1. Introduction to Legal Studies - Law, Liberalism and Critics
Announcements:
Winter Term Examination Schedule Now Available
Laws 1000C/V will be held April 25, 9:00 a.m.
Location will be announced closer to exam date
Examination will cover ALL Winter Term materials
Format consistent with Fall Term Examination

2. Introduction to Legal Studies - Law, Liberalism and Critics
Review: Judges
Laskin, Lamer, Wilson, R. v. S., Cosgrove
Judicial Appointment – 3 categories of courts
Criteria for Appointment
Removal from the Bench – not in Canada so far!!
Objectivity & Impartiality in adjudication – R.v.S.
Wilson & Women Judges

3. Introduction to Legal Studies - Law, Liberalism and Critics
Today:
Law, Liberalism & the Critics
Christie v. York Corp [1940] S.C.R. 139; Delgamuukw v. B.C. [1997] 3 S.C.R. 1010; Burtch, Women’s Rights as Human Rights: Toward a Re-Vision of Human Rights; Bulter, Racially Based Jury Nullification: Black Power in the Criminal Justice System; Khan, Perpetuating the Cycle of Abuse: Feminist (Mis)use of the Public/Private Dichotomy in the Case of Nixon v. Rape Relief; Bartholomew & Boyd, Toward a Political Economy of Law

4. Introduction to Legal Studies - Law, Liberalism and Critics
What are the goals of the legal system?
dispute resolution - or is it? Is this what the courts do?
denunciation - condemnation of unacceptable behaviors and thus the setting of boundaries on acceptable behavior
deterrence - specific and general
justice!

5. Introduction to Legal Studies - Law, Liberalism and Critics
Does the system achieve these goals?
Police: the sticky issue of discretion
Judges: objectivity & neutrality
Juries: community standards, community biases
What does it all mean in the end?
…And justice for all?

6. Introduction to Legal Studies - Law, Liberalism and Critics
Liberalism & ‘Liberal Legalism’
Starting point of Liberalism: theory of personhood that assumes a ‘rational, free-choosing autonomous self that is independent from the community and other selves’
Embraces a political philosophy that is designed to maximize the realm of action available to such a self, that is:
Each person should have the equal right to follow or pursue their own interests without formal restraints because of their identity, be it on the basis of their race, gender, class, or ability.

7. Introduction to Legal Studies - Law, Liberalism and Critics
People should be free to pursue their own version of the ‘good life’ insofar as their choices do not ‘bump up against’ or infringe upon, other peoples’ choices
Liberalism argues that society should be governed by liberty, equality and neutrality, and that the State and the law should strive to provide each citizen with maximum freedom in which to determine their own conception of ‘the good’ and to pursue self-interests

8. Introduction to Legal Studies - Law, Liberalism and Critics
Within a Liberal Legalism, the key
functions of law are:
to facilitate/provide mechanisms for social interaction
Mediate/regulate these interactions
Determine when one person’s interactions have had a negative effect on another and prohibit those negative interactions
“Harm Principle”: one cannot use one’s one liberty to infringe another person’s liberty

9. Introduction to Legal Studies - Law, Liberalism and Critics
Liberal Legalism summarized:
Essential features:
Commitment to general, democratically promulgated rules
Equal treatment of all citizens before the law
Separation of morality, politics and personal interests from judicial action

10. Introduction to Legal Studies - Law, Liberalism and Critics
How these essential attributes are articulated within the law & legal system:
Adherence to precedent
Separation of judicial and legislative functions of government
Adherence to procedural formalities

