final Flashcards
Dworkin: “Interpretivism”
Ronald Dworkin (1931-2013): inter alia, critical of LP (in particular á la Hart), but neither does he accept conventional NL.
Contrary to LP, fundamental values like fairness are implicated in legal decisions.
Judges who, under the influence of LP, refuse to make substantive judgements about fairness are apt to make bad legal decisions.
But, contrary to NL, those values are not extra-legal moral values, but instead values internal to the law…
So, instead: Dworkin’s theory is “interpretive”: The law is whatever follows from a constructive interpretation of the institutional history of the legal system.
“Law’s ambition for itself” is “to work itself pure” (109).
N.B.: For Dworkin the interpretive view is offered first as an account of adjudication, but, as we’ll see, he later expands his account into a theory of the nature of law.
Hart On Adjudication: A refresher
LP (generally): Adjudication consists primarily of the application of positive law to particular cases.
The authority of positive law derives from conventional social criteria, i.e., social facts about what is taken to be authoritative. (Conventionally)
Those conventions may make reference to morality, but they need not. (Separability) in any case, moral considerations per se aren’t part of the law and don’t themselves make a rule into law except by way of social facts concerning who/what gets to make law…
…In “penumbral” cases, positive law may be incomplete and in need of elaboration: It may seem that judges have to look to “what the law ought to be” in order to determine “what the law is”
Hart: Yet the “ought” in such cases is not necessarily a moral “ought”.
In penumbral cases, judges should look to the social aims (the “spirit”) of the positive law (and, again, these need have nothing to do with morality)
The relevant social aims also are not part of the law…
Hart: in penumbral cases (which, Hart stresses, are rare), judges must make rational, intelligent decisions about how to extend or elaborate the law.
I.e., they are creating the law, rather than merely applying it.
But: if judges are making rational legal decisions, they are not be guided by extra-legal moral considerations (or their own political views), but instead be guided by social facts about the community that accepts and constructs the law.
Dworkin’s reply to Hart on adjudication
Dworkin systematically rejects nearly the whole of LP (Hart’s version especially):
LP’s conceptual/institutional focus is misguided: There can be no general theory of the nature of law. Instead, a theory of law is a theory of how cases are decided.
At least some standards of legal authority can’t be explained simply by appeal to social facts.
In deciding hard cases, judges may (and often do) invoke moral principles, which may not be inscribed in positive law, but which nonetheless have legal authority.
Dworkin’s Three metaphors
In “Law’s Ambitions for itself” (1985), Dworkin’s aim is to rehabilitative some metaphors “that were once cherished by lawyers but now seem old-fashioned and silly” (108):
“Law works itself pure”.
“There is a higher law, within and yet beyond positive law, toward which positive law grows.”
“Law has its own ambitions” (108-9).
Dworkin’s Three mysteries
Metaphors used in conjunction with the mysteries.
- The changes judges make to the law in adjudication are (or at least can be) guided by the law itself.
- Changes guided in this way are improvements (“law purer is law better”).
- These changes are not genuine changes, but discoveries of existing law.
Dworkin: These mysteries all presuppose the “obvious fact that in some sense law changes through adjudication as well as explicit legislation. Judges often describe the law, that is, as different from what people had taken it to be before, and use their novel description to decide the very case in which it is announced” (109, emphasis added)
Dworkin’s distinction between positive and full law
The Positive Law: “the law in the books, the law defined in the clear statements of statutes and past court decisions”.
The ‘Full’ Law: “the set of principles of political morality taken together provide the best interpretation of the positive law” (111, emphasis added)
I.e., Per Dworkin, Law= positive law + the principles of political morality that justify the positive law.
Dworkin on Adjudication
Legal interpretation: “a set of principles provides the best interpretation of the positive law if it provides the best justification available for the political decisions the positive law announces. It provides the best interpretation, in other words, if it shows the positive law in the best possible light” (111, emphasis added)
Put abstractly, as when interpreting a literary text, a good interpretation “seeks to show the material being interpreted as the best it can be”…
Interpretation (In General)
…”as the best it can be,” according to Dworkin, is deliberately abstract and general so as include contending theories of interpretation.
