Legislation and the Rule of Law: An Unnatural and Uneasy Relationship?

Author ORCID Identifier

Allan C. Hutchinson: 0009-0003-8974-2886

Document Type


Publication Date


Source Publication

The Theory and Practice of Legislation, 5:2, 137-148, DOI: 10.1080/20508840.2017.1394539


Rule of law; Legislative bodies; Constitutional legitimacy; Judicial review


A pressing focus for all legal systems is the relationship between the judicial invocation of the Rule of Law and the legislative output of representative institutions. This article primarily centres on the Canadian experience. After the Introduction, I look at some of the grander and more jurisprudential efforts at grounding the Rule of Law as an essential component of legal authority. Next, I look at the work of the Supreme Court in identifying the role of the Rule of Law in constitutional matters. In the fourth section, I consider the most recent decisions of that Court to give substance and meaning to the Rule of Law in responding to legislative over-stepping. In the fifth section, I go back to an older case to illuminate the basic conundrum that lies at the heart of judicial efforts to both animate and limit the operation of the Rule of Law in controlling legislative or administrative decision-making. Throughout, my main ambition will be to examine and evaluate the complex relationship between judges and legislators in advancing the Rule of Law.

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