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Group R: R v. Butler

Ramneet Sierra
Mitchell Smith
Bryony Solomon
Tim Star


Facts: The accused owned a shop selling and renting "hard core" videotapes and magazines as well as sexual paraphernalia. He was charged with various counts of selling obscene material, possessing obscene material for the purpose of distribution or sale, and exposing obscene material to public view, contrary to s. 159 (now s. 163) of the Criminal Code. Section 163(8) of the Code provides that "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of . . . crime, horror, cruelty and violence, shall be deemed to be obscene". The trial judge concluded that the obscene material were protected by the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms, and that prima facie only those materials which contained scenes involving violence or cruelty intermingled with sexual activity or depicted lack of consent to sexual contact or otherwise could be said to dehumanize men or women in a sexual context were legitimately proscribed under s. 1. He convicted the accused on eight counts relating to eight films and entered acquittals on the remaining charges. The Crown appealed the acquittals. The Court of Appeal, in a majority decision, allowed the appeal and entered convictions with respect to all the counts. The majority concluded that the materials in question fell outside the protection of the Charter since they constituted purely physical activity and involved the undue exploitation of sex and the degradation of human sexuality. Butler appealed.

Issue: While the constitutional questions as stated concern s. 163 in its entirety, this appeal should be confined to an examination of the constitutional validity of the definition of obscenity in s. 163(8).

Analysis: Section 163(8) provides an exhaustive test of obscenity with respect to publications and objects which exploit sex as a dominant characteristic. In order for a work or material to qualify as "obscene", the exploitation of sex must not only be its dominant characteristic, but such exploitation must be "undue". The courts have attempted to formulate workable tests to determine when the exploitation of sex is "undue".

  1. Community Standards Test
  2. Degradation or Dehumanization Test
  3. Internal Necessities Test

The infringement is justifiable under s. 1 of the Charter. Section 163(8), as interpreted in prior judgments and supplemented by these reasons, prescribes an intelligible standard. The overriding objective of s. 163 is not moral disapprobation but the avoidance of harm to society, and this is a sufficiently pressing and substantial concern to warrant a restriction on freedom of expression. There is a sufficiently rational link between the criminal sanction, which demonstrates our community's disapproval of the dissemination of materials which potentially victimize women and restricts the negative influence which such materials have on changes in attitudes and behaviour, and the objective. While a direct link between obscenity and harm to society may be difficult to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs. Section 163 of the Code minimally impairs freedom of expression.

Conclusion: Appeal allowed and new trial on all charges

Traditional Natural Law (Aquinas)

R v. Butler (1992) SCC explores the concept of morality by applying the community standards test. This test is closely analogous to the philosophical doctrine of Thomas Aquinas and his assessment of law for the common good. Aquinas believes that human nature is such that it inclines us to act for the common good and this is what defines morality. The way to reach morality is by utilising the inherent reason and rationality that is part of human nature. The way to reach morality is by devising laws that reflect this inherent reason.

Although Aquinas views humans as having a number of positive characteristics, such as ability to reason, there is an internal conflict within us to oppose what is reasonable and moral by submitting to temptation (“the serpent”). Butler (1992) is an example of an individual who has strayed from his inherent reason by distributing pornographic material depicting “degrading or dehumanising” behaviour. To Aquinas, valid lawmakers who have a divine knowledge of what will benefit the common good must correct this behaviour. In Butler, the valid lawmakers are the members of parliament.

According to Aquinas, the validity of laws within the Butler judgement are based on the following elements: a) That it is directed toward the common good. Aquinas would find that pornographic material in general, reflecting man’s carnal desires, is a product of sin and is worthy of punishment. He applies the common good to all humans, including women. The pornographic material in Butler degrades and dehumanises women by exploiting their sexuality and equating sexuality with violence. The promotion of violence, and degradation of women is detrimental to the common good of society. b) That the law is reasonable. The law is reasonable because it is made in accordance with law makers and the exploration of the common good is emphasised in the community tolerance test; c) That the law is made by a valid law maker. According to Aquinas, a lawmaker is an individual that is naturally inclined to rule. The lawmaker is similar to the concept of superior outlined by Austin. Although Parliament represents a democracy, which at first glance would not necessarily fit into the realm of Aquinas’s lawmaker power, it is compiled of individuals who have participated in competitions and through elections have demonstrated that they are naturally inclined to rule. These individuals have the knowledge to determine what is in the common good. d) That law must be promulgated. Aquinas would consider the criminal code, being a written document and imposed by a valid lawmaker, as being an authoritative power that must be obeyed. In the case of a conflict between criminal code and the Charter, the criminal code would be preferred because of its provision to protect the common good from harm. The Charter rights, such as freedom of expression are individual liberties that should not have the authority to challenge the lawmaker and his knowledge of what will benefit the common good. Hart would agree with Aquinas on the last point as he too values the common good over individual liberties.

