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Manual Equality: From Theory to Action

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But then the moral evaluation which Dworkin tried to rule out earlier with his requirement of state neutrality returns in the question of which core pursuits are reasonable and which are harmful. The assessments of harm and reasonableness cannot be neutral even to the degree that Dworkin requires it. While Dworkin acknowledges the conceptual possibility that legislation that condemns an action because of judgments about its harm or wrongness could be motivated by a reason other than the contempt of the law makers for the persons whose actions are thereby restrained, he seems sceptical about the existence of such cases in the wild.

Dworkin supposes that persons seek to prohibit vicious conduct, not because the conduct has been judged to be harmful in some way, but simply because it is conduct enjoyed by 'people of bad character'. While Dworkin does not provide a definition of "personal morality", 45 he seems to use the phrase to indicate a domain of "private" actions and pursuits that are self-regarding ie that are victimless.

Dworkin is clear that choices in the sphere of private morality may impact on the "moral environment" and thus make it more difficult for the majority to achieve the type of environment that it may perhaps correctly judge to be in the best interests of all. But Dworkin resists characterising the majority's concern for the moral environment as a concern for justice. Instead, he either characterises it as a Devlinite concern to preserve and promote a common code of morality for the purpose of preserving a common culture qua common , or a concern to force people to live good lives.

There is, however, a more compelling option. The legislator or citizen who supports legislation that imposes restrictions on others may be motivated not only by a judgment about what is right or wrong, but also by a judgment about what is necessary to maintain a just political order. It is not self-evident that the acts that Dworkin believes ought to be protected as a matter of moral independence are, in fact, victimless matters of "personal morality".

Many of the Canadian laws which are of the type criticised by Dworkin are not motivated by a concern to uphold "morality" or "decency", but rather are motivated by a concern for interpersonal justice; in particular, those judgments about what assistance the government owes to individuals. In the Canadian context, laws regulating or prohibiting abortion, assisting acts of suicide, and obscenity that have been subject to constitutional review to take three examples of conduct which Dworkin has argued ought not to be criminalised because of their private nature have all been defended by the Crown on the basis that these acts are not private, but have victims whom the government has a duty to protect.

The interpersonal nature of some types of purportedly "private" conduct becomes apparent when one takes into account the state's function in assisting with the education and development of children. Consider, for example, the justification given by the AG Nova Scotia for the criminalisation of solicitation for the purposes of prostitution: i. Rather, the harm is that street solicitation creates an environment where children are at risk of developing an understanding of sexuality in which sexual relationships lack mutuality and dignity.

At least some actions of adults which present a corrupting influence on children are, in principle, within the mandate of the state to prohibit, not because it has authority to somehow coerce adults into virtue expressed by Dworkin as "personal morality", "taste", "decency", or "ethics" , but because of the assistance owed by the state to individuals and families as a matter of justice. Dworkin is, of course, familiar with the argument that the elimination, or legal regulation, of some opportunities need not have been motivated by contempt for any person.

In a reply to Hart, he stated that the restriction of a person's liberty should only be interpreted as a denial of equality 'when the constraint is justified in some way that depends on the fact that others condemn his convictions or values'. For example, he characterised the decision of governments to regulate pornography as having been motivated by the judgment that certain materials are 'unsuitable to human beings of the best sort', 55 rather than a good-faith effort to prevent injustices believed to flow from pornography.

And in his exchange with Catherine MacKinnon, he nakedly asserted that legislators "disguise their repulsion as concern that pornography will cause rape, or silence women, or harm the women who make it". Even in the case of truly paternalistic legislation not simply those cases misidentified by Dworkin as paternalistic , justifying arguments can be made on the grounds of justice rather than contempt for the individual or the imposition of "morality". Paternalistic concern, on such a formulation, is not a matter of contempt, but a requirement of justice.

