Courts and Liberal Ideology: An Analysis of the Application of
the Charter to Some Labour Law Issues
Michael MacNeil*
The adoption of the Canadian Charter of
Rights and Freedoms has increased the po-
litical power of Canadian courts. However,
the author submits that the judiciary has ex-
tended the common law’s traditional reluc-
tance to accord independent rights to
collectivities into the Charter era. Three im-
portant aspects of trade union rights that
have been the subject of recent judicial de-
cisions are examined in detail: the right to
strike, the right to picket and the extent to
which unions may spend their finds in a
manner that is unacceptable to a minority of
workers that it represents. The author main-
tains that the basic tenets of liberal ideology
that have been applied in these decisions are
untenable on their terms. Furthermore, these
liberal tenets represent only one vision of Ca-
nadian political history. The author con-
cludes that the courts must give greater
consideration to the importance of com-
munal values if the law is to be brought into
the reality of modem society.
Uadoption de la Charte canadienne des droits
et libert~s a augment6 le pouvoir politique
des tribunaux canadiens. Uauteur soutient,
cependant, que les cours ont perprtu6, dans
rapplication de la Charte, ]a reticence tra-
ditionnelle de ]a common law A reconnaitre
aux collectivitrs des droits indrpendants,
L’auteur 6tudie trois pratiques que les syn-
dicats per~oivent comme des droits et sur les-
quelles les tribunaux se sont rcemment
prononc6s: le droit de grave, le droit de faire
du piquetage et le droit de d~penser des fonds
syndicaux A des fins qu’une minorit6 des tra-
vailleurs drsapprouve. L’auteur soutient que
les principes de l’id6ologie librrale sur les-
quels sont fondres ces decisions sont, en eux-
m~mes, insoutenables. De plus, ces principes
ne reprrsentent qu’une seule vision du Ca-
nada. L’auteur conclut que les tribunaux
doivent accorder une plus grande importance
aux valeurs communautaires s’ils veulent
que le droit r~fl~te ]a r~alit6 de ]a soci6t6
modeme.
*Department of Law, Carleton University. I would like to thank Amy Bartholomew for her
very helpful comments on this paper.
McGill Law Journal 1989
Revue de droit de McGill
1989]
COURTS AND LIBERAL IDEOLOGY
Synopsis
I.
Introduction
II. The Limits of Liberalism
III. The Right to Strike
Individual Autonomy
A.
B. Legal Equality
C. Public/Private Distinction
D. State Neutrality
IV. Right to Picket
V.
Political Expenditure of Union Funds
VI. Conclusion
I.
Introduction
The embedding of a constitutional bill of rights inevitably leads to a
considerable accretion of political power exercised by the courts. The judges
in such a system are not only guardians, but are masters of the constitution.’
Labour law in particular is likely to be significantly affected by the granting
of political power to courts. There has been a traditional reluctance of the
judiciary, in the absence of statutory regulation, to encourage or even permit
trade unions’ pursuit of workers’ interests by engaging in effective industrial
action. Common law doctrine is biased against collective action because it
is incompatible with an individualistic vision of private ordering. Much of
the past judicial creed was consistent with a liberal political ideology. Initial
results under the Canadian Charter of Rights and Freedoms2 indicate the
continuing predominance of liberal ideology in the judicial analysis of labour
10. Kahn-Freund, “The Impact of Constitutions on Labour Law” (1976) 35 Cam. L.J. 240
at 257 quoting A.V. Dicey, Law of the Constitution, 10th ed. by E.C.S. Wade (London:
MacMillan & Co., 1959) at 175.
2part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter Charter].
McGILL LAW JOURNAL
[Vol. 34
law. In this paper, some of the tenets of that ideology will be identified and
their application to several labour issues will be analyzed.
Trade unions have a range of functions which include the representation
of the interests of their members through collective bargaining and through
the exertion of political pressure. Although treated by the common law as
without legal personality,3 the extensive statutory grant of rights and im-
position of duties on trade unions frequently leads to their being treated as
juristic persons.4 Nevertheless, there is a fundamental problem in defining
the exact nature of the trade union as a rights-bearing entity. From one
perspective, the trade union can be regarded as little more than the network
of contracts of the individual members with each other
It is an unincor-
porated association, 6 and any rights accorded to it must be the result of a
statutory grant or be derivative of the rights of individual members. From
another perspective, the trade union can be seen as a group which transcends
the individuality of its members; it is more than the sum of its parts. As a
group of persons joined together in solidarity, the trade union is a form of
community to which may be attributed rights that are not convertible to
statements about the rights of individual members.
Western liberal democracies are ambivalent about the extent to which
groups should be treated as rights-bearing entities. Both legal and political
theorists have struggled to articulate a role for groups which is consistent
with some of the fundamental liberal assumptions which predominate in
such democracies. It is always difficult to identify the core principles upon
which liberals agree, as there are many disagreements among those who
would classify themselves as liberals about the basis of liberal philosophy.
However, there are four key concepts identified with liberalism which will
form the basis of this analysis. The first concern of liberalism is with the
primacy of individual autonomy. A second feature is the emphasis on the
rule of law and its particular form of legal equality. A third requirement is
that the state be neutral in allowing individuals to pursue their own life
goals. The fourth element claims that there is a need to separate the public
world of politics from the private world of social and economic life. It will
become apparent that these assumptions are closely interrelated.
This article seeks to explore these issues in the narrower context of the
rights of trade unions. In particular, there are three aspects of trade union
3G. Adams, Canadian Labour Law (Aurora, Ont.: Canada Law Book, 1985) at 817.
4See International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265, 22 D.L.R. (2d)
1, 60 C.L.L.C. 15,273. It is ironic that unions have come to be treated as legal persons in key
cases where the issue was union liability for acts of individuals.
5See Orchard v. Tunney, [1957] S.C.R. 436, 8 D.L.R. (2d) 273, 57 C.L.L.C. 15,319.
61n the province of Quebec trade unions have the option of securing legal status by incor-
porating a syndicate under the Professional Syndicates Act, R.S.Q. c. S-40, s. 1.
1989]
COURTS AND LIBERAL IDEOLOGY
rights that neatly demonstrate the theoretical difficulties involved. One of
the most important rights claimed by trade unions is the right to strike.
However, there have always been severe restrictions on that right in Ca-
nada, 7 and the Supreme Court of Canada has recently announced that there
is no constitutional protection for that right.8 A second aspect is that even
when strikes are lawful, the ability of unions to enlist the support of their
fellow workers and sympathizers in the general public can be severely cur-
tailed by the imposition of legal constraints on the use of picketing. The
right of the group to act in pursuit of its own interests through strikes and
through picketing demonstrates the dilemma for liberalism in promoting
individual autonomy while at the same time restricting the rights of indi-
viduals acting through the group. The third issue is the extent to which
unions may engage in practices acceptable to the majority of members, but
objectionable to some individuals who are nevertheless required to support
the union either through the terms of the collective agreement or pursuant
to a statutory decree. The tension between the individual and the group
highlights the question of the extent to which the individual should be
required to defer to the group interest where the group is less than the all-
encompassing polity.
Through an examination of recent court decisions involving these three
aspects of trade union rights, I intend to lay the framework from which to
examine and evaluate alternatives to the predominantly liberal ideology.
II. The Limits of Liberalism
All of the constitutive elements of liberalism have conceptual difficulties
embedded within them. The liberal emphasis on individualism presents a
fundamental contradiction. Individualism makes certain assumptions about
human nature. It emphasizes the concept of the individual as a morally self-
sufficient being who seeks and is justified in seeking her or his own satis-
faction, whether as a consumer of utilities or as an exerter and developer
of potentialities. 9 Promoters of individualism, although recognizing that
7See A.W.R. Carrothers, E.E. Palmer & W.B. Rayner, Collective Bargaining Law in Canada,
2d ed. (Toronto: Butterworths, 1986) c. 3 and 23.
gReference Re Public Service Employee Relations Act (Alta), [1987] 1 S.C.R. 313, 38 D.L.R.
(4th) 161, [1987] 3 W.W.R. 577, 87 C.L.L.C. 14,021 [hereinafter The Alberta Reference cited
to S.C.R.]; Public Service Alliance of Canada v. R., [1987] 1 S.C.R. 424, 38 D.L.R. (4th) 249,
87 C.L.L.C. 14,022 [hereinafter PS.A.C. v. R.]; Government of Saskatchewan v. Retail, Whole-
sale and Department Store Union, Locals 544,496,635 & 955, [1987] 1 S.C.R. 460, 38 D.L.R.
(4th) 277, [1987] 3 W.W.R. 673, 87 C.L.L.C. 14,023 [hereinafter R. W.D.S. U v. Saskatchewan].
These cases will collectively be referred to as the “right-to-strike trilogy.”
9C.B. Macpherson, “Pluralism, Individualism, and Participation” in C.B. Macpherson, ed.,
The Rise and Fall of Economic Justice and Other Papers (Oxford: Oxford University Press,
1985) 93 at 95.
REVUE DE DROIT DE McGILL
[Vol. 34
individuals live in society, do not perceive the individual as being necessarily
constituted, even partially, by their relationships within communities.
Central to the theory of individualism is the ascription of rights to
individuals10 and the denial of the importance of the principle of belonging.
