The Rule of Law, Justice, and InterpretationMcGill-Queen's Press - MQUP, 1997 - 337 pages Tremblay's theory of the rule of law involves a set of practical principles that constitute the ideal type of a conception of law that is both constitutive and regulative of legal discourse and practice. Tremblay examines two competing ideal types, the "rule of law as certainty" and the "rule of law as justice." The former, a standard doctrine within contemporary legal, social, and political theory, is shown to be incoherent. Thus the "rule of law as justice," he shows, provides the best basis for understanding legal discourse in general and Canadian constitutional law in particular. Tremblay offers a coherent reconstruction of Canadian law from fundamental principles of the rule of law as justice and tests the theory through applications to key judicial decisions that have proven resistant to positivist interpretation. The Rule of Law, Justice, and Interpretation is both a stimulating work of contemporary legal theory and an innovative challenge to the traditions of Canadian constitutional law. Tremblay examines fundamental issues of legal epistemology and ontology and brings rigorous analytical jurisprudence to bear on interpretations and applications specific to Canadian constitutional law. Given the important implications of his theory for statutory and constitutional interpretation, especially with respect to the Canadian Charter of Rights and Freedoms and the potential crisis involving provincial rights of secession and partition, this book will be central to the practice of law in Canada. |
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accepted accompanying text accordance act of Parliament adjudication amendment antecedent rules apply argued basic Bill of Rights Canada Canadian Bill Canadian constitutional law Chapter coherent common law conceived conception of law consequences Constitution Act Constitution of Canada constitutive principles democratic principle determine Dicey doctrine of parliamentary droit Drybones Dworkin enacted example formal validity hermeneutical Hogg Ibid idealtype implies inconsistent intention of Parliament internal interpretation judges judicial decisions justified law as certainty law as justice law as positive Law Review legal order legal positivism legal reasoning Legal Theory legislature liberal logically manner and form meaning ment moral orthodox constitutional theory Parlia parliamentary sovereignty particular point of view political positive rules postulates practice principle of legality privative clause propositions purpose recognized repeal rights and freedoms Roncarelli rule of law sense sovereignty of Parliament statute statutory substantive supra Supreme Court theorists tion ultimate uphold