To summarize the exchange with Dworkin, the phrase 'equal concern and respect', without any further explanation or qualification, is ambiguous between vastly different theories of political morality which would justify very different sorts of limitations on government action. Given this indeterminacy, the bare injunction to treat persons with equal concern and respect provides no guidance to judges or to legislators wishing to enact constitutionally valid legislation, and certainly no justification on its own for a constitutional principle of government neutrality towards competing conceptions of what makes a good life.

Dworkin's additional requirement that government not impose any constraint by virtue of an argument that a citizen could not accept, fails because it rests on the unreasonable premise that all persons have an unconditional right to self-respect and a right not to have the basis of that self-respect challenged by the state. Furthermore, it either tacitly requires judgments of reasonableness that it formally rejects, or it mandates a degree of neutrality towards the good which requires government to acquiesce to some forms of injustice.

Self-respect and "accepting an argument " in Canada. Returning to the development of Canadian anti-discrimination law, when the Supreme Court of Canada overhauled its equality rights doctrine in it adopted although once again without attribution some of the features of Dworkin's middle-period work addressed above. This change bears at least a superficial similarity to Dworkin's middle period criterion that persons be able to accept an argument without abandoning their sense of self-worth.

The similarity to Dworkin is evident, for example, in Iacobucci J's meditation on the meaning of human dignity:. What is human dignity? There can be different conceptions of what human dignity means. For the purpose of analysis under s. T he equality guarantee in s.

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimatelyfeels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

The Court's explanation of what sorts of arguments violate a person's human dignity was in part framed in terms of a claimant's feelings, or psychological reaction, in response to those arguments. To this extent, the test was subjective. It was not, however, radically subjective, such that a claimant's subjective experiences would be sufficient for a finding of discrimination. Instead, the Court held that 'the appropriate perspective is subjective-objective': Although I stress that the inquiry into whether legislation demeans the claimant's dignity must be undertaken from the perspective of the claimant and from no other perspective, a court must be satisfied that the claimant's assertion that differential treatment imposed by legislation demeans his or her dignity is supported by an objective assessment of the situation.

All of that individual's or that group's traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity. So the Court must evaluate the reasonableness of the claimant's feelings.

The underlying logic of Law, as developed in Granovsky, is that if s 15 1 protects only 'legitimate aspirations to human self-fulfilment', then the Court must be authorised to assess, and discard, illegitimate aspirations. But once the Court assesses the reasonableness of the claimant's perspective, using criteria which may be irrelevant to the claimant, it is no longer committed to the perspective actually held by the claimant.

As formulated, this subjective-objective component of the test for discrimination was incoherent. It is simply not possible to undertake the investigation into whether legislation demeans a person's dignity both from the 'perspective of the claimant' and from a reasonable person standard i. Formally, the subjective-objective Law test is what Joseph Raz describes as 'semi-objective': one which turns not only on how people actually feel but also how it is reasonable for them to feel. But it is difficult to see how the claimant's belief that he or she has been subject to indignity helps to resolve the question of whether or not he or she has, in fact, been subject to indignity.

There seems to be no reason why a claimant's perspective on the truth of a moral proposition should be taken as an indicator of its truth, unless the truth of moral propositions varies among persons, a proposition which the Court does not seem to accept. In Lavoie v Canada, for example, where Bastarache J ostensibly applies the subjective branch of the test, it is apparent that it is an objective operation, in the sense that the claimant is required to justify his or her experiences of alleged discrimination using the standard of the reasonable person:.

In this case, the claimants submit that a reasonable person similarly-situated would believe that the reduced opportunity of working in the federal Public Service fails to account for their individual capacities and, moreover, implies they are less loyal and worthy of trust. The existence of a s. The claimant's perspective provides no additional resources for determining the truth or falsity of a moral proposition such as "this statute interferes with a person's legitimate aspiration to self-fulfilment.

