Charter Challenges: A Test Case For Theories of Law

Osgoode Hall Law Journal 29 (1):183-214 (1991)
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Abstract

The author's primary objective is to show that versions of legal positivism, according to which legal validity sometimes depends on moral validity (Inclusive Legal Positivism), are theoretically preferable to those forms of positivism (Exclusive Legal Positivism) which deny this possibility. The author attempts to substantiate this conclusion by demonstrating that Inclusive Legal Positivism provides a better theoretical account of challenges to legal validity based on a document like the Canadian Charter of Rights and Freedoms. His secondary aim is to show that the choice between Inclusive and Exclusive Legal Positivism can have important consequences for legal practice.

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