Canadian History - Economic Inequalities?

[Sean Hayward]

We are going around and around in useless hypothetical situations that contribute nothing to the discussion. Our positions are the same to the extent that we both believe that all people have (or should have) rights. Our positions diverge in that I say it is up to the society to define what those rights are specifically, and you say rights should be defined by some "objective" theory of "natural rights". But who, if not society, is to define what constitutes a right?

No, I don't think a society would be justified in limiting rights almost entirely. I phrased that poorly, I admit. But a society would be justified in defining the rights of its members in different ways and to different extents than other societies. Unequal rights would not be justified because that is an issue integral to the rule of law, which is the foundation of rights and constitutionalism.

I don't understand your position that allowing society to determine the rights of its members is "tempting fate" and that the people are "ill-informed sheep". What would you suggest instead? We don't live in centuries past, where abuses of rights were common. We live in a modern democracy.

Your last point demonstrates exactly why a constitution, and the rights contained therein, must be amendable based on societal consensus. Slavery was accepted by society for thousands of years. It became increasingly unacceptable through the years until countries began abolishing it. The consensus was forming for the abolition of slavery in the United States. If rights were absolutely inflexible, as you suggest, then that societal consensus would mean nothing and slavery would continue forever.

[Renegade]

But who, if not society, is to define what constitutes a right?

IMO, Natual Law, anything more should be implemented as a law, and not classified as a right.

No, I don't think a society would be justified in limiting rights almost entirely. I phrased that poorly, I admit. But a society would be justified in defining the rights of its members in different ways and to different extents than other societies.

IMV, you shouldn't be using the word "rights" to define the concept you are taking about. A more fitting word would be "privilidges"since they are awarded, and can be taken away at the discresion of society. IMV, a "right" is an entitlement when cannot (or should not) be taken away. IMV, the constitiution should guarantee rights, law is used to extend priviledges.

Unequal rights would not be justified because that is an issue integral to the rule of law, which is the foundation of rights and constitutionalism.

I'm not following your explaination at all. Why is it an " issue integral to the rule of law"? Please explain.

I don't understand your position that allowing society to determine the rights of its members is "tempting fate" and that the people are "ill-informed sheep". What would you suggest instead? We don't live in centuries past, where abuses of rights were common. We live in a modern democracy.

The reason it is tempting fate is you are making judgements about what should or should not be considered a "rigtht" and codifing it in a constitution based upon your assumption of reasonableness of the population based upon the current populaton and make-up and attitudes. You are not looking at either the past or the future to examine what is possible. It is certainly possible o have a radicalized population which could have a narrow view of rights. It has happened in the past, and there is nothing to indicate such a situation would not happen again. That people are "ill-informed" sheep is simply my opinion based upon ancedotal evidence. I bet if you asked 10 random adults in society what a right is and why we should have them, you wouldn't get a satisfactory explaination from 9 of the 10. People simply don't give the issue much though so I have no confidence in leaving the issue of determining rights in their hands.

Your last point demonstrates exactly why a constitution, and the rights contained therein, must be amendable based on societal consensus. Slavery was accepted by society for thousands of years. It became increasingly unacceptable through the years until countries began abolishing it. The consensus was forming for the abolition of slavery in the United States. If rights were absolutely inflexible, as you suggest, then that societal consensus would mean nothing and slavery would continue forever.

Not at all. If rights were inflexible, it would have been recognized from the outset that slavery violated the natural right of slaves to be free. IOW, there would have been no flexibilty to violate the freedom of the individual by enslaving them for the thousands of years prior to the consensus.

[socred]

Then I'm sorry to tell you this, but I think you belong in a different century, perhaps the early nineteenth.

To be equal, means to lack quality.

I'm sure every communist seeks this ideal.

Personally, I don't believe any of us are equal, because we all have quality.

[Sean Hayward]

OK, but who defines "natural" rights? Obviously there is some ambiguity in the concept, as we have already agreed that a claim to a natural right to water or food holds some validity. So what authority, other than society, is there to resolve this ambiguity?

Yes, perhaps "privileges" would be a better word than "rights" to describe the so-called "economic rights". As I stated in my earlier posts on this thread, the difficulties in entrenching "economic rights" in the constitution are considerable, but I express my general support for the concept.

On the issue of unequal rights, my explanation is that it is one of the principles upon which the entire concept of constitutionalism is founded. Therefore, without it, the whole concept of society deciding on its rights and privileges cannot take place. It is one fundamental requirement, such as democracy.

It is possible that society may modify rights in the future in a negative way, but we just have to take the reasonability of society as a given. If we assume otherwise, we set another trap of not allowing future society to change the things we do now. It is reasonable to assume that society becomes more reasonable over time.

