PHL273H1 Lecture Notes - Harm Principle, Fundamental Justice, General Idea
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TODAY’S LECTURE (June 20 th
1.) The Harm Principle in Canadian Law: (a) Background to R. vs. Malmo-Levine,
(b) Majority: Should the harm principle be a “principle of fundamental justice?”
NO (c) Dissent: Should the principle “The criminal law cannot imprison someone
who has done nothing wrong” be a p.f.j.? YES (p.f.j = principle of fundamental
2.) Introduction to equality
- Why care that governments treat citizens equally?
3.) Charles Taylor – 2 conceptions of equal treatment
I) The politics of equal dignity
II) The politics of difference
4.) Canadian approach: “the” dignity based approach
Pg. 331 (Hart thinks that the very idea that there can be a general idea of one
principle governing behaviour may just be too simple).
Why would it matter to treat people equally?
- To promote equal opportunities e.g. job opportunities
- Giving everyone certain basic liberties e.g. freedom of thought, expression and
- To promote the idea that everyone is of equal worth or dignity
- Apply the same laws the same way to everyone
- Recognizing cultural differences and compensating for historical disadvantage
- Eliminating discrimination (might involve elimination of prejudice and
The politics of equal dignity talks about a universal human potential. Everyone is
given the same sets of rights.
The politics of difference mentions that our very different actual identities and
cultures are worthy of respect. The politics of difference says we need to recognize that
certain groups need special treatment. Proponents of the politics of equal dignity argue
that politics of difference ignore minorities within minorities. Also, they say that politics
of difference excessively favour certain groups out of the pretence of respect. Proponents
of politics of difference say that it is very difficult to determine who should be deciding
the rules which are to be followed in relation to the politics of equal dignity.
Dignity based approach
1.) There has to be something the government has done to exclude the claimant.
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