Law, Mystery, and the Humanities.
I INTRODUCTION II LEGAL ESCAPISM? THE LAW AND HUMANITIES DEBATE III PUZZLES AND MYSTERIES: A NOTE ON ATKINSON AND MAJURY'S METHODOLOGY "Points of Convergence: Law, Mystery, and the Humanities" A False dichotomy? The "Law" in Atkinson and Majury's Methodology IV DIVERGENT METHODOLOGIES V CONCLUSION The work of academics and legal theory grounds analytical jurisprudence in terms of abstract, logically coherent, formal conceptual systems. It promotes stability and coherent changeability by affecting the substantive content of rights and by providing a rational basis for judicial decision-making. (1) It is our hope that the perspective law brings to the exploration of the limits of human rationality, the worries of human dissent, the apparent inevitability of suffering, and the intellectual challenge of transcendence will at least muddy the waters sufficiently to allow for mystery to become popular again. (2)
As the title of their introductory essay, "Points of Convergence: Law, Mystery, and the Humanities", suggests, Logan Atkinson and Diana Majury understand the convergences of law and the humanities as enigmatic encounters. This view forms the impetus for Law, Mystery, and the Humanities, a collection of twelve short, independent essays which exuberantly explore the far reaches of interdisciplinary legal studies. The essays engage with an array of disciplines within the humanities, from history to linguistics and from cinema to religious studies, canvassing topics as diverse as depictions of law in texts written during the Great Plague of London, (3) and the use of philosophy in the interpretation of constitutional rights. (4)
Atkinson and Majury characterize their interdisciplinary exercise as an opportunity to liberate the law from its "usual role of answering questions and passing judgement". (5) The editors "muddy the waters" (6) of legal methodology with humanistic perspectives, thereby facilitating an escape from the confines of the traditional structures of legal writing. The diversity of interdisciplinary approaches implemented in the individual essays is evidence of this insouciant attitude towards prevailing conventions. Atkinson, Majury and the contributors to this collection challenge our assumptions about legal writing, and in doing so engage with the seminal question of the purpose of interdisciplinary legal writing.
Atkinson and Majury outline the foundation of their interdisciplinary methodology in the introductory essay, "Points of Convergence". The editors reject approaches which attempt to identify the law as one of the humanities, (7) in favour of what they term "a more transcendent interdisciplinarity": (8) a methodology that is based on an intuition that all disciplines are cut from the same cloth and that the thread which binds them can be uncovered. According to Atkinson and Majury, this thread takes the form of conversations on the big unanswerable questions that span the humanities. The editors identify some of the major themes animating these questions as reason, dissent, suffering, and transcendence. The essays are organized according to these themes, each serving as a window into a new conversation. As the reference to "mystery" in the title suggests, these conversations do not seek to find answers but rather to tend to the unknowable. Atkinson and Majury work from an understanding that scholars in the humanities commonly address questions that cannot ultimately be answered: mysteries. The editors propose that interdisciplinary legal scholars can work in the same way, stating that "It]he most that we really want is new insight and further intriguing questions". (9) In keeping with this modest proposal, they state that "[o]ur desire is to expand knowledge and to further understanding, rather than to reach a definitive end point". (10) Examining the law with a foreign eye will have a "reciprocal effect, widening our understanding of both culture and law". (11)
This book review will seek to place Atkinson and Majury's "transcendent interdisciplinarity" within the current debate over the purpose of interdisciplinary legal writing. I will challenge the editors's methodology by suggesting that the law fits uneasily within the premise that all disciplines share fundamental concerns. While theoretical aspects of the law resonate with the open-ended conversations that span the humanities, the law in practice grates against the idea of "mystery". Atkinson and Majury's methodology, therefore, works to separate writing that adopts theoretical approaches to the law (12) from traditional legal writing that is intended to establish norms indicating how the law should be used (prescriptive legal writing). (13) The premise that all disciplines can contribute to common conversations leads the editors to a contentious, bifurcated understanding of the law.
The result is that while Law, Mystery, and the Humanities succeeds in escaping conventional prescriptive methodologies, it does so at the expense of developing a comprehensive understanding of the implications of this escape. Theoretical approaches to the law and legal practice are intimately intertwined: the law cannot exist independently of the institutions that create it and the judiciary that implements it. (14) By relying on an understanding of the law as a primarily theoretical entity, "transcendent interdisciplinarity" evades the central question of how to reconcile methodological discrepancies. Further, an interdisciplinary approach that does not grapple with the implications of divergent methodologies cannot be truly interdisciplinary: (15) the conversation is illusory because without addressing the law's traditionally prescriptive methodology, it comprises only a single voice--that of the humanities. (16)
This book review will proceed in three parts. The first will introduce the debate over the purpose of interdisciplinary studies in law schools. This debate sets those who maintain that legal writing should serve to guide legal practitioners against those who question the necessity of orienting academic legal writing towards inspiring change outside of the academic world. I will argue that the polarity of these positions obscures an essential distinction between prescriptive legal writing and writing which examines traditional prescriptive legal methodologies. While theoretical approaches to legal writing need not make recommendations about the interpretation or development of the law, they must engage with prescriptive methodologies in order to be truly interdisciplinary. The second part of the book review will situate Atkinson and Majury's "transcendent interdisciplinarity" within the above debate. I will offer a critique of the editors' methodology, arguing that it characterises the law as a primarily theoretical entity and consequently remains grounded in the humanities. The third part of the book review will explore the divergences from Atkinson and Majury's methodology exhibited within two essays in the collection. (17) This comparative exercise will serve to illustrate different approaches to the problem of reconciling humanistic methodologies with prescriptive legal writing. While many of the essays in the collection successfully escape the confines of prescriptive legal writing, an interdisciplinary legal essay--whether an "intellectual experiment" or not (18)--loses sight of its subject matter if it fails to engage with prescriptive methodologies.
