Thursday Thinkpiece: When Canadian Courts Cite the Major Philosophers–Who Cites Whom in Canadian Caselaw

• Author: Administrator
• Date: February 21, 2019

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When Canadian Courts Cite the Major Philosophers: Who Cites Whom in Canadian Caselaw

Queen’s University Legal Research Paper No. 2017-090; CLLR 42:2

Nancy McCormack is an Associate Professor and Law Librarian at Queen’s University. She has authored and co-authored numerous books including the How to Understand Statutes and Regulations, Annotated Federal Interpretation Act, The Practical Guide to Canadian Legal Research, Introduction to the Law and Legal System of Canada, and Updating Statutes and Regulations for all Canadian Jurisdictions.

Excerpt: Abstract, Introduction, highlights from Discussion, and Conclusion

Abstract

This paper discusses the results of a search of Canadian case law from 1860 to 2016 to determine which major philosophers (born before 1900) were cited most and least often (or never), as well as which judges and courts cited them. The survey indicates that judges from every level of the Canadian courts have, over the years, made explicit references to major philosophic figures in their decisions. Many of the citations deal with eminently practical matters, but the courts have also thought it beneficial to call upon the philosophers for a variety of more strictly “philosophic” notions, for example, Thomas Aquinas on the doctrine of free will, and Bertrand Russell on logical constructions. Who cites whom and in what context and jurisdiction is set out in detail.

You can’t do without philosophy, since everything has its hidden meaning which we must know.
Maxim Gorky

There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals.
Benjamin N. Cardozo

Introduction

Professor of Jurisprudence, Brian Leiter,[1] argues that even though economics, psychology, and history play a large role in the study of law today, philosophy has been an integral part of the academic discipline for a much longer time. At the University of Chicago where Leiter works, for example, a course on “Jurisprudence” (the philosophy of law) was amongst the small group of courses offered in the year the university’s law school opened more than a century ago. Leiter also notes that, during the 1930s, the University of Chicago hired, as one of its new faculty members, a PhD in Philosophy even though he lacked a degree in law. Clearly, the implication was that someone well versed in Philosophy could, even without legal training, find his way in the discipline of law.

To anyone for whom the centrality of philosophy to law might seem puzzling, Leiter explains,

Law is, first and foremost, a discursive discipline: lawyers and judges live in the domain of reasons and meanings. We interpret statutes and cases, articulate rules to guide behavior, and then argue about their import in particular cases. Judges write opinions, in which they give reasons for their conclusions. Lawyers offer arguments to persuade judges. Even lawyers who never argue cases in court still deal continuously with rules, their meanings and entailments.[2]

Law’s key teaching method–“the Socratic method”–has, of course, its origins in philosophy. Leiter notes, too, that Jurisprudence is a mandatory course for law students at Oxford and certain other British law schools as well as for most students studying Law in Europe and South America. In the U.S., at the University of Chicago, 10% of the first year class in 2015 either majored in Philosophy or had an advanced degree in the discipline.[3] Law professors across the U.S. have discussed the idea of making the subject a mandatory course.[4] Also, a number of legal journals [5] are devoted exclusively to publishing scholarly articles on the subject of law and philosophy.

The affinities between the two, says Leiter, are deep. Both disciplines are about thinking (although some claim that philosophy involves thinking in slow motion while lawyering is thinking at top speed). Law has developed in large part due to philosophical inquiry, and the study of philosophy remains just as relevant today. As Leiter explains, his students, over decades of teaching have found jurisprudence to be “one of the most ‘practical’ of courses, not because it taught them legal rules, but because it helped them understand legal reasoning and how judges decide cases, as well as bringing out into the open the implicit jurisprudential premises of both jurists and scholars.”[6]

In Canada, this connection between philosophy and law is borne out by the biographies of certain adjudicators. Supreme Court Justice William R. McIntyre, for example, was said to have been profoundly influenced by a jurisprudence course he took while studying law at Saskatchewan. The course in question covered the history of Western legal thought and philosophers such as Plato, Aquinas, Hobbes, and Mill. It gave McIntyre a life-long interest in the subject in general and a particular fondness for Kant’s Critique of Pure Reason.[7]

Given this deep affinity between philosophy and law, one might expect to see explicit references to the major philosophers in the decisions written by judges.[8] This study discusses the extent to which this is true. It looks at which philosophers are cited by the courts, the specific judges who cite them most, and the context in which they are cited. The results of the study indicate that the ideas and language of many of the major philosophers appear in caselaw at every level in the Canadian courts. However, the philosophers referred to most frequently, and the contexts in which they arise may surprise some readers.

