- 1 Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.),  3 SCR
- 2 Natural Law Theory
- 3 Legal Positivism: Austin and beyond
- 4 Hart’s Separation Thesis: Decision Making in the Penumbra
- 5 Lon Fuller's Morality of Law
- 6 Ronald Dworkin: Law as a System of Rights
- 7 Liberty - Paternalism
- 8 Economic Theory: Law as Efficiency
- 9 Feminist Jurisprudence: Law as Patriarchal Institution
In August 1996, the respondent was five months pregnant with her fourth child. During her pregnancy, she was addicted to sniffing glue, which may cause damage to the nervous system in a developing fetus. As a result of the respondent’s addiction, two of her previous children were born permanently disabled and regarded as permanent wards of the estate. A motion was made by the appellant, and a superior court judge ordered that the respondent be placed in custody of Director of Child and Family Services and remain in health center for treatment until the birth of the child. One ground for the order was as per the parens patriae jurisdiction. The superior court judge acknowledged that they have never exercised parens patriae on behalf of an unborn child, however, the Court did not see any reason why it should not be extended. The order was later stayed and further set aside on appeal. The Court of Appeal held that the existing law of tort and of parens patriae did not support the order and, given the difficulty and complexity entailed in extending the law to permit such an order, the task was more appropriate for the legislature than the courts.
Whether the power of the Court to make orders for the protection of children (through its parens patriae jurisdiction), as it exists or may properly be extended by the Court, permits an order detaining a pregnant woman against her will in order to protect her unborn child from conduct that may harm it?
Parens Patriae Jurisdiction:
Parens patriae jurisdiction refers to the power of the court to act for the protection of a child. At common law, parens patriae is only exercisable after a child is born. However, tort law recognizes that an action brought by or on behalf of a child once born may vest prior to birth, but it does not recognize an unborn child as a legal person.
Canada does not recognize unborn children as legal persons possessing rights, which is a general proposition applicable to all areas of the law. However, once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. Courts will not extend common law where revision is major and ramifications are complex, as it would require major changes, involving moral choices and conflicts between fundamental interests and rights of mothers. Changes in the law of tort that would be required to support the order would exceed the lawmaking powers of the court and should be left to the legislature. A pregnant woman and her unborn child are one, and to make orders protecting fetuses would impinge on the fundamental liberties of the mother, both as to lifestyle choices and as to where she chooses to live and be. This would have the potential to affect a much broader range of liberty interests since the court cannot make decisions for the unborn child without inevitably making decisions for the mother. Nevertheless, this would seriously intrude on the rights of women.
The dissent held the view that the superior court judge was within his jurisdiction under parens patriae to order the respondent to refrain from the consumption of intoxicating substances, and to compel the respondent to live at a place of safety until the birth of child. The parens patriae jurisdiction is to act in the best interest of child, which should include the power to act in the best interest of the fetus. It exists to protect interests of those unable to protect themselves. A fetus suffering from a mother’s abusive behaviour is within that class and deserves protection. The dissent held the view that the born alive rule should be set aside due to medical developments and advancements. The dissent also stated that a woman had the choice to carry the fetus to term, and therefore she should accept responsibility of its well-being. The state has an interest in ensuring a child’s health when he/she is born.
The dissent refers to a test for state intervention, which has a high threshold to meet. In order to protect the fetus, the exercise of parens patriae jurisdiction will necessarily involve an overriding of some rights possessed by the mother. It is said that confinement must be for purposes of treatment not punishment, and to justify a state intervention the following thresholds have to be met:
- the woman must have decided to carry the child to term
- proof must be presented to the civil standard that the abusive activity will cause serious and irreparable harm to the fetus
- the remedy must be the least intrusive option
- the process must be procedurally fair
On the facts of this case, the dissent believed that the test for state intervention was met, and the governmental agency had standing to apply for an order.
Natural Law Theory
Natural Law theory states that Law is derived from a higher, non-human source. That source could be god or “nature,” and therefore has a divine origin. Our laws have been put in their respective positions by god or by nature and they can identify the common good and identify the reasonable steps that need to be taken in order to achieve the common good. Natural Law theory further states that we need the law to force us on the path to the common good. The purpose of a valid law is to get us to take reasonable steps to take us to the common good. Threats, force, and punishment may be needed to keep us on this road. If a law doesn’t set out reasonable steps that will allow us to reach a common good, it is not a valid law and we are under no obligation to follow it. According to this theory, laws flow from morality. Law is seeking absolute values, justice, and truth. Since natural law is morally right, human law that embodies or is consistent with natural law must also aim at “morally right aims.” The problem with this is that in a diverse society people have different ideas about what constitutes morally right aims. For example, religious conservatives may not consider same sex marriage to be consistent with natural law. What is the source of Thomas Aquinas’ natural law? For Aquinas, natural law is not simply a man-made artifact. Man’s nature, as crafted by god, inclines him to the common good. Man’s reason, as crafted by god, allows him to devise laws that will lead us to the common good.
Thomas Aquinas proposed four elements of a valid law:
- It must be directed towards the common good - The common good is the good of community, as opposed to good for a specific individual or even what most individuals want. Some goods are essential to all humans (e.g. self-preservation, procreation, living in society and exercising spiritual and intellectual capacities).
- It must follow practical reason (reasonable steps leading to the common good) - The law directs us to what we must do and the steps we must take to reach the common good. Laws are practical because they direct us to the common good.
- It must be made by a valid lawmaker (e.g. a ruler within the community who holds this position by reason of the natural order)- For Aquinas, the lawmaker does not carry out the will and the wishes of the community. A ruler is selected naturally; some people are naturally meant to rule, and some are naturally meant to be ruled. It is not a form of 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 people being ruled to pursue the goal.
- It must be promulgated.
A condition of justice is that the laws be written and known to the people because people cannot obey unknown laws. Furthermore, laws that are unjust do not need to be followed. Teleology holds that final accounts exist in nature. Law's end or function is the rational pursuit of the common good. Therefore, laws that do not have this function are not in fact law, and do not need to be followed. Thomas Aquinas believed that legal and government officials were in the best position to enact laws that would promote the common good, not because of any democratic principles, but because the "few" legislators possessed the most authority, and were therefore more likely to possess more wisdom. Judges, on the other hand, should apply the law in a manner that is just, and leave the enactment of law to the legislators. Their interpretation of the law doesn’t entail simple adherence to the letter of the law, it also requires adherence to the principle of law. For Aquinas, a “judgment” is a right decision about what is just. Just judgment requires prudence, the inclination of justice, and authority. If a written law contains anything contrary to the natural law it is unjust and should not be applied. Otherwise, judges must apply the written law.
