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Auton v. BC: 'Hart'ly 'Dworkin', A Philosophical Inquiry

Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657; See the full case


This case was brought before the Supreme Court of Canada in 2004 on appeal from the British Columbia Court of Appeal. In the case, infant petitioners who suffered from autism brought an action against the province of British Columbia, alleging that its failure to fund applied behavioural therapy for autism violated their rights under s.15(1) of the Canadian Charter of Rights and Freedoms. The government had, up until the beginning of the trial, funded a number of programs for autistic children but had not established funding for applied behavioural therapy. This form of therapy at the time was relatively new and was only beginning to be recognized as a desirable form of early intervention treatment of autism. The trial judge and the Court of Appeal found that the failure to fund the therapy violated the petitioners equality rights.

Autism Awareness.

Section 15(1) of the Charter provides:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In the case, McLachlin, writing for the majority, held that the test to determine if a group's equality rights had been infringed was largely contextual. However, Canadian jurisprudence has established that a person claiming a violation of s.15(1) of the Charter must establish:

(1) differential treatment under the law,
(2) on the basis of an enumerated or analogous ground,
(3) which constitutes discrimination.

       The ultimate purpose of this section is to ensure that when the government decides to confer benefits or burdens on individuals, they do so in a non-discriminatory fashion. This has effectively confined s.15(1) claims to benefits and burdens imposed by law. Ultimately, the Supreme Court allowed the appeal and held that the government’s conduct did not infringe the petitioners' equality rights. The determinative factors in the case included that the benefit claimed (i.e. the funding for all medially required treatment) was not provided by law and, given an appropriate comparator, it was not established that the government excluded autistic children on the basis of disability. It was shown that the Canadian Health Act had established a regime in which all that was conferred was core funding for services delivered by medical practitioners and, at the province's discretion, funding or partial funding for non-core services. At the time of the trial, the therapy in question had not been sanctioned under the Province’s discretionary power and was therefore not one conferred by law.

 Traditional Natural Law Theory

Natural theories of the law have origins as far back as the ancient Greek philosophers Plato and Aristotle. As such, there are a myriad schools of thought within the natural law tradition; however, all traditional law theorists fundamentally believe that there is a source of law beyond human creation. According to this tradition, law is not simply a human phenomenon but has a source independent of the human mind. This source, depending on the school of thought, can be divine command (i.e. God), human nature (i.e. rational thought), or the order of nature itself (i.e. survival of the fittest). Humans, as rational creatures, have access to natural ‘true’ laws, however, a distinction is made between true laws and human-made laws. True laws represent a standard to which human laws must be compared and contrasted. Human laws must be in parallel with the morality of true laws in order to be deemed genuine laws.

St. Thomas Aquinas, one of the quintessential natural law philosophers, wrote extensively on the topics of law and morality. He believed that natural law was not identical to eternal law (i.e. the divine law ordering the universe) but that natural law was atypical to humans as rational beings. Having rational thought bestowed by God, humans are able to reason to what a natural law should be. This argument may seem to support the proposition that law is simply a human artefact; however, man’s nature, as crafted by God, inclines him to the common good and man’s reason, as crafted by God, allow him to devise the steps that will lead us there (i.e. natural laws)- the devising of such laws is reason properly exercised. This is what St. Thomas Aquinas believes are natural laws, the laws that guide humans to the common good. As such, he believed there were four fundamental requirements for a law to be a valid natural law: First, the law must be directed to the common good, second the law must follow practical reason in its attempt to guide people to the common good, third, the law must be made by a valid lawmaker, and finally, the law must be promulgated.

The Common Good

In attempting to analyze a given modern case through the framework of St. Thomas Aquinas, it is important to use these four principles to determine the validity of a modern law and regulatory regime. The first question in applying this theory to the case of Auton v. BC, it is necessary to determine what common good the regime is attempting to bring about. Aquinas felt that some recognised “goods” are essential to all humans including self-preservation; procreation; living in society and exercising spiritual and intellectual capacities. The infant petitioners in this case may argue, through this framework, that the current regime under the CHA does not promote the common good in that it impedes the realization of the children with autism’s full potential. However, the Crown may argue that the real common good that the regime is attempting to achieve, especially when viewed through the eyes of the Charter framework, is equitable distribution of resources. The next question in the analysis requires us to ask if the laws and regime of the government follow practical reason in laying out the steps on how to obtain the common good.

Practical Reason

As this case involves a Charter analysis, it is pertinent to discuss how the Charter, in and of itself, lays out an attempt at practical reason to ensure the obtainment of the common good with section 1 of the Charter and the Oakes test. This test requires that any law found to be in breach of a Charter right can be saved if its objective is “related to concerns which are pressing and substantial in a free and democratic society“ the means chosen are reasonable and demonstrably justified, requiring the invoking party to show that the measure in question are carefully designed to achieve the objective in question. This last section (i.e. the mease are carefully designed to achieve the objective in question) it really a question about practical reason.  In this case, the Charter analysis allows for a guide to ensure that the law in question is an appropriate attempt at ascertaining the common good.

Beyond the charter, the legislation itself establishes a scheme where there is discretionary power for non-core medical services. It can be argued that the allowing of decisions about non core benefits to be made at a regional level will ultimately allow for the obtainment of the “greater good”. Medical resources are limited and their distribution must be effective, efficient, and non-discriminatory. By allowing for discretionary power, resource allocation will be distributed in a way so as to promote a greater good.

