Has Public Protest Gone to the Dogs? A Social Rights Approach to Social Protest Law in Canada

Abstract

The social rights approach to resolving social conflict can be applied to develop a progressive legal framework for dealing with social protest. A social rights approach, when contrasted against the traditional approach to rights, takes a broader perspective of rights, social conflicts, and the role of rights as a condition for a deliberative form of democracy and social justice. The paper explores how these different paradigms frame social protest. Next, it develops a legal framework for the social rights model of social protest. Charter analysis and the rules of civil law could be changed to channel public protest into the broader process of public deliberation that involves both law-makers and courts. A social rights approach to resolving social conflict advocates legal rules that encourage democratic deliberation and inclusive access to social protest as a means to test the legitimacy of the existing order. A social rights approach to law recognizes the transformative role of public protest in a democratic state. The approach must acknowledge and facilitate the claims made by the public against our social order.

Keywords: social justice, law of social protest, transformative constitutionalism, deliberative democracy, occupy movement