Essay Sample on Philosophy of the Law

Section A: John Borrows identifies a number of problems in the legal regimes that currently govern the use and disposition of land in both North America generally and the province of Ontario specifically. State and explain two (2) of these problems. Does Borrows's analysis in this article fit Kimberle Crenshaw et al. 's description of a critical race approach to the law? Why or why not? Explain in detail using only 1 of the following cases to illustrate: Tsilhqot'in Nation v British Columbia, Monsanto v Schmeiser or Sauve v Canada.

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John Borrows identified several barriers that have inhibited and pose a threat to the use and disposition of land and especially in the settlement in both North America in general and the province of Ontario in particular. According to Borrow, the first problem identified is:

The Lost Legal Space of the Indigenous Communities

According to the article, Borrows argues that this obstacle precludes the articulation and acceptance of Indigenous knowledge, which frustrates these peoples participation in the design of better human settlements. As a result, a valuable perspective about how humans are ultimately embedded in nature is lost. This loss is illustrated through a case study that examines a proposed development on Hay Island, lands where Indigenous peoples have a continuing interest. While courts are an essential site for marking legal boundaries, this same drawing of right margins also occurs 'on the ground. Communities, politicians, bureaucrats, and developers, through their interaction with each other, draw, erase, and redraw right borders to include and exclude certain peoples, institutions, and ideas. These dialogical engagements create and interpret the law, and produce legal geography that remains mostly uncharted. Customary practices of law continue to operate simultaneously with the often more visible and formal institutions of law.

As a result, these rules have inhibited the reception of Indigenous knowledge and thereby frustrated the design of sustainable settlements. Ironically, the denial of Indigenous participation has led to large loopholes that pose a danger to surrounding non-native communities. For example, in the United States, some Indian reserves have sited nuclear waste in their lands to produce higher revenues. This poses a threat to the surrounding state and local authorities, and there are few opportunities for these external communities to participate in tribal decisions. Therefore, nation-to-nation cooperation and harmonization Indian, federal, state, and provincial law may create incentives to deter activities within First Nations. For contrasting opinions of the appropriateness Indigenous, control over nuclear war (Borrows).

Exclusion in Land Use Planning

As Borrows argues, "environmental issues have not been satisfactorily addressed the design of the Hay Island project because of significant inequities parties' interactions. Many people at Neyaashinigmiing are that the non-native participants, in deciding project involvement, provided interpretations of law which direct political from the reserve. It is asserted that these interpretations, through informal legal reasoning, produced customary which excluded Neyaashinigmiing from the apparent planning exclusion seems to have raised serious issues representation, and conflict of interest (Borrows).

Mostly, Borrows' analysis of the article strongly agrees with the Crenshaw et al. 's description of phylogenetic analysis to law. Crenshaw affirms that the critical race theory emerged from a movement of the critical legal studies that argues, "Law is a social endeavor and that as such it will reflect and reproduce the cultural and political context within which it is undertaken." Also, Crenshaw argues the racial power is exercised ideologically and legally (Crenshaw).

From the above arguments, it evident in Borrows' article that the Canadian and North American laws intentionally excluded the Indigenous Law as the Indigenous Planning Act. Similarly, Neyaashinigmiing from the apparent planning exclusion seems to have raised serious issues representation, and conflict of interest. The domestic planning agencies are intentionally excluded from the development, disposition, and use of land in settlement and other uses (Borrows). It evident that both the North American rules and the Canadian rules have collaborated to diminish the domestic laws to extents of marginalization because of the relatively small number of the indigenous population.

Section B In "Living Between Water and Rocks," John Borrows argues that the legal regime governing environmental planning in the province of Ontario is problematic in several ways. State and explain two (2) of these problems. Can these problems appear as problems within Eric Posner's view? Why or why not? How would Posner characterize these problems? Explain in detail using only 1 of the following cases to illustrate: Tsilhqot'in Nation v British Columbia, Monsanto v Schmeiser or Sauve v Canada.

Ontario's Planning Act did not require any direct notice to participation from. Borrows argue that the First legislative framework produced institutions that minimized the existence of the Indigenous communities (Borrows). As a result, the domestic planning agencies viewed lack of involvement or involvement of the reserve as an inappropriate compared to the planning of environmental development." However, the depth of Indigenous exclusion appears to be even higher than issues of notice.