The "rule" maker

Thomas Aquinas had a slightly antiquated concept of who the rule maker should be. Aquinas believed that the relationship between the rule and the ruled is natural and some people are “fit” to rule. These natural rulers know what is in the common good, and what will achieve universal happiness because their virtue is almost perfect. This concept is quite foreign in our modern day democracies where “rule makers” are elected to represent the will of the people.

Although Aquinas's notion of a valid rule maker may be antiquated, he would likely view Parliament as the modern rule maker most closely resembling his idea of a natural ruler. From Aquinas's perspective, Parliament has been given this power to create legislation because the natural followers have deemed them to have the most experience and wisdom to create rules that will lead to the common good. Morever, Aquinas was under the belief that legislation is prefereable considereing that the legislators possess greater authority and to possess greater wisdom. Therefore, with Parliament at the top of this naturally ordered relationship in our modern society, the legislation at issue in this case has been made by a valid "rule maker".


The final component of a valid law, according to Aquinas is that it is promulgated to the masses. This means they must be written down and anyone they are to apply to must be aware of their existence. This concern seems less relevant today where most laws are written down and distributed through many means. However, recent examples of secret or retroactive laws in the Nazi regime show that this can still be a valid concern. It must be morally wrong to hold people responsible for violating laws, they could not be aware of. In the present case, Aquinas would be pleased with the criterion that a benefit must be conferred by law explicitly in order to be brought within the jurisdiction of s.15 equality protection. This allows the people subject to the law (i.e. people who are conferred benefits by the law) to know what benefits are conferred and to whom.

The Positivist Response: Law as Command

Legal Positivism is an approach to law that is defined by its opposition to the fundamental aspects of the natural law tradition. They reject the natural law perspective that law must be described in normative terms. Rather, the legal positivist believes that law is a social fact that is empirically provable. Law is a social fact, according to legal positivists, that is empirically provable and evaluated in neutral terms. The legal positivist also rejects the teleogical foundation of natural law, believing that laws do not need to serve a morally good end and immoral laws may be just as valid as any other kind of law. This is known as “separation thesis”, which is simply the separation between law and morality.


One of the leading proponents of legal positivism was John Austin. Austin promoted the classical positivist theory that was a direct rejection of Aquinas’ natural law theory. Austin sees the inclusion of morality in law as a restriction on the ability to challenge and change law and claims that moral content is not a necessary element of law and that morality should actually be used as an external measure to evaluate law. He states that lawmakers may strive for concurrency with morality but it need not be necessary. This is where he essentially differs from Aquinas in defining the law’s fundamental relationship with morality. Austin believed that there were three kinds of laws that governed humans – God’s laws, positive laws and positive morality. Positive laws and positive morality are created by human beings and can be immoral unlike God’s laws, but differ in the fact that positive laws are commands issued by superiors to subordinates and backed by sanctions. Positive morality, on the other hand, does not meet the conditions to law as they are not created by political superiors and include such things as manners, customs and international law. Similarly to the natural law theorist, Austin believed that human beings have a moral obligation to obey the law, even if laws are seen as distinct from morality.

Another legal positivist, H.L.A. Hart, characterizes laws a bit differently than John Austin. Although he still believes that laws are not dependent on morality, he does not characterize laws as commands. Instead, he characterizes laws as primary rules, secondary rules and the rule of recognition. Primary rules tell us what we can or cannot do. Secondary rules are rules by which we can change the rules. Most importantly, the rule of recognition maintains that there must be internal buy-in by those who create the laws and those who obey the laws. Officers who apply the law have to believe that those rules ought to apply while the those engaged in the behaviour required also must believe themselves that they are obligated to engage in that behaviour.

Jeremy Bentham believed that the question should be whether the law at issue maximizes utility. He thought that the law should not be crafted on the basis of morality, but on utilitarianism. Law should bring about the greatest amount of happiness for the greatest amount of people.

Joseph Raz takes a “service conception” approach to legal authority. Under this approach, a claim to authority by the law is justified only when the authority helps the subjects act better than they would without the intervention of authority. Thus, with the authority creating a better environment for its subjects to act in, Raz’s theory can be paralleled with Aquinas, who believed in laws that would lead to the common god.

John Austin

In applying John Austin’s variation of legal positivist theory to the modern Supreme Court of Canada case of Auton v. British Columbia, the first thing that must be considered is whether the benefit being claimed in the case would be positive law or positive morality. The Court specifically said in Auton that the ABA/IBI therapy benefit the plaintiffs were seeking was not a benefit that was specifically provided by the law and, if there was a benefit, it would be the Courts interpretation that the legislative scheme provided this benefit. In the eyes of Austin then, the benefit being claimed by the plaintiffs, if there was a benefit to be found, would fall into the category of positive morality, not positive law. The Health Act in its entirety fails for want of sanctions, which signifies that it cannot be positive law. If something is not positive law, it is merely a rule. Moreover, the Health Act is assigned over everybody but is applied differently for certain categories of individuals. The Supreme Court judges in this case seem to take a similar view of Austin who says that, in order for something to be law, the command has to apply to everyone consistently, which the Health Act does not. Under positive law, the whole judgement is occasional or particular. There are more aspects of the legal positivist in the judge’s decision as the plaintiff’s argument that the legislative scheme of the Health Act discriminates against those who are denied the ABA/IBI therapy would simply not be of any concern to Austin and other legal positivists. This is because discrimination is not a concern or a valid argument for the legal positivist.