Aquinas would disagree with the possible defenses of artistic expression mentioned in Justice Sopinka’s decision. Although the court found that it was not applicable to Butler, Aquinas would hold that the internal necessities test and artistic defense should not be a valid overriding factor. The test holds that if the community is offended by an artistic exploration of a theme, but it is needed for artistic expression, the material may still be held valid. To Aquinas, this places individual rights above the morality standard of the common good and is thus incorrect.

Fuller and Aquinas have similar views in the sense that they believe that there is an internal morality to law. Both would hold that law is based on the validity of the common good. Having said this, there are differences in how they would define what common good is. Aquinas ascribes the common good to the all-knowing law maker. In contrast, Fuller acknowledges that this power can be exercised as a tool of oppression and coercion and, hence it cannot be valid. Applying this to Butler, we can see that Aquinas would be accepting of laws so long as they are done with the criteria of natural law (toward the common good, practical reason, made by lawmaker and promulgated). Fuller has a subjective approach. Law is law because it is recognised communally as being moral. In Butler, pornography would be considered immoral if everyone within the community agree that it is immoral. It would be hypocritical, to Fuller, if some individuals within the system, for example politicians or judges, were found purchasing the type of pornographic material that Butler is trying to sell.

Aquinas and Mill have opposing views of laws and morality. Aquinas would contend that the natural law maker has the divine right to make laws on behalf of the common good, whether it is done through coercion or punishment. Mill, on the other hand, would disagree. To Mill, the law must protect liberties against the tyranny of the majority. Applied to Butler, this means that Aquinas would emphasis s.163 (8) of the criminal code, where Mill would favour s. 2(b), freedom of expression, within the Charter.

Positivist - Law as a Common (Austin)

Where Aquinas equates morality and law as being part of one entity, John Austin believes that law and morality are separate. The Butler judgement defines what is moral within our community. Austin would regard the community standards test as being unnecessary. To Austin, laws do not have to be justified on the grounds of morality to be valid. This differs from Aquinas’s belief. To Aquinas, the law and morality as an element of divinity, where Austin regards the law as being a man-made product.

To Austin, the first step of analysis is to determine what type of governance is being exhibited. This includes the following categories: A) laws that are set by God for human beings, known as natural law. To Austin this is not valid law because it does not fit the definition; B) positive morality, laws that are conventions/norms that govern us. In the Butler case (1992), this is the Charter because it is based on norms of human behaviour; and lastly, c) positive law, where commands are issued by superiors to subordinates and backed by sanctions. An example of this is the criminal code within the Butler case (1992). In Butler (1992), the law is valid because it is a) issued by superiors (the ultimate authority, Parliament) to subordinates (the general public) and is backed by sanctions (fines and terms in prison outlined by the criminal code).

Aquinas would find that we are morally obligated to follow all law. Austin on the other hand believes that only valid law must be obeyed. Valid law are ones that follow the procedures outlined above. Austin’s branch of the legal positivism would favour legislation over Charter rights, like Aquinas. Both Aquinas and Austin would favour the legislation outlined by the criminal code as holding greater authority over the Charter. Austin would regard the Charter as being a form of positive morality.

Being a positivist, Hart would concur with Austin and disagree with Aquinas on the aspects of morality and law being one entity. Hart’s perspective differs from Austin in the sense that there can be justification to not obey laws if they are immoral, i.e. the moral obligation is stronger than the legal obligation. Where Austin would hold that Butler must follow the law, Hart would consider subjectivity of the case to a certain aspect. To Hard, Butler may be able to disobey the laws if his action is based on his morals and conscience.

