TRU/Law3020/GroupK
Group members: Eric Malysa, Christina Matthews, Nick Maviglia, Kelly Maw,
Natural Law & Thomas Acquinas
According to the Natural Law perspective advocated by the influential philosopher and theologian Thomas Acquinas, in order for a law to be valid, the law must
1. be directed to the common good
2. follow practical reason
3. be made by a valid lawmaker
4. be promulgated 1. Directed to the common good Issue of law
St. Aquinas’ proof of law’s purpose is its connection to the furtherance of happiness, which is achieved through the realization of the “perfect community”. He does not, however, define what the common good is. A more suitable approach to discussing the common good, and how it’s furthered by the law would be to explore the relationship between natural law and human law. Natural law, as a direct product of reason, eternal and pulmigated by good directly into the soul of man is best understood by dispassionate and esteemed leaders who are tasked with creating human law. Human law should, as such, utilize the faculty of practical reason to create human law out of natural law.
As it relates to R. v. Sault Ste. Marie, the city having been charged under s. 32 of the Ontario Water Resources Act for its role in polluting the river is ultimately one supporting concepts which reflect the common good. The judgment cites the recommendations made by the Law Reform Commission to the Minister of Justice on March 1976, whereby a public welfare offence is enacted to ensure “higher standards of respect for the … environment” and in the interest of higher public safety. From the perspective of St. Aquinas, justification would include the idea of preservation of the environment as an extension of self-preservation. Further, he would also have recognized and stressed a person's responsibility to the community above their responsibility to themselves on an individual basis. In this way, the burden placed on the Sault St. Marie community by the municipalities’ act (or omission) in allowing the landfill to pollute the neighboring river is unjustifiable and ought not go unpunished. Strict liability
This piece of legislation works to promote the common good by regulating environmental pollution. The Court, in its’ judgment, pointed to the offences’ purpose of promoting public welfare when classifying the offence as one of strict liability.
A strict liability offence, in order to promote greater diligence and administrative efficiency, presumes the mental element is present whenever the actus reus of an offence can be proved. Strict liability offences which ostensibly serve to promote public welfare would likely be categorized by St. Aquinas as a mala prohibita offence. Offences mala prohibita are legal offences which serve to promote the common good and are therefore just laws. However, offences mala prohibita do not require that the defendant be morally culpable as is the case with offence mala in se. St. Aquinas justifies this difference with recourse to an understanding of the relationship between natural and human law. Offences mala in se are “derived from general principles of natural law by way of conclusion” and are therefore simply morally wrong. To break a law mala in se is therefore to violate not only a tenant of human law but also a tenant of natural law. Conversely offences mala prohibita are arrived at “by way of determination of certain generalities”, and “have no other force other than that of human law” (Dimock, 2002, p.28). These offences, therefore, do not go directly against natural law and, as such, are not inherently morally incorrect. Strict liability offences resemble offences mala prohibita in that they do not emphasize the element of moral culpability by relieving “the Crown of the burden of proving mens rea”. St. Aquinas would therefore likely take account of the Court’s characterization of strict liability offences and notice the striking resemblance to his own concept of offences mala prohibita.
On the topic of absolute liability offences, considering the practical impossibility in most regulatory cases of proving wrongful intention, St. Aquinas would have approved of the administrative efficiency inherent in the adjudication of strict and absolute liability offences. While strict liability offences leave it open to the defendant to prove that all due care has been taken, absolute liability offences, while objectionable on the principles of fundamental justice and the presumption of innocence, might also be tolerable in the in “Aquinian Court” as a justifiable infringement of individual rights in the name of the common good. In fact, absolute liability is contended as the most efficient and effective way of ensuring compliance with minor regulatory legislation, and social ends to be achieved are of such importance as to override the unfortunate byproduct of punishing those who may be free of moral turpitude. Although absolute liability would infringe the rights of the individual to due process, in his view the interests of the common good should be of primal importance in considering the judgment of the defendant. Therefore, a judge exercising the philosophical views of St. Aquinas would likely find the City of Sault Ste. Marie guilty of the charge on the basis that it ought to be responsible for the actions of its servants.
2. Practical Reason
The second of St. Aquinas’ four requisites of a valid law is that ‘it must provide logical and practically reasoned direction as to the steps we must take in order to attain the common good objectives’ (notes) of a law. Issue of law
One of the ways practical reason supports the foundational implementation of a valid law is by means of threat and punishment. The deterrent effect is of keeping members of a community “on the road despite our true nature”. St. Aquinas contends that it is within human nature to deviate from the natural laws, and such designs must be reasoned in a way that allows the members of a community to follow the directives of a law, and in doing so, accomplish the common good aim of that law.
In R v. City of Sault Ste. Marie, the offence the city was charged under is drafted as follows:
Section 32(1) Ontario Water Resources Commission Act:
Every municipality or person that discharges or deposits, or causes, or permits the discharge or deposit of any material of any kind into any water course, or on shore or bank thereof is guilty of an offence.
The broad language in the prohibition of “any material of any kind” into “any water course, or on shore or bank thereof” casts a wide net when the law is applied. However, such a large net is justified, in the ‘Aquinian’ point of view, because its intended purpose in natural law can be achieved by adherence to it. In other words, the practical reason behind the law is sufficient to lead us on the path to the common good. However, Aquinas also raises the issue of whether individuals ought to be bound by unjust laws. His teleological view, and one of the defining tenets of the natural law position, is if a law is seriously immoral or unjust, we do not have a general moral obligation to obey it and in extreme circumstances may be immoral to obey it. Such laws must not be genuine laws after all, and “it is no law at all”. There are various ways in which a law may fail to be just: it may aim at the good of the lawgiver rather than at the common good; it may exceed authority of the law giver; it may impose disproportionate burdens upon some of the people; it may be contrary in its directives to the divine law as known through revelation. While the broad language of s. 32(1) might be unjust by contemporary standards, it is likely that Aquinas would have considered this law to be fair because its effect, while cast in broad terms, nonetheless pursues a common good.
Although Aquinas would not have opposed the law on its purpose, he may have taken issue with the role the judges would be asked to take in interpreting and applying its broad language because of his firm beliefs in limited judicial discretion. In his view, interpretation ought to speak to the spirit of the law, as opposed to a strict adherence to the letter of the law. It is foreseeable that the language in s. 32(1), if adherence to the letter of the law was applied, has the potential of making it unjust. If individuals cannot naturally follow the steps of a law, St. Aquinas would have contended that it stands to reason that the law is not practicable and will not compel obedience in order to attain the common good which it seeks. Strict Liability
Given a choice between strict and absolute liability St. Aquinas would likely have preferred absolute liability approach given its furtherance of the common good. However, he may have struggled with justifying its practical application. If an individual has exercised due care of the reasonable person in light of their circumstances, Aquinas’ belief that law be “in accord with some rule of reason” is broken (Dimock, 2002, p.5). It follows that a law which penalizes individuals despite their exercise of reasonable behavior may lead to cynicism and disrespect of the law. Such a law would remove the incentive for individuals to take extra care because they are not entitled to the defence reasonable care against an absolute liability offence. These reasons would have given St. Aquinas cause for concern in implementing an absolute liability standard, and perhaps sway his opinion toward applying a strict liability standard instead.
