Law and Philosophy Commons^™

Arbitrary Detention Powers And Section 1 Of The Charter: Two Critical Blind Spots In Luamba, François Tanguay-Renaud

All Papers

In the 2022 case of Luamba c Procureur général du Québec, the Superior Court of Quebec held that a police power to conduct roving random stop of motorists for the purpose of checking for traffic offences infringed ss 9 and 15 of the Canadian Charter in ways that were not saved under s 1. This decision was upheld by the Court of Appeal (“QCCA”) and the Supreme Court (“SCC”) has now granted leave to appeal to the AG Quebec.

In this comment, I seek expose two blind spots in the s 1 analysis carried out by lower courts: (1) …

Legal Realism, Legal Positivism, And Determinacy, Dan Priel

All Papers

It is a commonplace that the legal realists argued that law is deeply indeterminate. According to this familiar account, the legal realists insisted that legal materials don’t constrain judges, who are therefore free to decide cases in almost any way they want. An influential argument has argued that the only way to explain this view is by showing that the legal realists presupposed a legal positivist theory of law. This Essay offers a different understanding of the relationship between realism, positivism, and determinacy, challenging this interpretation of the realists as both historically false and as philosophically unwarranted. I provide many …

The Political Theories Of The Legal Realists, Dan Priel

All Papers

A popular view about the legal realists is that, either knowingly or inadvertently, they advanced ideas inconsistent with traditional values, democracy, and the rule of law. Another view about them suggested that the realists had no political theory: they only offered a descriptive (empirical) theory of adjudication, albeit one that has normatively “quietist” implications. In this essay, I challenge both views. I argue that there were two legal realist camps whose jurisprudential ideas presupposed two quite different political theories. One group of legal realists consisted of public utilitarians who were consciously inspired by Bentham, wanted to turn legal and political …

The Politics Of Legal Theory Revisited, Dan Priel

Articles & Book Chapters

Most legal positivists today hold that legal positivism is a morally neutral and the purely scriptive account of the nature of law. This article signs this claim by Brian Leiter’s claim to the contrary. While I welcome the political presuppositions of jurisprudential theories, I show that the association of legal positivism with radicalism is not true. Examining the works of prominent legal positivists, I show that there is no basis for thinking of any of them as a political radical. I also show that many legal positivists were politically conservative. Beyond the Historical Question, I as that argue is no …

The Legal Realists On Political Economy, Dan Priel

Articles & Book Chapters

Alongside the well-known jurisprudential ideas associated with legal realism, some scholars have highlighted the realists’ political-economic ideas. Best known among them has been Morton Horwitz, who has argued that the realists launched an “attack on the legitimacy of the market.” Other scholars challenged this view and argued that there was no significant connection between legal realism and political economic ideas. I offer a corrective to both views. I first consider the work of five legal realists (Karl Llewellyn, Adolf Berle, William O. Douglas, Jerome Frank, and Thurman Arnold) and show that all held views that were well within the political-economic …

The Legal Realists On Law And Literature, Dan Priel

All Papers

This encyclopedia entry considers the legal realists’ neglected contribution to law and literature. Starting with Cardozo’s essay ‘law and literature’ on the importance of judicial style, it then considers the contributions of the legal realists to the topic, focusing especially on Karl Llewellyn and Jerome Frank. Cardozo and Frank—both judges who were interested in making sure they effectively conveyed their ideas—focused on the style a judge should adopt. By contrast, Llewellyn’s more sociological perspective was concerned with how different periods (as well as different jurisdictions) were dominated by different judicial styles. However, in both cases the question of judicial style …

Ways Of Explaining Law, Dan Priel

Articles & Book Chapters

No abstract provided.

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

All Papers

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.

