The CANADA: Fundamental Rights - Essay Example

Fundamental rights include what is basic to each individual i.e. the right to life, equality and freedom. The CANADA was primarily set up as a union of states to embrace a stronger region through economic integration, morals and principles; however the question of fundamental human rights has always escaped the equation and left to the domestic nations' adherence to international documents, such as the Canadian Bill of Rights and UNDHR. Yet it is possible that the case law and legislation enacted by the CANADA throughout its history and especially the late 20th Century has pointed towards the distribution of wealth by ensuring that there is a minimum wage. Therefore this discussion will begin by considering human rights theory and then specifically consider the laws of the Canada in order to determine if fundamental rights are being respected with a minimum wage; especially in regards to the equality of women and poorly paid racial groups. Peter Jones in Rights contrasted the difference between natural and human rights1. The concept of natural rights is tied up in the idea where the citizens gave up to the governing body for the good of law and order and in return the governments protected and upheld within the law, i.e., Constitutions. Therefore the argument of natural rights has now become so diluted that it is no longer an effective model. Human Rights as theory admits from the outset they are intangible and not from nature, therefore one cannot empirically observe or measure them, as Margaret MacDonald2 criticized the argument from nature. Human rights, as described by Jones, are prescribed by the fact of being human and part of humanity3. It picks up on the egalitarian theory of equality, whereby human beings are equal and therefore are afforded these basic rights. The arguments for these rights come from arguments, such as self-evidence, human worth and moral worth. The basis of the core rights theorists is the work of Immanuel Kant. Kant's argument, which is more commonly known as Kant's ethic4, tries to get away from the needs, desires and wants, which are the basis of the rights from the state of nature. Instead it is an a priori ethic, which transcends all needs, desires, wants, purposes and end. In other words it is not part of human construction. How does Kant argue that this is an all-encompassing ethic outside of societal conventions, without the aid of a divine being Kant argues that it is the individual's ability to reason and autonomous will that is the basis of his a priori argument. Shestack5 describes the basis of Kant's argument as; 'rights then flow from the autonomy of the individual in choosing his and her ends, consistent with a similar freedom for all... In short, Kant's imperative is that the central focus of morality is 'personhood', namely the capacity to take responsibility as a free and rational agent for one's system of ends'.6 This ethic was one of the most influential arguments for universal human rights, in response to Nazism, eugenics and ethnic cleansing, which can be illustrated in the Universal Declaration of Human Rights with words such as inherent, inalienable and equality applied to rights and the basis of these rights are the foundation of freedom, justice and peace in world. Kant's theory is the basis of the core theorists and has been very influential in the drafting of the 20th Century human rights treaties and legislation. However how do we measure what should be included in these universal rights The answer to this question is at the heart of this discussion for the international treaties and human rights legislation does not seem to be meeting the needs to fulfil Kant's ethic as Evans argued modern human rights law is too legalistic. This is a core rights theory, which purports these rights transcend statehood therefore automatically requiring the state to extend these rights to all individuals and arguably future generations. Rawl's, on the other hand, in his thesis for engendering human rights states that justice7 is the prime basis of all government and to ensure justice human rights are the obvious means and end to ensure justice is fulfilled. Rawl's theory is based on a few key ideas, which are the rights and duties of government/institution of society and the burdens and benefits of citizens co-operating. Rawls bases his theory that each individual has an inherent and inviolable being set in justice - this being cannot be overridden for the welfare of the society. This theory does not fall foul to the arguments against modern utilitarianism. Rawl's does use the social contract fiction of Hobbes and Locke, however the basis of moving from ignorance (state of nature) is reason and this reason set up on principles of justice that his social contract is based upon. These principles are; 1) that each person has basic rights and liberties in accordance with freedom; and 2) there is distributive justice, where inequalities are restrained by the greatest benefit of least advantaged and each person has the condition of fair equality of opportunity. These principles cannot be derogated for the public good and liberty is the supreme principle. Rawl's theory is very important when looking at human rights theories because it begins to tackle the universality of human rights based on justice, as well as the inequalities apparent in society. Cahn8 looked at justice from the flip-side of Rawl's, in other words humanity needs to learn from its