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 procedures. Despite such efforts, aliens remain who are neither legal nor illegal (...) and who thereby slip through a discourse that claims universality. I ask, why does international legal discourse claim a universality of human rights enforceable by impartial, politically neutral tribunals when it also recognises that a state may refuse to recognise some groups as “persons”? I turn to the works of Bernhard Waldenfels for an explanation. To that end, I briefly outline two examples of state-centered human rights treaties. I then reconstruct Waldenfels’ explanation as to how a territorial sense of space needs an alien exterior to the space. The territorial structure assumes time is frozen as of the date of the foundation of the structure. The body of the alien is taken as a biological body. The personality, motives, and actions of the alien are the consequence of the imagination of people inside the territorial boundary. The dominant international legal discourse reinforces and institutionalises such a territorial sense of space and frozen time because the territorial state is considered the primary legal subject of international law. I also retrieve, however, an experiential but concealed sense of space and time. To retrieve this sense of space and time requires that lawyers see the world through the twilight of legality heretofore ignored as pre-legal. (shrink)

This essay retrieves Lon Fuller's theory of language and the role of experience in such a theory. The essay distinguishes meaning from signification. A sign signifies or represents an object. Meaning is experienced before one ever signifies an object. Signification is cognitive. Meaning is bodily. Fuller locates meaning in what Hart excluded from legality as "pre-legal." In the pre-legal realm, meant ob­jects draw from memories and expectations. The memories may have been personally or collectively experienced. The analysis of rules takes (...) signification for granted, however. When meaning is privileged. we appreciate why interpretation figures importantly in the role of the lawyer/official. So too, shared meanings, "located' in experienced time, explain understanding and communication between members of a group. As a consequence of Fuller's insights, meaning pre-conditions communication as well as the analysis of the signified rule. Since traditional analytical jurisprudence holds out that lawyers/officials analyse rules, both jurisprudence and the analytic project, Fuller cautions, risk being estranged from the lived meanings of the pre-legal realm. Instead, jurisprudes, lawyers and officials risk locking themselves into a fictitious world of dead concepts which are better known as rules. (shrink)

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 to rest with norms, this existence is very different than an existence constituted from social behaviour. Instead, in Kelsen’s view, a norm is a signifying relation between a sign and a cognitive object. Kelsen’s theory of language, however, is very different from a theory of speech acts. When addressing why a norm is binding, we find that Kelsen’s full theory of language excludes important phenomena in order to retain its purity. (shrink)

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 insightful essay in this regard is his study of Franz Kafka’s untitled parable in The Trial. The parable represents a man who waits for an invitation to enter the Law until he nears his end. Derrida responds to the parable in his essay, “Before the Law.” This article uses the parable and Derrida’s response to it as a starting-off point for a reconsideration of the boundary of legal knowledge. In this context, Derrida asks this question: “why is Kafka’s parable categorized as Literature or Law?” Such an issue depends upon the boundary of a discipline, according to Derrida. And that focus, in turn, asks whether the boundary pre-exists any text which is represented as “Literature” or “Law” or “Philosophy.” This article claims, however, that Derrida’s theory presupposes that law, as a discipline, encloses a territorial-like space in legal consciousness. Each discipline possesses such a space. So too does the state and the university. Inside this bounded space, officials of the Law are free to consciously deliberate, reflect, and render decisions about the context of the Law. Analytically and phenomenologically before the boundary is taken for granted in an academic discipline, however, there is an unbounded non-law. The aporia of Derrida’s theory of the boundary of the Law is that the official or expert knower of the official language inside the boundary cannot assume the imagined boundary of legal knowledge without implicitly claiming to know the exteriority to the boundary. And yet, officials and expert knowers cannot know such an exterior extra-legality because, by virtue of the boundary as encircling a territorial-like space, knowledge is considered legal only when it exists inside the boundary. “The Law” is the consequence of the imagination of the expert knowers of the language as well as of the non-expert who believes in the bounded territorial-like space. (shrink)