Paternalism and Liberty

Legal theorists with a liberty perspective look at if and when it's okay for one's right to liberty to be interfered with by the state. Some theorists such as John Stuart Mill look at the harm principle, and justify restriction of individual's liberty to prevent harm to others. Other theorist such as Dworkin have a paternalistic view, and view the exercise of the right to liberty as a potential cause of harm to oneself. Protecting community moral values is another justification for restricting liberty. Protecting the public from offensive acts caused by a right to liberty is another justification.

John Stuart Mill's theory on liberty focuses on the issue of when it is acceptable for the state to interfere with a citizen's rights. A central issue which he focuses on is preventing harm. Mill believes that one should not wait for harm to occur and the to respond to it, but the goal is to prevent the harm. Mill views liberty as an important right in our society. According to Mill, interference with liberty should only occur to prevent serious harm to others. Otherwise Mill views interference with liberty as wrong, and believes that individuals are the best judges of their own actions. The exceptions to those who are the best judges of their own actions are children and those who do not possess mature mental capacity, or “backwards societies.”

Mill would agree with the reasoning in R. v. Butler (1992) SCC, and say that obscene pornographic materials, which involves undue exploitation of sex, should be restricted. The court followed a harm based approach, and stated that the objective of s.163 (8) is not moral, but preventing harm to society. The harm caused by obscene materials was found to be the predisposition of persons to act in an anti-social manner. The main intention of the court, in Butler, was to restrict such materials that promotes anti-social behaviour. Mill believes that liberty should only be restricted to prevent serious harm. In the present case, anti-social behaviour such as violence against women would be classified as a serious crime by society, and was classified as such by the Court. The court, in Butler, also stated that pornographic materials which are not violent or degrading can still be harmful, such as child pornography. He would argue that children do not have the mature mental capacity to make decisions and to prevent harm to themselves. He's also likely contend that child pornography promotes anti-social behaviour in society. Mill would agree that child pornography leads to serious harm, and restriction of liberty is justified when the restriction is meant to control this harm.

In contrast to radical feminists such as MacKinnon, Mill would say that not all pornographic material is harmful, or seriously harmful to justify the restriction of liberty. The harm here is not gender equality, but the promotion of anti-social behaviour. Mill would agree that only pornographic material that is obscene, and involves violence, or degradation of women, or otherwise not tolerated by the community, should be restricted because it may promote anti-social. Mill would agree with the court that the s.163 (8) minimally impairs s.2 (b), freedom of expression, and is rightfully saved by s.1 of the Charter.

Dworkin would look at the restriction of s.2 (b) of the Charter from the a paternalistic justification for restriction of liberty. Dworkin's rational for limiting liberty is more limited than that of Mill. Dworking believes that the harm must be irreversible and produce destructive changes in order for a restriction to be justified. Dworkin, like Mill, believes that we should presume that the individual has the capacity to decide what actions are harmful. However, he acknowledges that sometimes individuals are not the best judges of what is harmful.

Dworkin would agree with Mill that state limitation of s.2(b) right to freedom of expression is justified in the case of Butler. He would say that if pornography restricted by s.163 (8) of the criminal code does promote anti-social behaviour, this may be irreversible, and may produce destructive acts such as violence against women. Whether anti-social behaviour promoted by such pornography is irreversible may be debated however.

If we assume that the pornography restricted by s.163(8) of the criminal code does produce irreversible and destructive changes, Dworkin would agree with the court in Butler that such restriction is justified. The court looked to s.1 of the Charter to see if the limitation of s.2(b) of the Charter was minimal. Dworkin would look at whether the limitation was proportional to the harm it was aimed to prevent. In this case, violence against women is a very serious issue, and restricting obscene or degrading pornography minimally restricts s.2(b) of the Charter.