The “existence of social and political communities, are secondary and de-
rivative, because they are conditional on an individual’s consent or because
they promote individual interest.”‘I But an individual can be free only to
the extent that her or his freedom is protected by the communal enforcement
of the corresponding obligations on others to respect that freedom. Others,
including parents, friends and cultural figures, are responsible for our de-
velopment as persons. At the same time, our existence as members of col-
lectivities imposes on us hierarchical structures of power, welfare and access
to enlightenment, whether based on birth, social class, or the accident of
genetic endowment.1 2 A number of recent critiques of liberalism have em-
phasized the community as an important element in defining who we are
as individuals. 13
In particular, these critiques reject the proposition that the individual
self can be considered to be constituted in complete independence of one’s
relations with others. The essence of selfhood cannot be adequately ac-
counted for without a consideration of the position of the individual in
various groupings such as family, geographic community, nation, cultural
community, linguistic community, etc. Thus, the individual can never be
truly free or voluntarily define with complete independence the role that he
or she will play. Because of the importance of community in defining who
we are, there is a need to work out in greater detail what this may mean
for the conception of group rights.
Deference to the rule of law connotes a concept of legal equality which
emphasizes that all individuals are equal before the law. Individuals must
‘There is a “widely accepted conception of rights, which relies on the idea that the rights-
bearing person is an autonomous individual capable of exercising choice for personal ends and
able to protect personal freedom from the pressure and power of others.” M. Minow, “Inter-
preting Rights: An Essay for Robert Cover” (1987) 96 Yale L.J. 1860 at 1882.
‘IN. Abercrombie, S. Hill & B. Turner, Sovereign Individuals of Capitalism (London: Allen
& Unwin, 1986) at 88.
12D. Kennedy, “The Structure of Blackstone’s Commentaries” (1979) 28 Buffalo L. Rev. 205
at 211-12.
‘3E.g., D. Cornell, “In Union: A Critical Review of Toward a Perfected State” (1987) 135
U. Pa. L. Rev. 1089; A. McIntyre, After Virtue: A Study in Moral Theory (London: Gerald
Duckworth & Co., 1981) at 204; M. Sandel, Liberalism and the Limits of Justice (Cambridge:
Cambridge University Press, 1982); M. Sandel, “The Political Theory of the Procedural Re-
public”, in A. Hutchinson and P. Monahan, eds, The Rule of Law: Ideal or Ideology (Toronto:
Carswell, 1987) at 85; R. Garet, “Communality and Existence: The Rights of Groups” (1983)
56 S. Cal. L. Rev. 1001.
1989]
COURTS AND LIBERAL IDEOLOGY
be stripped of their personal circumstances in determining the nature of
their legal rights. “Special determinants of legal status based on property,
religion, nobility, race, sex or other qualifications tend gradually to disappear
with the development of the law.”‘ 14 The application of this formal equality,
however, tends to have discriminatory effects. Even when this is recognized,
the ideological impact of the rule of law remains very powerful. Additionally,
the extension of rights to corporations as legal persons entitled to the equal
treatment of the law in one sense conflicts with the liberal emphasis on
individual autonomy while masking the conflict by referring to the corpo-
ration as a person. Furthermore, the unequal treatment accorded to unin-
corporated groups such as trade unions forces careful consideration of
arguments based on equality when determining rights as between workers
and employers.
The need for political decisions to be independent of any particular
conception of the good life, or conception of what gives particular value to
life, has been identified by Ronald Dworkin as one of the core features of
liberalism.15 This is closely connected to the idea that individuals must be
treated equally and are entitled to equal respect, because, if the government
favours some conceptions of the good life over others, it appears not to be
treating individuals equally. Furthermore, the best means of remaining neu-
tral among competing conceptions is, according to Dworkin’s interpretation
of this liberal tenet, to allow the operation of the economic market and
representative democracy. The ability of individuals to pursue their indi-
vidual preferences in the marketplace respects individual autonomy. Rep-
resentative democracy allows for the adjustment of competing demands for
public goods. 16 Governmental intervention in the market is justified, how-
ever, to balance some substantive inequalities (such as talents, initial wealth,
etc.), but not to favour individual preferences. Similarly, limits may be
placed on the elected representatives in a democracy to protect the right
that each person has to equal respect.
There are conceptual difficulties in claiming that the state in carrying
out the liberal agenda is in fact remaining neutral among competing pref-
erences. Furthermore, objections may be raised to the desirability of ex-
cluding value preferences in determining public policy.17
14R. Cotterell, The Sociology of Law: An Introduction (London: Butterworth’s, 1984) at 124.
15R. Dworkin, “Liberalism” in S. Hampshire, ed., Public and Private Morality (Cambridge:
16C.B. Macpherson, “The False Roots of Western Democracy” in ER. Dallmayr, ed., From
17See M. Sagoff, “Liberalism and Law” in D. MacLean & C. Mills, eds, Liberalism Recon-
Contract to Community (New York: Marcel Dekker, 1978) 17.
Cambridge University Press, 1978) 113 at 127.
sidered (Totowa, N.J.: Rowman & Allanhead, 1983) 12.
McGILL LAW JOURNAL
[Vol. 34
The distinction between private and public life (i.e., between civil and
political society) is an important feature of liberal thought. One of the in-
cidents of private society is that individuals have their own private ends
which are independent of or in competition with the goals of others. Par-
ticipation in public life is a necessary burden to ensure that public insti-
tutions maximize the ability of citizens to pursue their own private ends. 18
The emphasis on the importance of the private tends to lead to the pro-
tection and the promotion of the market as the quintessential means of
enabling the pursuit of private ends. The role of public institutions is to
regulate the private to the minimum extent necessary to ensure efficient
ordering. Again, there are conceptual difficulties in defining the borderline
between the public and the private, that is, between what is political and
what is not. These difficulties force one to question the usefulness of the
distinction as a guide in making decisions about the nature and extent of
constitutional rights. 19
These conceptual difficulties with liberal ideology arise at least in part
from the failure of liberal theory to adequately address the role of com-
munity in defining and constituting the individual. By failing to acknowledge
community in the process of the interpretation of rights, courts may create
boundaries between individuals, groups and society as a whole which do
not reflect social reality. The process of giving content to such ambiguous
concepts as freedom of association requires a sensitivity to the ways in which
the community itself engages in a process of formulating and promoting
claims. It requires sensitivity to the historical and social conditions that
define the nature of community. Courts should not proceed on the basis of
theoretical assumptions about the primacy of the autonomous individual.
This is not to deny that rights have a very important role to play in protecting
and promoting individual values. It is necessary, however, to recognize that
groups and various forms of community are also important to the individ-
ual, and that rights which protect and promote communal forms of action
are equally important and compatible with our constitutional history.20
III. The Right to Strike
Canadian trade unions have accepted extensive regulation of the right
to strike in return for the legal protection of bargaining rights. Strikes are
prohibited unless the union has formally obtained bargaining rights, either
through voluntary recognition, or much more likely, through certification.
A union with bargaining rights may strike only after it has complied with
,8J. Rawls, A Theory of Justice (Cambridge, Mass.: The Belknap Press, 1971) at 521.
19See infra, section III.C. for a discussion of the public/private distinction.
20See infra, note 28 and accompanying text.
1989]
COURTS AND LIBERAL IDEOLOGY
any of a variety of steps such as conciliation, the giving of notice and the
holding of a formal strike vote. In addition to these restrictive statutory
provisions, there are many groups which are denied the right to strike,
whether permanently, as the result of statutory intervention during a par-
ticular dispute, or as a consequence of the imposition of temporary wage
controls.
Unions claim that these denials of the right to strike are a fundamental
violation of the rights of trade unions to engage in effective collective bar-
gaining. In a number of recent cases, they have argued that freedom of
association includes the freedom to act in association, and that the right to
strike is an essential element to individuals pursuing their ends through the
means of a trade union. In a recent trilogy of cases, the Supreme Court of
Canada has categorically denied that the right to strike is in any way a
fundamental freedom. 21 Consequently, it gave a relatively narrow reading
of the concept of freedom of association and, in particular, one which failed
to consider the importance of communitarian values as a balance to indi-
vidual values.
In The Alberta Reference22 unions challenged Alberta legislation which
denied the right to strike to public service employees, fire fighters, hospital
workers and police officers. In R. W.D.S. U. v. Saskatchewan23 the Saskatch-
ewan government introduced ad hoc back-to-work legislation to prohibit a
strike by workers at eleven dairies in the province, and to prohibit lock-
outs by their employers. In PS.A.C. v. R.24 the applicant sought a declaration
that federal legislation implementing wage controls for public service em-
ployees was in violation of Charter guarantees because it limited collective
bargaining rights and prohibited strikes.
In each of the three cases, there is a plurality opinion by LeDain J.
with Beetz and La Forest JJ. concurring, a separate, concurring opinion by
McIntyre J. and partially or wholly dissenting opinions by Dickson C.J. and
Wilson J. The leading opinions are set out in The Alberta Reference on
which further analysis will concentrate.
The brevity of Justice LeDain’s opinion is startling given that it forms
the plurality. He clearly rejects the idea that freedom to associate generally
includes a constitutional guarantee of the activities of the group. There are
a number of more or less implicit assumptions that lurk beneath the surface
of his terse decision. McIntyre J., in his concurring opinion, and Dickson
2tSupra, note 8.
2Ibid.
2Ibid.
24Ibid.
REVUE DE DROIT DE McGILL
[Vol. 34
C.J. in dissent, provide a much more extensive analysis, although once again
there are crucial assumptions that are not developed in any detail.
