1. 1 Two Different Forms of Argument  Arguments of Principle –individual rights versus  Arguments of Policy – general goals

2. 2 The Argument from Democracy cont’d  Hart’s discretion thesis allows judges to invoke argument of policy  Appropriate only for legislators  Democratic principle violated; illegitimate  Legislators more competent to assess argument of policy

3. 3 Replies to Argument from Democracy  Perhaps strong discretion is inevitable  Price paid for rule of law  Democratic ideals not absolute  Much law created by non-elected legislators, e.g., CRTC  Judicial decisions can be reversed by legislators

4. 4 Replies to Unfairness Argument Civil vs Criminal Civil Case  Plantiff v Defendant  Really unfair to losing litigant?  Unfair if clear law changed  No unfairness in penumbral cases – law uncertain; neither side has reasonable expectation of discretionary decision in their favour

5. 5 Replies to Unfairness Argument cont’d  Reliance on discretionary decision in one’s favour therefore unreasonable  Therefore, decision not in one’s favour not unfair

6. 6 Replies to Unfairness Argument cont’d Criminal Case  Crown/Attorney General v Defendant  Wrong to convict for a crime unless conduct clearly prohibited by law  “Unconstitutionally vague” statutes  Unless clear violation of legal rule, Defendant must be exonerated  Penumbral case: Defendant must be acquitted