TRU/Law3020/GroupA

Group A

= R v. Lavallee (1990) 1 SCR 852 = Angelique Lavallee and Kevin Rust were in a common law relationship characterized by prolonged domestic violence at the hands of Rust. Over a period of 4 years, Lavallee was able to document eight hospital visits as a result of this violence including severe bruises, a fractured nose, multiple contusions, and a black eye. Lavallee expressed many more occurrences of violence that could not be corroborated by medical records. These violent attacks culminated at what was described by the judge as a "boisterous" party on August 30, 1986. Party-goers testified that on the night of the party, they heard sounds of an argument in the upstairs of the residence and a woman screaming. Lavallee and Rust were a bedroom and he told her something to the effect of "when the others leave you are going to get it." He handed her a shotgun and told her that if she did not kill him, he would kill her. As Rust left the room with his back turned, Lavallee fired two shots. While the first shot missed, the second shot was to the back of Rust's head, killing him.

The crux of Ms. Lavallee's defence in this case was "Battered Women's Syndrome." BWS is explained in the case as the psychological trauma that results from months or years of brutality and abuse at the hands of one's partner or spouse. Dr. Shane's evidence illuminates the cyclical nature of domestic violence. Its incorporation as valid testimony provides legitimacy to this prevailing problem within society. The issues on appeal were:

1. Did the majority of the Manitoba Court of Appeal err in concluding that the jury should have considered the plea of self-defence absent the expert evidence of Dr. Shane?

2. Did the majority of the Manitoba Court of Appeal err in holding that the trial judge's charge to the jury's with respect to Dr. Shane's expert evidence did not meet the requirements set out by this Court in Abbey, thus warranting a new trial?

Lavallee is a ground-breaking case in that the Supreme Court of Canada, in a judgment written by Bertha Wilson CC, ruled that the expert testimony was admissible, and accepted the battered women's syndrome defence.

Further information on Battered Woman Defence

Each of the theories below can be incorporated into the analysis of this case, and provide a response to the following questions:

• Can the court’s reasoning (including any dissenting opinion) be understood as incorporating any features of that week’s theoretical topic and readings?

• How would a leading theorist discussed in that week’s readings approach the issues considered in the assigned case?

• Do you think his/her approach would yield a different outcome than the one reached by the court in that case?

= American Legal Realism =



Legal Realists believe that law is what judges make it to be. Legal Realists reject formalism and the interpretation of law as a set of rules derived from strict rationality, that is free from personal input. Judges in the realist view decide cases depending on their personal characteristics and their perceptions of the case. Law is not as static as the formalists (Positivists) assume.

Legal Realists argue that judges should be aware of their discretionary power and they should use it to make decisions in the common interest. This idea can conflict with the doctrine of parliamentary supremacy in Canada. However, Legal Realists argue that the tension between the branches of government does not negate, or alter the judge’s role.

Oliver Wendell Holmes states that the study of the law includes the prediction of what courts will do under specific circumstances. To properly do this it is important to include precedent, legislation, the specific facts, and the character of the judges. No rights or duties can exist until a court states that they do. Part of the duty of a judge is to weigh considerations of good public policy.

Jerome Frank was sceptical that law could be predicted. He identified a creative role for judges not only in cases where the rules are vague or uncertain but also when there are clear uncontroversial rules that apply to case. Different judges may decide a case differently even in when clear uncontroversial rules are applied. Judgements will be influenced by all the personal and variable characteristics that each individual judge has.

Application to R v Lavallee
The reasoning in the R. v. Lavallee decision incorporates some features of the Realist theory. The analysis does not follow a Realist analysis per se, however the judges do alter the law as it once was taking into consideration the current societal values and what is considered to be good public policy. The decision to alter the law on the application of self-defence was not solely based on judicial discretion. There was a jury and external expert evidence was used at trial to inform the jury/judge so that their misconceptions regarding domestic violence would not bias their analysis. The Realists would probably argue that even with the expert evidence presented the judge and jury were likely still highly influenced by their personal characteristics in their decision. A Legal Realist would also find it noteworthy that the three female members of the Supreme Court of Canada supported the majority judgement in R. v. Lavallee. Like the Realist stance in the case at bar, a Feminist perspective would also encourage the recognition of the effects of domestic abuse on women that may have been unjustly rejected by the courts in the past.

 A leading Realist theorist would approach the issue of the accused’s mental state and its application to the plea of self-defence by evaluating their own perception of the facts. Their personal characteristics would also inform their approach. In the end the judge would use their discretion to decide the matter on what they consider to be the best public policy outcome. A Legal Realist would not want an outdated application of the law to remain in force. This would lead to injustice and would then represent bad public policy. As per Natural Law theory, an unjust law is not law at all and should not be followed.

Looking at the decision of Lavallee it can be argued that had it been decided by a Legal Realist there would be two possible outcomes. First, if a Legal Realist who had current knowledge of the issues of domestic abuse was to decide the case, it is likely that they would agree that the best public policy would be to expand the plea of self-defence to battered women who attack their abuser while not under direct attack. However, in a second scenario if the theorist had some older misconceptions about domestic abuse then they may decide that the plea should not be extended to such cases. This second reasoning would be similar to that of prior judgments for battered women who killed their abusers while not under apparent threat (traditional raised knife). Jerome Frank would argue that it would be impossible to predict an outcome.

 

= Natural Law: St. Thomas Aquinas =



According to Natural Law Theory, law is inherently linked with morality, and the two concepts are indivisible from one another. For Thomas Aquinas, Natural Law (higher law) holds that there is a source of law that exists independently and beyond human creation. It is borne of a divine source, discoverable through divine revelation, the study of human nature, or the study of the natural world. Natural Law is consistent for all humans, at all places, at all times. Aquinas argues that Natural Law is teleological, which means that all things must have an end and proper function. Thus, the end of Natural Law must be rationally and objectively in the direction of the moral and common good. The common good is the morally correct end for humanity, and we should understand the law in accordance with the best possible moral outcome. The fundamental elements of Natural Law are:

1. The law must be directed at the common good. The common good is based on essentialism, and includes traits essential to all humans, such as self-preservation, procreation, living together in society harmoniously, and exercising spiritual and intellectual capacity for the common happiness of a society.

2. The law must follow practical reason. Laws direct our lives, and help us along our path to the common good.

3. The law must be made by valid lawmaker. This valid rule maker refers to those who hold the position of reason by “natural” order, such as a king.

4. The law must be promulgated. This is must be public, written, and proclaimed in such a manner that will compel obedience.

Application to R v Lavallee
The court’s reasoning can be interpreted as incorporating features of Natural Law Theory, and the four main tenants of Natural Law can be applied to Lavallee. Firstly, when we say the law must directed at the common good, this is applicable to the circumstances in this case. The common good in relation to the majority’s decision (via Justice Wilson) to admit expert testimony in relation to “Battered Women’s Syndrome” could be the overriding purpose of such a decision. At paragraph 29, Wilson states “the need for expert evidence can…be obfuscated by the belief that judges and juries are thoroughly knowledgeable about ‘human nature’ and that no more is needed.” The court finds that expert evidence is valuable to the trial process, and specifically, “[e]xpert evidence on the psychological effect of battering on wives…must…be both relevant and necessary” (at Para. 31). Thus, the court must rely upon experts to provide clarification of matters that are beyond the experiences of the average jury, such as the psychology behind domestic violence. The admission of expert evidence arguably furthers the human experience in that is helps us to understand that natural (human world), thus leading us to a moral and common good.

In relation to the reasonableness of the law, the trial judge had stated, at paragraph 24, that “[t]his accused was acquitted by a jury or her peers on the basis of self-defence, which might strike one as being somewhat fanciful. We should not, however, search out semantic excuses to order a new trial.” The theory behind self-defence is legally sound, and fits with Natural Law in that it is founded in self-preservation. Section 34 of the Criminal Code states that the accused must:

1. believe that she is the victim of an unlawful assault;

2. have reasonable apprehension of death; and

3. reasonably believe that it is not possible herself from harm except by harming the adversary

If these elements are all in place, self-defence is warranted and legitimate. Natural Law would allow for this defence. Based on the tenants of the theory, when someone interferes with our personal autonomy in a specific way, we are entitled to defend ourselves in order to preserve our own full potential of human happiness, and allow us to achieve a political society that seeks to fulfill human biological, intellectual, and spiritual needs. As such, Natural law would likely allow for the statutory provision to allow for self-defence as a result of Battered Women’s Syndrome.

