McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 36
Montreal
1991
No 2
Relationship, Particularity, and Change:
Reflections on R. v. Morgentaler
and Feminist Approaches to Liberty
Hester Lessard*
The judgments in R. v. Morgentaler are taken
as the point of departure for a discussion of
some of the insights that feminist legal theo-
ries can bring to aid in resolving paradoxes in
contemporary liberal rights discourse. In par-
ticular, the author draws on the recurrent
themes of relationship, particularity and
change in feminist writings to present a rearti-
culation of the liberty interest under s. 7 of the
Charter as it applies to the issue of reproduc-
tive self-determination. Noting the central role
that the judicial articulation of rights plays in
reinforcing existing distributions of wealth and
power, the author also argues that a reconcep-
tion of rights must be accompanied by the
transformation of the structures that define and
enforce them.
L’arret R. c. Morgentaler sert de tremplin i
une rfflexion portant sur certaines ides dgve-
loppfes par la litt~rature juridique ffministe
qui pourraient contribuer h 61iminer les contra-
dictions qu’on retrouve dans le courant de pen-
sde liberal. Plus prfcisfment, l’auteure s’ins-
pire de certains themes importants de la litt6-
rature ffministe, soit la nfcessit6 de protdger
lindividu dans ses rapports avec les autres et
de respecter 6galement les particularitds et
l’6volution les relations entre personnes; ainsi,
l’auteure propose une rdinterprftation du droit
a la libert6 consacr6 par l’article 7 de la
Charte, qui inclut la libert6 de reproduction.
L’auteure met en lumi~re l’importance de l’in-
terprftation judiciaire qui est donnde aux
droits consacrfs par la Charte, en ce qu’elle
tend hL renforcer la r6partition actuelle de Ia
richesse et du pouvoir social. Dans cette pers-
pective, l’auteure aff’rme qu’une reddfinition
de ces droits doit s’accompagner d’un remode-
lage des institutions qui les dffinissent et les
font respecter.
* Faculty of Law, University of Victoria. Work on the initial draft of this essay was supported
by the Social Sciences and Humanities Research Council of Canada. I am also grateful for helpful
comments, critical readings of this and earlier drafts, and encouragement from Jamie Cassels,
Lorenne Clark, Cheryl Crane, Donald Galloway, Kent Greenawalt, Andrew Petter and Colleen
Sheppard. I extend particular thanks to Rosemary Garton whose skillful assistance made the pro-
duction of the essay in all its many versions possible.
McGill Law Journal 1991
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 36
Synopsis
Introduction
I. Morgentaler and Liberty as Privacy
II.
Feminism’s Cartesian Anxiety
III. Feminism: Rethinking Liberty
A. Gilligan: Beyond the Ethic of Care?
B. Scales: Concrete Universality and the Role of Difference
C. Elshtain: Parenting and the Interactive Public
D. Young: The Heterogeneous Public
IV. A Revised Notion of Liberty and Section 7
V.
Conflict and Difference
Conclusion
Introduction
This essay uses the Supreme Court of Canada’s decision in R. v. Morgen-
taler’ and the claim for reproductive self-determination2 which underlies it as an
‘[1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 [hereinafter Morgentaler cited to S.C.R.].
2The issue in Morgentaler was access to abortion. By describing the claim as reproductive self-
determination I do not mean to equate the two. The latter, broader term would extend to steriliza-
tion abuse, infant mortality, access to reproductive technology, pre-natal health care, and a host of
other issues. The white middle class and western bias implicit in the equation of reproductive rights
and abortion rights is described by Caroline Ramazanoglu in Feminism and the Contradictions of
Oppression (New York: Routledge, 1989). In this essay I am using the abortion issue as it is treated
in Morgentaler because it seems to set up a conflict between women’s lives and fetal life which
cannot be solved within the traditional rights framework. In fact it is the abstraction of abortion
rights from the context of women’s many and diverse lives and from the institutions and myths
that control reproduction and parenting, that allows abortion to appear as if it is about a struggle
between rapacious self-interest and helpless embryos. I use the terms reproductive self-
determination and reproductive control not in any exhaustive sense, but because I think they most
accurately describe what is going on when a woman tries to decide whether or not to end a preg-
nancy. In another context, the terms could also describe what is going on when women struggle
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
265
occasion to discuss the ways in which feminist theory can change our concep-
tion of rights. The current critique of rights has exposed the central role that the
judicial articulation of rights plays in reinforcing existing distributions of wealth
and power. The problem is both institutional and conceptual. The courts as insti-
tutions exercise power which is unaccountable and cannot be legitimized within
a democratic framework. Furthermore, attempts to develop normative con-
straints on judicial power founder on the indeterminacy of language and the
subjectivity of moral claims. Finally, rights, in particular liberty rights, are con-
ceived in terms of providing a radical separation between individual and com-
munity which leaves socially and economically disadvantaged groups unable to
claim state support as a prerequisite for meaningful rights.
This essay begins with the conceptual strand of the critique. It looks to
feminist theorizing as the source of different notions about relationship and
community. It also explores the ways in which the decontextualized and individ-
ualist focus of rights discourse might be transformed to reflect these alternative
notions. Equality rights speak most directly to the experience that the official
and unofficial institutions that control women’s lives are largely male. What I
suggest in this paper is that if we are seeking to confront the fundamental
arrangements within which we live our lives, then a challenge to the gendered
structure of social relations which uses the language of rights should extend to
liberty rights. It is in terms of liberty that the legal culture comes closest to
addressing the structure and nature of state power. Liberty evokes a specific
image of individual relations within community and with the state. Feminist the-
orizing challenges that image on epistemological as well as political grounds.
This paper takes as its starting point the claim in Morgentaler for reproduc-
tive self-determination because it illuminates sharply the conceptual dilemma
underlying constitutional liberty claims and places it in the Canadian constitu-
tional context. In the first part of the paper I outline that dilemma in terms of
what Richard Bernstein calls the opposition between objectivism and relativ-
ism,3 namely the conviction that our only alternatives are either an unsupport-
able claim that there is an objective basis on which to ground a hierarchy of
rights, or an intolerable and inexorable slide into moral relativism. In the second
part of the paper, I relate the terms of that opposition to a similar division within
feminist theory. In the third part, I examine in greater detail feminist discussions
for adequate health care and economic security for their families. As Ramazanoglu writes, quoting
J. Lewis:
The argument that abortion is not the same issue for all women does not, however,
mean that the control of abortion does not affect all women … “[A]bortion is part of
a much larger ideological struggle in which the meanings of family, motherhood and
young women’s sexuality are contested” (supra at 160).
3See R. Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (Phil-
adelphia: University of Pennsylvania, 1983).
REVUE DE DROIT DE McGILL
[Vol. 36
of a revised notion of the self, moral reasoning and the implications for theories
of liberty. I focus on the themes of relationship, particularity and change in fem-
inist theorizing, and I suggest that the underlying premises of feminist discourse
and the feminist political agenda provide a basis for working out and moving
beyond the despair engendered by the paradoxes of liberal rights discourse. In
the fourth part I sketch the contours of an argument under s. 7 of the Canadian
Charter of Rights and Freedoms4 for reproductive control that incorporates that
alternative vision. I discuss the problem of conflict and difference inherent in
any individual rights claim and examine how one feminist approach to creating
room for difference within community can be worked into the two part structure
of s. 7. This approach focuses on the political efficacy of groups within commu-
nities and within our larger social structures. Finally, I suggest that the concep-
tual strand of rights critique must be intertwined with the institutional strand,
that a reconception of rights must be accompanied by the transformation of the
structures that define and enforce them. Unless courts are recognized as part of
a state structure which reproduces the patriarchal ordering of social life, the
legalization of politics through the expansion of rights discourse will inevitably
reinforce rather than challenge that order.
I. Morgentaler and Liberty as Privacy
In his book Beyond Objectivism and Relativism, Richard Bernstein
describes the seemingly eternal dialectic within Western philosophy between
claims of the objectivist that “there is or must be some permanent, ahistorical
matrix or framework to which we can ultimately appeal in determining the
nature of rationality, knowledge, truth, reality, goodness, or rightness,” and the
challenge of the relativist that “there is no substantive overarching framework
or single metalanguage by which we can rationally adjudicate or univocally
evaluate competing claims of alternative paradigms.”5 Within contemporary
legal scholarship, the same dialogue takes place between the varieties of funda-
mental rights theorists who posit an objectively ascertainable foundation for
evaluating rights claims either in conventional morality or irreducible human
values,6 and, at the other end of the spectrum, Critical Legal Studies scholars
who view rights discourse as part of a larger struggle for political power.7
Although any interpretive disagreement calls into question the possibility of
evaluative criteria, the divergence becomes sharpest when dealing with open
c. 11 [hereinafter Charter].
4Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
5Supra, note 3 at 8.
6This characterization of the debate within legal theory is based on the discussion in P. Brest,
“The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional
Scholarship” (1981) 90 Yale L.J. 1063.
7See P. Gabel’s discussion of the contribution of Critical Legal Studies to the critique of rights
in P. Gabel & D. Kennedy, “Roll Over Beethoven” (1984) 36 Stan. L. Rev. 1.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
267
textured constitutional provisions. Thus, the claim in Morgentaler that the val-
ues of liberty and security of the person in s. 7 of the Charter provide women
with a right to reproductive self-determination, invites a court to confront
directly what Bernstein calls “the Cartesian Anxiety” or the inevitable progres-
sion towards a “grand and seductive Either/Or,” namely,
Either there is some support for our being, a fixed foundation for our knowledge,
or we cannot escape the forces of darkness that envelop us with madness, with
intellectual and moral chaos.8
For the most part the judges in Morgentaler evade that confrontation. The
case concerns the prosecution of three doctors who set up a clinic which pro-
vided abortion services for women who had not obtained approval from a ther-
apeutic abortion committee at an accredited or approved hospital in accordance
with s. 251 of the Criminal Code.9 Section 251 criminalized abortion except in
the limited circumstance of committee approval. The accused raised the consti-
tutional rights of women in defence to the charges. A majority of the Supreme
Court, consisting of five judges writing three separate opinions, struck down the
Criminal Code provisions as a fundamentally unjust violation of women’s s. 7
rights. Two groups of two, Dickson C.J. with whom Lamer J. agreed, and Beetz
J. with whom Estey J. agreed, based their conclusions on women’s s. 7 right to
security of the person. The fifth judge, Wilson J., while agreeing that women’s
security interests were seriously constrained by s. 251, also based her decision
on women’s s. 7 right to liberty, thus delineating a broader and fuller right. Wil-
son J. and the other two groups in the majority also differed in their treatment
of fundamental justice. The two groups of two limited their considerations to the
procedural aspect of fundamental justice, leaving for another day the question
of whether a procedurally irreproachable constraint on access to abortion would
nevertheless violate the substantive aspect of fundamental justice. Again, Wil-
son J. felt that a fuller examination of the issue was required, that the question
“what is meant by the right to liberty in the abortion context?”‘” required look-
ing at both the procedural and substantive aspects of fundamental justice. The
difference between Wilson J.’s approach and that of the other judges in the
majority not only affects the scope of the protection the Court is willing to artic-
ulate, but also the range of images of women that are projected by the
judgments.
The reliance on a security rather than liberty interest by the two groups of
two lends a physical certainty to the shape and limits of the right protected. It
is coextensive with women’s bodies, with their physical and emotional security.
While in Dickson C.J.’s judgment the boundaries of that territory are generously
8Supra, note 3 at 18.
9R.S.C. 1970, c. C-34. Now R.S.C. 1985, c. C-46, s. 287 [hereinafter Criminal Code].
10Supra, note 1 at 163.
McGILL LAW JOURNAL
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described, they are on one level literally sensible, and on another, comfortably
accord with cultural constructions of women as passively enmeshed in the bio-
logical and emotional imperatives of their bodies. Women are persons who have
things done to them. The reference in the following passage to “priorities and
aspirations” is there not because women should be allowed to control and
develop their priorities, for instance to struggle for adequate health care and
economic security as an aspect of reproductive self-determination, but because
to interfere with women’s priorities is to interfere with their bodies. He writes:
Not only does the removal of decision-making power threaten women in a phys-
ical sense; the indecision of knowing whether an abortion will be granted inflicts
emotional stress. Section 251 clearly interferes with a woman’s bodily integrity in
both a physical and emotional sense. Forcing a woman, by threat of criminal sanc-
tion, to carry a foetus to term unless she meets certain criteria unrelated to her own
priorities and aspirations, is a profound interference with a woman’s body and thus
a violation of security of the person.”
Dickson C.J.’s reliance on the procedural aspect of fundamental justice is
equally cautious, holding the interpretive dilemma at bay by channeling the dis-
cussion into the familiar area of judicially developed standards of procedural
fairness. He focuses on the unwieldy apparatus of the specially constituted hos-
pital committees which often created delays for women seeking abortions and
which severely curtailed the practical availability of abortion to many women,
especially those outside of urban areas. Again, the decision is important in that
it ultimately sweeps away that apparatus altogether. But the message about
women is not that their reproductive lives should not be managed and controlled
by others, but that the management should be more efficient, more attentive to
the bodily stresses that flow from legislative inefficiencies.
Beetz J.’s decision also avoids controversy by delineating an even nar-
rower and more physically grounded security interest. For him, a pregnancy that
is a danger to women’s health is a medical problem for which women should
have reasonable access to medical care. That is the extent of the constitutional
security interest offended by the administrative structure in s. 251. Psycholog-
ical trauma is a factor to the extent that it aggravates the health risk. Likewise,
Beetz J. focuses on the procedural improprieties of s. 251, although at one point
he suggests that a claim founded on a liberty right might place substantive limits
on Parliament’s power to regulate abortion in the early stages of pregnancy. 3
Only Wilson J., concurring in result, explores the contours of a liberty
argument that would give some measure of substantive protection to women
seeking control of their reproductive lives. In so doing, she allows for images
of women as acting as well as acted upon. Thus her task is much more difficult
“Ibid. at 56-57.
121bid, at 104.
131bid. at 112-13.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
269
than that of her colleagues. She is asking the law to articulate its substantive
commitments in a way that gives a fuller account of women’s lives. This
requires an exploration both of what that account is, and of whether it can be
inserted into the existing framework of rights discourse. Wilson J. attempts to
do both these things. The result is a decision which is unique in its willingness
to ground itself in women’s experiences. At the same time, however, the deci-
sion only partially succeeds in reconciling a responsiveness to women’s partic-
ularity with the abstract calculations of rights discourse. Although she does not
use the language of privacy, Wilson J.’s analysis of the content of liberty draws
heavily on the classical vision of rights embedded in American privacy jurispru-
dence. More importantly, her discussion illustrates how the contemporary quest
for an objective foundation for rights claims threatens to collapse into nihilism.
