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Dignity and Membership, Equality and Egalitarianism: Economic Rights and Section 15

Published online by Cambridge University Press:  20 July 2015

Christopher Essert
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In this paper, I attempt to clarify the ideas of equality underlying section 15 claims for benefits such as welfare and health care; I use the name ‘economic rights claims’ for these types of claims. I adopt Joseph Raz’s division of equality claims into rhetorical egalitarian claims, which are based in a failure to equally respect a universal claim (and typically take a form such as, ‘All Fs have a right to G’), and strict egalitarian claims, which are based on an actually existing unequal distribution of resources (and take the form, ‘All Fs who do not have G have a right to G if some Fs have G’). I show how the dignity-based approach to equality stemming from Law v. Canada is an example of a rhetorical egalitarian claim. With this groundwork set, I turn my attention to the economic rights claims. I survey three reasons for thinking that an unequal distribution of some benefit might, even absent any failure to respect or recognize the dignity of those at the losing end, be thought of as wrong or unjust. The first two reasons - an appeal to an idea of sufficiency, and the fear that some stigma might be associated with the inequality - I reject in favour of the third, which is that in a situation in which all the participants have some equal claim to a benefit, a fair procedure will result in their benefiting equally. Following John Rawls, I suggest that our society, as a cooperative venture for mutual advantage, creates in its members at least a prima facie equal claim to share in the society’s benefits. The economic rights claims, then, are claims that this prima facie equal claim has not been respected. But the benefits being claimed for, as benefits created by the society, are not benefits automatically due to everyone just in virtue of their humanity, instead they are due to the worst-off once the best off have come to be able to benefit from them. Thus they take a strict egalitarian form - once some members of our society benefit in a certain way, then the equality of all members as contributors to the cooperative venture for mutual advantage implies that the other members of our society gain a claim to that benefit. The fact that these economic rights claims are strict egalitarian claims means they cannot be grounded in arguments about dignity, as dignity-based claims are rhetorical egalitarian claims for benefits due to all in virtue of their universal human dignity. I conclude by returning to Law to highlight a passage which I believe provides a grounding for a recognition of economic rights in line with my argument; I also make some brief comments on the need for a stricter division of labour between section 15 and section 1 in the context of economic rights claims and on the effect of this argument on Canadian federal law more generally.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 19 , Issue 2 , July 2006 , pp. 407 - 432
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2006

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References

I am grateful to Sophia Moreau, the editors of Canadian Journal of Law and Jurisprudence, and the participants in the University of Toronto Faculty of Law's Section 15 Project for their comments on earlier drafts of this paper. I owe an especially large debt of gratitude to Denise Réaume for her comments and guidance. It goes without saying that all errors are my own.

1. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11.

2. See Réaume, Denise, “Discrimination and Dignity” (2004) 63 La. L. Rev. 1 Google Scholar; Moreau, Sophia R, “The Wrongs of Unequal Treatment” (2004) 54 U.T.L.J. 291 CrossRefGoogle Scholar.

3. Gosselin, v. Québec, (Attorney-General), [2002] 4 S.C.R. 429 Google Scholar, 2002 SCC 84 (Gosselin).

4. Réaume, supra note 2.

5. See, for example, Hogg, Peter W, Constitutional Law of Canada, 4th ed. (Toronto, ON: Carswell, 1997) at 52-26 - 52-27Google Scholar; Martin, Sheilah, “Balancing Individual Rights to Equality and Social Goods” (2001) 80 Can. Bar Rev. 299 Google Scholar; Ross, June, “A Flawed Synthesis of the Law” (2000) 11 Const. Forum 74 Google Scholar; Gibbins, Roger, “How in the World Can You Contest Equal Human Dignity” (2000) 12 N.J.C.L. 25 Google Scholar; Greschner, Donna, “Does Law Advance the Cause of Equality?” (2001) 27 Queen’s L.J. 299.Google Scholar

6. See Raz, Joseph, The Morality of Freedom (Oxford: Oxford University Press, 1986) at ch. 9.Google Scholar

7. Supra note 1.

8. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 [Andrews].Google Scholar

9. Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law].Google Scholar

10. Hunter v. Southam Inc., [1984] 2 S.C.R. 145 Google Scholar; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.Google Scholar

11. Law, supra note 9 at para. 51.

12. See, for example, Gosselin, supra note 3; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney-General), 2004 SCC 4.Google ScholarPubMed

13. Réaume, supra note 2.

14. Obviously both my approach and Réaume’s approach assume that protection of economic rights is at least plausibly within the ambit of section 15. The wording of section 15 itself (“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law”) the history of its interpretation (as exemplified by the Court’s approach to the analogous grounds beginning with Andrews, supra note 8) and the Court’s approach to the Charter in general (consider Big M, supra note 10) all suggest that a broad and expansive approach to section 15 is the correct one.

