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Moral, claims and charter meaning : critical considerations on the primary values of Canadian constitutionalism Soroski, John

Abstract

Since its passage, the Canadian Charter of Rights and Freedoms has been the subject of contention. At issue have been claims about the Charter's legitimacy, its larger character and purposes, and the meaning of its rights guarantees in the legal context. The first part of this work offers a critical consideration of the Charter claims associated with three of the most influential schools of constitutional thought in the Canadian context — the "primary values" of positivism, democracy, and community — whose advocates question the value and desireability of the Charter or suggest that its rights guarantees are best understood in constrained terms. The second part of the work suggests the merit of an alternative premise by which to assess the legitimacy and define the meaning of the Charter. The constitutional ideal of "moral agency" suggests that constitutional subjects should be understood as moral beings, and that legitimate constitutional order ought recognize this by providing means to ensure that ongoing obligations imposed by the order are capable of binding persons in their moral capacity. Rights in the strong sense are an important contribution to this end, and the Charter can be understood in this character therefore as a valuable addition to the Canadian constitutional order. At least two sources suggest the authority of the values associated with the ideal of moral agency. The meta-legitimative premises of the primary values themselves imply a recognition of constitutional subjects as moral agents, although the forms of political order their advocates endorse tend to under-realize this value. And an examination of the political practice and philosophy of Pierre Trudeau suggests that the Charter's prime mover endorsed a theory of constitutional value premised on ideas much akin to those suggested by moral agency. The central role Trudeau played in bringing the Charter into being suggests that a reading of the document as an expression of the values of moral agency is a viable one. The relevance and resonance of Trudeau's constitutional vision in the Canadian context suggests that the ideal of moral agency might be thought to represent a new Canadian "primary value".

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