- 1 Canada v Bedford: Case Summary
- 2 Traditional Natural Law Theory
- 3 Legal Positivism
- 4 The Separation Thesis
- 5 Law as a System of Rights
- 6 Liberty and Paternalism
- 7 Law and Economics: Law as Efficiency
- 8 Feminist Legal Theory
Canada v Bedford: Case Summary
Canada v Bedford is a recent Supreme Court of Canada decision about the constitutional validity of three provisions of the Canadian Criminal Code. The case was brought forward by three former prostitutes, who argued that ss. 210, 212(1)(j) and 213(1)(c) were unconstitutional and infringe s. 7 of the Canadian Charter of Rights and Freedoms by preventing sex workers from conducting their work safely. The impugned provisions, which were created to prevent public nuisance and to limit the exploitation of prostitutes, are summarized below:
- Section 210 makes it an offence to be an inmate of a bawdy-house, to be found in a bawdy-house without lawful excuse, or to be an owner, landlord, lessor, tenant, or occupier of a place who knowingly permits it to be used as a bawdy house.
- Section 212(1)(j) makes it an offence to live on the avails of another's prostitution.
- Section 213(1)(c) makes it an offence to either stop or attempt to stop, or communicate or attempt to communicate with, someone in a public place for the purpose of engaging in prostitution or hiring a prostitute.
The court held that the three provisions of the Criminal Code infringe the s. 7 rights of sex workers in that they deprive them of the security of the person in a manner that is not in accordance with the principles of fundamental justice. In doing so they examined the provisions in relation to three principles: Arbitrariness (where there is no connection between the effect and the object of the law), overbreadth where the law goes too far and interferes with some conduct that bears no connection to its objective), and gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective).
s.210 – prohibition on bawdy-houses The court found that the s. 210’s impact on the s. 7 rights of sex workers was grossly disproportionate to its objective of preventing public nuisance. The provision imposed limits on sex workers to the extent that their health, lives, and safety were at risk.
s.212(1)(j) – prohibition on living off the avails of prostitution The court found that s. 212(1)(j)’s impact on the s. 7 rights of sex workers was overbroad in that it captured individuals such as drivers and security guards who would actually enhance the safety of sex workers.
s. 213(1)(c) – prohibition on communication in a public place The court found that s. 213(1)(c)’s impact of the s. 7 rights of sex workers was grossly disproportionate to the objective of preventing public nuisance, in that the provision greatly impacted a prostitute’s ability to implement safety screening of prospective clients.
S. 1 of the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The court held that the provisions were not saved by s.1 in light of their serious impact on the security of the person by inhibiting a sex worker’s ability to take adequate measures to protect herself. Consequentially, the Court held that the provisions should be struck down. The declaration of invalidity was suspended for one year at which point Parliament may choose, if it wishes, to implement new legislation.
Citation: Canada v Bedford  S.C.J. No. 72
Traditional Natural Law Theory
The focus of the traditional natural law theory is on distinguishing laws from “non-laws” by examining the source of the law and its necessary characteristics. According to this theory “true law” is ultimately derived from a higher power external to human beings. This higher power may be God, nature, or “reason” arising from the reasonable order of the universe. Under the natural law theory, if law is derived from a higher power it is morally right, and therefore human law must also be morally right as it is derived as such. Anything that is not in accordance with this higher moral power is not legitimate law. Therefore, natural law is universal and unchanging, however it may apply to differently in light of the variety of humans on earth.
St. Thomas Aquinas’ Natural Law
St. Thomas Aquinas was a leading proponent of the traditional natural law theory. Aquinas saw natural law as being ultimately derived from God. He reconciled human made law with this concept by arguing that natural law is a product of man’s reasoning as given to him from God. In other words, the human psyche acts as a vehicle for God’s law. A major focus of this type of law is that it reflects what Aquinas refers to as the “common good”.
The common good came from Aquinas’ belief that there are recognized morals that are fundamental to all people, or on a smaller level, the community. The main focus is on living in a harmonious society, and the maintenance of a stable environment. The common good is safe-guarded by setting out reasoned steps through law, and using threats, force, and punishment to enforce the law, should anyone stray. Finally, a valid law cannot be true law unless it conforms to four key elements:
- The purpose of the law must be directed to the common good.
- The law must follow practical reasonable steps to achieve its aim.
- The law must be made by a valid lawmaker.
- The law must be promulgated.
The four elements of a valid law ensure that the law is just and true. This is in line with Aquinas’ view that law is teleological, in that law’s function is the rational pursuit of the common good, and if the law does not achieve this, then it is not law at all and it need not be followed.
The existence of unjust laws is unlikely but possible, according to Aquinas. Any unjust law will cause disorder, and therefore declaring a law as unjust should be done carefully. This leads to the role of the legislature and judge made common law. Aquinas gives precedence to the legislature as lawmakers, as he sees them as the highest authority (after God). Judge made law is condoned only to the extent that it strikes down laws that are contrary to natural law principles. Otherwise, judges are expected to apply the law as it is written.
Natural Law Applied to Canada v Bedford
Examining the Bedford case through a Thomas Aquinas natural law lens requires us to first look at what the objective was behind the three impugned provisions of the Criminal Code that effectively govern how a prostitute conducts her trade. The case states that the objectives of the laws are to prevent public nuisance, and to limit the exploitation of prostitutes by others, such as pimps. These objectives could be seen as being in line with an Aquinas style “common good” in that they are aimed at maintaining a stable and harmonious society by limiting a profession that people may see as against “common morality”.