On the issue of slavery, the key thing you're forgetting is that society's idea of "natural rights" changes over time. Many hundreds of years ago, no one would have thought twice about the morality of having slaves. As philosophical thought advanced, people realized that it was unethical. As it applies to our discussion, this shows that constitutions must be flexible enough to advance along with the principles of society, which will inevitably change over time.

[Renegade]

OK, but who defines "natural" rights? Obviously there is some ambiguity in the concept, as we have already agreed that a claim to a natural right to water or food holds some validity. So what authority, other than society, is there to resolve this ambiguity?

Ultmately yes, someone from society defines what is meant by natural rights. While the discussion of natural rights has been primarily left to philosophers, I would welcome a codefication of natural rights and the principles by which natural rights are derived. The definitions I have posted are some of the starting points of natural rights. Society can refine the definition, or decide which behaviours fit the definition. There will clearly be some behaviours which no reasonable person can conclude which will meet the definition, and those are not left up to societal interpretation.

Yes, perhaps "privileges" would be a better word than "rights" to describe the so-called "economic rights". As I stated in my earlier posts on this thread, the difficulties in entrenching "economic rights" in the constitution are considerable, but I express my general support for the concept.

I, of course, don't because I don't believe rights can simply be manufactured by consensus, nor should any consensus-derived prvilidges be entrenched in the constitution.

On the issue of unequal rights, my explanation is that it is one of the principles upon which the entire concept of constitutionalism is founded. Therefore, without it, the whole concept of society deciding on its rights and privileges cannot take place. It is one fundamental requirement, such as democracy.

On that basis, I suppose you would take issue with the fact that the Charter extends priviledges to some groups and not others. For example it extends favourable treatment to Natives and Women.

It is possible that society may modify rights in the future in a negative way, but we just have to take the reasonability of society as a given. If we assume otherwise, we set another trap of not allowing future society to change the things we do now. It is reasonable to assume that society becomes more reasonable over time.

For me this is a troubling assumption. Events happen, people change, and not always for the better. If for example there was a massive resource shortage, I can see that it would be possible to suddenly curtail rights if based upon society's discretion alone.

On the issue of slavery, the key thing you're forgetting is that society's idea of "natural rights" changes over time. Many hundreds of years ago, no one would have thought twice about the morality of having slaves. As philosophical thought advanced, people realized that it was unethical. As it applies to our discussion, this shows that constitutions must be flexible enough to advance along with the principles of society, which will inevitably change over time.

It was not "natural rights" which changed. As I have pointed out, the definition is independant of what society thinks. The only thing that possibly evolved is that society understanding of what constituted a natural right. Regardless basing a constitution on "natural right" would have given the slaves and their advocates a basis for chalenging the status quo far earlier than a constitution based upon societal descretion.

Imagine this, a constitition which is based upon the principle of "natural rights" and a judicary which is empowered to support this. An advocate for slaves, challenges the legality of slavery based upon the principle that it is a "natural right" to be free, despite the fact that no one else questioned the morality of it. The judiciary is forced to think about an issue it may not have previously faced.

This is very similar to the situation faced by SSM in Canada. In the 90s, a large part of the populace and even parliment did not support SSM. It was challeged in court because the prohibition did not conform to the principles of the Charter, even though discrimmination against homosexuals was not explicity excluded. The court ruled in favour of SSM despite the fact that there was no consensus to extend that right to homosexuals.

BTW, if you truly believe that "society's idea of "natural rights" changes over time" then what is your objection to basing a constitution upon it? Afterall doesn't that give it the flexibility you seek? You criticized the concept as "arbitrary" and implied that it was inflexible. You now defend "natural rights" as flexbile because society can evolve its understanding of natural rights over time. Which is it, inflexible and static, or flexible and dynamic?

Edited April 28, 2008 by Renegade

[Sean Hayward]

But that's just it, nothing is independent of society. There is no definition that will stay the same forever in the interpretation of society. What a reasonable person would have interpreted "natural rights" to mean hundreds of years ago is far different from what a reasonable person would interpret "natural rights" to mean today, based on the definition you have provided. Society changes, and society's principles change, over time. Nothing can stop this. No definition is definitive enough to withstand it.

I think we almost agree on the basic concept. We both agree that people should have rights guaranteed to them. And I see something you said that is very similar to what I have been saying: "Society can refine the definition, or decide which behaviours fit the definition". That's another way of saying it. Society defines the rights of its members. Whatever title you want to give to rights is fine, natural rights, inherent rights, etc.

The idea of rights being "manufactured by consensus" is simply the fleshing-out of the body of rights that the society guarantees. I highly doubt that the Charter grants favourable treatment to women, and Natives are an entirely different issue relating to the indigenous peoples and their rightful place. Manufacture by consensus is the way that society decides what constitutes a right.

