The critical features of liberal legalism are expressed within the law and our legal system in that it is adherence to precedent, there is separation between judicial and legislative functions of government, and it is adherence to procedural formalities.
In conclusion, legal liberalism is a legal and political theory that politics should be controlled by constitutional limits.
Liberalism can construe a particular decision because although we are free to conduct ourselves how we see fit, we cannot obstruct someone else’s freedom therefore freedom is fundamentally limited. Liberalism expects a logical and rational “actor”. In order to act freely we need space so we aren’t getting in the way of someone else’s freedom, therefore citizens must act within the straight and narrow path of the set rules. It is a reality that society has inequality; consequently people are veering off the path and getting in the way of others freedoms. In reference to the R. v. MacDonald, 2014 SCC 3 case, the officer’s used their freedom/rights to push open Mr. MacDonald’s door but they got in the way of Mr. MacDonald’s freedom.
Conclusively, liberalism construed the decision of R. v. MacDonald, 2014 SCC 3 in the way that the judge looked at whether the police officer’s had the right to push Mr. MacDonald’s door open (whether it went against Mr. MacDonald’s Charter rights or not) because the officer felt his safety was at risk when seeing a gun. The “Harm Principal” is applicable to this situation because although Mr. MacDonald had the right to act how he felt was appropriate; his ideas obstructed the officer’s right to safety and vs. the officer exercised his freedom to push the door open which infringed on Mr. MacDonald’s freedom to live the “good li...
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...t this matter be remitted to the Court of Appeal for sentencing and it will be necessary for that court to determine whether the mandatory minimum sentence applicable under s. 95(2)(a)(i) of the Code is constitutionally valid. These are issues that need to be decided by the legislative functions of government as opposed to judicial functions of government. Throughout this case, the judge was devoted to following procedural formalities and ensuring equality for all citizens.
In conclusion, based on the reasons set out above, I wholly believe that the judge deciding on R. v. MacDonald, 2014 SCC 3 acted on the perspective of liberalism. Since the judge acted on liberalism, an equal decision was made and each citizen received their freedom and the politically correct decision. I feel each party was respected and each side, as well as the issues was considered equally.
The Charter of Rights and Freedoms is an important document that allows us to live our lives without arbitrary governmental control, although there may be certain times when rights should be limited. The R. v Oakes case is a perfect example of this situation coming into play. David Edwin Oakes was caught with an unlawful possession of hash oil and was automatically convicted of trafficking, under section 8 of the Narcotic Control Act. By looking at the Charter, it was clear that section 8 of the NCA violated his right to be presumed innocent until proven guilty, guaranteed in section 11.d. With that in mind, the respondent brought in a motion that challenged section 8 of the Narcotic Control Act. Since the Supreme Court and the Crown were confident that the suspect was trafficking narcotics, they created a four criteria ruling, in order to reasonably limit the rights of the respondent. This is permissible under section 1 of the Charter, which states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms…only to such reasonable limits prescribed by law.”2 The respondent’s case passed the first criterion which stated that “the reasoning for limiting the Charter must be proven important enough to override a constitutionally protected right.” The case did not pass the second criterion which stated that “there must be an appropriate connection between the limitation of rights and the objective of the legislation.”2 Therefore, the appeal was dismissed and the respondent was released. After reviewing the case it was clear that even though the suspect did not have his rights limited against him, limiting rights should be used more often in severe cases.
Today, the definition of the term “liberal” is relatively uncontested, and its content is relatively well defined. A liberal today is someone who advocates for governmental solutions to various problems, not for unaided individual freedom. Liberals today trust and call for governmental action, not for the type of self-determination supported by Hoover. Contemporary liberals believe in individual freedom, but they typically advocate f...
The outcome of cases that have gone through the Supreme Court of Canada’s judicial branch have each had a major impact on how the laws and Canadian Charter of Rights and Freedoms are interpreted. Three cases in particular that expanded constitutional liberties is the case of R. vs. Oakes (1986), R. vs. Mann (2004) and R. v Clayton (2007). These three cases not only expanded constitutional liberties in general, they more specifically, expanded the rights of an accused. These three prominent cases went to the Supreme Court of Canada and set precedents which directly affected Canadian society.
This paper has argued that the Supreme Court of Canada has adopted a quasi-legislative role in their decision making as a result of the Charter or Rights and Freedoms, 1982.The broad and liberal interpretation of charter language, for better or worse has and will continue to influence Canadian politics and the formulation and adoption of public policy.
Democracy is more than merely a system of government. It is a culture – one that promises equal rights and opportunity to all members of society. Democracy can also be viewed as balancing the self-interests of one with the common good of the entire nation. In order to ensure our democratic rights are maintained and this lofty balance remains in tact, measures have been taken to protect the system we pride ourselves upon. There are two sections of the Canadian Charter of Rights and Freedoms that were implemented to do just this. Firstly, Section 1, also known as the “reasonable limits clause,” ensures that a citizen cannot legally infringe on another’s democratic rights as given by the Charter. Additionally, Section 33, commonly referred to as the “notwithstanding clause,” gives the government the power to protect our democracy in case a law were to pass that does not violate our Charter rights, but would be undesirable. Professor Kent Roach has written extensively about these sections in his defence of judicial review, and concluded that these sections are conducive to dialogue between the judiciary and the legislature. Furthermore, he established that they encourage democracy. I believe that Professor Roach is correct on both accounts, and in this essay I will outline how sections 1 and 33 do in fact make the Canadian Charter more democratic. After giving a brief summary of judicial review according to Roach, I will delve into the reasonable limits clause and how it is necessary that we place limitations on Charter rights. Following this, I will explain the view Professor Roach and I share on the notwithstanding clause and how it is a vital component of the Charter. To conclude this essay, I will discuss the price at which democr...
