PRECEDENT AND POLICY IN THE SUPREME COURT
AbstractThe 1949 debate over how rigidly the Supreme Court of Canada should adhere to stare decisis illustrates the range of views with which legislators approached its jurisprudential role. Almost two decades after supplanting the Judicial Committee of the Privy Council as Canada’s final court of appeal, deeply felt contentions still exist among partisans of the rigid and the flexible rules of precedent. Mark R. MacGuigan investigates Parliament’s expectations in relation to the Supreme Court Amendment Act of 1949, and the degree to which the Court has fulfilled these expectations. In closing, the author considers what the future holds in this regard. He concludes that the Blackstonian positivist theory that judges merely interpret, but never make the law, has yielded to the recognition of judicial creativity. So although the Supreme Court’s past devotion was to precedent, its future commitment must surely be to policy.
Keywords:Jurisprudence, Legal Precedent, Supreme Court
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