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http://ssrn.com/abstract=1494785
 
 

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Democratizing Common Law Constitutionalism


Evan Fox-Decent


McGill University - Faculty of Law

October 29, 2009

McGill Law Journal, Vol. 55, 2010

Abstract:     
Common law constitutionalism is the theory that legal principles such as fairness and equality reside within the common law, are constitutive of legality, and inform (or should inform) statutory interpretation on judicial review. This article looks to Rand J’s judgment in Roncarelli v. Duplessis to develop a democratic and relational conception of common law constitutionalism. By “democratic” I mean a version of the theory that governs judicial review but which is available to front-line decision-makers independently of the history and contemporary practice of review. By “relational” I mean a theory that presupposes the existence of a trust-like and legally significant relationship between public authorities and the persons subject to their power.

Under the democratic and relational theory, the legality of administrative action is assessed in light of legal principles constitutive of the trust-like relationship and without reference to the separation of powers. These principles flow from the trust-like nature of the relationship and the implications of working out how public authorities can hold discretionary power over individuals without subjecting them to domination or instrumentalization.

Number of Pages in PDF File: 33

Keywords: common law constitutionalism, public law, rule of law, judicial review, democracy, fiduciary, trust-like, Roncarelli, Rand, common law constitution

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Date posted: October 27, 2009 ; Last revised: February 21, 2010

Suggested Citation

Fox-Decent, Evan, Democratizing Common Law Constitutionalism (October 29, 2009). McGill Law Journal, Vol. 55, 2010. Available at SSRN: http://ssrn.com/abstract=1494785

Contact Information

Evan Fox-Decent (Contact Author)
McGill University - Faculty of Law ( email )
3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
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