The separation of law and morality is a major aspect of a legal positivist's beliefs in the separation of law and morality and the judges in this case, once again, take a comparable view to the law. Although the judges sympathize with the petitioners, they understand that morality cannot override what the law states. The fact of the matter here is that this benefit is not specifically provided by law and to give this benefit to the petitioners would be focusing on morality rather than law, which is a principle that is very much in line with Austin’s idea of legal positivism. Although the law of God is the standard to which we should all strive to achieve, a law is still valid law if it goes in the opposite direction of God’s standard. There is no valid reason under Austin’s theory to go against the ruling of the Supreme Court and find in favour of the plaintiff’s in this case. The benefit being claimed is not specifically provided for by law, which means it is up to the Court to decide if they want to implement the rule under positive morality. Also, the Health Act itself fails to be a positive law as it doesn’t apply consistently to everyone and the fact that it possibly discriminates against individuals with autism is of no concern to the legal positivist because morality and law do not have to go hand in hand.

Jeremy Bentham 

Although Jeremy Bentham would likely choose the same outcome as Austin and the Court in Auton did, the reasoning would be different. It would be argued by Bentham that, although utility would be maximized for a small group of individuals, conferring the benefit of the ABA/IBI therapy would be to the determent of the health care system in relation to the improper distribution of resources. Therefore, it would not result in the greatest amount of happiness for the greatest amount of people because, while a small group is maximizing utility, the majority of individuals are negatively affected.

Jospeh Raz

It may not be directly deal with the behaviour of people but, by monitoring how health care resources are allocated, the Health Act ensures that people do not gain benefits that are unnecessary. This, in turn, could be said by Raz to be bettering people’s behaviour as it regulates against those seeking unnecessary health care benefits that could be utilized in a different and superior way in society.

Hart: The Separation Thesis

H.L.A. Hart’s separation thesis expands on the positivist’s claim that there is no necessary connection between law and morality. He defines them as two separate systems with their own sets of rules and standards. Unlike St. Thomas Aquinas’ natural law theory, laws do not need to be moral in order to be “good law.” Although the two may intersect or run parallel to each other, they are separate, and law does not need to be teleologically moral; however, it is possible for legal rules to be evaluated with reference to moral rules, which Hart would argue is one of the “bonuses” of understanding the two as separate entities. Hart uses the oft-discussed example of Nazi Germany laws to illustrate why the separation theory works; in that case, because morality and law are separate, the laws in Nazi Germany, though highly immoral, were still valid law. Hart explains that if there is an obvious clash between the two, we as individuals must decide whether the obligation to follow the moral rule is greater than that to follow the legal rule. When the clash is so extreme, we may use our own consciousness to disobey the law.

Hart’s theory of determining what kind of a rule is law differs from Austin’s positivist command theory, which requires a command issued by the sovereign and enforced by sanctions. In Hart’s separation theory, laws are defined as having “ought claims” on us, meaning we believe that we “ought to follow them.” When most of society recognizes an obligation to follow a legal rule, including the officials in the system who must enforce them, then that legal rule is valid law. Hart explains that these legal rules, both legislative and common law, are expressed in general terms so as to apply to a broad range of individuals and groups. These rules will have a “settled core meaning”; when factual situations of cases fall outside of that settled meaning, they are said to be in the “penumbra.” Cases that fall within the penumbra are defined as “hard cases,” and they rest with the judiciary to decide whether the specific facts of the case fall within the “settled core meaning” of the rule. When deciding hard cases, judges rely on the terms of the rule-governed practice – principles underlying the legal system as a whole – that gave rise to them. These principles include autonomy, justice in the administration of the law, Charter rights, etc. According to Hart, judges decide penumbral cases in accordance with needs of society, filling gaps in the law and moving them forward in a new and contemporary direction.

Rule of Recognition

In applying Hart’s separation thesis to the Auton case, the first question is whether the legislation in question is valid law; is it worded generally to apply not just to specific individuals, and does it have an “ought claim” on the individuals it applies to? The respondents claim that the discretionary powers exercised by the provincial government under the Canada Health Act (CHA) and Medicare Protection Act (BC) infringe their Charter-protected right to equality. The larger issue is whether a province’s public health plan under the CHA is required to provide a particular health treatment outside the “core” services usually administered. The CHA legislation applies to all healthcare providers across the country, as well as all provincial governments who regulate healthcare; it therefore applies generally. Furthermore, though the legislation is not followed by sanctions, it does in fact have an “ought claim” over those it applies to; provincial governments are required, and feel obligated to, administer the “core services” as described in the CHA, and to use their discretion to determine what other healthcare services should be covered by the provincial health plan. For these reasons, the legislation is valid law.

The Penumbra

Auton, along with any case that goes to the judiciary, would be defined by Hart as a hard case that falls within the penumbra. In this case, the “core meaning” of the legislation, coincidentally enough, is about “core services” that must be funded by the government. Any medical service outside of the core is up to the Province’s discretion as to whether or not it should be funded. It is the judiciary’s duty to determine whether the Province’s discretion outside of the core has been exercised correctly. In this sense, Hart’s separation thesis works well with the facts of our case and with the legislation at issue.

