Ventriloquism and the Verbal Icon: A Comment on Professor Hogg\u27s The Charter and American Theories of Interpretation

In this brief comment I offer some critical reflections on Professor Hogg\u27s proposed approach to Charter interpretation. I suggest that Professor Hogg\u27s attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that interpretivism is explanatorily inadequate, yet on the other he refuses to accept non-interpretivism for he realizes that it has the potential to unmask the politics of law. I argue that Hogg\u27s third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates ahistoricism, circularity and a retreat into textual objectivism. By way of conclusion, I suggest that we must abandon the repressive machinations of textual fetishism so that we may honestly confront the nexus between law, politics and power. In turn, this will enable us to demand of powerholders - including judges - that they use their power for democratic rather than mystificatory ends

Twisting the Tourniquet Around the Pulse of Conventional Legal Wisdom: Jurisprudence and Law Reform in the Work of Robert A. Samek

The name Robert Samek first came to my attention in the summer of 1985 as part of a research project carried out under the auspices of the Law Reform Commission of Canada. I was struck by what at the time seemed to be a complete contrast in two of his publications; his book, The Legal Point of View and an article, A Case for Social Law Reform . Although only a few years apart, it seemed impossible that the two works could have come from the pen of the same author: the former was traditional, opaque, dull, pedantic and repetitive; the latter iconoclastic, lucid, fresh, aggressive and inspiring. Further research reinforced this seeming antinomy; a host of technical articles on contract law counterbalanced by a series of polemics which appeared to be somewhere to the left of the Conference on Critical Legal Studies, and an obscure book with a Greek sounding title, The Meta Phenomenon. A mystery was beginning to develop

Nomos and Thanatos (Part A). The Killing Fields: Modern Law and Legal Theory

Law, is so far as it sanctions the coercive power of the state, enables people to do frightening - even deadly - things to each other. Contemporary jurisprudence, the explanatory and justificatory voice of legal practice, fails to interrogate law\u27s interconnection with violence and death and therefore, by a sin of omission, legitimizes humankind\u27s mutual inhumanity. The end result is jurisprudential tolerance of, and acquiescence in, societies underpinned by violence. By identifying the nexus between community (nomos) and death (thanatos), this, admittedly speculative, essay attempts to raise the possibility of a discourse, practice and society that can encourage, reflect and concretize opportunities for human interaction that go beyond violence. What follows, I hope, is an exercise in consciousness-raising

Book Review of Dangerous Supplements: Resistance and Renewal in Jurisprudence

Dangerous Supplements: Resistance and Renewal in Jurisprudence (1991 ), edited by Peter Fitzpatrick, is the first instalment in a new series, Law and Social Theory, being published by the progressive British publisher Pluto Press. As someone who had been subjected to an intensely positivistic- perhaps even authoritarian- jurisprudential, undergraduate education in Belfast, both the title and the dustcover intrigued me. The latter portrays a towering, seemingly unassailable, citadel with jurisprudence inscribed upon it, being bombarded by paper planes with the insignia of critical theory, semiotics, feminism, postmodernism and new ideas. This image led me to wonder whether the book would signal a counterhegemonic breakthrough that would destabilize conventional British legal theoretical wisdom. The answer, I think, is an unfortunate, but potentially promising, not yet

Twisting the Tourniquet Around the Pulse of Conventional Legal Wisdom: Jurisprudence and Law Reform in the Work of Robert A Samek

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\u27s 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 intereste

Ventriloquism and the Verbal Icon: A Comment on Professor Hogg\u27s The Charter and American Theories of Interpretation

In this brief comment I offer some critical reflections on Professor Hogg\u27s proposed approach to Charter interpretation. I suggest that Professor Hogg\u27s attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that interpretivism is explanatorily inadequate, yet on the other he refuses to accept non-interpretivism for he realizes that it has the potential to unmask the politics of law. I argue that Hogg\u27s third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates ahistoricism, circularity and a retreat into textual objectivism. By way of conclusion, I suggest that we must abandon the repressive machinations of textual fetishism so that we may honestly confront the nexus between law, politics and power. In turn, this will enable us to demand of powerholders - including judges - that they use their power for democratic rather than mystificatory ends

The Charter and Anglophone Legal Theory, part I

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\u27s 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 a fragmentation or jurisprudential pluralism , reflective of underlying shifts in Canadian political discourse. The Charter\u27s most significant impact, however, will have been its impetus to transform theoretical engagement with the law in directions far removed from the stale confines of analytical positivism

Frustration

As noted elsewhere in this book, sanctity of contract has been identified as one of the cornerstones of the classical model of contracts. However, as the previous chapter on mistake indicated, in certain limited situations parties may be excused from their contractual obligations. Frustration provides another example of an excuse from performance obligations. Whereas mistake deals with inaccurate assumptions or lack of knowledge about past or existing circumstances, frustration relates to inaccurate assumptions about future circumstances. Sometimes it is not clear whether a mistake or a frustration analysis is appropriate

Book Review of \u3ci\u3e Passion: An Essay on Personality \u3c/i\u3e

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\u27s 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\u27 disciplines. Unger\u27s polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm