Instructor(s): David Dyzenhaus, Karen Knop

Note: This course satisfies either the Perspective or the International/Comparative/Transnational course requirement.  

This course will connect some of the main debates in legal philosophy with concrete problems that arise within the practice of human rights lawyering, as well as with issues about how state legal orders interact with both each other and with the international legal order. No prior acquaintance with philosophy of law or international law (public and private) is required. 

The focus of the course will be the light these philosophical debates shed on the concrete dilemma that faces human rights lawyers in their struggle against legalized injustice when they must reckon with the fact that their victories as well as their defeats serve to legitimise the very regime against which they are struggling. We will, for example, look at concrete examples of such dilemmas as they arise in the legal struggle for Indigenous rights in Canada and for the rights of Palestinians living under Israeli occupation. 

We will start with an introduction to two classic debates, between HLA Hart and Lon L Fuller about the nature of legality, and between Hart and Ronald Dworkin about the role of adjudication. We will then consider Ernst Fraenkel’s analysis of the Nazi state, an account based on his practice as a socialist Jew in Berlin between 1933 and 1938. Fraenkel’s idea that the Nazi state was a Dual State, which combined a ‘normative state’ and a ‘prerogative state’, does not figure in these classic debates. 

We will consider how Fraenkel’s idea alerts us to the ‘politics of legal space’, a politics that makes human rights lawyering both possible and fraught. Here we will contrast the Dual State with three other juridical state forms or ideal types: the Rule-of-Law State in which all official action is subject to law, the officials are answerable for their actions before the ordinary courts, and the law to which they are answerable includes both the positive law that authorizes their actions and legal principles embedded in the law protective of individual rights; the Apartheid State in which vast exceptions to the general law are made in order to discriminate against one or more groups; the Parallel State (Israel and the Occupied Territories) in which two legal orders are united at the top but otherwise sealed off from each other. All three are on ‘continuum of legality’, which means that those who are subject to its law will be part of a ‘jural community’--the community of legal subjects bound together by law. To be subject to the law is to be able to get an answer to the question ‘But, how can that be law for me?’ The kind of answer one can get is deeply affected by where one’s state is on the continuum, which reveals the politics of legal space. We will also consider the possibility that all actual states are Hybrid States in that they will combine elements of all the ideal types, but that the particular combination permits one to place a state on the continuum. And we will ask how the space of Indigenous law in Canada interacts with both the space of Canadian state and the space of the international legal order. 

Evaluation
(1) 5,500 word paper (80%). (2) Outline (10%): this 1000 word note, in preparation for your paper, will briefly discuss the main sources you will be relying on and sketch the direction of argument you plan for your paper. The outline will be compiled late in the term after a discussion with one or both of the course instructors. It will be returned with comments. (3) Class participation (10%): class participation will be evaluated on the basis of general participation over the course of the term, and two short (500 word) comments on the readings assigned for class.
Academic year
2022 - 2023

At a Glance

Second Term
Credits
3
Hours
3
Perspective course
ICT

Enrolment

Maximum
40

35 JD
5 LLM/SJD/MSL/NDEGS/SJD U

Schedule

T: 2:10 - 3:30 pm
Th: 2:10 - 3:30 pm