Abstract

http://ssrn.com/abstract=1496884
 


 



Language and Judgment’s Reach: Reflecting on Limits on Rights


Robert Leckey


McGill University - Faculty of Law

October 30, 2009

University of Toronto Law Journal, Vol. 60, pp. 1031-44, 2010

Abstract:     
This is a review essay on The Limitation of Charter Rights: Critical Essays on R. v. Oakes (Luc Tremblay and Grégoire Webber eds., 2009), a collection celebrating the 20th anniversary of the Supreme Court of Canada's leading judgment on proportionality and limits on rights guaranteed by the Canadian Charter of Rights and Freedoms. The essay reflects on language in Canadian constitutional law, both the importance of the words used in talk about rights and the challenges of bilingualism. Sustaining scholarly reflection and dialogue in English and French, based on the equally authentic English and French versions of constitutional sources, remains difficult. The essay also reflects on the disjuncture between the legislative judgment in Oakes - the Court set out, prospectively, a test of general application for constitutional proportionality analysis - and the traditional conception of the judge's role in the common law tradition. Fidelity to that tradition would have inclined the judges, more modestly, to allow rules to emerge from the resolution of concrete disputes over time. Peculiarly, the question as to how judges, formed in the common law tradition, might interpret and apply a written constitution seems not to figure among the concerns of those who declare themselves the standard bearers of the so-called common law constitution.

Number of Pages in PDF File: 14

Keywords: proportionality, Oakes, Canadian Charter, judgment, language, common law method

JEL Classification: K3, K39

Accepted Paper Series


Download This Paper

Date posted: November 1, 2009 ; Last revised: November 12, 2010

Suggested Citation

Leckey, Robert, Language and Judgment’s Reach: Reflecting on Limits on Rights (October 30, 2009). University of Toronto Law Journal, Vol. 60, pp. 1031-44, 2010. Available at SSRN: http://ssrn.com/abstract=1496884

Contact Information

Robert Leckey (Contact Author)
McGill University - Faculty of Law ( email )
3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514-398-4148 (Phone)
514-398-4659 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 609
Downloads: 104
Download Rank: 147,135

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.437 seconds