LEGAL PERSPECTIVES CAN WINTER 2015

Transcription

1 LEGAL PERSPECTIVES CAN WINTER 2015 Sabrina Avery T Thompson Rivers University Faculty of Law

2 PART I: INTRODUCTION 5 INTRODUCTION 5 Why Care About Perspectives/Philosophy of Law Stanley Fish, Teaching Law 5 THE RULE OF LAW AND THE PURPOSE OF THEORY 5 8 Ingredients of the Rule of Law Tom Bingham, The Rule of Law 5 Reference Re Secession of Quebec 6 ALLAN HUTCHINSON Alan Hutchinson, Looking for the Good Judge, Merit and Ideology 6 Merit and Ideology 6 What do Good Judges Do? 6 Values & Activism 7 Moving Forward 7 Liberalism and Reform Theories 7 [Roy Romer] Government of Colorado et al v. Richard G Evans et al (1996) 8 PART II: LAW, MORALITY AND TRADITIONAL LEGAL THEORIES 9 SOCIAL CONTRACT THEORIES 9 HOBBES Ian Ward, Introduction to Critical Legal Theory 9 Summary of Theory 9 Context 9 Human Nature 9 Good Government 9 Contract and Covenant 10 LOCKE Ian Ward, Introduction to Critical Legal Theory 10 Context 10 Government 10 Liberty and the Social Contract 11 The Challenge of Political Economics 11 SOCIAL CONTRACT THEORY IN THE SCC 12 Sauve v Canada (Chief Electoral Officer) 2002 [SCC] 12 Case Reflection Questions 12 MORAL PHILOSOPHY: DEONTOLOGY AND UTILITARIANISM 13 UTILITARIANISM Murphy & Coleman, Philosophy of Law: An Introduction to Jurisprudence 13 General 13 Jeremy Bentham An Introduction to the Principles of Morals and Legislation 13 Critique of Utilitarianism 13 KANTIANISM Murphy & Coleman, Philosophy of Law: An Introduction to Jurisprudence 14 General 14 Utilitarianism vs. Kantianism on Slavery 14 NATURAL LAW THEORY 15 Key Themes/Summary R. Devlin 15 Common Critiques R. Devlin 15 Key Questions of Natural Law Theorists 15 TRADITIONAL NATURAL LAW THEORY Brian Bix, Natural Law Theory 15 Aquinas 15 Aquinas on Natural Law 15 Answering the Key Questions 16 MODERN NATURAL LAW THEORY Brian Bix, Natural Law Theory 16 Lon Fuller 16 Fuller on Natural Law 16 Answering the Key Questions 16 Eight Principles of Legality 17 On the Principles of Legality 17 The Story of Rex Lon L Fuller, Eight Ways to Fail to Make Law 17 Critique of Fuller 18 Finnis J.M. Finnis, Theoretical Studies of Universal Values and the Basic Forms of Human Good 18 Finnis Theoretical Studies of Universal Values 18 Answering the Key Questions 19 Page! 2 of! 56

3 Finnis on Theoretical Studies of Universal Values 19 Finnis on the Basic Forms of Human Good 19 Critique Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory 20 Critique of Practical Reasoning 20 Four Main Critiques of Finnis Basic Forms 20 LEGAL POSITIVISM 21 General R. Devlin 21 The Radicalism of Legal Positivism Brian Leiter, The Radicalism of Legal Positivism 21 JOHN AUSTIN Denise Myers, Understanding Jurisprudence 22 Command Theory 22 Hart s Criticism of Austin s Command Theory 22 HART Denise Myers, Understanding Jurisprudence 23 Three Elements of Legal Obligations 23 Primary and Secondary Rules 23 Importance of Primary and Secondary Rules 23 The Core and the Penumbra HLA Hart Positivism and the Separation of Law and Morals 24 KELSON Denise Myers, Understanding Jurisprudence 24 General 24 What Establishes the Law 24 Kelson s Grundnorm vs. Hart s Rule of Recognition 25 LEGAL REALISM 25 General R. Devlin 25 Legal Realists and the Law Hanoch Dagan 26 The Normative Project, Critique of Formalism and Reconstruction 26 The Normative Project Hanoch Dagan 26 Critique of Formalism Hanoch Dagan 27 Reconstruction Hanoch Dagan 27 Legal Realism at the Supreme Court of Canada 28 Willick v Willick, [1994] 3 SCR Canada (Attorney General) v PHS Community Services Society, 2011 SCC PART III: LAW, POLITICS, AND CONTEMPORARY LEGAL THEORY 30 LIBERALISM 30 General R. Devlin 30 Three Main Principles of Liberalism 30 The Law s Two Purposes Law Should Protect Core Values or Principles The Law Should Protect the Private Sphere 31 Liberalism and Choice 32 Debates within Liberalism 32 (1) The Individual vs. The Community 32 (2) Defining Fundamental Rights 33 (3) How do we Achieve Substantive Equality in a Liberal Framework? 33 Luck Egalitarian Theories (The First Wave) 33 Recognition Theories (The Second Wave) 34 CRITIQUE Michael Sandel, Liberalism and its Critics 35 Robert Nozick 35 LIBERALISM IN THE SCC 35 R v Labaye (SCC 2005) 35 Reflecting on Labaye 35 LIBERALISM APPLIED: EQUALITY RIGHTS 36 Marrows v Zhang, (2009 ABCA) 36 LAW AND ECONOMICS 37 The Economic Approach to Law Thomas Miceli, Introduction to Concepts 37 Law and Economics as a Good Match James Boyd White 37 Four Main Features of the Law and Economics Approach 38 Positive and Normative Analysis Thomas Miceli, Introduction to Concepts 38 Why Efficiency is Good Thomas Miceli, Introduction to Concepts 39 Page! 3 of! 56

