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| − | [http://kumu.tru.ca/Course:Law3020/2014WT1/Group_V/Separation_Thesis Separation Theory]
| + | ==Separation Thesis and the Morality of law== |
| − | [[File:Http://upload.wikimedia.org/wikipedia/commons/7/71/Wikipedia scale of justice 1.png|thumbnail]]
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| − | ===H.L.A. Hart's Separation Thesis=== | |
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| − | The Separation Thesis by theorist H. L. A. Hart is a foundational concept of Legal Positivism. This thesis, in its most basic meaning, predicates that Law and Morality are distinct from one another; hence the notion of “separation” underlying the view. Although the theory points to this separation between Law and Morality, Hart confers that they do run parallel to one another. Hart simply puts it 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” (H.L.A. Hart, The Concept of Law [Oxford 1961, 2nd ed 1994] at p. 185, 186). In other words, it has often been the case that Morality and Law have tended towards similar ends, despite their conceptually different obligations.
| + | == Dworkin and System Of Rights and Principles == |
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| − | The difference therein lies in that the Law only compels a person to follow it on an “ought to do” basis. This is not a duty with a greater purposeful end amounting to “goodness”, or “rightness”, as would be the case with morality; rather it is a duty that should be followed for a greater social function like etiquette or rules that facilitate collaborative efforts.
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| − | What sets these “laws” apart from other socially constructed rules, like custom or etiquette, is that they are established as part of a greater system – the Legal system, which applies collectively to everyone under its jurisdiction. The rules are not individually chosen and followed by preference. The Legal System operates under the Rule of Recognition, which requires that Judges and Legislators recognize the laws and their authority, and adhere to them as prescribed in the collective belief they all have obligation to do this. Unlike Austin’s theory, this is not necessarily something that they do for fear of sanction, rather they do this for the stability and effectiveness of the system and in the interests of converging and legitimizing their practices. Members of society in turn follow the laws in recognition that they collectively bind people as universal rules and settle the square.
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| − | With the separate camps of Morality and Law carrying on in co-existence, they may inevitably fall in conflict with one another. When a person is presented with a decision of whether to follow a law, and their moral compass tells them that such a law would be too “evil” to obey in those circumstances, Hart would say that one does not need to follow it. Such cases lead to the appearance of the Penumbra: an obscurity or uncertainty which occurs when a factual situation falls outside of the settled core or meaning of the legal rule. The penumbra, literally meaning partial shadow or eclipse, represents the gray areas in the law that arise in hard cases. A judge will be burdened to determine whether a particular set of facts falls within the settled core of meaning of a legal rule, and what the law ought to be. In these hard cases, judges may apply moral rules to fill in these grey areas, leading to confluence between the law and morality, but they cannot do so with inconsistent discretion or by their mere personal morality. They must draw from the terms of the "rule-governed practice” that gave rise to the laws; principles which are true or consistent in the context of the legal system. Essentially, it follows that judges should follow an accepted strategy and logic that is consistent to “find” the law, or the acceptable outcome.
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| − | Examples of "the rule-governed practice" in Canada may include the Charter and the Fundamental Principles of Justice – ideas that by consensus are vital or fundamental to our society, including balance between interference of the state and individual freedoms. Terms of rule-governed practice are generally broad enough to be read into hard cases to determine a more acceptable outcome.
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| − | ===Lon Fuller and Criticisms of Separation Theory=== | |
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| − | Lon Fuller sets out a number of criticisms of Separation theory: It is his contention that society’s acceptance of rules is inevitably grounded in a form of external morality. The order or cooperation that the rules create is in essence “good”. Recognition appeals to moral standards of valuing others, rather than just the law in itself.
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| − | Fuller Believes the law also has an inner morality of keeping certain principles of law effective. Essentially, the legal system follows an ideal; it creates justice and avoids disorder. To be effective in doing this it must conform to internal values, since without them, the law ceases to function as it should and sinks into a form of corruption. To explain this, Fuller uses the story of a fictional king named Rex and his follies which ultimately demonstrate the Public Code needs coherency, reasonableness, rationality and consistency. These values outline the principles behind Fuller's concept of morality in the law.
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| − | Fuller also argues that separation theory and legal positivism do not address immoral laws. He suggests that there is no coherent idea of when one should follow a law or chose not to if if defies his morals. In his Fuller's view, there is no answer to the greater conceptual problem of balancing the conflicting obligations of morality and "evil" law. Critics of the Separation theory have gone as far to say that the lack of distinction and the sharp separation leads to dictatorship regimes like that of Nazi Germany.
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| − | Lastly, Fuller criticizes the adequacy of positivist theory’s determination of what obliges people to follow laws. Fuller suggest that the rational element of coming to logical decisions is in effect an individual’s attempt at directing those decisions towards what is "right" or "good". Fuller argues that it would be wrong to assume that an evil system would satisfy rationale logic as easily as a righteous one does.
