Difference between revisions of "Course:Law3020/2014WT1/Group C"
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[http://kumu.tru.ca/Course:Law3020/2014WT1/Group_C/Separation_Thesis Separation Theory]
[http://kumu.tru.ca/Course:Law3020/2014WT1/Group_C/Separation_Thesis Separation Theory]
===H.L.A. Hart's Separation Thesis===
===H.L.A. Hart's Separation Thesis===
Revision as of 16:00, 26 March 2014
Moore v. British Columbia (Education), 2012 SCC 61
Jeffrey Moore suffered from a severe learning disability, dyslexia, and required intensive remedial instruction. In the early stages of schooling, Jeffrey received assistance with his disability within the public school system. It was eventually determined that Jeffrey required further intensive remedial instruction outside the public school system at the local Diagnostic Centre; however, due to government cutbacks, the Diagnostic Centre was set to be closed and the assistance Jeffrey required was only available via the private school system. Jeffrey consequently completed his schooling at various private schools specializing in teaching children with learning disabilities.
Jeffery's father, Frederick Moore, subsequently filed a human rights complaint against School District No. 44 (North Vancouver) and the British Columbia Ministry of Education claiming a violation of section 8 of the British Columbia Human Rights Code, on the grounds that Jeffrey had suffered discrimination and had been denied a 'service' customarily available to the public, an education.
Was the conduct of the school district and Province in violation of section 8 of the British Columbia Human Rights code in failing to provide the necessary educational assistance for Jeffrey Moore as a special needs student?
British Columbia Human Rights Tribunal
The Tribunal agreed with expert and witness opinion that Jeffrey required intensive remedial instruction to assist with his disability. The Tribunal found both individual discrimination against Jeffrey and systemic discrimination by the school district and province of British Columbia.
Findings of Discrimination by the District
The Tribunal found individual discrimination in violation of the Human Rights Code against Jeffrey by the school district, as a result of:
- The school district’s failure to assess Jeffrey’s learning disability early; and
- The school district’s failure to provide appropriate intensive remedial instruction following the closing of the Diagnostic Centre.
The Tribunal found systemic discrimination in violation of the Human Rights Code against students with severe learning disabilities by the school district, as a result of:
- The school district’s underfunding of severe learning disability programs;
- The school district’s decision to close the Diagnostic Centre; and
- The school district’s inability to consider reasonable alternatives for disabled student before cutting available services despite financial constraints.
Findings of Discrimination by the Province
The Tribunal found systemic discrimination in violation of the Human Rights Code against students with severe learning disabilities by the province of British Columbia, as result of four administration problems, namely:
- The creation of the high incidence/low cost cap classification for special education funding;
- The underfunding of the school district;
- Failure to ensure necessary services, including early intervention, as mandatory for students with disabilities; and
- Failure to monitor the activities conducted by the school districts.
The Tribunal ordered that the Moore family be reimbursed for the costs of Jeffrey’s private school tuition and $10,000.00 in damages for pain and suffering. Further, the Tribunal ordered a wide range of sweeping systemic remedies against both the school district and province.
Supreme Court of British Columbia
Upon judicial review, the Supreme Court of British Columbia found that the Tribunal had erred in comparing Jeffrey’s situation to that of the general student population, asserting that the proper comparator group is that of other special needs students.
The Tribunal decision was set aside.
British Columbia Court of Appeal
The Court of Appeal agreed with and upheld the judicial review decision.
Rowles J.A. held that the appeal should be allowed. Special education within the school system is the means by which meaningful access to educational services are achievable by students with learning disabilities. The use of the comparator analysis by the court was unnecessary and inappropriate. The Tribunal's finding of discrimination should be allowed.
Supreme Court of Canada Decision
The Supreme Court of Canada agreed with the Tribunal and dissent at Appeal level on discrimination, finding individual discrimination against Jeffrey by the school district in violation of the human rights code. The Supreme Court of Canada corrected the comparator group analysis used in the lower courts. There was no finding of systemic discrimination by either the school district or Province.
Under section 8 of the British Columbia Human Rights Code:
Conduct is discriminatory if,
[a] person …without a bona fide and reasonable justification den[ies] to a person or class of persons any accommodation, service or facility customarily available to the public’ on the basis of a prohibited ground.