Law v. Morality

The reason this case was decided in the manner it was – in favour of the Crown – is a very good example of the separation thesis and when it works well. The respondents, who were claiming funding for all medically required services, argued from the moral standpoint that it would be unjust for the Province not to offer ABA/IBI therapy to autistic children. Their argument of discrimination under s. 15 (1) of the Charter did not succeed, and it was determined that the Province exercised their discretion with due care. Morality is not a term of the rule-governed practice, which is what the respondents claimed; though it may be considered when making a law, it does not have to be taken into account by the judiciary when deciding a hard case in the penumbra. The law can still be good, constitution-abiding law without conferring extra benefit to autistic children, even if it doesn’t appear to be morally sound. In this case, it is necessary to keep morality and law separate in order to have an efficient health care system. Suppose that the Court had decided that it was in fact immoral to deny autistic children their healthcare benefit, and ruled in their favour. If this was the case, and they granted extra benefits from a moral standpoint, every disadvantaged group with specific and advanced medical needs would receive every supplementary healthcare service they applied for. However, this would lead the provincial health care system to essentially fail, because from a practical standpoint there would be nowhere near enough funding or resources to support the extra demand. Though it may not be moral to deny medical services funding to disadvantaged groups, it is not unconstitutional. For these reasons, it appears quite clear that Hart would agree with the decision of the Supreme Court of Canada in Auton, as it clearly demonstrated the inherent separation between law and morality.

The Morality of Law

Morality of Law theory, also known as the "modern natural law" is argued by Lon Fuller. It is known as modern natural theory because Fuller contends law is definitely connected to morality, but is disconnected to the divine. Fuller’s view of Law and Morality is best described as a response to the legal positivist Hart’s separation thesis. Fuller’s concept of morality and law is a rejection of the positivist’s notion that law and morality are separate. He states that morality is inherent in law and basis his argument on three basic tenants; (1) That social acceptance of legal rules depends on grounding in morality (specifically external morality) producing a belief that laws will produce good order, not just order as Hart would contend. (2)The law itself has an inner morality that is essential for its effective functioning. And (3) that the separation thesis put forward by Hart cannot fully explain immoral laws by want of an adequate explanation for a general obligation to obey the law.

The social acceptance of legal rule being grounded in external morality is Fuller’s argument in response to Hart’s rule of recognition. Harts view that the laws authority is derived on its acceptance of its validity and the lawmaker’s recognition of their own obligation to obey and enforce it. Fuller responds with stating the recognition is ultimately grounded in its external morality which is the morality most of us agree on most of the time.

Fuller says the law’s inner morality is something inherent in the nature of legal systems and is generated by the law`s requirements of coherence, rationality, consistency, that it is known, and capability of explanation. Because the laws purpose is to produce order it must have this inner morality generated from these requirements and where this is lacking the law is a not a true law but an arbitrary form with “law” being but a label. A legal system that incorporates these mentioned features to a high degree will be a functioning legal system and as the features start fading, the legal system will become less functional to the stage of being no more than the above mentioned arbitrary form labelled “law”.

In response to Hart’s theory of the core and penumbra Fuller argues that there is no such “core of settled meaning” and therefore no penumbra. He says that laws are always interpreted by judges in context with reference to the good it was meant to accomplish and the purpose its ration has. By exploring the external morality and the law’s inner morality, judges are able to determine the good the law was to accomplish and interpret it. A judge makes the law what it ought to be, and this fidelity to the law creates a collaborative effort in continuing toward that end.

Fuller declares that in order to create the fidelity to the law there must be a general acceptance of the law on its merit as right, good, and necessary. He suggests building security of this general acceptance by building such notions into the law through the use of mechanisms like a constitution.

Fuller's Take on Auton

There are many aspects of Fuller’s theory of law and morality evident in the judgement handed down by the Supreme Court of Canada in Auton (Guardian ad litem of) v. British Columbia (Attorney General). The first of these is the reference to external morality, this being the morality that most of us agree on most of the time. The Court brings about its judgment based on the external morality that underlies section 15 of the Charter of Rights and Freedoms, protection against discrimination based codified grounds or analogous grounds that most of us in Canadian society have agreed upon most of the time. This is also apparent in the judge’s collaboration on the issue of a comparator group, to add even more equality into the interpretation. This is something that we have entrenched in our Charter as a guiding principle of morality in our society and the Court has interpreted the law considering such context. This is not merely entrenched because there is some internal buy-in, as Hart would contend, but it is clearly grounded in authority which is right in line with Fuller’s first plank of external morality. The Courts reasoning being based on s.15 and s.15’s entrenchment in our Constitution speaks to the creation and security of fidelity to the law that Fuller argues.

The inner morality of the law is explored by the judges during their interpretation in their consideration of its coherence, rationality, consistency, public knowledge and its ability of explanation. The justices found early in the analysis that the this case failed the first threshold test of the rule in that it must be a benefit conferred by law, which they found the treatment was not. By continuing on with the analysis they were using precedent as their foundation in outlining the law, and continued to add to the law in a rational, coherent way and keep the law consistent with the precedent. This judgment was published and the reasoning used explained it. All of this being considered it would seem as the though the law was considered on its inner morality and denying the benefits was justified by such reference.

The continuation of the analysis despite the failure of the threshold test spoke to the notion of the justice’s collaborative approach to meeting the laws purpose and essential end. The Courts consideration of the context, and basing its reasoning on S.15, shows the good that the law is meant to accomplish, equality, and helps the Court justify their reasoning. By continuing the analysis to create guidance for the next time an analogous issue is raised, the Court made the law what it ought to be and played their part in the collaborative effort in continuing the law toward that end.

Furthermore, the Court ensured that it made a decision that was consistent with the purposes of the Health Act. The Court stated that the purpose of this legislative scheme was not to meet the medical needs of everyone and it only is meant to give full funding for core services. When interpreting the Health Act, the Court made a determination that Fuller would be in favour of, which is that providing the ABA/IBI therapy to the petitioners would be contrary to the overall purpose of the Act.

In consideration of the above mentioned, it is likely that Fuller would come to the same conclusion as the Court did in Auton.