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| − | ===Separatist Analysis of ''Moore v. British Columbia (Education)''===
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| − | In this case at hand, there are a number of rules at play. The Human Rights Code, section 8, is the primary rule that the court is dealing addressing in the issue. This law prescribes a rather general rule as per discrimination and is intended to direct the general public with how to conduct themselves as a whole: section 8 states that a person must not discriminate against a person or class of persons regarding any accommodation, service, or facility that would be customarily available to the public because a mental disability, without a bona fide and reasonable justification. It should be noted here that there is a potentially moral aim, which is to prevent the moral evil of discrimination. Hart would argue that the law in this context only coincides with a moral aim because the goals of "law" and the goals of "morality" have a tendency to be parallel, although they are not one in the same.
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| − | Hart theorized that legal rules could be categorized in two ways. Firstly, primary rules are laws that regulate the conduct of society and set the broader concept to be enforced. While these laws should be laid out in general terms, with room for interpretation, all such laws will have a "settled core of meaning" or a limit to how they should apply. The Penumbra appears when factual situations skirt around the boundaries of this core, or morally complicate it, making the legal solution unclear. Secondary rules direct officials and judges on how the primary rules should operate and how they should be interpreted. These rules also allow courts to deal with uncertainty about what the law prescribes, or how to flex rules that are overly rigid to come up with solutions in disputes, while maintaining consistency and legitimacy.
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| − | The legislation in this case is broad: terms such as “discrimination”, “bona fide reasonable justification” and “mental disability” are open to interpretation - which may or may not mean that this rule applies to ''Moore''. The Courts use secondary rules in order to understand the application of this rule for the purpose of a dispute. The secondary rules adopted by the court include a test for discrimination. The Rule of Recognition requires that both sets of rules be followed in order to come up with the proper conclusion. A judge could not simply decide on a subjective analysis of the legislation. Instead, the outcome of the decision hinges on the legal test (a secondary rule):
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| − | Prima Facie discrimination is found when complainants can assert that:
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| − | 1. They have a characteristic protected from discrimination under the Human Rights Code;
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| − | 2. That they have experienced an adverse impact with respect to the service; and
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| − | 3. That the protected characteristic was a factor in the adverse impact.
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| − | Another secondary rule determines that once the prima facie discrimination is found, the burden shifts to the respondents to justify the conduct or practice. These are analytical rules which needs to be collectively followed by all courts interpreting section 8, in order legitimize the legal process.
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| − | As was mentioned, there was no dispute is this case as to whether or not Moore had a mental disability protected under the human rights code, and whether or not he suffered discrimination. As the law had been laid down, the school district did not have a defence of financial constraints, especially without taking alternative measures to accommodate Moore’s needs beyond undue hardship. Given the clarity of the law and the facts at hand, it would not seem that the penumbra was not an issue here, and that the courts had a straightforward decision as it pertained to discrimination against Moore. The point of contention in the Court of Appeal and the Supreme Court was the comparator group to which Jeffrey would best be held, and whether the discrimination would amount to systemic discrimination. Here, there was a gray area. Finding that the connection was too remote suggests that this case did not strike the core of meaning that that piece of legislation was meant to reach.
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| − | '''Conclusion:'''
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| − | Hart would likely have agreed with the Supreme Court in this decision on the basis that they took a focused approach on the ''Human Rights Code'', and came to a decision within the scope that they felt the legal rule was meant to reach. They were able to determine this by following the secondary rules set out by common law and following the analysis put forward by other judges before them. All were in agreement with the issue of discrimination against Moore, and Hart would not likely disagree. As for finding no systemic discrimination in this case, Hart would likely agree that that the Supreme Court was right in focusing on Moore as an individual: The rules should not be stretched beyond their core of meaning, and the Rule of Recognition requires that judges follow the normative rules rather than radicalize where unnecessary.
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| − | == System Of Rights and Principles ==
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| − | [http://kumu.tru.ca/Course:Law3020/2014WT1/Group_V/System_Of_Rights System of Rights]
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| − | Ronald Dworkin developed a thesis to describe the law and its philosophical underpinnings; his ideas are grounded in his belief and trust in the judicial process. Dworkin also has strong feelings on protection of individual rights; he posits that any rights that can be easily over-ridden by the government are no “rights” at all. He describes the judicial process and how judges are forced to use “principles” when the case at hand does not have a clear rule governing it.
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| − | Dworkin’s thoughts on the role of judges have been summarized as analogous to a chain novel. The judge presiding over a case must act in concert with the cases that have preceded his (the characters, plot, etc in the novel) but must also make his case able to be followed later (leave the next writer a story that can be followed in the novel). In this way the judge is giving proper weight to previous cases or rules while allowing the judge the flexibility to utilize the prevailing “principles” to guide his judgment.
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| − | ==== Dworkin’s Rules and Principles ====
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| − | Legal rules are standards that guide judges reasoning when judges try to reach a decision in a case. Legal principles offer guidance, but the type of guidance is different. These rules are on/off: they apply or they don’t, no middle ground. They act as a prima facie reason for or against something.
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| − | Legal principles contribute to a judge’s reasoning but do not require any specific decision. Legal rules have “weight” but are not decisive on their own. Rules that work in a particular scenario can still have exceptions (“club members should always wear shoes, unless they are at the pool or doing yoga”); principles are not affected by exceptions: when relevant to a case, they always have some influence.