E.g., in the case of a literary text
Theory A: Interpretation= finding/elaborating the author’s intended meaning in the text. (E.D. Hirsch)
Theory B: Interpretation= finding/elaborating the effect on contemporary readers of the text. [‘reader response’ criticism; Barthes on the text as ‘tissue of quotations’].
Two Specific Tests for Positive Interpretation of Law (Dworkin)
- Fit: A candidate interpretation must justify (at least most) existing positive law.l
- Justificatory Power: An interpretation I1, is better than an interpretation I2 if it provides a superior justification for existing positive law than I2.
Superior how? “showing positive law in its best light means showing it as the best course of “statesmanship possible” (113, emphasis added)
…i.e., a good judicial interpretation provides a good justification of the law in terms of principles of “political morality”.
Dworkin: This may seem “irredeemably subjective” (113). I.e., principles of political morality as judged by whom? Which principles (assuming, surely correctly, that more than one set is discernable).
Dworkin’s doesn’t offer much response to this criticism. Yet note the implications of the “full law” view—the relevant principles of political morality are understood to be those
of the law itself.
Dworkin: Two tests
When deciding between rival interpretations of positive law, a judge should apply two tests
1. Fit: A candidate interpretation must justify ( at least most) existing positive law
2. Justificatory Power: An interpretation A is better than B if it provides a superior justification for existing law than B
Superior how? “showing positive law in the best light means showing it as the best course of statesmanship possible”
Would u be a good statesman if u offered different principles every other day?
Could it be offered by one political actor consistently?
The Models (Politically) Compared
The interpretive Model: Presupposes and serves a distinct political virtue: political integrity, (i.e., the state should speak consistently, with one voice—as the “single statesman” at least in interpretive reconstruction).
“If [the state] relies upon one set of political principles to justify its use of coercive power in one area, it must allow those principles their natural extension” (119).
E.g., if something like Mill’s principle serves as an acceptable justification in some cases, it should serve in other relevantly similar cases as well.
The Positivist Model: Serves the political virtue of economic efficiency (in this context, roughly, aiming at the goal of satisfying the preferences of the community overall without making anyone worse off—Pareto efficiency)
Attributing economic efficiency to the positivist’s political principle
[Posner: The purpose of the law is to maximize wealth.]
In fact, it is a reflection of an “unrestricted utilitarianism” (120) that allows the preferences of the many to override the preferences of the few.
Justice is evident when utilitarianism is maximized?
Dworkin: the interpretive model is open to skeptical objection:
“If two lawyers disagree about which set of principles show the positive law in the best light, there can be no right answer to that question” (117)
Yet LP requires judges to make just the same sort of decisions, though based on a different political morality—one that sees persons as resources and competitors.
Dworkin: Skepticism, per se, doesn’t provide any basis for choosing between the two models.
Riggs: Dworkin’s Account
Dworkin argues (in Law’s Empire, Taking Rights Seriously, 1977, and elsewhere) that Riggs can be viewed as an argument against LP (Hart’s version in particular)
Riggs does indeed identify a gap in the law, but not in a way that accords with Hart’s account of the ‘penumbra’. In this case the gap in the law isn’t an obscure issue ‘at the edge’, but central
There is no disagreement about what statute required, yet, despite this, the majority did not uphold the statute as written…
Dworkin: This disagreement in Riggs appears to be a debate about what the law is, not about what the law should be:
I.e., Earl, J. asserts that the relevant law includes the common law principle “one should not benefit from one’s own wrongdoing”; Gray J. asserts that the court must limit itself to applying the relevant probate statute. Neither makes any essential reference to morality or the fundamental purposes of the law.
Instead, per Dworkin, in Riggs both the majority and the dissent appeal to principles…
Majority: “One should not benefit from one’s own wrongdoing” (Principle in addition to statute)
Dissent: “One should not be punished beyond the ways specified in statute” (Principle limiting the interpretation of statute)
A main point of Dworkin’s interpretivist view, you’ll recall, is that such supra-statutory principles are in fact part of the ‘full law’. Riggs can be interpreted as a disagreement about the composition of the ‘full law’; it is not a disagreement about what the positive law holds.
Mill on Liberty, democracy, and the rule of law
Like Bentham, an exponent of utilitarianism, but who resists the paternalistic implications of the theory
Utilitarianism–Usually a consequentialist theory measured by utility, it’s not the only moral consequentialist theory
Bentham says that consequentialist theory is compatible with maternalistic aspects (?)