15. This position is exemplified by the decision of McLachlin, J. (as she then was) in Miron v. Trudel, [1995] 2 S.C.R. 418 [Miron].Google Scholar The idea is that enumerated grounds of section 15 are chosen because they have some link to a person’s dignity—to be denied access to some benefit because of “stereotypical application of presumed group characteristics” (specifically those characteristics which define the grounds) is not to be treated with dignity. For more on this point, see Réaume, supra note 2 at 16.

16. [1995] 2 S.C.R. 513 [Egan]. See also her judgment in Miron, supra note 15.

17. Ibid. at para. 36. Réaume caches this out as a shift from a “type of distinction” lens to a “type of impact” lens. See Réaume, supra note 2 at 10.

18. This foreshadows my arguments below. These relationships are important, and so must be respected so the harm that L’Heureux-Dubé J. finds lies more in the failure to respect the same-sex relationships than in any comparison with the opposite-sex relationships. See Egan, supra note 16 at para. 39.

19. See the full statement of the purpose of section 15 from Law, above, text accompanying note 8.

20. Kant, Immanuel, Groundwork for the Metaphysics of Morals, trans. by Gregor, Mary (Cambridge: Cambridge University Press, 1998) at 43 (AK4:436)Google Scholar.

21. See Dworkin, Ronald, “What Rights Do We Have?” in Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977) 266.Google ScholarPubMed See also Moreau, supra note 2 at 294-96.

22. See Kant, supra note 20 at 43 (“the word respect alone provides a becoming estimate of it that a rational being must give” [emphasis in original]).

23. Réaume, supra note 2 at 31-32.

24. For clarity and brevity, I will henceforth use ‘harm-to-dignity’ as shorthand for ‘harm to one whose dignity has not been properly respected.’

25. Réaume, supra note 2 at 28.

26. This clever term is Réaume’s, not mine. See ibid. at 28.

27. An example of such a law is, happily, not present in Canadian equality jurisprudence. A paradigm case would be a law which prohibited women from driving cars because “everyone knows” that women are bad drivers.

28. Here the paradigm examples are things such as mandatory retirement laws for firefighters and police, which simply assume that those over 50, say, cannot perform the job. See, for example, Large v. Stratford, [1995] 3 S.C.R. 733.Google Scholar

29. Moreau, supra note 2 at 301.

30. Brown v. Board of Education, 347 U.S. 483 (1954).Google ScholarPubMed

31. See Reference re Same-Sex Marriage, 2004 SCC 79 Google ScholarPubMed; EGALE Canada Inc. v. Canada (Attorney General) (2003), 225 D.L.R. (4th) 472 (B.C.C.A.)Google Scholar; Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) 161 (C.A.)Google ScholarPubMed.

32. Réaume, supra note 2 at 44.

33. Coleman, Jules, “Book Review: The Grounds of Welfare” (2004) 112 Yale L.J. 1511 CrossRefGoogle Scholar.

34. See below, text accompanying notes 53, 62-66.

35. Réaume, supra note 2 at 45 [emphasis added].

36. Joseph Raz, The Morality of Freedom, supra note 6.

37. Ibid. at 228.

38. Ibid. at 228-29.

39. See Andrews, supra note 8. The BC Law Society’s imposition of a citizenship requirement judged Andrews according to that one characteristic, rather than according to his whole person, thus failing to respect his inherent moral worth and dignity. While it is true that Andrews was not treated the same as Canadian citizens, it is also true that the harm to him is simply that—a harm to him—and no comparison with the treatment of others is required to understand the harm. Framed in this way, the wrong can be seen not to be about equality, just as in Raz’s example of the sick child.

40. Raz, supra note 6 at 229.

41. Ibid. at 225.

42. Ibid.

43. Ibid. at 226 [emphasis added].

44. The point is this: the quality of being finished with dinner is not an inherent quality in the sense of, say, race or sex, but it is an inherent quality in the sense that in inheres in the boys alone, rather than being dependent on any comparisons with others.

45. So the second claim can be written as, All kids who do not get dessert after finishing dinner have a right to dessert after finishing dinner if some kids get dessert after finishing dinner. As nobody has any absolute right to dessert after dinner, the claim is strictly egalitarian.