While Wilson J. defines the central issue as whether women have deci-
sional autonomy with regard to their reproductive lives, she does not hesitate to
place this question in the larger framework of political theory and of a particular
vision of the Canadian community. In doing so she uses the rhetoric and phil-
osophical categories of classical liberalism, but in a way that struggles to take
account of the inadequacy of that vision as a description of social relations. She
writes:
The Charter is predicated on a particular conception of the place of the individual
in society. An individual is not a totally independent entity disconnected from the
society in which he or she lives. Neither, however, is the individual a mere cog in
an impersonal machine in which his or her values, goals and aspirations are sub-
ordinated to those of the collectivity. … Thus, the rights guaranteed in the Charter
erect around each individual, metaphorically speaking, an invisible fence over
which the state will not be allowed to trespass. The role of the courts is to map
out, piece by piece, the parameters of the fence. 14
The starting point in this description of the Charter is an acknowledgement
of the interconnectedness of life within community. However the proposed
mediating principle for those relationships is a conception of rights which
entails exclusion: the right to be separate, private, and unhampered. While Wil-
son J. may have set out to articulate a relational theory of rights, the fence met-
aphor presupposes an opposition between individual and community, between
subjective freedom and objectively determinable constraints, between a private
sphere of unlimited choice and a public sphere of obligation.
From the recurrent references to human dignity in judicial interpretations
of the Charter as well as the centrality of individual choice in the enumeration
of protected rights and freedoms, Wilson J. infers that liberty “grants the indi-
vidual a degree of autonomy in making decisions of fundamental personal
importance.”‘ 5 This is supported by Wilson J.’s own decision in R. v. Jones6 and
14Ibid. at 164.
’51bid. at 166.
16[1986] 2 S.C.R. 284, 31 D.L.R. (4th) 569 [hereinafter Jones cited to S.C.R.].
REVUE DE DROIT DE McGILL
[Vol. 36
by the American cases dealing with procreative and family rights. From this she
reasons that a woman’s decision to terminate her pregnancy is constitutionally
protected, that, to use her earlier language, there is a fence around that decision
which the state cannot pass over unless it does so in accordance with the prin-
ciples of fundamental justice. The property metaphor is appropriate. Wilson J.
is drawing on the separate spheres analysis of liberal theories of rights which in
the writings of John Locke saw private property as the vehicle of human hap-
piness and freedom, thereby engendering a language of rights that talks of
boundaries, trespass or invasion, closed doors, and the sanctity of the home or
bedroom. 7 However, Wilson J.’s elaboration of the nature of the protected deci-
sion uses an altogether different imagery, once again revealing a struggle to shift
our understanding of social relations. Rather than inviolability, she speaks of
connection and interaction. Rather than an opposition between individual and
community, she posits an interdependence that is primary and self-defiming. She
writes:
This decision is one that will have profound psychological, economic and social
consequences for the pregnant woman. The circumstances giving rise to it can be
complex and varied and there may be, and usually are, powerful considerations
militating in opposite directions. It is a decision that deeply reflects the way the
woman thinks about herself and her relationship to others and to society at large.
It is not just a medical decision; it is a profound social and ethical one as well. Her
response to it will be the response of the whole person. … It is probably impossible
for a man to respond, even imaginatively, to such a dilemma not just because it
is outside the realm of his personal experience (although this is, of course, the
case) but because he can relate to it only by objectifying it, thereby eliminating the
subjective elements of the female psyche which are at the heart of the dilemma. 18
The notion of autonomy in this passage is radically opposed to the view of
social interaction and human happiness presumed by the fence and property lan-
guage of the previous passage. Wilson J. appears to be introducing a “self in
context” that requires a different account of political theory than the abstracted
self which presumes the necessity of boundary for definition and for the pursuit
of happiness. However, I would suggest the framework into which she ulti-
mately tries to fit this transformed understanding defeats her. The category of
“decisions of fundamental personal importance” simply becomes another for-
tress of individual sovereignty, another occasion for a Lockean claim of self-
ownership. The contradiction between the relational nature of those decisions
and a conceptual framework that sees relations as def’mitionally opposed to
autonomy has yet to be worked out.
17The “rhetorical, even mythical power of the identification of property with freedom” in polit-
ical theory and American constitutional rights discourse is described by Jennifer Nedelsky in
“Reconceiving Autonomy: Sources, Thoughts and Possibilities” in A. Hutchinson & L. Green, eds,
Law and the Community: The End of Individualism? (Toronto: Carswell, 1989) 219 at 237.
18Supra, note 1 at 171.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
271
The next stage of analysis under s. 7 requires the claimant to show that the
core s. 7 interest was violated in a manner that offends the principles of funda-
mental justice in either their substantive or procedural aspect. Here Wilson J.
again parts company with the rest of the Court and finds that the Criminal Code
constraints on access to abortion offend the substantive protection afforded con-
scientious freedom in s. 2(a) of the Charter because the abortion decision is
“essentially a moral decision … I do not think there is or can be any dispute
about that.”‘ 9 She concludes:
It seems to me, therefore, that in a free and democratic society “freedom of con-
science and religion” should be broadly construed to extend to conscientiously-
held beliefs, whether grounded in religion or in a secular morality. … Accordingly,
for the state to take sides on the issue of abortion, as it does in the impugned leg-
islation by making it a criminal offence for the pregnant woman to exercise one
of her options, is not only to endorse but also to enforce, on pain of a further loss
of liberty through actual imprisonment, one conscientiously-held view at the
expense of another. It is to deny freedom of conscience to some, to treat them as
means to an end, to deprive them, as Professor MacCormick puts it, of their
“essential humanity.’ 20
The claim that the abortion decision is clearly a decision involving moral
and ethical choice is similar to the claim in the first part of her analysis that the
abortion decision is one of fundamental personal importance. In that part how-
ever, Wilson J. offers as justification a description of feminine subjectivity in
terms of the self-defining nature of social interaction which diverges from clas-
sical liberal conceptions of an abstract self unencumbered by connection or his-
tory. Although we are left questioning whether she has successfully resolved the
collision between that account of the self and traditional rights analysis, it seems
that she has embarked upon an attempt to at least make the existing framework
more responsive to the needs of that alternative self. In the second part of her
analysis the ambivalence and the struggle to transform our understanding of
social relations seems to have disappeared. Instead we find ourselves locked in
the more familiar contradictions of Bernstein’s “Cartesian Anxiety.” The
description of abortion as clearly moral and therefore inviolable raises more
questions than it answers. While it is undeniable that abortion has been por-
trayed in popular and academic discourse as involving competing moral claims,
this does not explain why one view of that controversy is entitled to protection
over another. In order to avoid the slide into relativism that this seems to signal,
Wilson J., rather than turning to a different understanding of the self as she did
in the first section, turns instead to a universal prohibition against treating others
as a means to an end. In doing so, she appears to subscribe implicitly to the
model of the Kantian transcendental ego and to the Kantian thesis that there is
an objective foundation for moral claims. The test of moral claims articulated
191bid. at 175-76.
20 bid. at 179.
McGILL LAW JOURNAL
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by Kant is a rational test, uniformly accessible to all those who can reason. It
asks whether an act is in accordance with a maxim we could wish were univer-
sally applicable. Thus moral law is not grounded in desire or individual concep-
tions of the good, which are too indeterminate and changeable to be reliable, nor
in divine commandments which may not be universally accessible. Rather, it is
grounded in practical reason, from which we can derive principles that are uni-
versal and internally consistent. This presumes a human self that can transcend
the determinate and the empirical, and act freely and autonomously. Within the
Kantian vision, human freedom and the moral law, accessible through reason,
conveniently converge. “[A] free will and a will subject to moral laws are one
and the same.”‘” However, as Bernstein points out, the rigorous distinctions that
Kant drew between is/ought, desire/reason, and subject/object were almost
immediately challenged and undermined.22 The universality and logical consist-
ency of reason were shown to be insupportable, opening the door once more to
nihilism. Wilson J.’s ultimate reliance on a universal principle of morality to
explain the inviolability of certain personal choices illustrates that dilemma. The
Kantian maxim which she proposes as the foundation for her decision, that
human beings should never be treated as means to achieve others’ ends, can,
without any rational inconsistency, be replaced by an alternative maxim pro-
posed by Alasdair MacIntyre, namely, “Let everyone except me be treated as a
means.”‘ Thus, her objectivist assertion of rational principle threatens to
unravel into relativism, her account based on “essential humanity” threatens to
dissolve into a cacaphony of individual accounts of the experience of humanity.
I do not mean to suggest by this analysis that Wilson J. has embraced the
model of the Kantian transcendental ego. Her vision of community and of the
self clearly seeks to move in the opposite direction, and her use of Kantian lan-
guage does not displace the primary commitment to arrive at a decision that
responds to the felt and lived lives of Canadian women. Rather, I think Wilson
J.’s judgment reveals two levels of contradiction. The first is ontological. The
self defined by connection is directly at odds with the self defined by boundary
that underlies the traditional framework of rights discourse. Thus Wilson J.
struggles against a hostile language and set of categories in trying to respond to
the needs and vision of that alternative self. The second contradiction is inherent
in the framework itself. Even if one accepts the categories of self and other,
individual and community, the assertion of the transparent authority of reason
as a justification and explanation of where the boundaries between those cate-
gories lie is readily contested. Wilson J.’s judgment is an uneasy weaving
together of these contradictory threads of analysis.
211. Kant, Fundamental Principles of the Metaphysics of Morals, trans. T.K. Abbott (New York:
Bobbs-Merrill, 1949) at 64.
22Supra, note 3 at 13-14.
23A. MacIntyre, After Virtue: A Study in Moral Theory, 2d ed. (Notre Dame: University of Notre
Dame Press, 1984) at 46.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
273
H. Feminism’s Cartesian Anxiety
The debate within moral theory between the notion of an objectively and
rationally ascertainable moral law and the relativist critique of objectivity and
reason, and within legal theory between the notion of a set of neutral criteria for
adjudicating rights claims and the irrationalist critique of neutrality, is repro-
duced within feminist discourse in the divergence between cultural feminism
and radical feminism. The cultural/radical debate is only one of many possible
examples of what seem like insurmountable barriers to forging alliances
between the different perspectives and groups that constitute feminism.
Women’s perspectives, grounded in the particularity of historical experiences of
racial and cultural oppression, of discrimination on the basis of sexual orienta-
tion, age and language, have produced a multitude of visions of social and sex-
ual relations. The diversity by itself renders the possibility of a feminist critique
of male oppression and a category of “woman’s experience” problematic. The
divide between radical and cultural feminism, although located within the nar-
row and comparatively homogenous experience of white western middle class
feminists, focuses directly on the question of whether it is possible to ground
politics in experience without reifying difference. In this section of the paper,
I briefly set out the terms of the cultural/radical divide in a way which mirrors
Bernstein’s divide between objectivism and relativism. In the following section,
I hope to illustrate how the divide itself contains the possibility of making dif-
ference the centrepiece of relationship rather than its nemesis.
Cultural feminism identifies women’s difference from men and celebrates
it. At the heart of cultural feminism lies what Robin West calls the connection
thesis. Rather than the unencumbered, transcendental self of the liberal tradi-
tion’s separation thesis, which West characterizes as essentially masculinist in
its outlook, feminist writers such as Carol Gilligan,24 Adrienne Rich25 and Nel
Noddings26 posit a self that is situated and relational, that views identity and
moral choice as a function of particular relationships and changing, contingent
responsibilities. The connection thesis of cultural feminism challenges our
assumptions about value in every area of life. West describes its transformative
power:
Women’s art, women’s craft, women’s narrative capacity, women’s critical eye,
women’s ways of knowing, and women’s heart, are all, for the cultural feminist,
redefined as things to celebrate. Quilting, cultural feminism insists, is not just
something women do; it is art, and should be recognized as such. Integrative
24See C. Gilligan, In A Different Voice: Psychological Theory and Women’s Development (Cam-
bridge: Harvard University Press, 1982).
2See A. Rich, On Lies, Secrets, and Silence: Selected Prose, 1966-1978 (New York: Norton,
1979).
26See N. Noddings, Caring: A Feminine Approach to Ethics and Moral Education (Berkeley:
University of California Press, 1984).
REVUE DE DROIT DE McGILL
[Vol. 36
knowledge is not a confused and failed attempt to come to grips with the elemen-
tary rules of deductive logic; it is a way of knowledge and should be recognized
as such. Women’s distinctive aesthetic sense is as valid as men’s. Most vital, how-
ever, for cultural feminism is the claim that intimacy is not just something women
do, it is something human beings ought to do. Intimacy is a source of value, not
a private hobby. It is morality, not habit.27
Cultural feminists, like fundamental rights theorists, seek to ground theory
in an irreducible human quality, here care and connection rather than separation
and autonomy. By so doing, however, they run the risk of institutionalizing
women’s biology and social role. Thus radical feminists such as Ann Scales
warn that “just as Gilligan’s work has the potential to inspire us in historic ways,
it could also become the Uncle Tom’s Cabin of our century. ‘2 In the same vein,
Seyla Benhabib and Drucilla Cornell describe the coercion implicit in the con-
nection thesis’ vision of the self:
Precisely because to be a biological female has always been interpreted in gen-
dered terms as dictating a certain psychosexual and cultural identity, the individual
woman has always been “situated” in a world of roles, expectations and social fan-
tasies. Indeed, her individuality has been sacrificed to the “constitutive defini-
tions” of her identity as member of a family, as someone’s daughter, someone’s
wife and someone’s mother. The feminine subjects have disappeared behind their
social and communal persona. If unencumbered males have difficulties in recog-
nizing those social relations constitutive of their ego identity, situated females
often find it impossible to recognize their true selves amidst the constitutive roles
that attach to their persons. 29
Radical feminism views the celebration of feminine subjectivity as the
“voice of the victim speaking without consciousness.”30 Women’s reproductive
potential is not the paradigmatic experience of connectedness but rather the
occasion for women’s oppression. Thus Catharine MacKinnon writes:
[W]hen we understand that women are forced into this situation of inequality, it
makes a lot of sense that we should want to negotiate, since we lose conflicts. It
makes a lot of sense that we should want to urge values of care, because it is what
we have been valued for. We have had little choice but to be valued this way….