Upon examination of the three impugned provisions, one can see how Parliament has set out to achieve its objective of preventing the disturbance of what it perceives to be the “common good”. Parliament seeks to maintain a stable society by placing limits on the visibility and activities of prostitutes. Section 210 serves to combat neighbourhood disruption and disorder by preventing prostitutes to work inside bawdy-houses, or for anyone else to for that matter. Section 212 (1)(j) makes it a criminal offence to live off the avails of prostitutes, an attempt to achieve the common good to prevent the exploitation of sex workers by society’s parasites. Section 213(1)(c) furthers the first provisions’ common good by making it illegal to communicate in public, and thus protects societal stability and comfort.
As a part of the Criminal Code of Canada, it is not disputed that these provisions conform with steps three and four of Aquinas’ valid law requirements. It is upon examining them under steps one and two that one begins to see how they may not be in pursuance of the common good, nor follow reasonable steps to achieve their goals.
The plaintiff in Bedford challenged each of the impugned provisions as infringing upon a prostitute’s section 7 right to right to life, liberty and security of the person. According to the plaintiff, these provisions had the effect of making the job of a prostitute (a completely legal profession) dangerous and risky. Arguably the provisions were having a serious negative impact on prostitutes, which was disproportionate to the “common good” goal of maintaining societal stability.
This dissociation between what the provisions set out to do, and what their actual effect was, would cause (under an Aquinas point of view) a revaluation of what the common good of society really ought to be. The Canadian Charter of Rights and Freedoms did not exist for Thomas Aquinas, however it is the backbone of Canadian law today. In light of this, one could go as far to say that the Constitution, under which the Charter was created, is a reflection of the “common good” of Canadian society.
If we presume that the Constitution, and therefore the Charter, is the gold standard of the Canadian “common good” then it is clear that a law that violates this standard would not be in pursuance of the common good, and would be deemed void under Aquinas’ first requirement for a valid law. Another way to argue that such a provision ought to be void is that it fails to follow reasonable steps to achieve its goals. If the provisions set out to achieve a common good (maintaining societal stability), but fail to achieve it (in that the result was that immense harm was caused to prostitutes) then they would be void under the second Aquinas requirement.
The Court in Bedford concluded that the three provisions indeed violated the Section 7 rights of prostitutes, and could not be justified by Section 1 of the Charter. The provisions were overbroad, and grossly disproportionate to their original objectives, and had the detrimental affect of putting women who chose to pursue a legal profession in harm’s way.
The Court’s decision to strike down the provisions is very much in line with Aquinas’ opinion that if a law does not pursue the common good, then it is not valid law, and that judges are justified in striking it down as such. The Supreme Court’s decision can be seen as following Aquinas’ theory in that they suspended the invalidity of the provisions for one year, at which point Parliament may choose whether or not to implement new legislation. This action maintains the Aquinas notion that the legislators are in the best position to create law that conforms to the common good of society.
In conclusion, it is likely that although the modern day Canadian “common good” may look different from what Thomas Aquinas might have thought during his time, the court in Bedford could be perceived as following a natural law theory. The court achieves this by examining and denouncing laws that do not reflect the common good, and to return them to Parliament so that they may have a chance to reevaluate the common good of Canadians, and make laws that are in accordance with that good.
Legal positivism is a theory of law that was born in reaction to the natural law concept. Legal positivism focuses on law as a social fact, rather than coming from a source external to humans. In this way, the positivist response rejects the teleological idea of moral good and considers law as a matter of social convention. Under this model, morality is kept as separate and distinct from determining if a law is valid. Thus laws created by human beings are not necessarily fair laws, or rules that “ought” to be followed, they are simply valid because they are laws as issued by parliament (Brian Leiter, The Radicalism of Legal Positivism, pg. 3).
The main proponents of Legal Positivism are classical legal positivist John Austin and modern legal positivists, Jeremy Bentham, Joseph Raz and H.L.A. Hart.
Unlike Aquinas, who believes that society obeys the law because law is moral and obedience to law is morality, John Austin believes that there is a moral obligation to obey all valid law, whether or not those laws are themselves moral. Law is the standard of justice and law is separate from morality. This separation is termed the “separation thesis (discussed thoroughly in the next topic).
For Austin, valid law is a command, issued by superiors to subordinates, and backed by sanctions. As long as a law has these requirements and passes the “pedigree” test (being a law adopted in accordance with the system or rules in that legal jurisdiction), it is a positive, valid law. Thus, society needs to follow this law because it is valid and not because it is for the common good of humanity. In this way rules such as manners, customs or social norms not backed by the requirements of valid positive law are considered positive morality. Positive morality and positive law can be determined by empirical means, and both can direct human behavior in a way that is morally wrong or right. However positive morality is not properly law because they are rules not either set by political superiors to inferiors or not backed by sanctions.
In light of Austin’s “legislation-centric” (Lecture, Margaret Hall) viewpoint, the role of judges is limited. Judges are apart of the subordinate group and have been delegated power by the sovereign legislature to carry out the role prescribed to them. This role to Austin is limited and only for the purpose of interpreting and applying the commands issued by the sovereign. Further this delegation of power is justified because the Legislature retains the right to step in and overrule or minimize judicial power.
