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Legal Perspectives: Intro

o
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Goes along with constructionism


Anti- essential = NO essential quality that we talk about when we talk about gender or race

Table of Contents
Legal Perspectives: Intro 2
Traditional Natural Law Theory 4
American Legal Realism: Law as Judicial Prouncement ..
8
Legal Positivism Classic & Modern
13
Harts Separation Thesis: Decision making in the penumbra
..14
The Morality of Law Lon Fuller (modern Natural law)
..22
Ronald Dworkin: Law, Principles & Rights (modern natural law.
.....26
In Defence of Liberty; Paternalism.
....33
Law and Economics: law as efficiency
.40
Feminist
Jurisprudence
...46
Sources & Scope of Indigenous
Laws.52
Critical Legal studies & critical race
theory.54

Intro to Legal Perspectives (Jurisprudence for Judges, R. Devlin)


Old

Legal Theory
Natural Law
Postivism
Legal Realism

Contemporary Legal Theory

Liberalism

Postmodernism

Identity Jurisprudence

Natural Law BASICS


Diverse Strands:
1. Rationalistic there is an
objective law out there and we
must find it

United by Key Themes:

Universal, immutable, and objective not specific to any one


society; dont change; law not tainted by humans (comes from
somewhere else)

Absolute values of truth and justice laws embody absolute truths


and justice (these exist on a plain that is outside the human realm)

Laws validity depends on content (morality)

Natural law superior to human law (and where conflict, natural law
trumps)

Critique: universality an illusion (all law the product of, informed by,
the culture in which it is situated)

Christian or theological laws


come from a divine source;
humans must capture that law
and then express it
3. Natural rights self-evident
rights looking out into the
natural world, these rights are
evident
Critique universality is an illusion; all law is the product of, and is informed by, the culture in which it is
situated
2.

Legal Positivism BASICS


o

Reaction against Natural Law

Reaction against anarchy theory (i.e., that revolutionaries will say they are acting on the divine law (rather
than human made law) in order to justify their cause)

Laws MUST be understood as a human artifact

Laws validity does NOT depend on its moral content


o Analytical approach to what law is, not what it should be (law as human artefact)

Morality, justice, excluded from laws definition (although not evaluation)

Law as a system of rules generating habitual obedience that can be established empirically (law as science)

This is contrary to Hobbes who says that a law is not a law if it is not moral

Critique of this? endorsing just man-made law; based entirely on form and not on content; what about
tyrannical regimes?
o Nazi Germany happens and positivists have to re-evaluate their position

Legal Realism BASICS


o
o

Life of the law has not been logic: it is experience OW Holmes


Rejects idea of law as being driven by laws:

Law is part of larger system, a means to achieve a social end evaluation focused on those ends, and success
of law as means of achieving them
Rejects formalistic perspective that judges are empty vessels compelled to make decisions that the law REQUIRES
them to make; law is pure reason expressed in formulas (laws)

Legal rules MUCH LESS deterministic than positivists assume


o Judges dont simply follow the rules but are key legal actors exercising significant discretion
Therefore perfectly reasonable to inquire into their personalities, politics, economic assumptions,
and other non-rational factors informing decisions

Liberalism BASICS
o

o
o

Dominant perspective in Canadian Law

Commitment to general, democratically promulgated rules, the equal treatment of all citizens before the
law, and the radical separation of morals, politics, and personality from judicial action
Rejection of natural law there is no such thing as universality in law; diverse country = ppl will have different
ideas about what the law is
Starting point the rational, free-choosing individual who is prior to (and independent of) both the community and
other individuals

Rational individual making decisions dispassionately; always choosing in their own best interest
Law is facilitative; provides mechanism for social interaction while protecting/maximizing individual freedoms

Postmodernism (critical legal studies) BASICS


o
o

Identifies liberalism with modernism (idea that a single meta-explanation/theory is possible, desirable)

Most modernists believe that there is ONE theory that can describe everything
Postmodernists reject modernists theories:

Liberal theory of persons as rational and free-choosing describes only a limited (dominant) sector of society

The law is built around this dominant sector, and as such is THEIR law, but its inappropriate and inadequate
for ppl outside this sector

There isnt just ONE law that explains everything; the law that we have doesnt speak for everybody (although
it pretends to)
Seeks to uncover and give voice to those perspectives and values that have been suppressed by
modernism/liberalism

Identity Jurisprudence - BASICS


o
o

o
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No Law with a capital L


Law as a system of socially constructed and coercive norms fundamentally concerned with power:

Law not only reflects the power relations in society, it simultaneously constitutes and legitimises the power
relations in our society

There is no societal consensus (unlike the liberal perspective); rather, a deep dissensus (to which identity is
absolutely central)
Comes out of postmodernism trying to understand the POV of those who dont fit within the legal paradigm
Includes: Feminist; First Nations; Critical Race theory; Gay/lesbian/queer theory; Critical Disability theory

Idea is putting yourself in a certain standpoint, and seeing the law through THOSE eyes

Conclusion
o

Perspectives are in conversation with one another its important to understand how they relate to one another!

That conversation between them reveals, helps us to understand, different aspects, functions, and impacts of
the law and legal system (not necessary to choose)

SOURCES

CHARACTERISTI
CS

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Natural Law
Higher law derived from a higher, nonhuman source:

God

Nature (survival of the fittest)

Reason
Universal and unchanging
Might be literally translated/transcribed (e.g.,
theocracy) provides normative independent
standard for evaluation of human law
Natural Law as morally RIGHT

o
o

Human Law
Natural law task of human law
is to discover the source (of
natural law) and ensure its
principles are put into effect
Always changing, various,
specific to time, place people
Human Law that embodies or is
consistent with natural law must
also aim at morally right aims

St. Thomas Aquinas: Traditional Natural Law - Unjust Law is NO Law


o
o

Diverse morality less of an issue for St Thomas Aquinas in his world


Need to historically locate TA and his understanding of morality (or, the common good), to understand his
philosophy of law as providing basis for a workable system

What is Law?
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1.
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2.
o

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3.
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Four kinds of law: eternal law, natural law, divine law, and human (positive law).
Positive law is derived from natural law
Three factors that will make a law unjust (substantive): (1) inconsistent with natural law; (2) law-giver has
exceeded its authority; (3) laws burdens are imposed on citizens unfairly
Eternal law
Divine law; Gods law (followed by the natural world as by humans); expressions of divine will ordering the
universe (laws of nature, if we accept they originate in divine will)
Natural law
Applies only to rational beings (humans); our natural gift of reason and free will allow us to identify the common
good and the reasonable path that will lead us there (the proper subject of the law)

Natural law requires act of choosing to obey (valid) law, which leads us through reason to common good
Natural because good is that which all things seek after- it is natural for us to want the good (choosing the
good; choosing to obey); seeking the good is our nature, bestowed on us by the God who created us
Source: Not identical to eternal law (the divine law ordering the universe; the laws of nature)

Natural law peculiar to humans as rational beings- a product of mans reasoning process (man is not the
passive receptor, transcriber, of natural law)

How then is TAs natural law not simply a man made artifact?
o Mans nature, as crafted by God, inclines him to the common good
o Mans reason, as crafted by God, allow him to devise the steps that will lead us there (laws)
Human Law
Humans may be led astray by passion or vice that is why we need human law, to enforce the true natural law and
punish transgressors
The conditions required for valid human law marry the necessary content with the necessary means of
enforcement (and when we follow human law, the habit of obedience makes us good)

Law makes people virtuous, because they are doing what is reasonable and in pursuit of good, and because
they are developing the virtuous habit of obedience
Human law is limited- to human actions (not all thought and motive), and to the common good; eternal law applies
where human law is limited

Law and Morality


o
o
o

There is no obligation to obey unjust laws (they are not laws in the fullest sense do not carry the same moral
force)
We are morally bound to obey just laws; coerced to obey unjust ones
The lawmaker is always morally bound

Legal process
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Good is that which all things seek after (it is our nature, bestowed by God)
Laws show us the reasoned steps (practical reason) that will take us to this common good the objective of
laws
Threats, force and punishment may be needed to keep us on this road, despite our true nature to seek it (the
serpent)

This develops in us the habit of obedience (virtue, for TA), develops our striving for the common good

Valid Law must have the following four elements


1. Must be directed to the common good
o TA an essentialist believes some recognised goods are essential to all humans (our characteristics and
inclinations): self-preservation; procreation; living in society and exercising spiritual and intellectual capacities
o Common good = good of community, as opposed to good of a specific individual or what (even most) individuals
want
Order and the common good
o The order imposed by law also a necessary element of the common good; human happiness is only possible in
stable society/community; law facilitates stability and thereby happiness
2. Must follow practical reason (reasonable steps leading to the common good)
o Law directs us as to what we must do, the steps we must take, to reach the end of the common good

The sovereigns command, to be law, must be in accord with some rule of reason

Laws are practical reason directed to the common good (law as teleological)
Practical reason and the common good
o Order imposed by law also necessary for common good; human happiness is only possible in stable
society/community law facilitates stability and thereby happiness
o TA an essentialist believes some recognised goods are essential to all humans (our characteristics and
inclinations): self-preservation; procreation; living in society and exercising spiritual and intellectual capacities
o
Analogous to OAKES:

Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society
Practical reason

Common Good

Thomas Aquinas
Practical reason is directed to
achieving happiness; if we act in
accordance with reason we will
be happy; the goal of law is
universal happiness the
happiness of all, the community
Objective of law must be
consistent with common good

Oakes provision saved by s. 1 if:


2. "the means chosen are reasonable and
demonstrably justified
o Proportionality test requiring the invoking
party to show that the measure in question are
carefully designed to achieve the objective in
question
1. its objective is related to concerns which are
pressing and substantial in a free and democratic
society

3. Must be made by valid lawmaker


o The ruled and the ruler (requirement of valid lawmaker ruler within community who holds his position by reason
of the natural order)

A naturally ordered relationship some naturally rule, some naturally are ruled (not democracy!)

The natural rulers know what is in the common good, and what will achieve universal happiness, and they can
threaten, coerce and punish the ruled to pursue the goal
4. Must be promulgated
o A condition of justice that laws be written, and known (people cannot obey unknown laws)
o Purpose of law to compel obedience obedience to law will result in the common good (obedience impossible
where law not knowable)
o Purpose thwarted where law not known (no retroactive law)

The problem of unjust (purported) law law as teleological


o

Teleology = some, perhaps all things have a proper end or function, and can only be understood with that in
mind

Laws end or function the rational pursuit of the common good (morality)
o Apparent or purported law that does not have this function is not law, and need not be followed

If valid law must be consistent with natural law (if that transcribed) a law with an evil end is not
really a law

Practical Reason
(leading to the CG)

Valid Lawmaker
(capable of
recognizing CG)

Promulgation
(knowing the steps
required by
practical reason to
achieve the CG,
and practice
obedience/virtue)

Commo
n Good
o

What is good justice; fostering virtue; maintenance of order

Ideal relationship between human law and natural law (necessary for valid law)
o
o
o

May embody natural law mal in se (things evil in themselves)


May supplement natural law mal prohibita (things wrong because they are prohibited)
To be valid, things mal in prohibita must be nevertheless rationally connected to moral good (rule associated with
safety, a good thing), consistent with laws teleological nature

Limits! the problem of unjust laws


o

o
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Human law that follows natural law (reason in pursuit of the common good) will be JUST

Valid law-maker naturally positioned to know/recognise the common good, and the practical reason that will
take us there

But it is possible for humans to make unjust laws, because humans are fallible (the serpent!) and may not
follow their inclination towards the good

Unjust laws are not valid (and do not have the power of law)
Emergency situations may also compel non-compliance with laws to avoid greater evils
We may disobey unjust laws, unless to do so would cause disorder, which is an evil

Legislation v judge made law


o

Legislation is preferable:

Few legislators possess greater authority and are (therefore) more likely to possess wisdom

General abstract laws more moral than particular application

AND legislators will not be moved by emotions of those before them

What Judges Do
Judgement a right decision about what is just; requires:

Prudence

Inclination of justice

AND authority (authority is a pre-condition of just judgment)


o If the written law contains anything contrary to the natural right it is unjust and should not be applied- otherwise,
judges must apply the written law (written law being made by the public authority in the community)
Interpreting the law: the letter and the spirit
o The spirit of the law is most important

We must be content to use general laws while recognising that exceptional cases may arise in which
obedience to the letter of the law must give way to the spirit of the law which aims always at the common
good
o R v Latimer? Something like argument of the accused (obedience to letter of law must give way to spirit)
o

Practical reason (law of necessity)


The defence of necessity is narrow and of limited
application in criminal law. The accused must establish the
existence of the three elements of the defence:
1. There is the requirement of imminent peril or danger
2. The accused must have had no reasonable legal
alternative to the course of action he or she undertook
3. There must be proportionality between the harm
inflicted and the harm avoided
Here, the trial judge was correct to remove the defence
from the jury since there was no air of reality to any of the
three requirements for necessity:
1. The accused did not himself face any peril, and Ts
ongoing pain did not constitute an emergency in this
case
2. Ts proposed surgery did not pose an imminent threat
to her life, nor did her medical condition
3. It was not reasonable for the accused to form the
belief that further surgery amounted to imminent peril,
particularly when better pain management was
available

Leading to the Common Good


Moreover, the accused had at least one
reasonable legal alternative to killing his
daughter he could have struggled on, with
what was unquestionably a difficult situation,
by helping T to live and by minimizing her
pain as much as possible or by permitting an
institution to do so
Leaving open the question of whether the
proportionality requirement could be met in
a homicide situation, the harm inflicted in
this case was immeasurably more serious
than the pain resulting from Ts operation
which the accused sought to avoid
Killing a person in order to relieve the
suffering produced by a medically
manageable physical or mental condition
is not a proportionate response to the harm
represented by the non-life-threatening
suffering resulting from that condition.

