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Political Theory And The Volunteer: Lessons From Kahn’S Ethnography Of ‘Our Unhappy Politics’, Benjamin Berger

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This article offers a reading of Paul Kahn’s Democracy in Our America that places this intimate “work of local political theory” in a central position in the landscape of his political thought. The article argues that the figure of the volunteer, as it appears in the volume, holds a space for love and meaning—and for political happiness—that secures for it a critical role in the system of beliefs and practices that sustain self-government in the United States. That framing draws the volunteer into relationship with Kahn’s thinking about the family, the veteran, and law. But it also means that the …

A Relational Approach To Property, Jennifer Nedelsky

Articles & Book Chapters

No abstract provided.

Emotions And Precedent, Emily Kidd White

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The philosophy of emotion raises complications for theories of precedent. This chapter argues that it is productive to think of the effect of some precedents as facets of legal reasoning that are related to the use and understanding of legal concepts as thick concepts. In legal reasoning, precedents are routinely invoked to explicate, and/or clarify the content of legal concepts that are at issue in a case. This chapter develops an argument by Bernard Williams, i.e., that one must avoid the risk of over-generalizing the relationship of emotions to thick concepts, by placing it in the context of legal reasoning. …

Notes Toward A Supreme (Legal) Fiction, Emily Kidd White

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Maksymilian Del Mar’s new book, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication offers a finely drawn map of various ways of reasoning in and through law. The book is about the ways that thoughts, values, commitments and ways of seeing, move, take hold, settle, startle and – at times – release grip, reorient, and/or transmute. It is a book that is teeming with references. There are threads to pull at everywhere.

The Myth Of Legal Realist Skepticism, Dan Priel

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Here are some things everyone knows about the legal realists: They didn’t believe in legal rules, they thought—and demonstrated—that law is inherently indeterminate, and they taught us that it is the personality of the judge that decided cases. To the extent that they studied legal doctrine, it was in order to demonstrate its incoherence. This is why they “vociferously objected” to the Restatements. It is the victory of their ideas that killed the doctrinal legal treatise as a respectable form of scholarship in the United States. In addition to this jurisprudential radicalism, the legal realists were also politically radical. Their …

Cynicism As A Modus Of Political Agency: Can It Speak To International Law?, Hengameh Saberi

Articles & Book Chapters

This essay is a brief tour through the philosophical journey of cynicism as a critical ethos and modus of political agency. Against colloquial and psychological uses, all with a crippling effect, it seeks to remind of the best potential of a philosophical cynical temperament for a sense of empowered agency by revisiting its travels from ancient Athens to our time. With that history in sight, it will then in a preliminary and experimental fashion imagine some possible avenues through which international law can begin to appreciate a cynical orientation as a force for good rather than an enemy to deny, …

Images Of Reach, Range, And Recognition: Thinking About Emotions In The Study Of International Law, Emily Kidd White

Articles & Book Chapters

There is much critical potential in bringing together the philosophy of emotion and the study of international law. Narratives about legitimate political and legal authority have tended to either assume that it is possible to extricate emotions from political judgement, or to rest upon uncomplicated (and wholly demystified) assumptions about the legibility of emotions over time and place. Philosophers interested in emotion have regularly grappled with questions concerning an emotion’s reach and range (insofar that the emotion in question bears an intersubjective component), and recognition (comprehensibility) of emotions beyond one’s own social and political communities (or even beyond one’s self). …

Introduction To The Edward Elgar Research Handbook On Law And Emotion, Susan A. Bandes, Jody Lynee Madeira, Kathryn D. Temple, Emily Kidd White

Articles & Book Chapters

The role of emotion in law has long been shrouded in mystery. The legal system is built on assumptions about human behavior, including assumptions about emotion. Thus, unavoidably, understanding emotion is an essential part of building a fairer, more effective system. Yet the emergence and growth of Law and Emotion as a field of study has been slowed by the belief that merely by acknowledging emotion, scholars and jurists would undermine the rule of law. It has been further hampered by the suspicion that emotions are too ephemeral or subjective to be understood in any systematic way. For too long, …

Law Is What The Judge Had For Breakfast: A Brief History Of An Unpalatable Idea, Dan Priel