Legal Positivism Applied to Canada v Bedford
While Aquinas would first ask what greater good the provisions at issue in Bedford, are serving, Austin would respond that the search for this good is unnecessary because it does not add to make a law valid. Instead Austin would find that ss. 210, 212 (1)(j), and 213(1)(c) are all valid laws because they are commands issued by Parliament (Sovereign) to the citizens of Canada (Subordinates) and backed by the threat of imprisonment (legal sanctions).
When analyzing the laws the Supreme Court judges did not stop at finding that the laws were valid because they met the pedigree test. Instead they further analyzed the provisions based on their constitutionality and on the arbitrary, overbroad or disproportionate effects. Austin would find this constitutional analysis as a use of positive morality. In Austin’s view constitutional principles are not real law, mainly because in England the Constitution is not a set of written principles, and thus are just rules that have an effect on how people behave. However in Canada the Constitution is a written document of principles, which is held to be the supreme law of Canada (s. 52(1) Constitution Act 1982). Thus, in Bedford the principles of the Constitution (s.7 and s.1 of the Charter and Rights of Freedoms) are not used merely as rules that govern social norms, instead they are being used to make sure that the laws issued by Parliament are valid and legitimate laws. Austin would disagree with this use of the Constitution, because Parliament, who is the main issuer of commands, is now being held as a subordinate to Constitutional Supremacy. According to Austin, the sovereign power issuing the command cannot be bound by law which also makes them a subordinate. Austin may be able to reconcile this idea of Parliament being bound by the Constitution by looking to s.33 of the Charter, which allows Parliament to hold a law valid notwithstanding the finding of its violation of the principles of the Constitution and thus allowing Parliament to retain their superior position within the legal system.
Role of the Judiciary
In Bedford the ruling by the Supreme Court to find that the laws were invalid because they violated s.7 of the Canadian Charter of Rights and Freedoms and were not justified under s.1 of the Charter, would be seen by Austin as the judges interpreting commands issued by the Sovereign. This interpretation is within the power delegated to the judiciary by the Sovereign. The ultimate decision of the court to send the provisions back to parliament (Bedford para 165) to reissue is the ideal role of Judges in Austin’s view. This is mainly because the Judges did not apply the common law and read in new commands, and so they acted in accordance with Austin’s view that the ultimate power of law making is vested with Parliament.
Modern Legal Positivist: Jeremy Bentham & Joseph Raz
Jeremy Bentham similarly to Austin, views law as a man-made artifact separate from morality. However as he debases law from morality, he believes that law should be based on utilitarianism. And so the validity of law depends upon whether or not it maximizes utility. The question asked is whether a law results in the greatest good for the greatest number of people. Bentham’s idea of utility is not very different from Thomas Aquinas’ idea of common good. Both theorists are interested in good for the majority even if it departs from good for the individual. However where Aquinas and Bentham differ is that Aquinas still believes that the common good is in the best interests of everyone even if the individual does not see it as such. Bentham’s view of utilitarianism differs in respect that a law may not serve the best interest of an individual, however it does not matter as long as the majority is happy.
- Jeremy Bentham's Take on Canada v Bedford
- Bentham would argue that the provisions at issue would pass the social utilitarian aim because parliaments purpose in enacting them was to decrease negative aspects of prostitution for the greater good of societies norms and values. The Attorneys General of Canada and Ontario say that purpose of s. 210 and s. 213(1)(c) is to decrease public nuisance (Bedford para 130, 146) while the purpose of s. 212(1)(j) is to decrease the commercialization of prostitution in order to maintain the values of dignity and equality in society (Bedford para 138). While the Supreme Court reasons that all three provisions infringe on the life, liberty and security of prostitutes, Bentham would argue that these reasons should not justify holding the provisions as invalid. Prostitutes make up “the few”, and so the laws need not maximize happiness for them as long as the rules maximize happiness for the majority.
Joseph Raz views the validity of law through a “service conception” model. Raz believes that law claims authority and tells subjects what they must do. This claim is not a discussion about whether the reasons underlying the law are reasonable or just. Instead Raz purports that law tells citizens what must be done. However, these claims of authority are only justified if the law commands its citizens to do what is morally right to do. Further, if these commands were not followed it must be true that citizens would be worse off. This idea is essentially the “Service Conception” of Authority, where a law is morally justified when the authority performs a service for its citizens, and that service is a law which helps citizens act better than they would without authority’s intervention (Brian Leiter, The Radicalism of Legal Positivism, pg. 6). When these laws do not serve its subjects, that's when disobedience of the law are justified. This theory is similar to Bentham’s theory because both consider effects on the subjects. It is also similar to Aquinas’ theory that seeks to enable people to behave better so as to achieve the common good. However, unlike Aquinas’ and Austin’s theory, the validity of law is not dependent on the lawmaker who issued it.
- Joseph Raz's Take on Canada v Bedford
- If the provisions in Bedford were not in place it would allow for prostitution to take place more frequently and consequently allow for vulnerable women to fall into the profession easily. This would leave women worse off then if the provisions were in place.
- However, the Supreme Court reasons that women would be worse off if the provisions are left in place. The court uses a Razian “Service Conception” of Authority reasoning, where they argue that “laws run afoul of our basic values” when the means by which the state uses to attain its goal is arbitrary, overbroad or has effects that are disproportionate to the goals of the provision (Bedford para 105). The court finds that the provisions actually perpetuate danger and violence against prostitutes; contrary to the “service” the provisions were set out to do (Bedford para 162). Thus, the laws are not justified and are not to be followed since they do not leave citizens in the profession of prostitution better off.
