?COMMON SENSE? AND LEGAL JUDGMENT:COMMUNITY KNOWLEDGE, POLITICAL POWER AND RHETORICAL PRACTICEbyPATRICIA COCHRANB.A., McGill University, 1999M.A., University of Toronto, 2000LL.B., The University of British Columbia, 2004LL.M., University of Victoria, 2006A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHYinThe Faculty of Graduate and Postdoctoral Studies(Law)THE UNIVERSITY OF BRITISH COLUMBIA(Vancouver)October 2013? Patricia Cochran, 2013AbstractThis dissertation is a critical, interdisciplinary assessment of ?common sense.? More specifically, ?common sense? is located in relation to practices of legal judgment that have the potential to address injustices occasioned by poverty and inequality. Taking methodological guidance from the work of Ludwig Wittgenstein, augmented by feminist theory, my goal is to construct a ?perspicuous representation? of ?common sense? in legal judgment. I engage with the writings of three major thinkers who use the language of ?common sense? to communicate their ideas: 18th century Scottish philosopher Thomas Reid, Italian Marxist political thinker and activist Antonio Gramsci, and political theorist Hannah Arendt. I place their writings in conversation with Canadian Supreme Court jurisprudence in which judges invoke the phrase ?common sense,? including cases about the admissibility of expert evidence, the justification of breaches of the Canadian Charter of Rights and Freedoms, and the definition of judicial impartiality. Special attention is paid to the case of Gosselin v. Quebec, in which the Court prominently relies on ?common sense? to uphold the constitutionality of social assistance regulations that placed young adults in dire poverty.The meaning and consequences of ?common sense? in legal judgment are more complex than might be anticipated. Unreflective reliance on common sense poses a significant threat to the quality and legitimacy of legal judgment. Common sense is rhetorically powerful and can be self-justifying. Yet, when different aspects of common sense are explored with careful critical attention, its democratic, egalitarian and community-sustaining components are also brought to light. This is very important in cases involving poverty and social marginalization, where the invocation of ?common sense? strikes at the heart of many issues raised by the three theorists, including the value of quotidian and non-expert knowledges, the boundaries of reasonable debate, the significance of political history and social relations of inequality, and the way common sense claims both reflect and create communities.This dissertation offers some criteria to guide the use of common sense in practices of legal judgment, and generates new ways of thinking about and using common sense as a part of rigorously reflective and politically accountable legal judgment.iiPrefaceThis dissertation is original, unpublished, independent work by the author, Patricia Cochran.iiiTable of ContentsAbstract...........................................................................................................................................iiPreface........................................................................................................................................... iiiTable of Contents........................................................................................................................... ivList of Figures................................................................................................................................viAcknowledgments........................................................................................................................ viiChapter 1 ? Introduction................................................................................................................. 1Common sense: self evident and inscrutable............................................................................. 9Common sense in Canadian law and the case of Gosselin v. Quebec.....................................14Poverty and the consequences of the paradox of common sense............................................24Common sense as a subject of scholarly inquiry..................................................................... 29Outline of chapters................................................................................................................... 39Chapter 2 ? Methodology............................................................................................................. 44Introduction..............................................................................................................................45A note on language...................................................................................................................51?Common sense?.................................................................................................................51?Judgment,? ?judging? and ?judges?.................................................................................. 52Feminist theory and criteria for judgment................................................................................54The problem of common sense in Wittgensteinian terms........................................................ 62?Captivity? to a ?picture?.................................................................................................... 63Captivity and common sense...............................................................................................77Methodology to challenge captivity: Perspicuous representation............................................84Clarity through juxtaposition.............................................................................................. 86?Look and see?.................................................................................................................... 91Seeking new examples........................................................................................................ 95Reflexivity and political accountability......................................................................................104Chapter 3 ? Thomas Reid's common sense: Accountability for judgment and the boundaries of debate.......................................................................................................................................... 111Introduction............................................................................................................................ 112Thomas Reid on common sense.............................................................................................115Judgment and accountability............................................................................................. 115Normative and empirical commonality.............................................................................125Ridicule and debate........................................................................................................... 133Reid's common sense in legal judgment: expertise, accountability and credibility...............137Vetrovec.............................................................................................................................139D.D.................................................................................................................................... 145Gosselin............................................................................................................................. 157Conclusion............................................................................................................................. 162ivChapter 4 ? Antonio Gramsci's common sense: History, power and our ?conception of the world?......................................................................................................................................... 165Introduction............................................................................................................................166Gramsci on common sense.................................................................................................... 172Hegemony and historical residue...................................................................................... 172Collective consciousness and ?good sense?......................................................................182Critical reflection and its political conditions................................................................... 187Gramsci's common sense in legal judgments: justification, evidence and stereotypes.........196Chaoulli............................................................................................................................. 199Sauv?................................................................................................................................. 209Gosselin............................................................................................................................. 216Conclusion............................................................................................................................. 222Chapter 5 ? Hannah Arendt's common sense: Imagining communities and the basis of valid judgment..................................................................................................................................... 228Introduction............................................................................................................................229Arendt on common sense.......................................................................................................233Validity and criteria for good judgment............................................................................ 233Communication and persuasion........................................................................................ 239Judgment and the creation of communities.......................................................................249Arendt's common sense in legal judgment: impartiality, persuasion and practice.................253R.D.S................................................................................................................................. 260Gosselin............................................................................................................................. 271Conclusion.................................................................................................................................. 274Chapter 6 ? Conclusion.............................................................................................................. 278The role of the judge.............................................................................................................. 281The educated representative of common sense................................................................. 282The organic intellectual..................................................................................................... 285The judging person engaged with the community sense...................................................288Criteria for the use of common sense in legal judgment........................................................289Intellectual humility and critical self-reflection................................................................ 291Political justification and accountability........................................................................... 294Attention to rhetorical effects and the creation of communities.......................................302Challenging our captivity to a picture of ?common sense? as shared knowledge.................306Poverty and Gosselin............................................................................................................. 310Common sense for good legal judgment, and the transformation of Lord Law....................314Bibliography............................................................................................................................... 317vList of FiguresIllustration 1: Duck-rabbit............................................................................................................ 70viAcknowledgmentsI extend my sincere gratitude to everyone whose support and assistance contributed to the successful completion of this work.First and foremost, my great thanks to Prof. Margot Young for her guidance and encouragement from the very beginning of my doctoral studies. I have benefitted enormously from her sustained, critical engagement with my research and writing, her generosity in sharing her ideas and her expertise, and from her commitment to assisting me in developing my own judgment as a scholar. As a mentor, Prof. Young also provides a compelling model of academic life, characterized by community engagement and a commitment to justice, and I am grateful for the privilege of conducting my graduate studies in the context of this challenging and inspirational approach. I extend my thanks to Prof. Robin Elliot for his support over many years, for sharing his enthusiasm, and for his careful reading of my drafts. I offer my thanks to Prof. Bruce Baum for his generosity in sharing his knowledge and helping me to draw connections both within my work and to larger scholarly conversations. I would also like to thank all of the members of my supervisory committee for their willingness of step outside of disciplinary boundaries, to engage fully in our conversations as a group, and for their support in my attempts to learn to speak in multiple theoretical languages.I have received support and assistance from many people at UBC Law. I am grateful to the people who have served in the role of Associate Dean, Graduate Studies during my tenure as a doctoral student: Prof. W. Wesley Pue, Prof. Catherine Dauvergne, and Prof. Douglas Harris. Each of them provided me with valuable advice and institutional support. I offer many, many thanks to Joanne Chung, who offers support, advocacy and friendship to me and others that goes well beyond the obligations of her role as the Administrator of our Graduate Program. I also offer my gratitude to to Prof. Susan Boyd whose mentorship has been invaluable over the years.I would like to acknowledge the financial support that made this research possible, including the Social Sciences and Research Council of Canada, the University of British Columbia, the UBC Faculty of Law, and the Law Foundation.I would also like to offer my thanks to all of the people whose work and support has helped to make space for this dissertation in the context of a broader world with other important work and obligations. In particular, I thank everyone who supported my concurrent work as a graduate student and as a parent. Thanks to my graduate program and my supervisory committee for their openness to my slower pace in writing and my own particular version of intellectual life. More than anything, thanks to the friends and family who spent time as caregivers so that I could work on my dissertation.viiMy special thanks to my parents, who have shown me the value of living in a thoughtful and engaged way. I often think of my Dad's sense of justice and my Mom's wisdom in understanding the interdependence of respect for self and other. I offer thanks to them and to other family members who have read drafts, cared for children, and offered so much support of all kinds, especially Michaela Cochran, Penny Thomsen and George Glover. My friends have also offered invaluable support without which this work would not have been possible, and I would especially like to mention Efrat Arbel, Michael Begg, Gillian Calder, Chani Campbell, Emma Cunliffe, Robert Diab, Fiona Kelly, Sarah Marsden and Pooja Parmar.My thanks to Mark, for unending support, for humour, for love and for sharing in this journey with me. Whose partnership makes things possible, makes things interesting, and liberates me to find what is truly important.And my thanks to Joseph and Norah, who have taught me all kinds of new ways to think and be in the world.viiiChapter 1 ? IntroductionIn the late 18th century, when the phrase ?common sense? began to appear in the works of some of his fellow philosophers, Immanuel Kant famously wrote the following scathing comments:It is indeed a great gift of God to possess right or (as they now call it) plain common sense. But this common sense must be shown in action by well-considered and reasonable thoughts and words, not by appealing to it as an oracle when no rational justification for one's position can be advanced. To appeal to common sense when insight and discovery fail, and no sooner ? this is one of the subtile discoveries of modern times by which the most superficial ranter can safely enter the ranks of the most thorough thinkers and hold his own. But as long as one particle of insight remains, no one would think of having recourse to this subterfuge. Seen clearly, it is but an appeal to the opinion of the multitude, of whose applause the philosopher is ashamed, while the popular charlatan glories and boasts in it.1Some two hundred years later, Lord Reid, Scottish Law Lord, addressed the Society of Public Teachers of Law on the topic of ?The Judge as Lawmaker.? During this speech, he said:We should, I think, have regard to common sense, legal principle and public policy in that order. We are here to serve the public, the common ordinary reasonable man...Sometimes the law has got out of step with common sense. We do not want to have people saying: 'If the law says that the law is an ass'.2These two quotations, while apparently opposed in terms of their direct argument about the value of common sense, come together in their illustration of some of the most important aspects of ?common sense? as a part of human judgment and discourse. In the conversation about ?common sense,? the cast of characters includes ?the most thorough thinker,? ?the 1 Quoted in Noah Lemos, Common Sense: A Contemporary Defense (Cambridge: Cambridge University Press, 2004) at 64.2 Quoted in FKH Maher, ?Common Sense and Law? (1971) 8 Melb U L Rev 587 at 600. 1philosopher,? and the ?common ordinary reasonable man.? We also encounter the ?superficial ranter,? the ?popular charlatan,? and the ?people saying...the law is an ass.? The character of Queen Common Sense herself appears as an embattled monarch in a farce called Pasquin, written in 1736 by English playwright and satirist Henry Fielding.3 In that play, Queen Common Sense readies herself for battle with the invading Queen Ignorance, only to meet an untimely death at the hands of traitorous advisors, who are none other than ?Law,? ?Physick? and ?Firebrand.? A whole host of personalities circulates around the idea of common sense. And it becomes clear that ?common sense,? either as pseudo-philosophical subterfuge, the fundamental basis for the common law, or a symbol of popular political will, carries with it an undeniable rhetorical power. Given all of this, when a judge in a court of law uses the language of ?common sense? to explain her or his reasons for judgment, which character is she or he inhabiting? The philosopher? The charlatan? The common ordinary reasonable man? Further, who is the ?public,? who are the ?people,? who constitutes the ?multitude? for a legal judgment? In the following pages, I interrogate many of these characters who speak of ?common sense,? not directly but by the way they occupy the work of thinkers and judges. I reflect on how their words and actions relate to practices of good legal judgment.When Kant wrote the passage quoted above, his worries were mostly about the capacity of 3 Henry Fielding, Pasquin: A Dramatick Satire on the Times: Being the Rehearsal of Two Plays, viz. A Comdy call?d The Election; And a Tragedy call?d, The Life and Death of Common-Sense (Cambridge: Chadwick-Healey, 1997). 2?common sense? to interfere with the quality of philosophical discourse, and thereby impede the search for truth. My concerns are different. While I am also interested in questions about communication and rhetoric, my central concerns are not about the practices of philosophy, but rather about practices of legal judgment and questions about justice in a society characterized by diversity and inequality. Indeed, this dissertation is animated by the claim that the existence and persistence of poverty, and the discrimination, marginalization and oppression that accompany it, are some of the most urgent challenges for justice in contemporary Canadian society. This dissertation shows that ?common sense? is a powerful concept, and that when invoked in legal judgment without adequate reflection, it can harbour stereotypes, reproduce unjust power relations, and silence marginalized people. When legal judgment engages with the deep injustices of poverty, inequality and social marginalization, unreflective reliance on common sense poses a significant threat to the quality and legitimacy of legal judgment. Yet, at the same time, ?common sense? carries with it multiple intellectual and political histories, and when different aspects of common sense are explored with careful critical attention, its democratic, egalitarian and community-sustaining components are also brought to light. This dissertation offers a critical account of ?common sense? in legal judgment, and seeks to generate new ways of thinking about and using common sense as a part of fully reflective and accountable legal judgment.Questions about the role of common sense in legal judgment acquire much of their significance from our understanding of justice and the criteria for good legal judgment. The words ?common sense? invoke claims about knowledge, about community, and about the value of 3different modes of reasoning; all of these relate directly to the value and legitimacy of our practices of legal judgment and their capacity to effect justice. Common sense is importantly related to practices of judgment. The social context that characterizes contemporary Canadian society gives all of these issues further significance. Claims about ?common sense? in contemporary society are set in a social context characterized, not only by commonality, but also by marginality and inequality. It is a context characterized, not only by the obvious or the self-evident, but also by deep disagreements about what is known, and what should be known, by impartial legal judges. How can a legal judge4 use his or her ?common sense? when this knowledge may not be held in common with the individuals and communities who are subjected to the law? From the perspective of justice and good legal judgment, the use of ?common sense? in legal judgment is problematic on its face. To investigate this problem most fully, I explore ?common sense? in a context that dramatically challenges the boundaries of common sense's claims: the injustices of poverty. Here, ?common sense? is not only problematic and easily misused, it is operating where people are already denied access to essential resources and political participation, where people cannot withstand further injustice. Here, there can be no tolerance for practices of legal judgment that further silence people already marginalized in public life. This dissertation is grounded in feminist and anti-poverty political commitments and theoretical 4 In this dissertation, I discuss legal judgment as a form of the larger human practice of judgment. To reflect this approach, when referring to judges in a court of law, I sometimes use the (unconventional) term ?legal judge,? to distinguish this person from other kinds of judges who are making judgments, for example, about art or politics. Further discussion of this choice of language is at p. 52. 4frameworks. I adopt an approach to ?justice? that seeks equality throughout collective life, including in economic distribution, cultural status and political participation. 5 Following on this, I suggest that the best practices of legal judgment are those that are most able to respond to the demands of this broad understanding of justice in a diverse and unequal world. Good legal judgment should effect just outcomes. However, in this dissertation, I take a largely procedural approach to the question of legal judgment: I am interested in practices of judgment and ideas that can be used to make those practices better. I focus on the ways in which feminist and anti-poverty approaches generate criteria for assessing practices of judgment as such. These approaches demand attention to power, attention to social context, and critical self-reflection.6 In response to these demands, when evaluating practices of legal judgment, I prioritize notions of equality and social inclusion, and refer to criteria such as transparency, accountability and reflexivity. From a feminist and anti-poverty perspective, the issues raised by thinking about ?common sense? ? about knowledge, about community, about difference, and about reasoning and persuasion ? are absolutely central to practices of good legal judgment.All of these questions about the role of ?common sense? in legal judgment converge with the 5 My understanding of justice is significantly informed by the work of Nancy Fraser. See: Nancy Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (Columbia University Press, 2009) [?Scales of Justice?]; Nancy Fraser & Axel Honneth, Redistribution or Recognition?: A Political-Philosophical Exchange (London: Verso, 2003) [Redistribution or Recognition?]; Nancy Fraser, ?What?s Critical about Critical Theory?: The Case of Habermas and Gender? in Feminism as Critique (Minneapolis: University of Minnesota Press, 1987) 31 [?What's Critical?]; Nancy Fraser, ?Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy? in Craig Calhoun, ed, Habermas and the Public Sphere (Cambridge: MIT Press, 1992) 119 [?Rethinking the Public Sphere?]. See further discussion below at page 57.6 These approaches and their consequences are discussed more fully in chapter 2. 