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Group J: Norberg v Wynrib

Anthony Li-Lam, Charles Livermore, Matthew Livingston, Shaun Maddex

Norberg v Wynrib

The Issue(s):
Norberg Appeals to the Supreme Court of Canada

What exactly did Wynrib do that was wrong? What was his 'breach'? (After all, consensual sex is not illegal)

Does the ex turpi causa from the double doctoring bar Norberg from recovering damages?

  • Note: ex turpi causa means if a person sustain injuries as a direct and natural consequence of his or her own illegal and immoral acts, he or she cannot sue for damages against another person (Dimock, 284)

The Decision(s):

BCSC Trial Outcome: Held in favor of Wynrib. Ex turpi causa was available to him because Norberg was double doctoring.

BCCA Trial Outcome: Held in favor of Wynrib. Norberg's addiction did not interfere with her ability to give consent as consent was given while not under the influence. Ex turpi causa invoked.

SCC Majority: La Forest J. Held for Norberg under the tort of battery. La Forest narrowed the definition of 'willing' consent to not include consent influenced by a relationship involving an imbalance of power. Since she could not give 'willing' consent, Wynrib's actions constituted a battery. No ex turpi causa, she did not willingly participate and the situation was 'forced' on her. 

SCC Minority: McLachlin CJ held for Norberg, Wynrib breached his fiduciary duty to Norberg as his patient. Doctor/patient relationship invokes a fiduciary duty from the doctor to his patient, regardless of why the patient came to him for treatment. Wynrib breached this fiduciary duty by taking advantage of Norberg when he should have recommended treatment for her addiction.

Sopinka J held for Norberg. Norberg and Wynrib had a contractual agreement as doctor/patient and Wynrib breached this contract by not providing treatment. Relationship has elements of fiduciary duty but not all activities consist of the fiduciary duty so it does not go that far.

La Forest + 2: Wynrib was guilty of the tort of battery.

McLaughlin + 1 (concurring in result): Breach of fiduciary duty.

Sophika, (concurring in result): Breach of contractual obligation of the physician-patient contract.

  • Of note, 'sexual exploitation' is not a tort action, so the judges had to be creative to find a 'wrong' for Wynrib to be charged with.

Natural Law - St. Thomas Aquinas

How would Aquinas have approached the case?

Thomas Aquinas is primarily concerned with the common good, and this common good is derived from some otherworldly morality that inherently values certain things and also proportionately rejects certain things. For example, Aquinas states that making and raising children is a positive goal for any society, and anybody would see how this is a good thing, while killing people is an evil for any society and that nobody would believe killing people is a good thing.  In relation to the Norberg v Wynrib case, the judges act in a way that conforms to the basic notion of natural law, namely, that there are some inherently good and bad things in society that are preordained and we are wise to seek the path that endorses the good things while rejecting the bad. What Wynrib did, having sex with someone he knew would likely not reject him on account of her addiction and his relevant position of power, is taking advantage of the vulnerable in society, which is really a bad thing that society should move away from. In response, each member of the court had some reason to find Wynrib accountable for his actions based on this otherworldly ‘God-given’ morality.

If we take the position that the judges were motivated by the ‘inclination of justice’ and had a common goal of moving society away from potential abuses of those that are vulnerable, Aquinas would agree with their motives, yet not with their outcome.

Aquinas requires four elements to make a good law:

  1. common good goal,
  2. followable by the general public,
  3. be promulgated, and
  4. be made by a valid lawmaker.

Aquinas also has three elements of what makes a good judgement:

  1. proceeds from inclination of justice,
  2. pronounced according to ‘right ruling of prudence, and
  3. made by someone in authority.

For a good law, not only does the law have to strive towards the common good and be made by a valid lawmaker, but rather it must also allow people to be able to follow it through promulgation and through following ‘practical reason’. For the later two reasons, Aquinas might be more weary of accepting any common law doctrine as the solution to the problem as the common law is not widely promulgated, so people might be breaching fiduciary duties or battering people without really even knowing that they did it. As they are not widely promulgated, it is difficult for citizens to take the logical steps to obey the law, as they would have a hard time obeying something they do not know.

Battery is also a trespass tort, one that deals with the interference with rights. At least when he was alive, this stance towards autonomy was not as strong, compared to the need for certainty and he would likely not have agreed with it in how battery was applied.

In the Majority decision, the court makes a fine distinction of when consent is willingly given. The Supreme Court offers a few different relationships involving an imbalance of power between the parties that may vitiate consent. Assuming these categories of relationships are not closed, the ambiguity of the unrecognized relationships that vitiate consent makes it incredibly difficult for regular people to follow, because they simply would not know the nuances of the law therefore failing the ‘practical reason’ step in Aquinas’ elements of a good law.

Aquinas would have approached the issue through the lens of codification. He devotes time to saying how written law by the God-wisdom informed sovereign is superior to the law of judges due to having more concise law written by fewer people (like a King), the amount of time spent contemplating consequences, and a separation from the facts of the case that may pervert the judgement of judges due to their emotion.

How would Aquinas have decided the case?
Aquinas would likely want to send the focus of the discussion to legislation as much as possible due to his view of judges not as ‘lawmakers’ per se, but as interpreters of the law, and how a judgment not abiding to written law ‘falls short of the natural or positive right.’ However, even Aquinas would recognize the ‘natural right’ being infringed here. If stealing and adultery are natural rights that deserve addressing, surely exploiting the vulnerable would be as well. Aquinas would likely harshly deride Wynrib for his actions and recognize he needs to be punished both for education and deterrent purposes for the rest of the population (as is the point with ‘human laws’). Aquinas might revert to the ‘divine law’, recognizing ‘human law cannot punish or forbid all evil deeds’ and that ‘in order... that no evil might remain unforbidden and unpunished, it [is] necessary for divine law to supervene, whereby all sins are forbidden’ (Dimock, 27). Divine law is universally known, avoids prejudice of human judgement, punishes motives that the human law does not address, and punishes 'all sins'. It is basically a catch all when something is morally repugnant yet not caught by the 'human law'. He would use the divine law here to punish Wynrib, likely saddling him with punitive damages as well while making a plea to legislators to write legislation concerned with clarifying this issue.


