Public Law and Legal Theory Commons^™

Utility And Rights In Common Law Reasoning: Rebalancing Private Law Through Constitutionalization, Hugh Collins

Dalhousie Law Journal

In the evolution of private law, legal reasoning has always confronted the fundamental problem of reconciling private interests with collective goods. Philosophers analyse this problem ofjustice in terms ofprotecting individual rights whilst at the same time maximizing utility or general welfare. The private law of tort, contract, and property rights that emerged in the nineteenth century provided a fortress of protections for individual rights, but the consequences for collective welfare were quickly found wanting. These consequences were addressed by the welfare state, regulation, and the separation of new spheres ofprivate law such as consumer law and labour lawfrom mainstream doctrine, …

The Challenges Of Institutionalizing Comprehensive Restorative Justice: Theory And Practice In Nova Scotia, Jennifer Llewellyn, Bruce Archibald

Articles, Book Chapters, & Popular Press

The Nova Scotia Restorative Justice Program ("NSRJ") is one of the oldest and by all accounts the most comprehensive in Canada. The program centres on youth justice, and operates through referrals by police, prosecutors, judges and correctional officials to community organizations which facilitate restorative conferences and other restoratively oriented processes. More than five years of NSRJ experience with thousands of cases has led to a considerable rethinking of restorative justice theory and practice in relation to governing policies, standards for program implementation and responses to controversial issues. The purpose of this paper is to explore the significance of the Nova …

Religious Discourse In The Public Square, David Blaikie, Diana Ginn

Articles, Book Chapters, & Popular Press

Full, open, and civilized discourse among citizens is fundamental to the life of a liberal democracy. It seems trite to assert that no discourse should be prohibited or excluded simply because it is grounded in religious faith or employs religious beliefs to justify a particular position. Yet there are those who contend that it is improper for citizens to use religious arguments when debating or deciding issues in the public square, that metaphorical arena where issues of public policy are discussed and contested. In this article we challenge this position, examining the various arguments that are put forward for keeping …

Feminists, Angels, Poets, And Revolutionaries: What I'Ve Learned From Ruthann Robson And Nicole Brossard On What It Means To Be A Law Teacher, Kim Brooks

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This short piece was written as a tribute to the contributions Ruthann Robson has made to legal pedagogy, and was presented at a Symposium in her honor held at CUNY.

Depriving Law Reform Of Its Potential? New Perspectives On The Public-Private Divide Law Commission Of Canada, Ed. (Vancouver: University Of British Columbia Press, 2003), Richard Devlin Frsc

Articles, Book Chapters, & Popular Press

New Perspectives on the Public-Private Divide is the second installment in a new series, Legal Dimensions, sponsored by the Canadian Association of Law Teachers, the Canadian Law and Society Association, the Canadian Council of Law Deans and the Law Commission of Canada. The ambitions of this series are large: to "examine various issues of law reform form a multidisciplinary perspective [and]... to advance our knowledge about law and society through the analysis of fundamental aspects of law."

The focus on the public-private divide is an excellent choice for the Legal Dimensions Series for no matter how one conceptualizes the relationship, …

Queering Legal Education: A Project Of Theoretical Discovery, Kim Brooks, Debra Parkes

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The article has two parts. Part II discusses the materials we reviewed to inform the development of a queer legal pedagogy. In particular, it examines the categories of queer legal scholarship and highlights the contributions of other outsider scholars to legal education debates. Early in our research, we found limited material on queer legal pedagogy, and we discovered nothing that posited a theoretical approach. We did, however, find rich resources written by other outsiders to law from which some design principles for queer legal pedagogy might be drawn. We should note at the outset that our goal in this Part …

Amending Authors And Constitutional Discourse, Barbara Darby

Dalhousie Law Journal

The author surveys various theories related to the concept of constitutional amendment, reviewing the importance of the notion of authorship to the amending process, and the related theories about constitutional legitimacy and judicial activism. In seeking an alternative conceptualization of authorship that is applicable to constitutional amendment, she reviews Michel Foucault's essay on authorship, and specifically his notion of the transdiscursive author who originates a "return" to an original text, which she presents as a useful context in which to read the constitutional amendment process. Constitutional discourse, using Foucault's approach to discourse, occupies a significant cultural and social position. She …

The Charter And Anglophone Legal Theory, Part I, Richard F. Devlin Frsc

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The Canadian Charter of Rights and Freedoms has generated not only new terrain over which discursive positions are mobilized, but it has catalysed theoretical reflection about law, society, state, and the self. Examining the implications of the Charter for Anglophone legal theory, the author conducts both a qualitative and quantitative survey of jurisprudential work on the Charter and concludes that the Charter's impact on legal theory has been significant. The Charter has prompted expansion of the range of interdisciplinary influences, contextualized theoretical reflection, and made jurisprudence more engaged with and relevant to Canadian social life. The Charter also has facilitated …

The Charter And Anglophone Legal Theory, Part Ii, Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

The Canadian Charter of Rights and Freedoms has generated not only new terrain over which discursive positions are mobilized, but it has catalysed theoretical reflection about law, society, state, and the self. Examining the implications of the Charter for Anglophone legal theory, the author conducts both a qualitative and quantitative survey of jurisprudential work on the Charter and concludes that the Charter's impact on legal theory has been significant. The Charter has prompted expansion of the range of interdisciplinary influences, contextualized theoretical reflection, and made jurisprudence more engaged with and relevant to Canadian social life. The Charter also has facilitated …