II LEGAL ESCAPISM? THE LAW AND HUMANITIES DEBATE
Legal scholarship has traditionally been thought to serve a prescriptive purpose, in that it is meant to interpret the law or offer suggestions for "how legal decision makers should do their jobs". (19) Justice Bastarache, for example, has identified a dialogue between academics and courts regarding "explanatory, predictive and normative theor[ies]" about the law. (20) Nonetheless, there are those in legal academia who question whether legal writing should be restricted to pandering to judges. (21) Professor Ernest Weinrib, for example, suggests that legal writing need not be prescriptive to offer an opportunity for reflection upon the meaning and intelligibility of judicial activity. (22) The debate over the purpose of legal writing is particularly relevant in the context of interdisciplinary studies in law and the humanities. (23) Interdisciplinary legal writing, which has thus far rejected any orienting methodology, will frequently not adopt a prescriptive approach, in that it does not attempt to establish norms indicating how the law should be used or speak directly to the quotidian concerns of decision-makers. (24) As a result, interdisciplinary legal writing has been accused of distracting legal writing from its traditional role by shifting both its methodology and audience. (25) In demanding that interdisciplinary conversations return their focus to practical purposes, however, detractors of the law and humanities movement obscure the fact that very little prescriptive legal writing, even writing that expressly articulates its instrumental goals, is actually used as a "rational basis for judicial decisionmaking". (26) Nevertheless, this writing succeeds in offering an opportunity for reflection on the "meaning and intelligibility" of judicial activity. (27) While working within the parameters of prescriptive legal writing is not essential to producing insight into the law, engaging with these parameters is. The confusion over the purpose of legal writing therefore stems in large part from a failure to distinguish prescriptive legal writing and writing that engages with prescriptive methodologies.
Canadian law schools have witnessed numerous fledgling attempts to add a legal voice to interdisciplinary scholarly conversations, (28) by "weav[ing] the study of law into the intellectual fabric of university life". (29) As interdisciplinary legal scholars acknowledge, however, the nature and value of these conversations is an open question. There is no consensus among proponents of interdisciplinary studies in law and the humanities about the nature and purpose of the "conversation" to be pursued, or of the necessity of identifying its nature and purpose in the first place. (30) This lack of uniformity has been alternatively described as "fostering creativity and experimentation" and presenting "methodological confusion to the outside world". (31) Atkinson and Majury's collection is an excellent example of this eclecticism: while some essays approach fictional accounts of the law as a "literary mirror'' (32) to legal institutions, others recognize the potential of legal writing to herald real world change.
The lack (or express rejection) of a unifying orientation has led many scholars to criticise the pedagogical and practical value of interdisciplinary conversations involving the law. In particular, there is a concern that, released from practical constraints, these methodologies lose sight of the purpose legal writing serves to practitioners. For example, Justice Harry Edwards urgently criticises "law and" movements for inappropriately drawing the attention of legal academia away from the practice of law. (33) Law schools, according to Edwards, are abandoning "their proper place, by emphasizing abstract theory at the expense of practical scholarship". (34) His sweeping accusations bring to the fore concerns about the role of legal writing in academia and in the legal profession: if academic publications are characterized by less prescriptive inclinations, judges and practitioners will have less incentive to read this writing, with the result that academics and practitioners will grow increasingly apart. (35) Edwards's position that interdisciplinarity distracts legal writing from useful concerns presupposes that legal practitioners, the judiciary, legal scholars, and students alike look to writing produced by the legal community to guide judicial decision-making. In this view, the humanities are valuable to the law only insofar as they fulfil this purpose. (36) The contribution of interdisciplinary studies to legal pedagogy is negligible, irrelevant and perhaps even distracting from "what lawyers do and why people want legal education", (37) to the extent that these approaches incorporate methodologies that deviate from a decision-making focus.
The view that legal writing should serve a prescriptive purpose betrays an over-reliance on the idea that legal writing has the capacity to create change. Further, it neglects the fact that not all legal writing that sets out to be prescriptive achieves its goal of influencing the direction of the common law. In fact, few publications have this direct effect. While much published legal writing sets out to establish norms indicating how the law should be used, Patricia McMahon points out that "secondary sources have not historically played a major role in the formation of judicial reasoning in Canada". (38) McMahon presents the University of Toronto Faculty of Law Review as an example: although extensively cited in judicial decisions, "few have relied directly on the articles contained therein for their conclusions". (39) Writing for use by judges is a problematic raison d'etre for academic legal writing when it is seldom used towards that end. Yet, this should not necessarily be perceived as a failure: as Prof. Weinrib suggests, those in legal academia write "not in order to produce scholarship that [the judiciary] 'can use' (though, if they can legitimately use it, so much the better), but in order to reflect upon the meaning and intelligibility of their activity". (40)
While interdisciplinary writing in law and the humanities is generally characterised by a shift away from purely "technocratic enquiries", (41) this does not necessarily imply a complete abandonment of prescriptive concerns. Many interdisciplinary legal scholars use the intersection between law and the humanities to explore the implications of law's prescriptive methodology. For example, in the introductory note to the first issue of the Yale Journal of Law and the Humanities, the founding editors wrote of their endeavour: "[W]e are dedicated to providing a forum for scholarly work in legal and cultural studies that recognizes the connections between the words we use and the world we make.'' (42) Rather than demand that its submissions be uniquely prescriptive, or "cashed out in policy prescriptions", (43) the express purpose of the journal is to recognize that how we live our lives is largely a consequence of the rules we abide by. (44)
The reality that explicitly prescriptive legal writing may not ultimately serve a prescriptive role serves to collapse what is perceived to be an essential difference between traditional legal writing, characterised by prescriptive methodologies, and interdisciplinary legal writing. This collapse makes it crucial to distinguish between prescriptive legal writing and writing that engages with prescriptive methodologies. The confusion over the purpose of legal writing stems in large part from a failure to make a distinction between these two approaches. Interdisciplinary legal writing must confront the traditionally perceived notion that legal writing must be prescriptive in order to fruitfully reflect on the meaning and intelligibility of juridical activity. As I will discuss further in the following sections, a failure to engage prescriptive methodologies can lead to an incomplete understanding of the law, thus compromising the interdisciplinarity of the law and the humanities project.
III PUZZLES AND MYSTERIES: A NOTE ON ATKINSON AND MAJURY'S METHODOLOGY
Atkinson and Majury establish their interdisciplinary methodology in their introductory essay, "Points of Convergence: Law, Mystery, and the Humanities". Set in opposition to approaches which seek to "position law inside the humanities" (45)--a phrase that the authors use to describe methodologies predicated on the characterization of law as a humanity (for example, law as literature) (46)--Atkinson and Majury propose a "more transcendent interdisciplinarity", (47) which posits that it is possible to track conversations about the unanswerable questions of the humanities across all disciplines, regardless of the methodological differences each discipline may bring to those questions. The goal of their interdisciplinary project is to bring a fresh eye, that of the law, to these conversations. (48)
The premise that all academic disciplines are cut from the same cloth, in that they germinated from different ways of contemplating the same questions, leads Atkinson and Majury to establish a contentious dichotomy within the essay, between the law in theory--"the transcendent and immutable essence of the law" (49)--and the law in practice. (50) The law in practice, characterized by prescriptive methodologies, does not resonate with the "mystery" that envelops the big questions of the humanities. Legal theory and legal practice, however, are intimately intertwined, (51) and the bifurcated understanding of the law adopted by "transcedent interdisciplinarity", rather than "widening our understanding of both culture and law", (52) serves to highlight the difficulty involved in reconciling humanistic methodologies with the norms of prescriptive legal writing.