St. Thomas Aquinas VS Posner   
In the same time frame, Posner would not have had the same distaste for legislation, as his theory that the legislator serves an ulterior motive of re-election that informs their legislation making capacity is thwarted by a monarchy, where there was never an election and revolutions were rarer. Likewise, a judge in those times was still at the mercy of the monarch and did have an ulterior motive. Likewise, the common good expressed by Aquinas did not necessarily result in efficient outcomes. For example, Aquinas, being a Christian, would want sabbath legislation, but this legislation operates inefficiently especially with people who do not observe the sabbath and has a negative effect on people who observe Saturday holidays, as was seen in Big M Drug Mart.

Legal Positivism   

Classical Positivism - John Austin

  • How Austin would approach this case:

Austin argued that there were two requirements of a valid law:

It must be empirically provable; which means:

  1. Must be a command, issued by superiors to subordinates, and backed by sanctions
  2. Must be created in accordance with the rule of law making jurisdiction regarding the creation of law

Law is followed by the people because it's legitimacy stems from how it is made and sanctions deterring disobedience.

  • What Austin would Decide

Looking at Austins classification of a valid law, common law would not be considered real law. Common law can be valid law if after creation, the sovereign witholds their ability to override the new law.  For practical purposes Austin would argue that the common law is more attuned with positive morality. It is fair to say that society would determine Dr. Wynribs actions repugnant and therefore the decision of the Court was the enforcement of positive morality, rather then the enforcement of valid law.  Austin would argue that it is not the judical branch of governments job to enforce positive morality, that positive morality are basic social rules of behavior, but do not have the force of law.

Austin would likely agree with the damages being awarded to Norberg as sanctions, but making consensual relationships between certain parties fall under the tort of battery is not a command issued by subordinates and therefore not a valid law.

Post WWII-Positivism - HLA Hart

  • How Hart would approach this case:

For Hart, laws are human artifacts, not dependent on moral content for lawness, thus they can be critiqued without the lens of morality tainting the law.  Hart disagrees with Austin on whether disobedience may be warranted where laws are immoral, even if made correctly and backed by sanctions. This is informed by the time frame in which HLA Hart formulated this philosophy. Austin agreed with Aquinas that all laws should be followed even though they may be immoral, but for entirely different reasons.  Hart classified laws into two categories.  Primary rules, which tell us what we can and cannot do, similar to Austin's idea of law, and secondary rules that allow us to change the rules and help us address the validity of the primary rules.  Hart would address the act committed by Wynrib using primary rules.  He would likely argue that the primary rule or command is for Wynrib to refrain from breaching his fiduciary duty.  He would then use the secondary rules to evaluate the primary rules ability to address the breach, varying the primary rule if need be.

  • What Hart would Decide

As with most decisions with common law as the basis for the decision and not one made through legislation, Hart would think any decisions that are common law exclusive are law so long as they are tolerated by the sovereign/legislature and not legislated against later (so called 'secondary rules'). As it stands, the tort of battery has been around forever and legislature does not seem to have legislated on it. Therefore, especially in this type of case, there is a definite 'penumbra' case at hand, Hart would fully endorse having judges operate as quasi-legislative actors and fill this gap using the 'terms of the rule governed practice' from our constitution to inform their decision making. Doing so fills the penumbra gap, pays proper deferrence to legislation (if they don't like it they can make law on it) and solves this problem independent of morality by not having to rely on a policy rationale that advocates for protection of the vulnerable in society.      

Utiltarianism - Jeremy Bentham

  • How Bentham would approach this case:

A radical positive theorist, he felt that a law is something that can be evaluated and crafted not based on morality but rather on what brings the most good to the greatest number of people.

So, for a decision to be good law, it has to benefit the most amount of people while encumbering the fewest amount of people.

  • What Bentham would Decide

There is no question that Bentham would agree with the SCC on this issue. Holding Doctors to a higher standard in their patient interactions will increase the happiness of the greatest number of people (as potential patients outnumber doctors), especially when compared to having no checks and balances on the Doctors position of power over patients.

  • Bentham vs Austin and Aquinas

Bentham would disagree with both Austin and Aquinas in their views of obedience to the law. Austin looked at the creation of the law and by whom it was made. If it is was made by valid lawmaker then the law and been through the proper channels the law would be valid. However, Bentham focused on the social effect the law had on society and whether it would benefit the most amount of people not whether it went through the proper channels or not. For example, legislation protecting only the Rich can pass for law under Austin but not for Bentham.

Bentham and Aquinas, because of their different approaches to valid law, would come to a different conclusion in this case. Bentham would take a bottom-up approach, focusing on the end goal of happiness, making laws that achieve that societal happiness as a whole. Aquinas’s focus is on the 'Common Good', a set of undisputed goals society strives for by default. This is not necessary the same as utilitarianism as the Aquinas Common Good might NOT necessary match the values of the majority in society, especially if they are not Christians. Bentham would urge both Aquinas and Austin to give less credit to the Sovereign as a lawmaker that knows best and focus on the long term effects on society from the decision being made.

  • Bentham Positivism vs Posner

Efficient laws do not require the most good to the most people, especially not Kaldor-Hicks transactions. They only require outcomes where the whole of society could plausibly be better off if compensated but there is no actual need to do so.

Service Conception - Joseph Raz 

How Raz would approach this case?

Raz was a pupil of HLA Hart and subsequently adopts many of Hart's conceptions about positivism but further expands on them through the service conception.  

Claims of authority are justified when the authority performs a service for its subjects, helping them to act better than they would without the benefit of the authority's interference. The authority intervening in this situation is the court. They are holding Dr. Norberg responsible for his actions. Raz would say the courts actions are justified because Dr. Norberg (and other doctors) will be forced to act better because of the courts intervention in this matter. Raz was not as concerned about the social impact as Bentham was, but rather that people will seek to act more appropriately because of the intervention of an authoritative figure. They will second guess their own judgments, and ensure that they are acting within the new scope of authority that has been brought forward in society.