46. Law, supra note 9 at paras. 56-58.

47. Note again the shift in the statement of the purpose of section 15 from Law (para. 51, cited supra at note 11) to protection of dignity (and away from preventing discrimination) as the central purpose of section 15.

48. See Raz, supra note 6 at 227. The Charter‘s division of labour between section 15 and section 1 could be seen to fit into this framework of ‘other principles’ overriding strict egalitarianism. While a strict egalitarian reading of section 15 could support economic rights claims, the principles comprising section 1 limitations might constitute sufficient reason to refuse to recognize those claims. The point is that the rights ought to be seen as existing, and any refusal to recognize them ought to be explicit.

49. Gosselin, supra note 3 at para. 6.

50. Ibid. at para. 159.

51. Gosselin, supra note 3 at para. 52. There are problems relating to the evidence regarding the availability of spots in the program. The majority accepted the trial judge’s finding that there were enough spots. See ibid. at para. 54.

52. Ibid. at paras. 68-72 [emphasis added].

53. The notion of sufficiency is a commonly used one in debates on this subject. See, for example, Frankfurt, Harry, ‘Equality as a Moral Ideal’ in Frankfurt, Harry, The Importance of What We Care About (Cambridge: Cambridge University Press, 1988) 134 at 146-48CrossRefGoogle Scholar. I do not believe that sufficiency is actually doing any of the work in arguments about economic rights. See below, text accompanying notes 62-66.

54. Réaume, supra note 2 at 45.

55. Ibid. at 3.

56. Réaume explicitly makes this argument See ibid. at 20-21 (“If the benefit being distributed by the legislation is … recognition, rather than the money payable under the policy, it is hard to see how the exclusion of common law and same sex couples could be read other than as a denial of the equal worth of such relationships.”).

57. It is true that some opposite-sex couples believe that same-sex marriage is an affront to their dignity. This seems to me not an objection to my framing of dignity as non-rivalrous as much as an unreasonable claim that dignity has not been respected. Those who claim that their marriages will be sullied by same-sex marriage fail to recognize that their ability to marry will not be affected and that the modification of a social practice over time is not a matter of a harm-to-dignity. As the Supreme Court reminds us by way of the subjective-objective framework in Law, only reasonable claims for section 15 protection will be upheld.

58. See Dworkin, Ronald, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000) at 11–12 Google Scholar.

59. See, generally, Weinrib, Ernest J., The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995).Google Scholar

60. Recall that a harm-to-dignity requires a serious act: respect for dignity requires that each person be seen and treated as a human being with supreme inherent moral worth. Yet while it can be harmed, this inherent moral worth cannot be taken away from a person, as it literally defines their personality.

61. Some philosophers suggest otherwise. For example Hegel believes that possession of property is needed for the personality to realize itself. See Hegel, G.W.F., The Philosophy of Right, trans. by Dyde, S.W. (Amherst, NJ: Prometheus, 1996)Google Scholar. Kant also seems to suggest that some property is necessary for agency. See Weinrib, Ernest J., “Property and Poverty in Kant’s System of Rights” (2003) 78 Notre Dame L. Rev. 785.Google Scholar But in both cases the amount of property required is too little to be suitable for egalitarian purposes.

62. The following discussion owes a great deal to T.M Scanlon. See Scanlon, T.M., “The Diversity of Objections to Inequality” in his The Difficulty of Tolerance: Essays in Political Philosophy (Cambridge: Cambridge University Press, 2003).CrossRefGoogle Scholar

63. Gosselin, supra note 3 at para. 256.

64. Réaume, supra note 2 at 48.

65. Or in their two-member soul group.

66. The formulation in Raz’s terms is this: if Sam and Dave are equal, and Sam is being paid X, then Dave has a right to be paid X.

67. In this example we could have other objections to the inequality in pay. The point, however, is that the subjective feelings of a party about some perceived (or actual) inequality are not enough to ground a claim in justice.

68. See Réaume, supra note 2 at 39; Law, supra note 9 at paras. 59-61.

69. For full logical consistency, we might want to explore the situation in which the inequality might be thought in some way to be deserved—if Sam were much stronger or smarter than Dave, for example. A stigma caused by a deserved inequality could have the potential to be even worse than a stigma caused by an undeserved inequality, as it highlights some deficiency of Dave that we might think more ‘real’ in some way. This is a very interesting problem which I think is outside the scope of the paper, but see Scanlon, supra note 62 at 212-18, for more discussion.

