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Published online by Cambridge University Press: 01 January 2020
1 The paper was subsequently published as Sumner, L.W. ‘Hate Propaganda and Charter Rights,’ in Free Expression: Essays in Law and Philosophy, Waluchow, W.J. Ed. (Oxford: Clarendon Press 1994).Google Scholar
2 Cf. Roger A. Shiner, ‘Pornography and Freedom of Speech.’ in Freedom of Speech: Basis and Limits, Maher, Gerry ed., Archiv Für Rechts-und Sozialphilosophie Beiheft 28 (Stuttgart: Franz Steiner Verlag 1986), 11–28,Google Scholar where I first tangled in print with this range of issues.
3 Sections 1-33 of Schedule B, Constitution Act
4 R v Keegstra (1990) 3 SCR 697 5 R v Butler (1992) 1 SCR 452
6 See, for example, Dworkin, Ronald Freedom 's Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press 1996);Google Scholar Waluchow, W.J. Inclusive Legal Positivism (Oxford: Clarendon Press 1994),Google Scholar Ch. 5; Waluchow, W.J. 'Constitutions as Living Trees: An Idiot Defends,’ Canadian Journal of Law and Jurisprudence 18.2 (2005) 207-47.CrossRefGoogle Scholar
7 Sumner, L.W. The Moral Foundation of Rights (Oxford: Clarendon Press 1987), Ch. 2Google Scholar
8 Raz, Joseph Practical Reason and Norms (London: Hutchinson 1975), 35–48Google Scholar
9 Dworkin, Ronald M. Taking Rights Seriously, 2nd ed. (Cambridge, MA: Harvard University Press 1978), 87Google Scholar
10 In fairness to Sumner, I acknowledge that, in The Moral Foundation of Rights, he did argue that said foundation is utilitarian, not deontological. His argument in H&O can be looked at as assuming the soundness of the arguments in the earlier book. I suppose my arguments here can be taken as assuming the opposite. We can't settle that here.
11 Sumner's discussion in section I of his Critical Notice of Freedom of Commercial Expression (pp. 625-32 above) lay out his concerns about my views. See pp. 652-9 below for my concerns about his.
12 For example, the European Convention on Human Rights has the possibility of limitation attached to various enumerated rights piecemeal (including Article 10 on freedom of expression), but not to all.
13 R v Oakes (1986) 1 SCR 103
14 Not only here (H&O, 55-6), but in many places elsewhere, Sumner is very effective in parsing out the meanings of these technical notions into plain English: that's one of the important achievements of the book.
15 Irwin Toy v Quebec (1989) 1 SCR 927, at 969-70
16 See here Shiner, Roger A. Freedom of Commercial Expression (Oxford: Clarendon Press 2003), 85-7.CrossRefGoogle Scholar
17 R.A.V. v City of Saint Paul (1992) 505 US 277
18 R v Hicklin (1868) LR 3 QB 360
19 Law Commission of Canada, What is a Crime? Challenges and Alternatives, Discussion Paper (Ottawa 2003), 3, http://www.lcc.gc.ca/en/themes/crime/discussion_paper’ toc.asp
20 See Sumner, L.W. ‘Critical Notice of Shiner, Roger A. Freedom of Commercial Expression, ' Canadian Journal of Philosophy 35 (2005) 623-40;CrossRefGoogle Scholar Shiner, Roger A. ‘Freedom of Commercial Expression,’ in Free Expression: Essays in Law and Philosophy, Waluchow, W.J. ed. (Oxford: Clarendon Press 1994) 91–134,Google Scholar at 117-20 & 125-7; Shiner, Roger A. ‘The Silent Majority Speaks: RJR-MacDonald Inc v Canada,’ Constitutional Forum 7.1 (1995) 8–15,Google Scholar at 13-14; Shiner, Freedom of Commercial Expression, 88-90
21 Cameron, Jamie ‘The Past, Present and Future of Expressive Freedom Under the Charter,’ Osgoode Hall Law Journal 35 (1997) 1–74,Google Scholar at 5.
22 Some of course argue that Separation of powers value imply that courts should not be in the business of reviewing legislation at all. Jeremy Waldron is probably the most energetic defender of this view among contemporary theorists: see Waldron, Jeremy Law and Disagreement (Oxford: Clarendon Press 1999);CrossRefGoogle Scholar The Dignity of Legislation (New York: Cambridge University Press 1999); and elsewhere.
