From Rawls to Habermas: Toward a Theory of Grounded Impartiality in Canadian Administrative Law

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Osgoode Hall Law Journal





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At the same time that Canadian public law jurisprudence has grappled with some key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism, and culminating in the theory of deliberative democracy, this debate evolved over a span of more than four decades. Yet this philosophical literature is rarely, if at all, referred to in the public law jurisprudence dealing with impartiality. This article asks whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public law share common ground and explores the ways in which these discourses might speak to one another. The author argues that knowledge of the two debates challenges us to reconsider the judicial methods by which decision-making impartiality is established. This is particularly so in administrative law. The author proposes a theory of grounded impartiality in Canadian administrative law, which requires courts and administrative actors to pay close attention to factors such as administrative actor provenance, shared and local understandings, and the possibility for genuine discourse. While certain political and moral philosophers have advocated for similar factors as ideal means for assessing an individual’s claim to the good life, a parallel approach has faced ambivalent reception in Canadian administrative law impartiality jurisprudence. Nevertheless, this article argues that a theory of grounded impartiality would allow for better-informed, more meaningful, and transparent decision making with respect to allegations of bias.