3. Valid Lawmaker
The law is validly made by the sovereign authority (Province of Ontario), and the municipality of Sault Ste. Marie. As a body incorporated under the laws of the Province of Ontario the municipality is subject to the laws of Ontario including the Ontario Water Resources Commission Act. In the view of St. Aquinas, there would be no question of the legitimacy of the Province’s authority to enact this law.
4. Promulgated
St. Aquinas’ fourth and final requisite of a valid law is that it be appropriately promulgated and made available to the wider population in order to be known and understood which in turn facilitates obedience. As a statute of the Province of Ontario, royal assent and proclamation, as necessary procedural steps in implementing a statute, make it sufficiently available to the public and thus, sufficiently promulgated according to the standards of St. Aquinas.
Legal positivism is one of the most important developments in the philosophy of law to wash out from the intellectual currents of the enlightenment. The central and uniting proposition of legal positivism is that the existence of law is a social fact, and any discussion of law or its existence is a distinct inquiry from moral merits or demerits of law. In tendering this thesis legal positivists create a theory of law that is of a substantively different character than the theory advanced by natural law theorists who posit that the foundation of a just law lies in its moral basis. A jurist, approaching a case through the paradigmatic lens of legal positivism, would simply apply the law to the relevant facts presented by the case at bar. However, the well known maxim of legal positivism: that “the existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry” is, in many ways, a mere prelude to what is a rich and complex ecosystem of thought and theory (Austin, Lecture VI, 1832, p.157). This section will attempt to introduce the reader to the nuances and intricacies of legal positivism through an exploration of the theories of legal positivism’s most prominent thinkers, and by exploring the relationship between these theories and the Supreme Court’s judgment in R v. Sault Ste. Marie.
Jeremy Bentham was, by most accounts, the founding father of legal positivism. In addition to developing legal positivism Bentham contributed greatly to the development of utilitarianism as a moral theory. Bentham however, was careful to demarcate the moral tenets and philosophical development of utilitarianism which he argued ought to ground policy from the operation of law. In effect, Bentham’s version of positivism takes, as an axiom, that morality and its relationship to the development of policy should not be conflated with the praxis of law. This approach to law is exemplified by the taxonomy of his work in which he offers separate discussion of morality in An Introduction tothe Principles of Morals and Legislation, a normative approach of developing law in Of Laws in General and an exegesis of the principles of proper judicial procedure in Principles of Judicial Procedure. Beneath the titles Bentham develops a more satisfying justification for legal positivism’s distinction of law and morality. While morality, for Bentham, is secular and moored in the inherent capability of animals to experience pain and pleasure the legitimacy of a law is, conversely, fortified solely by the ability of a sovereign to coerce individuals into faithfully adhering to the law. As such a law may be unjust for failing to provide the greatest amount of happiness to the greatest number of people but such a fact does not take away from either the reality, force or political legitimacy of the law.
Bentham’s ruminations on the task of a jurist can be seen as a synthesis of his moral and political project into the science of judicial procedure, which is, for him, the course taken for the execution of the laws, viz. for the accomplishment of the will declared, or supposed to be declared, by them in each instance. The laws that govern the practice of a jurist are what Bentham called adjective laws and they “prescribe the course of judicial procedure” while the laws which jurists actually apply and which sit in “contra-distinction” to adjective laws are called substantive laws. Today, in our common law system, we retain the essence of this distinction by differentiating between substantive and procedural laws. A pragmatic implication of this schema is that adjective laws, having the sole end of providing a methodology by which the judiciary may apply substantive laws to the case at bar, leaves the judiciary without the conceptual toolkit necessary to either create or modify substantive law. This is the distinction that occasions the real world operability of legal positivism.
In R v. Sault Ste. Marie the court recognizes the distinction between adjective and substantive laws. The substantive law in this case is the law under which the accused was tried. The court in their discussion of how to classify the applicable substantive law, Section 32(1), as either an offence in which mens rea must be established, as an offence of “strict liability”, or third as an offences of “absolute liability” through the creation of new procedural guidelines is an example of the court working with adjective laws to better realize the intent of thelegislature.
The work begun by Jeremy Bentham was taken up and furthered by English philosopher of law John Austin in his work The Province of Jurisprudence Determined. There are two important developments that Austin provided to Legal Positivism which warrant particularly close attention: his contributions to the analytic jurisprudence, and his exploration of the nature of sovereign power that must necessarily stand behind any valid law. This section will focus on the role a judge has in the legal system under Austin’s conception the science of jurisprudence. Role of the Judiciary Analytic jurisprudence is best described as a methodological approach to dispelling ambiguity inherent in law and unraveling the true meaning of words. Analysis itself is an ancient methodological approach to unraveling philosophical problems and was used extensively, for example, by Socrates. However, Austin’s innovation was to combine a post-Kantian conception of decompositional analysis that postulates that all true statements are analytic with his doctrine of legal positivism. As such, at a fundamental level Austin’s theory takes the law as its written and breaks it down “into the necessary and essential elements of which it is composed”. It has been a criticism of Austin’s work that this approach seems overly rationalistic in that it restricts a Jurist’s discussion of the law to what is merely derivable directly from the law. In this way law acts as an axiom of essentially deductive process of legal reasoning, and as such no other information, ancillary or otherwise, can be used in a jurist analysis of a law. The obvious drawback of this is that it reduces the role of a jurist to one of a mere textual commentator who is unable to apply the law to unique and novel fact situations unless the law expressly and unambiguously provides a way to deal with the situation. A rationalist interpretation of Austin’s work therefore supposes a bifurcation of the process of creating the law and applying the law that implies that a judge has no role at all in creating law.
The ‘rationalist’ interpretation of Austin’s work that holds that there can be no valid judge made law gains some credence by the congruence it has with Austin’s ‘imperative’ conception of law. For Austin, a law “in the most general and comprehensive acceptation” is “a rule laid down for the guidance of an intelligent being by and intelligent being having power over him”. Austin further refines this general definition of law into three components: God’s law; positive morality which are rules “enforced by mere opinion”, and positive law. Of the three types of laws, it is only positive law that are written and promulgated by the state. Austin further defines positive laws as having four features: the law must be a command; issued by superiors to insubordinates; backed by sanctions, and that they must be created in accordance with the rule of the law making jurisdiction regarding the creation of law. This is, however, not to imply or suppose that there is no relationship between the three types of laws. Positive morality can, at a minimum, be a source of inspiration for legislatures working on developing a positive law.
Application to Sault Ste. Marie
This facet of Austin’s theory is reflected in R. v. Sault Ste. Marie where the Court links the concept of mens rea with the “generally held revulsion against punishment of the morally innocent”. Here the court recognizes, as Austin did, that while law, morality and the science of jurisprudence may all be separable they are, by no means, incommensurable. However, while the court may be free to recognize the source of positive law they cannot, under a rationalist interpretation of Austin, have any business in actually making the law. This limitation of a jurist’s power is a consequence of the fact that every law must be backed by the threat of coercion. Judges, having no inherent or legitimate power of coherence [which properly belongs in the domain of the sovereign’s power] cannot, as a matter of logical necessity, make a law.