23 Re Andrews and Law Society of British Columbia et dl. (1986) DLR (4th) 600 (BC CA), at 606-7. The Court has said much the same of the s.7 guarantee of life, liberty and security of the person': ‘We do not think that these authorities should be taken as suggesting that courts engage in a free-standing inquiry under s.7 into whether a particular legislative measure ‘strikes the right balance’ between individual and societal interests in general, or that achieving the right balance is itself an overarching principle of fundamental justice. Such a general undertaking to balance individual and societal interests, independent of any identified principle of fundamental justice, would entirely collapse the s.l inquiry into s.7’ (R v Malmo-Levine [2003] 3 SCR 571, at para.96: the Court's emphasis).
24 As Sumner seems aware: ‘in Keegstra both the majority and the minority helped themselves freely to this rhetoric of balancing’ (H&O 59).
25 Ross, W.D. trans., ‘Aristotle, Nicomachean Ethics,’ in vol. II of The Complete Works of Aristotle: The Revised Oxford Translation, Barnes, Jonathan ed. (Princeton, NJ: Princeton University Press 1984), 1729–1867Google Scholar
26 Ironically, where Aristotle does use the vivid image of rhopê tês zôês, ‘weight [in the balance] of life’ (EN 1094a23, 1101a29), Ross drops the image out and simply talks about ‘having influence in.'
27 She also refers to the Oakes test as a cost-benefit calculation in R v Lucas [1998] 1 SCR 439, at para. 113.
28 Layard, Richard and Glaister, Stephen eds., Cost-Benefit Analysis, 2nd ed. (New York: Cambridge University Press 1994), 4CrossRefGoogle Scholar
29 Hubin, Donald C. ‘The Moral Justification of Benefit/Cost Analysis,’ Economics and Philosophy 10 (1994) 169-94,CrossRefGoogle Scholar at 178-9; David Schmidtz, ‘A Place for Cost-Benefit Analysis,’ Philosophical Issues 11: Social, Political and Legal Philosophy, Nous (2001) 148-71, at 153
30 Hubin, ‘Moral Justification,’ 181-2
31 Wisdom, John Proof and Explanation (Lanham, MD: University Press of America 1991).Google Scholar See also Shiner, Roger A. ‘Ethical Justification and Case-by-Case Reasoning,’ in Ethics and Justification, Odegard, D. ed. (Edmonton, AB: Academic Printing and Publishing 1988), 91–108.Google Scholar
32 Hooker, Brad and Little, Margaret eds., Moral Particularism (Oxford: Clarendon Press 2000);Google Scholar Dancy, Jonathan Ethics Without Principles (Oxford: Clarendon Press 2004).CrossRefGoogle Scholar
33 Duff, R.A. Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Oxford: Blackwell 1990), 105-11;Google Scholar Duff, R.A. ‘Rule-Violations and Wrong-Doing,’ in Criminal Law Theory: Doctrines of the General Part, Shute, Stephen and Simester, A.P. eds. (Oxford: Oxford University Press 2002), 58Google Scholar
34 R v Chase [1987] 2 SCR 293
35 Duff, R.A. ‘Harms and Wrongs,’ Buffalo Criminal Law Review 5 (2001) 13–45,CrossRefGoogle Scholar at 24-5
36 Nussbaum, Martha ‘Objectification,’ Philosophy and Public Affairs 24 (1995) 249-91CrossRefGoogle Scholar
37 Arguably, a claim like this is best defended in term of an underlying speech-act theory of language. Hornsby and Langton have in fact attacked pornography on such a basis (Hornsby, Jennifer and Langton, Rae ‘Free Speech and Illocution,’ Legal Theory 4 [1998] 21–37CrossRefGoogle Scholar). Sumner rejects this approach on the grounds that it confuses illocutionary and perlocutionary acts (H&O, 152-4). But of course the issue is whether the harm involved in the utterance of pornography is properly theorized by a view that deems it a perlocutionary consequence.
38 I say ‘ostensibly,’ because many who support the ideals of feminism and multiculturalism believe those ideals are ill-served by legal restraints on freedom of expression. That important issue is not on the table in the present discussion.
39 Lorenne Clark, ‘Sexual Equality and the Problem of an Adequate Moral Theory: The Poverty of Liberalism,’ in In Search of the Feminist Perspective: The Changing Potency Of Women, Resources for Feminist Research: Special Publication 5 (Toronto: Department of Sociology, Ontario Institute for Studies in Education 1978) 63-75, at 74.
40 All quotations from Mill ‘On Liberty,’ Mill, John Stuart Essential Works of john Stuart Mill, Lerner, Max ed. and intro. (New York: Bantam Books 1961), 302Google Scholar
41 I would like to thank Wayne Sumner and two readers for this Journal for their helpful comments on an earlier version of these remarks. I would also like to acknowledge with gratitude support for my research from the Social Sciences and Humanities Research Council of Canada.