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| − | ==== Analysis of Moore v British Columbia ====
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| − | When Jeffery Moore’s family was told that his access to assistance in his education was terminating this could be seen as the school district (an actor of the government) acting against Jeffery’s rights and valuing the majority over individual rights and is exactly the type of event that Dworkin’s system seeks to avoid. Dworkin believes that morality and politics should not compel judges; such interference would cloud the principles and rules that should govern our legal system. He does concede that they may influence the decision but such considerations should not circumscribe the judge’s decision-making ability.
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| − | Dworkin truly believes that rights cannot simply be “weighed” when analyzing what to do in a situation, as the views of the majority will almost always supersede the rights of an individual. As such, Dworkin would be very skeptical of a decision such as Moore and would see this as the devaluing of individual rights at the expense of public policy and budgetary considerations.
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| − | Dworkin would support the comments made by Justice Abella in the decision of Moore, when she states that “special education is not the service, it is the means by which those students get meaningful access to the general education services available to all of British Columbia’s students”. (emphasis in original) This gives proper weight to the individual’s rights and shows that deference should be shown in that regard. The school board tried to advance the argument that Jeffery should be compared not to the other special needs students but to the general student population. The court (and Dworkin would approve) dismissed that claim and said that if Jeffery were compared only to other special needs students it would not show whether he had genuine access to education. Furthermore, the fact that the district continued to fund Outdoor School, an optional program, instead of continuing the Diagnostic Centre shows the sort of systemic decision making that Dworkin was seeking to avoid. In making the decision that would affect a small minority of students instead of the optional program that would affect the bulk of students exemplifies the over-valuing of the majority, while diminishing the rights of a small number of individuals. When viewed in the context of such a discretionary and special program of Outdoor School as compared to the accommodations needed to give Jeffery a proper education, it is wholly evident that Jeffery was discriminated against.
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| − | ==== Judicial Decision as Chain Novel ====
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| − | If we apply Dworkin’s chain novel analogy to the case of Moore, the previous decisions of Meiorin/Grismer and CN Rail, among others, helped guide the decision of Justice Abella, analogous to the previous writers in the chain novel. Abella then uses the prevailing principles of society in concert with the “rules” of past cases to create the current story while allowing it to be readily followed in the future by the next “writer”. Keeping in mind that the rules are “on/off”, they either apply or don’t; they cant be influential, they must be binding or not. In Moore, Abella uses several cases as binding law and thus “rules” in the analogy, while also maintaining the principles of society. She also utilizes the BC Human Rights Code, specifically section 8. This decision making process perfectly embodies the chain novel process that Dworkin uses to describe his legal theory.
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| | == Liberty and Paternalism == | | == Liberty and Paternalism == |
| − | [http://kumu.tru.ca/Course:Law3020/2014WT1/Group_V/Liberty_&_Paternalism Liberty and Paternalism]
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| − | Liberty and Paternalism depart from previous legal theories and is concerned with the proper limits of law. Both theories have a presumption in favour of liberty for the individual as an inherent right, and any interference by the state on that liberty must be justified.
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| − | There are several valid justifications for a law’s restriction of liberty:
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| − | * The Harm Principle
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| − | The harm principle allows the restriction of individual liberty by law if it promotes the prevention of serious harm towards others in society.
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| − | *Paternalism
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| − | Paternalism allows for the restriction of individual liberty by law if it protects others from harm through the exercise of that individual’s liberty in harming themselves.
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| − | * Legal Moralism
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| − | Legal Moralism allows the restriction of individual liberty by law where the individual’s actions undermine societal morals and values.
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| − | * The Offence Principle
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| − | The offence principle allows for the restriction of individual liberty by law if it ensures that the sensibilities of others are not unduly offended.
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| − | === John Stuart Mill and Liberty ===
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| − | Mill begins with the presumption of liberty for all individuals. He then is concerned with the proper limits of authority in law on that liberty and feels that liberty itself is inherently difficult and must be carefully controlled.
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| − | Mill notes the concept of liberty itself sets limits on authorities through:
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| − | * Political Liberties or Rights
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| − | Certain immunities of which it is regarded as a breach of duty for an authority to infringe. This is seen today in Canada through our enshrined rights in the Canadian Charter of Rights and Freedoms and provincial rights codes, including the British Columbia Human Rights Code.
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| − | * Constitutional Checks
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| − | A system that requires consent from a body of some sort that represents the interests of the community in reviewing the power of authorities. This is seen today in Canada through our Parliamentary system and democratic self-government, whose powers are derived from and embodied in the Constitution.
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| − | '''Harm Principal'''
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| − | Mill feels the fundamental party to protect in society is that of the individual. Society provides that protection through law. As society provides protection, Mill asserts that we, as individuals, have a necessary obligation in return to contribute to the maintenance of that society, defend it as necessary, and ensure that we do not contribute to the harm of others within it. As such, Mill believes in a strict application of the Harm Principle. Prevention of harm itself is not only a sufficient justification for the limiting of individual liberty through law, but prevention of harm is a necessary condition of legitimate interference with liberty.