A rationalist conception of Austin’s The Provenance of Jurisprudence Determined would suggest that the work lacks empirical validity and that it fails to reflect our experience and expectations with respect to the role of a jurist. Judges, for example, do seem to make law. In R v. Sault Ste. Marie the Supreme Court both recognizes and affirms its power to add to and create law by pointing to “[p]ublic welfare offences which evolved in mid nineteenth century Britain… [as] a judicial creation, founded on expediency” [Ibid]. More subtly, the court also embarks on a inverted teleological and genealogical expedition to develop “compelling grounds for the recognition of three categories of offences rather than the traditional two” [ibid]. A rationalist interpretation of Austin’s work cannot defend the legitimacy of the modifications made by the Court to the law nor can it explain the process of judicial reasoning.
Within the bounds of such a rationalist interpretation of The Provenance of Jurisprudence it is unlikely, it could be argued, that Austin would support the Supreme Court in its creation of strict liability and public welfare offences. Such a conclusion, however, does not seem to square with Austin’s emphatic support of judge made law in Lecture V where he writes that he cannot “suppose that a society could have possibly gone on if judges had not legislated… to make up for the negligence or incapacity of the avowed legislature”[Austin, Lecture V]. Part of the solution to this puzzle comes from Austin’s reconciliation of ‘law as a command from a sovereign’ with judge-made law by reasoning “that those judicially established principles which the sovereign leaves intact he approves and inferentially asserts” [Austin, Lecture VI].
W. L Morison in Some Myths about Positivism presents further difficulties for purely ‘rationalistic’ interpretations of Austin’s work arguing that, for Austin, law is empirical and not a rational science, and that the definition “law is a command of the sovereign” is presented by the utilitarian not as a logical postulate from which substantive propositions of law can be analytically deduced but rather as a connotation of the word “law” in terms of empirical fact” [Yale Law Journal, Vol. 68, No. 2 (Dec., 1958), pp. 212-233]. This interpretation suggests that it’s open to a judge to reason outside the letter of the law. However, it is possible to take this view too far. First, Austin was a firm supporter of legal codification that, in his view, would work to limit judicial discussion. Second, Austin also developed the ‘separation thesis’ wherein law and morality were distinct, and that a law can be legally valid even if morally objectionable. Thus from the perspective of W.L Morison’s interpretation of The Province of Jurisprudence Determined, Austin would have supported the Supreme Court’s development of the law in R v. Sault Ste. Marie while at the same time lamenting the failure of the legislature to provide clearer guidance to the court.
H.L.A. HART
JOSEPH RAZ
The Israeli-American legal and political philosopher Joseph Raz offers a radical conception of legal positivism. Mr. Raz argues that while all laws are styled as commands which are “authoritative and binding” they are, nevertheless, not morally or ethically unassailable, but rather, if sufficiently unjust, may even place an imperative on the conscious citizen to ignore. Mr Raz justifies the permissibility of civil disobedience by way of what he calls the ‘service conception’ of authority wherein “a claim of authority is morally justified when the authority actually performs a service for its subject”[Joseph, Raz, Authority and Justification (New York: New York University Press, 1990), 115–141]. Ronald Dworkin writes that, for Raz, authority becomes illegitimate unless “its directives can be identified without recourse to the kinds of reasons for action that citizens have before authority was spoken” [Dworkin, Hart's Postscript and the Character of Political Philosophy, Oxford Journal of Legal Studies, vol. 24, no. 1, 2004, p.1-37]. Under this interpretation authority is illegitimate in two major scenarios. First, if a law serves a pernicious purpose, and second if morally unjustifiable. More fundamentally however, Raz’s service conception of authority harkens back to the Hobbesian roots of legal positivism. Authority ought to work to provide order and regularity that a society without laws [a state of nature] cannot provide.
If a law fails to provide order or some benefit otherwise not present in pre societal context than it is of no authority. Therefore, it is likely that Raz would agree the laws at the center of R v. Sault Ste. Marie are legitimate and ought to be obeyed. Section 32(1), a provision with the purpose of protecting the environment, provides a benefit that is both morally laudable, and also not sustainable without the law. The common law that the court develops and considers including the developments the court makes to public welfare offences also provide a morally laudable benefit. These common laws promote administrative efficiency in the judicial system while adhering to legitimate moral precepts.
Introduction of “the Penumbra”
One of the central positions of HLA Hart’s work, Positivism and the Separation of Laws and Morals, is his advancement of the idea of the “Penumbra.” In his view, a penumbra case or a ‘hard case’ involves words [of a law] that are neither obviously understood nor applicable. A judge may struggle with these ‘hard cases’ as he or she tries to decide whether the particular case falls within a ‘settled core of meaning.’ When deciding these more difficult cases, judges must draw on the terms of the rule governed practice. The terms of the rule governed practice refers to a set of principles that have a commonly understood meaning, and consistently underlie the decisions in penumbra cases. The terms of the rule governed practice may vary as circumstances change; however, one of the benefits of the rule of governed practice is that it promotes consistency in judicial decision making.
Hart’s perspective on the process of judicial reasoning in conjunction with identification of ‘hard cases,’ requires that the task of a jurist will never be of a purely deductive nature. Rather, it is the task of a jurist to make a value judgment in order to identify the law in a particular case.
According to Hart, law is comprised of a system of rules; and failing to deal with a novel case may result in indeterminacy or incompleteness in the law. Hart refers to this indeterminate or incompleteness of the law as “gaps” in the system, that judges seek to correct with the terms of the rule governed practice.
Application
As evidenced in R v. City of Sault St. Marie, there was an inherent gap in the law with respect to public welfare or regulatory offences that fall within the gambit of criminal law. In an effort to address the “gap” in the law particularized by the question of which standard of liability should be applied, the court created a third category of criminal offences: strict liability offences. Unlike its counterparts (true crimes and absolute liability offences), strict liability offers the defence the opportunity to evade liability by demonstrating on a balance of probabilities that due care was exercised on part of the defendant (R v Sault Ste. Marie, supra p. 1311)
Dickson J., writing for the majority, was primarily concerned with the question of punishing the morally innocent. It is generally held that there is a revulsion against assigning culpability to those who are morally blameless (Reference Re: s. 94(2) of the Motor Vehicle Act). However, the Hart positivist response would posit, that within the legal system it is irrelevant to ask whether or not it is immoral to punish the morally innocent. Rather, a jurist should decide a case only in terms of the rule-governed practice and fundamental legal principles. Applying this theory to the present case, HART would support the application of stare decises with respect to the standard of liability it assigns to a violation of s. 32(1) in R v. Sault Ste. Marie.
Liability Standards
Given that absolute liability offences deny the accused the opportunity of defending their own conduct, it was argued by the accused and intervenors that absolute liability violates society’s fundamental principles of penal liability which is that penal liability flows from moral culpability. The argument of the accused forced the Supreme Court to consider a difficult legal issue. The Court had to decided whether to endorse a conception of law which followed morality, or a conception of law which would be conceptually separate from moral consideration. The court, in this case, adopted a middle ground approach.