5Supreme Court of Canada's 2002 decision in the case of Gosselin v Quebec.7 This case is significant in this dissertation for a number of reasons. It is an example of how the legal system continues to struggle with how best to address the injustices of poverty. It is an example of just how important questions of knowledge, community and rhetoric can be when talking about the quality of legal judgment. And it is a provocative example of the use of ?common sense? in legal judgment. In Gosselin, the Court was asked to determine the constitutionality of certain aspects of the social assistance regime that operated in Quebec during the 1980s. The claimant alleged that the legislation was unjust and discriminatory in the way it left some young adults to subsist on a meagre $170 per month.8 In upholding the legislation, the judgment of the majority of justices prominently invokes ?common sense.?9 In the context of this case, which dealt with the politically charged question of welfare programs, involved complex and disputed social scientific evidence,10 and included the deeply troubling testimony of Ms. Gosselin herself,11 the use of the language of ?common sense? is remarkable and provocative. Indeed, this language has been the subject of comment from anti-poverty activists and scholars, and served as the catalyst for much academic work, including this dissertation. The Gosselin case engendered a range of responses.12 Some responses, adopting a view along the lines of Kant's, accused the Court of pandering to a kind of shallow majoritarianism and of 7 Gosselin v Quebec (Procureur general), 2002 SCC 84,  4 SCR 429 [?Gosselin?].8 Ibid, para 7.9 Ibid, paras 27, 44, 56.10 For example, both sides of the dispute cited evidence showing that young adults in Quebec had a very high rate of unemployment. The claimant relied on this evidence to demonstrate the vulnerability of young adults to unemployment and poverty. In contrast, the government relied on this evidence to as the basis for its legislative response which, it said, was aimed at providing incentives to help young people find employment. See Ibid, paras 39?40, 235, 240.11 See Gosselin v Quebec (Procureur general), 2002 SCC 84,  4 SCR 429 (Factum of the Intervenor National Association of Women and the Law).12 Some of these will be described in more detail below, beginning at p. 20. 6endorsing stereotypes of people living in poverty; an ?appeal to the opinion of the multitude.? 13 Others, with Lord Reid, argued that the Court was merely applying a kind of sensible reasonableness to legal claims that threatened to lose touch with reality or get ?out of touch with common sense.?14 And yet throughout this conversation it seems that not all of the characters mentioned at the beginning of this chapter are represented. Where is the ?philosopher?? Where is the ?thorough thinker?? Where is the ?servant to the public?? Do we see the rhetorical elements of ranting, shame, boasting, glory? The Gosselin case illustrates the need to subject ?common sense? to more expansive critical scrutiny, to broaden the range of perspectives we take to assess the meaning and role of ?common sense? for legal judgment. Without this scrutiny, we lose opportunities to understand the nature of legal judgment, especially when the injustices of poverty and inequality are at issue.When taking into account the problems of poverty, inequality and social marginalization, some of the ways in which common sense is problematic for legal judgment are made particularly acute, in part because we are challenged to raise the critical question: ?common to whom?? Further, ?common sense? has a particular salience in political and legal discourses about poverty, where it often operates in the service of conservatism or populism or majoritarianism, all of which pose problems for a vision of law that seeks to transform unjust social relations.15 For these reasons and others, it is crucial to identify the ways in which invocation of ?common 13 Quoted in Lemos, supra note 1 at 64.14 Quoted in Maher, supra note 2 at 600.15 One striking example was the famous (or infamous) invocation of ?common sense? by Conservative Ontario Premier Mike Harris, who characterized his political platform as the ?Common Sense Revolution? when he ran for office in the 1990s. Harris called on ?common sense? in opposition to government spending on social welfare programs. Progressive Conservative Party of Ontario, ?The Common Sense Revolution,? online: <http:http://www.scribd.com/doc/57099326/Common-Sense-Revolution>. 7sense? constitutes significant challenges to good legal judgment. At the same time, critical scholars and anti-poverty activists would be remiss to ignore or reject the idea of ?common sense? as a part of progressive political and legal discourse about poverty and justice.16 To do so is to relinquish ?common sense? to a specific, dominant political ideology. In the process, other aspects of this concept are obscured and we might lose important resources for talking about what it means to exercise good judgment in the context of complex social life. Rather than abandoning the concept as merely an artifact of dominant claims about universal knowledge, this dissertation seeks to investigate ?common sense? in a robust and reflective manner, in order to open the possibilities for subjecting this concept to critical and feminist analysis. I want to discover whether, in addition to being worthy of critical analysis, ?common sense? can also be a tool for making legal judgment more fully reflective and responsive to the needs of diverse communities.To investigate the potential for ?common sense? to infuse legal judgment with critical engagement, it is necessary to explore the complex and diverse aspects of the concept that may not be immediately evident without sustained consideration. ?Common sense? is a phrase with a great deal of rhetorical effect, and it has a way of resisting critical scrutiny. To access those aspects of common sense that speak to questions about legal judgment and social justice, we need access to ways of thinking about and using common sense that allow for meaningful engagement and critical reflection. In this dissertation, I seek insight about common sense from 16 In this dissertation, I use the word ?justice? to describe the benchmark for my normative evaluations. In my view, the concept of ?justice? includes elements having to do with material wellbeing and the distribution of economic and society resources in society. Where I wish to draw attention to these elements of justice, I also use the phrase ?social justice.? For further discussion of the meaning of ?justice? for this dissertation, see p. 57. 8different sources: from three major thinkers from different disciplines who have engaged with ?common sense? centrally in their work ? Thomas Reid, Antonio Gramsci, and Hannah Arendt ? and from the judgments of Supreme Court justices who have used the words ?common sense? to explain their findings. I read these texts against criteria for good legal judgment, with particular attention to justice concerns arising from poverty, inequality and social marginalization. By looking carefully at different aspects of ?common sense? that become visible in scholarly texts and in written legal judgments, I work to open up this concept to critical view, and create space for ?common sense? to fulfill its potential as a part of critical and reflective legal judgment. In the remaining parts of this introduction, I will describe in more detail the problem of common sense in legal judgment, in which common sense appears to be both obvious and obscured. I will describe how ?common sense? has been used in Canadian legal judgments, and how the invocation of ?common sense? has particular salience when used in the context of legal issues concerning poverty and social marginalization. I will locate ?common sense? as an object of scholarly inquiry, and briefly introduce the methodological tools I draw on in my own investigation. Finally, I will outline the remaining chapters of the dissertation.Common sense: self evident and inscrutable?Common sense? is both self-evident and inscrutable. On one hand, common sense describes that which is simple, straightforward and obvious. We use the phrase ?common sense? to 9describe what ?everybody knows,? or judgments that are readily apparent from the practice of daily life and require no special expertise to be known and understood. Common sense judgements therefore require no further explanation or justification; common sense is self-evident.On the other hand, the meaning of the phrase ?common sense? is actually complex and dynamic; it means different things in different historical, social and discursive contexts. For example, sometimes we use ?common sense? to refer to a basic kind of reasoning or good judgment that almost everyone possesses, grounded in our daily life experiences (?just use your common sense?). At other times, we use the phrase ?common sense? to mean the content of judgments or knowledge or facts that one arrives at by using the faculty of common sense (?it's a matter of common sense?). Further, the phrase ?common sense? naturally provokes questions about community (?common to whom??). However, any complexity in the phrase, or questions that might be asked, tend to be obscured by the way common sense claims present themselves as self-evident. Even as it bears a host of different meanings, ?common sense? carries with it the rhetorical force of the self-evident, that which requires no justification and marks the boundaries of possible debate. In this way, investigation of ?common sense? is often thwarted from the start or caught in a circle of reasoning; it is inscrutable. Anthropologist Clifford Geertz aptly captures this phenomenon in his influential essay ?Common Sense as Cultural System:?[I]t is an inherent characteristic of common-sense thought ... to affirm that its tenets are immediate deliverances of experience, not deliberated reflections upon it?.Religion rests its case on revelation, science on method, ideology on moral passion; but common sense rests its case on the assertion that it is not a case at 10all, just life in a nutshell. The world is its authority.17Thus, ?common sense,? like the two-faced god Janus, looks in two directions at once: towards the simple and self-evident, and towards the complex and obscure. This tension, nested in the term, has a particular salience when considering common sense in the context of law and legal judgment. When a judge uses the term ?common sense? to articulate his or her judgment, what does this mean? Is ?common sense? a type of evidence that can support a legal argument? Is it a type of reasoning? Is it justified by its reference to community consensus? Consensus in what community? These questions are important for many aspects of the legitimacy of legal judgment and the justice of legal conclusions. But because of the apparent simplicity and self-evidence of ?common sense,? these questions are rarely answered or even acknowledged in written reasons for judgment. In legal judgment, as elsewhere, ?common sense? is much more often invoked than explained.18 Thus, the two-faced nature of common sense makes its way into legal judgment. Self-evident and inscrutable.Legal judgment is importantly related to justice. Thus the nature of the practices we engage in when undertaking legal judgment are worthy of scrutiny: we need concepts and criteria for determining what will count as good legal judgment.19 Many concepts help to serve this function in common law jurisdictions. Some are oriented to the content of legal decisions: a judge must have knowledge of the law, and an understanding of the role of the judiciary in a 17 Clifford Geertz, ?Common Sense as a Cultural System? in Local Knowledge (Basic Books, 1983) 73 at 75.18 Herman Parret, ?Common Sense in Philosophy? in Common Sense: The Foundations for Social Science (VI: University Press of America, 1987) 17 at 17?32.19 Throughout this dissertation, I approach legal judgment as one form of a larger human practice of judgment. This approach understands legal, political and aesthetic judgment to share certain characteristics, even as they differ in important ways. See Jennifer Nedelsky, ?Communities of Judgment and Human Rights? (2000) 1 Theor Inq L 245 [?Communities of Judgment?]. This approach also explains why I talk about ?judgment? rather than ?adjudication? or ?decision-making.? See further discussion at page 52. 11democratic society. Other criteria for good legal judgment are oriented directly to the practices of legal judgment, such as the requirement for judicial impartiality, the obligation to provide reasons for decisions, and the rules of evidence.20 Judges must decide impartially, transparently, and with reliance on the right knowledge. Core concepts like judicial impartiality are articulated in jurisprudence but are also elaborated through professional conduct guidelines like those published by the Canadian Judicial Council.21 In the document ?Ethical Principles for Judges,? the CJC identifies as essential the principles of judicial independence, integrity, diligence, equality and impartiality. These concepts describe how judges should approach the task before them, and how we can evaluate judging practices in relation to the overarching purposes of legal judgment. The CJC notes the connections between procedure and substance in part of its discussion of the principle of ?equality:? Equality according to law is not only fundamental to justice, but is strongly linked to judicial impartiality. A judge who, for example, reaches a correct result but engages in stereotyping does so at the expense of the judge?s impartiality, actual or perceived.22In this dissertation, I take seriously all of these potential criteria for good legal judgment. At the same time, all of the normative arguments offered here are ultimately grounded in a specific understanding of justice that presents challenges to any straightforward assessment of legal judgment. Contemporary society is characterized by fundamental political and moral disagreement, as well as relations of unequal power. Assessment of judging practices has to 20 Questions of ?form? and ?substance? overlap for legal judgment, but in this dissertation I address the issue of good judgment from a practice or procedural perspective. For an example of how theorists can explore legal principles like impartiality as general criteria for practices of good legal judgment, see Christine Boyle & Marilyn MacCrimmon, ?To Serve the Cause of Justice: Disciplining Fact Determination? (2001) 20 Windsor YB Access Just 55.21 Canadian Judicial Council, Ethical Principles for Judges (Ottawa), online: <http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf>.22 Ibid., principle 5 comment 2. 12take place against this context: we need to understand ?impartiality,? for example, so that it makes judgment better in our diverse and unequal society. Moreover, my approach to justice recognizes that (indeed, insists that) no universal or conceptually unified approach to evaluating judgment can be meaningfully proposed under conditions of radical social diversity and inequality. However, it is still possible to talk about better and worse practices of judgment ? practices that bring us closer or push us away from the ways of thinking and acting that reflect the demands of good judgment and the demands of justice.23 The broad and multi-faceted understanding of justice that grounds this dissertation places particular importance on practices of judgment that have the potential to recognize power imbalances, generate critical reflection and open the judging process to voices that might otherwise remain unheard.?Common sense? has an ambiguous relationship with criteria for good legal judgment. On one hand, ?common sense,? understood as the practice of sensible judgment, surely seems like a good candidate for inclusion as a part of good judgment in general and legal judgment in particular. As noted by Lord Reid the beginning of this chapter, ?common sense? also seems to relate to the common law tradition in particular, in which connections to the local community are valued as part of legal reasoning.24 At the same time, the particular requirements of legal judgment sit uneasily with some characteristics of ?common sense.? For example, common law legal judgment is supposed to be grounded in facts that have been proven at trial according to the rules of evidence.25 ?Common sense? knowledge is unlikely to fall into this category and, 23 Jeremy Webber, ?A Judicial Ethic for a Pluralistic Age? in Omid A Payrow Shabani, ed, Multiculturalism and Law: A Critical Debate (University of Wales Press, 2007) 67.24 Ronald A Allen, ?Common Sense, Rationality, and the Legal Process? (2000) 22 Cardozo L Rev 1417; Maher, supra note 2; William Renwick Riddell, ?Common Law and Common Sense? (1918) 27:8 Yale LJ 993.25 This idea is widely discussed from many perspectives. For three different approaches see: Peter Carter, ?Do courts decide according to the evidence?? (1988) 22 UBC L Rev 351; Marilyn T MacCrimmon, ?Fact 13indeed, may be impossible to ?prove? in this manner.Further, unexamined appeal to ?common sense? in a legal judgment allows the tension between the self-evident and the inscrutable to operate freely, leaving unanswered or unacknowledged questions about evidence, reasoning, and consensus. This creates the potential for partial, illegitimate or non-transparent judgment. Indeed, this potential is particularly likely to be realized in those areas of law where the commonality of ?common? sense is most in question. This is precisely what can happen when legal judgment encounters poverty and social marginalization. In this context, unreflective reliance on ?common sense? is not only most likely to degrade our practices of legal judgment, acts of poor judgment have the potential to cause the most damage. When legal judgment is stressed by the social and legal challenges of poverty and social marginalization, it is especially urgent that we attend to the adequacy of our judging practices.Common sense in Canadian law and the case of Gosselin v. QuebecJudges do use the language of ?common sense? to explain their reasons in a variety of contexts, and with a variety of rhetorical effects. Indeed, one empirical study in the United States found that ?common sense? was the single most commonly cited authority for legal argument.26 In Canadian judgments, this phrase tends to appear frequently in the law of evidence, in which Determination: Common Sense Knowledge, Judicial Notice and Social Science? in The Judicial Role in Criminal Proceedings (Oxford: Hart Publishing, 2000); Adrian AS Zuckerman, ?Law, Fact or Justice?? (1986) 66 Boston U L Rev 487.26 Cited in Allen, supra note 24 at 1428. 14?common sense? is understood as a foil for expert evidence.27 The phrase ?common sense? is also used to describe the concept of ?reasonable doubt? in criminal law28 as well as the concept of negligence.29 ?Common sense? also appears notably in constitutional law,30 including as a way to describe the type of proof that must be offered to establish whether something is consistent with the ?principles of fundamental justice? under s. 7 of the Canadian Charter of Rights and Freedoms,31 or to justify the breach of a right under s. 1 of the Charter.32 Certain specific propositions have also been accepted as matters of ?common sense? at various times, including the idea that ?children of tender years? should live with their mothers,33 and the principle that one intends the consequences of one's physical actions.34The language of ?common sense? was notably and provocatively invoked in the constitutional case Gosselin v. Quebec, introduced above. In Gosselin, the Supreme Court of Canada reviewed Louise Gosselin's claims that her rights to equality and security of the person were compromised by her treatment under provincial welfare laws. The impugned law was a regulation that paid individuals receiving social assistance who were under the age of 30 a much lower amount than those 30 or over, unless the younger individuals were able to participate in certain training programs. Without such participation, the amount available to people under 30 was approximately $170 per month. Ms. Gosselin was a young woman who had attempted to 27 R v DD, 2000 SCC 43,  2 SCR 275, 2000 [?D.D.?].28 R v Lifchus,  3 SCR 320, 150 DLR (4th) 733.29 Snell v Farrell,  2 SCR 311, 72 DLR (4th) 289.30 David Schneiderman, ?Common sense and the Charter? (2009) 45 Sup Ct L Rev 3 [?Common sense and the Charter?]. In this piece, Schneiderman explores the role that the invocation of ?common sense? has played in judicial interpretation of the Charter of Rights and Freedoms. He argues that ?common sense? often has the function of ?conferring legitimacy on dominant accounts of the social world.? (at 13).31 Chaoulli v Quebec (Attorney General), 2005 SCC 35,  1 SCR 791 [?Chaoulli?].32 RJR-MacDonald Inc v Canada (Attorney General),  3 SCR 199, 127 DLR (4th) 1.33 MacDonald v MacDonald,  2 SCR 259, 1975 CanLII 28 (SCC).34 R v Walle, 2012 SCC 41,  2 SCR 438. 15survive on this amount, and she argued that the regulation in question violated ss. 7 and 15 of the Canadian Charter of Rights and Freedoms.35 The Supreme Court of Canada judgments in this case were divided in complex ways.36 However, the majority of justices found that the regulation was constitutional. On the application of s. 15 equality rights, the majority judgment, authored by Chief Justice McLachlin, found that that Ms. Gosselin?s experience under the legislation did not constitute discrimination because it did not offend Ms. Gosselin's dignity.37 McLachlin C.J. accepted the government's assertion that the purpose of the law was to provide an incentive for young people to leave welfare in favour of paid employment.38 She found that this supported rather than harmed the dignity of young adults because it communicated a favourable expectation of their potential.39 McLachlin C.J. found that a reasonable person in Ms. Gosselin?s position would take this into account, and thereby experience no injury to her dignity.40The Gosselin case discloses a series of different pictures of the world. It is very hard to reconcile the picture presented by Ms. Gosselin?s evidence, which describes significant infringements on her physical and psychological integrity such as hunger, extreme stress, and 35 Gosselin, supra note 7, para 9. S. 7 of the Charter reads: ?Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.? S. 15(1) reads: ?Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.? The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [?Charter?]36 For a detailed description of the various judgments, see: Gwen Brodsky, ?Gosselin v. Quebec: Autonomy with a Vengeance? (2003) 15 CJWL 194 [?Autonomy with a Vengeance?].37 Gosselin, supra note 7, para 19.38 Ibid, paras 26, 27, 41, 42.39 Ibid, paras 42, 44.40 Ibid, para 44. 16degrading survival strategies,41 and Chief Justice McLachlin?s picture in which Ms. Gosselin should have understood her experiences in light of the government?s well-meaning objectives. Ms. Gosselin's experience was one of fundamental disempowerment, and yet the majority essentially claims that she should have experienced this disempowerment as empowerment. The majority and dissenting judges each express incredulity at the other?s representation of the situation.42 In this context of deeply contested understandings of the impugned law and its effects, it is striking that at several crucial points, Chief Justice McLachlin uses the language of ?common sense? to articulate her findings. The phrase appears in three significant passages in the judgment, which I will be returning to throughout this dissertation.43First, while addressing the role of the purpose of the law in assessing its impact, McLachlin C.J.C. finds:As a matter of common sense, if a law is designed to promote the claimant's long-term autonomy and self-sufficiency, a reasonable person in the claimant's position would be less likely to view it as an assault on her inherent human dignity.44On the question of whether the law properly responded to the claimant?s actual circumstances, she writes:Even if one does not agree with the reasoning of the legislature or with its priorities, one cannot argue based on this record that the legislature's purpose lacked sufficient foundation in reality and common sense to fall within the bounds 41 See National Association of Women and the Law, supra note 11.42 L?Heureux-Dube J. writes: ?I cannot imagine how it can be maintained that Ms. Gosselin's physical integrity was not breached.? Gosselin, supra note 7, para 130..43 As a matter of constitutional doctrine, it is noteworthy that all of these passages relate to the analysis of s. 15 equality rights.44 Gosselin, supra note 7, para 27. [emphasis added] 17of permissible discretion in establishing and fine-tuning a complex social assistance scheme. Logic and common sense support the legislature's decision to structure its social assistance programs to give young people, who have a greater potential for long-term insertion into the work force than older people, the incentive to participate in programs specifically designed to provide them with training and experience.45And in addressing the critique raised by the dissent that the regulation failed to respond to those circumstances:[W]e cannot infer disparity between the purpose and effect of the scheme and the situation of those affected, from the mere failure of the government to prove that the assumptions upon which it proceeded were correct. Bastarache J. argues that the distinction between people under 30 and older people lacks a "rational basis" because it is "[b]ased on the unverifiable presumption that people under 30 had better chances of employment and lower needs" (para. 248). This seems to place on the legislator the duty to verify all its assumptions empirically, even where these assumptions are reasonably grounded in everyday experience and common sense. With respect, this standard is too high?The legislator is entitled to proceed on informed general assumptions without running afoul of s. 15?provided these assumptions are not based on arbitrary and demeaning stereotypes.46These passages show that common sense plays a significant role in the judgment, particularly in grounding the majority?s resistance to the idea that an inappropriate government response to poverty might violate constitutionally protected rights. It also provides a lens for the assessment of evidence. At the same time, there is no definition or explanation of common sense, nor any reflection on its role. This explicit and frequent use of the term ?common sense? makes Gosselin exceptional among poverty-related cases at the Supreme Court of Canada.47 Gosselin is also exceptional in that it is 45 Ibid, para 44. [emphasis added]46 Ibid, para 56. [emphasis added]47 Other important Supreme Court of Canada judgments that engage with the problem of poverty include: Eldridge v British Columbia (Attorney General),  3 SCR 624, 151 DLR (4th) 577; Baker v Canada, 18one of only a handful of cases in which the Supreme Court of Canada has reviewed the content of a provincial welfare regime, and it is the only case in which the adequacy of welfare payments or programs has been assessed under the Charter of Rights and Freedoms.48 The Gosselin case is useful for a study of common sense in legal judgment, not because it is representative of a class of cases, but because its treatment of poverty themes and its invocation of common sense provide insight on the role of common sense in legal judgment. Further, the Gosselin case is worthy of detailed scrutiny because of the way it fits with a larger jurisprudence on poverty issues.49 In some respects, the use of ?common sense? in Gosselin brings to the surface issues that pervade legal judgments on poverty and equality issues, such as questions of community, access to justice, and the legitimacy of the varied forms of knowledge relied upon by courts. Finally, Gosselin is useful for a study of common sense in legal judgment because it compels the asking of questions about the exceptionality of this case. If the Supreme Court rarely invokes ?common sense? when talking about social justice, why is this the case? What would happen if the Supreme Court explicitly invoked ?common sense? in other cases where  2 SCR 817, 174 DLR (4th) 193; New Brunswick (Minister of Health and Community Services) v G (J),  3 SCR 46, 177 DLR (4th) 124; Lovelace v Ontario, 2000 SCC 37,  1 SCR 950.48 Other cases in which the SCC has addressed some aspect of a provincial welfare regime are: Alden v Gaglardi et al,  SCR 199, 1972 CanLII 140 (SCC) (exclusion of individuals whose need is as a result of a strike or lockout) and Finlay v Canada (Minister of Finance),  1 SCR 1080, 101 DLR (4th) 567 (deduction from social assistance payments to recover overpayments). Other cases dealing with the legal context of welfare regimes include Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14,  1 SCR 513(jurisdiction of social assistance tribunal to consider human rights issues) and Qu?bec (Attorney General) v Canada, 2011 SCC 11,  1 SCR 368 (obligation of federal government to share costs of programs).49 There is a broader problem with the application of oppressive dominant norms and stereotyping in cases dealing with poverty. See Martha Jackman, ?Reality Checks: Presuming Innocence and Proving Guilt in Charter Welfare Cases? in Margot Young et al, eds, Poverty: Rights, Social Citizenship and Legal Activism (Vancouver: UBC Press, 2007) 23; Janet Mosher, ?The Shrinking of the Public and Private Spaces of the Poor? in Disorderly People: Law and the Politics of Exclusion (Halifax: Fernwood, 2002) 41; Janet Mosher, ?Managing the Disentitlement of Women: Glorified Markets, the Idealized Family, and the Undeserving Other? in Restructuring Caring Labour (Toronto: Oxford University Press, 2000) 30; Mary Jane Mossman, ?Choices and Commitments for Women: Challenging the Supreme Court of Canada in the Context of Social Assistance? (2004) 42 Osgoode Hall LJ 615; Margot Young, ?Rights, the Homeless and Social Change: Reflection on Victoria (City) v. Adams (BCSC)? (2009):164 BC Studies: The British Columbian Quarterly 103. 