Legal Theory and The Politics of Legal Space - David Dyzenhaus

The Edinburgh Centre for International and Global Law presents

Legal Theory and The Politics of Legal Space

David Dyzenhaus, Professor of Law and Philosophy, Albert Abel Chair, and University Professor, University of Toronto

 

About the seminar

In The Dual State, Ernst Fraenkel argued that the Nazi state was a Dual State which consisted of two states that existed side by side. On the one side was the Normative State, which contained whatever remained of the law and institutions of the Weimar legal order. On the other side was the Prerogative State, which consisted of the apparatus of the Nazi Party wherein the leader’s will was the ultimate source of authority. Fraenkel observed that the law of the Normative State governed relationships between individuals and between individuals and state institutions only as long as officials in the Prerogative State did not find such government inconvenient. He concluded that the rule of law did not obtain in Nazi Germany. I 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 Parallel State in which two legal orders are united at the top but otherwise sealed off from each other; and the Apartheid State in which vast exceptions to the general law are made in order to discriminate against one or more groups. All three are on what I call the ‘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.   I also suggest that all actual states are Hybrid States in that they will combine elements of all the ideal types, but that the particular combination is what permits one to place a state on the continuum.

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About the speaker

David Dyzenhaus is a professor of Law and Philosophy at the University of Toronto, and a Fellow of the Royal Society of Canada.  He holds the Albert Abel Chair of Law and was appointed in 2015 to the rank of University Professor. He has taught in South Africa, England, Canada, Singapore, New Zealand, Hungary, Mexico and the USA. He holds a doctorate from Oxford University and law and undergraduate degrees from the University of the Witwatersrand, South Africa. In 2002, he was the Law Foundation Visiting Fellow in the Faculty of Law, University of Auckland. In 2005-06 he was Herbert Smith Visiting Professor in the Cambridge Law Faculty and a Senior Scholar of Pembroke College, Cambridge. In 2014-15, he was the Arthur Goodhart Visiting Professor in Legal Science in Cambridge. In 2016-17, he was a Fellow of the Wissenschaftskolleg zu Berlin. In 2020-21, he will be a Guggenheim Fellow.

Professor Dyzenhaus is the author of Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (now in its second edition), Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar, and Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order. He has edited and co-edited several collections of essays. In 2004 he gave the JC Smuts Memorial Lectures to the Faculty of Law, Cambridge University. These were published by Cambridge University Press in 2006 as The Constitution of Law: Legality in a Time of Emergency. He is editor of the University of Toronto Law Journal and co-editor of the series Cambridge Studies in Constitutional Law.

 

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