The Separation Thesis
HLA Hart and the Separation Thesis
As a modern legal positivist, Hart built on and adapted Austin’s theories. Hart firmly agreed with the position that law and morality were separate. Hart actually viewed this as beneficial because when separated from morality, laws can be evaluated by society with reference to moral rules. An individual can then weigh a legal rule against a moral rule and determine whether there is a greater obligation to follow the legal or moral rule. Hart focused on the importance of laws being created by our legal system and legislatures as having the “quality of lawness” and that laws are rules that we as members of society ought to follow. One of the essential concepts of Hart’s theory is the “Rule of recognition” which assumes societal acceptance as well as belief in following the law.
According to Hart, the primary role of Judges is to apply the rules established through either legislation or the common law. As legal rules are expressed in general terms, the majority of cases will fall within a “settled core of meaning” that judges will be able to apply. Hart would say that when a case falls outside of the settled core of meaning is it in “grey” area called the penumbra. In these cases, Judges use the “rule-governed practice” such as the principles of justice, impartiality and objectivity to guide their decisions.
Fuller provides a strong response to Hart’s theory. Fuller makes the points that law itself has an inner morality, and it is this inner morality which causes society to accept laws as valid. When Hart refers to judges following the rule governed practice in cases that fall within the penumbra, Fuller suggests that what judges are actually doing is giving effect to the internal morality of the law. Fuller would also say that there is a purpose and reason for consistency in the law beyond just following the “rules of the game”. He believes that laws function as part of a coherent system and are more than just commands, and the internal morality is a key element of what makes the system coherent and consistent. One example that Fuller used to explain that laws could not be acceptable without the element of inner morality was that under Hart’s theory the laws in Nazi Germany would be acceptable because they were created following all of the guidelines of the “rule of recognition”. Fuller would explain that the reason that the laws of Nazi Germany could not be justified is because they did not contain the inherent morality which he describes as so essential. Finally, Fuller uses the example of “King Rex” to illustrate the ways in which laws may be issued by a superior ineffectively. These include laws being ad-hoc, incoherent, contradictory, impossible to obey, retroactive, unknowable by members of society, or frequently changing.
Hart & Fuller on Canada v Bedford
On Hart’s theory, Canada v Bedford is a case that falls within the Penumbra. It is not easily settled as there are conflicting rights and interests that are being balanced against one another. Being in the penumbra, Hart would say that the Judges involved were obligated to then follow the “Rule governed practice” in making the decision. The judges in fact did exactly this. The Court struck down the “immoral” provisions of the Criminal Code using section 7 of the Canadian Charter of Rights and Freedoms. Section 7 reads:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Within Hart’s concept of the rule-governed practice, principles such as the principles of fundamental justice are exactly what should guide judges in their decisions, By using Section 7, and subsequently section 1 to guide their decision, the Supreme Court of Canada is operating to make their decision based within the “Rule-governed practice” which is exactly what Hart would argue that they should do.
Fuller would add a number of elements to the analysis. For example, he would likely point out that there is an inner morality in each of the provisions of the Charter. He would suggest that this inner morality plays an essential role is swaying the Court towards it’s decision. Fuller would also support the court in challenging the provisions of the Criminal Code. These provisions would not be seen as being consistent or rational as a law should. For example, the provisions, which were intended to regulate prostitution and the manner in which it could be carried out, have actually had the effect of making it less safe for those working as sex-trade workers. There is an inherent flaw in allowing laws to stand which violate “security of the person”. Under Fuller’s analysis this flaw would be that the provisions do not have a consistent inner morality, and this is why court has recognized that the provisions should not continue to be recognized as valid law. This also can be seen in the analysis of the Court under section 1 of the Charter where the law is found to be unjustified as it is not minimally impairing, particularly because of the potential impact on those not directly in the sex-trade industry.
Fuller might also say that some of the provisions for sex trade workers would also fall into the “King Rex” traps of being both contradictory and impossible to obey. For example, the provision prohibiting communication actually had the effect of creating an increase in harm for sex-trade workers by being unable to screen potential clients. It would be impossible then for a sex-trade worker to obey the provision without creating an increased risk of harm.
To summarize, under the theories of both Hart and Fuller, the decision of the Court in Canada v Bedford would be seen as correct. The decision falls within the scope of both theories, and it is interesting to note that both theories would likely have come to the same conclusion as the court in this case. The theories do however offer quite a different in analysis in terms of how the way in which they would arrive at the decision.
Law as a System of Rights
The legal theory of law as a system of rights was developed by Ronald Dworkin, a prominent American legal theorist. His work on legal philosophy is widely acknowledged and influential in both America and Britain.
Law as a system of rights represents a primary opposition to legal positivism, specifically targeting the work of HLA Hart. Dworkin rejects the positivist view that sees law as a system of rules. Instead he finds that law is made up also of principles and policy that do not meet the criteria of a positivist rule. The positivist view that judges exercise great discretion in hard cases where the rules do not apply is perhaps the greatest factor of legal positivism that Dworkin takes issue with. Instead his theory is that judges do not exercise discretion to create new rules to decide the hard cases but that they apply relevant underlying principles to asses the pre-existing rights and obligations of the parties. When applied correctly these principles will lead the court to the right decision every time. Thus this theory suggests that there is always a correct answer even to the hard cases. It is also notable also that to a positivist, rights do not exist outside of legal rules, the rules create the rights. According to the theory of law as a system of rights, rights are the product of legal principles and exist apart from strict legal rules.