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Feelings of self-worth are not a helpful guide to determining whether someone has, in fact, been treated with equal concern and respect. As Raz points out ' s ome people are deluded into believing that the government takes their interests fully into consideration, when in fact the government and the law are systematically biased against them. On the other hand, some people feel discriminated against or oppressed when in fact they are not'. So while the Court persisted in describing the Law test as 'subjective-objective', it was applied as though it were an entirely objective, "reasonable person" test.

The "subjective-objective" test, as described by the Court, was an inherently unstable device; the subjective component of the test could not do the work that it purported to do, given that persons can be mistaken about whether they have or have not been discriminated against, and that judges must ultimately determine whether a person's self-understanding is reasonable or harmful. After a decade of struggling with the Law test, the Supreme Court of Canada abruptly abandoned the rule that claimants establish an infringement of their dignity. Instead, the test had proven to be 'confusing and difficult to apply', and had 'proven to be an additional burden on equality claimants'.

It is too early to be sure as to what precisely the Court abandoned in its s. It could be that the Court has intended to retain the requirement that governments enact no law that threatens the self-acceptance of persons, and has merely discarded the evidential burden that was placed on the claimant.

See a Problem?

But what of the language of dignity? While the dignity-based rule or action-norm was withdrawn, the concept of dignity nevertheless remains in play in s. So the conception of dignity adopted by the Court retains a controlling force over the scope of s. Whether s. Given that dignity remains a pivotal concept in Canadian equality law, there remains a need for frank discussion about the commitments that the Court is making through its references to dignity.

When the Court in Kapp accepted the criticism that dignity is 'an abstract and subjective notion', 84 this is the closest that it has come to admitting that dignity is a contested concept, and that in Law and elsewhere, it failed to give a convincing argument of how it is that the conception of dignity that it adopted was an appropriate fit with Canadian law.

Although lacobucci J, in Law v Canada recollected the Court's longstanding doctrine that the Charter be interpreted by reference to 'the historical origins of the concepts enshrined', 85 the Court made no such effort to canvass the origins of the concept of dignity. Given that Law was the first s 15 1 case in which the Court actually used the concept of human dignity, and the first case in which it ventured to articulate what that concept means, one would have expected a careful historical, philosophical, and theological account of the concept, and a justification of the particular conception adopted by the Court.

Surprisingly, the Court simply acknowledged that 'there can be different conceptions of what human dignity means' and then offered two propositions: 1 that human dignity 'means that an individual or group feels self-respect and self-worth', and 2 that human dignity is 'concerned with the realization of personal autonomy and self-determination'.

The Court's understanding of what it means to respect equality and human dignity, expressed in language which emphasises individual choice and action, and feelings of self-respect, appears to be some distance from the traditional conception of human dignity. Traditionally, 'human dignity' denotes a status possessed by all persons and possessed by them equally, independent of the many inequalities in mental and physical ability.

It is, in this sense, objective. A self-perception of having suffered insult or degradation is neither necessary nor sufficient, on the traditional understanding, to establish that a person's equal human dignity has been disregarded. In this way, the debate over competing conceptions of dignity replays the debate over what is entailed by the requirement that persons be treated with equal concern and respect. The Court has never defended the autonomy-based conception of dignity that it adopted, and it has barely acknowledged that it selected this conception from among others. Accordingly, it is necessary that the Court acknowledge and defend these highly controversial acts of constitutional construction, and that government, the academic community, and other persons subject to Canadian law, debate whether this is the Constitution that Canadians enacted or that Canadians want.

The Court's abandonment of the dignity test in Law will likely shift the gaze of Canadian constitutional scholars away from the concept of dignity. This is unfortunate, given that the concept remains live in Canadian constitutional law, and that the particular conception of dignity adopted by the Court remains important and controversial. Pennock and J. Chapman eds.

It must not distribute goods or opportunities unequally on the ground that some citizens are entitled to more because they are worthy of more concern. It must not constrain liberty on the ground that one citizen's conception of the good life of one group is nobler or superior to another's', R. Andrews n 1 Mclntyre, J. Mclntyre, J. It should be noted that McLachlin J's analogy to religion was stated summarily and appears in the judgment to be an afterthought.