bad experiences and ensure that human rights violations of the past are not repeated. Shestack summarizes this theory as 'justice is the active process of remedying or preventing what arouses the sense of injustice. An examination of the instances which will be considered injustice thereby allows a positive formulation of justice'.9 Theorists such as McDougal10 who believe that human rights are the ends of ensuring human dignity and worth and important to ensure that co-operation in the society is in the aid of dignity and human rights. The theorists have made a list of basic rights, needs and demands to ensure this dignity; however the top needs are respect, power, autonomy These are the basic rights and freedoms that other human rights theories are aiming for. The basis for Dworkin's endorsement of human rights is that every government must ensure that its citizens are given equality of respect and concern. Therefore the end of Dworkin's means (of respect and concern) is basic human rights and freedoms. If the government does not have the means then there is no valid argument for these basic rights and freedoms in the framework of Dworkin's theory. This theory unlike McDougal's argument from dignity is not individualistic but in a more utilitarian frame and hence is promoting the general welfare of the society. One of the problems with human rights is that they can be afforded in legislation; however are these rights substantive in nature, i.e. affording specific rights that actually ensure that systemic change occurs and not subject to inherent discrimination and bias. Therefore if one considers the inequalities in respect to women and feminist theories it poses a good illustration between laws that are purely decorative and those that play a role in protecting substantive fundamental rights. Inequality is a reality for women at all levels of life, in the home, in the labor market and as a citizen of the state. The laws of liberal democratic states have set up value neutral laws that are based in an androgynous view of the sexes; however this is not the reality of situation, because the state, family and labor market is based on systemic discrimination of women, i.e. men have created the system and have inherently based the position of women, at best as second class citizens and at worst as the property of men. MacKinnon approaches feminism from a standpoint that the laws that evoke equality between men and women are not enough, because they rely on the sameness principle between men and women and tries to compensate women by saying that men and women should be treated the same. However this is not enough because of the physical and biological differences which causes a problem, because the social construction of these differences that have caused an inherent inequality between men and women in the current social, cultural, political and legal system.11 Mackinnon also indicates the current theoretical approaches to equality and rights are not sufficient enough because they fail to recognize that the legal and judicial system is entrenched in a male domination. Hence trying to make women the same as men, rather than recognizing that men and women are different but should have basic rights that protect this difference. MacKinnon also supports leveling the playing field by giving women advantages12 over men in order to counter the male dominated system13. In short MacKinnon argues that the creating of laws to make women equal to men will not compete with the inherent inequalities in Western legal systems, in fact these laws will entrench the inequalities further and support the power men have in society14. The CANADA has held that women and men be treated equally and laws should be instituted to ensure economic equality is upheld. This has included carer's allowance's, protection of one's employment and the right to take days off for a sick child. In addition men and women's pay has to be equal and the laws should protect this. Nozick and Rawls15 are examples of two extremes in liberalist thought; Nozick represents the true laissez-faire liberals whereby redistribution is against equal opportunities and the only way to present a just government is to follow free-market principles. Rawls, on the other hand, argues that re-distribution can be fair as long as it is just, but would not suggest quota systems or the socialist democratic state of the Scandinavian nations. This section will end by comparing the two theorists. There are other theorists such as Kymlicka16 who argue that re-distribution is the only manner of ensuring that inherent inequalities are eradicated in the political system. Such lines of arguments come from feminist thinkers, such as MacKinnon17. At the moment because the state and economic situation is only playing lip service to equality this re-enforces the inequality in the family where the wife is not only a career women, but also a cleaner, caretaker, nanny and a personal servant to her husband. In the EU although there is the principle of proportionality for domestic laws and cultures to be protected, there is also the principle of non-discrimination which holds that the sexes, cultures and religions should not be treated differently and that all actions need to be taken to ensure that all are treated equally. Therefore this raises questions whether the rights that the CANADA enforces are substantive or playing mere lip service to the idea of fundamental rights within this system of governance. Foucalt's18 