A Disenchanted Charter? The Common Law Tradition and the Charter of Rights and Freedoms.

Abstract

The statutory entrenchment of the Canadian Charter of Rights and Freedoms marks a break with the common law practice of protecting civil liberties by means of socio-legal convention. This article argues that such a break with common law practice can be justified at a theoretical level through reference to Max Weber's liberal rationalist account of the effects of modernization on law and society and, at a practical level, points out parallels between Weber's position on modern law, the pre-entrenchment doctrine of the Supreme Court and Pierre Trudeau's advocacy of the Charter. However, the article argues that a Weberian account of modernity and law is based upon too narrow a conception of rationality to allow it to deal with the normative questions that are raised by the substantively democratic claims made by the Charter and with which the courts will have to deal in making judgements in Charter cases. The article concludes that in order for court interpretation to take the substantive sections of the Charter into account in a meaningful fashion, it will be forced to abandon what, until the entrenchment of the Charter, was a narrow, positivist interpretation of rights and democracy; and that this can be accomplished by means of a reconstruction of the democratic ethos that is nascent within the common law tradition but remains as yet undeveloped in a clear fashion.