For some criminal offences, because of the stigma attached, the Supreme Court of Canada has identified select offences as requiring subjective mens rea, so as to comply with the fundamental principles of our legal system [which have since largely been entrenched in S.7 of the Charter]. The Supreme Court has designated murder, attempted murder, theft, and crimes against humanity as such crimes which require proof of mens rea upon conviction of the accused. In addition, in the Reference Re: s. 94(2) of the Motor Vehicle Act, the court established that some level of fault must be proved for offences involving the loss of liberty on part of the accused. There are, and will remain, certain public welfare offences where the public interest requires that such crimes be classified as absolute liability offences; however, it is a select genre of offences that will satisfy the burden of justifying a Charter infringement by disallowing the accused to prove their innocence.
The issue that arose in this case was whether the penal consequences arising from a violation of s. 32 of the Ontario Water Resources Act (OWRA) are severe enough to negate the application of absolute liability on the accused, as s. 32 imposes penal consequences of a fine of $5,000 on a first offence, and imprisonment for up to 1 year. While considering the fundamental principles of penal liability, Hart would oppose the application of absolute liability for a violation of s. 32 of the OWRA, as the consequences imposed are too severe to deny the accused the opportunity of disproving mental fault. In the present case, Hart would likely advocate for the same ruling: the creation of strict liability offences, for offences carrying significant penal consequences. Alternatively for offences involving fines or more lenient consequences, Hart would support the imposition of absolute liability.
Points of Intersection - Morality and the Law
Morality for Hart and other legal positivists is an independent normative standard for regulating and criticizing our own and others’ behaviour, as there is no place for morality in the law. As such, one’s own morals may impose duties that are contrary to those imposed by the law. Hart explains that the citizen must weigh the competing obligations that he/she has and may rightly decide that the moral obligations outweigh the legal obligations, and that there is even a moral duty to disobey. Thus the positivist can accept that an unjust law is law, yet also deny that we have a moral obligation to obey it.
As it applied to R v Sault Ste. Marie, HLA Hart would contend that because moral principles, in this case from modern environmentalist perspective, “intersects” with the terms of rule governed practice in s. 32(1) of the OWRA, but it does not follow that they are one and the same. Adopting Hart’s perspective, one would construe the law as disembodying any principles of morality, and would view laws that govern ‘moral’ matters (e.g. murder) as merely situations of coincidence.
The Morality of Law - Lon Fuller
In his work Positivism and Fidelity to Law-A Reply to Professor Hart, Lon Fuller attempts to highlight and criticize H.L.A Hart’s affirmation of the Separation thesis of law and morality. Consequently, Fuller advances the enduring dichotomy between legal positivism and natural law, offering his own conceptions of the external and internal morality of law.
External Morality
In disparaging the Separation Thesis, Fuller first proposes that social acceptance of legal rules and of lawmaking authority must necessarily be grounded in morality (Dimock, 2002, p.208). Fuller posits external morality as the “morality that make law possible” (ibid, p.209), surmising, unlike theological thinkers such as Thomas Aquinas, that ultimately, “law must serve morally good ends in order to be law at all” (ibid).
For Fuller external morality is the reason why citizens recognize an obligation to obey the law at all, thus the appeal of a recognizable “good” purpose of a law becomes fundamental for citizen’s obedience of it. As Fuller articulates “all this amounts to saying that to be effective [a law] must be accepted…not just as law, but as good law” (Dimock, 2002, p.215).
Moreover, Fuller’s cites eight requirements for a coherent successful legal system qualifying that rules should be (2) public and knowable, (4) understandable, (5) reconcilable, (6) capable of being obeyed, and (7) infrequently changed so that a person can orient their behavior by them. Additionally, rules will fail to be law when (1) decision are ad hoc, (3) there is an abuse of retroactive legislation, and (8) when there is disjunction between rules, and rules as actually administered.
Fuller then highlights that citizens’ ease and ability to recognize a good purpose in a law, represents law’s inner morality.
Internal Morality
Fuller argues that law itself has an inner morality, which is identifiable by determining a law’s purpose or objective. He suggests that through embarking on the process of determining the good a law is meant to accomplish, we necessarily compound the external and internal morality of the law, and more generally witness the inescapable intersection of law and morality. Further it is through this judicial process that judge’s maintain their fidelity to law-“making law what it ought to be.” For Fuller, this is the basis of a legal system’s flexibility to accurately recognize and reflect a society’s evolving external morality. Fuller also asserts that “we should plan for the realization” that citizen’s must recognize a law as good law and that conceptions of “good law” will evolve (Dimock, 2002, p.215).
Analogously, Fuller’s internal requirements of a successful legal system-coherence, rationality, consistency, and that law be known - reflect his natural law facets that the purpose of law is to produce order. Additionally, for this reason, Fuller also attests that “when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness, by whatever standards of ultimate goodness there are” (Dimock, 2002, p.212).
We can see a modern exemplar of Fuller’s theory in the Canadian legal system’s Oakes Test- for determining if an unconstitutional law can be saved under section 1 of the Constitution Act 1982. The Oakes test inherently presumes that what can be “demonstrably justified in a free and democratic society” may evolve over time and reflect the ever-changing composition of society’s values, however the existence of the test guarantees the consistency and stability of the Canadian legal system while ensuring that a law must be rationally justified on its balancing external and internal morality.
Fuller’s Application to R v. Sault Ste. Marie
Fuller emphasizes that ultimately a law’s worth is determined by the recognizable intrinsic good it aims to achieve. In this case, the purpose of s. 32(1) of the Ontario Water Resources Act is ultimately to prevent pollution of water sources. In addition to the environmentally good objectives of this law, the Sault Ste. Marie Court recognized the provision as a public welfare offence. Thus in addition to the benefits of protecting the environment and prohibiting pollution, and in preventing pollution of water sources the law also aims to uphold public health and safety standards.
The second legal and moral issue in the Sault Ste. Marie case is the court’s rejection of an absolute liability regime for this offence and their creation of a new regime inclusive of strict liability offences. In the H.L.A Hart sense, the Sault Ste. Marie case is most definitely a hard case, in which the court developed an entirely new liability framework from the core mens rea and fundamental justice principles of the Canadian legal system. The court’s landmark discussions of liability and mens rea highlights Fuller’s foremost requirement of both judges and citizens -fidelity to law.
Fuller offers that “judges must view their duty of fidelity to law in a context which embraces their responsibility for making law what it ought to be” (Dimock, 2002, p.218). In attempting to rationalize and synthesize the absolute liability framework of the offence with the fundamental principles of penal liability and justice, such as the law’s aversion to punish the morally innocent, the Court observed their collaborative duty to “make the law what it ought to be” and, in turn developed the strict liability scheme in R v. Sault Ste. Marie. While it is arguable that an absolute liability regime, for reasons of administrative efficiency and certainty, would create greater efficiency and by extension order, which is the ultimate goal of law, the case also illustrates the distinction Fuller makes between order and good order-which the Court found absolute liability could not achieve.
