Judicial decision-making and the status quo

The discussion for this week is the normative statement about the purpose of law and particularly judicial decision-making, whether we see it as preserving the status quo. Before I go into detail of whether I agree or disagree with the statement.  I am will be looking at Roscoe Pound (social jurisprudence) and Christopher Langdell’s (legal formalism) point of view on the purpose of law and whether judges base their decisions to maintain the status quo, as well as what it means to preserve the status quo.

According to Merriam-Webster Dictionary (2012) describes preserving and Status quo as:

Preserving, Preserve:

1: to keep safe from injury, harm, or destruction : protect

2a: to keep alive, intact, or free from decay

b: maintain

Status Quo; the existing state of affairs <seeks to preserve the status quo>

Langdell’s defines law as “no more than the formal legal rules, doctrines, and principles underlying high court decisions; adding that law could only be discovered by carefully and systematic analysis of this case law” (Pavlich 56). In other words, he sees law as a way in which human conduct is regulated. We are bided by rules and regulations to keep us in line. Law also defines what a person can or cannot do. Langdell’s view is that law is law, law that is place on you and me; rooted in doctrine of parliamentary supremacy and not concerned with moral content of law. Judges should base their decisions on what is on the book to apply the law. A formalist judge makes decisions deductively, by way of drawing conclusions from premises according to formal rules of reasoning. His view is suggestive of preserving the status quo by maintaining that law is law and in deciding cases, judges are reinforcing and uncovering fundamental legal rules and principles.

Roscoe Pound’s social jurisprudence approaches law as a “process of social control, laws main purpose is to ensure the survival and advancement of society” (60).  Adding to that, to play this vital role, law could not simply operate by mechanically applying rules that at best serve as general guides” (60).  Pound believed that law should adapt to the needs of society and it should only follow changes in society. He believes that Judges have a duty to consider the practical effects of their decisions and strive to ensure that judging facilitated rather than prevent societal growth.

Taking into account Pound and Langdell’s view, this brings me back to whether I agree or disagree with the statement that the purpose of law and particularly judicial decision-making, is to preserve the status quo. Taking into consideration of laws and judicial decision-making process in Canada, I would have to disagree with the statement.

Parliament in Canada determines to a large degree the way the laws are created in Canada. However, that does not mean that parliament can legislate any kind of law it likes. Courts have authority to review legislation as well as to ensure that it is consistent with Canada’s supreme law (the charter of rights and freedoms), which protect our fundamental rights and freedoms. When parliament creates laws, they do so in a way that does not preserve the status quo. Borrowing from Pound, Law like nature, changes through different stages; from “primitive forms solely concerned with public peace to a more mature process concerned with individual rights, to the socialization of law dealing with social interest” (Pavlich 61).

Pre-1982 constitution, Canadian law was based on a positivist approach. A parliamentary system of government formed upon the principles of British parliamentary democracy. The preamble to the Constitution Act, 1867, states that Canada is to have “a Constitution similar in Principle to that of the United Kingdom.” The central idea of the British constitution is the supremacy of parliament. The elected representative of the people, had unlimited power to make law. The role of the courts was limited to deciding cases by interpreting the law as laid down by parliament. Judges did not have the authority to invalidate or challenge laws that have been passed by parliament through a democratic process. The only thing that parliament could not do is to bind its successors. Whatever parliament lay down as law can be changed by the next parliament. Until 1982, the primary and final responsibility for achieving the balance between the rights of individuals and the public interest remained with the elected representatives of the people sitting in parliament.  The enactment of the Charter of Rights and Freedoms as part of the Constitution Act, 1982 added drastically to judiciary’s power, the questions put to judges involve issues of value and moral choice. A dramatic new era in the relationship between the members of Canada’s judiciary and the elected representatives of Canada’s parliament. The Charter empowers judges, in certain circumstances, to declare any piece of legislation to be invalid and of no force and effect, if it infringes upon an individual’s protected rights. The charter puts constraints on what parliament can and cannot do.  Judges play a determined and important role in shaping, and at times forming, public policy, and that this practice has been strengthened in Canada through the entrenchment of the Charter. The purpose of law in the Canadian context is to “ensure the survival and advancement of society” (60), and not to preserve the status quo.





Pavlich, George (2011). Law & Society Redefined.

New York: Oxford University Press.


1 Comment

Filed under Musing

One response to “Judicial decision-making and the status quo

  1. You offer an effective overview of legal formalism and Pound’s position on law as a mechanism for social change.

    You argue that “When parliament creates laws, they do so in a way that does not preserve the status quo”. This is a reasonable stance to take, but what evidence can you draw on to support your position?

    To suggest that law functions to maintain the status quo is not necessarily to say that it prevents all change. Rather, it is to suggest that the legal system exists to reproduce a particular order or dominant set of social relations. It may permit incremental or superficial changes, but the essentially conservative nature of law functions to inhibit radical social change. What do you think about this argument?

    I am not sure about this statement:

    “Pre-1982 constitution, Canadian law was based on a positivist approach”
    Positivism is an approach to the study of law. We could say that prior to the passage of the Charter, Canadian courts adopted a formalist stance towards the making of legal decisions (implying that they relied on the interpretation of existing statutes, case law, and legal procedure). Even rephrased in this manner, I am not certain about the underlying argument, as it implies a complete change in legal decision-making pre- and post-Charter. Canadian courts made influential and controversial decisions prior to the passage of the Charter and – perhaps more importantly – they have demonstrated deference to the executive and legislative branches of government since. Accordingly, I would encourage you to qualify the argument in your last paragraph.

    It may be more accurate to say that the Charter has provided members of the judiciary with a powerful resource to use when engaging in ‘social engineering’ that challenges the status quo. A recent example is the Supreme Court of Canada’s ruling in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, which held that the Government of Canada did not have the authority to revoke the exemption to the Controlled Drugs and Substances Act that allowed for the operation of Vancouver’s Insite facility http://scc.lexum.org/en/2011/2011scc44/2011scc44.html .

    Interesting post!