Unit 4
Critical Perspectives on Law and Rights

Overview

This unit reviews different ideas about what the relationship between law and social life is, and what it ought to be. According to Stephen Waddams, law “manifests the common values of a society, and, at the same time supplies a system for resolving its conflicts.”1 Many of the writers discussed in this unit take a much more critical and political view of law. While they may differ on their views of law and social transformation, the authors are unanimously critical of how law has traditionally ignored the political interests of women and other historically disadvantaged groups.

Some scholars critique the notion of “rights,” calling it ultimately unhelpful because, while “rights” appears to indicate something that is firm and unyielding, the notion of rights is inherently unstable and unpredictable.2 In any political system, rights are only as firm as the system that enforces and protects them. Without a strong system, rights are little more than words on paper. Feminists who seriously consider using the law to effect social change must therefore consider the possible weaknesses of that strategy.

Learning Objectives

After completing this unit, students should be able to

  1. identify and discuss the essentialist critique of feminism.
  2. describe the critique of feminist scholarship in the Canadian context, particularly as it relates to Aboriginal women and women of colour.
  3. identify potential problems with using the law to effect social change.
  4. discuss the concerns voiced by scholars about “rights” and the Charter’s potential influence on social change.
  5. outline possible responses to the criticisms discussed in objective 4.
  6. identify their own perspectives on these issues, supported by reasons and arguments.

 

Footnotes

1 Waddams, S. (2004). Classification of private law in relation to historical evidence: Description, prescription, and conceptual analysis. In A. Lewis & M. Lobban (Eds.), Law and history: Current legal issues (vol 6, p. 265). Oxford, UK: Oxford University Press.

2 Mandel, M. (1994). The Charter of Rights and the legalization of politics in Canada. Toronto: Thompson Educational Publishing.