Inclusive Interpretations: Social Rights and Judicial Accountability

Using Canada as a case study, this chapter suggests a reconceptualization of the role of the judiciary in interpreting human rights. The author suggests that traditional paradigms of rights as originating outside of courts, by way of constitutional agreements or international human rights treaties, must be nuanced by a better understanding of human rights practice -- a process through which rights are perpetually re-constituted through the historical act of claiming and re-interpreting rights. Social rights claims are often understood as claims to goods or entitlements but they should equally be understood as claims to meanings that speak to and address the experience of previously excluded claimants and evolving socio-historical struggles. Judiciaries must be independent of the political branches of government but the courts’ role should not be construed as independent of historical struggles or of the evolving social construction of the meaning of rights; if it were, judicial interpretation of rights would be starved of nourishment and disconnected from the broader human rights project that gives legitimacy to the judicial role within a democracy. Courts may thus be held accountable to the obligation to provide full and fair hearings of claims to more inclusive meanings. Considering these issue in the context of the struggle for social rights in Canada, the political struggle can be seen to be intricately linked to a struggle for fair hearings of claims to inclusive interpretations of broadly framed rights in the Canadian Charter of Rights and Freedoms. Attempts to demarcate the role of courts from that of legislatures on the basis of a negative rights paradigm have often denied marginalized groups in Canada effective participation in the interpretation of the meaning of Charter rights. Exclusive meanings of rights to life, security of the person and equality have been adopted not on the basis of reasonable interpretations but rather in order to exclude particular types of claims (and therefor types of claimants) from the courtroom. These types of decisions raise the question of whether courts be held accountable to broader principles of democratic inclusion in the interpretation of rights. Criticism by UN human rights bodies of Canadian courts when they have failed to adopt inclusive interpretations provides an opportunity for enhanced judicial accountability. Obligations of State parties to progressively realize social rights include important obligations of the judicial branch. International human rights bodies can play an important role by engaging directly with domestic courts’ interpretive responsibilities and by promoting more coherent principles of rights interpretation. The role of international human rights bodies is not to dictate to domestic courts an authoritative interpretation but rather to ensure that courts do not become agents of social exclusion in the performance of their interpretive roles. The fact that there is no ultimate authority to provide definitive interpretations of rights is not the problem. It is the solution.

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