What is Legal Realism?


o
o

Cluster of perspectives on law and legal process emerging in the US around the turn of the 20 th century
Share skeptical approach to formalism (judge as empty vessel just applying the law)

Formalism idea of law as scientific set of rules derived from pure rationality, and interpreted/applied by
neutral channelers (judges)

NOT saying that judges SHOULD have discretion or that this is a good thinglegal realists are just saying that
in fact, they do, and they must, and they cannot do otherwise

Rejection of formalism because it is NOT reality formalism tells lie about law and about how it works; this lie
makes it impossible for us to actually think about the law and make changes to it
Law is whatever judges say it is (judges will decide differently in similar cases, depending on personal
characteristics and perception of the case, parties- law therefore less settled than formalists suppose)

Implications of legal realist perspective


o
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Judges should recognise creative (non-mechanical) role in adjudication and use their power to make decisions in
the common interest
Inherent tension w/ doctrine of parliamentary supremacy? realist says that tension does not negate, or alter
essential, necessary character of judges role; reality over theory (aka, cannot reject judges actual role just
because it conflicts with theory of parl. Sup)

10

Oliver Wendell Holmes


What is Law?
Proto- legal realist: law is whatever the courts will use the public might to enforce law resides in the court and
is made by the court
o Study of law is not a study of disembodied rules (the formalistic perspective) it is the systemized prediction of
what courts will do in certain kinds of cases (taking into account precedent, legislation if applicable, facts,
nature/character of judiciary)
o Study of precedent can reveal predictive patterns, either on the basis of rules, or facts, or the interaction between
both)
Morality & Law
o Separation thesis: law and morality are separate domains (morality is in the abstract realm; law is in the concrete
realm of what we actually do)
o You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an
encounter with public force
o

What Judges Do
Abstract rights and duties do NOT exist UNTIL the court says they do

When we study right and duties, we are concerned with generalised predictions of whether courts will find
rights and duties in certain kinds of circumstances
o Duty of judge is to weigh considerations of social advantage, good public policy
The Path of Law
o The training of lawyers is a training in logic and the language of judicial decision making is mainly the language
of logic
o Legal principles and theories are still important to know, because this is the language of the law
o ALSO, they are shorthand categories for generalized predictions about what courts are likely to do
o Behind the logical form lies a judgment as to the relative worth of and importance of competing legislative
grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole
proceeding
o Such matters really are battlegrounds where the means do not exist for determinations that shall be good for all
time, and where the decision can do no more than embody the preference of a given body in a given time and
place.
o Importance is NOT on the actual abstract RULE; its on what the rule tells us about what the courts are
likely to do in the future
o

11

Jerome Frank
o
o

Unlike OW, hes skeptical that law can be predicted believes legal process is much more random and arbitrary
The judicial role in deciding what the facts themselves are, as they exist for the purposes of a given case, means
that judges may decide similar cases differently even where clear rules apply

Precedents, principles, and rules in law have nothing to do with what the judge eventually decides judges
decide what they want and then justify it in the language of the law

What is Law?
Decisions made by judges; based on judicial hunches
For any particular person the law, with respect to any particular set of facts, is a decision of a court with respect to
those facts so far as that decision affects that particular person; until a court has passed on those facts no law on
that subject is yet in existence; prior to such a decision the only law available is the opinion of lawyers as to the
law relating to that person and to those facts
Law and the Modern Mind
o Law in any given situation is either:
a. Actual law a specific past situation (prior to that decision the only law available is the opinion of
lawyers as to the law relating to that person and those facts), or
b. Probable law a guess as to a specific future decision
o
o

What Judges Do
o Courts begin with the results they desire to accomplish their conclusions determine their reasoning
The Judicial Hunch how judges make decisions
o Intuitive flash of understanding based on:

Rules and principles

Personal preferences, prejudices, sympathies, memories, temperaments, experiences


o What the courts in fact do is to manipulate the language of former decisions (Illusory Precedents); lawyers and
judges purport to make large use of precedents, but since what was actually decided in the earlier cases is seldom
revealed, it is impossible, in any real sense, to rely on these precedents

They could approximate a system of real precedents only if the judges, in rendering those former decisions,
had reported with fidelity the precise steps by which they arrived at their decisions

The rules judges announce are only intelligible if one can relive the judges unique experience while he was
trying the case; you are not really applying his decision as a precedent in another case unless you can say, in
effect, that, having relived his experience in the earlier case, you believe that he would have thought his
decision applicable to the facts of the latter case

Negative result of illusory precedents = judges are trapped by the belief that the announced rules are the
paramount thing in the law, and that uniformity and certainty are of major importancethen judges refuse to
do justice in the case on trial because he fears that hard cases make bad laws

12

John Chipman Gray


o
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Differentiates btw law and sources of law


Thesis: the law is made up of the rules for decision which the courts law down; that all such rules are law; that
the rules for conduct which the courts do not apply are not law; that the fact that courts apply rules is what makes
them law; that there is no mysterious entity the law apart from these rules; and that the judges are rather the
creators than the discoverers of law
The law of a great nation means the opinions of a half-a-dozen old gentlemenfor if those half-a-dozen old
gentlemen form the highest tribunal of a country, then no rule or principle which they refuse to follow is law in that
country

However, those men seek the rules which they follow not in their own whims, but they derive them from
sources, to which they are directed, by the organized body (the State) to which they belong
Sources of law: (i.e., sources of the rules for decision which the courts lay down) are statutes, judicial
precedents, opinions of experts, customs, and principles of morality (morality here = public policy)

NONE of these factors is law in and of itself; law is best exemplified by a consideration of a most important
source statutes

It is only WORDS that the legislature lays down, it is the courts that say what those words mean

All law is judge-made law

If a court in deciding a particular case fails to apply the rule generally followed that decision is NOT law;
Judges make law when they make or change the rules; law-making is legal rule-making, the promulgation by a
judge of a new rule for decision

Applied Lord Denning in Miller v Jackson


Judicial reasoning and the judging process
o law is what the judge says it is; not a neutral channeler of abstract and consistent rules, but an historically and
culturally located human individual
o The judicial actor generates the facts as they are taken to exist in a particular case , as he or she determines the
rule (through interpretation)
Courts begin with the results they desire to accomplish..
..their conclusions determine their reasoning (Jerome Frank)
o In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the
young men play and the old men watch. In the village of Lintz in County Durham they have their own ground,
where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The
outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play
there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other
evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has
ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the
instance of a newcomer who is no lover of cricket.
The facts (per Denning, MR)
o This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago
was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned
into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the
open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land
in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They
do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to
stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the
consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other
use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole
village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the
cricket ground.

13

I must say that I am surprised that the developers of the housing estate were allowed to build the houses so close
to the cricket ground. No doubt they wanted to make the most of their site and put up as many houses as they
could for their own profit. The planning authorities ought not to have allowed it. The houses ought to have been so
sited as not to interfere with the cricket. But the houses have been built and we have to reckon with the
consequences.
Mrs. Miller, quoted; Lord Denning comments
o Mrs. Miller: "...When the balls come over, they the cricketers, either ring or come round in two's and three's and
ask if they can have the ball back, and they never ask properly. They just ask if they can have the ball back, and
that's it. They have been very rude, very arrogant and very ignorant, and very deceitful ... to get away from any
problems we make a point of going out on Wednesdays, Fridays and the week-ends.
o Lord Denning: Having read the evidence, I am sure that was a most unfair complaint to make of the cricketers.
They have done their very best to be polite. It must be admitted, however, that on a few occasions before 1974 a
tile was broken or a window smashed.
Illusory precedents
o Plaintiff relies on Bolton v Stone: "If cricket cannot be played on a ground without creating a substantial risk,
then it should not be played there at all".
o Lord Denning responds: I do not agree with Lord Reid's dictum when the cricket ground has been there for 70
years and the houses are newly built at the very edge of it Is this all (labour, lover, money expended by the
cricket club) to be rendered useless to them by the thoughtless and selfish act of an estate developer in building
right up to the edge of it? Can the developer or a purchaser of the house say to the cricket club: "Stop playing.
Clear out". I do not think so. And I will give my reasons.
Denning disposes of precedent (the law in the 19th century)
o The law to be applied here is the law of nuisance and the law of nuisance is (says Denning) to be found in the
following quote from Sedleigh-Denfield v. O'Callaghan:

An occupier may make in many ways a use of his land which causes damage to the neighbouring landowners,
and yet be free from liability ... a useful test is perhaps what is reasonable according to the ordinary uses
of mankind living in society, or, more correctly, in a particular society.

The test is, accordingly, Is the use by the cricket club of this ground for playing cricket a reasonable use of
it?
o

To my mind it is a most reasonable use.


o Precedent re coming to the nuisance(Sturges v Bridgman)? that turned on the old law about easements and
prescriptions, and so forth. It was in the days when rights of property were in the ascendant and not subject to any
limitations except those provided by the law of easements. But nowadays it is a matter of balancing the conflicting
interests of the two neighbours.
o Balance here: on the one hand we have Mrs Miller, a very sensitive lady who has worked herself into a state on
the other, the cricket club
o Conclusion? I am of opinion that the public interest should prevail over the private interest. The cricket club
should not be driven out.
Alternate hunch, alternate source/stimuli?
o Dennings hunch derived from personal characteristicsevery person would have a slightly different hunch
o If the sources of your hunch are different from Lord Dennings, to what do you attribute those differences? Is it
possible for you to imagine not having a hunch about how a case should be decided? Is it possible for you to
imagine ignoring your hunch or deciding contra the hunch?

Classic Positivism John Austin

Positivism as a reaction to teleological nature of natural law


o Teleological nature of natural law (Thomas Aquinas) that law cannot be understood without reference to its
purpose; for a law to be a law it must lead towards the common good
o Rejections of Aquinas and natural laws central tenet re: what makes a law a law separation thesis

Moral content NOT a necessary element of law

Morality & Law

14

Thomas Aquinas (Natural Law)


Obey the law because law is
moral, and obedience to law is
morality
o No obligation to obey non-laws
o

o
o
o
o

John Austin (Classic Positivism)


Moral obligation to obey all valid law, whether or not those laws are,
in themselves, moral
We may evaluate law vis a vis morality
AND, lawmakers may strive for congruence with morality
BUT, law itself is the standard of justice (i.e., this is where he differs
from TA; difference in what laws fundamental relationship to morality
is)

Social Context of Writing


o 1840s in England; (French Revolution this is HUGE challenges everyones notions of what they thought was
just, good, and workable in society as law; Industrial Revolution in England)

Lots of revolutionary thinkers and ideas coming out of this period


o Recall Thomas Aquinas theory of authority: natural rulers God puts rulers in place and they know what the
common good is and how to get there; immoral law NOT likely to occur

French Revolution LITERALLY chopped the head off of this idea recreated a human order

What is Law? 3 directives governing humans


1.
o
o
o
2.
o
o
o
o

3.
o

Gods law:
Similar to TAs divine law
Some revealed, some not (to be determined through a utilitarian approach)
Whatever this law is, it is NOT the business of OUR law this is the province of religion (i.e., these are not legal
questions)
Positive morality (norms): (may be immoral)
Manners, customs, club rulesthese are sort of obvious norms
International law positive morality; not really a law
(English) constitutional law no document, no written constitution so its not really law
Social norms expected habits or customs of society that are viewed as good

Rules that have some kind of social effect on our societybut they are NOT laws not enforced through
authority of the state as embodied in a legal system

Internal and external pressures to follow social norms; but no STATE pressure (although sometimes norms can
become so important or highly valued in society that they become law)
Positive law command: (may be immoral)
Issued by superiors to subordinates, and backed by sanctions

Valid Law
Empirically provable if law has certain characteristics, its valid
Must be a command, issued by superiors to subordinates, and backed by sanctions
Must be created in accordance with the rules of the law making jurisdiction regarding the creation of law the
pedigree test:

What is the rules origins?

Did it come into being correctly as a law according to the rules of the system?
Command of the sovereign
o Sovereign is the superior
o Law is command, issued by superiors to subordinates, and backed by sanctions
o Who is the sovereign?

A determinate (known) and common superior to whom the bulk of a given society are in a habit of obedience
or submission

May be individual or aggregate body just needs to meet requirements of form (determinate and common
superior)
o No law in conditions of civil war why? Because sovereign necessary for law (two different sets of laws may
develop)
o No international law (positive morality only) why? Because there is no sovereign
o
o
o

Thomas Aquinas (Natural Law)


Laws validity dependent on content:
1. Common objective?
2. Reasoned steps leading to common objective?
3. Authority?
4. Promulgated?

John Austin (Classic Postivism)


Laws validity dependent on form:
1. Command?
2. Issued by the sovereign?
3. Impose sanctions?

15

Role of Judges/Legislature
o

Legislature
Legislature is literally the
sovereign (as opposed to TA who
had the idea of God designating
natural rulers)
Legislation = generalized rules

o
o

Judiciary
Judicial decisions are specific commands, as opposed to the
generalised rule (legislation) applying to a class
A subordinate judge is acting as a minister carrying out the
limited authority which has been delegated to him or her by the
state (and which may be over-ruled by the state)

16

Complications/Limits
Common Law theory cannot account for what judges are doing when they apply CL (as opposed to legislation)
Descriptive/regulatory law how are these explained?

Example the law of contract describes and determines how a certain legal relationship is brought about;
not commanding us to do something, just facilitating contractual relations
o Identity of the Sovereign

Who is the sovereign in Canada (according to Austins analysis)?

There seems to be a lot always ask: where do they get their power from?
o Sovereign cannot be bound by law (as a condition of laws validity is that it be a command issued by a sovereign to
a subordinate)

YET in Canada today, our constitution explicitly binds the sovereign (rule of law)
Difficulty Applying Austins Theory to Contemporary Canadian Law
o Austins English (unwritten) constitution positive morality only

OUR constitution explicitly binds the sovereign


o Context is SO different so its difficult to transpose his theories into our world
o Austin can say, because the English constitution is not a command issued to a subordinate, the sovereign (by
definition not subordinate) cannot be bound- is this coherent in our context?
o
o

Modern Positivism Bentham, Hart, & Raz


Legal positivism as legal radicalism (Leitner)
Radical?
o Legal positivism is legal radicalism! reaction to critics saying Legal Positivism was to blame for Nazi Germany
o Unity of law and morality supposes laws are moral

If we assume that laws embody morality (based on TAs proposition that rulers are made rulers by God and
that therefore they dont pass immoral laws) it is very difficult to say that you are NOT morally obligated to
follow the law (because the law is moral)
o Bentham reacts to Austins view (that you are morally obligated to follow all law that is law)

We should never confuse the fact that certain rules were duly enacted by Parliament and so constituted law
with the question whether these laws were any good, whether they made most people better off, whether they
should be respected or, instead, ridiculed and repealed
o Separating laws essence from morality provides for critiquing, challenging, changing law, scepticism (the
radicalism)

HLA Hart: legal positivism and the rule of recognition


What is Law? / Morality & Law:
o Laws are human artefacts; not dependent on moral content for law-ness; BUT disobedience may be warranted
where laws immoral
o Laws not characterised as commands, there are different kinds for different purposes:

Primary rules tell us what we can and cannot do (kind of like commands)
o Essential for any kind of social existence; prescribe, prevent, and regulate behavior
o NOT just coercive primary rules
o ALSO primary rules that confer upon citizens the power to create, modify, and extinguish rights
and obligations in other persons

Example: rules governing the creation of contracts and wills cannot plausibly be
characterized as restrictions on freedom that are backed by the threat of a sanction
empower persons to structure their legal relations within the coercive framework of the law

The operation of power-conferring primary rules indicates the presence of a more


sophisticated system for regulating behavior.

