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JUDGEMENT 



Course Materials 
Fall 2004 


Professor Jennifer Nedelsky 


Faculty of Law 
University of Toronto 


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These Materials are for the sole use of students of 
the Faculty of Law, University of Toronto 


















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JUDGEMENT 


Course Materials 
Fall 2004 


Professor Jennifer Nedelsky 


Faculty of Law 
University of Toronto 


•krifk 


These Materials are for the sole use of students of 
the Faculty of Law, University of Toronto 


Digitized by the Internet Archive 
in 2018 with funding from 
University of Toronto 


https://archive.org/details/judgementcourse2004nede_0 


JUDGEMENT SEMINAR 


POL 2032H1; LAW 372H1F 
FALL 2004 

PROFESSOR NEDELSKY 


Office hours: Thursday 4:00 - 5:30 or by appointment, Flavelle 318, 

Phone: Flavelle, 416-978-4214; e-mail j.nedelsky@utoronto.ca 
Secretary: Lynne Ross, phone 416-978-5587, email lynne.ross@utoronto.ca 


This course explores the nature of the human faculty of judgement. We 'will be looking at the 
connections and differences between the judgements we make every day (is it a good course, book, 
movie) and moral, political and legal judgements. 

There are two different kinds of problems our exploration will try to address. The first arises out of 
feminist theory, critical legal theory and a variety of other contemporary approaches to law. In all 
of these approaches that has been an emphasis on the importance of recognizing the multiplicity of 
different "voices" in our diverse society. Our legal system, like all of our institutions, has 
presupposed an unitary framework of discourse to which all who want to participate must conform. 
The call to recognize difference and make it possible to everyone's voice to be heard is a positive 
move. But it poses problems that are still to be worked out. A judge can adjudicate between two 
sides of a story when the story has a recognizable unity, that is when both sides have fit into a 
common framework. But if we no longer try to force diverse perspectives into the dominant 
framework, judges will be faces with truly incommensurable stories. (This already sometimes 
happens in cases of rape, sexual harassment and "hate speech.") How are we to judge between 
them? A related question arise with respect to the conventional virtues of judicial judgment: 
neutrality, impartiality, objectivity. What becomes of these virtues, how do we need to 
reconceptualize them, when we recognize the role of passion in knowledge and the inevitability of 
perspective in understanding? A large part of the project of the course is to see the ways 
philosophical writings on the nature of judgement may be able to help us solve these pressing 
problems. Two of the common themes that link the philosophical and contemporary legal 
arguments are the role of story telling or narrative and the role of common sense in judgement. 

The second problem is a long standing one: is there something distinctive about the legal form of 
judgement that justifies (or requires) the institutional forms we have developed for judicial decision 
making. This problem involves not only the "undemocratic" nature of courts, but the particular 
norms of discourse that we think of as "legal." If we have a better understanding of what judging 
consists of, and what foster good judgement, then we can do a better job of thinking about the 
appropriate institutions, norms and practices of law. Since many of the readings address 
themselves to the question of political and moral judgement, we 'will have to ask whether there is 
reason to believe that legal or judicial judgement involves something different. 



COURSE REQUIREMENTS: Class participation and bi-weekly one page "comments" (25%) and 
a 25 page paper (75%) (last date for written work, NOON, law students 10:00 AM). 

The paper will focus on 3 or 4 of the readings, connecting them to each other and to the main 
themes of the course. Students should show how together they contribute to these themes, or 
develop a particular problem related to these themes, and use the articles to work the problem 
through, or show how the insights of these articles help us better understand a particular concrete 
case or problem. If you are using an example not drawn from the course material, be sure you do 
not spend too much space presenting the example. A maximum of 2-3 pages. If you find you 
cannot present the example you have in mind within that space, you may use additional pages. But 
then you will need to add those additional pages to the total length of the paper, so that you still 
have at least 22 pages of analysis, integrating the example into your discussion of the texts and the 
key issues. A similar approach applies to using material outside the assigned reading. You are, of 
course, welcome to note other material that adds to your argument. But if you spending more than 
a few lines referring to that material, you should ensure that you still have the required page length 
devoted to the analysis of the texts and issues in the course. 

BY THE LAST CLASS, STUDENTS SHOULD SUBMIT A PARAGRAPH SUMMARY OF 
THEIR PAPER TOPIC AND THE TEXTS THEY WILL FOCUS ON, OR ANY OUTLINE 
OF THE PAPER WHICH IDENTIFIES THE TEXTS. STUDENTS MAY SUBMIT THIS 
SUMMARY OR OUTLINE EARLIER, BUT I RECOMMEND THAT IF YOU DO SO 
YOU AT LEAST SKIM ALL THE MATERIALS SO YOU WILL KNOW WHICH WILL 
WORK BEST FOR YOUR TOPIC. 

REQUIRED READING: Materials to be purchased through the Law School Bookstore and 
Judgment, Imagination and Politics , Ronald Beiner and Jennifer Nedelsky, eds. Available at the 
Toronto Women’s Bookstore, Harbord Street just west of Spadina. 