I.e., for Mill, utilitarianism and liberalism ought to turn out to be compatible
First and foremost a laissez fair liberal (especially with respect to freedom of expression and lifestyle)
Human freedom itself constitutes a degree of utility. If you give people human freedom, utility will be maximized
Later, (with respect to democracy and political economy) something of a welfare (‘social’) liberal. (In fact, toward the end of his life he called himself a socialist)
Mill on liberty
Mill: The struggle between liberty and authority, says Mill, is ancient and ongoing. It has followed a certain trajectory in political history:
- “Liberty” originally means protection against the tyranny of political rulers—the articulation of rights and liberties, justifications for rebellion, constitutional limitations on sovereign power. (E.g., Magna Carta; Locke)
- A later, and distinct, aim is for government to proceed through self-government, the consent of the governed democracy. (Rousseau)…
On this latter view, the will and interests of government are supposed to be identified with (ideally, identical to) the will and interests of the people. (E.g., Rousseau on the “general will”)
So, once this is achieved, perhaps there is no longer any need to limit government’s power over the people? After all, “the nation need not be protected against its own will”
Mill: it may have seemed that way before ‘self-government’ came into practice, but we now see that this is not necessarily so…
After the emergence of democratic republican government…
“It was now perceived that such phrases as ‘self-government’ and ‘the power of the people over themselves’ do not express the true state of the case. The ‘people’ who exercise power are not always the same people over whom it is exercised” (308)
In practice, the will of the people turns out to means “the will of the most numerous or most active part of the people”…
Mill says there are two things to consider in regard to liberty…
So, there are two related potential tyrannies to consider:
o The ‘tyranny of the magistrates’ (i.e., rulers) and
o The ‘tyranny of the majority’ (< Tocqueville)
Both involve not only law and political authority, but of all sorts of formal and informal pressures toward social conformity
Mill’s harm principle
Each sane adult should be free to engage in whatever behaviour she wishes, so long as it does not harm or threaten harm to others
Individuals who ‘do evil to others’ are prima facie subject to legal penalties; or may be sanctioned for failing to prevent harm to others. In some cases, individuals may be compelled to act on a positive duty to help others (e.g., giving evidence in court). In all cases not affecting others, however, individuals should be at liberty to choose for themselves…
Must be the best judge of their own interests of what is going to be the best utility promoting which is unlikely for some. Ex, how many people end up in debt?
He’s assuming that each sane adult is the best at looking out for their own interests
Mill on freedom and utility (part of hate principle)
Mill: This is not a matter of “abstract right” (314), it is instead a claim grounded in utility
I.e., Mill is not simply asserting an abstract right to individual freedom (Cf., e.g., Locke) that trumps (i.e., obtains despite) consequentialist considerations.
Instead, for Mill, leaving individuals free to choose their own life plans (provided their choices don’t harm others) is supposedly justified precisely because it will lead to good consequences overall.
Behaving however one pleases or doing what applies to the harm principle is not worth it when it overrides your liberty
Mill is saying that harm to the individual actor does not matter, only if it harms others around them.
Leaving people to do what they want and make themselves hurt themselves, but so does telling people to do things—creates dependence in certain respects.
Kids are the exception to the harm principle. The state is justified in acting on parents not parenting their kids adequately enough.
Harm principle on expression
- So with respect to expression: inciting a mob to violence; shouting “fire” in a crowded theatre (holmes example) etc can rightly be restricted by law and or made subject to social disapproval or judicial punishment
- But according to the harm principle, virtually all other forms of expression ought to be permitted
- Though, of course the harm principle extends beyond expression as well
Mill on Domains of liberty
- Liberty of conscience: freedom to think and to feel as one wishes. This includes both the freedom of opinion and the freedom to express opinions, Ie) freedom of expression, freedom of the press
- Liberty of tastes and pursuits: of “framing the plan of life to suit our own character” (316) even if our opinions are deemed false or harmful or immoral so long as they do not cause or threaten harm to others
- The “freedom to unite” or to meet with others, freedom of association and assembly.
- Self-regarding actions:
An agent’s actions which “merely concern himself”. In this domain, Mill says, “his independence is, of right, absolute. - Other regarding actions:
Actions which regard the external relations of the individual ie) which affect others. In this domain, we are morally responsible to others/ and or legally responsible to the social institutions that represent them.