Parens patriae jurisdiction
By applying Thomas Aquinas' four principles of a valid law, it is possible to evaluate the use of the Court's Parens Patriae jurisdiction:
1. For procreation purposes, it would make sense to extend parens patriae to an unborn child. Either way it applies to the common good, as it would protect the best interests of any child, with the health of the unborn child being the first priority. In this case, it would make sense to extend parens patriae because this way we can protect the child earlier from developmental disabilities. This also protects the mother, in the sense that it would stop the mother from sniffing glue (or whatever addiction/problem a mother was struggling with). The law would be directed at a common good because the woman chose to carry the fetus to term and should accept responsibility for its wellbeing, and the state has an interest in ensuring the child’s health.
2. There are no steps, which is a problem. The general principle is broad, as there is no rational reasonable connection of what to do and how to get there.
3. Parens Patriae is not created by a valid lawmaker, as it is simply a common law principle (judge made law)
4. It is common law, therefore, it is not written in a specific code or piece of legislation. Therefore it would probably fail the threshold of promulgation Thomas Aquinas had in mind.
The Majority does not want to extend parens patriae because they believed that individual liberty and autonomy is important. For example, the woman in this case should have rights to do what she wanted to with her body. The woman is the best person to know what is best for her child. Her being able to choose not to be confined or have an abortion would promote stability in the society, and the woman would not feel like a prisoner. However, Thomas Aquinas would be against mental retardation (resulting from mother's actions while pregnant) because it would not be a common good. The majority views moral choices as conflicting between the rights of the mother and the interests of the unborn child. For example, for expectant mothers conflicts may arise with respect to receiving treatment(or not receiving treatment!) because of their fear of state intervention. Mothers may avoid treatment for the sole purpose of avoiding detection. Furthermore, mothers may not seek prenatal care when it is needed, and it would be difficult for the state to enforce the law, as it would be very hard to keep track of every pregnant woman. Partners, parents, friends, and neighbours are among the potential classes of people who might monitor the pregnant woman’s actions to ensure that they remained within the legal parameters. However, this may be proven to be difficult given the personal needs of the mother conflicting with those of the child.
Looking again at the criteria for a valid law according to Thomas Aquinas:
1. Courts may not be in a position to fully appreciate the economic and policy issues with respect to the choice. There are rights and remedies available in other areas of law, once the child is born. This is not a decision for the courts to make, rather it is a change which is required by legislation (created by the legislature, i.e. a valid law maker according to Thomas Aquinas). It is not every evil that is seen as attracting the courts action; rather some evils remain for the legislator to correct. Overall, this may have an immediate and drastic impact on the lives of women as well as men who might find themselves incarcerated and treated against their will for conduct alleged to harm others. The proposed order might impede the goal of healthy infants more that it would promote it. Furthermore, the legislature is in a better position to establish laws relating to this situation because they are not constrained by the facts of this case, and are therefore better able to craft a law that will strive for the common good.
2. In this case there is an argument that there are no legal steps for the Court to follow, and that it should be written in as legislation. Courts should not be able to make broad decisions, as that is not a judicial role. Thomas Aquinas does not want judicial legislating because, as mentioned, the Courts are constrained by the facts of the case, and they may be swayed by their emotions relating to the case. Judicial change is confined to incremental change “based largely on mechanism of extending an existing principle to new circumstances.” Courts will not extent the common law “where the revision is major and its ramifications are complex”. Therefore, the Courts may not be in the best position to assess the deficiencies of the existing law, which may be associated with changes that it may make. Nevertheless, it is vague and broad and may not be adequate by the Court to narrowly confine the duty of care.
3. Not made by a valid law maker. Constitutional democracy is the role of the legislature, as the elected branch of government, which should assume the major responsibility for law reform. It is a system of parliamentary democracy, and it is for parliament to decide which controls should be imposed, and as well as the limitations and conditions.
4. Not written, and if it is to be then it should be written by legislators. It is time-honoured, and evident in common law countries such as England and Australia.
1. The common good supports the extension of parens patriae to unborn children because we have the scientific ability to see what is good for the child, and its well-being. The woman makes the decision to bring the baby to term; therefore, if she feels she cannot take care of the child she can either have an abortion or be confined. The dissent wanted to extend parens patriae to the child, as the child is unable to protect him or herself during the time that it is a fetus. The dissent believed that there should be custody care and control, protection of the child and its health problems, and protection against harmful associations, as the common good in this situation is clearly the birth of healthy babies.
2. The Dissent is trying to limit the scope so that it is not too broad, as the rights of the mother should be infringed as little as possible. It was proposed that the Court should put steps in place to achieve that goal, but there can be no general formula and each case must be decided on its own facts. The court should consider an individual fetus as a human with rights. These are not actually steps, however, if you tried to interpret steps this would be the guideline for them. The threshold is very high and difficult to meet for state intervention. However, as a minimum, to justify state intervention the following thresholds have to be met:
- The woman must have decided to carry the child to term
- Proof must be presented to a civil standard that the abusive activity will cause serious and irreparable harm to the fetus
- The remedy must be the least intrusive option
- The process must be procedurally fair
3. The dissent does not want it constrained to a valid lawmaker. This is against natural law, because they are taking a case-by-case analysis, which should not be made by a law maker, but by the judiciary. It was suggested by the dissent that the common law has proven adaptive enough over centuries to meet exigent circumstances as they arise. It is clear that here we are dealing purely with the common law, and no enactment of parliament prevents a re-evaluation of the premises of this rule. It may be preferable that the legislature should act, but the failure to do so is not an excuse for the judiciary. Therefore, the dissent concluded the judiciary should not follow the same course of inaction, as it is not in the best interest of the fetus.
4. It is not written down; therefore it is hard for other people to follow. Furthermore, the parens patriae jurisdiction of the superior courts is of undefined and indefinable breadth, which does not lend itself to easy understanding by the general population.
Overall, while the dissent's judgment is aimed at (arguably) the common good, according to Natural Law theory as articulated by Thomas Aquinas, the use of parens patriae in this situation would not meet the requirement of being introduced by a valid lawmaker, and it has not bee promulgated. Therefore, the use of parens patriae would not be valid law. This conclusion does not preclude the possibility that the current law (legislation), which does not permit the confinement of a mother for the good of the fetus, has created an emergency situation where non-compliance with he law is necessary to avoid a greater evil, and therefore the Court is not under a duty to follow it. However, objectively this does not appear to be a situation which Thomas Aquinas would have characterized as exceptional enough to mandate non-compliance with the current law.
Legal Positivism: Austin and beyond
“Legal Positivism” is a theory about the nature of law developed over the last 200 years by, among others, John Austin, Jeremy Bentham, HLA Hart, and Joseph Raz. Generally, legal positivists see law as a social fact, which is to be characterized using only empirical and evaluatively neutral terms. Focusing on John Austin, he believed there was three main types of directives governing humans: God’s law, positive morality, and positive law. The main two that will be focused on are positive morality and positive law. Positive Morality is essentially manner, customs, club rules, international law, etc., or more generally social norms that members of society adhere to. Positive Law is considered to be a command, issued by superiors to subordinates, and backed by sanctions. Its important to note that both positive morality and positive law may be immoral, but it is ideal to have moral laws.