Some Recent Developments In Canadian Constitutional Theory With Particular Reference To Beatty And Hutchinson, Richard F. Devlin Frsc

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This article provides a critique of recent books by two prominent Canadian constitutional theorists - David Beatty's Constitutional Law in Theory and Practice and Allan Hutchinson's Waiting for CORAF: A Critique of Law and Rights. Devlin begins with a brief overview of the various positions that have been staked out in writing on the Canadian Charter of Rights and Freed oms during the last decade. He identifies three broad constituencies: Charter advocates who assume that rights are an "unqualified human good" and that judicial review is an important check on majoritarian zealotry; Charter critics who emphasize the undemocratic nature of …

A Feminist Exploration Of Issues Around Assisted Death, Jocelyn Downie, Susan Sherwin

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Although a great deal of public attention has recently been focused on issues around assisted death remarkably little of it has come from an explicitly feminist perspective. This is a serious omission at a time when legislators are feeling pressure to review and perhaps revise existing policies on assisted death, and when the policies they contemplate may have a significant negative and disproportionate impact on women. We think it is essential that there be some discussion of these issues from an explicitly feminist perspective in order to ensure that concerns about the oppression of women become part of the public …

Dworkin And The Doctrine Of Judicial Discretion, David Jennex

Dalhousie Law Journal

In a series of books and articles published over the last thirty years, Ronald Dworkin has relentlessly attacked the positivist view according to which law is a species of empirically verifiable fact. A position closely associated with this view, and with which Dworkin also takes issue, is the doctrine of judicial discretion. This doctrine asserts that in hard cases - cases in which it is unclear what the law requires - there is no legally required dispensation, so that judges are entitled to use discretion in making their decision. Dworkin disagrees, maintaining that in many such cases a thorough investigation …

Doubting Donald: A Reply To Professor Donald Galloway's 'Critical Mistakes', Richard F. Devlin Fsrc

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In a recent article Professor Galloway has argued that supporters of the Critical Legal Studies perspective make five fundamental errors in their analyses of liberal theory and as a result have failed in their deconstructive agenda. In this essay Professor Devlin replies to these criticisms and posits that Galloway's essay in retrieval is itself subject to the very same errors of which he accuses the "crits". Moreover, it is argued that the nature of Galloway 's partial defence of liberalism confirms rather than denies the accuracy of critical assessments.

Retrieving Positivism: Law As Bibliolatry, Frederick C. Decoste

Dalhousie Law Journal

Legal positivism is a curious phenomenon in both its theoretical and sociological parts. It is curious as theory because its very existence, as theory, is often questioned, and because, even when its existence is admitted, the nature of the theory, and who does and does not qualify as an adherent most often remains in dispute. It is curious sociologically because rare is the legal theoretician who forthrightly endorses positivism: positivists, it would appear, are as scarce as the formalists among whom they used to be numbered.

On The Road To Radical Reform: A Critical Review Of Unger's Politics, Richard F. Devlin Frsc

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Two aims drive this essay. The first is to provide the reader with an accessible, yet relatively comprehensive, introduction to Roberto Mangabeira Unger's social and legal theory. The second aim is to evaluate the strengths and weaknesses of Unger's most recent scholarship and to make some suggestions as to where he goes awry. In particular, the author draws several parallels between the Ungerian enterprise and that of some feminists. The central motivation of the essay is to keep the critical conversation between male radicals and feminists open. To this end, the author posits the possibility of mutually beneficial contributions.

Critical Legal Theory And The Politics Of Pragmatism, Peter D. Swan

Dalhousie Law Journal

In this century mainstream legal scholarship in the United States has been subjected to various "crises of confidence" over the nature of the adjudication process. One of the key features of more traditional legal scholarship has been a belief in legal texts such as the constitution, statutes and precedents which are said to possess discrete and objective meaning capable of being discovered by objective detached observers. This belief in the authority of the text has been most clearly expressed in American constitutional law scholarship which has been dominated until recently by the quest to reveal the public moral values that …

Nomos And Thanatos (Part A), The Killing Fields: Modern Law And Legal Theory, Richard F. Devlin Frsc

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The essay is to be published in two parts. Part A, "The Killing Fields .. . ", is a criticai inquiry into the way in which the "disciplines" of law and legal theory rationalize violence. I begin my discussion with a Celtic triptych - a series of three narratives - that is designed to provide the reader with some background information in order that he or she may acquire a sense of the perspective and experiential context from which this essay emerges.

Next, I briefly outline the central role which violence has played in structuring our received tradition of jurisprudential …

Twisting The Tourniquet Around The Pulse Of Conventional Legal Wisdom: Jurisprudence And Law Reform In The Work Of Robert A Samek, Richard F. Devlin Frsc

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Despite some lingering reservations, after a reading and re-reading, analysis and counter-analysis, critique, reflection and synthesis of over thirty articles and two books, I now feel comfortable with Samek's work and confident enough to present this reconstruction of his theory in order that his thoughts will be more accessible to those who might be interested

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

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Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

"Appropriate And Just": Section 24 Of The Canadian Charter Of Rights And Freedoms And The Question Of Judicial Legitimacy, W A. Bogart

Dalhousie Law Journal

At the heart of procedural law lie questions concerning the role of courts in a liberal democratic state. What is the essence of their function? What is the proper relationship between the judiciary and other governmental institutions? What is the well-spring for values with which courts can make law? The questions are perennials and will be asked so long as there is interest in the workings and malfunctions of all aspects of government. Courts, like all institutions of government, are continually being assessed on their own terms and in relation to other branches. In Canada this examination has received a …