Secondary rules rules by which we can change the rules, and adjudicate disputes about the rules so that
we can figure out what the rules are
o Function is to address the status (validity) of primary rules
o Bring primary rules into being
o On a different level from the primary rules

Primary rules are concerned with the actions that individuals must or must not do

Secondary rules are all concerned with the primary rules themselves specify the way in
which the primary rules may be conclusively ascertained, introduced, eliminated, varied,
and the fact of their violation conclusively determined
o Law is the union of primary and secondary rules
Three Types of Secondary Rules:

17

Hart distinguishes three types of secondary rules that mark the transition from primitive forms of law to full-blown
legal systems:
1. The rule of recognition
o Specifies some feature or features, the possession of which by a suggested rule is taken as a
conclusive affirmative indication that it is a rule of the group to be supported by the social pressure
it exerts
2. The rule of change
o Enables a society to add, remove, and modify valid rules
3. The rule of adjudication
o Provides a mechanism for determining whether a valid rule has been violated.
o Austins theory fails because it fails to acknowledge the importance of secondary rules in manufacturing legal
validity
Valid Law The Rule of Recognition:
o Every society with a full-blown legal system necessarily has a rule of recognition that articulates criteria for legal
validity that include provisions for making, changing and adjudicating law
o MOST IMPORTANT SECONDARY RULE = the rule of recognition:

Allows us to figure out if the primary rules are really valid

Jurisdictions requirements for valid laws that are recognised as such by officials within the legal system
o Officials must consistently apply those criteria a convergent practice of behaviour
o AND believe they ought to apply them the requirement that those engaged in the behaviour
believe themselves to be obligated to engage in that behaviour

A social/psychological fact valid laws have a psychological emotional component to


them

An internal point of view essential to law-ness, more than mere command


Morality and the Rule of Recognition
o Officials of the system may be mistaken about whether they ought to apply them a moral mistake (e.g., Nazi
Germany)
o Such law are still laws (part of a legal system), BUT disobedience is warranted
o How is this different from Austin? From TA?
o

Joseph Raz and Jeremy Bentham: alternative theories of evaluation


o

o
o

Jeremy Bentham:
Law as man made artefact, to be evaluated (by
some kind of other criteria) HOWEVER, law is
crafted not on the basis of morality, but
utilitarianism
The question is: does this rule maximize utility?
(not is this law moral, does it align with
morality?)
Reacting to a very specific definition of morality
(but is his utilitarianism all that different from
TAs common good?)

o
o
o

Joseph Raz:
Service conception of legal authority law claims
that it has authority
The question is: when is that claim justified? (this is
different from: is law moral?)
When the authority actually performs a service for
its subjects, helping them really act better (not
necessarily but in a way that furthers social,
individual good, as through co-ordinating action)
than they would without the benefit of the
authoritys intervention

18

Writing post-war; hes grappling with what happened in Nazi Germany AND with the association btw positivism and
Nazi Germany

The Separation Thesis


o
o

Simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of
morality, though in fact they have often done so
Denies that it is a necessary truth that there are moral constraints on legal validity

Implies the existence of a possible legal system in which there are no moral constraints on legal validity

Morality & Law


o
o

Law and morality separate systems; two sets of rules, standards


Will in fact frequently run parallel (despite being two separate systems) example of murder: its both morally
and legally wrong

BUT they are not the same thing (law not teleologically moral i.e., it does not need to be aimed at moral
ends)
We may evaluate legal rules with reference to moral rules the existence of law as separate from morality
doesnt mean morality is not important in relation to the law

If there is a clash (where legal rules dont survive moral rules)


o as individuals we must decide whether the obligation to follow the moral rule is greater; weigh
competing obligations in each case
o Law is not morality, but law does not supplant morality (law may be law but too evil to be obeyed)

The legal rule system; law as a rule governed practice


Laws have ought claims
o Laws dont have necessary moral content we follow them in the same way we follow other morally neutral rules
(i.e., baseball, etiquette, etc.)
Legal rules grant rights, and impose duties
o How are legal rules special (i.e., different from other morally neutral rules)?

Not individually chosen

Rooted in the rule of recognition


o In order for laws to work, they depend on some kind of recognition of their authority that they are
good
o Authority MUST believe that they have an obligation to obey the rules, and a REAL (i.e., not just to
avoid punishment) obligation to obey
o To be stable and effective, the rules must be obeyed (at least by some) as authoritative for reasons
other than punishment (maybe because they are good, maybe because of habit, long term self
interest)

What Judges Do
o

John Austin (Classic Positivism)


Role of judge as mere implementer;
judges got power from the
legislature to implement the law

HLA Hart (Modern Positivism)


Judges are much more actively involved in the creation of the rules:
1. Determine if facts fall within settled core
2. IF OUTSIDE, determine how to fill in the gaps

19

Legal rules (legislation and common law rule) are expressed in general terms, so as to apply generally

There will be a settled core of meaning (CL will be trickier)

Factual situations presented in cases may fall outside of that settled meaning in the penumbra (a partial
shadow, as in an eclipse, between regions of complete shadow and complete illumination)
o The sun facts of the case, and the law that it invokes
o The moon settled core of meaning; understanding of what the law is that is agreed on by
everyone
o The penumbra cases where the overlay is NOT perfect (i.e., the case is not totally covered by
the settled core of meaning)
Judicial Activism in the Penumbra
o Hard case when judge decides whether the particular case falls outside the settled core of meaning

Decisions in these cases are what moves the law along

MOST of the time, judges act just like how the positivists saidHOWEVER, sometimes the meaning of the rules
is unsettled

Settled core of meaning everyone agrees upon the meaning; most laws are like this
o

Lon Fuller
Judges apply moral rules to fill in
the gaps (and that here lies the
confluence between law and
morality)

o
o
o

HLA Hart
Law is a rule governed practice
All rule-governed practices must be understood in terms of the
rule-governed practice that gave rise to them
Terms of Law are NOT the same thing as morality

20

Terms of the rule-governed practice


o Judges draw on and apply these terms when exercising discretion in the penumbra/hard cases
o Terms consistent set of principles underlying decisions in the penumbra; the values of the legal system

Not mere and inconsistent discretion

Not personal morality


o Examples: federalism; parliamentary supremacy
Terms of Canadian Law?
o Principles of justice includes, justice in the administration of the law (natural procedural justice principles of
impartiality and objectivity)

Basic values of the system (not values of the individual)


o In our legal system, at this time (although not teleologically, necessarily so) certain moral principles factually
overlap completely with terms of our rule governed practice

When we see this overlap (moral principles being incorporated into our legal system) these might be evidence
of the rule governed practice
o We can understand the Charter as embodying terms of our rule governed practice

Positivism and the Separation of Law and Morals


o

o
o

Hart is addressing some of the critiques of positivism is positivism worth saving? Or do we need to rethink the
whole separation thesis and put morality back into law

Positivist says that law doesnt have to embody morality to be law this is not the same as saying that
positivists are ok with immoral laws or want immoral laws

In order to understand the positivist theory, we need to understand what their social reality was we need to
situate the positivists in their social philosophy
Is there a point of intersection between law and morals? Are what is and what ought to be inseparable? what
could this mean?
Time to revisit the positivist separation of law/morality?

Situating the Positivists


o
o

Regarding purported immorality of positivism, Hart says we need to situate the positivists in their social
philosophy
Their philosophy of law existed in the context of their passionate social liberalism:

Liberty of speech, press, association, no criminal liability without fault

Passionate law reformers demystify law by removing the presumption of morality


o Law will then be derobed: open to scrutiny, evaluation, and agitation for change
Austin (Classic Positivism)

Bentham (Modern Positivism)

We must evaluate laws through congruence with [divine] morality o We must evaluate laws through
(of which utilitarian value may be a guide)
congruence with utilitarian value
BOTH: obey punctually, censure freely
KEY: drain morality out of law because this would allow people to question the law; only way to do this was through
Legal Positivism
o

21

Points of Intersection
o AUSTIN: Frequent coincidence as laws have historically developed, laws may in fact embody moral principles
(thou shall not kill)
o BENTHAM recognised that a constitution, binding on the sovereign, might draw at least some of its content from
moral principles

(Austin rejects idea of a constitution as binding on the sovereign and therefore law- of moral or political force
only)
o BUT where moral principles are not embodied in law, morality is not a part of law
o The distinction enables the understanding of law as means of social control

Inadequacies of law as command


o
o

We may approve of the separation thesis, while disapproving of the positivist characterisation of law as the
command of the sovereign (Gray)
The command construct is inadequate this is NOT because of the separation from morality

There are many areas of law involving rules that cannot plausibly be construed as orders or commands

Legislators do not enjoy unfettered rule making freedom


o Facilitative rules depend, on their activation, on the RULED, not on the ruler

Facilitative rules are activated by the ruled

Command theory doesnt take into account division btw primary rules and secondary rules
We need a more sophisticated model than law as command NOT a rejection of the separation thesis

Harts view of the Legal Realists


o

Central pillar Legal Realism judges make law when the facts of a particular case dont fall within the settled core

REJECT idea of judges finding the law as a childish fiction judges dont adhere to abstract principles

Where the facts of the case do not fall within settled core of meaning, the judge must make a decision, and
take responsibility for that decision, and the consequences which flow from it
o Judges are not automatons, mere vessels applying logical rules

Judges need to decide penumbral cases in accordance with needs of society

Law in the penumbra


Traditional Positivism
o Settled core only is law

Legal Realism
o Laws are incurably incomplete and judges should decide
penumbral cases with reference to social aims

HLA Hart
o Judges draw on the terms of the rule governed practice to decide the hard cases in the penumbra
o Terms those things which are true or important of the legal system as a whole

These are not essential characteristics that every rule has to have (like Austins requirements)

They may change as circumstances change

Bring consistency to decision making in the penumbra

This is what judges mean when they talk about finding the law

The principles and outcome they produce as recognised

22

Penumbral cases: Rodriguez


Dissent terms of the rule governed practice
Per L'Heureux-Dub and McLachlin JJ. (dissenting): Section 241(b) of the Code infringes the right to security
of the person included in s. 7 of the Charter. This right has an element of personal autonomy, which protects the
dignity and privacy of individuals with respect to decisions concerning their own body. A legislative scheme which
limits the right of a person to deal with her body as she chooses may violate the principles of fundamental justice
under s. 7 if the limit is arbitrary. A particular limit will be arbitrary if it bears no relation to, or is inconsistent with,
the objective that lies behind the legislation. When one is considering whether a law breaches the principles of
fundamental justice under s. 7 by reason of arbitrariness, the focus is on whether a legislative scheme infringes a
particular person's protected interests in a way that cannot be justified having regard to the objective of this
scheme. The principles of fundamental justice require that each person, considered individually, be treated fairly
by the law.
o SCC case involving significant dissent aka, in penumbra territory
o Terms underlined here are what Hall thinks are terms of the rule governed practice
Dissent is applying s. 7 and interpreting it
o Section 7 protects personal autonomy; Hall thinks this is a term of the rule governed practice because if we look at
the legal system as a whole, we see autonomy again and again
o Arbitrary as another term of rule governed practice because its a rule that works throughout our system
o Fairness in the eyes of the law as another term Hart talks about natural procedural justice as being a term
o

Majority: Principles of fundamental justice terms of the rule governed system?


Per La Forest, Sopinka, Gonthier, Iacobucci and Major JJ.: Security of the person in s. 7 encompasses notions of
personal autonomy (at least with respect to the right to make choices concerning one's own body), control over
one's physical and psychological integrity which is free from state interference, and basic human dignity. The
prohibition in s. 241(b), which is a sufficient interaction with the justice system to engage the provisions of s. 7,
deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a
manner which impinges on the security of her person. Any resulting deprivation, however, is not contrary to the
principles of fundamental justice. The same conclusion is applicable with respect to any liberty interest which may
be involved.
o The expression "principles of fundamental justice" in s. 7 of the Charter implies that there is some consensus that
these principles are vital or fundamental to our societal notion of justice. They must be capable of being identified
with some precision and applied to situations in a manner which yields an understandable result. They must also
be legal principles. To discern the principles of fundamental justice governing a particular case, it is helpful to
review the common law and the legislative history of the offence in question and, in particular, the rationale
behind the practice itself (here, the continued criminalization of assisted suicide) and the principles which underlie
it [settled core?]. It is also appropriate to consider the state interest. Fundamental justice requires that a fair
balance be struck between the interests of the state and those of the individual. The respect for human dignity,
while one of the underlying principles upon which our society is based, is not a principle of fundamental justice
within the meaning of s. 7.
Majority applying s. 7 and interpreting it:
o They apply s. 7 as well, but come to the conclusion that, under s. 1, its not contrary to the principles of
fundamental justice
o Principles of fundamental justice are vital to our societal notion of justice this is kind of what Hart says (wrt terms
of the rule governed practice)

Underlying principles = the settled core

Balance struck btw interests of the state and those of the individual another term of the rule governed
practice

Respect for human dignity NOT a principle of our legal system (not a term of the rule governed practice)
o Secularization of morality (secular form of Natural Law) still has this idea that law is definitely connected to
morality BUT its disconnected to the divine
o

Questioning the separation thesis


1. Social acceptance of legal rules depends on grounding in (external) morality
o

HLA Hart
Rule of recognition

Claims that laws authority is grounded


on the acceptance of law as valid, and
lawmakers recognition of themselves
as obligated to enforce and obey the
law

Source of laws authority in society

o
o
o

Lon Fuller
Rule of recognition is inadequate doesnt explain WHY
people follow the law
Recognition is ultimately grounded in morality
The appeal must be to a moral standard independent of
and prior to the law

That they must follow the law and that its right to do
so this MUST be based on morality

23

2. Laws inner morality


o

o
o
o

Something about/intrinsic to the nature of legal systems tends towards morality (internal morality) Morality as
PROCESS (not content) its not ALL or NOTHING, there are different degrees of inner morality that a legal system
can possess

To the extent that it embodies the necessary principles of this inner morality it will be highly functional

As these principles degenerate it will become less functional, until it reaches a point where to call what it
happening law loses coherence
Purpose of law is to "subject human conduct to the governance of rules" to produce order

Functionalist conception of law implies that nothing can count as law unless it is capable of performing laws
essential function of guiding behavior

To be capable of performing this function, a system of rules must satisfy the following principles:
1. The rules must be expressed in general terms
2. The rules must be publicly promulgated
3. The rules must be prospective in effect
4. The rules must be expressed in understandable terms
5. The rules must be consistent with one another
6. The rules must not require conduct beyond the powers of the affected parties
7. The rules must not be changed so frequently that the subject cannot rely on them
8. The rules must be administered in a manner consistent with their wording

Principles represent the "internal morality of law" compliance leads to substantively just laws and away from
evil ones
Where inner morality is MISSING, law does not act like law, and is something else (arbitrary whim of a monarch?
Coercion by street gangs?)
Law is more than a label (the authoritys declaration this is a law regardless of content)
Bad law (the Nazis, eg) was not bad law merely because of its evil ends, but because it abandoned the process of
law and therefore, the internal morality of law (as illustrated through Rexs story)

3. Obligation to obey the law and the problem of the immoral law
o
o
o
o

Positivists cannot adequately explain the dilemma between the duty to obey the law and the moral duty not to
obey immoral laws
Immoral laws cannot actually be explained by the separation thesis the separation thesis does not provide an
adequate explanation for a general obligation to obey the law
FURTHER positivists cannot provide a coherent theory of when one is obliged to follow one over the other (the
distinction will not always be as sharp, or generate so much consensus- from our vantage point- as Nazi Germany)
The positivist answer- that some laws are so immoral you dont need to follow them- is no answer at all

4. The core and the penumbra


There is no core of settled meaning (and therefore no penumbra) whole metaphor falls apart

Law (statute and precedent) are always interpreted in context, and with reference to the purpose of the rule
and the good it was to accomplish

The hard cases are those where the purpose is uncertain, or competing purposes are in play

Example of sleeping in a train station businessman sitting on bench dozing off vs. man with kit getting setup for the night judge faced with these two scenarios will decide what the prohibition is based on the
context
o This is how judges always operate! Its not about the meaning of words (i.e., even if there is a
core meaning of sleeping)its about the context and how that relates to the actual goal of the
legislation
What Judges Do:
o When theres an ambiguity, they look at the context and try to interpret what the legislations PURPOSE is, and the
MISCHIEF it was intended to cure
o In determining the good the law was to accomplish, interpretation will necessarily refer to (external) morality as
well as laws inner morality

Fidelity to the Law judges make law what it ought to be


o This is a guard against bad laws lawyers and judges have duty to change a law if it does not
conform with inner morality

