On hierarchy and communication in setter orders: Matthew J. Glass, ‘Canada’s Duty to Consult: Communicative Equality and the Norms of Legal Discourse’, MA Dissertation, Universit y of Western Ontario, 2015
Abstract: This thesis employs Jürgen Habermas’s discourse theory of law to argue that the doctrine of Canada’s duty to consult with indigenous communities is based on extra-legal communicative presumptions that fail to reflect the basic norm of communicative equality. It derives a set of communicative norms from discourse theory and demonstrates their dovetailing with discursive norms found within the intersocietal communicative practices associated with treaty-making in at least selected indigenous legal orders, such as in the establishment of the Great Peace of Montréal (1701). Finally, after providing a critical analysis of the duty to consult’s key discursive elements (historical narrative, justification, reconciliation, and the “honour of the Crown”), it argues for normative revisions of the duty to consult more appropriate to Canada’s intersocietal legal order.
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