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| − | '''Tyranny of the Majority'''
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| − | Mill notes the popularity of self-government and democratic rule, in which the public itself becomes a part of the authority that controls the limits on liberty. The inherent problem with self-government is the danger of creating a Tyranny of the Majority. The Tyranny of the Majority is when society itself becomes the tyrant and collectively imposes its power over the individuals who compose it. Society can and will often pass its own mandates, and if it passes mandates that are incorrect or not necessary, through social tyranny the power of those mandates can become oppressive, enforce conformity, and leave fewer avenues for individuals to escape from improper limits on their liberty. The Tyranny of the Majority includes social tyranny through prevailing opinions and feelings. Mill feels that there needs to be a limit on the inference of collective opinion with individual independence and finding proper limits is necessary to protect liberty and prevent political despotism.
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| − | '''Exceptions to the Rule of Liberty'''
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| − | Mill notes that the right to liberty does not apply to children under the age limits set by law for adulthood or to ‘nonage’ societies that are ‘backwards’ in their social development. Mill notes that these parties must be protected by others with more mature faculties against harm from their own actions and the actions of others in society.
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| − | === Gerald Dworkin and Paternalism ===
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| − | Paternalism challenges Liberty and expands on the idea of the harm principle as a justification to limiting individual liberty. Paternalism argues that interference with individual liberty is not only justified in prevents harm to others, but is also justified if it prevents harm to the individual on themselves. This is also true in cases where prevention of individual harm incidentally leads to prevention of harm to third parties. Paternalistic interference preserves autonomy, which Dworkin asserts is analogous to liberty.
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| − | Dworkin introduces several other justifications for limits on liberty:
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| − | * Limiting liberty is allowed where action o the individual produces irreversible and destructive changes of personal liberty/autonomy. In example, through irrational choices or addiction.
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| − | * Limiting liberty is allowed where individual decisions are made under extreme psychological pressure and the risks associated are not freely chosen or understood. In example, suicide or confessions.
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| − | === Contrasting Liberty and Paternalism with Other Theoretical Treatments ===
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| − | Many of the concepts considered as valid justifications for the limits of law fit within the moral framework of earlier theories set forth by Legal Positivists and Natural Law theorists. For example, the Harm Principle itself is partly founded on the interests of every person not to be seriously harmed by others. This interest is certainly a requirement of the common good found in both Legal Positivism and Natural Law. Further, this type of common good supports an integration of morality within the legal framework. However, it should be noted that Liberty and Paternalism theorists will stress the fact that it is liberty itself which allows for expression of moral values, therefore, justification of law comes from restraint on limiting liberty through creation of social rights which embody moral values preventing harm in society, not through justification that the moral values themselves create or justify law. Essentially, it is the presumption of liberty that allows for moral values in the first place.
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| − | === Application of Liberty and Paternalism to Moore v. British Columbia (Education) ===
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| − | '''Liberty and a System of Rights'''
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| − | The Supreme Court of Canada in Moore v. British Columbia (Education) uphold the presumption of individual liberty; specifically, the liberty of students to develop their individual potential and acquire the knowledge and skills needed to contribute to a healthy democratic society through education. This liberty is protected in the acknowledgement by the provincial government that there is an inherent right to access to education under section 8 of the British Columbia Human Rights Code. Further, the Code sets out the limits of which the government must adhere in order to prevent discrimination against individuals on the basis of this right and the liberty it protects. These facts strongly follow Mill’s concept of individual liberty and the idea that the creation of a system of political rights and liberties is one method to ensure authoritative powers do not infringe indvidual liberty.
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| − | '''Protection of Children Under Liberty'''
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| − | It is important to note that the Court stresses the importance of how all children should be afforded equal opportunities to develop their full potential through education. In fact, the Court goes as far as to stress the importance of protection of children against the harm of receiving poor education or limited access to the education available. In Jeffrey’s case, at the Tribunal level, experts clearly agreed that Jeffrey suffered as a result of having poor access to facilities to address his learning disability and noted sufficient access to those facilities in the public school system would have benefited him in the long run. The Court here submits that the public school system has a duty to provide sufficient access to education for all students, including those with learning disabilities. These ideas fit Mill's presumption that the doctrine of Liberty is only applicable to those of mature faculties and that those who do not have these faculties, children under the legal age of adulthood or ‘nonage’ societies, must be protected by those who do against harm from their own actions (in this case, Jeffrey's) and actions of others (in this case, the school district and Province).
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| − | '''Application of the Harm Principle as Justification for Limits on Liberty'''
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| − | The idea of protection of children against harm easily brings in the Liberty theory of the Harm Principle as set out by Mill. The Harm Principle allows the restriction of individual liberty by law if it promotes the prevention of serious harm towards others in society. In Jeffrey’s case, the ‘others’ in society are those children with special educational needs, and the ‘harm’ that occurs is their inability to access education to allow full liberty to develop their skills and knowledge as a contributing individual in society. As the Tribunal and Supreme Court of Canada noted, the actions of the school district did not meet this justification. Their actions were stressed as being one of economic need in allowing the cutbacks to the programs for special needs students that Jeffrey required. Further, the actions by the school district indiscriminately allowed some programs, such as the Outdoor School, while cutting others, such as the Diagnostic Centre. At no point did the actions of the school district seek to prevent harm to special needs students in the education system, of which, had the school district sought to do so it may have allowed the limits they imposed under the Harm Principle. This is extremely prevalent in the decision by the school district to not even consider alternative options for special needs students in their public schools before cutting the programs completely.
