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Complexifying Roncarelli’s Rule of Law

21 Pages Posted: 31 Jul 2009 Last revised: 22 Apr 2011

Robert Leckey

McGill University - Faculty of Law

Date Written: November 30, 2009

Abstract

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.

Keywords: rule of law, Roncarelli v. Duplessis, administrative law, constitutional law, legal scholarship, Dyzenhaus

JEL Classification: K10, K40, K41, K42, K49

Suggested Citation

Leckey, Robert, Complexifying Roncarelli’s Rule of Law (November 30, 2009). McGill Law Journal, Vol. 55, pp. 721-41, 2010. Available at SSRN: https://ssrn.com/abstract=1440391

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)

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