Thesis (Ph. D.)--University of Oklahoma, 1996. / Includes bibliographical references.

Thesis (doctoral)--Université de Genéve.

Inaug.-Diss.--Würzburg. / "Literaturverzeichnis": p. [7]-9.

Thesis (doctoral)--Philipps-Universität, Marburg, 2005/2006. / Includes bibliographical references (p. [279]-315) and index.

Thesis (doctoral)--Philipps-Universität, Marburg, 2005/2006. / Includes bibliographical references (p. [279]-315) and index.

Originally presented as the author's Thesis (doctoral)--Humboldt-Universität zu Berlin, 1998. / Includes bibliographical references (p. 267-281) and index.

Inaug.-Diss.--Göttingen. / "Literatur": p. [5]-7.

Inaug.-Diss.--Würzburg. / "Literaturverzeichnis": p. [7]-9.

In this thesis, I address two issues. First, I reject the supposed conflict between international law and constitutional democracy. And second, I explore the role of international law in domestic constitutional law, particularly in Canada. In order to address both of these issues, I draw an analogy between the “Incompatibilist” critiques of international law and constitutional democracy, and the arguments against judicial review made by “the Critics” that Waluchow responds to in his book, A Common Law Theory of Judicial Review: the Living Tree. I argue that both the Incompatibilists and the Critics describe in-principle problems, structural problems, and decision-making problems in their respective critiques. The Incompatibilists are describing these problems in the context of the interaction between international law and constitutional democracies, while the Critics are focusing on constitutional judicial review, but I argue that the theory Waluchow presents as an answer to the Critics can also be directly applied to the Incompatibilists. Waluchow’s theory of common law judicial review and the community’s constitutional morality gives support and democratic legitimacy to judicial review in a domestic constitutional context. By applying his reasoning to cases involving international norms, I address problems in domestic courts’ application of international law and the democratic challenges they face. / Thesis / Master of Arts (MA)

This thesis explores the roles played by implied constitutional principles in fundamental rights cases in the common law jurisdictions of Canada, Australia, the Commonwealth Caribbean, and the United Kingdom. The two principles selected for this research are the separation of powers and the rule of law, both of which are relied upon in courts in common law states. The thesis examines the types of cases in which such principles are used, the possible reasons for the appeal of these principles, and the functions that they play in fundamental rights adjudication. The thesis begins with a brief discussion of the applications of the rule of law and the separation of powers, outlining the content of these principles as applied by the courts. However, the bulk of the analysis throughout the thesis is concerned with a thematic study of the functions played by the principles. It is argued that the principles are used as interpretative aids, as independent grounds for invalidating legislation, and as gateways to comparative legal analysis. The thesis ends by showing the necessary preliminary work that must be undertaken in order to engage in a thorough normative analysis of the use of implied principles in rights adjudication. Throughout the thesis, several themes are identified as key to our understanding of the functions played by implied principles in the cases discussed. One such theme is legitimization, specifically the role the principles play in the attempt to legitimize arguments, state institutions (particularly the courts), and the state itself. The theme of institutional self-protection also arises; it is evident in the use of principles to protect the jurisdictional sphere of the courts. The analysis of the operation of implied constitutional principles also highlights the legacy of Empire and the deployment of traditional principles to signal the maintenance of democratic traditions and institutions.