It makes a lot of sense that women should claim our identity in relationships
because we have not been allowed to have a social identity on our own terms. 3 1
27R. West, “Jurisprudence and Gender” (1988) 55 U. Chi. L. Rev. 1 at 18.
18A. Scales, “The Emergence of Feminist Jurisprudence: An Essay” (1986) 95 Yale L.J. 1373
at 1381.
29S. Benhabib & D. Cornell, “Introduction: Beyond the Politics of Gender” in S. Benhabib &
D. Cornell, eds, Feminism as Critique: On the Politics of Gender (Minneapolis: University of Min-
nesota Press, 1987) 1 at 12.
30E.C. Dubois et al., “Feminist Discourse, Moral Values, and the Law – A Conversation”
311bid. at 27.
(1985) 34 Buffalo L. Rev. 11 at 27.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
275
The radical feminist analyses questions of rights and moral choice in terms of
power. Women’s different voice cannot be heard or even imagined, until the
gendered structure of social inequality is transformed and women are empow-
ered, are “given access to everything men have always kept for themselves
whether we do with it what they have done with it, or not.”32 From this stand-
point, the claims of legal reasoning to rationality, objectivity, and neutrality are
exposed as an instrumental exercise of male power. The radical critique brings
strategic clarity to the feminist political agenda. The seemingly insoluble
sameness/difference debate within equality theory is avoided. Instead the focus
is on whether an institution, legal rule or set of attitudes promotes or reinforces
women’s subordination.33 However, by exposing the gender sub text of social
interaction and legal doctrine, and by indicting the very notion of objectivity
and impartiality as male constructs, radical feminism also reintroduces the
despair and powerlessness that attend nihilism and radical skepticism:
The problem is not just an intellectual one, nor is it restricted to parochial disputes
about the meaning and scope of rationality. At issue are some of the most perplex-
ing questions concerning human beings: what we are, what we can know, what
norms ought to bind us, what are the grounds for hope. 34
I.
Feminism: Rethinking Liberty
In contrasting the contributions of cultural and radical feminists one can
easily get caught in a disheartening feminist replay of the Cartesian anxiety. One
is forced to choose between cultural feminism’s cage of certainty and the anni-
hilating view of all human relations as power struggles. Undoing that cycle
requires a sort of mental jumping of one’s traces, a shift away from the assump-
tion that the linkages which produce coalitions and alliances must be grounded
in a common theoretical starting point, in this case a transcendent notion of sis-
terhood or of the feminist perspective. Where does this jump or shift go? I think
it takes one toward the assumption that the alliances themselves which emerge
from particular social and historical struggles, for example the struggle for
reproductive control, provide the framework for developing a notion of relation-
ship that promotes and encourages difference rather than perceiving difference
either as an obstacle to solidarity or as the “natural” basis for social hierarchy.
The imagery of conversation and dialogue for such a framework has been sug-
gested. However, all too often the image conveys a comfortable pluralism and
common language which masks the struggle underlying whose voice has legit-
imacy and gets heard in our constitutional and political conversations. We need
an image that retains the reality of conflict and struggle that characterizes these
32Ibid. at 28.
33This approach to equality is elaborated in C. MacKinnon, Sexual Harassment of Working
Women (New Haven: Yale University Press, 1979) at 101-41.
34Bemstein, supra, note 3 at 4.
McGILL LAW JOURNAL
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conversations, that communicates the partiality of any resolution or agreement,
and that continually turns our attention to the margins of our communities. Only
then will the vicious circle described by Bernstein and reenacted in the debates
within feminism unwind into an ever widening spiral.
In this section of the paper, I suggest that one can find the rough outlines
of such a spiral in the recurrent themes of relationship, particularity, and change
in certain feminist writers. The writers I have chosen are Carol Gilligan, Ann
Scales, Jean Elshtain and Iris Marion Young. I have focused on them not
because their insights are exclusive or singular, but because they use the inad-
equacy of our present discourse about rights and obligations as a point of depar-
ture and because the resonances between them suggest ways to bridge their
positioning on different sides of the cultural/radical divide. Gilligan’s work con-
cerns the internal process of moral decision making and self-development.
Scales responds to Gilligan’s claims about that process and relates her critique
of Gilligan to the epistemological assumptions that underlie legal reasoning.
Elshtain and Young address the external process of social relationship, which in
liberal legal discourse takes place in the culturally central language of rights,
specifically rights of privacy and liberty. By linking the insights gained in
reconceiving the internal process to the insights gained in the debate surround-
ing the external process, the possibility of a very different vision of community
emerges. I present this section of the paper as a conversation in motion, an occa-
sion for my own thoughts to interact with those of others in a way that affords
a glimpse of how the speculations of feminist theorists might change the some-
times intractable and narrow language of constitutional discourse as well as
change the ideal of social relations on which the discourse is founded.
A. Gilligan: Beyond the Ethic of Care?
The connection thesis of cultural feminism is to a great extent inspired and
affirmed by Carol Gilligan’s book In a Different Voice.’5 An elaboration of the
feminist perspective within political, moral or legal theory more often than not
begins with what Gilligan calls an ethic of care as opposed to the dominant ethic
of justice and rights. I suggest that this is a simplification which obscures the
radical potential of Gilligan’s work, although admittedly, Gilligan herself is elu-
sive on this point. Although she is careful to reject any definitive correlation
between the two modes of reasoning, care and justice, and sexuality, she
describes her project as the expansion of our “understanding of human develop-
ment by using the group left out in the construction of theory to call attention
to what is missing in its account.”36 She then proceeds to develop a theory based
on women’s accounts of their experiences which is very different from tradi-
35Supra, note 24.
361bid. at 4.
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RELATIONSHIP, PARTICULARITY, AND CHANGE
277
tional theories which, as it turns out, have been based largely on men’s experi-
ences. She finds that within this alternative construct, moral dilemmas arise
from conflicting responsibilities rather than from competing rights and requires for
its resolution a mode of thinking that is contextual and narrative rather than formal
and abstract. This conception of morality as concerned with the activity of care
centers moral development around the understanding of responsibility and rela-
tionships, just as the conception of morality as fairness ties moral development to
the understanding of rights and rules. 37
For Gilligan, a “morality of rights differs from the morality of responsibility in
its emphasis on separation rather than connection, in its consideration of the
individual rather than the relationship as primary.”3 While Gilligan’s elabora-
tion of the morality of responsibility speaks eloquently to women whose
socially prescribed tasks and self-definitions have centred on the sustaining of
relationships, she for the most part seems to view her project as corrective of
an imbalance rather than transformative.
The suggestion that Gilligan simply wants to tack on a distinctively
woman-based alternative to masculinist theories of moral reasoning is rein-
forced by the Amy/Jake stories in the first study, which set up an opposition
between Amy’s relational, context expanding approach and Jake’s abstract
rights balancing approach. This is compounded by cross-disciplinary uses of
Gilligan which equate Amy-style reasoning with a feminist perspective.39 Thus
in the field of legal scholarship, the values of equity are given new life alongside
the values of equality,0 mediation is proposed as the feminist alternative to
adversarial resolution of disputes,4′ responsibility rather than rights is suggested
as an organizing principle of family law.42 However, in her final chapters, the
complexities as well as the ambivalences of Gilligan’s project emerge. She talks
of the integration of a rights perspective, insofar as it focuses on the self as part
of the network of care, into the overall perspective of care and responsibility.
The difference in Amy’s and Jake’s styles becomes the occasion for learning
that judgment must be “attuned to the psychological and social consequences of
action, to the reality of people’s lives in an historical world.”’43 Although this
371bid. at 19.
3Slbid.
39Ibid. at 156.
4See C. Menkel-Meadow, “Portia in a Different Voice: Speculations on a Women’s Lawyering
Process” (1985) 1 Berkeley Women’s L.J. 39.
4lIbid. As if to illustrate the dangers of presuming that a strategy founded on the care ethic will
be good for women, mediation has come under increasing attack by feminists because it proceeds
on the assumption that men and women bargain from roughly equal positions of power and because
it further privatizes women’s experiences of violence. See L.G. Lerman, “Mediation of Wife Abuse
Cases: The Adverse Impact of Informal Dispute Resolution on Women” (1984) 7 Harvard
Women’s L.J. 57 and M. Shaffer, “Divorce Mediation: A Feminist Perspective” (1988) 46 U.T.
Fac. L. Rev. 162.
42See K.T. Bartlett, “Re-Expressing Parenthood” (1988) 98 Yale L.J. 293.
43Supra, note 24 at 167.
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realization is obscured from Jake because of his assumption that his view of rea-
son is universal and all-inclusive, and painfully clear to Amy because of her
exclusion from the discourse of rights, it characterizes maturity for both male
and female participants in the studies. “For both sexes the existence of two con-
texts for moral decision makes judgment by defimition contextually relative and
leads to a new understanding of responsibility and choice.”
The framework for this new understanding remains obscure. It would seem
to follow, however, that because the ontological and epistemological premises
of the ethic of care focus on the constitutive nature of difference, it is on those
premises and within that approach that different perspectives can flourish and
develop. This transformative possibility is glimpsed in Gilligan’s description of
the potential impact of developing a language for women in which they can
describe their adult experience:
My own work in that direction indicates that the inclusion of women’s experience
brings to developmental understanding a new perspective on relationships that
changes the basic constructs of interpretation. The concept of identity expands to
include the experience of interconnection. The moral domain is similarly enlarged
by the inclusion of responsibility and care in relationships. And the underlying
epistemology correspondingly shifts from the Greek ideal of knowledge as a cor-
respondence between mind and form to the Biblical conception of knowing as a
process of human relationship.4 5
B. Scales: Concrete Universality and the Role of Difference
While the ambivalences in Gilligan’s theory have often been glossed over
by a simple equation of women or of a feminist perspective with the ethic of
care, the radical feminist’s characterization of her theory as dangerous can be
viewed not only as a rejection of that equation but as an identification of the
critical need to confront and work out the ambivalences. The crisis is a political
as well as philosophical one, for as.Benhabib and Cornell point out, the connec-
tion thesis contains the blueprint for a woman’s oppression as well as the basis
of her claim for respect.46 Ann Scales responds to that critical need. She builds
on Gilligan’s work while rejecting Gilligan’s purportedly incorporationist
441bid. at 166.
45Ibid. at 173. Gilligan clearly conceives of her theory as transformative in a later discussion
with Carrie Menkel-Meadow. In describing what she thinks is meant by including both voices in
moral discourse, she states:
I do not think it implies a simple addition, a kind of separate-but-equal thing or an
androgynous solution. I think it implies a transformation in thinking…. We are into a
new game whose parameters have not been spelled out, whose values are not very well
known. We are at the beginning of a process of inquiry, in which the methods them-
selves will have to be re-examined because the old methods are from the old game
(Dubois et al., supra, note 30 at 44-45).
46Supra, note 29.
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RELATIONSHIP, PARTICULARITY, AND CHANGE
279
agenda. In Scales’ view, Gilligan’s studies provide the “empirical evidence for
what feminist theory has already postulated: A male point of view focuses nar-
rowly on autonomy, on the separation between self and others. 47 That funda-
mental split between self and the rest of the world gives rise to an account of
existence in which the “other” is negativized and devalued, in which the very
idea of self as well as the superstructure of our social institutions, is premised
on the domination of the “other.” For that reason, Scales argues, the relational
ontology of feminist theory cannot simply be grafted onto the male self/other or
oppositional ontology. The two approaches are incompatible, requiring us to
make a choice not between male and female domination but rather between “a
compulsion to control reality” by separating and classifying it into existential
categories and “a commitment to restrain hegemony” by acknowledging and
celebrating difference and the “varieties of existence.”48 Thus to the abstract
universality of traditional legal reasoning, Scales posits concrete universalism.
She explains the shift as follows:
Feminism rejects “abstract universality in favor of “concrete universality.” The
it elevates some to dispositive principles and
former conjures differences –
defines others out of existence –
and makes maleness the norm. The latter rein-
terprets differences in three crucial ways. First, concrete universalism takes differ-
ences to be constitutive of the universal itself. Second, it sees differences as sys-
tematically related to each other, and to other relations, such as exploited and
exploiter. Third, it regards differences as emergent, as always changing.4 9
Thus the way out of the cage of cultural feminism’s supposed reification
of feminine virtue is not to reject Gilligan’s insights nor simply to reverse the
power relations between the sexes. Instead Scales suggests, and I would argue
that this is at least implicit in Gilligan, that we rethink the central role that dif-
ference plays in our relatins to each other, in the distribution of power, and in
our sense of who we are. Because women’s difference from men has been the
occasion of the use of difference, in a way that crosses over race and class lines,
to legitimate inequality and oppression, it is in women’s voices that we can
expect to find the clearest articulation of a theoretical and practical alternative.
This transformative possibility is described, albeit ambivalently, in Gilligan’s
final chapters as “a new perspective on relationships that changes the basic con-
structs of interpretation.”‘5 If Gilligan is to be faulted, it is for limiting the dis-
cussion of difference within styles of moral reasoning to male/female difference
rather than breaking out of the seemingly ironclad classification of experience
into binary oppositions to arrive at a notion of gender itself as a spectrum of dif-
ferences as well as the location where the many differences that justify the com-
plex hierarchies of our social relations intersect. Indeed, Gilligan’s subjects defy
47Supra, note 28 at 1382.
481bid. at 1385.
491bid. at 1388.
50Supra, note 24 at 173.
McGILL LAW JOURNAL
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simple categorization. Gilligan herself noted that the black women in her study
were speaking in their own distinctive voices in a way that came closest to inte-
grating the two perspectives.” Thus it is not enough to reject the devaluation of
the feminine side of the formal oppositions that characterize traditional moral
reasoning. To the extent that cultural feminism leaves the oppositions them-
selves in place, it leaves us trapped between meagre alternatives and silences the
voices that lie in between and beyond. Rather, one has to devise a framework
within which all those voices flourish. This is the approach made possible by
concrete universality and implicitly by the epistemological and ontological
premises of the connection thesis.
