In the eighteenth century, the famous British jurist, Sir William Blackstone (1723-1780) pronounced that judges do not make the law, they merely “find” it. This comment represents an attitude toward the law that grew in strength in Britain and the United States in the nineteenth century and persists today, especially in Britain and, to some extent, in Canada.

Under legal formalism – also called – legal conservatism – all law is established and it is simply the role of courts to discover the appropriate rule and to apply it. Conservative minded judges are usually not interested in policy arguments that consider the social purposes and effects of the law. They feel that such matters are political concerns and should be left to elected legislatures. Legal formalists argue in the almost scientific application of legal precedence to new cases gives certainty and predictability to law.

The conservative-formalist influence has remained strong in British, American and Canadian jurisprudence. In Canada, its influence can be seen in post-Charter cases in which some conservative minded judges here struggled with, and sometimes rejected, the new policy making role given to them under the Charter. In fact, much of the controversy surrounding the introduction of the Canadian Charter of Rights and Freedoms concerned the role of courts versus legislatures as the appropriate forum for determining important questions of social policy.

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