Secondly, according to the Chief and Council: 'there have been no formal negotiations with the Chippewas of Nawash Council concerning mainland access.' As such, the planning department report that went to County Council contained, in its view, a 'severe misrepresentation.' The other planning report, submitted by the developer to the planning department, is also of concern to the Band. The developer's planning report indicates that both an individual on the reserve and the Council were prepared to agree to mainland access for the development.

The above problems do not fit into Posner's definition of economic issues, and preferably the above-identified problem matches Crenshaw et all critical race theory perfectly. The reason as to why the mentioned problems do not fit Posner's argument is because the legal regime governing environmental planning in the province of Ontario has not resulted from an economic perspective but rather from a political perspective. Similarly, as Barrow has highlighted, the above challenges resulted from racial discrimination and marginalization of the Indigenous societies.

However, there is a perspective that if critically looked at, may match Posner's argument. The primary message of Barrows' article in the utilization and disposition of land, particularly in the settlement sector. Thus, to some level, builders, contractors, and tender owners will need to subscribe for insurance cover; the projects will involve money, and transactions, which may later be used as evidence in the event of a case involving the client or the contractor. Thus, the above problems would be classified as a descriptive, which means that the decisions and reasoning of judges tend toward interpretive principles and rules of application that advance wealth maximization.

Schmeiser v Canada, the case demonstrates Posner's ideology in details. The patent, as defined in the case, is the right of ownership to an invention, art, or scientific creations. It is required by law that in the event of copyright violation, or patent offence, the offender to compensate the patent owner in accordance to the law. For instance, during the case, the law defined that "a purposive creation of patent claim requires a clear interpretation and definition of terms in presences of the entire disclosure and specifications." the abstract in this particular case thus, was the Plant seeds which transformed through gene modification. The seeds then regenerated to plants exhibiting a significant level of glyphosate resistance. The objective of the invention was to create a genetically modified plant cell whose resulted plant would be resistant to herbicidal and glyphosate" (Monsanto Canada Inc. v. Schmeiser).

According to the proceedings, the defendant; Mr. Schmeiser, was non-organic and a conventional farmer, and for years he had developed a means of developing and saving his plant seeds. However, the initial seeds were an invention and a subject of Monsanto's: the complaint. The plants (trees) were traced to spread over 370 acres that belonged to Schmeiser. Monsanto Canada Inc sued Mr. Schmeiser for commercially reproducing (growing) their genetically modified seeds. However, according to the Jury decision, commented that the reason for s.42 was to define the rights that were granted to the patent holder. The rights permitted full enjoyment of patent monopoly and thus prohibited any sort of interference of the full monopoly of the patentee (Monsanto Canada Inc. v. Schmeiser).

According to Posner's argument, " "rules, procedures and case outcomes" that maximize social wealth By "wealth" Posner does not mean "cash" - what he means is the "sum of all goods and services, weighted by prices," (Posner). It can be argued the although patent for plants and self-generating substance cannot be patent, Mr. Schmeiser may have contradicted Posner's argument. This had been indicated by the Judge's decision as shown, "inventors have no full monopoly patent rights to the fruits of their invention, and another person without license or permission, is allowed to uses the design, invention to further a business venture (Monsanto Canada Inc. v. Schmeiser).

Section C (choose 1 of the question from 2 alternatives) 1, Eric Posner argues that there is nothing objectionable in a judge deciding to replace an existing legal doctrine with a principle that more closely approximates the implications of economic theory. State and explain Posner's reasons for arguing this. Would Patricia Smith agree with Posner in this regard? Why or why not? Explain in detail.

Posner's argument contains both a clear thesis (a thesis about what happens in the courts) and a normative or prescriptive thesis (a hypothesis about what should happen in the courts). These two theses are linked by an argument that purports to show that (a) what happens in the court is inevitable given their internal logic but that (b) we should be okay with this inevitability because what happens is a good thing and ought to be encouraged. The clear thesis is that the decisions and reasoning of judges tend toward interpretive principles and rules of application that advance wealth maximization. The prescriptive argument is that developing and applying policies and forms that promote wealth maximization is what courts ought, ideally to do (Posner).

Under the doctrine of division of powers, the role of the court is primarily to apply the law and not make it. In exercising, however, higher courts such as the Supreme Court is allowed to make, or modify some existing laws. Courts will engage in judicial lawmaking upon identification and filing of the gap in the law, or when the existing laws to do apply in the precedent. Therefore, forms of legal approaches (judicial philosophies) are created.