Between Principle and Practicality: A Dynamic Realist Examination of Independence in the Canadian Justice System

This work examines independence in the Canadian justice system using an approach adapted from new legal realist scholarship called ‘dynamic realism’. This approach proposes that issues in law must be considered in relation to their recursive and simultaneous development with historic, social and political events. Such events describe ‘law in action’ and more holistically demonstrate principles like independence, rule of law and access to justice. My dynamic realist analysis of independence in the justice system employs a range methodological tools and approaches from the social sciences, including: historical and historiographical study; public administrative; policy and institutional analysis; an empirical component; as well as constitutional, statutory interpretation and jurisprudential analysis. In my view, principles like independence represent aspirational ideals in law which can be better understood by examining how they manifest in legal culture and in the legal system. This examination focuses on the principle and practice of independence for both lawyers and judges in the justice system, but highlights the independence of the Bar. It considers the inter-relation between lawyer independence and the ongoing refinement of judicial independence in Canadian law. It also considers both independence of the Bar and the Judiciary in the context of the administration of justice, and practically illustrates the interaction between these principles through a case study of a specific aspect of the court system. This work also focuses on recent developments in the principle of Bar independence and its relation to an emerging school of professionalism scholarship in Canada. The work concludes by describing the principle of independence as both conditional and dynamic, but rooted in a unitary concept for both lawyers and judges. In short, independence can be defined as impartiality, neutrality and autonomy of legal decision-makers in the justice system to apply, protect and improve the law for what has become its primary normative purpose: facilitating access to justice. While both independence of the Bar and the Judiciary are required to support access to independent courts, some recent developments suggest the practical interactions between independence and access need to be the subject of further research, to better account for both the principles and the practicalities of the Canadian justice system.

Language, Logos, and Social Ontology: Naturalist and Post-Naturalist Narratives of Human Rationality and Social Reality

I distinguish two ways that philosophers have approached and explained the reality and status of human social institutions. I call these approaches “naturalist” and “post-naturalist”. Common to both approaches is an understanding that the status of mind and its relation to the world or “nature” has implications on a conception of the status of institutional reality. Naturalists hold that mind is explicable within a scientific frame that conceives of mind as a fundamentally material process. By proxy, social reality is also materially explicable. Post-naturalists critique this view, holding instead that naturalism is parasitic on contemporary science—it therefore is non-compulsory and distorts how we ought to understand mind and social reality. A comparison of naturalism and post-naturalism will comprise the content of the first chapter. The second chapter turns to tracing out the dimensions of a post-naturalist narrative of mind and social reality. Post-naturalists conceive of mind and its activity of thought as sui generis, and it transpires from this that social institutions are better understood as a rational mind’s mode of the expression in the world. Post-naturalism conceives of social reality as a necessary dimension of thought. Thought requires a second person and thereby a tradition or context of norms that come to both structure its expression and become the products of expression. This is in contrast to the idea that social reality is a production of minds, and thereby derivative. Social reality, self-conscious thought, and thought of the second person are therefore three dimensions of a greater unity.