No CrossRef data available.
Article contents
Playing with Hutchinson’s Nonfoundationalism
Published online by Cambridge University Press: 20 July 2015
Extract
Although we are provided with a clever game of metaphor for the description of adjudication and a rather diverse survey of other jurisprudential theories, Hutchinson fails to provide a distinct, coherent, theory of adjudication. He either overly radicalizes foundationalism or under radicalizes antifoundationalism.
- Type
- Critical Notices
- Information
- Copyright
- Copyright © Canadian Journal of Law and Jurisprudence 2006
References
I would like to thank Dr. Randal Graham for drawing Hutchinson's work to my attention and discussing my various arguments.
* (Durham, N.C.: Duke University Press, 2000) ISBN: 0822324288 pp. 1–374. Reference to page numbers in text are to this book.
1. See the sections entitled “Foundationalism” and “Antifoundationalism” below for detailed definitions of foundationalism and antifoundationalism.
2. Corrective justice requires that the normative of loss of one party be remedied because of the normative gain of another, in order to restore the status quo ante. For a more detailed understanding of corrective justice, see Weinrib, Ernest J., The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995).Google Scholar
3. Hutchinson writes in that “according to Sunstein, law develops by self-conscious attention to its argumentative structure as much as by a formal consistency with substantive outcomes” (153).
4. Duport Steels Ltd. v. Sirs, [1980] 1 W.L.R. 142 at 169Google Scholar per Lord Scarman cited in It’s All in the Game at 180.
5. See the section entitled “(b) Good faith restraint on interpretation” above.
6. See, for example, It’s All in the Game at 16.
7. See the section entitled “Antifoundationalism” above.
8. 112 S. Ct. 2538 (1992).
9. No. 03-6696. Argued April 28, 2004—Decided June 28, 2004.
10. Talbot, Margaret, “Supreme Confidence: The jurisprudence of Justice Antonin Scalia” The New Yorker (28 March 2005).Google Scholar
11. Weinrib, Ernest J., “The Gains and Losses of Corrective Justice” (1994) 44 Duke L.J. 277 at 278 Google Scholar.
12. See, for example, Hutchinson’s treatment of Marxist theorists’ inability to define “three essential components” in It’s All in the Game at 221.
13. See the section entitled “The attack on “foundationalists”“ above.
14. Searle, John, Mind, Language and Society: Philosophy in the Real World (London: Weidfield & Nicholson, 1999) at 22.Google Scholar
15. Ibid. at 113.