I am not at all opposed to a constitution based on "natural rights" if it gives society the authority to modify those rights as their principles change. What I am opposed to is applying some absolutely rigid definition to a society without giving it the ability to alter those rules to suit its specific realities. "Which is it, inflexible and static, or flexible and dynamic?" You are completely twisting things by implying that I said both of those descriptions about the same thing. I said that your idea of natural rights appeared inflexible and static, and then I outlined my proposal that rights should be flexible and dynamic. They are deliberately opposite as I was presenting two opposed philosophies on rights.

[Renegade]

But that's just it, nothing is independent of society. There is no definition that will stay the same forever in the interpretation of society. What a reasonable person would have interpreted "natural rights" to mean hundreds of years ago is far different from what a reasonable person would interpret "natural rights" to mean today, based on the definition you have provided. Society changes, and society's principles change, over time. Nothing can stop this. No definition is definitive enough to withstand it.

You seem to have confused the definition of "natural rights" and societies interpretation of it. A primitive society may not have the capacity to understand the concept and so will interpret it in a limited fashion. A more evolved society will have more cacapity to understand the concept and will have a "better" interpretation of it. That doesn't mean that the concept has changed, only societies understanding of it. Regardless it will still evolve along the set of PRINCIPLES which gave rise to the definition.

I think we almost agree on the basic concept. We both agree that people should have rights guaranteed to them.

yes

And I see something you said that is very similar to what I have been saying: "Society can refine the definition, or decide which behaviours fit the definition". That's another way of saying it. Society defines the rights of its members. Whatever title you want to give to rights is fine, natural rights, inherent rights, etc.

No it is not quite the same thing. I'd be satisifed if society simply implemented a structure so that rights were guaranteed along the principles of natural rights. Of course it would do so to the best ability of its time to understand natural rights. That is quite a different scenario than saying we get an concensus from the population and manufacture rights.

I draw an analogy to the Supreme Court system. We have learned and experienced people make judgements about interpretation, with a set of documented principles as guidelines. We don't rly on the general population for consensus in order to interpret whether a situation conforms to principles or not.

The idea of rights being "manufactured by consensus" is simply the fleshing-out of the body of rights that the society guarantees.

I'm not sure how "fleshing-out of the body of rights" is any different. You previously seemed to say that virually anything can be guaranteed as a right if we got enough people to agree. Does "fleshing-out" mean that only existing rights can be refined?

I highly doubt that the Charter grants favourable treatment to women, and Natives are an entirely different issue relating to the indigenous peoples and their rightful place. Manufacture by consensus is the way that society decides what constitutes a right.

While I am not looking to divert this thread into a discussion on favourable treatment of certain groups, if you look in the charter you will find that behaviour, such as discrimmination FOR women is permitted as protected behaviour but not FOR men. I would class that as unequal treatment. The same is true for Natives. In you previous post you seemd to say that equal treatment was a fundmental characteristic. You are now justifying why with some groups (Natives) it is " an entirely different issue". Does that mean that if one group has a good reason, it shoudl be able to demand unequal treatment? It more or less waters down your argument that equal treatment is a fundamental characteristic. But I digress....

I am not at all opposed to a constitution based on "natural rights" if it gives society the authority to modify those rights as their principles change.

No not as their "principles" change, they have the authority to modify it as their "interpretation" changes. It may seem like a subtle difference but it is an important one. If a natural right is one which is one we recognize is inherent and independant of society, and we accept that as a principle then that shouldn't change. We should not have society redifining that principle so the principle is no longer the principle it was intended to be. If society redefined the word "cat" to be a dog, would that change the nature of the animal?

What I am opposed to is applying some absolutely rigid definition to a society without giving it the ability to alter those rules to suit its specific realities.

And what I'm opposed to is a fluid definition which does not depend upon principles but just depends upon enough agreement that anything is possible. A constitution should be based upon a set of principles, not just we mostly all agree so let's write it down and guarantee it.

"Which is it, inflexible and static, or flexible and dynamic?" You are completely twisting things by implying that I said both of those descriptions about the same thing. I said that your idea of natural rights appeared inflexible and static, and then I outlined my proposal that rights should be flexible and dynamic. They are deliberately opposite as I was presenting two opposed philosophies on rights.

Let me retrace what happened:

1. You said that my "idea of natural rights appeared inflexible and static".

2. I pointed out the example of slavery.

3. You said that was exactly why society needed rights which were "flexible and dynamic". IE when society got around to it, they could change the meaning of rights to abolish slavery.

4. I said that if an inflexible concept of "natural rights" were implemented to begin with slavery would never have been considered a behaviour which conformed.

5. You said that "society's idea of "natural rights" changes over time". Seeming to state that even if natural rights were implemented to begin with as I had suggested, that definition woudl have been subject to change. (Isn't that flexibility?)

