In the United States, judges are naturally divided into two factions based on a simple principle: judges appointed by President Trump are typically Republicans, while those appointed by President Biden are Democrats.
In Canada, however, judges are categorized based on legal benchmarks rooted in deeper historical understanding:
- Natural Law:
- Represented by Baron Devlin, believes that morality is the core and foundation of the law, which should not deviate from moral principles.
- Positivism:
- Represented by Professor Hart, argues that law should be separate from morality to maintain rationality and neutrality. Otherwise, emotive decision-making would lead to chaos.
In Canada, judges from these two different theories might render completely opposite verdicts in almost identical cases. Here are two real-life examples:
Before presenting the cases, let’s clarify a legal term. Do you know the difference between a contract and a covenant?
- Simply put, a contract has a lifespan. For example, if an individual and a company sign a labour contract, the contract automatically terminates upon the individual’s death, or the company ceases to exist.
- A covenant, however, can continue from generation to generation. For instance, when selling a piece of land, a seller could add a condition to the deal: the buyer and subsequent landowners cannot build on it but must use it solely as farmland. This covenant then passes down with each sale of the land.
Case One: In 1945, a piece of land was being sold, and the highest bidder was Jewish. Surprisingly, the seller refused to sell because of a covenant stating the land couldn’t be sold to Jews.
The Jews took the seller to court. After deep contemplation, the judge gave his holdings:
Canada is a nation of minorities and it is my “moral” duty to aid cohesion, the covenant is void because it offends public policy.
This verdict suggests the judge is of the natural law type. Re Drummond Wren [1945]
Three years later, in 1948, a seller put a cottage for sale, and again, a Jewish was the buyer, and again there was a covenant, and this time it was even more discriminatory, stating the cottage couldn’t be sold to Jews, Hebrews, or Blacks.
Confident in the precedent, the Jewish buyer sued. Unexpectedly, the judge stated his decision as following:
A ruling on public policy ground is like an unruly horse that has a tendency to render all law vague and uncertain. Whatever view I may entertain based on justice and morality or inconvenience, I must always present to my mind a proper conception of judicial function to expound and interpret law, my job is not to create the law as to opinion what the law should be. The covenant is therefore upheld.
Clearly, this judge was a Positivist. Re Noble and Wolf [1948]
However, not all Canadian judges bear clear signs of their affiliation. Take, for instance, Frank Iacobucci, one of Canada’s most famous judges in decades. I was honoured to have an opportunity to ask his son Edward (Dean of the Law School at the University of Toronto) about his father’s decision-making process.
When I was asking the question, I assumed that a senior judge would first research laws and cases and then make a judgement based on years of experience. However, Edward’s response was unexpected. He said his father would first understand all the facts, then quietly sit there to think about it for a while, asking himself: what decision would bring the most peace of mind? After arriving at his “goal answer,” he would then find legal support to reach that final judgement.
Also, in private divorce hearings, judges can be divided into two types, based on my personal observations:
“Rights-oriented” judges tend to favour the party that presents a well-reasoned case and has accumulated evidence in their favour over the years.
And “fairness-oriented” judges lean towards the party that appears honest, and has been at a disadvantage and doesn’t aggressively fight in court.
Here then came some “smart” lawyers who used tools like ChatGPT to analyze a judge’s previous cases, determining whether they lean towards Natural Law or Positivism; or in divorce cases, whether they favour the rights-oriented or fairness-oriented approach. The lawyer then prepares and adjusts their courtroom strategy accordingly, increasing their chances of winning.
This practice led to Europe banning the use of GPT for analyzing judges, followed by North America. Now, asking GPT such questions is met with refusal, unfortunately.