A. Individual Autonomy
The aspect of liberal ideology that is most apparent in the decisions of
LeDain and McIntyre JJ. is the respect for individual autonomy. Firstly,
LeDain J. characterizes freedom of association as important for the exercise
of other fundamental freedoms. 25 These other fundamental freedoms, such
as freedom of expression, freedom of religion and freedom of conscience,
are guaranteed to the individual. This instrumentalist view of freedom of
association sees the freedom as merely derivative of individual rights. In
other words, it adheres to the liberal ideology that perceives the individual
as the only rational bearer of rights. According to McIntyre J., the realization
of individual rights and aspirations is the central concern of the constitu-
tional order.26 Groups are granted only very specific constitutional rights
(e.g., language rights, aboriginal rights and denominational schools) and
these are not of sufficient weight to alter the individualist tenor of the
Charter.
In determining the nature of freedom of association, McIntyre J. placed
great reliance on American writers. For example, he referred to the classic
article by Professor T. I. Emerson which states:
[A] theory of association must begin with the individual. In a society
governed by democratic principles it is the individual who is the ultimate
concern of the social order. His interests and rights are paramount. Association
is an extension of individual freedom. It is a method of making more effective,
of giving greater depth and scope to, the individual’s needs, aspirations and
liberties. 27
One can dispute both the theoretical conclusion about the derivative
nature of associational rights and the empirical observation about the bal-
ance between individual and group rights as set out in the Charter. With
respect to the latter point, Dickson C.J.’s dissenting opinion rejects the view
that freedom of association must be seen as derivative of individual con-
stitutional rights. In doing so, he alludes to “our Constitution’s history of
giving special recognition to collectivities or communities of interest other
than the government and political parties.” 28 The extent of these consti-
tutional guarantees to various collectivities provides a dramatic contrast
25The Alberta Reference, ibid. at 391.
26Ibid. at 397.
27T.I. Emerson, “Freedom of Association and Freedom of Expression” (1964) 74 Yale L.J.
I at 4.
28The Alberta Reference, supra, note 8 at 324.
19891
COURTS AND LIBERAL IDEOLOGY
with the emphasis on individuality in the American jurisprudence on which
McIntyre J. relies. 29
Indeed, there are important differences between Canadian and Amer-
ican society. These differences are manifest in such features of our polity as
the strength of a political party espousing socialistic policies, greater will-
ingness to use the state to control and direct economic development, and
greater deference to authority and desire for stability. As Monahan puts it,
“[w]hatever the explanation, the important point for present purposes is
that Canadian political culture cannot be portrayed as uniformly individ-
ualist. The Canadian polity has a rich and continuing commitment to col-
lectivist, organic values in addition to individualist ones.” 30
Blishen claims that there is a collectivist impulse evident in Canadian
developments, especially in relation to state intervention in the economy
and the provision of a wide range of social security benefits. 31 This com-
mitment to collectivism, when combined with other values predominant in
Canada such as diversity, equality, change and achievement, as well as a
heightened group identity and an emphasis on self-expression, creates the
conditions for a form of communalism. Blishen points to claims made by
francophones, women, indigenous peoples and visible minorities as evi-
dence of the growth and importance of groups in promoting the interests
of their members.32 He claims that the importance of organizations is in-
dicative of an inability of Canada’s democratic institutions to create the
conditions that would allow individuals to voice their demands and needs
more effectively in the democratic process. Although Blishen does not di-
rectly include unions in his analysis, they clearly should be included among
the groups to which rights must be extended to ensure a greater likelihood
of participation of workers in democratic processes. It is necessary for the
state to recognize various forms of communalism and for the courts, in
their interpretation of ambiguous concepts that clearly have a group ori-
entation, to be sensitive to Canadian conditions which are more hospitable
to group action and less deferential to individual autonomy.
It is possible to conceive of the right of association as having a status
independent of other individual rights. Ronald Garet,3 3 for instance, works
29E.g., J. Magnet, “Collective Rights, Cultural Autonomy and the Canadian State” (1986)
32 McGill L.J. 170.
30 Monahan, “Judicial Review and Democracy: A Theory of Judicial Review” (1987) 21
U.B.C. L. Rev. 87 at 135.
31B. Blishen, “Continuity and Change in Canadian Values” in A. Cairns & C. Williams, eds,
The Politics of Gender, Ethnicity and Language in Canada (Toronto: University of Toronto
Press, 1986).
32Ibid. at 18-22.
33Supra, note 13.
McGILL LAW JOURNAL
[Vol. 34
out a theory of rights which places group rights on a plane equivalent to
individual and social rights. They each have a common foundation in the
concept of existence. Groups have a right to maintain their existence and
to pursue their distinctive courses because belonging to and acting within
community is one of the ethical constituents of our humanity. To exist in
a human way is to be related to others through a wide variety of groups.
The individual members of a group share in defining the nature of the group
and the group itself shares in defining the nature of the person. “Personhood,
communality, and sociality are structures of existence, or necessary aspects
of human being.”‘ 34 The implication of this theory is that one should accord
to groups rights that are not merely derivative of individual rights. 35 This
is not to imply that there is no room for individual rights, but rather that
there is a need to be sensitive to the unique role that groups play in defining
our human situation. In the context of a right to strike for trade unions,
this leads to the recognition that the pursuit of workers’ interests through
group action has an intrinsic value of its own which need not be translated
into some form of individual right. While there may be situations in which
the interests of workers as a group are in conflict with a general societal
interest, these interests should be balanced on a case by case basis, rather
than rejecting group rights summarily.
In the specific context of labour unions, Staughton Lynd36 describes
the labour movement as based on communal values more than any other
institution in capitalist society:
This distinctive experience of solidarity, underlying the right to engage in
concerted activity, has three unusual attributes. First, the well-being of the
individual and the well-being of the group are not experienced as antagonistic. 37
Second, the group of those who work together-the informal work group,
the department, the local union, the class-is often experienced as a reality in
itself.38
Finally-and again in dialectical tension with the attribute just empha-
sized-the solidarity of workers articulated in the right to engage in concerted
activity can and must be individually exercised. 39
Lynd is careful to distinguish between different kinds of rights. Although
he identifies both individualistic and communal rights, he stresses that most
rights are not neatly divided into ones which are inherently individual or
341bid. at 1016.
35See also D. Rfaume, “Individuals, Groups, and Rights to Public Goods” (1988) 38 U.T.L.J.
1.
36S. Lynd, “Communal Rights” (1984) 62 Texas L. Rev. 1417.
37Ibid. at 1426.
38Ibid. at 1427.
39Ibid. at 1428.
1989]
COURTS AND LIBERAL IDEOLOGY
inherently communal. Some rights have a property-like nature such that the
exercise of the individual right diminishes the rights of others. Communal
rights, on the other hand, are such that their exercise by one person enhances
the rights of others. Most rights are sufficiently ambiguous that they can be
pushed in different directions by political and intellectual struggles. Fur-
thermore, communal rights are not the opposite of individual rights. Com-
munal rights can be exercised by both groups and individuals. They are
“rights characteristic of a society in which the free development of each has
become the condition of the free development of all. The opposite of a
communal right is any right which presupposes that what is accessible to
one person is therefore unavailable to another. ’40 Thus, Lynd cautions
against the danger of viewing the communal rights as exercisable only by
the group or society at large to the exclusion of the individual.
The application of this conception of rights to worker participation in
striking, picketing, union organization and other forms of union activity
supports an interpretation of freedom of association that would treat these
activities as constitutionally protected rights. By engaging in these activities
workers are not merely acting each out of their own self-interest, but out
of interest for all the other members of the group. One cannot make a
distinction between the rights of individuals to act in their own self-interest
and collective action for mutual interest. Group participation and individual
self-realization reinforce each other.
This is the approach taken by Dickson C.J. in The Alberta Reference.41
The recognition of the importance and value of group activity leads to an
enrichment of the individual –
an acknowledgement that certain things
done in unity have no individual equivalent. While individuals should be
permitted to engage in activities as members of an association which they
would be permitted to do acting alone, they should also be permitted to
engage in activities which do not have an individual counterpart.
McIntyre J. was willing to hold that freedom of association includes
the freedom to associate for the purpose of activities which are lawful when
performed alone. However, he claimed both that an individual’s refusal to
work would not be considered lawful and that, in any event, a strike is not
comparable with an individual’s refusal to work, and therefore no protection
4OIbid. at 1422-23.
41Supra, note 8.
REVUE DE DROIT DE McGILL
[Vol. 34
should be granted to that activity.42 Only individual action is seen as having
any inherent worth, and the benefits which arise from solidarity and acting
in community are ignored.
B. Legal Equality
In assuming that the reign of law guarantees liberty to the whole com-
munity, we are assuming that it is impartial…. Liberty in this respect implies
equality. Hence the demand of Liberalism for such a procedure as will ensure
the impartial application of the law.43
There are several different aspects of equality that should be kept sep-
arate in our discussion. First of all, there is the formal legal equality de-
scribed by Hobhouse in the above quotation. It is a mechanistic equality
in which legal rules are applied to all legal persons without regard to their
special circumstances. It opposes the granting of special treatment and de-
mands impartiality. A second aspect of equality is that in which individuals
achieve substantive equality in economic and social status. This form of
equality is the antithesis of the results achieved through the operation of
market forces, especially if there are initial inequalities in wealth and con-
sideration is given to the wide range of natural endowments of individuals.
