The Evolution of Law and Philosophy at U of T Law School

By Brad Faught

This article was first published in the Spring 2005 issue of Nexus.

Prussian philosopher Immanuel Kant

Ernie Weinrib has a great view from his office. From the fourth floor of Flavelle House, the longtime law professor, who has been declaiming on torts, philosophy and occasionally - since he has a PhD in the field - the classics since 1972, overlooks the southern reaches of Philosopher's Walk. Appropriately, this sylvan walkway that connects Bloor Street to Hoskin Avenue is close to Weinrib's office because for the past 33 years he has been an integral member of the Law and Philosophy group at the University of Toronto, Faculty of Law. And over the course of these years the group has come to embody one of the most important cadres of legal philosophers in North America. Asked why this development has happened, Weinrib shrugs modestly and replies with a smile: "We started with almost nothing, that is, with me. We then made superb appointments. Theoretical debate sprouted. Workshops and discussion groups were instituted. Interdisciplinary and international connections were made. Groundbreaking books and articles were published. And now we find ourselves recognized internationally as a pre-eminent centre for legal theory."

But I'm not in Weinrib's bright, exposed brick office merely to admire his view of Philosopher's Walk. After an hour's chat on the genesis and history of Law and Philosophy at U of T - of which much more will be said later - we move on to my second stop at the law school on this sunny, late-winter day. Leaving Weinrib's office we roll our office chairs down the hallway to an appointment designed to give me a fuller answer to the question of what it is that makes the Law and Philosophy group tick? I'm going for lunch with a number of members of the group at the office of its current unofficial convenor, Professor Arthur Ripstein. Professors' offices the world-over are known for at least one thing: piles of books piled upon piles of books, which are in turn piled upon piles of paper. In this respect, Ripstein's office doesn't disappoint. Bookshelves line the walls. A table sits in the centre of the room, upon which lie lots of scattered papers, and more books. Such professorial clutter has been pushed aside, however, to make way for the sandwiches, drinks, cake, and fruit that make up the lunch. For some, such ample provisions might be enough to convince them to stop by Ripstein's office - unannounced - every week. But the food, as welcome as it is at 12:25 on a Thursday afternoon, is not the reason that 10 people will shortly gather for about an hour and a quarter of lively discussion. No, the reason they will come - as they have been coming throughout the academic year - is the long dead eighteenth century Prussian philosopher, Immanuel Kant. Yes, Kant may be a prime example of that dread species: the DWEM, Dead White European Male. But what a specimen! Truth be told, Kant has been under discussion in this weekly way for about 3 years now, with, Ripstein suggests later, another year or so left to go. Specifically, the group has been reading closely - very closely, that is - Kant's Metaphysics of Morals. Published in 1797 - in the middle of the French Revolutionary and Napoleonic Wars - it is a text central to the development of modern European law and politics.

Nobody said philosophy was easy, so I don't know why I should think otherwise. As I sit in the corner munching on a sandwich and glancing at the covers of such cardinal legal texts as William Blackstone's Commentaries on the Laws of England and Thomas Hobbes's Leviathan, my memories of a couple of undergraduate courses in philosophy are hazy. But as the noon-hour progresses my memory sharpens. I begin to recognize the style of engagement practiced by philosophers. Slow, deliberate, ruminative, sometimes halting, the group bores into Kant's words like a collection of fine-tuned drills. Alan Brudner asks a question, Ripstein responds, followed by an interjection by Ernie Weinrib, and then a further interjection by Lorraine Weinrib. At length, Bruce Chapman comments, and then it's back to Ripstein with a comment that ends with the words: "determinative spatial boundaries that are omnilateral." Whew! To non-philosophers such talk can be heavy going. A line-by-line, textual analysis of Kant is not for the slack of mind or the faint of heart. In the Metaphysics of Morals, Kant explicates his theory of the "supreme proprietor." In coming to grips with Kant's theory the group grapples with the nature of property owning, and his attempt to "reverse the Lockean picture," as someone remarks. The Englishman John Locke's influence on the western conception of property, legitimacy, and government has been profound, and for the last 300 years or so - ever since he put quill to parchment in late-Restoration England - Locke's work has been the staple of philosophers and, later, law schools. A hundred years after Locke was writing, Kant emerged, and with him came a renewed attempt to probe the law and its ultimate rationale, the legitimate use of force. And the debate, the parsing of meaning, the probing of intent, goes on. For legal philosophers, such is the bread and butter of their existence.