If one were to follow the analogy to its logical conclusion, any law or institution which reflects a moral judgment passed into society through religious belief arguably, most of the Criminal Code , could yield a plausible claim of discrimination by those who dissent. But see R. The inclusion of sexual orientation as an analogous ground of discrimination has blurred the meaning of personal characteristic somewhat. As a ground of discrimination, "sexual orientation" is a phrase which seems capable of bearing more than one meaning, and in particular, is ambiguous between: 1 a person's inner disposition towards say homosexual sex, and 2 a person's public acts which are intended to actively promote within society the acceptance and normalisation of say a gay or lesbian lifestyle.

It remains unclear whether the Court's interpretation of s 15 1 simply prohibits discrimination against gays and lesbians and others simply in being e. See Raz, J. In Dworkin, R. Ethics, as I use the term, includes convictions about which kinds of lives are good or bad for a person to lead, and morality includes principles about how a person should treat other people' fn 1. The 'old problem' which Dworkin addresses is whether 'conventional ethics should be enforced through the criminal law'. By characterising the problem in this way, Dworkin begs the central questions: Are the matters which are the subject of legal regulation truly victimless?

Are the moral judgments that these forms of conduct are corrupt and self-destructive made as conventional? Instead, they argue that government's jurisdiction is limited to matters which impact on justice and peace within the political community. On this view one of venerable antiquity , truly private immoralities, because they do not impact on justice and peace, are not within the jurisdiction of government; Finnis, J. George ed. Similarly, Raz states elsewhere ' Cohen ed. Ibidem [59]. Canada SCC This subjective view must be examined in context, that is, with a view to determining whether a rational foundation exists for the subjective belief".

At issue in Lavoie v Canada is whether preferential treatment given to Canadian citizens in careers in the public service, pursuant to the Public Service Employment Act RSC c P s 16 4 c , violates s 15 1 of the Charter. A plurality held that preferential treatment of citizens violates s 15 1 , but is justified under s 1. It was evident in Law that the Court was uncomfortable with the appearance of making moral evaluations and imposing 'community prejudices' in s 15 1 adjudication:. I am aware of the controversy that exists regarding the biases implicit in some applications of the "reasonable person" standard.

The appropriate perspective is subjective-objective. Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purpose of s. Ibidem, p. The principles of human dignity comprise two principles: 1 the principle of intrinsic value, which holds that human lives may succeed or fail and that every life has 'intrinsic potential value', and 2 the principle of personal responsibility, that holds that a person has 'special responsibility for realizing success in his own life, a responsibility that includes exercising judgment about what kind of life would be successful for him'.

Dworkin, R. Beyond just a consideration of 'historical origins', Dickson J also mentioned 'linguistic' and 'philosophic' contexts p as a guide to interpreting the Charter. There is little doubt that the idea of the inherent worth and dignity of each individual human person originated in our political history as an insight of Christianity and the democracy of Periclean Athens. It gained ascendancy with the spread of Christianity and the Christian belief that every person is unique and irreplaceable as a child of God. While the association with Christianity deserves acknowledgement, it is not an insight that is exclusive to Christianity.

It is shared with other religious traditions and is in that sense religiously inclusive or "pluralist". It is also embraced by those who do not adhere to any religious faith or tradition. For that reason it is properly characterized today as a cultural rather than religious norm. That clearly is the context in which it is formulated by Dickson J.

But it remains a normative or moral proposition. Servicios Personalizados Revista. Similares en SciELO. Abstract Ronald Dworkin's theory of equality has exerted a strong gravitational force over Canadian equality rights doctrine for more than two decades. Criminalisation, he realises, is motivated by a belief that such sexual relationships are predatory, deviant, and gravely immoral.