4 When is an Outcome Efficient? Thomas Miceli, Introduction to Concepts 39 CRITIQUE 40 The Economic Approach Joseph Singer, Normative Methods for Lawyers 40 Singer s Four Critiques of the Economic Approach Joseph Singer 40 The Landlord/Tenant Example Joseph Singer 41 CRITICAL LEGAL STUDIES 42 General 42 Ideas Challenged by CLS Raymond Wacks, An Introduction to Legal Theory 42 Law and Critical Legal Studies Raymond Wacks 42 Relationship Between CLS and Legal Realism Raymond Wacks 43 CLS Critique of Modern Society 43 Hegemony Dougles Litowitz, Gramsci, Hegemony, and the Law 44 LAW SCHOOL 44 Law School and Liberalism Duncan Kennedy, Legal Education as Training for Hierarchy 44 Rationality of Law Students Aaron S Haas, The Rationality of Law Students 45 CRITIQUE OF CLS Raymond Wacks 46 General 46 Postmodern Critique of CLS Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory 46 POSTMODERNISM 46 General R. Devlin 46 Taxonomy Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory 47 Postmodernism vs CLS 47 THE CHAIN NOVEL Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature 47 Dworkin s View Stanley Fish 47 Fish s Criticism Stanley Fish 48 CRITICAL THEORIES 49 CRITIQUE OF LIBERAL PRINCIPLES 49 Critique of the Universal Neutral Principle Stanley Fish, Taking Sides 49 Fish s Proposal Stanley Fish, Taking Sides 49 FEMINIST LEGAL THEORIES 50 General R. Devlin and Margaret Davies 50 Feminist Meta-Narratives of Law Margaret Davies, Unity and Diversity in Feminist Legal Theory 51 General 51 Liberal Feminism Davies 51 Radical Feminism Davies 51 Difference Feminism Davies 52 Critiques of Essentialism Davies 52 Postmodern and Queer Feminism Davies 52 Race and Feminism Davies 53 Debates within Feminist Legal Theory Davies, Unity and Diversity in Feminist Legal Theory 53 Equality and the Charter Judge Fudge, The Canadian Charter of Rights 54 ABORIGINAL LEGAL THEORY 54 General R. Devlin 54 Aboriginal Peoples, Colonialism, and the Courts Gordon Christie 55 General 55 Justification of the Colonial Narrative 56 St Catharines Milling 56 After St. Catharines Milling 56 Page! 4 of! 56

5 PART I: INTRODUCTION INTRODUCTION Why Care About Perspectives/Philosophy of Law Stanley Fish, Teaching Law - Laws cannot be adequately understood as a mere collection of rules; understanding the law required more than the mere memorization of those rules - Law is not static material discussed in this course will help us to understand why the law is as it is, how and why laws are implemented and/or interpreted by actors in the legal system in particular ways and how/why the law could and should change - Legal theorists in conversation with one another across time responding to one another and the world in which they live - Knowledge of what is at stake in law will improve the effectiveness of law - Legal theory is important for the practice of law in order to know what the state can do to the citizen and for the citizen - We must have some understanding of the purpose not just to articulate an argument, but to understand that other values are at stake including freedom and justice etc. (if you do not consider these values your arguments will fail) Normative and Descriptive Law - Central theme of jurisprudential research and contentions is their division into two types, (1) what law is (descriptive) and (2) what law ought to be (normative). - The descriptive approach gives rise to questions about what law consists of as a concept, what are the sources and validity of law. And about its relationship with moral precepts. - The normative approach is concerned with the provenance, content and place of moral precepts. It is purposive. THE RULE OF LAW AND THE PURPOSE OF THEORY The principles of the rule of law suggests that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the Courts (Tom Bingham) 8 Ingredients of the Rule of Law Tom Bingham, The Rule of Law 1. The law must be accessible and so far as possible intelligible, clear, and predictable 2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion 3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation 4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably 5. The law must afford adequate protection of fundamental human rights 6. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable tor solve Page! 5 of! 56