and Stoler's theory provides more than just a discourse on the interactions of the male and female, within the public and private sphere. Both also agree that race within colonial nations also mirror the male and female power struggle in patriarchal societies. In fact feminist theory has considered the core problems in the legal and political systems, resulting in a discourse on the inherent inequalities of these systems that favor men over women19. Therefore this discussion will consider two key areas of feminist theory which are; equality of rights; and the equality in the law. In order to understand the contributions that feminism has made to political and legal theory the inequalities and injustices that feminists are aiming to eliminate must be considered. The main area of feminist theory that this discussion will consider is liberalist and Western feminism; however it is important to note that there are non-liberalist and Eastern theories of feminism but to explore these feminisms is beyond the scope of this essay. It will then consider the case study of feminist theory and the blurred distinction between the public and the private in general and then consider whether the approach taken by radical feminists goes too far and reduces the accountability of feminist theory. The following section will consider an alternative approach within feminist theory to ensure that equality and accountability is brought into the theory and then the approach to legal, social and political problems such as the state's approach to rape as a means of control is taken seriously. In Patriarchal Societies feminists argue that the body and its traditional assignations of wife and body have become a form of control. Western feminists, such as Rich argues that rape and violence against women are central to the control of women and their bodies, especially when the advancement of women in the public sphere is de-stabilizing this power base: Patriarchy is a familial-social, ideological, political system in which men - by force, direct pressure or through ritual, law and language, customs, etiquette, education, and division of labour, determine what part women shall or shall not play, and in which the female is everywhere subsumed under the male. It does not necessarily imply that no woman has power, or all women in a given culture may not have certain powers.20 Stoler introduces an interesting connection between women's bodies and culture; however the modern restraints on women and the body are not new, i.e. history has restrained the body in differing ways. The modern era has heralded freedom in the sense of the mind; however culture has enslaved women using their body again, i.e. the reproductive functions were the prison of the past, superficial beauty is the prison of today. This imprisoning of the mind by using the body is a very old weapon used by the dominating male hierarchical system in fear that women can no longer be so easily controlled. If one considers cultures, such as Asia and the Middle East, being too fat or having a big nose is not a thing of consequence; because women are still imprisoned by their reproductive functions. The male dominated system of the West has been forced to alter cultural images and notions to further dominate women; therefore culture has had to alter by forcing women into a new box, i.e. an underfed, tall, big busted woman. The war waged on women's bodies is first a conflict over shape and size, over the terrain of our bodies, played in a deeply entrenched cultural taboos and a powerful dictate against women taking up space and claiming room of our own.21 This statement of Rice's sums up the conflict between the advancement of women and the restraints constructed by the male dominated culture, which has to adapt to the advancement of women in the late 20th and 21st Century. Rice is correct in her evaluation of the male dominated culture adapting to imprison women from declaring their own rights and space. Foucault22 has provided a discourse that has gone farther than just making women equal to men or races equal, by understanding that political and legal theory has to recognize the structural inequalities between men and women and between different races and society needs to try and eliminate these inequalities through various different approaches. In other words society has to compete with the entrenched inequalities that history and society has created. However feminism has provided a very important analysis of the legal system and theory by recognizing that power is inherent in the ruling group; where the only way to balance this power is to identify and eliminate the inequalities that afford the ruling group power. This is also applicable to class, caste and race inequalities and if an approach can be made in legal theory to ensure that there is a redistribution of historical burdens and benefits to disadvantaged classes then there would be an effective law of equality. In fact in some jurisdictions such as Canada there was no legal action of sexual harassment until 1989 with the case of Janzen v Platy Enterprises23. If there are prob ws of women this illustrates the problem with the Therefore it is necessary for this systemic discrimination to be tackled by re-distributive justice, which feminists such as Mackinnon24 purport. lems in defining and prosecuting sexual harassment because of the traditional vie Inequality is a reality for women at all levels of life, in the home, in the labor market and as