Interestingly, with regards to both internal and external morality, while the good purposes of s. 32(1) may seem relatively straightforward and easily identifiable today, it must be noted thatR. v. City of Sault Ste. Marie was heard and decided in 1978. Since then, societal interests and opinions of environmentalism have significantly evolved and the environment and pollution more specifically continues to be a very controversial and impassioned modern-day issue, both nationally and internationally. This reality highlights Fuller’s provocative discussions on a citizen’s fidelity to law (Dimock, 2002, p.233) and his critique of legal positivism’s inadequacies in addressing obligations to follow immoral laws.
Fuller suggests that “a mere respect for constituted authority must not be confused with fidelity to the law” (Dimock, 2002, p.233). The infamous dilemma in legal theory between the duty to obey the law and the moral duty not to obey immoral laws, raises interesting considerations when applied to the Ste. Marie case. The Sault Ste. Marie court recognized that “public welfare offences involve a shift of emphasis from the protection of the individual interests to the protection of the public and social interests” (ibid, p.164). Thus for example, observing the significant evolution of the environmental movement in society it is possible that the competing moral claims of environmental protection on one hand, and the choice between strict and absolute penal liability schemes on the other, may fluctuate. In the future, society’s moral interests in prohibiting pollution and protecting the environment may one day outweigh principles of penal liability and justify an absolute liability regime.
Dworkin - Law, Principles and Rights
Introduction
Described as the most influential contemporary legal philosopher, much of Dworkin’s work rests on overriding importance of principles in deciding the law in what positivists call “penumbral” cases. His elegant retort to the positivist view begins simply by delineating what he believes to be the three foundational supports of their argument. The first concerns the positivist belief that principles are not binding in law as stare decises, and instead only rules from previous decisions deserving a degree of judicial deference. The second claims that while principles might be taken into account in the judge’s deliberation, it cannot determine a particular result. Lastly, he believes the positivist perspective rejects the idea of principles counting as law on the basis that their authority and their relative weights are ‘congenitally controversial’. Positivism does not entirely neglect the existence of principles, but simply dismisses their importance and instead states that ‘hard’, or ‘penumbral’ cases ought to be decided by judges with recourse to the power instilled unto their offices.
The key, when considering the dichotomy of opinions regarding principles, is in the role they play in altering judicial discretion. In Dworkin’s seminal work, “The Model Rules”, principles are holistically important in guiding a judge’s decision in a ‘hard case’. Discretion, in Dworkin’s view, is best understood as “the small hole in a doughnut, and does not exist except as an area left open by a surrounding belt of restriction” (Dworkin R, 1977, Taking Rights Seriously, p. 31). In this way, a judge will always reach the correct decision by abiding by the sacred principles of fairness and equality and with recourse to her full knowledge of the law. It follows that for two jurists whose knowledge of the law is complete, and whose ability to weigh principles according to their respective fairness and equality, will always come to the same ‘correct’ decision in a ‘hard case’.
Dworkin does, however, note that where legal principles lead to a decision that is adverse to the presiding legal rules, that policy may intervene in justifying the judge’s decision to change the law on the basis that it is inconsistent with legal principles. A focus on policy is not to diminish the importance of legal principle, however, but serves a necessary purpose in insuring that decisions are congruent with policies supporting the interest of the community. Policy also operates to guide judicial decision-making in cases where no clear precedent exists and where the facts place the accused on the proverbial line drawing the distinction between the two potential results. As will be explored in the following sections, such was the case in R v Sault St. Marie.
Application
In Sault St. Marie, in considering which form of mens rea was required to convict on a violation of s. 32(1) of the Ontario Water Resources Commission Act, Dickson J. carefully weighed the fundamental principles against the competing policy objectives in place at the time. The legal principle at play was most notably the doctrine of the guilty mind required by true crimes, in which a person may not be held liable for the wrongfulness of their act unless the Court finds the existence of both a guilty mind and a guilty act (R v Sault Ste. Marie, supra p.1303). Conversely, and at the other end of the spectrum, Dickson J. considers absolute liability (Ibid, 1310). In this instance, the two main arguments in favour of absolute liability were to protect a social interest by requiring a strict standard, and second to facilitate administrative efficiency (Ibid, page 1311).
It is clear that Dickson J.’s holds the principle of penal liability as a guiding light in his struggle to balance the interests and rights of the individual against those of the community. In this manner, principles concerning the individual’s right with respect to penal liability is weighed against the policy interest in preserving the community’s welfare. This clash of policy and principle is precisely the focus of Dworkin’s work, which suggests that where there is no precedent to guide the decision, as is the case here, then policy may be considered. This is evident in Dickson J’s judgment as he considers the application of a ‘middle ground’ liability first applied in Australia in Proudman v Daymen.
“As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence" (Ibid, 1314).
Dickson J. then goes on to review, at length, the application of similar forms of strict liability in Canada and concludes that public welfare offences favour (i) not requiring the Crown to prove mens rea, (ii) rejecting the notion that liability inexorably follows upon mere proof of the actus reus, excluding any possible defence (Ibid, 1324). It’s in this way that he justifies the application of strict liability, which gives equal consideration to the principle of penal liability as well as the public policy in safeguarding communal interests by means of welfare offences. According to the Dworkinian school of thought, this is an example of a judge’s discretion in denouncing the one interpretation of legal rules in favour of a new interpretation and development of legal rules guided by the appropriate principles and policy considerations.
Had Dworkin himself been charged with deciding this case, it is likely he would have arrived at the same recommendation as Dickson J., namely the imposition of strict liability to an offense of s. 32(1) of the OWRCA. He would have done so on the basis that the lack of criminality in the offense distinguishes public welfare offenses from true crimes and thereby justifies a departure from proof of full mens rea, and also on the basis that upholding the standard of absolute liability is contrary to the principles of fundamental justice. Accordingly, he would have welcomed strict liability as a ‘beautiful’ evolution to the rich tapestry of the law, and as a positive evolution of the common law due to its congruence with the underlying principles of fundamental justice and the consideration of important policy factors.
In Defence of Personal Liberty (John Stuart Mill)
Generally, there is a legal presumption that personal liberty must be free from state intervention. The value of personal liberty must be weighed against the competing interests of society, and state interference may be justified in select circumstances.
There are four possible justifications for restricting the liberty of individuals by the law:
1. The Harm principle: John Stuart Mill believes this is the only legitimate justification on an individual’s liberty. This restriction of individual liberty seeks to prevent serious harm to others, and seeks to serve society’s best interest by imposing law to ensure that individuals refrain from causing harm to another. This justification is supported by both utilitarian and rights arguments, and positivists and natural law theorists.
2. Paternalism: this restriction on individual liberty seeks to protect the individual from harm caused by the unrestricted exercise of liberty. The harm principle justifies harm to one’s self to the extent it does not harm anyone else; however, the paternalistic justification imposes the restriction of harming oneself. This justification is supported by Gerald Dworkin. Common examples include prohibitions on suicide, laws governing seat belt use in motor vehicles, etc.
