What is the proper role for the judiciary in the governance of a country? This must be the most fundamental question when the work of judges is examined. It is a constitutional question. Naturally, the judicial role or, more specifically, the method of judicial decision-making, critically affects how lawyers function before the courts, i.e., what should be the content of the legal argument? What facts are needed? At an even more basic level, it affects the education that lawyers should experience.
The present focus of attention is Ivan Cleveland Rand, a justice of the Supreme Court of Canada from 1943 until 1959 and widely reputed to be one of the greatest judges on that Court. His reputation is generally based on his method of decision-making, a method said to have been missing in the work of other judges of his time.
The Rand legal method, based on his view of the judicial function, placed him in illustrious company. His work exemplified the traditional common law approach as seen in the works of classic writers and judges such as Sir Edward Coke, Sir Matthew Hale, Sir William Blackstone, and Lord Mansfield. And he was in company with modern jurists whose names command respect, Oliver Wendell Holmes, Jr., and Benjamin Cardozo, as well as a law professor of Rand at Harvard, Roscoe Pound. In his judicial decisions, addresses and other writings, he kept no secrets about his approach and his view of the judicial role. He paraded both for all to see and he actively advocated them
There is, however, a problem the existence of which creates somewhat of a mystery. The common law method existed for centuries, indeed since time immemorial as the theory went; but in the nineteenth century it came under attack and was largely superseded as the appropriate legal method by the end of that century. In Canada, to a far greater degree than in the United States or even England, the approach of Coke, Hale, Blackstone, and Mansfield became illegitimate half a century before Ivan Rand's appointment to the bench.
Without a significant academic tradition, the Canadian legal profession of the late nineteenth century did not sustain a knowledge of the past. In England, with its strong practice tradition, the common law method survived in the technical lore of the legal profession; in the United States, jurists such as Holmes, Cardozo, and Pound gave the common law method a constant presence at the highest level of the legal system, just when the legal profession generally abandoned it. So, while the traditional common law method hardly survived in Canada, Ivan Cleveland Rand, a Harvard educated lawyer, eagerly read Blackstone. (1)
The methodology that gained acceptance within the legal profession in the second half of the nineteenth century, and which laid claim to being "legal reasoning" to the exclusion of any other approach, is generally known today as "formalism".
In 1990, Justice Beverley McLachlin (as she then was) clearly signalled a shift in direction when, for the Court, she called for judges (and lawyers) to adopt "a more flexible approach" and for decisions to be "rooted in the principle and policy underlying the ... rule." (2) In 1995, Justice Peter Cory, for the Court, declared that the judiciary had the jurisdiction to modify or extend the common law in order to comply with prevailing social conditions and values. (3) Three years later, speaking for a sizeable majority of the Court, he decried the taking of a "formalistic or legalistic approach" rather than a "case-by-case consideration" in decision-making in the legal system. (4) These pronouncements inaugurated a new period in which Canada's highest court repudiated the model of decision-making known as "formalism" and returned the role of the judge to that which existed at common law.
Under formalism, legal expertise consisted in technical knowledge of …