The "Lavalee" Ruling

Paper Summary:

This essay will argue that this admission of social theory as expert testimony opens the door to an unprecedented degree of subjectivity in legal judgement. While it must be acknowledged that all expert testimony is, to some degree, subjective and open to interpretation and debate, the admission of feminist social theory as expert testimony lowers the bar considerably in terms of standards of evidence. Through an analysis of Mackinnon and Minow, it will be argued that this challenge to the concept of legal neutrality of the liberal state would, when taken to its logical conclusion, permit any number of groups who have historically been persecuted in Western society (Blacks, Aboriginals etc) to claim the right to preemptive self-defense. Building upon this argument, it will be demonstrated - in the course of an analysis of the Lavalee ruling - that this approach to the law is fundamentally flawed. While it is acknowledged that it may seem arrogant on the part of an undergraduate to challenge a ruling of the Supreme Court of Canada, I will nonetheless argue that the Court may have been influenced more by political power of an increasingly influential social group than by a rational analysis of the facts in the case. As the editors' "reading questions" at the end of the Lavalee ruling suggest, the Supreme Court's logic is clearly applicable to individuals in other social situations who have a clear and reasonable expectation of imminent violence. However, none of these individuals are granted the "license to kill" that the Supreme Court has established for women in this situation.

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