The Separation Thesis

HLA Hart believes that law and morality are two separate systems that can sometimes run parallel with one-another, yet remain distinct. It is beneficial to see law as separate from morality and not teleologically moral. This allows people to freely evaluate, criticize and change laws, as the court does in R v Butler(1992) SCC. In situations where there is a clash between legal and moral principles, Hart would say that people must evaluate the legal and moral obligations and follow which obligation is greater. The court in Butler carries out an in depth analysis of s.163 of the Criminal Code and whether it violated Butler's s.2(b) Charter guarantee of freedom of expression. They then analysed whether the violation of Butler's Charter right was justified under s.1 of the Charter. Hart would likely say that this analysis is an illustration of how law is distinct from morality, as the court doesn't simply assume that the law is inherently moral. Rather, the court weighs the competing obligations evident in Butler, where, the legal obligation not to distribute obscene materials is weighed against the conflicting moral obligation to give effect to the protections offered by the Charter.

For Hart, law is distinct from moral rule systems because it carries with it 'ought claims'. He thinks laws have ‘ought claims’ in the sense that we must recognize that we ought to follow laws, in order for them to be laws. This is where he differs from Natural Law theorists who believe that all genuine laws impose a final or absolute moral obligation of obedience. Hart contends that citizens can face a visible conflict when faced with unjust laws. Generally, most of us recognize that we ought to follow the law, but it’s crucial, in order for a law to be valid, that officials that enforce the law, such as police, feel that they ought to do it. Hart contends that it is possible for officials to be morally mistaken and feel that they ought to impose a law when this is in fact not true. Regarding Butler, the fact that Butler was charged by the police and the justice system prosecuted the case indicates that officials recognized s.163 of the Criminal Code as valid and felt that they ought to enforce the law. Hart would likely argue that the court then analysed whether the officials were morally mistaken in enforcing the law by weighing the legal obligations with the competing moral obligations embodied in the Charter. Lon Fuller thinks that Hart's rule of recognition is silly. When we talk about officials enforcing the law, such as in Butler, Fuller contends that they are not enforcing it because they 'ought' to enforce a law, but they are actually enforcing the law because they deem it to be in line with social morality. Fuller also criticizes Hart for leaving us in a dilemma when there are competing 'ought claims'. For example, the officials who enforced the law, in Butler, could potentially have felt trapped between competing legal and moral obligations because the law infringed on Butler's freedom of expression. However, Hart's positivist analysis gives them no insight into what they should do when faced with conflicting obligations.

Hart contends that law is expressed in general terms and is meant to apply to society generally. For Hart, the law cannot apply to different classes or groups of people. The reason being that it would be impossible for the law to take individual particularities into account. This general applicability of the law allows it to have a core settled meaning so that everyone can know when, where and how the law will apply. Hart would probably like the analysis in Butler, where it is clear that the court considers the law's application broadly and how it applies to society generally. The court observes that there are a variety of opinions in Canadian society concerning what level of explicitness is acceptable in pornography. The court uses the general opinion held by society to decide what is acceptable. Hart would likely agree with this because the court was unwilling to apply the law individually and create legal exceptions for a minority who have an unusually high tolerance for obscenity in pornography.

For Hart, some cases fall outside the core of settled meaning when the factual situation presented is either not already characterized in case law, has an incomplete set of applicable rules, or is not clearly addressed in legislation. These cases fall in the penumbra. Whereas Austin sees only a narrow role for judges, Hart sees an enlarged role for the judiciary when deciding 'hard' cases that fall within the penumbra. Hart claims that judges draw on the terms of the rule governed practise to fill the gaps in the law. The terms of the rule governed practice is a consistent set of principles underlying the legal system as a whole that are arguably embodied in the Charter and Canadian Constitution. This is not to be confused with morality, subjective discretion or Rhonald Dworkin's 'principles' which, in Dworkin's view, are principles that guide rule-making. In Butler, Hart would say that the court applied terms of the rule governed practise to the unique set of facts set out before them. These were arguably embodied in the Charter, case law, evidence of harm, social moral principles and the Oakes test that the court used to aid themselves in their analysis.

Austin rejects the idea of a constitution as binding on the sovereign and the fact that the Charter applies to the Canadian Government would create problems for Austin. For him, it is central to the positivist view that the sovereign cannot be bound by law. Thomas Aquinas would agree with Austin that the Charter cannot bind the Sovereign because as long as the law is for the common good it is justified. Bentham would agree with Hart who would say that it is not detrimental to positivism for the Charter to be binding on the sovereign, and to draw at least some of its contents from moral principles. In the context of Butler, Hart would likely say that it is not detrimental to positivism for the Charter to apply to s. 163 of the Criminal Code which is law created by the Canadian Government who is arguably the Sovereign.

