Speaker
David Dyzenhaus is a professor of Law and Philosophy at the University of Toronto, a Fellow of the Royal Society of Canada and a Corresponding Fellow of the British Academy. 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 has a doctorate from Oxford University and law and undergraduate degrees from the University of the Witwatersrand, South Africa. 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. His most recent book is The Long Arc of Legality: Hobbes, Kelsen, Hart (Cambridge, 2022).
Synopsis
In The Faces of Injustice, Judith Shklar criticizes the normal model of justice that views injustice as an unusual absence of justice and argues that the realm of injustice is a commonplace of life in typical polities with effective legal systems. She also offers a second, Hobbesian insight: [w]ithout juridical institutions and the beliefs that support them, there can be no decent, just, or stable social relations, but only anxiety, mutual mistrust, and insecurity . Reflection on two of Shklar’s examples – the Nazi state and slavery in USA – and two that she did not mention – the apartheid state and the parallel state of Israel and the Occupied Territories – shows how systems of law offer a legal resource that enables resistance to certain kinds of injustice and thus makes the practice of human rights lawyering possible. However, at the same time, all involved in maintaining a system of law, including human rights lawyers and their clients, participate in legitimising the system. This chapter suggests that Shklar underestimated the ability of the legal theories of three important exemplars of the normal model of justice – H.L.A. Hart, Lon Fuller, and Ronald Dworkin – to illuminate different aspects of the legal experience of injustice.