Using the theory of Legal Positivism to evaluate Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.),  3 SCR 925 [Winnipeg Child and Family Services] results in an interesting contrast between the majority and dissenting opinions. Looking at the majority first, Legal Positivism can be used to explain the way their decision was crafted. The essence of the majority decision to not allow the respondent to be placed in the custody of the Director of Child and Family Services, and detained in a health centre until the birth of her child, rested upon the fact that in their opinion, there was no law giving them the power to do so. Two different potential avenues of the law were looked at, the common law, and the legislation. Looking at the legislation, the Majority decided that it did not authorize the Court to extend any power over the respondent. The principle reason for that conclusion was that the Law of Canada did not recognize an unborn fetus as a legal person, therefore there is no person on whose behalf the Court could act. Further, the Court declared that this was an issue for the legislature to preside over, and the Court should respect the legislature’s prerogative. From a legal positivist’s perspective, the reason the Court could not extend the state’s power over the defendant was that there was no valid law that gave them the right. According to John Austin, the requirements of a valid law are that it must be a command, which is issued by superiors, and it must be backed by sanctions. Further, it must be created in accordance with the rule of the law making jurisdiction regarding the creation of law. In other words, did it come into being correctly as a law according to the rules of the system? In this instance, the Court was stating that there was no command issued by superiors to subordinates. The legislature had not created legislation to give the state the power to place the respondent in a medical centre, which meant that there was no valid law governing that situation. As a result, the Court should not back the plaintiff’s request with sanctions, because it was not a valid law. This decision also fits with a legal positivist’s perspective because the law and morality are not necessarily the same thing. It is preferable that they coincide, but a law does not have to be moral. In this situation, it appears law and morality (from a certain point of view) do not concur, as protecting the unborn fetus from a potential lifelong disability would appear to have been the morally correct choice. Or at the least it is open to debate, which is in keeping with the critical view of a law a legal positivist would encourage.
The other avenue of law that the majority of the court refused to extend in favour of the appellant was the Parens Patriae jurisdiction of the court. Parens patriae arose out of the Court’s common law power, and at the point in time Winnipeg Child and Family Services took place, had not ever been extended to protect an unborn fetus. The common law is a difficult thing to evaluate through the lens of a legal positivist, because it fits awkwardly into the scheme of what is a valid law. Presuming in this case that the legislature had formally given the judiciary the power to apply common law and that this is a valid law ( a command, issued by superiors, backed by sanctions), the Court does have the power to interpret and apply the common law by using sanctions. In this situation, the majority decided that it would be more than an incremental change to allow the jurisdiction of parens patriae to be used on behalf of an unborn fetus. Again, the decision is open for debate in terms of the morality of not extending the common law power, but the Court made a decision that a legal positivist would view as valid law (on the assumption stated earlier). To summarize the majority’s decision, it fits very nicely with John Austin’s theoritcal view of legal positivism. From his perspective, even if we do not like a law, until it is changed we must still abide by it. The court applied this principle with respect to both the legislation, and the parens patriae jurisdiction, by ruling the law did not allow the state to intervene on the behalf of an unborn fetus, whether it wished to or not.
Looking at the dissent’s ruling in Winnipeg Child and Family Services, the view expressed can be seen as either agreeing or conflicting with a legal positivists point of view. Presuming a valid command from the legislature has given the Courts the ability to exercise the common law on their behalf, the dissent argued that the Court had the power to extend the jurisdiction of parens patriae to protect unborn fetus’. Under John Austin’s theoretical perspective, the ideal law is one that is concurrant with morality. In this situation the dissent is suggesting the Court has the power to make a valid law that is moral in nature by using parens patriae jurisdiction to protect unborn fetus’s. It would be a valid law, as it came from a command, (through the superior, i.e. legislature’s approval) that the Court would be willing to back by sanctions (confinement in a medical centre). The dissent even supplied a test that would help to ensure the valid law the Court would be backing with sanctions was moral, and would even provide a scientific (empirical) method of decision. In keeping with Austin’s perspective, the dissent also pointed out that the state (superior) may issue another statute later that overrules the Court’s decision, as is there prerogative. On the other hand, if Austin’s theory is interpreted a little more literally, his idea that judicial decisions are specific commands, as opposed to generalized rules applying to a class of people, would provide a little more difficulty with the dissent’s proposition. The command the dissent proposed would apply to an entire class of people in the future as a generalized rule, because it gives the state the power to step in when the criteria they proposed has been met. From that perspective the Court’s ruling would not be a valid law, because it would potentially fall outside the power given to the court by the legislature (superior), and therefore not originate from the proper ruling body to form a valid law. However, this is the weaker argument, and its more in keeping with Austin’s theory that the law and morality intersect, which is possible through the Court’s use of the parens patriae doctrine.
HLA Hart’s view of legal positivism describes laws as human artifacts that are not dependent on moral content for their validity, and they may be disobeyed when warranted if the law is immoral. Looking at the majority decision in Winnipeg Child and Family Services, Hart’s perspective would fit with the decision on the basis that law does not have to be moral. Again, it is debatable what the most moral outcome is in the situation, but Hart allows for that divergence between law and morality. The Court was applying a recognized set of criteria, which they believed they ought to apply, helping them to arrive at the decision that they did not have the power to step in on the unborn fetus’s behalf. By following the “criteria” which they believed they were obliged to, the majority demonstrated Hart’s rule of recognition. After applying the law, it is then uncertain whether the law merits being followed based on its morality/immorality.
Looking at the dissent, the proposition clashes a little with Hart’s rule of recognition, because the dissent suggests progressing away from the established boundaries the Court had previously felt bound by, and extending the parens patriae jurisdiction to cover the unborn fetus. The reason being that medical technology has progressed to such a degree it is time to shift the application of the common law in this area. That postulation parallels Hart’s theory in another way though by suggesting the Court “disobey” the law (because there is no law giving the state the power requested) on moral grounds. That conclusion flows from the dissent’s opinion that it is immoral to not intervene in the case of an unborn fetus who will likely be born with a permanent disability if the state does not intervene.
Acording to Joseph Raz, a claim of authority is justified if the authority actually performs a service for its subjects, helping them really act better than they would without the benefit of the authorities intervention. In this scenario, the dissent’s opinion fits best with this theory. The dissent suggests that the state has an obligation to step in on the unborn fetus’ behalf. Further, it is in the state’s best interest to intervene because of the cost to the state if the child is subsequently born with a permanent disability, and the intervention may enable the respondent to break their addiction. Therefore, the claim of authority would be justified, because the intervention would benefit them personally, and it would help to decrease the costs to the rest of society. The majority decision would not fit as well with the theory of a justified claim of authority, unless it could be argued that a lack of state intervention in that scenario would help them act better. If that was so, then the claim of authority by the state that no intervention should occur could be a justified claim.