11. Introduction to Legal Studies - Law, Liberalism and Critics
Christie v. York Corp.[1940] S.C.R. 139.
Facts:
Christie attempted to purchase a beer at a tavern in Montreal & was refused service
Service refused because waiter informed Christie that new management instructed staff not to serve ‘coloured persons’
Christie sued for $ for humiliation incurred due to the refusal of service
Trial judge awarded Christie $25.00 on grounds that York Corp. was acting illegally when it refused service to a ‘Negro’ under ss. 19 & 33 of the Quebec License Act (Ch.25 of R.S.P.O. 1925)
On appeal, Superior Court struck down the award, claiming that a merchant is free to carry on his business in the manner he conceives to be best
Further appealed to Supreme Court of Canada

12. Introduction to Legal Studies - Law, Liberalism and Critics
Issue at S.C.C.:
Whether s.33 of the Quebec License Act applies to the case
Held: s.33 does not apply & “…it must follow that, when refusing to serve the appellant, the respondent was strictly within its rights”(p.108)
Appeal dismissed
Dissent: Insofar as the state involves itself in the sale of liquor through the vehicle of the License Act, the licensed merchant loses the right to pick and choose his clientele as he has a state-provided “special privilege to sell to the public”.

13. Introduction to Legal Studies - Law, Liberalism and Critics
In effect, the S.C.C.’s decision avoided the issue of racism by focussing on the ‘letter of the law’
License Act merely attempts to regulate “freedom of commerce”
Thus the Act permits vendors to act on their freedom of commerce in a manner which they view as best meeting the needs of their businesses.
But what happens when freedom of commerce equals freedom to discriminate?
Disconnect between legal and factual equality!

14. Introduction to Legal Studies - Law, Liberalism and Critics
Delgamuukw v. B.C.[1997] 3 S.C.R. 1010
Aboriginal title case
Essential question on appeal concerned weight to be given to different types of evidence, specifically here, oral versus written documents
Oral history as ‘hearsay’
Supreme Court: Parity of oral and written historical documents and a new trial

15. Introduction to Legal Studies - Law, Liberalism and Critics
Perpetuating the Cycle of Abuse…Nixon v. Rape Relief
Facts:
Nixon, a transgendered person, sought to volunteer with Rape Relief; when she identified as transgendered, she was denied the right to volunteer
Nixon file Human Rights complaint; case went to BC Supreme Court.
Court found against Nixon, although there was discrimination, Rape Relief was protected by BC Human Rights Code which permits discrimination for purpose of promotion of a particular group (in this case women)

16. Introduction to Legal Studies - Law, Liberalism and Critics
Outcome in Nixon v Rape Relief demonstrates:
Limited legal imagination on matters of gender
Perpetuation of ‘divide and conquer’ politics in rights litigation
Court created different ‘classes’ of women with different degrees of rights
In refusing to recognize a more complex understanding of gender, the law limited different women’s pursuit of a ‘good life’
To obtain ‘benefit’ of legal protection, Rape Relief had to accept not only to violate their own political positions, but also adhere to archaic, externally-imposed gender definitions

17. Introduction to Legal Studies - Law, Liberalism and Critics
Racially Based Jury Nullification: Black Power in the Criminal Justice System
whether and when is it appropriate for Black jurors to use their power to acquit Black defendants, not because they are not guilty, but rather as a means by which to ensure yet another Black person is not put into prison?

18. Introduction to Legal Studies - Law, Liberalism and Critics
Race may be a legally and morally appropriate factor for jurors to consider in reaching a verdict of not guilty or against conviction
Liberal critique of justice: the system is racist
Radical critique of justice: society is racist and law is a means for protecting white interests

19. Introduction to Legal Studies - Law, Liberalism and Critics
Jury nullification as a check on state power
Legal & moral arguments favoring nullification:
Rule of law is more mythical than real
Moral obligation to disobey unjust laws
Democratic domination
Nullification, civil disobedience and state oppression

20. Introduction to Legal Studies - Law, Liberalism and Critics
Bartholomew & Boyd
Law as both object and context of struggle
Law as both facilitating and restricting rights
Summary:
The law can simultaneously be a source of justice and injustice
Must always be conscious of the ways law contributed to the reconstitution and reproduction of existing power relations in society.