There is no expectation in liberal ideology that formal legal equality will
result in substantive equality, and indeed there are many justifications prof-
fered for continuing substantive inequalities. For instance, Rawls claims
that social and economic inequalities are just “if they result in compensating
benefits for everyone, and in particular for the least advantaged members
of society.” 44 Finally, one should consider the issue of political power. An
initial tenet of liberal democratic ideology was that each individual had
political power exercisable through the right to vote. Political rights were
defined in terms of having an equal voice in choosing the government that
would exercise political authority. More recent variants of liberal ideology,
recognizing the role of political parties and of interest groups in the political
arena, use a pluralist analysis, claiming that individual interests in the po-
litical process are adequately represented through the exercise of political
power by pressure groups. An assumption is made that there is an equality
among the various pressure groups that justifies these forms of political
brokerage.
42Ibid. at 410-12. The claim that an individual refusal to work is unlawful and that therefore
no protection should be extended to a collective refusal to work fails to note the fundamental
difference in remedies for breach of the individual contract of employment and for an illegal
strike. In the first instance, the individual cannot be ordered to return to work, whereas in the
latter situation, the strike may be prohibited by injunction with the consequence that workers
as a collectivity are required to return to work.
43L.T. Hobhouse, Liberalism (London: Oxford University Press, 1911) at 24.
“Supra, note 18 at 14-15.
1989]
COURTS AND LIBERAL IDEOLOGY
LeDain J. makes the claim in the plurality opinion in the right-to-strike
trilogy that there is no valid distinction among various types of organiza-
tions, and hence, that trade unions cannot be treated differently from other
kinds of organizations.45 In his view, freedom of association is not a code-
word for trade union rights, but is a general right that must apply to all
types of associations. He fears the consequences of allowing all associations
to engage in activities which further their aims and objectives. What is
implied, but not stated, is that the constitutional entrenchment of protection
of group activity for all associations would have serious negative effects on
society.46 As a result, trade unions cannot be given a preferred status, because
of the liberal prescription of legal equality. There is an unstated hypothesis
that the granting of equal legal rights is all that is required to ensure justice.
No note is taken of the differences in power, status and wealth which may
determine the extent to which individuals or groups with equal legal rights
are able to benefit from this formal equality. The situation is more complex
than just stated. Legal equality cannot be separated from questions of po-
litical equality. LeDain J. describes the rights granted to labour (to collec-
tively bargain and to strike) as the result of a balancing of competing interests
in a field in which the courts have no expertise. 47 The implicit assumption
here is that the state is a neutral arbiter among competing interests, and
that, because there is a rough equality of power between the competing
groups, the outcome of the balancing process produces a just result.
McIntyre J. puts it more forcefully when he claims that freedom of
association plays an indispensable role in the functioning of democracy.48
Individuals, acting through groups, are able to limit the exercise of state
power and to influence the formation of government and state policy.
McIntyre J. goes on to claim that our labour laws are based on a political
and economic compromise between organized labour and the employers of
labour which are equally powerful socio-economic forces. One group con-
45Supra, note 8 at 390.
46AIthough LeDain J. does not give any examples, McIntyre J. does. Ibid. at 404-05, he
adopts an illustration of P Gall, “Freedom of Association and Trade Unions: A Double-Edged
Constitutional Sword” in J. Weiler & R. Elliot, eds, Litigating the Values of a Nation: The
Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1986) 245 at 247. Gall points
out that a government may have the right to ban the individual ownership of guns without
infringing on any individual constitutional rights. However, if freedom of assocation includes
the right of the association to pursue its objects, does this mean that the ownership and use
of guns by members of the gun club is constitutionally protected? The conclusion is that the
right to bear arms is not constitutionally protected, whether carried out by the individual or
by the association. Hence, the right of organizations generally to pursue their goals is said not
to be protected.
47Supra, note 8 at 391.
48Ibid. at 397.
100
McGILL LAW JOURNAL
[Vol. 34
cedes certain interests in exchange for concessions from the other.49 While
Justice McIntyre claims that there is no correct balance that gives permanent
satisfaction to both groups, he appears to accept that this essential equality
should not be interfered with by entrenching a right to strike. The parties
to the collective bargaining process define for themselves an acceptable bal-
ance using both collective bargaining and political processes. The state acts
as an impartial arbiter for the groups, balancing their claims against the
interests of other groups and putting the final compromises into legal effect.
The assumption that the state is a neutral arbiter and that there is an
equality of some kind among the competing groups is unjustified.50 The
judgements reflect an influential strand of political thought in the last fifty
years which emphasizes and applauds the pluralist nature of many Western
democracies. “In its simplest form, pluralism suggests that the outcomes of
the political process necessarily reflect the public interest. This theory as-
sumes that the public interest consists of nothing more than the [aggregate
of the interests of individuals] and that the political process provides a fair
method of aggregation.” 51
Offe and Wiesenthal claim that the concept of ‘interest group’ serves
to obscure categories of social class by equating the unequal. 52 Labour and
capital show substantial differences with respect to the functioning and per-
forming of their associations. They point out that “unions are associations
of members who, before they can become members of unions, are already
members of other organizations, namely employees of capitalist enter-
prises.”‘ 53 Thus, unions are only secondary organizers. The capital of an
enterprise is by its nature merged and united from the beginning, whereas
the labour power of workers is atomized, individual and indivisible. Workers
on their own have little bargaining power because each worker individually
faces the spectre of being replaced by other workers or machinery if she or
he makes excessive demands. Unions, as the association representing work-
ers, develop as a response to the ‘association’ that has already taken place
on the part of capital. 54 Because the labour power of workers is inseparable
from their persons, unlike capital which is physically and legally separate
from the capitalist, unions must represent a wide range of interests that are
directly affected by the exchange of labour power. This makes the organizing
49Ibid. at 414.
SOL. Panitch, “Recent Theorizations of Corporatism: Reflections on a Growth Industry”
(1980) 31:2 British Journal of Sociology 159.
51L. Seidman, “Public Principle and Private Choice: The Uneasy Case for a Boundary Main-
52C. Offe & H. Wiesanthal, “Two Logics of Collective Action: Theoretical Notes on Social
tenance Theory of Constitutional Law” (1987) 96 Yale L.J. 1006 at 1013 n.31.
Class and Organizational Form” (1980) 1 Political Power and Social Theory 67 at 72.
53Ibid. at 72.
54Ibid. at 79.
19891
COURTS AND LIBERAL IDEOLOGY
and representing of workers much more difficult than the organizing of
business interests. Differences between these groups in the class structure
lead to inequalities in power and differences in associational practices, or
logics of collective action, by which organizations of labour and capital try
to improve their position vis-a-vis each other.
Finally, Wiesenthal and Offe claim that pluralistic models are at fault
in assuming that different class groups are equally able to perceive and
articulate their group interests. Indeed, they demonstrate that for a variety
of reasons there is a much greater likelihood of misperception of interests
by the working class than by the capitalist class under capitalist relations
of production. Thus, differing organizational forms are needed to overcome
these specific distortions.
The idea that the legislature balances the claims of business and unions
fails to acknowledge that the logic of collective action for unions and busi-
ness associations is quite different and that the legislative balance is likely
to favour business interests.
Lowi describes the working model of interest group liberalism as having
three components: (1) organized interests are homogeneous and easy to
define; (2) organized interests emerge in every sector of our lives and ad-
equately represent most of those sectors, so that one organized group can
be found effectively answering and checking some other organized group as
it seeks to prosecute its claims against society; and (3) the role of government
is one of insuring access to the most effectively organized, and of ratifying
the agreements and adjustments worked out among the competing leaders. 55
However, Lowi claims that it is faulty to assume that groups confront other
groups in some kind of a competition. Even where there is a multiplicity
of groups, there is no assurance that there will be competition amongst
them. Given these faulty assumptions, there is no justification for the view
that the particular regime of rights granted by the state is the proper result
of a legitimate balancing of the claims of diverse groups.
Furthermore, Dahl notes that what he calls ‘democratic pluralism’,
through its tendency to mutual accommodation, can be a stabilizing force
that is highly conservative in the face of demands for innovative structural
change. The result is that existing inequalities in wealth and power are
reinforced or exacerbated. 56 Furthermore, the unequal resources available
to organizations allow them to exert disproportionate influence in deter-
mining which issues will be on the public agenda. Some groups are clearly
55T. Lowi, The End of Liberalism, 2d ed. (New York: W.W.Norton & Co., 1979) at 51.
56R. Dahl, Dilemmas of Pluralist Democracy (New Haven: Yale University Press, 1982).
REVUE DE DROIT DE McGILL
[Vol. 34
much more powerful than others, and some interests are underrepresented,
or not represented at all. 57 C. Wright Mills expresses it well when he states:
“Balance of power” implies equality of power, and equality of power seems
wholly fair and even honorable, but in fact what is one man’s honorable balance
is often another’s unfair imbalance. Ascendant groups of course tend readily
to proclaim a just balance of power and a true harmony of interest, for they
prefer their domination to be uninterrupted and peaceful.5 8
Mellos 59 analyzes the juridical construction of trade unions and cor-
porations as groups with equal rights. The juridical construction treats la-
bour constituted through the form of a trade union as a collective group
subject, equal with, but different from capital as a collective group subject.
The group becomes the collective actor differentiated one from another
not by a power disparity or other forms of inequality but simply by the dis-
tinguishing feature which constitutes its asset and marks its particular identity.
All groups in this ideological sense are equal, as were previously the individ-
uals-equal in the pursuit of their interests, subjects as centers of initiative,
singular units of action. 60
Thus, the Supreme Court’s view of the state as the neutral arbiter among
competing groups fails to consider both the tendency of the balancing proc-
ess to support existing inequalities and the varying impact of groups de-
pending on their ability to effectively marshal their resources.
