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What Do We Mean by Law and Social Transformation?*

Published online by Cambridge University Press:  18 July 2014

Judy Fudge
Judy Fudge
Affiliation:
Osgoode Hall Law School, York University
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Abstract

In Canada the entrenchment of the Charter of Rights and Freedoms generated a good deal of debate about the possibility of using law in the struggle for social transformation. Although couched in general terms, the current debate is ultimately about the possibility of asserting liberal democratic legal rights in courts in order to transform existing relations of subordination and domination. Somewhat remarkably, the positive claim that litigating entrenched legal rights encourages social transformation tends to be made almost exclusively at the theoretical level. Theoretical possibilities, rather than concrete victories, are invoked to support the claim for the transformative capacity of liberal legal rights. Instead of approaching the question of litigating social change from an exclusively theoretical perspective, this paper examines contemporary examples in order to illustrate some of the possibilities of and limits to this strategy. Specifically, the paper examines how both the labour and women's movements have used the Canadian Charter of Rights and Freedoms to further their social, political and economic goals. Not only did these two groups adopt widely different strategies during the entrenchment process, what is entailed by the assertion of bourgeois legal rights has a different meaning for each. Thus, by contrasting the experience of the labour and women's movements in invoking the Charter it is possible to begin to suggest the limits of liberal rights in the struggle for social transformation.

Résumé

Au Canada, la défense de la Charte des droits et des libertés a donné lieu à une quantité de débats sur l'utilisation possible de la Loi pour obtenir des changements sociaux. Présenté d'une façon très générale, le débat actuel propose en fait la possibilité de revendiquer des droits légaux, libéraux et démocratiques devant les tribunaux pour transformer les situations de domination et de subordination qui existent maintenant. Il semblerait que, d'un point de vue théorique, la lutte pour la défense des droits à la justice encourage le changement social. Des possibilités théoriques, plutôt que des victoires concrètes, sont invoquées pour supporter la thése de la capacité transformative des droits légaux et libéraux. Au lieu d'une approche théorique au sujet du litige pour obtenir des changements sociaux, cette étude examine plutôt des exemples contemporains pour illustrer les possibilités et les limites de cette méthode. Plus particulièrement, cette étude analyse comment le mouvement ouvrier et le mouvement féministe se sont servis de la Charte Canadienne des droits et des libertés pour atteindre leurs objectifs sociaux, politiques et économiques. Non seulement ces deux groupes ont-ils adoptés des stratégies différences pendant le procédé de retranchement, mais ce qui est requis pour la revendication de droits légaux bourgeois a une signification différente pour chacun d'eux. Donc, en établissant le contraste entre l'expérience du mouvement ouvrier et celle du mouvement féministe vis-à-vis de la Charte, on peut ébaucher les limites des droits sociaux dans la lutte pour la transformation sociale.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 5 , 1990 , pp. 47 - 70
Copyright
Copyright © Canadian Law and Society Association 1990

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References

Notes

1. Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [enacted by the Canada Act, 1982 (U.K.), Ch. 11, Sched. B], ss. 1-34.

2. See the renewed call for entrenching a Bill of Rights in Britain which is being orchestrated by a coalition of left-leaning individuals, “Charter 88,” New Statesman 2 (1988), 4–12Google Scholar.

3. Since a large part of my critique of theoretical writing on the transformative capacity of law concerns its failure to be precise about what aspect of law is being discussed, I want to specify what I do not mean by liberal legal rights. I do not mean social and redistributional entitlements (such as workers compensation, medical and educational services, occupational health and safety protection and affirmative action programs, to name a few) which are embodied in legislation. While such social entitlements take a legal form, they can be distinguished from liberal legal democratic rights. Liberal legal rights are, by contrast, captured by the rule of law and civil rights—equal treatment under the law, freedom of association, expression and religion. Moreover, they are achieved through litigation in the common law courts. It is these liberal legal (bourgeois) rights which are distinguishing features of liberal democracies.

4. Brickey, S. and Comack, E., “The Role of Law in Social Transformation: Is a Jurisprudence of Insurgency Possible?” Canadian Journal of Law and Society 2 (1987), 97CrossRefGoogle Scholar; and Bartholemew, A. and Boyd, S., “The Political Economy of Law,” in Clement, Wallace and Williams, Glen (eds.), The New Canadian Political Economy (Kingston: McGill-Queen's University Press, 1989), 212Google Scholar. Although the two articles employ different methodologies, they are, however, very similar in terms of analysis and prescription.