C. Elshtain: Parenting and the Interactive Public
Much the same sort of dialectic between an essentialist account of the ideo-
logical struggle between feminist and masculinist perspectives and an account
that transforms the terms of the struggle altogether can be seen in Elshtain’s
reconstruction of the public/private distinction. Elshtain’s work focuses on the
external processes of social relationship rather than on the internal process of
self-definition through relationship. In doing so, she introduces a notion of an
interactive relationship between public and private that presumes a fundamental
shift in epistemology akin to that presumed by Gilligan’s thesis that judgment
is contextual. However, she at the same time seems to fall back on the sancti-
fication of a narrowly conceived and particularly conservative notion of the
family which parallels cultural feminism’s reification of feminine virtue. Her
discussion is important nevertheless for its insights into a vision of privacy
grounded in connection and inclusion rather than separation and alienation.
Elshtain, like Scales, takes as a starting point a relational rather than oppo-
sitional ethic founded on two presumptions:
First, human beings have a need to live with and among others in relations of con-
crete particularity, in space, extending over and through time. If we are deprived
of such relations we are damaged and distorted in body and spirit. My second pre-
sumption is that human beings, and here the evidence stretches from prehistory
through the present, experience an imperative –
Freud termed it an epistemic
instinct –
to discover, to understand, and to create meaning. That drive, too can
be damaged and deflected and to the extent that it is we become less fully
human.
5 2
She then distinguishes between feminists who reject the claims of history as a
“litany of debasement” and theorists who would reify tradition and history as “a
sanctuary from the present.”’53 She seeks to do neither but rather to create mean-
51Ibid. at 77. Gilligan also points out the class bias in her studies (supra at 76).
52J. Elshtain, Public Man, Private Woman: Women In Social and Political Thought (Princeton:
Princeton University Press, 1981) at 318.
531bid. at 319.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
281
ing out of historical experience. For her, recurrent moral notions are a language
through which different generations conduct a conversation across history about
alternative visions of social life. The necessary subjects of this conversation are
at the very least sexual relationships and the protection of life, without which
the continuance of social life would be impossible. However, these human
imperatives simply describe an area of discussion rather than serve as the foun-
dation for a society built around self-interest. In addition, the ongoing task of
moral re-evalution is subject to
the reality of limiting conditions; one must recognize that we are not thoroughly
untrammeled in our imaginings, though we may self-indulgently entertain the
view that we are. In this way one not only opens up the possibility for, but accepts
the irrevocability of conflict, given our diverse assessments of the moral impera-
tives embodied in ideas of ways of life. 4
Elshtain then addresses her reconstructive ideal of the private world of par-
enting as the locus of meaning and self-understanding as well as of historical
and social relations. It remains distinct from the public not because of a natural
or necessary division of institutions nor to sustain and serve the public sphere,
but because parenting is the basis of language and of the individual capacity for
attachment, and thus of the possibility of social existence. She goes on to then
construct a particular ideal of family which endeavours to reproduce the tradi-
tional middle class family structure without reproducing the terms of patriarchy.
The cultural insularity of Elshtain’s solution reveals what Mich~le Barrett and
Mary McIntosh describe as the “power of essentialist –
and highly naturalistic
–
views of the family” and the “strength and tenacity of the ideology of fami-
lialism in our culture.”’55 However, by Elshtain’s own terms, her familial ideal
is provisional. What is important is her notion of the interaction between public
and private. Having proposed the parenting relation as a basis on which to imag-
ine a “way of life,” she observes that the task of providing trust and security to
children is impossible unless men and women experience trust and security in
their sexual and social relations. Thus she argues for a notion of political com-
munity that is inclusive, that recognizes “authentic instances of citizenship” 56 in
the stories of women, children, the sick, the disadvantaged as well as those told
by the privileged. The private remains meaningful insofar as it is descriptive of
the experience of intimacy and care. However, the ideological basis of the use
of the private as a way of removing areas of experience from what counts as
politics is exposed.
541bid. at 320.
55M. Barrett & M. McIntosh, The Anti-Social Family (London: Verso Editions/NLB, 1982) at
39. In addition, Barrett and McIntosh chronicle the anti-social impacts of the family in Western
industrial society which are borne almost exclusively by women (supra at 43-80).
56Supra, note 52 at 347.
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[Vol. 36
D. Young: The Heterogeneous Public
Iris Marion Young avoids the essentialism contained in Elshtain’s reifica-
tion of a culturally specific experience of family relations.’ At the same time,
she further develops what she calls the ideal of the heterogeneous public and,
like Scales, challenges the ideological content of liberal categories and of an
epistemology that presumes that human experience can be definitively
explained by reference to those categories. Thus it is not the distinction between
public and private that she finds problematic. Rather, it is the correlation with
a dichotomy between reason and desire, universal and particular, such that those
institutions and experiences that are private in the sense of affective or partic-
ular, are excluded, are denied relevance or public meaning. Instead the public
should connote accessibility and expression.
Young draws on Habermas’ theory of communicative ethics as a starting
point for a conception of politics and of normative reason which is not predi-
cated on an opposition between reason and desire. Rather, discussion of practi-
cal morality is in terms of the particular needs and experiences of the conver-
sants. Reason does not mean universality or logical consistency but rather
giving reasons, articulating one’s experience, and a willingness to listen. How-
ever, Young rejects any commitment to the notion of impartiality or of the tran-
scendental subject implicit in Habermas’ model. By so doing, she incorporates
the social reality of conflict and struggle into the conversational framework:
Precisely because there is no impartial point of view in which a subject stands
detached and dispassionate to assess all perspectives, to arrive at an objective and
complete understanding of an issue or experience, all perspectives and participants
must contribute to its discussion. Thus dialogic reason ought to imply reason as
contextualized, where answers are the outcome of a plurality of perspectives that
cannot be reduced to unity. In discussion speakers need not abandon their partic-
ular perspective nor bracket their motives and feelings. 58
Thus politics, like Elshtain’s vision of morality, is a dialogue or conversa-
tion. However, it is a conversation in a constant state of transition, which pushes
at the boundaries of language and experience. Its subject is “the moral value or
human desirability of an institution or practice whose decisions affect a large
number of people. ‘ ’59 Because language and meaning are constructed on the par-
ticularity of experience, such experience must be given the force of relevance
in order to achieve Young’s emancipatory politics. She writes:
The feminist slogan “the personal is political” does not deny a distinction between
public and private, but it does deny a social division between public and private
spheres, with different kinds of institutions, activities and human attributes. Two
Moral and Political Theory” in Benhabib & Comell, eds, supra, note 29 at 57.
571.M. Young, “Impartiality and the Civic Public: Some Implications of Feminist Critiques of
5SIbid. at 69.
59lbid. at 73.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
283
60
principles follow from this slogan: (a) no social institutions or practices should be
excluded a priori as being the proper subject for public discussion and expression;
and (b) no persons, actions or aspects of a person’s life should be forced into pri-
vacy.
Gilligan, Scales, Elshtain and Young in a sense have embarked on the task
of imagining a different political and moral geography, one that glimpses vast
areas of possibility. While the language and instruments of discovery must nec-
essarily be those fashioned for the stratified world built on the separation thesis,
new methodologies as well as new understandings arise. The efforts to expand
context by Gilligan’s female subjects, the postulation of concrete universality by
Scales, and the conversational model of reasoning which acknowledges the
incommensurability of differences suggested by Elshtain and Young create res-
onances among their work. While these writers can be portrayed as occupying
different sides of the cultural/radical divide, each of them grounds her theoriz-
ing in the notions of relationship, particularity, and change. In this sense, they
are not solitary visionaries setting out to conquer unknown continents. Rather,
these different voices are engaged in a collaborative enterprise and it is from the
resonances as well as the divergences that kaleidoscopic configurations emerge
and sometimes re-emerge. The configurations cannot add up to a resolution that
eliminates difference. The focus on particularity requires a resolution that cel-
ebrates difference. However, this does not preclude working out particular res-
olutions within particular concrete struggles. One of those configurations takes
the form of the effort to design legal theories premised on a notion of human
flourishing in terms of connection and attachment rather than separation and
autonomy. This is most evident in the area of equality theory6 where there has
been a discernible shift from formalism and abstraction to contextuality, and
from an individualist to a group perspective. The same attempt, however, has
not been made to rethink liberty. Indeed, because liberty seems to be primarily
6Ibid. at 74.
61See, e.g., the L.E.A.F. factum in Law Society of British Columbia v. Andrews, [1989] 1 S.C.R.
143, 56 D.L.R. (4th) 1, which asked the Court to look at the “social history of disempowerment”
in assessing an equality claim rather than a rule of rational consistency which ignores history and
institutionalized bias (supra at para. 49ff). For a discussion of the transformative possibilities of
a relational approach to equality rights, see N.C. Sheppard, “‘A Way of Strength’: Caring and Rela-
tions of Equality” (Paper delivered at University of Victoria Faculty of Law, March 7, 1990)
[unpublished]. Sheppard explains the significance of caring for notions of equality as follows:
Caring describes a way of acting towards others. By definition, it involves relation-
ships. Caring focuses on the nature of human relations. This is an important point of
departure since my equality analysis focuses on relations of inequality and equality
(supra at 13-14).
And later she writes:
What does caring involve? I think it is useful to delineate two aspects of caring. The
first aspect involves caring for the past, for what we already are, for our identity, cul-
ture, personality, diversity, earth. Caring in this sense entails preserving. The second
aspect involves commitment to and the fostering of development, growth, and change
in individuals and groups” (supra at 19).
McGILL LAW JOURNAL
[Vol. 36
about individual sovereignty rather than community, its reconstruction lies at
the heart of what Bernstein would describe as the need to move beyond objec-
tivism and relativism and what Benhabib calls “a politics of empowerment that
extends both rights and entitlement while creating friendship and solidarity. ’62
IV. A Revised Notion of Liberty and Section 7
In this section of the paper I seek to link the themes of relationship, par-
ticularity and change that characterize feminist projects to Canadian constitu-
tional rights discourse. I begin with a notion of liberty that I feel is responsive
to the vision of social relations and the self that I hear in so many feminist
voices. I then sketch out the ways in which Canadian constitutional values can
be enlarged upon to reflect a similar vision of social prosperity. Finally, I begin
to explore how such an alternative does and does not change rights discourse.
While Elshtain’s and Young’s interactive private and heterogeneous public
flows naturally from a situated vision of the self, to attach rights to that self
without addressing institutional reform leaves intact a contradictory conception
of courts as neutral arbiters of conflicting values. This latter point is further
developed in the next section of the essay. To the extent that we retain a notion
of liberty as the pursuit of individual happiness, the claims of feminism are
reduced to a naive assertion that “if we talk about it, we will reach an agreement
that will make us all happy.” However, there is no room within that assertion
for the connection Scales and Young make between the universalizing aspect of
social compacts or rule-making, and disempowerment. As Scales and Young
point out, the claims of neutrality and universality deny experience, and there-
fore deny the voices of countless others a place within social and political life,
leaving room only for the politics of paternalism rather than the politics of
empathy and empowerment. The idea that one can devise a set of neutral rules
to ensure inclusion, that one can abstract procedures from the substantive con-
ditions within which they operate, or that one can map the boundary line
between individual and state, is incoherent once one concedes the contingency
and fluidity of social interactions and needs. Fairness is a function of history, of
shifting relations of power and resources. A conversation about fairness or due
process in a courtroom or committee room is a struggle about the shape of those
relations. Likewise, a conversation about a right to abortion as an aspect of lib-
erty is ultimately a conversation about the way in which social and political
power intersects with sexual relations between men and women and with paren-
tal roles so as to distort and skew any communal redefinition and restructuring
of the mythologies and institutions that control reproduction and child rearing.
I propose to start, therefore, with a notion of liberty as a process of rela-
tionship through which one’s consciousness of one’s own particular history,
62S. Benhabib, Critique, Norm and Utopia (New York: Columbia University Press, 1986) at 352.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
285
needs, capacity for agency and identity is clarified, recognized and evolves.63 By
describing liberty as a relational process which evolves over a particular time
and within a particular cultural and social location, I mean to incorporate the
elements of change and concreteness that characterize feminist discussions and
as well to make room for different images and experiences of liberty. In addi-
tion, the notion of self-recognition within relationship connotes the dependence
on social interaction of any one individual or group’s experience of self or iden-
tity. Skonaganleh:r articulates the social dimension of identity as follows, in
her conversation about aboriginal women and feminism:
The “others” [feminists who view equality as founded on the “sameness” of
human experience] have to start to think differently and they have to look in their
own mirror, at their own selves, and their own baggage that they’re carrying and
where that came from. They should not look at a universal sisterhood, so much as
we should be looking at creating a situation where all people of many colours can
peacefully exist. I agree that we all have certain goals that we want out of life, one
of which is peace in all of our relationships. However, we cannot have peace in
our relationships if we don’t have peace inside ourselves. We can’t have peace
inside ourselves if there is no credence or credibility given to the way that we
define ourselves. 64
It is this sense of strength through an interdependence that does not deny dif-
ference rather than freedom through non-interference that I think lies at the core
of an alternative conception of liberty. Finally, the centrality of consciousness
refers to what Jennifer Nedelsky calls the “subjective element of autonomy.”65
Nedelsky conceives of autonomy as primarily a capacity but gives several rea-
sons why feeling is an “inseparable component”:
First, I think the capacity does not exist without the feeling. Second, I think the
feeling is our best guide to understanding the structure of those relationships
which make autonomy possible. Third, focusing on the feelings of autonomy
defines as authoritative the voices of those whose autonomy is at issue. 66
63Jennifer Nedelsky reconceives autonomy from a feminist standpoint in the following terms:
“I have already mentioned the (problematic) notion of self-determination. I think comprehension,
confidence, dignity, efficacy, respect, and some degree of peace and security from oppressive
power are probably also components” (supra, note 17 at 224). I would favour terms that more
clearly signify the interdependence of human existence and the fact that the subjective experience
of the self as autonomous or self-determining only ever occurs through a multitude of concrete
relationships with others. However, Nedelsky goes on to make the point that it is relationships not
isolation that enable us to experience autonomy and suggests that child rearing, not property, is the
“most promising model, symbol, or metaphor for autonomy” (supra at 225). In the ensuing discus-
sion, I similarly suggest that insofar as reproductive decisions involve women in considerations of
their responsibilities within a network of ongoing and changing relationships, they lie at the core
of a relational notion of liberty. See infra, note 86 and accompanying text.
64Ossenontion & Skonaganleh:rb, “Our World” (1989) 10:2 & 3 Canadian Woman Studies 7 at
15.65Supra, note 17 at 240.
66Ibid. at 239.