Elements of the Law Within the System of Rights
- Rules are different from principles in that they prescribe an outcome for a specific set of circumstances. If a situation meets the criteria for the circumstances then the outcome is applied.
- Principles of justice and fairness in contrast are not rigid statements that specify an outcome in a certain circumstance, but they support certain rights and duties. Principles take precedent over rules and if a rule is contrary to a principle it will not be followed.
- Policy is social goals that are pursued for the benefit of a segment of the population
The Rights Thesis
In his Rights Thesis, Ronald Dworkin discusses the application of policy and principle in judicial decision-making. He concludes that judicial decisions should be made only on the grounds of principle and not policy.
The traditional view is that in solving hard cases the judiciary should act with the intentions of the legislature in mind when creating new rules. In this way they are subordinate to the legislature and referred to as “deputy legislatures”. Thus when deciding hard cases in this role, the courts can entertain arguments of both policy and principle since this is the proper practice of the legislature in the first place.
However, Dworkin proposes that the judicial decisions should be guided by principle and not policy because it is the role of the judiciary to interpret and apply principles to recognize the rights of the parties. In this way the judiciary may discover rights that already exist due to principle, but they do not create new rules, which is the role of the legislator.
Law As Integrity
Dworkin suggests in his theory of law as integrity that the role of judges in adjudication is to consider both historical and future considerations. The judge surveys the historical stages of a community’s law and interpret principles so that they are consistent with the community’s current legal standards. In this way judges are to apply principles such that they will construct the best possible reflection of the community and its legal practices. When looking back through judicial history then, one will see an unfolding narrative of the community’s values and legal practices.
It is therefore evident when looking at Dworkin’s theory of law as integrity that principles play a large role in judicial decision making. Principles must be applied in a consistent manner, although they may evolve over time in that they are impacted by society's legal standards (policy) as well as the legal rules they seek to guide. The law is truly thus a system of rights that evolves over time in a coherent and interconnected manner.
System of Rights Theory Applied to Canada v Bedford
Liberty and Paternalism
John Stuart Mills’ Liberty
John Stuart Mill was a legal philosopher whose focus was on the liberty of the individual. While Mill recognized that liberty was not the only value in society, the autonomy and liberty of the person was of paramount importance. Subsequently, any restrictions on liberty must be justified. Mill believed the only valid justification for interference with individual liberty was based on the harm principle.
The harm principle states that the restriction of an individual’s liberty is only justified in order to prevent serious harm to others. Under the harm principle, the individual enjoys complete autonomy over him or herself, and it return must vow not to harm others within society.
The focus of the harm principle is the harm caused to others, but not the way that the harm came about. Mill believes that if an individual causes harm to others in adulthood, they are beyond help, as any helpful interference would have occurred in childhood. Subsequently unless during childhood or under the threat of harm to others, Mill concludes that societal interference with the individual is unworkable and wrong.
Mill believed that the balance was struck between autonomous individuals and the state through recognizing political liberties or rights, maintaining constitutional checks on the government authority, and through ensuring that people delegated authority through democratic process. Despite these goals, Mill was cognisant of a threat of “the tyranny of the majority”. The tyranny he referred to is the risk that the collective majority will impose inappropriate restrictions and laws on the individual, thus inhibiting their liberty.
It is notable that Mill held that the right to liberty was restricted to those who are “in possession of mature faculties” and excluded other groups described as “backward states of society” and “barbarians”. He concluded that individuals who fall under these categories are appropriately dealt with through complete state control.
Gerald Dworkin’s Paternalism
Gerald Dworkin took Mill’s theory on liberty, and expanded it to include justification of state intervention in order to prevent harm to the person herself. The focus of this theory is to prevent harm that would produce irreversible and destructive changes to the individual.
The paternalistic viewpoint justifies interference with an individual’s liberty when the person does not adequately understand the risks that face them. In this sense a person who is in psychological distress is seen not to have the autonomy to make decisions that may or may not result in harm to their person. Subsequently, paternalism may justify state action so long as it is with the aim of preventing self-harm, and that it minimally impacts the individual’s autonomy.
What About Morality?
Mill’s libertarian approach to law shows a marked departure from previous legal philosophers. The question of law shifts from what law is, to how laws affect the people that live under them. For Mill the question is really when and why a law should interfere with a person, rather than philosopher’s such as Thomas Aquinas, who focused on the components of law. Under Mill’s approach then, morality is not a relevant inquiry. So long as an individual is not harming another, and (for Dworkin) is not harming herself, then the actual motivation behind the act is totally irrelevant. This means that any law is valid, regardless of it’s moral content or motivation, so long as its effects do not unduly interfere with the liberty of the person. In this light, it is easier to see how the approach of a libertarian philosopher such as Mill would be an excellent way in which to examine the effects that the Criminal Code provisions in Bedford have on the sex workers who live under them.
