Vol. 8 No. 8 (August 1998) pp. 331-334.

JUST WORDS: CONSTITUTIONAL RIGHTS AND SOCIAL WRONGS by Joel Bakan. Toronto: University of Toronto Press, 1997. 230 pp. Paper. 27.50. ISBN 0-8020-7480-4.

Reviewed by Shannon Ishiyama Smithey, Department of Political Science, University of Pittsburgh

Canada's adoption of the Charter of Rights and Freedoms in 1982 elevated the protection of many civil rights and liberties to constitutional status. Joel Bakan is concerned that Canadian advocates for the traditionally disadvantaged (women, ethnic minorities and the working class) consider Charter litigation a useful way to achieve social progress. If they did hold out such hopes, Bakan wants to dash them. In JUST WORDS, he argues that Charter cases are unlikely to result in progressive change. Although Bakan supports the "social justice" agenda, he wants to warn his friends that there is little to be gained, and much to be lost, from pursuing greater equality, freedom or democracy through constitutional litigation. His argument is a provocative attack on those who put their hope for social reform in judicial hands; in his estimation, judges are unlikely to make socially progressive decisions, and even if they do, such decisions are unlikely to accomplish much of worth. As such, his is a profoundly skeptical and challenging book.

Bakan begins by claiming that society is rife with "oppressive and exploitative disparities, based on unequal social relations" which the Charter is unlikely to remedy (10) The Charter cannot be an effective antidote to social ills because "it cannot compensate for the systematic undermining of ideals of social justice by the routine operation of society's structures and institutions" (11). I am not sure that people actually expect constitutional changes to transform society in such fundamental ways. However, the rhetoric of Charter advocates, combined with a view of judicial potential based on the liberal reputation of the Warren Court in the U.S., may have created unrealistic expectations among the public or the activist community. If Canadians did expect courts to use their Charter powers to achieve the social goals Bakan prefers, he has some sobering news for them. In his opinion, Charter decisions are more likely to frustrate and even undo social progress than they are to advance it.

For starters, he complains that judicial review frustrates the goal of increasing democracy, which he defines as "active participation of people in determining the conditions of ... existence and association" (10). Clearly, entrenching judicial review conflicts with that goal because it transfers political power from the people and their elected representatives to unelected judges. There might be compensation for this move if judges were likely to use their lack of political accountability to advance the cause of social justice, but Bakan sees no reason to hope for that. Instead, he argues that judicial institutions are staffed by members of the power elite, who are inherently conservative. By expanding judicial review, the Charter effectively privileges the judgments of "an elite group of predominantly white, upper-middle-class, male lawyers"(31), who are unlikely to "embrace the perspectives of non-dominant groups" (33). I would be more satisfied with this claim if Bakan provided demographic or attitudinal data to support his view of judges, but his general point that judges are not representative of a cross section of society seems likely to be true.

Of course judges' attitudes are only relevant if they are free to make decisions based on something other than the law. Bakan rejects the idea that the law restrains judges in any meaningful way. Like other critical legal theorists, he argues that laws in general, and the Charter in particular, are indeterminate. As such they do not actually restrain judicial choices, but serve more as grounds for rationalization. Of course, progressives may hope that judges will use their discretion to advance the cause of social justice. But any such hopes are likely to founder when confronted with the reality of a bar and bench that are not widely representative of society.

Even if judges were inclined to achieve social progress, Bakan argues that Charter rights do not lend themselves easily to that cause. Rather than focusing on remedies for social inequality, for example, by imposing obligations on the state to create substantive equality, the Charter specifies a variety of limits on state power. As such, it is premised on the "basic tenets of liberal discourse: suspicion of state power (anti-statism) and atomism" (45). It addresses the potential for government excesses, rather than seeking to remedy "the oppressive and exploitative social relations that typify civil society" (47). The Charter's individualist perspective means that it will be difficult for social justice groups to use the Charter to pursue collective rights. Additionally, the Charter constrains governmental activity but does nothing to regulate private behavior. This means that it cannot be invoked to force the state to take socially beneficial action. This leaves "most day to day coercion, need, want and discrimination in people's lives" beyond the reach of the Charter (48). Charter litigation will therefore not be very useful in changing the social conditions that Bakan considers most in need of redress.

Even worse than this lack of practical relevance is the Charter's regressive potential. Bakan argues that Charter rights may accomplish nothing for progressives, while giving aid and comfort to their enemies, by helping to undo socially progressive legislation. As he notes, "Social justice is not only difficult to address under the Charter, but may also be worsened through the Charter's implementation" because "individuals, groups and corporations can use the Charter to avoid legislative restrictions designed to prevent them from harming and exploiting others" (87).

To date, this danger appears more hypothetical than real. Bakan cites few instances in which Canadian judges have created substantial barriers to social progress in their Charter cases. For example, the Charter does not entrench any protections for property rights, and judges have declined the opportunity to read property rights into the document (90). Still, analysis of actual events provides some reason for Bakan's alarm. For example, courts have struck down several laws that set limits on political advertising by third parties, thereby allowing wealthy corporations to buy more speech, and have a more significant electoral impact, than the average Canadian citizen (92-3). The Supreme Court has also been hostile to union interests, deciding against union claims in all seven relevant cases.