The Morality of Law

Unlike Hart, who says that law's authority is grounded in legal officials' recognition of the law as valid, Fuller argues that people enforce and follow laws because they recognize the law as moral, grounding the recognition of law's validity in morality. The court in R v Butler (1992) SCC, asserts that laws are not necessarily illegitimate if they are grounded in morality. It further asserts that the main purpose and intent of s.163 is not grounded in morality, but rather the avoidance of harm to society. In a sense this indicates that the court allows for laws to have a moral purpose but that it prefers to base its reasoning for upholding the Charter infringing law in prevention of harm to society. Hart would likely disagree that criminal law can be based in morality, but agree with the judges' decision not to ground their reasoning in morality and rather draw from the terms of the rule governed practise to make their decision. Fuller, on the other hand, would probably agree with the judges on their point that it is acceptable for laws to have a moral purpose, but go further and contend that laws are based in morality and have an inner morality. In addition, Fuller would likely contend that the court is considering external morality to determine whether the law works to meet morally good ends and maintain order. Fuller believes that the purpose of laws is to create order in society, which he'd likely think was the goal of the court when it upheld s.163 after determining its aim was to protect society from the distribution of harmful materials and its infringement on Butler's Charter right to freedom of expression was justified.

The court, in Butler, applies the community standard and contemplates the tolerance that Canadian society has for obscene materials to determine whether the law is in line with widely held values of Canadians. Hart would probably argue that the court is applying the rule of recognition and is contemplating whether society accepts the law as valid. In contrast, Fuller would likely argue that social acceptance of a law as legitimate is ultimately grounded in external morality that is independent of the law, and isn't to be confused with Aquinas's 'higher law'. For Fuller, the external morality of law functions to maintain good and moral order and is necessary for laws to exist. The Charter would arguably be part of external morality for Fuller, as the legislature created it to protect Canadian society's interest in having specific rights and freedoms protected. Fuller would likely approve of the s.1 Oakes test carried out in Butler, which forced the court demonstrate why the infringement on Butler's Charter right was justified. Fuller would arguably say that this is an example of where judges are bring a law in line with external morality, which pulls the legal system in a good direction, away from arbitrariness and unreasonableness.

Fuller asserts that when deciding cases, judges should not be tasked with interpreting the words of statutes and case law and should, rather, interpret what the law was meant to do and what purpose it was meant to serve. Both Fuller and Hart distinguish between easy and hard cases. Fuller rejects Hart's penumbra theory and, instead, finds that hard cases will have a purpose that is less obvious then in easy cases. For Fuller, hard cases will sometimes require the court to address a purpose that is difficult to define or a case in which there are competing purposes. Butler could arguably be defined as a hard case for both Hart and Fuller. Hart would likely define Butler as a hard case based on the fact that the court had to grapple with the law contained in the Criminal Code and the Charter because there was no core of settled meaning on the issue at hand. Much of the Butler decision was spent defining the law's purpose and intent and considering whether it was in line with the interests of society as a whole. Fuller would say that because the purpose of s.163 wasn't readily apparent and the court had to grapple with the law to find its purpose, Butler was a hard case. Fuller would approve of the court carrying out this analysis because the court was fulfilling its fidelity to the law, which is very important for Fuller.

Both Hart and Fuller were very concerned with the events that occurred in Nazi Germany. Fuller thinks that Hart's theory inadequately addresses the issues in Germany's legal system that allowed for the Nazi Regime to become so successful. He contends that Hart's ignorance of law's internal morality could allow for laws to be upheld due to their evil, inner logic that mimics morality. In order for laws to be pulled towards morality, Fuller argues that judges must give reasons for their decisions and court structures must allow for dissenting opinions. It is in the reasoning and justification process carried out by judges supporting their decisions, that draws the law towards morality. The Supreme Court of Canada, which decided Butler, is structured so that there are numerous judges who must justify their decisions in writing, with judges commonly dissenting from the majority decision. Fuller would likely approve of this structure and say that the structure of the Supreme Court of Canada allows Canadian laws to be drawn towards morality.