Law a collaborative effort toward this end


o Together, over time, legislatures and judiciary make the law
o

Positivism and Fidelity to Law reply to Hart


Definition of Law
o The positivist/realist definitions of law are inadequate, confusing, and do not grapple with or provide an adequate
explanation for why we are obliged (and generally do) follow the law (the obligation of fidelity to law)
Definition of Morality

24

o
o

Hart (and other positivists/realists) posit morality as a straw man, but never really say what that is
When Hart speaks of morality he seems to have in mind all kinds of extra-legal notions of what ought to be
regardless of source
Legal Positivism
Lon Fuller
Spectre of immoral morality:
o Fear or immoral morality ignores the inner morality of law
o If morality can be any extra-legal
o Assumes evil aims have as much coherence and inner logic
theory, some of these theories may be
as good ones THIS IS A FALSE ASSUMPTION!!!!
bad

When men are compelled to explain and justify their

Morality is potentially dangerous as


decisions, the effect will be to pull those decisions
a source of law (Hart; Bentham)
towards goodness
o Morality must stay out of law
o If you tried to take evil morality and express it as a law, you
would NOT be able to do it!! would not conform with laws
inner morality
o Laws structure is such that it does not allow evil morality

25

Morality & Law:


o Kelsen (Legal Positivism): basic norm some fundamental rule pointing to the source from which laws must
come
o Hart: fundamental rules regulating law-making
o None of these ask why people do and should obey the law (fidelity to law)

They are empty (there is nothing about basic norms or fundamental rules that implies fidelity) the reason
WHY people do and should obey the law must ALWAYS be some kind of external morality
o Planning for the realization of fidelity to law

The efficacy of laws depends general acceptance and to make acceptance secure there must be general belief
law is right, necessary, good

People must be able to connect with the law emotionally and psychologically this can and should be built
into law
o Example: well-written constitution resonates with anyone who reads it; written in emotive
language; not detailed and rule-oriented
The moral implications of legal positivism
o The Germans took positivism/realism (law is what the judge says) seriously/literally

Anything that called itself a law was actually a law

Excluded consideration of external morality, but also inner legal morality left the German lawyer prepared to
accept that anything calling itself a law, was a law
o We dont need a higher law to over-rule such immoral (both externally and internally) law

We need to understand and recognize the internal morality of law

Actors in the legal system (lawyers and judges) owing fidelity to the law must work to make sure that integrity
is maintained

Fidelity to the law not merely following what may be arbitrary rules MOST IMPORTANT = we all have fidelity
to law
o We have an obligation NOT to follow law that is arbitrary (non-law)

Judges and lawyers have an active fidelity to law; NOT just passive duty to NOT follow the law, actually have to
change it

Rexs story (or, law reform gone bad)


o
o
o

FIRST, he repeals all the laws in his kingdom, and has all these ideas about the good things hes going to do
BUT, it doesnt work out
Law must be coherent- coherence requires reasonableness, rationality and consistency
Mere respect for, and obedience to, authority must not be confused with fidelity/obedience to the law

Failing to Make Law


o
1.
2.
3.
4.
5.
6.
7.
8.

Rexs whole new code is unworkable- he can come to conclusions, but cant give any articulate reasons for them
Decides simply to judge- but his decisions are random, without pattern, consistency, any predictability (doesnt
work as no one can follow random rules)
Returns to the Code project, but feeling insecure about it, keeps it secret (doesnt work as no one can follow secret
rules)
Rex decides to judge all the cases together, at the end of the year (but no one can follow retroactive law)

i.e., thought there would be more consistency if he judged all the cases together
Rex realizes he need to write a public code that can be followed- but the Code is obtuse and convoluted and no
one can follow it
Rex rewrites, but now the Code contradicts itself in places
Rex removes the contradiction but the new Code is very draconian everything is criminalized, including bodily
functions, with heavy sentences

To command what cannot be done is not law


Rex has spent so much time trying to write the law, that now circumstances have changes and amendments
immediately necessary

This is destabilizing in itself! causes population to pull away from the law
Pace of amendments eventually slows down; Rex decides to resume judging himself (blaming poor advisors for his
past failures); a much better judge this time (remember before that he was just judging with NO code) - but, these
judgments bear no relation to the Code

When rules fail to be law (law being a coherent system, not a series of commands)
1.
2.
3.
4.
5.
6.
7.

When decisions are ad hoc (disconnected)


Where rules are not public, knowable
The abuse of retroactive legislation
Where rules are not understandable
Where rules are contradictory
Where rules cannot be obeyed (obeying them beyond persons ability)
Very frequent changing of rules (so person cannot orient their behaviour by them)

26

8.

Disjunction between rules, and rules as actually administered

o
o

If you have these things, you DONT have a system of law that has inner morality and it will degenerate
Obligation of players in the legal system to WORK AGAINST THIS

Writing in the 1970s, rejects Positivism (and particularly HLA Hart)

Distillation of the positivist position


Positivists three central theses:
1. Law is a set of rules identified as law with reference to a master rule; master rule is disconnected
from apart from content (identifies valid rule by the institutional history)

Master rules tell us when a rule is properly a legal rule

Rule of recognition if law is supported by rule of recognition, its a legal rule; if its not, its some other
kind of rule (HLA Hart)

Focus on nature of rule as a rule; if its NOT a valid rule, there is a legal void
2. Where no legal rule applies, judges exercise strong discretion

Hart: judges draw on terms of the rule governed practice when judging in penumbral cases
3. Legal rights and obligations are the product of legal rules, with no a priori or independent
existence apart from those rules

Therefore, until a judge has decided the case at his/her discretion, neither of the parties has a legal right to
win or a legal obligation
Dworkin rejects all three of these propositions: they all proceed on the idea of law as rules

Law contains not only rules, but principles

The role of principles in the law undermines the positivist position

All of positivism is built on this premise that law is rules, and the premise is WRONG

What is Law?
o

Recognition of law as incorporating standards that are not rules law includes principles and policies as well
(sometimes the distinction btw principles and policies matters, sometimes it doesnt)

1. Principles
o
o
o
o
o

Underground stream that constantly flows through the law and informs the law; flows from the past and also into
the future; same stream but will change over time
Even where a case is not covered by a rule, it will be covered by principles (they permeate everything and will
always apply, and will always be legally binding because they are part of the law)
Law lives through adjudication, and judges apply and draw on general principles of justice and fairness in the
process of adjudication (legal reasoning) therefore law is as much located in these principles as in legal
rules(which are sterile until and unless interpreted and applied by judges)
Based on fundamental ideas of justice and fairness that support certain rights and duties judges must take this
into account when deciding hard cases (judges discover rights and duties based on principle, dont create them)
NOT written down or codified they live through the judicial process, and judicial reasoning

In hard cases, judges HAVE to rely on these principles; they become a defining force in the law as it moves
forward
Legal rules are embedded in, and interpreted as part of a system of coherent principle

Example: principles of fundamental justice in our system are said to support rights and freedoms

2. Rules
o

o
o
o

All or nothing factual requirement if the facts a rule stipulates are given, then either:
o The rule is valid and the answer it supplies must be accepted
o OR the rule is NOT valid, and it contributes nothing to the decision
If rule is rejected, it should not be understood as an exception to the rule its an instance where principles
provide a compelling legal reason to change the rule
PRINCIPLES
Conflicting principles provide competing reasons that must be
weighted according to the importance of the respective values
they express
Suggest, a particular outcome
Principles have a quality of weight

o
o
o

RULES
Applicable in all-or-nothing fashion
Necessitate a particular outcome
Rules dont have weighing quality if two
rules conflict, one is valid and the other is
not

27

3. Policy
o

Social goals pursued on behalf of some segment of the population; cases involving competing sets of social goals
these choices (balancing the interests of populations) should be made by the legislature (i.e., decisions about
which policy goals/interests should have priority are best left to legislators)

What Judges Do
Hard cases and the role of principle
o Principles play a much bigger role in pushing the law forward in hard cases judges interpret principles
(principles are the life source of law)

Need to draw on these ideas of fundamental justice and fairness and discover rights and duties emanating
from those principles
o ONLY judges can weigh principles in the process of judicial reasoning

o
o

Positivism
Law isnt out there in the abstract
You are not finding rights and duties,
you are making them up! You are
usurping the role of the legislature!

HLA Hart (Modern Positivism):


o Theory of the penumbra, hard case in
which judges exercise discretion by
drawing on the terms of the rule
governed practice

Ronald Dworkin (Modern Natural Law)


Judges discover rights and duties based on principles

Rejects Harts Penumbra Theory (and Discretion Thesis


generally):
o Even where the rules do not decisively decide the issue
principles will provide the answer; there are no true hard
cases (hard cases = those not determined by legally binding
standards)
o There is ALWAYS a right answer, and it derives from the
application of those principles in hard cases by judges,
through the process of legal reasoning
o Judges are NOT operating with discretion; they are drawing on
the principles which they are bound to comply with and looking
for a right answer

Policy/Principle Distinction
o The distinction resolves problem posed by activist or law-making judiciary for democracy, parliamentary
supremacy
Policies
Principles:
o Social goals that are pursued for the benefit of some o Considerations of justice and fairness
segment of the population
o Standard that is to be observed, not because it will
o Standard that sets out a goal to be reached,
advance or secure an economic, political, or social
generally through an improvement in some
situation deemed desirable, but because it is a
economic, political, or social feature of the
requirement of justice or fairness or some other
community
dimension of morality
o Decisions about which goals to pursue and which
o Support specific rights and duties
benefits to provide should properly be left to the
o Judges MUST take these into account when deciding
legislature
hard cases

28

If we remember the distinction in cases where it comes up, it allows us to respond to the problem of judges being
accused as activist

First objective rests on principles of democracy objection to judicial activism (elected officials rather
than unelected and largely unaccountable judiciary should be the ones who decide what legal rights ppl have)
o Dworkin argues that democratic commitments speak against judges making decisions based on
policy, but NOT against judges making decisions based on principle

Second objective rests on the thought that if judges create new rights and duties, they are in
effect making retroactive legislation (depriving people of their rights even though those ppl had no duty
to refrain from what they did when they acted)
o Dworkin reject this; believes that judges have the task of determining what rights and duties
individuals have (i.e., judges discover rights; they do not create them); principles are embedded in
and underlie the law and are the source of our legal rigths
o
If judges find rights on the basis of principles, they are doing something totally different than usurping the
legislatures power; judges cannot make policybut they have to do the job that only judges can do (find rights on
the basis of principle)
Distinction may be less clear in application
o Distinction can be collapsed:

By treating a principle as stating a social goal (a policy); by stating a policy as a principle (that the policy goal
is embedded in fundamental principles of fairness and justice); or by adopting a utilitarian perspective: that
these concepts are one and the same
o Example: the standard that automobile accidents are to be decreased is a policy; and the standard that no man
may profit by his own wrong is a principle

Distinction can be collapsed by construing a principle as stating a social goal (i.e., the goal of a society in
which no man profits by his own wrong), or by construing a policy as stating a principle (i.e., the principle that
the goal the policy embraces is a worthy one) OR by adopting the utilitarian thesis that principles of justice are
disguised as statements of goals (securing the greatest happiness of the greatest number)
o Distinction theoretically useful in terms of explaining relationship between legislative goals and judicial
interpretation
Example of distinction not being so clear
o Consider reasonable, which may operate as a rule (unreasonable interference with the use and enjoyment of
property) and substantially, as a matter of interpretation, as a principle (the finding of what is unreasonable
requires judgment, and the consideration and weighing of policy matters and principles behind the nuisance
rule-statement (the power/freedom conferred by a property right to the lawful use of property; protection of those
rights from interference; social utility where relevant)
o

Principles and the concept of law


Principles most important in hard cases which come, thereafter, to stand for a new rule
New Rules did NOT exist before that case process of the consideration and weighing of principles through
legal reasoning produces the rule
o Law is not JUST rulesbut rules are very important! They are concrete! They are there so that the judges in the
lower courts can follow them
Discretion v principle
o Principles are binding, and judges are obliged to follow them where and as they are relevant (judges do not have
discretion about which principles they choose to consider, or not, in a given case)
o
Discretion has different meanings depending on context and purpose (may be strong or weak)

Strong discretion decision maker is not bound by standards set by the authority in question
o Example: sergeant shall pick 5 men sergeant must use judgment about who is most
experienced for the purposes of the task, but this exercise of judgment is NOT to say his choice is
NOT controlled by that standard

Weaker discretion decision maker controlled by standards set by the authority in question
o Example: the sergeant shall pick the 5 most experienced men
o Principles dont completely eliminate judicial discretion limits judicial discretion: decision making controlled by
binding standardand ALSO creates chain of consistency (this leads into idea of integrity of the law and fabric of
the law)
o Yes: principles control decision making- rules are, indeed, binding because they are affirmatively supported by
principles the court is not free to disregard, and which are collectively more weighty than other principles arguing
for a change

Principles even more binding than rules are rules are only binding if they dont conflict with principles (if
they conflict with principles, they may be struck down as invalid)
o Principles are things with weight and they must be weighedso cases will ALWAYS involve judgement however,
Dworkin believes that there is one RIGHT answer in each caseand you will get there if the principles are weighed
correctly (but he accepts that since this is a process of judgment, different judges will arrive at different decisions)
Principles and a master rule for valid law
o Its NO criticism of principles to say that they dont act as rules (they are a different thing entirely)
o
o

29

Positivists suggest a master rule by which law (for positivists, legal rules, are recognised as such)
Rule of recognition- legal rules valid because created by competent institution; general community acceptance of
those rules as valid (including reasons other than fear of punishment), recognition by players in legal system of
both rules and rule-making bodies as legitimate, that legal rules ought to be followed and enforced
o Origin lies in a sense of appropriateness developed in profession and public over time; continued power lies in
sense of appropriateness being sustained; citing of principle in precedent indicates examples of that principles
acceptance, not its validity; unlike rules principles cannot be enumerated, they are controversial, their weight is
all important, they are numberless, and they shift and change so fast our list would be obsolete before we reached
the middle
Principles are not super-rules
o Principles are not analogous to rules- not super-rules floating above legal rules (the positivist complaint, that
such super-rules are not applied consistently, and that judges select the ones they favour, thereby arbitrarily
changing real rules)

Positivists say morality can sometimes step in and overrule a legal rule kind of like a super rule
o Principles are not just different (and defective) rules, and their non-resemblance to proper rules is not problematic;
rules and principles (including for this purpose policy) together comprise the law
o (Legal) Rights and obligations derive from these principles- and need not be created, conferred by rules (and so
may legitimately be found, articulated and applied in judicial reasoning); a legal obligation exists whenever the
case supporting such an obligation in terms of binding legal principles of different sorts, is stronger than the case
against it
o
o

The rights thesis


o
o
o

o
o
o

Judges are not de facto legislators, and they do not legislate in the absence of clear and controlling legal rules
(positivist story)
Judges consider and are directed by argument of principle; legislatures consider and are directed by arguments of
policy, together with considerations of principle
Crudely, arguments of policy justify a political decision by showing the decision advances or protects a goal of the
community; arguments of principle justify a political decision by showing it advances or protects an individual or
group right