How Raz would decide this case? He would decide the case similiarly to HLA Hart.

Separation Thesis - HLA Hart

  • How HLA Hart Would Approach This Case:

In looking at the Separation thesis, Hart is seeking to distance the positivists' insistence that law is one thing and moral value is another. One of his main arguments is that when law and moral value purport to clash, it falls upon us as individuals to decide; weighing the principles that will determine whether we choose to follow a law or to ignore that law based on our moral values and objections.

The core of the separation thesis is the recognition of law and morality as two distinct and parallel principles, making it easier to critique laws as laws are no longer embued with a 'Common Good' morality which natural law gives it. This allows for the recognition of unjust laws as valid laws even when they are morally unjustifiable, as in Nazi Germany.

This theory plays into what Hart believes the role of Judges should be in this type of system. An unfortunate flaw in how law is created, is that it should apply generally and therefore must be worded generally. This general wording embodies a 'settled core of meaning' which outlines an 'ideal condition' scenario where the law would apply mechanically, but when overlaid on most fact situations, there is always peculiarities not fully covered by the generally worded law, which results in a discovering of gap in the law or a 'penumbra case'.

Judges, when identifying these 'penumbra cases', according to Hart, are justified in acting as legislators, that is, where they should decide the law in these types of cases (Dimock, 184). The principles in which Judges draw from when placed in these law-making decision position are supposed to be from the wider 'Terms of the Rule Governed Practice' that lie at the very core of the existing legal system, otherwise the decision would be found to be invalid. These laws are NOT decided on morality, but rather on the 'Terms of the Rule Governed Practice' that lie at the foundation of the legal system that a vast majority of society has already psychologically 'bought into'. The psychological buy-in from wider society creates validity through an obligation to obey and for judicial decisions to be valid, they must be built upon the principles that lie at the heart of the legal system upon which the buy-in depends. The principles that lie at the foundation of the legal system are termed as 'Terms of the Rule Governed Practice' and compose a set of values that are morally neutral and virtually everyone in that society buys into implicitly. This includes principles such as objectivity and impartiality, but also include principles such as the condition that Law cannot be arbitrary. 

  • How HLA Hart Would Decide in This Case

In Norberg v Wynrib, it is very difficult to say that the Judges acted according to the Separation thesis. Instead of the rule governing practice deciding cases, the prevailing moral sentiment at the time seemed to be the deciding factor in the judgements. Simply because the Supreme Court thought what Wynrib did was morally reprehensive, they accorded different laws into solving the penumbra case of Norberg v Wynrib. Each Judge saw the situation as morally unjust, but applied a different 'settled core of meaning' for each decision.

In the Majority as well as both dissenting decisions it is difficult to determine what the foundational 'term of the rule governed practice' was used by the judges to reach their decisions. We already know that morality in and of itself has no place in the legal system under Hart, unless it is accompanied by a stronger non-morally dependant reason, like say to enhance objectivity or impartiality. This fundation is important as it is the basis for the societal 'buy-in' that makes the law legitimate. The fact that wider society would not have approved of Wynrib getting away with his actions shouldn't matter. The sentiments of wider society plays no part in the application of the law to Hart.


In application to Norberg v Wynrib, to justify the decisions the Judges eventually came to, Hart would have to relate the decisions to terms of the rule governed practice that would justify their decisions, otherwise the decisions are seen as steeped in morality and might be precisely the opposite of what Hart would consider to be the role of judges.

Bentham believed that we must evaluate laws by looking at utilitarianism. If we were to do so in this case, the penumbra would have been satisfied in his eyes by going through the same decision making process as the judges who favored the fiduciary duty. The fiduciary duty theory seeks to maximize the happiness and protection of the greater number of people who do not hold power over others in society from those that do hold such a power. Bentham would most likely have agreed that there was a breach of fiduciary duty, and society would be better served by disallowing this type of treatment from doctors to patients. Thus promoting utilitarianism through the promotion of the greater good; protecting patients from the physicians who hold power over them in the doctor-patient relationship.

Austin believed that we must evaluate laws through congruence of morality, whereby utilitarianism could be used as a guide for the correct answer to questions surrounding penumbra issues. In our case Austin likely would have been apt to apply the tort of battery. By doing so there is a promotion of the solving of the penumbra through use of a law that aligns well with how society views the moral obligations of physicians. There should be laws that protect us from people with power, especially ones who seek to use this power to influence the others who they have the power over. Laws need not align with moral obligations, however Austin believes that as laws develop they will likely align naturally with the moral principles held by society. So the tort of battery, which makes it illegal to assault or touch someone without their permission, aligns with the biblical belief “Thou shall not commit adultery.” It doesn't align perfectly, but it is not necessary for it to align perfectly, the fact that they parallel themselves, calls attention to the development of the moral obligations of society from the words of god. So thou shall not commit adultery would also logically encompass not having sexual relationships with those who you hold an unfair power or advantage over. Such as in this situation of physician-patient.

  • HLA Hart Positivism VS Aquinas

Hart differs from Austin in that while Austin thinks the law should be followed as it is made by a sovereign through the appropriate channels, Hart allows for disobeying laws when they are unjust. This was done as a response to the illegitimate use of law during Nazi Germany. Aquinas might not like disobeying the god-influenced sovereign, but even Aquinas recognizes when something is just plain wrong and goes against the common good even though it is made by the sovereign. Aquinas already makes a critique of 'human law' and how it is inherently incomplete due to it's reliance on circumstance, the passions of the day, and other elements that are not conductive to pure reason (natural law) or divine morality (divine law). Divine law also places value on certain things above all else, such as the preservation of life and liberty, and these principles do not change. If faced with the reality of Nazi Germany, Aquinas would agree with HLA Hart that is is ok to disobey unjust laws, only if the law does something that is so totally against the common good and is in no way beneficial to society. Divine law takes offence to what occured in Nazi Germany, even if the law was made by the sovereign the sovereign was not informed by God's wisdom.

