Academic journal article McGill Law Journal

The Chronology of the Legal

Academic journal article McGill Law Journal

The Chronology of the Legal

Article excerpt

The most influential legal philosophies--notably legal positivism--tend to draw a sharp epistemological distinction between the concept of time and the concept of law. The author provides a legal pluralist account of law, understanding it to consist in a shared idea of justice and the shared normative experience of participants in a legal discourse. A common assumption by participants of their ability to grasp and control time--what the author terms "chronos"--forms one aspect of their shared experience of the legal. A normative understanding of time is thus fundamental to a normative understanding of law.

Les philosophies du droit les plus influentes, notamment le positivisme juridique, ont tendance a etablir une distinction epistemologique importante entre les concepts de temps et de droit. L'auteur propose une vision du droit propre au pluraliste, concevant le droit comme consistant en une idee partagee de ce qu'est la justice et une experience normative commune a ceux qui participent au discours juridique. Une supposition communement partagee des participants quant a leur capacite a saisir et controler le temps--ce que l'auteur nomme << chronos >>--reflete un aspect de leur experience commune de ce qu'est le juridique. Une conception normative du droit necessite des lors une conception normative du temps.


I.  The Need for a Richer Understanding of the
    Law/Time Relationship

II. Three Specific Accounts of Law's Temporality
    A. Time and Law Intertwined but Fragmented
    B. Ost and the Contrat Temporel
    C. The Need for a Unifying Theme

III. The Conception of Time as Part of the Legal
    A. The Context: On Shared Normative Experience as
       Constitutive of the Legal
    B. Chronos
    C. A Brief Note on the Temporal Imperialism of State Law


Introduction: A Methodological Aporia

The philosophical study of time must face up to a methodological aporia from the outset, the very aporia that made St. Augustine famously concede his inability to define time explicitly, although he felt he knew what it was. (1) Just as famously, Wittgenstein explained Augustine's failure to grasp the meaning of time in terms of the use of the wrong language game. Augustine, Wittgenstein tells us, was mistakenly looking for an object the dimensions of which he was trying to define. (2) Similarly, Waismann felt that reference to time as a noun can be rather misleading:

   It is true, we can make a person understand the word "time" by
   producing examples of its use: but what we cannot do is to
   present a fixed formula comprising as in a magic crystal the
   whole often so infinitely complicated and elusive meaning
   of the word. (3)

But the task I set for myself in this paper is simpler and more modest than trying to grasp the essence of time. What I shall try to do is examine whether and how time is built in the concept of law. Major legal philosophies tend to avoid discussing the law's temporality explicitly, although they inevitably raise claims concerning the law's historicity. In the first part of this article, I shall argue that those legal philosophies tend to treat the law as ontologically autonomous and belonging exclusively in the realm of practical reasoning, thus making questions of speculative reasoning, such as that of time, external and largely irrelevant in the discussion of the essence of the legal. The few specific theories of law and its connection with time come closer to grasping the law's temporality rather than merely its historicity. I shall argue that, valuable as that approach may be, it remains incomplete to the extent that it does not provide an account of what it is that lends coherence to these manifestations of time in the law.

In the second part of this article, I shall put forward an argument concerning the connection of law with time. First, I shall place that argument in the context of a more general project and argue that the distinctness of the legal should be understood in terms of the tacit commitment of the participants to their shared normative experience, that is, the way they perceive themselves collectively in the world and their ability to transform it through their normative commitments. …

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