Which step did I misinterpret?

Edited April 30, 2008 by Renegade

[Renegade]

I am not at all opposed to a constitution based on "natural rights" if it gives society the authority to modify those rights as their principles change.

If you are not a all opposed to a constitution based upon "natural rights", albiet with the caveat that it is dependant upon "society" to interpret what "natural rights" mean, then the only area we diverge and should discuss is whether an "economic right" is a natural right.

I could see a right being recognized which guaranteees an individual's right to trade for essentials such as food, water or shelter. IOW, government could not implement laws which impede the ability to acquire basics by trade. For example, it could not pass laws which ban the import of food. I can see this being considered a "natural right" that fits within the definition as I posted it. However, this is far different than a right for society to PROVIDE basics, which I don't see fits within the definition.

[Sean Hayward]

If you are not a all opposed to a constitution based upon "natural rights", albiet with the caveat that it is dependant upon "society" to interpret what "natural rights" mean, then the only area we diverge and should discuss is whether an "economic right" is a natural right.

I think that is exactly the point of divergence. I have already said that you can call rights whatever you want, whether "natural", "inherent", "inalienable", etc. What I'm saying is that society needs to retain the ability to modify what rights they guarantee, ie. interpret their principles according to the current realities.

In your first paragraph, you have demonstrated perfectly my reasoning against an inflexible set of rights. A primitive society would interpret "natural rights" in a primitive way, so if you took their interpretation, put it into the constitution, and "froze" it, not allowing future generations to modify it to follow their principles, you would be stuck with a primitive set of rights forever. This is the reason that rights must be amendable by society to change with their interpretation of their fundamental principles.

Yes, I think that what you said about "Society can refine the definition, or decide which behaviours fit the definition" is exactly what I have been saying all along. Rights being "manufactured by consensus" means that if we get enough people, ie. a consensus, to agree that something should be a right, according to their interpretation of their principles, then the society should have the ability to entrench those rights in the constitution.

On the issue of favourable treatment, I think you are referring to Section 15(2), which allows affirmative action for disadvantaged groups. I personally disagree with that type of thing, but apparently society has decided in favour of it. I don't think we can mix the issue of native rights here without making this a lot broader of a discussion. It follows the concept of collective rights, rights belonging to a group rather than an individual. That is another concept beyond our current debate.

So you are suggesting that a constitution, or the rights therein, should not be amendable at all, even if every single person agreed to the proposed amendment? Can you please explain exactly how your idea of a constitution would function in reality?

You misinterpreted steps 4 and 5. I will explain my position. If an inflexible set of rights had been implemented to start, it would have used the interpretation of the time it was written in. It would therefore achieve exactly the opposite of what you say it would; rather than abolishing slavery, it would entrench slavery. On step 5, I said that society's interpretation of what constitutes a "natural right" changes over time, and that constitutions should be flexible enough to change accordingly.

[Renegade]

I think that is exactly the point of divergence. I have already said that you can call rights whatever you want, whether "natural", "inherent", "inalienable", etc. What I'm saying is that society needs to retain the ability to modify what rights they guarantee, ie. interpret their principles according to the current realities.

I'm almost with you but not quite. I guess it depends upon what you mean by "interpret their principles according to the current realities". The principles the constitution is based upon SHOULD NOT change. I don't have issue if rights are modified so long as it is in line with the UNCHANGING principle.

In your first paragraph, you have demonstrated perfectly my reasoning against an inflexible set of rights. A primitive society would interpret "natural rights" in a primitive way, so if you took their interpretation, put it into the constitution, and "froze" it, not allowing future generations to modify it to follow their principles, you would be stuck with a primitive set of rights forever. This is the reason that rights must be amendable by society to change with their interpretation of their fundamental principles.

I'm not sure where you've picked up the impression that I favour a "frozen" constitution. I favour no such thing. Constitutions are imperfect documents and need the ability to change. My objection is not to change in the constitution. My objection is to the kinds of change which are permitted. It the example we are discussing, if a primitive society interpreted "natural rights" in a primitive way, and a forward thinking individual challenged that (perhaps to a judicary responsible for such interpretation) it would give impetus to change the constitution to include the interpretation that slavery was wrong. Your assumption that I favour a "frozen" constitution is plain incorrect so your criticism is not justified.

Yes, I think that what you said about "Society can refine the definition, or decide which behaviours fit the definition" is exactly what I have been saying all along. Rights being "manufactured by consensus" means that if we get enough people, ie. a consensus, to agree that something should be a right, according to their interpretation of their principles, then the society should have the ability to entrench those rights in the constitution.