Every academic discipline has its own style of enquiry. "How many angels can dance on the head of a pin?" asked medieval theologians. Historians, for their part, are usually ruthless about "sources." Scientists stand or fall based on their control groups. For philosophers, however, the key is to talk. That is, from the days of Socrates' philosophizing on the streets of Athens - famously, "corrupting the youth" of the leading city of Ancient Greece - down to today, the modus operandi of the philosopher is simply to talk, to reason together. In this Socratic sense, the tradition is a grandly oral one. Later, I ask Arthur Ripstein about the style employed by philosophers. He concurs: "Philosophers mostly talk and split hairs," he chuckles. "That's how philosophy moves on."

At U of T Law School, the philosophical tradition has long been "moving on," but since the late 1970s, remembers Ernie Weinrib, it has come to operate along the lines of a group similar in style to the Faculty's other such groups, like Law and Economics or Health Law. And, as is often the case, it came about incrementally and without conforming to any kind of master plan. Weinrib, who was present at the creation, recalls his own tentative forays into the field of legal philosophy, which came partly as a result of his own "policy" developed at the outset of his teaching career: "Never talk about a rule or a doctrine of law without trying to understand its justification." As all law professors know - indeed, such would be true for all teachers of anything, anywhere - this kind of standard is a high one, and usually is best carried out collaboratively. For Weinrib, his self-proclaimed policy applies especially to the law of tort, his main area of interest. But what developed at U of T in the 1980s was the building of a group of scholars who seemed to espouse the same rigour in their teaching and scholarship, regardless of area of expertise.

The key moment in this development came in 1979, says Weinrib. At that time, former Supreme Court justice, the Hon. Frank Iacobucci, was dean, and he gave the go ahead to Weinrib to start a legal theory workshop. "We had a budget, which allowed us to bring in a distinguished visitor every few weeks throughout the academic year. It just went from there and has evolved into one of the most respected legal theory workshops in North America. We entered the international stream." Weinrib, from what I've seen of him, is not a person given to hyperbole. But I'm a journalist, after all. If someone says, "the best," or the "most respected," or especially that most cringe-worthy of terms, "world class," then off I go in search of independent verification. In this case, I thought one of the best ways to see what the last 25 years of law and philosophy had wrought at U of T was to attend one of the legal theory workshops themselves. Luckily, there was still one left in term, featuring a visiting scholar from the London School of Economics, Nicola Lacey. She would be talking about her recent biography of H.L.A. Hart, one of the foremost legal minds of the twentieth century, and almost iconic in some legal and philosophical circles for, among other pieces of work, his seminal book, The Concept of Law (1961). The great man, Professor of Jurisprudence at Oxford from 1952-68, has been given the close biographical treatment by Lacey, a scholar well-known in her own right in the field of feminism and the law. Her book, a "stunning achievement," according to the current Professor of Jurisprudence at Oxford, John Gardner, was much anticipated in the field and the fact that the Legal Theory Workshop was included on Lacey's North American peregrinations is testament to its high standing.

