Greene_charter_Ch_1 - Draft Chapter 1 of Ian Greene, The...

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Draft Chapter 1 of Ian Greene, The Charter of Rights , 2 nd ed. (Toronto: Lorimer, ~2010) Note: this draft is copyright protected and may be used only by students in PPAL 6100 3.0. It may not be distributed beyond the class. References in the text below refer to the 1989 edition’s list of cases and references, which are separate documents on this web page. New references are shown as endnotes. Setting the Stage: Civil Rights in Canada and the Pre-Charter Era Ronald Dworkin, a contemporary legal theorist, has described the basis of rights in a liberal society as follows: "We might say that individuals have a right to equal concern and respect in the design and administration of the political institutions that govern them . ... [T)hey possess [this right] not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice" (3). Four scholars (Paul Sniderman, Joseph Fletcher, Peter Russell and Phillip Tetlock) have conducted research into the thinking of Canadians about human rights and have concluded that those who are committed to civil liberties show "a generalized commitment to tolerance." As well, these authors argued that a commitment to individual rights can coexist with a commitment to the larger community. Building on these approaches, I adopt the position that at the basis of the concept of human rights or civil liberties is the belief that every human being deserves - and owes to others - respect and fair treatment. Human beings deserve these things simply because they are human beings. This definition of rights-consciousness emphasizes that rights are not simply claims that individuals can demand with no responsibilities attached. In order to have rights, rights-bearers have a coincidental responsibility towards others to tolerate their rights. Some, like Canadian political philosopher C.B. Macpherson, would go further and argue that rights-bearers also have a responsibility to take action to ensure that others have the opportunity to exercise their rights, that is, to pursue self-realization. Controversies about rights often involve the question of whether individuals' personal claims or their responsibilities to others should be given priority. Such issues can rarely be resolved through applying "correct" legal reasoning. Rather, what is involved is human rights policy- making. Civil Rights Rights and Freedoms The phrases "human rights" and "civil liberties" are often used interchangeably, as they are in this book. However, a distinction can be made between rights and liberties that helps to shed some light on the content of the more general concept of civil rights. (See Hohfeld, Lederman (1) and Hart.) A "liberty" can be thought of as the ability to do something without constraints imposed or permitted by the state. For example, freedom of expression and freedom of religion can be considered as liberties in this sense. A "right" can be regarded as the consequence of a duty that is placed on an individual or on
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Greene_charter_Ch_1 - Draft Chapter 1 of Ian Greene, The...

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