Ethier you don't understand what I am saying or you are misinterpreting what I am saying. Yes I think that society can refine the definition, or decide which behaviours fit the definition. But that is something very different than manufacturing rights by consensus.

The rights which should be embedded, are not as broad as "according to their interpretation of their principles", but more specfic that that. Meaning, the question asked of a right to be embedded, is "Is it a natural right?" You have already agreed that you would be ok with a constitution based upon "Natural rights". My question then, would you be ok if the test of whether something should be embedded in the constitution is "Does this right fit within the criteria of a natural right?".

That may even means some rights may get embedded even if there is no consensus. (For example the "right to die").

On the issue of favourable treatment, I think you are referring to Section 15(2), which allows affirmative action for disadvantaged groups. I personally disagree with that type of thing, but apparently society has decided in favour of it. I don't think we can mix the issue of native rights here without making this a lot broader of a discussion. It follows the concept of collective rights, rights belonging to a group rather than an individual. That is another concept beyond our current debate.

Yes I disagree with the favourable treatment of certain groups as well. I simply point out that your contention that "Unequal rights would not be justified because that is an issue integral to the rule of law" has not been applied in the case of Canada, yet the "rule of law" still applies.

So you are suggesting that a constitution, or the rights therein, should not be amendable at all, even if every single person agreed to the proposed amendment? Can you please explain exactley how your idea of a constitution would function in reality?

Perhaps you need to remind me where I suggested that. I do believe it should be amendable but with constraints.

You misinterpreted steps 4 and 5. I will explain my position. If an inflexible set of rights had been implemented to start, it would have used the interpretation of the time it was written in. It would therefore achieve exactly the opposite of what you say it would; rather than abolishing slavery, it would entrench slavery. On step 5, I said that society's interpretation of what constitutes a "natural right" changes over time, and that constitutions should be flexible enough to change accordingly.

I'll restate my position yet again, because you are clearly misunderstanding it. The "inflexibility" applies to the principle. The principle is that the only rights which should be embedded in the constitution are natural rights. The flexibility is in the interpration of which rights constitute a natural right. Certainly that is subject to challenge over time and undoubtly if the right for all men to be free were not embedded in the original interpretation of "natural rights" then at some point it would have been challenged and finally embedded.

------------------------

Now, please address why an "econoimic right" is a natural right. I have posted the definition, so does it fit that definition or doesn't it?

Edited May 1, 2008 by Renegade

[Sean Hayward]

I agree with you that the principles of the constitution should not change. Those principles being freedom, democracy, equality, etc. However, society's interpretation of those principles is always changing, and the constitution should be amendable to reflect that change.

I got the impression that you favoured some kind of frozen constitution because you have repeatedly stated your position that rights are constant and that no new rights can be created by society. You said, in other words, that if the "correct" set of rights was entrenched to start with, slavery would have been eliminated. Therefore, you are saying that there is a "correct" set of rights that would not have to change.

No, I still think that what you said about "refining the definition or deciding what fits the definition" is what I have been arguing for throughout this discussion. Manufacture by consensus is another way of describing how society "refines the definition or decides that something fits the definition". The question I would propose is "Does this constitute a right in this society?" Substitute any term for "right" that you want: "natural right", "inherent right", etc.

Affirmative action is different from equal rights because what we were talking about was taking rights away from certain groups, such as the right to life, not social programs and who is the benficiary of them. Everyone has equal rights under the constitution in Canada. Certain groups may receive special treatment, but not different rights.

I am not misunderstanding your position. You believe in inflexible principles as the foundation of a constitution. I agree, but my point is that society's interpretation of those principles is bound to change. I think you have agreed to that concept as well, so there is no disagreement there. Whether economic rights are, in fact, rights is simply a matter that society will have to decide, when it enters the arena of public debate.

[Renegade]

I agree with you that the principles of the constitution should not change. Those principles being freedom, democracy, equality, etc. However, society's interpretation of those principles is always changing, and the constitution should be amendable to reflect that change.

Then perhaps what we differ on is what the princples of of the constitution are. I believe that the principles of the constitution are natural rights, something you said you were agreeable with. How does those other principles (ie "freedom, democracy, equality, etc") fit in with natural rights?

I got the impression that you favoured some kind of frozen constitution because you have repeatedly stated your position that rights are constant and that no new rights can be created by society. You said, in other words, that if the "correct" set of rights was entrenched to start with, slavery would have been eliminated. Therefore, you are saying that there is a "correct" set of rights that would not have to change.

Yes there are a "correct" set of rights, however I understand that society doesn't always have the foresight to realize what they are, thus the constitution must be amenable as society gets a better understanding of that correct set. Yes no new rights can be "created". They are simply recognized, if they fit in to the principle of natural rights.

