Constitutional Rhetoric and Social Justice: Reflections on the Justiciability Debate
in H.J. Steiner & P. Alston, eds., International Human Rights in Context: Law, Politics, Morals (Oxford: Clarendon Press, 1996) 301-304.
3 Pages Posted: 1 Mar 2014 Last revised: 14 Mar 2015
Date Written: 1996
The Ontario government and Beaudoin-Dobbie Committee disappointed activists by proposing a “social charter” that did not mention expanding the Charter rights to include fundamental socio-economic guarantees contained under international human rights treaties ratified by Canada. The Beaudoin-Dobbie Committee took the position that social rights create responsibilities of enormous scope, and should remain a matter for elected governments instead of the judiciary. The author reviews and critiques three common arguments advanced against justiciable social rights: first, that social rights, which require positive state action, are different from classical or “negative” rights, which only demand state inaction; second, that courts are institutionally incompetent to deal with complex social, political and resource allocation issues as well as being inaccessible to the poor, and; third, that individual rights-seeking is neither a legitimate nor effective mechanism for social change.
Keywords: Ontario, Canada, Beaudoin-Doccie, committee, social charter, charter, social rights, judiciary, constitution, negative, positive, rights, resource allocation, social change
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