MacGuigan, Mark R.

English

Case Western Reserve University School of Law

Case Western Reserve Journal ofInternational LawVolume 23 | Issue 11991Canadian Perspectives on Legal TheoryMark R. MacGuiganFollow this and additional works at: https://scholarlycommons.law.case.edu/jilPart of the International Law CommonsThis Book Review is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case WesternReserve University School of Law Scholarly Commons.Recommended CitationMark R. MacGuigan, Canadian Perspectives on Legal Theory, 23 Case W. Res. J. Int'l L. 107 (1991)Available at: https://scholarlycommons.law.case.edu/jil/vol23/iss1/4BOOK REVIEWCanadian Perspectives on Legal Theory. (Richard F. Devlin ed.)Toronto: Emond Montgomery Publications Limited, 1990. Pp. vi,538.Reviewed by The Honorable Mr. Justice Mark R. MacGuigan*This book1 is the first indigenously Canadian source book on juris-prudence. Twenty five years ago there could not have been such a bookbecause there was no Canadian jurisprudence to speak of. That such abook is possible today is convincing testimony to the maturity of Cana-dian law schools - the traditional well-spring, along with the judiciary,of jurisprudential thought.I must confess to a fundamental disagreement with Professor Devlinabout the subject matter. Having categorized the concepts "legal the-ory," ".jurisprudence" and "the philosophy of law" as synonyms, Profes-sor Devlin states that "to me they simply mean thinking about law on asustained level."2 I would wish to add at least the notion of thinkingabout law in universalist terms, across all the various fields of the law.The alternative conjures up visions of generations of English positivisttexts on jurisprudence seldom rising to matters that the rest of the worldwould consider as jurisprudential.Nevertheless, this radical difference in perspective does not, even inmy view, mar Professor Devlin's book, because the readings he selects dowith some exceptions yield a considerable harvest of traditional jurispru-dential questions - community and moral standards, the individual andthe community, the coercive force of law, the legal process, to name but afew.In fact, what is distinctive about his book, in addition to its Canadi-anness, is its reliance on what I might call inductive rather than deduc-tive materials. The author does not include general philosophers of the* Federal Court of Appeal, Canada (Ottawa).I CANADIAN PERsPEcTIVEs ON LEGAL THEORY (R. Devlin ed. 1990).2 Id at 2.CASE W. RES. J INTL Llaw - of whom there are perhaps none in Canada in any event. Heutilizes rather legal thoughtpieces which he organizes around seven con-temporary themes: liberalism, law and economics, neo-Marxism, criticallegal studies, feminism, first nations, and constitutional interpretation.While these clusters by no means exhaust the possible themes of such abook - consider for example, the previous generation's jurisprudentialleitmotifs of social change and the legal process - they are highly repre-sentative of the preoccupations of today.Unfortunately, to my way of thinking, Professor Devlin seems tohave a bias against traditional jurisprudence. "Traditionally," he writesin his Introduction, "jurisprudence has been conceived from the topdown... drawing on the 'high theoretical' traditions of transcendental-ism, universalism, and abstraction."3 Its "elitism... has been the causeof its marginalization." 4 In my view, a coherent weltanschauung makes agreater contribution both to long-range scholarship and to pragmatic en-lightenment, because the reader is exposed to the whole context and con-sequences of a legal thinker's thoughts rather than to a cafeteria oflimited choices. What is to me ideal is a combination of deductive andinductive materials, such as was sometimes achieved in the past from aputting together of readings and cases. Nevertheless, given the dearth ofCanadian legal philosophy, Professor Devlin has shown a good sense ofdiscrimination in the materials he has assembled.With three exceptions the articles included indeed appear to havebeen written for this volume so that they are in the most literal sensecontributions. The writing is as simplified as jurisprudential writing isever likely to be, and for the most part does not presuppose esotericknowledge. Each chapter opens with a helpful introduction, and everyarticle is followed by five questions, as well as by a bibliography, all ofwhich will enhance the book's value as an educational tool.Professor Devlin has put together a book that is topical in itsthemes, far-reaching in its inclusiveness, and challenging in its intellec-tual impact. All in all, this is no mean feat.3 Id at 1.4 IdVol. 23:107

Canadian Perspectives on Legal Theory

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Canadian Perspectives on Legal Theory

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