Abstracts from Volume XIX, Number 1 (January 2006)

“The Self and Strong Legal Theory: A Heideggerian Alternative to Fish’s Scepticism”

Author: Gavin Byrne 
School of Law 
University of Birmingham 
B15 2TT 
United Kingdom

This essay concerns the question of whether it is possible to have an account of what judges ought to do when they decide cases if one accepts Stanley Fish’s thesis that man is a socially constructed creature, who can only see the world around him in terms of the practice that he is involved in. It puts forward the view 
that such a position is defensible, provided that one makes different metaphysical commitments to the ones made by Fish. It is argued that Fish is best understood as a metaphysical idealist. The essay seeks to demonstrate that Martin Heidegger’s conception of the self and interpretation are similar to those of Fish, but that, when understood as involving a commitment to metaphysical realism, Heidegger’s philosophy can hold the possibility of strong legal theory open in a way that Fish’s cannot. Michael S. Moore’s natural law position is used in order to articulate what such a position might be. Moore’s example of what a judge ought to do if called upon to define ‘death’ as a concept is used to illustrate the difference between Fish and Heidegger when it comes to metaphysics and strong legal theory, despite their similarities when it comes to an account of interpretation and of the self.

"Some Questions for the United Kingdom’s Republican Constitution" Critical Notice of Adam Tomkins, "The Republican Constitution" (Oxford, Hart, 2005).

Author: Andrew Geddis 
University of Otago, NZ 
Faculty visitor 2006 
C/O Faculty of Law 
University of Victoria 
PO Box 2400, STN CSC 
Victoria, BC< br />V8W 3H7

This book provides an important addition to the debate about the nature and normative basis for the United Kingdom's constitutional ordering. It combines a strong argument against moves to adopt forms of "legal constitutionalism" with a defence of the country's existing "political constitution", one sourced in the ideals of republican government. This critical review explores the structure of Tomkins' claims, and raises three questions about how they might apply to certain aspects of the United Kingdom's constitutional order: the place of a republican United Kingdom in an increasingly integrated Europe; the place of the courts in a republican constitutional order; and the role of political parties in a republican parliament.

The essay presents and analyses the views of the philosophers that had gross influence in developing the defence: Samuel Pufendorf, Immanuel Kant, Johan G. Fichte and P.J. Anselm Feuerbach.

Author: Khalid Ghanayim 
Faculty of Law 
University of Haifa 
Mt. Carmel 
Haifa 31905 

Should a person in a life-threatening situation have a defence when he saves his life by causing death to a person who was not involved in creating the life-threatening situation? Viz., does the perpetrator have an excused necessity defence that negates imposing the punishment? This issue - excused necessity defence - has fascinated the legal world since antiquity and has been described as one of the most complicated issues in criminal law. The well-known case is the "plank of Carneades" or "two men and the plank". Two men, A and B, are shipwrecked on the high seas; as their strength ebbs and they are about to drown, they see a wooden plank that is just large enough to support only one of them. A reaches the plank first and grabs it, but B, faced with the prospect of certain death, pushes A off the plank, resulting in the death of A by drowning. B then grabs the plank and manages to save his own life. Should B have a defence if he is prosecuted for pushing A off the plank in these circumstances?

“Playing with Hutchinson’s Nonfoundationalism” Critical Notice of Allan C. Hutchinson, “It’s All in the Game: A Nonfoundationalist Account of Law and Adjudication” (Duke UP, 2000)

Author: Ben Hackett

Although we are provided with a clever game of metaphor for the description of adjudication and a rather diverse survey of other jurisprudential theories, Hutchinson fails to provide a distinct, coherent, theory of adjudication. He either overly radicalizes foundationalism or under radicalizes antifoundationalism.

“The Methodology of Jurisprudence: Thirty Years Off The Point”

Author: Andrew Halpin

School of Law 
Swansea University 
Singleton Park 
Swansea SA2 8PP 

This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that methodology is not a resource capable of offering an independent assessment of the merits of competing theories.

Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.

A number of ancillary matters are discussed in the essay including: semantic (and metasemantic) approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law’s Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz’s split theory of legal reasoning and law.

“Uncommonly Common: The Nature of Common Law Judgment”

Author: Graham Mayeda 
Faculty of Law 
Common Law Section 
University of Ottawa 
57 Louis-Pasteur St. 
Ottawa, Ontario
K1N 6N5

What is the difference between “judge-made law” and the laws created by an elected assembly? The purpose of this paper is to investigate this question by addressing the differences and similarities between common law judgment and political judgment. I contend that there is something distinctive about common law judgment. This distinctive nature is the result of the different ground of validity of legal and political decisions. Legal judgment has a distinct ground of validity. This validity derives from two aspects of common law judgment: the impartiality of the decision-maker and the critical function built into common law reasoning itself. I articulate this view by drawing on Hannah Arendt’s lectures on Immanuel Kant’s Critique of Judgment, as well as on the work of theorists such as H.L.A. Hart, Ronald Dworkin and Joseph Raz. I also discuss Canadian and U.K. cases in which judges address their role and explain their views on precedent, the need for judgments to respond to the arguments of the parties, and the importance of law adapting to the constantly changing circumstances of the modern world.

"Professor Raz, the Rule of Law, and the Tobacco Act"

Author: Devrin Froese 
Law Faculty 
University of Saskatchewan 
Saskatoon, Canada

In 2000, the BC government sued 14 “tobacco manufacturers” pursuant to the Tobacco Damages and Health Care Costs Recovery Act. The Tobacco Companies challenged the constitutionality of the legislation, alleging amongst other things that the Tobacco Act violated the rule of law. In this paper, I begin by showing that the Supreme Court of Canada adopts a formal approach to the rule of law devoid of much substantive content. This, I argue, is in line with the views of Joseph Raz. I then argue that the Tobacco Companies’ reliance on Raz’s views for support in its claim that the Tobacco Act violates the rule of law is misguided. Far from invalidating the Tobacco Act, Raz’s view can be understood to license it. In the last section of the paper, I show that a formal approach to the rule of law such as Raz’s does not confine Charter interpretation.

“Comparative History and the Internal View of French, German, and English Private Law”

Author: Catherine Valcke 
Faculty Visitor: University of Montreal (2005-6) 
Faculty of Law 
University of Toronto 
Queens Park 78 
Ontario, Canada M5S 2C5

This Article explores the different intellectual and socio-political contexts that attended the emergence of the French, German, and English legal systems with a view to understanding French, German, and English private law from the perspective of the participants in these systems. The French legal system is a child of the Cartesian dualism that marked the Age of Reason, according to which the material world can and ought to be fully dominated by the human intellect. This conception of the relation of facts to ideas arguably is reflected in the structure and design of the French civil code, in such institutional features as the French conception of the role of the judge, as well as in the tendency of French jurists to view contractual consent subjectively. In contrast, the German legal system congealed at a time when Cartesian dualism was losing ground to German idealism. The dialectic conception of facts and ideas favoured by the German idealists arguably made its way into several institutional features of the German legal system, including the content of the BGB, the codification process, the conception of the role of the judge, the style of judicial decisions, and the greater inter-penetration of public and private law. It may also partly explain why German jurists have tended to view contractual consent as simultaneously objective and subjective. Finally, whereas both the French and the German legal systems emerged from highly intellectual contexts, the English legal system grew from a maize of pragmatic political and administrative considerations that left little room for explicit ideas. The emphasis on hard facts still is palpable in many aspects of contemporary English law, in particular, the doctrine of stare decisis, the conception of the judicial function, and the mode of reasoning by analogy. It arguably also is reflected in the tendency of English judges to privilege the objective conception of contractual consent.