Complexifying Roncarelli’s Rule of Law
McGill University - Faculty of Law
November 30, 2009
McGill Law Journal, Vol. 55, pp. 721-41, 2010
On its 50th anniversary, this paper argues for revising the accepted reading of Roncarelli v. Duplessis. Accounts by which Rand J. defended the rule of law while the dissenters were indifferent to it mischaracterize the judgment. Rand J.'s judgment is bolder and less explicit than is typically supposed: his treatment of the notice requirement constitutes part of his defence of the rule of law. Fauteux J.'s dissent enacts a plausible understanding of the judge's role within the rule of law. Disagreement on the overlooked procedural issue is best viewed as fully internal to the rule of law. The judgment's relevance for rule-of-law scholars is its exemplification of the possibility for rule-of-law impulses to conflict, making it a much richer and more interesting text. Scholars' dismissiveness towards the procedural issue reveals an unsatisfactory view on the part of legal scholars, one by which judges simply apply the rule of law, rather than being also themselves constrained by it. Their failure to recognize Rand J.’s treatment of the procedural rule as a key part of his performance suggests the need for rule-of-law scholars - reading as both philosophers and lawyers - to include the technicalities within the judicial conduct of interest to them.
Number of Pages in PDF File: 21
Keywords: rule of law, Roncarelli v. Duplessis, administrative law, constitutional law, legal scholarship, Dyzenhaus
JEL Classification: K10, K40, K41, K42, K49
Date posted: July 31, 2009 ; Last revised: April 22, 2011
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