Law as a System of Rights (Dworkin)

In the past 30 years, Ronald Dworkin has been on of the most prolific and influential writer in the area of the philosophy of law. Dworkin can, in many ways, be seen as a response to the positivist movement. Fundamentally, he denies that law should be understood as a system of rules and believes law as understood as a system of rights more fully explains the normativity of the law. His thesis is sophisticated and nuanced; however, at its core are several core propositions: That laws are not merely a system of rules but also of principles (namely justice and fairness); That while the legislature has a role in policy making, the adjudication of the law is most paramount because he argues that there is always a right answer to any legal question and there is always a pre-existing right to win by one party; and That proper adjudication of the law with respect to principles will result in the integrity of the law.

Principles as part of the law

Dworkin believed that even where a case is not covered by a rule, it will be covered by principles. These principles will be legally binding because they are part of the law. Principles such as justice and fairness run concurrent to the rules of law and are integral to all legal decisions. The principles and rules impact each other and are constantly shifting through time. In Auton, s.15(1) of the charter which states that : 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. In this case, Dworkin would suggest that the Charter itself if an attempt of the legislature to codify these principles, namely individual rights. This is effectively a “rule” enacted by the legislature however the courts ask what does it really mean? how is it to be applied? this is where principles policy and legal reasoning in the case comes in.

The courts relies on a three part test to determine how this section of the charter should be applied. This test can also be seen as “rules” that have been developed through jurisprudence and it is obvious that there are principles under the formation of this test. This is obvious in the way the court applies these rule to this situation and their ultimate concern for equality. This is what the positivists may classify as a hard case in the application of this three part test as it is not clear if there is a benefit conferred by law – step 1 of the test. Usually claims under s.15 relate to a clear statutory benefit or burden however this case involved a discretionary power. The leg sets out core benefits that are guaranteed however there is discretion when looking at other potential benefits. The court goes through a lengthy analysis of this issue and it is very evident in this case that the judge reaches to principles in attempting to answer this question. Those principles being fundamental equality and fairness.

Ultimately, the judge looks at the scheme and recognizes that it does not promise that any Canadian will receive funding for all medical needs and therefore this is not a benefit conferred by law. However, where as this would appear to be a sufficient analysis, the court goes beyond the legislation itself to the reality of the situation to ask whether the scheme in general promotes discrimination. This involves looking for substantive equality in the effect of the legislation and not merely formal equality. The judge is largely relying on the fundamental principles of equality to support his legal reasoning on this issue. This reasoning is exactly in line with the role that Dworkin believes judges should play when using principles in conjunction of law to ensure legal validity.

Policy vs. Principle

The policy at the heart of the Auton case is that of equality. The judge stated that the purpose of s. 15 of the Charter is to guarantee “equal benefit of law without discrimination”. The purpose of the Health Act scheme was said by the Court to “combat discrimination and ameliorate the position of disadvantaged groups within society”. It ensures that when governments choose to enact a law they do so in a non-discriminatory basis.

The Court decided that the case against the petitioners because the policy does not have for its purpose all medical means. Therefore, the principle that is used by the judge in the Auton case is that it is not open to Parliament or a legislature to enact a law whose policy objectives and provisions single out a distinct group. Legislature choosing not to give a benefit is acceptable as long as it does not affect that principle.

The court in Auton makes their decision in line with Dworkin’s reasoning as the decision respects that which policy objectives have priority is up to legislatures and not for the courts to decide. The policy decision is to allow discretionary power because some decisions are better left to legislatures to decide and to give them that discretion to do so. The discrimination to provide non-core services is provided for by the partial health plan of the legislative scheme and it follows that the exclusion of some non-core services would occur.

Law as integrity

Dworkin’s theory of law as integrity is based on the notion that law is always interpretive looking in the past and future. The premise of this is his idea that the interpretation of the law should be done as if it were an unfolding narrative that never remains standing still. He claims that this narrative is a “story worth telling now” and that judges that interpret the law are to treat it as if it were written by one single author (the community) that expresses its own notion of justice and fairness in the present, while all the while considering the past and future.

Dworkin sees law as one chain novel. The story is consistent from chapter to chapter, but each chapter is written by a different author, the judge writing the judgment. The story is to be told about the community and the values it holds, which may change from time to time. Though judges are constrained by what the judge wrote before him on that law, or chapter, the story must flow and be written in the best way possible.

The application to Auton is very fitting in consideration of this view. The judge inAuton continued his analysis, despite having found that the claim failed the threshold test. This was the judge’s way of continuing on the story that had been written before him. Because this issue hadn’t been dealt with in the law, the judge thought it best to continue the story from the past to reflect the future claims arising that may fall within this category. The advancements of medical technology and the treatments available as well as universal healthcare and funding are all reflected in our society’s values. The judge included these values in the story by including them in the law for the next judge to consider should they arise. He added these to the already existing value of equality that was being told in that law.

Considering the past values of equality and incorporating the present claim and future implications that may arise from such a claim the judge continued the story notwithstanding he needn’t do it for the sake of analysis of the claim at bar. This is good example of law as integrity and specifically law as a chain novel, and would likely be endorsed by Dworkin in his theory.


While it is important to question what law is, theories concerning liberty fundamentally question when law ought to be used to enforce the moral code of society. Should the law, whatever that may entail, be used to impose societal norms onto individuals by limiting their freedom of choice? or rather, when are restrictions on the liberty of individual’s justified? In our modern liberal society, there is a strong presumption in favor of individual liberty and any infringement on that liberty must be justified.

