constitutional interpretation, progressive and purposive interpretation
In this brief comment I offer some critical reflections on Professor Hogg's proposed approach to Charter interpretation. I suggest that Professor Hogg's attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that "interpretivism" is explanatorily inadequate, yet on the other he refuses to accept "non-interpretivism" for he realizes that it has the potential to unmask the politics of law. I argue that Hogg's third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates ahistoricism, circularity and a retreat into textual objectivism. By way of conclusion, I suggest that we must abandon the repressive machinations of textual fetishism so that we may honestly confront the nexus between law, politics and power. In turn, this will enable us to demand of powerholders - including judges - that they use their power for democratic rather than mystificatory ends.
Richard Devlin, "Ventriloquism and the Verbal Icon: A Comment on Professor Hogg's 'The Charter and American Theories of Interpretation'" (1988) 26 Osgoode Hall LJ 1.