The Unwritten Constitution and the Rule of Law

in Grant Huscroft and I. Brodie, eds., Constitutionalism in the Charter Era, (Canada: LexisNexis, 2004) 383-412

34 Pages Posted: 23 May 2013

See all articles by David Dyzenhaus

David Dyzenhaus

University of Toronto - Faculty of Law/Department of Philosophy

Date Written: 2004

Abstract

The argument of this paper is that debate about the legitimacy of judicial resort to unwritten constitutional values cannot be resolved by requiring judges to anchor their resort in values that are stated in the constitutional text. For opposition to judicial resort to such values is most fundamentally opposition to judicial authority to invalidate statutes on a value basis, whether written or unwritten. In fact, the dispute here is between the common law tradition and legal positivism, with the latter assuming a guise of a democratic positivism that marginalizes judges. The paper uses the theoretical writings of Justice Scalia as the main foil for its argument that judges who adopt this guise fail in their duty to uphold the rule of law.

Keywords: Constitutional interpretation, common law, judicial independence, deference

Suggested Citation

Dyzenhaus, David, The Unwritten Constitution and the Rule of Law (2004). in Grant Huscroft and I. Brodie, eds., Constitutionalism in the Charter Era, (Canada: LexisNexis, 2004) 383-412. Available at SSRN: https://ssrn.com/abstract=2268768

David Dyzenhaus (Contact Author)

University of Toronto - Faculty of Law/Department of Philosophy ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-6935 (Phone)
416-978-2648 (Fax)

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