History 2010-2011

2009-2010

2011 McMaster University Philosophy of Law Conference

The Nature of Law: Contemporary Perspectives
Hosted by McMaster University's Philosophy Department
May 11-15, 2011

Professor Theunis Roux presents "The Chaskalson Court's Achievement" (The paper is the first draft chapter of Theunis Roux, The Politics of Principle:
The First South African Constitutional Court, 1995-2005 (forthcoming, Cambridge University Press, 2012)

Tuesday, April 19, 2011
3:30 pm in Hamilton Hall 305
Theunis Roux

Professor of Law, University of New South Wales, Australia Prior to his move to Australia in January 2009, Roux was the founding director of the South African Institute for Advanced Constitutional Law (SAIFAC) – a legal research institute based
on Constitution Hill, Johannesburg. In this capacity, he served
for four years as the Secretary-General of the International Association of Constitutional Law (IACL).

"The Chaskalson Court's Achievemen"
Under its first chief justice, Arthur Chaskalson, the South African Constitutional Court built an unrivalled reputation in the comparative constitutional law community for technically accomplished and morally enlightened decision-making. At the same time, the Court was very effective in asserting its veto role in post-apartheid politics.

This paper, the first chapter of a longer study of the Court, argues that the Chaskalson Court's achievement in these two respects is best explored by means of an interdisciplinary approach – one that synthesises the conceptual frameworks and methods of judicial politics and legal theory. To make this case, the paper considers the two dimensions of the Chaskalson Court's achievement, and shows how the criteria that judicial politics scholars and legal theorists use to assess the performance of constitutional courts, though related, are nevertheless in tension with each other.

In politically controversial cases, the legal account insists, a constitutional court's duty to do justice according to law means that it must disregard the institutional consequences of its decisions. For judicial politics scholars, on the other hand, such cases are precisely when constitutional courts need to think about the likely impact of their decisions on their long-term capacity to perform their institutional function.

Given this tension, there is something worth investigating about the Chaskalson Court's achievement, and moreover something that may be best explored by means of an interdisciplinary approach. In particular, what is remarkable about the Court's achievement is the way it was able to remain faithful to law without triggering a debilitating political attack.

Paper available upon request

	Professor Leslie Green presents "Legal Fictionalism"
		Monday, March 14, 2011 at 3:30 pm in MDCL 1008 Leslie Green Professor of the Philosophy of Law, University of Oxford Professor of Law and Distinguished University Fellow, Queen's University, Canada Adjunct Member, Department of Philosophy, McMaster University "Legal Fictionalism" Must legal philosophy aim at truth? This is doubted by those who think it should aim at goodness. It is also doubted by those who think 'truth' does not pick out a substantive theoretical aim. This paper explores a different reason for hesitating. Some propositions about law are acceptable though not literally true. They are (theoretically useful) fictions. It is argued that this was Hans Kelsen's view, and that it has merit.

Professor Thomas Christiano

PhD student, Fabio Shecaira, presented his paper - "Legal Positivism and the Problem of Theoretical Disagreement" at the June, 2010 meeting of the Canadian Philosophical Association in Montreal.

The aim of Shecaira's paper was to show that Ronald Dworkin was correct in believing that the pervasiveness of theoretical disagreement in law would pose a serious problem for legal positivism, but wrong in supposing that such disagreement is indeed pervasive.

On May 14, 2010, Waluchow presented at and participated in a one-day seminar at the law school of the University of Western Ontario dedicated to Gregoire Webber's recent book The Negotiable Constitution.

Christine's thesis attempted to unravel various conceptual and normative puzzles surrounding "private prisons." Talene's thesis examined the applicability of the distinction between ‘law’ and ‘politics’ at the international level, and in the process evaluated some prominent traditional theories of law.

CONGRATULATIONS TO BOTH TALENE AND CHRIS!

Scott Wisdom was at the University of Chicago, where he enjoyed the benefits of studying with Brian Leiter, while Jessica Murphy was at McGill University with Natalie Stoljar. Meanwhile, Heather Kuiper spent the year at Cambridge University, where she is availing herself of the opportunity to work with Matthew Kramer.

Sciaraffa commented on Robert Leckey's "Complexifying Roncarelli's Rule of Law" as well as Victor Muniz-Fraticelli's "Beyond Agon: the Duality of the Pluralist State."
Waluchow presented his paper "On the Neutrality of Charter Reasoning."

Stefan Sciaraffa recently published his “Critical Notice, The
Underlying Value of MacCormick’s Post-Positivism,” in the
inaugural edition of Jurisprudence 1: 121-136.

Stefan is currently working on a number of different projects, including a new book for Routledge entitled The Nature of Law:
A Philosophical Inquiry.

McMaster University's first annual Graduate Conference for Legal Theory was held on March 5-7, 2010.
No fewer than 19 papers were presented, with Andrei Marmor (USC) and Wil Waluchow (McMaster) serving as Keynote Speakers.
Waluchow presented "The Neutrality of Charter Reasoning"; and Marmor presented "The Dilemma of Authority: An Institutional Solution"

Over 30 graduate students attended the conference from places such as Georgia State University, SUNY, Buffalo, University of Toronto, York University (Toronto) Oxford University, Cambridge University, UNAM (Mexico City), University of
Southern California, Yale University, Australia, and, of course, McMaster University.

A wonderful time was had by all and plans are now under way for a follow up conference to be held as part of the 2011 McMaster University Philosophy of Law Conference, May 11-15, 2011

On April 22-23, 2010, Stefan Sciaraffa and Wil Waluchow attended a conference entitled “Canada-Mexico Encounter on Constitutional Interpretation, Legal Theory and Philosophy Tree Living Constitutionalism: Democracy, Rule of Law and Human Rights” held at the Legal Research Institute of UNAM in Mexico City.

Sciaraffa presented his paper "Interpretation and the Nature of Legal Content" in which he proposes a solution to the problem of theoretical disagreement in the law that (1) relies on Hart's theory of a legal system and (2) holds that some moral considerations are ultimate determinants of the laws of a legal system, and, hence, rejects Hart's positivist theory of legal content.

Waluchow presented an early version of his paper, "The Neutrality of Charter Reasoning." In addition to Sciaraffa and Waluchow, the Canadian contingent included Grant Huscroft and Brad Miller of the University of Western Ontario, Natalie Stoljar of McGill, and Madame Justice Marie Deschamps of the Supreme Court of Canada.

On April 29, 2010, Elisabeth Gedge delivered the Keynote Address at York University's 3rd Annual Philosophy Graduate Conference.The paper was entitled "Dignity, Vulnerability, and Philosophy"

In her paper, Gedge considers what, if anything, would be lost by jettisoning "dignity" in bioethics and law, and, in particular, how the importance of protecting or advancing the interests of the vulnerable might be adequately captured in its absence. At the meta-level, she employs her discussion to illustrate the practical significance of what we, as philosophers, do.

On May 20-22, 2010, several members of the McMaster legal philosophy community attended "Neutrality and Legal Theory", an international conference held in Girona, Spain.

Those who attended were: Heather Kuiper, Jessica Murphy, Talene Thomasian, Matt Grellette, Otto Phillips, Fabio Shecaira, Stefan Sciaraffa and Wil Waluchow. Waluchow presented his paper"The Neutrality of Charter Reasoning."