Description

"The hungry judges soon the sentence sign And wretches hang that jurymen may dine."— Alexander Pope, Rape of the Lock; Canto III, L1. 21-22

This acidic observation is the cynical answer to what remains one of the great mysteries of the law: how do judges arrive at their decisions? The impression of many is that the courts do whatever they wish to do with cases that come before them.

Some criticize "judicial imperialism," "government by the judiciary," and even judicial "dictatorship." Judges have certainly been given additional powers by our new Charter of Rights and Freedoms, but is the legal system out of control? This book explains the forms of reasoning judges use when deciding how the law applies in particular cases.

Table of Contents

Preface / Forewords: The Honourable John Sopinka / Honourable Mr. Justice Allen M. Linden
SECTION 1: THE JUDICIAL MANDATE

• Judicial Tyranny of Endangered Institution

• The Cynical View

• Going Beyond the Words and Case Law

• Inevitable Judicial Choice

• The Judiciary's Achilles Heel

• Undermining the Judiciary

• Usurping Legislative Powers

• Rules of Application

• Structure and Nature of Judicial Arguments

• Secondary Rules of Application

• Argument Validation

• Argument Verification

• Argument Weight

• Role of Secondary Rules of Application

• Controlled Judgment

• Controversial Applications of Law

• Discretion v. Controlled Judgment

• Disputed Grounds for a Decision

• Disputed Conclusions

• Disputed Rules for Decision Making

SECTION 2: MODES OF JUDICIAL REASONING

• Reasoning from Interpretive Guidelines
• The Nature of Interpreting Laws
• Authorized Interpretation v. Ordinary Communication
• Rules and Rule Formulations
• Rules for Interpreting Law
• Basic Interpretive Approaches
• Minor Interpretive Rules
• Judicial Discretion and Interpretive Guidelines
• Conflicting Minor Rules
• Inconclusive Direction
• Shifting Basic Rules
• Reasoning from Prior Cases
• The Nature of Reasoning from Prior Cases
• Rules for Reasoning from Prior Cases
• Determining the Ratio
• Establishing Analogous Cases
• Ascertaining the Authority of Relevant Cases
• Judicial Discretion and Reasoning from Prior Cases
• Difficulties in Determining the Ratio
• Inadequacies in Analogous Reasoning
• Reasoning from Prior Cases as Law Making
• Reasoning from Principle
• The Nature of Reasoning from Principle
• Rules for Reasoning from Principle
• Consistency with Fundamental Principles
• Consequences for All Parties
• Consequences in New Cases
• Consequences for Repeated Instances
• Judicial Discretion and Reasoning from Principle
• Legally Embedded Standards
• Disputed Legal Standards
• Dworkin's Account of Principled Reasoning
• Appeals to Extra-legal Principles
• Overall Coherence

SECTION 3: JUDICIAL REASONING APPLIED

• Case Study: Riggs v. Palmer

• Overview of the Arguments

• Majority Arguments

• Dissenting Arguments

• Commentary

• Rival Accounts

• Dworkin's Account

• Coval and Smith's Account

• The Actual Opinions

• Justice Earl

• Justice Gray

• Case Study: Davis v. Johnson

• Background

• Overview of the Arguments

• The Rejection Position

• The Modification Position

• The Received Position

• Commentary

• Court of Appeal Opinions

• Master of the Rolls Lord Denning

• Sir George Baker

• Lord Justice Goff

• Lord Justice Shaw

• Lord Justice Cumming-Bruce

• House of Lords Opinions

• Lord Diplock

• Lord Salmon

• Selected Judicial Opinions

• Reasoning from Interpretive Guidelines

• Royal College of Nursing: Court of Appeal Decision

• Royal College of Nursing: House of Lords Decision

• Reasoning from Prior Cases

• Donoghue v. Stevenson

• Reasoning from Principle

• Morgentaler v. The Queen

SECTION 4: REFERENCES

• Notes
• Study Questions
• Table of Cases
• Bibliography
• Index