Bentham’S Public Utilitarianism And Its Jurisprudential Significance, Dan Priel

Articles & Book Chapters

One of the ways by which Gerald Postema’s Bentham and the Common Law Tradition revolutionized the study of Bentham’s jurisprudence was by challenging the idea, made popular by Hart (both in his jurisprudential work and his interpretation of Bentham), that the study of law in general is normatively neutral. Against this view, Postema argued that one must understand Bentham’s views on law and jurisprudence in relation to his utilitarianism. At the time of publishing the book, Bentham went very much against the grain, but this view has since gained considerable support. In my paper I seek to refine it. As …

Emotions And Precedent, Emily Kidd White

All Papers

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

All Papers

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

All Papers

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, …

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, …

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). …

Making Sense Of Nonsense Jurisprudence, Dan Priel

All Papers

Did Ronald Dworkin think morality is timeless? He did not. But he did think it was universal, right? No to that as well. Turning to jurisprudence, did he think that morality is a criterion of legal validity? No. But he thought morality is part of the law, didn’t he? Not quite. How can you say this? Is it not obvious that Dworkin was not a legal positivist? In that case, he must have been a natural lawyer. Actually, he was neither. So you’re saying that Dworkin invented a new theory of law? No, his views are a version of a …

The Philosophy Of Law For A Naturalist: An Introduction To Artificial Law Theory, Dan Priel

All Papers

The aim of this essay is to provide an outline for a naturalistic approach to jurisprudence. It begins by arguing for certain reorientations away from certain questions currently preoccupy legal philosophers but should not. The question of the nature of law is, as currently understood, a misguided question. The questions of the metaphysics and the normativity of law, by contrast, are problematic in a different sense: It is not clear that law raises any special questions with respect to them. Following on that I offer a more positive agenda for naturalistic jurisprudence. Starting with methodology, I argue that there is …

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 …

Evidence-Based Jurisprudence: An Essay For Oxford, Dan Priel

Articles & Book Chapters

This essay is part of a broader attempt to put some flesh on the bones of naturalistic jurisprudence. My general aim in this essay is to show that much contemporary jurisprudence takes a very narrow understanding of its subject matter, and gives priority, to the point of exclusivity, to one methodological approach – analytic philosophy – over all others. Unlike naturalistic analytic philosophy that welcomes ideas and data from other disciplines, the approach that dominates jurisprudence sees legal philosophy as concerned with certain questions that are uniquely philosophical and to which other disciplines have little to contribute. Some have challenged …

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

Articles & Book Chapters

No abstract provided.

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 …

Legal Realism And Legal Doctrine, Dan Priel

All Papers

Legal realism is widely perceived to be hostile to legal doctrine. In the familiar narrative, the realists showed that legal doctrine does not, and cannot, constrain judges from using existing legal materials to reach virtually any outcome they want. As such, doctrine only serves to hides and obfuscate what is better discussed openly. The purpose of this essay is to complicate this familiar story. I focus on one contemporary take on legal realism that argues that an open discussion of values will give the law greater determinacy. I counter this view, first, by showing that it does not, in fact, …

Two Forms Of Formalism, Dan Priel

All Papers

In this paper I argue that what is called ‘formalism’ is actually two very different views: I call one ‘conceptualism’ and the other ‘doctrinalism’. The former is deductive and ‘philosophical’ whereas the latter is inductive and ‘pragmatic’. While the two views have sometimes been aligned in opposition to certain views they were both in opposition to, they are actually fundamentally at odds with each other. I demonstrate this by identifying eight parameters on which the two are opposed. After presenting the two views, I turn to evaluating the two views. I first argue that conceptualism is indefensible, and that though …

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 …

The Philosopher And The Developer: Pluralist Moral Theory And The Law Of Condominium, Jason Leslie

Osgoode Hall Law Journal

This paper analyzes the evolving law of condominium from the perspective of the moral philosophy of property, focusing in particular on neo-Aristotelian value or pluralist ethics. By combining aspects of traditional property law, corporate law, and municipal politics, condominium provides a flexible tool for ownership and private land use planning. Condominium, however, also poses novel and unique challenges to both legal doctrine and the very meaning of private property. After describing and comparing the pluralist approach to moral philosophy of property and the approach of its main rivals—deontology and utilitarianism—the paper describes how condominium is understood by each approach and …

Legal Anarchism: Does Existence Need To Be Regulated By The State, Sirus Kashefi

PhD Dissertations

This thesis asks does existence need to be regulated by the State? The answer relies on legal anarchism, an interdisciplinary, particularly criminal law and philosophy, and unconventional research project based on multiple methodologies with a specific language. It critically analyzes and consequently rejects State law because of its unjustified and unnecessary nature founded on unlimited violence and white-collar crime (Chapters 1-4), on the one hand, and suggests some alternatives to the Governmental legal system founded on agreement and peace (Chapter 5), on the other hand. It furthermore takes into account the elements of time and space, which means the ecological, …