Aquinas states that “law is nothing else than an ordinance of reason for the common good.” Law measures and rules, and is in the reason alone. The last end of human life is happiness, and law must reflect that relationship to happiness. If this can be interpreted into the power dynamic of domestic violence, we would find that this type of prolonged physical and mental abuse is in stark opposition to the common good and pursuit of human happiness. Lavallee, as a result of this relationship, was perhaps unable to participate in the human process of fulfilling her own intellectual, biological, and spiritual needs. On the expert evidence of cyclical violence in relationships, Lavallee likely felt that she was unable to leave Rust. In the context of the evening in question, she was lead to believe that he would kill her that night, fulfilling the reasonable apprehension of death, even if that consequence were to take place in the future. Given the cyclical nature of this type of violence, it is reasonable to believe that she could not protect herself without harming him. At the very least, the analysis of the psychology of domestic violence should be allowed for in court, and I would argue that Natural Justice permits this. Finally, promulgated law made by a valid lawmaker are both satisfied in this case. The law in relation to self-defence is codified in the Criminal Code. The pressing question in these circumstances relates to its interpretation.

In terms to the outcome of the case, Aquinas would likely be in agreement of allowing expert testimony in relation to “Battered Women’s Syndrome” as credible evidence. The use of expert witnesses is the akin to furthering the use of reason to analyze human nature. This is especially important for subjects that are not only generally misunderstood, but also largely prevalent in society, even though the discussion may be muffled. Expert testimony can shed light on the situation of battered women when the average "reasonable" person may not have the same amount of comprehensive knowledge. According to Natural Law, reaching our intellectual and spiritual capacity is paramount, and assistance to this through the use of experts is not only valuable, but necessary.

While Aquinas himself may not have agreed with extending the defence to the concept of a "battered women" per se, it is arguable that he would have supported the tenants of self-preservation and seeking further expert evidence for the purpose of studying human nature. This is in contrast to a Positivist approach, which would interpret the law as a strictly black and white, not allowing room for broader interpretations of self-defence that do not involve "raised knife" circumstances at the time of death.

= Legal Positivism =

As a general theory, Legal Positivism seeks to offer a definition of law that makes it a social fact, which can be evaluated and characterized through empirical and evaluative terms. Because Law is purely social, it can exist in an "immoral" form and still be valid law. Whether we have a moral obligation to follow those laws, however, differs between the different Positivist philosophers. John Austin argues yes, while H.L.A. Hart argues for an analysis of the degree of injustice and the consequences for disobedience.

John Austin
According to John Austin, Legal Positivism seeks to provide a definition/explanation of law that places law as a social reality (contrary to natural law theory). For the positivist, explanations of law can be quantified through empirical and evaluatively neutral terms.

Austin's' formulation of Legal Positivism is characterized by describing law as "commands issued by superiors to subordinates and backed by sanctions''"text pg 34. The "superior", as Austin uses the term, is described as the "sovereign" who is a "determinate and common superior" to whome the bulk of a given society, be it a country, province or city, are in the habit of obedience and submission. In other words, the sovereign one who has superior power granted to it through the will and obedience of the people, the sovereign can be singular (such as God, or the King/Queen) or it can be an aggregate body, such as governmental institution. However, it is not enough that the Law is issued by a "sovereign", it must also be "backed by sanctions". In John Austin's context, a sanction can refer to a conditional good (such as a reward) or a conditional evil (punishment). The received result is conditional on the forbearance or obedience of a command. When a command from a sovereign authority has this quality of conditional sanctions, it is thus considered law.

Law as a Social Construct
The legal positivist view of law is that it is a social construct. The "sanctioned command by the sovereign superiority" is not stemming from an underlying morality (with consideration for those laws passed down from God's sovereign command). This disconnect of law from morality is described through the "Separation Thesis", which separates the two fields of thought, law versus morality.

As a result of this separation, a law (command passed down by sovereign supported by sanctions) may be inherently immoral, but still be held as a real law following the legal positivist's view. To use an example, the laws under The Nazi Regime during WWII Germany or South African apartheid both clearly demonstrated laws being commanded by sovereign government's that were supported by sanctions that were also inherently immoral to a degree that many would would venture to say "evil". Despite this classification, the Legal Positivist would hold that they were still "law" however when assessed by the independent standard of morality they are clearly seen to be immoral.

This standard of morality, independent and separate from law cannot stem from "commands" from the sovereign due to its separate nature (except for those moral truths that have been revealed by God through his sovereign commands). The independent standard of morality then, stems from the principle of Utility, as per Jeremy Bentham's Utilitarianism, through which the laws of God that govern morality can be evaluated and determined using careful assessment in the positive system.

The Requirements of a Valid law: The Pedigree Test
Austin's particular view of what made a law valid had conditions necessary to be met, the so called "Pedigree Test" According to the Pedigree Test, there are conditions that must be met for a law to be valid. The specifics of Pedigree Test are as follows:


 * Was the law adopted in accordance with the system of rules in that legal jurisdiction?

The significance of this step is that Legal positivism separates itself from any focus on "morality". Unlike Natural Law Theory, which sees natural law and morality intrinsically linked, legal positivism adheres to what is referred to as the "Separation Thesis".

The Issue of Morally Objectionable Law The separation thesis holds that a law can be morally objectionable, and yet still hold as a legally valid law. The significance of this is seen in the Legal Positivist's approach to the existence of unjust or immoral laws (such as those historically promoted by the Nazi party during its rule, or this history of Apartheid in South Africa). As a result of the separation thesis, laws that are seemingly immoral or unjust can be held to this independent standard/ideal of morality (Laws of God), and judged accordingly. As a result of this, the citizen living under these laws, from Austin's Legal Positivist position, is under no obligation morally to follow these rules/laws if they are indeed unjust. This is unlike Natural Law theory which would hold that no law is unjust, and thus they should be followed, the Legal Positivist allows this escape route.

God's Law and Positive Law Keeping in mind this separation thesis, Austin's description of a law under the Legal Positivist perspective is that law is that some law is set by human beings to be followed by human beings, while other law is set by God (to be followed by human beings). These two types of law have two different names, human made law being "Positive Laws", whereas Laws of God are referred to as simply that. While Positive Laws are those which we as society follow (or do not follow) in our day to day lives under written legislation, Laws of God are revealed through the principle of utility (from the moral theory of utilitarianism) and thus act as the independent standard by which laws should be judged for their morality.

Each of these types of law, to qualify as law, must meet the requirements necessary for law, they must be set by superiors towards subordinates/inferiors, and must be backed by sanctions (reward or punishment).

Laws and Commands
A command, be it by a sovereign or any other person, is described by John Austin as being

1. "A wish or desire conceived by a rational being, that another rational being shall do or forbear"

2. "An evil to proceed from the former, and to be incurred by the latter, in case the latter comply not with the wish"

3. "An expression or intimation of the wish by words or other signs." (Source, pg 41) These descriptions all indicate a similar principle, however to Austin commands are of two kinds, some are "laws/rules" (of which we have been discussing) and the other is "occasional or particular commands". Different theorists have given different definitions to these different kinds of commands, some describing laws as being commands to generally oblige members of a community whereas particular commands are intended to oblige a single person on an individual scale.

The sovereign power which is making these commands in regards to a law has this title of sovereignty through their being superior. In the case of Laws of God, this comes through God's inherent superiority over humans, whereas in every other relationship it comes from a reciprocal recognition of one power being superior, sovereign, and the other being inferior, follower. With this contrast comes the power of the superior to enforce compliance to their commands.

To summarize, Legal Positivism a law is that which is commanded by superiors to inferiors with the support of sanctions. That is to say, that the inferiors following the command of the sovereign superior figure are inclined to comply with the command.

Imposter Laws

There are "imposters" of sorts, objects that are improperly termed as laws, when they are in fact not of the same sort of commands as already discussed. However, they do have catigorization according to Austin.

1. Acts on the part of legislatures to explain positive law.

This is not law, as it is no command. Simply declaring what the law is/says is not a command, nor is it obligating any citizen through sanction. It is a tool of interpretation.

