Notwithstanding Judicial Specification: The Notwithstanding Clause within a Juridical Order

This paper offers an account of the notwithstanding clause that integrates it within a juridical order of rights and freedoms. Two assumptions permeate the existing discourse on the notwithstanding clause: that the Charter is constitutive of the rights it enshrines and that the realization of rights is the sole province of the judiciary. In contrast to these assumptions, it sets out an alternative conception of rights rooted in the classical natural law tradition. On the classical view, rights are objective and systematic: rights inhere in rightful relations between persons and are concretized in positive enactments within a given legal system. Drawing on the classical conception, it argues that the notwithstanding clause recognizes the capacity of legislatures, acting for the common good, to specify rights in ways that depart from judicial specifications. Properly understood, the notwithstanding clause expresses a form of constitutionalism grounded not in will alone, but also in reason.This is a preprint draft of a paper for the LexisNexis Supreme Court Law Review, 2nd Series, and is subject to revision.