This kind of pedophile cannot possibly accept that judgment. Does the law treat this kind of pedophile with requisite concern and respect? This pedophile would say it does not. The pedophile does not accept the conclusion that consensual sex with children harms them. To the contrary he believes both that it is beneficial to them and that they also believe it to be beneficial. On Dworkin's formulation of the requirement of equal concern and respect, government must impose no constraint by virtue of an argument which the pedophile could not accept without abandoning his sense of equal worth.

But then the moral evaluation which Dworkin tried to rule out earlier with his requirement of state neutrality returns in the question of which core pursuits are reasonable and which are harmful. The assessments of harm and reasonableness cannot be neutral even to the degree that Dworkin requires it. While Dworkin acknowledges the conceptual possibility that legislation that condemns an action because of judgments about its harm or wrongness could be motivated by a reason other than the contempt of the law makers for the persons whose actions are thereby restrained, he seems sceptical about the existence of such cases in the wild.

Dworkin supposes that persons seek to prohibit vicious conduct, not because the conduct has been judged to be harmful in some way, but simply because it is conduct enjoyed by 'people of bad character'.

Equality of autonomy

While Dworkin does not provide a definition of "personal morality", 45 he seems to use the phrase to indicate a domain of "private" actions and pursuits that are self-regarding ie that are victimless. Dworkin is clear that choices in the sphere of private morality may impact on the "moral environment" and thus make it more difficult for the majority to achieve the type of environment that it may perhaps correctly judge to be in the best interests of all.

But Dworkin resists characterising the majority's concern for the moral environment as a concern for justice. Instead, he either characterises it as a Devlinite concern to preserve and promote a common code of morality for the purpose of preserving a common culture qua common , or a concern to force people to live good lives. There is, however, a more compelling option.

The legislator or citizen who supports legislation that imposes restrictions on others may be motivated not only by a judgment about what is right or wrong, but also by a judgment about what is necessary to maintain a just political order. It is not self-evident that the acts that Dworkin believes ought to be protected as a matter of moral independence are, in fact, victimless matters of "personal morality".

Many of the Canadian laws which are of the type criticised by Dworkin are not motivated by a concern to uphold "morality" or "decency", but rather are motivated by a concern for interpersonal justice; in particular, those judgments about what assistance the government owes to individuals. In the Canadian context, laws regulating or prohibiting abortion, assisting acts of suicide, and obscenity that have been subject to constitutional review to take three examples of conduct which Dworkin has argued ought not to be criminalised because of their private nature have all been defended by the Crown on the basis that these acts are not private, but have victims whom the government has a duty to protect.

The interpersonal nature of some types of purportedly "private" conduct becomes apparent when one takes into account the state's function in assisting with the education and development of children. Consider, for example, the justification given by the AG Nova Scotia for the criminalisation of solicitation for the purposes of prostitution: i. Rather, the harm is that street solicitation creates an environment where children are at risk of developing an understanding of sexuality in which sexual relationships lack mutuality and dignity.

At least some actions of adults which present a corrupting influence on children are, in principle, within the mandate of the state to prohibit, not because it has authority to somehow coerce adults into virtue expressed by Dworkin as "personal morality", "taste", "decency", or "ethics" , but because of the assistance owed by the state to individuals and families as a matter of justice. Dworkin is, of course, familiar with the argument that the elimination, or legal regulation, of some opportunities need not have been motivated by contempt for any person.

In a reply to Hart, he stated that the restriction of a person's liberty should only be interpreted as a denial of equality 'when the constraint is justified in some way that depends on the fact that others condemn his convictions or values'.


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For example, he characterised the decision of governments to regulate pornography as having been motivated by the judgment that certain materials are 'unsuitable to human beings of the best sort', 55 rather than a good-faith effort to prevent injustices believed to flow from pornography. And in his exchange with Catherine MacKinnon, he nakedly asserted that legislators "disguise their repulsion as concern that pornography will cause rape, or silence women, or harm the women who make it". Even in the case of truly paternalistic legislation not simply those cases misidentified by Dworkin as paternalistic , justifying arguments can be made on the grounds of justice rather than contempt for the individual or the imposition of "morality".