Mill: Liberty on Expression
- Freedom of thought (opinion, conscience, taste) is pretty clearly private so it seems clearly to belong to the domain of self-regarding actions
- But doesn’t freedom of expression at least if it is effective expression usually affect others? Ie: we normally express opinions in order to affect the beliefs or actions of others.
- Mill: Expression is “practically inseparable” (316) from opinion. Freedom of opinion without freedom of expression would be without value
Mill: the marketplace of ideas
- To the extent that individuals really are the best judges of their own good, the harm principle (as applied to personal liberty seems consistent with utilitarianism.
- But there are potential conflicts: what if greater utility for everyone could be realized by restricting free expression, or imposing a uniform way of life or banning certain associations
- Consider: cigarette smoking, hard drugs, tobacco ads, cultural expressions that promote drug use
- Free-individuals may make bad decisions but prosperity for the whole
- Isn’t it at least conceivable that overall utility might be increased through such restrictions? For bentham-ya, for mill-no. respect to human liberty can be compatible with utilitarianism
- Leaving ppl free to make their own mistakes will make a net benefit in utility terms
Mill seems to believe that an overall utility increase or disutility decrease through restricting expression either does not or simply cannot happen:
Mill seems to believe that an overall utility increase or disutility decrease through restricting expression either does not or simply cannot happen:
- We can never be certain that a silenced opinion isn’t in fact true, to assume otherwise is to assume infallibility (e.g., Socrates, Jesus)
- But even a false opinion benefits us by forcing us to defend our beliefs and, if they meet the test, by reaffirming them. (Otherwise our beliefs may become “dead dogma”—e.g., says Mill, in the case of Christianity)
- Or, even more commonly, it may be that two doctrines “share the truth between them” (322), so we can get closer to the whole truth only by allowing diverse opinions…
…so, by elimination, it seems that we have no grounds for restricting opinions based on their presumed truth or falsity and (since Mills argues that expression is practically inseparable from opinion), no grounds for restricting their expression.
But how do these arguments about truth relate to the harm principle?
Mill: Opinions vs. Actions
Mill acknowledges that we must distinguish between opinions and actions. E.g., ‘corn-dealers as starvers of the poor!’ (324)
So, expression that (clearly and directly) causes or threatens tangible/physical harm to others can be restricted. But what, then, ought to count as “harm”—Harms to character”? Hurt feelings”? “X-shaming”?
If harm is defined broadly enough, it may be that the self-regarding/other-regarding distinction collapses (and, with it, the ability of the harm principle to provide much guidance)
Tyranny of the Majority Reprised by Mill
As we’ve seen, one of Mill’s main targets (in the selections included in the textbook) is the potentially sifting power of majority opinion.
“The tyranny of the majority” is a great danger to be avoided.
Individuality, Mill says, is an “element of well-being”;
(not done)
Mill’s Radically Individualist Pluralism
“The only freedom which deserves the name, is that of pursuing our own good in our way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it”
So, for Mill, freedom of expression isn’t just one good among others: it is a central component of what Mill takes to be a paramount good: A sphere of negative liberty in individuals are free to ‘experiment’ with their lives.
Obscenity in Canadian law
The Criminal Code did not initially provide a statutory definition of “obscene” (or other operative terms such as “indecent” or “disgusting”).
“The Hicklin Test”: An initial foray by the courts in the English case R v Hicklin (1868):
Obscenity= The tendency “to deprave and corrupt those whose minds are open to such immoral influences” (929)…
Obscenity can be judged independently of context
This imposes a severe burden on judges, they get to apply their own personal moral standards
1959: The Canadian Criminal Code (s. 8) is amended to include an “objective” definition:
Obscene: “any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects…crime, horror, cruelty and violence”.
In effect, this replaces the Hicklin Test (tendency to deprave and corrupt, regardless of intent) with a series of judicial interpretations of obscenity under the statute…
Tests for “Undue Exploitation of Sex”
Notice that a challenge remains: if obscenity is now (post 1959) defined in statute as “undue exploitation of sex (etc.),” what constitutes undue exploitation?