Hart’s Separation Thesis: Decision Making in the Penumbra
Law and morality are completely separate systems in Hart's separation thesis. For the majority, law and morality are connected and seen as affecting one another. The majority does not want to extend the law to affect women’s rights. They believe that an extension of the law would have severe implications on the decisions that a woman makes with her day-to-day life choices, freedom and liberty. Conversely, like natural law, they consider extending the court's common law power under parens patriae for the common good. While they say, "courts have the power to step into the shoes of the parent and make orders in the best interests of the child," doing so in this case would "require major changes, involving moral choices and conflicts between fundamental interests and rights." The majority decision does not follow the separation thesis, and would consider law as teleologically (underlying purpose) moral. Hart would state that law is separate but morality can affect whether people follow laws. For example, if a law is too evil(immoral) to be obeyed. The majority on the other hand, use morality to dictate the creation or evolution of laws. Morality is underlying or being used to dictate law; whereas in the separation thesis morality and law may run parallel.
Rule Govern Practice
Similar but beyond positivism, legal rules must have some sort of characteristic or quality above and beyond just being made properly. Unlike Austin's positivism, under the separation theory, laws can be rules granting rights, duties, facilitative rules (trusts, eg), in addition to “commands.” What makes legal rules different from rules of games or etiquette are that they rule governed practices. These legal rules are not individually chosen; but are backed up by the legal system(special social system) and are rooted in the rule of recognition. The rule of recognition states that the majority of people in that society and players in the legal system internally recognize they are bound to enforce and follow these laws. To be stable and effective, the rules must be obeyed (at least by most) as authoritative for reasons other than punishment. Lon Fuller would say these rules are followed because of a moral obligation or because they coincide with people's morals. However, Hart believes people don't follow laws because they match their morality but rather because: the law works, it's beneficial for them short term and/or long term, overall it is a good system, good for society, habit, used to it, easier to follow than not or simply because everybody else does. The judges as players in the legal system, obey past laws in not extending parens patriae partly because of habit. The majority state, "as a general rule, judicial change is confined to incremental change "based largely on the mechanism of extending an existing principle to new circumstances”; courts will not extend the common law “where the revision is major and its ramifications complex.” They also cite precedent to state unborn children are not living people with legal rights until they are born, implying they believe in the system and internally recognize they are bound to enforce and follow these laws. This is considered a "time-honoured" rule. The majority also do not believe extending the law would work and that mothers (other legal players) would not follow it. "Expectant mothers fearing state intervention might avoid detection by not seeking desirable prenatal care." "The difficulty of enforcement and incompleteness of the remedy presented obstacles." Moreover, "it may produce considerable uncertainty and affect many peoples’ lives adversely, without any assurance of reducing the problem of damage to unborn children from substance abuse."
Penumbra and What Judges Do?
Legal rules (legislation and common law rule) are expressed in general terms, so as to apply generally to general categories; there will be a “settled core of meaning (will apply to the same way in most cases)" but factual situations presented in cases may fall outside of that settled meaning. Legislation and common law must be expressed in general terms, terms that apply to everyone or a group, not an individual. In this case, the relevant legal rules are common law tort and the parens patriae doctrine. The relevant tort law and parens patraie functions are expressed in general terms regarding a specific group. In tort law via past cases, it is shown that children once born have legal rights; this is the settled core of meaning. "A child could not in the very nature of things acquire rights correlative to a duty until it became by birth a living person, and as it was not until then that it could sustain injuries as a living person." As well, parens patriae gives the courts wardship jurisdiction over born children. However, the factual situation of this case forces the court to consider whether both tort and parens patriae should also include unborn children. In the penumbra (a “partial shadow, as in an eclipse, between regions of complete shadow and complete illumination, haze of ambiguity") is where judges can act, apply and interpret. In the penumbra, a hard case like Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) the judge decides whether the particular case falls within “settled core of meaning.” Hart would accept that some factual situations are going to fall outside of that “settled core of meaning” and there will be divergence of what the meaning is and what the appropriate course of action should be. In this gap, in the penumbra, judges should apply the terms of rule-governed practice. Judges draw on and apply these “terms” when exercising discretion in the penumbra/hard cases, these terms are a consistent set of principles underlying decisions in the penumbra (not mere and inconsistent discretion; not personal morality). Terms of rule governed practices include: principles of fundamental justice, principles that run through the entire body of law. Rules such as personal autonomy and liberty, are discussed as reasons to not extend the common law, mothers will be unable to control their own bodies and make autonomous choices. Specifically, fundamental liberties of the pregnant woman, both as to lifestyle choices and how and as to where she chooses to live and be. As well, principles of fundamental justice may include women’s fundamental human rights, the right to bodily integrity, and the right to equality, privacy, and dignity. Moreover, extending the law will affect the most sacred sphere of personal liberty, the right of every person to live and move in freedom. Regarding terms of the rule governed practice, the court considers principles of fundamental justice in regards to the child and the mother. Lamont J. appealed to fundamental fairness: To my mind it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother.
The dissent wants to extend the common law for moral reasons resulting in an overlap with the law. They are focused on a common good which is in the best interest of the mother and the child. It is teleological because it has a moral purpose which goes against the separation theory. While the common law parens patriae has a settled core meaning, the dissent in the penumbra hard case is trying to go outside or extend the settled core meaning. In applying the terms of the rule governed practice, freedom of choice is still discussed regarding a woman still having the choice to have an abortion or go through with the full term of the pregnancy. However, they feel the court can be responsible for a child once born when the mother decides to bring child to full term. [A] state’s compelling interest in potential life outweighs a mother’s privacy right to conduct her life as she chooses when state intervention is hardly intrusive. The players in the legal system (judges in the dissent) do not wish to obey past laws out of habit. Alternatively, they believe extending/changing the law, (basically making new law) would be good for society. They also follow Lon Fuller and believe laws should be obeyed for moral reasons. Precedent that states that a fetus is not a “person” should not be followed without an inquiry into the purpose of such a rule. "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." "It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Morality is reason for their decision, as they wish to better society as a whole and feel morally obligated to protect children. If our society is to protect the health and well-being of children, there must exist jurisdiction to order a pre-birth remedy preventing a mother from causing serious harm to her foetus. Unlike Hart's separation theory, the parens patriae rule if extended would not be expressed in general rules. Similarly to the dissent's divergence from Natural Law Theory due to the invalidity of law not made by a valid lawmaker, the dissent would also not follow the separation theory, as extending the parens patriae would apply to particular individuals in a case by case basis.