There have traditionally been four justifications for restricting the liberty of individuals by law: the harm principle, paternalism, legal moralism, and the offence principle. John Stuart Mills, a 19th Century staunch defender of individual liberty believed that the only valid justification for restricting liberty is to prevent an individual from harming others. However, Gerald Dworkins, a strong critic of Mills work, believed that law could occasionally be used to restrict peoples autonomy in order to prevent them from harming themselves. This form of paternalism could only justified restrictions on autonomy when the choices involved are potentially extremely dangerous.

John Stuart Mill

Fundamentally, Mill’s greatest concern is individual autonomy and liberty because he perceived two great threats to the modern liberal state: excessive power of the government and its written codified laws and excessive power of public opinion and its unwritten laws. When looking at Auton, he would be specifically focused on the legislation that created the health law schemes, the judges use of the charter to analyze the issue, and the effects these have on the individuals in the case. Although Mills is largely concerned with state infringing the liberty of individuals, Auton deals with the state conferring benefits in society through the health care scheme. His critical views of the state would not seem to apply in this case. However, through a more nuanced interpretation of the case, it is clear that the issue of equality rights would be supported by Mills. The tyranny of the majority over individuals in society was as alarming to Mills as state imposed restrictions. Having equality protection enshrined in the Charter ensures that the majority will not monopolize the distribution of state resources through a majority rules process. The only concern Mill's may have had would be if state enforcing equality rights may lead to the state infringing other individuals liberties. Resources are limited and by not providing for these particular services for children with autism, their liberties may be seen as being limited by the state. 

It would be interesting to ask Mill what he would think about a public healthcare system in general. Although Mill’s deep distrust of governmental authority would seem to align him with modern day libertarians, there seems to be a strong argument that Mill's would seriously considering some form of government-operated health insurance. According to his theory of government, a public health-insurance option would be just as long as it would not invade the “reserved territory” of individual liberty. It could be argued that the scheme put in place by the BC government does constrain individuals from choosing how they would like to spend their own money for health care. However, in this case, the system in place, as interpreted through the law, ultimately restrains the government in ways that increase overall benefit and thus liberty.

Gerald Dworkins

In contrast, Gerald Dworkin believed that interference with a person’s liberty of action could be justified by appeals to welfare or good or happiness or needs. This view, commonly refered to as the paternalistic model, held that limitations on individual liberty were justified to prevent people from harming others and from harming themselves. Where as Mill's may have had some concerns about the decision in Auton, Dworkins would be completely accepting of the scheme established by the legislature and the decision of the court. With a public health care system, the need for laws to limit liberty for paternalistic reasons is significant. When the cost of healthcare is shared by society, the state must step in the limit liberty and freedom of choice when those choices may cost others. Again, this particular case does not necessarily deal with the state limiting liberty. Although, there is an amount of paternalism involved with the state deciding how to allocate health care resources (i.e. they dictate to individuals what will and will not be paid for) that Dworkins would approve of. He would find the court, in analyzing the scheme through the scope of the secton 15 charter analysis, was correctly weighing the interests of individual liberty with that of the states obligation to promote overall wealfare. 

Law and Economics: Law as Efficiency

The law and economics approach to legal theory states that legal rules tend to develop towards efficiency and that the law should be used to achieve efficiency. Efficiency in terms of law and economics is not defined by its ordinary dictionary meaning, rather efficiency means the maximization of social wealth. Here, the term wealth includes much more than just money, as it also relates to all “measureable satisfactions”. The wealth maximization principle provides an efficiency standard by which we can compare different states of affairs. In order to maximize social wealth, the law and economics theory believes that efficient legal rules must be created and those legal rules should be able to bring about an efficient allocation of resources.

Wealth Maximization 

Whether it was intentional or not, in the Supreme Court Case of Auton v. British Columbia, there are undoubtedly a number of aspects of the law and economics theory apparent in the court’s final judgement. The theory of law and economics states that judges, although they have very little power to engage in significant redistribution of resources, have considerable scope for pursuing the ultimate goal of efficiency. From a law and economics perspective, the major focus of the Auton case would be the legislation of the Health Act itself. The legislation is important because the government, in creating the Health Act, has funneled the resources where it has deemed appropriate. In upholding the merits of the Health Act and denying the ABA/IBI therapy claimed by the petitioners, the court has effectively decided this case from a wealth maximization principle, even if that was not their sole intent.


The court in Auton recognizes that the legislature is under no obligation to create a particular benefit as the purpose of the Health Act is not to meet the medical needs of everyone. From a law and economics point of view, if the Court had, in fact, decided in favour of the petitioners, it would be very problematic. An advocate of the law and economics approach recognizes that, in society, there must be a balancing of giving out too many or too few benefits. If the Court hadn’t denied the claim for the ABA/IBI therapy, it could have possibly opened the floodgates for many more claims of non-core benefits. It appears clear that the court understands the government only has so much money that it can allocate to Health Care and that not every person will necessarily be equal in this regard. Although “wealth” in wealth maximization does not just refer to money, and it could be said from a law and economics perspective that it is inefficient for social wealth maximization not to offer the ABA/IBI therapy to this disadvantaged group. It is more logical from a law and economics perspective that certain measurements of wealth have to be sacrificed in order to achieve the ultimate goal of efficiency. if money is distributed in order to allocate benefits in the best possible manner, then creating these core-benefits and denying the ABA/IBI therapy seems to be the law facilitating to create the greatest value for the greatest number of people. In terms of a law and economics, this is the far more efficient choice given the importance of the limited distribution of resources in the healthcare system.