Paternalistic concern, on such a formulation, is not a matter of contempt, but a requirement of justice. To summarize the exchange with Dworkin, the phrase 'equal concern and respect', without any further explanation or qualification, is ambiguous between vastly different theories of political morality which would justify very different sorts of limitations on government action. Given this indeterminacy, the bare injunction to treat persons with equal concern and respect provides no guidance to judges or to legislators wishing to enact constitutionally valid legislation, and certainly no justification on its own for a constitutional principle of government neutrality towards competing conceptions of what makes a good life.

Dworkin's additional requirement that government not impose any constraint by virtue of an argument that a citizen could not accept, fails because it rests on the unreasonable premise that all persons have an unconditional right to self-respect and a right not to have the basis of that self-respect challenged by the state.

Furthermore, it either tacitly requires judgments of reasonableness that it formally rejects, or it mandates a degree of neutrality towards the good which requires government to acquiesce to some forms of injustice. Self-respect and "accepting an argument " in Canada. Returning to the development of Canadian anti-discrimination law, when the Supreme Court of Canada overhauled its equality rights doctrine in it adopted although once again without attribution some of the features of Dworkin's middle-period work addressed above.

This change bears at least a superficial similarity to Dworkin's middle period criterion that persons be able to accept an argument without abandoning their sense of self-worth. The similarity to Dworkin is evident, for example, in Iacobucci J's meditation on the meaning of human dignity:. What is human dignity?

Sovereign Virtue — Ronald Dworkin | Harvard University Press

There can be different conceptions of what human dignity means. For the purpose of analysis under s. T he equality guarantee in s. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimatelyfeels when confronted with a particular law.

Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law? The Court's explanation of what sorts of arguments violate a person's human dignity was in part framed in terms of a claimant's feelings, or psychological reaction, in response to those arguments. To this extent, the test was subjective. It was not, however, radically subjective, such that a claimant's subjective experiences would be sufficient for a finding of discrimination.

Instead, the Court held that 'the appropriate perspective is subjective-objective': Although I stress that the inquiry into whether legislation demeans the claimant's dignity must be undertaken from the perspective of the claimant and from no other perspective, a court must be satisfied that the claimant's assertion that differential treatment imposed by legislation demeans his or her dignity is supported by an objective assessment of the situation.

All of that individual's or that group's traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity. So the Court must evaluate the reasonableness of the claimant's feelings. The underlying logic of Law, as developed in Granovsky, is that if s 15 1 protects only 'legitimate aspirations to human self-fulfilment', then the Court must be authorised to assess, and discard, illegitimate aspirations.

But once the Court assesses the reasonableness of the claimant's perspective, using criteria which may be irrelevant to the claimant, it is no longer committed to the perspective actually held by the claimant. As formulated, this subjective-objective component of the test for discrimination was incoherent. It is simply not possible to undertake the investigation into whether legislation demeans a person's dignity both from the 'perspective of the claimant' and from a reasonable person standard i.

Formally, the subjective-objective Law test is what Joseph Raz describes as 'semi-objective': one which turns not only on how people actually feel but also how it is reasonable for them to feel. But it is difficult to see how the claimant's belief that he or she has been subject to indignity helps to resolve the question of whether or not he or she has, in fact, been subject to indignity.

There seems to be no reason why a claimant's perspective on the truth of a moral proposition should be taken as an indicator of its truth, unless the truth of moral propositions varies among persons, a proposition which the Court does not seem to accept. In Lavoie v Canada, for example, where Bastarache J ostensibly applies the subjective branch of the test, it is apparent that it is an objective operation, in the sense that the claimant is required to justify his or her experiences of alleged discrimination using the standard of the reasonable person:.

