45 research outputs found
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Some Recent Developments in Canadian Constitutional Theory with Particular Reference to Beatty and Hutchinson
No full textThis article provides a critique of recent books by two prominent Canadian constitutional theorists - David Beatty\u27s Constitutional Law in Theory and Practice and Allan Hutchinson\u27s 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 judicial review and who doubt the beneficence of a rights-dominated regime; and progressive deviationists who are somewhat nervous of both rights discourse and judicial review but who seek to make the best of an imperfect set of constitutional institutions. According to Devlin, Beatty and Hutchinson represent the first and second of these positions, Beatty being a fervent advocate of the Charter and judicial review and Hutchinson an unapologetic critic of both. Beatty argues that a constitution can insulate basic rights from contamination by the contingencies of politics, and that the courts should use the principles of rationality and proportionality, rather than perceptions of legislative intent, in scrutinizing government action for compliance with the constitution. Hutchinson, in contrast, argues for what he calls a dialogic model, maintaining that because political decision-making is rooted in electoral democracy, it is more legitimate than judicial decision-making. Devlin places himself closer to Hutchinson than to Beatty, but he questions the ability of Hutchinson\u27s dialogic model to provide a sufficient means to move from rights talk and social inequality to democratic and social equality
Some Recent Developments in Canadian Constitutional Theory with Particular Reference to Beatty and Hutchinson
No full textThis article provides a critique of recent books by two prominent Canadian constitutional theorists - David Beatty\u27s Constitutional Law in Theory and Practice and Allan Hutchinson\u27s 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 judicial review and who doubt the beneficence of a rights-dominated regime; and progressive deviationists who are somewhat nervous of both rights discourse and judicial review but who seek to make the best of an imperfect set of constitutional institutions. According to Devlin, Beatty and Hutchinson represent the first and second of these positions, Beatty being a fervent advocate of the Charter and judicial review and Hutchinson an unapologetic critic of both. Beatty argues that a constitution can insulate basic rights from contamination by the contingencies of politics, and that the courts should use the principles of rationality and proportionality, rather than perceptions of legislative intent, in scrutinizing government action for compliance with the constitution. Hutchinson, in contrast, argues for what he calls a dialogic model, maintaining that because political decision-making is rooted in electoral democracy, it is more legitimate than judicial decision-making. Devlin places himself closer to Hutchinson than to Beatty, but he questions the ability of Hutchinson\u27s dialogic model to provide a sufficient means to move from rights talk and social inequality to democratic and social equality
Normative, and Somewhere to Go? Reflections on Professional Responsibility
No full textIn this article the author offers some reflections on professional responsibility. He straddles the optimist and pessimist perspectives espousing \u27\u27pessoptimism as a more adequate position than either extreme. The author begins by deconstructing the title of the conference in which the paper was delivered: A New Look: A National Conference on the Legal Profession and Ethics, which took place in Calgary, in June 1994. Pursuing a middle path between the optimistic and pessimistic approaches to professional responsibility, the author outlines the parameters of his ethical vision which provides some directions for legal practice. There are three elements to his restructured ethical vision: the talent of critical self-reflexivity, the maxim to act responsibly and the injunction to do no harm. The author draws two conclusions from his study: first, it is possible to talk about legal ethics and to outline some procedural and substantive ethical guidelines. Second, ethics are plural and diversified, contingent upon the nature of the law job involved. Finally, the author attempts to locate the ethical triad in the context of several different aspects of the legal profession; in legal education, as law students, lawyers, judges, benchers and legislators. He suggests that the primary responsibility for improved legal service lies with those who are within the system and that legal ethics ought to be seen as enforceable \u27\u27public norms. In conclusion, returning to the notion of \u27\u27pessoptimism, the author advocates an optimistic approach but sets out reservations and cautions. In the end, the author hopes that if the legal community cannot agree to do more good, perhaps it can at least agree to do less harm
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Law, Postmodernism and Resistance: Rethinking the significance of the Irish hunger strike, part II
No full textIn recent years legal scholars have drawn upon the insights of postmodernism and deconstruction as methods for the interpretation of legal texts. In this article the author attempts to assess the work of Baudrillard, Derrida and Lyotard not merely as interpretative strategies but as potential socio-legal theories. In order to ground the analysis, the author locates the assessment in the context of the hunger strike by Irish prisoners in 1981. Drawing on the insights of postmodernism and deconstruction the author proposes that the fast can be understood as the erruption of a pre-colonial juridical consciousness by means of which the prisoners, quite literally, embodied law. However, by highlighting the specifics of the hunger strike, the author cautions that an unmodified postmodernism may generate some significant hurdles for those who seek a progressive and empowering sociolegal theory
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Law, Postmodernism and Resistance: Rethinking the significance of the Irish hunger strike, part I
