CONCLUSION
It should be stressed that it is not my purpose in highlighting the choices made by judges which lead to the divisions in the cases under discussion to criticise judges for not being true to the holy grail of principle.
Rather, my point is that that such choices are an inescapable part of what judges do, even when they are faithfully trying to follow the rules. These choices may themselves produce individual judicial forms of ‘coherence’—such as L’Heureux-Dube J’s (singular) view that Keegstra and Zundel stand for the same principle—but it is the interaction between these unique systems which makes doctrinal disorder inevitable. The cases under discussion may be atypical—in others there may be less, or more, judicial disagreement—but the issues which they raise are not. They confirm that if we persist in explaining hard cases in liberal legalist terms of the collective judicial search for an overarching constitutional principle, then such cases will continue to create difficulties. However, if we instead adopt the theoretical insights of internal legal pluralism, then explaining the twists and vagaries of adjudication is not so hard after all—it is just its practice that remains exceedingly complex.
Source:
Anderson Gavin W.. Constitutional Rights after Globalization. Hart Publishing,2005. — 155 p.. 2005
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