“Blackstoned” Again: Common Law Liberties, the Canadian Constitution, and the Principles of Fundamental Justice

Abstract

In this Article, I argue that the Supreme Court of Canada's location of the principles of fundamental justice among the basic tenets of our legal system-and nowhere else-aligns the Court with particular aspects of the eighteenth century jurist William Blackstone's thoughts. The jurisprudential part of Blackstone's Commentaries on the Laws of England (1765) is premised upon a faith in the existence of fundamental principles that must be assumed to underlie the common law. As reflections of these principles, common law rules deserve deference, even though the principles themselves are not clear. I argue that, whatever else may be said in favour of Blackstone's ideas about the common law, this perspective provides an inappropriate tool for the analysis of the provisions of the Charter in general, and fundamental justice in Section 7 in particular. I argue that Blackstonian analysis is an inductive, conservative technique that is in direct tension with the deductive, potentially progressive version of strong modern human rights theory, which explains the need for constitutionally entrenched bills of rights such as the Charter.