The public/private divide and the limits of constitutional law

This thesis explores the limits of constitutional law, focusing principally on the theory and practice of the public/private divide as it operates in the Canadian Charter of Rights and Freedoms. First, it examines the jurisprudence of the Supreme Court of Canada on the question of whether the Charter ought to apply to the private sphere. The Court's approach in restricting the Charter's applicability to only those situations where a governmental link can be established is criticised as based on a classical liberalism that is no longer appropriate in the late twentieth century. This line of reasoning is found to be inadequate because it ignores imbalances in power relations, and so is blind to the oppressive capacity of private power.;Second, it addresses the argument that even it were accepted that constitutional law ought to be directed towards the private sphere, there are various internal and external theoretical barriers which would prevent the Charter from successfully regulating private power. The Critical Legal Studies (CLS) claim that the existing public/private divide is a necessary internal feature of liberal rights is evaluated first. The CLS attack on the liberal 'myths' of objectivity and neutrality is analysed in depth, but it is concluded that this is premised on a conceptual error, and that there is nothing inherent in the Charter which necessitates the status quo. The CLS and Marxist critiques that because of a variety of external factors, constitutional law lacks the necessary autonomy in relation to private power to be able to control it, are then considered. These theoretical critiques are measured against the concrete context of Italy (where the constitutional text does extend to private conduct) in order to assess their validity. (Abstract shortened by UMI.).