Lon Fuller's Morality of Law
The majority follow Fuller's theories in numerous ways. They are interpreting the common law doctrine of parens patriae in determining whether its purpose would be fulfilled by extending it to include unborn children. They say it would not produce good order to extend parens patriae, this is partly done by looking at the purpose of the wider law and the legal system. The majority are attempting to balance moral choices and difficult conflicts between the rights of the mother and the interests of the unborn child. They do not believe they can determine what the shared consensus of morality is in this case. Regarding good order, extending the law would restrain families as the woman would have to be constantly monitored by others. This would create complications with the way a woman chooses to live her life. "They would have an immediate and drastic impact on the lives of women as well as men who might find themselves incarcerated and treated against their will for conduct alleged to harm others." It would be hard to choose which activities would be acceptable for a mother. The majority believes it would be better both for the mother and children if they are allowed to make their own decisions about their own bodies. In fact, they state extending the common law may impede the underlying purpose of parens patriae, which is the healthy children in society. The majority also talk about how difficult it would be to explain the scope of parens patriae if they were to extend it because it is common law. They argue, extending parens patriae would not coincide with Fuller's requirements of law having inner morality. Extending parens patriae would not meet any of the requirements of law's inner morality including : coherence, rationality, consistency - incrementally consistent, and requirement that law be known and capable of explanation. If we permit lifestyle actions, where do we draw the line, it will be vague and broad and may not be adequate by themselves to narrowly confine the duty of care. Partners, parents, friends, and neighbours are among the potential classes of people who might monitor the pregnant woman’s actions to ensure that they remained within the legal parameters. "There would be a difficulty in determining what conduct is and is not permissible." It might be expected to give rise to conflicts between the interested persons and the pregnant woman or even between the interested persons themselves. This raises the possibility of conflict which may exacerbate the pregnant woman’s condition (and thus the fetus’) rather than improve it. Taken together, "the changes to the law of tort that would be required to support the order for detention at issue are of such magnitude, consequence, and policy difficulty that they exceed the proper incremental law-making powers of the courts." In short, based on Lon Fuller's separation thesis, extending parens patriae would not meet the external or internal morality requirements nor would it be consistent with it's purpose.
The dissent take a very different approach. In interpreting the common law doctrine of parens patriae, the dissent feel they have weighed the conflicting moral issues and have determined the shared consensus of morality in society. They feel, "they cannot affect the well-being of the unborn child state by standing idly by while a reckless and/or addicted mother inflicts serious and permanent harm on to a child she had decided to bring into the world." They also state, "it is a fundamental precept of our society and justice system that society can restrict an individual’s right to autonomy where the exercise of that right causes harm to others." "If our society is to protect the health and well-being of children, there must exist jurisdiction to order a pre-birth remedy preventing a mother from causing serious harm to her foetus." Regarding the purpose of parens patriae, the court held the inherent jurisdiction over children extended “as far as is necessary for protection and education.” They argue that the purpose of parens patriae is protection, which is broad in that it can include custody, care and control, protection of property, health problems, religious upbringing, and protection against harmful associations. Regarding the requirements of inner morality of the law, the dissent lay out a framework to determine when a mother's liberty should be infringing for the good of society. There can be no general formula and each case must be decided on its own facts. However, as a minimum to justify intervention the following thresholds have to be met:
- The woman must have decided to carry the child to term.
- Proof must be presented to a civil standard that the abusive activity will cause serious and irreparable harm to the foetus.
- The remedy must be the least intrusive option.
- The process must be procedurally fair.
However, two requirements of inner morality are not met. Consistency via incremental change and the requirement that the law be known are not addressed by the dissent. The extension of the parens patriae to unborn children is much more than incremental change. While their framework applied on a case by case basis would not be known to people affected by the law. They state that their framework is not exhaustive, and that the parens patriae jurisdiction of the superior courts is of undefined and indefinable breadth. Such broad jurisdiction potentially allows for the arbitrary whims of the judges which would be counter to Fuller's theory of law. That conclusion agrees with the Natural Law theory that the legislature is best suited to make laws, not the judiciary, as they are constrained, and possibly influenced by the facts of the individual cases.
Ronald Dworkin: Law as a System of Rights
Dworkin’s theories strongly reject legal positivism’s propositions that law is strictly a set of rules and absent these rules judges exercise discretion. He also opposes the idea that legal rights and obligations are born strictly out of legal rules and have no existence apart from those rules.
Dworkin argues that law is a compilation of rules, principles and policies. He believes that “law” is not empirically provable and cannot be defined by a set of rules. Principles are legally binding fundamental ideas of justice and fairness that support certain rights and duties. In the absence of a rule, judges will draw on principles of justice and fairness to discover rights and duties. Policies are a representation of the social goals pursued on behalf of a segment of people. Policy decisions are best left to the legislators. Policies are made by the legislators in consideration of principles. Policy communicates the goals of a specific or overall community and principles communicate rights. Rights are individualized while goals are collective. Judges are mainly concerned with the application of principles to rules and Dworkin argues that they serve the protection of rights better than legislators.
Although rules of the law and principles are separate entities that evolve over time, they are interconnected and influence each other. This can be analogized by the following:
Imagine you have an underground river of “principles”. Surrounding the river is “policy” sediment that leaks into the stream. Above ground are the “rules”. When the courts are faced with a hard case they draw up the “principles” river to interpret the rules. Once the case is decided, the “principles” river flows back underground informing the river of the decisions made by the case and thereby influencing the existing principles. Basically, when judges make new rules in a hard case they are informed by society’s principles that can be applied to that situation at that point in time. The principles that are relevant can be assessed by the current rules in place, how courts discuss the principles when creating new rules, and examining how the system of rules have been evolving. Principles that hold more weight at the time a rule is being made will be most influential in the judicial decision. Dworkin stands by the idea that if all the principles that apply to the situation are properly applied will result in the one and only “right” decision. If the decision made is not the right one then the judge has failed at applying the principles correctly. Future decisions on a particular situation may arrive at a different outcome than if it were made in the past due to the different weights of the applicable principles. Rules can be altered when they no longer reflect the principles that are prominent in society at the time.
Dworkin’s theory visualizes principles as concepts of fundamental justice. Over time these principles carry different weights in different circumstances. These are not parallel with Hart’s envision of “super rules”. Hart’s “super rules” are idle and influence how rules are created the same way every time.
Application to Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)
A criticism of Dworkin’s theory is that it assumes that if the right principles are applied, the right decision will be made. This fails to envision the possibility of conflicting principles, as is seen in Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.). The courts grapple with the competing principles of individual rights and autonomy with the principle of parens patriae and the protection of those who cannot protect themselves. It would seem unlikely that there would be a way to reconcile the outcome such that both principles are adhered to in the creation of a rule for this situation.
Dworkin asserts that different weights are applied to different principles and the more weighty principle will lead to the correct outcome. The principle of individual rights is embedded in the law through both statute and common law. The issue here is what happens when individual rights conflict? As it stands, the majority found that the self-autonomy of a mother holds more weight than the rights of an unborn fetus. This is because the current law does not recognize an unborn child as a legal person. Dworkin would question whether this current rule is relevant to the principles relevant today. The court does recognize, however, that there is a resounding issue in not addressing the unborn child’s rights at all. The court is not overlooking the principle protecting unborn fetuses but suggests that the legislators should make laws that balance out these principles.
