Graham Hudson

Date of Award

10-2012

Document Type

Thesis

Degree Name

Doctor of Philosophy (PhD)

Keywords

Civil rights; International law and human rights; Judicial process; National security--Law and legislation; Canada. Canadian Charter of Rights and Freedoms; Canada

First Advisor

Harry W. Arthurs

Abstract

In this dissertation, the author explores the jurisprudential foundations of the “relevant and persuasive” doctrine, which authorizes Canadian judges to rely on international and comparative human rights when interpreting the Charter of Rights and Freedoms. Viewed in its best light, this doctrine improves respect for human rights in two distinct ways: securing Canada’s compliance with its international human rights obligations and enhancing the responsiveness of state law to the global and multicultural context of Canadian society. However, actual jurisprudence suggests that the doctrine has helped undermine principles of respect for constitutional supremacy and respect for international law, in part because it does not contain clear, objective criteria governing what counts as a relevant and persuasive norm. In the absence of such criteria, “result-oriented” judges are free to instrumentally pick norms that help rationalize decisions made entirely on the basis of political and ideological factors. Some would go so far as to argue that the doctrine enables judges to use the rhetoric of human rights to constitutionally entrench relations of domination; there is some empirical evidence to support this claim.

Given the increasingly global context of contemporary judicial decision-making, it is surprising that judges have not yet offered a convincing justification for the relevant and persuasive doctrine. This dissertation attempts to offer such a justification. Weaving together a wide range of legal and moral philosophy, argumentation theory and international law/international relations theory, the author hypothesizes that judicial decisions about the relevance and persuasiveness of international and comparative human rights follow the contours of rhetorical and dialogical processes distinctive to law. With a view to testing this hypothesis, he develops analytical frameworks that help observers rationally identify, construct and evaluate “persuasive” international and comparative human rights arguments. Using the court-led reconstitution of the Canadian security certificate regime as a case study, he then attempts to demonstrate how the relevant and persuasive doctrine operates, how it coheres with principles of respect for constitutional supremacy and international law, and how it can improve respect for human rights among a wide range of globally-situated discursive communities.

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