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Welcome to Group N's wiki entry! This wiki entry examines Childs v Desormeaux 2006 SCC 18 from a variety of theoretical perspectives.

Childs v Desormeaux 2006 SCC 18

Childs v Desormeaux was a negligence tort case that decided the issue of social host liability.

Desormeaux left a private BYOB-style New Year’s party and was driving impaired when he hit another vehicle head-on. The collision resulted in one death as well as the paralysis of Childs, who then brought action against Desormeaux and the party hosts. Desormeaux had neither the funds nor the insurance coverage to satisfy any potential judgment, so the hosts and guests were pursued collectively. This action give rise to a new judicial question: whether social hosts owe a duty to third parties who may be injured by intoxicated guests. The decision would be an important one for Canadians. A finding of liability would mean that a new duty of care would be recognised by Canadian courts.

The case was appealed up to the Supreme Court of Canada. In order to determine whether the case introduced a novel duty, the court first considered whether there was an analogous duty. McLachlin, writing for the court, began by analyzing the potentially analogous duty owed by commercial hosts to third parties. She found three important features to be absent: control of consumption, lack of statutory regulation over social hosts, and the economic incentive to over-serve. These party guests arrived with their own liquor and consumption was not monitored.

The court then moved on to the foreseeability and proximity analysis from the Anns-Hill test for duty of care. It was found that the defendants had not created an obviously risky situation, had no relationship of supervision or control over their guests, and were not impliedly responsibile to the public at large in the way a commercial host is.

Ultimately, the court refused to recognize the novel duty of care on the basis that that proximity could not be established between a host and third party highway user. McLachlin noted that imposing a duty of care in the absence of reliance or creation and control of risk would be unjust. Desormeaux, she held, did not check his autonomy at the door and there is no reason why others should be made to bear the costs of his risk.

Legal Realism

Key Themes

Holmes said that "the life of the law has not been logic - it is experience." For the legal realist, the law lies ultimately within our judges and their decisions and is strongly rooted in the experiences of those sitting in the judiciary. Of all the legal perspectives, legal realism arguably places the most importance on these members of our courts in influencing the law. This perspective maintains that legislation does not become law until it is applied by a judge deciding a case. Law is not a scientific set of rules applied by neutral judicial actors, but part of a larger system aiming to achieve certain desired social results. Legal realism is skeptical that not all is as it seems, and focuses on the illusion that serves to mask what the judicial process truly encompasses.

Links to Other Theories

While natural law theory would maintain that the desired result is strictly that of a morally right or "common good" goal, legal realism prefers not to dip so much into morality in analyzing judicial questions. This is not to say that judges do not consider the common interest in their decision-making. The legal realist would simply say that judge's goals are not dependent on morality and law's validity does not rely on this. Jerome Frank would likely prefer Hart's emphasis on separating morality and law, and the two theorists would probably come to the same conclusion on some legal issues. However, the two theories differ greatly on their views of the "penumbra", or supposed unsettled areas of law. While the separation thesis notes that judges cast illumination in their rulings on penumbra cases, the legal realist would maintain that all cases are virtually unsettled because until there is a ruling ultimately there is no true law, only potential law.

Theorists operating in this arena link theoretically to economic theory as well, in that both theories assume a similar underlying desired social result. For the economic theorist, the end result is that of "maximization of social wealth". For legal realists, the end result can be more complex but often parallel to the economic goal of efficiency. However, on closer examination, these two theories are different from each other as well. For economic theory, the goal is always known and lies in maximizing social wealth. It is an almost mechanical process of weighing judicial rulings in terms of how "efficient" they are for society. While judges are the facilitators of this process, they do not harness the power that legal realism places on the judicial role. Rather than thinking of the legal structure as a system of rationality, legal realists prefer to recognize the important and discretionary role that judges play in the process. Legal rulings then are the result of a particular social end working in tandem with legal precedent and personal characteristics of the judges.

Another theoretical framework that legal realism can be said to link to is feminist theory. The two frameworks appear at first to be unrelated in how they perceive the legal system. Feminist theory in fact is very diverse, a feature that legal realism does not share. However, when you scratch beyond the surface of both theories, we see that the two share the same skeptical view of the legal system. Legal realism asserts that there is an 'illusion' put forth that our legal system is structured on principles of legal precedent and that decisions are made using reasoning and recognized rules. In fact, the realists say, the law is decided and dependent on what the judicial actors' preferences and ideas are. Similarly, feminist theory attacks the 'illusion' inherent in our patriarchal society and is skeptical of all societal structure that is rooted in the domination of men over women. These two frameworks can be said to offer a more skeptical view of the contemporary legal system, and both analyze the law in a way that we traditionally are not used to doing.

Application to Childs v Desormeaux

If we view the ruling in Childs through a legal realism lens, we would see that McLachlin was careful to consider social advantage needs with legal precedent and we would say that her own personal judicial 'hunch' played a role in the ultimate decision. Court looked first to the prior decision in Cooper to determine whether there was an existing duty of care of a social host to a third party. After finding that there was no prior legal duty recognized by the judiciary, McLachlin turns to the closest analogous duty - that of the duty of commercial hosts to third parties. The legal realist would mention at this point that McLachlin begins to apply her own personal perceptions and characteristics to the situation at hand. She identifies differences between the social and commercial host that are relevant and speak to the differences in duty for each. McLachlin identified several factors unique to commercial hosts that warrant placing an affirmative duty. Commercial hosts have the capacity to monitor alcohol consumption and the public expects commercial hosts to operate in this manner. Second, commercial hosts are strictly regulated by legislation and there is an expectation of duty that accompanies this. Third, commercial hosts have a monetary incentive to over-serve patrons, a feature that social hosts do not share.

McLachlin then looks at the circumstances that would warrant finding a positive duty by social hosts, but determines that the circumstances do not support a finding of affirmative duty. She maintains that the common law is a “jealous guardian of individual autonomy” and that guests who accept an invitation to attend a private party do not park their autonomy at the door. A legal realist would conclude that not only is the common law a "jealous guardian" of individual autonomy, but that McLachlin agrees with this line of reasoning. If Oliver Wendell Holmes were sitting in this court, he would likely agree with McLachlin’s decision insofar as it is careful to keep morality separate from law. Although a ruling imposing a duty of supervision by hosts over social party guests could be considered to be morally right with regard to public safety, it sacrifices some of the principles set out by negligence law.

