•  177
    Legal Time
    Canadian Journal of Law and Jurisprudence 31 (2): 281-322. 2018.
    This article claims that legal time has excluded and submerged an important sense of time inside structured time. Structured time has two forms. Each form of structured time identifies a beginning to a legal order (droit, Recht) as a whole. The one form has focussed upon a critical date. The critical date is exemplified by a basic text, such as the Constitution, or the judicially identified date of settlement, sovereignty or territorial control of a territory by the state. The second form of str…Read more
  •  1490
    Derrida's Kafka and the Imagined Boundary of Legal Knowledge
    Law, Culture and the Humanities 12 (1): 1-27. 2016.
    This article raises the critical issue as to why there has been assumed to be a boundary to legal knowledge. In response to such an issue I focus upon the works of Jacques Derrida who, amongst other things, was concerned with the boundary of the disciplines of Literature, Philosophy and Law. The article argues that the boundary delimits the law as if the inside of a boundary to territorial-like legal space in legal consciousness. Such a space is not possible without the boundary. Derrida’s most …Read more
  •  351
    The thrust of this paper addresses how the notion of an author relates to the authority of a law. Drawing from the legal thought of Hobbes, Bentham, and John Austin, the Paper offers a sense of the author as a distinct institutional source of the state. The Paper then addresses the more difficult legal theories in this context: those of HLA Hart, Ronald Dworkin and Hans Kelsen. The clue to the latter as well as the earlier theorists is a presupposed inaccessible author or ghost. The presupposed …Read more
  •  8
    The Trap
    Law and Critique 13 (1): 1-28. 2002.
    A professor is brought before a secret tribunalin his law faculty for the purpose of decidingthe appropriateness of a student's grade. Thegrounds of the grade appeal are that theprofessor had taught critically instead ofpractically and that he had done so with anacademic bias and prejudice. He is also allegedto have taught philosophy rather than law. After many hours of examination andcross-examination as a defendant and as anexpert witness, the professor, Flink, begins adialogue with a spirit i…Read more
  •  15
    Making use of Kafka's The Trial, this book explores the theory behind modern legal discourse. In order to investigate the subject the author explores a range of questions: how and why does the legal discourse of a modern state conceal the experienced meanings of a non-knower; if one has been harmed, does the legal discourse recognize the harm; does the harm sometimes slip through the juridical categorizations; if recognized, is the harm re-presented through a vocabulary, grammar and gestural sty…Read more
  •  4
    Making use of Kafka's The Trial, this book explores the theory behind modern legal discourse. In order to investigate the subject the author explores a range of questions: how and why does the legal discourse of a modern state conceal the experienced meanings of a non-knower; if one has been harmed, does the legal discourse recognize the harm; does the harm sometimes slip through the juridical categorizations; if recognized, is the harm re-presented through a vocabulary, grammar and gestural sty…Read more
  •  14
    Conklin's thesis is that the tradition of modern legal positivism, beginning with Thomas Hobbes, postulated different senses of the invisible as the authorising origin of humanly posited laws. Conklin re-reads the tradition by privileging how the canons share a particular understanding of legal language as written. Leading philosophers who have espoused the tenets of the tradition have assumed that legal language is written and that the authorising origin of humanly posited rules/norms is inacce…Read more
  •  57
    Hegel's Laws: the Legitimacy of a Modern Legal Order
    Stanford University Press. 2008.
    Hegel's Laws serves as an accessible introduction to Hegel's ideas on the nature of law. In this book, William Conklin examines whether state-centric domestic and international laws are binding upon autonomous individuals. The author also explores why Hegel assumes that this arrangement is more civilized than living in a stateless culture. The book takes the reader through different structures of legal consciousness, from the private law of property, contract, and crimes to intentionality, the f…Read more
  •  249
    'The Preface' Hegel's Legal Philosophy, and the Crises of His Time
    In Johnathan Lavery, William Sweet & Louis Groarke (eds.), Ideas Under Fire, Rowman & Littlefield. pp. 161-190. 2017.
    Hegel experienced several personal, political, and professional crises during his life. These crises impacted his dense theory about the importance of rational self-reflection in the organic character and evolution of law. The article argues that Hegel’s Preface to the Philosophy of Right manifests how one philosopher came to terms with the personal, social and political crises in which he found himself. In particular, the article outlines the central themes of the Preface and then explicates th…Read more
  •  146
    'Access to Justice' as Access to a Lawyer's Language
    Windsor Yearbook of Access to Justice 10 454-467. 1990.