No, I still think that what you said about "refining the definition or deciding what fits the definition" is what I have been arguing for throughout this discussion. Manufacture by consensus is another way of describing how society "refines the definition or decides that something fits the definition". The question I would propose is "Does this constitute a right in this society?" Substitute any term for "right" that you want: "natural right", "inherent right", etc.

First I disagree that "manufacture by consensus" is the same thing as "refining the definition or deciding what fits the definition". If a consensus of people all agree that eveyone of us should be paid a billion dollar does that make it a "natural right"?

I understand that you propose the question "Does this constitute a right in this society?" , but to substitute the term "natural right" would make the question contridictary, as you can see by the previously posted definition that a "natural right" doesn't depend upon society.

Thus the question left with is simply ""Does this constitute a "natural right"?" Which is the question I have been asking of economic rights all along.

Affirmative action is different from equal rights because what we were talking about was taking rights away from certain groups, such as the right to life, not social programs and who is the benficiary of them. Everyone has equal rights under the constitution in Canada. Certain groups may receive special treatment, but not different rights.

I don't agree with you. Is the right not be be discrimminated against a right to be guaranteed to all? If so, and a group may " receive special treatment" do others not in that group, have that right violated. If you want to discuss this further, I'm happy to do so, but let's do so in a different thread. It will only sidetrack this trhead.

I am not misunderstanding your position. You believe in inflexible principles as the foundation of a constitution. I agree, but my point is that society's interpretation of those principles is bound to change. I think you have agreed to that concept as well, so there is no disagreement there. Whether economic rights are, in fact, rights is simply a matter that society will have to decide, when it enters the arena of public debate.

OK it is a subject of debate, but isn't that what were doing now, so again, please address whether you believe "economic rights" are in fact "natural rights" and why.

[Sean Hayward]

Natural rights fits into the principles of the constitution because it is a part of them. It does not represent everything in the constitution, however. Do you think that natural rights is the only principle of the constitution? Perhaps we do disagree on the founding principles of the constitution then.

Yes, I agree with your second paragraph. I would like to emphasize that I think that no society ever has the foresight to recognize the correct set of rights, and that is why society must retain the ability to make their set of rights more correct. Do you agree?

If a consensus of people all agree that eveyone of us should be paid a billion dollar does that make it a "natural right"? No, but I fail to see how you propose to prevent society from entrenching rights that you don't consider natural. The question "Does this constitute a right in this society?" may be interpreted by the citizen at their discretion. If you choose to interpret the question as "Is this a natural right?", that's your choice.

I agree that we should not discuss affirmative action here. Anyway, we both have stated opposition to it.

I do believe that certain economic rights are natural rights. That is my ideological position and I do not wish to discuss it any further here. We both have entrenched positions and I do not wish to have a bitter dead-end argument.

[Renegade]

Natural rights fits into the principles of the constitution because it is a part of them. It does not represent everything in the constitution, however. Do you think that natural rights is the only principle of the constitution? Perhaps we do disagree on the founding principles of the constitution then.

For a document such as as the "Charter of Rights", yes I think natural rights are the only principles which belong and should be guaranteed. However I'm not completely closed to the idea taht other principles can also be part of the constitution. IMV, "natural rights" empass virtuall all of the other principles that a document like the Charter should include. Before we should include other principles in the charter we would need to rigoursly define them. Other aspects of our society such as how we are oranized for democracy, separation of powers, etc should be documented but not within a "Charter of Rights" type document.

Yes, I agree with your second paragraph. I would like to emphasize that I think that no society ever has the foresight to recognize the correct set of rights, and that is why society must retain the ability to make their set of rights more correct. Do you agree?

Yes I do, but only making those rights more correct means in better alignment with natural rights. What you have called "rights" are better defined as privileges, and recognition of privlleges should only take place in laws, not in guarantees embedded in constituional documents.

If a consensus of people all agree that eveyone of us should be paid a billion dollar does that make it a "natural right"? No, but I fail to see how you propose to prevent society from entrenching rights that you don't consider natural.

Neither you nor I can prevent anything. Even though you have previously agreed that a constitution should be based upon a set of principles, there is no way that if sufficient people who have power agree, that they can't do whatever they want anyway. But it is entirely besides the point of what a group, given sufficient power and do, I think what we are discussing what "should" be.

The question "Does this constitute a right in this society?" may be interpreted by the citizen at their discretion. If you choose to interpret the question as "Is this a natural right?", that's your choice.

What I'm saying is that it shoud be more than a personal itrerpretaion. It should be a legal one. Meaning no right should be embedded which isn't a natural right. There is no way to control how a person interprets what is a right. Frequently it is intrepreted as "Is this in my interest?"

I do believe that certain economic rights are natural rights. That is my ideological position and I do not wish to discuss it any further here. We both have entrenched positions and I do not wish to have a bitter dead-end argument.