Jerome Frank would maintain that most important and influential here was McLachlin's judicial hunch concerning the upholding of personal autonomy. She recognized her role in adjudicating this issue and used her power to make a legal decision in the common interest. Frank would say that the Childs ruling demonstrates how the law is relatively dynamic and difficult to predict.

The court evaluated previous law pertaining to commercial hosts, and then used this 'illusory precedent' to formulate a decision. The court's decision then was a complex mixture of previous principle, personal preference, and experience, combined with the duty to weigh considerations of social advantage and public policy. In this case McLachlin and the majority's view on personal autonomy was the source of the law rather than the neutral application of a rational set of scientific rules. After all, legislation and previously established law are simply "potential" law, or the "grist for the mill". Although there was some application of precedent here, the final ruling could be said to be a reflection of the court's interpretation of former decisions with the ultimate goal of forwarding personal autonomy.

Traditional Natural Law Theory

Key Themes

Natural Law theory has gone through several reiterations. Linking these iterations together is the continued belief that true law is not a human artifact. True law is sourced from God, nature, or reason. For this reason, law must be obeyed not just for fear of punishment, but for reasons of justice, fairness, and morality. Morality-as-impetus is an important feature of Natural Law theory, for law is morally right by way of origin. St. Thomas Aquinas’ Natural Law theory is one of these iterations. Aquinas conceptualised law as a product of human reasoning. Because the ability to rationalise was created by God, correct employment of this ability will incline one towards morality. This inclination towards morality inherently puts one on the path towards the common good.

Links to Other Theories

Natural Law Theory laid the foundation for later developments in legal theory. Many of its central tenets were critiqued or modified. Legal Positivism was one of the first instances of this. It developed as a reaction to Natural Law theory and explicitly held, contrary to Aquinas, that law is human artifact. Many theorists have since agreed. Austin, a positivist, adopted and modified Aquinas' to morality. Aquinas held that we must follow the law because law is morality. Austin held that we must follow the law because there is a moral obligation to do so, but laws are not necessarily congruent with morality. Modern Positivists like Bentham, Hart, and Raz, made it possible to challenge the law because it was no longer seen as received from God. Known as the separation thesis, law was now separate from morality. Hart, speaking for this thesis, held that law and morality were distinct concepts. However, the role of morality never quite falls out of fashion. Lon Fuller, writing about the morality of law, would come to argue that law is undeniably influenced by morality. It permeates the way we formulate and maintain our legal rules.Yet still, the legal realist turned the conversation back around, arguing that judgments are not dependent on morality.

What makes a law valid has also been challenged. For Aquinas, the validity of a law turns on whether the law was teleological in nature,whether is delivers us on the path to the common good. Austin later differed on this point. For him, a valid law simply need to coherently tell us what to do.

Natural Law has most recently been critiqued by critical legal scholars and feminist legal theorists. Together they state that the application of a universal concepts, in the case of natural law that law originates from outside the human, legitimates and masks the inequality inherent in our legal system.

In this section we ask, does the decision in Childs v Desormeaux prevail upon Canadians to strive toward the common good? How would Aquinas interpret the facts of the Childs case? How would Mc Lachlin's judgement have been received by Aquinas?

Application to Childs v Desormeaux

Putting the case in an Aquinian Context

The “common good” is a destination forever on the horizon of humanity. There, human inclinations towards self preservation, procreation, living in society and exercising spiritual and intellectual capacities are upheld as quintessential communal goods essential to all humans. What may be the common good for the community, isn't necessarily what's good for the majority of people in the community. Still, each person naturally strives for the good. Laws form the reasoned guide one follows in order to reach the good. The practice of striving for the good is reinforced by obedience to the law. Where one fails to obey the law, threats, force, and punishment may be needed to realign the offender with the goal of seeking the common good.

Legislation was St. Thomas Aquinas’ preferred form of law. He conceptualised legislators as possessing greater authority, and therefore greater wisdom. Legislation was more likely moral with a general application, because the legislators will not have been moved by emotion or particular circumstance. In this case, Desormeaux is guilty of an act prohibited by legislation. Although it is human nature to seek the common good, the practice of which means obeying the law, it doesn't preclude one from making mistakes.

At issue in this case is whether someone other than Desormeaux can be identified as also making a mistake, but at common law. For Childs, the event challenged her self preservation, her ability to live happily in society, and put common goods at risk for the entire community. How the law develops in this decision must be valid if they are to function as signposts on the path toward the common good.

Four Elements of a valid law: The Childs judgement through an Aquinian lens

In circumstances where the legislation does not apply, judges must make a decision about what is just. A just judgement requires prudence and justice. Where the legislation is in line with the pursuit of morality, the judge must apply it. Otherwise, the judgement must be characterised by the spirit of the law which always aims at the common good.

McLachlin, in Childs, had the responsibility of deciding whether social hosts who invite guests to an event where alcohol is served owe a legal duty of care to third parties who may be injured by intoxicated guests. McLachlin concludes that "[a] social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest's actions, unless the host's conduct implicates him or her in the creation or exacerbation of the risk." (McLachlin at para. 47). To determine whether this statement of law would be considered valid by Aquinas, one must consider the four elements of a valid law.

1. The law must be directed towards the common good. Aquinas believed that order is imposed by the law as each person strives to follow it, reaching toward the common good. Stability, argued Aquinas, is the facilitator of happiness in a community. Today, the common law respects a person's right to not become involved in a situation where there is no prima facie duty of care. McLachlin decided that social hosts didn't have a prima facie duty of care to third party users of a highway. This law facilitates stability by honoring the valued principle of autonomy. Personal autonomy is an important aspect of self preservation, procreation, living in society and exercising spiritual and intellectual capacities,and other recognised elements of the common good.

2. The law must follow practical reason. Laws are the signposts on the path to achieving the common good. As described above, the law is devised through the God given capacity to reason. The steps the law says we must take must be directed at achieving the common good. If one thinks about the law as signposts telling one which path one must take in a particular circumstance to continue towards the common good, you can imagine McLachlin’s decision as one that tells us what we do not do in order to keep on the path towards the common good. This works to protect autonomy, and thus moves us towards the common good. It sees each individual person responsible for keeping themselves in line with the law. This personal challenge keeps one striving for morality and in effect brings the community closer to the common good.

