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This article claims that legal time has excluded and submerged an important sense of time inside structured time. Structured time has two forms. Each form of structured time identifies a beginning to a legal order (droit, Recht) as a whole. The one form has focussed upon a critical date. The critical date is exemplified by a basic text, such as the Constitution, or the judicially identified date of settlement, sovereignty or territorial control of a territory by the state. The second form of structured time has begun with the judicial recognition of a value such as the rule of law, the protection of minorities, equal treatment, or due process of law. With the two forms of structured time, jurists have proceeded to identify a binding law. Such a law has been considered a rule, principle, doctrine or other intelligible standard. Once structured legal time has thus begun, events of legal relevance have been represented by jurists in a distinct phase or period of time. Each such a distinct period is parsed through reference to its named, or labelled, starting point and the latter, in turn and ultimately, with reference to the beginning of the very constitutional order as a whole. Legal justification and the conceptual structures of justification are presumed to follow suit. The article argues, however, that another sense of time, excluded and submerged inside structured time, is experienced. An experienced event, manifested as a discrete incident in experiential time, opens to a condition of the possibility of the existence of law.
I am grateful to Richard Bronaugh and other editorial support of the Journal for feed-back and suggestions during the editorial process.
1. For the latter, see generally Conklin, William E, Statelessness: The Enigma of an International Community (Hart, 2015, 2014) at 121-25, 205–09.Google Scholar
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7. R v Van der Peet, [1996] 2 SCR 507; 137 DLR (4th) 289 at paras 51, 55 [emphasis the Court’s].
8. Ibid at para 69.
9. Ibid at paras 164-75.
10. Ibid at para 172.
11. Ibid at para 175.
12. Ibid at para 172.
13. Ibid at para 61 [emphasis the Court’s]. See also para 30.
14. Ibid at para 49.
15. Ibid at paras 56, 70-71.
16. Ibid at para 39.
17. Ibid at paras 19, 20, 26. See HLA Hart, “Are There Any Natural Rights?” in AI Melden, ed, Human Rights (Wadsworth, 1970) 61.
18. R v Van der Peet, supra note 7 at para 39.
19. See the documentation in Conklin, Statelessness, supra note 1 at 177-301.
20. HLA Hart, “The Ascription of Responsibility and Rights” (1948-49) 49 Proceedings of the Aristotelian Society, New Series 171.
21. Reference re Secession of Quebec, supra note 4 at para 54.
22. For the Warren period see, e.g., Brown v Board of Education of Topeka, 347 U.S. 483 (1954); Miranda v Arizona, 384 U.S. 436 (1966). For the Dickson Court see, e.g., R v Oakes, [1986] 1 SCR 103; 26 DLR (4th) 200; R v Big M Drug Mart, [1985], 1 SCR 295; 18 DLR (4th) 321.
23. Hunter v Southam, [1984] 2 SCR 145 at para 16; 11 DLR (4th) 641 at para 155. The best examples of the ‘legislative supremacy’ historical phase concerned the Court’s interpretation of the Canadian Bill of Rights. See, e.g., R v Burnshine, [1975] 1 SCR 693; 44 DLR (3d) 584; AG v Lavell, [1974] SCR 1349; 38 DLR (3d) 481. For the ‘living tree’ period see, e.g., R v Big M Drug Mart, ibid.
24. See R v Big M Drug Mart, [1985], 1 SCR 295; 18 DLR (4th) 321 at para 117.
25. See, e.g., R v Oakes, [1986] 1 SCR 103; 26 DLR (4th) 200; Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835; 120 DLR (4th) 12; Irwin Toy v Quebec (AG), [1989] 1 SCR 927; 58 DLR (4th) 577.
26. League of Nations, Covenant, 28 April 1919, Art 22; United Nations, Charter, 24 October 1945, 1 UNTS, Arts 73-85.
27. Hart, The Concept of Law, 3rd ed, with an introduction and notes by Leslie Green, with a postscript by Penelope A Bullock & Joseph Raz, eds (Clarendon Press, 2013 [1961]) at 94-95.
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35. As jurists have often incorporated ‘pre-legality’ into structured time by considering it as a mere binary to clarify legality, it is better to describe ‘pre-legality’ as ‘proto-legality’ as I have represented it. I have benefited from Richard Bronaugh for this term.
36. Hart, The Concept of Law, supra note 27 at 92.
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43. Dworkin, Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (Vintage Books, 1994). See especially “What is Sacred?” at ch 3.