6 7. Adjudicative procedures provided by the state should be fair 8. The rule of law requires compliance by the state with its obligations in international law as in national law Reference Re Secession of Quebec - The principles of constitutionalism and the rule of law lie at the root of our system of government - The rule of law, as observed in Roncarelli v Duplessis, is a fundamental postulate of our structure - At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable, and ordered society in which to conduct their affairs - it provides a shield for individuals from arbitrary state action - The rule of law provides that the law is supreme over acts of both government and private persons - there is in short one law for all - The rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order (normative order = bigger frameworks such as freedom of speech and democracy) - Important contrast to Bingham in that he does not discuss more normative notions in his original definition; only later does it come up - The exercise of all public power must find its ultimate source in legal rule ALLAN HUTCHINSON Alan Hutchinson, Looking for the Good Judge, Merit and Ideology Allan Hutchinson has been influential in critical legal studies. In this article, he focused on judicial appointments to the SCC Merit and Ideology - Urgent plea to ensure that issues of ideology have no legitimate place in the selection of SCC judges - For many, merit and ideology must be kept separate and apart if the legitimacy of the new judge and the SCC generally is to be protected and maintained - The prime consideration is to prevent ideology from trumping merit in the appointment of judges - Merit refers to quality of work whereas ideology refers to beliefs, values, world view, what is right - However, it is not possible to talk about ideology without talking about merit - John Roberts discusses how judges are like Baseball umpires; they call what they see and that is it - Hutchinson criticizes this idea as too simplistic - Society is constantly changing; law is a social practice and does not stay the same - Taking into account ideology will do democracy a service - There is no apolitical, neutral way of interpreting the law What do Good Judges Do? - Law is an organic hands on practice that is never complete - Technical skills will not be enough in and of themselves; they are a necessary, but not a sufficient condition of good judging - To be worthy of the highest professional prestige, they must nurture a sense of social justice and a feel for political vision - Technique without ideals is a menace; ideals without technique are a mess - So while the good judge should have technical skills in abundance (ie merit), they also need to possess a sociopolitical vision within which an on behalf of which they can deploy those technical skills (ie ideology) Page! 6 of! 56

7 - Qualities: smart, capable, understand legal technique, modesty, humility, navigating the dynamic tension, perform task with integrity, designers and innovators, sense of what the purpose is, have social vision, social artisans, take personal responsibility for their craft (not a technical process) Values & Activism Dealing with Values - Despite the critic s yearning for a simpler and more professional age, there is no purely technical and nonpolitical way to engage in a principled mode of adjudication - The fragility of their legitimacy arises not so much from their exercise of power, but more from the nagging doubts about the warrant which they wield such authority - There is no way to interpret the Charter or any other constitutional provision without resorting to contested political values Getting Active - Activism sounds as if it is something positive and purposeful; but when it is in connection with courts, many hear it only as having disturbing negative resources, uppity, illegitimate, and uncontrolled - Judges expected to tread a sharp line between appropriate legal interpretation and inappropriate political intervention - Whether we like it or not, judges cannot avoid making political choices; therefore we must be honest about them and recognize the values and beliefs in order to legitimize those institutions. - In general, those decisions which promote greater equality (ex gay rights, aboriginal land claims etc) are dismissed as activist and illegitimate, whereas those which defend greater liberty (ex election spending, male property rights etc) are showcased as valid exercises of judicial authority - The judge has to be supportive of democracy - When the judge makes one decision that is not in line with other views then it is activism/subjective, but if they are in line with the other views that it is seen as an objective decision - Thus, Hutchinson contends that the problem is not ideology but rather the denial of ideology Moving Forward - The upshot of the merit-ideology debate is that, when we select judges, we should pay attention to their values, not try to ignore them - One of the better ways to achieve that is by way of judicial appointments through a democratic process (ie independent commission) - Criticized that this would be a weak or even dangerous reform; however such a politically charged process will not contribute to a greater politicization of the judiciary since judges are already a thoroughly political group - It will instead bring those politics into public view and render the more available for public scrutiny Liberalism and Reform Theories - When the traditionalists try to perform their objective legal analysis they must decide between competing precedents - Liberal legalism: a separation of morals, politics, and personality from legal action - Hutchinson believes this is a crisis - Pragmatism and constitutional dialogue theory (both liberal reformers) attempt to address the issues that liberalism is dealing with from both sides - Constitutional dialogue theory = dialogue between judiciary and legislature Page! 7 of! 56

