Abstract

The law in Canada is at times very complicated to apply and is often partially regulating--meaning that in its application the law fails to dictate a single legally viable outcome in a legal case. As a result of this complexity judges who apply the law must often choose one from among multiple legally viable outcomes in the cases they decide. On the basis of such claims I infer that judges must be viewed as having the power and the duty to exercise discretionary authority in their decision making. The central questions addressed in my thesis are these: need there be constraints on the exercise of this discretionary authority? ; and what is the nature and grounding of these constraints? My main argument is that the more traditional ways of explaining the status of the constraints are at least incomplete and provide reasons to believe that there is a particular set of second-order moral constraints which must be taken as guiding judicial discretion in partially regulated cases. I argue that these second-order moral constraints are binding on all judges and that our theories of judicial decision making need to acknowledge both the role and the status of these constraints. This main argument is developed with the support of a series of foundational claims which are intended to highlight the need for consistency and predictability in judges’ interpretation and application of the law. These foundational claims are intended to demonstrate the fact that constraints on judicial discretion are necessary in order for judicial decision making to be legitimate. I argue that, because of the complexity and partially regulating nature of the law, it is not realistic to insist on consistency in judicial outcomes, but that a deeper-level consistency in judicial reasoning in accordance with second-order canons of responsible moral reasoning is a realizable demand. Consistency is itself a useful and important factor to take into account when evaluating judges’ decisions since only if such decisions comply with these canons can the decisions be viewed as being legitimate: I point out that consistency in judicial decisions is desirable only if it is consistency of legitimate judicial decisions. By exploring this requirement in more detail we deepen our understanding of what judicial reasoning and decision making requires. I argue finally that judges are morally obligated to follow the canons not because they are professionals, nor because they are judges, but because they are moral agents.