Between Principle and Pragmatism: The Decline of Principled Reasoning in the Jurisprudence of the McLachlin Court

Abstract

This paper explains what principled reasoning is, and how it can be used to ensure judicial impartiality.It does so by analyzing and criticizing the reasoning of recent jurisprudence of the Supreme Court of Canada during the tenure of Chief Justice Beverley McLachlin, including recent cases such as Sauve v. Canada (Chief Electoral Officer), Alberta v. Hjutterian Brethren of Wilson Colony, R. v. Orbanski, R. v. Elias, and R. v. Clayton. The theoretical portion of the paper draws on the theories of judgment of Immanuel Kant, Hannah Arendt, Jurgen Habermas, Ronald Dworkin and Emmanuel Levinas.

The main theoretical argument of the paper is that the use of principled reasoning is essential for ensuring judicial impartiality. When courts engage in such reasoning, they show that they have taken into account the views of all those affected by a decision, and they are forced to criticize their own biases and assumptions by the requirement to formulate their arguments in terms that are acceptable in the public forum. Also, by practicing principled judgment, courts develop the habit of judging impartially by taking into account the diverse perspectives of the community.

Keywords: theories of judgment, judicial impartiality, legal theory, supreme court of canada, kant, arendt, levinas, habermas, dworkin

JEL Classification: K10