19social justice is at stake?The Gosselin decision was met with considerable criticism.50 For example, Gwen Brodsky critiques the majority's assessment of the evidence on the grounds that the judgment accepted the negative stereotypes of young people on social assistance that had framed the legislation in the first place.51 Brodsky argues that mischaracterization of the facts in the case allows the majority to endorse idealized and formal notions of autonomy and freedom, which are, in reality, not realizable without adequate support to meet basic needs. In this way, the majority undermines rather than enhances the equality and autonomy of poor women and other marginalized people.52Other commentators specifically focus on the majority's use of the phrase ?common sense? in their critique of the decision. David Schneiderman argues that the Court?s reliance on ?common sense? signals the Court's willingness to adopt dominant views about poverty and welfare in its understanding of evidence in constitutional cases.53 He argues that, when faced with contentious social issues (such as the relationship between poverty and constitutional rights), the Supreme Court of Canada is more likely to follow established ?common sense? than to act as a leader in forming or reforming Canada?s constitutional culture.54 Schneiderman points to mainstream 50 Brodsky, ?Autonomy with a Vengeance,? supra note 36; David Schneiderman, ?Social Rights and ?Common Sense?: Gosselin Through a Media Lens? in Margot Young et al, eds, Poverty: Rights, Social Citizenship and Legal Activism (Vancouver: U.B.C. Press, 2007) 57 [?Social Rights and 'Common Sense'?]; Jackman, supra note 49; Natasha Kim & Tina Piper, ?Gosselin v. Quebec: Back to the Poorhouse ...? (2003) 48 McGill LJ 749; Sheila McIntyre, ?The Supreme Court and Section 15: A Thin and Impoverished Notion of Judicial Review? (2006) 31 Queen?s LJ 731 [?Supreme Court and Section 15?].51 Brodsky, ?Autonomy with a Vengeance,? supra note 36.52 Ibid at 213?214.53 Schneiderman, ?Social Rights and 'Common Sense',? supra note 50. 54 Ibid. 20media reports on the case as sources of common sense, and argues that these indicate a fairly wide social consensus about poverty and social welfare programs that disposes society against the claims of anti-poverty litigants.55In her critique of Gosselin, Sheila McIntyre also argues that the majority justices demonstrate a willingness to uncritically accept dominant notions of the world. Further, McIntyre specifically ties this practice to the requirements of legitimate legal judgment, and argues that, through their reliance on ?common sense,? the majority justices have essentially abdicated their responsibility to judge, and have instead relied on stereotypes. She writes that ?judicial complacency in invoking or accepting 'common sense' notions about historically marginalized, stigmatized or stereotyped groups amounts to bad judging.?56 McIntyre argues that legitimate practices of legal judgment, particularly in the context of constitutional review, cannot tolerate reliance on stereotypes or ?privileged innocence? about the experiences of marginalized people, and that resort to ?common sense? precipitates precisely these problems.57In a similar vein, Natasha Kim and Tina Piper argue that ?one of the hallmarks of systemic discrimination is the ability to cloak itself in 'common sense' and to erase the realities of those suffering from discrimination.?58 And in response to Gosselin, the Victoria Anti-Poverty Coalition stated: ?This truly bizarre ?common sense? economic insight on the part of Canada's Supreme Court will no doubt come as a tremendous shock to...many thousands of Canadians.?5955 Ibid at 68.56 McIntyre, ?Supreme Court and Section 15,? supra note 50 at 764.57 Sheila McIntyre, ?Studied Ignorance and Privileged Innocence: Keeping Equity Academic? (2000) 12 CJWL 147 [?Keeping Equity Academic?].58 Kim & Piper, supra note 50 at 780.59 Victoria Anti-Poverty Coalition, Press Release, ?The Gosselin Decision: Canada's Supreme Court is out of touch with economic, environmental and poverty realties,? online: <http://www.povnet.org/node/1135>. 21These comments are all directed at slightly different theoretical and doctrinal targets, and reveal different approaches to ?common sense? and law. However, there is a general sense in which all of these critiques of the Gosselin case direct their analyses of judicial invocation of ?common sense? to the question of whether the purported ?common sense? is in fact ?common,? and, if so, common to whom. The question ?common to whom?? is an essential one and plays a central role in this dissertation. However, it also leaves many issues unaddressed. For example, in relation to Gosselin, I agree with Schneiderman that the case and the media reports about it reveal a partial (and problematic) social consensus around poverty and rights in Canada. However, I also think that the court?s invocation of common sense is more than an indicator of the role of this consensus. Further, I question whether the use of common sense necessarily restricts judges to dominant knowledges. In this context and others, important questions remain unanswered. What is the relationship between common sense and good judgment? How is common sense connected to specific communities? What is the measure of the ?commonality? of common sense? What effects do claims about common sense have in social discourses, including legal discourse? Further, the framework for debate appears to make it difficult to even ask these questions. In this way, the claims that common sense makes about itself ? that it is self-justifying ? effectively serve to insulate it from critical scrutiny. To address this dilemma of insulation and self-justification, I have turned to the work of Ludwig Wittgenstein, which provides a useful framework for thinking about theoretical problems 22characterized by contradiction, paradox, or circular reasoning. Confronted with this kind of problem, Ludwig Wittgenstein uses the language of ?captivity? to describe our inability to break out of one way of thinking in a satisfactory way. In this dissertation, I draw on Wittgenstein's proposals for a theoretical methodology to find a way to open ?common sense? to more adequate scrutiny. Wittgenstein argues that our way of thinking about a concept (such as ?common sense?) can become ?captive? to a particular ?picture,? and thereby lose its usefulness as a way for us to understand ourselves. I think that debate about ?common sense? is often constrained in this way. To break free of this captivity and to reclaim the creativity and productivity of our language, Wittgenstein argues that we should try to look at a concept from new perspectives, and to use theoretical approaches that can generate this opportunity. He argues that it is useful to learn how to see more than one ?aspect? of a concept, which he calls creating a ?perspicuous representation? of a concept. In this dissertation I rely on Wittgenstein's ideas of ?captivity,? ?aspect? and ?perspicuous representation? to structure my argument. I explain this methodology in detail in chapter 2. This methodological approach allows me to talk about the dilemmas of common sense in a much more specific and concrete manner, providing the framework for the subsequent chapters on common sense in the writings of Thomas Reid, Antonio Gramsci and Hannah Arendt. 23Poverty and the consequences of the paradox of common senseWhen our understanding and use of ?common sense? are constrained (?held captive?) in a framework that limits the scope of our questions, the quality of our judgment suffers. This dilemma takes on a particular significance in the context of poverty and social marginalization. There are two main reasons for this. First, the issues surrounding poverty in Canada raise major justice concerns. The persistence of poverty and the discriminatory patterns associated with deep or ongoing poverty in specific communities raise questions that strike at the heart of a constitutional democracy that values political participation and equality before the law. The questions raised in this dissertation about the role of common sense in legal judgment gain much of their significance when they are placed against the backdrop of the realities of poverty in Canada, and the ways in which the experiences of poverty and social marginalization constitute injustice.In this dissertation, I use the term ?poverty? to indicate a broad range of injustices in which there is a material component, including material hardship, economic inequality and class marginalization.60 It is useful to refer to the definition of ?poverty? developed by the United Nations Committee on Economic, Social and Cultural Rights, which describes it asa human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights.6160 There are underlying political-theoretical questions surrounding the use of this term ? please see chapter 2, below, p. 103.61 Poverty and the International Covenant on Economic, Social and Cultural Rights, Committee on Economic, Social and Cultural Rights, 25th Sess. 10/05/2001, UN Doc. E/C.12/2001/10, online: <http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/E.C.12.2001.10.En?Opendocument>. 24Thus, poverty is not simply about lack of income or material deprivation; it is also about exclusion, anxiety, oppression and marginalization. Although Canada does not have an official ?poverty line,? by most measures millions of people of all ages live in poverty.62 The non-profit advocacy organization Canada Without Poverty describes this experience in the following terms:To live in poverty in Canada is to live with insufficient and often poor quality food. It is to sleep in poor quality housing, in homeless shelters, or on city streets. It is on a daily basis to have to make difficult and painful decisions involving trade-offs, such as whether to "pay the rent or feed the kids," pay the electric bill or go to the dentist, buy a new monthly bus pass or forego inviting friends over for dinner. No Canadian should have to suffer such anxiety. To live in poverty in Canada is to be at much greater risk of poor health, violence and a shorter lifespan. It is to be unable to participate fully in one?s community and greater society. And it is to suffer great depths of anxiety and emotional pain, borne by young and old alike.63Nor is the risk of poverty shared equally among Canadians. Aboriginal people, people with disabilities, single mothers and recent immigrants are among the groups that are at higher risk of becoming poor.64 Thus the experience of poverty relates not only to deprivation but also discrimination and colonialism.65 Poverty is a gendered phenomenon, in which girls and women 62 Statistics Canada?s Low-Income Cut-Offs indicate those households who spend about 20% more of their income meeting their basic needs than the average household. The Market Basic Measure identifies households whose income is insufficient to purchase a certain collection of goods. By both types of measures, about 10% of Canadians are low-income. See: Canadian Council on Social Development, ?Economic Security Fact Sheet #2: Poverty,? online: CCSD <http://www.ccsd.ca/factsheets/economic_security/poverty/index.htm>; Human Resources and Skills Development Canada, ?Low Income in Canada: 2000-2006 Using the Market Basket Measure,? (2008), online: HRSCD <http://www.hrsdc.gc.ca/eng/publications_resources/research/categories/inclusion/2008/sp-864-10-2008/page01.shtml>.63 Canada Without Poverty, online: <http://www.cwp-csp.ca>.64 For example, a study from the Canadian Centre for Policy Alternatives found that approximately 40% of aboriginal children in Canada are poor: ?Poverty or Prosperity?, online: CCPA <http://www.policyalternatives.ca/publications/reports/poverty-or-prosperity>; Canadian Council on Social Development, supra note 62. For more statistics and discussion see: Margot E Young, ?Introduction? in Margot Young et al, eds, Poverty: Rights, Social Citizenship and Legal Activism (Vancouver: U.B.C. Press, 2007) 1.65 The poverty experienced by indigenous individuals and communities in Canada is complex and goes far beyond questions of legal judgment as practiced by Canadian state courts; it relates to practices of colonialism 25are significantly more likely to experience poverty during their lifetimes.66 Moreover, the experience of poverty in Canada is shaped by gendered aspects of social life such as unequal benefit from paid employment,67 disproportionate responsibility for caregiving labour68 and vulnerability to intimate violence.69Thus, it becomes clear that when judges must assess the rights of individuals living in poverty, practices of legal judgment are tied to very high stakes. For individuals and communities living in poverty, interaction with the law may be part of what determines their access to basic necessities like food, medical care or housing, their ability to provide for their families and their opportunity to participate in community life. Legal judgments about those issues might address things such as the equality rights of women receiving social assistance,70 the appropriate sentences for impoverished and marginalized women who commit crimes,71 or the constitutional status of panhandling.72 While all kinds of legal judgments can carry important consequences for litigants and for society as a whole, it is not an exaggeration to say that, in some cases, poverty and law interact in relation to life and death matters.73 The quality of our practices of including dispossession of land, disruption of traditional economies and discriminatory treatment by the state. See Part 6 of the volume: Martin J Cannon & Lina Sunseri, eds, Racism, Colonialism, and Indigeneity in Canada: A Reader (Don Mills, ON: Oxford University Press, 2011).66 Canadian Centre for Policy Alternatives, ?Fact Sheets on Women?s Poverty?, online: CCPA <http://www.policyalternatives.ca/publications/commentary/fact-sheets-womens-poverty-recession>.67 Canadian Centre for Policy Alternatives, ?Closing Canada?s Gender Gap?, online: CCPA <http://www.policyalternatives.ca/publications/reports/closing-canadas-gender-gap>.68 Gwen Brodsky et al, ?Human Rights Denied: Single Mothers on Social Assistance in British Columbia? (West Coast LEAF, 2006).69 In one study, women within three years of leaving an abusive relationship were 20 times more likely to access food banks than the general population: CCPA, supra note 67 at 6.70 Falkiner v Ontario (Director of Income Maintenance, Ministry of Community & Social Services) (2002), 212 DLR (4th) 633, 59 OR (3d) 481 (ON CA).71 R v Hamilton (2003), 8 CR (6th) 215, 172 CCC (3d) 114 (ON Sup Ct J).72 R v Banks (2007), 275 DLR (4th) 640, 84 OR (3d) 1 (ON CA); Federated Anti-Poverty Groups of BC v Vancouver (City), 2002 BCSC 105, 40 Admin LR (3d) 159.73 That legal regimes and outcomes can have an affect in survival situations was tragically made evident in the case of Kimberly Rogers, a woman who was found dead in her apartment in Sudbury, Ontario on August 9, 2001. At the time of her death, Ms Rogers was 8 months pregnant and confined to her residence following a 26legal judgment in this context is of great significance.The second way in which the dilemma of ?common sense? in legal judgment carries special significance in the context of poverty is that poverty tends to complicate our understanding of legal judgment. For example, judgments about poverty bring into sharp relief the question of judicial subjectivity.74 Legal questions about poverty are particularly likely to highlight the demographic differences between low income Canadians and Canadians sitting on the bench. Judges in Canada are overwhelmingly white and middle- or upper-class.75 About two-thirds of judges are men.76 The likelihood of a judge carrying with him or her direct personal experience of living in poverty is especially low, and thus the commonality of ?common sense? becomes particularly suspect.Judgments about poverty also have the potential to raise broader questions about the relationship between ?poverty? and ?law? in a constitutional democracy. There are rich bodies of literature conviction for welfare fraud, relating to her receipt of student loans while on welfare. Her conviction had also resulted in an automatic suspension of her welfare benefits. For a detailed collection of inquest documents and media reports surrounding this case see the organization Justice with Dignity: http://dawn.thot.net/Kimberly_Rogers/kria.html.74 For general discussion of the significance of a representative judiciary, see: Richard F Devlin, A Wayne MacKay & Natasha Kim, ?Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or Towards a ?Triple P? Judiciary? (2000) 38:3 Alta L Rev 734; Regina Graycar, ?The Gender of Judgments: Some Reflections on Bias? (1998) 32 UBC L Rev 1; Jennifer Nedelsky, ?Judgment, Diversity, and Relational Autonomy? in Judgment, Imagination and Politics: Themes from Kant and Arendt (Lanham, Maryland: Rowman & Littlefield, 2001) 103 [?Judgment, Diversity and Relational Autonomy?]; Bertha Wilson, ?Will Women Judges Really Make a Difference?? (1990) 28 Osgoode Hall LJ 507.75 Maryka Omatsu, ?The Fiction of Judicial Impartiality? (1997) 9 CJWL 1. Of the 100 appointed by the federal government between 2010 and 2012, 98 were white: Kirk Makin, ?Of 100 new federally appointed judges 98 are white, Globe finds?, Globe and Mail (17 April 2012), online: <http://www.theglobeandmail.com/news/politics/of-100-new-federally-appointed-judges-98-are-white-globe-finds/article2405888/,%20http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm04-11-01-eng.asp>.76 As of 2013, of the 1,180 judges of all Canadian courts, there are 364 women (approximately 31 per cent): Krystyle Gill & Alycia Shaw, ?Representing Canada on the Bench: On Gender Balance, Equality and Judicial Appointments? (Canadian Bar Association, 2013), online: CBA <http://www.cba.org/CBA/conf_women/Women_Newsletters2013/bench.aspx>. 27addressing this subject and a whole constellation of concerns and approaches.77 These literatures include discussion of rights discourse,78 the relationship between judicial and legislative lawmaking for social justice,79 the capacity of the Canadian Charter and Rights and Freedoms to respond to the challenges of poverty and inequality,80 the institutional capacity of the court,81 and the ways in which poverty impacts other axes of injustice such as sexism, racism, and colonialism.82This dissertation does not address these questions. However, scholarship on law and poverty provides the context for my examination of common sense, and helps determine what is important in my assessment of the adequacy of practices of legal judgment. This literature does inform my overall approach, and on occasion I pull it in to highlight the significance of ?common sense? for legal judgment. At a general level, I adopt a broad view of legal judgment, in which attention to poverty and social justice is appropriate or even essential. While actions addressing the injustices of poverty and social marginalization also and importantly take place 77 For recent explorations in the Canadian context, see the essays in the volumes Margot Young et al, eds, Poverty: Rights, Social Citizenship and Legal Activism (Vancouver: U.B.C. Press, 2007); Sanda Rodgers & Sheila McIntyre, eds, The Supreme Court of Canada and Social Justice: Commitment, Retrenchment or Retreat (Markham, ON; Dayton, Ohio: LexisNexis, 2010).78 Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy and Political Change (Ann Arbor: University of Michigan Press, 2004); Patricia Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991).79 Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997).80 Martha Jackman, ?The Protection of Welfare Rights Under the Charter? (1988) 20 Ottawa Law Review 257; Andrew Petter, ?Wealthcare: The Politics of the Charter Re-visited? in Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005).81 Louise Arbour, ?LaFontaine-Baldwin Symposium 2005 Lecture? (2005), online: <internal-pdf://arbour_speech_2005-0690414336/arbour_speech_2005.pdf>; David Wiseman, ?Competence Concerns in Charter Adjudication: Countering the Anti-Poverty Incompetence Argument? (2005) 51 McGill LJ 503; Angus Gibbon, ?Social Rights, Money Matters and Institutional Capacity? (2003) 14 NJCL 353; David Wiseman, ?The Charter and Poverty: Beyond Injusticiability? (2001) 51 UTLJ 425.82 Fay Faraday, Margaret Ann Denike & M Kate Stephenson, Making Equality Rights Real: Securing Substantive Equality Under the Charter (Toronto, ON: Irwin Law, 2006); Shelley Gavigan, ?Poverty Law, Theory, and Practice: The Place of Gender and Class in Access to Justice? in Locating Law: Race/Class/Gender Connections (Halifax: Fernwood Press, 1999) 208; Mosher, supra note 49; Enakshi Dua & Angela Robertson, eds, Scratching the Surface: Canadian Anti-Racist Feminist Thought (Toronto: Women's Press, 2000). 28outside the courtroom, I suggest that these issues are properly part of judicial, as well as legislative lawmaking. That is, material circumstances and economic inequality are not merely the context for the assertion of legal claims and the resolution of disputes, but rather a central problem faced by any social institution that has ?justice? as one of its organizing principles. This underscores how issues about poverty and social marginalization relate to concerns about the quality of legal judgment, and its relationship to communities.Common sense as a subject of scholarly inquiryCommon sense is much more often invoked than explained,83 and, further, the claim that something is a matter of ?common sense? has a way of being self-justifying. However, even cursory reflection reveals that ?common sense? is a rich and dynamic phrase, with shifting meanings and functions, even in everyday life. For example, ?common sense? is often used to describe a body of facts that are known by almost everyone in a community. One might say: ?Everyone knows that if you go for a walk in the rain, you?ll get wet. It?s just common sense.? There is no need to look up such information in a book, nor could most people recall a specific moment in which they learned it. At the same time, ?common sense? is also used to describe, not a body of knowledge, but a type of judgment or sensibility.84 Thus, one might say: ?She went out in the rain without her umbrella. She may be smart, but she really has no common sense.? In this context, the speaker 83 Parret, supra note 18.84 In this vein, some writers argue that ?common sense? does not have any particular content, but rather describes a kind of na?ve realism about the world: Lynd Forguson, Common Sense (London: Routledge, 1989); Allen, supra note 24. 29is not saying that the person lacks any particular piece of knowledge (such as ?if you go for a walk in the rain, you?ll get wet,?) but rather that she lacks good judgment in relation to everyday affairs.85This seemingly banal example about umbrellas demonstrates the inherent particularity of any piece of common sense; it impossible to give examples of common sense without drawing on particular background assumptions and cultural references. What about people who live in places where umbrellas are not a usual piece of personal technology? What about places where rain is understood as a rare blessing? What about people who prefer to travel light at the risk of getting wet? What about people who cannot afford an umbrella? Do the people in these further examples simply exhibit poor judgment? Surely not. Thus, even an apparently non-controversial example raises questions about the relationship between particular communities, particular knowledges, and the normative, judgmental component of common sense.Despite these questions that lie beneath the surface of ?common sense,? there is no sustained historical scholarly conversation on ?common sense? in the same way that there is about other related concepts such as ?knowledge.? Rather, ?common sense? has appeared at different moments, in different contexts, to serve different intellectual and political purposes for scholarly writers.86 For Aristotle, the term usually translated as ?common sense? meant a human faculty 85 Tracing the intellectual history of ?common sense? in the natural law tradition, Fritz van Holthoom describes how these two strands of common sense come together in that tradition. Fritz van Holthoom, ?Common Sense and Natural Law: From Thomas Aquinas to Thomas Reid? in Common Sense: The Foundations for Social Science (VI: University Press of America, 1987) 99. It is also essential to note how these two aspects are related: Marilyn T MacCrimmon, ?What is ?Common? About Common Sense: Cautionary Tales for Travelers Crossing Interdisciplinary Boundaries? (2001) 22 Cardozo L Rev 1433 [?What is 'Common' About Common Sense?].86 For helpful overviews of common sense in philosophy, see Sophia A Rosenfeld, Common Sense: A Political History (Cambridge, Mass: Harvard University Press, 2011); Fritz van Holthoom & David R Olson, ?Common 30that could coordinate sensory information; the common sense is the ?sense? that allows me to appreciate that the apple I can see is the same object as the apple I can smell. 