In dissent, the judge argued that the weight of parens patriae was heavier than the autonomy of a mother experiencing addiction. They state that this principle doesn’t completely override the rights of self-autonomy in a mother. Rather, by placing a responsibility on the mother to ensure the well being of a child that she has decided to carry to term, it is no different than the principle that parents owe a duty of care to born children. Dworkin would argue that this was the more appropriate application as it properly weighs the principles in a way that they can both be represented in the law.
Liberty - Paternalism
For the majority, liberty is a paramount concern. While John Stuart Mill does not refer to morality, unlike the majority judgment, the underlying questions are the same. The questions both the majority and dissent consider are when (and why) the law should interfere with private choices. While the Mill's harm principle allows for restrictions on liberty to prevent serious harm to others, the majority does not believe extending parens patriae would actually prevent harm. Moreover, like John Stuart Mill, they take individual liberty of adults to be extremely important. In their view, extending the common law would disproportionately restrict liberty. Currently, the parens patriae doctrine can only potentially restrict the liberty and autonomy interests of a parent regarding the decisions they make regarding their child. By contrast, extension of the parens patriae jurisdiction of the court to unborn children has the potential to affect a much broader range of liberty interests. As stated by the majority, "the difficulties multiply when the lifestyle in question is that of a pregnant woman whose liberty is intimately and inescapably bound to her unborn child." "Mothers may be sued by their children for various activities or lifestyle choices, such as smoking, drinking and the taking or refusal of medication, during pregnancy that injure the child, with the result that mothers will be unable to control their own bodies and make autonomous choices." Moreover, "to make orders protecting fetuses would radically impinge on the fundamental liberties of the pregnant woman, both as to lifestyle choices and how and as to where she chooses to live and be." In many ways the majority fear Mill's Taloned creature. For them, extending the common law would be too vague, leaving too much room for interpretation and ultimately too much power for the courts. This vast degree of interpretation may have negative effects on a women's freedom and liberty, particular in minority groups thus creating "tyranny of the majority". "The pregnant women most likely to be affected by such a “knowledge” requirement would be those in lower socio-economic groups." "Minority women, illiterate women, and women of limited education will be the most likely to fall afoul of the law and the new duty it imposes and to suffer the consequences of injunctive relief and potential damage awards." Ultimately, they wish for the elected legislation to determine which restrictions if any are necessary to prevent harm to unborn children. However, they still want to protect women's liberty and refer to the charter to create a zone the Taloned creature can't pierce. "It is open to Parliament and the legislature to enact new grounds for involuntary confinement, subject to compliance with the Canadian Charter of Rights and Freedoms." Gerald Dworkin's paternalism would likely not fit into the majority's characterization of the issues. Since liberty and independence are essential to humanity, paternalism (laws constraining liberty) are only justified where we produce irreversible and destructive changes. For the majority, it is not clear that an addicted pregnant women requires paternalistic laws to counter her free choices.
The dissent take the opposite view, and though they realize there will be a potential restriction on women's liberty, they are justified. "The court should be able to exercise its parens patriae jurisdiction to restrain a mother’s conduct when there is a reasonable probability of that conduct causing serious and irreparable harm to the foetus within her." Following the harm principle, the court state,"while the granting of this type of remedy may interfere with the mother’s liberty interests, in my view, those interests must bend when faced with a situation where devastating harm and a life of suffering can so easily be prevented". Regarding liberty, the court states it is the woman's choice to not get an abortion and to bring the child into the world. However, past a certain point, the state cannot, stand idly by while a "reckless and/or addicted mother inflicts serious and permanent harm on to a child." The dissent use the parens patriae doctrine (ex. wardship) to justify intrusions on a women's liberty. Mill's view of paternalism is a restriction of individual liberty justified to protect that person from harm caused by the exercise of liberty. The dissent however, do not specifically refer to restricting the liberty of a women to protect that particular woman. Arguably, under John Stuart Mill's idea of the world, addicted mothers are not persons in possession of mature faculties. Mill defines mature faculties as the capacity of being guided to their own improvement by conviction or persuasion. A women that is addicted to sniffing glue and has two children who as a result of her addiction were born permanently disabled is not likely to be guided to her own improvement. As well, the dissent considers unborn fetuses children and children do not have mature faculties. Thus Mill's theory of liberty would permit extending the parens patriae doctrine and restricting that liberty since "despotism is a legitimate mode of government in dealing with barbarians." This would further Mill's views that if we are trying to “manage” persons, we have to do so at an early age where they are receptive. Stopping children from having birth defects due to the mother's addiction would prevent them from having other health issues in the future, potentially stop them from having their own addictions. Gerald Dworkin's concept of paternalism would follow directly from Mill's. This situation could be identified as circumstances in which interference with individual liberty will be justified, where the purpose of interference is prevention of harm to that person (as opposed to others) although incidentally there may also be a prevention of harm to third parties. The dissent states that it is never in her interest to have a child with birth defects. Also, a pregnant women addicted to sniffing glue is making decisions under extreme psychological pressure; where risks are not adequately understood, thus not freely chosen by an autonomous self. Forcing her to into rehabilitation and/or treatment facilities and protecting her child arguably prevent long term or irreversible damage to her autonomy. If anything, if she is rehabilitated, her autonomy is restored. The dissent take this view, they believe there should be proportionality between deprivation and restraint in each case. To protect a woman's freedom/liberty, a remedy of confinement should be the final option. "Before a court takes the severe step of ordering confinement, a condition precedent should be that it is certain on a balance of probabilities that no other solution is workable or effective." "The least rights-diminishing option should always be sought."