2. Laws to repeal laws or to release from existing duties

These are not laws in a similar sense to the prior point, in that they are not commands; quite the opposite in fact, they are revocations of commands. They are passing on authorization to those to whom the law originally commanded, and allows them to do (or not do) what the command had forbid/allowed. This has been given the name "permissive laws" by Austin, as he distinguishes them from the "positive law" definition.

3. Imperfect laws

These are laws which do not have a sanction. They are commands, however are without any reward or punishment obligating those to whom the sovereign commanding them is superior to. These laws, while not being positive laws in according to the Pedigree Test are the only improperly termed example that Austin could see as finding a home within jurisprudence. He uses as an example those laws which create duties or confer rights.

Similarily, customary laws (laws thought to oblige citizens legally, while only being the result of local custom) will only hold true to being positive law if they are upheld by the sovereign. However it is important to note that it is only at the point that they are enforced by the sovereign that these customary laws can be considered to have legal force, however they are still of a different kind. They are merely enforced by the sovereign, and as such they are not properly called "Law" as they were not commands from the sovereign but rather rules arising from the consent of those inferiors being governed by the sovereign.

In summary, the only laws which are not imperitive for a citizen to follow (as they are not part of positive law jurisdprudence) are those three listed.

Application to R v Lavallee
In R v Lavallee the statute referred to is the Criminal Code which has been passed by Parliament. This is significant, as John Austin would view the Canadian Parliament as being the Canadian Sovereign power. This taken into account, the legislation that clearly set out the provisions regarding the self-defence plea in murder charges would be considered a valid, empirically provable law to John Austin.

The provisions of the Criminal Code referred to include S. 34(2) (The self-defence provision being used by the accused) and S. 229 (Murder) "S. 34(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm." "S. 229. Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; (b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or (c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being." This law being valid, would be positive law. It is a command, issued to subordinates (the Canadian population) and backed by sanctions. However, its interpretation by the judiciary to now incorporate a new manner of defence, (or at least a new understanding of the pre-existing defence) may not so easily sway Austin.

From a moral standpoint, Austin may agree that the "Battered Woman" Defence is one that should be recognized, however from a procedural standpoint, this judicial originality would probably not be permittable. It appears as if the judgment in Lavallee was made with sound policy reasons in mind, specifically raising awareness to the problem of battered women, and the existence of the psychological effects such treatment has on them. Again, from a moral point of view, this is a worthy cause, however morality is not the source of law, and judicial activism of any type, let alone this particular example does not meet the requirements of a valid law. Specifically, Law must be a command issued by the sovereign.

The courts, while agents of the sovereign, are not (in a democratically structured society) the sovereign. Thus this change to accept a significant alteration to the understanding of the written legislation, would likely cause Austin to insist that this was better dealt with through legislative command. Austin might argue that it is not the place of the court to make such decisions regarding this application of written legislation, and that it should have been left to the legislature to address the issue appropriately for future cases to follow.

Furthermore, a positivist issue of retroactivity also applies here, where Ms. Lavallee was relying on a defence that would not have been available to her before the introduction of such evidence into the proceedings.

Had there been valid legislation passed by the sovereign post -Lavallee, it would likely stand for future cases, and Austin would have no issue with such decrees flowing from the democratically elected sovereign. However before the decision of Lavallee, there was no valid law in place that provided such a defence (Battered Woman psychological state). The interpretation as it was done was applied retroactively to Lavallee, as it was decreed as permissible, and then applied to the case at hand. This retroactive judgment would thusly likely cause Austin some trouble, particularily if he was of the view that the interpretation was. (A possible opponent who would likely bring up this hurdle for Austin's positivism is Ronald Dworkin, who would ask Austin how positivism can justify any such retroactivity)

H.L.A. Hart
As presented above, the main idea drawn from positivism is that Law and Morality are separate systems. Law and Morality are often parallel, but they are different things.

While proponents of the Natural Law theory would argue that law lies within morality H.L.A Hart rejects this concept. Morality is separate from law and is often referred to in order to evaluate legal rules. If there is a conflict between a legal rule and a moral rule, individuals must decide whether the obligation to follow the moral rule is greater than the obligation to follow the legal rule. There may be instances where a law is valid but too objectionable to be followed (for example, Nazi rule). Law has an inherent “ought claim” in the same way as other morally neutral rules do (for example the rules of a board game also have "ought" value). In order to be effective as laws, however, legal rules need to be founded in a legal system. This legal system has to be recognized and the rules must be obeyed by at least some people. Laws are authoritative for more than just fear of punishment, some people must follow them because they are good, because of habit or because of long term self interest (“Rule of Recognition”).

Legal rules can be expressed in general and broad terms. There is a general “settled core meaning” of the rules that can be applied by hte judiciary in most cases. However certain cases may fall outside of that settled, mechanically applicable meaning. These cases are known as hard cases, and while many have believed the source of interpretaion in such cases will stem from morality, positivism (and it's separation thesis) does not have this luxury. In such hard cases meaning of the law is said to be in the penumbra.

The Penumbra The penumbra requires judges to decide whether a case can be settled on the core meaning of the law, on the "rule-governed practice". HLA Hart argues that judges should apply the “terms of the rule governed practice” when deciding penumbral cases. Rule governed practice embodies the principles of justice, impartiality and objectivity. Judges should not apply personal morality, or inconsistent discretion. The terms of the rule governed practice bring consistency to resolving hard cases. These are the things that are true or important to the legal system as a whole, which can change as circumstances change (according the Hart). (Austin, in contrast, has "essenital characteristics" that are necessary for every law to have)

The Realist criticism A criticism posed by the realists regarding the problems of the penumbra is that deductive reasoning (purely logical) cannot serve as a model for what judges should do in bringing particular cases under general rules. This is because fact situations are not always logical, rather they are complicated, requiring discretion is the determination of cases. Law's are incurably incomplete by nature, and judges should (the realist says) decide hard cases (penumbral cases) with reference to social aims. This is significant because the realists say that the this is where judges will make necessary moral judgments, deciding that a law is sound based on how it "ought to be"; and then slide down the slippery slope into basing what a law must be based on that moral criterion.

Application to R v Lavallee
In Lavallee, the court was presented with a situation where self-defence as described in Criminal Code s. 34(2)(a) would not generally apply. The issue was regarding interpretation of the law. Specifically, the question was whether the accused was, as the law required, under "reasonable apprehension of death or bodily harm" to be able to depend on the self-defence defence as defined in the Criminal Code s. 34(2)(a). Absent the psychiatric evidence of Dr. Shane it is not likely that "battered woman syndrome" would have been used to expand the defence. It is difficult to say whether HLA Hart would agree with the use of this external evidence to resolve a hard-case in the Penumbra. According to his theory the court should have been informed by the terms of the rule governed practice and not by anything else, and thus the justification for taking in external evidence does not seem based in rule-governed practice.

For the most part the judgement in Lavallee looks at outside factors, and changing public perceptions to make the determination of whether the plea of self defence would apply to Lavallee. There are few elements in the judgment that resonate with HLA Hart's philosophy.

'''In Hart's opinion, legal rules have a general, settled core meaning. In certain cases, the penumbral cases, the meaning of a legal rule can be unclear. Judges can clarify the meaning of the legal rule by referring to the "rule governed practice".''' In Lavallee, the judges are seemingly stepping outside of the rule governed practice by accepting external evidence regarding the accused’s mental state at the time of the crime. The courts had never before relied upon this evidence. By using this evidence to expand the application of self-defence, the judges acted in a seemingly free and autonomous way that goes beyond what Hart would be comfortable with. The "rule of recognition" holds that in order to be reliable, stable and effective, rules must be obeyed. Jurisdictional requirement for valid laws that are recognized as such in the legal system, officials must remain consistent with their application of those recognized criteria, and believe that they ought to apply them. Lavallee is an example of judges doing quite the opposite, where they step outside of the stare-decisis of the courts at the time, to allow new evidence to support a defence claim that up until that point would have been thrown away (as it was in R v. Abbey [1982] 2 SCR 24). Hart would argue that this approach would lead to uncertainty.

