Discussion Foucault, Agamben, and Arbour J.’s Dissent in Gosselin

In Gosselin v. Quebec, the Supreme Court of Canada considered whether the Quebec legislature violated the Canadian Charter of Rights and Freedoms by failing to provide unemployed adults under the age of 30 (young adults) with the level of social assistance provided to other unemployed adults. A majority of the Court concluded that the underinclusive legislation in question was not unconstitutional. The case gave rise, however, to one of the most progressive and intriguing dissenting opinions in Canadian constitutional history-a dissent made all the more interesting by the fact it was written by a judge who would later become the United Nations High Commissioner for Human Rights: Louise Arbour. Her dissent focused on the proper interpretive approach to s. 7 of the Charter, which states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” She argued that the “right to life” contained in s. 7 entails a number of positive rights, including the right to a minimum level of social assistance. This paper argues that Arbour J.’s dissent in Gosselin reveals an inherent flaw with the very concept of rights; namely, that they presuppose the state’s authority to exclude whole populations from the protection of law. The argument has four parts. Part I reads Arbour J.’s approach to the constitutional questions raised in Gosselin as broadly sympathetic to Foucault’s understanding of power in the modern era. Part II claims that Arbour J.’s judgment presumes that formal legal regulations, and not other, informal mechanisms of power, chiefly bear the burden of governing life. Part III examines Agamben’s critique of Foucault to show why Arbour J.’s privileging of state governance of well being is problematic; in particular, that the greater the formalization and centralization of the mechanisms by which life is governed, the greater the prospect of exclusion of groups and classes from rights regimes altogether. Finally, Part IV explains that Arbour J.’s concession to juridification is driven by an inherent problem with rights, and that the difficulties she runs into cannot be avoided; that exclusion from the rights framework is built into the very concept of rights.