87 The ?common? aspect of common sense indicated a coordinating capacity, and was essential for the ability to make judgments.When ?common sense? is used by Roman writers such as Vico, and in subsequent conversations in the rhetorical tradition, it refers to knowledge that is shared in a community. ?Common sense? is what is known or believed by everyone in the community, and helps form the boundaries of that community.88 For later enlightenment thinkers such as Locke, ?common sense? had come to mean not a specific body of shared knowledge, but rather any kind of knowledge that could be understood by non-experts, or knowledge that was properly the domain of everyday people.89In her writing on the political history of ?common sense,? Sophia Rosenfeld describes how all three of these elements of common sense came together. She writes:At the start of the eighteenth century, with the revival of all of these sources, common sense came also to mean, in English, those plain, self-evident truths or conventional wisdom that one needed no sophistication to grasp and no proof to accept precisely because they accorded so well with the basic (common sense) intellectual capacities and experiences of the whole social body.90Rosenfeld argues that the increasing centrality of ?common sense? in western political discourse Sense: An Introduction? in Common Sense: The Foundations for Social Science (VI: University Press of America, 1987) 1; Parret, supra note 18.87 Rosenfeld, supra note 86 at 23.88 Ibid.89 Ibid.90 Ibid. 31is part of a shift in the meaning of politics itself. In contemporary democratic society, ?[p]olitics has been recast...as the domain of simple, quotidian determinations and basic moral precepts, of truths that should be self-evident to all.?91 Rosenfeld argues, persuasively, that ?common sense? as a part of political discourse has an ambiguous relationship with democracy, both upholding it and subverting it in different historical moments.92In the context of law and jurisprudence, ?common sense? also draws on this composite intellectual history.93 Just as ?common sense? in politics has an ambiguous relationship with democracy, ?common sense? in law has an ambiguous relationship with justice. In legal scholarship, the phrase ?common sense? has rarely served as the primary object of scholarly inquiry, compared with the extensive conversation among lawyers and legal academics about related concepts such as ?ideology,?94 ?discourse,?95 or ?knowledge.?96 Those writers who do turn their attention directly to the relationship between ?common sense? and law can be placed in three general categories. Although these categories do not constitute ?schools of thought? and individual thinkers may engage with issues falling into more than one category, these three broad strands still provide a useful way to think about the literature on ?common sense? and law.91 Ibid at 3.92 Ibid at 9.93 Fritz van Holthoom argues that the natural law tradition has incorporated many aspects of ?common sense:? van Holthoom, supra note 85.94 Susan B Boyd, ?Some Postmodernist Challenges to Feminist Analyses of Law, Family and State: Ideology and Discourse in Child Custody Law? (1991) 10 Can J Fam L 79; Alan Hunt, ?The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law? (1985) 19 Law & Society Rev 11.95 Trevor Purvis & Alan Hunt, ?Discourse, Ideology, Discourse, Ideology, Discourse, Ideology...? (1993) 44:3 Brit J Soc 473.96 Mariana Valverde, Law?s Dream of a Common Knowledge (Princeton: Princeton University Press, 2003). 32First, ?common sense? is sometimes invoked by writers interested in the history or meaning of the common law tradition (as distinct from the civil law or other traditions). From some perspectives, the common law, properly understood, is actually the embodiment of the ?common sense? of a given community. Speaking in 1918, William Renwick Riddell of the Supreme Court of Ontario claimed that the reason Upper Canadians, in contrast to some other colonial settlers, were strongly attached to the common law, was its historical and ongoing connection to their ?common sense.? He wrote: Is not the real reason [for this attachment to the common law] to be found in the belief that the common law is the perfection of human reason-in a word, that the common law is common sense? What we call "common sense" is not the old metaphysical common sense, nor is it the sentiment which might be conceived to flow from lofty and altruistic philosophy; but it consists in the application of the rules of justice and honesty to the things of this work-a-day world, so full of anomalies and of fallible, imperfect, human beings.97He also wrote:The common sense of the judge was not far away from the common sense of the mass of the people-and the dicta of the judge recommended themselves to the people because they were much the same as they would themselves have uttered had they been articulate.98Law and psychology scholar Norman Finkel also connects common sense with common law legal judgment, and focuses on the ways in which legal judgment is hindered or precluded by legal rules that are excessively technical or rational.99 Finkel argues that human judgment, including legal judgment, is always imbued with subjective factors, and that these subjective factors help form the basis of real justice, which he calls ?commonsense justice.? Finkel argues that ?commonsense justice? is the home of these essential human elements of 97 Riddell, supra note 24 at 998. [emphasis added]98 Ibid at 996.99 Norman J Finkel, Commonsense Justice: Jurors? Notions of the Law (Cambridge: Harvard University Press, 1995). 33judgment, and that these human elements find their way into the law through concepts like ?intent.? He argues that legal doctrines that try to exclude these subjective elements (such as strict liability or objective tests) can therefore be contrary to ?commonsense justice.? He writes: [M]ost [people] see the law as a distinctly human creation pertaining to human actions, thoughts, feelings, and motives. Expressed in the law's penumbra or subtext is a psychology of human nature. When that human nature stops being human, or ceases to have anything but a cardboard similarity to the real thing, it fails the community test.100In a similar vein, contemporary evidence scholar Ronald Allen argues that the common law emerges from common sense, and indeed that the ongoing existence of the common law demonstrates its consistency with common sense. He writes:The law provides a web of regulation that surrounds virtually all of life in these [contemporary common law] societies. If that web were not generated largely from and consistent with the conventional interactions of individuals, it would not survive.101Allen also argues that the law of evidence does a service to the law by protecting space for the free operation of common sense in legal judgment: The body of law governing evidence may be the strongest bastion against sudden assaults on common sense. I would add that resisting sudden assaults on common sense may be one of the most important guarantors of the continuing progression of civilization.102These writers invoke ?common sense? as the basis for law, and even argue that if the law departed from such shared knowledge it would not survive. From this perspective, the common 100 Ibid at 95.101 Allen, supra note 24 at 1426.102 Ibid at 1431. 34law is evidence of the content of common sense. We can see in these claims many of the intellectual strands of ?common sense? identified by Rosenfeld, including common sense as shared knowledge and common sense as the knowledge of ordinary people.The second broad category of writing on ?common sense? and law includes legal scholars who have taken up ?common sense,? not as a basis for defending the content of the law, but for critiquing it and the ground upon which it stands. For example, in his book The Death of Common Sense: How Law is Suffocating America, lawyer Phillip Howard argues that the legal system is not based on common sense, but is rather the product of its abandonment. He argues that contemporary law (particularly administrative law) is directed so much at achieving certainty that it forecloses the exercise of judgment, both by those who are governed by the law and by those charged with enforcing it.103 He writes that ?[i]n the decades since World War II, we have constructed a system of regulatory law that basically outlaws common sense. Modern law, in an effort to be 'self-executing,' has shut out our humanity.?104 To support his argument, Howard offers a series of purportedly outrageous anecdotes of state officials (like building inspectors and environmental regulators) adhering to ?the letter of the law? in cases where a broader and more pragmatic exercise of discretion would clearly (in his view) have resulted in better regulation or a more just outcome. Howard stresses that ?common sense? is closely linked to the genuine exercise of judgment, in contrast to unreasonable deference to rules, and on this basis he uses ?common sense? to critique the content of law. However, he does not turn his critical attention to ?common sense? itself.103 Philip K Howard, The Death of Common Sense: How Law is Suffocating America (Random House, 1994).104 Ibid at 11. 35Indeed, Howard communicates very few hesitations about the scope or content of common sense knowledge and its ability to ground good legal judgment. Concerned as he is with defending common sense against rules, he devotes little attention to the question of whether common sense knowledge itself might be disputed or problematic in ways that are directly relevant to legal judgment. Howard's book does address some issues relating to social diversity, but he is quite unrestrained in his use of sweeping generalizations, as well as his association of common sense with majoritarianism and against minority groups: nonsense is what is opposed to ?us.? For example, he critiques the concept of ?rights? particularly as employed by people with disabilities, because it results in use of public resources that ?comes out of everybody else's hide....?105 In contrast, other thinkers put the legitimacy of ?common sense? itself at the centre of the analysis. For example, in an article that is in part a critique of Allen's approach, feminist evidence scholar Marilyn MacCrimmon argues that not all common sense knowledge is a legitimate part of legal judgment. Indeed, ?common sense? knowledge can be racist, sexist or otherwise imbued with discrimination and unjust partiality.106 For example, she catalogues the range of racist sayings and proverbs about aboriginal people that find their home in North American ?common sense.?107 MacCrimmon argues that the laws of evidence exist, not to protect and promote the exercise of common sense, but to contest and regulate it.108 MacCrimmon points to several legal concepts that work to regulate common sense in the interests of legitimate, impartial legal judgment, including by structuring the generalizations that 105 Ibid at 118.106 MacCrimmon, ?What is 'Common' About Common Sense,? supra note 85 at 1444.107 Ibid at 1442.108 Ibid at 1443?4. 36can be used to link evidence and facts.109 In MacCrimmon's approach, we hear echoes of those intellectual traditions addressing ?common sense? as a part of the process of judgment, as well as ?common sense? as the knowledge of the community. However, unlike Howard, MacCrimmon is concerned to ask to which community the knowledge attaches, and to test ?common sense? against other criteria for legitimate legal judgment. A third category of writing on the relationship between ?common sense? and law (which often overlaps with the others above), creates a contrast between ?common sense? on one hand, and legal ?theory? or ?expertise? on the other. F.K.H. Mayer, in an article reviewing the role of common sense in legal judgment, argues that resort must be had to both modes of thought when making decisions.110 Other writers clearly privilege one way of thinking, or type of knowledge, over the other. For example, legal scholar Michael Salter addresses his critique to the tendency he sees in legal practitioners to unduly reject the value of ?theory? for legal judgment, due to an uncritical acceptance of ?common sense.?111 He describes common sense as a latent and ?self-concealing? mode of thought that resists the critical attention that law deserves. Like MacCrimmon, Salter argues that the adequate exercise of legal judgment requires not that we adopt or exercise common sense, but that we scrutinize and constrain it. This third approach, which contrasts common sense with ?theory,? reflects those intellectual strains in which ?common sense? is understood as the knowledge or thinking of ordinary people, rather than the knowledge of experts.109 Ibid at 1446.110 Maher, supra note 2.111 Michael Salter, ?Common Sense and the Resistance to Legal Theory? (1992) 5:2 Ratio Juris 212 at 213. 37While these three general categories reflect different priorities and focus on different aspects of law, there is a sense in which all of them present either a critical or a sympathetic view of ?common sense.? Sometimes this can be seen just as much in the language and tone of the writing as in the argument itself. For example, Maher quotes a 1972 speech by Lord Reid (set out at the beginning of this chapter), in which Reid says:We should, I think, have regard to common sense, legal principle and public policy in that order. We are here to serve the public, the common ordinary reasonable man . . . Sometimes the law has got out of step with common sense. We do not want to have people saying: 'If the law says that the law is an ass'.112This kind of language sets us up to think that surely common sense is properly part of legal judgment. In contrast, Salter talks about the use of ?common sense? as obstinately unreflective. He writes: My primary contention is that our possibilities for authentic legal understanding, interpretation and thus thought, can be shown to be retarded to the extent that lawyers - theorists as well as students and practitioners - remain under the unseen dominion of common sense.113This language is much less likely to make us embrace common sense reasoning when thinking about criteria for legal judgment. Some legal writers seem to be defensively attacking those who are unwilling to take the time to understand legal theory. Others accuse lawyers and legal academics of slinging jargon and ignoring the meaning of the law for everyone in the real world. Note that both sides are implying that their opponents are ignorant of something important, and are unable or unwilling to see what is really going on. ?Common sense? in both camps is a rhetorical tool relating to legitimacy and the connections between legal judgment and the rest of the world. Once again, the paradox of common sense (self-evident and inscrutable) makes an 112 Maher, supra note 2 at 600.113 Salter, supra note 111 at 212. 38appearance.This dissertation is situated one step removed from these literatures on ?common sense? and law because I want to step back and remain open to observing as many aspects of ?common sense? as possible; what is missing from the conversation on ?common sense? is an approach that allows us to do more than simply accept or reject ?common sense? as a part of good legal judgment. Like MacCrimmon, I start from a critique of the inequality and marginalization that can come into play when ?common sense? is invoked in legal judgment, and I too see the urgent need to scrutinize the discriminatory and oppressive content and consequences of common sense. However, noting the complex and even contradictory nature of ?common sense,? I insist on the need to remain open to the multiple meanings and consequences of ?common sense.? Those writers who advocate or even privilege the role of common sense also reveal important aspects of the concept that should not be rejected out of hand, but rather subjected to careful scrutiny against the criteria for legal judgment that can respond to the demands of justice. Outline of chaptersMotivated by an appreciation of the political and theoretical consequences of abandoning ?common sense? to theoretical captivity or to the proponents of a conservative majoritarianism, the following chapters seek to generate new ways of thinking about common sense in legal judgment. 39Chapter 2 will describe in detail the research methodology that underlies my substantive arguments. I adopt the methodology Wittgenstein calls ?perspicuous representation,? but understood and modified by the feminist and anti-poverty political commitments that motivate this research. In each of the subsequent substantive three chapters, I will present the work of a single theorist of common sense, and argue that their work allows us to see a particular aspect of common sense. In each chapter I argue that when this aspect of common sense is considered in the context of legal judgment, we learn something specific about legal judgment, and particularly about the relationship between legal judgment and poverty and social justice. This assists us in challenging our captivity to a picture of common sense that is of limited usefulness. Once debate is opened up in this way, we can generate alternative criteria for the use of common sense in legal judgment that are oriented towards the democratic and emancipatory potential of law.Chapter 3 engages with the work of 18th century Scottish philosopher Thomas Reid. Reid's perspective on common sense describes it as a form of knowledge that is based in daily life, and equally accessible to everyone. He argues that the knowledge that people use to ground their judgments in daily life is the same knowledge that grounds other kinds of judgment, such as philosophical judgment. Reid also argues that common sense knowledge is what we use to determine the boundaries of rational debate. Placed in the context of legal judgment, the aspect of ?common sense? that we see in Reid, including the valuation of universality and everyday life, is both helpful and problematic. To explore how this aspect of common sense operates in legal judgment, I read his theory against legal judgments in which judges use the language of 40?common sense? to describe how judges and juries should assess the credibility of witnesses. This is one area of Canadian law in which ?common sense? is frequently invoked, and in which the themes raised by Reid are also at work. As in Reid, this body of law tends to place ?common sense? in opposition to expertise or technical knowledge, and raises many of the same questions about universality, the legitimacy of everyday judgment, and the proper relationship between common knowledge and specialized expertise. When issues of poverty and social marginalization arise, these questions about ?common sense? take on a special importance because of the ways in which ?common? knowledge can be inadequate to the task of judging in this context. Reid's writings bring our attention to how common knowledge and expert knowledge should be approached in legal judgment, as well as how important it is to understand what criteria are used to stake out the boundaries of legitimate debate in law.Chapter 4 is about the work of Antonio Gramsci, the Marxist theorist and political actor who wrote about common sense while imprisoned in Italy in the 1930s. For Gramsci, ?common sense? is a shared conception of the world, constructed through historical experience and relations of social and economic power. Gramsci argues that common sense knowledge has specific, class-contingent content, and is an important component of the political hegemony of dominant classes. At the same time, common sense knowledge helps constitute communities and can be transformed, through critical reflection, into ?good sense,? which can serve to ground progressive social change. The aspect of common sense we see by reading Gramsci concerns its historically contingent nature, the role of political power, as well as the potential and limitations of critical reflection. I explore these themes in legal judgments in which the 41court describes whether and how ?common sense? can be used to justify the infringement of a constitutionally protected right. These judgments are also concerned with questions of power, marginalization, what will count as ?evidence,? and the strengths and weaknesses of critical reflection as a judging practice.Chapter 5 engages with the complex writings of political theorist Hannah Arendt, whose theory of human judgment relies importantly on her idea of common sense. Arendt's approach to ?common sense? describes it as a part of the practice of judgment, in which a judging person imaginatively references the collective views of her or his community when coming to a judgment. The common sense of a community is what enables judgment to become valid beyond an individual, to have legitimate meaning for a community. Arendt also argues that engagement with common sense not only reflects the boundaries of existing communities, but also works to create those communities in the first place. This aspect of common sense shifts attention away from epistemology and bodies of community knowledge, and towards communicability and persuasion. In this context, I engage with legal judgments about how the ?common sense? of individual judges can or should relate to the legal requirements for judicial impartiality. I look specifically at the way judicial subjectivity and the human practice of judgment relate to ?common sense? and to the criteria for legitimate legal judgment.In chapter 6, the conclusion, I reflect on how these different ?aspects? of common sense allow us to see ?common sense? in new light. Following Wittgenstein, I draw these reflections together to create a ?perspicuous representation? of the concept that takes some steps towards 42freeing us from the intellectual ?captivity? created by common sense and its self-referential and self-justifying characteristics. Legal judgment, particularly in the context of economic and social inequality, benefits from these new ways of thinking about common sense and that this engagement helps to generate useful criteria for legitimate and critical invocation of ?common sense? in legal judgment. Common sense, properly invoked, has the potential to open our practices of legal judgment to the complexities of our diverse, unequal society and thereby make legal judgment more responsive to the demands of justice. 43Chapter 2 ? MethodologyWe enter Haymarket Theatre in London114 on March 5, 1736, to see the opening performance of Henry Fielding's satire Pasquin. As we make our way through the boisterous crowd, we are joined by the philosopher Ludwig Wittgenstein, arrived from 20th century Europe. Wittgenstein takes a seat but emits a kind of energetic intensity that makes him seem constantly in motion. The play begins, and the conspiracy to murder Queen Common-Sense, enacted by Law, Physick and Firebrand, unfolds. The traitorous advisors complain about the erosion of their power in the face of common sense. Wittgenstein's eyebrows prick up when Lord Law addresses the power of language to shape the relationship between law, reason, and society115.Law.Thou know'st, my Lord of Physick, I had longBeen privileg'd by Custom immemorial,In Tongues unknown, or rather none at all,My Edicts to deliver thro' the Land;When this proud Queen, this Common-Sense, abridg'dMy Power, and made me understood by all.Phys.My Lord, there goes a Rumour thro' the Court,That you descended from a FamilyRelated to the Queen; Reason is saidT' have been the mighty Founder of your House.Law.Perhaps so; but we have rais'd our selves so high,And shook this Founder from us off so far,We hardly deign to own from whence we came.116At the conclusion of the play, Wittgenstein pulls out a notebook and records a few thoughts before venturing into the crowd to find Fielding himself.114 Haymarket Theatre is in London, England. Built in 1720, it is one of the oldest London playhouses still in use. ?Haymarket Theatre,? Wikipedia, the free encyclopedia (2013), online: <http://en.wikipedia.org/wiki/Haymarket_Theatre> accessed 28 July, 2013.115 Here, and at the beginning of the following chapters on Thomas Reid, Antonio Gramsci and Hannah Arendt, I offer a short fictional vignette in which each of these thinkers attends a performance of Henry Fielding's satire on the life and death of Queen Common-Sense. These imaginative exercises speculate about what these thinkers might have thought or felt or done while watching this production. Their purpose is to invite the reader to begin to play with the notion of perspective, and the idea of looking at one thing from multiple points of view. This idea is at the heart of the methodology described in this chapter, and employed in the following chapters. I hope these vignettes also provoke the reader to think critically about whether such acts of imagination are legitimate or fruitful, and if so, in what way.116 Fielding, supra note 3 at IV.1. 