  • HLA Hart Positivism VS Posner

Although ‘unjust’ to Hart, if an Arian German in WWII was faced with the dilemma to obey or not, they would still obey, not just because of state action but also because under that regime, they stood to benefit greatly at the expense of a minority without having to do anything. It is Kaldor-Hicks efficient. The Arian Germans gained everything the German Jews had and probably some used it to create more wealth, making it possible that society as a whole was better off even though an entire subsection was not.

Morality of Law - Lon Fuller

Morality of the law theory was created as a reaction to HLA Hart's Separation Thesis. It merged morality and law together again, remincisent of Natural Law but without the overriding need for a belief in an otherworldly morality informed by God. This time, Fuller says that the reason why people obey law is due to the law already being in line with social consensus. The law itself is grounded by social consensus to ensure social acceptance and in itself and has the same types of requirements as Aquinas for his laws but re-phrased as 'coherent, consistent, rational, and known'.

How would Fuller approach this case?

Fuller would look at the actions of the judges in our case and how external morality in our society says that there should be a law restricting this type of behavior. People who hold positions of power over others, should not be able to exploit this vulnerability. This protection of the vulnerable is a morally informed principle further substantiated by wider society. The inner morality is fulfilled by the fact that we have a system in place that allows for laws to be created either by the Legislature or the Court, which then is communicated to society, however, there is a penumbra type gap where there is no law on the illegality of a particular action, namely exploiting someone who consents to be exploited. 

How would Fuller decide this case? Considering his approach is very similiar to Aquinas, there is a higher chance that Fuller would focus on Legislation, butwouldn't have the same problems with Aquinas on allowing courts to have a quasi-legislative function, so long as their decision making is informed by the 'principles framing the law' which is analogus to 'terms of the rule governed practice' but applied more broadly to cover difficult cultures and civilizations as opposed to a focus on western civilization and its values.

What we think Fuller would think of the decision being taken in this case?

Fuller might be critical if the judges came to a decision after rational analysis to fulfill their fidelity to the law, which requires that judges reason out a conclusion after the end of the process instead of choosing an outcome beforehand. We can see that they begin their judgments by speaking of the act as being wrong, and then reason their way to a conclusion about how it should be punished. If it was Fuller, he would likely begin with reasoning out why it's wrong, how it violates the inner and outer morality of society, and what options there are to fill the gap.

Iit is questionable if they actually reasoned through the problem the way they should have or if they came to conclusion pre-emptively and then tried to reason their way to that conclusion. Because there are 3 judgements that agree the act is punishable, yet come to different conclusions with more or less the same effect, strengthens this assumption.

In the end, the Judges did explain themselves individually in a way that enables coherency in our system. However, they reach differen conclusives, and according to Fuller, having multiple rationales for arguably the same outcome is inconsistent, and not entirely coherent, which may make it difficult to obey the law. However we believe that in this circumstance, because of the wrong that was committed, Fuller would likely not find a confusion outside of which punishment should be used.

Lon Fuller vs HLA Hart

Fuller would not be particularly worried with trusting judges to have quasi-legislative functions in creating new law in their judgements, a commonality he shares with Hart. These 'Principles framing the law' are parallels to Hart's 'terms of the rule governed practice' but applied far more broadly to encompass all cultures and civilizations, as opposed to Hart's limitation to western legal systems. In effect, he believes when judges make decisions they are applying these 'principles framing the law' making it consistent with inner morality, while incorporating an external morality (social consensus) element that Hart would have otherwise ignored and would have thought tempered an otherwise valid rationale. While Hart discounts morality in its application to the law, he does embrace cultural norms as being part of the law making process, but due to his limitation on western society, he discounts cultural norms no longer being moral but as a taken part of society

Lon Fuller vs Aquinas

Aquinas and Lon Fuller would likely agree on a variety of issues since both take the position that morality is an indispensible piece of the law. While Aquinas thinks this from divine and natural Law, Fuller articulates 'terms of the rule governed practice' as something that isn't specifically from God, but created by people and held to such a high standard that it essentially becomes like a law from God because of how overriding the principle is. Almost always, the principles informing law are towards a common good like order and freedom. However, while Fuller allows the terms of the rule governed practice to wane and change over time in accordance with public sentiment, Aquinas' divine law makes no allowance for this. God doesn't change how he feels about things over time. In Aquinas' time, there was more or less a largely homogenous society though, so if Aquinas was made aware of the existance of multiple cultures co-existing at once, he would probably be conviced to go on board with the evolution of the terms of the rule governed practice so long as once principles get to this point, they don't stop informing the law.

While they disagree on the role of judges in making decisions, it's likely that Fuller could convince Aquinas to accept Fuller's view if Aquinas was teleported to Fuller's time and was told of the fall of monarchs and the wider spread of education. In Aquinas' time, education and knowledge were not widely promulgated, so often people didn't know what was good for them. This must have also extended to judges not being as well attuned to the wisdom of God. But the King was informed by God and knew what was best for the people. Taking the role of God's wisdom would be the 'terms of the rule governed practice' which has the same concepts and common good goals but known not because of God wisdom, but because it underlies society as a whole. Now obviously Fuller would have his hands full trying to convince Aquinas to give up the notion that God informs kings (Aquinas was later proclaimed a Saint), but he could probably convince him that judges are informed by 'God-wisdom' as much as modern legislatures by reverting to the 'terms of the rule governed practice'. Fuller's penumbra takes gaps where Aquinas may have proclaimed Divine Law had jurisdiction and tries to give that jurisidction to judges, once again informed by god-wisdom like 'terms of the rule governed practice'.

Posner & Lon Fuller Law and Morality

Morality plays a role in law and economics.  Morality primarily serves to determine what a beneficial action to society that needs incentives is, and what is an undesirable action to society that needs deterrents. Fuller’s terms of the rule governed practice sort of determine what these desirable and undesirable actions are, and because they do not rely on the legislature to inform what the terms are, it is a good tool to guide judicial decision making for a Law and Economist.

