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Recent Publications.

Recent Journal Articles 

What's 'Necessary' Under the Emergencies Act?
in Manitoba Law Journal 46(1) 2023

In most jurisdictions, any claim to emergency power must be necessary. But necessity is an ambiguous concept which has historically facilitated abuse. Indeed in the Canadian context, though necessity is a key threshold requirement in the Emergencies Act, it remains a black box, constituting a worrying gap in that Act’s robust framework for accountability and oversight. This paper develops a set of heuristic tools to clarify and rigorously assess claims of necessity, providing a structure for a government’s reason-giving around emergency declarations and measures. Because such reason-giving is critical to the rule of law in a state of emergency I conclude by advocating, in the Canadian context, an amendment to section 61 of the Act: When Government tables measures with Parliament or the Parliamentary Review Committee, they should explicitly state why an order or measure is necessary. 
 

Keywords: Emergency Powers, Necessity, Accountability, Canada

Utopian Rhetoric has a Pleasure Problem
in Rhetoric Society Quarterly 51(3), (2021)

By rhetorically tracing arcs of time, political leaders love to invoke a promised future. Those whose interest lies in a status-quo-future use process-oriented, cyclic, or progressive frames (“stick with me, we’re on the right path!”). But leaders who promise a radically changed future use a utopian stasis-rhetoric of ultimate arrival, an eschatology. But for Utopia, once achieved, to last,  conflict - which law traditionally manages through domination and violence - must cease. Utopia’s draw is precisely their absence. Because the desire that sparks pleasure drives action and conflict, Utopia thus confronts a pleasure problem. Non-Utopian rhetoric allows for ‘pleasure problem’ management, but a Utopia without domination and violence would have to solve it. Through a typology of pleasure, I suggest Utopias cannot. The pleasure problem means that the spoken promise of final arrival--which sparks energetic political activity in the present--renders Utopia an impossible future. 

 

Keywords: Utopia; eschatology; political rhetoric; temporality, pleasure 

Time Framing in the Rhetoric of Constitutional Preambles
in Law and Literature 33(1), 2021

Constitutional preambles grow ever longer, more complex, and more present in public debate. Extant theories note their descriptive or symbolic roles, but leave key elements, such as the use of historical recitation, untouched. A core purpose of such elements is legitimation. Because constitutions are not just legal documents but when promulgated, contentious events, leaders must sell a constitution to a sometimes sceptical or fractured citizenry. To sell the constitutional future, preambles cite the past. While the substance of past events matters, the arc of time traced out by joining the dots between events, also does rhetorical work. These narrative arcs have familiar shapes: progressive, cyclical, or eschatological. We recognize this type of story, and we know what type of thing happens next. By situating the new constitution as an event along such a recognizable arc of time, citizens can infer a hopeful future from the shape of a strategically constructed past. While not all historical preambles use “temporal framing” as a rhetorical strategy, the technique is common, and, here, illustrated through in-depth engagements with China’s and Hungary’s constitutional preambles.

 

Keywords: preamble, rhetorical framing, China, Hungary, constitution, temporality, legitimacy, history, time

Constitutional Alchemy
in Philosophy and Social Criticism (Online First, 2020)

In ‘The End of Law’, Bill Scheuerman illustrates the ways normativity, context and decision interlace, putting the lie to Carl Schmitt’s claim that decision is pure will. In doing so, Scheuerman gestures toward a truth about the alchemical nature of constitutions. Like decisions, I argue, constitutions are alchemical mechanisms for actualizing norms and normativizing facts. They accomplish this in part through mediating between dynamic (individual and political) selves before and after the moment of decision or coming-into-force. Schmitt’s error – or perhaps his strategy – is to make static this dynamic process of political self- formation. Viewed as static, it is more difficult to discern the process ofnormativizing facts and concretizing norms. I show how contemporary populist authoritarians are particularly skilled at harnessing this strategy. Populist authoritarians often use constitutional change to consolidate not just power but constructed identity. They are able to do so because con- stitutions provide this strategy of dynamic identity formation, which, by generating new normative imperatives, in turn shores up legitimacy.

Keywords: Carl Schmitt, constitutions, political identity, political legitimacy, populism

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