…

Discussion

Areas of Law in which Philosophers are Cited

In Law’s Empire, Ronald Dworkin writes that in “constitutional theory philosophy is closer to the surface of the argument, and, if the theory is good, explicit in it.” In Canada, Southin J. in the British Columbia Supreme Court noted in 1986 that “the proclamation of the Charter [of Rights and Freedoms] by a process worthy of an alchemist, has transformed judges from lawyers into philosopher kings…”[21] In light of these views, one might expect that the explicit mention of philosophers would occur most frequently in the context of constitutional law.

What this study indicates, however, is that judges cited philosophers most often in criminal cases,[22] and only secondly in constitutional law cases.[23] Quantitatively, the third largest category was in “Civil Practice and Procedure”.[24] To assess the area of law for each case, the main subject heading assigned to each case by Carswell was used.

Major Philosophers Most Often Cited

…it is not for the judiciary to permit the doctrine of utilitarianism to be used as a makeweight in the scales of justice…
Stephens v. Richmond Hill (Village), [1955] 4 D.L.R. 572, [1955] O.R. 806 (Ont. HCJ)

In Canadian case law, two Modern philosophers–specifically, two Utilitarians–John Stuart Mill and Jeremy Bentham, are overwhelmingly the most cited.

…

Major Philosophers rarely or never cited

Heraclitus, Parmenides, Empedocles, Anaxagoras, Protagoras, Epicurus, Zeno of Citium, Plotinus, Epictetus, Gregory the Great, John the Scot, Avicenna, Averroes, Roger Bacon, John Calvin, Baruch Spinoza, George Berkeley, Henri Bergson, Alfred North Whitehead and Søren Kierkegaard, all named in that earlier list of major philosophers, fill that bill. In the Canadian courts, they have neither been directly quoted nor had their ideas discussed even if mentioned by name.

Other important philosophic figures appear only once or twice in Canadian case law, giving their authority to specific matters facing the court, such as: imprecise language (Confucius); secular involvement in religious disputes (Maimonides); and the suitability of individuals to be called to the bar (Karl Marx).

Confucius, for example, is cited only once, for his views on language. Justice L’Heureux-Dubé invokes his name in the Supreme Court of Canada’s R. v. Nette.[67] The case involved the rephrasing of the standard of causation for culpable homicide set out in R. v. Smithers.[68] Dickson J. (as he then was) had described culpable homicide as “a contributing cause of death, outside the de minimis range.”[69] Lambert J.A., in the B.C. Court of Appeal’s ruling in R. v. Nette,[70] in an effort to avoid the Latin expression, described the Smithers standard as “a contributing cause that is not trivial or insignificant.”[71] Justice Arbour noted that, in explaining the standard to a jury, it might be preferable to re-word the standard of causation using positive terms, for example, a phrase such as a “‘significant contributing cause’ rather than using expressions phrased in the negative such as ‘not a trivial cause’ or ‘not insignificant’. Latin terms such as ‘de minimis’ are rarely helpful.”[72]

Justice L’Heureux-Dubé, however, did not agree that an expression stated in the positive (i.e., a “significant contributing cause”) meant the same thing as one stated in the negative (i.e., “not a trivial cause”). Language, she commented “is the outward sign of our legal reasoning. The words we use provide a filter through which we view and acknowledge legal concepts.” Citing a book on language and the law, she explained that Chinese philosopher Confucius: “When asked what he would do first if invited to administer a country…replied: ‘It would certainly be to correct language'” (p. 8). Confucius added: “If language be not in accordance with the truth of things, affairs cannot be carried on to success”.[73] The differences between the various phrasings were substantive, Justice L’Heureux-Dube concluded; they were not merely matters of semantics as the majority of the...