Law as a System of Rules - Ronald Dworkin

How would Ronald Dworkin approach this case?
Ronald Dworkin-Law and Morality

Dworkin believes that there are 'principles' that underlie and inform judicial decision making and these principles ultimately determine what the 'right answer' is. There is no discretion for judges. Even if there is no rule regarding a situation, there are always principles that apply to the situation that will contain a 'correct' answer, one that is 'discovered' by Judges through their analysis reconciling the principles of law with a theory that best fits and justifies the law as a whole in consideration of past and future decisions and ramifications. Rights and principles may be set by principles, even if no 'rules' apply to the case.

When no rule clearly applies to a novel or otherwise uncertain case, judges have strong discretion to decide the case as they choose
Legal rights and legal obligations are entirely the product of legal rules. So if there is no legal rule that applies to a case, until a judge has decided the case at his or her direction, neither of the parties to the dispute have either a legal right to win or a legal obligation.

How would Dworkin have decided this case?

In Norberg, the 'principle' approach goes a long way in justifying what happens in the case. Similar to the example Dworkin gives regarding the grandfather, his will, and his grandson who benefits from the will, yet also kills the grandfather, the use and application of 'principles' are used to defeat, in the circumstance, a rule that on the face of it seems to be acceptable. The will is a validly created will, and therefore shouldn't matter if the grandson killed the grandfather for the benefits in the will. If allowed in this circumstance, it directly contravenes fundamental principles of justice and fairness. Judges would then use principles and wider policy arguments to modify this rule to make it fall in line with fundamental principles, influencing future decisions while disallowing injustice. In Norberg, the rule is that 'consensual sexual exploitation is not a crime'. While on the face of it, the rule is valid, but by allowing it in this circumstance (in terms of a doctor-patient relationship) it would contravene principles of fairness and justice for Norberg.

Looking at Dworkin's rights thesis, it seems likely he would conclude that the judges in this case 'discovered' the specific rights at issue here. The judges would have seen that rights for vulnerable patients deserve to be respected based on the principles of human integrity and basic fairness, and these principles would have created a need to protect Norberg’s rights. A situation where one party holds a power over the other is a situation that our society has continuously tried to prevent, both in contract and where there is a fiduciary duty. This instance there is no established rule to protect the rights of the weaker party, but the judges have the ability to discover rights and create a rule that falls in line with the principles of society.

What would Dworkin think of the outcome of the case?
Unlike what Dworkin implies, that there is a singular 'right answer' for the situation that is 'discovered' when judicial analysis is done correctly, our judges come up with three different reasons for the same outcome. Overall Dworkin's theory of 'the integrity of law' is upheld here, as each of the judges do consider principles and make their decisions with a view towards future cases that would be similar. The Supreme Court knows how important it is to make Wynrib serve as an example with punitive damage to deter future doctors from committing the same act.
Each of the judges is relying on a set of principles to make their discussion, and if they were acting according to Dworkin, they would all come to the same conclusion. Therefore he would likely believe that two of the three judges decisions came from principles that were applied incorrectly. The judges in our case would likely argue that they are simply emphasizing different principles in our society. They have come to different outcomes, but they also can all agree that the moral wrong that took place has to be punished.

Ronald Dworkin VS Aquinas
Dworkin and Aquinas would agree on several points. Dworkin recognizes there is a single stream of law that based off of principles of fairness and justice, the overriding reason being rights and autonomy. This is a similiar rationale to Aquinas' Natural and Divine Laws but expanded even broader to incorporate 'rights' were divine laws were really just rights not to be sinned against. If Fuller is able to convince Aquinas that people are generally more educated now and that 'God-wisdom' through principles underlying society takes the place of actual God-wisdom, Dworkin would have similiar success. Judges being able to 'discover' the law and not be vehemently rejected by Aquinas only works if Aquinas recognizes that judges are also capable of being informed by underlying principles and legislative goals and less likely to be rash and respond on a case by case basis.

Dworkin vs HLA Hart
Dworkin expressly rejects Hart's views on positivism and the role of judges.
Dworkin’s case against legal positivism:
1. Positivists believe that law is a set of rules identified as law by some master rule.

2. When no rule clearly applies to a novel or otherwise uncertain case, judges have strong discretion to decide the case as they choose

3. Legal rights and legal obligations are entirely the product of legal rules. So if there is no legal rule that applies to a case, until a judge has decided the case at his or her direction, neither of the parties to the dispute have either a legal right to win or a legal obligation.

Dworkin Objects to all three of these aspects.

Of particular note is Dworkin's opinion that Judges do not have the same type of discretion as argued by Hart. Hart argued that Judges are expected to justify their decisions using the terms of the rule governed practice, but they are not required to nor are they bound in the future by these decisions. Judges under Hart's Positivist model are given a high amount of discretion to pick and choose which term of the rule governed practice they want to apply and how it is to apply in the penumbra case before them

Posner & Ronald Dworkin Law as System of Rights

Dworkin’s deference of the ‘policies’ that determine what is important to society and what isn’t to legislature goes against Law and Economics, which would say that the legislature is too full of people that are self-interested to actively choose what the true society ills are without considering their re-election. When considering ‘principles’ as a more fluid concept that changes over time to adapt to societal changes over ‘terms of the rule governed practice’ there, it may not change how efficient a law or decision is, but may influence how much deterrent is given by a Law and Economist. If a practice that was scorned and harshly punished in the past is now accepted, an efficient outcome would have to lower the punishment or abolish it altogether, otherwise the decision is no longer efficient as it punishes things that are socially accepted. 

Liberalism - John Stuart Mill

  • How Mill would approach this case
    John Stuart Mill

Mill is primarily concerned with the maximal exercise of liberty and autonomy by those in society. As such, his approach is of one that imposes as little as possible on the decision making of either parties so long as no one else is harmed in the process.

Looking at Mill, it is likely that he would side with the trial courts decision, where they found the Doctor not guilty, and disagree with the final outcome from the supreme court.

