Dworkin's Shadow: Equality Rights and the Supreme Court of Canada's Loss of Dignity

25 Pages Posted: 10 Jun 2011

See all articles by Bradley W. Miller

Bradley W. Miller

University of Western Ontario - Faculty of Law; James Madison Program in American Ideals and Institutions, Princeton University

Date Written: June 3, 2011

Abstract

Ronald Dworkin’s theory of equality has exerted a strong gravitational force over Canadian equality rights doctrine for more than two decades. And although Dworkin is never cited in the Supreme Court of Canada’s equality rights cases, his shadow is plainly visible in the reception of the right to ‘equal concern and respect’ in Andrews (1989), and the ‘right to moral independence’ in Law v. Canada (1999).

Although this paper assesses the extent to which Dworkin’s theory of equality has been received in Canadian law, it also engages in debates between Dworkin and his critics that developed as Dworkin defended and modified his theory of rights and equality over the years. The debates between Dworkin and his critics are invaluable for interpreting Canadian constitutional jurisprudence, I will argue, because the Supreme Court does not always adequately justify the conceptions of equality, dignity, etc. that it incorporates into constitutional law. Indeed, it is not always evident that the Court is aware that it is choosing among alternative conceptions, rather than straightforwardly interpreting a determinate constitutional text. The payoff from a parallel study of Dworkin and the equality rights doctrine of the Supreme Court is the identification of resources from the academic debate that can be commended for the development of a more sound and stable constitutional doctrine.

Keywords: Dworkin, equality, dignity, Andrews, Charter of Rights

JEL Classification: K10

Suggested Citation

Miller, Bradley W., Dworkin's Shadow: Equality Rights and the Supreme Court of Canada's Loss of Dignity (June 3, 2011). Available at SSRN: https://ssrn.com/abstract=1857566 or http://dx.doi.org/10.2139/ssrn.1857566

Bradley W. Miller (Contact Author)

University of Western Ontario - Faculty of Law ( email )

London, Ontario N6A 3K7 N6A 3K7
Canada
519.661.2111 (80038) (Phone)
519.661.3790 (Fax)

James Madison Program in American Ideals and Institutions, Princeton University ( email )

Bobst Hall
83 Prospect Avenue
Princeton, NJ 08540
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
253
Abstract Views
1,206
rank
136,647
PlumX Metrics