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| − | '''Application of Paternalism as Justification for Limits on Liberty'''
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| − | Paternalism notes that not only are limits against liberty justified in situations of prevention of harm to others, as stressed by Mill, but Dworkin allows limits against liberty as justified in situations of prevention of harm to the individuals through their own actions. In this case, the ‘harm’ would be to Jeffrey as an individual in his own actions when failing to have a sufficient education that would aid in his development as an intelligent adult (of which all students are entitled to under the British Columbia Human Rights Code). Again, however, the school districts actions were primarily economically-motivated and did not seek to prevent harm in any way, and therefore, the findings of the Tribunal and Supreme Court of Canada in discrimination against special needs students are well-founded as Paternalism also does justify their limits on liberty.
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| − | '''Conclusion'''
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| − | Mill and Dworkin would most likely agree with the Supreme Court of Canada's decision on Moore v. British Columbia (Education) as the Court's decision strongly valued the presumption of inherent individual liberty and the rights that arise thereof. Further, the Court's decision that the limits the school district imposed on the public school system and on Jeffrey's access to education as infringing individual liberty was well-founded as the limits did not fit under either Mill's or Dworkin's possible justifications for a limit on liberty (in either the Harm Principle per Mill or Paternalism per Dworkin).
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| | == Law and Economics: Law as Efficiency == | | == Law and Economics: Law as Efficiency == |
| − | [http://kumu.tru.ca/Course:Law3020/2014WT1/Group_V/Law_As_Efficiency Law as Efficiency]
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| − | === Introduction ===
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| − | Proponents of Law and Economics submit that the purpose of law is to achieve economic efficiency. The idea of Law as Efficiency is concerned with viewing law as being the essential tool for wealth-maximization in society. Theorists who support the concept of Law and Economics believe that since some laws are efficient and the best explanation of why we have laws is because of their efficiency, it follows that we ought to have efficient legal rules in our society.
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| − | Law as Efficiency purports that the aim of law should be to maximize social wealth. In this context, wealth is not measured solely by monetary value, but rather it refers to all tangible and intangible goods, services and satisfactions that are valued by society.
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| − | === Application to Moore v. British Columbia (Education) ===
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| − | Pareto-superiority is a standard that allows for efficiency to be measured and compared between different states of affairs on the basis of optimality. The goal of reaching a Pareto-optimal state is attainable by achieving a status where we cannot make any more individuals better off without making other individuals worse off as a result; this is said to be a state of ultimate Pareto-superiority in which efficiency is maximized.
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| − | In Moore, the facts suggest that in order to improve the lives of those who suffer from disability and require special education, budgetary allocations would have to come from another source of the school funding. As the funding for the Diagnostic Centre was severed, in order to provide meaningful education to those who require special education, it appears that funds would have to be removed from some other allocation and be redistributed accordingly. Thus, as there are only limited funds available to the school, it cannot be said that a redistribution of budgetary allocations which provide funding for the Diagnostic Centre would not make others worse off. When there is a set value that is to be dispersed, by redistributing funds to the needs of special education, it will be taking away from the financial needs of another department. In light of this economic limitation, theorists who advocate Law as Efficiency would likely contend that Section 8 of the British Columbia Human Rights Code would not serve to maximize wealth because in Moore, it would not be possible to benefit special needs students without making other students worse off. Therefore, because there are no further moves that could be made to benefit some without negatively affecting others at their expense, it can be said that the situation has already achieved maximum efficiency under the scope of Pareto-optimality.
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| − | <br />It is possible that Section 8 can be viewed in another light in terms of achieving efficiency though wealth-maximization. An aspect of Law and Economics suggests that we can ensure that wealth is maximized in our society by protecting and facilitating voluntary transactions. In Moore, Section 8 is aimed at promoting equality. When there is equality in society, people are more likely trust each other and would be more inclined to voluntarily interact with other. It can be argued that societal trust breeds the facilitation of transactions thereby adhering to wealth-maximization and economic efficiency.
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| − | The School Act which was in effect in Moore states that "the purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy. This declaration of purpose is an acknowledgement by the government that the reason all children are entitles to an education, is because a healthy democracy and economy require their educated contribution" (paragraph 5). Law as Efficiency theorists would likely see this purpose as one that conforms to the Legal Economist's goal of attaining social efficiency and promoting wealth-maximization. A healthy democracy and economy are substantial attributes which are in accordance with the types of wealth that are seen as being desirable to maximize in the view of Law and Efficiency.
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| − | === Conclusion ===
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| − | At paragraph 39 in Moore, it is stated that "special education shares the basic purpose of all education: the optimal development of individuals as skillful, free, and purposeful persons, able to plan and manage life and to realize highest potential as individuals and as members of society". This purpose of special education surely imitates the goal of Legal Economists in the sense that those things which are valued most by society will be maximized and in effect, efficiency can be realized. Maximizing the educational potential for all individuals in society is undoubtedly in accordance with the proponents of Law and Efficiency. Wealth-maximization can be achieved by the same methods that are used to promote equal opportunity for all individuals in society, such as those intended objectives which are embodied in Section 8 of the Human Rights Code.