The Court held that the relevant service in this case was not just special needs education itself, but the means by which those students get meaningful access to the general education services commonly available to all of British Columbia’s students.
Prima Facie discrimination is found when complainants can assert that:
- They have a characteristic protected from discrimination under the Human Rights Code;
- That they have experienced an adverse impact with respect to the service; and
- That the protected characteristic was a factor in the adverse impact.
Once prima facie discrimination is found, the burden shifts to the respondents to justify the conduct or practice.
There was no dispute that Jeffrey’s disability was a characteristic protected under the human rights code and that Jeffrey suffered adverse effects as a result. The school district was undeniably under financial constraints, however, as the school district undertook no assessment of alternative measures to accommodate special needs students its conduct was not justified. Further, some discretionary cutbacks were made while others, such as the Outdoor School, were not. Systemic discrimination was held to be an important factor in establishing a human rights complaint, but it was too remote to determine in this case. The Court held the claim should be centered on the individual, Jeffrey.
The Court disagreed with the use of the comparator analyses made by the lower courts. It was held that comparing Jeffrey only to other special needs students did not allow full consideration as to whether or not he had genuine access to the education all students in British Columbia are entitled to. Further, this method risks perpetuating the very disadvantage and exclusion of special needs students from mainstream society that human rights codes intend to remedy.
Held, the appeal was allowed in part as discrimination was found by the school district against Jeffrey Moore in violation of section 8 of the British Columbia Human Rights Code.
The Supreme Court of Canada allowed the Tribunal remedies of reimbursement of tuition costs and damages for pain and suffering, but overturned the Tribunal's systemic remedies against the school district and province.
Traditional Natural Law Theory: Law for the Common Good
Natural Law theorists believe that there is a source of law that exists separate from human creation and can be accessed by use of reason. Natural Law theory purports that human beings can use their rationality to discover what the natural law is through divine revelation, studying the order of the natural word, or by studying human nature. The source from which Natural Law emerges is thought to be unchanging and universal, therefore it follows that Natural Law itself is always the same for all people in all places at all times. Natural Law theory views law as being inherently and necessarily intertwined with morality. A law which is not objectively, morally good will not be considered a valid law by Natural Law theorists. The Natural Law position demands that law must intend to achieve an end that is objectively good and rationally defensible. In order for Natural Law theorists to accept a law as valid, it must be aimed at a moral objective. Therefore, Natural Law theorists have adopted the maxim: "an unjust law is no law at all". The Natural Law view is that if a law is unjust, then it is not genuine, and so we do not have a general moral obligation to obey it. St. Thomas Aquinas explores Natural Law theory and describes law as "nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated". According to Aquinas, in order to be valid a law must:
- 1) pertain to reason;
- 2) be directed to the common good;
- 3) be made by a valid lawmaker; and
- 4) be promulgated.
Application to Moore v. British Columbia (Education)
In Moore, the law that we will evaluate in terms of Natural Law is Section 8 of the British Columbia Human Rights Code which states:
- Discrimination in accommodation, service and facility
- 8 (1) A person must not, without a bona fide and reasonable justification,
- (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
- (b) 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.
- (2) A person does not contravene this section by discriminating
- (a) on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or
- (b) on the basis of physical or mental disability or age, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.
- 8 (1) A person must not, without a bona fide and reasonable justification,
Does the law follow practical reason?
For Thomas Aquinas, practical reason in regards to the law is concerned with how we ought to achieve the common good. Natural Law proposes that law itself provides the practical reason by which we can achieve universal happiness. Therefore, it follows that because Section 8 directs us to action and establishes what is considered reasonable, it provides the necessary steps towards satisfying the common good. Section 8 conveys that discrimination without reasonable justification is not tolerated and provides the practical methods for coming to the conclusion that discrimination exists in any specific case. In order "to demonstrate prima facie discrimination [under Section 8], complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under the human rights statutes. If it cannot be justified, discrimination will be found to occur (paragraph 33)". Section 8 provides the process that is required to establish a finding of discrimination and eliminating discrimination from our society will in effect promote the common good. This methodology conforms to the practical reason that is necessary to satisfy the first condition in order to be considered valid law under the Natural Law theory perspective.