The expert testimony regarding "battered women syndrome" allowed the court to gain an understanding of the prolonged effects of physical abuse, that made the accused feel under reasonable apprehension of bodily harm at the time of the crime. Expert testimony also assisted the jury to determine whether her belief that killing her abuser was the only way to protect herself was reasonable (R. v. Lavallee [1990] 1 SCR 852 at para 41). These are the two elements of the defence under s. 34(2)(a-b) of the Criminal Code. Previously self-defence had not been allowed in similar cases where the accused was not technically under attack at the time of the incident. Due to growing awareness of the effects of domestic violence, the court allowed the expert testimony to legitimize the mental state of the accused beyond the stereotypes of domestic abuse. The appeal itself was based on the challenge that without this evidence, it was unlikely that a jury would have accepted the plea of self-defence.

 Hart would not agree with the result of Lavallee. He would find that the judges should not have stepped away from the rule-governed practice and accept external evidence to inform the plea of self-defence. The argument of the Crown on this appeal had a similar thread. The main contention was that “…judges and juries are thoroughly knowledgeable about “human nature” and that no more is needed” (R. v. Lavallee [1990] 1 SCR 852 at para 33). In the same way that perhaps a Hart theorist would favour a result that used only the terms of the rule governed practice. The Supreme Court did not agree with this contention and stated that due to the inability of the average juror to understand the state of mind of a battered woman, the expert testimony was quite valuable.

= The Morality of Law: Lon Fuller =



Lon Fuller's approach to law and morality is in opposition to that of HLA Hart. Fuller is critical of Hart's positivism and the suggestion that morality and law are separate. In addition Fuller states that Hart's failure to provide a clear definition for morality creates confusion. Fuller believes morality is an essential aspect of law, so that the law cannot exist separate from morality. The social acceptance of legal rules is dependent on their grounding in external morality. By this, he means the outside, extrinsic, or generally accepted morality that already governs the people that are subject to the law. Good laws must produce good order. Further, law itself has what Fuller describes as an "inner morality", and as such, law generates morality. He states that law must be coherent, rational, consistent, communicated to the populace, and capable of explanation. Fuller is also critical of Hart's “core” and “penumbra” theory of judicial interpretation, referring to both external and internal morality as essential parts of the law without which hard cases cannot be resolved. Fuller rejects the concept of "immoral laws" as explained by Hart, as the Separation Thesis cannot explain them. The Separation thesis does not provide an explanation for this general obligation to follow potentially immoral law (Nazi Germany being an example).

Fuller's critique of the concept of “core” and “penumbra” for judicial interpretation stems from Hart's definition of morality. When Hart speaks of morality, he considers it to have “extra-legal notions about what ought to be, regardless of their sources, pretensions, or intrinsic worth”. For Hart morality is dangerous as a source of law. This means that because Hart approaches morality from a non-legal sense, judges cannot use those sources when they are interpreting the penumbra. Fuller argues that this ignores the inner morality of the law, and assumes that bad laws have as much coherence and inner logic as good ones. In his view this is incorrect. The exclusion of morality in law has the potential of leading to a truly evil or immoral society, and this is why Fuller suggests that Positivism's legal philosophy “makes smoother the route to dictatorship.”

Fuller argues that there is no “core of settled meaning” to the law, and so no penumbra. Laws are always interpreted in their context, and with reference to the purpose of the rule and what good it aims to accomplish. When purpose is uncertain the judges should refer to external and internal morality. Judges aim to make law what it ought to be. Fuller states that Laws must be coherent to work. This coherence requires reasonableness, rationality and consistence. Fuller also postulates 8 ways in which rules fail to be law within a coherent system: 1. When decisions are ad hoc 2. Where rules are not public, knowable rules so that they can be followed 3. When retroactive legislation is abused 4. Where rules are not understandable 5. Where rules are contradictory 6. Where rules cannot be obeyed 7. When rules change too frequently 8. When there is a disconnect between rules created, and how they are actually administered

Application to R v Lavallee
 Fuller's criticism of Positivism and argument to reinstate morality into law can help us understand the decision in R v. Lavallee. Fuller's explanation of "inner morality" seems to be reflected. Law must be coherent, rational, and consistent, capable of explanation, and known by the populace. The decision was coherent and rational in that it provided a greater understanding of why "battered women" should rationally be allowed to invoke the plea of self-defence under s. 34(2) of the Criminal Code in similar circumstances. The application of self-defence in the case of Lavallee was also consistent with the intention of the statute, to protect individuals when they kill in situations where they are under reasonable apprehension of death and where they cannot otherwise preserve themselves from death or bodily harm. The application of the law was also capable of explanation as the awareness of the effects of domestic abuse had increased at the time of the trial and it was time that the court took this information and applied it to the interpretation of the self-defence provision. Lastly, the external evidence accepted by the court allowed the jury to understand how to apply the law in the case of a battered woman. Without this evidence the jury would not be in apposition to understand whether Lavallee’s belief that she was under apprehension of death or bodily harm was reasonable.

 Lon Fuller would likely agree with the decision in R. v. Lavallee. The application of the self-defence provision was ambiguous and so the Supreme Court referred to concepts that he would qualify as external morality as well as the law’s internal morality to come up with their decision. The internal morality was analyzed when determining the elements and purpose of self-defence. The external morality was analyzed when the court looked at the changing moral values and the increased awareness that domestic abuse is not tolerable and that it has lasting psychologic effects on its victims. The approach taken in R. v. Lavallee, appears to follow the principles stated by Fuller. This approach to the law and the role of judges would likely yield the same outcome as the Supreme Court reached in R. v. Lavallee.

= Ronald Dworkin =



Ronald Dworkin, being a very liberal and somewhat controversial thinker, rejects the theory of legal positivism altogether. Dworkin rejects that law is merely a system of rules, arguing that law, more importantly, is inherently connected with principles. These principles, in general terms, are fairness and justice. The importance of these principles are when judges are faced with hard cases (as we've discussed with previous legal theorists), Dworkin believes that in keeping with these principles, they will be lead to what is truly the right answer in any legal question.

Previously, thinkers like Hart, argued that when faced with the penumbra, judges will decide these hard cases using the terms of the rule governed practice, which is focused on policies, social goals, and rule governed practice. Dworkin on the other hand, with his belief in the "almighty principles" believes that these hard case considerations should be grounded in justice and fairness, and through this, achieving consistency with the history of law.

When it comes to issues such as rights, Dworkin believes that judges discover (rather than create) these rights as they are consistent with the principles of justice (fairness).

Summary
Ronald Dworkin’s perspective of Law is, in brief, that Law is integrity. Law is the expression of the underlying principles of fairness and justice which are at the root of the legal system. Judges must be committed to integrity, approaching the law as a system underlined by principles. The principles have always been in law, and they always will be in law, the role of the judiciary through history is to uncover these principles, which will result in uncovering what is truly the right answer to whatever legal question being presented. These principles are part of the law, they are inseparable, and as such, Dworkin denies the tenants of positivism, including the separation thesis.

Because the Law does not consist of merely “rules”, as has been proposed by previous theories (such a positivism), the issue of judicial discretion has become less of an onerous task to explain.

First a distinction must be made, however, between Policy and Principle. Policy refers to the social goals that are the end goal for legislators. Intended to benefit some portion of the population, policy is the realm of the legislator Principle, however, is the consideration of justice and fairness. These, by default, will support specific rights and implied duties.

Judicial Discretion, activism and the “Hard Case”
When faced with the so called “hard cases”, the Judge approaching the question must address it (in the absence of a defined rule) by applying the underlying principles of law. These principles are the guiding light for the judge deciding, and as the principles are applied, the “proper answer” (so to speak) is found.

The “Hard Case” and retroactive application The idea of principles also helps the legal system to avoid another tough explanation, namely, “if a new ‘rule” is implemented, then how can it be put in place retroactively, so that it becomes the standard that the party it applies to can be said to have been “under its rule” when they acted. The idea of underlying principles also covers this, as the principles are presented as being timeless underpinnings of what law always has been, and always will be.

Judicial Activism and the Legislature There are some that would argue that there is no place for Judges to be changing the law based on policy considerations, and that this is the role of the elected legislature. Dworkin would not disagree, which is why the understanding of “principles” is so important. Judges taking part of so called “judicial activism” in articulating what appear to be “new legal principles” are not, as it might seem “creating” but rather they are “discovering” as Dworkin would present it. These judges are not creating new rules of law with an intention of reaching a proposed social end, but rather they are making decisions based on the principles that law has always stood for. They are articulating the rights and duties that were already embedded in the source of all legal rights.