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| − | This line of reasoning would be similar to the Natural Law theorist approach because maximizing social wealth could be seen as being congruent with the Natural Law theory of attaining the common good. In the same way that Natural Law theorists would promote that which satisfies the greatest number of people in terms of happiness, so too would Legal Economists desire that wealth be maximized in a way that achieves efficiency by ensuring that allocation of resources puts each resource into the control of those individuals who value it the most. That is, the common good can be achieved by maximizing wealth through efficient distribution of value in society.
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| | == Feminist Jurisprudence == | | == Feminist Jurisprudence == |
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| − | [http://kumu.tru.ca/Course:Law3020/2014WT1/Group_V/Feminist_Jurisprudence Feminist Jurisprudence]
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| − | === Introduction ===
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| − | Feminists are concerned with the historical and modern day disadvantages of women in society. Feminist theorists fall along a wide range spectrum, from liberal to radical feminists. Liberal feminists see individuals as the fundamental entity of society and are concerned about injustices to individuals. Radical feminists, and post-modern feminists focus on the social construction of gender within patriarchy and encourage the governments to intervene to protect the interests of disadvantaged groups such as women. Radical and post-modern feminists recognize the reality of lived difference or biological reality of being a woman.
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| − | In order to determine how a feminist jurisprudent would understand the decision in Moore, we can examine the laws at issue and the judicial interpretation of those laws through the feminist perspective. S. 8 of the BC Human Rights Code prohibits a person to “discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons” (Human Rights Code, R.S.B.C. 1996, c. 210, s.8). Although this case is focused on discrimination based on mental disability, s.8 is clear in protecting equality rights based on gender as well, thus attempting to provide equal opportunity and treatment under the law to both men and women. The remainder of this section will present an analysis of the ruling from the perspective of the varying feminist schools of thought.
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| − | === Analysis ===
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| − | ==== Liberal Feminism ====
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| − | Liberal Feminist theory believes that, human beings are "moral equals", and thus women are entitled to equal treatment under the law. A liberal feminist believes that no individual on the basis of his or her gender, race, ethnicity, or another identifiable characteristic, should be excluded from participating in the public or private domain.
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| − | Liberal feminists reason that the solution to the oppression is to provide equal opportunity to all. The ruling in Moore directly supports this principle in liberal feminist theory. The case revolved around Jeffery Moore’s mental capacities and his access to general public schooling education in BC. Justice McLachlin agreed that excluding him of those public resources was discriminatory and affirmed the decision of the lower courts. The Liberal feminist perspective sees Moore, and every disadvantaged person, in morally equal status to everyone else; he would be equally guaranteed a right to public education. McLachlin C.J stated that s.8 of the BC Human Rights Code was violated by the school districts actions, and it would be certain that a liberal feminist would agree.
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| − | ==== Radical Feminism ====
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| − | Radical Feminists theorizes that gender is a patriarchal social construct that is intended to overpower women. The social construct appears to be based biologically and affects every aspect of life. Radical feminists believe that the patriarchal system creates a predisposition of a set of activities and the role of women in society. Radical Feminists believe the only way to change the system, is to reexamine our nature and relation to others.
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| − | In the case of Moore, a student suffering from a mental disorder is arguing for the same access to education as a person with a non-mental disability. Feminists may be concerned with comparing mental disordered students to non disabled students in order to determine the treatment offered by the school system. Children suffering from mental disorders require special accommodation and treatment to ensure an equal access to education to the public that is akin to the argument of feminists who say that women require special treatment in order to ensure equality with males.
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| − | ==== Marxist/Socialist Feminist Perspective ====
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| − | Socialist feminists idealist society goal is to ensure no economic class is exploited by another. Marxist and socialist feminists argue that equality for women is not possible in a capitalist society. A capitalist society is established on principles of private property and the exploitation of the powerless, and thus do not foster an environment for equality. Marxist-Socialist feminism is based on the idea that before capitalism there was no patriarchy. It is a branch of radical feminist theory that suggests that the oppression of women is a reflection of the capitalist system. They believe that by the economic value in labor, the domestic sphere and role of women in this area is not valued. The value of child bearing and rearing, and home-based tasks are worthless in a capitalist economy because there is no monetary value to them. Historically, because women are more likely to represent the domestic sphere and the only value of person was his ability to make profit, this therefore has led to the oppression of women.
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| − | Examining this case from a Marxist-socialist feminist perspective, a Marxist feminist would likely focus on the fact that the District cut accommodating services due to financial difficulties during the relevant period. It was found that the cuts were made disproportionally to special needs programs despite other programs such as Outdoor School being of similar cost. While eliminating the Diagnostic Centre this made accommodation services necessary to make the core curriculum accessible to needy student’s unattainable, whilst other extra school services were unaffected. “More significantly, the Tribunal found, as previously noted, that the District undertook no assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed” (Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, para 52). Marxist feminists would argue that the capitalist economy has made exploitation of the powerless a common occurrence and therefore the District neglected the special needs students.
