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Please use this identifier to cite or link to this item: http://hdl.handle.net/1807/17275

Title: Public Reason and Canadian Constitutional Law
Authors: Thomas, Bryan
Advisor: Moreau, Sophia
Department: Law
Keywords: Public Reason
Canadian Charter of Rights and Freedoms
Liberalism
Separation of Church and State
Constitutional Law
Rawls
Issue Date: 26-Feb-2009
Abstract: Liberals claim that the exercise of state power must be justified on terms that all citizens can reasonably accept. They also support democracy. The challenge is to bring these two desideratum in line-- to ensure that democratic deliberations are somehow predicated on claims that all citizens can reasonably accept. Put differently, the challenge is to set the terms of public reason. Liberal philosophers advance grand theories of political justice towards this end. They claim that a reasonable argument in the political sphere is one that conforms to theory x. The difficulty is that there will be those who reasonably reject theory x, preferring theory y or z, or eschewing theory altogether. Pessimism at the prospect of agreement on higher-order theories of justice leads some to advocate simple majority rule. The thesis argues that convergence on higher order theory is not essential to public reason. The Supreme Court of Canada’s method of adjudication under the Canadian Charter of Rights and Freedoms is used as a model. Where basic rights are engaged, or are alleged to be engaged, the Court examines the reasonableness of law and policy using a series of open-ended tests. These tests discipline their deliberations by focusing attention on generally accepted facts and values (notably, the values expressed by the Charter). The thesis contends that the Court’s open-ended, contextual approach can serve as a model for broader public reasoning. The thesis then explores the role of religious arguments within this model. In a polity committed above all to Charter values, what is the place of religion in the justification of law? It is argued that religion is understood to be private and inscrutable under the Charter. This is what justifies the Court’s generous reading of the right to religious freedom. It also justifies our forbidding state coercion in the name of religion. With the preceding ideas in mind, the thesis examines Canadian law and public discourse on the issues of therapeutic cloning (ch.4) and same sex marriage (ch.5).
URI: http://hdl.handle.net/1807/17275
Appears in Collections:Doctoral
Faculty of Law - Doctoral theses

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