The question is whether there is any alternative to accepting the balance
that has been established by the legislature. If one is to accept that judicial
review of legislative action has become an inevitable feature of the Canadian
political and legal system, then it is not sufficient to assume that the par-
ticular balancing achieved by the legislature is necessarily correct. One ap-
proach would be to extend the pluralist approach to judicial review. One
would justify judicial intervention on the basis of defects in the political
process whereby individual interests are aggregated to determine the public
interest. The exclusion or underrepresentation of various groups from the
process may be remedied by the courts to protect less powerful groups from
hostile legislation. 61
57R.J. Harrison, Pluralism and Corporatism (London: George Allen & Unwin, 1980) at 69.
See also R.A. Dahl, A Preface to Economic Democracy (Berkeley: University of California
Press, 1985).
58C. Wright Mills, “The Theory of Balance” in E. Malecki & H.R. Mahood, eds, Group
Politics: A Nev Emphasis (New York: Charles Scribner & Sons, 1972) 289 at 292.
59K. Mellos,”The Group in Pluralist Ideology and Politics” (1986) 10:3 Can. J. of Political
and Social Theory 24.
6Ibid. at 33.
6’Seidman, supra, note 51 at 1013.
1989]
COURTS AND LIBERAL IDEOLOGY
Clearly, if the legislative balance involves an interference with funda-
mental freedoms, the courts may intervene to adjust the balance. When it
comes to the specific rights of trade unions, and the right to strike in par-
ticular, the analysis is very complex. If the right to engage in collective
bargaining is in any way fundamental, 62 as I believe it to be, then one can
argue that effective collective bargaining within our labour relations system
is impossible if workers do not have the right to stop work collectively.
Trade unions cannot exist and function if effective collective bargaining is
impossible. 63 If workers are truly free to join together to pursue their eco-
nomic interests, to deny that the right to strike is fundamental is to deny
effective associational practice. The balancing of power can still be con-
trolled in many ways by the placing of reasonable limits on the exercise of
the right, the use of picketing, etc.
An often expressed fear is that the right to strike should not be regarded
as fundamental because engaging in strikes harms others who are not in-
volved in the conflict, and creates the danger of a group of workers coercing
employers, other employees, or the state into arrangements that they would
not freely have agreed to. The right of workers to take coercive action against
their employers can be justified by the unequal and authoritarian nature of
the employment relationship.64 It is unfortunate that the actions of strikers
have an adverse impact on others who are not a party to the strike. But
this is no reason to fetter strikes, especially when one considers the harmful
consequences of corporate decisions to lay-off workers, close or relocate
plants, etc.
It is important to note the implicit fear that guaranteeing a right to
strike will create an imbalance of power which favours the trade union. Of
course, this assumes that there is a proper balance in the absence of a strike-
a view which serves to reinforce structural inequalities. There is a deep
ambivalence in the liberal attitude towards the influence exercised by groups.
On the one hand, there is the belief that all interests should be represented.
621t is important to note that it is still an open question whether any aspects of collective
bargaining are protected by freedom of association. In PS.A.C. v. R., supra, note 8 at 453,
McIntyre J. stated that his finding that s.2(d) of the Charter did not include a constitutional
guarantee of a right to strike did not preclude the possibility that other aspects of collective
bargaining may receive Charter protection under the guarantee of freedom of association. On
the facts of the case, however, he held that the limitations on bargaining rights imposed by the
federal 6 and 5 wage restraint legislation were not sufficiently intrusive on the bargaining process
to amount to a violation of freedom of association. Thus, of the six justices participating in
the decision, only three held that there are no Charter guarantees in the collective bargaining
process.
630. Kahn-Freund & B. Hepple, Laws Against Strikes (London: Fabian Society, 1972) at 53.
64LJ. MacFarlane, The Right to Strike (Harmondsworth, England: Penguin Books, 1981) at
184.
McGILL LAW JOURNAL
[Vol. 34
On the other hand, there is the belief that some interests are dangerous and
suspect and thus ought to be discounted. 65
It is not surprising that trade union activity is one of the interests
considered dangerous. Fox has detailed a number of reasons why unions
are mistakenly seen as exercising an undue degree of power in comparison
with employers. 66 First, owners and controllers of resources seldom need
to publicly exert more than a small fraction of the power at their disposal.
Second, the social institutions, mechanisms and principles which support
the power of property owners are themselves seen as legitimate. There is
no need to exert power to change the status quo. Labour, however, has to
constantly marshal its forces to fight for marginal adjustments.
The myth of union equality or even dominance has obviously played
a large role in the decision of the Supreme Court of Canada. It is unfortunate
that a more sophisticated analysis of interest group participation and trade
union power was not undertaken.
C. Public/Private Distinction
In Western culture we apprehend a great deal of our social world by
distinguishing things that are public and things that are private. 67 The char-
acterization of the interests at stake in any particular activity as either public
or private is likely to depend on who will be better or worse off for whatever
is in question. Classical liberalism emphasized the role of the private agent
pursuing private ends as the best means of promoting the public interest.
Adam Smith’s doctrine of the ‘hidden hand’ applauded the egoistic pursuit
of self-interest through the exchange of commodities. 68 In particular, the act
of contracting should ideally be carried out in a realm free from state in-
terference. More recent versions of liberalism emphasize an organic view
of the public interest which, in many circumstances, justifies state regulation
of private affairs to promote the public interest. 69
Those liberals who favour more extensive state intervention in private
affairs are likely to do so because they believe that the public interest requires
a greater equality of wealth and power in society, necessitating vigorous
65S. Benn & G. Gauss, “The Liberal Conception of the Public and the Private” in S. Benn
& G. Gauss, eds, Public and Private in Social Life (London: Croom Helm, 1983) 31 at 59.
66A. Fox, “Industrial Relations: A Social Critique of Pluralist Ideology” in B. Barrett, E.
Rhodes & J. Beishon, eds, Industrial Relations and the Wider Society: Aspects of Interaction
(London: Collier MacMillan, 1975) at 302.
67S. Benn & G. Gauss, “The Public and the Private: Concepts and Action” in S. Benn & G.
Gauss, supra, note 65, 3 at 6.
68B. Fine, Democracy and the Rule of Law (London: Pluto Press, 1984) at 37.
69G. Gauss, “Public and Private Interests in Liberal Political Economy, Old and New” in S.
Benn & G. Gauss, supra, note 65, 183 at 196.
1989]
COURTS AND LIBERAL IDEOLOGY
government redistributions. Those liberals who oppose extensive state in-
tervention in private affairs fear the coercive power of the state. Judicial
review of government action is justified as a means of preserving the private
sphere.70
The maintenance of the public/private distinction rests on and results
in a limited view of the nature of equality rights. Equality before the law,
rather than equality of social, political and economic status, is likely to be
considered a right that can be and is constitutionally guaranteed. A full
commitment to the latter status would inevitably lead to a complete break-
down of the public/private distinction. Only by extensive state intervention
in the formerly private sphere could the necessary redistribution take place.71
Our legal system has demonstrated a bifurcated approach to collective
bargaining. Entering into collective agreements is often described as a vol-
untary process. Although an employer may be required to bargain with a
union when the majority of workers desire to be represented by the union,
there is no duty to reach an agreement. The collective contract governing
terms and conditions of work is a private matter for the parties to decide
upon subject to a number of limited exceptions. 72 It is not seen as the proper
role of the state to interfere in the contracting process. However, the exercise
of power by trade unions is often seen as having a significant public impact.
The fear that strikes will unduly harm the economy, lead to spiralling in-
flation, interfere with the delivery of essential services, endanger health or
engender any number of similar deleterious consequences is proffered as
justification for extensive government regulation of industrial relations. The
public interest is said to demand such intervention.
This intertwining of the public and private aspects of collective bar-
gaining suggests that any attempt to justify regulatory approaches or to
justify constitutional interpretation on the basis of categorizing collective
bargaining as falling within one sphere or the other is likely to defy rational
argument. Nevertheless, McIntyre J. makes such an attempt. He suggests
that the overall structure of the Charter is not concerned with economic
rights. 73 With limited exceptions, the Charter addresses the political and
democratic rights of individuals. Given that trade unions are primarily,
70Seidman, supra, note 51.
71See R.K. Winter Jr., “Changing Concepts of Equality: From Equality Before the Law to
the Welfare State” [1979] Wash. U. L. Q. 741.
72These exceptions normally include a ban on strikes during the term of the collective agree-
ment, the requirement to set up a mechanism for resolution of grievances, and limits imposed
by employment standards legislation. In some jurisdictions, a first collective agreement may
be imposed in certain limited circumstances and the union may be entitled to have union dues
deducted from non-members.
73The Alberta Reference, supra, note 8 at 405.
REVUE DE DROIT DE McGILL
[Vol. 34
albeit not exclusively, concerned with promoting the economic interests of
their members, it follows in Justice McIntyre’s opinion, that there is no
protection for the right of the trade unions to engage in strikes.
The concern about entrenching economic rights in the Charter is indeed
a legitimate one. There is a danger that the constitutionalizing of economic
rights could easily put extreme fetters on the regulatory powers of govern-
ment.74 Indeed, the movement to entrench property rights in the Charter
may in part be seen as an attempt by business interests to fetter the regulatory
actions of the state. However, it is not clear that there is an equivalence
among all kinds of economic rights. The right to pursue a livelihood is one
of the exceptions that is partly protected by the mobility rights provisions
in section 6 of the Charter.