8 - Start to acknowledge that there is a bit of a celebration of values and ideologies of judges in certain contexts - After this, the issue becomes; to what extent can judges bring in their preferences or rely on their values? - Hutchinson is on critical side and is not satisfied with the liberal reformers - It is not satisfactory because he says that they can sometimes be subjective and sometimes not - They are also still liberal and rely on illegitimate views that courts are going to intervene and regardless if values can come in, they are still intervening. - These theories are still still elite and not doing service to democracy - Constitutional dialogue is undemocratic and reinforces the elitist notion that courts get to decide [Roy Romer] Government of Colorado et al v. Richard G Evans et al (1996) F: Before a Colorado referendum, several municipalities in Colorado had passed laws extending the protection of discrimination on the basis of sexual orientation. Municipal laws prohibiting discrimination which they included sexual orientation in. The legal issue that prompted the question in the referendum was whether special legal protection should be given on the basis of sexual orientation to homosexuals. 46% of people said yes. Colorado then passed the amendment to the constitution prohibiting sexual protection for homosexuals. The US constitution does not mention homosexuality. I/C: Does the amendment violate the US constitution? YES, majority made analogies between race and distinguished previous cases where laws targeting homosexual conduct had been upheld; the amendment was about the homosexual person and thus why it is different A: [Scalia Dissent] No principle set forth in the Constitution, nor even imagined by this Court in the past 200 years, prohibits what Colorado has done here. The amendment does not prohibit giving favoured status to people who are homosexuals; they can be favoured for many reasons (ie as senior citizens); But it prohibits giving them favoured status because of their homosexual conduct. The people of Colorado have adopted an entirely reasonable provision which does not even disfavour homosexuals in any substantive sense, but merely denies them preferential treatment. Look at this case in respect to democracy, the rule of law, and judicial activism. Democracy: The majority decision is anti-democratic because the Courts decision overturns the decision of the people who voted in the referendum; issue of judicial restraint; the judges should not be intervening in the will or the decisions of the majority; the majority decision is profoundly elitist and represents an elitist view of homosexuality; the majority used precedent in an unfounded that produced absurd results. Judicial activism: majority made a political decision/a choice of values; striking it down is an act, not of judicial judgement, but of political will the Courts should not take sides in culture wars and they should be politically neutral; they should not have a stake in the outcome. Rule of Law: It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and our own Constitution s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seeks its assistance. However, this singling out of sexual practices of a single group for statewide democratic vote (so utterly alien to the constitutional system as the majority would have us believe) has not only happened, but has received the explicit approval of the US Congress (polygamy). Objectivity and values: Consider how Hutchinson said that there is no such thing as objectivity and values always come in play; but he also says that when the traditionalists try to perform their objective legal analysis they must decide between competing precedents. This case is a situation where the court is deciding between competing precedents. There will come a time where this must occur and their subjectivity/ perspective/values will become relevant. The polygamy discussion seems to be determinative of an outcome with large social implications. Furthermore, the court determined that the analogy between homosexuality and polygamy was reasonable, but the analogy between homophobia and racism is unreasonable. Decision on the analogy involves some of his own subjectivity on what he believes as choice such as homosexuality and polygamy versus what is not (race). Perception plays into his redderick around democracy and American values. Page! 8 of! 56

9 PART II: LAW, MORALITY AND TRADITIONAL LEGAL THEORIES SOCIAL CONTRACT THEORIES HOBBES Ian Ward, Introduction to Critical Legal Theory Summary of Theory - Hobbes sought to argue that society would only achieve stability if citizens ceded their rights and liberties to an absolute sovereign who protected their life liberty and property - Once the sovereign was unable to achieve this aim, society reverted back to a statute of nature or perpetual conflict Context - England experiencing a struggle between the monarchy and parliament - The turmoil of the times convinced Hobbes that only a strong central government could secure the safety and well-being of the people - Hobbes position was not a monarchist and supported the New Republic; hired by the NR to consider constitutional issues - Although there was to be no constitution, Hobbes published Leviathan as an attempt to provide some sort of constitutional legitimation for the Republic - Struggle about whether the law should be supreme over constitutional power, or whether the sovereign should be supreme over law (which Hobbes argued for) - He was a secularist; the idea that monarchy was not divine but the source of morals and politics should not come from religion - Looked at what science could bring to government and that is why he is considered the father of political science Human Nature - The first part of Leviathan is devoted to exploring the character of man of which has two general inclinations; self preservation and to exercise power - Hobbes refers to appetites and aversions, the desire for certain things, such as power, and the dislike of others such as pain and death - What we know from human nature must be derived from what we observe and not what comes from god - From his observation of human nature, Hobbes concluded that people will be in perpetual conflict unless they are subject to a supreme political authority - Individuals on the whole have equal strength; thus, every person will lay claim to everything including the control of other persons and the result will be war among individuals and hopeless misery - In this way, human nature is rooted in fear of pain, suffering, losing your life, inclinations towards self preservation, desire to exercise power (linked to fear because it exists in fear that someone else will have more of it) Good Government - Effective government depends upon effective sovereign power Page! 9 of! 56

10 - At the very core go Hobbes thesis in Leviathan is that government is simply a matter of effective power and law is merely an instrument of this power; good if effective, bad if ineffective - Effective government will protect people from this state of nature (warfare, instability etc) and by extension is the purpose of law - It has to be secular and have absolute power - The sovereign is indeed part of constitutional order, but could not be limited by it - Democracy is a limit on government and therefore it is a threat the ultimate protection from the state of nature - The constitution/body of law must be connected to a unitary effective sovereign - You have to have effective control of your jurisdiction; a foundational concept of how we still think about our state and sovereignty Contract and Covenant - In order to move out of the state of nature, individuals must establish a common power to keep them all in awe - Such a power is established by contract and covenant - The idea of the social contract was not distinct to Hobbes, but the most individual to his work was that it was not used to empower the individual but rather to underline his or her powerlessness subject to sovereign authority - In leaving the state of nature to form government, we leave behind all of our liberty, autonomy, and freedom by contracting together to transfer our rights and autonomy to this common power (the sovereign) by covenant so that we all will be controlled/governed equally - In short, all individuals contract together to transfer their natural rights, and they covenant these collected natural rights to a designated sovereign - The contract is recognition of humanity s need to make such sacrifices in the social situation - If the sovereign fails to perform, then the contract is broken - Your obedience to the sovereign is therefore not absolute - Justice is defined as performing the obligations (ie peace) of the contract LOCKE Ian Ward, Introduction to Critical Legal Theory Context - A generation after Hobbes; another social contractarian - Shared Hobbes s underlying scepticism - Like Hobbes he turned to science and metaphysics - Locke liked the middle class and liked to think of himself as one of them - Was trying to justify the idea that law should rule the sovereign and that law should be superior to the monarchy - Like Hobbes he argued against rule by the monarch, and supportive of the idea of rule by the republic; however he has a strong democratic theory - Idea of human nature also similar to Hobbes; however not a self preservation redderick but defined by similar qualities Government - Government is only justified in so far as it facilitated individual autonomy - Locke shared Hobbes s belief that without government humanity would remain in a state of nature, but unlike Hobbes, Locke did not see government as some sort of necessary evil - The government, being created by humans, comes after the existence of our individual natural rights - Property is one of the most important human rights Page! 10 of! 56