3. The requirement of a valid law maker. Aquinas sees the role of the law maker as naturally appointed. Democracy does not determine the relationship between the ruled and the ruler. However, the rulers know what is in the common good. To achieve happiness, they can threaten, coerce, and punish the ruled. In Childs, McLachlin is appointed as judge. The appointment of judges in Canada is not a democratic process per se, but it would be difficult to say that judges in Canada "naturally" rule. Still, they are considered as valid law makers in our modern judicial system. As Aquinas believed should be the case, Canadian judges do not simply fulfill the wishes of the community. Rather, they make reasoned judgments. Judges rely on the principles of sentencing set out in legislation or use tenets of the common law to ensure that “the ruled” stay on the path to the common good.

4. Promulgation. Aquinas believed laws must be written and known. He considered this a condition of justice because one cannot be compelled to obey a law one does not know exists. McLachlin’s rule, though not written in legislation, is widely accessible to the public through official court reporters. The decision in this case was also widely reported on by national newspapers and news broadcasters. The steps one needn’t take to achieve the common good, then, are known.

From this analysis of the four elements of a valid law, it is clear that McLachlin’s judgement was valid law.

Natural Law Theory and Childs: Summing up

The decision in Childs prevails upon Canadians to strive toward the common good. Analysis of the facts and judgement from the Childs case through a Natural Law theory lens highlights how Natural Law theory is teleological. McLachlin’s judgement focused on autonomy, and can be understood as imposing order and creating signposts on the path to the common good. By all means, should you conduct your own Natural Law analysis of this case and find that McLachlin’s rule is not valid, then indulge in Aquinas’ belief that you need not follow it! After all, an unjust law is no law at all!

Legal Positivism

Key Themes

Legal positivism is a reaction to natural law's teleological idea that all laws are directed toward some morally right or common good goal. Positivism sees law as a human construct rather than a channeling of divinity. Thus, if made by humans, law can be and is capable of being immoral. An outright rejection of natural law's insistence that law lacking in morality is no law at all, legal positivism maintains that what gives law its "law-ness" is not its morality, but its role as command. On this point, positivist Austin agrees with legal realism that law and morality are separate domains. However, Austin does not reject the idea that over time, laws have embodied moral principles - he simply does not see moral content as a necessary element of law. What is necessary is that the law be empirically provable, meet the criteria of a command, issued by superiors to subordinates and be backed by sanctions.

Austin's theoretical framework grew from the era of the French Revolution and it is important to understand that he was living in a time when the legal and social system was being rejected on the basis of its immorality. Naturally, Austin's experience caused him to refuse the natural law idea that all laws are directed toward some moral, common good. Positivism sees law as command , in the form of God's law, positive morality (manners, customs, norms), and positive law (a command, issued by the sovereign and backed by sanctions). Validity of the law is rooted in Austin's "pedigree test" in which the legal rule is viewed in terms of its empirical proof, its identity as a command backed by sanctions, and its legitimacy of creation (that it was created in accordance with the rule of the law-making jurisdiction). The positivist maintains that we have a moral obligation to obey all valid law, that we may evaluate law with respect to its morality and that the legislature strives to make moral laws, but that the standard of justice is found in the law itself.

Links to Other Theories

While Austin has most often been compared to Aquinas with regard to the role of morality, legal positivism can also be examined in relation to other theoretical frameworks, such as legal realism. Most stark is the difference in how the two theories view the role of judges. While legal realism sees judges as the 'makers' of law, the legal positivists consider the judiciary to play a much less influential role. While judicial decisions are considered to be specific commands as opposed to the general rule of legislation, judges are only acting as ministers carrying out limited authority that is delegated to them by the state.

Austin and Fuller would likely tend to agree on the fact that morality is a part of law as a system. Fuller would be comfortable sitting on a panel with Austin in that the two theorists will including morality as a feature of the legal system. Evaluating morality within the law and recognizing the fact that our law-making authority does strive to produce moral order are features that both theoretical frameworks share congruency on. Where they part ways however, is at positivism's insistence that the standard to evaluating law essentially lies within the law, not on the underlying moral framework.

The modern positivists are more radical in their beliefs that although Parliament enacts laws, these rules can be the subject of critique. Bentham argued against the automatic assumption that Parliament passes good laws capable of making people better off. He maintained that law is man-made and should be evaluated on the basis of whether it maximizes utility rather than whether it is moral. Raz focused on justifying only those authorities that performed a service for their subjects by helping them to acting better (although this was not necessarily through furtherance of social or individual good).

Application to Childs v Desormeaux

If we examine the ruling in Childs through the eyes of Austin, it is likely he would maintain that the decision represents valid law in the form of a judicial decision handed down by the court. Austin would say that the "command" here was the finding of an absence of liability and duty on social hosts to third parties who may be injured by their guests. In this particular case, the common law determined the legal rule by examining precedent case law and upholding the principle of 'stare decisis' in its decision. Austin would say that this valid law had been created in accordance with the rules of the legal system. Bentham would evaluate the outcome of this decision in terms of maximization of utility. The question for Bentham would be whether the decision maximizes people's happiness and reduces people's suffering as much as possible. On this question, the issue of tort decisions in light of utilitarianism is complex. It is likely that Bentham would look positively at the Childs decision, as the outcome involves an upholding of personal autonomy for all of society - a finding that maximizes happiness for all citizens who value their freedom. It is true that the plaintiff in the case was left unable to recover damages from the defendants collectively, but the result did not prevent Childs from recovering damages absolutely. The ruling simply designated that she must pursue her tortfeasor separately from the social hosts. Raz would take a somewhat different approach in evaluating the judicial outcome. He would examine the ruling to determine whether it performs a service to society by helping people behave better than they would if there had been no legal intervention. The decision represents not only an upholding of personal autonomy, but also a placing of personal responsibility on each individual who attends private events. McLachlin noted that we "do not check our autonomy at the door" and Raz would applaud this decision's impact for society as a whole. The alternative to this has the potential to encourage people to behave less responsibly and Raz would say that the ruling does indeed carry with it the potential to help people behave better than they otherwise would.

The Separation Thesis

Key Themes

The central component to the Separation Thesis is that morality and law are rule governed practices that generate distinct sets of oughts, duties and rights. Hart advocates for analyzing the law according to what it ought to be, as opposed to what it is. According to the Separation Thesis, when we are deciphering what the law ought to be, we must follow the law (rule of recognition), as well as adhering to the rule governed practices. According to Hart’s theory, the rule of recognition holds that a law is made legitimate through its recognition; if it is generally recognized, followed and applied. Furthermore, Hart adds a theological dimension to his conception of law by arguing that law must fulfill a purpose; if law cannot contribute to the common good, it is not a law and we do not need to follow it.