Furthermore, it is possible to characterize workers’ interests in em-
ployment as encompassing more than economic concerns. Dickson C.J.
states in his dissenting opinion that, in determining the importance of the
right to strike, one is concerned with interests that go beyond that of a
merely pecuniary nature.75 Employment is an institution through which, in
David Beatty’s terms, “most of us secure much of our self-respect and self-
esteem. ’76 Trade unions, by playing a vital role in enabling individuals to
participate in ensuring fair wages, health and safety protection and equitable
and humane working conditions, are engaged in more than merely pursuing
pecuniary goals. Employees’ associational activity is of a nature that de-
serves constitutional protection, according to Dickson C.J.
Collective bargaining is also about more than economic issues and job
security. Collective bargaining has, in Paul Weiler’s words, a “civilizing im-
pact on the working life and environment of employees. ‘ 77 The collective
bargaining process is able to modify the exercise of social power within the
organization. The reduction of managerial discretion and the subjection of
decision-making to external scrutiny limits, in Weiler’s view, the abuse of
managerial power. The workplace is subjected to the rule of law. This clearly
places collective bargaining in a different category than other economic
institutional arrangements.
74J.G. Pope, “Labor and the Constitution: From Abolition to Deindustrialization” (1987)
65 Tex. L. Rev. 1071 at 1078, argues that American courts, in the course of avoiding judicial
enforcement of economic rights, incorrectly have embraced a theory which reduces labour
liberty to the status of an individual’s right to sell labour power. This seems to be much the
same position as that adopted by our Supreme Court in the context of the right to strike.
75The Alberta Reference, supra, note 8 at 367.
76D. Beatty,”Labour is Not a Commodity” in B.J. Reiter & J. Swan, eds, Studies in Contract
Law (Toronto: Butterworth’s, 1980) 313 at 324.
77P. Weiler, Reconcilable Differences (Toronto: Carswell, 1980) at 30.
1989]
COURTS AND LIBERAL IDEOLOGY
The associational activities of unions can also be seen as a form of
political expression that justifies a greater degree of constitutional protection
than other forms of economic activity. There are three aspects to this view.
First, the pursuit of economic security is primarily a political activity. The
importance of secfirity to workers is evident from the diverse array of meas-
ures sought to promote this goal. This array includes public pension
schemes, unemployment insurance, fiscal policies to promote economic sta-
bility, limitations in employment standards legislation on unilateral man-
agement decisions, etc. Resort to collective bargaining and the use of strikes
is merely another means of promoting the economic security of workers.
However, by characterizing this latter route to promoting workers’ interests
as the exercise of economic power in a labour market, there is a denigration
of its political aspect. It then becomes easy to claim that there should be
no constitutional protection for such activity. The conclusion, however, rests
on a false characterization of the interests and the associational activities
in issue.
Strikes are political in a second sense. The right to engage in strikes is
a measure of the right of workers to challenge the government as well as
employers on a wide range of policies, including governmental limitations
on the collective bargaining process. It is evident from the opinions in the
right-to-strike trilogy that the Supreme Court justices were not willing to
categorize all strikes as having a political component. However, their de-
cision does not rule out the possibility that strikes whose immediate purpose
is to challenge the legislative policy of governments must be considered as
an aspect of freedom of expression or within the protection of freedom of
association for political rather than economic purposes. 78
Finally, strikes may be considered to be political in the sense that they
are a challenge to the existing distribution of wealth and power in society.
The solidarity exhibited in the act of striking demonstrates a rejection of
the atomistic market as the legitimate means of regulating the sale of labour
power. It is a statement that workers share a class consciousness and re-
cognize the ultimate incompatibility of their interests with the unilateral
exercise of control by the owners of property. Such an analysis based on
class interests does not fit well within any liberal ideology. It is not surprising
that the Supreme Court did not venture to consider these political aspects
of strikes.
78See L. J. MacFarlane, supra, note 64 at 196, who argues that the political case for treating
the right to strike as a fundamental human right is overriding.
McGILL LAW JOURNAL
[Vol. 34
D. State Neutrality
The duty of the state to be neutral as between competing visions of the
good life has already been identified as one of the important elements of
liberal theory.79 In giving meaning to the concept of freedom of association,
two possible and contradictory definitions have been recognized. The first
conceives freedom of association as a right of persons to associate with
others of their choice in a non-coercive way. However, no specific protection
is given to the actions of the group that is not already given to the individual.
In other words, there is no promotion of or protection for specific purposes.
This can be labelled the liberal-political conception of freedom of associa-
tion. The second approach is functional, wherein freedom of association is
protected to secure a clearly defined social purpose, which, in the industrial
relations context, means the attainment of an equilibrium in bargaining
power between employers and workers. 80
Clearly, it is the former view that informs the approach of the majority
of the Supreme Court in the right-to-strike trilogy. Freedom of association
is characterized by LeDain J. as particularly important for the exercise of
other fundamental freedoms. He states that the freedom to work for the
establishment of an association and to participate in its lawful activity is
not to be taken for granted.8′
The rejection of the second approach is consistent with the individualist
ideology within which the courts have traditionally framed their approach
to rights. It is also consistent with a belief in the duality of political and
economic spheres of activity. However, it raises serious problems with re-
spect to the commitment to equality. Indeed, one can see that there is often
a fundamental contradiction between the perceived need to control indus-
trial strife and the impetus towards equalization of bargaining power. It is
the latter which is subordinated to the former by limitations on the right
to strike. The irony is that this is said to be done from a concern for the
general public interest. This ultimately leads the state to prefer certain types
of activities (productive ones) over others (limiting production as a means
of obtaining more preferable terms and conditions of work)-a clear vio-
lation of the neutrality norm that it has set for itself.
79See Dworkin, supra, note 15 and accompanying text.
8OE von Prondzynski, Freedom of Association and Industrial Relations, (London: Mansell
Publishing, 1987).
81The Alberta Reference, supra, note 8 at 391.
1989]
COURTS AND LIBERAL IDEOLOGY
IV. Right to Picket
The ability of unions to exert effective pressure on employers depends
to a great extent on the effectiveness of picketing. Picketing is a means of
signalling workers that a strike is taking place and of communicating the
views of the strikers to the general public. It is a call to solidarity and a
request for co-operation by those who are sympathetic to the specific de-
mands of the strikers. The picketers hope that fellow workers will respect
the picket line and refuse to work, and that customers of the picketed em-
ployer will refuse to do business.
Canadian labour law has extensively regulated the use of picketing.
Originally the subject of criminal sanctions as well as civil liability, it is now
the subject of extensive statutory regulations. The common law developed
a wide variety of actions such as trespass, defamation, nuisance, civil con-
spiracy and inducing breach of contract in order to control the extent of
permissible picketing. The latter tort, in particular, has been used to restrict
the scope of picketing to the struck employer, thereby protecting non-struck
employers from economic disruption that may be caused by a strike.
These limitations may have a substantial impact on the effectiveness
of strikes. An objecting employer can apply to obtain an injunction to pro-
hibit or limit picketing through a very summary procedure in which the
courts do not consider the underlying substantive issues in dispute, and in
which there is rarely a full-scale trial on the merits. Injunctions can be
granted very quickly, diffusing any momentum the union and striking work-
ers might have been able to build up. It is not surprising that the court’s
response to union picketing is one of the major factors that has fostered the
general distrust and disrespect that unionized workers feel for the judicial
system.
In a recent decision, the Supreme Court of Canada declared that com-
mon law restraints on secondary picketing are not susceptible to Charter
scrutiny. In R. W.D.S. U., Local 580 v. Dolphin Delivery Ltd82 the union was
on strike against Purolator Courier Limited [“Purolator”]. In the belief that
Dolphin Delivery Ltd [“Dolphin”] was allied to Purolator, the union threat-
ened to picket Dolphin. Dolphin immediately applied for a quia timet in-
junction to restrain the threatened picketing. By the time the matter reached
the Supreme Court of Canada, the only argument that the union submitted
for consideration was that the granting of an injunction infringed its freedom
of expression, contrary to section 2(b) of the Charter, and that this infringe-
82[1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174, [1987] 1 W.W.R. 577 [hereinafter Dolphin Delivery
cited to S.C.R.].
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ment could not be justified as a reasonable limit imposed by law under
section 1.
The Supreme Court decision, written by McIntyre J. and partially or
wholly concurred in by the six other justices who heard the case, held that
peaceful picketing involves the exercise of freedom of expression.8 3 Fur-
thermore, the Charter could apply to the common law,8 4 albeit in rather
narrow circumstances. In particular, it was held that the Charter would not
apply to private litigation that is completely divorced from any connection
with government.8 5 Section 32(1) of the Charter states that the Charter
applies to the Parliament and government of Canada and to the legislature
and government of each province. “Government” in this context was held
to mean the executive branch of government, and not the courts. Since the
prohibition of secondary picketing in this case did not, in the Court’s view,
involve any government action, the Charter could not provide any
protection.
