Just Words

Just Words: Constitutional Rights and Social Wrongs

JOEL BAKAN
Copyright Date: 1997
Pages: 272
https://www.jstor.org/stable/10.3138/9781442676466
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  • Book Info
    Just Words
    Book Description:

    Joel Bakan argues that the Canadian Charter of Rights (1982) has failed to promote social justice because it is administered by a conservative judiciary and because social and economic conditions constantly interfere with its principles.

    eISBN: 978-1-4426-7646-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. 1 Introduction
    (pp. 3-12)

    The Canadian Charter of Rights and Freedoms, 1982, is composed of words that describe the foundations of a just society: equality, freedom, and democracy. These words of justice, or just words, state the highest ideals of progressive social movements and have inspired struggles for social justice throughout history. People have fought for civil rights, self-determination, trade unionism, the right to vote, and social equality in their name. The Charter has become a symbol of hope for social justice advocates because of its powerful words. A decade and a half after its constitutional entrenchment, however, social injustice remains pervasive in Canada....

  5. Part I
    • 2 Constitutional Interpretation and the Legitimacy of Judicial Review
      (pp. 15-42)

      Throughout history even the most despotic regimes have sought to justify their power. Rulers recognize that while coercive force is the ultimate guarantor of their authority, a social order is best preserved through a population’s acquiescence. Thus where power is found, so too are discourses and institutional arrangements that seek to establish its legitimacy. In this chapter I analyse and criticize the types of argument that constitutional jurists make to legitimate the authority of judges in constitutional cases. Judicial review under the constitution requires judges to determine the legal validity of actions by the legislative and executive branches of the...

  6. Part II
    • 3 Equality and the Liberal Form of Rights
      (pp. 45-62)

      In part I, I argued that constitutional adjudication is political, in the sense that it requires judges to determine how power should be exercised on the basis of indeterminate legal norms. This part examines a question raised by that argument: what are the politics of Charter adjudication? The fact that judges are not fully constrained by legal texts does not mean they are free of all constraints. This and the following three chapters demonstrate that judges are constrained in Charter adjudication by the basic tenets of liberal discourse: suspicion of state power (antistatism) and atomism. I argue in this part...

    • 4 Freedom of Expression and the Politics of Communication
      (pp. 63-76)

      Communication is fundamental to human existence. Our thoughts, feelings, politics, identities, and power relations are all understood and expressed through language and other signs. That is why freedom of expression – the freedom to engage in communicative activity – is essential for human progress. Widespread consensus about the importance of free speech exists in Canada. Notorious examples of its repression, such as the massacre of demonstrating students in Tiananmen Square and Salman Rushdie’s death sentence, excite outrage from people across the political spectrum and remind us of freedom of expression’s historic role in struggles against state repression by non-dominant groups....

    • 5 Freedom of Association and the Dissociation of Workers
      (pp. 77-86)

      Freedom of association, guaranteed by section 2(d) of the Charter, has long been a touchstone for workers’ struggles against exploitation. The idea of association was at the heart of early French socialism, which envisioned a society controlled by associations of workers (Harrington 1989), and Marx (Marx and Engels 1988), saw ‘permanent associations’ of workers, and their ‘ever expanding union,’ as key to ending capitalist exploitation (228). Throughout this century, freedom of association has served to articulate the labour movement’s aspirations and those of domestic and international organizations devoted to protecting workers’ interests. Today, however, Canadian workers’ freedom of association is...

    • 6 Power to the Powerful
      (pp. 87-100)

      Social injustice is not only difficult to address under the Charter but may also be worsened through the Charter’s implementation. Right-wing and corporate attacks on government regulation, taxation, and spending have become increasingly strident through the 1990s and have succeeded (with the media’s help) in cultivating popular suspicion of just about everything that governments do. This suspicion is manifest in highly publicized attacks on mandatory bicycle-helmet laws, photo-radar speeding tickets, gun registration, and all forms of taxation and in business’s persistent (and effective) lobbying for less governmental spending and regulation. There exists an unfortunate symbiosis between the anti-government ideology of...

  7. Part III
    • 7 Judges and Dominant Ideology
      (pp. 103-114)

      The education, socialization, and selection of judges ensure that they are likely to value and support existing social arrangements and to stay within the bounds of society’s ‘dominant views’ when deciding cases. This does not mean that judges are ‘biased’ – only that they, in contrast to the advocates who make progessive Charter arguments before them, are unlikely to think social change necessary or desirable. Judicial conservatism, in addition to the liberal form of rights, helps define the Charter’s relationship to social justice and equality. This is illustrated by the Supreme Court of Canada’s Charter cases on labour picketing and...

  8. Part IV
    • 8 Rights as Political Discourse: The Charter Meets the Charlottetown Accord
      (pp. 117-133)

      This chapter examines the politics of rights outside the immediate context of Charter litigation. More specifically, it looks at how the media represented arguments about rights made by two organizations, the Native Women’s Association of Canada (NWAC) and the National Action Committee on the Status of Women (NAC), in the period leading up to the national referendum on the Charlottetown Accord.¹ Both NWAC and NAC made issues concerning rights major parts of their strategies to defeat the accord. They argued that the document, if entrenched in the constitution, would override the Charter’s equality rights, and they succeeded (at least outside...

    • 9 What’s Wrong with Social Rights?
      (pp. 134-142)

      Social rights have been proposed by some as a solution to the Charter’s limitations. During the constitutional debates leading to drafting of the Charlottetown Accord, progressive governments and organizations advocated entrenching another charter in the constitution, which would explicitly protect social (or positive) rights and thus compensate for the courts’ failure to interpret the existing Charter as including such protections.¹ I argue here that it is unlikely that a social charter would have done what those who supported the idea wanted it to do. The limitations of social rights² resemble those of existing Charter rights. First, because of their abstract...

  9. 10 Conclusion
    (pp. 143-152)

    Let me begin by briefly summarizing the book’s central points. First, Charter adjudication is political in the sense that it requires judges to decide, on the basis of vague and abstract legal norms, how power should be exercised. Neither the elaborate arguments of constitutional jurisprudence and theory, nor the subjective feeling of some judges and lawyers that their conclusions result from the law’s indelible logic, alter this fact (chapter 2).

    Second, the politics of Charter law are driven by ideological processes that narrow the range of meanings that lawyers and judges are likely to attribute to the Charter’s otherwise open-ended...

  10. Notes
    (pp. 153-192)
  11. References
    (pp. 193-218)
  12. Cases Cited
    (pp. 219-224)
  13. Index
    (pp. 225-230)