Unsurprisingly, for Lacey's talk the room is packed. Held in the atrium in Falconer Hall, and co-sponsored by the Feminism and the Law Workshop series - itself an outgrowth of the Law and Philosophy group - Lacey has attracted some 60 people variously arranged around a big rectangle made out of a series of tables, or seated around the atrium's perimeter. It's a beautiful early-spring day, and light streams through the windows that face south onto Flavelle House and Queen's Park. The Legal Theory Workshop, in addition to having a reputation for outstanding speakers, also - I've overheard a couple of students say on the way in - has an equally stellar reputation for the quality of its lunch. True to the word on the street, in neither way am I, nor the mix of students and faculty, disappointed. The lunch is great, and Lacey gives a lively talk on Hart, which sparks a number of questions. Everyone, it seems to me, eventually leaves sated, both intellectually and gastronomically. Later, I ask the chair of the day's proceedings, Professor Denise Réaume, what it is that has allowed for the creation of such a well-respected and stimulating workshop series. "Its success," she suggests, "is mostly because of adherence to the tried and true formula of great speakers and a lively audience."

Réaume herself, who works in tort law and feminist legal theory, is a good example of the way in which Law and Philosophy has prospered at U of T. There is now a long list of such scholars housed in either Flavelle House or Falconer Hall working in a variety of subareas: Lisa Austin and Abraham Drassinower on intellectual property; Alan Brudner on Hegel's political philosophy; Peter Benson and Catherine Valcke on contracts; Bruce Chapman on tort law; Mayo Moran, Denise Réaume and Jennifer Nedelsky on feminist theory; Sophia Reibetanz Moreau on moral philosophy; and Hamish Stewart on legal theory. Take yet another example, David Dyzenhaus, who runs the Legal Theory Workshop series. His scholarly work is on the rule of law in political and legal philosophy. Of particular interest to him is administrative law, especially with regard to the role of the rule of law in governmental responses to emergencies, such as that brought on by September 11th, 2001. At first glance, one might not see the necessary connection between Dyzenhaus's scholarly interests in public law and the preponderant strengths of the Law and Philosophy group. But that would only be at first glance. As Dyzenhaus himself puts it: "U of T's main strength is in private law theory, whereas I am interested in public law theory. However, the exposure to my colleagues' work, particularly to Ernie Weinrib's account of legal formalism, has made a big impact on me. The real strength of the law and philosophy group as a whole comes from an openness to new questions and perspectives and a willingness to work across disciplinary boundaries."

The interdisciplinary nature of the Law and Philosophy group indeed is one of its outstanding features. But not only is this true in the sense that within the group itself there are a great number of scholarly areas represented; but without the group as well there is a true interdisciplinary flavour being brought to its endeavours. The day I sat in on the weekly lunchtime discussion on Kant, for example, two of its regular participants were from other parts of U of T: Simone Chambers from political science, and Willi Goetschel from the Department of Germanic Languages and Literatures.

The main benchmark, however, of the Law and Philosophy group's scholarly rigour and disciplinary impact must be the degree to which it has shaped the debate within any of the fields it touches. Here, tort law speaks loudest, mostly in words enunciated by Professors Ernie Weinrib, Ripstein, and Benson. Collectively called the "Toronto School," it is the new "center of gravity" for tort law theory - especially corrective justice in torts - according to an admiring George P. Fletcher, Cardozo Professor of Jurisprudence at Columbia Law School. Through works such as Weinrib's The Idea of Private Law (1995), Ripstein's Equality, Responsibility, and the Law (1999), and Benson's The Unity of Contract Law, (2001) the Toronto School has become the single most important group of legal philosophers on the continent in tort theory, the manifestations and complications of which shape ways of thinking about rights, duties, and justice in private law.

Meanwhile, the lunchtime discussions on the fourth floor of Flavelle House have ended for the term but will pick up again in September. Kant's Metaphysics of Morals remains under the close examination of the assembled group of philosophers; indeed, this is especially the case for Ripstein, who is working on a book about Kant's "Doctrine of Right." At a pace that he describes with a laugh as "somewhere between the Talmudic and the glacial," the search for what Kant postulated was a systematic set of principles that holds the law together goes on - both in the pages of his book-in-progress and amongst the members of the lunchtime group. Such is, at least, part of the task of the legal philosopher, a species very much alive and doing exceedingly well at U of T's Faculty of Law.

The law and philosophy group at the University of Toronto Faculty of Law

Brad Faught is a Toronto historian and journalist.