Links to Other Theories

Hart’s basis for the Separation Thesis lies in his belief that the positivists explanation is not enough. While based on positive legal theory, HLA Hart distinguishes his view from the positivist school of thought, as well as the natural perspective, through his distinction of law and morality. Hart addresses the critique of positivism by focusing his theory on the points of intersection between law and morality. As opposed to Aquinas’ Natural Law theory which holds that morality is necessary for a valid law, Hart believes law and morality are two distinct concepts. While they may run parallel to each other, there are separate moral and intellectual values to be recognized. In controversy between moral and legal rules, Hart advocates for individuals to decide which obligation is greatest.Hart is one of the first theorists we have examined whose thought is as applicable to common law as it is to statutory laws.

While Hart has been quoted as saying that “uncertainty of meaning is made worse when the source of law is precedent rather than statute”, he provides judges with an integral law making role; which differs from Austin’s command theory which requires that a law be a command issued by the sovereign and enforced by sanctions. Rules developed in both statutory and common law need to be expressed in general terms, terms that apply to all of us in the same way. Within these rules, there will be a settled core of meaning and anything which does not fit within the settled core, which Hart refers to as "the penumbra". Cases which fall in the penumbra are referred to as the hard cases which are left to a judge to decide whether the particular case falls within the settled core of meaning. The Penumbra cases must be understood not in terms of their facts, or based on morality, but rather with regard to the rule governed practices which gave rise to them.

Application to Childs v Desormeaux

Childs v Desormeaux is a clear example of a penumbra case which falls outside of the pre established rules. Having been a common law decision, Hart would agree with the role of the judge in determining how the law applies to this case as it is outside of a settled core meaning. While the law is settled around similar circumstances where commercial establishments have been held liable for the subsequent conduct of their patrons, whether social hosts owe a duty of care to drivers who are injured as a result of their intoxicated guests is a hard case, which is left to the judge to decipher according to the rule governed practices that lie at the core of our legal system.

Penumbral cases are not about facts, but rather how the law can be applied in accordance with legal principles, and how this decision will impact the law moving forward. The right to personal autonomy is a recognized and valued fundamental principle of law, and was the most important considerations the judges faced when deciding whether to impose liability on social hosts to third parties that may be injured by the conduct of one of their intoxicated guests. HLA Hart would applaud the Childs v Desormeaux decision as it upheld the principle of personal autonomy and was in line with the terms of the rule governed practice.

Fuller's "Morality of Law"

Key Themes

Lon Fuller’s contribution to legal philosophy involves a critical evaluation of Hart's separation thesis and the role that morality plays in the legal framework. Fuller questions Hart’s declaration that law is separate from morality and that it is rooted in the recognition that law is only law because it is made by valid authority. Key to understanding Fuller's evaluation of the law lies in the questioning of the undeniable influence that morality plays in dictating how we formulate and maintain our legal rules. Fuller refuses to accept that law making authority is not grounded in morality and in the belief that our lawmaking system is morally good and valuable. Fuller notes that the general obligation to obey law is not fully explained without the presence of morality.

Fuller maintains that law is not simply a series of commands, and that there are various features of rules that fail to be valid law. He argues that legal decisions must be public and knowable, understandable and not contradictory, capable of being obeyed, consistent, and not ad hoc. In addition there must not be a disjunction between the legal rules our system sets out and how the rules are administered. If the law features all of these aspects, it generates morality and social order because citizens are capable of following it. Without this morality, law will not act like law.

Links to Other Theories

Fuller maintains that the separation thesis fails to consider that morality is the true underlying force that the law is built on. External social acceptance of legal rules depends not on our belief in the competency of our lawmakers, but on the belief that our legal system is founded on good, moral order. The obligation to obey and enforce the law is not fully explained, says Fuller, without factoring in morality.

Aside from this external morality, Fuller maintains that lawmaking serves an internal purpose of morality in effecting good order in society itself, through adhering to various intrinsic factors that, if satisfied will generate the internal morality necessary to produce good order in society. These include coherence, consistency, rationality, the requirement that law be known by those who must follow it, the capability of explaining law, and that it be justified. Without these requirements, “law” does not behave like law, regardless of acceptance of it as the product of a valid lawmaker. This is in stark contrast not only to the separation thesis but also to Austin's contention that the validity of law lies within its role as an empirically provable command backed by sanctions.

Fuller attacks Hart’s view of the problem of the “immoral law”, noting that if you separate morality from law, it becomes impossible to explain using the separation thesis the dilemma that people face in being pulled between duty to follow law and the knowledge that following the immoral law is wrong. Fuller further maintains that there is no such thing as a "core of settled meaning" and a "penumbra". Rather, law is interpreted by judges who examine the good that is to be accomplished by referring to both external and inner morality. Judges make law what it ought to be through this interpretation. Legal realism would agree with Fuller on this point, and however realism would state that it is the unique perceptions of the judges (with or without morality) that help to guide the law's formation.

Fuller would also identify with some of what natural law has to offer on the subject of law's validity. Natural law maintains that valid law is directed toward some common good, and that it follow practical reason in that it demonstrate reasonable steps leading to the common good. Aquinas notes that the law must be made by a valid lawmaker and that it be publicly proclaimed. All of this resonates with Fuller's demand that the law be influenced by morality and be capable of being followed by citizens.

Application to Childs v Desormeaux

If Fuller were sitting in on the Childs case, he would likely find first that the clarification of the duty owed by social hosts in this case helps to generate internal morality by adding coherence, justification, consistency and awareness of how Canadian citizens are expected to conduct themselves in the private party context. How do we know what conduct we are liable for and what we are not liable for if the law does not lay out such duties as the duty to third parties by social hosts? This judicial decision helps to clarify. The purpose of law, Fuller maintains is to produce good order and the clarification that the Childs ruling brings helps to accomplish this. It illustrates to social hosts that they do not generally owe a duty to unforeseen third parties, and it demonstrates that those citizens who attend private parties are expected to be responsible for themselves. Obviously Fuller would argue that the Childs decision was ultimately influenced by morality. At first glance it would appear that the ruling is immoral if viewed through the eyes of Childs herself. The decision technically does not compensate the harm done to plaintiff Childs, who truly was as innocent as they come. She was a third party driving in a vehicle who happened to have the misfortune of crossing paths with Desormeaux on that night. The ruling could be said to be an injustice to those innocent third parties who should not have to worry about travelling on the highways. Fuller might examine the decision in more detail however and see that although the ruling technically demonstrated a lack of culpability for the defendants, the decision did not theoretically leave Childs without a guilty party to pursue. It was unfortunate that the defendants were pursued collectively, as it is not in dispute that Desormeaux himself is definitely liable on his own for the damage resulting from his negligent impaired driving. Fuller would say that although the decision made by McLachlin renders the plaintiff without compensation, the alternative finding that social hosts owe a duty to unforeseen third parties is not representative of good, moral order. Fuller would maintain that to find social hosts liable in this way violates several of the validity rules required to make law valid. Rules must be knowable, understandable and capable of being obeyed, and Fuller would argue that imposing a duty on social hosts to have unknown third parties in their 'mind's eye' is unreasonable, unjustified and not rational.