Suit yourself, but this is at the core of the issue. You have previously said that you were fine with a constitution based upon "natural rights" ("I am not at all opposed to a constitution based on "natural rights"..."), so if you decline to justify why economic rights are natural rights, then you also decline to defend why the should be guaranteed in the charter.

Edited May 3, 2008 by Renegade

[Sean Hayward]

I think that we are in near complete agreement on the content of your first and second paragraphs.

I still don't see how you would prevent any right that isn't a natural right from being entrenched. You say it should be a legal rather than personal interpretation. So who would you ask for this legal interpretation. And I know you will point to the definition you have provided, but someone has to interpret that definition.

Look, I am trying to be reasonable. I decline to debate whether economic rights are natural rights because I see no purpose in arguing when we already understand each other's positions and know from the outset that we will never agree on the issue.

[Renegade]

I still don't see how you would prevent any right that isn't a natural right from being entrenched.

As I've said, I know that under the current system, there would no way to prevent it. What I've been saying all along is that a Charter of Rights should be based upon a well-defined set of principles, and it is only those behaviours which fit within those principles which should be considered "rights". I understand that legally there has never been any constraint on what can or cannot be put into the constitution. What I'm saying is that there SHOULD be.

You say it should be a legal rather than personal interpretation. So who would you ask for this legal interpretation. And I know you will point to the definition you have provided, but someone has to interpret that definition.

Just as the judiciary interprets whether laws conform to the charter, I would see a judiciary determining whether a "right" can be included in the charter by determining whether it conformed to a set of principles. Which is also why I said the principles should be documented. If you look at the Charter the princple by which most seems to directly apply is that of "natural rights".

Look, I am trying to be reasonable. I decline to debate whether economic rights are natural rights because I see no purpose in arguing when we already understand each other's positions and know from the outset that we will never agree on the issue.

Ok. I understand.

Edited May 4, 2008 by Renegade

[Sean Hayward]

I fully understand your position now. Thank you for clarifying. Your proposal on restricting what could be put in the Charter of Rights is interesting, although such restrictions would be perhaps difficult in a democracy. I would have to see the details before judging its merits. Would you be opposed to entrenching rights other than natural rights if they were put outside the Charter of Rights, somewhere else in the Constitution?

We are agreed that there has to be more statement of purpose in the constitution. That is what preambles are for. There are two major preambles in the Constitution of Canada. The first is in the Constitution Act, 1867, and the second is in the Charter of Rights. The first one is the introduction to what was a British colonial document and the second one is just "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law". It is my opinion that both of these are lacking, especially the preamble to the Constitution Act, 1867.

[Renegade]

Would you be opposed to entrenching rights other than natural rights if they were put outside the Charter of Rights, somewhere else in the Constitution?

No I wouldn't, but it would really depend upon the principles those rights would be based upon. If for example the principle is "democracy" then if the principle is defined, and there is general agreement that the principle is the basis for how we operate as a country, I don't have issue with specific rights related to that principle being embedded.

We are agreed that there has to be more statement of purpose in the constitution. That is what preambles are for. There are two major preambles in the Constitution of Canada. The first is in the Constitution Act, 1867, and the second is in the Charter of Rights. The first one is the introduction to what was a British colonial document and the second one is just "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law". It is my opinion that both of these are lacking, especially the preamble to the Constitution Act, 1867.

I agree with you. Not only is the preamble lacking, it is insconsistent with our position as a secular state. As far as I am aware the preamble( at least in the Charter) is given no legal weight.

[Sean Hayward]

Well then, I think we may have been more in agreement than we thought all this time. I don't believe that I ever said that economic rights would have to be in the Charter of Rights, and, if I did, I take it back. I just said that they should be in the Constitution, possibly outside of the Charter. Perhaps a workable compromise would be to entrench economic rights, but put them somewhere else in the Constitution, not in the Charter.

I agree that the reference to God is not appropriate for a secular state. The preamble is also, in my opinion, too short. It should do a better job of explaining the principles of Canada with regards to human rights. Have you read the preamble to the Constitution Act, 1867? It is available at the Department of Justice website, along with the rest of the Constitution Act, 1867. It is a very obsolete statement of purpose in my opinion. I think that it should be rewritten to better reflect what Canada is and what Canadians value.

To my knowledge, preambles have no legal weight by themselves, but they have legal weight in the interpretation of the rest of the document. In other words, courts must consider the preamble to the Charter of Rights when interpreting the Charter itself, but the preamble has no legal weight in and of itself. That applies to all preambles, not just the ones referred to here. Preambles are designed to do exactly what we were discussing before, provide a description of the fundamental principles of the document.

See next post.

