Particular Justice: Michel Bastarache and Family Law
McGill University - Faculty of Law
July 14, 2010
AT THE FOREFRONT OF DUALITY: ESSAYS IN HONOUR OF MICHEL BASTARACHE, pp. 117-141, Nicolas Lambert, ed., Yvon Blais, 2011
This paper studies Michel Bastarache’s judgments in family law, specifically those appeals concerning parents and children. These judgments reveal comfort with the complexity of contemporary family life, notably through reliance on multi-factored, contextual analysis. They also show a commitment to individualized family justice as determined by trial judges, as well as sensitivity to the duty to respect the design choices of the legislative drafter. Scholarly criticisms that the Supreme Court, in Justice Bastarache’s family decisions, abdicated a leadership role by deferring too much to trial judges misunderstand his vision of judging. Moreover, such criticisms rest on unexamined assumptions about the character of legitimate judicial guidance in the family field. Justice Bastarache’s family judgments can be read as setting out broad moral guidelines, exemplifying what some scholars identify as the expressive function of contemporary law. In his refusal to squeeze child support into a single conceptual framework, Justice Bastarache shows a Fullerian commitment to pursuing a legal regime’s complex purposes. He emerges from his family judgments as a pragmatic judge, conscious of the limited capacity of rules to regulate the unruliness of family life, and confident in the necessity of individualized adjudication.
Number of Pages in PDF File: 33
Keywords: Bastarache, Family Law, Judicial Deference, Discretion, Morality, Judicial Guidance
JEL Classification: K10, K19Accepted Paper Series
Date posted: September 15, 2010 ; Last revised: June 10, 2011
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