Law as a System of Rights (Dworkin)

Dworkin departs from Hart’s description of what is going on in terms of judges using discretion when drawing on the terms of the rule-governed practice. In Hart’s view, judges draw on underlying themes to exercise discretion, whereas in Dworkin’s view, judges are bound by principles, which are used to guide rule making. Dworkin says principles are as much a part of the law as rules are and further, rejects Hart’s ”penumbra” theory where, the rules do not decisively decide the issue that principles will provide the answer. He believes there are no true “hard case” and that there is always a right answer. The principles fill in gaps in the law, rules will come and go but the principles endure, evolve and change, analogous to a forward flowing stream. These principles are based on fundamental ideas of justice and fairness that inform judicial decision-making.

An element of Dworkin’s theory is his Rights Thesis, a concept where judicial decisions are enforced through existing political rights. The political rights are a product of history and morality, considered by Judges when making their decisions. These decisions are always made in consideration of the political rights of the past and how these political rights may be affected in the future.

Dworkin’s theory states that rule principles cannot be enumerated, they are controversial, their weight is all-important, they are numberless, and they shift and change so fast. This is exemplified when examining the principles of human equality and dignity in regards to the feminist theory and the principle of freedom of expression in regards to the economic theory.

In R v Butler (1992) SCC, it is stated that morality is the avoidance of harm, where harm takes the form of violations of the principles of human equality and dignity. The obscene materials sold in Butler involve the humiliation and sometimes violence against women. Dworkin would likely not agree with the beliefs of Catherine Mackinnon, who believes all pornography should be banned . However, he would agree with the political importance of women and their protection. He would see that the history of equality of women continues to develop and that this progression is an important principle of justice.

Dworkin and Susan Dimock would be having a similar discussion with regards to the importance of an individual’s 2(b) rights, freedom of expression and its economic potential, versus the potential harm to society. Both Dworkin and Susan would agree that the ability of individuals to create and sell “good pornography” that does not inhibit the celebration of human sexuality should not be limited. However, the obscene pornography sold by Butler creates undue costs to society. Dworkin in this case weighs the strengths of policy reasons and Susan weights the benefits ands costs.

The positivist would disagree with Dworkin’s view of principles as he states that principles are not analogous to rules; they are not “master rules” as recognized by the positivists. The positivists would complain that these master rules are not applied consistently, and that judges select the ones they favor and are arbitrarily changing the real rules. Furthermore, Dworkin in contrast to the positivists believe that Judges have strong and weak discretion and are not bound by standards set by authority, but their decision-making in hard cases is controlled by principles. Whereas the positivists see the role of Judges as playing a small role in interpreting and applying the law.

Dworkin believes that judicial reasoning is always interpretive and must look both backwards and forwards during its interpretation. The story of obscenity prior to the enactment of s.163 was Hicklin Test. The court looks back to Brodie v. The Queen where the Hicklin definition was deemed obsolete and provides that S.163 (8) provides the exhaustive test of obscenity. This is an example of the river flowing and changing based on societal norms. An additional example of a principle continuing to evolve is the Community Standards test, which was elaborated on from Towne Cinema Theatres Ltd.

The Majority Decision written by Justice Sopinka in Butler represents, similarly to Ronald Dworkin’s view of Law as principles and rights. He would agree with the progressive analysis taken by the court and see their decision as a forward movement of the flowing river. The decision would be one to which future Judges could look back on and reference in order continue its forward progress as the nature of political rights evolve.

Law and Economics: Law as Efficiency

In comparison to other theorists, the law and economics theory is concerned with efficiency and does not consider where the law comes from, or the relationship between law and morality. They believe that most laws are efficient because the inefficient laws will disappear similar to that of natural selection. Efficiency of a law means to maximize social wealth, either by getting out of the way of people maximizing wealth or helping to take steps to help facilitate maximization. Wealth defined by Susan Dimock is not only referencing money but includes all measurable satisfactions; it refers to the sum of all tangible and intangible goods and services traded in the market. In order to function in a manner that is efficient the model requires that human behavior is rational and the decisions made are in their best interests.