a citizen of the state Stoler argues. In a similar way, as Foucault argues, race within colonial nations. The laws of liberal democratic states have set up value neutral laws that are based in an androgynous view of the sexes; however this is not the reality of situation, because the state, family and labor market is based on systemic discrimination of women, i.e. men have created the system and have inherently based the position of women, at best as second class citizens and at worst as the property of men. This has made the theory of re-distribution key to creating equality economically, socially and politically for women. Therefore this discussion will consider the theories of re-distribution and then apply them to women's social and political situations, which then should cause changes in women's social image and therefore create a situation of equality in the family. The core thinking of Nozick25 is the entitlement theory whereby there are three principles which are; the transfer principle; the acquisition principle; and the rectification principle. It must be stressed that Nozick's liberalism is entrenched in the theory of natural and core rights as set out originally be Locke. Therefore all men are created equally as derived from the state of nature but in order to create a civil society men contracted for a just system of governance with essential human rights. This is the traditional theory of the relationship between the market and the state; however this value-neutral approach fails to create equality for women. The problem of inherent inequality is because such a theory based on the free market would view re-distributive actions by the government as unjust. The main problem for this thinking is the original premise whereby Nozick assumes all people began as equals, because the present Western society has been created primarily by white men, therefore for there to be equality. Therefore inequality is the key term that needs to be discussed when contemplating the validity of re-distributing resources. Re-distribution can be done by either handing out state benefits of money, housing or material items or by providing more opportunities to those that are in disadvantaged positions. Nozick and Rawls26 are examples of two extremes in liberalist thought; Nozick represents the true laissez-faire liberals whereby redistribution is against equal opportunities and the only way to present a just government is to follow free-market principles. Rawls, on the other hand, argues that re-distribution can be fair as long as it is just, but would not suggest quota systems or the socialist democratic state of the Scandinavian nations. This section will end by comparing the two theorists. There are other theorists such as Foucault and Stoler who argue that re-distribution is the only manner of ensuring that inherent inequalities are eradicated in the political system. Bibliography: Primary Texts Michel Foucault. Two Lectures pp. 200-221. Culture/Power/History Ann Laura Stoler. Carnal Knolwedge and Imperial Power: Gender, Race and Morality in Colonial Asia. pp. 13-36. The Gender/Sexuality reader. Ed. Roger Lancaster and Micaela di Leonardo Secondary Texts African Canadian Legal Unit, July 2002, "A Report on the Canadian Government's Compliance with the International Convention on the Elimination of All Forms of Racial Discrimination", can be found at: http://www.aclc.net/antiba_employment.htm J. Bridgeman & S. Milns (1998) Feminist Perspectives on Law: Law's Engagement with the Female Body, London, Sweet & Maxwell R. Crompton & K, Sanderson (1990) Gendered Jobs & Social Change, London, Unwin Hyman The Constitution Press Unit (UK), "Legal Change Could allow Quotas for Women" Press Release, June 22nd 2000 which can be found at http://www.ucl.ac.uk/constitution-unit/files/preleases/wompress.htm S. Duncan (1994) "Disrupting the Surface of Order and Innocence: Towards a Theory of Sexuality and Law" 2 Feminist Legal Studies 3 M.J. Frug (1992) "A Postmodern Feminist Legal Manifesto (An Unfinished Draft)" 105 Harvard Law Review 1045 E. Jackson (1992) "Catharine MacKinnon and Feminist Jurisprudence: A Critical Appraisal", 19 Journal of Law and Society 195 Helena Kennedy, 2005, Women and Justice: Eve was Framed (2nd Edition), Vintage, London Kymlicka (2002) Contemporary Political Philosophy: an Introduction (2nd Edition), Oxford, Oxford University Press C.A. MacKinnon (1983) "Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence", 8 Signs 635 C.A. MacKinnon (1987) Feminism Unmodified: Discourses on Life and Law, Cambridge Mass, Harvard University Press C.A. MacKinnon (1989) Toward a Feminist Theory of the State, Cambridge Mass, Harvard University Press Marsh D & Stoker G, 2002, Theory and Method in Political Science, Palgrave MacMillan Maynard & Winn, 1997, Women, Violence and Male Power, in Robertson & Richardson (eds), 1997, Introducing Women's Studies, Palgrave, London Nozick, 1978, Anarchy, State and Utopia, Blackwell Rawls, 1973, The Theory of Justice, Oxford University Press Carla Rice Out from Under Occupation: Transforming Our Relationship with Our Bodies in Amin et al, 1999, Canadian Women's Studies: An Introductory Reader Inanna, Toronto Adrienne Rich, 1986, Blood, Bread and Poetry, WW Norton, New York Adrienne Rich, 1977, Of Women Born: Motherhood as Experience and Institution, Virago, London Diane Richardson, 1997, Sexuality and Feminism, in Robertson & Richardson (eds), 1997, Introducing Women's Studies, Palgrave, London Read More