Volume 5, No. 1 Abstracts
Just Words and Social Justice
Keith Ewing
The need and desirability of entrenching a social charter has been greatly debated in Canada, especially since the failed Charlottetown Accord. The author makes a case for entrenching a social charter on policy grounds – protecting the rights and welfare scheme we already have – since the law is one of the best tools we have to “transform social relations.” The author believes that constitutionally protected explicitly social rights can lead to a “socially just and progressive society” even if courts find protected liberal rights to be paramount when the two conflict. The author uses examples from several American states’ and European constitutions, as well as Joel Bakan’s critique of the Charter, to illustrate that a social charter can address the causes of social inequality if it takes a “broad approach to the social conditions of citizens,” while acknowledging the inherent enforcement problems that have plagued Charter rights since 1982.
Challenging Electoral Boundaries Under The Charter: Judicial Deference and Burden Of Proof
Ronald E. Fritz
The right to vote is foundational in any democratic society. In Canada, this right, as enumerated in section 3 of the Charter, has spawned litigation primarily revolving around issues of electoral boundaries and variations in constituency size. Here, the author examines some major Canadian cases concerning the right to vote as it pertains to those issues. Differing approaches to matters of deference and onus of proof for justifying particular electoral boundaries and constituency sizes are raised and discussed. The author suggests that courts must develop a coherent approach to both these matters to ensure the consistent and effective application of section 3.
The Civil Society And Its Enemies: The Case Of Israel
Michael Keren
This study discusses the difficulties faced by Israel’s civil society in its attempts to maintain a “bourgeois public sphere,” as defined by Habermas, in which public concerns exceeding both the demands of the market and the guidelines of the state are expressed. With the loosening of socialist political and cultural hegemony in the 1970s and 1980s, a civil society, previously suppressed by the socialist state, attempted to reassert itself, especially by bringing civil rights issues to the courts. In doing so, it encountered new social forces constraining the public sphere, notably nationalism, populism and bureaucracy. The implications of these constraints to the “civil society project,” advocated throughout the world, are then discussed. L’auteur fait état des difficultés qu’éprouve la
The Tenth Mcdonald Lecture
Equality Jurisprudence: The Origin Of Doctrine In The South African Constitutional Court
Justice Albie Sachs
Established in 1994, the Constitutional Court of South Africa is charged with the interpretation and enforcement of South Africa’s new constitution. This article examines the Court’s interpretation of equality rights in South Africa’s Bill of Rights. Drawing from international equality jurisprudence, as prescribed by the Bill of Rights, the Court sought to create an approach valid for the South African context yet picking up from other jurisdictions principles and ideas internationally recognized as valuable. The article highlights the impact which Canadian equality jurisprudence has had on the development of South African equality doctrine, while providing an overview of the South African case law which has given rise to the emergence of six salient and interconnected themes in their evolving jurisprudence.