Edited May 5, 2008 by Sean Hayward

[Sean Hayward]

Here is the preamble to the Constitution Act, 1867.

"Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:

And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire:

And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared:

And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America:"

As you can see, it is quite outdated.

[Renegade]

Perhaps a workable compromise would be to entrench economic rights, but put them somewhere else in the Constitution, not in the Charter.

Where would you put such a protected entitlement and under what principle? The problem here is that we both agree that our society should be based upon a set of principles, but nowhere are these principles documented or even agreed to. All that exist are a protected or prohibited set of behaviours, so there isn't an appropriate mechanism for determining what (if any) addtional protections should be included.

To my knowledge, preambles have no legal weight by themselves, but they have legal weight in the interpretation of the rest of the document. In other words, courts must consider the preamble to the Charter of Rights when interpreting the Charter itself, but the preamble has no legal weight in and of itself. That applies to all preambles, not just the ones referred to here. Preambles are designed to do exactly what we were discussing before, provide a description of the fundamental principles of the document.

Are you saying that the preamble provide context to how the rest of the document is interpreted, or contain the prinicples by which the rest of the document must adhere, or both?

IMV, as I said, the prinicples shouldn't change, a process should be in place which makes them even more difficult to change than the rest of the document. Putting them into a single document somewhat defeats that purpose.

Edited May 5, 2008 by Renegade

[Sean Hayward]

I would put economic rights under the principle of equality. However, we obviously have a problem if you don't believe that equality is or should be a principle of the constitution. We argue about what the principles of the constitution are because there is no definition of them.

The preamble provides context to how the rest of the document is interpreted, but also provides a guide for future amendments. If we had a real preamble, we could look to it for a definition of the principles of the constitution, and use that to judge proposed amendments.

I think that the problem regarding these "principles of the constitution" that we are talking about is that there is nothing identifying what they are in the Constitution of Canada. We should settle this ambiguity by rewriting the existing preambles or by drafting an entirely new preamble.

Edited May 6, 2008 by Sean Hayward

[Renegade]

I would put economic rights under the principle of equality. However, we obviously have a problem if you don't believe that equality is or should be a principle of the constitution.

To know whether it should be a principle on which the constitution is based, it needs further clarification. Please define what you mean by "equality".

We argue about what the principles of the constitution are because there is no definition of them.

Exactly!

The preamble provides context to how the rest of the document is interpreted, but also provides a guide for future amendments. If we had a real preamble, we could look to it for a definition of the principles of the constitution, and use that to judge proposed amendments.

If we had a preamble which provides a guide for future amendments, what is to stop anyone from changing the preamble at the same time as amending the rest of the document. IOW, for it to have the force of being a guide to the rest of the document it must be much more inflexible to change than the rest of the document.

I think that the problem regarding these "principles of the constitution" that we are talking about is that there is nothing identifying what they are in the Constitution of Canada. We should settle this ambiguity by rewriting the existing preambles or by drafting an entirely new preamble.

Couldn't agree with you more that we don't have a real preamble or at least a meaningful one. I'm not completely convinced that the preamble is the place to put the constitutional principles, however I could be convinced if somehow the objection I addressed above was addressed.

[Sean Hayward]

Equality is a general principle. My interpretation is that it means equality of opportunity and some degree of fairness, or equity, in the economic system. However, we have to leave the interpretation up to society, so that it is flexible over time, as we have already discussed.

I suppose the preamble could be made subject to the 'unanimity formula' of amendment. In other words, it would require Parliament and the legislative assemblies of each of the provinces to support an amendment. I do not like the idea of 'entrenched clauses', parts of a constitution that cannot be amended at all.

We need something to define the founding principles of Canada and the Constitution of Canada. My opinion is that the preamble to the Constitution is the best place for something like that. However, it could be put somewhere else if that is better. That was the idea behind the "Canada Clause" in the Charlottetown Accord.

[Renegade]

Equality is a general principle. My interpretation is that it means equality of opportunity and some degree of fairness, or equity, in the economic system. However, we have to leave the interpretation up to society, so that it is flexible over time, as we have already discussed.

IMV, the principle is ambigously defined and "fairness" is a very subjective term, so unless it were more precisely defined and agreed to, I would not be supportive of being the basis of a constitution. As I also have previously stated, I don't think principles should be "flexibile", so while the intrepretation may evolve over time, the principle must be well-defined enough so that the "flexible" interpretation doesn't stray from the intent of the principle.

I suppose the preamble could be made subject to the 'unanimity formula' of amendment. In other words, it would require Parliament and the legislative assemblies of each of the provinces to support an amendment. I do not like the idea of 'entrenched clauses', parts of a constitution that cannot be amended at all.

Yes I agree that a constitution needs a way of being amended. I wouldn't be opposed to your suggestion.