“The Rights Thesis” and Judicial Reasoning through “integrity”
Dworkin writes on rights in the sense that judicial decisions enforce existing political rights. Judges making decisions based on rights are still keeping in harmony with decisions made in the past, in line with principles. This view avoids the criticism of judicial activism in civil rights cases where it might appear as if the judiciary is using their influence as means to make policy changes. The idea of judicial decision making being focused on policy takes away criticisms of “originality”, as the same integrity of the law is maintained. (This is not the same as consistency, however, as the law may, and does, change. The focus is on integrity, in keeping with the principles of justice and fairness, the interpretation of rights transforms the meaning of those terms so that it becomes part of the historical meaning of rights.   Because of principles, laws and decisions made are all part of a larger underlying body that is seen through the filter of “principles”.  Judges approaching the interpretation of law do so as a system of principle.  Constructing interpretations that is consistent with past decisions, and presenting the law in the best light. Law is whole, and in the end it will be understood as such, properly viewed through the principles.

Positivism Contrast
Hart: Most rules are valid because some competent institution enacted them.

The purely rule based approach taken by the positivist has the difficult trait of being “all or nothing”. Rules are either followed, or they are broken. In the positivist position, if it were a rule of law that “x must be done this way” in a certain jurisdiction, then a judge not following such a proclamation would be considered to be in the wrong according to the positivist. This makes sense, however there is also the very real situation where it isn’t a rule of legislated law that states “x must be done this way” but rather there are cases where judges have made it a rule that “x must be done this way”, this is the common law versus legislation. The issue that this second example asks is that of retroactivity, if in the very real situation of judges “making” a rule, how can it be said that anyone was under that law when justifying that decision being made/passed down? This is answered by Dworkin by addressing principles as being binding upon judges (they must always be applied when pertinent), as well principles are summaries of what most judges follow and have followed when forced to go beyond the realm of pre-existing law.

If, as the positivist suggests, a case is not covered by a clear rule, this judicial discretion in the penumbra steps in to make, what is essentially, new legislation. However, the issue of discretion is, to the positivist, met where the judge can apply the legal standards that they have been given. Hart refers to this as being “open texture” in that some cases arise where no established rule seems suitable. However Dworkin would argue that this is a weak discretion being argued where the judiciary is bound by context and purpose of their discretionary task. Dworkin’s theory, on the other hand, leaves principles as being in control of decision

The Hard Case So, while the positivist addresses the hard case as being a situation in the “penumbra”, where the judiciary must use their discretion to make the law, Dworkin would suggest that there never is this “penumbra” type case. There always is the right answer available, and it is found through the principles of justice and fairness. For Dworkin, legal principles are requirements of justice. They are still supported by the same sufficient institutional support that the positivist would insist upon, but that is not the “source” of these principles. Through reasoning and analysis, the judges are working towards achieving the answered supported by principle, and as such, will reach the right answer that is harmonious with previous decisions that were also in line with the appropriate principles.

Application to R v Lavallee
Principles deal with individual rights. A prohibition in the Criminal Code is based on the harm principle (Lacuna). Harm principle v freedom of expression principle. The principles have a different composition and weight depending where you are in the stream.

There is a social objective to be achieved- in Lavallee, the objective is to protect people from violent relationships.

Principles changing over time applies to Lavallee. The mental state is gradually accepted by the courts? If the composition of principles over time. Psychological evidence was given more weight in this context as a reliable legal source.

When is a judge permitted to change an existing rule of law? In Lavallee the justice clearly changed the rule of law so as to allow the inclusion of expert witness testimony into account, creating a new defence (Battered Women’s Syndrome) and thus changing the rule of law regarding self -defence claims in murder charges.

Dworkin’s principle based theory figures in two ways. First, it is necessary that the judge find that change to the rule of law would advance some principle. In essence, the principle justifies the change. In Lavallee this principle was for the sake of fair trial, that a person may be judged based on their actual situation of the time and not be burdened by the biases of stereotypes or misunderstandings held by the jury. This principle is clearly applied as the expert witness testimony being allowed as evidence to be considered allows the judicial process to gain understanding about the situation that the battered woman, counterbalancing the assumptions that may not lead down the path of fairness to for the accused subject to stereotypes. Secondly, if a judge proposes such a change in existing doctrine, they must take into account any arguments against such a departure from established doctrine (which is for the most part compromised of principle). In other words, when most rules of law are “binding” in a particular sense, this is because there are principles underlying it that should not be ignored. In Lavallee the application of the new approach is such that it does not ignore any previously settled rule of law, so rather than a change, it is more of an addition. There do not appear to be any clear applications of principles that would argue against the application of such an allowed inclusion into the law.

Overall, it would appear as if the inclusion of external evidence, particularly to provide a greater understanding regarding the accused, and whether they have met the requisite mens rea for the offence, does fall under the principles that Dworkin stands by. Fairness and Justice are both ends that seem to be pursued by the implementation of such a new policy (accepting external evidence) and as such, this is another step in law as it is discovered, keeping in harmony with the pursuits of fairness and justice that have always been characteristic of Law. Through this addition to the common law evidence rules, the interpretive role that judges play can now be more informed as they judge based on integrity, focusing on understanding what the law really is, and always has been.

= John Stuart Mill: Liberty =



Liberty in the philosophy of law is a departure from the question of what law “is” to ask when the law ought to interfere with private choices, in other words, when are restrictions on individual liberty justified? John Stuart Mill places priority on liberty over state interference. There are several justifications for when law can restrict individual liberty, they are:

1)	The harm principle – Society is justified in restricting the individual liberty of its members when it is necessary to prevent serious harm to others. The harm principle seems to be a reasonable and widely accepted principle based on common sense, it can be supported by utilitarian and rights arguments as well as positivists (like John Austin, H.L.A. Hart) and natural law theorists (like St. Thomas Aquinas).

2)	Paternalism – When an individual is in danger of harming him or her-self the state is justified in restricting their liberty. Gerald Dworkin expands this notion of paternalism as justification for interference of person liberty. 3)	Legal moralism – Society may interfere with the individual liberty of its members to prevent its members from undermining “social” or “community” morals and/or values.

4)	The offence principle – The restriction of liberty to prevent members from causing offence to others. The offence must be considered immoral by those who are being offended but not harmful to others or those engaged in it. This principle is distinct because it protects members from unwillingly being witness to acts that it finds harmful or immoral.

Application to R v Lavallee
Mill emphasizes the fundamental importance of liberty and autonomy in society. In relation to Lavallee, Mill would argue that "Battered Women's Syndrome" is not a legitimate psychological condition. People as individuals are molded when they are in their childhood, or "nonage."

Mill would say that the women who had suffered from Battered Women's Syndrome were people with full autonomy. This full autonomy was structured while there were children, mold-able lumps of clay in society. As an autonomous adult, they are responsible for all of their actions. The law should not step in and try to interfere with their autonomy because they are the only ones that are able to speak to their own autonomy. "Autonomous humans have the liberty of conscience in the most comprehensive sense. They have liberty of thought and feeling, absolute freedom of opinion and sentiment on all subjects, practical or scientific, moral or theological" (pg 307). They have liberty of the pursuits of their own life subject to the consequences that might follow.

Mill would likely doubt that Battered Women's Syndrome is a legitimate psychological condition. He would not support the argument of any change in autonomy as a result of psychological syndromes (unless you are a Barbarian). As a result, the law should not be affecting these individuals' autonomy by changing judgments, so as to assume that their autonomy was not full. There can be no damage through circumstances, autonomy is based on the molding period.

This theoretical approach is a stark contrast to proponents of both Feminism and Critical Race Theory, which focus heavily on the lived experiences of the individual in terms of establishing their position in the world and the way in which they relate to others through the context of power relations. To say that the human being is formed completely in their nonage is to disregard completely the process of social construction that is argued to shape our characteristics such as race, gender, and class.

= Gerald Dworkin: Paternalism =



Gerald Dworkin challenges John Stuart Mill’s liberty theory, he opposes Mill’s near-absolute prohibition on paternalism. Dworkin believes that paternalistic interference with individual liberty can be justified in a wide range of situations. He focuses on the consequences of choices made by individuals and if they are “far-reaching, potentially dangerous and irreversible” then paternalistic interference is justified. In general there is a social contract in place that provides the state prior consent to interfere with individual liberty in certain circumstances in order to facilitate the pursuit of personal values and will.