44IntroductionThe methodology of a research project is the framework adopted for asking and answering questions. It includes the methods used for investigating ? the ?how? of the research. Methodology describes how sources are chosen, what criteria are used for making assessments, and what concepts are used to organize the project. ?Methodology? also refers to the ?why? of a research project. It describes the researcher's motivations, how the researcher is situated in relation to the content, and how the researcher will engage with her or his own social situation, value judgments, and political commitments. The ?how? and ?why? of a project are necessarily intertwined.117 That is, the motivations for a study will help structure how that study is conducted; similarly, certain methods of research are amenable to answering some kinds of questions and not others.In my view, it is imperative to be as transparent as possible about the ?why? and the ?how? of research, and about the specific way they relate in any given piece of work. This approach generates a very demanding approach to ?methodology;? in the context of complex social phenomena like poverty, justice and legal judgment, this is entirely appropriate. In this chapter I set out the methodological and theoretical tools I rely on to explore ?common sense? and legal judgment, as well as the political choices that ground my value judgments throughout the dissertation.117 The interconnection of these issues is nowhere more apparent than in the history of the study of indigenous peoples by non-indigenous peoples. See: Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (London & New York: Zed Books, 2005). 45Nancy Fraser offers the following definitions of a critical, feminist theory:[T]here is no philosophically interesting difference between a critical theory of society and an uncritical one. But there is a political difference....A critical social theory frames its research programme and its conceptual framework with an eye to the aims and activities of those oppositional frameworks with which it has a partisan though not uncritical identification. The questions it asks and the models it designs are informed by that identification and interest.......one of the standards for assessing a critical theory once it had been subjected to all the usual tests of empirical adequacy, would be: how well does it theorize the situation and prospects of the feminist movement? To what extent does it serve the self-clarification of the struggles and wishes of contemporary women?118My works seeks characterization as ?critical? and ?feminist.? I take lessons from Fraser's approach, especially the basic notion that critical feminist research is ultimately accountable, not only for its theoretical consequences but for its political consequences, and its ability to assist in the self-knowledge and political work of social movements seeking justice. However, unlike Fraser's work on the meaning of justice and gender equality, this dissertation does not directly address the ?situation and prospects? of the feminist movement, or the questions of justice that surround the persistence of poverty. Rather, these substantive concerns form the motivation for my study, and in that role, structure my overall project and provide the criteria for determining its value. On this foundation built with concepts from critical and feminist theory, I work to explore ?common sense? in relation to what it means to practice good legal judgment in a world of marginalization and inequality. 118 Fraser, ?What's Critical,? supra note 5 at 31. Fraser's views on this matter have evolved.. For a more contemporary statement, see Fraser, ?Scales of Justice,? supra note 5 at 144. There, she says: ?Perhaps I could summarize [the role of the critical theorist] like this: a situated thinker, with determinate partisan identifications, who nevertheless cultivates the practice of relatively distanced reflection aimed and disclosing, and fostering, possible links between existing social struggle and historically emergent possibilities for emancipation.? 46The problem of common sense in legal judgment is entangled in questions about the relationship between knowledge and power, the relationship between communities of people and the law that governs them, and the political consequences of engaging in different kinds of judging practices. The dilemmas of common sense reach into many aspects of individual and community life. Therefore, the problem of ?common sense? in legal judgment must be addressed with methodological tools that can take account of this complexity, including the influence of history, context and power. Further, the question of common sense in legal judgment compels consideration of a number of issues that are somehow slippery or circular or difficult to pin down definitionally. For example, in the introductory chapter above I sketched out the idea of ?common sense? as both self-evident and inscrutable. ?Common sense? is a phrase containing multiple layers of self-reference. The word ?judgment? is also used in multiple and overlapping ways throughout this dissertation and in the works I engage with. At the same time, I rely quite heavily on the notion of self-reflection as a way to negotiate power imbalances and the boundary between expert and non-expert knowledges. Therefore, it is necessary to have access to theoretical frameworks that can respond to these instances of slippage and self-reference in a productive way. The greatest strength of the methodological approach I adopt here is that it is oriented towards a broad and open analysis, allowing different kinds of questions to be asked without constricting their form or substance from the outset. Such an approach may not provide any clear answers (or indeed any answers at all) to the questions it makes possible, but instead seeks simply to identify and articulate a greater diversity of questions. My methodological task is to resist the tendency for 47common sense to be self-justifying, and instead break open the discussion and allow new approaches to common sense to emerge.The purpose of this opening, of finding ways to articulate new questions about common sense, is to find new ways of thinking about and using common sense that can improve the quality of legal judgment when poverty, equality and marginalization are at issue. Because of this substantive concern with poverty and justice, the methodology I rely on must also provide the criteria for determining when common sense works to ameliorate good legal judgment, and when it works to impede it. I need ways to articulate and justify my assessment of different understandings of ?common sense? and different practices of legal judgment. To respond to these requirements, this dissertation draws on methodological tools from three main sources, each of which I will address in detail in this chapter. First, I view the whole problem of common sense in legal judgment through lenses I have acquired from feminist theorists. Feminist and other critical insights about law, politics and justice structure not only how I investigate this problem, but also why I identify it as a problem in the first place. A feminist approach to law and justice provides me with the substantive notion of justice that motivates this study, and generates the criteria that I use to assess the adequacy of our practices of legal judgment. Feminist and other critical thinkers also provide guidance on the interpretation of texts, and shape my interpretation of other thinkers. 48Second, in order to address the particular capacity of ?common sense? to insulate itself from scrutiny, I turn to a methodology described by Ludwig Wittgenstein. This approach, ?perspicuous representation,? is an apt one for my study of ?common sense? because it is oriented towards breaking out of entrenched ways of thinking, and generating new ways of using language in our social practices. Wittgenstein argues that when we are presented with theoretical difficulties, this is sometimes because we are being held ?captive? to a particular ?picture.?119 He argues that it is useful to approach problematic concepts in a manner that allows us to see something about the concept that we had been missing before, and he describes this as coming to see a new ?aspect? of the concept. I make use of all of these concepts, and adopt this method of ?perspicuous representation? as the overall framework for this dissertation. In each of the chapters addressing Thomas Reid, Antonio Gramsci and Hannah Arendt, a different ?aspect? of common sense comes to light, as I work to generate a ?perspicuous representation? of common sense in legal judgment.Third, in my investigation of each ?aspect? of common sense, I place the writings of the three theorists (Reid, Gramsci, and Arendt) in conversation with legal judgments of the Supreme Court of Canada. Throughout, my approach is very much directed to my own questions and concerns about poverty and about practices of legal judgment. In this respect, it is worth noticing that in addition to its primary connections to Wittgenstein and feminism, my methodology also has some similarities to the approaches employed in the hermeneutical tradition of interpretation as exemplified in the work of Hans-Georg Gadamer120 and Charles 119 See discussion beginning at p. 62 below.120 Hans-Georg Gadamer, Truth and Method, 2nd, rev. ed. (London; New York: Continuum, 2004). 49Taylor.121 In the course of each chapter, I approach the theoretical texts (by Reid, Gramsci and Arendt) from more than one direction. On one hand, I take the theorist's approach to common sense as I understand it, and see how it fares as a way to understand common sense in legal judgment. Does it help us think of good practices of legal judgment? What does it explain or fail to explain about legal judgment? On the other hand, I also take what is learned in this discussion and use it to critique or describe the limitations of the theorist's approach, or past interpretations of that approach. Thus, while taking seriously the social and discursive context from which each thinker's idea of common sense emerges, I interpret and develop each approach to common sense in light of my own, feminist, concerns about equality in contemporary Canadian law and society. The remaining parts of this chapter will do the following. First, I make two brief comments about the words ?common sense? and ?judgment? and the way I use them in this dissertation. Second, I describe in more detail the feminist approaches and concepts that motivate and structure my research. Third, I re-articulate my research problem in terms of Wittgenstein's concepts of ?pictures? to which we might be held ?captive.? And, finally, I will set out the components of the method of ?perspicuous representation? as I pursue it in this dissertation, including some challenges, elaborations and extensions grounded in feminist theory.121 Charles Taylor, ?Gadamer and the Human Sciences? in Robert J Dostal, ed, The Cambridge Companion to Gadamer (Cambridge University Press, 2002) 126 [?Gadamer?]. 50A note on languageFor reasons that I address below, careful attention to the exact words of a text is important for my methodological approach. Exploration of the multiple meanings and uses of words forms the content of this project as a whole and will be addressed in detail in terms of both methodology and the substance of this project. The key phrases ?common sense? and ?judgment? are used in different ways in various contexts and by different writers. Thus, even before embarking on this journey, a few introductory comments about these phrases are in order.?Common sense?The primary source material for this dissertation consists of scholarly writings and legal judgments that explicitly invoke the phrase ?common sense.? In English, the words ?commonsense? and ?commonsensical? also appear, and I have treated these words as intimately related forms of the phrase ?common sense.? For example, when Norman Finkel discusses ?commonsense justice,? I have allowed this to count towards the discussion of ?common sense.?122 Thomas Reid (discussed in chapter 4), writing in English, uses the exact phrase ?common sense.? The work of Antonio Gramsci (discussed in chapter 5) was translated into English from the 122 Finkel, supra note 99. 51original Italian by Quentin Hoare and Geoffrey Nowell Smith.123 In translation, Gramsci uses the phrase ?common sense? as well as the phrase ?good sense.?124 In chapter 5, I explore Gramsci's treatment of both ?common sense? and ?good sense? as aspects of the phrase ?common sense.?In chapter 6, I engage with the work of Hannah Arendt. Arendt writes in English, and uses the exact phrase ?common sense.? However, Arendt is tracing a different intellectual trajectory of the concept, invoking the Latin phrase sensus communis, which she sometimes calls ?common sense?125 and other times calls ?community sense,?126 when she wants to focus attention on the special meaning she attributes to it. ?Judgment,? ?judging? and ?judges?This dissertation takes a broad approach to the task of understanding legal judgment. In my view, it is useful to understand legal judgment as one form of a larger human practice, which would also include political judgment, moral judgment and aesthetic judgment. I discuss the 123 Antonio Gramsci, Selections from the Prison Notebooks, translated by Quentin Hoare & Geoffrey Nowell Smith (New York: International Publishers, 1971).124 In the introduction to the chapter on the ?Study of Philosophy,? Hoare and Nowell Smith write: ?Essential to Gramsci's approach is the notion that an intellectual revolution is not performed by simply confronting one philosophy with another. It is not just the ideas that require to be confronted but the social forces behind them and, more directly, the ideology these forces have generated and which has become part of of what Gramsci calls 'common sense.' This last term is used by Gramsci to mean the uncritical and largely unconscious way of perceiving and understanding the world that has become ?common? in any given epoch. (Correspondingly he uses the phrase 'good sense' to mean the practical, but not necessarily rational or scientific attitude that in English is usually called common sense.)? Ibid at 322.125 Hannah Arendt, Lectures on Kant?s Political Philosophy (Chicago: University of Chicago Press, 1982) at 66 [?Lectures?].126 Ibid at 70?1. 52substantive consequences of adopting this view in other parts of the dissertation, especially chapter 5 on Hannah Arendt. But for now, I want to draw the reader's attention to the way this approach affects my choice of language to describe legal decision-making. First, the decision to understand legal judgment as a form of a larger human practice of judgment means that I use the language of ?judgment? and ?judgments? rather than other related terms such as ?adjudication,? ?decisions,? or ?findings,? when describing what judges in a court of law do and how it may relate to common sense. This invites certain slippage between the noun ?judgment? (which in legal parlance can be used to refer to the written reasons of a court in a given case), and the noun ?judgment,? meaning the practice of judging in general. A similar slippage can occur between the verb ?to judge,? meaning to engage in the act of judgment, and the noun ?judge,? meaning a person who judges. I think these potential slippages and overlapping meanings are productive because they provoke reflection on what legal judgment is all about. Second, talking about ?judgment? as a general human practice means that when I want to talk specifically about what happens in a court of law, I talk about ?legal judgment,? or sometimes about a ?legal judge.? This is a way of making my claims narrower and more specific. At the same time, I continue to use very general language about ?judgment? no matter what kind of decision-making is going on in a legal case. For example, I describe it as an act of ?judgment? when judges make findings of fact, when they offer interpretations of laws, and when they make rulings on the outcome of disputes. All of these forms of reasoning could be mapped differently in relation to other kinds of judgment (such as, for example, moral judgment). However, I argue 53that they all engage this larger practice of judgment, which is about the evaluation of a particular fact, law or situation. And depending on the circumstances, they may all engage with ?common sense.? Therefore, in this investigation of ?common sense? in legal judgment, it is useful to adopt this very broad view to see the various points at which common sense comes into play, and how this affects how legal judgment works.Finally, taking a broad view of ?judgment? has methodological implications by the way legal judgment is set alongside other forms of judgment. Understanding judgment as a human practice that transcends the boundaries of subject-matter provides opportunities for interdisciplinarity ? when literature from other areas may help illuminate the meaning of judgment in law. Throughout this dissertation, I rely on theorists from a wide range of disciplines, both methodologically and substantively.Feminist theory and criteria for judgmentFeminist theory is the project of theorizing the experiences of women and the inequalities and oppressions women experience through the operation of overlapping social phenomena including gender, race, class, indigeneity, ability and sexuality.127 Feminist theory aims to 127 Within feminist theory there are large literatures dealing with the question of how best to understand the relationship between different social categories and different forms of oppression. Influential concepts developed for grappling with these issues include the notion of ?intersectionality? (Kimberle Crenshaw, ?Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color? (1991) 43:6 Stan L Rev 1241. I take the general approach that no form of oppression can be understood in isolation from the others. See: Davina Cooper, Challenging Diversity: Rethinking Equality and the Value of Difference (Cambridge: Cambridge University Press, 2004); Dua & Robertson, supra note 82; Fraser, ?Scales of Justice,? supra note 5; Vanessa E Munro, ?Resemblances of Identity: Ludwig Wittgenstein and Contemporary Feminist Legal Theory? (2006) 12:2 Res Publica 137; Iris Marion Young, Intersecting Voices: Dilemmas of Gender, 54provide theoretical resources that are useful in the work of social movements.128 Drawing on diverse theoretical frameworks, social experiences and political orientations, feminist theorists ask questions about gender and inequality in relation to a host of issues, critiquing and deconstructing existing intellectual traditions as well as offering reconstructed alternative ways of thinking and knowing.129 Feminist concepts and issues of gender are not my explicit subject matter, but they form the underlying framework that affects how I think about my research problem as well as the methodology I use to explore my research materials. Thus, although this dissertation is not substantively ?about? questions of gender and sexism, it is imbued with normative judgments, political priorities and theoretical attitudes that find their home in feminism. The category of ?feminism? is a very broad one, encompassing a large range of theoretical perspectives and political priorities. My own specific feminism highly values theoretical perspectives that include a commitment to equality, attention to the intersection of different axes of inequality, respect for social difference without oppression, and a skeptical attitude towards the certainty or homogeneity of social categories.130 The feminist theorists that I rely on this dissertation represent a diverse set of approaches and are invoked for different purposes throughout the work, as explained below. All of them assist me, in some way, in attending to these feminist values and their consequences for practices of legal judgment.Political Philosophy, and Policy (Princeton, N.J.: Princeton University Press, 1997).128 See Fraser, ?What's Critical,? supra note 5.129 For a sense of the range of perspectives in feminist political theory, see ?eyla Benhabib & Drucilla Cornell, Feminism As Critique: On the Politics of Gender (Minneapolis: University of Minnesota Press, 1987).130 Examples of different kinds of feminist legal scholarship that embody these judgments and values include Cooper, ibid; Williams, supra note 78. 55As mentioned in the introductory chapter, feminist and anti-poverty political commitments and theoretical frameworks provide the framework against which common sense emerges as a problem for legal judgment and for justice. This Ph.D. project as a whole arose out of my (feminist) reactions to the Gosselin case, and a sense that the case was symptomatic of as well as contributing to injustices of poverty and discrimination in Canada. The Gosselin case showed the failure and culpability of our public institutions in relation to the injustices of deprivation and exclusion visited on young women living in poverty in our wealthy and democratic society. Feminist theories are directly concerned with questions of gender and of sexism, and these questions are an essential aspect of my discussion of justice. But in order to address gender oppression, it is necessary to investigate the ways in which gender oppression manifests in social life; in my view, feminism necessarily engages with poverty when it addresses gender. Consider, for example, the way women disproportionately experience poverty and experience gendered harms arising from poverty. Thus, ?poverty? is about more than income, it is also about gender. Moreover, ?feminism? is about more than gender, it is also about challenging poverty and injustice in general. My reflections on the Gosselin case, on practices of legal judgment in general, and the role of ?common sense,? rest on a form of feminism in which all of these issues ? gender discrimination, poverty, exclusion ? are relevant for thinking about justice. Specifically, I rely on the multi-faceted concept of ?justice? developed by critical feminist political theorist Nancy Fraser.131 Fraser argues that justice requires equality across three 131 Fraser, ?Scales of Justice,? supra note 5; Fraser & Honneth, ?Redistribution or Recognition,? supra note 5; Fraser, ?Rethinking the Public Sphere,? supra note 5; Nancy Fraser, ?Mapping the Feminist Imagination: From 56aspects of collective life: justice requires economic redistribution, cultural recognition and political representation. This concept of justice is useful for thinking about the injustices of poverty specifically because it can identify the many ways that experiences of poverty can relate to criteria for justice. For example, a young woman living on social assistance in Quebec in the 1980s would experience an unjust distribution of resources, given her context in a wealthy society. Justice calls for redistribution. As evidenced by the debates around the Gosselin case, she would also experience stereotyping about the laziness of youth on welfare, and the moral blameworthiness of women who are ?dependent? on the state.132 A young woman in these circumstances might also experience social exclusion and barriers to social participation (it is not possible to go to the movies, or invite friends for lunch, or attend events requiring childcare, when there is no money to pay for these things). Justice calls for changes in cultural recognition, respect and social status. Finally, a young woman in Ms. Gosselin's circumstances might experience inequality in political participation through her marginalization in public life and the invisibility of her perspective in the political institutions that claim to represent her. Justice calls for parity of political participation and representation in public life. 133It is against this multi-faceted understanding of justice that the invocation of ?common sense? in legal judgment acquires its significance as a subject for investigation. This understanding of justice also provides the ultimate justification for the normative judgments I make about legal Redistribution to Recognition to Representation? (2005) 12:3 Constellations: An International Journal of Critical & Democratic Theory 295.132 For a compelling geneaology of the concept of ?dependency,? particularly in the U.S. context, see: Nancy Fraser & Linda Gordon, ??Dependency? Demystified: Inscriptions of Power in a Keyword of the Welfare State? (1994) 1 Social Politics 4.133 Other critical, feminist and social justice theorists take issue with Fraser's approach. For example, see: Fraser & Honneth, ?Redistribution or Recognition,? supra note 5. 57judgment: good legal judgment is a condition of just outcomes. However, my approach to the question of legal judgment is primarily a procedural one. I focus on the ways in which feminist theory provides criteria for evaluating practices of judgment in and of themselves. The concepts I use to make judgments about what constitutes good legal judgment arise from the feminist framework that motivates my research. In addition to the understanding of justice described above, three basic concepts are especially important in this regard: the importance of practice, the value of inclusivity, and attention to the relationship between knowledge, power, and social context. I address each of these briefly below. First, feminist approaches are oriented to practice.134 The idea of practice has different meanings and plays different roles for different feminist approaches.135 Here, I use the term in a very general way to describe the orientation towards lived experience as both the subject and goal of feminist theorizing. This includes the approach advocated by Fraser, above, in which theoretical projects ultimately find their measure in their capacity to support the work of actual social movements; they are directed to social practice. Some feminist theorists are also interested in ?practice? in a more quotidian way, as describing the daily practices that make up individual and social life. For example, in her analysis of the relationship between equality and diversity, feminist legal scholar Davina Cooper argues that for transformative politics to take effect, egalitarian concepts must not only compel critical reflection, but also must take root in the unreflective practices we are always engaged in; to generate ?counter-normative community 134 See, for example, Dorothy E Smith, The Everyday World As Problematic: A Feminist Sociology (Toronto, ON: University of Toronto Press, 1987).135 The concept of practice or ?praxis? also appears with its specifically Marxist connotations in the work of Antonio Gramsci, considered in chapter 4. 