- Community Standards of Tolerance Test
The sense of which is decent or indecent, clean or dirty, in light of the standards of the community as a whole, not some sub-segment of the population. (in particular, not just the segment of the population that likely will be exposed to the allegedly obscene expression)…
…but community standards can change, so the relevant standard must be contemporary
Also, the relevant standard is a standard not of taste, but of tolerance.
Sopinka: “the community standards test is concerned not with what Canadians would not tolerate being exposed to themselves, but what they would not tolerate other Canadians being exposed to” (931, emphasis added)
- Degradation or Dehumanization Test
Sopinka: Material which exploits sex in a degrading or dehumanizing manner (e.g., humiliation, cruelty, subordination) will necessarily fail the community standards test.
It will do so “not because it offends against morals, but because it is perceived by public opinion to be harmful to society” (932). i.e., the community is the arbiter of what is harmful to it…
…but what if the community happens to tolerate expression that is degrading or dehumanizing? Shouldn’t harm be assessed in relation to (objectively ascertainable) consequences [as most utilitarians would say]?
Sopinka considers this, but notes that there is little certainty about what consequences we are seeking to avoid. i.e., do obscene movies actually cause immoral conduct? Do they in fact promote violence?
Upshot: “the public has concluded” (934) that degrading and dehumanizing portrayals contribute to “moral desensitization” which the public believes must be harmful
- Internal Necessities or Artistic Defense Test
Even expression which might otherwise offend community standards will not be assessed as “undue” if it is a necessary component of a work with ‘serious’ literary or artistic merit.
As Sopinka notes (935), these three tests, on their own, do not explain how each test is supposed to relate to the others.
“This hiatus in the jurisprudence has left the legislation open to attack on the grounds of vagueness and uncertainty… This lacuna in the interpretation of the legislation must, if possible, be filled, before subjecting the legislation to Charter scrutiny” (935)
Three categories of pornography (sopinka)
Three Categories of Pornography
- Sex + violence= Always undue exploitation (since it is harmful)
- Sex + degrading/dehumanizing treatment= Undue exploitation if the risk of harm is substantial
- Sex + no violence or degrading or dehumanizing treatment= Tolerable
N.B: Obscenity as “undue exploitation of sex (etc.)” has now been explicitly linked (and limited) to harm…
Harm and Pornography (sopinka)
Sopinka: “Harm” in this context cannot mean harm to the “moral fibre” of the community and cannot be left up to the taste of individual judges, since these are not matters susceptible of proof.
Instead, once again, the arbiter of harm is supposed to be the community as a whole
Specifically, “harm”= creates disposition toward anti-social behaviour incompatible with proper social functioning. E.g., “the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse” (936)…
…This then describes the relationship between the ‘community standards test’ and the ‘degradation or dehumanization test’ [ apparently only the latter is relevant, but it will be determined in light of the former]
The ‘artistic defense test’ is applicable only in the case of a work that would otherwise be judged as “undue exploitation.” But since “artistic expression rests at the heart of freedom of expression values…any doubt in this regard must be resolved in favour of freedom of expression” (937)
Yet artistic purpose too is supposedly a matter determined on the basis of community standards. [!]
McLachlin on the Labaye trial
McLachlin, CJ. (for the majority): “The issue is whether the acts committed in his establishment were acts of indecency within the meaning of our criminal law”
Following Butler, indecency was established by a single test—the community standard of tolerance determined by reference to the risk of harm entailed by the conduct (338)…
“Grounding criminal indecency in harm represents an important advance in this difficult area of law. Harm or significant risk of harm is easier to prove than a community standard. Moreover, the requirement of a risk of harm incompatible with the proper functioning of society brings this area of law into step with the vast majority of criminal offenses…” (338, emphasis added)
But this now leaves the question of how the harm test is to be applied to particular cases.
Proposed: a two-step process of determining the nature and degree of harm…
Two-step process of determining the nature and degree of harm
McLachlin: In order to establish indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements have been met:
- The conduct in question by its nature causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in the Charter or similar law…
Either a) by interfering with the autonomy and liberty of members of the public, b) predisposing others to anti-social behaviour, or c) physically or psychologically harming persons involved in the conduct…
- The harm or risk of harm created by the conduct is of a degree that is incompatible with the proper functioning of society.