"Points of Convergence: Law, Mystery, and the Humanities"
Atkinson and Majury begin their introductory essay by decoding the reference to "mystery" in the title of the collection. The authors alert the reader to the distinction between the unknown rendered knowable, in contrast to the inherently unknowable, and illustrate the difference using the perennial chicken and egg conundrum. They remark that the question of which came first is intriguing on two levels: both in terms of our desire for a scientific answer (a solution to the puzzle), and our own uneasiness surrounding the apparent dichotomy between "linearity and circularity ... creation and creator". (53) Even if our quest for certainty were to yield an answer to the empirical side of the chicken and egg question--for example, if we accept a scientific conclusion that the chicken came first (54)--answers to underlying questions about why that circularity fascinates and beguiles us to begin with remain inherently unknowable as mysteries. Thus, we discover a dichotomy within ourselves: while we crave certainty, the "answers proffered (such as simplistic characterisations of good and evil) are inevitably unsatisfying and reductionist and ultimately unhelpful". (55) Discovering the unknown may alter what we think is unknowable but does not provide an answer to what Atkinson and Majury label the big questions of the humanities "that appear to endure across history and across cultures". (56) Law, Mystery and the Humanities can therefore be understood as referring to questions spanning the humanities which defy answers: the inherently unknowable.
These "big" questions resonate across the humanities and bind the various disciplines together. The authors attribute to Professor Linda Myrsiades the premise that all humanities share a common origin and skeletal structure. She argues that "the separation of knowledge into fields of greater and greater specialization is a relatively recent phenomenon in historical terms". (57) Building on this idea, Atkinson and Majury's "more transcendent interdisciplinarity" picks up on James Boyd White's criticism of interdisciplinary methodologies that focus on the boundaries that define disciplines. (58) The authors reject the persistent struggle between those who consider the law to be one of the humanities and those who reject this view, calling the attempt to prove that the law falls into one camp or another "Sisyphean". (59) Working from the premise that all disciplines are born from common concerns, the goal is not simply to investigate the barriers between disciplinary fields but, in White's words, to create a "larger community". (60)
The purpose of the collection of essays is therefore to explore the law's contribution to these conversations taking place across the humanities--as the essay's title suggests, "points of convergence". (61) Working from an appreciation of the unknowable (which characterises the humanities), Atkinson and Majury state that "[t]he most that we really want is new insight and further intriguing questions". (62) In canvassing the conversations occurring across the humanities, Atkinson and Majury divide Law, Mystery and the Humanities according to four representative themes: rationality, dissent, suffering and transcendence. (63) Each part offers a number of perspectives on these themes, in the form of brief, impressionistic essays.
Part I of the collection discusses the paradoxical role of reason in the history of Western thought, as both a restraint on creativity and as the "key element of human progress". (64) Atkinson and Majury note that while reason is an important legacy of the enlightenment, it has come under criticism more recently from, for example, feminist and critical race scholars, who question its "gendered and racialized construction". (65) The authors identify the same trend in legal scholarship. (66) Beginning with the premise that "lilt is central to law's mythology that law is a thoroughly coherent, ordered endeavour", (67) the legal realist movement, as well as contemporary feminist and critical race scholarship, have challenged any notion of the law as rationally independent. (68) Atkinson and Majury therefore see this section as an opportunity for the law to lend to the humanities its experience with this extensive line of critique.
Within the rubric of "Reason", the topics of the essays are sweeping. Neil Sargeant assesses the evolving representations of the law in detective fiction, setting "traditional" works of detective fiction by Sir Arthur Conan Doyle and Agatha Christie against "hardboiled" detective stories by Raymond Chandler and Dashiell Hammett. (69) He suggests that hardboiled detective stories portray how the law operates in an uncertain moral landscape and thereby reflects criminal justice under the common law more accurately than traditional detective fiction. Sophia Moreau tackles some of the difficulties of applying analytical philosophy to constitutional decision-making. (70) As discussed further in Part IV of this book review, she overcomes several of these roadblocks to conclude that analytical philosophy will prove to be a useful tool for the enrichment of constitutional reasoning and the elucidation of rights. (71) Alain Papaux takes a different approach to rationality, tracing the impact of Cartesian philosophy on the history of the sciences, humanities, and the law. (72) He argues that the end of Cartesian dualism--the separation of subject and object--will result in the reconnection of the law and the sciences: while law will abandon the distinction between its theoretical self and its application, science will abandon the distinction between objective and subjective ways of collecting information. In Papaux's narrative, this event will be precipitated by the global environmental crisis. Remi Samson identifies a similarity between the methodologies of the legal theorist H. L. A. Hart and the linguist Noam Chomsky, in that they both treat their subjects as "static objects to be studied scientifically". (73) For Hart, a legal system is a morally-neutral and discreet object of investigation, while for Chomsky language is a set of rules that is independent of meaning. He finds that comparing the two theories is illuminating because it "helps to reveal many underlying assumptions of scientific and legal traditions" and allows us to assess each paradigm critically. (74) I will compare Samson's paper with Moreau's in Part IV of this book review and draw out the implications of their divergent methodological approaches.