3. Legal moralism: this restriction on individual liberty seeks to prevent individuals from engaging in behaviours that run contrary to societal or communal morals and values. In this view, the law serves as the moral guide to society. This view is supported by Lord Patrick Devlin. Common examples include abortion laws and euthanasia.
4. Offence principle: This restraint on individual liberty seeks to prevent members from engaging in behaviours that would offend other members of society. Its concern is rooted in protecting individuals from being subjected or exposed to controversial or offensive behaviours.
John Stuart Mill, On Liberty
In John Stuart Mill’s essay, On Liberty, he addresses the inherent struggle to find harmony between the individual’s private liberty and the authority of the state. Liberty refers to individual interests and protection against political leaders; whereas authority of the state refers to the powers vested in the state to which they govern and restrict the individual’s liberty in society. The purpose of Mill’s essay is to purport one very simple principle: the interference with the liberty of the individual must seek to prevent harm to others. If any individual engages in behaviour that hurts others, there arises a prima facie case for punishment by law, and where legal sanctions are not imposed general disapprobation would apply.
Millalso explains that there are situations where the law imposes an affirmative duty to act for the benefit of others. Individuals can cause harm to others by action but also by inaction, and in cases of inaction, these individuals must be accountable to society for the resulting harm. The only freedom which is tolerated is freedom which allows one to pursue their own personal good as long as it does not inflict harm on others, or deprives others of their ability to obtain their own personal good.
On the Liberty of Thought and Discussion
Given that the individual is understood to be the best judge for him or herself, when the state interferes it is understood to be wrong. Individuals must have the opportunity to express their ideas and thoughts with one another uninterrupted by the state. However, there is one exception to this position: Mill tolerates state interference with respect to the economy.
Application of The Harm Principle to R v. Sault Ste. Marie
With absolute liability offences, an individual’s right to defend against a criminal charge is restricted, as they are dispossess of their right to disprove mens rea. Applying the harm principle to the present case, it is likely that Mill would rule consistently with the court for the following reasons. As pollution to the environment can result in long term irreversible effects to the environment, it is likely that Mill would support absolute liability offences since Mill’s harm principle seeks to prevent irreversible adverse effects.
As absolute liability offences involve negatively impacting an individual’s rights for the greater good of society, the harm principle denotes similar logic. The harm principle emphasizes that one can harm one’s self to the extent that it does not harm others, and in the case of pollution, it inevitably has long-term and wide ranging effects on the rest of society. Accordingly, the harm principle would justify the development of absolute liability offences in the environmental context.
Furthermore, if one made the argument that polluting water would only harm the individual, this argument would likely fail given that it is probable that the individual would become ill as a result, and would burden the rest of society with the impacts of their illness on the public healthcare system. This logic pertains to the idea of ‘no man is an island;’ and arguments founded on this basis would likely be refuted applying the concept of the harm principle.
The similarity between Hobbes and Mill’s conception of the state, and the source of sovereign power which properly lies in the amalgamation of individuals by way of a social contract into a sovereign body, is well recognized. As Mill is an advocate for democracy and for promoting an individual’s liberty, he may not necessarily support the idea of promoting judicial activism in the creation of strict liability offences favouring the accused - in this case, the municipality. This concern may be reconciled by treating the city as a leviathan (mass of people acting as one person), and with considering the nature of democratic government – promoting self-government of the people.
Paternalism:
Dworkin contends that paternalistic restrictions on individual’s liberty should be thought of as a type of social insurance policy that most individuals would assent to, as these restrictions protect all members of society from engaging in behaviours that are potentially harmful. Paternalistic interference on an individual’s liberty is justified when it seeks to prevent damage or harm to the individual’s personal autonomy because paternalism aims to promote the personal autonomy of the individual.
Application of Paternalism to R v. Sault Ste. Marie
By restricting one’s autonomy through absolute liability offences, the law can be understood as exercising a paternalistic control over an individual’s actions in order to preserve that individual’s health and longevity. With public welfare and regulatory offences, the individual’s liberty is restricted as to disallow the individual from engaging in behaviours that would ultimately harm them through degradation of the community. This logic is consistent with the principle of paternalism. Paternalism asserts that individuals should only engage in behaviours where they do not harm themselves.
In R v. Sault Ste. Marie, the impugned law pertains to protecting the environment from pollution. As environmental pollution has adverse effects on the individual and society as a whole, one could view public welfare and regulatory offences as amounting to a paternalistic vehicle to safeguard individuals from personal destruction and harm. Given that the rationale underlying public welfare and regulatory offences is consistent with paternalism, it is likely that Dworkin would rule the case just as the court did in R v. Sault Ste. Marie. As paternalism is concerned with preventing individuals from engaging in behaviours that could harm themselves it is likely that Dworkin would support both absolute liability and strict liability offences for the following reasons. Absolute liability offences pertaining to the environment seek to protect the environment by prohibiting individuals from engaging in activities that could inevitably result in pollution. As pollution generally has irreversible adverse effects on both individuals and society as a whole, paternalism would likely support absolute liability offences in the environmental context. With respect to strict liability offences, this type of offence affords the individual the ability to defend against a criminal charge by proving due diligence on part of the defendant. This allows an individual to be protected from harm (legal punishment), and is also consistent with a paternalistic view.
A radical and contemporary movement in the philosophy of law contends that all law should work towards maximizing the welfare of society. Welfare, by these theories, is taken in the broadest sense, to include not just monetary wealth but also all ‘measurable satisfaction’. This theory operates on both a descriptive and normative level. This is to say that economic efficiency theories hold both that the law currently operates to promote maximum welfare regardless of the given justification for a law. It also operates on a normative level to say that law ought to operate to maximize efficiency.
Theories of economic efficiency rely on two fundamental postulates in order to operate. The first postulate is that people are rational beings who are rational when acting on their own choices. As such, when people make choices they optimize for their own self-interest. Of course, this assumption is entirely uncontroversial. This assumption is fundamental because economic efficiency theories believe that the law ought to be able to guide the interaction of rational individuals, and not account for any supposed irrational behaviour. Economic efficiency theorists do, however, recognize that the rational man, if allowed to operate unencumbered, will tend to maximize his or her own welfare to the detriment of society at large.
Economic efficiency theorists hold that when a rational person maximizes his or her welfare to the detriment of others a negative externality is created. Theorists argue that the aim of law should be to minimize these externalities, and in fact ensure they are internalized to the individual who creates the externality. This principle and the second postulate (the Kaldor-Hicks criterion), holds that a state of affairs is efficient, on a societal scale if and only if, in going from S to S1, the winner would compensate the loser so that no one would be worse off than they were in S and at least one person would be better off in S1. In a non-technical formulation of the Kaldor-Hicks criterion states that an action should only be allowed where no one is left worse off than if the action did not occur, and at least one person benefits from the action.
Application of Utilitarianism
In R v. Sault Ste. Marie we can apply the descriptive framework of the economic efficiency theorist to better understand the case. In this case the accused, the municipality of Sault Ste-Marie, attempted to maximize its own welfare [and that of its citizens] by procuring the lowest cost contract for the disposal of garbage. However, the benefit acquired by the accused, realized in the form of cost savings for the city by not entering into a higher cost contract, or alternatively by not expending additional resources to ensure safeguards were in place to prevent pollution of this nature, resulted in a negative externality when the contractor for the city improperly disposed of the garbage thereby creating a pollution problem. Under the Kaldor-Hicks criteria, the City of Sault Ste-Marie, by taking an action which lowered the welfare of society overall, had decreased the welfare of society overall.