Each branch of the test is to be applied “objectively and on the basis of evidence” (339)
[N.B.: the role of the community as ‘arbiter’ of tolerance has arguably been transformed into a conception in which Charter and similar laws are arbiters on behalf of the community.]
Liberal feminism
Liberal feminists (Wollstonecraft, Taylor Mill, etc.) stress the moral and political equality of men and women:
o Justice requires treating women and men as fundamentally the same, as equals, (unless and until there are good reasons for treating them differently).
I.e., on a liberal feminist view, all individuals as individuals, should enjoy the full value of their fundamental rights; each should have the same equality of opportunity, etc…
…So, if women have been, e.g., excluded from access to justice, harassed or not taken seriously by legal institutions, denied their fundamental rights, etc., justice may require specific accommodations in order to promote equality.
In political terms, the historical aims of liberal feminists have included women’s suffrage, equality property and contract rights for women, child custody rights, etc.
In more recent times: Employment equity, freedom from adverse discrimination.
Liberal Feminist: Implications for Law
Liberalism generally, and liberal feminism in particular, maintain that individuals are treated justify when they are treated as individuals—as co-equals with their fellow citizens.
So, when it comes to the judicial system, liberalism expects and demands that courts and legal institutions will be characterized by independence (e.g., from partisan political interference), conformity to the rule of law (assuming a more or less just system of law), and impartiality.
“Radical”/Difference Feminism
Difference ( [in this context] ‘radical’) feminists (Gilligan, Dworkin, Mackinnon) argue that there are fundamental differences between women and men, differences which have been suppressed and/or distorted by patriarchy.
Accordingly, justice requires treating different persons differently; abolishing the distorting influences of patriarchy. This may involve removing internalized beliefs, attitudes, and stereotypes that make women less willing and able to empower themselves.
In its most radical form: separatism.
“Second Wave” vs. “Third Wave” feminism
But, assuming the difference claim is true, what is it that makes men and women fundamentally different? Is difference something to simply be accepted? Is it something to be reinforced or celebrated?
Some “second wave” difference feminists assert that difference between men and women are either neutral and/or due to the fundamentally different life experiences of men and women
Some “third wave” feminist regard this as unjustified essentialism
Andrea Dworkin
Thesis: Heterosexual intercourse is rape.
Her anti-pornography work, together with Mackinnon, cited in Butler: Pornography is a threat to equality and a form of violence against women
With Mackinnon, drafted the Minneapolis human rights ordinance which defined pornography as a civil rights violation against women
Radical Feminism: Implications for Law
So on a radical/difference view, if certain phenomena—e.g., the state, the law—are gendered, then we ought to recognize this and treat them as such.
According to some feminist critics, the law has been structured (perhaps sometimes unwittingly) so as to deny the experiences and needs of women: Patriarchy infuses the legal system and this is unacceptable.
Accordingly, a radical/difference feminist approach to law is not neutral, but critical and normative…
Law and politics, as currently constructed, do not adequately recognize or respond to the needs of women, and accordingly, must be changed.
In particular, many radical feminists critics challenge the liberal ideal of law as independent, authoritative (following the ‘rule of law’) and impartial.
Liberal political theory
is focused on freedom—where freedom is understood as freedom for individuals to do as they please (within the limits of law), without unjustified constraints being put in their way.
Mill’s harm principle is an instance of liberal theory
Marxist political theory, by contrast, is also focused on freedom, but sees the relevant agent not as the isolated individual but as socio-economic classes (e.g., the proletariat, the bourgeoisie). Freedom is understood to be not simply the lack of constraint, but in terms of the positive freedom to fulfill human needs and achieve economic justice. Obstacles to freedom include class divisions, economic inequalities, and false consciousness.
Mackinnon’s critique of the liberal state
Mackinnon: Liberalism “treats women as abstract persons with abstract rights” (260), ignoring the fact of gender and implicitly structuring the state and it laws as male.
“The state is male in the feminist sense: the law sees and treats women the way men see and treat women” (262)
In particular, Anglo-American jurisprudence is founded on norms of neutrality and impartiality; judicial decision making is supposed to be impersonal and disinterested (cf. Weber)…
“But these demarcation between morals and politics… the personality of the judge and the judicial role, bare coercion and the rule of law, tend to merge in women’s experience” (263)
[Mackinnon doesn’t pause to explain this here, but perhaps it can be understood along the lines the Gilligan proposed: Women’s normative reasoning tends to be situated rather abstract, personal rather than impersonal, characterized by care and concern rather than impartiality.]