11 - Looks at government in terms of the ability to achieve security and peace, but believes that it is also about securing happiness (ie limited government control in ones life, economic success, freedom of religion) - Certain elements of his views fit well with certain values associated with capitalism - The government is there to produce happiness, and justice is defined by whatever it is that creates happiness (as well as peace and stability like Hobbes) - There must be a separation of powers between the legislative, executive, and judicial arms of the constitution; these arms will serve to check one another and to effect the long desired ideal of mixed or balanced government - Locke stressed that government is not itself natural (unlike Plato) Liberty and the Social Contract - Locke published his Two Treaties of Government in The second treatises presented an alternative true origins of government at the core of which lies the social contract - However, Locke s contract is very different from Hobbes in that it vests power in the community not in the sovereign body, and so the power of Parliament, entrusted by the community, remains held on trust alone and is limited accordingly - Government must always move with the dictates of the majority; such is the essence of democracy - If the government does not respond then the people have the power to remove the government; this is not a threat to society as it was for Hobbes who viewed it as social chaos - Government is responsible to respect the will of the majority and individuals in exchange are responsible not to take up arms against the government (cause war) and to be a good citizen and participate in the polity - Liberty in the social contract - Hobbes said we only have as much freedom or liberty as we are willing to give to another person - Locke s articulation of liberty says that individuals have the liberty to appeal to the people and advocate for a change in government - One of the functions of government is protect the private sphere and individual liberty - Locke is criticized as being a communitarian utilitarian; the maximum freedom of the individual should be limited only when necessary for the wider utility of the community The Challenge of Political Economics - For Locke, property is a matter of natural right and precedes subsequent political institutions or laws - Property is superior to law and law is only justified in so far as it protects and does not threaten these natural rights - Property rights underpin political rights, and political rights serve to illustrate and preserve property rights - The natural right to property founds the political right to liberty, for if we own things we experience liberty - We all have property in possession of our own bodies - The labour mixing their; our right to possess something comes from our work upon it, for its labour indeed that its the difference of value on everything - Political economy is the primary threat against social and political order - Fixed property rights found the constitutional order, and they alone - The civilized community has a primary duty to protect property against the ravages of the political economy - By consenting to the idea of political economy, man has consented to unequal possession Page 11! of 56!

12 SOCIAL CONTRACT THEORY IN THE SCC Sauve v Canada (Chief Electoral Officer) 2002 [SCC] F: This case is an appeal from a judgement of the Federal Court of Appeal. The issue was the constitutionality of s.51(e) of the Canada Elections Act which denied the right to vote to all inmates serving sentences of two years or more. S.3 of the Charter provides that every citizen has the right to vote. Social contract theory of democratic legitimacy was used by both the majority and the dissent in this decision A: [Majority] Denying inmates the right to vote is unconstitutional because it denies the basis of democratic legitimacy and the rule of law. The state is only legitimate if the individual is voting. The legitimacy of the law and the obligation to obey the law flows directly from the right of every citizen to vote. There is a theoretical and practical connection between having a voice in making the law and being obliged to obey it. This connection, inherited from social contract theory and enshrined in the Charter, stands at the heart of our system of constitutional democracy. Denying a citizen the right to vote denies the basis of democratic legitimacy; it says that delegates elected by the citizens can then bar those very citizens from participating in future elections. The right to vote exists despite any distinguishing feature. The governments authority is derived from the right to vote, so it cannot then use that authority to limit the right to vote. [Dissent] Permitting the inmates to vote would undermine the rule of law because they should disrespect for the community and the law. Respecting the rule of law is a requisite for democratic participation. Part of the rule of the law is promoting the rule of law; thus the justification for taking away the right to vote by showing that it is not okay to disobey the rule of law. Such persons have attacked the stability and order within the community. Respect for the rule of law will allow us to have these other rights (such as voting). We can curtail the right to vote because individuals have violated the social contract and their responsibility to the community to follow the law. Rehabilitative view that those who are incarcerated will hope and expect to regain the exercise of vote when they are released. Obtaining the vote once released is a recognition of regaining the nexus with the community that was temporarily suspended during incarceration. Case Reflection Questions Does the majority opinion mirror Hobbes or Locke? - Locke: focused on the legitimacy of the government and the will of the people - In Locke s social contract, the government must respect the will of the people (like McLachlin) - She is apprehensive to make a decision to limit the liberty of a persons right to vote (Locke: individual liberty should only be limited when it is absolutely necessary) - The will of the people, the focus on liberty and political participation Does the dissent opinion mirror Hobbes or Locke? - Hobbes - The collective community makes mutual decision to forego violence and give that power to the sovereign to enforce the peace - They contract together and then convey that right to the sovereign to make decision on behalf of the community (when necessary) - Kantian; has an idea of absolute rights that cannot be limited in any circumstances - Taking away the vote as promotion of the rule of law; maintaining the peace as a means of protecting the rule of law Page! 12 of! 56

