Feminism, Institutional Roles and Justice LeBel's Family Law
in Dwight Newman & Malcolm Thorburn, eds., The Dignity of Law: The Legacy of Justice Louis LeBel (Markham, ON: LexisNexis, 2015) 71-91.
22 Pages Posted: 14 Jan 2015 Last revised: 4 Oct 2015
Date Written: January 12, 2015
From a particular feminist perspective, Justice LeBel’s judgments in family law are puzzling. He authored several dissents that appear to advance a feminist position. In his final family appeal, however, in which he wrote the principal judgment rejecting the Charter challenge to Quebec’s legislative policy regarding unmarried cohabitants, he came down soundly against mainstream feminist wisdom in the common-law provinces. Addressing this puzzle, this paper suggests that LeBel J.’s judgments represent a particular institutionalist perspective. This perspective prioritizes the legislature as source of law reform and inclines against using the Charter to effect fundamental change. It derives from an understanding of the civil law tradition in Quebec and finds support in that province’s record of family law reform. Associating LeBel J. with this view of the respective roles of legislature and judiciary reduces the tension that his output in family law generates. Beyond that, the paper is a reminder of the complexity of family law in the Canadian federation, which involves multiple legal traditions and multiple feminisms, and of the importance of attending to first-order and second-order factors when reading judgments.
Keywords: family law, feminism, civil law, judicial role, Quebec v. A., marriage
JEL Classification: K19
Suggested Citation: Suggested Citation