In this case, the claimants submit that a reasonable person similarly-situated would believe that the reduced opportunity of working in the federal Public Service fails to account for their individual capacities and, moreover, implies they are less loyal and worthy of trust. The existence of a s. The claimant's perspective provides no additional resources for determining the truth or falsity of a moral proposition such as "this statute interferes with a person's legitimate aspiration to self-fulfilment. Feelings of self-worth are not a helpful guide to determining whether someone has, in fact, been treated with equal concern and respect.

As Raz points out ' s ome people are deluded into believing that the government takes their interests fully into consideration, when in fact the government and the law are systematically biased against them. On the other hand, some people feel discriminated against or oppressed when in fact they are not'.

So while the Court persisted in describing the Law test as 'subjective-objective', it was applied as though it were an entirely objective, "reasonable person" test. The "subjective-objective" test, as described by the Court, was an inherently unstable device; the subjective component of the test could not do the work that it purported to do, given that persons can be mistaken about whether they have or have not been discriminated against, and that judges must ultimately determine whether a person's self-understanding is reasonable or harmful.

After a decade of struggling with the Law test, the Supreme Court of Canada abruptly abandoned the rule that claimants establish an infringement of their dignity. Instead, the test had proven to be 'confusing and difficult to apply', and had 'proven to be an additional burden on equality claimants'. It is too early to be sure as to what precisely the Court abandoned in its s.

It could be that the Court has intended to retain the requirement that governments enact no law that threatens the self-acceptance of persons, and has merely discarded the evidential burden that was placed on the claimant. But what of the language of dignity? While the dignity-based rule or action-norm was withdrawn, the concept of dignity nevertheless remains in play in s.

So the conception of dignity adopted by the Court retains a controlling force over the scope of s. Whether s. Given that dignity remains a pivotal concept in Canadian equality law, there remains a need for frank discussion about the commitments that the Court is making through its references to dignity. When the Court in Kapp accepted the criticism that dignity is 'an abstract and subjective notion', 84 this is the closest that it has come to admitting that dignity is a contested concept, and that in Law and elsewhere, it failed to give a convincing argument of how it is that the conception of dignity that it adopted was an appropriate fit with Canadian law.

Although lacobucci J, in Law v Canada recollected the Court's longstanding doctrine that the Charter be interpreted by reference to 'the historical origins of the concepts enshrined', 85 the Court made no such effort to canvass the origins of the concept of dignity. Given that Law was the first s 15 1 case in which the Court actually used the concept of human dignity, and the first case in which it ventured to articulate what that concept means, one would have expected a careful historical, philosophical, and theological account of the concept, and a justification of the particular conception adopted by the Court.

Surprisingly, the Court simply acknowledged that 'there can be different conceptions of what human dignity means' and then offered two propositions: 1 that human dignity 'means that an individual or group feels self-respect and self-worth', and 2 that human dignity is 'concerned with the realization of personal autonomy and self-determination'. The Court's understanding of what it means to respect equality and human dignity, expressed in language which emphasises individual choice and action, and feelings of self-respect, appears to be some distance from the traditional conception of human dignity.

Traditionally, 'human dignity' denotes a status possessed by all persons and possessed by them equally, independent of the many inequalities in mental and physical ability. It is, in this sense, objective. A self-perception of having suffered insult or degradation is neither necessary nor sufficient, on the traditional understanding, to establish that a person's equal human dignity has been disregarded.

In this way, the debate over competing conceptions of dignity replays the debate over what is entailed by the requirement that persons be treated with equal concern and respect. The Court has never defended the autonomy-based conception of dignity that it adopted, and it has barely acknowledged that it selected this conception from among others. Accordingly, it is necessary that the Court acknowledge and defend these highly controversial acts of constitutional construction, and that government, the academic community, and other persons subject to Canadian law, debate whether this is the Constitution that Canadians enacted or that Canadians want.

