Efficiency or Autonomy? Economic and Feminist Legal Theory in the Context of Sexual Assault

Renu Mandhane

ABSTRACT

There are two discernable trends in contemporary legal theory: the backlash against feminist legal analysis and the relative expansion of the law and economics movement. Given these trends, this article considers the more general question of whether the theoretical justification given for a particular legal rule has any independent significance. In reaching the conclusion that theoretical justifications are indeed very important, the author focuses on the rules relating to consent in cases of sexual assault. In particular, the consent rules articulated by the Supreme Court of Canada in R. v. Ewanchuk are analyzed from both an economic and feminist perspective in order to determine the propriety of such analyses. The author suggests that the feminist perspective must be adopted when arguing in support of the Ewanchuk consent rules and that the economic perspective is particularly unsuited to the analysis of sexual assault. More broadly, the author argues that since theoretical justifications are significant in and of themselves, feminists must be cautious about abandoning their particular modes of reasoning, while economists should recognize the limitations of their analyses.

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Citation: (2001) 59(2) U.T. Fac. L. Rev 173.
Copyright © 2001. University of Toronto Faculty of Law Review.
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