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Lecture 11

POLB30H3 Lecture Notes - Lecture 11: Negative And Positive Rights, Pavement Dwellers


Department
Political Science
Course Code
POLB30H3
Professor
Margaret Kohn
Lecture
11

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Lecture 11: Social Rights [Olga Tellis]
Balancing approach
Definition: A balancing test is any judicial test in which the jurists weigh the importance of
multiple factors in a legal
case. Balancing involves weighing competing rights against each other and analyzing the
relative strengths of many factors. A balancing decision is dependent upon the circumstances of
each
case. Therefore, the outcome is difficult to predict.
Olga Tellis: After weighing the rights of the pave dwellers, it was concluded that the legitimate
state interest in public safety outweighs needs of pavement dwellers. the government should
decide whether to prioritize social rights over broader development goals
The Laws Majestic Equality “…the majestic equality of the laws, which prohibit the rich
and the poor alike from sleeping under bridges, begging in the streets and stealing bread.”
Definition: forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to
steal bread.
Olga Tellis: As one person has put it, allowing the stealing of bread is hardly fair for the baker -
and it wouldn't be much of a society, with everyone running around sleeping under bridges,
begging, and stealing. However, faced with the limited options available to the poor, hungry, and
unemployed, breaking existing laws may be only way to survive.
It is the laws that need to be changed - laws that were written to protect the wealthy and the
powerful, but defended by working class soldiers and police officers. While stealing bread
doesn't make for a successful society, other currently illegal actions may be necessary in the
formation of a just society. Strikes, for example, were once illegal. However, through the tireless
work of generations of workers, strikes are now part of the legal framework - though limited in
many situations
If laws are supposed to provide for the greater good of the society, those laws, which when
applied, work against it must be ignored and abolished. This is difficult, however, when the
wealthy have a far greater influence on the politics of the country than everyone else.
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