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.

Education and Self-Cultivation: Foundational Changes for Existential Flourishing

The strained relationship between pedagogy and self-cultivation is often overlooked in favour of more pressing and profitable concerns within educational institutions. However, the end of education is not a well-paying job. It is often thought that education will produce a certain type of learned individual. Students are entered into educational institutions from a very young age and spend most of their youth within them, subsequently forming a part of themselves, their self-identify and agency, through these institutions. A significant amount of trust is placed in the hands of educators not only to impart information about various subject matters but to teach students how to think. This, however, is a difficult task which cannot be completely accomplished; thinking is a skill which an educator can promote but only the individual can cultivate. If self-cultivation is not the end of pedagogical practice and education, there is something deeply contradictory between the theoretical and practical values and aims of educational institutions.This thesis will address the problems caused by the neglect of self-cultivation within the pedagogical practices of contemporary educational institutions. I argue that self-cultivation, existential learning and flourishing should be the focus of these institutions. Educational institutions can make alternative efforts not only to improve the learning environment for these students but to prepare them to cope with existential questions. By acknowledging and focusing on the significance of self-cultivation, educational institutions can and should make efforts not only to teach useful, marketable skills and information but to also nurture the agency and mental well-being of the student him- or herself. My hope is that this thesis will be the first step towards answering a larger concern: How can educational institutions alleviate the struggles of students, particularly the seemingly growing number who are suffering from depression, by appealing to notions of self-cultivation?