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UBC Theses and Dissertations
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".
Item Metadata
Title |
Moral, claims and charter meaning : critical considerations on the primary values of Canadian constitutionalism
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Creator | |
Publisher |
University of British Columbia
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Date Issued |
2004
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Description |
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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Extent |
24761469 bytes
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Genre | |
Type | |
File Format |
application/pdf
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Language |
eng
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Date Available |
2009-12-02
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Provider |
Vancouver : University of British Columbia Library
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Rights |
For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use.
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DOI |
10.14288/1.0091831
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URI | |
Degree | |
Program | |
Affiliation | |
Degree Grantor |
University of British Columbia
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Graduation Date |
2004-11
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Campus | |
Scholarly Level |
Graduate
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Aggregated Source Repository |
DSpace
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Item Media
Item Citations and Data
Rights
For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use.