Ronald Dworkin: A Principled Approach

Key Themes

Ronald Dworkin, in his 1967 response to legal positivism, initiated one of the greatest debates in legal philosophy. The jurisprudential community was fixated as the opponents shifted their positions with agility throughout the decades-long debate. Dworkin conversed with Legal Positivists about about what our legal system is comprised of and how it ought to function. His basic argument was that legality is not determined by social facts alone, but moral facts as well. This position directly undermined the positivist conception of law wherein legality is determined by social practice.

Links to Other Theories

Central to Dworkin's critique of positivism is the position he takes on the ontological foundations of legal rules, the incorporation of principles, and the existence of judiciary discretion. Like the positivists, Dworkin conceptualises rules as statements of law which judges are obligated to apply. In the majority of cases, judges arrive at decisions by applying the rules. Dworkin sees no judiciary discretion in this practice. He contemplates the existence of judicial discretion in what he calls hard cases. Here, there are no rules that apply. Positivists argue that in these rare, hard cases where no rules apply the judge is not obligated to reach a particular outcome. Dworkin disagrees: in hard cases judges do not make arbitrary decisions. They appeal to principles.

Although Dworkin's work is most commonly recognised in relation to positivism, it is worth noting that his work has itself been subject to criticism. Mill, who is explored the Liberty and Paternalism section of this wiki, takes a stand against Dworkin's paternalistic interference with autonomy. Mill argues that interference with an individual's self determination cannot be justified. Dworkin, on the other hand, argued that it is at times our duty to interfere in order to preserve that person's ability to make and act upon her own rational decisions.

In this section, we analyse the Childs decision with Dworkin's approach. Was McLachlin obligated to follow rules? Were principles were at play in McLachlin's reasoning? At what point was her judicial discretion employed?

Application to Childs v Desormeaux

Rules and The Ann's Test

In Dworkin's conceptualistion, rules are a type of standard. They function as "all or nothing" standards. A rule points to legal obligations in particular circumstances set out in previous legal decisions. If the facts of a case meet the criterion set out in the rule, then the rule is valid, and the resulting legal consequence must be accepted. In other words, rules necessitate a particular decision.

The issue in this case was novel: at that point in time, Canada's highest court had not yet considered whether a social host owes a duty of care to third party highway users. The rules that McLachlin was obligated to follow were those common law rules that had been assembled to form the Ann's test. A strict application of these rules led the court to conclude that the social hosts did not owe a duty of care to Childs.

Principles and The Ann's Test

Anyone reading the Childs decision with an eye towards Dworkin will recognise that the Ann's Test, or the part of the decision where the reasoning process unfolds, is significant. It is here that McLachlin highlights legal principles. She makes it obvious how legal principles infuse legal rules.

As McLachlin launches into stage one of the Ann's test, she traces the relationship between rule and principle. She states,"[t]he law of negligence not only considers the plaintiff's loss, but explains why it is just and fair to impose the cost of that loss on the particular defendant before the court. The proximity requirement captures this twosided face of negligence," (McLachlin at para. 25). The incorporation of concepts like negligence, fairness, and justice demonstrate the way a rule or test reaches out to legal principles.

Dworkin describes principles as the public standards of morality. They are not rules. They are standards that develop over time. They are morphed by the public and in law. They are standards that ought to be observed because it is a requirement of justice or fairness or some other dimension of morality. The power of principles lies in their continued acceptance by society. In contrast to rules, principles justify and support judicial courses of action. Where rules have specific requirements that must be met, principles have weight. For example, when valid principles conflict the proper method for resolving the conflict is to select the result supported by principles that together have the greatest aggregate weight.

Judiciary Discretion and the Infusion of Rules with Principles

Principles are not a sort of overarching rule. Rather, principles infuse legal rules. In this assemblage they constitute the law. The process of infusing legal rules with legal principle occurs when a case is not covered by rules. This is recognised by Dworkin as a hard case.

A hard case is covered by principles. Principles are binding standards, and judges are obliged to implement them where ever they are relevant. The right result is derived from the application of those principles by the judges. Through the process of legal reasoning judges discover rights and duties based on these principles. So, the new or modified rule is informed by legal principles. It is an iterative relationship.

Childs was a hard case. Although rules were available for application to the facts, it was a novel situation that created a new rule. McLachlin's decision is a perfect example of the principle infusion process. The principles of justice and fairness were engaged through the concept of negligence. The concept of negligence is captured by the Ann's test which is itself an assemblage of existing rules that at the time of their creation were themselves infused with legal principles. The principles, then, that were important in this hard case, came to stand for a new rule which did not exist previously. Rule interpretation and creation is always already limited by the principles which form and inform them. In other words, a judges' discretion is only as broad as the principles available to them.

Wrapping up Dworkin

Ronald Dworkin's critique of positivists, and Hart in particular, covered many disparate but related issues. Here we have touched on a few that were demonstrated well in the Childs case. For Dworkin the legal rights and duties discovered by the interpretive process are inherently reflective of the community. It is the community, after all who authors the concepts of justice and fairness as the legal principles to be adopted by the courts. This became clear as we dissected the Childs decision by looking at the role of rules, principles, and judicial discretion.


Key Themes

John Stuart Mill, in his harm principle approach, argues that liberty can be justifiably interfered with in order to prevent serious harm to others. The right to liberty recognizes that each individual is presumed to be the best judge for him or herself. While liberty is encouraged, is only to be afforded to those in possession of ‘mature faculties’, defined as having the capacity of being guided to their own improvement by conviction or persuasion.

Challenging Mill’s promotion of liberty, is Dworkin’s Paternalism theory. Dworkin advocates for paternalistic interference as a way of preserving autonomy. He argues that paternalistic interference is justified to prevent long term or irreversible damage to that person’s autonomy. Dworkin’s theory holds most applicable to cases where autonomy would produce irreversible and destructive changes; disagreeing with Mill’s contention that we are the best judges of what is best for us. Paternalism has involved identifying situations in which there can be exceptions to individual liberty and in which the state's interference is justified.

