Fundamental rights have been traditionally understood as prohibitions of state interference with the private affairs of citizens. Classic liberalism views human freedom generally as the absence of governmental restrictions, maintaining that happiness, prosperity and progress can be achieved only by limiting government. / The dissertation challenges these traditional assumptions by showing that the protection of fundamental rights depends on both restraint and intervention of the state. Therefore, the realization of freedom, equality and justice should not be left to market forces but requires active governmental participation. The state assumes positive as well as negative obligations under the Canadian Charter of Rights and Freedoms. This means that governmental authorities, legislatures and courts must respect, protect and promote Charter guarantees. The Charter makes space for economic, social and cultural fights, which presuppose a cooperative and dialogical relationship between the three governmental branches (executive, legislative, and judicial bodies). / The thesis also grapples with another issue in the current Canadian constitutional debate. It is widely believed that federalism is antagonistic to liberal values, in particular the guarantees of the Charter; that the nature and purpose of the Charter imply a superior role of Ottawa vis-a-vis the provinces because cultural diversity and decentralization of power undermine its effectiveness. The dissertation recasts the debate and proposes ways to reconcile human rights with federalism and its underlying objective---the preservation of cultural diversity. It offers an analytical framework that allows us to view fundamental rights and cultural pluralism as interdependent and indivisible values protected by the Canadian Constitution. / The thesis concludes with a proposal for a multicultural interpretation of the Charter on the basis of which cultural differences can be identified and accommodated. It stipulates that a pluralistic constitutional discourse is possible insofar as the Charter is seen as a document establishing substantive and institutional conditions for Canadians to engage in deliberative democracy and, thereby facilitating communicative actions by citizens from all walks of life.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:QMM.35968 |
| Date | January 1999 |
| Creators | Tran, Luan-Vu N., 1968- |
| Contributors | Toope, Stephen (advisor) |
| Publisher | McGill University |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Format | application/pdf |
| Coverage | Doctor of Civil Law (Institute of Comparative Law.) |
| Rights | All items in eScholarship@McGill are protected by copyright with all rights reserved unless otherwise indicated. |
| Relation | alephsysno: 001650461, proquestno: NQ51622, Theses scanned by UMI/ProQuest. |
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