70. Scanlon, supra note 62 at 208.

71. For simplicity, I will henceforth take “equal distribution” to mean “equal distribution subject to any special justifications”.

72. See Dworkin, supra note 58. See also Arneson, Richard J., “Equality of Opportunity Defended and Recanted” (1999) 7 J. Pol. Phil. 488 CrossRefGoogle Scholar; Cohen, G.A., “On the Currency of Egalitarian Justice” (1989) 99 Ethics 906 CrossRefGoogle Scholar; Sen, Amartya, Inequality Reexamined (Cambridge, MA: Harvard University Press, 1992).Google Scholar

73. See Anderson, Elizabeth, “What is the Point of Equality?” (1999) 109 Ethics 287.CrossRefGoogle Scholar

74. Rawls, John, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999).Google Scholar

75. A full discussion of this conception of a society is obviously outside the realm of this paper— moreover, it would seem to have been accomplished in the most effective way possible already, by Rawls. See Rawls, ibid.

76. See Anderson, supra note 73 at 321-26. On the plausibility of this conception of society as an actual descriptive account rather than a normative one, consider Anderson’s example about Michael Jordan. See ibid. at 322.

77. From this point in the paper, I will adopt a conception of a Rawlsian society. Of course it is possible to choose a different conception of society, for example a society of self-interested individuals. If one makes such a choice, it seems that arguments about equal distribution of resources will undoubtedly fail, regardless of whether they are framed in terms of rhetorical or strict egal-itarianism. A wealth or welfare maximizing economist, for example, will always (indeed is forced to) choose inequality over equality of any sort if the inequality is the efficient choice.

78. To give an example, we might not think that a library is a benefit due to all humans just in virtue of their humanity, but once books become popular enough and reading the work of famous authors is considered to be a benefit of the collective endeavour of society (because the rest of the society subsidizes the authors, etc.), then an obligation on the state to provide libraries for those who cannot buy books themselves is created as a matter of strict egalitarianism. A more topical example might be some specialized form of medical care (say MRIs). It seems dubious to suggest that treating citizens with dignity requires the government to provide MRIs to all. But once MRIs become available to the best-off, an entitlement is created in the worse-off to access the same degree of medical care.

79. Another difference: dignity is, in a sense, more fundamental, in that it must always be respected. The entitlements generated by membership are contingent on the acquisition of benefits by some, and on the participation of all in the societal endeavour. Those who are not members of that endeavour (for example, non-citizens) may not have a right to the benefits of membership, but their dignity must nevertheless be respected in virtue of their inherent worth as humans.

80. See above, text accompanying notes 34-35.

81. See Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974)Google Scholar. Similarly, the philosophy of Kant himself is based on the supreme worth of the human being but provides relatively little in the way of support for the worst off. See Weinrib, supra note 61.

82. Anderson, supra note 73 at 315 [emphasis added].

83. Law, supra note 9 at paras. 72-73.

84. Moreau, supra note 2 at 303 (noting that “the presence of an ‘ameliorative purpose,’ which courts currently treat as weighing against a finding that the unequal treatment has been unfair, does not weigh against it when the wrong is understood as based upon stereotype or prejudice.”).

85. Raz, supra note 6 at 228.

86. In fact, in my view Réaume’s analysis, while based in dignity, takes this form. Her claim is that certain institutions and benefits become important enough that dignity necessitates equal access for all to those institutions and benefits; but this importance arises only because some members of society (the best-off members) already have access to these institutions and possession of these benefits. There is no absolute right to access the institutions or benefits—the right is created only in light of the actual existing distribution of access. Thus the expansion of dignity is actually a strict egalitarian move, rather than a universalist move truly based on dignity.

87. Law, supra note 9 at par. 51 [emphasis added].

88. Section 1 of the Charter provides “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” See supra note 1. The test in Canadian law for the use of section 1 requires that a law which is found to violate a right must have a “ Pressing and substantial objective” and that the means of achieving that objective are rationally connected to the objective, minimally impairing of the right, and proportional to the objective. See R. v. Oakes, [1986] 1 S.C.R. 103.Google Scholar

89. See Ryder, Bruce, Fair, Cidalia & Lawrence, Emily, “What’s Law Good For? An Empirical Overview of Charter Equality Decisions” (2004) 24 Sup. Ct. L. Rev. (2d) 103 Google Scholar. Online: http://www.20years.ca.