In Part II of Law, Mystery and the Humanities, Atkinson and Majury turn to the importance of dissent in philosophy, the arts, and law. The authors point out that across these disciplines, it is possible to identify a dominant voice, which is constantly challenged by the innovation brought forth by dissent. This tension forms the basis for the dichotomy between "the desire for freedom on the one hand and the urge (sometimes arguably the need) to control on the other". (75) For example, in the fine arts, dissent from the dogma of classical formalism paved the Way for modernism. The authors observe that the English common law went further in the internalisation of dissent by officially incorporating dissenting voices into the process of judging. The effect is that, while dissent may still be a catalyst for change, this change can only occur within pre-existing judicial structures, rather than through a rejection of these structures. (76)
In this section, Marie-Claire Belleau and Rebecca Johnson explore legal dissents as a place in which the judge is liberated to "enlist emotion and imagination while yet retaining judicial authority". (77) In this view, the judicial dissent is a type of hybrid between judicial authority and the creative challenging of the status quo. Barry Wright explores political dissent in the context of the build up to the Upper Canada rebellion in 1837, and, in particular, governmental attempts to eliminate unruly voices through legal measures, such as trials for seditious libel. (78) He argues that the government's obvious manipulations of the courts were self-defeating, in that they led to a loss of credibility and eventually to a transformation of the public perception of the public sphere. (79)
In Part III of the book, the authors turn to the theme of suffering, "a preoccupation in the humanities, forming arguably the single most dominant theme in literature, and at least one observable motif in religion, history, and the fine arts". (80) The authors point to the law's dual role in suffering: as a tool for the elimination of suffering and as a complicit partner in its creation. (81) To illustrate, the authors discuss the role of judges in applying rules that inflict suffering and the representation of the subsequent grief and anger in fiction and poetry. (82)
Brenda Carr Vallino writes about "witness poetry", a form of lyrical testimonial which is intended to make the reader a witness of human rights abuses, in this case the suffering of torture victims. (83) Vallino argues that witness poetry can play a role that is similar to a truth commission, in that it prompts the recognition of legal violations and works against "selective forgetting". (84) By extending "the experience of suffering", witness poetry can function as the conscience of the law, and in critiquing the law has the potential to "mobilize for legal change". (85) In her own essay on Russell Banks' novel The Sweet Hereafter, Majury offers an alternative perspective on the relationship between law and suffering: in the face of tragedy, (86) the law is offered as a means for those who suffer to divest themselves of their pain. (87) Here, the law functions "to encourage blaming, to facilitate the process by which the sufferer stands up and finds fault". (88) Nevertheless, Majury finds that the assignment of blame cannot be reduced to the mere pointing of a legal finger: the town's emotions are better channelled through a community ritual--in this case a demolition derby--rather than "an attempt to control and contain emotions through a law suit". (89) In his essay on the Great Plague of London, Atkinson offers an example of suffering that is compounded by the workings of the law. (90) Atkinson relies on polemic literature produced during the plague to describe the law's role in "creating and perhaps exacerbating the conditions suffered by the sick", (91) by isolating and stigmatizing them. He finds that the law's role as a tool for injustice--punishment without culpability (92)--parallels the "god-inflicted" injustice of disease: the victims of this dual injustice "have done nothing to deserve their position, as is ordinarily necessary in advance of legal sanction". (93)
In the final section, Law, Mystery and the Humanities turns to the theme of transcendence, or the possibility of overcoming relativism through the discovery of divine truth, universal human morality, or purely rational order. (94) Atkinson and Majury note that according to Prof. Myrsiades, the search for truth can largely be held responsible for the original fracturing of the disciplines, as over time each claimed to hold the "special keys to transcendence". (95) The editors, however, proceed to argue that there is a "growing disenchantment with the search for perfection based on a universal human morality or purely rational order". (96) This movement is mirrored in legal theory's post-modern crisis of authority, based on the revelation that the law is "not partly, but merely, political", (97) and according to which the law can no longer be thought to reside "in immutable legal principles". (98)
M. H. Ogilvie seeks to solve the problem of disillusionment in the humanities and the law through theology. (99) In particular, he turns to "radical orthodoxy", a theological school that maintains that Christian theology is a meta-narrative that positions all other narratives and discourses, including the law. (100) He concludes, however, that "radical orthodoxy" fails to expose the truth about the law, or about the world, except through "leaps of faith", or gaps in reason. (101) Clinton Timothy Curie similarly argues for the possibility of overcoming relativism through faith, in a world where "the postmodern appears to have laid everything to waste". (102) Curie sees the language of human rights discourse--intrinsically authoritative, but conveyed in vague terms--as denying the premises of post-modernism because belief in human rights documents is in a sense a matter of faith. (103)
For Atkinson and Majury, the synthesis of the "spiritual and the political", represented by the development of fundamental human rights, is a perfect example of the law embracing a sense of mystery, or "unknowability". (104) Fundamental human rights, they argue, "opens up the possibility of a reintroduction of the life of the spirit, through its focus on human freedom and personality, unity and sympathy". (105) As such, human rights represent, in Atkinson and Majury's view, the convergence of the law and humanities and the overcoming of their methodological differences. (106)
A False dichotomy? The "Law" in Atkinson and Majury's Methodology
In each section of "Points of Convergence: Law, Mystery, and the Humanities", Atkinson and Majury present the reader with a new dichotomy through which to understand legal relationships. In Part I, the authors describe the law as walking the line between legal theory and legal practice. (107) In Part II, the authors understand the law to encompass not only rules, but institutions like "judicial dissent" that work to alter these rules. In Part Ill, the law idealistically works to alleviate suffering, while at the same time being one of its major instigators. In Part IV, the law is an immutable and purely rational order, as well as an article of faith. In each case, Atkinson and Majury separate a theoretical understanding of the law from its application. The result is that the law is defined as, on the one hand, rational, immutable, ideal, absolute, and on the other hand, pragmatic, evolving, flawed, and political. (108)
This bifurcation flows from the premises of "transcendent interdisciplinarity"--by drawing on points of convergence between law and the humanities, Atkinson and Majury take license to isolate a narrow understanding of the law, making it possible to write about its various facets independently. Further, the position that all disciplines are cut from the same cloth encourages the authors to focus on the similarities between disciplines, at the expense of their methodological differences. The result is that those elements of the law that reject "mystery"--in particular, prescriptive methodologies--are minimized. The law is presented as a theoretical entity, which exists in isolation from its practical incarnation in prescriptive legal writing. This divided understanding of the law ignores the fact that legal theory cannot be unravelled from legal practice. Interdisciplinary approaches must acknowledge that legal writing is traditionally prescriptive: as Prof. Weinrib argues, "Law is a phenomenon that exists only through a set of legal doctrines, institutions and juristic activities." (109)
Atkinson and Majury do not fail to recognise that interdisciplinary approaches can address prescriptive methodologies. For example, the authors point out that contextualizing the law, as White did by defining "law as central to a culture defined by the ways in which authority is distributed and power is expressed", (110) allows the analysis to become "instructive to lawyers and judges". (111) I interpret Atkinson and Majury to be suggesting here that contextualization allows these interdisciplinary works to contribute to our understanding of the common law and reflect on the meaning of juridical activity, rather than to literally instruct lawyers and judges through prescriptive writing. (112) Yet, the authors' attempt to bridge the gap between the theoretical and the practical, for example, through the "human rights-based synthesis of the spiritual and the political", (113) falls short of this goal. The attempt is hampered by a methodology that is firmly grounded in the humanities. By focusing on the narrow convergences between law and the humanities, "transcendent interdisciplinarity" evades coming to terms with the methodological differences between the humanities and the law. The separation of prescriptive legal writing from legal theory that characterises Atkinson and Majury's methodology has the effect of simply imposing humanistic approaches on discussions about the law. The synthesis of the spiritual and the political is revealed as an illusion, albeit a poetic one.