Mill would probably argue that it is not the courts job to even become involved in this case at all. Both of those involved were consenting adults, and in the strict sense it dosent seem either one was being harmed, at least from Mill’s standpoint, and therefore it is not the place of the law to step in and dictate to them what is best.

The victim was a fully matured adult with all her faculties, and therefore he would likely say that she was the best judge for herself to decide what she should be able to do. If she wanted to have sex in exchange for drugs, it was her right to do so, and the law is overstepping its bounds by involving itself.

  • How Mill would decide this case

Based on as minimal impairment of liberty as possible, Mill would be downright offended that the courts took away Norberg's right to consent in the majority decision.

If the court was going to make a ruling on the matter at all, the trial court made the right decision when they initially acquitted the accused on the basis there was consent, which provides a defence to battery. Since there was consent, nobody was forcing their will on anybody else, so there could be no justification for restricting anybody’s liberty. A Mill-based approach would likely find similarly for the offenses of breach of fiduciary duty and breach of contract, finding that there was no harm when consent was given between two private parties, as in Mill's eyes there was no restriction of the victim's liberty, and therefore there should be no restriction of the accused.

However, theres also a significant chance she would meet one of Mill’s exceptions, as interpreted by Dworkin. She was physically and physcologically addicted to the prescription drugs being provided to her, which may have caused her physchological distress to the point of being unable to give consent as she was no longer the same rational person required by Mill to use liberty properly.

  • Posner & Mill Liberalism

Law and Economics seems to be a logical extension of Liberalism and its base assumption of the rational person. Taken to its logical conclusion, all rational people willingly create beneficial transactions until the world is Pareto-Optimal, a state where no one can gain without another person losing. A rational person would not willingly enter into a deal in which they lose, so that becomes the ideal state. For this to happen, Law and Economics depends on the absolute liberty espoused by Mill. These two theories go hand in hand.

Paternalism - Gerald Dworkin

  • How G. Dworkin would approach this case 

Paternalism works by allowing the infringement of liberty so long as the infringement is done to protect the individual, especially from harms that a person would not otherwise appreciate that would cause irreverisble harm to their future ability to exercise liberty. As such, paternalism requires identifying circumstances in which interference with individual liberty will be justified through the lens of protecting future use of liberty by preventing irreverisble damage to capacity to exercise liberty today. The purpose of interference is prevention of harm to that particular person (as opposed to harm principle which avoids harm to others). 

  • How G. Dworkin would decide this case

Dworkin would feel that an interference with individual liberty, in this case the ability to give consent in that situation, was justifiable based on the irreversible harm Norberg was doing to herself by consenting to this grossly exploitative practice. This is exactly what happened in the majority decision of the SCC.  

By continuing this behaviour, Norberg was pyschologically damaging herself and exacerbating her drug dependency further limiting her future ability and capacity to make rational decisions. Drug addiction itself is a harmful activity to the individual, it doesn't harm anyone else on its own, but sooner or later it can spiral to affect others in society (with perhaps increased criminality as the addiction gets worse and more desperate measures are taken to obtain more drugs). To protect Norberg and other drug addicts in her situation, still capable of reverting the pull of addiction, Dworkin would find it a justifiable limit on liberty to take away Norberg's liberty to consent in that type of situation and would agree full heartedly with the SCC's majority decision in their definition of 'consent' and how they narrowed how willing consent could be given.  

Dworkin would recognize that any decisions made by a person severly addicted to pain killers were made under extreme psychological pressure. Where risks are not adequately understood. An infringement of Norberg's ability to give consent in this type of situation would be justified.  Norberg had given up her autonomy when she became addicted to the pain killers.  Dworkin would say that the restriction on the ability to give consent is proportionate to the possibility of the person being taken advantage of in her vulnerable position.

Dworkin Paternalism VS Mill Liberalism

Mill would disagree with all forms of paternalism, except for persons of "non-age" who aren't really even considered 'people' to Mill. Those who are children or have the mental capacity of children shouldn't be given the right to exercise liberty as they simply don't know what's best for themselves. Mill would believe that the SCC restriction on consent was not justified because Norberg's actions cause harm to no-one but herself. The base assumption that Mill builds his theory on is on the idea that people in society are generally rational actors and only they know what is best for themselves. Whereas G. Dworkin's believes that not eveyone is this rational actor in the same mold as Mill and are capable and sometimes, likely to make stupid, irrational decisions to quell their desires. Dworkin's theory deals with this 'reality' that people are not rational all the time and they don't really know what is best for themselves all the time, and that is where the law should step in and protect them from themselves, in order to safeguard the future ability for the person to use liberty. While Mill values the power of choice in the present, Dworkin works to safeguard choice in the future.

  • On Legal Moralism:

In our case the judges all know that what Wynrib did was morally wrong and results in an undermining of societies values, what we see as a result is an application of their own morals and values and about how each of them believes the moral wrong should be solved. Mills would be against this type of behavior, he does not believe that the tyranny of the majority should govern the morals of the individual especially in a circumstance like the one in our case where there was no specific wrong in tort, because there was no specific wrong society should not be able to dictate a new restriction on the actions of Wynrib.

  • On Offence principle:

This principle focuses on society being able to interfere with the liberty of its members to prevent them from causing offence to others, this is not harmful behavior, but rather behavior that offends the public morality, but if it was conducted in the privacy of a certain area in the presence of willing people it would not be considered harmful. Mills would likely say that this principle doesn’t make sense, because if it doesn’t offend in private, it should not be stopped from happening in public.  Those who are offended can just walk away and not watch or listen to what is happening, he says it is not for one member of society to say what another shall do or not do. In our case the conduct does take place in a private situation, however our judges believe that this is still a violation and harmful to society because of the inherent imbalance of power in the relationship.

  • Dworkin Paternalism VS Aquinas

Paternalism is a state-imposed restriction on liberty to protect those that would otherwise be taken advantage of in a completely libertarian society. Aquinas is more apt to allow for elements of paternalism, as the protection of the weak in society is for the common good. The issue on the restriction on liberty is less of an issue for Aquinas as restrictions on autonomy for the common good is a big deal compared to the net benefit for everyone in society.