Articles & Book Chapters

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea. In this Essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. However, the Essay also shows that the idea is improperly attributed to the legal realists, as there are many references …

On Emotions And The Politics Of Attention In Judicial Reasoning, Emily Kidd White

Articles & Book Chapters

Legal doctrine regularly requires judges to both understand and use emotions in different ways. This chapter explores the role of emotions in fixing and sustaining judicial attention on the impact of a law on the constitutional rights of an individual or group. That certain forms of wrong or harm, including forms of political and social exclusion, are difficult to detect in the absence of focused attention is, I think, what Elizabeth Bishop’s poem ‘Man-Moth’, excerpted here in epigraph, intends to express. This chapter explores the role of emotions in setting up the serious, sustained inquiry into the impact of a …

Two Theologies Of Chosenness, Benjamin Berger

Articles & Book Chapters

What must we explain if we are seeking to understand the theologies of US exceptionalism?

One answer is that our burden is to explain the particular. Here, the appropriate move is to examine the unique histories and imaginative formations of religious, legal, and political life in the United States. We might look to the unique religious history of the early colonies, to the distinctive role that “Church” plays in US constitutional life, or to the tethering of the market, politics, and religion that has a particular shape and force in US political and legal life. With this move, one is …

The Radical Philosophy Of Rights By Costas Douzinas (London: Routledge, 2019, 246 Pp., £34.99), Allan C. Hutchinson

Articles & Book Chapters

No abstract provided.

Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White

Articles & Book Chapters

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and …

The Debate That Never Should Have Been: Dworkin, Hart, And The Analytical Project, Allan C. Hutchinson

Articles & Book Chapters

As with most other things, the fortunes of jurisprudence ebb and flow. After an extended period of scholarly dominance, the past few years have witnessed a relative decline in its significance and prominence. This is no bad thing because jurisprudence has been trapped in an increasingly narrow debate characterized by its esoteric confines and analytical ambitions-what is the nature of law? There appeared to be a brief moment when other more expansive and less restrictive options for disciplinary development seemed possible. However, any reports of the demise of analytical jurisprudence now seem premature: the posthumous publication of a dated essay …

The Possibility Of Naturalistic Jurisprudence: Legal Positivism And Natural Law Theory Revisited, Dan Priel

Articles & Book Chapters

Contemporary legal philosophy is predominantly anti-naturalistic. This is true of natural law theory, but also, more surprisingly, of legal positivism. Several prominent legal philosophers have in fact argued that the kind of questions that legal philosophers are interested in cannot be naturalized, such that a naturalistic legal philosophy is something of a contradiction in terms. Against the dominant view I argue that there are arguable naturalistic versions of both legal positivism and natural law. Much of the essay is dedicated to showing that such views are possible: I identify naturalistic versions of a “natural law” view, a “positivist” view, as …

Cosmopolitanism, Custom And Complexity: Kant's Cosmopolitan Norms In Action, Tracey Leigh Dowdeswell

Osgoode Legal Studies Research Paper Series

Immanuel Kant's Cosmopolitanism has come to stand alongside Political Realism and Liberal Internationalism as one of three broad theories of ethics in international relations. Yet Cosmopolitanism has been subjected to criticisms that the universal norms identified by Kant - including such norms as hospitality, reciprocity, and publicity (transparency and free political participation) - are Western and Eurocentric in nature, incompatible with cultural pluralism, and lack the justification and legitimacy for the broad-based consensus required for a Cosmopolitan politicalsphere to emerge among the world’s diverse peoples. This paper seeks to address these criticisms of Cosmopolitanism by studying examples of Cosmopolitan norms …

Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun

Osgoode Legal Studies Research Paper Series

It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.

But surface appearances can deceive. Unlike some other areas of philosophy, the subject matter of jurisprudence is …

Book Review: Visualizing Law In The Age Of The Digital Baroque: Arabesques And Entanglements, F. Tim Knight

Librarian Publications & Presentations

No abstract provided.

