What Humility Isn’t: Responsibility and the Judicial Role

“What Humility Isn’t: Responsibility and the Judicial Role” in Daniel Jutras and Marcus Moore, eds., The Chief: Essays in Honor of Chief Justice Beverley McLachlin (Forthcoming)

28 Pages Posted: 14 Nov 2018

See all articles by Benjamin L. Berger

Benjamin L. Berger

York University - Osgoode Hall Law School

Date Written: 2018

Abstract

In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice jurisprudence that reflect elements of this understanding of the virtue of judicial humility, including careful attention to one’s responsibilities in relationship to vulnerability, history, and the role of others. Not an exercise in hagiography, the chapter also identifies one aspect of the McLachlin Court’s criminal justice jurisprudence — police powers — that fails to express this virtue, so understood. Ultimately, however, the piece argues that Chief Justice McLachlin’s work in the field of criminal law offers an invaluable ethical resource for thinking more deeply about the shape and demands of humility as an adjudicative virtue.

Keywords: humility, virtues, constitutional law, criminal law, police powers, evidence, Supreme Court of Canada

Suggested Citation

Berger, Benjamin L., What Humility Isn’t: Responsibility and the Judicial Role (2018). “What Humility Isn’t: Responsibility and the Judicial Role” in Daniel Jutras and Marcus Moore, eds., The Chief: Essays in Honor of Chief Justice Beverley McLachlin (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3269547

Benjamin L. Berger (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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