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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.
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Legal Ethics As A Moral Idea: A Theory Of Philosophical Legal Ethics Based On The Work Of Lon Fuller, Emanuel Raul Tucsa

LLM Theses

The legal philosophy of Lon Fuller, both in his idea of internal morality and in his theory of legal interpretation, is particularly useful for the purpose of making sense of the relationship between law and morality vis-à-vis the legal profession. Legal ethicists have recently developed accounts of legal ethics that are based on jurisprudential theories. These include the exclusive positivist theory of Tim Dare, the inclusive positivist approach of Bradley Wendel, and the substantive contextual judgment view of William Simon. Additionally, David Luban has proposed and evaluated an insightful interpretation of Fuller’s legal philosophy.

In this paper, I will argue …

Fuller And Godel: Prophets Against The Evils Of Positivism: How The Natural Law Is Necessary To Provide Legal Meaning And Consistency, Henry James Garon

LLM Theses

Gödel showed that formal systems which discuss natural numbers cannot be complete or prove their own consistency. Incompleteness in this sense is limited to formal systems, and so is not applicable to law by it own terms.

Looking to the philosophy behind the Incompleteness Theorem, Gödel intended to show that positivism was a bankrupt world-view, and this resonates strongly with Lon Fuller. Fuller is analogous to Gödel in his condemnation of the positivist philosophy because he showed that a system of rules, by itself, was not capable of rendering judgments. A legal system is dependent upon an external morality, but …

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

Librarian Publications & Presentations

No abstract provided.

Comment On Frederick Schauer’S “Was Austin Right After All? On The Role Of Sanctions In A Theory Of Law", Craig Scott

Conference Papers

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 …

Pluralism, Disagreement, And Globalization: A Comment On Webber's "Legal Pluralism And Human Agency", David Schneiderman

Osgoode Hall Law Journal

No abstract provided.

Legal Pluralism And Human Agency, Jeremy Webber

Osgoode Hall Law Journal

Much legal-pluralist scholarship tends to naturalize "the law of the context," treating that law as though it were inherent in social interaction, emerging spontaneously, without conscious human decision. This view overstates the role of agreement in human societies and mischaracterizes the nature of law, including non-state law. All law is concerned with establishing a collective set of norms against a backdrop of normative disagreement, not agreement. It necessarily contains mechanisms for bringing contention to a provisional close, imposing a collective solution. This article presents a theory of legal pluralism that takes human disagreement seriously. The theory retains four themes crucial …

H. L. A. Hart: A Life In The Perspective Of Law And Philosophy; A Life Of H. L. A.: The Nightmare And The Noble Dream, By Nicola Lacey, Keith Culver

Osgoode Hall Law Journal

No abstract provided.

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 …

Carl Schmitt's Nomos Of The Earth, Mark Antaki

Osgoode Hall Law Journal

No abstract provided.

Law's Meaning, Brian Slattery

Osgoode Hall Law Journal

It is often thought that the meaning of a legal provision must reside in the minds of its authors or its interpreters, or a combination of the two. Indeed, the point may seem so obvious that it scarcely needs any justification. Is there any sense, then, in the claim sometimes made by judges that a law has a meaning of its own, one that is distinct from the intentions of authors and interpreters alike? At first sight, the claim appears extravagant and self-serving. However, there is more to it than meets the eye. Drawing on an example from the world …

Michael And Me: A Postmodern Friendship, Allan C. Hutchinson

Osgoode Hall Law Journal

This paper offers a review of The Limits of Freedom of Contract as an exercise in postmodern critique and politics. It examines the extent to which the book is informed by the postmodern motifs of contingency and indeterminacy. It attributes difficulties in Michael's analysis to a lack of postmodern nerve. Finally, it provides a contrast to a law-and-economics notion of citizenship which is applied to the problem of racist practices in the marketplace.

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 …