  • Dworkin Paternalism VS Posner

Paternalism would likely disagree with Kaldor-Hicks efficiency as that essentially allows someone to swindle others so long as the swindling is of such a great extent it is enough to recompensate everyone and make a small profit if the beneficiary so chooses.

Law and Economics - Richard Posner

How would Posner approach the case?

Dimock, as she explains theories from Posner and Coleman, sees law and economics as viewing law as a vehicle to promote efficiency in society, not only in economic returns, but also social returns. This takes the liberalist view of John Stuart Mill and his baseline assumption that all individuals in society that are 'of age' are rational actors capable and actively seeking rational self-maximizing opportunities and outcomes and applies them further to a theory that takes the rational actor assumption to its logical conclusion, namely that all rational actors only willingly participate in transactions where they benefit. No one is ‘willingly’ a loser, but the eventually winners cannot completely exploit losers as there are consequences (as a loss of market share for being a massive polluter) that deter them from doing so. All outcomes in law and economics should therefore result in Pareto-Superior or Kaldor-Hicks optimal outcomes which ensure at least that the whole of society is better off with every transaction. Even if 'losers' aren't directly compensated. 
Richard Posner-Law and Economics

There is also a difference between legislative actors as rationale actors with divergent goals from judicial actors. While legislative actors are interested in maximizing their own self-interest by redistribution in line with organized interest groups to ensure their re-election and continued existence. Judicial actors have goals more in line with achieving efficient results, imposing costs and incentives to regulate behaviour to the whole of society. The cost imposed on activities is analogous to the deterrent function judges perform for society. So a law and economist would likely think judge-made law is the best law in terms of assigning appropriate cost values to behaviour, opposed to legislation which is tempered by the true incentive of redistribution on interest grounds instead of pure efficiency.

In application to our case, we can directly see judges imposing costs to the type of activity Wynrib took part in by finding justification for it under the tort of battery. The entire point of tort law is to ensure efficient distribution of costs of tortious action. Posner would likely think it is inefficient to assign absolute victim or injurer liability, as that would not create incentives for either the perpetrator or the victim to take reasonable care or to avoid risky situations. However there is a preference for negligence based liability as the most efficient distribution of costs in torts as it assigns costs based on the amount of wrong contributed, for both victim and wrongdoer. In our case, all the judgements seem to assign burdens onto Wynrib and all other doctors while mitigating the costs for Norberg, who really put herself in that situation by choosing to feed a drug habit instead of simultaneously creating incentives to attending drug rehab instead. The fact that she was double doctoring, something that was a bar to recovery in the lower courts, is summarily dismissed in the Supreme Court by all the Judges. None of the judgments seemed to create a deterrent for drug abusers participating in this kind of activity but did create deterrents for doctors not to engage in this activity. A law and economist would likely say this result is inefficient and that the Judge’s true motives are not efficiency but tempered by the same type of impure motive that taints legislation.

The approach to be taken by a Law and Economist is one of efficiency in results, and in a tort action, this manifests itself as a creation of incentives on desirable behaviour and deterrents on undesirable behaviour. An ideal efficient outcome must recognize the undesirable behaviours taken in the case and assign costs to them through damages. Unaddressed undesirable behaviour is inefficient as it perpetuates that behaviour until a deterrent is created to change people’s behaviour. Through this approach can the whole of society benefit in a Kaldor-Hicks sense as both sides will benefit and society as a whole will net benefit as the ruling now creates the deterrents and incentive that inform future behaviour making society as a whole better off since these undesirable behaviour should occur less often with deterrents in place.

How would Posner decide the case?
A Law and Economist like Posner would think that the judgement might not have distributed costs for the tort action in a way that benefitted society as a whole. There is also no incentive for drug addicts to seek help instead of putting themselves in this type of situation and then suing for tort of battery later. Posner would also take issue with how ex turpi causa is dealt with, both in the lower courts and the upper courts. A successful application of the ex turpi causa defence would protect Wynrib from liability, and leave no compensation for Norberg. Only the victim would be compelled to change their behaviour in the future from this result. The wrongdoing doctor has no incentive to change his exploitive behaviour as he would not get punished. This is obviously not a result the court would want, and to a Law and Economist it is not only inefficient, it also promotes a behaviour we as a society do not condone at all.

The only outcome Posner would agree with is holding both parties liable under contributory negligence. Both parties would be held responsible for their actions, Wynrib for taking advantage of a patient as a doctor and Norberg for using manipulation and double doctoring to feed her addiction. Contributory negligence would lower the damages that Norberg would receive but doing so would also hold her and future victims like her liable to an extent. This type of ruling recognizes the undesirable behaviour of both parties and acts as a deterrent for all future wrongdoers of either side. This deterrent of both wrongdoer and victim is the most efficient outcome as now both sides have an incentive to change their behaviour.


How a feminist would have approached this case[[Image:
Igualtat de sexes

Feminist theory is very similiar to legal realism but through the lens of a woman, a historically disadvantaged group in society. Instead of being inherently suspicious that judges do what they want for reasons only they know, there is a more consistent principle that laws are imposed on women through a patriarchial lens in a misguided attempt to 'protect' women, as men see it. This patriarchial approach further exacerbates and marginalizes women in society, perpetuating the cycle of patriarchy which dominates the creation and enforcement of law.

A radical feminist viewing the case at hand would understandably be shocked and immediately question the power imbalance between Norberg and Wynrib, and the fact that Norberg was a woman who is compelled by her addictions to give sexual favours, something that would likely not occur in reverse. This is also compounded in the majority decision by taking away autonomy when considering 'consent'. Although Norberg is ultimately protected by the decision, it is arguable that this protection comes at the cost of prepetuating a patriarchial viewpoint to these types of power abuse situations and thereby reduce future opportunities and equality for women?.