We shouldnt think of principle in some kind of unnatural way (i.e., out there somewhere in the abstract)
principles are given some content from political recognition; we need to understand the relationship btw
political context and principle (political context impacts principle sense in which ppl in the community
recognize certain things as being right and as certain protections as being properly part of law)
Judicial decision in civil cases should be directed by principle, not policy; objections to judicial originality are most
cogently an objection to judicial policy making (on basis that policy decisions should be made through the
operation of some political process designed to take different interests into account)
In making decisions in hard cases on the grounds of principle judges find, articulate and enforce a pre-existing
right
Those pre-existing rights are political in that they are the product of history and morality, what an individual is
entitled to have in civil society depends on the practice and justice of its political institutions judges must
make fresh judgments about the rights of parties who come before them, but these political rights reflect
political decisions of the past
Judicial decisions must be consistent in the same way and for the same reasons that decisions of political officials
must be justifiable within the same general theory that justifies other decisions (political responsibility);
decisions which seem right in isolation must nevertheless be brought within some comprehensive theory of
principles and policies which justifies other right decisions (this is the basis of Dworkins idea of integrity in law;
integrity not the same as consistency, as understanding of principles change, historically)

Law as integrity: laws fabric


o

o
o

Judicial reasoning is always interpretive; looks backwards and forwards, interpreting law as unfolding (non-static)
narrative- an overall story worth telling now- as if legal rights and duties were created by a single author (the
community) expressing a coherent concept of justice and fairness

Legislatures as being frozen in time; but judges are part of the living law (i.e., looking backwards and
forwards); judges as weaving new pieces into the fabric of the law

Story worth telling: this is important! as judges interpreting the law, it is part of their duty that they
portray law as a good story (similar to ideas of judges interpreting the law as it OUGHT to be (fidelity to the
law))

Telling story as if written by a single author; talk about decisions in such a way that makes them look like good,
integral decisions, and then move forward and apply principles that change the story
Law as chain novel; story as it unfolds must be the best that it can be, the best story about the community and
the values it holds, consistent with previous chapters (and consider significance of where author enters the tale),
while moving the story forwards, each chapter discrete yet part of the whole
The task is not one of total creative freedom nor mechanical textual constraint

30

Bazley v Curry
SCC asked to consider vicarious liability in intentional torts context of abuse of a child in a home

Here, it looks like we have to reassess the rule, because following the rule doesnt lead to the result that we
want
o Two requirements of vicarious liability: employment AND tort had to be committed within the scope of that
employment
This works well for negligencebut it doesnt work very well for intentional torts
o Intentional tort looks like youre doing your own thing; traditionally, the rule excluded these types
of things (i.e., no vicarious liability for intentional torts)
o Increasingly, courts confronted by issues of vicarious liability where no clear precedent exists are turning to policy
for guidance, examining the purposes that vicarious liability serves and asking whether imposition of liability in the
new case before them would serve those purposes: London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992
per La Forest J.

Policy? language of policy here is really referring to Dworkins principles (not policy in political sense of
interests in one segment of the community vs. those of another)
This is my job (judge is saying I am going to articulate a new rule which is consistent with policy)
o This review suggests that the second branch of the Salmond test may usefully be approached in two steps. First, a
court should determine whether there are precedents which unambiguously determine on which side of the line
between vicarious liability and no liability the case falls. If prior cases do not clearly suggest a solution, the next
step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind
strict liability. This Court has an additional duty: to provide guidance for lower tribunals. Accordingly, I will try to
proceed from these first two steps to articulate a rule consistent with both the existing cases and the policy
reasons for vicarious liability.
Policy considerations
o Vicarious liability has always been concerned with policy... The view of early English law that a master was
responsible for all the wrongs of his servants (as well as his wifes and his childrens) represented a policy choice,
however inarticulate, as to who should bear the loss of wrongdoing and how best to deter it. The narrowing of
vicarious responsibility with the expansion of commerce and trade and the rise of industrialism also represented a
policy choice. Indeed, it represented a compromise between two policies __ the social interest in furnishing an
innocent tort victim with recourse against a financially responsible defendant, and a concern not to foist undue
burdens on business enterprises The expansion of vicarious liability in the 20th century from authorization-based
liability to broader classes of ascription is doubtless driven by yet other policy concerns. [V]icarious liability
cannot parade as a deduction from legalistic premises, but should be frankly recognised as having its basis in a
combination of policy considerations .
o A focus on policy is not to diminish the importance of legal principle. It is vital that the courts attempt to articulate
general legal principles to lend certainty to the law and guide future applications. However, in areas of
jurisprudence where changes have been occurring in response to policy considerations, the best route to enduring
principle may well lie through policy. The law of vicarious liability is just such a domain.
o Faced with the absence in the existing law of a coherent principle to explain vicarious liability, La Forest J. In
London Drugs found its basis in policy (at p. 336): the vicarious liability regime is best seen as a response to a
number of policy concerns. In its traditional domain, these are primarily linked to compensation, deterrence and
loss internalization (or cost internalization)

(We know that these are those basic, fundamental conceptions within tort law)
o A wrong that is only coincidentally linked to the activity of the employer and duties of the employee cannot justify
the imposition of vicarious liability on the employer. To impose vicarious liability on the employer for such a wrong
does not respond to common sense notions of fairness. Nor does it serve to deter future harms. Because the
wrong is essentially independent of the employment situation, there is little the employer could have done to
prevent it. Where vicarious liability is not closely and materially related to a risk introduced or enhanced by the
employer, it serves no deterrent purpose, and relegates the employer to the status of an involuntary insurer. I
conclude that a meaningful articulation of when vicarious liability should follow in new situations ought to be
animated by the twin policy goals of fair compensation and deterrence that underlie the doctrine, rather than by
artificial or semantic distinctions.

Common sense notions of fairness another principle


From precedent and policy to principle
o Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an
employer is vicariously liable for an employees unauthorized, intentional wrong in cases where precedent is
inconclusive, courts should be guided by the following principles:
1. They should openly confront the question of whether liability should lie against the employer (i.e., does it
feel right?), rather than obscuring the decision beneath semantic discussions of scope of employment
and mode of conduct.
o

31

2.

3.

The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the
employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where
there is a significant connection between the creation or enhancement of a risk and the wrong that
accrues therefrom, even if unrelated to the employers desires. Where this is so, vicarious liability will
serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental
connections to the employment enterprise, like time and place (without more), will not suffice. Once
engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs
of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the
employer an involuntary insurer.
In determining the sufficiency of the connection between the employers creation or enhancement of the
risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature
of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the
following:
a. the opportunity that the enterprise afforded the employee to abuse his or her power;
b. the extent to which the wrongful act may have furthered the employers aims (and hence be more
likely to have been committed by the employee);
c. the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the
employers enterprise;
d. the extent of power conferred on the employee in relation to the victim;
e. the vulnerability of potential victims to wrongful exercise of the employees power.

This case is a hard casetheres a rule, but it doesnt make sense to apply it (we dont like the
result); SO, we go back to the principles to see if there should be a re-articulation of the rule; rearticulation of the rule MUST be consistent with certain things

Liberty in the philosophy of law


o
o
o

To date, theories, etc. that weve been considering have all been about what law IS and how we recognize law as
law, and the role of the different players in the system in creating and interpreting law
Departure from the question of what law is (and its connection, if any, to morality) to ask when (and why) the law
should interfere with private choices- when are restrictions on individual liberty justified?
If we can conceive of law without morality, how do we conceive of it in such a way so that what is law doesnt
spiral down into what is immoral

Idea of paternalism is involved in this question (i.e., the question of limits that law can enforce on liberty) we
are necessarily talking about some kind of paternal interference
Presumption in favour of liberty (so interference must be justified)- however

When we set up the question in this way (above) we are assuming that liberty is GOOD

Any legal restraints on liberty NEED to be justified

Its natural to think of liberty like this because its one of the core principles and values in our society
Liberty not the only value, however; must be balanced with other values (how do we strike this balance?)

Question for JS Mill and Dworkin how do we strike this balance? what is the most appropriate place and
the most appropriate way to draw this balance

Looks like Oakes test (this balance is a very significant feature of our law)

Justifications for laws restriction of individual liberty


o

Considers several things before he makes his own conclusions

32

The harm principle


Each individual has
the right to act as he
wants, so long as
these actions dont
harm others
o Society has no right to
intervene when only
harm done is to self
o Restriction of
individual liberty to
prevent serious harm
to others
o

Legal moralism
Offence principle
Restriction of individual
o Restriction of
justified where actions of
individual liberty
individuals undermine
justified to ensure
social or community
others are not unduly
morals/values
offended (public
o Butler court sees legal
indecency, eg)
o
o Slightly different than
moralism as a justification
for restriction in this case;
legal moralism
BUT, sees restriction as
o Could understand
implementing the harm
Keegstra in this way
principle (i.e., implicit
(but also as legal
acknowledgement of harm
moralism)
principle as most
important)
For Mill, the ONLY justifiable restriction of liberty is the harm principle; however, paternalism is justified for
persons of non-age (people incapable of self-govt children and barbarians
o

Paternalism
Restriction of
individual liberty
justified to protect
that person from
harm caused by the
exercise of liberty
Paternalistic laws:
state imposing
limitations on
liberty to stop you
from causing harm
to yourself

33

John Stuart Mill, On Liberty (1859)


The limits of authority
Authority is necessary to prevent violent anarchy, but it is inherently despotic, and must be limited and controlled

Authority as a hawk/falcon/vulture with sharp talons poised to attack other creatures that would come and hurt
us:
o Inherently despotic: must always be cognizant of the fact that the powerful bird could turn on US
o Limited and controlled: therefore the bird MUST be in OUR command
Individual Liberty
o Idea of individual liberty works to set limits on authority and prevent it from following its natural inclinations
towards despotism:

Recognising political liberties or rights creates zone of immunity from government authority

Constitutional checks on governmental authority balance authority against itself (to prevent it from becoming
too powerful and independent of these checks)
o Authority are seen as delegates of the people (because we elect them and theyre temporary), and this creates an
apparent unity of interest between the governing and the governed but is this enough? Individual liberty as
protection against tyranny of political rulers BUT BEWARE of the tyranny of the majority!!! society as an
unelected power that can do things even more horrific than govt authority
o

Tyranny of the majority


o
o
o
o

Decisions made by a majority may place that majority's interests so far above a dissenting individual's interest
that the individual would be actively oppressed, just like the oppression by tyrants and despots
Power of society collectively over the individuals who compose it, through the exercise of (legal) authority
Includes the tyranny of prevailing opinion and feeling: conformity tyranny of majority as a social power, a social
force; rights that protect liberty are important here (example:
There is a limit to the legitimate interference of collective opinion with individual independence and to find that
limit and maintain it... is as indispensible to a good condition of human affairs as protection against political
despotism

The proper limits of liberty


The harm principle
o Individual liberty is justifiably limited when its for the purpose of protection of others; otherwise, the individual is
sovereign over himself, and his own body and mind
o This is the ONLY restraint that is justified (the harm principle)
o Why does there need to be any justifiable limit? because in return for the protection society provides, we owe an
obligation to contribute to the defence of that society, and not to harm others within it; however, we owe NO more
than this
o Liberty of thought, feeling, expression legal response to foolish thoughts, feelings, or expressions is NOT
justified, because these dont make us an enemy to society in the same way that harm to others does (might
suffer from majority disapproval become an object of pity or dislike but NOT enemy to society)
Expansive interpretations of the harm principle in case law
o R v Sharpe was presented as a case against freedom of expression (by the defence) but the court didnt buy it
they said it was actually about the harm principle
o Butler plaintiff presented case as being about freedom of expression in presenting obscene material, the courts
response was NO, this is about the harm principle, and this obscene material is harmful therefore the restriction
on liberty is justified
Exception to the rule
o At first, Mill looks like a liberty extremist (ONLY justification for restricting liberty = harm principle)

However, the right to liberty applies only to persons in possession of mature faculties (excludes those whom
the law deems to be children; and also excludes those backwards states of society in which the race itself
may be considered as in its non-age despotism is a legitimate mode of government in dealing with
barbarians)

Need to be cognizant of the fact that hes really restricting his theory here (hes not as libertarian as he may
seem)
o Mature faculties: having the capacity of being guided to their own improvement by conviction or persuasion
(properly guided towards the good; properly guided = they will use liberty towards good (i.e., no justification to
restricting liberty to achieve that effect because they will get there on their own)

People having mature faculties are who Mill is talking about when hes talking about absolute liberty

Harm principle is NOT defined expansively (unlike above)

But no man is an island! How can any act not affect others?
o

The significant question for Mill = harm: if my extravagance causes damage to my creditors, I should be punished
for that damage, but not for the extravagance itself harm restricted to harm to other persons (rather than harm
of the activity itself)

34

Should society abandon guidance of the unfit (nominally mature persons incapable of self-govt)?

Mills says: society had its chance, during the period of childhood, when there was total control this was
when the proper instruction of children to use their liberty to achieve good ends should have taken place
o Difficulties with this theory: restriction to limited class of persons (i.e., absolute liberty); AND
whether children are under total control of some kind of educational system so that, if properly
educated, they will use liberty in correct way (not a very realistic way of describing childhood)
o Seems like hes thinking about a very limited class (ppl living at his time, in his area, of his class,
etc.)
All the problems that we have wrt improper use of liberty will fall away if we focus on educational period

Interference simply unworkable


Interference of liberty (for paternalistic purposes, or other purposes) simply does NOT work (this is a compelling
argument)

When society interferes, it does so wrongly and in the wrong place each individual must be presumed to be
the best judge for him or her self; interference doesnt correct the wrong, it exacerbates it
o Free development and exchange of ideas is necessary for dynamic growth there is value in ideas that majority
might suppress as wrong

Hand-fisted interference has negative effect of stunting free development and free exchange of ideas because
majoritys thoughts as to what is negative has been proven to suppress development of new social ideas
(because majority is conservative)
Exception legislation with a particular kind of objective
o Sometimes, it is allowable to have legislation that interferes with liberty, but ONLY if is the only practical way to
achieve something that is beneficial for everyone
o Example: Sabattarian legislation is properly justified as creating a social right to a day of leisure which is a
generally beneficial custom, and one which depends on general enforcement

We have to think of this kind of restriction differently there is a general recognition that having one day off
for everyone is beneficial for everyone; the only practical way to achieve this objective is through a restriction
on liberty (if there were NO restriction, ppl would feel compelled to work because it is in their immediate best
interests)
o

What does Mill think about polygamy?


o

Restriction on individual liberty to engage in polygamy would NOT be justified

Mill talks about polygamy as being a problem for his thesis because he recognizes that polygamy may have
negative or deleterious consequences on a womans liberty raises it as a problem for his thesis because he
recognizes that polygamy may have negative or deleterious consequences on a womans liberty

He asks whether the individual woman has any choice in the matter; concludes that YES she does; she is
making decision that this kind of marriage is better than no marriage at all (Mill is saying that the institution of
marriage is flawed for some women, and that we must respect their choice to opt into a different kind of
marriage)

Gerald Dworkin Paternalism: challenging Mill


o

o
o
o

Mills view that a person cannot rightfully be compelled to do or forbear because it will be better for him
precludes paternalistic legislation to which fully rational individuals would agree there are goods, such as health
and education, that any rational person needs to pursue for her own good attainment of these basic goods can
legitimately be promoted in certain circumstances by using the states coercive force
Paternalism the interference with a persons liberty of action justified by reasons referring exclusively to the
welfare, good, happiness, needs, interests or values of the person being coerced
Interference with individual liberty will be justified where the purpose of interference is prevention of harm to that
person (i.e., where the interference is paternalistic); incidentally, paternalistic interferences may also prevent harm
to third parties
Paternalistic interference is justified to prevent long term or irreversible damage to that persons autonomy (i.e.,
limited to preserving autonomy)

Interferences with liberty justified on paternalistic grounds


o
o

Direct prohibitions on individual behaviors (laws which attach criminal or civil penalties to certain kinds of actions)
Laws frustrating individual ability to carry out desired plans (cant consent to assault; cant contract to be a slave;
etc.)