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 ghost of the law is crucial to the binding character of a law. (shrink)

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 that an impartial third party can resolve (...) a dispute involving stateless persons by deferring to a universal rule. I call the third party the ‘rule of law third’. Such a rule, I argue, presupposes a presupposed knowledge over stateless persons. The Third takes for granted the territorial boundary of a legal structure, a boundary which excludes the recognition of outsiders to the boundary. (shrink)

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 conceptual jurisprudence in this regard. Words have been thought to (...) copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

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 who act in K’s name. The officials and experts assume that their own meanings are authoritative. K fails to gain access to their meanings. The question posed by Husserl’s phenomenology of language is ‘why?’ Conklin argues that K’s experiences seem not unlike Lyotard’s sense of a different or ‘untranslatable gap’. K remains on the fringe or outside what the experts take as an authoritative language. As a consequence, K’s experiential body slowly dies. This death paradoxically occurs at the same moments that the experts believe that they are addressing ‘K’s case’. Conklin explains the paradox by retrieving Husserl’s sense of a meaning-conferring act and the failure of K’s meaning-conferring acts from being fulfilled in the language of the legal experts. (shrink)

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 such a view with (...) the unwritten laws of early Amerindian traditional societies. Conklin argues further that by arguing that the Amerindian sense of legal authority has been concealed in the dominant modern sense of legal authority. (shrink)

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 structured time has begun with the judicial recognition of a value such as the rule of law, the protection of minorities, equal treatment, or due process of law. With the two forms of structured time, jurists have proceeded to identify a binding law. Such a law has been considered a rule, principle, doctrine or other intelligible standard. Once structured legal time has thus begun, events of legal relevance have been represented by jurists in a distinct phase or period of time. Each such a distinct period is parsed through reference to its named, or labelled, starting point and the latter, in turn and ultimately, with reference to the beginning of the very constitutional order as a whole. Legal justification and the conceptual structures of justification are presumed to follow suit. The article argues, however, that another sense of time, excluded and submerged inside structured time, is experienced. An experienced event, manifested as a discrete incident in experiential time, opens to a condition of the possibility of the existence of law. (shrink)

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. A rule or principle is (...) a concept. A culture, in contrast, is constituted from an experiential knowledge in an unwritten language. -/- I raise two contexts where a collective right cannot be identified without a consideration the analytically prior culture of the social group protected by a collective right: peremptory norms in international law and affirmative discrimination clauses in constitutional law. I then highlight a crucially important factor generating the unwritten language of a culture: namely, the collective memories of a group. Although a personal memory is experienced in a context-specific event, a member of a group absorbs its collective memory. The collective memory of the group exists before one is a member. Such a memory may defer to some event centuries earlier. The event may possess a mythic or even false character which cannot be verified except as a myth or historical falsity. One cannot be accepted as a member of a group without the group’s collective memory. Shared assumptions and expectations characterise a collective memory generating a culture. Such assumptions and expectations constitute meant objects. Meant objects are not posted by some source 2 external to the individual members. Meant objects are experienced. A jurist cannot analyze the signified collective rights without examining the social culture said to be represented by the boundary of the collective rights. One may be able to rationally justify a collective right in terms of its source, such as a basic constitutional text, the regularity of behaviour of lawyers and judges or some ultimate concept such as dignity. Such a rational justification, however, does not address why an individual is obligated to defer to the collective rights of an in-group in a state. One has to examine the social-cultural assumptions and expectations presupposed in the content of such collective rights in order to understand why the rights are obligatory. Such an examination dissolves the traditional boundary of legal knowledge which has excluded cultural phenomena generating the collective rights. (shrink)

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 deontological duties, the Good life, (...) naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