Gender-Benders': Sex And Law In The Constitution Of Polluted Bodies, Dayna Nadine Scott

Articles & Book Chapters

This paper explores how law might conceive of the injury or harm of endocrine disruption as it applies to an aboriginal community experiencing chronic chemical pollution. The effect of the pollution in this case is not only gendered, but gendering: it seems to be causing the ‘production’ of two girl babies for every boy born on the reserve. This presents an opening to interrogate how law is implicated in the constitution of not just gender but sex. The analysis takes an embodied turn, attempting to validate the real and material consequences of synthetic chemicals acting on bodies — but uncovers …

The Cultural Limits Of Legal Tolerance, Benjamin Berger

Articles & Book Chapters

This article presents the argument that our understanding of the nature of the relationship between modern constitutionalism and religious difference has suffered with the success of the story of legal tolerance and multiculturalism. Taking up the Canadian case, in which the conventional narrative of legal multiculturalism has such purchase, this piece asks how the interaction of law and religion - and, in particular, the practices of legal tolerance - would look if we sought in earnest to understand law as a component, rather than a curator, of cultural diversity in modern liberal societies. Understanding the law as itself a cultural …

Through The Looking Glass: Mediator Conceptions Of Philosophy, Process And Power, Colleen M. Hanycz

Articles & Book Chapters

While a number of civil reforms using mediation have emerged across Canada in recent years, of particular interest is the Ontario Mandatory Mediation Program that was first piloted in 1999, deemed successful and then made a permanent feature of the Rules of Civil Procedure in 2001. This article suggests that before we can evaluate the outcomes of mandatory mediation, we must first look more closely at the process being implemented by the mediators in this context. With that in mind, this article considers the ways in which the mediators themselves perceive of the mediation process. It reports on a qualitative …

Rights, Communities, And Tradition, Brian Slattery

Articles & Book Chapters

This paper argues that there is a close connection between basic human rights and communal bonds. It criticizes the philosophical views of Alan Gewirth and Alasdair MacIntyre, which in differing ways deny this connection.

That's Just The Way It Is: Langille On Law, Allan C. Hutchinson

Articles & Book Chapters

This article is a defence of the sceptical critique of the legitimacy of law and adjudication. It is a direct reply to the arguments of Professor Brian Langille, whose article "Revolution Without Foundation: The Grammar of Scepticism and Law" appeared in Volume 33 of this Journal. In that article, Langille defended the viability of law, legal discourse and legal critique primarily by attacking the claim that scepticism based on the "indeterminacy of language" can be grounded in the philosophy of Ludwig Wittgenstein. Professor Hutchinson concentrates his spirited response on the indeterminacy of language. He contends that law fails to meet …

The Importance Of Not Being Ernest, Allan C. Hutchinson

Articles & Book Chapters

Formalists have long tried to develop a legal theory, based on the internal rationality of law, which would free it from the influences of instrumentality and ideology. Focussing on the philosophical proposals of Ernest Weinrib, the author argues that this goal is both illusory and undesirable. Weinrib's theory assumes rather than proves the existence of this rationality, which is simply defined as an interrelationship between form and content. In order to maintain the coherence of this fragile relationship, Weinrib is either forced to articulate his theory on such a level of abstration so as to be irrelevant or to reintroduce …

Social Control: Analytical Tool Or Analytical Quagmire?, Shelley A. M. Gavigan, Dorothy E. Chunn

Articles & Book Chapters

There is probably no concept which is used more widely and with less precision than that of 'social control'. Given the lack of agreement about what 'social control' is, researchers usually employ the term in one of two ways. Either they assume that its meaning is obvious and requires no clarification, or, they begin with a perfunctory acknowledgment of the definitional problems associated with the concept and proceed to use it anyway. The eclecticism of the latter approach has stimulated attempts over the years to produce a universally applicable definition of 'social control' that could be empioyed both systematically and …

In A Manner Of Speaking: Towards A Reconstitution Of Property In Mid-Nineteenth Century Quebec, Tom Johnson

Articles & Book Chapters

The author studies the Report of the 1843 Commission appointed to inquire into seigniorial tenure. The contrast with a previous report written in 1836 is striking and the author investigates the rupture in contemporary discourse which in less than a decade led to an official recommendation to abandon the seigniorial system. Of particular interest to the author is the way in which the 1843 Commission interpreted the answers to questionnaires it had sent to seigniors, censitaires, entrepreneurs and other interested parties. The author demonstrates how the information received by the Commission, especially from the censitaires, was recategorized with a view …