13 MORAL PHILOSOPHY: DEONTOLOGY AND UTILITARIANISM Two different moral philosophies figure prominently in Canadian legal theory: utilitarianism and deontology (or Kantianism) UTILITARIANISM Murphy & Coleman, Philosophy of Law: An Introduction to Jurisprudence General - Jeremy Bentham and John Stuart Mill - Utilitarianism is the view that the rational choice in morality is always the choice that will maximize overall human happiness or well being - Therefore, the more persons likely to be made better off by an act or practice, the better the act or practice is from the moral point of view - The greatest happiness for the greatest number or the greatest sum of everyones happiness - Look to the future and promote human welfare is the basic utilitarian advice in ethics - Utilitarianism is also built around a certain conception of reason and rational choice - The human is morally relevant because of the capacity to feel pleasure and plain - Moral choices that promote pleasure are good and those that promote pain are not - It is a mistake to claim as some critics have, that utilitarians can make no place for such important moral concepts as justice, fairness, rights, merit, or desert - What the utilitarian cannot do (does not want to do) is regard rights as having ultimate or primary or fundamental value; only utility (the promotion of general welfare) can have that - Recognize rights for instrumental reasons: rights do not have an inherent value but can be supported for what they achieve for society only as much as they promote the overall happiness/welfare - The ends justify the means Jeremy Bentham An Introduction to the Principles of Morals and Legislation - Bentham evaluated the efficacy of laws on the basis of utility - Laws which satisfied the greatest happiness of the greatest number were most effective - In this respect, he criticized the common law and proposed the codification of all laws - Bentham was convinced that a system of laws that derives its rules exclusively from commands of a sovereign authority, when measured by the yardstick of public utility, is superior to the common law system - Whereas the former produces clear, authoritative certain laws, the latter generates a cumbersome and illogical mass of precedents, that serve the interests of lawyers, but not the public - The community is a fictitious body; therefore the interests of the community means the interests of the several members who compose it - The government may be said to be conformable to or dictated by the principle of utility Critique of Utilitarianism - Utilitarians contend that the ends justify the means however the means also matter and how you get to this happiness and well being is important and morally relevant - Cannot always focus on the quality of the objective - The overall best result may be derived from the victimization of a smaller group of people - People have a right not to be hurt even if it benefits the majority Page! 13 of! 56

14 KANTIANISM Murphy & Coleman, Philosophy of Law: An Introduction to Jurisprudence General - One of utilitarianisms critics is Kant - Utilitarianism looks primarily to the promotion of desirable future consequences; Kantianism seeks primarily to constrain the means by which those consequences may be promoted - Moral actions are those that further human freedom, and immoral actions are those that limit it - Focus on the means to the desired ends; we cannot get somewhere without asking whether we have done it morally with respect for human freedom - Our freedom and autonomy allow us to make moral choices as a society - Revolts against the consumer model of human nature and efficiency model of rational choice brought up in utilitarianism - Kant s concept of rationality is clearly not a concept limited to efficient maximization of ones individual utilities - Ethics is not primarily about preference satisfaction or any other sort of positive welfare promotion; it is rather about how to respect the freedom of rational beings - It has often been said that Kant s ethics was an attempt to pursue Christianity by secular means; this is not incorrect - Like christianity, he believes that there is something uniquely special about human beings from the moral point of view - Man is an autonomous creature and autonomous creatures are morally special - Introduces the idea of dignity and that dignity arises and flows from our capacity to make choices and reason - Therefore a human s moral status is dignity Utilitarianism vs. Kantianism on Slavery Both utilitarians and Kantians support the fact that slavery is wrong (but they do not get there in the same way) Kantians - Would say they are opposed because it limits human freedom, autonomy, and exploits the individual; and the group that benefits has no right to do so - Kantians, valuing the sanctity of each person, will clearly opt for protection by an absolute right - It is always wrong to victimize and that such human being has an absolute right to be protected against such victimization - Each autonomous person is to be viewed as something more than simply a unit to be weighed or balanced in some great social equation - Kantian critique the utilitarians because slavery could still increase the greater good as it fits within the utilitarian framework; it can be justified under their system and therefore the are not comfortable with the safety of autonomous rights in their system Utilitarians - Would say that a society with slavery will be less happy, more abusive, and therefore it should be banned - The way you get to an end point matters; it is not just that you affirm a conclusion, but rather the way in which you get there Page! 14 of! 56