Liberty & Paternalism Applied to Canada v Bedford
As we know, the focus of Mill’s liberty is the absolute autonomy of the individual, subject only to state interference when the action of the individual threatens to harm another. The rationale behind the impugned provisions in Bedford was that they were set in place to prevent public nuisance, and to limit the exploitation of prostitutes. In considering this purpose through the lens of Mill, we can see that that the first objective could be said to limit the autonomy of sex workers in order to prevent harm to society by way of nuisance. The second objective falls under a more paternalistic category, in that the legislature argued that the provisions in question were intended to limit the exploitation (and therefore harm) of the sex workers themselves.
The entire case turns on the plaintiff’s argument that the three impugned Criminal Code provisions are invalid as they infringe upon the section 7 Charter rights of sex workers by infringing their “right to life, liberty and security of the person”. Looking at this through a Mill perspective, we can see that the provisions are drastically restricting a prostitute’s liberty, by severely limiting their autonomy to work in safe environments.
When broken down, the court indeed found that each provision limited a sex worker’s ability to work in a safe environment, which resulted in harm or the threat of harm to her person.
Section 210 (prohibition on bawdy houses) made it so that sex workers were essentially unable to practice their trade indoors, effectively forcing them onto the street. This caused harm to the prostitutes because street transactions were often more dangerous, and violent than “in-house” transactions. The court found that this provision was void because it was grossly disproportionate to the objective of the law (preventing public nuisance) and that it caused undeniable and serious harm to prostitutes. It is likely that Mill would agree that the restrictions placed on a prostitute’s liberty were unacceptable, as the harm of public nuisance is not equal to the limitation placed on their liberty and rights. From a paternalistic view point Dworkin would argue that the law should be struck down due to the direct harm the provisions cause to sex workers by forcing them onto the streets to conduct their work.
Section 212(1)(J) (prohibition on living off the avails of prostitution) made it so that anyone who profited from the avails of prostitution would be held criminally liable. The aim of this provision was allegedly to prevent pimps from exploiting sex workers. The court found that this provision was void for overbreadth, in that it captured individuals who might assist prostitutes, such as drivers and accountants. Mill would agree with the court because likewise the restriction placed on the sex workers restricts their liberty in employing assistants, and is not justified by the harm principle. Unlike Dworkin, he believed that the only restriction on liberty should be when there is risk of harm to someone else, not oneself. Dworkin would likely support abolishing this provision because of the harm it may cause prostitutes, however it may not meet the threshold of harm causing irreversible or destructive damage to the individual.
Section 213(1)(c) (prohibition of communicating in public) was implemented in order to reduce the ‘nuisance’ caused by prostitution by preventing prostitutes and their clients from communicating in public. The Court found that this provision was grossly disproportionate to that goal, as it made it nearly impossible for prostitutes to screen their clients, which often put them in dangerous situations. Mill would likely disapprove of this provision as it upsets the balance between the state interference and individual liberty by limiting prostitutes so drastically, while protecting a fairly low risk of ‘harm’ to the public. Dworkin on the other hand, would likely strike the provision down in light of the risks posed to prostitutes by not being able to properly screen clients. (
An important part of Mill’s theory is that although liberty is of utmost importance, it is not the only value in society, and it must be balanced against others. Tying this into the Bedford case, one can see that this is expressed when the Court considers if the limits on prostitute’s section 7 Charter rights could be upheld under section 1. The provisions were not justified under section 1, as they infringed drastically upon the rights of prostitutes to their section 7 right to right to life, liberty and security of the person. This process of balancing infringements against individual’s liberty is reflects the values in both Mill’s and Dworkin’s theories of ensuring the preservation of liberty through Charter and governmental mechanisms.
In conclusion, it is clear that Mill and Dworkin would support the Court’s holding that the impugned provisions be struck down, as they impose serious limits of the liberty of sex workers which is disproportionate to the potential harm caused to society, and that they cause a real and serious threat of harm to prostitutes.
Law and Economics: Law as Efficiency
The central claim of the approach of Law and Economics is that law serves the goal of economic efficiency, and so laws are mechanisms for maximizing wealth in society. There are three claims accepted by proponents of Law and Economics. The descriptive and explanatory claims see efficiency as describing how some legal rules operate and why laws develop towards efficiency as they do, even where the claim is that those laws were adopted for other reasons. The normative claim purports that good legal rules are efficient rules, and so when legal rules are put into place it is asked whether the law will promote efficiency. The Law and economics theory is contrary to Natural law theory and morality is not brought into discussion with law. Thus, just as Legal Positivists use morality to evaluate laws, here legal economists use efficiency to evaluate laws.
Wealth-maximization is concerned with social wealth and all measurable satisfactions. This includes all tangible and intangible goods and services, not just monetary gain alone. Economists assume that all people are rational, and so to be rational is to adopt efficient means to achieve ends. Thus when viewing branches of law through an economic lens, rational actors make choices based on what will maximize self-interest.
Measurements of efficiency
- Pareto Standard
- Pareto-superiority is where a move from one state of affairs to another state of affairs is superior when at least one party is better off and no one else is worse off. Pareto-superior transactions increase net utility for the parties to the transaction. These are situations of win-win, when all parties benefit from a transaction, or win-lose situations where winners fully compensate the losers and these winners still have a net gain after compensation.
- Pareto-optimality is where there is no superior move possible from the current state of affairs because an optimal position has been reached. When Pareto-optimality is reached, all possible moves to make some people better off would result in making others worse off.
