oaioai:digitalcommons.osgoode.yorku.ca:ohlj-1824

Ventriloquism and the Verbal Icon: A Comment on Professor Hogg\u27s The Charter and American Theories of Interpretation

Abstract

In this brief comment I offer some critical reflections on Professor Hogg\u27s proposed approach to Charter interpretation. I suggest that Professor Hogg\u27s attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that interpretivism is explanatorily inadequate, yet on the other he refuses to accept non-interpretivism for he realizes that it has the potential to unmask the politics of law. I argue that Hogg\u27s third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates ahistoricism, circularity and a retreat into textual objectivism. By way of conclusion, I suggest that we must abandon the repressive machinations of textual fetishism so that we may honestly confront the nexus between law, politics and power. In turn, this will enable us to demand of powerholders - including judges - that they use their power for democratic rather than mystificatory ends

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York University, Osgoode Hall Law School

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oaioai:digitalcommons.osgoode.yorku.ca:ohlj-1824Last time updated on 10/29/2019View original full text link

This paper was published in York University, Osgoode Hall Law School.

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