How different feminists may have decided this case

A marxist feminist may contend that because Norberg was addicted to drugs she was devalued in the capitalist system and therefore less worthy of protection. The trial and court of appeal decisions upheld this idea. In viewing her as a slave to her addictions, who in addition to being a women (a group already devalued by capitalist society,) was drug-depandant, and therefore was unable to produce to contribute the society. A marxist feminist would likely make the argument that the legal system is designed to promote the interests of those who control the means of production, a group she was very disconnected from. From a strict economic standard, which proponents of this theory maintain is the perspective of the law, she was of little value to society. Therefore her hardships are more likely to be seen as her own fault, and it is less likely a Doctor, who contributes to society and is of the dominant class, would be held accountable.  

A liberal feminist would likely have ruled against Norberg as someone who freely gave consent to an activity. Whether she was influenced by a background factor that motivated her to go through with that activity is less important compared to the need for greater equality under the law. They may have even decided on ex turpi causa like the trial and appeal courts. If you remove the consideration of gender entirely, a fair decision would probably have been both of them at fault contribatorily and the decision should not be affected by the gender of the victim. A liberal feminist argument could be made that the sexual battery law was applied in an attempt to protect a women because she was unable to protect herself, as the law viewed her as less capable of protecting herself and her body by simply being a woman. Futher, it could be contended she was a willing participant in an exchange in which she wanted drugs, and was willing to exchange sexual acts for them, and that was a free and autonomous decision that the court decided needed their intervention, as she couldn't possibly know what was in her own best interests.

In reverse, did the fact that Norberg was a vulnerable young woman change the outcome? What if she was a supple young man and Wynrib had eccentric tastes? Would the outcome be the same? Or would the court have ruled that men are more capable in these situations, and conversely what would a feminist think in that situation?

That depends entirely on what kind of feminist we are talking about, but largely feminism does not look kindly upon decisions that protect women on the basis of their weakness.

Posner & Smith Feminism

Like Mill, the rational person in Law and Economics is genderless and raceless, as these distinctions should not matter when making rational decisions. Feminism, the idea that women in particular are trapped in a system of patriarchy wouldn’t make sense to a Law and Economist. Why would decisions be made that do not benefit half the population? In all likelihood, a Law and Economist would think that if the decision is efficient and addresses the costs in society to do things, this also accounts for women. Women should not require special treatment for a law to be efficient.

Critical Legal Theory and Critical Race Theory

  • How Wacks would approach this case

Critical race theory views all people as having a bundle of individual characteristics that on their own have little to no meaning, but they are given societal meaning which comes to defines the people who have them by others in society. Using these characteristics, society sterotypes people based on these bundles of characteristics, and inform the societal experience the person comes to find as their reality. Wacks would want society to address this head on instead of under the guise of false 'equality' by ignoring racial/societal constructs.

In this case, the lower court reflected this attitude of societal construction, in that they viewed her not as a victim, but as an addict. Based on this stereotype, they ascribed the characteristics of "addicts" and limited her oppourtunity to defend herself from the injustice that had been done to her. Critical race theory would maintain that the category of an 'addict' does not exist in reality, and that each individual is their own person with individual characteristics, there is no essence to 'addict-ness' that is attributable to all people who are addicted to drugs. The lower court considered the doctrine of ex turpi causa to apply, and determined that based on this principle she was unable to pursue a claim because she was seen as a criminal herself, and therefore should not benefit from her criminal behaviour.

Critical race theory is built around a central idea that essentialist theories about groups of people are societal constructions, and not useful to understanding people- that there is nothing essential to the black community, for example, that is shared by everyone within that category. Building on this viewpoint, ciritical race theorists would likely assert that there is nothing common or essential to drug addicts, and that by prohibiting her from pursuing a claim on her criminal actions, there was a blatant disregard to her individual circumstance.

  • How Wacks would decide this case 

Wacks would want to address this stereotyping of being an 'addict' head on and say that this bundle of traits does not inform her actions and limit her opportunities in life. The Supreme Court however appears to have confronted the sterotype directly, and persued a deeper understanding of the situation. Her individual circumstance demands justice in this case, and she does not deserve to be viewed in a category that would prohibit her from pursuing justice. The Supreme Court is called upon in this situation to look beyond a basic labelling of individuals and explore the circumstances at a deeper level that allows them to determine that she is not simply an addict, she is a victim to her addiction, and this has contributed to her becoming a victim to Wynrib.

It is important that she be able to tell her story, as story-telling and communication is an important part of critical race theory. By communicating her inidivudal story she is able to demonstrate her individual personality, which is informed by her unique circumstance and life story, and not the 'drug addict' construction, or template, which is often applied by society. The very act of being able to tell her story is important, so that it may be possible to learn from it. 

Critical race theorists may think of comparable situations to illustrate the point that societal constructions inform our worldview in harmful ways. Theorists may question whether the law would have been applied in the same way between a meth dealer and addict. Would the court focus on the characteristics that are similar to a doctor patient relationship, and the included power imbalance, or would they focus on the personal characteristics that actually define the situation? It seems this would be a concerning issue for critical race theorists. The fact that the perpetrator in this case is a Doctor may be used to argue that the structure of the court system was inherently designed to promote his interests, and when the trial court dismissed the claim of battery they were doing what the law typically does when face with competing interests. They advanced those of the powerful, and the dominant group in society; a well educated male Doctor in this case.

Based on all those considerations, Wacks would likely agree with the approach taken by the Supreme Court as they are in-line with his solutions of sotry-telling and dispelling societal constructs.

  • Posner & Wacks Critical Race Theory

Law and economics does not consider race when making decisions that are efficient. All people are the same ‘rational person’ as Mill suggests in his version of Liberalism. Depending on how the ‘equality’ of races is achieved it can even be inefficient to the whole of society. For example take affirmative action legislation meant to ensure racial equality in the workplace by mandating a certain amount of employees of other nationalities. This can be inefficient as instead of hiring an employee who might be better, he might be forced to hire a minority to stay within the legislation, especially if the legislation mandates a certain percentage of minority workers in any company.