One of the principles of efficiency it the “Pareto” superiority principle, which is the idea that a state of affairs is better because at least one person is better off and the other person at least remains at the same level. Pareto-optimality occurs where no further “moves” are possible.

The issue in Butler surpassed just examining a simple transaction, between the state and Butler, but externalities had to be considered and ultimately played a major factor in the decisions. The externality in this was society and the harm obscene pornography could potentially cause.

The decision written by Justice Sopinka in R v. Butler (1992) SCC, can be understood as using a cost/benefit analysis’ similar to the Kaldor-Hicks test where a transaction is efficient if overall benefit outweighs the cost. In Butler Sopinka weighs the cost to society against the benefits in order to determine whether the claim should be upheld or struck down. The question that must be asked is whether protecting society from the obscene pornography sold by Butler an efficient investment in the criminal system?

In this case Butler was charged under S.163 of the criminal code and face a punishment of a fine for every piece of obscene pornography he had. This punishment had to be weighed against the potential costs of rehabilitating those affected by the harm. The damage too society whether tangible or intangible would have been difficult to measure. However, it was decided that enough evidence existed to show the adverse affects to society. Comparing Susan Dimock’s economic theory to the various feminist theories is difficult to determine because it could be argued that the radical feminist theory would ultimately lead to the most efficient laws but the external costs in getting there may be great. It may be suggested that by taking the liberal perspective would be the most efficient because the progressive balance in eventually achieving the most efficient ends. Butler is simply a progression to eventually achieving efficiency .

It may be the case that economic theorists have a love hate relationship with Dworkin based on his believes that decision can be made on policy. The argument here would be that the use of policy when for economic reasons is efficient however policy also includes overall society and could result in increased government intervention.

Critical Theorist may believe it prudent to have the court hear the whole story. Economic theorists would view this as inefficient and a poor use of the courts resources.

Lastly, economic theorist would examine if alternatives exits, obscene pornography may not need to be criminalized. It could potentially be suggested that a regulatory approach which does not allow such films to enter into the market place. This would likely not be efficient because the costs of reviewing all films would be high due to the amount of the time required to watch and clear them all.

Susan would likely agree with this decision because, the court uses the components of the Oakes test to balances the harm done to society against the rights of freedom of expression used in distribution of obscene pornography. It was determined that the immediate harm and potential long run costs to society outweighed Butler’s 2(b) rights. As stated in the introduction, the laws that are inefficient will eventually disappear. In this case s.163 was just refined to make it more efficient. This can be related to the “Pareto” superiority principle, as it appears a win-lose scenario exists and a movement towards Pareto-optimality has been made.

Feminist Jurisprudence: Law as Patriarchal Institution

Feminists would approach R v. Butler (1992) SCC by looking at how patriarchy and the systematic domination of women by men can be used to interpret the decision in this case. A feminist wants to see whether the laws are reasonable or adequate to protect the rights of women, and whether the courts have erred in applying them. A feminist will want to remove patriarchy, or the systematic domination of men over women, as they believe that this has harmful effects for women and society. Although, all feminist theories share these basic beliefs, there are notable differences among liberal, radical, marxist, postmodern, and relational feminist theories.

The holding in Butler was that the criminal offence of distribution of obscenity infringes s.2(b) of the Canadian Charter of Rights and Freedoms, but can be justified under s.1 of the Charter. The court noted that s.163 (8) of the criminal code, which prohibits obscene materials, has a goal of preventing harm to society and that prohibition of violent or “obscene” pornographic materials minimally impairs freedom of expression protected by s.2(b) of the Charter and is therefore justified under s.1 of the Charter. The court, however, ruled that pornographic material that is neither violent, degrading, or seen as unacceptable by community standards is not prohibited by s.163 (8).

Modern liberal feminists would look at how pornographic material oppresses women in society and hinders their access to success in society. They would argue that violent or degrading pornographic material perpetuates the view of women as subordinate to men and this view has a negative effect on women. A liberal feminist would agree with the reasoning in Butler that violent, degrading or otherwise obscene pornographic material is harmful and should be prohibited. They would agree that s.163 (8) is valid law and the infringement of s.2(b) is minimal and justified under s.1. They would argue that violent and degrading pornographic material made available to the public has the potential to change cultural norms and values, and how society views women. They would say that such obscene pornographic material will lessen the value of women in society and perpetuate a stereotypical views of women, and that they are not equal to men. This in turn will not only effect the private, domestic lives of women, but also their public lives, such as gaining equal employment.