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The conception of liberty proposed above, without further elaboration,
hardly represents a radical departure. The focus on self-realization fully harmo-
nizes with the liberal framework of the Charter and in particular with the recur-
rent references by the Supreme Court to human worth and dignity as its central
organizing principle. For instance, in R. v. Big M Drug Mart, Dickson C.J.
states: “Freedom must surely be founded in respect for the inherent dignity and
inviolable rights of the human person,”’67 and in R. v. Oakes he identifies as a
principle “essential to a free and democratic society … respect for the inherent
dignity of the human person.”68 However, while such statements can serve to
emphasize the Charter’s indebtedness to the individualist focus of liberalism
and classical legal consciousness, it is in the counter theme of community that
one finds a potential responsiveness to the premises of feminist theorizing. The
vision of the individual person within Canadian constitutional discourse often
presumes the social and communal aspect of self-determination and fulfillment.
Justice Rand saw rights of individuals as “the primary conditions of their com-
munity life within a social order.”69 Chief Justice Laskin spoke of “the relativity
of rights involving advertence to social purpose as well as to personal advan-
tage.”7 Justice Wilson has stated that a Charter right “postulates the interrela-
tion of individuals in society.”‘” More important, however, is the explicit
acknowledgement of community values in Canadian constitutional history. 2
The particular compromises of Canadian federalism have often stemmed from
a deference to community although these are more often than not the hierarch-
67(1985] 1 S.C.R. 295 at 336, 18 D.L.R. (4th) 321.
61[1986] 1 S.C.R. 103 at 136, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to S.C.R.].
69Saumur v. Quebec (City), [1953] 2 S.C.R. 299, 4 D.L.R. 641 at 670.
70Harrison v. Carswell, [1975] 2 S.C.R. 95, 62 D.L.R. (3d) 68 at 75 (dissenting opinion). Robin
Eliot has also singled out the collectivist emphasis of Chief Justice Laskin’s liberalism which saw
civil liberties as one of many social interests. See R. Eliot, “The Supreme Court of Canada and
Section 1 – The Erosion of the Common Front” (1987) 12 Queen’s L.J. 277 at 284-85. Eliot
describes the recurrence of the same emphasis more generally as follows:
Canada’s legal culture also reflects the influence of collectivist thinking. The over-
riding theme of the Constitution Act, 1867 is the provision of “peace, order and good
government” rather than the protection of “life, liberty and the pursuit of happiness”,
and when the power of government is limited, it is not to protect individuals but groups.
Prior to 1982, the question for us had always been, not whether government could abro-
gate individual rights and freedoms, but which order of government, federal or provin-
cial, could do so. On those rare occasions on which it had been suggested that neither
order of government could do so, the rationale given tended to focus, not on the value
of these rights and freedoms to individuals, but on their value to the parliamentary sys-
tem of government (supra at 284).
71Operation Dismantle v. R., [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481 at 516.
72Several commentators have singled out the theme of community in Canadian constitutional
history. For a fuller discussion than I have given here, see Eliot, supra, note 70 at 282-83, P.J.
Monahan, “Judicial Review and Democracy: A Theory of Judicial Review” (1987) 21 U.B.C. L.
Rev. 87 at 132-37, and P. Macklem, “Constitutional Ideologies” (1988) 20 Ottawa L. Rev. 117 at
123-29 & 138-42.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
287
ical communities and traditional elites of the conservative vision. While the
formal structure of the Constitution Act, 1867″3 favours a strong unitary state,
social and political pressures have created and maintained an enlarged and dura-
ble role for intermediate structures which give voice to the priorities of regional
interests and which survives today in the Charter’s s. 33 override.74 The debate
over the Meech Lake Accord of 1987″5 has for the most part stayed within the
dominant vision of what the significant communities in Canada are. However,
it has also been the site for a struggle to realign the traditional axis of Canadian
constitutional exchanges, federal-provincial relations, to include different com-
munities and voices in that exchange, namely First Nations and women. In addi-
tion, the Constitution Act, 1867, although without any safeguards for individu-
als, protects the two founding cultures by providing for French and English
language rights76 as well as certain denominational educational rights.7 7 Those
protections are reinforced and to some extent enlarged in the Charter” which
also introduces an interpretive principle directed at preserving and enhancing
multiculturalism.”9 The First Nations communities are recognised as such in s.
91(24) of the Constitution Act, 1867 which gives jurisdiction over “Indians and
Indian Lands” to the federal level of government. The history of federal policy,
however, has been the history of “the social violence of legal disabilities and
administrative oppression.”8 Whether the recognition and affirmation of “exist-
73(U.K.), 30 & 31 Vict. c. 3 [hereinafter Constitution Act, 1867].
74S. 33 permits both the federal Parliament and the provincial legislatures to declare that legis-
lation shall operate notwithstanding ss 2 and 7-15 of the Charter. The overide has to be renewed
every five years. The sections in the Charter which protect group rights in language and education
cannot be overridden.
75The Accord failed to obtain unanimous approval from all the provincial legislatures within the
three year time limit set out in s. 39(2) of Part V of the Constitution Act, 1982, being Schedule
B of the Canada Act 1982 (U.K.), 1982 c. 11 [hereinafter Constitution Act, 1982]. This was in part
due to last minute procedural delays created by Elijah Harper, the Manitoba Legislative Assem-
bly’s only aboriginal member, who held up the Accord because it “would prevent aboriginal people
from becoming ‘equal partners’ in the Constitution…. ‘We are kept on the outside looking in,’ …
What we’re fighting for is democracy. We have been excluded in this country for many years”‘
(G. York, “Rescue of Deal is Impossible, Manitoba says,” The [Toronto] Globe & Mail (22 June
1990) A4).
76S. 133 protects both languages in the courts and legislatures of Quebec and the federal
govemment.
77S. 93 protects rights and privileges with respect to denominational schooling in existence at
the time of Confederation or entrance into the Canadian union.
78Ss 16-19 protect and expand existing language rights. S. 23 provides for minority educational
language rights in French and English where numbers warrant.
79S. 27 of the Charter states: “This Charter shall be interpreted in a manner consistent with the
preservation and enhancement of the multicultural heritage of Canadians.”
80G. Manuel & M. Posluns, “The Fourth World” in R. Fisher & K. Coates, eds, Out of the Back-
ground: Readings on Canadian Native History (Toronto: Copp Clark Pitman, 1988). See also R.
Bartlett, “Parallels in Aboriginal Land Policy in Canada and South Africa” (1988) 4 C.N.L.R. 1.
McGILL LAW JOURNAL
[Vol. 36
ing aboriginal and treaty rights” in s. 35(1) of the Constitution Act, 1982″ will
further legitimate the use of difference to subordinate rather than strengthen
First Nations communities remains to be seen.”2 Although the central themes of
the Charter are derived from the liberal vision, a new notion of community
defined by need and a shared history of disempowerment is introduced in the
enumeration of the prohibited grounds of discrimination in s. 15(1), and the pro-
visions allowing affirmative action programs to remedy the effects of discrim-
ination in s. 15(2), and to counteract social and economic disadvantagement in
s. 6(4). The positive view of the state which flows from the collectivist tradition
underlies s. 1 which allows reasonable limits on Charter rights where important
collective goals are at stake, and s. 36 of the Constitution Act, 1982 which com-
mits all levels of government to promoting equal opportunities, reducing eco-
nomic disparities, and “providing essential public services of reasonable qual-
ity.” The counter theme of community carries over into judicial interpretation of
Charter guarantees. Dickson, C.J.’s list of quintessentially democratic princi-
ples in Oakes includes “respect for cultural and group identity, and faith in
social and political institutions which enhance the participation of individuals
and groups in society.”83 It is in Wilson J.’s decisions, however, that one encoun-
ters the greatest ambivalence. It would be hard to find a clearer statement of the
classical liberal equation of freedom with exclusion, boundaries, and individual
sovereignty than her metaphorical description in Morgentaler of rights as
fences’ and in her statement in Jones that, “[c]ollectivity necessarily circum-
scribes individuality and the more complex and sophisticated the collective
structures become, the greater the threat to individual liberty in the sense pro-
tected by s. 7.”85 However, in Jones, when talking about the rights of parents to
educate their children as an aspect of s. 7 liberty, a notion of self-realization that
is dependent on social relationship is suggested in the following passage:
are hereby recognized and affirmed.”
8IS. 35(1) states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada
82The recent decision by the Supreme Court in R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 D.L.R.
(4th) 385 at 410-17, which requires that s. 35 be interpreted from the perspective of the aboriginal
claimant rather than of the government regulator and that any conservation measures that affect
aboriginal rights must be developed in consultation with the affected group, would seem to rep-
resent a shift away from the paternalism of past policy. However, the case must be seen against
the background of other recent decisions which have consistently undermined the cultural survival
and integrity of First Nations communities. See e.g. R. v. Dick, [1985] 2 S.C.R. 309, 23 D.L.R.
(4th) 33, and Jack and Charlie v. R., [1985] 2 S.C.R. 332, 21 D.L.R. (4th) 641. See also M.E. Tur-
pel, “Aboriginal Peoples and the Canadian Charter Interpretive Monopolies, Cultural Differ-
ences” (1989-1990) 6 Can. Hum. Rts Y.B. 3, in which Turpel develops the view that the consti-
tutional rights paradigm is antithetical to the cultural values of aboriginal peoples.
83Supra, note 68 at 136.
94Supra, note 1 at 164.
5Supra, note 16 at 319.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
289
The relations of affection between an individual and his family and his assumption
of duties and responsibilities towards them are central to the individual’s sense of
self and of his place in the world. The right to educate his children is one facet of
this larger concept. 86
The idea of parenting presented in this passage can be construed as one of
dominion within the home and control and ownership of children. Indeed paren-
tal rights claims simply assert the family, more often than not the male-headed
family, rather than the individual as marking out the boundary of a separate
sphere of freedom.” But the parenting claim in Jones can also be seen, as by
Elshtain, as a social activity which links the individual with community and
through which both develop. This becomes clearer when Wilson J. goes on to
describe the interest as a right to raise one’s children in accordance with one’s
conscientious beliefs. The community dimension of religious and conscientious
beliefs manifested itself in this case in the community of adherents the Rever-
end Jones had created. The occasion of the litigation was his refusal to obtain
certification for the school he ran for the children of the community. Unfortu-
nately, the extent to which the parental claim was a paternal claim and the com-
munity instituted a patriarchal regime was not raised. As with individuals, com-
munities do not set boundaries around fortresses of exclusion based on common
experience; rather, they contain intersections of different layers of experience.88
However, if we view the “right to educate his children” 9 in terms of the Rev-
erend Jones’ effort to build social institutions which speak to his community’s
needs and values, then his parental relationship becomes the basis of his com-
mitment to other members in his community. His children are not claimed as
property but are the link to others by which he defines himself and his contri-
butions to the community. Finally, in Morgentaler, Wilson J.’s description of the
abortion decision as a “decision that deeply reflects the way a woman thinks
about herself and her relationship to others and to society at large”9 places indi-
vidual choice in the social context of women’s actual lives.
I would suggest, therefore, that a relational vision of the human person and
of the individual sense of self provides a basis for a claim for reproductive con-
trol as a s. 7 liberty interest that resonates not only with the theme of community
in Canadian constitutional discourse, but also with the psychological and phil-
86 Ibid.
87For an historical account of the evolution of the male-headed family as the repository of free-
dom and value, see E. Zaretsky, Capitalism, the Family, & Personal Life (New York: Harper &
Row, 1976).
88See discussion infra, note 117 and accompanying text. It is interesting that similar interests that
might have been left to be subsumed under parental autonomy in s. 7, have been formally artic-
ulated as group rights in s. 23 of the Charter’s protection for minority educational rights which
ensures public funding for primary and secondary instruction in the language of the French or
English minority where numbers warrant.
89Supra, note 16 at 319.
90Supra, note 1 at 171.
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osophical premises of much feminist writing. In addition, if one listens to
women’s voices, one finds that women’s decisions about reproductive control
are not only decisions about pregnancy9′ but are also decisions about relation-
ships with a child, the other parent, and with one’s community. They do not
reflect the assumed bifurcation of interests, woman versus fetus, of constitu-
tional rights discourse. Rather, women appear to be engaged in a discourse
about accomodating a wide range of interests, including their own and that of
a potential child, to the particular circumstances of their lives in a way that
acknowledges the singular and radical dependency of fetal life on their bodies
as well as the socially mandated dependency of children on mothering by
women. To this effect, one of Gilligan’s subjects describes her concerns in try-
ing to decide whether or not to obtain an abortion:
I think you have to think about the people who are involved, including yourself.
You have responsibilities to yourself. And to make a right – whatever that is –
decision in this depends on your knowledge and awareness of the responsibilities
that you have and whether you can survive with a child and what it will do to your
relationship with the father or how it will affect him emotionally. 92
And later, another subject who has ceased to define herself in terms of other’s
needs but sees her own needs as situated within a particular reality involving
others states:
The decision has got to be, first of all, something that the woman can live with,
a decision that the woman can live with, one way or another, or at least try to live
with, and it must be based on where she is at and other significant people in her
life are at. 93
91I do not intend to downplay the physical and emotional security issues raised by pregnancy.
For women, those aspects of a claim for reproductive self-determination would remain even in a
world in which the social relations of reproduction have been restructured to eliminate gender
based inequalities. Because of the intimate, physical invasiveness of coerced pregnancy, this is one
area where the imagery of the body could appropriately be substituted for the more traditional ima-
gery of property to connote the material basis, in the bodies of individuals, for the social interre-
lations that we call the body politic. The potential of such a “body-based justification” for privacy
rights and for a “cruel and unusual punishment” limit on the exercise of state power is explored
by K. Thomas, “Corpus Juris Sexualis: The Eighth Amendment and ‘Sodomy Statutes”‘ [unpub-
lished draft, February 1988). However, his analysis leaves the notion of rights as limits and of the
definitional opposition between individual and community intact. Women’s experience of physical
violence within their homes and on the street requires an imagery that acknowledges the vulner-
ability and dependency of both our bodies and our rights as well as their concreteness and integrity.
Jennifer Nedelsky explores a less fortress-like body based imagery in “Law, Boundaries, and the
Bounded Self” (1990) 30 Representations 162. Rather than presuming that our skin marks a wall
between ourselves and the world that is “hard, clear, and defendable against invasion” (supra at
179), she focuses on skin as permeable and as connecting us to the world through a network of
sensations (supra at 178-79).