Effects of Judicial Neutrality (Mackinnon?)
In effect, this entails that: “those who have freedoms like equality, liberty, privacy and speech socially keep them legally, free from government intrusion. No one who does not already have them socially is granted them legally” (264, emphasis added)
This reflects the emphasis in liberal politics philosophy (and Anglo-American jurisprudence) on negative freedom over positive freedom
For women (and other disadvantaged groups oppressed ‘prior to law’, this has meant courts unwilling to provide relief. [Cf. ‘unwilling to make new law’]
Negative freedom
For women (and other disadvantaged groups oppressed ‘prior to law’, this has meant courts unwilling to provide relief. [Cf. ‘unwilling to make new law’]
Mackinnon on reform
Mackinnon’s analysis of the assumptions and lacunae of Anglo-American law have been highly influential and much-discussed.
But it is not entirely clear how that analysis is supposed to serv e as the basis for legal reform
Mackinnon’s critique seems to suggest that ‘male jurisprudence’, with its perception-limiting commitments to neutrality, impartiality, and the rule of law is in need of fundamental reform, fundamental reconstruction…
But if the Canadian Charter (e.g. vis á vis equalirty rights) represents a step in what Mackinnon takes to be the right direftion, it is worth pointing out that the Charter was not primarily not the result of legal reform initiative
Instead, it was political initiative, proposed by Pierre Trudeau, negotiatied among the province, and ultimately ratified by Parliament ( And, per Sopinka, accepted by Canadian society)
Perhaps the law can be successfully reformed through political means without the need for fundamental change to the legal system (Cf. the good ol’ liberal idea of ‘separation of powers’)
Devlin and Legal Moralism
Patrick Devlin, Lord Devlin (1905-92) argues for an apparently extreme (but, upon consideration maybe less so) version of legal moralism
Legal moralism: The state may justifiably interfere with the liberty of individuals in order to protect common moral standards.
N.B.: A principle that holds regardless of whether it prescribed actions are harmful to the individuals who engage in them or to others.
Three “Interrogatories”
1) “Has society the right to pass judgement at all on matters of morals? Ought there, in other words, to be a public morality, or are morals always a matter for private judgement?”
2) “If society has the right to pass judgement, has it also the right to use the weapon of the law to enforce it?”
3) “If so, ought it to use that weapon in all cases or only in some, and if only in some, on what principles should it distinguish?” (375-6)
Devlin argues that the answer to 1) is yes—there is public morality on which society has a right to pass judgement
Given a ‘yes; answer to 1), a yes answer to 2) follows—society can use the law to enforce public morality
Devlin on “Public Morality”
An a priori argument:
A society is constituted as a “community of ideas” (377)
These ideas include both ‘political ideas’ and “ideas about the way its members should behave and govern their lives” (what Devlin equates to society’s “morals”)
For Devlin, it follows that lack of fundamental agreement respect to political and ‘moral’ ideas constitutes an existential threat to society…
I.e., society cannot tolerate substantial disagreement with “the invisible bonds of common thought” (378) for the same reason that it cannot tolerate rebellion.
A rebel may even have good reasons for rebellion (and “historians a century later may say that the rebels were right and the Government was wrong”)
But, of course, the state will use law (and possibly force) to defensively supress rebellion: This is “not a matter which can be left to individual judgement” (377)…
Principles for Application of Law to Morals (Devlin)
Tolerance of the maximum of individual freedom consistent with the integrity of society: “Nothing should be punished by the law that does not lie beyond the limits of tolerance. It is not nearly enough to say that a majority of dislike a practice; there must be a real feeling of reprobation” (383, emphasis added)
The limits of tolerance can shift over time
As far as possible privacy should be respected (384)
The law should be concerned with the minimum not the maximum
The “Reasonable Man” (Devlin)
Given that the limits of tolerance can shift, how are legislators to determine the ‘common morality’ constitutive of society?
Devlin: The ‘reasonable’ (though not necessarily rational man:
“Immorality then, for the purposes of the law, is what every right-minded person is presumed to consider to be immoral” (382, emphasis added)