58pathways.?136 The need to think about daily life practices is a feminist concern, and helps to show why ?common sense? is worthy of critical attention.The second general concept from feminist theory that informs this dissertation is that of inclusion, and the need to challenge political and conceptual categories that make claims about universality. Some of the characteristics of ?common sense? as a concept ? its purported universality, its ability to make both factual and normative claims about knowledge, its rhetorical power ? are of central concern to feminist thinkers wanting to address the relationship between our ways of thinking and the injustices we experience and observe in the world. In particular, feminist thinkers from various disciplines have crucially identified how claims about universality and commonality ? claims that sit at the heart of ?common sense? as an idea ? can actually function to exclude and marginalize. For example, in her compelling and influential critique of the notions of impartiality, reason and public life as traditionally understood in Western political philosophy, feminist political theorist Iris Marion Young argues that the claims of universality contained in these concepts have been an important part of the theoretical and practical exclusion of some groups, including women, from public life.137 The idea of the transcendent, unified public sphere attains this unity because it excludes certain aspects of our lives (our embodied, affective selves), as well as the concrete exclusion of certain groups.138 She argues that ?an emancipatory conception of public life can best ensure the inclusion of all 136 Cooper, supra note 127. Legal theorist Boaventura de Sousa Santos also frames some of his arguments about how to approach legal pluralism as a project to create a ?new legal common sense.? Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization And Emancipation (London: Butterworths, 2002).137 Iris Marion Young, ?Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory? in Feminism as Critique: On the Politics of Gender (Minneapolis: University of Minnesota Press, 1987) 57.138 Ibid at 76. 59persons and groups not by claiming a unified universality, but by explicitly promoting heterogeneity in public.?139 Young's critique of ?impartiality? gives a sense of why a feminist lens provides me with both political and conceptual reasons to be critical of ?common sense? as a part of legal judgment, and provides criteria for inclusiveness that can be used in relation to many substantive issues.The third general concept from feminist theoretical literatures that plays an important role in structuring this dissertation is that idea of power.140 Feminist theorists have engaged with different conceptions of ?power,? with different theoretical and political consequences.141 The concept of ?power? is not a key analytical category that I explore in detail. Rather, I retain the term in order to find a way to talk about social and political relations of inequality, particularly in relation to claims of knowledge. Feminists thinkers have shown how claims about knowledge can be intimately related to questions of power, social hierarchy and group interests.142 Following from this basic insight, feminist thinkers have generated a range of compelling theoretical concepts, two of which play an important role in my methodology. I rely on the notion of ?reflexivity? or the idea that it is possible to bring critical reflection to bear on one's own social location and relative power, and thereby to make more transparent the 139 Ibid at 59. For a different but related view, see: Seyla Benhabib, Democracy and Difference (Princeton: Princeton University Press, 1996); Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton: Princeton University Press, 2002).140 For a wide-ranging discussion of different conceptions of ?power? and the relationship to politics, see Steven L Winter, ?The ?Power? Thing? (1996) 82:5 Va L Rev 721.141 For a descriptive overview of feminist approaches to the concept of power, see: Amy Allen, ?Feminist Perspectives on Power? in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy, Spring 2013 ed (2013), online: <http://plato.stanford.edu/archives/spr2013/entries/feminist-power/>.142 Sandra Harding, Discovering Reality: Feminist Perspectives on Epistemology, Metaphysics, Methodology, and Philosophy of Science, 2nd ed. ed (Dordrecht [Netherlands]; Boston Mass.: Kluwer Academic Publishers, 2003). 60relationship between power and knowledge in any given context.143 Critical reflection is important for this dissertation as a matter of methodology, and as a substantial part of the arguments I make about ?common sense? in legal judgment. Attention to power also relates to the way the topic of ?common sense? itself is related to social power relations. ?Common sense? tends to take up space (or claims to take up space) right in the centre of social knowledge. Therefore, examining ?common sense? requires methodological tools that can attend to questions about knowledge that is either ?inside? or ?outside? the realm of dominant norms. For this purpose, I engage with the notion of ?marginality? as developed by feminist and critical race theorists.144Notably, each of these feminist concepts or themes has a particular, nascent link to ?common sense,? once again tracing the origins of my research project. Each of these concepts guides my judgment throughout the dissertation, including my judgments about choosing and interpreting sources; thus, these concepts have both a substantive and a methodological role. Taken together, these concepts describe the lens that I use to evaluate legal judgment, to assess scholarly and legal texts throughout the dissertation, as well as the lens that I ultimately use to assess the success of my own project.143 For two very different but compelling example of theorists rigorously working through the demands of critical self reflection, see: Brenda Cossman, ?Turning the Gaze Back on Itself: Comparative law, Feminist legal studies, and the Postcolonial Project? (1997) 2 Utah L Rev 525; Jennifer Nedelsky, ?Dilemmas of Passion, Privilege and Isolation: Reflections on Mothering in a White, Middle Class Nuclear Family? in Julia E Hanigsberg & Sara Ruddick, eds, Mother Troubles: Rethinking Contemporary Maternal Dilemmas (Beacon Press, 1999).144 See discussion at page 94 and following. Patricia Hill Collins, ?Learning from the Outsider Within: The Sociological Significance of Black Feminist Thought? in Mary Margaret Fonow & Judith A Cook, eds, Beyond Methodology: Feminist Scholarship as Lived Research (Bloomington: Indiana University Press, 1991) 35; bell hooks, ?Choosing the Margin as a Space of Radical Openness? in Ann Garry, ed, Women, Knowledge, and Reality: Explorations in Feminist Philosophy, 2nd ed. ed (New York: Routledge, 1996) 48; Williams, supra note 78. 61The problem of common sense in Wittgensteinian termsThe task of this dissertation is to open ?common sense? to the critical scrutiny required by the feminist and anti-poverty approaches described above, including reference to inclusion, power, and the realities of daily living. Given the aims of my project, encountering Ludwig Wittgenstein's methodology of ?perspicuous representation? proved to be a serendipitous discovery. Wittgenstein's approach (with some modifications) serves me well methodologically because it is directed at precisely the kind of impasse that can occur when talking about ?common sense.? This approach also requires constant attention to the relationship between meaning and context, and the role of political choice in grounding judgment. These connections are essential for my research, and Wittgenstein provides a way to articulate how and why they should be explored. In this section, I will explain the Wittgensteinian concepts I adopt to characterize the problem of ?common sense,? including the notions of ?pictures? to which we might be held ?captive,? and seeing things from a new ?aspect.? I argue that we are, to some extent, held ?captive? by a ?picture? of ?common sense,? and that this constrains our understanding of ?common sense? in a manner that undermines the quality of practices of legal judgment. In the following sections, I re-cast the dilemma of ?common sense? (self-evident and inscrutable) in Wittgensteinian terms and show how this shapes the methodological structure of my dissertation and the kind of response I provide to challenge our captivity. 62?Captivity? to a ?picture?Wittgenstein's ideas of ?pictures? and ?captivity? are developed in the context of his philosophy of language. In his earlier writings, Wittgenstein developed a philosophical ?system? for thinking about language that is grounded in an underlying commitment to formal logical analysis. According to this system, in order to have meaning, language must conform to the constraints of logic and it must refer to something in the world. Language is a system of signs in which meaning comes from the correspondence of a word or proposition with the thing it signifies.145 Later in life, Wittgenstein radically changed his view about the usefulness of this perspective on language. He came to think that understanding language as a system of signs actually works to impede, rather than facilitate, understanding of important aspects of human life. In later works such as On Certainty146 and Philosophical Investigations,147 Wittgenstein argues that philosophers' view of language is actually counter-productive in relation to the real questions of philosophy.148 In this later work, Wittgenstein turns his attention to the problem of intellectual questions that seem to be caught up in contradictions, or in a repeating loop of justification that no longer satisfies. He argues that these problems are the ones that are the most philosophically pressing, 145 See Anat Biletzki & Anat Matar, ?Ludwig Wittgenstein,? The Stanford Encyclopedia of Philosophy, Summer 2011 ed., online: <http://plato.stanford.edu/archives/sum2011/entries/wittgenstein/>.146 Ludwig Wittgenstein, On Certainty (Maldon, MA Blackwell Publishing, 1975) [?OC?].147 Ludwig Wittgenstein, Philosophical Investigations (Malden, MA: Blackwell Publishing, 1953) [?PI?].148 Ibid, sec 38. 63but, ironically, are also the ones that we are least capable of exploring using a model of language as a system of signs. But, he says, we often seem to be unable to get away from this language model. To describe this problem, Wittgenstein uses the language of ?captivity? to a ?picture.? We are held captive to a picture of language as a system of signs. Further, this ?picture? itself is embedded in our language, and since we use language to explain our thoughts, getting outside it is difficult or impossible:A picture held us captive. And we could not get outside it, for it lay in our language and language seemed to repeat it to us inexorably.149In this passage, Wittgenstein is talking about the ?picture? of language that many people (including philosophers) hold, in which language is understood as a system of signs or symbols, and it is this ?picture? (a ?picture? of language) that Wittgenstein is interested in exploring and challenging.150 Thus, in his later works, Wittgenstein starts anew with a different understanding of language in which meaning is based in use and context, and he argues that this approach can go further in understanding why contradictions or repeating loops occur, why they are troubling, and ultimately why they cannot (and need not) be resolved in order for philosophical questions to be addressed. This is the heart of Wittgenstein's enduring contribution to philosophy of language. However, the concept of ?pictures? and the possibility of being held ?captive? are important ideas in their own right, useful not only in the context of language and meaning, but in any question about social life. For example, political philosopher James Tully argues that we are 149 Ibid, sec 115.150 See Hanna Fenichel Pitkin, Wittgenstein and Justice: On the Significance of Ludwig Wittgenstein for Social and Political Thought (Berkeley: University of California Press, 1972) [?Wittgenstein and Justice?]. 64held captive to a picture of political life in which ?our way of political life is free and rational only if it is founded on some form or other of critical reflection.?151 In order to challenge our captivity to this picture, Tully explores two possible candidates for this foundational critical reflection: the justificational form advanced by Jurgen Habermas, and the interpretive form advanced by Charles Taylor. Tully writes that this exploration, using Wittgenstein's methodological approach, allows us to see ?that no form of critical reflection can (or need) play the [foundational] role presupposed for it in this discussion.? The discussion challenges our captivity to the picture. Feminist political theorist Linda Zerilli also invokes the concepts of ?pictures? and ?captivity? in her assessment of feminist critiques of ?the category of women.? Zerilli argues that such critiques are held captive to a picture of politics in which it is possible to make political claims that correspond to the empirical reality of differences, and that never exclude. Zerilli argues that taking a Wittgensteinian approach demonstrates that Politics consists precisely in the making of claims, which, being claims, are inevitably partial and thus exclusive.....That the claim ?we women demand x? excludes some women turns not on the theoretical insight (in the philosophers's study) into the exclusionary character of the category of women but rather on the political character of making claims (in a public space.)152Zerilli's Wittgensteinian exploration of the system of sex differences and the nature of political action in context challenges our captivity to a certain picture of politics.151 James Tully, ?Wittgenstein and Political Philosophy: Understanding Practices of Critical Reflection? in Cressida Heyes, ed. The Grammar of Politics: Wittgenstein and Political Philosophy (Ithaca: Cornell University Press, 2003) at 17 [?Wittgenstein and Political Philosophy?].152 Linda M G Zerilli, ?Doing without Knowing: Feminism?s Politics of the Ordinary? in Cressida Heyes, ed, The Grammar of Politics: Wittgenstein and Political Philosophy (Ithaca: Cornell University Press, 2003) at 148 [?Doing without Knowing?]. 65A further example of using Wittgenstein's concepts of ?pictures? and ?captivity? to generate a theoretical methodology can be found in the work of feminist philosopher Cressida Heyes. In her work on the relationship between the body and the self, Heyes argues that we are held ?captive? to related ?pictures? of power and of the body that ?mark significant constraints on our ability to imagine alternative ways of caring for ourselves and others, hence on our self-government, and ultimately on our freedom.?153 Heyes draws on Wittgenstein and also Foucault to challenge this captivity.154Like Tully, Zerilli and Heyes, I adopt Wittgenstein's notions of ?pictures? and ?captivity,? taking these concepts away from the question of language in order to apply them in a different context. This dissertation touches upon different ?pictures? of the world, including pictures of poverty and pictures of legal judgment. However, my direct subject is our picture of ?common sense,? and the usefulness of this picture for making judgments about law and social justice. I am taking Wittgenstein's concept of captivity to a picture and applying it to the question of common sense.For Wittgenstein, a ?picture? of something is a system of inherited judgments about that thing. It is a system that we are always already enmeshed in, and guides our subsequent judgments.155 In addition to a picture of language, Wittgenstein also discusses other examples of ?pictures,? 153 Cressida J Heyes, Self Transformations (Oxford University Press US, 2007) at 15 [?Self Transformations?].154 Heyes writes: ?Both Wittgenstein and Foucault urge upon us ways of thinking ourselves differently, in part because, they each believe (in rather different contexts), our current habitual perspectives make us contingently unfree.? Ibid at 17.155 ?We do not learn the practice of making empirical judgments by learning rules: we are taught judgments and their connexion with other judgments. A totality of judgments is made plausible to us.? Wittgenstein, ?PI,? supra note 147, sec 140. 66including a scientific picture of knowledge as well-supported hypotheses, and a picture of human societies as occupying positions on an evolutionary scale of development.156 He also talks about ?the picture of the earth as a ball floating free in space and not altering essentially in a hundred years...?157 Our ways of talking and thinking are structured and given meaning by the pictures we hold.Wittgenstein's use of a visual metaphor is significant here; by describing it as a ?picture,? Wittgenstein helps us see how a system of judgments can form a total backdrop to our thinking about something, and how our inherited beliefs are a necessary context for everything we say and do. Talking about ?pictures? also reinforces the sense that the context for judgment is a kind of construct, rather than, for example, some kind of unmediated ?reality.?According to Wittgenstein, ?pictures? are inherited through our language. Pictures are embedded in our grammar, analogies and metaphors.158 As such, pictures form the background against which we think and act, but we are often unconscious of them. The way we think, talk and act is structured and constrained by the ?picture? that forms the context for our practices.159 However, a picture is not only a constraint on the exercise of judgment. Rather, a picture forms 156 David Owen, ?Geneaology as Perspicuous Representation? in Cressida Heyes, ed, The Grammar of Politics: Wittgenstein and Political Philosophy (Ithaca: Cornell University Press, 2003) 82 at 83.157 Wittgenstein, ?OC,? supra note 146, sec 146?7. See also Owen, supra note 156 at 83.158 An exploration of the role of metaphor in relation to language, thought and action is undertaken in George Lakoff and Mark Johnson, Metaphors We Live By (Chicago: University of Chicago Press, 1980).159 Note that ?pictures? have many relationships to judgment. Pictures are made up of inherited judgments about something. At the same time, pictures provide the context against which we make other judgments. For Wittgenstein, judgments are always based on other judgments. 67the context in which thinking and arguing become possible, and is thereby enabling of judgment. A picture is the background against which thinking and talking make sense at all. Wittgenstein writes: All testing, all confirmation and disconfirmation of a hypothesis takes place already within a system. And this system is not a more or less arbitrary and doubtful point of departure for all our arguments: no, it belongs to the essence of what we call an argument. The system is not so much the point of departure, as the element in which arguments have their life.160In social or political terms, a picture of the world acquires its significance by creating the possibility for judgment and communication, as well as the limitations of judgment and communication. Political philosopher David Owen relates this to a kind of agency or self-government. He argues that acquiring a picture of the world ?enables us to make sense of (and hence to experience) ourselves as agents in the ways that matter to us.?161However, the enabling potential of ?pictures? is compromised when we find ourselves unable to reflect on or revise the picture we have. It may become so embedded in our analogies, metaphors and other ways of thinking that we lose sight of the fact that it is, indeed, a ?picture? rather than direct experience of an objective world.162 We lose sight of the fact that the picture itself can be subject to evaluation and revision.163 In these circumstances, the constraints of a picture appear difficult or impossible to overcome. Here, we not only have a picture, a system of inherited judgment about something, we are held captive to that picture. 160 Wittgenstein, ?OC,? supra note 146, sec 105.161 Owen, supra note 156.162 Ibid at 85.163 Ibid at 84?85. 68In Wittgenstein's own work, he was concerned with our captivity to a picture of language as a system of signs, in which meaning can be found by determining the correct link between a word and the thing that it signals. Wittgenstein argues that most people have this ?picture? of language. However, most people also notice that the meaning of words and phrases changes according to context, and that most of the time this causes no problem for understanding and communication. If language is a system of signs, this should not be the case; experience contradicts the picture. But the picture is held so deeply that instead of rejecting it, we try to accommodate the diverse meanings we encounter in practice by creating definitions with inherent and unresolvable internal tensions or contradictions. Eventually, these definitions no longer address the problems that led us to ask the question in the first place. We are not satisfied, but we do not know how to move forward ? we are held captive by our picture of language as a system of signs.Captivity to a picture results in our being able to see only one aspect of something (some commentators thus use the language of ?aspectival? captivity)164. Wittgenstein again uses visual metaphors to explain his concept of an aspect.165 He talks about ?seeing-as,? ?aspect blindness,? and ?the dawning of an aspect.?166 He also uses visual imagery and diagrams to illustrate, including a figure known as the ?duck-rabbit,? a drawing that can be ?seen as? either a duck or a rabbit.167 164 Owen, supra note 156.165 Wittgenstein's concept of ?aspect? is discussed further below at p. 85 and following.166 Jonathan Havercroft, ?On Seeing Liberty As? in The Grammar of Politics: Wittgenstein and Political Philosophy (Ithaca: Cornell University Press, 2003).167 The image reproduced here appears in the Philosophical Investigations at Part II, p. xi (Wittgenstein, ?PI,? supra note 147). For an interesting overview of the history of this image and similar ones, see: John Kihlstrom, ?Joseph Jastrow and His Duck -- Or Is It a Rabbit??, online: <http://ist-socrates.berkeley.edu/~kihlstrm/JastrowDuck.htm>. 69Illustration 1: Duck-rabbitWhen we are held captive by a picture, we are unable to see more than one aspect. Philosopher Gordon Baker argues that providing a methodology for breaking free of this captivity is at the heart of Wittgenstein's philosophy. He writes:When we are held captive by a picture...'embedded in our language', we are unable to see something in more than one way...Our position is comparable to that of someone who continuously sees a single aspect in the duck-rabbit diagram.168To illustrate the concept of ?captivity,? Wittgenstein describes a hypothetical situation of a person imprisoned in a room, whose ?picture? of a door is such that doors can only open outwards: ?Someone is imprisoned in a room if the door is unlocked, opens inwards; but it doesn't occur to him to pull, rather than push against it?169 In this example, the physical constraints of the room serve as analogies for the mental constraints of a ?picture? to which we are held captive. Owen writes: Imagine: entranced by a picture of doors as opening outward, Wittgenstein's man 168 Gordon P Baker, ?Philosophical Investigations s. 122: Neglected Aspects? in Gordon P Baker & Katherine J Morris, eds, Wittgenstein?s Method: Neglected Aspects (Malden, MA: Blackwell Publishing, 2004) at 35.169 Cited in Owen, supra note 156 at 85. 70pushes and pushes with increasing frustration, with an increasing sense of powerlessness ? and so experiences himself as imprisoned, as subject to external constraints on his capacity for agency, precisely because the idea that doors only open outward is taken as prior to judgment, as a principle of judgment rather than as subject to judgment. The problem here is not simply that this man has a particular picture of doors that guides his judgment and actions in infelicitious ways, it is that he is captivated by this picture and, thus, is incapable of calling it into question.170Captivity to a picture is important politically because it constitutes a constraint on the capacity for self-understanding and thus on the capacity for judgment and self-government.171 Captivity to a picture affects judgment because it causes us to see certain conclusions, perspectives or assumptions as necessary or inevitable. Feminist philosopher and Wittgenstein scholar Naomi Scheman analogizes these apparently necessary conclusions to ?forced moves? in a game like chess.172 Trying to make judgments under these constraints, when our judgment seems ?forced,? can generate tension between our experiences of the world and the pictures we use to understand it. As Owen says: ?a disjunction may emerge between our ways of making sense of ourselves, on the one hand, and our cares and commitments, on the other.?173 In many cases, when this disjunction arises, we can reassess the value of the picture and revise it as necessary. But when we are held ?captive? to the picture, we seem unable to do this and our questions remain unanswered. The tension between experience and the possibilities of judgment begins to constrain and confound our ability to make judgments and to act on them, compromising our self-knowledge and self-government. The person imprisoned in the room 170 Ibid at 85?6.171 Ibid at 82.172 Naomi Scheman, ?Introduction? in Naomi Scheman & Peg O?Connor, eds, Feminist Interpretations of Ludwig Wittgenstein (University Park, Pennsylvania: Penn State Press, 2002) 1 at 16 [?Introduction?].173 Owen, supra note 156 at 85. 71wants to find a way out, political theorists see the importance of critical reflection, and feminists care about political exclusion through gender identity claims. But they are each ?held captive? by ?pictures? that prevent the full exercise of judgment and agency in relation to these issues. Heyes writes:Although some picture is an inevitable feature of judging, and can be valuable if it enables us to make sense of ourselves, being held captive by a picture implies that one cannot reorient one's reflection and is thus profoundly unfree.174Scheman also notes that ?forced moves depend for their force on our understanding them from inside a particular practice.?175 Thus, a key part of challenging our captivity to a picture is to identify those questions and answers that appear to be necessary, the ?forced moves,? and to locate them in relation to the social practices that give them meaning. Challenging the picture itself assists us in identifying it as a picture, as rooted in particular social practices and therefore contingent on those practices.Wittgenstein's comments on language and our captivity to a picture of language do provide some methodological guidance for this dissertation.176 However, the main subject for consideration is our picture of ?common sense.? Debates about ?common sense? are, to some extent, held captive by a particular picture of that concept, in which common sense is primarily a kind of knowledge. As illustrated by the various uses of the term ?common sense? outlined in the introduction, captivity to any one picture of ?common sense? is less complete than captivity to the picture of language that Wittgenstein describes. However, whether theorists want to 174 Heyes, ?Self Transformations,? supra note 153 at 18.175 Scheman, ?Introduction,? supra note 172 at 16.176 See especially ?Seeking new examples,? below beginning at p. 94. 