Although the Charter itself is now only 20 years old, its history comes before the thought of a Canadian Charter. It started with the concept of human rights. To us, this sounds absurd. The CONCEPT? But we all know about human rights! Well, human rights as we know them today are reletavely new, although philosophers had been chucking ideas around for millenia. They came up with two types of rights, natural and positive (like the different types of law).
Natural: unrestrictive. Rights that are enduring and universal - everyone has them. They cannot be limited. For the well-being of the individual.
Positive: these rights are shaped by politics, society and economics. The view on people's rights varies with the environment. For the well-being of society.
There is a pretty big difference here. But the actual, full, competely detailed development of the human rights theory would take months to read. So a brief overview will suffice.
It started with the ancient Greeks. Human right's advocates argue that human dignity is such a universal and eternal value, that it stands above the law, everywhere and anywhere. This idea came from Plato, whose notions of eternal and universal truths or values are incorporated in modern human right's theories. Aristotle's contribution was to the modern concept of law and justice that equals should be treated equally. (Until recently, this maxim was still used in the modern expression that wrongful discrimination can only occur in groups that are "similarly situated.")
Ideals on human right's went on from there, constantly being revised through centuries, by men such as St. Thomas Aquinas. He believed that there should be protection, under law, of certain human needs (such as procreation and self-preservation).
Thomas Hobbes, however, was a positive law theorist and thought that the source of basic human right's came from strict, stringent laws to enforce them. Human right's could be and should be given and taken away by the state.
A philosophy used in Canadian human right's laws is utilitarianism, which Bentham and John Austin embraced. This is Bentham's thought on the creation of human right's:
"Right is a child of law; from real laws come real rights, but from imaginary law, from 'laws of nature,' come imaginary rights . . . Natural rights is simple nonsence."
Another positive law theorist (thereby being a positive right's theorist) was John Locke. But he modified the classic view of positive law (which was "the idea of law springs from the command of the state"), to one where positive law was imbeded in a state's constitution, which is the foundation for legal order, which was then based on natural law. This led to the theory that although legislative power reigned supreme, it was subject to reasonable natural law and the fundamental rights of individuals to life, liberty and property. When the power of state was not used for the common good but for selfish purposes by the powerful, Locke thought that revolt was acceptable.
The social contract theory, largely the inspiration of Jean-Jacques Rousseau (1712-1778), is still a major influence on our approach to human rights today. All persons within a state were viewed as agreeing to the contract. German philosopher Immanuel Kant (1724-1804) had ideas that are still seen in modern, liberal philosophies of human rights. He believed that "people should act in such a way that the exercise of his or her individual freedom leaves room for the equal freedom of others." People should "act in such a way that if all others should act like you, everything would be well."
Another influence on human rights was John Stuart Mill (1806-1873). He was against the rule of the majority as he felt it robbed individuals from their identity. The freedoms he believed people had were, freedom of conscience, expression, right to publish, liberty of tastes and pursuits and freedom to unite. He also felt that these were not absolute; that they should not deprive another's rights and their abilities to achieve them.
This is seen in the legal theory of the Canadian Charter of Rights and Freedoms, and Mill had more influence on our modern meaning of "liberty" than any other philosopher.
However, in the ninteenth century a new political philosophy was coming up. Communism. Karl Marx (1818-1883) and Friedrich Engles (1820-1895) both believed that rights and freedoms were mere illusions, which had nothing to do with true social reality - the exploitation of the working class by the dominant capitalist class. As they saw it, the law was used for domination and class exploitation. Marx did not believe that a ridding of the government would beget freedom; rather, that through the government liberty could be gained. Equality overrode liberty.
More people added their theories and kept revising old ideas, in fact, most modern ideas are rooted in older philosophies. Women came into the picture with the suffragette movement, where they wanted to revise the old idea that "women are not people in the eyes of the british law." They fought, tooth and nail (sorry for the clishé, but it's true) until they were finally granted their rights. Equality rights started taking off. Women, blacks, Jews, for a few examples, were starting to be treated more fairly. Of course, it wasn't an immediate change, and there is still discrimination, but legally everyone is equal.
All these people, ideas, events, eventually led up to the Canadian Bill of Rights. But the Bill didn't have all the information written down, needed, etc. and things weren't specified exactly. So then the Charter was created. There is probably a lot more I could write about the Charter, but I think that this is a pretty good background to start off with.