The Charter could apply, however, in those jurisdictions where picketing
is controlled by statutory regulation. 86 Nevertheless, the successful invo-
cation of Charter rights by trade unions to protect secondary picketing is
still unlikely as McIntyre J. indicated in obiter that a prohibition on sec-
ondary picketing is a reasonable limit on freedom of expression because the
social cost of picketing justifies limiting it to the actual parties to the
dispute. 87
There are a number of strands of liberal ideology that can be discerned
from an examination of this opinion. First, the importance attached to
freedom of expression as a protected value and its link with democratic
fi eedoms is emphasized. Second, the crucial distinction between the private
rights of individuals and the world of government action is consistent with
the public/private distinction described earlier. There are two aspects to the
public/private distinction that are relevant here. The first aspect is whether
there are certain types of activities that are private in the sense that the
constitution is considered irrelevant in delimiting the scope of permissible
action. In other words, there is no constitutional duty imposed on a private
actor to refrain from conduct which interferes with the basic liberties of
another individual. The second aspect is whether there is a sphere of private
activity which the constitution protects from state interference.
8Vbid. at 588.
841bid. at 593.
85Ibid. at 597-603.
86Ibid. at 603.
87Ibid. at 590-91.
1989]
COURTS AND LIBERAL IDEOLOGY
An extensive commentary has already been produced on the scope of
the Charter and its applicability to private litigation.88 This commentary
has concentrated on the ambiguities in the Charter and there has been
considerable diversity of opinion about the appropriate reach of Charter
guara~tees. McIntyre J. purports to engage in an interpretive exercise with-
out providing an extensive theoretical justification for his conclusion that
the application of common law rules to purely private litigation need not
comply with Charter guarantees. He states the liberal view that the courts
act as neutral arbiters in disputes between private litigants. Yet he claims
that the judicial enforcement of orders which violate freedom of expression
or other constitutionally guaranteed liberties does not amount to govern-
mental intervention in private affairs of the type which the Charter is in-
tended to limit. The result is that the coercive power of the state is made
available to protect the economic well-being of employers as a class, while
simultaneously limiting the economic power of trade unions as well as their
freedom of expression. One would have expected a neutral arbiter to hold
itself bound by extraneously imposed principles found in the Charter.
The obiter holding that judicial prohibition of secondary picketing is a
reasonable limit on the freedom of expression was based on limited evidence
about the impact of the picketing. Indeed, given that the picketing had not
yet occurred, the Court was authorizing a prior restraint on the freedom of
expression. The Court was willing to hold that there was no need for concrete
evidence to demonstrate the reasonableness of the restraint, stating that in
this case it was self-evident.8 9 The economic interests of a business are pitted
against the economic interests of the unionized workers, and in this battle
the Court holds that the workers’ right to freely express their views through
picketing must defer to the rights of the business.
This conclusion is reached on the basis of a contractual view of col-
lective bargaining which sees industrial action as justified only to the extent
88E.g., K. Swinton, “Application of the Canadian Charter of Rights and Freedoms” in W.
TarnopoIsky & G.A. Beaudoin, eds, The Canadian Charter of Rights and Freedoms – Com-
mentary (Toronto: Carswell, 1982) 41; D. Gibson, “The Charter of Rights and the Private
Sector” (1982) 12 Man. L. J. 213; Y. de Montigny, “Section 32 and Equality Rights” in A.
Bayefski & M. Eberts, eds, Equality Rights and the Canadian Charter of Rights and Freedoms
(Toronto: Carswell, 1985) 565; J.D. Whyte, “Is the Private Sector Affected by the Charter?” in
L. Smith et al., eds, Righting the Balance: Canada’s New Equality Rights (Saskatoon: Canadian
Human Rights Reporter, 1986) 145; G. Otis, “The Charter, Private Action and the Supreme
Court” (1987) 19 Ottawa L. Rev. 71; D. Beatty, “Constitutional Conceits: The Coercive Au-
thority of Courts” (1987) 37 U.T.L.J. 183; and J. Manwaring, “Bringing the Common Law to
the Bar of Justice: A Comment on the Decision in the Case of Dolphin Delivery Ltd.” (1987)
19 Ottawa L. Rev. 413.
89Dolphin Delivery, supra, note 82 at 592.
McGILL LAW JOURNAL
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that it is directly exerting pressure on the party with which the union will
enter a collective agreement. 90 The contractual nature of relations between
employers and unions is a key component of liberal ideology, emphasizing
the appropriateness of parties determining for themselves the workplace
rules by which they will be bound. Intervention in secondary picketing is
justified because it is claimed that the target of the picketing is not in any
position to make the concessions that will settle the new contract. 91 Unions
are considered to be unjustified in their attempt to put pressure indirectly
on the primary employer by forcing others to stop doing business with it.
Although McIntyre J. claims that it is the general social interest which
requires the curtailment of secondary picketing, this general social interest
is equated with an interest in uninterrupted productivity. When an inter-
ruption occurs, it is identified as a social harm that justifies judicial inter-
vention without deference to constitutional guarantees of liberty. There is
no attempt by McIntyre J. to engage in the balancing that one would expect
under a section 1 analysis. There is no investigation of the adverse effects
on trade unions of limiting their exercise of freedom of expression. Rather,
there is an assumption that the economic power of unions is already ade-
quate for their needs without allowing them to extend the scope of their
picketing. This corresponds with the assumptions made about the balance
of power between unions and employers in the right-to-strike trilogy.
V. Political Expenditure of Union Funds
In a historic arbitration award made in 1946, Justice Rand balanced
union demands for a union shop against employer opposition to such an
arrangement and ordered that the employer deduct union dues from all
employees covered by the collective agreement, whether or not they were
union members.92 The Rand Formula was justified on the basis that those
who directly received the benefit of trade union representation should be
required to pay for it. The formula has been the subject of agreement in
many collective agreements since then, and it has been taken beyond the
pale of bargaining and instituted as a minimum union right in some juris-
dictions.93 The willingness of the state to extend this protection to trade
unions is partly based on the political power of trade unions, on the extent
90A limited exception to this principle arises when another employer or business is so closely
associated with the struck employer that it can be treated as an ally. Here, it was found in the
initial hearing on the application for injunction that Dolphin was not an ally of Purolator, the
struck employer.
91Dolphin Delivery, supra, note 82 at 591-92, citing P. Weiler, supra, note 77 at 64-65.
92Re an arbitration between Ford Motor Company of Canada Ltd and the U.A. W. (1946), 46
93See, e.g., Labour Relations Act, R.S.O. 1980, c. 228, s.43.
Lab. Gaz. 123.
1989]
COURTS AND LIBERAL IDEOLOGY
to which the prospects for industrial peace are thereby increased and on the
recognition that trade unions play an important public function which re-
quires funding to ensure its effectiveness.
However, the precise role of the trade union comes under close scrutiny
when one considers the purposes for which the union spends funds that are
collected from individuals who do not choose to become members of the
organization. There is a clear conflict between the concept of individual and
group rights. That conflict arises when the individual’s money is taken away
in circumstances amounting to coercion, and then used for purposes with
which she or he does not agree. The use of the word coercion here is guarded.
There is coercion in the sense that the only alternative that the individual
has to paying the required sums is forfeiting his or her job. While in classic
contractual theory this may not be sufficient coercion to render a contract
void, it is certainly accurate to describe it as a form of economic duress.
Nevertheless, there are many things that the citizens of a state are required
to do against their wishes. One could argue that the role of industrial citi-
zenship is analogous to political citizenship such that this coercion or duress
can be treated as legitimate.
In addressing this issue it is particularly important to delve behind the
justification for forced union payments. As already indicated, the role of
trade unions in Canadian industrial relations has been the subject of ex-
tensive regulation. This regulation crystallized in the late 1940’s in the form
of legal bargaining rights, controlled strikes and unfair labour practices. The
legalization of the industrial relations system was in part an attempt to
provide for greater industrial stability, workplace democracy and equality
of bargaining power. For unions to be effective in their role, it was seen as
important to grant them exclusive bargaining rights. However, this can be
regarded as a fair system by the requirement that the union be able to
demonstrate that it has the support of a majority of the workers that it
represents, and because of the duty imposed on it to fairly represent all
those for whom it has bargaining rights. A system of majority rule replicates
in the workplace the commitment to representative democracy which is
present in wider political forums.
For the union to be effective as the exclusive bargaining agent, it needed
financial resources that would allow it to stand up to the employer. Fur-
thermore, any gains made through bargaining are of such a nature that the
union could not restrict them merely to those that voluntarily paid for the
representational services of the trade union. The terms and conditions of
work that were negotiated took on the quality of public goods.94 Hence, to
94M. Olsen, The Logic of Collective Action (Cambridge, Mass.: Harvard University Press,
1965).
REVUE DE DROIT DE McGILL
[Vol. 34
prevent some workers from obtaining a free ride and to increase the bar-
gaining power of trade unions, the compulsory exaction of union dues was
seen as justified.
The preceding paragraphs emphasize the collective bargaining role of
trade unions. Unions in Canada have long recognized that it is not only
through collective bargaining that they can act effectively on behalf of their
members. Governments have long conceded that they must play a central
role in economic regulation and in determining many aspects of workplace
life. Unions have therefore seen it as an inevitable part of their task to
influence the governmental process so as to ensure the best possible deal
for their members. The methods by which a union might seek to directly
influence legislation include testifying before legislative committees, meeting
with elected and non-elected governmental officials, influencing public opin-
ion, mobilizing its membership to engage in political activity and providing
financial support of political parties or candidates.
Other roles played by trade unions that may be quite important include
the promotion of social relations among workers and the establishment of
a sense of solidarity among workers generally and with other groups that
share many of the same interests as workers in challenging the status quo
of political, social and economic inequality. These other goals require the
expenditure of funds. Several recent cases have considered the extent to
which trade unions can spend compulsorily collected union dues for pur-
poses other than collective bargaining.