72critique, celebrate or deny the role of ?common sense? in legal judgment, there is a frequent return to the idea that the legitimacy of ?common sense? relates to the potential universality of some form or other of common knowledge. Our captivity to this picture prevents full debate on the way common sense relates to legal judgment, and thereby impedes our ability to make judgments about the value of ?common sense? and its potential as a resource for good legal judgment.The dominance of this picture of common sense as a type of common knowledge is also evident in the context of legal judgments touching on poverty and inequality specifically (as, for example, in much of the scholarly comment on the use of ?common sense? by the majority justices in Gosselin). In many respects, this picture of common sense ? as a form of knowledge ? is extremely useful in this context because it allows us to ask the crucial question: ?common to whom?? For example, in the Gosselin case, the majority justices used the language of ?common sense? to ground certain conclusions. By asking whose knowledge grounds those claims, it becomes possible to scrutinize the justice of invoking common sense in that context. Within the framework provided by the picture of common sense as a type of knowledge, it is possible to see, as Schneiderman points out, that in Gosselin ?common sense? seems associated with a dominant cultural consensus about welfare and justice.177 However, this area of law also tends to provoke other questions and concerns that seem unanswered or unanswerable from within the framework provided by the picture of common 177 Schneiderman, ?Social Rights and 'Common Sense',? supra note 50. 73sense as a type of knowledge. For example, writing in dissent in Gosselin, Justice L'Heureux-Dub? could also have claimed that her judgment was based on her ?common sense,? but she did not. Why not? Is it just a matter of social consensus, or is there a substantive match between the political ideology espoused by the Quebec government in that case and the idea of ?common sense?? Is there a link between ?common sense? and the economic class of political elites, or of judges? What do we make of the rhetorical choice to invoke, or refrain from invoking, ?common sense? in written reasons? Thinking about common sense as a type of knowledge gives at best, an incomplete answer to these questions, and does not provide a framework to fully address what seems to be at stake.Using Wittgenstein's language of ?captivity? to a ?picture? to characterize a problem needing theoretical attention has similarities to other methodological approaches. There are, after all, numerous rich theoretical traditions that grapple with the question of how the exercise of judgment is affected by the social background that frames the issue to be judged.178 One might interpret Plato's allegory of the cave179 in this way, for example, or Antonio Gramsci's notion of hegemony explored in chapter 4.Wittgenstein's idea of a ?picture? to which we can become ?captive? thus sits with a number of other approaches that see social context as constituting a framework for judgment and a possible constraint on its exercise. However, Wittgenstein's approach differs in that he is not especially 178 Pitkin, ?Wittgenstein and Justice,? supra note 150 at 336.179 Plato, ?Republic? in John M Cooper ed. Complete Works, (Indianapolis; Cambridge: Hackett Publishing Company, 1997) 971, at 514a. 74concerned with the truth value of the ?picture,? but rather with the problem of ?captivity? per se. In his description of what distinguishes Wittgenstein's idea of captivity, Owen contrasts ?ideological? with ?aspectival? captivity.180 In the case of ideological captivity, we become captivated by false beliefs that constrain our ways of thinking. Further, these false beliefs acquire some of their power because of their capacity to legitimize certain practices or institutions and obscure the truth about social relations.181 This is the focus of some critiques in the Marxist tradition, for example. What is required in order to liberate ourselves from ideological captivity is a kind of critical self-reflection that can assist in dispelling ideas that obscure the reality of social relations, and move towards ?truth? or ?truths,? however understood.182 In the case of ?aspectival? captivity, we are in thrall to a certain ?picture? that allows us to see only one ?aspect? of something. Unlike ?ideological? captivity, ?aspectival? captivity can exist independently of the truth or falsehood of the beliefs that make up the picture. We are not able to exercise judgment if we are unable to reflect on the value of a picture we hold, or to think any other way; it is our captivity that is significant, not the truth value of the picture.183 Owen writes:[R]eflection on ideological captivity addresses that aspect of self-government that concerns the fact that our judgments are guided by beliefs that can be true or false, while reflection on being held captive by a picture attends to that aspect of self-government that concerns the fact that our judgments are situated in systems of judgment that can be of greater or lesser value in terms of their capacity for 180 Owen, supra note 156 at 88.181 Heyes, ?Self Transformations,? supra note 153 at 18?19.182 An example of work that is aimed at freeing from ideological captivity is the critical theory of the Frankfurt School: Owen, supra note 156 at 90.183 Owen argues that the work of Foucault can be characterized as addressing aspectival captivity: Ibid. 75enabling us to make sense of ourselves as agents in ways that matter to us.184While critics from any tradition might be interested in both the fact of our captivity and the substance of the pictures to which we are held captive, it is useful to distinguish these analytically because they require different methodological solutions. Wittgenstein argues that when we find ourselves held captive to a picture ? aspectival captivity ? it results in our being able to see only one ?aspect? of something. In this dissertation I argue that many debates about common sense and law allow us to see only one ?aspect? of ?common sense.? Writers with a wide variety of interests and commitments trying to engage with the relationship between ?common sense? and legal judgment can address some of their questions from within this framework; the picture is valuable for some purposes. But other questions that seem important for understanding legal judgment, like the roles of power and persuasion, are difficult or impossible to address in a satisfying way. Moreover, in the literature there is little consideration of the value of the picture itself. I think this is an example of a time when we find ourselves held captive to a picture; when some way of thinking is no longer satisfying, but it is unclear how to move forward. Like the man with the picture of ?doors? that can only open outwards, there are times when the picture fulfills its purposes perfectly adequately: there are times when doors do open outwards. But as soon as doors fail to work in this way, the man encounters difficulties in forming judgments and acting in accordance with his own self-understanding and agency. Faced with this tension, the man needs to be able to reflect on and assess the adequacy of his picture of doors, and revise it 184 Ibid at 91. 76accordingly. But if he is held captive to his picture of doors as opening outwards, the man in the room will be unable to do this, sustaining his physical captivity as well.I argue that the questions we ask about common sense, and the answers that make sense to us, are incomplete. The ?picture? of common sense as a type of knowledge is not fully satisfying, and leaves us with lingering doubts and critiques. To the extent that we are held captive by this picture about common sense, we are unable to fully make sense of how it relates to legal judgment or the demands of justice. In Wittgenstein's terms, we are in need of philosophical ?therapy? to help us experience new ?aspects? of ?common sense.? The therapy Wittgenstein prescribes is a methodology he calls ?perspicuous representation.? To respond to the problem of captivity, I build a ?perspicuous representation? of common sense that releases us to think about and to use common sense in different ways.Captivity and common senseBefore describing this methodology in detail, I want to make three general comments about the relationship between the methodology and subject matters of this dissertation. First, the substantive issues I address ? common sense, legal judgment and poverty as a justice concern ? are things that are subject, to some degree, to both ideological and aspectival captivity. Indeed, the content of the ?pictures? that dominate understanding of poverty is a primary motivating factor for this research. I would argue that many of the pictures that frame our discussions on 77these issues contain ideas that are in some manner mistaken or wrong, such as the inevitability of widespread poverty, the moral blameworthiness of low income people, or the impossibility of addressing poverty within a rights framework. But this dissertation is not a direct critique of the ideological content of our ?pictures? of poverty, legal judgment or common sense. Rather, the framework for my project as a whole is addressed to aspectival captivity, and the usefulness of our ?pictures? towards achieving specific goals, rather than their inherent value or truthfulness. These goals have to do with assessing the adequacy of practices of legal judgment and creating new criteria for good legal judgment, measured against the demands of a broad understanding of justice.Second, I suggest that Wittgenstein's methodology is particularly apt for demonstrating the significance of common sense in legal judgment because it helps crack open the self-justifying nature of common sense. The tendency of common sense to present itself as unmediated reality (as Geertz says, ?just life in a nutshell?185), means that captivity and inability to reflect on the picture seem particularly likely in relation to the concept of ?common sense.? Wittgenstein's concerns about paradox, circular reasoning, or questions that are difficult to articulate are all at work in the case of ?common sense,? and therefore an investigation of ?common sense? has much to gain from exploring his approach. There is also a further prima facie connection between ?common sense? and a Wittgensteinian approach. Indeed, one might say that ?common sense? is a ?picture of the world,? in the sense that it could be understood as a set of inherited judgments, against which all other judgments are measured. Thus, Wittgenstein's insights about captivity and pictures of the world serve primarily as the basis of my 185 Geertz, supra note 17 at 75. 78methodology, but his writings also relate to understanding ?common sense? as such.The third general comment about the relationship between my substantive and methodological arguments returns to the political frameworks that motivate this research. The notion of aspectival captivity directs attention to the question of whether a picture of the world is continuing to be useful towards its purpose. In his discussion, Owen describes this purpose in general terms as the capacity for self-understanding; a picture is useful to the extent that it allows us to make sense of ourselves and our circumstances and thereby supports our ability to make judgments. But beyond this, it becomes necessary to identify specifically the purpose that the picture should be measured against. In the context of legal judgment involving poverty, I evaluate our ?picture? of ?common sense? against criteria about justice and equality. 186Assessing the adequacy of a picture (here, of common sense) requires something like an act of will or the exercise of choice. I argue that the picture of common sense as a type of knowledge is inadequate for developing practices of legal judgment that fully respond to the demands of justice and equality, and therefore that it is valuable to address our captivity to this picture and generate new ways of thinking about common sense. Clearly, the judgments that identify the appropriate criteria for assessing the usefulness of our picture of common sense have political content. Some of these judgments relate to established legal principles, such as the right to equality as enshrined in s. 15 of the Charter. But they nevertheless involve chosen commitments that privilege some values over others. These products of choice or political will 186 See above p. 54. 79determine whether a ?picture? of something is problematic or not. Thus, Wittgenstein's approach requires attention not only to knowledge, truth, or information, but also to politics, culture and other aspects of human judgment. Writing about this aspect of judgment, in which a picture of the world is more than a matter of ?knowledge,? Wittgenstein says:What stands fast does so, not because it is intrinsically obvious or convincing; it is rather held fast by what lies around it.187Thus, pictures of the world, what ?lies around? our judgments, are made up not only of the content of our knowledge and beliefs, but also more broadly of our cultural, social and psychological commitments that secure the legitimacy of those judgments. Wittgenstein writes:I did not get my picture of the world by satisfying myself of its correctness; nor do I have it because I am satisfied of its correctness. No: it is the inherited background against which I distinguish between true and false.188 Wittgenstein also argues more explicitly that what lies at the bottom of judgments is not ultimately a matter of knowledge, but of something else: grammar, practice, community agreement and indeed choice.189 The legitimacy of our judgments is also secured by acts of agency. Wittgenstein says:If someone says that he will recognize no experience as proof of the opposite, that is after all a decision. It is possible that he will act against it.190187 Wittgenstein, ?OC,? supra note 146, sec 144.188 Ibid, sec 94.189 Wittgenstein, ?PI,? supra note 147, sec 241.190 Wittgenstein, ?OC,? supra note 146, sec 368. 80One way that Wittgenstein approaches this issue of how our judgments are shaped by things other than ?knowledge,? is to explore the ways in which a picture of something affects the burden of proof applied to different claims. For Wittgenstein, our pictures of the world affect not only the content of our beliefs, but which ?certainties? we defend with greater passion, and what ?facts? we find it difficult or impossible to accept, regardless of the evidence.191 Our pictures of the world help us figure out what kinds of things are subject to doubt, and which are beyond proof.192 In his own work, Wittgenstein did not explicitly consider questions of power.193 When he talks about the limitations of a given picture of the world, he is talking about our capacity for self-understanding, in contrast with mistake or nonsense. He is not directly addressing the possibility of competing pictures of the world, or of resistance to a picture.194 However, the notion of competing pictures of the world, with competing social and political frameworks, does create a kind of subtext for some of Wittgenstein's arguments. For example, in On Certainty, Wittgenstein is in part offering a critique of G.E. Moore's influential essay, ?A Defense of Common Sense,? in which Moore claims that he can be ?certain? of some common sense propositions.195 Wittgenstein takes issue with Moore's ?certainty? in a number of ways, including by showing the links between what seems ?certain? to us and our (specific, embodied) experiences of the world. This allows Wittgenstein to point out, for example, that what makes 191 Ibid, sec 368, 381.192 Ibid, sec 37, 150.193 Sarah Lucia Hoagland, ?Making Mistakes, Rendering Nonsense, and Moving Toward Uncertainty? in Naomi Scheman & Peg O?Connor, eds, Feminist interpretations of Ludwig Wittgenstein (University Park, Pennsylvania: Penn State Press, 2002) 119 at 128.194 Ibid.195 GE Moore, ?A Defense of Common Sense? in Philosophical Papers (London: George Allen & Unwin Ltd., 1925) 32. 81sense to him, or to Moore, and what makes sense to people in non-European cultures, may be different.196 Wittgenstein is insisting that the specific context of a claim ? including its political and cultural context as situated within a particular practice ? is important for assessing meaning.For present purposes, the most useful interpretations and elaborations of Wittgenstein's approach are those that extend this subtext and more explicitly attend to questions of power. When pictures of the world and the judgments that are enabled and constrained by them are understood as consisting of more than knowledge, it becomes possible to see the interests, commitments and desires that also play a role. At this juncture, the usefulness of feminist interpretations of Wittgenstein, and indeed other feminist theories, becomes very evident. These theorists help understand the political elements of how we form pictures of the world, and how we become captive to them.One example of employing Wittgenstein's insights to feminist concerns can be found in Sarah Lucia Hoagland's analysis of the relationship between feminist theory and epistemology. Hoagland argues that, for feminist theorists to invest time in trying to convince others that they are ?mistaken,? is itself mistaken because it lends credibility to a framework in which feminist claims are not wrong, but nonsensical.197 Rather, Hoagland argues, feminist theorists should orient their attention to changing society's forms of life, transforming social practices in a manner that would give meaning to women's understandings: not an epistemological shift but a 196 Wittgenstein, ?OC,? supra note 146, sec 609.197 Hoagland, supra note 193 at 127, 129. 82?moral revolution.?198 In some respects, this dissertation does not leave the traditional arena of debate, in the sense that I am concerned with persuading with words rather than taking practical actions. However, I do think these two forms of engagement ? criticism and activism ? are necessarily related. Moreover, I take Hoagland's insight seriously in that this dissertation is primarily concerned with creating openings for new ways of thinking and acting, rather than demonstrating the truth or falsity of particular claims.Zerilli also draws on Wittgenstein's approach to address feminist concerns. In her essay called ?Doing Without Knowing: Feminism's Politics of the Ordinary,? introduced above, she uses Wittgenstein to explore feminist debates about the category ?women.?199 Recall that Zerilli suggests that feminists may be held ?captive? to a ?picture? of political life in which it is possible for political claims to be grounded on an empirical reality. As an example of this captivity, Zerilli points to the way feminist theorists return, again and again, to debate the scope and significance of the category ?women.?200 She argues that in so doing, feminists miss the opportunity to examine the usefulness of the ?picture? of political life itself, and the way it affects important questions of agency and activism. She writes:Feminists who attack and defend foundation both unwittingly accept that what what grounds certain claims is a ?foundation? that could be exposed as wrong or defended as rational, rather than simply a frame....201Thus, by debating the merits of some foundational claim, we miss the opportunity to challenge the picture (or here, ?frame?) that tells us we can and should look for a defensible ?foundation? 198 Ibid at 135.199 Zerilli, ?Doing without Knowing? supra note 152.200 Ibid at 142.201 Ibid. 83for political claims. Zerilli argues that this picture of political life, in which an empirical foundation is possible, prevents us from understanding other aspects of the problem, other ways in which our claims are not really based on ?knowledge? at all. For example, she writes: To treat our certainty in a system of reference (like the sex/gender system) as a failure of critical thinking is to misunderstand what is involved...Rather, the difficulty is a problem of the will.202 Zerilli demonstrates how a narrow focus on epistemology can fail to assist us in understanding the relationship between certain concepts (such as sex difference) and their role in political discourse.203 The nature of political claims and political judgments requires that we attend to more than knowledge, and the ways in which our frames and categories can be evaluated and modified.Captivity to a picture goes beyond a problem of ?knowledge,? and can reach into many aspects of individual and community life. The theoretical problem of aspectival captivity must therefore be addressed with methodological tools that can take account of history, context and power. Our picture of ?common sense? in legal judgment should be assessed and, if necessary, revised, with all of these axes in mind.Methodology to challenge captivity: Perspicuous representationWittgenstein argues that when we find ourselves held captive to a picture ? when some way of thinking is no longer satisfying us and we don't know how to move forward ? we are in need of 202 Ibid at 143.203 Ibid at 152. 84philosophical therapy, to help us experience new aspects. And the therapy Wittgenstein prescribes is a methodology he calls ?perspicuous representation.?204 Wittgenstein addresses this idea directly in s. 122 of the Philosophical Investigations:A main source of our failure to understand is that we do not command a clear view of the use of our words. ? Our grammar is lacking in this sort of perspicuity. A perspicuous representation produces just that understanding which consists in 'seeing connexions'. Hence the importance of finding and inventing intermediate cases.The concept of a perspicuous representation is of fundamental significance for us. It earmarks the form of account we give, the way we look at things. (Is this a 'Weltanschauung'?)205This passage contains a number of complex notions important for Wittgenstein. It is the notion of perspicuous representation and its special kind of clarity that will be explored here. Perspicuous representation is an attempt to bring clarity to a concept, not by attempting to discover a clear or certain meaning, but rather by stepping back and illustrating how that concept works in a variety of contexts (?command a clear view?). The idea is that by looking at something in several different contexts, from several different perspectives, (finding ?intermediate cases?) we can come to understand that our previous puzzlement was occurring as a result of our captivity to one perspective and indeed our inability to see that we had a perspective at all. The methodology of perspicuous representation aims to shed some light on the pictures of the world that we rely on, in order that we might have the opportunity to examine and revise them when the need arises. I have adapted Wittgenstein's method of perspicuous representation to serve as the methodological framework for my investigation of common sense in legal judgment. I create a 204 Wittgenstein, ?PI,? supra note 147, sec 122.205 Ibid. 85?perspicuous representation? of the concept of ?common sense,? by exploring the different aspects of this concept that come to light when we observe its invocation in different legal and scholarly texts. By examining ?common sense? as situated in different historical, political, legal and discursive contexts, our captivity to a picture of common sense as knowledge begins to fall away, and new questions can be asked about the role of ?common sense? in practices of legal judgment.In the following sections, I describe four components of the methodology of ?perspicuous representation? as I interpret and develop it. They are as follows:1. Clarity through juxtaposition. Perspicuous representation seeks to create a particular kind of clarity by allowing us to see more than one aspect of a concept;2. ?Look and see.? The method asks that we suspend any definitions from the outset in order to observe how a concept functions in context;3. Seeking new examples. The task of perspicuous representation is to find new examples from which to generalize. The examples chosen to generate the change of aspect will affect how and why our picture of common sense is challenged; I rely on the feminist concept of marginality to articulate criteria for these choices;4. Reflexivity and political accountability. The method of perspicuous representation makes clear the ways in which theoretical study is connected with social practices, and provides ways for taking responsibility for the political consequences of our pictures of the world.Clarity through juxtapositionLike countless other philosophers, Wittgenstein sees clarity as his goal, and develops a specific approach to achieving it.206 What is distinctive about perspicuous representation is how clarity is to be achieved. A representation of a concept is not ?perspicuous? because of its objectivity, 206 For exploration of how Wittgenstein's concept of clarity relates to other thinkers, see Newton Garver, Wittgenstein and Approaches to Clarity (Amherst NY: Humanity Books, 2006). 86completeness, certainty or broad scope.207 Rather, a representation is perspicuous because of its role in generating a change in aspect.208 This understanding of perspicuous representation follows the interpretation offered by Wittgenstein scholar Gordon Baker,209 and applied to political questions by political philosophers such as David Owen210 and Cressida Heyes.211 The heart of the concept of perspicuous representation lies in the idea that, in a quest to free ourselves from captivity to one picture of the world, it is useful to uncover and describe alternative pictures, and place them side by side.212 The purpose of this juxtaposition is to generate a change in aspect; a discovery akin to ?experiencing a word in a new way.?213The example of the duck-rabbit drawing can be used to help understand what Wittgenstein means by a change in aspect.214 A change in aspect is not, or not only, about acquiring new information. Rather, it is about an experience. If someone first sees the diagram as a duck, and 207 Baker, supra note 168; Phil Hutchinson & Rupert Read, ?Toward a Perspicuous Presentation of ?Perspicuous Presentation?? (2008) 31:2 Philosophical Investigations 141. Wittgenstein says that ? 