Of course, consistent with his larger argument about the questionable utility of Charter rights, Bakan argues that more positive court decisions about union rights would have made little difference for workers. His assessment of economic realities suggests that Charter victories for workers would essentially be hollow. In his view, new work arrangements have fragmented the time and places at which work is performed, and the adoption of innovations like quality circles encourages workers to compete with one another within factories. Such changes inhibit the development of solidarity among workers, leaving many without any union protection at all. And, as international competition puts increasing pressure on companies to downsize and contract out work, unions are pushed to make wage and benefit concessions lest jobs be exported to other countries. As a result, he argues that "Victories for unions in the constitutional labour cases.... would have done nothing to curb rapid erosion of workers' collective power" (85).

To the extent that Charter rights do make a difference, Bakan's attitude is best summarized by the title to Chapter 6 of the book: "Power to the Powerful." Businesses have been afforded rights, such as that against unreasonable search and seizure (HUNTER v. SOUTHAM 1984), while union rights were circumscribed. Racists and men accused of sexual assault have found quarter in the Charter's guarantees. The ZUNDEL decision (1990) protected the expression of Holocaust denials. The SEABOYER decision (1991) overturned laws that shielded rape victims from having their sexual histories introduced by defense attorneys. And the DAVIAULT decision (1994) allowed intoxication to serve as grounds for acquittal for sexual assault. Bakan also notes that the Charter has been applied to Canada's indigenous peoples, "demonstrating startling disregard for the fact that an important aim of the First Nation self-government is precisely to avoid the imposition of Canadian norms and institutions" (128).

Bakan does admit that the Supreme Court has upheld challenged laws because they promoted social justice or protected vulnerable groups. But these few victories have not persuaded him that judicial review is likely to advance social justice over the long haul. "Ambiguity surrounds the issue of who is a vulnerable group, and judges are likely to make this determination from their own, generally conservative perspective" (99). And he predicts that "the broad and liberal approach to Charter rights that extends prima facia rights protection to corporations and others who might harm ?vulnerable groups' will increasingly result in regressive judicial deregulation...in response to the rise of neo-liberal and neo-conservative ideology" (99).

Bakan also admits that Charter litigation may occasionally be useful in moderating the harsher effects of Canadian capitalism. Unlike some left-wing critics, he is not wholly opposed to using the system for reform. But he wants to stress that the Charter is not the best path for social justice advocates to take in pursuit of their goals. A wide array of social forces have resulted in "[t]he erosion of democracy and social justice in Canada today," forces to which the Charter may contribute but which it surely will not overcome (145). As such, Charter litigation is unlikely to have the sort of impact that those who bring cases want it to have, even if the good guys win a few. Since the Charter's potential is mainly negative, and since there are so many problems that need to be addressed, Bakan argues that reformers should be slow to expend their resources on litigation with such limited potential.

In this respect, Bakan reminds me of a more left-wing version of Gerald Rosenberg's THE HOLLOW HOPE. Like Rosenberg, Bakan provides an interesting discussion about the limits of judicial decisions to influence social structures and practices. Of course, as in Rosenberg's case, there is the question of what it is reasonable to expect from a single institution of government; it is unlikely that any branch of government would be powerful enough single handedly to stem the tide of the social forces Bakan is considering. Bakan's conclusion of judicial incapacity should not be read as a study of unique incapacity for courts. Parliament and the provincial legislatures have not found a way to keep jobs from heading overseas either. Still, we may grant Bakan that the Canadian Supreme Court has been less "progressive" than the legislatures in striking down laws that limited campaign spending and penalized hate speech. And he may be right in predicting more decisions that advance individual rights over collective responsibility.

And yet, I think Bakan fails to appreciate how "progressive" the Canadian courts have really been. For example, the Supreme Court has interpreted human rights law to protect the rights of homosexuals, despite rather strong evidence that legislators did not intend to include discrimination based on sexual orientation among its proscriptions. The Court has also upheld Canada's laws against pornography (BUTLER) and the dismissal of a school teacher for spreading hate speech (KEEGSTRA), despite libertarian arguments for expression rights, based on the desire to protect women and ethnic minorities. Clearly, if Bakan were to compare Canadian case law with American decisions regarding these issues, he might be happier with the Charter and its interpretation by Canadian judges.

Students in U.S. universities might also benefit from a more comparative consideration of the arguments made by our own Supreme Court. Like many of my colleagues, I am continually frustrated that my students tend to dismiss perspectives that fall outside the narrow range of received American wisdom. In discussing a system that is not radically different from our own, Bakan's book provides an intriguingly different perspective that is both interesting and (at 152 pages of text) quickly readable for students. Many students may not like Bakan's political perspective; indeed I found his politics disagreeable, but challenging, in many places. But students who pay attention to the argument will not be able to dismiss it out of hand.

For U.S. readers like myself, I particularly recommend Chapter 2, entitled "Interpretation and Judicial Review," because of the left-wing judicial realism it provides. The arguments Bakan considers in this chapter are readily accessible to those familiar with the U.S. debate over activism and restraint. Rather than having to refer back to Holmes and Brandeis to find left-wing critics of judicial power, constitutional law instructors may now rely on Bakan's analysis to make the point that it is not only political conservatives who are alarmed by judicial review. Bakan's analysis of the logical problems encountered by those who trust judges to be restrained by law, rather than led by preference, is the best part of this book. Even those who reject his ideological bent will find a great deal of value in his critique of the idea of judicial restraint.


Gerald Rosenberg. 1991. THE HOLLOW HOPE. Chicago: University of Chicago Press.

Copyright 1998