 978-0-7735-6691-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Cases
    (pp. vii-xii)
  4. Statutes
    (pp. xiii-xvi)
  5. Preface
    (pp. xvii-2)
  6. Introduction
    (pp. 3-12)

    My main purpose in this book is to develop a coherent conception of the “rule of law” and my secondary one is to show how this conception bears upon Canadian constitutional law. Since its most basic propositions are supported by general philosophical and theoretical arguments, it may be relevant to most, if not all, Western legal systems, especially in those countries that share with Canada a British legal heritage. I maintain that the concept of the rule of law, correctly understood, constitutes the most basic norm of the legal order and the legal foundation of all other norms and that...


    • CHAPTER ONE The Basic Postulates
      (pp. 15-21)

      This chapter clarifies some of the most significant postulates of orthodox constitutional theory in Canada.¹ Because Canadian lawyers, judges, constitutional law professors, and other scholars do not, in general, express and rigorously state their own theoretical framework, my analysis does not describe a set of empirical facts that are present in legal materials. It must be seen, at most, as a reconstruction of theoretical assumptions.

      My claim is that these postulates come within a version of legal positivism. Accordingly, they do not represent the underlying epistemological and doctrinal assumptions that have guided the works of all eminent constitutional law scholars...

    • CHAPTER TWO The Rule of Law
      (pp. 22-56)

      By 1982 the rule of law was probably the most obscure and ambiguous Canadian constitutional doctrine. It is significant that the important and influential first two editions of Hogg’s textbook, published in 1977 and 1985,¹ devoted no separate section to the rule of law and that the concept was not even mentioned in the notably detailed index.² Yet orthodox constitutional theory was generally committed to various doctrines of the rule of law. Most of them were expressly formulated in the majority of constitutional law textbooks. I shall refer to them as the explicit versions of the doctrine of the rule...

    • CHAPTER THREE The Sovereignty of Parliament
      (pp. 57-134)

      There are two versions of the doctrine of parliamentary sovereignty within orthodox constitutional theory: an explicit and an implicit version. In this chapter, I argue that both versions are inadequate and must be deeply amended. The explicit version corresponds to the doctrine as expressly formulated in Canadian constitutional law textbooks. Being a specific application of the formal validity thesis, this version has a dubious practical character: because it ignores the whole issue of interpretation, it cannot give a coherent and correct account of the relationship between the courts and Parliament. The implicit version, as I shall describe it, represents the...

    (pp. 135-136)

    In Part One we concluded that orthodox constitutional theory failed to make sense of various important features of the legal practice. Its basic postulates, notably those associated with the formal validity thesis, suggested, first, that for judges the rule of law implicitly means the rule of law as positive rules. Unfortunately, that conception is internally incoherent: it contradicts the very concept of the rule of law. Secondly, the postulates suggested that the rule of the sovereignty of Parliament is a mere matter of determining the validity of parliamentary legislation. Yet we saw that such a rule cannot be complied with...

  9. Conclusion
    (pp. 233-236)

    In this book, I have rejected some of the basic postulates of orthodox constitutional theory. I have argued that the rule of law is the most basic concept of Canadian constitutional law and, correctly interpreted, corresponds to one version of the rule of law as idealtype, namely, the rule of law as justice. That should contribute to constitutional scholarship at both theoretical and practical levels. At a theoretical level, the book makes two claims. First, and perhaps most important, it offers a basic theory of the rule of law which may rescue the integrity of the concept. Because the “law,”...

  10. Notes
    (pp. 237-310)
  11. Bibliography
    (pp. 311-330)
  12. Index
    (pp. 331-337)