35

Pure Paternalism
Class of persons
whose freedom is
restricted is
identical with the
class of persons
whose benefit is
intended to be
promoted by such
restrictions

o
o

Impure (weak) Paternalism


In trying to protect the welfare of a class of persons we find that the only way to
do so will involve restricting the freedom of other persons besides those who are
benefitted
Example: where I interfere with Xs liberty to sell heroin for the purpose of
preventing Y from buying it

Why isnt this justified in terms of preventing X from harming Y? (i.e., in


terms of preventing harm to others?) Y is an actor theres no harm to Y
unless he actively participates

36

Distinction: where collectivity is required to enforce individual interests


o

Example: the legislated 40 hour work week (similar to Mills example of Sabbattarrian laws)

It may be that this legislation is paternalistically motivatedbut there is another possible way of justifying
such measures which is NOT paternalistic in nature

Such measures are required NOT to overrule the judgment of individuals respecting their own interest
(paternalism), but rather to give effect to that judgment, because they are unable to give effect to it except by
concert (in order to achieve the objective (which is for the common good) we must enforce the 40 wk week)
There are restrictions which are in the interests of a class of persons taken collectively but are such that the
immediate interest of each individual is furthered by his violating the rule when others adhere to it

In such cases, the individuals involved may need the use of compulsion to give effect to their collective
judgment of their own interest by guaranteeing each individual compliance by others

Compulsion is used because it is the only feasible means of achieving some benefit which is recognized as
such by all concerned

Mill, liberty and interference


o

Dworkin discusses discrepancy btw Mills insistence on maximum individual liberty and Mills acceptance of govt
intervention in the economy

Interference with the individual is by definition wrong (says Mill), as each individual is ultimately the best
situated to judge his or her own needs (implication that interference may be justified, for Mill, in a wider range
of circumstances were it not always so wrong)

Mill is OK with government interference in the economy there will be a presumption against it which must be
rebutted but NOT a prohibition (as Mill would have for individual liberties except where harm to others is
involved)
Dworkin finds, in this discrepancy, the significance of autonomy for Mill as requiring maximum individual liberty

Liberty as humanity
o

Why is autonomy so incredibly important that any interference with individual liberty is NOT tolerated?

Autonomy is the core of independence that lies at the centre of what it means to be human

Denying that independence through coercion for ones own good denies that individuals essential humanity,
and this is why Mill is SO adamant about it (because Mill is talking about people who have arrived at the
maturity of their faculties it is the privilege and proper condition of a human being to use and interpret
experience in his own way)

This conception of liberty as humanity/autonomy explains Mills one exception to his rule (that a person not
be permitted to sell himself into slavery)
o For Dworkin, Mill is making this exception because selling oneself into slavery is an act which
would radically negate ones autonomy the main consideration for not allowing such contracts is
the need to preserve the liberty of the person to make future choices
Consideration of Mills slave exception gives a narrow principle by which to justify some paternalistic interferences:
paternalism is justified only to preserve a wider range of freedom for the individual in question

Limiting present liberty to preserve future autonomy


o

The justification for interfering with the liberty of children is the fact that they lack some of the emotional and
cognitive capacities required in order to make fully rational decisions

Psychology of the child favours immediate gratification to an extent that would impair long term autonomy
interests unless restricted; parental restrictions will not be required indefinitely (eventually the child will grow
up and will understand and agree with the restrictions = deferred consent)

By restricting autonomy in childhood, we actually allow children to grow into autonomous human beings (if we
DONT restrict their liberty now, they will always be engaging in immediately gratifying behavior which will
stunt their development into autonomous adults)
Deferred consent idea not theoretically transferrable to adult individuals (although social opinion may be that they,
like children, are unable at present to recognise self-interest, and would consent if they could)

Instances of adult consent to (present) restraint


o

Under certain conditions it is rational for an individual to agree that others should force him to act in ways which,
at the time of action, the individual may not see as desirable

Example: Odysseus commands his men to tie him to the mast and refuse all future orders to be set free,
because he knows the power of the Sirens to enchant men with their songs present restraint in anticipation
of future harm
We are all aware of our own irrational propensities; and rational people may agree to have their own liberty
restrained can we understand drug prohibition this way not just as protecting the child-like addict from his or
her self, but as protecting all people from their own irrational proclivities?

Some laws are necessary so that we dont follow our own irrational propensities

37

We may fail to emotionally understand risks intellectually understood (failure to buckle seatbelt, or wear a helmet
is an irrational decision); the exercise of rational self-interests requires emotional understanding, and commitment
therefore we may intellectually recognise the requirement for restraint, because we recognise our emotional
failure to appreciate risk
Prosaic deduction of taxes to pay for public goods (as opposed to private indulgence)

We all need lashing to the mast in order to provide for those goods that are necessary for the good of the
society instead of spending the money on ourselves
In a perfect world, we would not need these lawsbut we DO need them because of our own irrationality

Dworkin says: paternalism (constraints not presently chosen) justified where


Some of the decisions we make are of such a character that they produce changes which are in one way or
another irreversible; in particular, some of these changes will make it impossible to continue to make reasoned
choices in the future

Paternalism in these situations is justified as being a kind of insurance policy which we take out against making
decisions which are far reaching, potentially dangerous, and irreversible

Accepting that sometimes we make irrational choices; that we are not inevitably the best judges of what is
best for us
o Decisions made under extreme psychological or sociological pressures (not decisions that people are pressured
into, but rather, decisions, such as that to commit suicide, which are usually made at a point where the individual
is not thinking clearly and calmly about the nature of his decision)
o Decisions made where risks not adequately understood (not freely chosen by autonomous self)
Question is: would rational individuals agree to such restraints? With interference to liberty of ourselves and others at
such life points?
Mill
Dworkin
o Separates everyone into rational and irrational
o Acknowledging that ALL of us at ONCE are both
o Rational people are capable of exercising their
rational and irrational
o Need restraints to protect us from following
liberty properly, therefore paternalistic
interferences are NOT justified
irrational paths
o

Limits to legitimate paternalism


Proportionality between deprivation and restraint in each case
o Any kind of paternalistic interference must be carefully thought out; there must be a proportionality between the
deprivation in each case, the kind of restraint thats in issue, and the overall lasting benefit of the autonomy thats
at stake
o State must show that 1) the behavior governed by the proposed restriction involves the sort of harm that a rational
person would want to avoid; 2) on the calculations of a fully rational person, the potential harm outweighs the
benefits of the relevant behavior; and 3) the proposed restriction is the least restrictive alternative for protecting
against the harm
o Example:

Prohibition (no mountain climbing) or restriction (mountain climbing with a helmet)?

How significant is the activity in terms of autonomous self ? (is mountain climbing just a hobby, or integral to
personal identity, self-worth, happiness?)
Least restrictive alternative (in terms of autonomy) must be chosen, and burden of proof is on the authority
o In order to make any kind of a case re: paternalism, you MUST start with Mill (agree with, explain how your theory
can co-exist, etc.)

This is what Dworkin does: he keeps on referring back to Mills theory, and crafts a theoretically justifiable
(through the eyes of Mill) defence to paternalistic restrictions of liberty
o BASIC FACT which law proceeds from = efficiency and the rational man

Law and economics: description and prescription


o

Description and explanation


Law as efficiency describes how (some) legal rules
work, and why laws tend to develop as they do
(towards efficiency), even where the claim is that
laws are adopted for other reasons
Efficient laws are ones that work well (this is why
laws tend to develop as they do)

Normative (prescription)
Good legal rules are efficient rules (we ought to
have them, and should try to identify their
characteristics and develop them)

How law SHOULD be or what makes a good law

Efficiency can be used as a measure: if its an


efficient law, its a good law and it should be
maintained

38

What is efficiency (in economic thought)?


o

Maximization of social wealth (a transaction is efficient if the result if a net increase in wealth maximization)

Wealth here not merely money; but all measurable satisfactions


Example of wealth maximization where x sells Blackacre to y
o x receives money-benefit that he values more than Blackacre
o y receives Blackacre, which she values more than the money paid
o Result = a net increase in wealth (both x and y getting something of greater value to them,
individually, than what they give in return)
Imagine x feels compelled to sell for less than actual value
o x is still getting value in terms of TIME (i.e., selling quickly for relief from debt = this is a
measurable satisfaction); if there wasnt some non-monetary value involved here, she never would
have sold
Model relies on theory of human beings and human behaviour as rational; that humans make decisions in their
best interests (so x always values $ more than Blackacre; y always values Blackacre more than $, the reason, on
both sides, for the transaction); the result of two rational ppl transacting will ALWAYS result in a net increase in
wealth
The point of law should be the maximization of social wealth; law to be used as a tool to achieve,
facilitate this

Role of law is to minimize distortions in the economy so that people can operate in this way

Efficiency: economic models


Pareto superiority
o One state of affairs (S2) is better than another (S1) because at least one person is better off in S2 than in S1 and
no one is worse off, or, one person prefers S2 and no-one prefers S1 (at least one winner, and no losers)

Can see how effect of the transaction is net increase because one party is NOT losing anything (left in the
same position) and the other is coming out better off
o Pareto-superiority could be achieved through a win-win transaction (x sells Blackacre to Y) or, in a win-lose
situation, where winner fully compensates loser for her loss, but still comes out ahead (i.e., winner comes out
aheadbut is so ahead that can compensate the loser for the loss and still come out ahead)
o Pareto-optimality where no further pareto-superior moves are possible

Markets and externalities


According to rational-man theory, voluntary market transactions will always be pareto-superior (rational man will
not choose loss for which he is not compensated)

Free market transactions by rational persons will always be pareto-superior as between X and Y because in
conditions of perfect knowledge with NO distortions; rational man will only going to choose transactions where
hell win, stay the same, or lose (but be compensated for his loss)
o Problem for market externalities (X sells widgets to Y; benefit to X and Y from transaction but widget production
produces pollution which falls on Xs neighbours A and B; cost of this externality falls on A and B, not X or Y)

Externalities = by-products of the transaction which can either be negative or positive

A and B NOT parties to the transaction (and in the case of negative externality falling on them, they are not
receiving any benefit from the transaction)
Kaldor Hicks
o Another approach to efficiency which can describe negative externality situation; an outcome is more efficient if
those that are made better off could in theory compensate those that are made worse off and lead to a Pareto
optimal outcome
o Applying Kaldor-Hicks test , transaction efficient if overall benefit outweighs cost to Xs neighbours (recall:
efficiency is about the OVERALL maximization of wealth (goal of everything in economic theory is maximization of
social wealth))
o If the gains to the winner are large enough that they could compensate loser and leave profit for winner (overall
wealth gain through transaction- overall benefit to y is greater than xs loss)
o Activities are NOT fully absorbed by the parties of the transaction are distorting the market

Law can work to require compensation for the loser (perfecting the market, turning uncompensated K-H into
pareto-superior move) through creating, assigning property rights
o Example: i.e., pollution created by your activity is interfering with your property rights, and you
may have a COA in nuisance if you have property rights (in this way, parties not privy to the
transaction are being compensated for having to bear the burden of negative externalities)
Example of cost internalization through regulation
o Regulation internalises externalities (such as pollution) and thereby allows market to reflect real costs

Win-win situation regulation forces person to internalize costs = forces them to be more efficient (increase
expense of activity = increase price of product = demand goes down = supply goes down)
o

39

Eg.: widget costs $1 to produce, sold at $1.20 (20c profit); production creates unit of pollution which generates
10c in cost to the community (borne by the community either in environmental or health costs)- if
community bears 10c pollution externality, widgets are sold at a discount- more widgets are produced and
purchased at this discounted cost than the real market cost would warrant- by internalizing externalities,
regulation prevents market distortion
Producer would not assume the cost of the pollution unless he is made to (no rational man would)
Example of carbon tax taxing the consumers rather than the producers should make the cost lie with the
producer because then they would come up with a way to reduce carbon production

Tort law (negligence)


o

Core function/principle in negligence = the compensation principle:

Costs do not lie where they fall but are borne by the wrongdoer/defendant (compensating the plaintiff;
restoring him to the position he would have been in had the event not occurred)

From law and economics perspective = law is working to move costs around Why does the law do this?
Because its more efficient for defendant to bear the loss
Has the effect of inclining people in the position of defendant to be careful (deterrence principle), preventing future
losses, setting a efficient level of risk for activities

Defendant is the one whos in the position to make sure the loss doesnt happen
Mechanism for evaluating, managing risk; when is an activity too risky? when compensable harm is real
possibility (compensable, because reasonably foreseeable)

One way in which negligence works = setting the reasonable level of risk (i.e., reasonable foreseeability)
From rational man perspective too risky when: if it came to fruition, I would need to compensate you for it
If people who do not take reasonable caution to avoid harming others do not have to pay for that creation of risk,
and it materialises as harm to another, the creation of risk is discounted (i.e., made cheap widget example)
(and artificially encouraged), an inefficient outcome (the benefit to D is not having to be careful)

Carelessness is cheap (cheap because costs of it are not internalized) therefore carelessness is encouraged

Vicarious liability
"We speak of vicarious liability when the law holds one person responsible for the misconduct of another, although
he is himself free from personal blame worthiness or fault. The hallmark of vicarious liability, then, is that it is
based neither on any conduct by the defendant himself nor even breach of his own duty. (Fleming on Torts)
o The Salmond test- employer will be (vicariously) liable for the torts of his employee if the act in question was:

a wrongful act authorized by the employer, or

a wrongful and unauthorized mode of doing some act authorized by the master.
o Rationale for vicarious liability?

Its right to fix the cost on the employer because this will create an incentive to decrease the risk and the risk
can only be decreased by the employer
Mary M v City of Los Angeles
o Police officers occupy a unique position of trust in our society. They are responsible for enforcing the law and
protecting society from criminal acts. They are given the authority to detain and to arrest and, when necessary, to
use deadly force. As visible symbols of that formidable power, an officer is furnished a distinctively marked car, a
uniform, a badge, and a gun. Those who challenge an officer's actions do so at their peril; anyone who resists an
officer's proper exercise of authority or who obstructs the performance of an officer's duties is subject to criminal
prosecution.
o When law enforcement officers abuse their authority by committing crimes against members of the community,
they violate the public trust. This may seriously damage the relationship between the community and its sworn
protectors, by eroding the community's confidence in the integrity of its police force.
o The issue in this case is when a police officer on duty, by misusing his official authority, rapes a woman whom he
has detained, can the public entity that employs him be held vicariously liable for his misconduct?