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 the sources thesis, the foundation has been the (...) state institutions, such as courts and legislatures and ultimately to the state external to the legal structure. With the semiotic model, the structure of signifying concepts (rules, principles, doctrines and other intelligible objects) takes the foundation as a non-signified concept (such as Hans Kelsen’s Grundnorm) external to the signifying relations inside the structure. For the social convention model, the key has been the observation by a jurist of the regularity of a multiplicity of experienced events and the regularity, in turn, is a concept which abstracts from and unifies the multiplicity into a concept. The final approach, the law and…approach, has assumed that the foundation lies in the external and independent disciplinary discourse, thereby reinforcing the observed legal structure as given. -/- The foundation, in each context, has been considered external to the units and analytical reasoning of the legal structure. The foundation, that is, has been considered neither legal nor illegal. The consequence has been that jurists, working within the structure founded by an externality, cannot access justice. The clue to justice, I suggest, is concealed inside the structure itself: namely in the multiplicity of experienced events which the concepts and signifying relations have enclosed and forgotten. The Paper briefly fleshes out the latter sense of access to justice. (shrink)

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 knowledge has involved signifieds (...) (such as rules, principles, doctrines and tests) as if the signifiers were transparent. But any one signifier differs from another signifier without the lawyer ever accessing the invisible signifieds. Ironically, although the lawyer, law professor or law student believes that s/he is studying legal ‘practice’ and although legal knowledge has been considered a matter of signified concepts, the knowledge has really concerned the differentiating relations of signifiers. As a consequence, the moment of accessing the concepts (signifieds) has been forever deferred. ‘Access to justice’ has become access to the special language of signifiers, a language which lawyers alone are privileged to enforce. Turning to the Charter, lawyers claiming to know the special Charter language became indispensable to social life. Even the meaning-constituting human subject became a signifier, better known as ‘the legal person’ defined by Charter rights. Charter language, however, has deferred an access to the invisible concepts such as ‘freedom’ or ‘democracy’, terms in Section of the text. Access to justice’ has become access to the language of the privileged class of lawyers. The lawyer’s language has become a theoretical language in the name of access to justice. And yet, because the theoretical language has been propagated as concerned with ‘practice’, it has been difficult to challenge the social-cultural content of the language of lawyers. (shrink)

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 decomposition (...) of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick’s articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida’s theory of laws as universals and with Derrida’s theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official’s decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call ‘individuality’. -/- Derrida’s theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida’s theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law’s legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signified or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida’s theory of law. -/- I claim that this rupture permeates Derrida’s writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick’s exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida’s legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida’s legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge. (shrink)

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 elaborated. The Paper especially examines his (...) theory of political struggle with the process-oriented view that the dominant social groups invariably become the political elite. The Paper then connects his theory of human nature to his legal doctrines, the role of the judiciary, the nature of the state, and a legal right. (shrink)

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 materials and often conduct themselves in the classroom with apparent assurance that most cases in the 'real world' of a law practice are clear cases. The lawyer is presented with material facts and rules which are rid of the difficulties giving rise to hard cases. The facts have been ascertained and proved. The lawyer has been able to sort out the material from the immaterial facts with a much-envied ability to determine the criteria of materiality. He has also discovered the rules and somehow has rejected some and accepted others as legally relevant. The lawyer need only deduce a conclusion by applying the relevant rule to the material facts. Choice, uncertainty, or human frailty enter the picture only when the lawyer makes that final deduction. Consequently, clear cases are supposed to be relatively easy. This Paper questions whether there is more to the competent lawyer's job in clear cases than carrying on the deductive process of applying the relevant rule to the material facts. The primary objective of this essay is to make an argument concerning the issue as to whether there is more to the competent lawyer's job in clear cases than carrying on the deductive process of applying the relevant rule to the material facts. My argument hinges upon what constitutes a properly decided judicial decision. And this, in turn, depends upon the differing conceptions about justice which underlie the activities of courts and legislatures in a democratic state. The Paper then connects those differing conceptions to such concepts as formal justice, substantive justice, liberty, guidance to lawyers, and accountability in the context of clear cases. (shrink)