CONSTITUTIONAL JUSTICE IN AFRICA: An Examination of Constitutional Positivism, Fundamental Law and Rights in Ghana and Nigeria

This work explores the idea of constitutional justice in Africa with a focus on constitutional interpretation in Ghana and Nigeria. The objective is to develop a theory of constitutional interpretation based upon a conception of law that allows the existing constitutions of Ghana and Nigeria to be construed by the courts as law in a manner that best serves the collective wellbeing of the people. The project involves an examination of both legal theory and substantive constitutional law. The theoretical argument will be applied to show how a proper understanding of the ideals of the rule of law and constitutionalism in Ghana and Nigeria necessitate the conclusion that socio-economic rights in those countries are constitutionally protected and judicially enforceable. The thesis argues that this conclusion follows from a general claim that constitutions should represent a ‘fundamental law’ and must be construed as an aspirational moral ideal for the common good of the people. The argument is essentially about the inherent character of ‘legality’ or the ‘rule of law.’ It weaves together ideas developed by Lon Fuller, Ronald Dworkin, T.R.S. Allan and David Dyzenhaus, as well as the strand of common law constitutionalism associated with Sir Edward Coke, to develop a moral sense of ‘law’ that transcends the confines of positive or explicit law while remaining inherently ‘legal’ as opposed to purely moral or political. What emerges is an unwritten fundamental law of reason located between pure morality or natural law on the one hand and strict, explicit, or positive law on the other. It is argued that this fundamental law is, or should be, the basis of constitutional interpretation, especially in transitional democracies like Ghana and Nigeria, and that it grounds constitutional protection for socio-economic rights. Equipped with this theory of law, courts in developing African countries like Ghana and Nigeria will be in a better position to contribute towards developing a real sense of constitutional justice for Africa.

WAKING (TO) THINKING BEING: A STUDY OF EDUCATION, METAPHYSICS, MIND, AND LANGUAGE

This dissertation articulates the basic aims and achievements of education. It recognizes language as central to thinking, and philosophy and education as belonging profoundly to one another. The first step is to show that although philosophy can no longer claim to dictate the foundations of knowledge or of disciplines of inquiry, it still offers an exceptionally general level of self-understanding. Education is equally general and faces a similar crisis of self-identity, of coming to terms with reality. Language is the medium of thought and the repository of historical mind; so a child’s acquisition of language is her acquisition of rational freedom. This marks a metaphysical change: no longer merely an animal, she comes to exercise her powers of rationality, transcending her environment by seeking and expressing reasons for thinking and doing. She can think about herself in relation to the universe, hence philosophize and educate others in turn. The discussion then turns to the historical nature of language. The thinking already embedded in language always anticipates further questioning. Etymology serves as a model for philosophical understanding, and demonstrates how philosophy can continue to yield insights that are fundamental, but not foundational, to human life. The etymologies of some basic educational concepts disclose education as a leading out and into the midst of Being. The philosophical approach developed in previous chapters applies to the very idea of an educational aim. Discussion concerning the substantiality of educational ideals results in an impasse: one side recommends an open-­ended understanding of education’s aims; the other insists on a definitive account. However, educational ideals exhibit a conceptual duality: the fundamental achievements of education, such as rational freedom, are real; but how we should understand them remains an open question. The penultimate chapter investigates philosophical thinking as the fulfillment of rational freedom, whose creative insights can profoundly transform our everyday activities. That this transformative self-understanding is without end suggests the basic aims of education are unheimlich. The dissertation concludes with speculative reflection on the shape and nature of language, and with the suggestion that through education reality awakens to itself.

Between Principle and Practicality: A Dynamic Realist Examination of Independence in the Canadian Justice System

This work examines independence in the Canadian justice system using an approach adapted from new legal realist scholarship called ‘dynamic realism’. This approach proposes that issues in law must be considered in relation to their recursive and simultaneous development with historic, social and political events. Such events describe ‘law in action’ and more holistically demonstrate principles like independence, rule of law and access to justice. My dynamic realist analysis of independence in the justice system employs a range methodological tools and approaches from the social sciences, including: historical and historiographical study; public administrative; policy and institutional analysis; an empirical component; as well as constitutional, statutory interpretation and jurisprudential analysis. In my view, principles like independence represent aspirational ideals in law which can be better understood by examining how they manifest in legal culture and in the legal system. This examination focuses on the principle and practice of independence for both lawyers and judges in the justice system, but highlights the independence of the Bar. It considers the inter-relation between lawyer independence and the ongoing refinement of judicial independence in Canadian law. It also considers both independence of the Bar and the Judiciary in the context of the administration of justice, and practically illustrates the interaction between these principles through a case study of a specific aspect of the court system. This work also focuses on recent developments in the principle of Bar independence and its relation to an emerging school of professionalism scholarship in Canada. The work concludes by describing the principle of independence as both conditional and dynamic, but rooted in a unitary concept for both lawyers and judges. In short, independence can be defined as impartiality, neutrality and autonomy of legal decision-makers in the justice system to apply, protect and improve the law for what has become its primary normative purpose: facilitating access to justice. While both independence of the Bar and the Judiciary are required to support access to independent courts, some recent developments suggest the practical interactions between independence and access need to be the subject of further research, to better account for both the principles and the practicalities of the Canadian justice system.

Radical Ambition: A Portrait of the Toronto New Left, 1958-1985

This thesis examines the rise and decline of the New Left in Toronto from 1958 to 1985. It argues that New Leftism — whose three leading ideals were self-management, national liberation, and community — arose as much from the Old Left as it did from the peace movement. In contrast to earlier readings that interpret the New Left narrowly — essentially, as the combined forces of the white student and peace movements evident mainly on university campuses — this thesis documents the extent to which New Leftism, interpreted as a political formation, provided a framework for a diversity of radical social movements, especially feminism, Black Power, gay liberation, resistance to the capitalist redevelopment of the city, and transnational solidarity. It also questions a declensionist narrative that adopts a “decadal” approach to the radicalism of the sixties, according to which 1970 spelled the end of “60s” radicalism. Quite the contrary, this thesis argues: in Toronto, it would be truer to say that 1970s were “the sixties,” in that only in this later decade did many New Left movements attain their full maturity. New Leftists successfully challenged a host of institutions, sometimes with permanent effects. The educational system was transformed. Cultural institutions and practices were revolutionized. Questions of race and gender, once peripheral to the left, were made central to it. Democratic community institutions became far more powerful. A token of the strength and durability of the New Left in Toronto was the extent to which it remained the bête noir of a series of other radical groups upholding the model of the vanguard communist party — which challenged the New Leftists’ prominence but many members of which often wound up agreeing with their positions. It was only in the early 1980s, with the ascent of a new right, that Toronto’s New Left unmistakably entered a period of decline. Yet, even then, many of its key themes were picked up by fast-growing anarchist and socialist feminist currents. Far from constituting a minor phenomenon, Toronto’s New Left, one of the largest movements for social justice in Canadian history, bequeathed to its progressive successors an imposing legacy of struggle and cultural achievements. It is the purpose of this thesis to evaluate, both critically and sympathetically, the extent to which the New Left attained its radical ambition.