We conclude that the employer can be held liable under the doctrine of respondent superior (vicarious
liability)
o Interesting how the court defines the tort here (as misusing his official authority) connection btw
conferral of authority on him and the tort that he committed
o City contended that officer acting outside of the scope of employment when committing assault

Close connection btw citys conferral of authority on this PO and the real risk that a PO would misuse his
authority in this way in Mary M, that risk materialized

SO, as btw the city who created the risk and Mary M who is an innocent victim, who should bear the burden of
this risk? City not only creates the risk, they also benefit from it police force has to have this authority in
order for the city to have an effective police force
o

40

Our society has entrusted police officers with enforcing its laws and ensuring the safety of the lives and property
of its members. In carrying out these important responsibilities, the police act with the authority of the state.
When police officers on duty misuse that formidable power to commit sexual assaults, the public employer must
be held accountable for their actions. It is, after all, the state which puts the officer in a position to employ force
and which benefits from its use.'"

Further, from a torts perspective, this is efficient if city has to bear the costs its mind may be directed
towards ways in which to reduce risk
Rational man theory no one does anything unless its in their self-interest therefore must make it in their
self-interest

How contract law promotes efficiency


o
o

Creates framework for efficient exchange; facilitates trust and confidence, thereby encouraging trade (especially
among strangers)
Standards reduce transaction costs (basic rules need not be re-established every time)

Minimizes transaction costs by creating stabilized set of rules therefore we dont have to make up our own
rules every time we want to participate in a transaction
Rules encourage use of formal/written contracts, relatively detailed terms providing for contingencies

Damages
o

1.
2.
3.
o

Damages provide for not continuing with relationship where it is not efficient to do so (without creating loserand therefore inefficiency)

Example: person wants out of a relationship because theres a better one out there, this person can breach
and get out of the relationship provided that he pay damages to the other party this is efficient (efficient
breach)
Expectation measure of damages: person not breaching gets exactly what he would have received had there
been no breach (expected profit)
Reliance measure of damages: a person suffering loss through reliance on a promise or agreement has loss
made good
Restitution measure of damages: if person breaching has obtained goods or services, they must be paid for
Which rule in which situation? That producing the most efficient (wealth maximising) outcome; generally, rule 1
(allows A to breach when it is in his benefit/interest to do so while negating any loss to B- net wealth gain)
From a law and economics perspective, the rule that we choose will always be wealth-maximizing

Efficiency and calculation of damages


o

Consider... Peevyhouse v Garland Coal.

Old case: wealthy companies would come in and offer farmers money for their subsurface rights (to mine);
farmers would usually end up much worse off than they expected

Peevyhouse entered contract with GC; according to terms, GC would restore Ps land to prior condition after
mining concluded

GC then refuses, saying this would be too expensive- the land had only lost $300 in value, and restoring the
land would cost $29,000.

P says land important to them; would not have entered contract without promise
Outcome? $300 to Peevy from a law and economics point of view this is the most efficient way to settle the
issue

The rules of contract allow for damages in the case of breachthey allow for it when it would be efficient to do
so

Property
o
o

Objective of property law rules/rights not to produce equality, but to protect entitlements and their efficient use
and transfer
Property rights create value, that can then be traded or compensated , and are protected in three ways:
1. Property rules protect entitlements of property rights holders except through agreement a mutually
accepted price (A owns Blackacre unless and until he agrees to sell Blackacre to B)
2. Liability rules (such as nuisance) allow for compensation for reduction in value which has occurred
without agreement of property right holder
3. Inalienability where society has determined that some property rights (as to ones organs) should not
be tradable (a policy reason, criticised by law and economics theorists as...?)
o Example of trading organs pure economics perspective would say for sure, go ahead and trade
them if you want; but once you bring law and economics together, you consider society at large
eventually, if these are tradeable and are given monetary value, the market for free organs
would cease to exist = this is not efficient

Coase theorem

41

o
o

That, where transaction costs are low and where neither party engages in strategic distorting behaviour and
where information is perfect, individuals will reach efficient results by behaving as if each had compensable
property rights (as where A, enjoying < economic benefit from radio transmission will compensate others not to
transmit where rival transmissions cause interference)- we dont need property rights under these conditions
Assigned property rights may be necessary to promote efficient outcome; allows society to choose and assign
value (through property rights) to achieve desirable outcomes (emission credits trading?)
Rights generally conferred, recognised to extent that this is efficient (anti-gang legislation violates rights to
freedom of association, but those rights in this context inefficiently costly- can we afford them?)

i.e., from law and economics perspective, those rights are too costly and we cannot afford them
Think about how different this theory of rights is as compared to Dworkins

Rights can be taken away or repressed if it would not be efficient to recognize them (law and economics
perspective)

Criminal law
o

o
o
o

Criminal law system may be understood in economic terms (society paying < for protection of interests identified
as high value, or criminal matters, and decreasing crime means spending < on the system)

Criminal law system is expensive; harms that are identified as being sufficiently valuable to society are the
only ones that will be worth it to society to apply criminal law to; question of whether something should be
criminal whats the harm/cost and is it worth it?
Law and economic theory directs analysis to question of efficiency of criminal law sanctions as a means of
achieving the desired end, whether investment in (public) criminal system less than non-monetary wealth
created by protection of valued interests/rights
Criminalisation is costly- are other alternatives more efficient?
Devising penalty + enforcement (likelihood of incurring penalty) to equal the social cost of criminal behaviour

Free markets and the social value of wealth maximization


QUESTION: whether law and economics is good?
o GOOD recognizing real value by promoting and defending free markets and allowing this to work (i.e.,
maximization of wealth)

Where tyrant sets the prices, true values are unknowable; value = desire + willingness to pay (true value
transaction maximizes real social wealth)

Tension with utilitarianism- redistribution of $100 from Rich A to Poor B will < Bs happiness < than < in As
unhappiness (utilitarian outcome), but probably not As desire + willingness to pay (As desire and willingness
to pay is economics true value)
o Contractarianism- theory that society a co-operative venture for all (including A and B); free market productive,
< total wealth, rule system required to promote co-operative behaviour and specify sharing of proceeds
(balancing utilitarian concerns)

Should not think of random collection of rational men; should think of cooperative society

This theory recognizes the way the free market works best, and law plays a role in thisbut then law should
also play a role in redistribution as a rule system to promote cooperative behavior and compel the sharing
of the proceeds
o Pure law and economics theory would reject this say that this was distorting the market
o BASIC FACT which law proceeds from = patriarchy and the resulting reality of law as a patriarchal institution

Theoretically diverse with a common core


o

Like legal realism, feminist theories of law form a cluster of related views rather than a single school of thought

Legal Realism: different variations but basic agreement rejecting idea of judges being controlled by
abstract legal rules forcing them to produce certain outcomes

Feminist Jurisprudence: different variations but basic agreement over two central theses:
o The world as we know it and have known it is structured by patriarchy the systematic and
systemic domination of women by men

Pervasive fact of life that structures virtually all social reality for both men and women

HOWEVER, this pervasive fact rests on socially constructed categories of thought it is neither
natural nor inevitable
o Patriarchy is bad for women, morally unjustified, and ought to be eliminated
Diversity in feminist jurisprudence understandable, given their methodology and aim: they reject the idea of
having a meta-theory that explains everything (universalist abstract theory a la Dworkin, and Law & Economics) in
favour of a focus on the specific, concrete, lived experiences of women in all of their particularity and contextual
detail

42

o
o

o
o
o
o
o

Law and Economics


Core understanding of what humans are like
rational man
Everything rests on us accepting this idea that man
is a rational actor, always

o
o
o

Gerald Dworkin
Humans in our system are liberal rights bearers
Were all equal to one another because we all have
the same rights
Law works if it is recognizing these rights that we
have, and giving them force

Feminism
Feminists reject these meta-theories they say they are fictions
ALSO: these fictions serve evil ends
We have to think of humans in real life NOT in abstract terms
Focus on women as traditionally silenced subjects of law (the female as subject)- asking the woman question
(what does it mean for women?) as a means of evaluating law (focus on those areas of the law that particularly
impact women)
Patriarchy for feminists = social construct created by humans and can be taken down by them

43

Common core
o MOST SIGNIFICANT FACT = patriarchy as structuring society
o The world as we know it and have known it is structured by patriarchy, the systematic and sytemic domination of
women by men
o Patriarchy is a pervasive and complete world view structuring virtually all social reality; law is one reflection of
patriarchy and its norms
o Patriarchy appears, and presents itself as natural but these apparently natural categories are socially
constructed; we NEED feminism in order to see patriarchy
o Patriarchy, and the systems that flow from it, are bad for women
o Feminist jurisprudence is a lens, or perspective, that we can use to understand how systems are influenced by and
work to maintain the patriarchy, and how they can be changed to be better for women (and, thereby, better
generally)
o Patriarchy is the social structure that has created the law, and it is BAD for women
Challenging central tenets or traditional legal values
o As a critical theory, feminist jurisprudence responds to the current dominant understanding of legal thought:
liberal Anglo-American tradition (Legal Positivism & Natural Law)

Feminists raise questions regarding their assumptions about the law, including:
o That law is properly objective and thus must have recourse to objective rules or understandings at
some level
o That law is properly impartial, especially in that it is not to be tainted by the personal experience of
any of its practitioners, particularly judges
o That equality must function as a formal notion rather than a substantive one, such that in the eyes
of the law, difference must be shown to be relevant in order to be admissible/visible
o That law, when working properly, should be certain, and that the goal of lawmaking and legal
decision-making is to gain certainty
o That justice can be understood as a matter of procedures, such that a proper following of
procedures can be understood as sufficient to rendering justice
o Similar to legal realism in that it challenges core traditional legal values (and characterizes them as pernicious
falsehoods, constructs of the patriarchy that render the inequality of men and women both invisible and
legitimate)

These traditional legal values are very similar to those that Lon Fuller identifies as being part of laws internal
morality
Feminist Jurisprudence
Lon Fuller (Modern Natural Law)
o The neutrality of law
Internal morality of the law:
1. Sufficiently general
o The ideal of the rule of law
2. Publicly promulgated
o The model of judicial reasoning as logical deduction
3. Sufficiently prospective

(Legal realists say judges us method of reasoning to


4. Clear and intelligible
justify conclusions theyve already gotten to)
5. Free of contradiction

(Feminists say judges are arriving at conclusion that


6. Sufficiently constant through
enforces the patriarchy)
time so that individuals can order
o The separation of law from politics
their behavior accordingly
o The separation of law from morality
7. Not impossible to comply with

(Feminists say that law pretends that it has nothing to


8. Administered in a way
do with morality (but really, its enforcing the morality
sufficiently congruent with their
of patriarchy))
wording so that individuals can
o Division btw public sphere and private sphere, and the
abide by them
importance of maintaining ppls privacy within the private
sphere
Feminist theory is saying: law pretends to be all these things (neutral, etc.), when in reality, its
business is all about dominating and suppressing women

44

Patricia Smith: diverse feminist theories


1. Liberal feminism
o
o
o
o

Liberal feminism classic


Subordination of women causes
blocks to access to success in public
spheres (political and economic)
Removing those blocks will lead to
equality (equality as equal opportunity)
Recall John Stuart Mill first classic
liberal feminist
FORMAL equality: ideal of gender
blind law- no special treatment (no
blocks, and no privileges)

o
o

Modern liberal feminism


Subordination of women causes blocks to access to
success in public spheres (political and economic)
SUBSTANTIVE equality: recognizes significance of informal
discrimination (stereotypes) and requirement for reorganisation of domestic life to provide realistic, attainable
opportunities for public participation
Recognising the reality of lived difference in many female
lives motherhood responsibility, etc. that must be
acknowledged and provided for, beyond formal equality, to
provide meaningful, accessible, equality

45

2. Radical feminism
o

o
o

Focus on the social construction of gender within patriarchy (recall Judith Butler (feminist theorist): man and
woman is NOT reality they are social constructs)
Not only are they social constructs, they have been created for the purpose of enforcing the patriarchy

It is impossible to understand what female-ness is without dismantling patriarchy (the radical project)
Radical = by the root; idea that patriarchy so deeply rooted in society, so pervasive, that more fundamental
changes are needed in the basic structures of society, the fundamental ideas of male and female, and the
socialisation of the young
Focus on biological reality of being a woman childbearing/rearing (responsibility must be truly shared, or women
should have control); sexuality and violence (as lived, experienced, embodied reality for many women)

3. Marxist feminism
o

o
o

Before capitalism, there was NO patriarchy

THEN, the class system came into being; capitalists (bourgeois) seized control of the means of production
THIS FACT explains everything

Everyone else is forced to sell their labor to the bourgeois; and men stuck selling our labor for whatever we
can get

BECAUSE of this, women had to stay home in the private sphere, men had to go off and sell their labor

IN this system, the only value of person was his ability to make profit, this led to devaluation of women

Women = useless in the eyes of the capitalist because they cannot make profit
Oppression of women is a function of the capitalist system and its de-valuing of the private domestic sphere
(child bearing and rearing, home-based work) as economically useless (makes no profit for the capitalist and so
exists outside the system)
If youre a Marxist, the only way to solve the problem is to dismantle the system (capitalism) this is the root of all
evils, once its gone, the patriarchy will wither away (grand theory ONE root problem)

4. Postmodernist feminism (French feminism)


o

o
o

Reject universalist, meta-theory- idea of essential truths about categories of human beings (grand theories like
Marxism)

Focus is on the concrete, lived experience of womens lives


Embrace womens positioning within the mainstream patriarchal structure as other womens otherness
should be celebrated, not overcome) to be something other to the patriarchy is NOT a bad thing!
Reject single solution to the problem of female oppression; multiple solutions, that must respond to actual lives
of actual women (and not abstract category of women)

5. Relational feminism
Carol Gilligan In a Different Voice thesis
o Generally speaking, women are different from men this is because of socializationbut socialization produces
REAL differences

Women socialisation (different from men) produces a different moral perspective and understanding- an
ethics of care that places primary value on maintaining, nurturing relationships
o BIG INSIGHT: womens different moral perspective and understanding is NOT a problem to be overcome, (i.e., this
is NOT a bad thing) so that women can join the male-value system

What needs to happen instead: the public sphere must change to incorporate the ethics of care (antiassimilationist women not supposed to become more like men, public sphere needs to place more value on
qualities of women and change accordingly)
o The system changes to look more like women (rather than women changing to look more like
the systems norm)

o
o

Relational Feminism
Focus on womens difference
The culturation of different moral values, the functional
work/responsibility difference

o
o

Liberal Feminism
Focus on male-paradigm equality
Women evaluated using male standards

46

Is there a feminist jurisprudence?


o
o

Jurisprudence a theory of the relation btw life and law


Diversity of views encourages debate, discussion, and exchange of ideas around core thesis:
1. The rejection of patriarchy
2. Commitment to dismantling it
3. Commitment to improving the lived reality of womens lives
o GOAL here is NOT to create some big theory that explains everything, all the timethe goal is to
make the lives of women better
Potentially revolutionary impact: basic revolutions such as this touch everything and change assumptions about
human nature and human life

Catherine MacKinnon Radical Feminism: Law as male power


o

o
o

o
o

Law is the site and cloak of force law legitimates the use of force in liberal society; the force underpins the
legitimacy as the legitimacy conceals the force

Site of force = where the states power lies, and the mechanism by which the state enforces power; AND at
the same time, all the things that are supposed to be good about the law (i.e., neutral, impartial, etc.) actually
make the law impenetrable and invisible (i.e., you cannot see that this is the force, it CLOAKS the force)
Law makes male domination invisible and legitimate by adopting the male point of view and articulating it as
both natural and right
What is the male point of view? Examples include:

Scope of judicial review

Norms of judicial restraint (kinds of comments judges can make about social structure, etc.)