92Quoted in Gilligan, supra, note 24 at 78.
93Quoted in Gilligan, ibid. at 96.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
291
Thus, if liberty and the core notion of agency are seen as a relational proc-
ess which includes both oneself and others, reproductive and parenting choices
give rise to a paradigmatic liberty interest.
the recurrent complaint about Roe v. Wade94 –
The criticism is that this simply adds up to a substitution of inviolable
rights of personality, albeit a relational notion of personality, for inviolable
thereby
rights of property –
leaving the traditional vision of liberty and of individual relations with the state
intact. Rather than erecting a fence around the private fortress of individual free-
dom, liberty rights now provide a fence around the private fortress of intimate,
personal relationships. Ultimately this is unavoidable if one stays within an
institutional structure that mirrors the liberal structure of the state. As long as
we have courts which are conceived as neutral and impartial arbiters of conflict-
ing interests in accordance with rational, universally accessible principles,
rather than as part of a state structure which itself represents distinct interests,
rights adjudication will presume a definitional conflict between individual free-
dom and community. Alison Jaggar makes this point in her discussion of con-
ceptions of the state and the politics of liberal feminism. Because liberal fem-
inists accept the view that the state is the only socially inclusive form of
association based on the consent of its members,
[they] take it for granted that the state is the proper and indeed the only legitimate
authority for enforcing justice in general and women’s rights in particular. They
see the state as the neutral arbiter of conflicting social interests, whose task is to
protect individual rights and so to defend against the tyranny of any individual or
group.
95
In the next section of this essay, I suggest that any reconception of rights
must include a reconstruction of the institutions which articulate and enforce
rights in a way that takes account of the interests favoured by existing struc-
tures. However, even within those structures, the shift to a theory of liberty that
starts from the premise of a situated self expands the possibilities of understand-
ing and of mediating conflicts in a way that is responsive to social and historical
conditions of oppression. Furthermore, the contextualization of women’s claims
is subversive of the central dichotomies of liberal rights discourse. The theory
94410 U.S. 113 (1973). Blackmun J., for the majority, found that legislation that criminalizes
abortion violates the right to privacy protected by the due process clause of the Fourteenth Amend-
ment. In “The Male Ideology of Privacy: A Feminist Perspective on Abortion” (1983) 17 Radical
America 23 at 33 [hereinafter “The Male Ideology of Privacy”] Catharine MacKinnon writes that
the privacy doctrine articulated in Roe v. Wade reinforces the public/private split which
is at once an ideological division that lies about women’s shared experience and mys-
tifies the unity among the spheres of women’s violation, and a very material division
that keeps the private beyond public redress and depoliticizes women’s subjection
within it. It keeps some men out of the bedrooms of other men.
95A. Jaggar, Feminist Politics and Human Nature (Totawa, N.J.: Rowman & Allanheld, 1983)
at 200.
McGILL LAW JOURNAL
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of freedom, social happiness and the state which rests on the dualisms of public/
private, objectivity/subjectivity, and process/substance begins to unravel in the
face of women’s accounts of the concrete particulars of their experiences of
disempowerment.
The shift to a relational vision of the human self parallels the shift between
what Seyla Benhabib calls the standpoints of the generalized and concrete
other.96 The traditional liberal values of individual dignity and respect, which
underlie the focus of s. 7 liberty on personal integrity and self-determination,
are embodied in the standpoint of the generalized other. Benhabib points out
that the incoherence of that standpoint lies not in the respect it accords others,
but rather in the assumption that respect has to be based on our sameness or
interchangeability. To the extent that moral judgment requires one to step into
the shoes of others, one has to understand others in terms of their particular
needs, goals, and as well, the historical, cultural, social and economic matrices
within which they live their lives. Benhabib calls this the standpoint of the con-
crete other. A relational ontology directs one’s focus at those contextual ele-
ments of self-definition. In terms of constitutional doctrine, the change in focus
is pivotal in giving liberty a positive colouration, and by implication, the state
a more positive role. If human prosperity and growth is viewed in terms of the
ability to forge, maintain and determine one’s particular relations in a particular
social context, then the withdrawal or absence of state support in an area of con-
stitutionally protected decision making raises a constitutional issue. In addition,
the involvement of the state in shaping and reinforcing established patterns of
private power becomes more difficult to deny once one concedes that the legal
rules and doctrine devised by judicial lawmakers are historically and contin-
gently based rather than rationally derived from immutable principles.
The American cases dealing with abortion-funding and the aftermath of the
Morgentaler decision in Canada provide two illustrations of my point. In Harris
v McRae97 the United States Supreme Court found that a federally funded pro-
gram to subsidize medically necessary services which denied funds to indigent
women for medically necessary abortions with limited exceptions for threats to
maternal life, rape and incest, did not unduly burden or interfere with a woman’s
constitutionally protected freedom to decide whether or not to terminate her
pregnancy. The Court wrote:
The financial constraints that restrict an indigent woman’s ability to enjoy the full
range of constitutionally protected freedom of choice are the product not of gov-
ernmental restrictions on access to abortions but rather of her indigency.98
96The relevance of Benhabib’s analysis to the problems of relating across difference and medi-
ating between conflicting claims of community is explored in N. Duclos, “Lessons of Difference:
Feminist Theory on Cultural Diversity” (1990) 38 Buffalo L. Rev. 325 at 360-63. See also Shep-
pard’s discussion of Benhabib, supra, note 61 at 24-25.
97448 U.S. 297 (1980) [hereinafter Harris].
9SIbid. at 316.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
293
This is separate spheres reasoning at its most extreme. Women are pre-
sumed to be able to make meaningful choices within the sphere of personal pri-
vate freedom so long as we fence out the state.99 The earlier case of Maher v.
Roe'” is even more surprising. There the Court found that the withdrawal of
funding for abortions in combination with full funding for childbirth likewise
did not impinge on the privacy rights of women. According to the Court,
unequal subsidization of abortion in order to encourage childbirth placed no
obstacles in the path of access to abortions and therefore passed constitutional
scrutiny. If, however, one shifts to the standpoint of the concrete other, from
which personal choice and self-understanding take place through and by inter-
actions with a particular set of social conditions, then the manifest attempts in
Harris and Maher to manipulate those conditions, to rearrange the social and
economic environment of impoverished women so as to channel and constrain
their reproductive choices, directly affects those choices.
The aftermath of Morgentaler in Canada tells much the same story. While
the decision struck down, at least temporarily, the oppressive structures set up
under the Criminal Code, it did not thereby empower women to determine the
shape of their reproductive lives. Indeed, the removal of the highly visible appa-
ratus of the official state has thrown into sharper relief the less visible but nev-
ertheless equally effective structures of private power which, with the complic-
ity of the state, continue to manage and define women’s reproductive choices.
As Moira McConnell has pointed out, Morgentaler simply transferred control
over women’s reproductive lives from state sanctioned hospital committees to
the medical profession. McConnell writes:
Now physicians may, if they choose to, provide abortion services in a “free mar-
ket.” In terms of gains for women, while this may mean that more services will
become available, to a large extent the constraints on availability will remain the
99MacKinnon uses the abortion funding cases as the basis of a powerful indictment of the gender
bias implicit in the notion of privacy. In “The Male Ideology of Privacy,” supra, note 94 at 32-34,
she writes:
Privacy conceived as a right from public intervention and disclosure is the conceptual
opposite of the relief McRae sought for welfare women. State intervention would have
provided a choice these women did not have in private…. The way the law of privacy
restricts intrusions into intimacy also bars change in control over that intimacy. The
existing distribution of power and resources within the private sphere will be precisely
what the law of privacy exists to protect. … I think it is not coincidence that the very
place (the body), the very relations (heterosexual), the very activities (intercourse and
reproduction), and the very feelings (intimate) that feminism has found central to the
subjection of women form the core of privacy law’s coverage. In this perspective, the
legal concept of privacy can and has shielded the place of battery, marital rape, and
women’s exploited labor, preserved the central institutions whereby women are
deprived of identity, autonomy, control, and self-definition, and protected the primary
activities through which male supremacy is expressed and enforced.
100432 U.S 464 (1977) [hereinafter Maher].
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that is, the real access will still be governed by local morality and funding
same –
decisions.10′
Unlike the impugned legislative decisions in Harris and Maher, the deci-
sions of individual doctors in Canada are far removed from any traditional
notion of state action. Yet to deny that the state is implicated in a continued pat-
tern of limited and difficult access to abortion services is to deny the state’s
privileging of a particular constituency, here a medical elite, in shaping commu-
nity. The state not only acquiesces in its control of abortion services, but also
in its control, in a more general sense, of how we define medical needs. The
re-entry of the state into the “free” market of abortion with the now defunct Bill
C-43 l 2 would have simply formalized and rendered visible state management
of women’s reproductive lives in conjunction with the medical establishment.
The refusal of some doctors to perform abortions in anticipation of being sub-
ject to criminal prosecutions under the new provisions, and the Justice Minis-
try’s attempted reassurance that provincial Attorneys General would never use
their prosecutorial discretion so unwisely, has further exposed the informal link-
ages that underpin the official facade of regulation.’0 3 The women whose lives
are caught and twisted in the spin of legislative, judicial, administrative, and pri-
vate medical decisions are nowhere heard. 4 Again, a shift to the standpoint of
Intl. & Comp. L.Q. 905 at 912.
01M. McConnell, “Abortion and Human Rights: An Important Canadian Decision” (1989) 38
’02Bill C-43, An Act Respecting Abortion, 2d. Sess., 34th Par., 1989-90. The Bill would have
recriminalized abortion except where it “is induced by or under the direction of a medical prac-
titioner who is of the opinion that, if the abortion were not induced, the health or life of the female
person would be likely to be threatened” (supra s. 1). The Bill defined health as including “for
greater certainty, physical, mental and psychological health …” (supra).
Bill C-43 was defeated in Senate on 31 January 1991 by a tied vote. See G. York, “Senators Kill
Abortion Bill with Tied Vote” The [Toronto] Globe & Mail (I February 1991) Al.
103C. McLaren, “MDs and the New Abortion Law” The [Toronto] Globe & Mail (16 June 1990)
D2:
Ottawa insists that doctors’ fears are exaggerated because they misunderstand the law.
It will be “very difficult” to lay charges or win any convictions against doctors under
the wording of Bill C-43, John Maddigan, an aide to Mrs. Campbell, said this week.
The law requires that doctors “form an opinion” about a woman’s state of health, Mr.
Maddigan said. He said it is unlikely that any provincial Attorney-General would per-
mit an individual to lay a frivolous charge against a doctor, because the onus is on that
person to prove that no such opinion had beeen formed.
104N. Pulling, “Doctors’ Commitment Shaken by Abortion Law” The [Toronto] Globe & Mail
(2 July 1990) A5:
Four doctors who perform abortions at the Algoma West Academy of Medecine in
Sault Ste. Marie, Ont., announced last week they will not take any new patients, leaving
Northern Ontario without abortion services. The hospital is now recommending its
patients go to Toronto or northern Michigan …
In the months during which Bill C-43 was debated, women’s groups reported an increase in calls
about abortion from women who were distressed because they were under the impression the pro-
posed law was already in effect. Some groups have linked the death of a woman who died on June
1I, 1990 in an attempt to induce an abortion with a coathanger to Bill C-43. See K. Bolan, “Toronto
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
295
Benhabib’s concrete other brings into the story about rights the story about the
social conditions under which women struggle to shape their lives, rather than
simply portraying it as a story about a notional woman who has no social con-
text of significance other than her interactions with formal and positive expres-
sions of state power.
Chantal Daigle’s story further exposes the embeddedness of state power in
the way in which private relationships are imagined and ordered. Daigle sought
to exercise her post-Morgentaler reproductive freedom on July 4th, 1989 by
making an appointment for an abortion in Sherbrooke, Quebec. She had become
pregnant in the context of a relationship with her companion at the time, Jean-
Guy Tremblay, but had later changed her mind because of his increasingly abu-
sive behaviour. Three days after Daigle made the appointment, Tremblay
obtained a provisional injunction from the Quebec Superior Court preventing
her from going through with it. Upon the expiry of that injunction, Tremblay
obtained an interlocutory injunction which was upheld by the Quebec Court of
Appeal.’ As Tremblay successfully pursued his claim through the court sys-
tem, Daigle’s pregnancy advanced, limiting her choice of abortion procedures
and reducing her chances of a safe abortion. The Supreme Court of Canada, to
its credit, responded swiftly and unambiguously on August 8th by unanimously
overturning the injunction from the Bench on the day of the hearing. It did so
even though it was revealed in the course of the hearing that Daigle had
obtained an abortion, thereby rendering the issue of the injunction moot. As the
Court explained in its reasons, delivered later, it continued the hearing “so that
the situation of women in the position in which Ms. Daigle found herself could
be clarified.”‘ ‘
The ordeal Daigle was put through as the injunction wended its way
through the courts far exceeded anything described in the Morgentaler case as
crossing the boundary of fundamental justice. In this regard, Daigle argued that
“an injunction – which can only be realized through the initiative of a third
party and through a court procedure –
is at least as arbitrary, unpredictable and
time-consuming vis-a-vis a woman’s exercise of her rights as the law struck
down in Morgentaler (No.2).”‘ She also argued that “granting the foetus the
right to life from the moment of conception sets up a potential conflict with the
rights of women to personal dignity, bodily integrity and autonomy expressed
in Morgentaler (No.2) and leads to an inevitable clash with the rights of a
woman’s death blamed on abortion bill,” The Vancouver Sun (19 June 1990) B1, and T. Appleby,
“Botched abortion attempt kills Toronto woman, 20″ The [Toronto] Globe and Mail (13 June 1990)
Al0.
1’0 Tremblay v. Daigle, [1989] R.J.Q. 1980 (S.C.), aff’d [1989] R.J.Q. 1735, 23 Q.A.C. 241,
rev’d [1989] 2 S.C.R. 530, 62 D.L.R. (4th) 634 [hereinafter Daigle cited to D.L.R.].
161bid. at 648.
I71bid. at 647.
McGILL LAW JOURNAL
[Vol. 36
woman who seeks an abortion.” ‘ The legal arguments put forward by Daigle
on the basis of Morgentaler, were an attempt to translate into the language of
constitutional discourse, her simple observation in her affidavit that “Jean-Guy
Tremblay has no reason or interest in the present case except in order to main-
tain his hold on me.”‘” From where Daigle stood, it was quite clear that Trem-
blay was using the courts and the claim of a lawful basis for fetal and paternal
fights to control her. Morgentaler held out the promise that such a deployment
of public power would not be tolerated.