Essentially, paternalism relates to "interfering with peoples personal liberty" in that such interference is justified as being “for their own good”. Legislation that could serve as examples for this might include seatbelt laws, anti-drug legislation, or motorcycle helmet requirements. These are all policies that are justified (according to paternalism) through the grounds that the people affected are better off for it.

Application to R v Lavallee
Dworkin would argue that damage to individual autonomy is real. After the molding period, there can still be change in autonomy, and the law should step in (a paternalistic sense)to help those who have suffered from damaged autonomy. This is similar to a Master/Slave relationship, in which the "slave" is a fully autonomous being (not a Barbarian), however in their current context, their autonomy has been damaged given social circumstances.

Women who suffer from Battered Women Syndrome are similar to the "slave" in a Master/Slave relationship. While she is an autonomous being, her autonomy has been damaged. This means that because of her situation, she is not fully capable of exercising her autonomy. She believes she is in danger, and that this type of self-protection/self-preservation is a legitimate means of causing harm.

Accepting expert testimony being as reliable evidence expands the law on self-defence, thus allowing the law to consider the effect on the person's autonomy. As a result, she should be subject to the remedy of the law.

Paternalism sets laws as being in place for the interests of those it is trying to protect. Dworkin gives the example of “not allowing the consent of the victim to be a defence to certain types of crime primarily affects the would- be aggressor, but it is the interest of the willing victim that we are trying to protect”.

Arguabley, the role of paternalism in restricting rights for the own good of those being restricted can look at the very inclusion of expert witnesses. Although it sounds odd to state that allowing expert witnesses is a “restriction of a right”, it might be seen as such in regards to having a third party, who is not the party who subjectively experienced the event, to speak as to “what was happening” in a subjective sphere.

An argument could be put forth that this is a form of “restriction”, perhaps of autonomy, even to the slightest degree, as an “expert” is not speaking of the accused, on their behalf, or against their case. Such an inclusion is restricting regarding the accused control of the case in Lavallee, she is left essentially to the mercy of the expert witnesses description of what was happening in her mind subjectively at the crucial moment.

Dworkin would likely argue that such an inclusion is indeed justified as the paternalistic approach justifies such inclusion so that in the best interest of the accused, and in the best interest of a fair trial, an expert insight into the existence of such syndromes such as “Battered woman syndrome” is addressed.

= Law and Economics =



The approach to law and economics claims that law serves the goal of economic efficiency. Thus, law and economics focuses on the goal of wealth-maximization within a society. The idea of wealth-maximization is not just concerned with money, but social wealth and all measurable satisfactions. Thus, law should promote and reinforce this maximization and ultimately be used as a tool to achieve optimal efficiency.

Several measurements of efficiency are discussed, such as Pareto-Superiority. This is illustrated as one state of affairs (s2) being better than another (s1) because at least one person is better off in s2 than s1, an no one is worse off, or one person prefers s2 and no one prefers s1. A different state of affairs is described as Pareto-Optimal. This means that there is no state that is superior, it has reached its optimal position, and there are no further moves to make that would benefit anyone except at the expense of others. If we have reached an optimal state, we cannot make others better off by making others worse off. The Kaldor-Hicks test refers to a state of affairs when S1 is Kaldor-Hicks efficient to S if, in going from S to S1, the winners could compensate the losers so that no one would be worse off than they were in S and at least one person would be better off than he was in S.

The Coase Theorem is illustrated as a situation when transaction costs are low, and neither party engages in “strategic”” distorting behaviour, and where information is “perfect” individuals will reach efficient results by behaving as if each had compensable property rights.

Law, under an "Law and Economics" perspective is fundamentally a pricing mechanism. Through law some activities become more or less costly than they would otherwise be. In this way, law can motivate people to engage in more or less any particular activity. This is a crucial assumption in the discussions of criminal law, specifically in the context of R. v Lavallee.

What legislators regularily do almost never satisfies the Pareto-superiority principle. Judges have very little power to engage in redistribution (to a significant extent) versus the much stronger power of the legislator (a natural wealth maximizer). Despite this, the judiciary does have a considerable scope for pursuing efficiency in the judicial system. Cases that are innefficient are a financial burden, bearing unneccssary costs, so this efficiency quality should not be understated. (However, many critics have argued that tort law is (and should be) concerned with corrective or compensatory justice rather tahn focusing on efficency, however the criminal law courts are what we will address, regarding R v Lavallee.  Richard Epstein and George Fletcher each address the compensation aspects of the corrective justice system, focusing on "wrongful" acts and "non-recriprocal risk"

Most proponents of law and economics deny the basic incompatibility of corrective justice and efficeiency. Posner, for example, insists that the correct concept of corrective justice is actually embededed in economic analysis.

Is the Battered Women’s Defence a wealth-maximizer?

In relation to criminal law, there are rules against force and coercion. These rules serve as sign-posts to society in terms of how to act and behave to construct the most efficient social order. Rules against personal violence promote economic goals in terms of promoting productive labour. This protection and deterrence can be viewed as a positive phenomenon. The criminal law system may be understood in economic terms because society pays for protection of interests identified as high value, or “criminal matters," and decreasing criminal means spending on the system. Law and economic theory directs analysis to question of efficiency of criminal law sanctions as a means of achieving the desired end, whether investment in public criminal system less than non-monetary “wealth” created by protection of valued interests/rights. Criminalization is costly, and deterrence it highly encouraged.

The law and economics approach would likely support the application of Battered Women's Syndrome as a valid defence in a criminal proceeding. It would acknowledge that the ways in which to create wealth-maximization are not fixed. Accepting the defence, in consideration of the validity of supporting psychiatric evidence, would defer matters from the criminal justice system for a theoretically reasonable and appropriate manner in the right circumstances. The question is perhaps, what is more valuable, social wealth (in appreciating the social harm of Battered Women's Syndrome and forming law accordingly), or monetary wealth in relation to the financial cost of supporting these kinds of offenders in the prison system for a potential of 25 years?

According to Richard Posner, under criminal law, the wealth-maximization principles imply a system of legal remedies for deterring and redressing invasions of rights. The goal of the criminal justice system is ultimately to deter people from criminal activity, so that they do not become an economic burden on the system.

Application to R v Lavallee
In Lavallee the court was faced with the issue of whether to expand “Self-Defence” to apply to battered women. There was external evidence used to show that women who have suffered abuse may feel “under reasonable apprehension of death or grievous bodily harm” (s. 34 (2)(a)) when not being attacked by the abuser. The external evidence also helped inform the court regarding the second element of the defence whether she believed on reasonable grounds that she could not otherwise protect herself (s. 34(2)(b)).

The argument for accepting the defence can be described in economic terms. Allowing the defence would reduce the cost of incarcerating a person who acted in their protection and who may not pose a future danger to the public. In turn it would increase non-monetary wealth created by the protection of valued interests/rights if people feel that it would be unjust to prevent a battered woman from using self-defence.

The reasoning in this judgement was not based on Law and economics, however, proponents of the theory would likely agree with the result.

= Feminist Jurisprudence =



Feminism encompasses a broad range of ideas, however these ideas focus on the specific, concrete, lived experiences of women in all their particularity and contextual detail. It is structured in the context of patriarchy, and socially constructed categories of thought that are defined as neither natural nor inevitable. Patriarchy, which refers to the social organization of men as the hegemonic authority, means that historically men have dominated the roles of politics, property ownership, and the workforce. It values male superiority, and as a result, female subordination. These ideas are perpetuated through socially constructed societal norms. Radical Feminism and its scholars such as Catharine McKinnon, use patriarchy as the starting point of analysis. This theory seeks to uproot the meta-normative "hegemonic" narratives and remove the ideals of gender in terms of the performance of "male" and "female."

Application to R v Lavallee
Through a Feminist lens, the crux of the issue is focused on the relationship between Lavallee and Rust and the characterization of such as a situation of patriarchal control and violence. Domestic violence is representative of the oppression of women within the private sphere (meaning the home, and within a domestic context). Lavallee, a 22 year old woman, was subjected to repeated and increasingly aggressive violence, ultimately culminating in the event of Kevin Rust's death.

