Law's Liberalism and Its Critics

A set of flashcards covering essential terms and concepts discussed in the lecture about law's liberalism and its criticism.

Liberalism

A legal framework emphasizing individual autonomy and maximizing freedoms, seeking to balance rights and obligations within society.

Starting point:

• Concept of personhood assumes a ‘rational, free-choosing autonomous self’ independent from others and the community

• This premise frames each individual as an entity unto themselves

Political Philosophy of Liberalism:

• Designed to maximize individual action realms

• Each person should have equal rights to pursue interests without identity-based formal restraints

  • The challenge is how to maximize individual freedoms in a way to ensure equality of access to one’s version of a “good life” given that individuals’ ideas of a good life may clash

• Critique of ‘free choice’: True free choice is constrained by the interests of others, socioeconomic status, and characteristics like race, gender, or language

  • Structural realities in society mean some people have significantly more choices than others and experience different forms of justice

• Harm principle:

  • Individuals should be free to pursue their version of the ‘good life’ unless it infringes on others’ rights

  • This implies that one’s liberty ends where it bumps up against and potentially impacts another’s liberty

  • This principle is meant to push back against class, gender, ability, and “isms” that limit or restrain other’s freedom

Core principles of Liberalism:

• Society Governance:

  • Society should be governed by liberty, equality and neutrality

  • The role of law is to guarantee maximum citizen freedom to determin personal conceptions of the ‘good’

  • Ensures the pursuit of self-interest

  • Challenges in Practice:

    • liberty: Difficult to balance and provide appropriate space for personal freedom while respecting others’ freedoms

    • Equality: Despite claims of equal treatment, societies are often unequal, and legal systems often treate people unequaly. Formal restraints linked with identity persists

    • Neutrality: The state is supposed to remain neutral on what constitutes a good life. However, can the state afford not to intervene when people’s ideas of a “good life” are directly harmful to themselves or others?

Liberal Legalism

Functions of Law in Liberal Legalism

• Facilitate mechanisms for social interaction:

  • Law provides the framework and channels for individuals to interact, even when they disagree significantly, ensuring these interactions occur within defined, reasonable boundaries that respect others’ rights

    • Example’s include contract law and criminal law

• Mediate interactions:

  • Regulate social actions while prohibiting negative effects. Law determines when one persons’ pursuit of their idea of the good, negatively affects another’s, prohibiting such interactions to prevent undermining the good lives of otehrs

    • Critique of outcomes: This ideal is challenged by extreme wealth inequality globally

• Complex social construct:

  • Law is an imperfect product of social forces, reflecting its human origins. Its functions within complex, diverse societies with competing demands and interacting social forces. It exists in a symboitic relationship with society, where societal values inform the law, and the law, in turn, impacts society

    • It is described as a “site of struggle” over the meaning and quality of social existence, rather than merely a reflection of elite interests. Critiques argue it often reinforces exploitative relationships inherent in capitalism, disproportionately benefiting a small group

Core Features

• Commitment to general, democratically promulgated rules: Reflecting a Fuller-like approach, laws should be based on democratic principles, transparent, and accessible to the population

• Equal treatment of all citizens before the law: Everyone should be treated the same and be equally accountable under the law

• Implementation:

  • Adherence to precedent (stare decisis): The system of following past judicial decisions is meant to remove subjective human aspects from judging, seperating morality, politics, and personal interests from judicial equations by constraining judges’ preference

  • Seperation of judicial and legislative functions: Crucially protects judicial independence, allowing judges to focus on facts and legal outcomes without fear of political reprisal or needing government favour

  • Adherence to procedural formalities: Rules of evidence and procedure apply equally to all parties, aiming to ensure fairness in the court process

Functions of Law within Liberalism

Law should:

• maximize autonomy of rational agents while respecting similar autonomy of others, ensuring compatibility of different ideas of a good life without elevating one over another

• Refrain from preferring one agent’s conception of the good over another

• Law’s ability to implement the harm principle justly is fundamentally linked with the principle of democracy

  • Laws are only legitimate if founded on the consent of the governed and enacted aording to fair rules of participation and procedure

  • Law serves to expand freedom by stting ground rules and is created by the government, applied by courts acting as neutral arbiters

• Utilitarian Liberals: Tend to give greater weight to the community good over individual rights

  • THis perspective might argue for forced vaccination for the betterment of the community

• Deontological Liberals: Believe some rights are so important they can never be overridden by collective good

  • They would argue against killing Parker, as his individual life is not less important

  • Their stance on vaccines depends on balancing individual autonomy against public health, considering if the collective good outwieghs minor individual cost if vaccines are safe

• Canadian Charter of Rights and Freedoms: Section 1 exemplifies this tension, allowing infringement of rights if “demonstrably justified in a free and democratic society” balancing individual rights angainst collective needs

• Law provides a framework for how individual choices interact with and impact others

Legal System Objectives

• Dispute Resolution: Courts resolve legal issues on their own terms, not necessarily the broader social, historical, or political contexts that uderpin the disputes

• Denunciation: Condemnation of unacceptable behaviours, setting clear behaviour boundaries by expressing the wrongfulness of actions

• Deterrence: using punishment to discourage crime, split into specific deterrence (stopping the individual offender from reoffending) and general deterrence (warning the public) through mechanisms like laws, police, courts, and prisons, aiming to create a climate where fear of consequences deters law-breaking, though its effectiveness is debated

• Justice:The aspiration that all parties feel heard, understand the court’s decision, and can live with the outcome.