Is the law directed toward a common good?
The purpose of Section 8 in the context of Moore is to protect individuals in society from being discriminated against. Where it can be proven that an individual has been denied a service due to their disability, and that service is customarily available to the public, it is deemed contrary to Section 8 of the Human Rights Code. A law that serves to protect human rights is undoubtedly embodied with the promotion of the common good because it aims at enforcing equality. Natural Law theorists like Thomas Aquinas submit that happiness is the common goal of all humans. Discrimination by definition has the effect of treating humans unequally; those who are made to feel unequal may see themselves as inferior, which could reasonably manifest significant degrees of unhappiness for those who are discriminated against. Attaining the common good is not concerned with determining what is good for certain people, but rather that which is good for the entire community. The happiness of the whole can be attained by adhering to the common good, which serves the best interest of all members of a community. Since the aim of Section 8 is to promote and enforce equal opportunity and fair treatment for all, Section 8 serves to secure that which promotes happiness for the whole community. The School Act which was in effect in the case of Moore stated 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) . The intention of this provision is indisputably directed at the common good because it aims at creating a healthy democracy and economy, it follows that any law which serves to protect and maintain that intention is itself a proponent of the common good. In Moore, Section 8 provides protection and remedy from being discriminated against on the grounds of being denied special education. Education is a vital tool in the pursuit of the common good and societal happiness. Indeed, "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" (paragraph 39). The goal of improving society through education is in itself directed towards the common good. Discrimination is unjust; therefore, a law which serves to eliminate discrimination would be directed towards rectifying that injustice by virtue of adhering to the common good.
Is the law made by a valid lawmaker?
Natural Law theory sees the valid lawmaker as the representative source which governs the whole community. The ruler of a community holds their position by reason of the natural order and therefore is naturally fit to rule. In British Columbia, the law is created by the legislature, which is comprised of members who are elected by the community. In as much as Thomas Aquinas was not an advocate of the democratic government, he would likely concede to the fact that the legislature is the most appropriate lawmaker we have available in the case at hand. As the legislature is chosen by the community to represent the best interest of the whole, it would satisfy the Natural Law condition that law be made by a valid lawmaker.
Is the law promulgated?
Promulgation of the law is concerned with making the law written and known to the public. According to Thomas Aquinas, a law which is unknown to the community cannot be expected to be obeyed. Viewed through the lens of Natural Law, it is an essential component of justice that a valid law be promulgated because it is a necessary condition for the law to obtain its force. As Section 8 is embodied within the Human Rights Code of British Columbia, it is written and available to the public. The entire community can come to know and access this law which protects against discrimination, and as such, it satisfies the promulgation condition which is required to be considered valid law in light of the Natural Law theorists position.
Thomas Aquinas would likely agree with the decision in Moore because Section 8 satisfies all of the necessary Natural Law conditions to be considered valid law and its purpose is to eliminate situations of societal discrimination which in effect, promotes overall happiness within the community. Additionally, Thomas Aquinas would likely contend that as the law against discrimination is aimed at an objectively moral goal of creating fairness and equality, it adheres to the desire of Natural Law theorists to achieve the common good. Therefore, as Section 8 is valid law, Thomas Aquinas would submit that we are compelled to obey to it. A Legal Positivist would likely agree with this decision in Moore as well because utilitarianism is concerned with maximizing pleasure and happiness for the greatest number of people and so it can be thought of as attaining towards the common good of the community. That is, the common good can be achieved by maximizing pleasure and happiness for the greatest number of individuals.
Legal Positivists believe that laws may have moral content, however morality is neither innate nor necessary to law. The positivist response rejects the concept of moral good and considers law more as a matter of social convention. The law tells us what we can and cannot do. This section will analyze and apply the views of John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz.