In resolving the case, the Court neatly avoids the issue of the connection
between state power and male private power. It concedes that it is often difficult
to distinguish the claim that fetal rights and father’s rights do not exist at law
from the claim that such rights would violate women’s rights.” However, it
proceeds to do so, asserting the logical priority of the question of whether the
fights exist at all to the question of what effect they have on women.”‘ Further-
more it treats Tremblay’s claim as raising issues largely of statutory interpreta-
tion.1 ‘ The lived reality for women drops out of the picture. In the background
of this analytic move stands the formal distinction between public and private
articulated in Retail, Wholesale & Department Store Union, Local 580 v. Dol-
phin Delivery.”3 In Dolphin Delivery, the Court found that the Charter does not
apply to private litigation divorced completely from any connection with gov-
ernment, and that a court order cannot be viewed as providing the necessary ele-
ment of such a connection.” 4 To the extent that the rights asserted by Tremblay
are based on private law interests, after Dolphin Delivery it is questionable
whether a person in Daigle’s position has any recourse to constitutional protec-
tions.”5 By finding first that there is no basis for fetal or paternal rights in the
Civil Code of Lower Canada or at common law, the Court does not have to deal
‘Ilbid.
‘OIbid. at 637.
11Ibid. at 647.
“‘Ibid. at 648.
” 2For an insightful analysis of the Court’s approach in Daigle see D. Greschner, “Abortion and
Democracy for Women: A Critique of Tremblay v. Daigle” (1990) 35 McGill L.J. 633.
13[1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174 [hereinafter Dolphin Delivery cited to D.L.R.].
“‘lbid. at 196.
115Dolphin Delivery is fairly clear on the point that a claim based on common law rights or enti-
tlements would not be subject to the Charter, although there seems to be a bewildering inconsist-
ency between its unqualified statement that there can be “no doubt” that the Charter does apply
to the common law (ibid. at 190) and its holding that a court order based on a common law claim
in a dispute between private parties is not subject to the Charter (supra at 196). Legislative activity
is suggested as providing the clearest instance of the requisite government action (supra at 198).
Whether this constitutionalizes the entire body of the law governing private relations in Quebec
because of its codification, has not been definitively settled. See R. Tass6, “Application of the
Canadian Charter of Rights and Freedoms” in G. Beaudoin & E. Ratushney, eds, The Canadian
Charter of Rights and Freedoms, 2d ed. (Toronto: Carswell, 1989) 65 at 94 for the view that cons-
titutionalization of Quebec private relations does not necessarily flow from Dolphin Delivery.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
297
with the question of whether Morgentaler applies. Daigle’s perception that the
law and the courts are being used by Tremblay to manage and control her repro-
ductive life becomes invisible. In addition, nothing in the judgment prevents
future legislative action to create fetal or paternal rights. In this way the case is
very like the majority decisions of Dickson C.J. and Beetz J. in Morgentaler.
From the perspective of the interests represented by Daigle, it is as if the Court
were saying that the interests represented by Tremblay have failed to articulate
their control of women with sufficient clarity either in the Quebec Charter of
Human Rights and Freedoms, 6 the Civil Code of Lower Canada or the judicial
development of private rights. No doubt confronted with a clear legislative
articulation of fetal or paternal rights, the courts would find it harder to evade
the issue; s. 7 of the Charter would be clearly implicated by the state action of
the legislature. However, one may ask why the linkage between the state and
Tremblay so clearly perceived and stated by Daigle is so invisible to the Court?
Once again, a shift to the standpoint of the concrete other would dissolve the
formal distinction articulated in Dolphin Delivery between Daigle’s Morgenta-
ler right to bodily integrity and Tremblay’s flagrant attempts to control her
through the language of fetal interests.
V. Conflict and Difference
The criticism that one has simply substituted an inviolable sphere of pri-
vate personality rights for an inviolable sphere of private property rights is war-
ranted, however, to the extent that it focuses on the inevitability of conflict
between the range of viewpoints that make up our communities and on the pres-
sures for conformity and integration with dominant voices that flow from a the-
ory founded on the situated self. It is at this juncture that the premise of a com-
mon set of priorities which underlies the imagery of conversation and dialogue
becomes problematic. If one is going to make one’s starting point the celebra-
tion of difference rather than the presumption of sameness, one has to have a
way of responding to conflict that does not silence difference. Some feminists
have tried to resolve the dilemma of oppression within community by resorting
to values of inclusion and political efficacy. In this section of the essay, I sketch
out that response and similar commitments within Canadian constitutional law.
However, I suggest that any such reconstructive critique must distinguish itself
from similar proceduralist theories within liberalism, and must be accompanied
by a democratization of the judicial institution, not simply in terms of its rep-
resentativeness, but also in terms of the hierarchical ordering of perspectives
within the adjudicative process. Otherwise, the public/private distinction, which
has begun to unravel through the inclusion in rights discourse of a contextua-
lized account of the experiences of oppression, is rewoven into the process
“6R.S.Q. C. C-12.
REVUE DE DROIT DE McGILL
[Vol. 36
through our expectation of obtaining a neutral resolution or a “right answer”
from the courts.
The problems generated by conflicting viewpoints become particularly
important in the feminist critique of communitarianism. Benhabib in particular
takes the communitarians to task, for while they likewise start with a self that
is constituted of rather than threatened by attachments to others and community,
they at times seem to advocate an integrationist solution to the problem of indi-
vidual relations with community.” 7 The total identity of self with community
underlies authoritarianism and social conformism as well as romantic and uto-
pian visions of community. Benhabib points out that in addition, the history of
women’s struggle for liberation has been a struggle to resist the identity of self
with social role.” 8 As an alternative she refers to the strand of communitarian
theory that advocates a participatory rather than integrationist solution to indi-
vidual relations with community. This solution sees the problem of modem
society as one of political efficacy rather than one of loss of solidarity and
belonging.” 9 I would add that it also provides the basis for a different concep-
tion of power, not “the power one holds by virtue of inequality,” but rather the
“ability to move, to have an effect on another person, to elicit a response from
others and to respond to them.”’20 A principle of full and meaningful participa-
tion by persons conceived as relational rather than transcendental subjects in the
argumentative process through which norms are continually revised, presents a
framework for dealing with conflict. As Young points out, it is because one
rejects the possibility of the impartiality of any one perspective, that one has to
include all perspectives in dialogue. 2’ Benhabib suggests the same resolution in
the course of her discussion of the similarities between Rawls and Habermas:
Unless discourse ethics is interpreted as a participatory democratic process on the
part of all those affected, concerned, or influenced by the adoption of a contested
norm, it can only be viewed as one more universalizability theorem in the tradition
of neo-Kantian ethics operating with the myth of a general interest transparent to
all rational minds. 22
Benhabib acknowledges that this approach, although a theory about proce-
dure, presumes a substantive commitment to a principle of participation. 23
However, she differs from other similar procedural theories by leaving such pre-
17S. Benhabib, “Autonomy, Modernity, and Community: An Exchange between Communitar-
ianism and Critical Social Theory” (Delivered at the 1987 Annual Meeting of the American Polit-
ical Science Association) [unpublished]. In analysing communitarian theory, Benhabib singles out
the work of Michael Sandel, Michael Walzer, Charles Taylor, and Alasdair Maclntyre.
118Ibid. See also Benhabib & Cornell, supra, note 29.
” 9Benhabib, ibid.
.2 C. Gilligan in Dubois et al., supra, note 30 at 48.
121Supra, note 57.
122Supra, note 62 at 315.
’23Supra, note 117 at 8.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
299
sumptions about the boundaries of permissible discourse themselves open to
challenge and debate rather than insisting on their logical priority as issues of
justice. This implies an acceptance of social struggle as the location where the
parameters of discourse are determined, tested, and redetermined, as well as an
acceptance of the loss of moral certainty. Furthermore, the parameters of dis-
course remain provisional because our understanding is historically grounded
and can only ever be partial, and because, as Gilligan describes the insight that
comes with moral maturity,”
judgment is contextual.
Both Young and Nitya Duclos similarly develop a framework for the inter-
action of groups that takes account of their ability to participate in concrete
terms in defining themselves and in creating the structures within which they
live. Young describes the politics within which groups positively assert their dif-
ference without implying deviance, exclusion or subordination as the politics of
difference. In her view, such a politics engenders
a conception in which groups do not stand in relation of inside and outside. That
groups define themselves as different does not mean that they have nothing in
common. Groups themselves, moreover, are not unities; every group has group
differences cutting across it. Difference here does not mean opposition and exclu-
sivity, but particularity, specificity, and the impossibility of reducing either social
process or individual subjectivity to unity.12 5
The effect of groups taking power over their own self-definitions is to relativize
the dominant culture, revealing it as “Anglo, European, Protestant, masculine,
straight”‘2 as well as to provide a standpoint from which to ask which norms
are “humanly valuable, and which reinforce the power and privilege of the
groups whose experience they reflect.”‘ 7 By the same token, groups themselves
are not “unities” but rather are intersections of difference. For example, asser-
tions of the inviolability of the family as a community often present the family
as ahistorical and disconnected from the stratification of social life, deflecting
attention from its gendered structure.” Likewise, assertions of cultural inviola-
bility can obstruct an inquiry into the historical experiences of different classes
of members within the larger cultural group. Duclos discusses this latter issue
in the context of the cultural autonomy claims of First Nations in determining
band membership and interventions by First Nations women seeking a resolu-
tion that addresses both sexist membership rules and cultural integrity. She
suggests:
ments” (1987) 56 U. Cin. L. Rev. 535 at 545.
’24Supra, note 24.
125I.M. Young, “Difference and Policy: Some Reflections in the Context of New Social Move-
’26 bid, at 541.
‘271bid. at 542.
’12 For a discussion of the use of the term community to depoliticize and obscure gendered rela-
tions within the family, see M.J. Mossman, “Individualism and Community: Family as a Mediating
Concept” in Hutchinson & Green, eds, supra, note 17, 205.
McGILL LAW JOURNAL
(Vol. 36
A decision that does not speak to them [First Nations women and their children],
one that is not grounded in an appreciation of their moral identity, is a decision
which sacrifices real people to abstractions. This is not to say that the intervenors
should automatically win, nor that courts should always identify the most
oppressed group in a case and simply accede to its arguments. It is only to say that
such groups should no longer be passed over, as has happened often. Rather, they
should become the litmus test by which any new rule is judged. 129
Young and Duclos echo Benhabib’s emphasis on political efficacy and par-
ticipation. Young looks outward at the larger structures that organize our lives.
She sees participation and inclusion “in all of society’s institutions and social
positions, and especially those most highly valued,”‘”3 as the meaning of equal-
ity flowing from current social struggles by women, Blacks, immigrant cultures,
aboriginal peoples, gay men and lesbians, old people, the disabled and other
marginalized groups. Duclos looks inward at the structures which internally
organize the lives within those groups. She writes:
Implying, as I do, that a rule which effectively disadvantages women when advo-
cated by a group in whose management and direction women do not fully partic-
ipate is suspect on sex equality grounds, suggests that I consider a minimum pro-
cedural condition of participation to be a cross-cultural sex equality constant. In
the face of the evidence that sexism permeates all cultures, and that there are
always disputes within a culture about what that culture is or should become, I
believe that some such condition is necessary for a workable (feminist) pluralist
state.
131
The two part structure of s. 7 lends itself to such a solution insofar as the
principle of full participation in social life is a principle of fundamental justice
within the Canadian community and under the Canadian constitution. In other
words, in constructing a claim for reproductive rights, I would suggest an elab-
oration of liberty under the first part of s. 7 in terms of the individual claimant’s
right to determine relationships such as parenting which lie at the heart of indi-
vidual and collective processes of self-understanding through others. This claim
views liberty as founded on connection rather than separation. Nevertheless it
retains the standpoint of the generalized other to the extent that it is a claim
about the nature of community with which others will disagree and which can-
not embrace all of the diverse forms of communal interconnections and relation-
ships. The second stage of the analysis requires a link between the deprivation
of liberty and the violation of a principle of justice. I suggest that the principle
of participation and political efficacy speaks most directly to the particular his-
torical and social circumstances of women’s reproductive lives. In other words,
individuals and groups will disagree on how our communities should be con-
structed and envisioned. However, women’s historical experience of the use of
129Supra, note 96 at 379.
130Supra, note 125 at 550.
‘3’Supra, note 96 at 380 n. 217.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
301
reproductive roles to entrench and legitimate social and economic disadvan-
tagement undermines their participation in the ongoing process of communal
redefinition.
To a certain extent, Wilson J. addresses this point in Morgentaler when she
suggests that for women self-determination is a struggle for inclusion in society,
rather than exclusion of the state, and on terms that reject definition on the basis
of a special role or biology. 3 She goes on to suggest that control of the decision
to reproduce or not reproduce is integral to women’s struggle to gain entry into
a man’s world on a footing of equality. What I would propose is that these sorts
of considerations would more properly flow from the second part of s. V
Similarly, Dickson C.J.’s view in Morgentaler that it is procedurally unfair
to create a defence to a criminal charge without taking account of the emotional
and financial burdens imposed on the accused in trying to make out that
defence, can be read as addressing the substantive barriers to women’s full par-
ticipation in social life from the perspective of the concrete other. In particular,
Dickson C.J. alluded to the long distances women have to travel, the delays, and
the uncertainty of outcome when dealing with the decentralized system of com-
mittee approval under the Criminal Code sections controlling access to abor-
tion. While Dickson C.J. asserted that those burdens are the result of state action
in the form of an unwieldy and inefficient administrative structure, that it is “the
law itself”‘3” that skews the process, his analysis took into account the complex-
ities of the context in which the law operates –
the geographic and demo-
graphic factors, the strains on personal resources, the inequalities in public
resources, and the psychological and physical stress associated with a decision
in which time is crucial. This is a notion of fairness that is substantive, not in
the sense that it mandates a particular outcome, but in the sense that it considers
the actual and material conditions of participation in process. In addition, it pre-
supposes an entirely different notion of state action and of the role of rights.
Rights in this scheme are about the intersection of state power with the social
conditions of inequality rather than about the boundary between state power and
those conditions. Indeed, the boundary begins to dissolve into the detailed expo-
sition of the actual barriers to access.