Threshold question: How would an economic analysis of the issue in R v. Sault Ste. Marie proceed? As a general principle, an economic analysis of law is quantitative and therefore seeks to operationalize legally recognized concepts as variables in an equation. A formula and operationalization may actually look like this:
Cost of doing something about pollution < status quo (value of not doing anything)
Social Gain (net wealth) = Monetary penalty + Stigma + Restriction of Freedom + Right to due process
In this equation the cost of regulating industry to limit pollution is weighed against the benefit provided by limiting pollution. A law and enforcement mechanism which is overly onerous will limit the net benefit provided to society by stifling industry. Conversely, a law which is overly permissive may also limit the net benefit to society by allowing too much damage to occur. In this case, the environmental regulation balances the cost of regulation against the cost pollution by providing a weak enforcement mechanism. While the categorization of the offence is strict liability the penalties for committing an offence are rather small. The offences can therefore be said to act as a deterrent against polluting without being overly onerous on business. However, we do not think that the logic of economic law theorist is fully reflected by court’s judgment R v. Sault Ste. Marie.
Economic law theorists generally see the purpose of criminal law to be a deterrent for activities where the perpetrator is unable to compensate the victim. In this case the perpetrator of the offence, a major municipality, does have the means to compensate the victims. It is therefore likely an economic law theorist would argue that any action against the city should proceed in tort and not in criminal law. In tort law, the tortfeasor would be able to sue for damages and obtain compensation which reflects the true cost of the action.
FEMINIST LEGAL THEORY
Patricia Smith, in her efforts to introduce feminist legal theory, offers the “reasonable working definition that feminist jurisprudence is the analysis and critique of law as a patriarchal institution”(Dimock, 2002, p.141). She contends that while there are many different tenets of feminist legal theory, including liberal, radical, marxist, and postmodern, one uniting principle is their universal rejection of the patriarchal organization of society, including patriarchy in the legal system and within the law itself. Moreover, throughout feminist legal theory’s external critiques of legal structures, are challenges to the neutrality of law, impartiality of judges, model of judicial reasoning, and the separation of politics and morality.
According to prominent feminist legal scholar Catherine Mackinnon, when the state incorporates patriarchy “two things happen: law becomes legitimate, and social dominance becomes invisible” (Dimock, 2002, p.150). Further, she argues that through “legal mediation, male dominance is made to seem a feature of life” (ibid.). While MacKinnon is not alone in her adamancy that patriarchy must be dissolved, Patricia Smith argues that the rejection of the patriarchy would amount to a cultural revolution (Dimock, 2002, p.147). She argues that “what changes in a cultural revolution is what people think, their basic assumptions about what is normal [and that] when women and men actually think of themselves as equals, the world will have changed” (Dimock, 2002, p.148).
Application to R v. Sault Ste. Marie
The factual events of the Sault Ste. Marie case involve the city of Sault Ste. Marie, a prime example of a patriarchal governmental institution in feminist legal theory, contracting out labour to the Cherokee Disposal and Construction Co. Following, Cherokee Disposal engages in a “continuous slope” method of disposal which ultimately, resulting in the pollution of the Ste. Marie, or Saint Mary, river.
The factual metaphor we can draw from the case, of the patriarchal city’s defiling of mother earth and St. Mary River analogously illustrates a common theme in feminist legal academia and literature; male domination over women. Likewise, various other feminist legal theory positions can be applied to the Sault Ste. Marie court’s discussions on public welfare offences, absolute liability, and strict liability to defined their relative positions.
“Public” Welfare Offences
The Sault Ste. Marie case acknowledges that public welfare offences lie in a field of conflicting values and contends that public welfare offences are “essential for society to maintain, through effective enforcement, high standards of public health and safety” (Dimock, 2002, p. 163). Given that all feminist legal theory is united in their common recognition and rejection of the fact that society is currently built on patriarchy, they would all reject the aim of public welfare offence to maintain the status quo of societal structures.
Instead in regards to public welfare, relational feminism posits that a cultural revolution is needed in order to “change institutions to reflect and accommodate the value that should properly be accorded to characteristics and virtues traditionally associated with women, nurturing virtues such as love, sympathy, patience, and concern” (Dimock, 2002, p. 144). Thus relational feminists would reject that public welfare offences as they are present in the Sault Ste. Marie decision, in fact articulately represent the “public” and instead in reality represent a male public.
Liability Frameworks
One of the most significant impacts of the R. v. Sault Ste. Marie for Canadian law is the discussion of absolute liability and the creation of the strict liability regime. In determining ultimately to endorse a strict liability regime for public welfare offences, the Supreme Court in Sault Ste. Marie weighed the arguments in favor and in opposition of both frameworks. Furthermore, illustratively the reasoning within the court’s discussion embodies the different streams of feminist legal theory and thinking.
Absolute Liability
The Sault Ste. Marie court’s arguments in favor of absolute liability includes, 1) the protection of societal interests requires a high standard of care and attention on the part of those who follow certain pursuits and such persons are more likely to be stimulated to maintain those standards if they know that ignorance or mistake will not excuse them, 2) administrative efficiency; the difficulties of proving mental culpability and proof of fault in a number of petty cases is too great a burden in time and money to place on prosecution, 3) convictions will carry slight penalties and does not carry the same social stigma associated with criminal convictions.
As applied to the feminist legal lens, the fundamental requirement of an absolute liability offence involves simply proving the actus reus of an offence. Thus under absolute liability the gender element is entirely removed, there is no concern of judicial partiality or gender bias since the offence will be proven strictly on the basis of whether a person “commits the act specified or brings about the result specified in an absolute liability prohibition” (Dimock, 2002, p.161). Ultimately, including a mens rea requirement of “guilty mind” begs the question of determining if there is a distinction between a male and female guilty mind and if the law is applied accordingly.
Liberal feminism supports absolute equality between men and women and thus would support the elimination of a mens rea requirement, since the inclusion of such a requirement opens the judicial process up to discretion and consequently gender inequality and bias. The neutrality inherent in an absolute liability framework, would also be support by radical feminism’s contention that gender is merely a social construct and hence, should not be considered in society’s institutions, especially within the judicial system or in application of the law.
Strict Liability
Alternatively, the court considered the benefits of a strict liability regime, which “allows the court presume negligence whenever a person is found guilty of the actus reus of the offence, but the defendant could challenge that presumption by proving that he or she acted with due diligence” (Dimock, 2002, p.161).
Postmodern Feminism contends that there is no single solution to the oppression of women in society, as such they would support the contextual approach that a strict liability regime affords. Postmodern feminist rejected the proposition of a universalistic theory of human nature, thus a strict liability system that affords more discretion would be better situated to recognize that uniformity is not and should not be a reality. Instead, postmodern feminism encourage diversity and consequently, require “contextual judgment and accommodation of the particularly human experience” (Dimock, 2002, p.144) in the legal system.
