Romance, Realism, and the Legitimacy of Implied Rights

University of Queensland Law Journal, Vol. 30, 2011

20 Pages Posted: 1 Oct 2011 Last revised: 16 Oct 2011

See all articles by Grant Huscroft

Grant Huscroft

University of Western Ontario - Faculty of Law

Date Written: October 1, 2011

Abstract

Proponents of implied rights insist that rights do not depend on the existence of a bill of rights. A bill of rights, they argue, simply codifies rights that are otherwise immanent in the constitution. Thus, rights may turn out to be constitutionally protected whether or not they were included in a bill of rights such as the Canadian Charter of Rights and Freedoms – more radically, even if the decision was made not to have a bill of rights at all, as in Australia.

It is illegitimate for the judiciary to conclude that either the Canadian or the Australian Constitution implies rights, however – no matter how desirable a particular implication may appear in a given context – because both the decision to adopt a particular bill of rights and the decision to adopt no bill of rights at all are political settlements that courts must respect. It is no part of the judiciary’s role to change the constitution it is charged with upholding.

The author discusses Canada's experience with implied rights litigation both prior to and since adoption of the Canadian Charter of Rights and Freedoms, along with recent attempts to invoke the rule of law principle to invalidate legislation.

This paper is part of a special issue of the University of Queensland Law Journal marking the 20th anniversary of the Implied Rights decisions of the High Court of Australia.

Keywords: Constitutional Rights, Implied Rights, Unwritten Rights, Underlying Constitutional Principles, Rule of Law, Canadian Charter of Rights, Australian Constitution

JEL Classification: K10, K19, K30

Suggested Citation

Huscroft, Grant, Romance, Realism, and the Legitimacy of Implied Rights (October 1, 2011). University of Queensland Law Journal, Vol. 30, 2011, Available at SSRN: https://ssrn.com/abstract=1935613

Grant Huscroft (Contact Author)

University of Western Ontario - Faculty of Law ( email )

London, Ontario N6A 3K7 N6A 3K7
Canada
519-661-2111 ext 88375 (Phone)
519-661-3790 (Fax)

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