Week 1. Introduction 

Week 2. Beiner, Political Judgment, Ch 2, in Materials (noted as M); Hannah Arendt, "The 
Crisis in Culture" Part II, (Part I optional) from Between Past and Future, in Beiner 
and Nedelsky, Judgment, Imagination and Politics , noted as JIP; Nedelsky, SSHRC 
Proposal (M); R.D.S. case, SCC September 26, 1997 (M). Come to class with an 
example of a problem of judgement and thoughts on how these preliminary readings 
help us reflect on it. 

Group 1, comment; Group 2, respond 

Week 3. Beiner, Ch. 4, 5, 6 (Ch.3 optional) (M) 

Group 2 comment, group 3 respond. 

Week 4. Arendt, Lectures , pp. vii - p. 51; Kant, Critique of Judgment , s 6-8, Werner Pluhar, 
translator (Hacektt,1987). (M) 

Group 3 comment, group 4 respond. 

Week 5. Arendt, Lectures , p. 51-85, (M) Bilsky, When Aetor and Spectator Meet in the 
Courtroom: Reflections on Hannah Arendt’s Concept of Judgment" JIP 
Group 4 comment, group 1 respond. 












Week 6. 


Week 7. 


Week 8. 


Week 9. 


Week 10. 


Week 11. 


Week 12. 


Week 13. 


Beiner, “Rereading Hannah Arendt’s Kant Lectures”; Nedelsky, “Judgment, 
Diversity and Relational Autonomy” JIP; Kant, Critique of Judgment, ss 31-42 
Group 1 comment, group 2 respond. ATTENTION: HEAVY READING, 
START EARLY 


Seyla Benhabib, "Judgment and the Moral Foundations of Politics in Hannah 
Arendt's Thought," Iris Marion Young, “Asymmetrical Reciprocity: On Moral 
Respect, Wonder, and Enlarged Thought,” JIP 
Group 2 comment, group 3 respond 

Lisa Disch, “Please Sit Down, but don’t Make Yourself at Home”: Arendtian 
‘Visiting’ and the Prefigurative Politics of Consciousness Raising,” and Nancy 
Fraser, “Communications, Transformation, and Consciousness Raising” in Hannah 
Arendt and the Meaning of Politics, Craig Calhoun and John McGowan, eds. M 
Group 3 comment, group 4 respond 

Kim Lane Scheppele, "Just the Facts, Ma'am: Considering Considered Stories," 
Maria Lugones, “Playfulness, ‘World’-Travelling, and Loving Perception,” Hypatia 
2:2-17 (Summer, 1987). M 
Group 4 comment, group 1 respond 

Nedelsky, “Embodied Diversity: Challenges to Law,” 42 McGill Law Journal 91 
(1997); JIP Sarah Hoagland, Lesbian Ethics , “Anger and Political 
Perception,”p.l78-184 and “Integrating Reasons and Emotions,”pp.l57-164; R.D.S, 
case. M 

Group 1 comment, group 2 respond 

Kirstie M. McClure. “The odor of Judgment: Exemplarity, Propriety, and Politics in 
the Company of Hannah Arendt” in Calhoun and McGown M, and Albrecht 
Wellmer, “Hannah Arendt on Judgment: The Unwritten Doctrine of Reason” JIP 

Onora O'Neill, Constructions of Reason: Explorations of Kant's Practical 
Philosophy , ch. 9, "The Power of Example" (Cambridge University Press, 1990) and 
Barbara Herman, “The Practice of Moral Judgment,” The Journal of Philosophy, 
(1985) M 

Group 3 comment. Group 4 respond 

Nedelsky, “Communities of Judgment and Human Rights,” M and George Kateb, 
“The Judgment of Arendt” JIP 
Group 4 comment, group 1 respond 








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JUDGEMENT COURSE MATERIALS 

FALL 2004 

Beiner, Political Judgement Ch 2. 1 

Nedelsky, SSHRC Proposal.21 

R V. R.D.S., see September 26, 1997.29 

Beiner, Political Judgement ch 3 (optional reading).73 

Beiner, Political Judgement chs 4, 5, 6 & endnotes.114 

Arendt, Lectures pp. vii - p. 51 .,.197 

Kant, eritique of Judgement ss. 6-8.226 

Arendt, Lectures pp. 51-85 & endnotes...230 

Kant, eritique of Judgement ss. 31-42 . 253 

Disch, “Please Sit Down...”. .268 

Fraser, “eommunication. Transformation and eonsciousness Raising.285 

Sheppele, “Just the Facts, Ma’am ...”.290 

Lugones, “Playfulness, ‘World’-Travelling, and Loving Perception”.332 

Hoagland Lesbian Ethics , “Anger and Political Perception” ..;.340 

Hoagland, Lesbian Ethics , “Integrating Reasons and Emotions”.344 

Mceiue, “The Odor of Judgement; ...”.351 

O’Neil, eonstruction of Reason ..., ch. 9 “The Power of Example”.368 

Herman, “The Practice of Moral Judgment”. 381 

Nedelsky, “Communities of Judgement and Human Rights”.393 








































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