In Re Baldwin and B.C. Government Employees Union95 a correctional
officer employed by the provincial government challenged the right of the
union in which he was not a member (but which represented him and to
which he was statutorily required to pay fees) to spend those fees on certain
purposes not directly related to collective bargaining. In making the chal-
lenge, the petitioner’s counsel argued not that the statutory provision re-
quiring the payment of union dues was unconstitutional, but that certain
uses of the funds by the union violated the petitioner’s Charter-guaranteed
freedoms. The Court decided that the uses to which the union put funds
that it was lawfully entitled to was a purely private matter, not involving
governmental action. This distinction between governmental and private
action is an important one, particularly in light of the Supreme Court’s
subsequent holding in Dolphin Delivery96 that Charter rights are only ap-
plicable to governmental action. By holding that there was no nexus between
the government compulsion of the collection of the dues and the ways in
95(1986), 28 D.L.R. (4th) 301, [1986] 4 W.W.R. 679, 86 C.L.L.C. 14,059 (B.C.S.C.) [hereinafter
Baldwin].
96Supra, note 82.
1989)
COURTS AND LIBERAL IDEOLOGY
which the union spent those dues, the Court in Baldwin was able to avoid
dealing with the question of whether individual rights must predominate
over the rights of the organization as a whole to engage in political and
other types of activities.
In Lavigne v. Ontario Public Service Employees’ Union97 the Ontario
Supreme Court was called to decide a case very similar to Baldwin. Mr.
Lavigne, a community college teacher, was not a member of the respondent
union which represented him in collective bargaining. He was, however,
required by the collective agreement between the union and the employer’s
representative, the Ontario Council of Regents of Applied Arts and Tech-
nology, to pay union dues. The governing statute did not require the payment
of union dues by non-members, but it did authorize such terms in collective
agreements. Mr. Lavigne objected to a variety of expenditures made by the
union and by the federated union bodies of which the union was a member
and which it financially supported out of its normal funds. The Court held
that there was sufficient governmental action to invite Charter scrutiny both
from the fact that the Council of Regents was a statutorily created body
that, by entering into the collective agreement, affected individual rights,
and from the statutory authorization for the collective agreement provi-
sion.98 The Charter violation was the forced payment of dues, and not
merely the union expenditure of these dues. It was on this basis that the
Baldwin case was distinguished.
In determining that there was a violation of Mr. Lavigne’s freedom of
association, the Court demonstrated its reliance on many of the liberal tenets
described above. Justice White held that, while there had been no violation
of Mr. Lavigne’s freedom of speech or conscience, his freedom of association
had been violated to the extent that he was forced to associate with causes
against his wishes.99 The right not to associate arises from the concept of
individual liberty. Even when one is not identified with the cause or the
group, there can be a violation of one’s freedom of association. The mere
fact of financial support is a form of forced association. It harms the in-
dividual in a sufficiently serious way that the government should be required
to achieve its goal of preventing free riders by a means less intrusive on the
individual’s freedom. The less intrusive means held to be applicable was
the granting of a right to objectors to opt out of paying any portion of the
fee that was used for non-collective bargaining purposes.100
Lavigne cited to D.L.R.]. The decision is on appeal in the Ontario Court of Appeal.
97(1986), 29 D.L.R. (4th) 321, 55 O.R. (2d) 449, 86 C.L.L.C. 14,039 (Ont. S.C.) [hereinafter
98 Ibid. at 360.
99Ibid. at 379-80.
109Lavigne v. Ontario Public Service Employees’ Union (No. 2) (1987), 41 D.L.R. (4th) 86,
87 C.L.L.C. 14,044 (Ont. S.C.) [hereinafter Lavigne (No. 2) cited to D.L.R.]. In this decision,
White J. fashioned an appropriate remedy in light of his finding in Lavigne, supra, note 97.
McGILL LAW JOURNAL
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The petitioner did not challenge the right of the union to collect dues
for collective bargaining purposes. Justice White concluded that the use of
compulsory dues for non-collective bargaining purposes violated a basic
tenet of Canadian political culture. It is claimed that Canada’s political
tradition is based on a free and democratic political system which requires
the individual exercise ofjudgement and decision-making. Unions are char-
acterized, in one sense, as being synonymous with certain political and
ideological perspectives. 101 The assumption is that the individual exercise
ofjudgement is unacceptably interfered with when a trade union collectively
acts to promote the political interests of those it represents. No attempt is
made to analyze the role of groups in a democratic system. There is a claim
made that unions are different from other service organizations because of
the compulsory aspect that arises from the concept of exclusive bargaining
agency.
Another important assumption that is made yet not explored in great
detail is the divisibility of the collective bargaining and political roles of
the trade union. White J. proposed the following test to determine which
expenditures are permitted without interfering with the individual’s right
not to associate: “Is the purpose reasonably related to collective bargaining
or is the purpose reasonably related to the administration of the collective
agreement?”10 2 In applying the test he concluded that union sponsorship of
participants (by paying for their lunch) at a conference dealing with social
assistance and public expenditures on a domed sports stadium was a political
expenditure, as were contributions to disarmament campaigns, contribu-
tions to support the amending of laws to permit free choice in abortions,
charitable and humanitarian aid to Nicaragua and contributions to political
parties. However, the promotion of union solidarity by financially sup-
porting striking British miners and by paying the expenses of Nicaraguan
unionists on a tour of Canada were sufficiently related to collective bar-
gaining purposes to withstand constitutional attack.
The idea that one can neatly sever collective bargaining and non-
collective bargaining activities into distinct and non-overlapping categories
is sustainable only with certain assumptions. These assumptions are that
collective bargaining is unaffected by the actions of the government in setting
economic and social policies, that any particular institutional configuration
in which collective bargaining takes place has no effect on the substantive
outcome of bargaining and that the process of collective bargaining itself
1011t is not clearly indicated what this political or ideological perspective is, although reference
is made to the unions’ close links with the New Democratic Party [Lavigne, supra, note 97 at
379]. It is disputable whether there is such a unitary ideological perspective within the Canadian
labour movement.
102Lavigne (No. 2), supra, note 100 at 109.
1989]
COURTS AND LIBERAL IDEOLOGY
does not have any particular political significance. All of these assumptions
are questionable.
There is obviously a wide range of governmental policies that are crucial
to the substantive outcomes of collective bargaining. These are not limited
to regulations which directly control terms and conditions of work such as
minimum labour standards or occupational health and safety legislation.
General government policy on issues such as the availability of unemploy-
ment insurance, daycare, interest levels, money supply and trade policy are
of crucial concern to the conduct of collective bargaining. In other words,
unions do not necessarily have to take the collective bargaining environment
as a given, but may legitimately be interested in helping to create as fa-
vourable an environment as possible.
Although political action is extensively connected with collective bar-
gaining, it is not the only issue that presents difficulty of application. The
idea that there is a political world that is in some real sense distinct from
a non-political world of private affairs itself presents difficulties. The danger
is that by dividing the world up in this way we fail to see the essential
interrelatedness of public and private-social and political. In fact, the at-
tempt to concretize such distinctions may serve as a smokescreen for the
essential role played by the courts in maintaining the conditions necessary
for the continuing accumulation of capital in our liberal, democratic and
capitalist society. By characterizing certain functions, such as the control of
picketing,10 3 as a matter of private law, and others, such as the regulation
of union expenditures, as essentially a public matter, the courts are able to
effectively limit the power of trade unions to challenge the status quo when
necessary. By emphasizing individual rights, whether of employers to be
free from the effects of a strike to which they are not a party, or of workers’
refusal to make financial contributions to causes with which they disagree,
unions are fettered in their ability to effectively represent the collective
interests of their members.
An approach to the expenditure of union funds which recognized com-
munal values would differ considerably from the liberal approach. Rather
than reducing union activity to its instrumental ability to facilitate indi-
vidual betterment, emphasis would be placed on the workplace as one of
the communities within which the individual is situated. The choice to
favour unions is seen as the expression of already assumed responsibilities
and obligations, responsibilities assumed when one becomes a worker at
that particular workplace.’0 4
’03See Dolphin Delivery, supra, note 82.
104See Cornell, supra, note 13 at 1102-03.
REVUE DE DROIT DE McGILL
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VI. Conclusion
The idea that each person is and can be in complete control of his or
her individual destiny is a fabrication that does not correlate with the real-
ities of complex relationships in a modem society. Only by developing a
theory that gives greater recognition to the role of communal values, the
existence of duties, obligations and rights at an organizational level which
is smaller than the overwhelming structure of the state, is there the possi-
bility of fully translating into law the reality of the modem condition.
The inclusion of a guarantee of freedom of association in the Charter
places before the courts the task of interpreting what is clearly an ambiguous
concept. In hard constitutional cases such as these, judges will have to justify
their decisions with arguments “drawn from the most philosophical reaches
of political theory.”105 Judges must “look to the actual political history of
[their] community as a check on the answer that seems right to [them] from
the point of view of justice.”10 6 The decisions on the right to strike, the
right to picket and the right of unions to spend their funds on non-collective
bargaining purposes demonstrate the extent to which judges are wedded to
a particular political philosophy. However, they fail to demonstrate either
the depth of argument or a sensitivity to the political history of the Canadian
community that such decision-making requires.
10SR. Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986) at 380.
106J. Abramson, “Ronald Dworkin and the Convergence of Law and Political Philosophy”
(1987) 65 Tex. L. Rev. 1201 at 1221.