The Court's abandonment of the dignity test in Law will likely shift the gaze of Canadian constitutional scholars away from the concept of dignity. This is unfortunate, given that the concept remains live in Canadian constitutional law, and that the particular conception of dignity adopted by the Court remains important and controversial. Pennock and J. Chapman eds. It must not distribute goods or opportunities unequally on the ground that some citizens are entitled to more because they are worthy of more concern.

It must not constrain liberty on the ground that one citizen's conception of the good life of one group is nobler or superior to another's', R. Andrews n 1 Mclntyre, J. Mclntyre, J. It should be noted that McLachlin J's analogy to religion was stated summarily and appears in the judgment to be an afterthought.

Representation offices

If one were to follow the analogy to its logical conclusion, any law or institution which reflects a moral judgment passed into society through religious belief arguably, most of the Criminal Code , could yield a plausible claim of discrimination by those who dissent. But see R. The inclusion of sexual orientation as an analogous ground of discrimination has blurred the meaning of personal characteristic somewhat.

As a ground of discrimination, "sexual orientation" is a phrase which seems capable of bearing more than one meaning, and in particular, is ambiguous between: 1 a person's inner disposition towards say homosexual sex, and 2 a person's public acts which are intended to actively promote within society the acceptance and normalisation of say a gay or lesbian lifestyle.

It remains unclear whether the Court's interpretation of s 15 1 simply prohibits discrimination against gays and lesbians and others simply in being e. See Raz, J. In Dworkin, R.

Theory in Action: Realism

Ethics, as I use the term, includes convictions about which kinds of lives are good or bad for a person to lead, and morality includes principles about how a person should treat other people' fn 1. The 'old problem' which Dworkin addresses is whether 'conventional ethics should be enforced through the criminal law'. By characterising the problem in this way, Dworkin begs the central questions: Are the matters which are the subject of legal regulation truly victimless?


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  3. See a Problem?.
  4. Equality - From Theory to Action | J. Baker | Palgrave Macmillan.
  5. Are the moral judgments that these forms of conduct are corrupt and self-destructive made as conventional? Instead, they argue that government's jurisdiction is limited to matters which impact on justice and peace within the political community. On this view one of venerable antiquity , truly private immoralities, because they do not impact on justice and peace, are not within the jurisdiction of government; Finnis, J. George ed. Similarly, Raz states elsewhere ' Cohen ed. Ibidem [59].

    Canada SCC This subjective view must be examined in context, that is, with a view to determining whether a rational foundation exists for the subjective belief". At issue in Lavoie v Canada is whether preferential treatment given to Canadian citizens in careers in the public service, pursuant to the Public Service Employment Act RSC c P s 16 4 c , violates s 15 1 of the Charter. A plurality held that preferential treatment of citizens violates s 15 1 , but is justified under s 1. It was evident in Law that the Court was uncomfortable with the appearance of making moral evaluations and imposing 'community prejudices' in s 15 1 adjudication:.

    I am aware of the controversy that exists regarding the biases implicit in some applications of the "reasonable person" standard. The appropriate perspective is subjective-objective. Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purpose of s.

    Ibidem, p. The principles of human dignity comprise two principles: 1 the principle of intrinsic value, which holds that human lives may succeed or fail and that every life has 'intrinsic potential value', and 2 the principle of personal responsibility, that holds that a person has 'special responsibility for realizing success in his own life, a responsibility that includes exercising judgment about what kind of life would be successful for him'. Dworkin, R. Beyond just a consideration of 'historical origins', Dickson J also mentioned 'linguistic' and 'philosophic' contexts p as a guide to interpreting the Charter.

    There is little doubt that the idea of the inherent worth and dignity of each individual human person originated in our political history as an insight of Christianity and the democracy of Periclean Athens. It gained ascendancy with the spread of Christianity and the Christian belief that every person is unique and irreplaceable as a child of God. While the association with Christianity deserves acknowledgement, it is not an insight that is exclusive to Christianity.

    It is shared with other religious traditions and is in that sense religiously inclusive or "pluralist".