In terms of efficiency, it should also be noted that discretion under the Health Act, and in general, is necessary for efficiency. Considering that, if there was no discretion, the Court could simply say that this is unequal treatment under section 15 of the Charter and the petitioners . Therefore, if all health care benefits are going to be conferred by law from due to inequality, then it is possible that every benefit would be given, which would lead to extreme inefficiency for society from a wealth maximization standpoint. Not only would this lead to a lack of money, but the lack of money to be adequately distributed would create ineffiency with regards to the other measurable satisfactions of the wealth-maximization principle. The leeway given by the Health Act, in the Commission being able to provide for non-core benefits at their discretion, puts the decision making power into the hands of people who are better for making the decision. The Court understood how important this is and, whether or not the decision was made with this a law and economics kind of efficiency in mind, their decision would no doubt be met with the utmost approval from a proponent of law and economics.

Feminist Jurisprudence: Law as Patriarchal Institution

Like many legal theories, feminist jurisprudence draws from a number of related views rather than a single school of thought. The common core to feminist jurisprudence is the belief that the world as we know it is structured by patriarchy and the systematic and systemic domination of women by men. Differences between feminists stem from disagreements about how best to eliminate this patriarchal structure. However, all feminists do agree that a patriarchal world is not good for women, not ordained by nature, and not inevitable.

Feminist jurisprudents examine basic legal structures, specific laws, and judicial interpretation through the lens of feminism, in order to challenge the neutrality of the law and to understand how the law sustains patriarchy. This requires analyzing the law from the perspective of all women, which is problematic because there is no single perspective of all women. Liberal feminists purport that the solution to the oppression is to provide equal opportunity to all. Marxist and socialist feminists argue that equality for women is not possible in a capitalist society which is established on principles of private property and the exploitation of the powerless. While there are disagreements between the diverse feminist theories, they all return to the common core of the rejection of patriarchy.

Feminist jurisprudents like Catharine MacKinnon argue that law is a male creation, reflecting values from the male point of view as the standards. These male values include judicial review, reliance on precedent, the separation of powers, the division between public and private law, and the “reasonable person.” Men, not women, design the norms of civil society and write constitutions, which become law’s highest standards. Furthermore, MacKinnon suggests that many legal precedents fully developed before women were permitted to vote or have power, and thus do not reflect the female perspective.


In order to determine how a feminist jurisprudent would understand the decision in Auton, we can examine the laws at issue and the judicial interpretation of those laws through the “lens of feminism.” S. 15 of the Charter guarantees equality rights and prohibits discrimination based on “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Although this case is focused on discrimination based on mental disability, s.15 is clear in protecting equality rights based on gender as well, thus attempting to provide equal opportunity and treatment under the law to both men and women, and diminishing patriarchy.

Constitutional Considerations

MacKinnon could argue that, as Charter rights are part of our constitution, and constitutions are written and determined by men, these values do not reflect the female point of view. However, s.15 of the Charter came into force in 1985, at a time when feminism and women’s rights were particularly significant. Though the drafters of the Charter may have been mostly male, these women’s rights are adequately recognized and protected in the Charter. Furthermore, though MacKinnon lists legal precedent as male-centric because they were generally determined before women had power, the s.15(1) test used in Auton must have been created post-Charter, and after the first appointment of a woman to the Supreme Court of Canada in 1982.

Comparator Groups

A relevant split amongst feminists regards whether men and women are fundamentally similar or different, and whether women require equal treatment or special treatment in order to ensure equality. Some feminists argue that the liberal view of treating men and women as alike ignores the genuine physical and social differences that tend to disadvantage the vast majority of women. This discussion is prevalent in many s. 15 analyses, and seems particularly relevant to the use of the “comparator group” in the Auton case. The comparator group analysis requires determining a group of people who are alike in all ways relevant to the benefit, except for the personal characteristic associated with the enumerated or analogous ground in question. In the case of Auton, the comparator group used was a non-disabled person, or a person suffering from a non-mental disability, seeking or receiving the same kind of benefits as the appellants sought. Feminists may argue that comparing the autistic appellants to non-disabled people in order to determine equal treatment would “ignore the physical and social differences that tend to disadvantage” autistics. Autistic children may require “special treatment” in order to ensure equality, just as some feminist jurisprudents would say that women require special treatment in order to ensure equality with men.

Male Legal Values

A number of male legal values as determined by MacKinnon are at play in the Auton case. I have already touched on the use of precedent and the Constitution in the case. Another significant male-centric value is the separation of powers, particularly between the legislature and the judiciary. The Supreme Court decides that the government’s conduct didn’t infringe the petitioner’s equality rights because the benefit claimed was not provided by law. However, they go on to say that while one sympathizes with the petitioners, “the issue before us is not what the public health system should provide, which is a matter for Parliament and the legislature.” This decision strongly asserts the male-centric value that some decisions must be left to the legislature, and the judiciary should show deference to these decisions. Along with criticisms of the separation of law from politics, a feminist jurisprudent would criticize the distinction between law and morality as examined in Auton, which is another construction of the patriarchy.

While a number of male-centric legal values are at play in Auton, it is interesting to note that the Supreme Court unanimously decided the case, with its reasons written by Chief Justice McLachlin, a woman. By the end of 2004, the year this case was decided, the Supreme Court of Canada became the world’s most gender-balanced national high court, with four of its nine members being female.

Critical Legal Studies & Critical Race Theory

Critical Legal Studies

The main thrust of critical legal studies comes in the form of destruction of the argument that law and politics are separate. These studies are a critique of the legal system as it stood before.