Radical Feminists on the other hand would not agree with the reasoning in Buter. They would argue that prohibition of obscene pornography is only a small step towards dismantling male dominated society (the patriarchy). Feminists that incorporate this view include Catharine A. Mackinnon who would see legislation such as s.163 (8), and the reasoning in Butler, as the product of the patriarchy. Mckinnon would argue that s.163 (8) and its interpretation and application in Butler are based on male view of the acceptability of pornographic material. MacKinnon would disagree with the court in Butler that non-violent and non-degrading pornographic material is acceptable in society. MacKinnon would say that all pornographic material is harmful, on the basis that it subordinates women in society and perpetuates harmful views towards women, and therefore should be prohibited.

Marxist feminists would also agree with the Radical feminists that the oppression of women is due to larger societal structures such as the capitalist system. They argue that the function of the capitalist system is to devalue women and perpetuates the view of women as economically useless. A Marxist feminist would argue that all pornographic material has the potential to perpetuate these stereotypes of women as economically useless in the capitalist system. They would therefore argue similar to the radical feminist that s.163 (8) is not enough to combat this problem, and that all pornography, not just violent and degrading pornography has the potential to perpetuate negative stereotypes of women and can effect how women are valued in the economic system.

Relational feminists would argue that societal systems need to change to accommodate the needs of women. Because women were raised differently than men, they have different qualities that should be incorporated into the legal structure. Our legal system would need to be changed to help women progress in society, and these include changes in the courts and parliament who pass laws such as s.163 (8) of the criminal code which prohibits obscene pornographic material. Relational feminists would look at how various forms of pornographic material effect women's lives, and not based on how it effects their equality in relation to males. A relational feminist may agree that s.163 (8) does enough to protect the interest of women, such as reducing harm against women. However, they may also say that other forms of non-degrading and non-violent pornographic material can potentially have negative effects on women. They may argue that a male-dominant parliament and legal system cannot comprehend all the negative effects of pornographic on women. Thus, such laws and application of law such as in Butler do not meet the unique needs of women in society.

Postmodern feminists would argue that there is no single clear theory that explain what causes the subordination or devaluation of women in society. They would argue that it is not clear whether s.163 (8) of the criminal code does enough to protect women. A postmodernist may argue that certain pornographic material may do more harm to certain groups of women in society more than others. It is difficult to assess how effective s.163 (8) is in protecting all different classes and groups of women.

Critical Legal Studies and Critical Race Theory

Critical Legal Theory, as a doctrine, began in law schools and began, quite explicitly, as a critique of doctrine. The idea of doctrine and the way that doctrine is taught has a set of abstract and controlling principles developed out of, and on, the basis of pure reason. In fact, doctrine, like all aspects of law, is deeply embedded in the political structure of society.

Critical legal theory presents relationships and institutions as being inherently political. The justice system is shaped by perspectives and standards of reason and logic of the dominant players in our society, and hence, so are the decisions of the judges. This is similar to the doctrine of Marxist feminism, in which, it is believed that capitalism is utilized by patriarchy to impose a political system in which the oppression of women is institutionalized.

Because judges and lawyers have received formal training in law school, their logic/reasons and morals are shaped accordingly. The mindset and values that they attain during their training are conservative and traditional in nature and affect their approach to decisions. This applies to R v Butler (1992) SCC where Critical Legal Theorists would suggest that it is only natural that Justice Sopinka, being part of a traditional legal institution, would impose a conservative reactionary decision on pornography and Butler. It is inevitable that the judgement would hold against Butler because the subject matter, containing sex and pornography, is one that is politically considered taboo.

Following this logic, it is presumed that judges will base their decisions according to how reason has been defined within their training. Hence Justice Sopinka, along with the other judges, will assess Butler according to their prejudices and expectations of sex and pornography. This decision will then be masqueraded onto the public as being an objective assessment based on reason and a reflection of societal values.