Justifying and mitigating the semantic indeterminacy in Charter jusrisprudence: An exploration of legal validity, moral considerations and hermeneutics.

摘要

The meta-objective of this thesis is to justify and mitigate the semantic indeterminacy inherent to Charter jurisprudence, particularly, the indeterminacy of the language that comprises Charter rights. The author achieves this justification and mitigation by (1) Re-conceiving the Charter; (2) Explaining the intricate relationship between validity and moral considerations by a theory of Charter law called Inclusive Legal Positivism; (3) Conceptualizing Charter interpretation through the use of philosophical and critical hermeneutics; and (4) Introducing, defending and applying an adjudicative typology/attitudinal model that manifests the critical reflective attitude a judge should bring to indeterminate Charter cases. This 'model' or 'attitude' gains its theoretical support from the fusion of philosophical and critical hermeneutics. Ultimately, the thesis shows that one can at the same time accept that Charter jurisprudence is indeterminate but also that such indeterminacy is legally and principally guided and constrained.