Please use this identifier to cite or link to this item:
http://hdl.handle.net/11375/20701
Full metadata record
DC Field | Value | Language |
---|---|---|
dc.contributor.advisor | Waluchow, Wilfrid | - |
dc.contributor.author | O'Brien, Margaret | - |
dc.date.accessioned | 2016-10-18T20:25:51Z | - |
dc.date.available | 2016-10-18T20:25:51Z | - |
dc.date.issued | 2016 | - |
dc.identifier.uri | http://hdl.handle.net/11375/20701 | - |
dc.description.abstract | This dissertation participates in the ongoing debate around whether judicial review is justified and sets out to present a novel defence of it and to reconcile it with our democratic commitments. I argue that judges are the cornerstones of our legal system, and that their ability to review legislation is fundamental to a healthy political system. Yet some people have argued that their doing so is undemocratic. I set out to develop an improved theory of judicial review and to answer its opponents. A central aspect of my work focuses on the role of communities as moral agents. Previous defenses of judicial review have failed to fully appreciate the importance of group agency. I contend that communities are moral agents and that charters and the judicial review of legislation are democratic because they attempt to hold communities to their own most deeply held moral beliefs. Understanding communities as moral agents provides the basis for a strengthened theory of judicial review. Nations have a moral centre whose principles they sometimes infringe. A charter reminds the nations of what it really is as a moral agent and reminds the citizens of who they are and of what they owe their fellows. The judiciary calls foul when they do not play by the rules. With this shift in perspective we can understand judges in charter cases as trying to assess what the community is committed to through its constitution, its charter and its laws. To illustrate my defense of judicial review I analyze the status of physician-assisted suicide (PAS) in Canadian law. I explain and demonstrate the constitutional justification of the shift from the 1993 Rodriguez decision concerning the criminal ban on PAS to the Supreme Court of Canada’s decision in Carter that found that ban to be unconstitutional. | en_US |
dc.language.iso | en | en_US |
dc.title | Charter Review and a Community's Constitutional Morality | en_US |
dc.type | Thesis | en_US |
dc.contributor.department | Philosophy | en_US |
dc.description.degreetype | Dissertation | en_US |
dc.description.degree | Doctor of Philosophy (PhD) | en_US |
dc.description.layabstract | This dissertation participates in the ongoing debate around whether or not judicial review is democratic. Judicial review is the process by which judges review legislation for consistency with a nation’s constitution or bill of rights. Some opponents have argued that such a process is undemocratic because it replaces the will of the people, as expressed through their elected representatives, with the will of a few judges. In my dissertation I develop an improved theory of judicial review that is able to respond to this argument. A central aspect of my work focuses on the role of communities as moral agents. I argue I that communities are moral agents, and that charters and the judicial review of legislation are democratic because they attempt to hold communities to their own most deeply held moral beliefs. To illustrate my defense of judicial review I analyze the status of physician-assisted suicide in Canadian law. | en_US |
Appears in Collections: | Open Access Dissertations and Theses |
Files in This Item:
File | Description | Size | Format | |
---|---|---|---|---|
Margaret O'Brien PhD Thesis.pdf | 945.24 kB | Adobe PDF | View/Open |
Items in MacSphere are protected by copyright, with all rights reserved, unless otherwise indicated.