No full textIn recent years legal scholars have drawn upon the insights of postmodernism and deconstruction as methods for the interpretation of legal texts. In this article the author attempts to assess the work of Baudrillard, Derrida and Lyotard not merely as interpretative strategies but as potential socio-legal theories. In order to ground the analysis, the author locates the assessment in the context of the hunger strike by Irish prisoners in 1981. Drawing on the insights of postmodernism and deconstruction the author proposes that the fast can be understood as the erruption of a pre-colonial juridical consciousness by means of which the prisoners, quite literally, embodied law. However, by highlighting the specifics of the hunger strike, the author cautions that an unmodified postmodernism may generate some significant hurdles for those who seek a progressive and empowering sociolegal theory
Recommended from our members
Normative, and Somewhere to Go? Reflections on Professional Responsibility
No full textIn this article the author offers some reflections on professional responsibility. He straddles the optimist and pessimist perspectives espousing \u27\u27pessoptimism as a more adequate position than either extreme. The author begins by deconstructing the title of the conference in which the paper was delivered: A New Look: A National Conference on the Legal Profession and Ethics, which took place in Calgary, in June 1994. Pursuing a middle path between the optimistic and pessimistic approaches to professional responsibility, the author outlines the parameters of his ethical vision which provides some directions for legal practice. There are three elements to his restructured ethical vision: the talent of critical self-reflexivity, the maxim to act responsibly and the injunction to do no harm. The author draws two conclusions from his study: first, it is possible to talk about legal ethics and to outline some procedural and substantive ethical guidelines. Second, ethics are plural and diversified, contingent upon the nature of the law job involved. Finally, the author attempts to locate the ethical triad in the context of several different aspects of the legal profession; in legal education, as law students, lawyers, judges, benchers and legislators. He suggests that the primary responsibility for improved legal service lies with those who are within the system and that legal ethics ought to be seen as enforceable \u27\u27public norms. In conclusion, returning to the notion of \u27\u27pessoptimism, the author advocates an optimistic approach but sets out reservations and cautions. In the end, the author hopes that if the legal community cannot agree to do more good, perhaps it can at least agree to do less harm
Law, Postmodernism and Resistance: Rethinking the significance of the Irish hunger strike, part II
No full textIn recent years legal scholars have drawn upon the insights of postmodernism and deconstruction as methods for the interpretation of legal texts. In this article the author attempts to assess the work of Baudrillard, Derrida and Lyotard not merely as interpretative strategies but as potential socio-legal theories. In order to ground the analysis, the author locates the assessment in the context of the hunger strike by Irish prisoners in 1981. Drawing on the insights of postmodernism and deconstruction the author proposes that the fast can be understood as the erruption of a pre-colonial juridical consciousness by means of which the prisoners, quite literally, embodied law. However, by highlighting the specifics of the hunger strike, the author cautions that an unmodified postmodernism may generate some significant hurdles for those who seek a progressive and empowering sociolegal theory
Mapping Legal Theory
No full textIn this essay, the author briefly outlines recent trends in Canadian jurisprudence. Beginning with a brief overview of the classical jurisprudential debate between natural lawyers, legal positivists, and legal realists, the author then provides an introduction to a new theoretical tradition which he terms Artifactualism , as well as a survey of contemporary \u27\u27Artifactualist Jurisprudence . He argues that there has been a significant theoretical shift away from the classical conceptualization of law as morality (as embodied in natural law, and challenged by legal posltlvism and legal realism), toward the conceptualization of law as politics (as promulgated by artifactualism). This new conceptualization of law is the terrain of struggle over the meaning and quality of social existence has informed the works of Artifactualist jurisprudents in the areas of Liberalism, Marxism, Feminism, First Nations and Critical Legal Studies, and serves to elucidate some of the tensions in the Canadian Charter of Rights and Freedoms
Recommended from our members
Mapping Legal Theory
No full textIn this essay, the author briefly outlines recent trends in Canadian jurisprudence. Beginning with a brief overview of the classical jurisprudential debate between natural lawyers, legal positivists, and legal realists, the author then provides an introduction to a new theoretical tradition which he terms Artifactualism , as well as a survey of contemporary \u27\u27Artifactualist Jurisprudence . He argues that there has been a significant theoretical shift away from the classical conceptualization of law as morality (as embodied in natural law, and challenged by legal posltlvism and legal realism), toward the conceptualization of law as politics (as promulgated by artifactualism). This new conceptualization of law is the terrain of struggle over the meaning and quality of social existence has informed the works of Artifactualist jurisprudents in the areas of Liberalism, Marxism, Feminism, First Nations and Critical Legal Studies, and serves to elucidate some of the tensions in the Canadian Charter of Rights and Freedoms
On the Road to Radical Reform: A Critical Review of Unger\u27s Politics
No full textTwo aims drive this essay. The first is to provide the reader with an accessible, yet relatively comprehensive, introduction to Roberto Mangabeira Unger\u27s social and legal theory. The second aim is to evaluate the strengths and weaknesses of Unger\u27s 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