5. Brickey, and Comack, , “The Role of Law in Social Transformation,” 102Google Scholar.

6. Bartholemew, and Boyd, , “The Political Economy of Law,” 233Google Scholar.

7. According to Brickey, and Comack, , “The Role of Law in Social Transformation,” 103Google Scholar, “the question remains, then as to what direction theoretical reformulation should proceed in order to fashion an approach which incorporates, rather than abandons, law as a potential agent for social transformation.” Moreover, Bartholemew, and Boyd, , “The Political Economy of Law,” 213Google Scholar, “insist that a political economy of law must attempt to theorize and capture both the limitations that law and legal institutions present for progressive movements and class struggles within capitalist societies and the potentialities of law and rights for class struggles and progressive forces within and beyond capitalism.” My main point of disagreement with this important new work is with the related claims that law can be an agent for social transformation and that law contains the seeds of its own resistance. These claims, I argue, lack precision in what is meant by law.

8. Brickey, and Comack, , “The Role of Law in Social Transformation,” 103Google Scholar.

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10. Ibid., 89.

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17. Reference Re Public Service Employee Relations Act (1987), [1987] 1 S.C.R. 313 at 390 (hereinafter referred to as Alberta Reference); Public Service Alliance of Canada v. A.G. of Canada (1987), [1987] 1 S.C.R. 424; Retail, Wholesale and Department Store Union, Local 544 v. Gov't of Sask. (1987), [1987] S.C.R. 460. For a more thorough discussion of these cases see Fudge, Judy, “Labour, The New Constitution and Old Style Liberalism,” in Labour Law Under the Charter (Kingston: Queen's Law Journal and Industrial Relations Centre, 1988), 61–111Google Scholar.

18. Alberta Reference, ibid. at 409. Dickson and Wilson found that the freedom of association included the right to strike, but they disagreed as to whether the impugned statutes in the right to strike triology were saved by s. 1. See Fudge, “Labour, The New Constitution and Old Style Liberalism.”

19. Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573.

20. Ibid., 600.

21. The Supreme Court of Canada issued two decisions on October 20, 1988, dealing with the legality of picketing courthouses. The British Columbia case provided the reasoning for the Newfoundland case: British Columbia Government Employees' Union v. A.G. of B.C. (1988), 88 C.L.L.C. 14, 047; Newfoundland Association of Public Employees v. A.G. of Newfoundland (1988), 88 C.L.L.C. 14, 046.

22. British Columbia Government Employees' Union v. A.G. of B.C. (1988), 88 C.L.L.C. 14, 047 at 12, 251.

23. Ibid., 12, 255.

24. Ibid., 12,263.

25. Glasbeek, Harry S., “Some Strategies for an Unlikely Task: The Progressive Use of Law,” University of Ottawa Law Review, forthcomingGoogle Scholar.

26. Tucker, Eric, Administering Workplace Danger (Toronto: University of Toronto Press, forthcoming)Google Scholar.

27. Tucker, Eric, “The Law of Employers' Liability in Ontario 1861-1900: The Search for a Theory,” Osgoode Hall Law Journal 22 (1984), 213–80Google Scholar.

28. Fudge, Judy, “The Public/Private Distinction: The Possibilities of and the Limits to the use of Charter Litigation To Further Feminist Struggles,” Osgoode Hall Law Journal 25 (1987), 485–554Google Scholar; Warskett, Rosemary, “Bank Worker Unionization and the Law,” Studies in Political Economy 25 (1988), 41–73CrossRefGoogle Scholar.

29. For a discussion of the courts' willingness to strike down remedial legislation designed to aid workers during the depression of the 1930s, see McConnell, W.C., “Some Comparisons of the Roosevelt and Bennett ‘New Deals’,” Osgoode Hall Law Journal 9 (1971), 221Google Scholar.

30. See Glasbeek, , “Some Strategies for an Unlikely Task,” 103Google Scholar, where he discusses the challenges launched against welfare rights, workers' compensation legislation, union dues checkoffs and union constitutions designed to protect a women's teachers' union from raiding by the rival men's teachers' union. Few of these challenges have been successful, but the point is that it is extremely unlikely the political compromise would have been challenged if not for the Charter.