John Austin viewed a valid law as a law that "must be a command issued by superiors to subordinates and backed by sanctions". Austin holds that only valid law enforces a moral obligation on citizens to follow the law. Austin labeled "the sovereign" to be a creator of the law and common superior. Overall Austin categorized laws into three categories; Gods law, positive morality and positive law. In applying John Austin’s variation of legal positivist theory to the modern Supreme Court of Canada case of Moore v. British Columbia, the first thing that must be considered is whether the benefit being claimed in the case would be positive law or positive morality. The Court specifically said in Moore that education and the accommodation the plaintiff was seeking to achieve a public education was a benefit that was specifically guaranteed by the law. The Supreme Court of Canada made the distinction between general and special education. Stating that, “the answer, to me, is that the ‘service’ is education generally. Defining the service only as ‘special education’ would relieve the Province and District of their duty to ensure that no student is excluded from the benefit of the education system by virtue of their disability” (Moore v. British Columbia (Education), 2012 SCC 61,  3 S.C.R. 360, para 29). It was clear that it is not an extra or special service that was at issue but the general education measures that must be adequate to ensure meaningful access for all students. In the eyes of Austin then, the benefit being claimed by the plaintiffs, if there was a benefit to be found, would fall into the category of positive law, not positive morality. Austin would have agreed with the decision that British Columbia Educational system denied Jeffrey access to the general education available to the public in British Columbia based on his disability. Austin would support that to meet society’s changing and special needs, the law must protect the individuals that are allocated public needs. Positivists believe that the separation of law and morality is a major aspect of law. The fact of the matter here is that the right of a general education to all children in BC are specifically provided by law. It is not a moral argument that children with disabilities be accommodated to receive this benefit.
Legal positivism in Hart's view the authority is derived from custom. Hart states, “the law is only valid when it is actually enforced by officials and practice and recognized by society”. Hart categorizes laws into primary and secondary rules. Primary rules delegate what people can and cannot do. Secondary rules are rules that govern the political system. Additionally, they provide an outline through which laws are determined and can be changed. The Charter of Rights and Freedoms and the Criminal Code gives us primary rules, where as judicial decisions give rise to secondary rules that can provide the flexibility in the law. In the case of Moore, we are dealing with the Human Rights Code, which is a source of primary rules.
Jeremy Bentham believed that the Law should be founded on the principle of utilitarianism and not on the foundation of morality. The idea of utilitarianism is the belief that law is right if it is useful and of benefit to the majority of society. Basically the idea of the greatest amount of good for the greatest number of people. Bentham would examine a law by looking at whether it maximizes utility. Bentham would argue that the decision requiring service providers to make their services accessible to persons with disabilities falls under the social utilitarian aim, as it is meant to provide a equality of education for all public students in British Columbia. As a result of the case all school districts must proactively budget to provide programs that ensure the rights of students with disabilities to accommodation are included. By requiring the level of accountability to provide an equal benefit for all students to the education system, Bentham would likely argue that this furthers social utility because students with disabilities are getting adequate school education and this is a greater good for all of society. According to Bentham’s perspective, there would be a high utility in ensuring that all students with disabilities across Canada face the same services in the public education system. As the Supreme Court of Canada stated “risks perpetuating the very disadvantage and exclusion from mainstream society the Code is intended to remedy” (Moore v. British Columbia (Education), 2012 SCC 61,  3 S.C.R. 360, para 31). Bentham would again say that the definition of the general education is another step towards the utilitarianism approach. Greater education attention would be something that Bentham would consider an adequate utilitarian aim. On the other hand, Bentham may look at this case as an individual seeking special treatment using up public resources. It could be arguable whether using public education resources in this way would further the greater good for the greatest number of people.
Raz views Law as the ultimate authority. The Law holds the right to tell subjects what they can and cannot do. Although Raz viewed Law as the ultimate authority, he still believed a question must be asked; “is the law justified and does this law confer a benefit on society?” The School Act ensures that children of BC can achieve an public education. It does not directly handle the behavior of people however ensures education to individuals.
Positive law theorists would suggest that law is valid when a superior issues a command to an inferior that is backed by a sanction. In Moore, the superior that issued the command would be the legislature, which codified the command in the Human Rights Code. In this case the sanctions specifically laid out in the Administrative Tribunals Act, would apply to the services that without reasonable justification discriminates against a person regarding any accommodation, service or facility customarily available to the public. The impugned school districts policies, then, would meet the positivists’ test of a valid law.
H.L.A. Hart's Separation Thesis
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.
