What Do We Mean by Law and Social Transformation?.

In Canada the entrenchment of the Charter of Rights and Freedoms generated a good deal of debate about the possibility of using law in the struggle for social transformation. Although couched in general terms, the current debate is ultimately about the possibility of asserting liberal democratic legal rights in courts in order to transform existing relations of subordination and domination. Somewhat remarkably, the positive claim that litigating entrenched legal rights encourages social transformation tends to be made almost exclusively at the theoretical level. Theoretical possibilities, rather than concrete victories, are invoked to support the claim for the transformative capacity of liberal legal rights. Instead of approaching the question of litigating social change from an exclusively theoretical perspective, this paper examines contemporary examples in order to illustrate some of the possibilities of and limits to this strategy. Specifically, the paper examines how both the labour and women's movements have used the Canadian Charter of Rights and Freedoms to further their social, political and economic goals. Not only did these two groups adopt widely different strategies during the entrenchment process, what is entailed by the assertion of bourgeois legal rights has a different meaning for each. Thus, by contrasting the experience of the labour and women's movements in invoking the Charter it is possible to begin to suggest the limits of liberal rights in the struggle for social transformation.