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| − | ==== Relational Feminist Perspective ====
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| − | Relational feminists focus on women’s difference and the presence of different moral values, responsibilities and work roles. Due to socialization real differences are created between men and women. Women’s socialisation produces a different moral perspective and understanding. This is believed to be not a problem to overcome by relational feminists but something that has to be accepted to accept women into the male value system of society. Relational feminists insist that the public sphere must change to incorporate the ethics of care and place more value on qualities of women and adapt accordingly. In essence the system needs to change to look more like women rather than women changing to look more like the systems norm. In the case of Moore, relational feminists would support the decision because it is incorporating the needs of disabled students into the public education sphere.
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| − | ==== Post-modern Feminism ====
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| − | Postmodern Feminism denies the use of "Grand Theories” in explaining the role of women and the female experience. They focus more on the concrete, lived experience of women’s lives. Postmodernists do not propose just one solution to the oppression of women as this would lead to the assumption that all women suffer the same kind of oppression. They believe that the patriarchal system exists and to help the position of women in this society they must encourage diversity in general. Postmodern feminists would look at the Moore case on an individual basis, as each student who has a mental disorder suffers uniquely. In McLachlin C.J decision she states , “If Jeffrey is compared only to other special needs students, full consideration cannot be given to whether he had genuine access to the education that all students in British Columbia are entitled to” (Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, para 31). Thus a postmodern feminist would support Mclachin’s analysis of Moores circumstance on an individual basis.
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| − | ==== Catherine MacKinnon ====
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| − | Catharine MacKinnon argues that law is a male creation, reflecting values from the male point of view as the ideal standards. These particular male values include judicial review, reliance on precedent, the separation of powers, the division between public and private law, and the “reasonable person.” MacKinnon believes that males design the norms of society and laws highest standards otherwise known as constitutions. She even suggests that many legal precedents were shaped and formed before women were allowed to express their perspective through the means of voting or power control. Catharine MacKinnon would most likely argue that the BC Human Rights code reflects the male standards as ideal and thus a means of promoting the ideal individual, disregarding not only females but other disadvantaged groups such as the mentally disabled.
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| − | Citations
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| − | Human Rights Code, R.S.B.C. 1996, c. 210.
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| − | Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360.
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Treatments of Selected Theoretical Perspectives
R v A.D.H., 2013 SCC 28
Facts
Traditional Natural Law Theory: Law for the Common Good
Natural Law
Brooklyn Museum - San Thomas Aquino - overall
According to Aquinas, natural law comes from God and exists independently in nature. The closer human-made laws align with natural law, the more correct they are. Humans were created by God as rational beings. This rationality allows humans to exercise reason, and when this reason is used correctly it will lead towards the natural law. According to Aquinas, it is the nature of mankind to seek after good, and this desire, too, was implanted by God. By using reason, humans can develop and implement the steps that will lead toward the common good. This is the heart of lawmaking. The objective of laws should be the common good.
Aquinas holds that in order for a law to be valid, it must contain four elements: It must (1) be directed at the common good, (2) follow practical reason, (3) be made by a valid lawmaker, and (4) be promulgated.
Each of these elements is present in R v A.D.H.
1. The Common Good
The common good is a central issue in R v A.D.H. Aquinas believes the common good is the good of the community. Law imposes order on the community, and happiness is only possible within such order and stability. This was an overarching theme in the case. The court focused its approach on not punishing people who are not guilty. Aquinas would say that this is essential for maintaining order in society. The court found that A.D.H. did not make immoral choices and thus should not be punished. According to Aquinas, this is a way of ensuring people stay on the moral path towards the common good. The court found that she was not straying from the moral path, since she was unaware she was pregnant and thought the baby was dead. Her behavior was not a lapse in morality: while mothers are expected to provide for their children (as another part of the common good), her legitimate belief that the child was dead freed her from any moral obligation. If it had been a lapse in morality (i.e. if she thought the child was alive but momentarily neglected it for whatever reason), she would have been off the moral path and should be punished. But punishing the blameless would undermine the objective of the natural law.
The court also held that the law was in place in order to protect vulnerable people, particularly children. According to Aquinas, this is a valid objective as part of the common good. People would only abandon their children if they were off the moral path.
2. Practical Reason
Aquinas sees law as teleological; it is directed at a purpose. In that sense, laws are practical reason directed at the common good. If a law does not have that as its goal, it is not a valid law and does not need to be followed. In order to be law, it must be in accord with reason. The court in R v A.D.H. held that the law in question was laid out reasonably. A central issue in the case was whether or not the provision required subjective or objective knowledge. It held that if the provision required objective knowledge, it would have been written differently. The use of subjective interpretation was to ensure that the morally innocent should not be punished. This is in line with practical reason and makes the law valid.
3. Valid Lawmaker
According to Aquinas, the natural rulers know what is in the common good, and what will achieve universal happiness. They can threaten, coerce and punish the ruled to pursue the goal. But Aquinas does not believe in democracy. The law in A.D.H. was passed by an elected legislature. Though these are not natural rulers in the sense Aquinas would have in mind, the elected officials have been recognized by the public as having the necessary skills to rule. These skills would allow them to closely align with natural law, making the laws the pass valid.