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.
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.
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 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. Basically, it follows that judges should follow an accepted strategy and logic that is consistent to “find” the law, or the acceptable outcome.
Examples 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.
Lon Fuller and Criticisms of Separation Theory
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.
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. Without them, 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.
Fuller also suggest that separation theory and legal positivism do not address immoral laws. He suggest that there is no coherent idea of when one should follow a law or chose not to if if defies his morals. In his view, there is no answer to the greater conceptual problem of balancing the conflicting obligations. 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.
Lastly, Fuller does not find the reasons under positivist theory of what obliges people to follow laws as adequate. Fuller suggest that the rational element of coming to logical decisions is in effect an attempt at directing those decisions towards what is "right" or "good".
Analysis of Moore v. British Columbia (Education)
In this case at hand, there is 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, which is intended to direct the general public with how to conduct themselves as a whole: it states plainly that a person must not discriminate against a person or class of persons regarding any accommodation, service or facility 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.
Hart theorized that legal rules could be categorized in two ways: There are primary rules, which represent the 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 what they intend. When factual situations skirt the boundaries of this core, the Penumbra appears. There are then secondary rules: these are set for officials and judges to direct how the operation of the primary rules should be carried out and interpreted. Secondary rules allow judges to decide how to deal with uncertainty about what the law prescribes, or how to flex rules that are overly rigid and how to come up with solutions in disputes.
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. Secondary rules are used by the courts 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 simple decide on a subjective analysis of the legislation. Instead, the analysis is focused on the legal test (a secondary rule):
Prima Facie discrimination is found when complainants can assert that:
1. They have a characteristic protected from discrimination under the Human Rights Code;
2. That they have experienced an adverse impact with respect to the service; and
3. That the protected characteristic was a factor in the adverse impact.
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.
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.
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.
System Of Rights and Principles
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.
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.
Dworkin’s Rules and Principles
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.
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.
Analysis of Moore v British Columbia
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.
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.
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.
Judicial Decision as Chain Novel
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.
Liberty and Paternalism
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.
There are several valid justifications for a law’s restriction of liberty:
- The Harm Principle
The harm principle allows the restriction of individual liberty by law if it promotes the prevention of serious harm towards others in society.
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.
- Legal Moralism
Legal Moralism allows the restriction of individual liberty by law where the individual’s actions undermine societal morals and values.
- The Offence Principle
The offence principle allows for the restriction of individual liberty by law if it ensures that the sensibilities of others are not unduly offended.
John Stuart Mill and Liberty
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.
Mill notes the concept of liberty itself sets limits on authorities through:
- Political Liberties or Rights
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.
- Constitutional Checks
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.
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.
Tyranny of the Majority
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.
Exceptions to the Rule of Liberty
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.
Gerald Dworkin and Paternalism
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.
Dworkin introduces several other justifications for limits on liberty:
- 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.
- 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.
Contrasting Liberty and Paternalism with Other Theoretical Treatments
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.
Application of Liberty and Paternalism to Moore v. British Columbia (Education)
Liberty and a System of Rights
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.
Protection of Children Under Liberty
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).
Application of the Harm Principle as Justification for Limits on Liberty
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.
Application of Paternalism as Justification for Limits on Liberty
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.
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).
Law and Economics: Law as Efficiency
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. 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.
Application to Moore v. British Columbia (Education)
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. 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.
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. 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.
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. 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.
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. 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.
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. 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 and Justice McLachlin, agreed that this was discriminatory and allowed for the appeal. McLachlin C.J stated that the finding of discrimination against the District is restored and that s.8 of the BC Human Rights Code was violated by the school districts actions.
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. 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 no 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.
Marxist/Socialist Feminist Perspective
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. Examining this case from a Marxist-socialist feminist perspective, Marxist feminist would likely focus on the fact that 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,  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.
Relational Feminist Perspective
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.
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,  3 S.C.R. 360, para 31). Thus a postmodern feminist would support Mclachin’s analysis of Moores circumstance on an individual basis.
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.
Citations Human Rights Code, R.S.B.C. 1996, c. 210. Moore v. British Columbia (Education), 2012 SCC 61,  3 S.C.R. 360.