Liberalism is an ideology which advocates equality of opportunity for all within the framework of a system of laws. It includes a belief in government as an institution whose primary function is to define and enforce the laws. Furthermore, a Constitution, must be developed not solely by one ruler but by representatives of the elite groups. Therefore, liberalism invariably involves a belief in the need for legislative bodies which represent the influential groups. The Constitution then defines ...
On February 21 and 22 of this year, the Supreme Court of Canada was asked to rule whether th...
In Supreme Court cases, it is difficult to determine which side the judges will rule because the cases are often very controversial. The Constitution and one’s rights need to be protected, and if it goes against the Constitution, the consequences will not be agreed upon. As a result, in Holmes’ analysis, it ultimately brings to light the importance of results often being black and white, but they truly aren’t. The public still has a long way to go in not only understanding the law, but also the reasons why judges make these different decisions. But the most important thing is that the U.S. Constitution is always followed.
As for the precondition of the Legalists’ thoughts, there are a few fundamental premises or judgments that we can find from the texts. As an independent school of thoughts in order to distinguish itself among all Hundreds of Schools and set aside all past ideals and standards, the Legalists, first of all, believed in the inevitability of a constant change in society. As noted by Han Fei (d.
The litigation of R. v. Buhay is a case where the Charter of rights and freedoms was violated by the policing parties but maintained and performed by the Supreme Court of Canada. This litigation began after two individuals; of which one was Mervyn Buhay, rented a locker at the Winnipeg bus depot. Buhay began to distract the security guards while his friend placed a duffel bag in the locker they had rented. After they left, the security guards were so engrossed by the smell coming from the locker that they unlocked it to find a sleeping bag full of marijuana in the duffel bag. Buhay was arrested the day after the bag was taken into possession even though no warrant was received to search the locker in the first place. During the first trial, due to the violation of the Charter by the police officers, Buhay was acquitted. The Crown, however, appealed this ruling and the case was taken to the Supreme Court of Canada where once again Buhay was acquitted in a 9-0 ruling. Although Buhay committed a crime by possessing marijuana, the police violated the Charter by searching Buhay`s locker without a warrant or his consent, making the Supreme court of Canada`s decision to acquit Buhay reasonable. The Supreme Court of Canada`s decision to acquit Buhay was reasonable due to the fact that the police violated the Charter of rights, no warrant was received to unlock the locker let alone seize the duffel bag, and lastly because the bus depots terms for the locker were not efficiently provided to the customers making them aware of any reasonable search conduct.
This theory exemplifies the true spirit of democracy. It upholds equality of all people and argues that all are endowed with equal capability to rule. The liberal theory lays great stress on the wisdom of the masses and treats their representatives only as their agents or messengers who are not only answerable to the masses but also act as per the dictates of the general public. In its view, representatives of the people are their true representatives. Instead of using their own judgment they must translate the judgement of their constituents into concrete policy proposals.
- Liberalism is a form of political structure where the powers of the government are limited against the people and their property
One of the most fundamental concerns throughout mankind have been the subject of a fully free emancipated humankind. Throughout history, philosophers have been in constant discussion in figuring out a way to respect human rights, while at the same time, preserve a well-ordered society. One of the schools of thought that demonstrate this type of society is liberalism. Liberalism is defined as “a political or social philosophy advocating the freedom of the individual, parliamentary systems of government, nonviolent modification of political, social, or economic institutions to assure unrestricted development in all spheres of human endeavor, and governmental guarantees of individual rights and civil liberties” (Dictionary, 2017). Although most
Lately, the American Highest Court has been attractive in liberal engagement. Such liberal involvement has been ongoing since the arrival of the Hole Court, sustained through the Burger Law court and into the Rehnquist Law court. The best-known case of liberal involvement is Roe v. Wade in which the Law court struck down preventive abortion laws as sacrilegious ‘the correct to privacy’ it had before found characteristic in the ‘owing process’ section of the Fourteenth Alteration. The renowned
The most significant of these is the protection of private property, something which has concerned liberals from the ideology’s inception. Private property, be it land, items, money or one’s own body, can only be protected from outside interference with the help of a coercive state. A classical liberal view of freedom consists of the right to do as one wishes with one’s private property. Indeed, Locke went so far as to say that ‘where there is no law there is no freedom’, as without the rule of law we cannot be guaranteed security of our property. Maintenance of law and order, liberals argue, requires a state because people are naturally self-interested and, if they could, would look to exploit one another for personal gain. It is this function which liberals, whether classical or modern, often point to as most fundamental to a state. Indeed, many believe that other ‘rights’ are merely extensions of the right to private property. For instance, many liberals today such as Lib-Dem parliamentarians Baroness Brinton and Minister for Care Norman Lamb MP argue for the ‘right to die’ on the basis that we are the owners of our own lives and should therefore be able to choose what to do with them, leading them to back Lord Falconer’s assisted dying bill. Similarly, rights relating to a democratic process or