Ironically, Atkinson and Majury's universalistic premise, based on "transcendent interdisciplinarity", precludes them from achieving a big picture perspective that can be extrapolated from by those working in both the law and the humanities. Instead, the editors present the reader with a compartmentalised understanding of the law. By favouring humanistic methodologies over prescriptive legal writing, "transcendent interdisciplinarity" serves to highlight the difficulty involved in reconciling their differences. Since writing about the law without grappling with its prescriptive nature cannot be said to be writing about the law, the interdisciplinarity of the project is compromised: as Prof. Weinrib points out, "[f]or academic work to be truly interdisciplinary, it must engage more than one discipline". (114) The interdisciplinary conversation is illusory because it only comprises the lone voice of the humanities. (115)
IV DIVERGENT METHODOLOGIES
The contributors to Law, Mystery, and the Humanities, with diverse backgrounds in law faculties, English departments and legal practice, find common ground in their engagement with the question of what it means to write about the law in an interdisciplinary manner. The essays deal with an array of unrelated themes, from sedition in Upper Canada to the destructive role of legal authority during the Great Plague, but are bound together by a common interest in the perspective offered by interdisciplinarity. (116) As discussed above, there is a significant divergence of methodologies amongst the essays in the collection, which is indicative not only of a lack of consensus about how best to approach the law and humanities project but also a conscious desire to abandon the organizing frameworks imposed by prescriptive legal writing. While some authors consciously disengage from practical applications, (117) others seek to ground their approach to the law by engaging with (and reacting to) the law's traditionally prescriptive methodology. (118) This section will explore the divergent approaches of two of the essays in the collection, Moreau's "Analytic Philosophy and the Interpretation of Constitutional Rights", (119) and Samson's "Language and Law as Objects of Scientific Study", (120) as well as the methodology established in Atkinson and Majury's introduction. Setting these essays side by side illuminates alternative approaches to "the law" as a subject matter, which results in varying degrees of interaction between legal and humanistic methodologies. While Moreau directly addresses the difficulties of applying humanistic approaches to prescriptive legal writing, Samson locates epistemological similarities between theoretical approaches in linguistics and the law and as a result his essay remains rooted in a purely humanistic methodology. (121)
Moreau's essay evaluates the difficulties of applying analytical philosophy to the analysis of equality and constitutional rights. The aim of analytical philosophy, according to Moreau, is "to separate out and discuss in some detail the different possible interpretations of a particular concept; to consider the logical implications of each of these interpretations; and where the context is a legal one, to lay bare the consequences for legal doctrine of adopting one particular interpretation of a concept over another". (122) One objection to the application of analytical philosophy to the legal realm is that analytical philosophy leaves questions open, while constitutional judicial decision-making must "force the issue". (123) Another concern is that the judiciary must not only make decisions but must also craft these decisions within the confines of the common law. (124) Further, from a pragmatic point of view, while analysis through analytical philosophy calls for an account of constitutional rights as a cohesive body, the comprehensiveness of this methodology is unfeasible within the court system, which requires that individual rights be artificially unravelled from each other. (125) Moreau concludes that, despite these challenges, the application of analytical philosophy to constitutional reasoning is not "inappropriate" and warrants further exploration. (126)
In terms of Moreau's approach to prescriptive legal writing, the essay not only engages with prescriptive methodologies but is explicitly prescriptive in that it proposes to sketch a preliminary guide to future legal reasoning and identifies its audience as judges and academics who view their role as guiding decision-makers. This approach resonates with Bastarache's call for academics to "provid[e] a rational basis for judicial decision-making". (127) Moreau is faced with the problem that analytical philosophy, which offers depth of analysis but does not necessarily lead to a conclusion, fits uneasily within prescriptive methodologies (which characterise legal decision-making). However, the question of reconciling methodologies with divergent means and ends resonates profoundly with the challenges of interdisciplinary writing in law and the humanities. The problems associated with the application of analytical philosophy to legal reasoning are symptomatic of those encountered when applying humanistic methodologies more generally to legal writing.
Evaluated in light of Moreau's express intention to guide decision-makers in applying analytical philosophy to their craft, the fact that she concludes that such an application is not "inappropriate" does not seem to be an especially useful conclusion. The essay does not, in fact, develop such a framework. Nonetheless, as discussed in Part II of this review, legal scholarship does not need to assume the guise of prescriptive legal writing in order to reflect on the direction of judicial activity. (128) It is not necessary for Moreau to overcome the practical constraints to the application of analytical philosophy to constitutional law for her essay to provide insight into the challenges facing scholars and judges who may pursue this line of analysis in the future. From this perspective, it is of little consequence that no prescriptive conclusion is drawn, (129) since she makes a concrete attempt to reconcile humanistic approaches with the implications of the law's traditional prescriptive methodology. While Moreau's essay does not conclude with a clear picture of how this reconciliation might occur, the essay is nonetheless a valiant attempt to explore the use of philosophy within a prescriptive framework. (130)
Samson's essay, "Language and Law as Objects of Scientific Study", builds from the idea that the formal approach to the study of linguistics developed by Noam Chomsky and the legal positivism developed by H. L. A. Hart, though in different fields, share a common tenet: that their subjects are static and can be studied scientifically. (131) According to Samson, Hart and Chomsky not only share an epistemological presupposition, (132) because "in a positivist account of the law as well as in a Chomskyan approach to linguistics, the rules must always exist before the actual languages or laws", (133) but their established paradigms have both been overturned by a new generation of scholars.