31. Bakker, Isabella, “The Political Economy of Gender,” in Clement, Wallace and Williams, Glen (eds.), The New Canadian Political Economy (Kingston: McGill-Queen's University Press, 1989), 99–115Google Scholar; Jon Maroney, Heather and Luxton, Meg, “From Feminism and Political Economy to Feminist Political Economy” in Jon Maroney, Heather and Luxton, Meg (eds.), Feminism and Political Economy: Women's Work, Women's Struggles (Toronto: Methuen, 1987) 5–28Google Scholar.

32. Eisenstein, Z.R., Feminism and Sexual Equality: Crisis in Liberal America (New York: Monthly Review, 1984), 12Google Scholar.

33. Gavigan, S.A.M., “Women and Abortion in Canada: What's Law Got to Do With It?” in Maroney, and Luxton, (eds.), Feminism and Political Economy, 263 at 271Google Scholar.

34. R. v. Morgentaler, (1988), [1988] 1 S.C.R. 30, 82 N.R. 1 (S.C.C.).

35. Criminal Code, R.S.C. 1970, c. C-34, s. 251.

36. Shelley Gavigan, “Morgentaler in Perspective: The Historical Background to the 1988 Decision of the Supreme Court of Canada,” paper prepared for Constitutional Politics and the Future: The Repeal of Canada's Abortion Law in Comparative Perspective, Centre for International Affairs, Harvard University, May 1988.

37. Ibid., 15; See also Antonyshyn, Patricia, Lee, B. and Merrill, Alex, “Marching for Women's Lives: The Campaign for Free-Standing Abortion Clinics in Ontario” in Cunningham, Frank et al. (eds.), Social Movements and Social Change, Socialist Studies 4 (1988), 129–156Google Scholar.

38. Women's Legal Education and Action Fund, (1988) 5 LEAF LETTER at 4Google Scholar.

39. Fudge, , “The Public/Private Distinction,” 542Google Scholar.

40. Bill C-41, An Act Respecting Abortion, H.E. 2nd Sess. 1 34 Part, 1989.

41. See the most recent challenge to Roe v. Wade, Webster v. Reproductive Health Services No. 88-605, U.S. Sup. Ct. A transcript of the oral arguments is reproduced in The New York Times, 27 April 1989, K14-16. See also Petchesky, Rosalind Pollack, Abortion and Women's Choice (London: Verso, 1986), 286–325Google Scholar, for an account of the Roe v. Wade backlash.

42. Glasbeek, “Some Strategies for an Unlikely Task”; Hasson, Rueben A., “The Charter and Social Legislation,” Paper presented at the Conference on the Canadian Charter of Rights and Freedoms, Edinburgh May 21, 1988Google Scholar. However in Schacter v. Canada, [1990] F.C.J. No. 127 the Federal Court of Appeal stated that under-inclusive legislation invites a remedy-extending benefit, even if the extension of benefits requires an appropriation of public funds. However, the Court noted that it is open to the legislature to amend the law to deny benefits equally despite the fact that the court had extended the benefits.

43. Pay equity legislation, maternity benefits, state subsidized daycare are just a few examples of the type of redistributive legislation and government policies required by women to overcome burdens imposed by the private sphere of the labour market and family.

44. Fudge, Judy, “The Effect of Entrenching a Bill of Rights upon Political Discourse: Feminist Demands and Sexual Violence in Canada,” International Journal of the Sociology of Law 17 (1989), 445Google Scholar.

45. Hobsbawn, Eric, Workers: Worlds of Labour (New York: Pantheon Books, 1984), 310Google Scholar.

46. Glasbeek, and Mandel, , “The Legalization of Politics in Advanced Capitalism”Google Scholar; Mandel, , The Charter of Rights and the Legalization of Politics in CanadaGoogle Scholar.

47. Mandel, , The Charter of Rights and the Legalization of Politics in Canada, 61–71Google Scholar.

48. Fudge, , “The Effect of Entrenching a Bill of Rights upon Political Discourse.”Google Scholar

49. Ibid.

50. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 43.

51. Fudge, , “The Effect of Entrenching a Bill of Rights upon Political Discourse.”Google Scholar

52. L.E.A.F. Factum in Canadian Newspapers Co. v. A.G. Canada, October, 1987.

53. Mandel, , The Charter of Rights and the Legalization of Politics in Canada, 310Google Scholar.

54. According to MacIntyre in Andrews, section 15(1) of the Charter provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit to the law without discrimination. This is not a general guarantee of equality; it does not provide for equality between individuals or groups within society in a general or abstract sense, nor does it impose on individuals or groups an obligation to accord equal treatment to others. It is concerned with the application of the law.