44. Although the emphasis upon the ‘now’ certainly highlights the importance of perception, Edmund Husserl especially emphasizes that what I have called structured time fails to appreciate how individuals themselves actually perceive their singular event in the past. See Husserl, On the Phenomenology of the Consciousness of Internal Time (1893-1917), translated by John Barnett Brough (Springer, 1991 vol 4 of Works) at 38-39, 166. See also Brough, “Translator’s Introduction”, ibid XI-LVII at XXXVIII, LII.
45. Although they may well would have disagreed with my analysis in this sub-section, it is influenced by Husserl’s theory of time-consciousness especially as cited ibid; Martin Heidegger, History of the Concept of Time, translated by Theodore Kisiel (Indiana University Press, 1992 [1985]) 55; Oakeshott, Michael, “Present, Future and Past” and “Historical Events” in On History and other Essays (Liberty Fund, 1999 [1983]) 1-48, 49–104.Google Scholar
46. Hart, The Concept of Law, supra note 27 at 239-40.
47. I do not mean by an ‘authentic’ event that one’s experience is unmediated (that is immediate between the individual and the object intended). Nor is the event ‘authentic’ because of the jurist’s perceptions from the present standpoint as if the perceptions hover over the event as experienced in the past.
48. Postema, “Melody”, supra note 31 at 206-07, 209, 223.
49. Hart, The Concept of Law, supra note 27 at 44, 48.
50. Sophocles, Antigone in The Three Theban Plays, translated by Robert Fagles with an introduction and notes by Bernard Knox (Pengui006E, 1984) at lines 499-508. Paul Woodruff translates the laws as “the gods’ unfailing, unwritten laws” in Antigone with Introduction and Notes by Woodruff (Hackett, 2001) at lines 456-57. Elizabeth Wyckoff translates them as “the gods’ unwritten and unfailing laws” in Sophocles I (University of Chicago Press, 1954) at line 455.
51. This sense of an object as meant is developed in more detail in Conklin, “Human Rights and the Forgotten Acts of Meaning in the Social Conventions of Conceptual Jurisprudence” (2014) 2 Metodo: Int’l Studies in Phenomenology & Philosophy 169 at 184.
52. If territorial space and calendar time permitted, I would argue that much about a legal training in a professional law school manifests the inculcation of collective memories, not of rules-concepts, despite appearances and claims to the contrary.
53. I draw from Edmund Husserl for my sense of a constitution of meaning. See Husserl, Logical Investigations, vol 2, Part II translated by JN Findlay (Humanities Press, 1970 [1900/01]), Investigation I, V, VI. See generally, Conklin, supra note 51 at 1.
54. For documentation as to how Kelsen associates the Grundnorm with the divine, see Conklin, Invisible Origins, supra note 15 at 196-200.
55. I draw this point from Husserl, Logical Investigations, supra note 53 at Investigation VI, ss 60, 307.
56. Hart, The Concept of Law, supra note 27 at 91.
57. Ibid.
58. Ibid at 1.
59. Again, I draw from Husserl for this sense of an act of meaning. See Husserl, Logical Investigations, supra note 53.
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63. Since such terms as ‘primitive’ or ‘pre-legal’ have often been used in the language of structured time or even incorporated into such language in order to merely clarify the concept of law, the remnant so used or incorporated, I am suggesting, is better described as a ‘proto-legality’.
64. I document the statistics in Conklin, Statelessness, supra note 1 at 96-134.
65. It is interesting how this interruption has permeated the state of nature jurists as well as Kant, Hegel and jurists of the late Roman Republic and the Augustan era. See generally, Conklin, “Human Rights and the Forgotten Acts of Meaning”, supra note 51; Conklin, , “The Legal Culture of European Civilization: Hegel and the Indigenous Americans” in MacDonald, David B & De Coste, Mary-Michelle, eds, Europe in its own Eyes, Europe in the Eyes of the Other (University of Waterloo Press, 2014).Google Scholar Conklin, , “The Exclusionary Character of the Early Modern International Community” (2012) 81 Nordic J Int’l L 133; Conklin, “The Myth of Primordialism in Cicero’s Theory of Jus Gentium” (2010) 23: 3 Leiden J Int’l L 479.Google Scholar
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86. Kant, Metaphysical Elements of Justice, 2nd ed, translated with Introduction by John Ladd (Hackett, 1999 [1798]) 117 (line 353).
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91. Since writing this essay I have been reminded of this issue in Derrida, “Declarations of Independence” in Jacques Derrida, Negotiations: Interventions and Interviews 1971-2001, edited, translated and with an introduction by Elizabeth Rottenberg (Stanford University Press, 2002) at 46.
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