Relational Feminists would also support a strict liability framework over an absolute liability framework because under a strict liability regime there is an opportunity for a defence of due diligence and proof that an individual was not negligent. Relational feminist Carol Gilligan hypothesized that “men and women are fundamentally similar but undergo a different moral development process” (Dimock, 2002, p.144). She explains that while “the predominant moral attitude of men concentrates on abstract rules, principles, and rules-ethic of justice…the pre-dominate moral attitude of women-ethics of care-focuses on concrete relationships, concern for others, and responsibility” (ibid.). Ergo since a strict liability regime principally values the exercise of reasonable care and moreover for public welfare offences, care for others in society over the interests of the individual, relational feminist would support a mens rea requirement in a liability framework.
Critical Legal Theory
Within the Critical Legal Theory, the branch known as critical race theory posits that the concept of “race”, as we have come to know it, is an artificial social construct that arose out of a “general impulse” to categorize everything as a way of understanding the world around us. Duncan Kennedy, regarded by some as the founder of the critical legal studies movement, contends that other social constructs, the legal system among them, exist principally as a means of maintaining power and the ‘natural order’ of dominant perspectives over minorities. The consequence of inherent institutional biases are further expanded upon in the nineth central theme of Wacks’ analysis, which uses critical race theory as a lens to examine why racialized minorities are underrepresented in legal practice yet over-represented as criminals in the justice system.
Correcting institutional discrimination with guided judicial discretion - Gladue
While R v Sault Ste Marie does not explicitly incorporate the logic of critical legal theorists we do believe that our legal system, on an institutional level, has begun to recognize and incorporate the criticisms and logic of critical legal theorist. In R v Sault Ste Marie the Court develops a three element typology of criminal offences. The first and historical element is true crimes which are offences which require the Crown to prove the full mens rea and the actus reus. The other two elements require the crown to prove only the actus reus with the mens rea than presumed. Overtly, this three element typology is innocuous, however Mr. Kennedy’s critical legal theory gives us the tools to uncover the manifest injustice perpetrated by it.
Understanding the role of the law, according to Mr. Kennedy, requires us to understand how the law is embedded in and a product of societal systems of power. Critical race theory tells us that our system of law is predicated on and depends on an embedded conception of racism. The racist tendency works to provide an ‘other’ - a demonetized minority within society by which the rest of society is defined against. In effect, the majority creates identity by contrasting itself against the minority. This has the effect of legitimizing the majorities’ retention of power in the system. The minority is seen as weak and unintelligent while the majority, in contradistinction, is intelligent, rational and wise. Our judicial system reflects this logic of racism. First, police are far more often to arrest or detain an individual who is a member of a minority than who is a member of a majority. Crown prosecutors typically levy more serious charges against a member of a minority than a member of a majority, and will also offer plea deals which are less generous. The result of this front loaded system of racism is that, by the time a member of a minority reaches a court they are already at a severe disadvantage relative to their counterpart.
Our judicial system exacerbates this disadvantage by the manifest effect of two institutional facets. First, our legal system underrepresents minorities meaning that a member of a minority will likely plea his case in front of a court comprised of members of the majority. Secondly, our legal system not only fails to recognize its internalization of racism, but rather aggravates the deleterious effects of the racism on minorities by maintaining features which work to propagate injustice. The development of absolute and strict liability offences, are in this sense, racist. By removing judicial discretion and failing to account for the systematic racism of our legal system absolute and strict liability offences ensure that more members of a minority will be convicted of offences. Critical legal theorist would argue that in order to combat this insidious vein of racism our judicial system must both combat the tendy within itself to produce racist outcomes, and also to empower minorities within the judicial system in order to combat underrepresentation of minorities in the legal system.
Critical Race Theorist’s Perspective on Sault Ste. Marie Judgment: Social constructs
Legal systems
Duncan Kennedy would likely reject the legal system as a construct of the dominant perspective, and seek to avoid the power imbalance inherent in the adjudicative resolution of disputes through the Courts. For Kennedy, our adversarial court system represents a particular configuration of power wherein the state, represented by the judge, has a preponderance of power over the accused. In many respects, particularly given the demographic profile of the judiciary, the asymmetrical distribution of power is the apotheosis of patriarchy. A critical legal theorist would seek to define and implement a judicial system that eschews this inherently repressive institution in favour of a system which recognizes and respects the unique cultural composition while countering the asymmetrical distribution of political power in Canada.
Within the context of these fundamental realizations of critical legal theorist it is likely that Kennedy would reject current our current legal system and support a culturally sensitive alternative approach. Alternative dispute resolution process which work to diffuse power through all participants of the forum and therefore works as a check against the preponderance of state power as expressed by the criminal justice system and which embodies the patriarchy.
For instance, where it concerns Canadian Indigenous or First Nations communities, community-based resolutions such sentencing circles would neutralize the political barriers to meaningful resolutions by seeking contribution from all relevant stakeholders while adopting a deferential way of administering appropriate resolutions for the accused and the aggrieved parties.
Mens Rea
The measure against which the Court seeks to establish mens rea, that being the guilty mind of the reasonable objective person, is also an arbitrary construct fabricated from the perspective of the Majority. Hence, the guilty mind requirement of strict liability offences are not measured against the actions of a reasonable person, rather, a ‘reasonable “white” person” in the circumstances of the accused. In this way, the objective threshold of reasonability does not take into account a person’s background, culture, experiences and beliefs.
This is problematic since an abundance of empirical studies, statistics, and qualitative analysis has shown that often people in society are not in the same circumstances. For instance, the Court in Humaid advocated that the Court ought to take the culture of the accused into consideration only to the extent that it is not contradictory to the underlying principles of the Charter.
Public Good
A critical race theory highlights the need for uncovering the constructs within the our institutions such as public welfare offences which attempting to uphold the “public good”. For example, as critical race theory highlights often conceptions of “public” reflect the dominant majority of society.
Within the Sault Ste. Marie case there are several elements which highlight the inherent racism and power inequalities built into our judicial system. Firstly, the case discusses “public welfare offences” and characterizes them as regulatory offences attempting to uphold the “public good”. The essentialist notion that it is possible to denote what is in the “public interest” naively ignores the inexhaustible factions within society. For example the intersectionality approach argues that an accurate assessment of society or the “public” would need to recognize the division of race, gender, and class. The falsely of “public welfare offences”, within the Ste. Marie case, serves to recognize a majoritarian perspective of public interest and further to codify the dominant majority’s view within the law, ultimately reinforcing the power imbalance. Moreover the fact that the power disparities are structurally reinforced through the judiciary, the symbol of justice and equality before a neutral blind law, further embeds the fallacious narrative of equality and circumvents criticisms of the system. Another example of this oversight is illustrated in the decision's discussion of “guilty mind” mens rea. The faithful narrative of the universal application of mens rea, false assumes and embeds the majority perspective.
Dimock, S. (2002). Classic Readings and Canadian Cases in the Philosophy of Law. Toronto, Ontario: Pearson Education Canada.