Traditionally, this type of abuse was sanctioned by law. As Justice Wilson notes at paragraph 32, “[t]he gravity, indeed the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life. Far from protecting women from it the law historically sanctions the abuse of women within marriage as an aspect of the husband’s ownership of his wife…” Thus, domestic violence serves as a political tool of subordination, and proliferates a destructive attitude towards women.

The idea of “Battered Women’s Syndrome” is a difficult issue to analyze from a feminist perspective, especially for someone like Catharine McKinnon. While this defence is an attempt at recognition of the abysmal effects of cyclical domestic abuse on women, it places an emphasis on the medicalization of a “battered woman.” This approach is a thinly veiled attempt to ground the lived experiences of women within a patriarchal system as the subject of male violence. However, creating a “syndrome” out of the context of repeated abuse may have the impact of subjugating the victim even further. It validates this type of "learned helplessness" or conditioned paralysis and the battered woman is compared to hostage/captor, prisoner/guard, or abused child/parent circumstances. At paragraph 45, the court discusses the Walker Cycle Theory of Violence. This evidence from a psychologist is a valuable tool in terms of recognizing the patterns in this type of relationship. These include the events of tension building, the acute battering incident, and finally loving contrition. The proponents of feminism would certainly be in favour of incorporating expert evidence that lends legitimacy to the experience of women in terms of domestic violence. It is important to focus on the understanding not just on the crime, but also the power relationships and imbalances involved that would lead to such events.

In relation to the use of “Battered Women’s Syndrome” as a defence to murder, Wilson states, at paragraph 36 that “there are two elements of the defence under s. 34(2) of the Code which merit scrutiny for present purposes. The first is the temporal connection in s. 34(2)(a) between the apprehension of death or grievous bodily harm and the act allegedly taken in self-defence. Was the appellant ‘under reasonable apprehension of death or grievous bodily harm’ from Rust as he was walking out of the room? The second is the assessment in s. 34(2)(b) of the magnitude of the force used by the accused. Was the accused's belief that she could not ‘otherwise preserve herself from death or grievous bodily harm’ except by shooting the deceased based ‘on reasonable grounds’?”

Wilson analyzes these two points and notes that the standard of each test is implicitly male. In order to effectively apply this test to a “battered woman” one must take the approach of the “reasonable battered woman” and whether she justifiably killed her partner. However, earning the status of a “battered woman” is problematic at best. Was the death of her partner truly her only way out? The court must look at the facts of the case very carefully to determine the merits of such a relationship and the possibility that leaving was not an option.

The court must also take into account the events surrounding the actual death to determine what caused the change in circumstances. Rust made a distinct threat on the night that he died. He stated “wait till (sic) everybody leaves, you’ll get it then…either you kill me or I’ll get you.” For Lavallee, this was the final straw. She reached the realization that she would likely die that night if she did not do something about it, satisfying the requirement of “reasonable apprehension of death.”

Lavallee is a ground-breaking case in that the Supreme Court of Canada, for the first time recognized the expert evidence of Battered Women’s Syndrome as an interpretation of self-defence to the crime of murder. This interpretation is important because it does not reflect the tradition paradigm of self-defence. A Feminist view would support the legitimization of expert evidence to illuminate the psychological harm of domestic violence on women. However, it may grapple with the idea that in order to use this information as a defence in a murder trial, the effects of long term abuse must be ‘medicalized’ in the form of a syndrome, or illness. In terms of the outcome of the case, this approach may, while attempted to lend battered women the benefit of the defence, also succeeds in a new form of victimization because they must be characterized as a “battered woman,” creating the identity of a victim, and possible maintaining the dominant patriarchal structures in our society. Feminism would not hesitate to admit expert evidence, and likely to use this evidence as a defence to murder, however it would likely differentiate in that I do not believe it would be done in a manner that creates a "syndrome" out of violence against women.

= Critical Legal Studies & Critical Race Theory =

''“The mere description of race could never be sufficient to transform it into a social and cultural reality: for this to occur, people must identify themselves and others through the lens of race, and live as though it is more than a mere labelling methodology. The practical living of racial categories occurs in many ways, and includes both the conceptual violence of regarding certain groups as "other" and inferior, the physical violence produced by this perception, the legitimation of the racist world-view through legislation and other types of legal recognition, and strategies of resistance to these forms of domination.”'' - Margaret Davies, “Race as Construct”

According to Duncan Kennedy, Critical Legal Studies (CLS) is not a theory, but a serious of literature grounded in legal scholarship produced within an activist law school setting. This came out of the 60’s style radical politics with the ideas that “law is politics” and “the personal is political.” This means that politics includes the non-formal such as relationships, the home, and work (labour). Divergent movements have emerge from CLS such as feminist legal theory, critical race theory, etc. Kennedy believes that law school, and thus the law itself, is a process of constructing people.

Critical Race Theory is similar to Feminism in that it purports that the meaning of some elements of our biology is socially constructed. While Feminism uses gender as the starting point of analysis, this approach uses race. It states that race is a socially constructed concept, a mere human invention. Race is used as an exertion of power in terms of social and cultural reality. Critical Race Theorists would reject Dworkin’s assertion that that we are equal creatures before the law, and that the law does not see race, class, or gender. For Carol Aylward in her piece “Racism in the Law,” she argues that not only is the “reasonable person” as a character in the law based on a male standard, it is based on a White male standard.

Application to R v Lavallee
As stated by Aylward, mainstream Feminism is criticized by Critical Race Theorists for failing to take race into account. Lavallee was a Metis woman, yet the issue of colour was not addressed in the context of a legal defence in “Battered Women’s Syndrome.” They press the issue that other power dynamics must be spoken to and analyzed such as culture, race, class, religion, and sexual orientation in the context of provocation, not just self-defence.

Critical Race Theorists would be in favour of expert evidence in relation to Battered Women’s Syndrome, but would hold that this evidence should take into account the issue of race. The admission of such evidence without the race analysis, according to Aylward, “demonstrated how the so-called “common sense” of a jury may lead to an erroneous conclusion, they only explicitly discuss bias in relation to the risk that a decision-maker who is male, or who has internalized a male perspective on the world, would be unable to comprehend the issue of provocation from a female perspective. They do not consider the implications of a failure to explicitly instruct about issues of race.” Thus, for Critical Race Theorists, the examined issue of self-defence was not necessarily the critical issue, and provocation should have been addressed as a logical defence to the crime of murder.

Perhaps Feminists would agree with this analysis in that it gives Lavallee more agency as a capable being, and not just a “battered woman,” helplessly subjected to abuse. She has been provoked to the point of fighting back against her abuser. In the Lavallee decision, “mainstream feminists made no attempt to analyse the implications on women of colour of the defence of self-defence, the battered woman syndrome, or the defence of provocation.” This is problematic at best, and the starting point of analysis, especially in a case like Lavallee, should be the socially constructed power dimensions such as race and class, not just gender.

= A synthesis of application to Lavallee =

The realists would argue that even with the expert evidence presented the judge and jury were still highly influenced by their personal characteristics. In addition the realist would point out that the three female members of the Supreme Court supported the majority judgement and thus recognized the effects of domestic abuse on women that may have been previously rejected by the courts. A realist would find that the accused's mental state was key and consider their own perception of the facts in the application of the plea of self-defence. The legal realist would not want an outdated application of the law to remain in place. In the same way as Natural Law theory, an unjust law is no law at all and should not be followed.

A legal realist would find that the best public policy would be to expand the plea of self-defence, unless they harboured outdated misconceptions about the effects of battered woman syndrome in which case they would not expand the defence because there was no proverbial “raised knife”.

St. Thomas Aquinas (Natural Law Theory) would suggest that as a result of the prolonged physical and mental abuse suffered by Lavallee, she was unable to participate fully in the human process of fulfilling her own intellectual, biological and spiritual needs. Aquinas would likely be in agreement of allowing expert testimony in relation to “Battered Women’s Syndrome” as credible evidence. The use of expert witnesses is the akin to furthering the use of reason to analyze human nature. According to Natural Law, reaching our intellectual and spiritual capacity is paramount, and assistance to this through the use of experts is not only valuable, but necessary.