15 NATURAL LAW THEORY Key Themes/Summary R. Devlin - Stretches back thousands of years to Greek philosophers and has been continually revised to the present day - In legal theory, most approaches dubbed natural law can be placed into two categories, traditional and modern natural law theory - Several key themes unite diverse strands (rationalistic, Christian, natural rights ) - Claims to be universal, immutable, and objective, and to transcend any particular political or historical context - Natural law thinking is a quest for absolute values, justice, and truth - Law s validity depends on content (morality) - Natural law superior to human/positive law (and where conflict, natural law trumps) Common Critiques R. Devlin - It is not as universal as it claims to be (based more so on Judaeo Christian values of rights and wrong) - Accused of being an assertion of faith in a particular set of values rather than a demonstration of the truth of those values - It is inherently ambiguous and no variant of it has ever provided a clear set of principles which could effectively guide or constrain positive law - Its malleability; at different times and in different places it has played conservative, liberal, and revolutionary roles (ie property rights) - There is no way to know objectively what is right and what is wrong, so natural law propositions are necessarily relative and subjective - Merging law with moral criteria causes confusion when we try to understand what the law is - One of the positivists critiques of natural law theory has been that it attempts to derive an ought from is (Davies) - When we try to figure out the law it confuses us; we cannot do legal reasoning when trying to determine what is the morally correct answer (Davies) Key Questions of Natural Law Theorists (1) Does this higher form of law exist? If so, how do we know? (2) What does it consist of? (3) What are the consequences for positive law and for human behaviour? How can we reconcile it with positive law and how does it govern our own actions with respect to positive law? TRADITIONAL NATURAL LAW THEORY Brian Bix, Natural Law Theory AQUINAS Aquinas on Natural Law - There are law-like standards that have been stated in or can be derived from divine revelation, religious texts, careful study of human nature, or consideration of nature - Aquinas and he identified four types of law: (1) the eternal law; (2) the natural law; (3) the divine law and; (4) the human (positive) law - According to Aquinas, positive law is derived from natural law: sometimes natural law dictates what positive law should be Page! 15 of! 56

16 - At other times, natural law leaves room for moral choice - Positive laws are just and having binding conscience when they are consistent with the requirements of natural law, are ordered to the common good, the law-giver has not exceeded its authority, and the law s burden are imposed on citizens fairly - Failing the last 3 criteria results in unjust laws and there is no obligation for a citizen to obey an unjust law lex ingest non est lex an unjust law is not law - Natural law became the basis for individual rights and limitations on government Answering the Key Questions (1) Does this higher form of law exist? If so, how do we know? - The higher form of law exists from God/divine relation as well as intuition (it is a feeling from how we actually look at the world) (2) What does it consist of? - The content can be identified through human reason; it is about the common good, fairness, human authority (3) What are the consequences for positive law and for human behaviour? How can we reconcile it with positive law and how does it govern our own actions with respect to positive law? - Positive law is not actually law; It is only law to the extent that it is consistent with natural law - Therefore if it is inconsistent it fails to be actual law - Consequences for the people is that they do not have to follow unjust laws, however there are often moral reasons for obeying even an unjust law (for example, if the law is part of a generally just legal system, and public disobedience of the law might undermine the system, there is a moral reason for at least minimal, public obedience of the law) MODERN NATURAL LAW THEORY Brian Bix, Natural Law Theory After many years of natural law dominating, we saw the emergence of legal positivism which was a direct criticism of natural law. Modern natural law therefore rose out of a response to legal positivism. LON FULLER Fuller on Natural Law - Lon Fuller argued a sharp distinction between law and morality, but the position he defended was quite different from traditional natural law theory - If the law functions then it must be good; and the definition of a good law is the one that respects the process - Rejected legal positivism s distorted view of law as a one-way projection of authority: the government gives orders and the citizens obey - Law is the enterprise of subjecting human conduct to the governance of rules - Like traditional natural law theorists, he wrote that there had to be a threshold that must be met before something could be properly called law; however, different from traditionalists as it was one of function and not strictly one of moral content Answering the Key Questions (1) Does this higher form of law exist? If so, how do we know? Page! 16 of! 56

17 - In order to be law and amount to a legal system it must be effective - Therefore it must govern human conduct and get us to do what it wants us to do (obey the law (instrumentalism) - In order for the law to function it has to be moral and has to be a good law (by some criteria of good/moral); instrumental view with a moral lens (2) What does it consist of? - The inner morality of law: the 8 requirements described below (3) What are the consequences for positive law and for human behaviour? How can we reconcile it with positive law and how does it govern our own actions with respect to positive law? - If you fail to follow any of these rules, you fail to have a system of law (similar to the idea that if positive law is not consistent with natural law then it ceases to be law) - If you do follow this internal morality of law then you will have a just legal system (this is where Bix criticizes Fuller for overstating it) - Fuller tries to demonstrate this through a story involving Rex Eight Principles of Legality (1) Laws should be general; you must have laws (2) They should be promulgated (published), that citizens might know the standards to which they are being held (3) Retroactive rule-making and application should be minimized (4) Law should be understandable (5) They should not be contradictory (6) Laws should not require conduct beyond the abilities of those affected (7) They should remain relatively constant through time; and (8) There should be congruence between the laws as announced and their actual administration Eight requirements for the internal morality of law. If there is a break down of any of the 8 criteria, then you fail to have law. On the Principles of Legality - Issues of procedure can give rise to issues of justice i.e. punishing someone retroactively - One argument could be that a government which is just and good will likely also do well on procedural matters - Additionally when proper procedures are followed, some officials might be less willing to act in corrupt ways - Thus, one might say that following the principles of legality is itself a moral good; second, the fact that a government follows those principles indicates that it is committed to morally good actions, and third, that following such principles may hinder or restrict base actions - Critics argue that regimes could follow these procedural principles and still act wicked - For instance, there have been some regimes so evil that they haven t even garnered the prettiness of legality, i.e. Nazi Germany The Story of Rex Lon L Fuller, Eight Ways to Fail to Make Law ***Story is meant to illustrate these principles to us and why they matter to a coherent legal system The Story - Rex becomes the king and realizes he can do whatever he likes and creates a new legal code - However, he doesn t give any reasons behind the laws and just sets out a list of prohibited things Page! 17 of! 56

