LA FONCTION PARADOXALE DE LA MORALE ET DE L'ETHIQUE DANS LE DISCOURS JUDICIAIRE

Abstract

The judicial discourse has to take morals and ethics into consideration, particularly in the framework of judicial review under the Canadian Charter of Rights and Freedoms. However, judges adopt a minimalist approach according to which they decide cases without determining the more fundamental philosophical or ethical questions. This method of avoidance or reduction of complexity leads to judicial decisions that remain, from the perspective of philosophical ethics, incompletely theorized. The first part of the paper presents the theories explaining the distinction between the legal and the ethical discourses, along with the minimalist approach endorsed by the judiciary power. Then, some Supreme Court of Canada’s decisions relative to the Charter are analysed and presented as examples of minimalist and incompletely theorized decisions.