- Reaction score
- 33
- Points
- 560
Interesting debate
http://www.bloggingtories.ca/btFrameset.php?URL=http://burkeancanuck.blogspot.com/2007/02/charter-at-25-marxist-critique-and.html&title=The%20Charter%20at%20'25'%20--%20a%20Marxist%20critique%20and%20a
http://www.bloggingtories.ca/btFrameset.php?URL=http://burkeancanuck.blogspot.com/2007/02/charter-at-25-marxist-critique-and.html&title=The%20Charter%20at%20'25'%20--%20a%20Marxist%20critique%20and%20a
Thursday, February 15, 2007
The Charter at '25' -- a Marxist critique and a "Burkean Canuck" response
The twenty-fifth anniversary of the signing the Canadian Charter of Rights and Freedoms is upcoming on April 17th, and we're suddenly rife with pieces about it.
Has the Charter achieved what its framers expected? Has it been a force for good in Canadian society? Has it been a radicalizing or a conserving -- conservative -- influence on how Canadians live their lives? And, has it diminished the democratic character of public discourse and debate in the political realm?
To the first question in a lecture delivered for TV Ontario's "Best Lecturer of 2007" competition, Osgoode Hall's Professor Allan Hutchinson says, "Yes" (it has conserved status quo liberalism). To the second, "No" (it has conserved status quo liberalism). To the third he says it has been a conservative influence (conserving status quo liberalism). To the last question, Hutchinson insists that the Charter has served to "judicialize politics" by moving political hot potatoes away from Parliament and politicians to the Court -- to a Court that, he says, by and large prefers freedom or liberty over equality, singling out Chief Justice Beverley McLaughlin on this last point.
As Professor Hutchinson puts it, there's nothing wrong with the Canadian Charter of Rights and Freedoms except for its form and substance!
Hutchinson makes very clear his major beef with the Charter is that it prefers freedom over equality. For Hutchinson, the Charter preserves a status quo of negative rights preferred by a comfortable middle class to the detriment of extending rights to food and shelter for the homeless, underprivileged, and the poor. Hutchinson wants greater egalitarianism, particularly economic egalitarianism. For Hutchinson, the big problem with the Supreme Court's ruling that struck down the abortion law in 1988 was not that it decriminalized abortion, but that it did not do enough to fund abortions and to make them available. Hutchinson wants to move most Charter questions moved away from the conserving, status quo-inducing influence of the Court -- presumably, back into a political domain accessible by the people. For Hutchinson, "law is politics" -- and a court that favours liberty has the political upper hand in the struggle between liberty and equality. He presses his critique of preferring liberty, noting that liberty does not extend to the domain of someone else's private home. Hutchinson pushes the class struggle analysis noting that the Court has accepted that business corporations should be treated as "persons" under the Charter, but that when labour unions have asked for the same treatment, the Court has demurred. Ergo, the Court is pro-bourgeoisie, er, middle class, and anti-proletariat, um, labour.
For a liberal, "the good" is a free society -- that is, a society of citizens who are individually free. For a Marxist like Hutchinson, "the good" is an egalitarian society -- that is, a society of citizens who are both formally AND substantially free, economically and otherwise.
Is Hutchinson correct? "Sort of."
What is most valuable about Hutchinson's critique is his suggestion that the Court prefers liberty over equality in its rulings. A perennial complaint about the Court's Charter rulings is that they're all over the judicial map -- there's no cohesive way of making sense of them, of drawing philosophical order out of the judicial chaos. But Hutchinson's suggestion raises the possibility of bringing order to the seeming disorder.
If we accept that the Charter has judicialized politics, then we can understand the Court as an arena for debate between exponents of "liberty" and boosters of "equality." That laws should impose only such limits as demonstrably necessary in "a free and democratic society" . . . "free" qua "autonomous," and "democratic" qua "egalitarian." Sometimes the Court favours autonomy or liberty. In other rulings, the Court favours egalitarianism. Perhaps the best place for testing the thesis may be in respect of Charter rulings on the criminal law.
But is justice -- "the good"-- exhausted by either liberty or equality, or, even, by both?
What about institutions? What about marriage and family? What about the church or other faith institutions? What about unions? What about universities? What about fraternal associations?
And . . . What about truth? Does justice have nothing to do with truth?