Legal reasoning in the Supreme Court of Canada: An empirical study.

摘要

Jurisprudence has been notoriously feeble in supporting its philosophical analysis with empirical research. This dissertation makes an initial effort to remedy this deficiency in regard to courts' use of legal reasoning. Systematic sampling of the reasons for judgment rendered by the Supreme Court of Canada provided the basis on which to test several theories of legal reasoning and to document trends in the jurisprudence of the Court.; The Court's jurisprudence is trending towards more expansive and transparent modes of legal reasoning. Part of this trend is a rise in the rate of the overruling of precedents by the Court. While some overruling is necessary to bring the law into line with changing social circumstances, it may be necessary to control this rising rate in order to avoid unnecessarily increasing uncertainty in the law or impairing the efficacy of the legal process. Another strand of this expansive trend involves an increase in constitutional review and other activist tendencies. Under certain circumstances, this increase could disturb Canada's constitutional framework or imperil the Court's legitimacy.; Autonomous legal reasoning may provide one way of constraining and, where appropriate, legitimizing changes to the law and other activism by the Court. Failure to nurture and abide by objective legal reasoning will have the opposite effect. While Hartian positivism continues to be the predominant paradigm with respect to adjudication in Canada, the data indicate robust and persistent trends towards the utilization of principle and non-foundational reasoning by the Supreme Court of Canada.