    This essay claims that ‘access to justice’ has erroneously been assumed to be synonymous with invisible concepts instead of access to a lawyer’s language. The Paper outlines how a language concerns the relation between signifiers, better known as word-images, on the one hand, with signfieds, better known as concepts, on the other. The signifieds are universal, artificial and empty in content. Taking the Canadian Charter of Rights and Freedoms as an example, officials have assumed that Charter kn…Read more
  •  190
    Derrida's Territorial Knowledge of Justice
    In Ruth Buchanan, Stewart Motha & Sunday Pahuja (eds.), Reading Modern Law: Critical Methodologies and Sovereign Formations, Rutledge. pp. 102-129. 2012.
    Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or…Read more
  •  731
    Human Rights and the Forgotten Acts of Meaning in the Social Conventions of Conceptual Jurisprudence
    Metodo. International Studies in Phenomenology and Philosophy 2 (1): 169-199. 2014.
    This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conce…Read more
  •  158
    Whither Justice: The Common Problematic of Five Models of 'Access to Justice'
    Windsor Yearbook of Access to Justice 19 297-316. 2001.
    This article surveys five approaches to justice in contemporary Anglo-American legal thought: pure proceduralism, the sources thesis, the semiotic model, the social convention model, and the ‘law and...’ model. Each approach has associated justice with the foundation of the legal structure of rules, principles and the like. The foundation for pure proceduralism has rested in the conditions (such as majority will, freedom of expression, and political equality), external to the pure process. For t…Read more
  •  236
    Which Takes Precedence: Collective Rights or Culture?
    In Almed Momeni-Rad, Arian Petoft & Alireza Sayadmansom (eds.), Cultural Rights: an Anthology, Iranian Cultural Services Society. pp. 115-152. 2015.
    This Paper claims that, contrary to the common assumption of Anglo-American jurists, collective rights are secondary to a analytically and experientially prior culture. Culture constitutes the identity and content of a collective right. The thrust of my Paper examines the disjunction between collective rights and the culture constituting a collective right. The clue to the disjuncture is that a collective right is assumed to be a rule or principle signified or represented in a written language. …Read more
  •  140
    The Political Theory of Mr Justice Holmes
    Chitty's Law Journal 26 (6): 200-211. 1978.
    Commentators of the judicial decisions of Justice Holmes have often situated the decisions inside the doctrines of freedom of expression and the rules and tests approach to legal analysis. This Paper situates his judgments in the context of a political theory. Drawing from his articles, lectures and correspondence, the Paper highlights Holmes’ reaction to the idealism and rationalism of the intellectual current before him. His view of human nature, conditioned by his war experience, is elaborate…Read more
  •  323
    Legal Modernity and Early Amerindian Laws
    Sociology of Law, Social Problems and Legal Policy 115-128. 1999.
    This essay claims that the violence characterizing the 20th century has been coloured by the clash of two very different senses of legal authority. These two senses of legal authority correspond with two very different contexts of civil violence: state secession and the violence characterizing a challenge to a state-centric legal authority. Conklin argues that the modern legal authority represents a quest for a source or foundation. Such a sense of legal authority, according to Conklin, clashes …Read more
  •  618
    Invisible Author of Legal Authority
    Law and Critique 7 (2): 173-192. 1996.
    The thrust of this paper addresses how the notion of an author relates to the authority of a law. Drawing from the legal thought of Hobbes, Bentham, and John Austin, the Paper offers a sense of the author as a distinct institutional source of the state. The Paper then addresses the more difficult legal theories in this context: those of HLA Hart, Ronald Dworkin and Hans Kelsen. The clue to the latter as well as the earlier theorists is a presupposed inaccessible author or ghost. The presupposed …Read more
  •  194
    Lon Fuller's Legal Structuralism
    In Bjarne Melkevik (ed.), Standing Tall Hommages a Csaba Varga, Pazmany Press. pp. 97-121. 2012.
    Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontologi…Read more
  •  418
    Husserl, the Differend and Kafka's 'The Trial'
    Analecta Husserliana 49 115-125. 1996.
    Kafka’s The Trial describes how K slowly loses his familiar language. He does speak a language but his language becomes monologic towards others and the language of others becomes monologic towards K. There seems to be no other person who, in a private and professional life, can respond to K’s words and gestures in a manner which K can understand. The others embody their own meanings into K’s words. Such meanings only possess value within the discourses of self-styled legal experts and officials…Read more
  •  143
    Clear Cases
    University of Toronto Law Journal 31 231-248. 1981.
    Theorists of the legal process in common law countries have, in recent years, been preoccupied with hard cases. A hard case occurs where a legal rule or legal rules cannot determine a uniquely correct result when applied to given facts. This paper examines what theorists and law practitioners alike have believed to be a very different kind of case: the clear case. Practising lawyers assure us that clear cases occupy a large percentage of their case load. Professional law teachers design teaching…Read more
  •  40
    Hegel and a Third Theory of Law
    The Owl of Minerva 48 (1/2): 57-74. 2016.