Aquinas would have supported the tenants of self-preservation and seeking further expert evidence for the purpose of studying human nature. This is in contrast to a Positivist approach, which would interpret the law as a strictly black and white approach, not allowing room for broader interpretations of self-defence that did not involve "raised knife" circumstances at the time of death. A Legal Positivist such as John Austin would say that in R v Lavallee the statute referred to is the Criminal Code which has been passed by Parliament. This is significant, as Austin would view the Canadian Parliament as being the Canadian Sovereign power. This taken into account, the legislation that clearly set out the provisions regarding the self-defence plea in murder charges would be considered a valid, empirically provable law to John Austin.

From a moral standpoint, Austin may agree that the "Battered Woman" Defence is one that should be recognized, however from a procedural standpoint, this judicial originality would probably not be permissible. Morality is not the source of law, and judicial activism of any type, does not meet the requirements of a valid law for Austin.

Furthermore, a positivist issue of retroactivity also applies here, where Lavallee was relying on a defence that would not have been available to her before the introduction of such evidence into the proceedings.

An opponent who would bring up this hurdle for Austin's positivism is Ronald Dworkin, who would ask Austin how positivism can justify any such retroactivity. Dworkin, of course, would argue that such retroactivity is easily justified due to it being faithful to the principles of law, and thus consistent. John Austin (and positivists in general) do not have this same luxury. The separation thesis (articulated by positivist Hart) keeps laws very much isolated, and thus principles of this sort cannot be taken into account when looking at the judicial approach in Lavallee.

It is difficult to say whether H.L.A. Hart would agree with the use of external evidence to resolve a hard-case in the Penumbra. According to his theory the court should have been informed by the terms of the rule governed practice and not by anything else, and thus the justification for taking in external evidence would not be based in rule-governed practice.

Hart would not agree with the result of Lavallee. He would find that the judges should not have stepped away from the rule-governed practice and accept external evidence to inform the plea of self-defence.

Lon Fuller's criticism of Positivism and argument to reinstate morality into law can help us understand the decision in "R v. Lavallee". Fuller's explanation of "inner morality" seems to be reflected. Law must be coherent, rational, and consistent, capable of explanation, and known by the populace.

Lon Fuller would agree with the decision in "R. v. Lavallee". The application of the self-defence provision was ambiguous and so the Supreme Court referred to concepts that he would qualify as external morality as well as the law’s internal morality to come up with their decision. The internal morality was analyzed when determining the elements and purpose of self-defence. The external morality was analyzed when the court looked at the changing moral values and the increased awareness that domestic abuse is not tolerable and that it has lasting psychological effects on its victims.

Ronald Dworkin would support the decision in Lavallee in two ways. First, it is necessary that the judge find that change to the rule of law would advance some principle. In essence, the principle justifies the change. In Lavallee this principle was for the sake of fair trial, that a person may be judged based on their actual situation of the time and not be burdened by the biases of stereotypes or misunderstandings held by the jury. A fair trial is clearly a goal of law throughout history, with the core of fairness and justice. Secondly, if a judge proposes such a change in existing doctrine, they must take into account any arguments against such a departure from established doctrine (which is for the most part compromised of principle). In other words, when most rules of law are “binding” in a particular sense, this is because there are principles underlying it that should not be ignored. In Lavallee the application of the new approach is such that it does not ignore any previously settled rule of law, so rather than a change, it is more of an addition. There do not appear to be any clear applications of principles that would argue against the application of such an allowed inclusion into the law.

John Stuart Mill would say, in presumably the most sympathetic way possible, that women who had suffered from Battered Women's Syndrome were people with full autonomy. This full autonomy was structured while there were children; mouldable lumps of clay being formed into members of modern day society. Now, as an autonomous adult, they are responsible for all of their actions, including murder (such as was the case in Lavallee). The law should not step in and try to interfere with this autonomy because an individual is the only one who can speak to their own autonomy.

Mill, through his dedication to his principles of full autonomy, might doubt that Battered Women's Syndrome is a legitimate psychological condition, or that it's affects may have any sort of impact on the judgment calls being made by women who suffer from it. He would not support the argument of any change in autonomy as a result of psychological syndromes (unless you are a Barbarian, who has a lessened cognitive proficiency). As a result, the law should not be affecting these individuals' autonomy by changing judgments, so as to assume that their autonomy was not full. There can be no damage through circumstances, autonomy is based on the molding period.

This theoretical approach is a stark contrast to proponents of both Feminism and Critical Race Theory, which focus heavily on the lived experiences of the individual in terms of establishing their position in the world and the way in which they relate to others through the context of power relations. To say that the human being is formed completely in their nonage is to disregard completely the process of social construction that is argued to shape our characteristics such as race, gender, and class.

Gerald Dworkin would argue that damage to individual autonomy is real. After the molding period, there can still be change in autonomy, and the law should step in (a paternalistic sense) to help those who have suffered from damaged autonomy Women who suffer from Battered Women Syndrome are similar to the "slave" in a Master/Slave relationship. While she is an autonomous being, her autonomy has been damaged. This means that because of her situation, she is not fully capable of exercising her autonomy. She believes she is in danger, and that this type of self-protection/self-preservation is a legitimate means of causing harm. Accepting expert testimony being as reliable evidence expands the law on self-defence, thus allowing the law to consider the effect on the person's autonomy. As a result, she should be subject to the remedy of the law.

The argument for accepting the defence can be described in Law and Economic terms. Allowing the defence would reduce the cost of incarcerating a person who acted in their protection and who may not pose a future danger to the public. In turn it would increase non-monetary wealth created by the protection of valued interests/rights if people feel that it would be unjust to prevent a battered woman from using self-defence.

The reasoning in this judgement was not based on Law and economics, however, proponents of the theory would likely agree with the result.

Through a Feminist lens, the crux of the issue is focused on the relationship between Lavallee and Rust and the characterization of such as a situation of patriarchal control and violence.

Traditionally, this type of abuse was sanctioned by law; domestic violence serves as a political tool of subordination, and proliferates a destructive attitude towards women.

The idea of “Battered Women’s Syndrome” is a difficult issue to analyze from a feminist perspective, especially for someone like Catharine MacKinnon who would view this approach is a thinly veiled attempt to ground the lived experiences of women within a patriarchal system as the subject of male violence.

Lavallee is a ground-breaking case in that the Supreme Court of Canada, for the first time recognized the expert evidence of Battered Women’s Syndrome as an interpretation of self-defence to the crime of murder. This interpretation is important because it does not reflect the traditional paradigm of self-defence. A Feminist view would support the legitimization of expert evidence to illuminate the psychological harm of domestic violence on women. However, it may grapple with the idea that in order to use this information as a defence in a murder trial, the effects of long term abuse must be ‘medicalized’ in the form of a syndrome, or illness. Feminism would not hesitate to admit expert evidence, and likely to use this evidence as a defence to murder, however it would differentiate in that it would not be done in a manner that creates a "syndrome" out of violence against women.

As stated by Aylward, mainstream Feminism is criticized by Critical Race Theorists for failing to take race into account. Lavallee was a Metis woman, yet the issue of colour was not addressed in the context of a legal defence in “Battered Women’s Syndrome.” They press the issue that other power dynamics must be spoken to and analyzed such as culture, race, class, religion, and sexual orientation in the context of provocation, not just self-defence.

Critical Race Theorists would be in favour of expert evidence in relation to Battered Women’s Syndrome, but would hold that this evidence should take into account the issue of race. The admission of such evidence without the race analysis, according to Aylward, “demonstrated how the so-called “common sense” of a jury may lead to an erroneous conclusion, they only explicitly discuss bias in relation to the risk that a decision-maker who is male, or who has internalized a male perspective on the world, would be unable to comprehend the issue of provocation from a female perspective. They do not consider the implications of a failure to explicitly instruct about issues of race.” Thus, for Critical Race Theorists, the examined issue of self-defence was not necessarily the critical issue, and provocation should have been addressed as a logical defence to the crime of murder.

Feminists would agree with this analysis in that it gives Lavallee more agency as a capable being, and not just a “battered woman,” helplessly subjected to abuse. She has been provoked to the point of fighting back against her abuser. In the Lavallee decision, “mainstream feminists made no attempt to analyse the implications on women of colour of the defence of self-defence, the battered woman syndrome, or the defence of provocation.” The Critical Race Theorist would suggest the starting point of analysis, especially in a case like Lavallee, should be the socially constructed power dimensions such as race and class, not just gender.