ALBERT A LAW REVIEW (2005) 42:4 4. Is the opposite sex requirement for marriage for civil purposes, as i:stablishc:d by the common law and set out for Quebec in section 5 of the Federal I.aw-Civil l.ai1• llarmont:ation Act. No. I, consistent with the Canadian Charter of Rights and Freedoms? lfnot, in what panicular or paniculars and to what extent?~ The proposed legislation-which then Justice Minister Martin Cauchon released on 17 July 2003-reads as follows: WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a ri:sponsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians; WHEREAS, in order to reflect the values of tolerance, respect nnd equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended to couples of the same sex; AND WHEREAS evetyone has the freedom of conscience and religion under the Canadian Charter of Rights and Freedoms and officials of religious groups are free to refuse lo perform marriages that arc not in accordance with their religious belief's; NOW, Tl IE RE FORE, lier Majesty, by and with the advice and corm:nt ofthe Senate and !louse of Commons of Canada, enacts as follows: I. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others. 2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that arc not in accordance with their religious beliefs. 6 This proposal was drafted, the questions framed and the entire bundle forwarded to the Court, as the federal executive's response, in lieu of appeal, to the Ontario Court of Appeal's ukase in Halpern v. Canada (A.G.),7 which directed that thereafter and immediately 8 marriage at law must be "refonnulate[d] ... as 'the voluntary union for life of two persons to the exclusion of all others. "' 9
In this article, the author criticizes the current procedures used to appoint Canadian judges to provincial superior courts and to the federal court. The author begins with an examination of political corruption, which in his view depends upon the concept of the Rule of Law. The author proceeds with a detailed analysis of that concept, and concludes that current judicial selection procedures corrupt public authority and judicial office because they violate the institutional, moral, and ethical requirements of the Rule of Law. The author then reflects upon the wider social implications of such corruption.
For he is called rex not from reigning but from ruling well, since he is a king as long as he rules well but a tyrant when he oppresses by violent domination the people entrusted to his care. Let him, therefore, temper his power by law, which is the bridle of power, that he may live according to the laws .... Henry de Bracton Bracton de /egibus et consuetudinibus Ang/iae (c. 1230) I. INTRODUCTION Until recently, wha~ might be termed 'rule formalism' was the prevailing interpretation of the rule of law. According to this view, the rule of law is rule by and through rules; and its minimalist normative content resides exclusively in the formal characteristics of rules as such, which is to say, their generality, clarity, prior declaration and prospective application, stability, and so on. 1 The rule formalist view reached its apotheosis, in my view, with Joseph Raz's widely influential article "The Rule of Law and Its Virtue" which appeared in 1977. 2 There Raz declared the rule of law to be politically migratory: A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened western democracies. 3 Professor of Law, University of Alberta. Lon Fuller's remains the best account of these virtues. See L.L. Fuller, The Morality of law, rev. ed. (New Haven: Yale University Press, 1969) c. 2. According to Fuller. law as such requires certain procedural practices and commitments associated with rule governance, and these procedural requirements together constitute a morality of rule governance which we tenn the rule of law. J. Raz, "The Rule of Law and Its Virtue" (1977), 93 L.Q. Rev. 195. This piece also appears as chapter 11 of his The Authority of law: Essays on law and Morality (Oxford: Clarendon Press, 1979) 210. In his more recent work, Raz offers a much more nuanced view of the matter. See ''The Politics of the Rule of Law" in J. Raz, Ethics in the Public Domain: Essays in the Morality of law and Politics (Oxford: Clarendon Press, 1994) 354. About which, see infra note 145 and accompanying text. "The Rule of Law and Its Virtue," ibid. at 196. REDEEMING THE RULE OF LAW 1005 And he went on to attenuate the relationship between the rule of law and arbitrary power which, traditionally;' was considered the grist of the matter: Arbitrary power is broader than the rule of law. Many forms of arbitrary rule are compatible with the rule of law. A ruler can promote general rules based upon whim or self-interest, etc .. without offending against the rule of law. 5 These views, of course, fairly incapacitate the rule of law as a measure of the legitimacy of government. Nor only that. They make the rule of law a particularly unsuitable idiom for the expression of our political and legal commitments, and, to the extent that we have accorded that vocabulary pride of place in our political and legal imaginations, re...
This article traces the origins of present legal theories and appraises their moral and ethical significance for legal education, scholarship and practice. The author begins by exploring how three related moments in law's intellectual past
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