- A problem arises with using the Pareto standard. All optimal states are such that there are no moves from them that would be Pareto-superior (no losers). To address this problem some theorists have suggested that the goal should be to reach Pareto-optimal outcomes through Pareto-superior moves. However, the problem with this remedy is that in reality there are not many moves that result in no-loser possibilities. In almost all distributional struggles, some will gain and some will lose.
- Recognizing this theoretical and practical problem of the Pareto Standard, economists have formulated a standard of efficiency called the Kaldor-Hicks test. When a move is potentially superior the move is justified. Thus a move is justified when the party (A) gaining from the move gains more than the other party (B) loses. Party A could compensate B for B’s losses and still have something left over. Thus, the move would actually be Pareto Superior if the compensation were paid. Though this compensation is only potential and does not have to be paid, the move is still justified because society benefits overall since social wealth has been increased.
- The Coase Theorem
- Under the Coase Theorem, when transaction costs are low and individuals act cooperatively, any assignment of rights initially would be efficient because each party will come to a distribution, which benefits both. When Coase Theorem conditions are met the law does not need to assign property rights in any particular way to regulate distribution of resources. When conditions are not met the law can step in and assign rights in a way to achieve efficiency as would be achieved under Coase conditions.
- Legislatures and Judges
- Law and economics theorists distinguish between what legislators and judges add to economic efficiency in law. Theorists suggest that what Legislators do almost never satisfy the Pareto principles, because government action taken through law will make some people better off at the expense of others.
- The theorist, Richard Posner, purports that Legislators are rational actors like everyone else and as such they act to maximize their self-interest. This self-interest is to be re-elected and so in exchange for votes from certain organizations they will make deals that serve the interests of those groups. The benefits that these organized groups receive are paid for by the general population through taxation. This redistribution is not required to be efficient and so there is no guarantee that legislation aimed at redistribution will be efficient or utility increasing.
- Judges on the other hand do not have redistributive power but can help achieve efficiency through the common law system. Judicial decisions can correct or maintain the market (i.e. property disputes). Further, any inefficient decisions can be appealed so that over time through precedents there will be an increase in efficient judgments.
Law and Economics Applied to Canada v Bedford
The law and economics approach extends to different branches of law such as tort, contract, property and criminal law. Bedford falls within the criminal law branch because the laws are within the criminal code, however the case also intersects with property law because at issue is the idea of regulating personal property rights (an individuals right to their body).
Law and economic theorists believe that laws protecting property through criminal sanctions are put in place to promote market transactions (Text pg. 132). It is believed that these laws provide holders of goods with assurances of their future enjoyment of their entitlements by ensuring that non-wealth maximizing transfers do not take place and making sure that people can enter into negotiations with others over their goods. Thus criminal law protects interest that we think of as inalienable or essential.
Looking at the courts analysis of the three provisions in Bedford through an economic lens shows that all three provisions are inefficient in promoting market transactions. They reduce the ability of prostitutes to enter into negotiations with others over their entitlement (bodies). S. 210 makes it an offence to keep a fixed location where prostitution can take place. The court found that the effect of this rule was to force prostitutes to work on the street, which makes them more vulnerable and creates danger to their person (Bedford para 62-63). S. 212(1)(j) criminalizes living on the avails of prostitution of another person and the courts found that the effect of this provision was to prevent prostitutes form hiring bodyguards and drivers, which would ensure safety for prostitutes (Bedford para 66). S. 213(1)(c) prohibits communication in regards to selling sex for money in public places, and the court found that the effect of this provision was to prevent prostitutes form screening their clients for personal safety (Bedford para 71).
Ultimately the Supreme Court found that the three provisions in addition to imposing conditions on how prostitutes operate also imposed dangerous conditions on prostitution because “they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks” (Bedford para 60). This inability to protect their bodies, which is key to their productive labor, is inefficient because the social cost is unjustifiable. The cost-benefit analysis in this case would find that it is not efficient to diminish the ability of prostitutes to ensure their safety in a profession that is legal because the cost of violating their rights to life, liberty and security (s. 7 of the Charter) is too high for society to bear.
Thus, the provisions at issue fail to answer the three questions Economists ask in relation to criminal law. First when should criminal law be used? Economists believe that coercion should be used to support the operation of the market, which involves protecting rights to personal and private property and freedom of transactions. All three provisions are inefficient in this sense because they diminish the ability of prostitutes to secure their bodies or to get into transactions with their bodies. By having the provisions in place would be a Pareto-Optimal situation because legislators in enacting this legislation may have gained votes from the public or conservative organizations, but in doing the cost to prostitutes has been detrimental.
Second is the question of how much should be spent on crime control and what would be an efficient amount? Economists believe that only where the cost of preventing a crime is less than the cost of suffering it to happen should the criminal law apply. Prostitution itself is not illegal, so creating these provisions, which make engaging in a legal activity to be dangerous and strip freedoms essential to an individual, it is very inefficient to the cost that goes into to imprisoning women. On the other hand s.212 (1)(j) could be said to be efficient because it is meant to diminish the harm against women in relation to exploitation from pimps or johns. However an Economist could find that it is an overbroad law and the social cost of not allowing children, parents or employees of prostitutes to live off the avails of the primary breadwinner is a higher cost than women being exploited.
