Connecting Rights To Social Change (Week 11 & 12) Flashcards
What is unique about the experience of “stateless people”?
Non-citizens are the first target of security processes, subject to immigration law/deportation (in can = security certificates, speed up the process of deportation)
What is the legal process for a non-citizen in detention?
- detained - subjected to reasonableness standard
- If action is judged reasonable - deportation w/out appeal
- If person is at risk in home country - deportation not possible 4. Detaining subject becomes de facto alternative
Where do stateless people (ex: temporary foreign workers) fall in terms of the framework of legality?
What does this tell us about citizenship?
Between effective belonging, formal citizenship and other citizenship
It is a type of capital - allows access to social protection, services and labour market)
What does Hannah Arendt say about citizenship?
What is her famous line?
It allows people to belong - one is never a citizen by oneself
“Right to have rights” - right to appear in public and to have existence beyond merely being human
What is the Khadr case?
Held in Guantanamo at 15yrs old
both fed and sup courts held that his charter rights were violated
court ordered gov to repratriate - PM refused (s. 24 - courts cannot order repatriation, no real remedy)
Pleads guilty to finish sentence in Canada, collects 10 million in damages
What are the four key strengths of the Charter according to Charter optimists?
What are some peripheral points?
- legislators have to take individual rights more seriously
- legislators have to be more careful in drafting leg - interest as clear as possible
- another arena for social change - interest groups make claims through courts
- Educative function - right consciousness
Open language (s. 7, 15, 2), split roles (judicial review as promoting democratic values), new forum to political concerns/new language
What are the four key limits of the Charter according to skeptics?
- judges impose their own view about free and democratic society
- public/private - limit charter to gov action (economic inequality) - limited scope
- Charter may be used to impede political change
- Access to courts very limited practice
What does justice Abella think about democracy and the responsibilities of courts?
Democracy is more than the will of the majority
- entrenched rights mark of a mature democracy
- s. 1 limitations and s. 33 = compromise
Courts only fulfilling duty given to them by parl - accountable to public interest not public opinion
What do Knopff and Morton think about the charter?
Main effect of charter is not to improve society but increase policy role and power of judges
No positive substantive change
Court party - elites who benefit from increased role of judges
Constitutional reform has been stifled
What are Glasbeek and Mandel’s charter issues?
Legitimizes fundamental inequality - does not guarantee economic equality
Moves politics away from people - forum is not open
Courts are conservative force
Enforcement - gov role change, displace responsibility (let the courts figure it out)
How can law be dis-empowering?
essential to maintaining and reproducing capitalist societies
Law presently: individualizing and depoliticizing
Certain disputes deemed private rather than public - maintains divisions and excludes certain claims
Legitimize existing inequality by convincing us the game is not already fixed (it is)
What are 4 reasons for not abandoning law?
- we would be denied any legal protections
- Politics today is “rights talk” frame - so political claims are not legal to some degree
- Rejection to use law leaves law to be reduced to “law and order uses” rather than social justice claims - state reduced to simple police function
- Abandoning law means abandoning current struggles that are already framed in law
What makes law empowering?
Rule of law: visibility/standing
Citizenship: Arendt’s right to have rights
Jurisprudence of insurgency: reveal internal inconsistencies of law in capitalist society
Collectivizing and politicizing legal battles: recognizing collective issues
What are the dangers of law as a tool for social transformation?
What are the new roles for lawyers?
Depoliticize issues - defining struggles only through law
Hard to recognize value of confrontation outside legal system
1. Abandon adversarial approach
2. Abandon system that protects lawyers in upper classes
What are some of Tasson’s conclusions?
to reject law is to reject much of the language of modern politics - not external to problems
To embrace law uncritically is only to perpetuate a distant and discriminatory system that is ignorant to blind spots and negative effects