Links to Other Theories

Liberty and Paternalism theory, like Hart’s Seperation thesis, turns to the moral and political question of when law ought to be used to enforce the moral code of society. Liberty and Paternalism involves the competing notions of personal liberty and the regulating function of the law, and poses the question: when are restrictions on individual liberty justified?

The balancing of competing interests has been addressed by a number of leading theorists who have all provided interpretations as to the law's role in imposing on individual autonomy. John Stuart Mill, in his harm principle approach, argues that society is justified in restricting the liberty of any of its citizens when this is necessary to prevent serious harm to others. Preventing harm is seen not only as a sufficient condition to impose paternalistic restrictions, but rather a necessary interference. Dworkin also focuses on the harm principle yet argues that social can interfere with people for their own good to prevent them from harming others. The moralist school of thought is represented by Devlin, who holds that society may interfere with the liberty of its members to prevent its members from acting in ways that conflict with or undermine the moral values of society. Lastly, the offence principle provides society may interfere with the liberty of its members to prevent them from causing offence to others. In Summary, according to the above theorists, interfering with personal liberty can be imposed in the event of harm to oneself or others, moral degradation or causing offence to others.

Application to Childs v Desormeaux

Childs v Desormeaux places great emphasis on individual autonomy as a factor to not impose a duty of care on social hosts, thereby reaffirming that the individual is presumed to be the best judge for himself. The Court struggles with the competing arguments of autonomy vs. protection of himself and society, as found in the Mill and Dworkin debate. While Childs v Desormeaux was decided in favour of individual autonomy, supported by Mill, the conduct of Mr. Desormeaux raises serious questions as to whether paternalistic interference would have been the preferred approach for the Court to have taken in this case.

Due to the fact that Desormeaux not only put himself in danger, but also posed a serious threat of harm to other members of society. The theorists we have examined in this section would have agreed that the law would be justified in restricting the liberty of the individual when his actions threaten harm on others. Mills further argues that a person may cause evil to others not only through his actions but also in his inaction. Applying the concept of inaction to the Childs case seems to suggest an imposition of liability on the host to prevent harm to others as well.

Based on this analysis, we find that the theorists would have argued for an imposition of liability in this case, as in falls within the exception to Mill's thesis, as defined in Dworkin's paternalistic model of thought. Could Desormeaux have even been afforded the right to individual liberty? Due to the extremely intoxicated state that Mr. Desormeaux was in, an argument could easily be put forth that he was not in possession of mature faculties as is necessary to be afforded the right to individual liberty. Mature faculties are defined as “the capacity of being guided to their on improvement by conviction or persuasion”. Dworkin would argue that Desormeaux did not have the capacity to be persuaded of making the right decision due to his drunken state and, therefore, a restriction of his individual autonomy would have been justified. The presumption, as held by Mills, that the individual is the best judge for him or herself is easily rebutted due to the intoxicated state of Mr. Desormeaux. The decision to uphold Desormeaux's autonomy would have been criticized by Dworkin, and would exemplify a situation in which Mills would also argue that individual liberty should not have been upheld.

Law & Economics

Key Themes

Economic efficiency theory makes the claim that many legal rules have developed because of their ability to increase societal wealth and that efficiency is a value that should be promoted by law. What does efficiency mean in this context though? Economic theory of law focuses on a unique way of viewing the world, and one which differs greatly from most of the other legal theories.

With the goal of maximizing society’s wealth in mind, the theory describes the legal system as a vehicle for this objective. It looks at a more mathematical way of analyzing legal decisions in terms of what will yield the greatest net wealth - net wealth being anything from monetary gain, “social wealth” accumulated in purchasing the value itself in an object, or really the receiving of any benefit (tangible or not).

Underlying this theory is the idea that people are rational beings who make their decisions with improving their own self-interest generally in mind, and this helps to drive the “efficiency” factor. Conceptually, the theory is not limited to exchanges between people, but also to judicial decisions which can be framed in terms of what each ruling means in relation to wealth efficiency. Each change in state offers a potential increase in net wealth for those involved directly, and for society as a whole. Negligence law is easily viewed through economic theory, as it involves a balancing act of decisions aimed at restoring plaintiff’s state of being and deterring future harm.

Links to Other Theories

Legislators v Judges

As opposed to some of the other theories we have examined, where legislators are the ultimate authority in creating law, the law and economic perspective finds that legislation does not fulfill the pareeeto principles because it generally imposes rules causing detriment to one party. Judges on the other hand have the ability to rule in such a way as to eliminate appeals, thereby promoting legal efficiency.

Posner held that justice requires that the wrongful injurer alone makes restitution. There is an assumption in law and economic theory that people are rational agents who make their decisions with maximization of self interest generally in mind; on that basis, the decision not to find a social host liable for the decisions and actions of a guest is an efficient outcome in this case.

Pareto Superior, Pareto Optimal and Kaldor Hicks

The decision in the Childs case, according to the Pareto Superiority Standard, involves the ordering of various states of affairs according to whether one state makes some people better or worse off compared to another. Here, we must examine the two different outcomes of holding social hosts liable for the actions of their guests.

Had Childs v Desormeaux found the social host liable, the ruling would have resulted in an improvement for plaintiff Childs, and detriment to the social hosts - not pareto-superior for the parties involved, and not efficient for society either because the result is that only the potential injurers will have the incentive to take care

Second scenario - the actual ruling - plaintiff Childs is not worse off because of the ruling but is the same, social hosts are not worse off and it is implied that only Desormeaux is liable. This is the more efficient ruling for all parties involved because no one is technically worse off AND the court used negligence principles in the ruling, which for society is the more efficient framework. At this point we wonder how we can say no one is worse off when Childs, an innocent party, bears the costs? In this specific ruling, it was not the Court’s job to impose on him solely, it was to be determined whether the group as a whole could be imposed on. This does not negate Desormeaux’s liability as a sole entity.


Negligence distribution in this manner acts as a deterrent, and the decision in the Childs case, by not imposing liability on the host, reaffirms the responsibility of the guest. The negligence rule works best to provide incentive for the highest number of people to prevent accidents, which may be used as a basis to argue for imposing a duty of care on social hosts yet Posner leaves open the possibility of cases in which attaching absolute liability is more efficient due to the overall cost of the system of negligence. Furthermore, proponents of law and economics claim not only to provide efficient distribution of a loss under tort law, but a just distribution as well. According to the principles of the Law and Economic theory, Childs v Desormeaux, by not imposing liability on social hosts, exemplified an efficient decision.

