Lecture: How Judges Decide
That courts are assuming a fuller role in the constitutional order of contemporary societies, particularly in Europe, the United States, and the British Commonwealth, is hard to dispute.
Whether deciding on fundamental principles of common law, interpreting the articles of constitutions, or making sense of the explosion of human rights, courts, especially the higher and supreme courts, are called on to decide issues of importance for the common good and for the rights and interests of individual persons. In performing this role, courts operate under principles of independence, which means they are neither directly responsive nor directly accountable to the political process.
How then do judges decide cases, especially hard cases? What are the underlying principles, the informal guidelines, the constraints and limitations? The aim of this lecture - and workshop the day after - is to consider further the judicial process, the kinds of arguments and reasons that count, the constraints under which they must operate.
Justice Robert Sharpe of the Ontario Court of Appeal opens the proceedings with this lecture, drawing on his experience as both judge and academic.
The following day, Denis Galligan, Professor of Socio-Legal Studies at the University of Oxford and Director of the Foundation for Law, Justice and Society, will open the workshop by commenting on the lecture of the evening before. This will be followed by a roundtable discussion of academics and judges, which will include contributions from judges of diverse jurisdiction and traditions, and from academics who have reflected on the wider issues relating to judicial decision-making.
Robert J. Sharpe holds an LL.B. from the University of Toronto and a D.Phil. from Oxford University. He was called to the Bar of Ontario in 1974 and practised civil litigation with MacKinnon, McTaggart (later McTaggart Potts). He taught at the Faculty of Law, University of Toronto and served as Executive Legal Officer at the Supreme Court of Canada under then Chief Justice Brian Dickson.
Justice Sharpe went on to serve as Dean of the Faculty of Law at the University of Toronto before being appointed to the Ontario Court of Justice (General Division), now called the Superior Court of Justice, and then to the Court of Appeal.
He has written many books and scholarly articles and has reported judgements as a trial and appellate judge in a wide variety of areas. He has also appeared as counsel before courts at all levels, including the Supreme Court of Canada. Justice Sharpe is a frequent lecturer at continuing education programmes for lawyers and judges. He also lectures at many Canadian and international universities.