18 - The code is therefore unworkable and people do not understand when to follow or when an exceptional circumstance may arise - Fuller reacts to this situation by saying that the law has to function like a skeleton with flexible joints - A code like this has no joints and cannot exist in reality - Rex says there is no need for a code because judges will decide disputes - Accordingly Rex s decisions are random without any pattern, consistency, predictability Why Rex Fails (1) Failure to achieve rules at all, so that every issue must be decided on an ad hoc basis; meaning they were arbitrary (2) A failure to publicize, or at least make available to the affected party, the rules he is expected to observe - Returns to the Code project, but feeling insecure about it, keeps it secret (doesn t work as no one can follow secret rules) - Rex believes this will resolve the problem of inconsistency (3) The abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change - Rex decides to judge all the cases together, at the end of the year (but this didn t work either because no one can follow retroactive law) (4) A failure to make rules understandable (5) The enactment of contradictory rules OR - Rex realizes he need to write a public Code that can be followed but the Code is obtuse and convoluted and no one can follow it - Rex rewrites, but now the Code contradicts itself in places - Rex removes the contradiction but the new Code is very draconian (6) Rules that rules that require conduct beyond the powers of the affected party (7) Introducing such frequent changes in the rules that the subject cannot orient his action by them - Decides that the easiest thing to do is criminalizes everything including bodily functions - System starts to lose legitimacy among people who are supposed to follow it (8) A failure of congruence between the rules as announced and their actual administration Critique of Fuller - Criticized for being too procedural and that his principles of legality were amoral solutions to problems of efficiency - The law could be effective but it could be morally bad; therefore it is not a moral system at all - It tells us nothing about what is good and what is bad - The internal morality of law does not give much direction for citizens; but it does seem to give enough ground for the citizen to obey the law FINNIS J.M. Finnis, Theoretical Studies of Universal Values and the Basic Forms of Human Good Finnis Theoretical Studies of Universal Values - Finnis is the modern carnation of the traditional natural law theorists - Asks: what can be a universal value? - Looking at Aquinas, there is not a lot of information on question 2 and determining the content - Fuller fills in the gaps Page! 18 of! 56

19 Answering the Key Questions (1) Does this higher form of law exist? If so, how do we know? (2) What does it consist of? - Anthropology: this is somewhat contentious because he feels that some things are immutable across all cultures - Intuition and self awareness; not about proving what is good from facts or theories but determining what is good by looking within themselves (3) What are the consequences for positive law and for human behaviour? How can we reconcile it with positive law and how does it govern our own actions with respect to positive law? Finnis on Theoretical Studies of Universal Values - Some students of ethics and human culture assume that cultures manifest preferences that are wide and chaotic, where no value or principle is recognized at all time or places - However, all human societies show a concern for the value of human life; in all, self-preservation is generally accepted as a proper motive for action - All human societies regard the procreation of new human life as a good thing, all display a concern for truth, all know friendship, have some conception of property and of reciprocity - All value play, serious and formalized, recreational and released - All have a ritualistic way of dealing with the dead - All display a concern for powers of principles which are to be respected as suprahuman; in one form or another, religion is universal Finnis on the Basic Forms of Human Good - Asks: What are the basic aspects of my well-being? What are the basic forms of human good for us? - Basic forms of human good are self-evident not only because it exists but because it does not require proof or any demonstration of it - Critical assertion: not everyone lives by these basic forms of human good, but they are atlas always taken into consideration when making choices regardless of how you conclude in regard to them - They way you live in relation to these may become the moral question - This is not an exhaustive list, there are countless aspects of human self-determination and self-realization - However, things like gentleness, generosity, and moderation (for example) are not themselves basic values - Basic forms of human good (basic because all other forms of good are derived from them): (1) Life - A basic value, corresponding with the drive for self-preservation, is the value of life (includes bodily health, freedom from pain, injury, and procreation of children) (2) Knowledge - Considered as desirable for its own sake, not merely instrumentally (3) Play - Each on of us can see the point of engaging in performances which have no point beyond the performance itself and is enjoyed for its own sake - has its own value (4) Aesthetic Experience - Beauty is not an indispensable element of play - beautiful form can be found and enjoyed in nature - It need not involve an action of one s own, unlike play - What is sought after and valued for its own sake may simply be the beautiful form outside, and the inner experience of appreciation of its beauty (5) Sociability Page! 19 of! 56