Application to Childs v Desormeaux

Posner, a Law and Economics theorist, states that the common law “establishes rules for resolving disputes [in torts] as efficiently as possible” (Posner in Dimock 2002:122). Proponents of economic efficiency theory would be satisfied with the decision in Childs because, as noted above, many of its tenets were employed successfully. In Childs the idea of economic efficiency is fully explored through the lens of liberty and corrective justice.


To a subscriber of economic efficiency, the transfer of cost analysis in tort law translates into an exercise of balancing risk and incentive with the burden of cost. Three conceptualisations of cost distribution are common: negligence; absolute victim or absolute injurer liability; and collective society. In each model a different group of people has the incentive to reduce accidents and bear the cost of doing so. The negligence standard is preferred by economic efficiency theorists because each person, as potential victim or potential injurer, is encouraged to take due care. In her judgement, McLachlin uses this standard to inform the analysis of the facts to determine if there was negligent conduct or fault.

A proponent of economic efficiency considering the Childs case would acknowledge that the type of cost at issue here is not just in terms of damage done to the plaintiff. The imposition of costs in future accidents is also considered.

Maclachlin identified “liberty” as one such cost. She said,"...the common law is a jealous guardian of individual autonomy," and here "...the case put against [the social host] is that they should have interfered with the autonomy of Desormeaux," (McLachlin at para. 31-32). She later recounts the the story of the hostess who froze guests' keys in ice and states that where the hostess was "... evidently prepared to make considerable incursions on the autonomy of her guests. The law of tort, however, has not yet gone so far," (McLachlin at para. 45).

Where a party host is held liable to third party road users, the liability distribution is such that the host would have to invest significant resources into preventing accidents where they have little control over the potential injurer. This cost burdens the liberty of both host and guest, and lessens the incentive on the guest to be a responsible drinker/driver making this an inefficient outcome.

In Childs, the proximity analysis was used to reckon costs and liberty, and found the host not liable. However, depending on what version of economic efficiency you subscribe to, you may have been more or less satisfied with the outcome of the case.

Corrective Justice

For some proponents of economic efficiency, corrective justice is the goal of tort law. The best way to achieve corrective justice is to keep claims for compensation separate from the conditions of liability. A victim should be compensated without imposing on an injurer who did not benefit from the victim’s loss. “No fault accident insurance” achieves this. This model of corrective justice would have been upheld in Childs, if Childs, the innocent victim, had recovered for her damages from a "no faul insurance" scheme. It would not have imposed on the host or the driver, which is important if you believe neither the host nor the driver benefited from Child’s loss.

If you feel, as Posner did, that insurance schemes cannot take the place of compensation under the law, you were likely happy with the decision. Posner contends that under no fault insurance schemes the injurer does benefit: he does not have to take reasonable care. Worse yet, the victim incurs a loss plus pays for insurance - insurance with premiums driven ever upwards by the increased number of accidents that occur due to the lack of incentives. In other words, if people fail to take reasonable care against harming others and are not made compensate their victims, then they do not bear the full cost of their negligent behavior, and they do not have incentive to take reasonable precaution in the future. Posner finds this to be inefficient, and an inefficient outcome is an unjust outcome.

In Childs the host was not found liable. So, for those who agree with the first approach to corrective justice, it is unclear whether this ruling failed the purpose of tort law which is compensatory justice. For supporters of Posner, it may be easier to reconcile the decision because there was no fault found, and so the standard of negligence as a rule of assigning costs was upheld.

Wrapping up Childs and Economic Efficiency

The Childs decision is a true exercise in determining economic efficiency. Balancing the imposition of costs in the form of damages and liberty to reckon the principles of wealth maximization highlighted the ways in which the common law courts play a role in insuring our social wealth.

Feminist Theory of Law

Key Themes

Feminist theories of law form a varied assemblage of resonating views. Though heterogeneous in its nature, the amalgamation is in accord: any theory of law based on an abstract universalist concept will always fail to recognise the diverse actors and forces at play in our legal system. Their inquiries emanate from one basic question: what does it mean for women? When law is approached with this question in mind, space is made for women in the legal system. This is an important endeavor because the modern western legal system is product of the same patriarchal world view as modern western society. Once the development of the legal system is contextually situated, several core legal values become problematic. Because the legal system has traditionally been male dominated, the male perspective permeates the legal values we have come to accept as core to the legal system. The idea that law is neutral, that judicial reasoning is a product of logical deductions, or that law can be separated from politics actually advances patriarchy. They are presented as truths and render inequality invisible.

Links to Other Theories

One can think of the work of varied feminist law theorists, much like the work of various legal realists or critical law theorists, as one iteration among many which expand on or intensify various aspects of their collective approach, but a coalescence none the less. Their approach is similar to legal realists and critical law theorists in the way that it challenges many of the traditional core legal values, characterising them as constructs of the patriarchy. Consider how the core value neutrality of the law has come to function as both construct and constructor of patriarchy. Individual rights in law, conceptualised in neutrality,fail to acknowledge how privacy rights, for example, facilitate domestic violence and child abuse. Consider, also, how the separation of law and politics is traditionally valued. Feminists argue it is a fallacy that it is possible to render law and politics separate. Gender politics become ingrained during upbringing and practiced in everyday life. Realities like unequal pay, employment in disrespected work, and demeaned physical characteristics result from the reiteration of patriarchal ideals in social and political institutions, including the legal system.

Feminist legal theorists also characterise the separation of law from morality as an impossible endeavor. Moral judgments about the worth of women permeate the law. They find themselves with unlikely company: Fuller, who argued in response to positivism, and O.W. Holmes, a legal realist, both contended that law and morality could not be separated. Holmes, had this to say: "the logical method and form flatter that longing for certainty and repose which is in every human mind. Behind the logical form lies a judgment as to the relative worth of and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding… Such matters really are battlegrounds where the means do not exist for determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place,” (O.W. Holmes in The Path of Law, emphasis added).

On the idea of judicial reasoning as logical deduction, feminists contend that it advances patriarchy by masking its influences on judicial reasoning. This line of thought resonates with legal realists who argue behind a legal decision is the influence and application of personal preference.