Samson's interdisciplinary methodology posits that comparing different epistemologies may have the effect of generally "forcing both sides to re-examine unconscious assumptions". (134) This approach is in line with Atkinson and Majury's "transcendent interdisciplinarity" in its attempt to identify the fundamental building blocks shared by disciplines. Samson notes that Hart defines "the law" as a collection of rules which are separate from morals and may therefore offend society's sense of morality. (135) Samson suggests that this separation "ensures that legal systems will be viewed as being composed of discrete objects of scientific observation". (136) Hart's paradigm, however, has ostensibly been debunked by scholars such as Roger Cotterrell and Stanley Fish, who have demanded to know how it is that we identify legal propositions, if they have always been in existence. (137) Samson points out that Chomsky's theories have been challenged following remarkably similar reasoning, by linguists who doubt the potential for objective meaning to exist in practice. (138)
Samson concludes that the new generation of scholars responsible for the parallel overturning of Hart and Chomsky's epistemologies have precipitated a paradigm shift and worked to "hasten change". (139) This conclusion begs the question: change towards what? While Samson proclaims legal positivism to be flawed and (in his mind rightfully) much maligned, he does not broach the potential implications for legal decision making of undoing positivist legal thought. In writing about the law, such an account is necessary: it is not sufficient in the legal field to debunk the underlying assumptions of legal traditions without also recognizing the implications for the operation of the law, its institutions and judicial application. (140) The law is not an historical relic, still occasionally turned to by modern society for the purpose of decision-making, but rather a vibrant, evolving phenomenon. To Samson, both law and linguistics are locked in their "respective ivory towers", (141) betraying the presumption that they are both predominantly theoretical entities.
Samson's incomplete account of the law is reflected in the fact that, from a methodological point of view, the essay remains grounded in the humanities. The law is overtly discussed as a humanity, drawing on uniquely theoretical methodologies. Moreau's argument, on the other hand, depends on an understanding of the law that accounts for both its theoretical and prescriptive elements, allowing the essay to address directly the difficulties of reconciling humanistic and prescriptive methodologies. Moreau and Samson need not conform to any single approach, yet the divergences in methodologies between the two essays illustrates the importance of engaging both with the practical and theoretical aspects of the law. In separating a theoretical approach from prescriptive methodologies, Samson's essay fails to be truly interdisciplinary.
The fact that both essays ostensibly comport with Atkinson and Majury's understanding of a "transcendent interdisciplinarity", moreover, reveals a limitation of the editors' approach. By focusing on broad questions that span law and the humanities, the editors' approach obscures the reality that the disciplines themselves are characterized by the methodological differences that define them. A true interdisciplinarity must focus not on 'subjects' or 'questions' alone, but must grapple with the implications of divergent methodologies. While Samson draws on humanistic methodologies in discussing 'law' as a subject matter, Moreau succeeds in transcending not only the topical focus of legal and humanistic inquiries, but also, more importantly, the methodologies that distinguish each as disciplines.
The seeds for Law, Mystery, and the Humanities were sown at conferences organised by the Canadian Initiative in Law, Culture & the Humanities at the Department of Law at Carleton University, where Atkinson and Majury are based. (142) With its focus on "law and legal issues within a social context", and "the underlying dynamics of law and legal studies, including an in-depth understanding of its rules, agents, institutions, and power structures", the Department of Law at Carleton is a natural locale for the creation of this collection. (143) Atkinson and Majury approach the intersection of law and the humanities from a unique place in Canadian legal academia and in doing so have made a valuable contribution to the law and humanities conversation in Canada.
Nonetheless, it is questionable whether or not Atkinson and Majury's approach achieves its stated goal of "widening our understanding of both culture and law". (144) "Transcendent interdisciplinarity" has the effect of largely recasting the law as one of the humanities: the points of convergence between the law and the mysteries of the humanities resonate with the theoretical aspects of the law but not the law in practice. Atkinson and Majury's methodology works to separate humanistic methodologies from traditional legal writing characterised by prescriptive methodologies. While employing the law as an abstract foil to the humanities does not threaten the sanctity of the law, (145) such an approach can fail to be truly interdisciplinary insofar as it fails to engage with both of the disciplines in its interdisciplinary project. (146) Far from bridging the gap between law and the humanities, Atkinson and Majury's methodology illuminates the irreconcilability of humanistic methodologies with the norms of prescriptive legal writing. By failing to negotiate the implications of divergent methodologies and addressing law's traditional prescriptivism, the conversation is limited to the humanities, and thus is not a conversation at all.
* The author gratefully acknowledges the assistance of the Senior Board Notes, Comments and Reviews Editors, in particular Lead Researcher Melissa Kim, and the Senior Editors of the University of Toronto Faculty of Law Review. The author also thanks Professor Simon Stern.
(1) Michel Bastarache, "The Role of Academics and Legal Theory in Judicial Decision-Making" (1999) 37 Alta. L. Rev. 739 at 739.
(2) Logan Atkinson and Diana Majury, "Points of Convergence: Law, Mystery, and the Humanities" [Atkinson & Majury] in Logan Atkinson and Diana Majury, eds., Law, Mystery, and the Humanities: Collected Essays (Toronto: University of Toronto Press, 2008) 3 at 30 [Collected Essays].
(3) See Logan Atkinson, "'Our Woe ... Our Great Distress': Law, Literature, and Suffering during the Great Plague of London, 1655" in Collected Essays, ibid. at 279 [Atkinson].
(4) See Sophia Moreau, "Analytic Philosophy and the Interpretation of Constitutional Rights" in Collected Essays, ibid. at 67.
(5) Atkinson & Majury, supra note 2 at 30.
(7) The authors cite James Boyd White's book, The Legal Imagination (Boston: Little, Brown & Company, 1973) at xxi, which recasts the lawyer as a "literary man", but there have also been attempts to re-position the law within other fields of study, such as economics, engineering, or the sciences. See David Howarth, "Is Law a Humanity (or is it more like Engineering)" (2004) 3 Arts & Humanities in Education 22.
(8) Atkinson & Majury, supra note 2 at 7. The authors define "a more transcendent interdisciplinarity" as "an interdisciplinarity transcendent of the narrow issues that tend to preoccupy scholars in law and in other disciplines".
(9) Ibid. at 5.
(10) Ibid. at 4.
(12) I use the phrase "theoretical approaches" to suggest methodologies which draw out the theoretical and historical underpinnings of the law, without ultimately seeking to make pronouncements about how the law should be interpreted or used.
(13) See Jack M. Balkin & Sanford V. Levinson, "Law and the Humanities: an Uneasy Relationship" (2006) 18 Yale L.J. & Human. 155 at 175. In this essay I adopt Balkin and Levinson's definition of prescriptivism as "the demand that each piece of scholarship offer some account, however nebulous, of the stakes for how the law should be modified or interpreted or how legal decisionmakers should do their jobs". Prescriptive legal writing, in seeking to influence the interpretation and development of legal rules, naturally finds its audience among legal practitioners and decision-makers.