Economic Theory: Law as Efficiency
Economists are not concerned with where law comes from. The central claim of law and economics is that law serves the goal of economic efficiency: law is best seen as a tool for wealth-maximization in society. Richard A. Posner is an American judge and jurisprudent who has been the principal advocate of the economic analysis of law. Efficiency means wealth maximization. The wealth maximization principle requires that social wealth be maximized. Wealth includes not only monetary gains but all satisfactions that can be measured. An efficient allocation of resources puts each resource in the control of the person who values it most. Efficient legal rules that serve to bring about efficient allocations of resources. For example: Suppose there are two people, A and B. A has a stamp collection he would be willing to sell for $90. B is willing to pay $100. If A sells to B for $100, social wealth is increased by $10. Before the transaction, total social wealth was $190 (A’s stamp collection worth $90 and B’s $100 in cash), and afterwards it is $200 (B’s collection worth $100 and A’s $100). There is more than one standard of efficiency used by economists. Pareto –superiority: orders states of affairs according to whether one state makes some people better or worse off compared with another state, or according to which state is preferred to the other. One state S1 is Pareto-superior to another S if and only if at least one person is better off in S1 than in S and no one is worse off in S1 than in S. A Pareto-optimal state is one for which there is no state that is Pareto-superior to it. If a Pareto-superior state has been reach, then there are no further moves we could make that would benefit anyone except at the expense of other; if we have reached an optimal state, we cannot make some people better off without making others worse off. Every Pareto-superior transaction increases net utility for the parties to the transaction. There is at least one winner and there are no losers in Pareto-superior changes. Kaldor Hicks Test: A state of affairs S1 is Kaldor Hicks efficient to S if and only if, in going from S to S1, the winners could compensate the losers so that no one would be worse off than they were in S and at least one person would be better off than he or she was in S. Economists give pride to voluntary transactions. Voluntary transactions are Pareto-superior transactions. If two people make a voluntary transaction, say a trade, we can be sure that the resulting distribution is a Pareto-improvement (otherwise, as rational agents, they would not make it). Transaction costs are all costs involved in making market deals. They include the costs of finding out about potential trading partners and the costs of bargaining. Coase Theorem: When transactions are costless and individuals act co-operatively, any initially assignment of rights would be efficient. Individuals will bargain privately so as to internalize externalities in a way that achieves optimality. When the conditions of the Coase Theorem are met, the law need not assign property rights in any particular way. Economists assume that people are rational agents; a rational person is a maximizer of personal satisfactions. What legislators do almost never satisfies the Pareto principles. Almost any government action taken through law will make some people better off only at the expense of other people (an exception may be criminal law). Legislators are rational maximizers of their self-interest. Their goal is to be elected and re-elected. Their strategy is to make deals with organized interest groups. The legislator offers the interest group legislation favourable to its interest (e.g. subsidies) in exchange for votes. The interest group will receive some benefit paid for by the unorganized general population through taxation. Judges, by contrast, have had considerable scope for pursuing efficiency through the development of the common law. Cases decided inefficiently are more likely to be appealed, so there is motivation for the Judges to decide them in an efficient context. Problem for market externalities: x sells widgets to y; there is a benefit to x and y from the transaction, but the widget production produces pollution which fall’s on x’s neighbours A and B. the cost of this externality falls on a and b; not x and y. Regulation internalises externalities (e.g. pollution) and thereby allows the market to reflect real costs. E.g.: widget costs $1 to produce, sold at $1.20. Unit of pollution caused by production generates a 10 cent cost to the community. If the community bears the 10 cent 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. If cost of pollution is included in the sale price of the widgets (e.g. sold at $1.30), then less widgets will be sold, causing less pollution. By internalizing externalities, regulation prevents market distortion. Tort law makes people internalize cost and deters people from causing harm. Tort law has the effect inclining people in the position of D to be careful (deterrence principle), preventing future losses, setting an efficient level of risk for activities. If people who do not take reasonable steps to avoid harm to others do not have to pay for creation of risk, and it causes harm to another, the creation of risk is discounted and leads to an inefficient outcome (benefit to D in not having to be careful). How contract law promotes efficiency: It creates a 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). Rules encourage use of formal/written contracts, relatively detailed terms providing for contingencies. Coase theorem: Where transaction costs are low and where neither party engages in strategic distorting behaviour, individuals will behave as if they have property rights anyways, and we will come to the same outcome. We don’t 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. Criminal law: society paying for the protection of interests identified as high value, or criminal matters, and decreasing crime means spending less on the system.
The majority decision in Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) reflects Canada’s decision not to recognize unborn children as legal persons possessing rights, which is a general proposition applicable to all areas of law. The majority believes that once a child is born alive and viable the law may recognize that its existence began before birth for certain purposes. However, the majority emphasizes the social policy reasons against recognizing a fetus as a person with identifiable rights. The court will not extend the common law where the revision is major and the ramification is complex, and believes that this change is best left for the legislature. This relates to the law and economics theory as the cost of recognizing children as born alive and viable would have significant social costs to the mother in terms of her autonomy and freedom. The burden on a woman's health would be significantly affected, as changes would involve moral choices, which create conflicts between the interests of mothers over that of their children. The social costs and complexities in this area of law would prove to be very costly if recognized in society.
Approaching this case with the law and economics theory would impinge on the fundamental liberties on the mother, which would be a significant cost to the mother. The fact that mothers would be restrained from making choices based on free will would significantly impact society as a whole. The cost of a mother’s freedom would need to be weighed against that of the fetus. The cost of disregarding mother’s rights may significantly impact society in the way in which women conduct themselves. The cost of providing services which constantly monitor a mothers actions until a fetus reaches full term would require significant resources which would inevitably create a burden on society with respect to taxes. However, looking at this issue compared to that of an unborn fetus demonstrates a win-lose situation in economic theory. In order to make this theory work, we would need to ensure that the fetus is given something in order to make sure that there are no losers. This is possible as although a fetus is not considered a live and viable person until it is born, the fetus can bring forward an action once it is alive. Giving mothers a choice to decide whether or not to bring the child to term would be a choice they could make. In the event that she choses to carry the child, economically it would make sense to allow her to receive help when and if she needs it. Simply creating a system that detects woman would be highly evasive to women and very costly. In the future this would prove to go against economic theory, as while the woman is confined she would not be able to make transactions in society which would be economically viable.
The dissent holds the view that the superior court was within its jurisdiction under parens patriae to order the respondent to refrain from consumption of intoxicating substances. The dissent held the view that it was socially acceptable to compel the respondent to live in a safe place until the birth of the child. When applying the law and economics theory to the dissent’s view, it is important to note that the cost of bringing a child to term who will have permanent disabilities would prove to be very costly. As a result of the respondent’s actions, as well as other women that put their children in danger during the pregnancy, it is clear that society bears the cost. Once children become permanent wards of the state, it is inevitable that the cost of bringing up these children would highly affect society as a whole. The fact that these children are brought to term and are born disabled creates significant financial burdens on the country. It is clear that when a child becomes a permanent ward of the estate, the mother no longer bears the cost for these children. Typically, the mother wins as she is given the choice to have the child or not, whereas the state loses. The mother is forced to give her child to social services and the burden shifts to tax payers. This is not economically sound as it creates a situation where society is not economically efficient. If society was to act in the best interest of the fetus, it should educate women with respect to their choice to carry a child to full term. The cost of educating women may create an atmosphere where women can be assisted in the decision-making. This would ensure that women are well informed and that the state would be more insured regarding the child’s heath. Simply implementing a device such as this would be costly, however, it would be more efficient economically than allowing more physically disabled children to be born. This would give society a chance to help women whatever their choice may be.
The dissent refers to a test for state intervention, which sets a high threshold to be met. In order to protect the fetus, the exercise of parens patriae jurisdiction will necessarily involve an overriding of some rights possessed by the mother. This test would be helpful, as it would help ensure that women who do decide to carry their children to term are helped. This would reflect the majority’s opinion, which believes that state intervention is required. Overriding some rights possessed by the mother would be economically efficient because it would not burden society with higher costs in the future. State intervention would ensure that both women and fetus’ are detected early and that the chances of having healthy born children is a probability rather than a possibility. As a woman meets the test for state intervention, it would be economically efficient, as the short-term cost would outweigh those that would be created in the long term for a disabled child.
