LA PRIMAUTE DU DROIT ET LES EFFETS D'UNE LOI INCONSTITUTIONNELLE

Authors

  • FABIEN GELINAS

Abstract

This article, given the recent growth in the "supralegislative" norms in Canada, considers the judicial control of the constitutionality of laws. On the basis of a short analysis of the nature of that control, the author attempts to discern the effect of a judicial declaration that a law is unconstitutional. In the light of his conclusions in which he sets out limits of constitutional control, he notes the wide range of effects ultimately produced by unconstitutional laws, and illustrates the way in which judges are sometimes led to accord them limited effect, in order to assure social stability. To achieve this end, judges use certain techniques whose basis, according to the author, is found in a broad meaning of the principle of the rule of law, now recognized by the Supreme Court of Canada. It is suggested, however, in light of such an imprecise principle, that the gap that exists between the abstract statement of the rule of law and its application in practice takes on such an importance that it becomes difficult to sustain a "positivist" view of Canadian constitutional law.

Keywords:

Constitutional Law

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Published

1988-09-01

Issue

Section

Legal Commentary

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