Duncan Kennedy

Duncan Kennedy first described critical legal studies as an ideology based on the literature produced by groups of self-proclaimed activists working the law school setting premised on the radical 60’s politics. The focus of these activists was on the understanding of doctrines as inevitably political in nature. This came about on the understanding that doctrines reflected the perspectives of the dominant players in their creation and were the fact that they were embedded in a political system. When Kennedy refers to politics he is including all forms of non-formal politics (all relationships of power in society). This ideology has its focus on the purpose of the doctrine and the end it was intended to achieve. Thomas Aquinas would have supported this belief because the doctrine was viewed as working toward the political good, and this end made their purpose good. The political good in society was seen as allocating the power to the dominant players while removing it from the non-dominant.
Critical legal studies have dissolved into the modern perspectives of postmodernism, literacy, discourse theory, feminist legal theory and critical race theory.

Critical View of Auton

This is strongly reflected in the case of Auton. Kennedy would have viewed the doctrine of discrimination, or equality rights under s.15 of the Charter, as political in nature. He would have likely argued that the doctrine was established with such a strict test as to keep the power with the dominant players and would have agreed with the outcome. In agreeing with the decision of the case, Kennedy, would have sided with the judgement in respect to the fact that if found the disadvantaged group had to find a comparator group that satisfied that standards of the Court which was proved difficult to do. The power balance was protected in this doctrine by promoting the political good, the political good being the resulting to deference to Parliament in the allocating of resources, and not providing the disadvantaged group with more power by forcing them to meet a standard set by the dominant players (government/courts).

Critical Race Theory

Critical Race theory is one of the perspectives that spawned from Critical Legal Studies that focuses on race as an underlying theme of an unequal balance of power. CR theorists view race as a social construct that came about as invention of the enlightenment period. Oliver Wendell Holmes spoke of the power of race not in the physical sense, insofar as physical attributes of race are irrelevant, but in the social context where he claimed race was a determinate of how people treated you and how you saw yourself. It was the power in this social and communication sense that he said was the social construct. Race is seen as a real power that has become a social and cultural reality for racialized people, or people socially affected due to their race, that affects their everyday life and how they live it. In summation, it is not the effect that race itself has an racialized people, but the way they are treated because of it.
CR theorists claim that understanding “race” demands an understanding of the experience of racialized people’s lives and how they are affected by race as a construct. They believe that because race is a social construct, it can be deconstructed just the same, and deconstruction involves talking to people and understanding their experience (autobiographies are an excellent tool).

Wacks - 9 Themes of Critical Race Theory

Wacks discusses nine central themes to the CRT. He Begins with CRT as being a (1) critique of liberalism. Here he discusses that Dworkin’s liberal rights bearer theory is too universal to be accepted. He thinks by treating the rights bearer as universal we close off the opportunity to hear people’s stories and accounts and would not be able to deconstruct race. (2) The importance of storytelling to gain the subjective accounts of racism in people’s lives. (3) He also elaborates on the idea of revisionism which is the questioning of the “accepted” or “official story” behind anti-discrimination laws. (4) He talks about understanding race and racism as social and cultural. (5) Structural determinism: how does structure of legal concepts (as objective, rational, impersonal) influence its content (in support of status quo)? (6) Intersectionality of race, gender, class. (7) Anti-essentialism: no (essential) “black community” (many communities, identities, perspectives). (8) Cultural nationalism: are racialised minorities best served by separating from the majority, building separate structures? (9) Legal institutions: examining reasons why racialized minorities are under-represented in legal practice and education?

Racism in Canada has a unique history based on the inconsistencies is has with the experiences that have been expressed by African Canadians. It was said that Canadian history hid from the world the fact that racism existed. This caused many racialized people in the country to feel as though it was personally “just them” that was feeling the effects of racism and that it didn’t actually exist in Canada.

The non-inclusion of racialized minorities in Canadian law is also seen as a factor that perpetuates the social construct of race. Their exclusion from law schools as students, scholars, and from the profession of law just promotes the idea that their invisibility as a subject for discussion in the legal discourse is existent. This is even considered by CRT’s as a problem within the mainstream feminist legal discourse because race is often left out of subjective accounts from women. This creates a difficulty for those in the area who have internalized a non-racialized world to be able to understand and include the perspectives of others, specifically those who live in a racialized world.

Critical Race Theory in Consideration of Auton

The case Auton deals with people who have a disability that are seeking to establish funding from the government to help in their treatment and gain protection from the law of such a right. CRT would apply to this legislation and judgement in respect of disability being a social construct and how we may be unable to deconstruct it without the personal experience of the disabled person. Under the legislation there are certain “core” treatments that are funded and many of them are not in respect to people with disabilities’ certain circumstances. CRT’s would argue that these views of the “core” treatments are in the perspective of people with no disabilities and that in order to be fair and equal we must look include the views of persons living through the disabled perspective. This would perhaps result in a finding that “core” treatments are only used by a certain number of people and that some people, especially those with disabilities, require treatments that are not “core” and that these experiences are a necessary element of finding these inequalities, fixing them, and creating good law.

The intersectionaility of race, gender, and class would also be applied relevant in consideration of this case. CRT’s would consider the many different values and would reject the notion that core benefits are good law. They would state that in addition to the subjective views of the people seeking benefits we should also consider the role that class plays in this. The fact that these treatments are very expensive and cannot be paid for by the people seeking funding should be taken into consideration when deciding if this is good law.