Patrick Monahan has linked a similar theory of judicial review based on
participation and the integrity of democratic principles to the two strands of the
collectivist tradition, tory and socialist, in Canadian political culture. 135 In his
132Supra, note 1 at 172.
133An “equality before the law” argument was made under the principles of fundamental justice
in R. v. Cornell, [1988] 1 S.C.R. 461, 40 C.C.C. (3d) 385 [hereinafter cited to S.C.R.], but rejected
by Le Dain J. because he viewed it as an attempt to get around the delay in proclaiming s. 15 of
the Charter (supra at 477-78).
134Supra, note I at 71.
135Monahan, supra, note 72.
REVUE DE DROIT DE McGILL
[Vol. 36
view, while Canada in general shares the liberal ideology of the United States
with its emphasis on individualist values, Canada must develop a constitutional
theory which is responsive to the unique preoccupations of Canadian history
and culture, and in particular to the different, more benign view of the state
which flows from the collectivist vision. In addition, in a way that is reminiscent
of Benhabib, Monahan relates the values of democratic participation to the val-
ues of community:
On the procedural theory, communities are not mere aggregations of private inter-
ests. The rightholder is identified, in an important if not exclusive sense, by his
membership in a community. Democratic debate and dialogue is valued not
because it will necessarily yield right answers to issues of political morality, but
at least partly because it is a necessary feature of a community developing its own
identity.
3 6
While this view of participation as the mediating principle in communal life
may have little to do with the elitist and hierarchical communities that have
dominated Canadian politics and history, it nevertheless provides a bridge
between that history and the commitments both to group perspectives and to lib-
eralism in the Charter.
Monahan acknowledges his debt to John Hart Ely’s “participation-oriented
representation-reinforcing” model of judicial review,’37 but claims to avoid the
incoherence of Ely’s distinction between substantive considerations and proce-
dural values. In Monahan’s scheme, substantive determinations would inevita-
bly be involved in judicial decision making under the Charter. He answers the
concerns about arbitrary and unaccountable judicial power by arguing that there
is a fundamental difference between instructing a court to attend to the demo-
cratic integrity of decisionmaking processes rather than to the rightness of the
decisions that issue from those processes. However, by placing his theory within
the existing process/substance debate, he is perpetuating an opposition that will
ultimately be subversive of his claim of legitimating judicial intervention. The
textual emphasis in the Charter on collectivist values and on the equality of
individuals within groups and society, requires a resolution that goes beyond the
proceduralist theories of liberalism in much the way that the commitment to the
situated vision of the self and to empowerment within feminism requires a res-
olution that challenges the inevitability of the opposition between the individual
and community. The process/substance dichotomy is an attempt to protect
against the individual preferences and partial understandings of judges. By tai-
loring judicial intervention to matters of process, the hope is that judges will not
be privileged actors in the articulation of our substantive commitments. How-
ever, critics of Ely’s theory point out that the dichotomy cannot be successfully
136Ibid. at 140.
37 bid. at 138. J.H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge:
Harvard University Press, 1980).
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
303
maintained. As Brest has written, “most instances of representation-reinforcing
review demand value judgments not different in kind or scope from the funda-
mental values sort.”‘ 38 His observations have a parallel in the feminist critique
of abstract universality –
that it inevitably is founded on particularity and
cloaks the experiential aspect of understanding. Monahan implicitly reinstates
those formal dichotomies as an answer to the anti-democratic nature of judicial
power.
The premises of feminism render incoherent the use of the process/
substance dichotomy as protection against the individual and class preferences
of others. The fact that substantive values underlie the structures that control our
social relations is the starting point of the complex conversations of legal dis-
course, not its nemesis.’39 The judicial structure is no exception. Thus the first
step must be to redesign judicial institutions so that they reflect in concrete
terms the contingency and partiality of judicial articulations of the law. I do not
intend in this paper to embark on such a project. Instead, I limit myself to a few
observations about relationships within the courtroom as a beginning for the
larger project of reconstruction.
If one rejects the use of process and formalism to constrain judicial power,
then the concem becomes ensuring that the socio-structural relations between
judges, claimants, defendents, intervenors, and witnesses, and the links between
process and power in the courtroom become a part of the judicial discussion
about rights. By socio-structural relations I mean each person’s location within
an historically and socially contingent vision of what our interests and priorities
as a community are and of how life in that community is experienced. At first
glance, this assertion does not seem inconsistent with legal practices. Lawyers
are adept at using procedural challenges to achieve substantive outcomes. How-
ever, the ethos of professionalism, in combination with legal liberalism’s com-
mitment to judicial neutrality, usually preclude extending courtroom delibera-
tions to an examination of how the court’s own placement within a specific
cultural, historical, gendered and class-determined perspective interacts with the
138P. Brest, “The Substance of Process” (1981) 42 Ohio St. L.J. 131 at 131.
139Nedelsky makes a related point when she singles out for criticism the reduction of the concept
of autonomy to matters of process and, as well, the attempts to found constitutional theory on val-
ues of democracy and participation. She uses the example of a legislative regime designed to
involve parents in educational decisions concerning their handicapped children. In most school dis-
tricts, observance of the procedures for parental involvement was perfunctory and meaningless.
Parents found themselves in a relationship that fostered subordination and powerlessness. In the
one school district where parents’ experience of the scheme was positive, success was a function
of many different factors including a commitment to parental input by school officials, a generally
held view that disagreement can be constructive and creative, an effort by officials to redress the
power imbalance stemming from parents’ comparative lack of resources and information, a recog-
nition that an ongoing relationship must be sustained between parents, school and child, and a long
history within the community of citizen involvement (supra, note 17 at 243-52).
McGILL LAW JOURNAL
[Vol. 36
other viewpoints involved. Such a focus would be considered inappropriate, if
not actually in contempt. It remains separated from the courtroom’s traditional
focus on the particular dispute, relegated to the sphere of critical scholarship. 4
Studies for institutional reform usually articulate any problems in terms of
patronage in the appointment and selection process and look to better proce-
dures as a solution. While this is important, it again looks to process and reason
to restore fairness and as well promises neutrality. 4 ‘ Even calls for a diversified
bench to incorporate more and varied perspectives ultimately hide the substan-
tive issue behind a procedural solution. 42 A meaningful reform in feminist
terms would have to address the privileging of the ideological content of the
judges’ perspectives. To do so would not simply change the limits on what is
relevant to or permissable in rights discourse. It would also realign the relation-
ships between the participants in the courtroom. The relationships would remain
hierarchical in the sense that the judge alone can wield state power to ultimately
enforce one view of the dispute rather than another. However, the effect of doing
so would no longer be presented as an impartial resolution in accordance with
rational principles, leaving other views outside the law as well as outside reason.
Strategies would not be directed at convincing judges that their rationality can
accomodate, through analogy and synthesis, the petitioner’s claims. Rather they
would proceed on the basis that there are different rationalities from which to
view the dispute, and that the judge’s rationality is neither neutral nor superior.
To the extent that this represents a fundamental change in litigants’ expectations
of adjudication, the pressure on judges to couch their decisions in the language
of abstract universality would radically diminish. The task of adjudication
would require the skills of listening, empathy and imagination, rather than
deductive reasoning. Where different socio-structural locations create a divide
between participants which cannot be bridged by a sympathy which is based on
sameness and self-recognition, the collective dimension of the dispute would be
central to its resolution. For example, in a dispute over marital property or child
custody between members of a heterosexual couple, the overlap between gender
14See, e.g., C. Boyle & S. Rowley, “Sexual Assault and Family Violence: Reflections on Bias”
in S. Mahoney & K. Martin, eds, Equality and Judicial Neutrality (Toronto: Carswell, 1987) 312.
141See, e.g., Canadian Bar Association, The Appointment of Judges in Canada (Ottawa: Cana-
dian Bar Association, 1985), and Canadian Association of Law Teachers, Judicial Selection in
Canada: Discussion Papers and Reports (Toronto: Canadian Association of Law Teachers, 1987).
142Again, with regard to gender bias, I do not mean to suggest that it is not important to appoint
more women judges. Rather, my suggestion is that having more women judges will not go far
enough. The percentage of federally appointed women judges ranges from a high of 10.7% in Brit-
ish Columbia to a low of 0% in the Northwest Territories, the Yukon and Prince Edward Island
(Manitoba Association of Women and the Law, Gender Equality in the Courts (Winnipeg: Man-
itoba Association of Women and the Law, 1988) at 25). The Manitoba Report recognizes the prob-
lem of the ideological stance of the judiciary and goes on to address the problem of judicial atti-
tudes in its analysis of family law decisions and personal injury awards (supra at 40-161). See also
B. Wilson, “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall L.J. 507.
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
305
and hierarchy within family and economic relations would provide the frame-
work for discussion, and the intersection of gender and power within the court-
room or settlement process the preliminary issue. Intersections of race, class,
ethnicity and the experiences of other social groups would be subject to the
same examination. Judges would be required to be reasonable in Young’s sense
of “giving reasons.” ” However, judging would also entail “episodes of unde-
cidability, self-judgment, and uncertainty … acknowledging the imperative of
admitting mistakes and recognizing ignorance.”‘”
In summary, I would suggest that reproductive choices are fundamental to
self-understanding and that such choices lie at the heart of a notion of liberty
that views the individual as part of a multiplicity of attachments and relation-
ships. Secondly, in shifting viewpoint from a generalized claim about individual
relationships within community to a concrete claim about the situation of
women under the second part of s. 7, I would suggest that legislation that cri-
minalizes abortion reinforces the substantive and structural barriers to women’s
full participation in Canadian social and political life and to their ability to
effectively share in the privileges and responsibilities of that life. As our atten-
tion has been directed to other components of the legal system as a source of
fundamental justice,’45 I would argue that the principle of full participation for
women flows from the Charter’s commitment to sexual equality in s. 15(1),'”
the recognition of group disadvantagement based on sex as a social fact and
constitutional harm in s. 15(2),”47 the guarantee of rights equally to male and
143Supra, note 57.
144Turpel, supra, note 82 at 45. Turpel is writing in the context of the cultural differences that
divide First Nations cultures and white culture. In the passage I have quoted from, she writes that
if we are to recognize autonomous or incommensurable communities within a single state, then we
will be forced
to question the cultural legitimacy and authority of the judiciary as an institution com-
petent to choose between and among varying cultural images. For a judge, a situation
of cultural difference should be and must be a situation of not knowing which direction
to go, a situation involving choices about reasoning which may not be defensible or
acceptable. It involves episodes of undecidability, self-judgment, and uncertainty. It
would involve acknowledging the imperative of admitting mistakes and recognizing
ignorance (supra).
145See Reference re S. 94(2) of Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486 at 503, 24 D.L.R.
(4th) 536.
146S. 15(1) states:
Every individual is equal before and under the law and has the right to the equal pro-
tection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
147S. 15(2) states:
Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that
are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability.
REVUE DE DROIT DE McGILL
[Vol. 36
female persons in s. 28,148 and the mandate given to all levels of government in
s. 36(1)(a) of the Constitution Act, 1982 to promote equal opportunity.’49 Finally,
I would suggest that any reconception of rights in accordance with feminist
premises would have to be accompanied by a reorganization of the relationships
within the courtroom as well as a reconception of what judges do and how they
do it.
Conclusion
In this essay I have attempted to outline the ways in which liberty can be
reconceived to accord with some of the psychological and philosophical prem-
ises of feminist writings. Because the language of liberty rights is the language
in which Western culture discusses theories of the state, such a reconception
entails a different view of the state, one in which state power is the mediator and
facilitator of rights rather than antithetical to freedom. Rights are no longer
abstractly defined spheres of non-interference but rather are contingent on sit-
uation and relationship. The individualist stance in the sense of individual
agency in determining relations and attachment is preserved. However, the shift
in the view of the self as embedded in social relations rather than abstract and
unencumbered, demands that particular and “private” experiences of disempow-
erment within the inviolable spheres of classical legal consciousness and at the
hands of private power, be given relevance in the determination of rights. Fur-
thermore, the inevitability of conflict between individual and collective priori-
ties can be resolved in terms of enhancing the political efficacy of individuals
and groups within community. Thus the language of rights becomes the lan-
guage of democratic interrelationships rather than the language of separation
and boundaries. Because the discourse about rights is contextualized, demo-
cratic interrelationships must be conceived of as provisional and in substantive
rather than procedural terms. The resort to proceduralist theories to preserve
fairness and neutrality is incoherent once the political content of liberal episte-
mologies is exposed. In addition, judicial structures must be transformed to
reflect the contingency and partiality of the judicial perspective.
S. 7 of the Charter, as well as the collectivist themes of Canadian consti-
tutional discourse generally, can be claimed by women and expanded upon in
furtherance of such an analysis. The two part structure of s. 7 provides a frame-
148S. 28 states: “Notwithstanding anything in this Charter, the rights and freedoms referred to
in it are guaranteed equally to male and female persons.”
I49S. 36(1)(a) states:
Without altering the legislative authority of Parliament or of the provincial legislatures,
or the rights of any of them with respect to the exercise of their legislative authority,
Parliament and the legislatures, together with the government of Canada and the pro-
vincial governments, are committed to (a) promoting equal opportunities for the well-
being of Canadians …
1991]
RELATIONSHIP, PARTICULARITY, AND CHANGE
307
work for a discussion of a revised notion of liberty under the first part, and of
the link between the deprivation of that interest and the disempowerment of
individuals within community life in the second part. Thus a claim for reproduc-
tive control is a claim to determine one’s relations to specific others, to children,
to parents, and to a specific community, as an aspect of liberty. Furthermore, to
constrain self-determination in this regard is to exclude women from full polit-
ical, social, and economic participation within a society that is structured around
the male experience of reproduction. The commitment to equal participation
recurs throughout the Canadian constitutional framework, and thus is a principle
of fundamental justice central to the Canadian community.
One may ask why not start with equality. One can answer on two levels.
On a theoretical level, reproductive rights are at least in part about women’s
self-determination and about protecting the individual’s capacity for growth
through determining one’s social dimension and one’s relationships. On a prac-
tical level, it may be easier both to make out the equality claim and to rebut the
reasonableness of the limit on rights under s. 1 once one has fully articulated the
nature of women’s interest in reproductive control. More importantly, however,
a re-examination of liberty provides the starting point for developing a feminist
theory of the state, thereby giving transformative power to the feminist vision
and restoring hope to a discourse that seems trapped between an insupportable
claim to objectivity and the despair of nihilism.
