| dc.description | The judicial review of Canadian federalism is under-investigated by political scientists. The dissertation employs a comparison of recent federalism decisions from the high courts of Canada, the United States and Australia to demonstrate that this traditional field of inquiry deserves closer inspection. The inattention given to this subject is largely a result of disenchantment with the courts as a site of dispute resolution. Critics have claimed that the techniques of legal reasoning are nothing more than a cover for political decision making by an unaccountable and undemocratic judiciary. The reasons for a decision and the doctrines employed to arrive at a decision, while once thought to be the best way to understand the state of federalism, are now considered poor guides at best and deceitful at worst. The dissertation argues to the contrary, that judicial doctrines are the key to a better understanding of judicial reasoning, especially about federalism. Indeed, doctrine can be studied as an independent variable in the politics of federalism. That it currently is not is an indication of how doctrine has been impoverished by theories of judicial review which assume it is a tool for achieving certainty and neutrality in constitutional interpretation. Doctrine can be understood more modestly, not as determinative and true, but as a tool of legal reasoning that influences, but does not compel, judicial outcomes. To bolster this assertion, detailed surveys of recent judicial doctrine in the U.S.A., Australia and Canada are presented. The evidence demonstrates two things: first, that specific, traceable doctrines are commonly used to settle division-of-power disputes and second, that the use of doctrine in judicial reasoning makes a positive contribution to the operation of a federal system. Doctrine, it is concluded, is worthy of both defence and detailed study. | en_US |