  • The question remains: Is justice achievable for all?

Achievements of legal system

• Police: Most police work is unsupervised

  • Police have a huge amount of discretion, which does not always lead to just outcomes

  • Examples of issues include racism in police forces in Canada and bias against Black people and other people of colour

  • Native Americans are statistically more likely to be killed by police than Black Americans

• Judges: Most judges strive to be aware of their own biases

  • Genuine self-reflection and awarness are crucial

• Juries: Intended to reflect community standards, but also reflect community biases

  • Gerald Stanley Cas highlighted how all-white jury acquitted a white farmer accused of killing a young Indigenous man, despite strong evidence

  • Research shows jurors tend to demonstrate clear bias against racial minorities

  • Heterogeneous (racially diverse) juries are shown to make fewer mistakes

Necessity as Justification

A legal argument that challenges the wrongfulness of an act by asserting a moral position that it was necessary to break the law.

Necessity as an Excuse

An argument that accepts an act was wrong but considers human weakness and the unavailability of legal options.

Utilitarian Liberals

Philosophers prioritizing community good over individual rights, often justifying actions that harm individuals for the greater benefit.

Deontological Liberals

Philosophers asserting that individual rights must never be overridden by collective good, emphasizing moral principles.

Harm Principle

The concept asserting that individuals are free to pursue their version of the good life unless it encroaches on the rights of others.

Democratic Domination

A condition where minority voices and interests are overridden or ignored by the majority, leading to unequal representation.

Racially Based Jury Nullification

A strategy where jurors consider race in verdicts to counteract perceived systemic racism within the justice system.

Christie v. York Corp

A landmark case highlighting legal correctness undermining social justice, where a Black man was denied service based on racial discrimination.

Issue

• Tension between legal process as rational and broader social justice concerns

Context

• Christie, a Black Canadian, was denied beer service at a Montreal tevern due to a “no coloured persons” policy, despite being a regular patron

• He sued for $200 for humiliation, intially awarded $25

SCC decision

• The Superior Court had earlier struck down Christie's award, claiming merchants are free to conduct business as they see fit.

• At the Supreme Court of Canada, the issue was whether Section 33 of the Quebec License Act applied

• The S.C.C. focused on a literal interpretation: Christie was not a "traveler" (he lived in Montreal), and beer was not "food." Therefore, Section 33 was found inapplicable, and the York Corporation was deemed "strictly within its rights." The appeal was dismissed, making the decision legally correct.

• Dissenting Opinion: Argued that government involvement in liquor sales via licensing meant merchants lost the right to choose clientele; a special privilege required service to any member of the public. This opinion was also legally correct.

• Implication: Both the majority and dissenting opinions were legally correct but largely ignored the overarching policy consideration of racial discrimination. The literal interpretation of the law allowed the court to sidestep the issue of racism. The law failed to secure Christie's maximum freedom and created a disconnect between legal equality (where businesses were treated equally under licensing law) and factual equality (where businesses were allowed to discriminate). The law worked as intended but did not achieve a liberal legalist outcome of justice.

Nixon v. Rape Relief

A case illustrating the limitations of legal interpretations of gender, reinforcing binary definitions while denying broader inclusivity.

Facts

• Nixon, a transgender individual identifying as a woman, was denied volunteering for Rape Releif BC after completing all required training when she disclosed her transgender identity.

  • Rape Relief asserted shw was “not a woman”

• She filed a Human Rights complaint, and the BC Supreme Court ruled that while discrimination occured, it was permitted by the BC Human Rights Code, which allows discrimination for promoting specific groups

Implications

• Illustrated limited legal imagination on gender issues, both within Rape Relief BC’s stance and potentiallu the human rights law and court’s interpretation, by failing to recognize complex understandings of gender beyond a binary definition

• Perpetuated ‘divide and conquer’ in rights litigation, creating different classes of women with varied rights. Rape Relief’s argument resulted in th court defining categories of women and limiting freedoms for transgender women

• Required Rape Relief to adhere to archaic, externally impose ideas of gender, potentially violating its own political positions, to obtain legal protection

• The decision was legally correct but ethically unjust, showcasing a disconnect between legal and factual justice

Liberal Legalism

The application of liberal principles to law, ensuring that it mediates social interactions and regulates conflicts of liberty.