Feminist Jurisprudence: Law as Patriarchal Institution
The main concern of feminists is the historical and contemporary disadvantages of women in society. Similarly to legal realism, feminist theories do not form a single school of thought but a cluster of related views. These views focus on the concrete, and reject abstract theory. They challenge central tenants of law and traditional legal values such as the neutrality of law, the ideal of the rule of law, the current model of judicial reasoning, the separation of law from politics, and the separation of law from morality. In law, women are thought to be traditionally silenced subjects. As such, feminists evaluate the law by focusing on the areas that have a strong impact on women.
While feminist theories are diverse, there exists a common core. That core is the objective of promoting the interests and equality of all women. This is recognized by the understanding that the world as we know it is structured by patriarchy (the systematic domination of woman by men). All feminist legal scholars agree that patriarchy is a fundamental legal force in the world. The view is that even though patriarchy presents itself as “natural”, it nothing more than a social construct. Men have traditionally been dominant actors and have structured the social world in a way that will maintain them in this position of power. As a result, patriarchy and the systems that flow from it are detrimental to women. Feminist perspective looks to understand how law is influenced and maintained by patriarchy so that it can be changed for the betterment of women and everyone generally.
Catherine MacKinnon is a key scholar who commentates extensively on law as an expression of male power. According to her, “law is the site and cloak of force” where law legitimates the use of force in a liberal society. Under this “cloak”, these forces are protected from society realizing these oppressive practices. Law hides male domination by adopting the “male point of view” and making it appear natural. MacKinnon suggests that the law should stop and prevent the perpetuation of male dominance in society. This can be achieved in two steps; the first step is by claiming women’s concrete reality as a social and political institution. The second step is to recognize male power of women as embodied as individual rights in law.
MacKinnon argues against liberal feminism and socialist feminism, stating that they are not true theories of feminism. She advocates for “a one true feminism”. Instead of desiring to categorize and structure what it means to be a woman, MacKinnon diverges from the feminist school of thought and directs her focus on the various perspectives that are unique to an individual.
Application to Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.)
This theory of feminism embodies the classic core idea that subordination of women causes “blocks” to success in pubic spheres. Aside from the “blocks”, there is nothing fundamentally wrong with the legal structure at its core. Therefore, with the removal of these “blocks” comes equality. Liberal feminists strive for “gender blind law” where there is no special treatment, no blocks, and no privileges, and have come to recognize that many of these “blocks” have been removed. The ultimate goal of liberal feminists is to achieve laws that are “gender blind”.
Modern day liberal feminists take a more realistic stand by recognizing that the removal of gender blocks won’t translate into equal access. Despite the removal of these “blocks” there still remains the social issue of informal discrimination. Modern liberal feminists strive for motherhood and other responsibilities to be acknowledged and provided for beyond formal equality to achieve meaningful access to equality.
In the case of Winnipeg Child v GDF, the issue of balancing the rights of a mother against a fetus is considered. A liberal feminist would see the majority’s argument stressing the importance of a mother’s autonomy as a removal of a “block” preventing equality of women in the public sphere. The dissenting argument in support of the male constructed doctrine of parens patriae, would be seen as adding a “block” and thereby perpetuating male dominance over women. A modern feminist would not be easily convinced that the removal of this block alone would achieve equality, due to the existence of informal blocks. Not only do social norms preventing equality still exist, but parens patriae still applies once a child is born. Male dominance is still perpetuated by these laws.
Radical feminists oppose liberal feminists ideals of correcting the patriarchal system. Their beliefs lie in the complete reconstruction of the system. The main focus is on the social construction of gender and these theorists claim that gender is a performance. MacKinnon’s views stated above are a concept of radical feminism. The ultimate question that radical feminists ask is whether a practice participates in the subordination of woman?
MacKinnon would conclude that the courts ruled based on her gender performance by questioning a mother’s ability to care for her unborn child. This gender role is traditional with what MacKinnon would refer to as “female drag”. Questioning her capability to care for the unborn child is, in reality, questioning her capability to maintain this performance. The issue of a woman’s right to self-autonomy also arises at court. Both the majority and the dissent acknowledge that women are entitled to self-autonomy in which MacKinnon would concur. The dissent however, claims that this autonomy is limited when it comes to the well being of an unborn child. MacKinnon would argue that this practice, if it were to be implemented, would subordinate woman. The majority perhaps, may have recognized this subordination and attempted to alleviate it through their decision. The huge difference between the idea of radical feminism and many of the other legal theories such as Natural Law, and Law as a system of rights (Dworkin), is that in this case women are clearly the primary interest. While from other legal perspectives there is a balancing of interests and principles, for radical feminists, the right of a mother to her personal autonomy over her body would be the dominant principle/interest; there would be no balancing.
This theory combines Marxist and Feminist principles. These theorists are critical of our capitalist society. Women are oppressed in this system as they are not even part of it. Childbearing, rearing, and home-based work have no value in the “private” sphere and therefore are seen as economically useless. Women’s sole contribution to this system in society is providing labour through means of reproduction.
The outcome at trial may suggest that women’s roles in the capitalist system are irrelevant in today’s society. The majority decision upheld a woman’s right over her body, which is contrary to the traditional role for woman to maintain a capable proletariat population. The dissent’s decision is more cohesive with the traditional role of women in a capitalist society. This decision outweighs a mother’s right to autonomy with the need to ensure they are contributing children who are adequate for the labour force.
Post-Modernist Feminism (French Feminism)
The main focus of this theory is to respect to the experience of individual woman, which are formed though exposure of patriarchy. Post-modernist feminists posit that women differ from the “reasonable person” and this needs to be a major consideration in law. They suggest that these differences should be something to embrace and celebrate rather than something to overcome. These theorists are strong believers that the solution to female oppression needs to be multi-dimensional and must respond to actual lives of actual women (opposed to an abstract category).
The court (majority) recognizes that the defendant has rights over her body while with child. Third parties should not have a right to implement governmental intervention through parens patriae. The dissent takes on a more individualistic approach and would like to assess the mother’s capability of caring for an unborn child on a case-by-case basis. This follows the post-modernist theorist’s preferred approach of examining the unique circumstances and qualities of woman individually.
This theory is based on the social regimes of woman and how it produces moral perspectives and understanding that differs from men. There is value in maintaining and nurturing relationships for women and the public-sphere must change to implement those ethics of care. These theorists focus on women’s differences and are opposed to evaluating women based on male standards.
The outcome of this case would please relational feminists. The courts adhere to ideals where women’s autonomy over their bodies overcomes the traditional patriarchal system. These theorists may suggest that the courts are acknowledging and moving away from a society in which men’s role is to control and make decisions for women in the law.