In the case the court focused on legislative interpretation, based on the intent of parliament. This shows judicial trust in the ruling abilities of parliament. Aquinas also preferred legislation to judge-made laws. Legislation deals with broader laws, which Aquinas sees as more moral than case-by-case decision-making. Though the court held that the law in question was meant to be dealt with on a case-by-case basis, the fact that it was passed by a legislature instills it with wisdom and morality.
Aquinas would also likely approve of the court’s decision to give a looser interpretation of the provision, as he holds that the spirit of the law is more important than the letter of the law.
4. Promulgation
In order for a law to be valid, it must be written, known, and available. It is likely, then, that Aquinas would approve of the codification of Canada’s criminal laws. The law in question in the case was from the Criminal Code, which is available to the public. The purpose of the law is to compel obedience, and people cannot obey laws about which they are ignorant.
Legal Positivism
Positivism is a reaction to traditional Natural Law theory. Positivists are concerned with rules that are created by men in power, while Natural law is said to come from a high being that is beyond human creation. Positive Law divides morality from law and asks that these be assessed separately. Rules are law as long as a person or group of authority creates them. Morality is irrelevant to the functioning of a given law.
John Austin- Founder of Positivism
John Austin, an English philosopher of law in the early eighteen hundreds, believed that positive law is made up of commands. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 35) Superiors give these commands to subordinates and punishments or sanctions are put in place to ensure these commands are followed. These are his only requirements for a law to be valid.
Legal Positivists like John Austin, would agree that sovereign superiors must issue commands. They may be an individuals or aggregate bodies as long as they exert control and demand obedience over a given set of people. In our context the Legislature is our country’s governing body. They create law that we as citizens must follow or face penalties for our disobedience.
Austin’s critique of Natural law was that it had no distinction between matters of law, morality and religion. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 36) As a positivist, he believed that the law and morality must be approached independently. He rejects the premise that for laws to be valid, they must be fair and apply equally to all people. “Positivists insist that a rule may be legally valid and yet morally objectionable. The existence of a law is separate from its moral acceptability is usually called the Separation Thesis” (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 34)
John Austin advanced three different types of directives that govern all human behaviour: (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 36)
Laws set by God for human beings
This is law of religion. God, created this law for the greater good of all. He wishes to serve the greatest number of people with his actions. Although not all of God’s actions are visible to humans, we can use this belief to guide us when interpreting his commands.
Positive Morality
This is not official law created by a sovereign superior, such as the Legislature, although it still has some command over groups of people. Positive morality informs humans how to and not to act but does not have specific punishments in place for those who do not follow this guidance. These rules could be created by include governing bodies, clubs or organizations.
Positive Law
This is law that has been created for human beings, by human beings in a position of authority. They are directed at inferior individuals who do not have the power to create law. Individuals must abide by these or face reprimand. These would include government laws that have penalties attached to them.
Bentham and Hart- Modern Positivists
These philosophers take a more radical approach to legal positivism. The separation of legal rules from morality allows for skepticism by individuals. By separating law form morality, we can challenge, critique and change laws.
Application to R v. A.D.H.
In applying John Austin’s theory to the facts of this case, we observe that criminal law fits with his principles of how law should be formed. Sovereign superiors created the criminal code and citizens of Canada must follow this law. Specifically, S.218 states that it is a crime to abandon a child and the penalty for doing this can reach upwards of 5 years imprisonment. The woman in this case was clearly a subordinate to the sovereign, therefore this command applied to her the same as all citizens of Canada and is an application of Positive Law. (R v. A.N.H., 2013 SCC 28 at para 73)
Natural law would say that law is morality written down and if a law is not moral, it need not be followed. Legal positivism holds the opposite view. Positivism states that we must separate the two and even if a law is not moral, it can still be valid. In application to
R v. A.D.H., even if S. 218 (Abandoning a Child) was an immoral law, the mother would still be bound by it.
In this case the appellant and respondent are debating the interpreting of the law as to whether guilt should be found through subjective or objective mens rea. The Judges in this case are trying to give effect to what parliament’s intentions were by implementing the law. Judges are delegated authority as lawmakers, however, parliament can come back and change the laws if they do not like the result. This is what Bentham was referring to when he said, separating laws essence from morality provides for critiquing, challenging and changing the law. This is what the judges in R v. A.D.H. were doing when they were deciding how the reading of S.218 should be applied. Austin would consider laws that could repeal laws something other than positive laws. He calls these revocations of command “permissive laws”. (Susan Dimock, ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 1963) at 45)
Bentham gave us context to determine whether or not law is good, based on utilitarianism. He promoted the greatest good for greatest number of people. This parallels Aquinas’s Natural Law theory that law should promote the common good.
However, Bentham wouldn’t say that a law that was not for the common good was invalid, he would simply say that it was not a very good law.
In our case, when Judges were determining whether subjective or objective fault should apply, they should pick which ever is best for all citizens. Bentham and Austin would agree with the Courts decision in this case.
Separation Thesis and the Morality of law
Dworkin and System Of Rights and Principles
Liberty and Paternalism
Law and Economics: Law as Efficiency
Feminist Jurisprudence
