chapter 1 – heritage of law the role of law in a democratic society

Chapter 1 – Heritage of Law

The Role of Law in a Democratic Society

Agenda

1. Take-up R. v. Lavalee 2. The Role of Law in a Democratic

Society 3. Hwk. Oakes case (reading and

questions)

Learning Goal for Today

By the end of the lesson, students will be able to describe the role of law in a democratic society & identify the distinction between a policy and principled argument

Expectations

CGE7e – witnesses Catholic social teaching by promoting equality, democracy, and solidarity for a just, peaceful and compassionate society

Trace the development of law from its primary sources… in social and political philosophy


When does the idea of majority rules work in society?


Ex. BC HST – Policy/pragmatic issue

*The Role of Law in a Democratic Society

Principled issues are where the legal system plays an important role & where the legal system quite often kicks in

Brings out the issue of the conflict between the common good v. making space for the individual (i.e. protecting individual rights)


Rights create space within which individuals can form & pursue individual projects

Rights trump community good in some cases


Arguments of Policy are for the collective good of the community

Usually originate with governmentex. free high quality high school


Arguments of principle respect some individual or group right Ex. Freedom of Religion Ex. Anti-discrimination provisions of the

Charter and the Human Rights Code


Some arguments can be both a policy and a principle argument Ex. Free High Quality High School (class

discussion)


One modern legal philosopher, Dworkin, thinks that what legitimizes the legal system is that it legitimizes arguments of principle

Judges – appointed – don’t have to run for office – rights v.

Politicians – elected to talk about & pursue collective goals


The way to protect right of individuals isn’t about democracy, it’s about what rights people have Ex. Illegal search & seizure – individual

rights trump collective good of protection of society


Section 1 of the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

http://www.canlii.org/en/ca/const/const1982.html

http://www.canlii.org/en/ca/const/const1982.html


Under the Charter, courts will examine arguments of principle, but will also consider arguments of policy

Section 1 requires the courts to balance all different rights against each other, considering rights holistically as a whole


What is a reasonable limit?

What does it mean to be prescribed by law?

What does it mean if a limit is demonstrably justified in a free & democratic society?


What about notwithstanding clause?

Section 33 of the Charter allows a government to temporarily (up to 5 years) keep a law in place, even if it violates the Charter

Generally, same as s.1 argument


Doesn’t this completely gut the Charter?


Ex. Common law partner rights to support in Quebec upon breaking up

Need to discuss distinction between gov’t disagreeing for policy reasons (ignoring trump of individual rights) v. disagreeing b/c they thing it is a bad law

Obligatory Humour Break


Oakes Case – Homework – Read handout online (Classnet – Unit I Heritage – Case 2 – Oakes & do ?’s KU 1,3, A 1)

chapter 1 – heritage of law the role of law in a democratic society

Documents