55. Constitutional arguments about natural justice and formal equality have spilled into the legislative discussions of sexual assault policy. The federal government introduced a series of amendments to the Criminal Code which were specifically designed to bring the impugned provisions in line with the Charter. Throughout the parliamentary proceedings the Minister of Justice asserted that although the government preferred the amendments suggested by the women's organizations it “did not want to offend any provision of the Charter” (Canada, 1986–1987, 1: 40)Google Scholar. In the end the constitutional arguments won out and legislation which was specifically designed to accommodate what the judiciary regarded as the imperatives of the constitution was proclaimed; See Fudge, “The Effect of Entrenching a Bill of Rights upon Political Discourse.”

56. Gotell, Lise, “The Canadian Women's Movement, Equality Rights and the Charter,” Canadian Research Institute for the Advancement of Women, forthcomingGoogle Scholar; Fudge, , “The Effect of Entrenching a Bill of Rights upon Political Discourse.”Google Scholar

57. Glasbeek, , “Some Strategies for an Unlikely Task.”Google Scholar

58. Canadian examples include Mandel, The Charter of Rights and the Legalization of Politics in Canada; Glasbeek, “Some Strategies for an Unlikely Task”; Hasson, “The Charter and Social Legislation”; and Petter, Andrew, “Immaculate Deception: The Charter's Hidden Agenda,” The Advocate 45 (1987), 857.

59. Crenshaw, Kimberle Williams, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” Harvard Law Review 101 (1988), 1331–1397CrossRefGoogle Scholar; Matsuda, M.M., “Looking to the Bottom: Critical Legal Studies and Reparations,” Harvard Civil Rights and Civil Law Review 22 (1987), 323Google Scholar; Williams, P.A., “Taking Rights Aggressively: The Perils and Promise of Critical Legal Theory for Peoples of Colour,” Law and Inequality 5 (1987), 103Google Scholar.

60. Crenshaw, , “Race, Reform, and Retrenchment,” 1377Google Scholar.

61. Brown v. Board of Education, 347 U.S. 483 (1954).

62. Crenshaw, , “Race, Reform and Retrenchment,” 1378Google Scholar.

63. See the citations provided by Crenshaw, in “Race, Reform and Retrenchment,” at note 3; See also Wilkerson, Isabel, “Two Decades of Decline Chronicled by Kerner Follow-up Report,” The New York Times, March 2, 1988, A12Google Scholar.

64. Gambitta, Richard, “Litigation, Judicial Defence and Policy Change,” in Gambitta, Richard et al. (eds.), Governing through the Courts (Beverly Hills: Sage Publications, 1981), 261Google Scholar; quoted in Mandel, , The Charter of Rights and the Legalization of Politics in Canada, 51Google Scholar.

65. Crenshaw, , “Race, Reform and Retrenchment,” 1382–1383Google Scholar.

66. See Reynolds, William Bradford, “The Reagan Administration's Civil Rights Policy: The Challenge for the Future,” Vanderbilt Law Review 42 (1989), 993–1101Google Scholar; and Days, Drew S. III, “The Courts' Response to the Reagan Civil Rights Agenda,” Vanderbilt Law Review 42 (1989), 1003–1016Google Scholar, for a discussion of the Reagan administration's litigation strategy to roll back racial affirmative action policies and the courts' response. In Patterson v. McLean Credit Union, No. 87-107, a case pending before the U.S. Supreme Court, the court decided to reconsider the rights of minorities to sue private parties for racial discrimination under a Post-Civil War Statute. See Runyon v. McCeary, 96 S Ct. 2586 (1976).

67. The [Toronto] Globe and Mail, 21 June, 1989, A8.

68. Wood, Ellen Meiksins, “Capitalism and Human Emancipation,” New Left Review (1988) 3–20, at 8Google Scholar.

69. Buroway, Michael, “Should We Give Up on Socialism?” Socialist Review 19 (1989), 57–74Google Scholar, at 60.

70. Here it is important once again to refer to the Supreme Court's decisions in Dolphin Delivery, [1986] 2 S.C.R. 73 and Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143 which were discussed earlier.

71. Bartholemew, and Boyd, , “The Political Economy of Law,” 229Google Scholar. The only problem with their proposition in its original form is that it is overly general. Bartholemew and Boyd should be more careful to specify what they mean when they refer to law