Feminist Legal Theory is further distinguished from earlier theorists like Dworkin and the Law and Economics by virtue of their collective approach which rejects any neutral, universal abstract idea of what human beings are like. Dworkin's universalist idea of human nature and Economic Legal Theory's rational, self interested man has no room in feminist legal theory. They contend that as result of rejecting the universalist conceptualisation of human beings, a spectrum diverse experiences can inform the legal system.

In this section we ask what traditional legal values are engaged in the Childs decision and how would feminist legal scholars respond?

Application to Childs

The Childs case highlights an important legal value in the common law: individual autonomy. It is discussed in relation to both the guests and the host of a party. Of the hosts, McLachlin writes, "the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger are not freestanding. Generally, the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved, " (McLachlin at para. 31). Of the guest she writes that they are not," in a position of reduced autonomy ," (McLachlin at para. 42). Wrapped up in this conception of autonomy is the idea that the self ought to be free from both interference by others and limitations on choice. Additionally, autonomy invokes the legally ideal person who has the capacity to make rational decisions and acts on them freely. Her repeated reference to autonomy highlights the moral importance of autonomy in law and its pervasive presence in judicial reasoning.

Given women's history of subordination and oppression, the issue of self-determination, or autonomy, is an important topic for the feminist theoretical project. The role autonomy plays in the lives of women is characterised in varied ways.

Take for example the Liberal Feminist. S/he would argue that women are faced with incentives to minimise friction and placate those in power, but pursuing them ultimately blocks the path to success in the public sphere. Autonomy is an important element of female success because it allows a woman to be equal with a man. Marxist Feminists would agree that autonomy is important. However, the history of women's enforced economic dependence on men or relegation to poorly paid, often despised forms of labor, and the devaluation of women's work in the home becomes important contextually to the Marxist feminist argument. Autonomy, for the Marxist Feminist, is a necessary for the exploited in order to engage in revolutionary social change. For both Liberal and Marxist feminist legal scholars, autonomy is a means to an end.

Others, like the radical feminists argue that autonomy is completely androcentric. Society has historically figured women as driven by their reproductive biology and in need of rational, male guidance. They argue this oppression has been internalized, alienating women from themselves. The autonomous subject in law is fraught with undertones of women's collective historical subordination. This in turn means that employing the concept uncritically endangers women's self-determination in a number of ways.

In turn, a number of feminist legal scholars assert women's need for self-determination because of women's historical figuring. They present accounts of autonomy that do not devalue the interpersonal capacities and social contributions that are typically classified feminine. The Postmodern Feminist embraces women's positioning within the patriarchal structure and attempts to balance the injurious nature of subordination with the measure of autonomy women gain despite it.

Building upon the postmodern feminist appraoch, Relational Feminists argue that the male paradigm of autonomy, where basic rights are more conducive to self-determination, should not be used as the standard for women. They argue autonomy shouldn't be conflated with self-sufficiency and free will. Rather than intellectualize autonomy and stress rational decision making, relational feminist accounts accent the role of feelings in autonomous lives and argue that autonomy should be understood as facilitated by supportive relationships.

Summing Up Feminism and Childs

Feminists have questioned the universalist conception of persons that earlier legal theories employ. The dominant theory of autonomy used in Childs is prevalent in Canadian law and still functions as a foundation to Canadian common law. The problem is that autonomy implies a conception of an independent and rational man - a person that feminists argue does not exist. Unfortunately, Childs perpetuates the preference for this patriarchal conception in law and does not make room for varied gendered experiences in the legal system.

Critical Legal Studies

Key Themes

Critical Legal Studies is a direct attack on legal theory, scholarship and education, and was born in the radical 1960’s sentiment. Critical Legal theorists contend that doctrines which inform the law, and are the basis to legal teaching, are not an exercise of pure functioning, reason or logic but are inevitably political in nature. Central to Critical Legal theory is the submission that law serves to reproduce oppressive relationships and serves as a means of control by those in power and doctrines are a political tool to further advance that purpose.

Links to Other Theories

Like Feminist Theory, Critical Legal Studies does not focus on a singular doctrine, and cannot be represented by the work of a single theorist. Although Critical Legal Studies began as a unified theoretical theme and involved activists within the legal education practice, the movement has since fragmented into a number of different theories; each focusing on a different relationship of power within society and the political process. A common theme among these doctrines, however, is their analysis of struggles that have a strong ideological dimension.

While Critical Legal Studies has been characterized as a new form of realism, one of its primary distinctions is the differing view on law and politics. While Legal Realism advocates for a distinction between law and politics, Critical Legal theorists argue that law is politics. Doctrine is embedded in the political structure of society, and Critical Legal scholars have expanded their analysis of political entitles to cover non formal politics, including relationships and interactions of power in the school, work and home environments.

Like Realism, Critical Legal Studies is an anti formalist doctrine which seeks to demystify the law and examine the effects instead of the intentions of the law. Critical Legal scholars emphasize the value of critique, and have based their critiques on political, philosophical and semiotic principles. It denies that law is a system and rejects the view that there is an autonomous and neutral mode of legal reasoning. Critical Legal scholars would disagree with prominent theorists such as Mackinnon or Dworkin. While Dworkin contends that all people are equally capable of exercising their own rights, Critical Legal scholars hold that the notion of equality in the law is solely for those in positions of power to maintain control.

Application to Childs and Desmormeaux

Critical Legal Studies is most applicable to Childs v Desormeaux through their analysis of the role of judges within the common law. By holding that judges don’t need to be elected because the legal process imposes a kind of discipline on them that forbids them from being ideological actors in the system, they are addressing some of the main criticisms that other theories have waged against the common law. Power is the most significant aspect of a political doctrine and in the case of Childs v Desormeaux, the judge held all the power to either compensate the harm suffered by Childs, or to impose on the personal autonomy of Desormeaux. Critical Legal Theorists would have held that the did not take on the role of an ideological actor within the political system and was acting within his prescribed discretion.

While considerations of racial inequality within the Childs v Desormeaux case was not present, an examination of the judicial system reveals a strong argument for institutional racism. Critical Race Theory, in their analysis of power struggles between different races within the political context, would argue that the Canadian legal system is inherently racist. One needs to look no further than the make up of Superior and Supreme Court judges to find that the majority of them are representative of a certain demographic: Caucasian males of a similar age. Both the appellant and respondent in the Childs case were of Caucasian race and did not have to consider the ways in which their race may have been disadvantageous to their outcome. Their experience within the judicial system could have been interpreted in a much different manner had racial prejudice been felt by one of the parties. An examination of the judicial system reveals a non inclusion of racialized minorities in the law, and especially in positions of power within the legal education and practice.