    Kenneth Westphal, in his “Hegel, Natural Law & Moral Constructivism,” offers an argument to the effect that Hegel elaborated a theory of natural law. Westphal contrasts such a natural law with positivism. Such a contrast holds out an either-or prospect: either Hegel is a legal positivist or he is a natural law thinker. I ask whether it is possible that Hegel elaborated a third theory of law other than that of positivism or of natural law. In addressing this possibility, I first raise a problem i…Read more
  •  29
    Hegel and a Third Theory of Law
    The Owl of Minerva 48 (1-2): 57-74. 2016.
    Kenneth Westphal, in his “Hegel, Natural Law & Moral Constructivism,” offers an argument to the effect that Hegel elaborated a theory of natural law. Westphal contrasts such a natural law with positivism. Such a contrast holds out an either-or prospect: either Hegel is a legal positivist or he is a natural law thinker. I ask whether it is possible that Hegel elaborated a third theory of law other than that of positivism or of natural law. In addressing this possibility, I first raise a problem i…Read more
  •  4
    This book identifies three approaches to understanding a constitution: the rational (drawn from Dicey), the conventional (drawn from Edward Coke) and the teleological (drawn from Aristotle). Drawing from an enormous background research into Canadian constitutional law, the author has identified how a classic legal judgement involves a contradiction between one or the other approach to understanding the nature of a constitution.
  •  5
    Essays on Third World Perspectives in Jurisprudence
    with M. L. Marasinghe
    Malayan Law Review. 1984.
    This anthology has contributions about the role of legal perspectives in many countries of the South.
  •  190
    The Notion of ‘civilisation’ in European and post-Enlightenment writings has recently been reassessed. Critics have especially reread the works of Immanuel Kant by highlighting his racial categories. However, this Paper argues that something is missing in this contemporary literature: namely, the role of the European legal culture in the development of a racial and ethnic hierarchy of societies. The clue to this missing element rests in how ‘civilisation’ has been understood. This Paper examines…Read more
  •  312
    This essay examines an ambiguity in Hans Kelsen’s theory of a norm. On the one hand, Kelsen claims to adhere to what he considers the ‘is/ought’ dichotomy. Kelsen claims that he is describing what really is. On the other hand, Kelsen seems to be understanding the is/ought dichotomy in a very different manner than that by which his contemporaries or, indeed, today’s readers understand the distinction. The clue to this ambiguity is Kelsen’s understanding of a norm. Although legal existence is said…Read more
  •  309
    The Utilitarian Theory of Equality Before the Law
    Ottawa Law Review 8 (3): 485-517. 1976.
    This Article argues that a particular political theory underlies the judicial interpretation of ‘equality before the law’. The Canadian Courts at the date of writing have elaborated two tests for the signification of ‘equality before the law’. The Article traces the two tests to the utilitarian political theory outlined by John Stuart Mill. The one test sets out the ‘greatest happiness of the greatest number’ or ‘social interests’ as the criterion for adjudicating equality. The second test ident…Read more
  •  604
    Statelessness and Bernhard Waldenfels' Phenomenology of the Alien
    Journal of the British Society for Phenomenology 38 (3): 280-296. 2007.
    This Paper addresses the problem of statelessness, a problem which remains despite treaties and judicial decisions elaborating distinct rules to protect stateless persons. I explain why this has been so. Drawing from the work of Bernhard Waldenfels, I argue that international and domestic courts have presupposed a territorial sense of space, a territorial knowledge and the founding date for the territorial structure of a state-centric international legal community. I then focus upon the idea tha…Read more
  •  275
    A Phenomenological Theory of the Human Rights of an Alien
    Ethical Perspectives 13 (3): 411-467. 2006.
    International human rights law is profoundly oxymoronic. Certain well-known international treaties claim a universal character for human rights, but international tribunals often interpret and enforce these either narrowly or, if widely, they rely upon sovereign states to enforce the rights against themselves. International lawyers and diplomats have usually tried to resolve the apparent contradiction by pressing for more general rules in the form of treaties, legal doctrines, and institutional …Read more
  •  63
    The trace of legal idealism in Derrida's grammatology
    Philosophy and Social Criticism 22 (5): 17-42. 1996.
    Against a background of Heidegger's project of tracing the other back through the history of metaphysics, Derrida attempts to think the other as outside of identity or presencing philosophy. The other is neither present nor absent. The other is differance with an 'a'. In his important essay 'Differance', Derrida suggests that whereas difference presupposes identity, differance with an 'a' is a 'middle voice' which precedes and sets up the opposition between identity and non-identity. The soft 'a…Read more