(14) Ernest J. Weinrib, "Can Law Survive Legal Education?" (2007) Vanderbilt L. Rev. 60 at 404.
(15) Ibid. at 430.
(16) See ibid. at 431 for additional discussion of the interdisciplinary conversation.
(17) I will compare Moreau's essay, "Analytic Philosophy and the Interpretation of Constitutional Right", supra note 4, with Remi Samson's essay, "Language and Law as Objects of Scientific Study", in Collected Essays, supra note 2 at 121
(18) Collected Essays, supra note 2 at viii.
(19) Balkin & Levinson, supra note 13 at 175. See also Allan Hutchinson, "The Role of Judges in Legal Theory and The Role of Legal Theorists in Judging (or 'Don't Let the Bastaraches Grind you Down')" (2001) 39 Alta. L. Rev. 657 at 658 (which discusses the "traditional role of legal scholarship as a practical and doctrinal critique"); Atkinson & Majury, ibid. at 30.
(20) Bastarache, supra note 1 at 743. See also Patricia McMahon, "Canadian Judicial Citations of Articles Published in the University of Toronto Faculty of Law Review" (2001) 59 U.T. Fac. L. Rev 367 at 369.
(21) Hutchinson, supra note 19 at 657.
(22) Weinrib, supra note 14 at 404.
(23) See Harold Suretsky, "Search for a Theory: An Annotated Bibliography of Writings on the Relation of Law to Literature and the Humanities" (1979) 32 Rutgers L. Rev. 727.
(24) See supra note 13.
(25) See Howarth, supra note 7.
(26) Bastarache, supra note 1 at 739.
(27) Weinrib, supra note 14 at 404.
(28) Atkinson & Majury, supra note 2 at 9.
(29) Weinrib, supra note 14 at 429. See also Atkinson & Majury, ibid.: the Canadian Initiative in Law, Culture & the Humanities at the Carlton University Department of Law has only been in existence since 2005. In 2008, the University of Toronto, Faculty of Law introduced a combined program in Law and Literature, which offers students the opportunity to work simultaneously towards a J.D. and M.A. in English. See also David Steeves, A Novel Approach to the Law: the Case for an Expanded Study of Canadian Law and Literature (LLM Thesis, Dalhousie Law School, 2009) [unpublished] at 2: Steeves identifies ten law and literature programmes across Canada's 21 law schools.
(30) See Richard Weisberg, "Notes from the Editorial Advisory Board" (1988) 1 Yale L.J. & Human. 1 at 396: "Law and Literature eschews enforcing simple answers or directed bibliographies on its practitioners."
(31) Jane B. Baron, "Law, Literature, and the Problems of Interdisciplinarity" (1998) 108 Yale L.J. 1059 at 1059. See also Marianos Diamantides, "Review Essay: The Long Way to an Un-Disciplined Literature" (2000) 12 Cardozo Stud. L. & Literature 293: Diamantides finds that the lack of clear methodology is a sign of weakness.
(32) Neil Sargeant, "Murder and Mayhem in Legal Method: or, the Strange Case of Sherlock Holmes v. Sam Spade" in Collected Essays, supra note 2 at 39. Sargeant writes about the ways that "fictional accounts of law provide a literary mirror in which we can see particular images of 'the legal' reflected in the text".
(33) Harry T. Edwards, "The Growing Disjunction between Legal Education and the Legal Profession" (1992) 91 Mich. L. Rev. 34 at 34. Justice Edwards sits on the Court of Appeals for the District of Columbia.
(34) Ibid. at 35. Justice Edwards includes "law and literature", "law and sociology" and "law and economics" in the "law and" category, along with critical legal studies, critical race studies and feminist legal studies.
(35) Balkin and Levinson, supra note 13 at 179.
(37) See Howarth, supra note 7.
(38) McMahon, supra note 20 at 369.
(40) Weinrib, supra note 14 at 404.
(41) Owen Fiss, "The Challenge Ahead" (1988) 1 Yale L.J. & Human. viii at xi.
(42) "Note from the Editors" (1988) 1 Yale L.J. & Human. v at v.
(43) Balkin & Levinson, supra note 13 at 175.
(44) Howarth, supra note 7 at 13: "[T]he importance for lawyers of making structures that work in the society we live in".
(45) Atkinson & Majury, supra note 2 at 7.
(46) See supra note 7.
(47) Atkinson & Majury, supra note 2 at 7.
(49) Ibid. at 14.
(50) Ibid. at 15. As I will discuss in the following section, not all of the authors in the collection subscribe to this methodological approach.
(51) Weinrib, supra note 14 at 404.
(52) Atkinson & Majury, supra note 2 at 8.
(53) Ibid. at 3.
(54) Ibid. at 1. The authors cite Alan Hamilton, "How two philosophers and a farmer cracked an age-old conundrum" The Times (26 May 2006) at 5.
(55) Atkinson & Majury, ibid. at 4.
(56) Ibid. at 6.
(57) Ibid. See Linda Myrsiades, "Un-Disciplining Literature: Literature, Law, and Culture" in Kostas Myrsiades and Linda Myrsiades, eds., Un-Disciplining Literature: Literature, Law, and Culture (New York: Peter Land, 1999) 1 at 1; Alain Papaux, "Nature: From Philosophy of Science to Legal Theory ... and Back?" in Collected Essays, supra note 2 at 91.
(58) James Boyd White, When Words Lose their Meaning: Constitutions and Reconstitutions of Language, Character, and Community (Chicago: University of Chicago Press, 1984). Although the authors trace their methodology to the seminal work of James Boyd White, they point out that his approach has evolved over his career, moving away from projects that attempt to place the law "inside the humanities" (Atkinson & Majury, supra note 2 at 7), towards an attempt to "isolate characteristics of the law (such as its arguably unique use of language) that have the potential to combine with insights in the humanities to create a fresh understanding of human relationships" (Atkinson & Majury, ibid. at 8). See also Howarth, supra note 7; Baron, supra note 31 (for an author who discusses an interdisciplinary model that focuses on identifying and breaking down barriers).
(59) Atkinson & Majury, ibid. at 7. The term refers to Sisyphus, the mythical Greek character who is cursed to repeatedly roll a huge boulder up a hill, only to watch it roll down again as soon as he reaches the top of the hill.
(60) Ibid. at 8, quoting James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: University of Chicago Press, 1984) at 16.
(61) Atkinson & Majury, ibid. at 9. See also ibid. at 6.
(62) Ibid. at 5.
(63) Ibid. at 9. The authors admit that the selection of these themes is necessarily an arbitrary exercise: the size of the publication limits what might be achieved within its covers.
