Published In

Supreme Court Law Review

Document Type

Article

Publication Date

2018

Subjects

judge, judging, adjudication, judicial, approach, methodology, consensus, accommodation, reconciliation, balancing, compromise, interpretation, McLachlin, Chief Justice of Canada, Supreme Court, Canada

Abstract

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit of harmonious resolution of legal problems. After noting the pervasive association of the concept of harmony with the just order in many cultures across the world and over history, the article explains how harmony can be used, complementarily with legal rules, as an aim in adjudication. As a relationship among elements of a system and the whole that they comprise, it offers a way of leveraging accepted legal principles and their aim of just order in order to address the insufficiencies of the rules that reveal themselves through legal disputes. In search of that relationship, harmony necessarily engages process, committing the judge to working out how to give collective effect to the multiple legitimate considerations invoked by the problem, and thus resolve the legal system-disharmony revealed by a case. Striving for consensus, accommodation, and reconciliation are among such methods often said to be favoured by McLachlin CJC over alternatives that perceive problems through the simplistic lens of either-or-type conflicts. The article surveys how Chief Justice McLachlin’s work characteristically evinces this quality of pursuing justice as harmony. Based on McLachlin CJC’s remarkable success, as well as novel social conditions arising contemporaneously with her career, the article concludes by asking whether this approach may hold wider promise.

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