The third question is what level of enforcement and scheme of penalties will induce compliance with the law? If the goal of punishing crime is deterrence through the threat of penalties, those penalties must be set at an efficient rate if they are to fulfill this function. As mentioned above, prostitution is not a crime, and so setting provisions that ultimately criminalize a legal act is not an efficient use of penalties. The penalties range from summary conviction to imprisonment for a term not exceeding ten years. An economist would find these penalties to be disproportionate and thus inefficient to the crimes of keeping a common bawdy house, living off the avails of a prostitute and communicating in public for the purposes of prostitution.
Feminist Legal Theory
While feminist theories have developed a great deal over time, there is an underlying presumption that is a core of the theories, and that is that “a patriarchal world is not good for women” (Dimock, Classic Readings and Canadian Cases in the Philosophy of Law at page 141). The ideas of power imbalance and dominance by males in society are the central tenets of feminist ideology. Feminists would reject completely Hart’s thesis of the separation of law from morality, because it further justifies that a law could still be a law that must be obeyed despite the particular law being detrimental to women.What has changed among Feminist theories, and over time, is the belief about how this can be resolved. Earlier theorists simply argued for the treatment of men and women as equal under the law. Over time, the idea of what this equal treatment would actually look like has changed drastically. Here is a brief summary of some of the major feminist positions:
Liberal Feminism: This theory of feminism is most closely connected to Dworkin’s theory, focusing on principles of fairness and justice. From a liberal feminist perspective, what is required to change the legal system is removing blocks that have historically prevented women from having equal success to men. The focus is on ensuring that the law is “blind” to gender, and that the law should simply treat men and women equally.
Radical Feminism: Radical feminism would advocate for an entire overhaul of the patriarchal system. Radical feminists view the structures of society as fundamentally flawed and based on false or socially constructed gender roles.This group would view the idea that law is neutral as a fallacy.
Marxist Feminism: Marxism feminism is similar to radical feminism in that it views the current systems in our society as fundamentally flawed. However a Marxist Theorist would view the source of the flaw as being the Western “Capitalist Society” which perpetuates the idea of wealth as the source of power. A Marxist Feminist would challenge the lack of value placed on tasks such as domestic labour and child rearing
Post-Modern (French) Feminism: The post-modern view focuses on the experiences of the individual as central. This perspective advocates celebrating and acknowledging difference and individuality.
Relational Feminism: Relational feminism acknowledges that women, through socialization, have a different moral perspective from men. Relational feminism looks at the most effective way of creating change as integrating the moral perspective of women into the structures of the current system.
Feminist Legal Theory Applied to Canada v Bedford
Generally under a feminist analysis, prostitution would be seen as one of the most harmful and degrading activities to women in a patriarchal society. There are a number of feminist theories though which would still view the decision in Bedford as problematic.
A Liberal Feminist would say that due to the reality of potential harm to sex trade workers resulting from the impugned provisions, that striking down the provisions is long overdue, and that The Court should have taken the opportunity to strike down the provisions in its previous Reference on Prostitution. The decision is an acknowledgement that the provisions in place did not actually protect the security of sex-trade workers, and was making the situation for those women depending on this livelihood more difficult. This would be a “block” to those women dependent on an income from prostitution which would not affect men in the same way, and therefore a Liberal Feminist would support that block being removed.
A Radical Feminist feminist would disagree with the Liberal Feminist position. This group might argue that any attempt by parliament to implement laws regulating prostitution are problematic, as they are an acknowledgement that prostitution and exploitation of women will continue in our society. This can be seen from paragraph 5 of the decision:
“However, prostitution itself is not illegal. It is not against the law to exchange sex for money. Under the existing regime, Parliament has confined lawful prostitution to two categories: street prostitution and “out-calls” — where the prostitute goes out and meets the client at a designated location, such as the client’s home. This reflects a policy choice on Parliament’s part. Parliament is not precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.” (Canada (Attorney General) v. Bedford 2013 SCC 72 at para 5.
From a radical feminist perspective by striking down the provisions temporarily parliament is simply allowed more time to figure out a way to regulate the sex-trade industry. In this way our patriarchal system is perpetuated.
Like the radical feminist position, a Marxist Feminist would be critical of the fact that the decision is an acknowledgement of the fact that prostitution is accepted in our society. The Marxist concern would be focused on the fact that prostitution only exists because of the nature of the capitalist system. Very few women would be likely to engage in prostitution if it did not produce a significant income. Further, there would be no clients if it weren’t for the excess of wealth that is accumulated through capitalism.
A Post-Modern Feminist would be more likely to be supportive of the decision of the court because the decision is in fact based on the experiences of individual women The decision will hopefully (through future provisions) allow those women who might wish to engage in the sex-trade greater autonomy and greater personal choice.
Relational Feminists would also view the decision as problematic. The decision is still rooted within the moral perspective of a legal system dominated by males. One view, reflected in the following article is that the provisions should have been challenged under section 15 of the Charter as unequal treatment of a group:
Elizabeth Picket, “Supreme Court of Canada removes laws criminalizing prostitution: What’s next?” The Feminist Current, (20 December, 2013) online: http://feministcurrent.com/8441/supreme-court-of-canada-removes-laws-criminalizing-prostitution-bedford-elizabeth-pickett/
In conclusion, while feminists generally would agree that the provisions as they existed were problematic, there is a wide range of views as to how this should be resolved. The dialogue is likely to continue as new provisions are drafted by Parliament. A final point on which feminist theorists would likely agree is that the voice of women, and sex trade workers must be included in the discussion moving forward.