(65) Ibid. at 10
(66) Ibid. Atkinson and Majury cite the following works as examples: Derrick Bell, Faces at the Bottom of the Welk The Permanence of Racism (New York: Basic Books, 1992); Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987); Sherene Razack, Looking White People in the Eye: Gender, Race and Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press, 1998); Patricia Williams, The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1991). See also Mayo Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford: Oxford University Press, 2003).
(67) Atkinson & Majury, ibid.
(68) Ibid. at 12.
(69) Sargeant, supra note 32 at 39.
(70) Moreau, supra note 4 at 67.
(71) Ibid. at 84.
(72) Papaux, supra note 57 at 91.
(73) Samson, supra note 17 at 121.
(75) Atkinson & Majury, supra note 2 at 17.
(76) Ibid. at 18 & 19.
(77) Marie-Claire Belleau and Rebecca Johnson, "I Beg to Differ: Interdisciplinary Questions About Law, Language and Dissent" in Collected Essays, supra note 2 at 145.
(78) Barry Wright, "Imagining Sedition: Law, and the Emerging Public Sphere in Upper Canada, c. 1798-1828", in Collected Essays, ibid. at 167.
(79) Ibid. at 171. Wright uses the term "public sphere" to indicate "[t]he popular right to access independent information about government and to freely discuss and criticize government": ibid. at 193.
(80) Atkinson & Majury, supra note 2 at 22.
(82) Ibid. at 23.
(83) Brenda Carr Vellino, "Human Rights Poetry as Ethical Tribunal: Bodies and Bystanders in Margaret Atwood's 'Footnotes to the Amnesty Report on Torture'", in Collected Essays, supra note 2 at 217.
(84) Ibid. at 218-219.
(85) Atkinson & Majury, supra note 2 at 23.
(86) In the novel, a school bus crash results in the death of a number of children from a small town. Russell Banks, The Sweet Hereafter (New York." HarperCollins, 1991).
(87) Diana Majury, "Who Do We Blame for Blame? Moving beyond the Fiction of Blame in The Sweet Hereafter", in Collected Essays, supra note 2 at 247 [Majury].
(88) Atkinson & Majury, supra note 2 at 24.
(89) Majury, supra note 87 at 266.
(90) Atkinson, supra note 3.
(91) Atkinson & Majury, supra note 2 at 25. Polemic literature refers to literature produced by the clergy and medical professionals.
(92) Atkinson, supra note 3 at 299.
(93) Ibid. at 298.
(94) Atkinson & Majury, supra note 2 at 26.
(95) Ibid. See also supra note 56 for more on Myrsiades.
(96) Atkinson & Majury, ibid.
(99) M.H. Ogilvie, "The Strange Gospel and a Common Law: The Reconciling Word to a Fragmented World", in Collected Essays, supra note 2 at 305.
(100) Ibid. at 307.
(101) Ibid. at 339.
(102) Clinton Timothy Curie, "The Re-enchantment of the World? Max Weber, Ernst Troelsch, and Human Rights", in Collected Essays, supra note 2 at 347.
(103) Atkinson & Majury, supra note 2 at 29.
(107) Ibid. at 15.
(108) Ibid. at 12.
(109) Weinrib, supra note 14 at 404.
(110) Atkinson & Majury, supra note 2 at 7.
(112) See Part II of this review.
(113) Atkinson & Majury, supra note 2 at 29.
(114) Weinrib, supra note 14 at 404.
(115) See ibid. at 431, for additional discussion of the interdisciplinary conversation.
(116) See Wright, supra note 78; Atkinson, supra note 3.
(117) Sargeant, supra note 32 at 39; Samson, supra note 17 at 121.
(118) Moreau, supra note 4 at 67; Belleau & Johnson, supra note 77 at 145.
(119) Moreau, ibid. at 67.
(120) Samson, supra note 17 at 121.
(121) Samson uses the word "epistemology" to suggest "the critical study of scientific principles, hypotheses and results in order to determine their (non-psychological) origin, their value, their scope": see ibid. at 122.
(122) Moreau, supra note 4 at 67.
(123) Ibid. at 69 & 71.
(124) Ibid. at 77.
(125) Ibid. at 79.
(126) Ibid. at 69.
(127) Bastarache, supra note 1 at 739.
(128) Weinrib, supra note 14 at 404.
(129) Moreau, supra note 4 at 77.
(130) Ibid. at 78.
(131) Samson, supra note 17 at 123.
(133) Ibid. at 124.
(134) Ibid. at 121. Specifically, with regards to linguistics and the law, Samson points out that "semantics and pragmatics can help disambiguate and make determinate problematic legal texts" (referring here to the editor's foreword of the Washington University Law Quarterly (1995) 73 Wash. U. L. Q. 769 at 770, as well as C. D. Cunningham, et al., "Plain Meaning and Hard Cases" (1994) Yale L.J. 1561, among others). Nonetheless, this is not the approach that he adopts in this essay.
(135) See H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994) at 100, 240.
(136) Samson, supra note 17 at 130.
(137) See Roger Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Philadelphia: University of Pennsylvania Press, 1989) at 105; Stanley Fish, Is There a Text in This Class? The Authority of Interpretative Communities (Cambridge, MA: Harvard University Press, 1980) at 247.
(138) Samson, supra note 17 at 131-132. See P.F. Campos, "This is not a Sentence" (1995) 75 Wash. U. L .Q. 971. This line of questioning has led to the development of cognitive psychology, which Samson points out has, in fact, already been applied in the legal arena to identify the psychological and social origins of the judiciary's cognitive biases: see R. Chen & J. Hanson, "Categorically Biased: The Influence of Knowledge Structures on Law and Legal Theory" (1989) 77 Calif. L. Rev. 1103.
(139) Samson, ibid. at 136.
(140) Weinrib, supra note 14 at 404.
(141) Ibid. at 122.
(142) Collected Essays, supra note 2 at vii.
(143) Carleton University, Department of Law, "Information for Prospective Students", online: <http://www2.carleton.ca/law/prospective>. The program offers its students a unique perspective on the relationship between the study and practice of the law, by presenting bachelor and masters degrees in legal studies, but not J.D.s or L.L.B.s.
(144) Atkinson & Majury, supra note 2 at 4.
(145) See Howarth, supra note 7 at 22.
(146) Weinrib, supra note 14 at 430.
MEAGHAN MCCONNELL, B.A. (Barnard),J.D. (Toronto).
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|Date:||Mar 22, 2009|
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