Precedent

Public/private distinction (idea that some things belong in private sphere)

Standing

Reasonable person (whole idea of reasonableness is male-centric; female question is to focus more on
contextual experience, lived lives, all the factors influencing the decision)
Law is a male creation (as created by the powerful in society) flowing from the patriarchy created to
further mans position in society and make them powerful
No positive laws permitting male domination of women need exist to exist; they are not needed, because there is
nothing (including laws) to stop domination (and so, because not legally compelled, it appears as natural)

By NOT doing something about male domination, law enforces the patriarchy; the very integrity of law
requires NOT doing anything about certain types of male domination (example of some things being properly
in the private sphere) but these are exactly the things that law needs to be involved in
Can women demanding actual equality through law, be part of changing the states relation to women and
womens relation to men?

First step STOP pretending that were equal to men


o Claiming womens concrete reality (unequal pay, allocation to disrespected work, demeaned
physical characteristics, targeting for rape, battery, sexual abuse, dehumanised, used in
denigrating entertainment, denied reproductive control, forced by conditions of lives into
prostitution) as a social and political institution (i.e., as part of the patriarchy)

Second step then get over rights


o Recognising male power over women embodied as individual rights in law (pornography as
freedom of speech (its not, its violence against women, and its part of laws duplicity that it
calls this freedom of speech); privacy rights which encourage domestic violence and child abuse;
gender neutrality in child custody which is used to control and harass women)
Law reform question: does a practice participate in the subordination of women or not; objectivity neutrality
the cloak of male dominance its impossible to affect real change while continuing to talk about values of
objectivity and neutrality

Impact of female representation in law: R v Ewanchuk


Liberal feminist makes a difference if you remove blocks and allow women access to the public sphere, they
will then make changes that positively affect the patriarchy
Holding (defining sexual assault):
o The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of
the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the
Crown to prove that the accuseds actions were voluntary. The Crown need not prove that the accused had any
mens rea with respect to the sexual nature of his behaviour. The absence of consent, however, is purely subjective
and determined by reference to the complainants subjective internal state of mind towards the touching, at the
time it occurred.
o

47

While the complainants testimony is the only source of direct evidence as to her state of mind, credibility must
still be assessed by the trier of fact in light of all the evidence. It is open to the accused to claim that the
complainants words and actions, before and during the incident, raise a reasonable doubt against her assertion
that she, in her mind, did not want the sexual touching to take place. If, however, the trial judge believes the
complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent.
The accuseds perception of the complainants state of mind is not relevant and only becomes so when a defence
of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

Per Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ (ALL MEN)
o

The trier of fact may only come to one of two conclusions:

The complainant either 1) consented or 2) did not consent

There is no third option


If the trier of fact accepts the complainants testimony that she did not consent, no matter how strongly her
conduct may contradict that claim, the absence of consent is established and the third component of the actus
reus of sexual assault is proven. No defence of implied consent to sexual assault exists in Canadian law. Here, the
trial judge accepted the complainants testimony that she did not want the accused to touch her, but then treated
her conduct as raising a reasonable doubt about consent, described by him as implied consent. This conclusion
was an error.
THIS is legal reasoningyou follow the principles and come to a conclusion; its all about consent definition of
consent, actus reus, etc.

per LHeureux-Dub and Gonthier JJ (WOMEN)


o

o
o
o

Canada is a party to the Convention on the Elimination of All Forms of Discrimination against Women, which
requires respect for and observance of the human rights of women. Violence against women is as much a matter
of equality as it is an offence against human dignity and a violation of human rights. These human rights are
protected by ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and their violation constitutes an
offence under the assault provisions of s. 265 and under the more specific sexual assault provisions of ss. 271,
272and 273 of the Criminal Code.
This case is not about consent, since none was given. It is about myths and stereotypes. The trial judge believed
the complainant and accepted her testimony that she was afraid and he acknowledged her unwillingness to
engage in any sexual activity. However, he gave no legal effect to his conclusion that the complainant submitted to
sexual activity out of fear that the accused would apply force to her. The application of s. 265(3) requires an
entirely subjective test. As irrational as a complainants motive might be, if she subjectively felt fear, it must lead
to a legal finding of absence of consent.
The question of implied consent should not have arisen. The trial judges conclusion that the complainant
implicitly consented and that the Crown failed to prove lack of consent was a fundamental error given that he
found the complainant credible, and accepted her evidence that she said no on three occasions and was afraid.
This error does not derive from the findings of fact but from mythical assumptions. It denies womens sexual
autonomy and implies that women are in a state of constant consent to sexual activity.
The majority of the Court of Appeal also relied on inappropriate myths and stereotypes. Complainants should be
able to rely on a system free from such myths and stereotypes, and on a judiciary whose impartiality is not
compromised by these biased assumptions.
Liberal feminist perspective matters and its important; and women can affect change from within
MacKinnon would NOT have thought that this was possible that women would be able to use these words and
this type of reasoning within a patriarchal society

Indigenous, Canadian, legal traditions as pluralistic

o
o

Co-existing sources and forms of law: indigenous legal tradition; common law tradition; civil law tradition
Indigenous legal tradition is itself pluralistic includes multiple, distinct legal traditions and sources of law: sacred
law; natural law; deliberative law; positivistic law; customary law

Sources
1. Sacred Law
o As in other legal traditions, some Indigenous laws have sacred sources (originating from the Creator)
o Laws can be regarded as sacred if they stem from the Creator, creation stories, or revered ancient teachings that
have withstood the test of time
o Formation of treaties, bringing Canada into existence within Saskatchewan First Nations territories within Canada;
the view of First nations following their on legal traditions in creating treaties was that treaties were made with the
Creator as well as with the Crown
o Other First Nations regard their treaties very differently (as creating an alliance between two nations, for example)
o In British Columbia, resettlement without treaties
2. Natural Law
o Indigenous peoples also find and develop law from observations of the physical world around them
develop[ing] rules for regulation and conflict resolution from a study of the worlds behaviour

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Departure from Western traditions defining natural law in terms of divine law, self-evident rights, the law of reason,
and the idea of mans restraint, domination of nature
o On the contrary: human laws based on, proceeding from an observation of the natural worlds ordering- as a
source of resource management principles, eg
3. Deliberative Law
o Law developed through processes of persuasion, deliberation, council and discussion
o The proximate source of most indigenous law (informed by natural, sacred law)
o Process through which law is re-examined and revised
o Draws on entire body of knowledge to which Indigenous persons have access, which includes ancient and modern
understandings of human rights, due process, gender equality, and economic considerations; can take into
account, incorporate where appropriate, ideas from other legal systems
o Developing human rights principles within Indigenous legal systems; may be found in historic laws and
experience, as well as current human rights documents and declarations, including international human rights
standards
o Deliberative law, legal process, is dynamic (neither timeless no past tense), responsive while consistent;
dialogue with space for dissenting views
o Circles, feasts, structured consensus/agreement (Haudenosaunee, eg) examples of deliberative legal process
Positivistic Law
o Proclamations, rules, regulations, codes, teachings, axioms that are regarded as binding or regulating peoples
behaviour

Law might be created for one reason (as a positive law) but that reason may subsequently cease to exist
however, people may still follow that law, but for different reasons (not because its a positive law)
o A force in all legal traditions; danger that all positive laws will be cut off from their persuasive connection with
other sources of law
o Mis-use of positivistic law by leader or group within the community will justify the removal of that source; other
sources of law will provide a basis for continuing development
o Positive law is the most fragile form of law because it is the most dependent on all the other sources of law; if it
becomes disconnected from all other sources, it may lose its legitimacy, and may no longer be called valid law
Customary Law
o those practices developed through repetitive patterns of social interaction that are accepted as binding on those
who practice them
o Also a source of law in civil, common law systems
o Most strongly recognised in context of family, marriage relationships (customary adoptions, eg); customary law
underlies many recent land claim agreements
o Labrador Inuit Land Claims Agreement, eg acknowledges that Inuit law will be a significant source o authority in
the region
o

Conclusion
o
o

In the real world Indigenous law, legal traditions, will involve the interaction of two or more of these sources, eg,
the codification of customary law creates positive law with its basis in customary law; that customary law may
itself be connected to natural law (as a theory of regulation and relationship)
Significance of maintaining the oral transmission of law, alongside written recording- ensure law is accessible,
expressed within the community, retains connection with past tradition while moving into the future (the stream)

Conversation with D. Kennedy (interview)

What is critical legal studies?


Nothing if not contentious, argumentative, and full of different points of view; focus is to destroy the argument that
law and politics are separate and different

NOT a theory literature produced by a network of people thinking of themselves as activists working in the
law school setting, coming out of 60s style radical politics or sentiment (although that originating impulse has
changed over time)
o Critical evolved out of 60s broader social movements as a critique of the xisting system
o Original focus on doctrine (and particular way doctrine was taught in law schools) URGED that doctrine was
political:

Understanding doctrine as political in different ways (as opposed to pure functioning of reasoning or logic)

NOT a conspiracy theory (which would describe doctrine as being seized by particular political group);
explaining and understanding political content as a necessary feature of legal doctrine (doctrine is inevitably
political because of the system in which they are embedded, open texture of legal doctrine, and the
perspectives of the dominant players)

Doctrine is NOT neutral (similar to legal realism); new legal realism = off-shoot of critical legal studies
Critical legal studies: law is necessarily embedded in current political system
o

49

Law as a TOOL or AGENT or current political system Marxist critique of mainstream liberal jurisprudence
(resembles Marxist theory law as necessarily embedded within capitalist system; ALSO resembles feminist
jurisprudence because law is a social artifact, its necessarily embedded in the social structure (which is the
patriarchy))
Politics here includes non-formal politics NOT just what happens in legislatures, and courtsalso
relationships/interactions of power in school, homes, work- these are all political

Broader analysis and understanding of politics and its role in everyday lifeand how law is ALWAYS implicated
in that (at both formal and informal levels)
Perspective initially = white male perspective (these were the ppl in the legal academy; homogenous legal
academy all sharing one point of view and talking about the same things)
With time cls movement has fragmented, diverse perspectives have emergedpostmodernism/literary/discourse theory; feminist legal theory; critical race theory

As fragmentation has happened (which is good because its enriching legal discourse), it has also had the
effect of fragmenting the critical legal studies movement CLS is no longer a single perspective talking about
a single point of view or even a common topic

Kennedy concludes by asking whether, today, its accurate to talk about one school of thought (as critical legal
studies)probably not! CLS is more like a conversation btw difference voices and threads of argument that all
came out of an original school of thought (Hall describes original CLS school of thought as exploding into a
bunch of stars)

Critical race theory one of the stars in the galaxy (after fragmentation of CLS)
o
o
o
o
o

Similar to radical feminist theory


A movement that studies and attempts to transform the relationship btw race and power by examining the role of
race and racism within the foundations of modern culture
Race as non-natural (race as social construct), an invention of the Enlightenment period (in the same way
that gender is more properly understood as a social construct (rather than naturally occurring phenomenon)); race
is presented as being natural (but its NOT)
Race as part of general impulse (of enlightenment period) to sort everything out into categories and explain
everything; category created = race; race then assigned to living human beings
Race is real, and exerts power as a social and cultural reality that people (racialised persons) are compelled to live
with and live out
People are racialized (when you describe someone as being of a certain race); racialized = I live with, I
have put on this construct that others have placed on me; racialized identity carries an enormous amount of
meaning within our society; if we want to respond to racism, this is what we must understand (what
racializing means within our culture)
Understanding race means understanding how this happens in peoples lives; autobiography, experience is
crucial

Nine central themes (Wacks)


1. Critique of liberalism
o Liberalism = all individuals in society are to be treated as and are in fact treated as equal rights-bearing units; all
that needs to happen is remove barriers that are preventing ppl from realizing rights
o CRT object to political liberals cautious approach to social transformation, to color blindness as a solution to
racism (favouring instead challenges to the way racism can be embedded in apparently neutral standards), and
have criticized the limitations of a rights-based approach to resolving racism
o CRT argues that gender constructs and racial constructs have an enormous impact; ppl experience the impacts of
these social constructs everyday and we need to understand this

Liberalism is dangerous and distorting because it disguises this; rejects individual experience (this is
problematic)
2. Storytelling (importance of subjective accounts of racism)
o This is a very important part of legal scholarship (different from classical approach which eschews subjectivity
always searching for objectivity)
o CRT = only way to understand individual experience is through storytelling and subjective accounts
3. Revisionism (questioning the accepted/official story about anti-discrimination laws)
o Questioning stories that liberalism tells; we need to change the story that liberalism tells (that removing blocks in
society will make all the problems go away, and will enable everyone to realize their rights) this story is a LIE
4. Understanding race and racism as social, cultural
o The problem is racialization, which is a sociological NOT a biological phenomenon
o Racialization as a series of assumptions and pervasive social practices that express, enforce, and reinforce
damaging stereotypes on persons of colour
5. Structural determinism
o How do the structure of legal concepts (as objective, rational, impersonal) influence its content (in support of
status quo)?

50

o
6.
o
o
7.
o
o
8.
o
o
o
9.
o
o

Recall feminist jurisprudence structure of the legal system works to disguise bias against gender and race
Silencing of subjective experience is oppressive in and of itself; colour-blindness and racelessness is part of the
problem; because the social impact of racialization is pervasive, ignoring it at law leads to a formal equality that
entrenches inequality
Intersectionality of race, gender, class
Idea that race, gender, and class come together in individual lives to create unique experiences
Rejection of early-feminist literature (focused on white-middle class women (because they were writing at that
time); they were writing from a very limited standpoint; leaving out other women who were living with confluence
of different constructs in their lives
Anti-essentialism: no (essential) black community (many communities, identities, perspectives)
Goes along with constructionism
Anti- essential = NO essential quality that we talk about when we talk about gender or race
Cultural nationalism
Are racialised minorities best served by separating from the majority, building separate structures?
Questioning of basic liberal idea that the goal were all working towards is to integrate or assimilate racialized
minorities into the majority
Liberal goal is incredibly oppressive advocating dismantling of racialized constructionsbut replacing with alien
construction that does NOT resonate with the ppl living out these realities
Legal institutions
Examining reasons why racialised minorities are under-represented in legal practice and education; what are the
reasons for underrepresentationand what are the impacts?
Impacts in the way the law is presentedand also in how you experience the law

Racism and the law in Canada (important: content and example of owning real experience
and owning history)
o
o
o
o

Focus on the experience of African Canadians; history very different from mainstream story (that Canada was a
haven for American slaves; that Canada never experienced slavery, segregation; that Canada has no history of
racism)
Canadian story is VERY consistent with modern face that Canada wants to show the world; but Canadas actual
history is inconsistent with Canadas public face to the world
Purpose of the piece is to emphasize that the real story of Canada is very different
Silence/denial of Canadas actual history has the effect of silencing racial minorities and silencing ppl who have
experienced Canada in a much different way; silencing is OPPRESSIVE (i.e., because we say that there is no such
historyhow can ppl talk about it? Easier for Americans to talk about it because their narrative includes it)

Non-inclusion of racialised minorities in the law


o
o
o

Law schools, scholars, law profession


Invisibility as a subject for discussion in Canadian legal discourse (including mainstream feminist legal discourse)
Difficulty for those who have internalised non-racialised world views, perspective to see the world through
different eyes- impossible?

51

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