'Knowledge' and 'certainty' belong to different categories....? Wittgenstein, ?OC,? supra note 146, sec 308.208 Baker, supra note 168 at 36, 42.209 Baker, supra note 168. In scholarship on Wittgenstein, there are contrasting views about what perspicuous representation entails. For an overview of various approaches, see Hutchinson & Read, supra note 207.210 Owen, supra note 156.211 Heyes, ?Self Transformations,? supra note 153; Cressida J Heyes, ??Back to the Rough Ground!?: Wittgenstein, Essentialism, and Feminist Methods? in Naomi Scheman & Peg O?Connor, eds, Feminist interpretations of Ludwig Wittgenstein (University Park, Pennsylvania: Penn State Press, 2002) 195 [?Back to the Rough Ground?].212 In this respect, Wittgenstein's approach has much in common with other approaches that seek to relativize practices, including Foucault and Geertz. In relation to common sense specifically, Geertz writes: ?This analytical dissolution of the unspoken premise from which common sense draws its authority - that it presents reality neat - is not intended to undermine that authority but to relocate it. If common sense is as much an interpretation of the immediacies of experience, a gloss on them, as are myth, painting, epistemology, or whatever, then it is, like them, historically constructed and, like them, subjected to historically defined standards of judgment. It can be questioned, disputed, affirmed, developed, formalized, contemplated, even taught, and it can vary dramatically from one people to the next.? Geertz, supra note 17 at 76.213 Havercroft, supra note 166 at 150.214 See image above at p. 70. 87then someone points out the rabbit, that person may say something like: ?oh! now I see it!? The person has not just learned something, he or she has had a new kind of experience in relation to the image. It is not just that the person has seen the image ?as? a duck and now ?as? a rabbit, but that after noticing the new aspect, he or she can no longer experience the image as presenting only one meaning. Importantly, this experience has a paradoxical nature, in which ?we see the image differently, but we also see that the image has not changed.?215 Wittgenstein writes:I contemplate a face, and then suddenly notice its likeness to another. I see that it has not changed; and yet I see it differently. I call this experience ?noticing an aspect.?216 The role of juxtaposition in perspicuous representation thus orients this methodology towards comparison and the generation of examples and counter-examples. In order to break free of captivity to a picture, we need to experience a change of aspect: we need to see that other pictures exist. In order to evaluate the value of an existing picture, we need to be able to perceive, and assess the value of, other, alternative pictures.217 Thus, perspicuous representation requires the exploration of alternative examples to place beside our current understanding. These alternative examples will be found where a piece of language appears in the context of different practices, and might be historical, based in alternative cultures, or purely hypothetical. The source of the examples is less significant than their usefulness in shaking off captivity to an existing picture; alternative examples are judged by 215 Havercroft, supra note 166 at 151.216 Wittgenstein, ?PI,? supra note 147, sec 165.217 ?The tyranny of a system of expression is to be broken and the problems dissolved by our effecting a change of aspect through juxtaposing with our language other systems of expression.? Baker, supra note 168 at 33. [italics in original] 88their capacity to provoke a change in aspect. Noticing a new aspect opens up the possibility of gaining some insight into the ?pictures? we hold and their usefulness for judgment.In Wittgenstein's own work, which was directed at addressing what he saw as unproductive practices in philosophy, the examples are often simply drawn from everyday uses of words. In this way, Wittgenstein shares some similarities with so-called ?ordinary language philosophers,? such as J.L. Austin.218 For scholars who are concerned with questions about social and political life, the examples drawn to juxtapose to our existing picture consist of case studies and historical geneaologies.219The significance of examples and counter-examples in the methodology of perspicuous representation structures my treatment of both legal and scholarly texts. Unlike in a doctrinal legal study, I am not purporting to conduct a full survey into the meaning of ?common sense? in legal judgment, nor are my cases selected because they represent ?the law on common sense? in Canada. Rather, the cases are examples for comparison, and the criterion used to select them is their usefulness in illuminating some aspect of common sense, thereby contributing to a perspicuous representation of the concept. The cases I discuss are all judgments of the Supreme Court of Canada, not judgments of trial 218 J L Austin, How to Do Things with Words (Oxford: Clarendon Press, 1962). Wittgenstein's approach, though, was not simply to appeal to common or ordinary beliefs, but rather to the ?regularities in our language.? Thus, his was not a conservative defense of ordinary beliefs. See Pitkin, ?Wittgenstein and Justice,? supra note 150 at 19.219 See the authors in the volume: Cressida Heyes, ed. The Grammar of Politics: Wittgenstein and Political Philosophy (Ithaca: Cornell University Press, 2003). 89courts or other appellate courts. This is in part simply to limit the scope of my study, but also because the language of the Supreme Court is adopted and repeated by other courts, thus making their invocation of ?common sense? significant for the legal system as a whole. But beyond this choice to privilege the Supreme Court, I engage with the legal judgments without (at least at the outset) particular regard for the doctrinal context that might render some examples more significant than others. For example, in Chapter 3, I discuss the Court's judgment in Vetrovec v. The Queen,220 which, although a landmark case, has been modified by subsequent jurisprudence and would no longer be cited on its own to support submissions on the law of corroboration.221 Similarly, although I attribute various judgments to the individual judges who authored them, I do not seek to make claims about the views of any one judge. For example, Chief Justice Beverley McLachlin is the author of several of the judgments I address, including Gosselin. However, I do not attempt to reconcile the judgments or claim to discover her ?real? views on common sense. Instead, I approach each judgment as a textual artifact of ?common sense,? and try to attend carefully to what each text says on its face.222Similarly, my choice of scholarly texts reflects the goal of locating contrasting examples, and is grounded in this task rather than in any empirical claim to represent treatment of the concept of ?common sense? comprehensively. The goal of opening ?common sense? in relation to law, shapes the choice of texts; each of the scholars I engage with provides an approach to common sense that speaks in some way to the concerns that arise about the concept in the particular 220 Vetrovec v The Queen,  1 SCR 811, 136 DLR (3d) 89 [?Vetrovec?].221 R v Khela, 2009 SCC 4,  1 SCR 104.222 Charles Taylor argues that broader understanding arises ?in comparisons or contrasts, which let the other be.? Charles Taylor, ?Comparison, History, Truth? in Philosophical Arguments, (Cambridge MA: Harvard University Press, 1997) 146 at 152 [?Comparison, History, Truth?]. 90social and discursive context of legal judgment.?Look and see?As a matter of methodology, Wittgenstein advises us to resist the temptation to rely on abstract definitions and generalizations, and, instead, to ?look and see? how a concept functions in context.223 The task is to examine how a concept acquires and deploys meaning as it is located within specific uses of language and is embedded in specific social practices. I ?look and see? how the term ?common sense? functions in the context of scholarly writing of Reid, Gramsci and Arendt, and practices of legal judgment engaged in by the Supreme Court of Canada.Wittgenstein's recommendation to ?look and see? has strong affinities with the methodologies employed by Michel Foucault.224 Foucault's insistence on examining the local and the particular rather than the over-arching or abstract, and his interest in privileging the question ?how? over questions of ?what? and ?why,? both resonate with what Wittgenstein has to say.225 Both Wittgenstein and Foucault challenge us to examine concepts in context as real parts of human language and activity, what Wittgenstein called the ?rough ground? of practice.226 One important implication of this approach, guided by the call to ?look and see,? is that it allows 223 Wittgenstein, ?PI,? supra note 147, sec 66.224 For an example of work drawing on both Foucault and Wittgenstein for methodology, see Heyes, ?Self Transformations,? supra note 153.225 Michel Foucault, ?The Subject and Power? in Hubert Dreyfus, ed, Michel Foucault, Beyond Structuralism and Hermeneutics (Chicago: University of Chicago Press, 1982) [?The Subject and Power?]; Michel Foucault, The History of Sexuality, Volume I?: An Introduction, (New York: Random House, 1990) [?History of Sexuality?].226 Wittgenstein writes: ?Back to the rough ground!? Wittgenstein, ?PI,? supra note 147, sec 107. 91us to investigate a concept without assuming, from the beginning, that the concept carries with it a kind of wholeness or unity.227 Foucault relies on this idea to open up his study of ?power.? He writes:To put it bluntly, I would say that to begin the analysis with a ?how? is to suggest that power as such does not exist. At the very least it is to ask oneself what contents one has in mind when using this all-embracing and reifying term; it is to suspect that an extremely complex configuration of realities is allowed to escape when one treads endlessly in the double question: What is power? and Where does power come from? The little question, ?What happens?? although flat and empirical, once it is scrutinized is seen to avoid accusing a metaphysics or an ontology of power of being fraudulent; rather it attempts a critical investigation into the thematics of power.228Thus, Foucault argues that it is useful to suspend any consideration of abstract or general definitions at the outset of a study (e.g. to say that ?power? does not ?exist? per se and instead to look at what is actually going on around this concept). Focusing on context orients questions towards particular examples of a concept in practice, and away from abstract generalizations. I carry this idea ? about suspending abstract definitions in order to ?look and see? ? into my study of ?common sense.?229 The idea of looking to see what happens in context has important consequences for the way I choose and read texts. Most pointedly, in relation to legal judgments, it means that I focus on judgments in which the phrase ?common sense? actually appears. In another kind of study, it could make sense to 227 Foucault, ?The Subject and Power? supra note 225 at 217.228 Ibid.229 There are ways in which the concept of ?common sense? itself tends to resist definition in the abstract, and this can be seen in the way ?common sense? is defined (or not) in the works of the three theorists studied in this dissertation. For example, although Thomas Reid uses the term ?common sense? throughout his works, he does not offer a definition until hundreds of pages into his second book. For a discussion of Reid's methodological reasons for delaying his definition of common sense, see Louise Marcil-Lacoste, Claude Buffier and Thomas Reid, Two Common Sense Philosophers (Kingston: McGill-Queen?s University Press, 1982) at 76. 92explore the ways in which judges rely on their common sense without actually invoking that language explicitly. For example, if I were to define ?common sense? as ?shared background knowledge,? I could look for cases in which judges seem to rely in some way on shared background knowledge. But this would require a pre-existing conceptualization that could foreclose certain aspects of this phrase that might otherwise appear ? what aspects of ?common sense? are not captured if we think if it as ?shared background knowledge?? It would be to risk remaining captive to the picture of common sense that so often foils thorough scrutiny of the concept. Instead, Wittgenstein and Foucault both stress the need to look at how language actually functions in context, and not to prematurely attribute meaning.The call to ?look and see? also relates to the idea (reflected in Wittgenstein, Foucault and also in some feminist theories) that it can be useful to conduct analysis that stays on the ?surface? of language, once again declining to attribute general definitions or grounding relationships from the outset.230 I try to see what can be learned by reading the words of a legal judgment on their face.231 I ?look and see? in an effort to learn something new, to effect a change of aspect, and to avoid adopting perspectives that foreclose meaningful possibilities by sustaining captivity.Taking this kind of approach necessarily orients attention to the context of language. Some theorists, such as Quentin Skinner and those inspired by his approach, take a very deeply contextualized and historical approach to the study of texts.232 Skinner argues that it is 230 Naomi Scheman describes the ?serious superficiality of feminist critique?: Scheman, ?Introduction,? supra note 172.231 James Tully describes this as an attempt to ?survey? a subject matter: Tully, ?Wittgenstein and Political Philosophy,? supra note 151. 232 For example, see James Tully, ?The Pen is a Mighty Sword: Quentin Skinner?s Analysis of Politics? in 93important to ask not only what the text means, but also what the text does, or what the author was doing when she or he created it. Thus, in order to understand a text, it is necessary to investigate not only the historical context, but also the discursive context of the text. To what political problems and philosophical conversations was the text addressed?I do not conduct the kind of richly contextual approach that Skinner advocates. However, the idea that it is important to pay attention to context does influence this research. Specifically, when I bring scholarly writings and legal judgments into conversation with each other, the first step will always be to try and understand a theorist's perspective on common sense on that theorist's own terms. Thus, when I read Reid, Gramsci and Arendt on ?common sense,? my first task is to gain an understanding of what those thinkers meant when they wrote those words, and what role ?common sense? plays in their writings as a whole. But having gained some understanding of a thinker's approach to ?common sense,? my next step is to take that ?aspect? of common sense, and place it in an entirely new context: the context of legal judgment and a set of political commitments about equality and social justice. I take into account the institutional and conceptual frameworks that shape the specific practices of legal judgment under consideration (such as, for example, the assessment of witness credibility). Ultimately I bring all of these approaches together to create a ?perspicuous representation.?This is the element of my methodology that has some affinities with the hermeneutical tradition, especially as articulated by Gadamer and Taylor.233 For example, by taking a theoretical Meaning and Context: Quentin Skinner and his Critics (Princeton: Princeton University Press, 1989).233 Gadamer, supra note 120. 94discussion from a different historical and discursive context and reading it against my own concerns and priorities about equality and poverty, I engage the same issues that surround Gadamer's notions of ?prejudice? and the ?fusion of horizons.?234 However, while noticing these affinities, I have found that Wittgenstein's methodology of ?perspicuous representation? also provides concepts that can help to articulate and explain the legitimacy of my approach. The first step ? of understanding a text in its own context, on its own terms, relates to the invocation to ?look and see.? And the second step ? of understanding a text by introducing a new context and different criteria for assessment ? relates to the task of breaking out of our captivity to a picture by introducing new examples for juxtaposition. I explore this second step further in the following sections.Seeking new examplesWittgenstein's ideas about our picture of language are important for this dissertation, not necessarily in a substantive way, but for the methodological insights that these ideas engender. Specifically, Wittgenstein's writings on language explain why it is useful to seek out alternative examples of a concept, and how the way those alternative examples are chosen relates to underlying political and theoretical goals.In his later work, Wittgenstein argues that it is useful to think of language, not as a system of signs, but rather as a human activity that always takes place in particular contexts. From this 234 Taylor, ?Gadamer? supra note 121; Taylor, ?Comparison, History, Truth,? supra note 222. 95perspective, the meaning of language is closely related to its use.235 Language is a social activity that involves specific participants, goals and background assumptions, all of which vary according to the circumstances. And for Wittgenstein, these features of language are essentially interconnected with meaning.Wittgenstein describes an approach to language in which meaning is generated through instances of use.236 Since the meaning of a word is created in part through its use in a variety of different contexts, this meaning will contain a variety of different elements. Some aspects of the concept will be emphasized in some uses, and other aspects in different uses.This picture of language leads to the idea that the variety of meanings (or ?aspects?) that inhabit a word or concept do not necessarily indicate confusion. Rather, as Hanna Pitkin writes:If language is seen as human activity rather than as a collection of labels for categories of phenomena, then we will no longer be surprised to find systematic inconsistencies in it ? not as a fault or liability, but as essential to its functions. And that will provide new ways of working on problems that arise in any abstract, conceptual thinking, problems that have been central in traditional philosophy but that occur as often in political or social theory and other fields.237In this way, Wittgenstein moves from his picture of language as generated through practice to a methodology for theoretical inquiry. If we try to take all the different uses of a term from all its different contexts in order to develop a unified, abstract definition, we will always be including numerous different and potentially contradictory elements of meaning. This creates definitions 235 Pitkin, ?Wittgenstein and Justice,? supra note 150 at 85.236 It is interested to note that Wittgenstein's overall approach to meaning as generated through use has affinities with the way meaning is generated in the common law. See Ibid at 60.237 Ibid at 4. 96with inherent and unresolvable internal tensions. And this can lead to what Wittgenstein calls ?conceptual puzzlement.?Conceptual puzzlement describes what happens when we encounter some theoretical dilemma that seems intractable. It may seem that we are forced to choose between two problematic alternatives. Or, it may seem that, somehow, both sides in a debate are right, although they are logically incompatible.238 It may seem that the answers we come up with no longer assist us in addressing the problems that led us to ask the question in the first place. We are not satisfied, but we do not know how to move forward. Conceptual puzzlement is what happens when we try to address a philosophical problem, but we are ?held captive? by our picture of language as a system of signs.Examples of conceptual puzzlement can be found where theorists are attempting to find one true definition for a complex concept. In the field of law, the question ?what is law?? has led to debates that are illuminating but are also characterized by conceptual puzzlement. 239 In the field of feminist theory, the question: ?what is a woman?? has yielded debates that are similarly of pressing importance but also full of frustrating paradoxes.240Abstract inquiry encourages us to generalize from only one type of context, thus stretching one 238 Ibid at 6.239 HLA Hart, The Concept of Law (London: Oxford University Press, 1961); Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964); Lon Fuller, ?Positivism and Fidelity to Law - A Reply to Professor Hart? (1957) 71:4 Harv L Rev 630.240 See Heyes, ?Back to the Rough Ground,? supra note 211; Munro, supra note 127. 97meaning of a concept into other contexts where it actually needs to shift or transform in order to make sense. What is happening in cases of conceptual puzzlement is not exactly that we are mistaken in some way, but rather that we are generalizing from only one type of example.241 So methodologically, rather than directing our energies towards determining the true meaning of a concept, we need to broaden the types of examples we look to in order to learn about the range of meanings that the concept can hold. Therefore, in this dissertation, what I seek in legal and scholarly texts are new examples of the invocation of ?common sense,? situated in different kinds of discursive and legal practices, and suggestive of different ?aspects? of common sense.Faced with the task of choosing examples for comparison, it becomes essential to explain on what basis I choose my examples. The way examples are chosen and interpreted matters a great deal.242 For Wittgenstein, the only necessary criterion for a useful example is its capacity to generate a change of aspect. Like ordinary language philosophers, Wittgenstein seeks examples from the everyday use of language. The approach to perspicuous representation I employ in this dissertation contains a further complicating component because I argue, with feminist theorists, that the systems of judgment that give rise to our pictures of the world must be understood as imbued with the effects of power and inequality. This means that I must ask not only how an example is new or different as compared with our existing picture of the world, but also how the example relates to the social relations that structure our existing picture. Like Wittgenstein, I argue that the criterion for selecting an example for perspicuous representation is its capacity to generate a change of aspect. However, I draw on feminist and postcolonial scholarship that tells 241 Pitkin, ?Wittgenstein and Justice,? supra note 150 at 91.242 Taylor, ?Comparison, History, Truth,? supra note 222. 98us that there are connections between pictures of the world and power relations, and we will learn different things if we choose our examples from the centre or from the margins of social life.Feminist theorists have, in different ways, demonstrated the epistemological and political value of attention to marginalized or excluded perspectives. This arises from feminist insights about the need to listen to voices that may otherwise be unheard by researchers, in part because of the way different social experiences generate access to different kinds of knowledge.243 Feminist writing on methodology demonstrates the importance of attention to new, different, alternative or subaltern ways of determining what questions need to be asked.244In addressing the political and epistemological significance of social location, some feminist theorists have usefully engaged with the concept of marginality. The idea of looking at something from the margins relates both to the need to include oppressed or excluded points of view, and the need to provide alternative perspectives on what makes up the ?centre.? A position on the margin may be neither ?inside? nor ?out;? it is on the margin, the line that divides one thing from another. Alternatively, it may be both ?inside? and ?out.? And therefore perspectives from the margins can be very useful in thinking about both dominant and non-dominant perspectives. Some of the most nuanced articulations of the concept of the margin appear in the work of feminist and critical race theorists bell hooks, Patricia Hill Collins and 243 Nancy C M Hartsock, ?The Feminist Standpoint: Developing the Ground for a Specifically Feminist Historical Materialism? in Sandra Harding, ed, Feminism and Methodology: Social Science Issues (Bloomington: Indiana University Press; Open University Press, 1987) 157.244 Hill Collins, supra note 144. 99Patricia Williams.In one of her influential texts on marginality, bell hooks describes her childhood in a small Kentucky town. She writes: ?Living as we did ? on the edge ? we developed a particular way of seeing reality. We looked both from the outside in and from the inside out. We focused our attention on the center as well as on the margin. We understood both.?245 For hooks, the margins are not only a place of knowledge but also of creativity and resistance, a place of ?radical openness:? ?Marginality [is] the site of radical possibility, a space of resistance....It offers to one the possibility of radical perspective from which to see and create, to imagine alternatives, new worlds.?246Patricia Hill Collins uses the language of the ?outsider within? to describe the experience of sitting on the margins of a social practice, reflecting on how it affects not only one's understanding of others but also one's self understanding.247 Hill Collins argues that Black women's experiences as ?outsiders within? academia provide an opportunity for knowledge and creativity that rebounds to affect a variety of individuals and communities who experience discomfort with dominant assumptions. She argues that understanding one's position on the margin is a transformative experience that is bound to create tension, but that taking seriously one's own biographical experiences as a source of knowledge and critique encourages diversity and strengthens scholarship as a whole.248245 hooks, supra note 144 at 51?52.246 Ibid at 52.247 Hill Collins, supra note 144.248 Ibid at 55. 100Speaking directly to the context of the legal academy, Patricia Williams advocates for a form of scholarship that takes seriously the complexity of life (which becomes so acutely apparent for those on the margins in this sense, who are both insider and outsider). She writes: ?That life is complicated is a fact of great analytic importance.?249 Williams articulates this more fully in her call for a ?multivalent way of seeing? as a methodology. When summarizing the task of critical theory, Williams writes: ?the perspective we need to acquire?is a perspective that exists on all three levels and eighty-five more besides ? simultaneously. It is this perspective, the ambivalent, multivalent way of seeing, that is at the core of what is called critical theory, feminist theory, and much of the minority critique of law. It has to do with a fluid positioning that sees back and forth across boundary, which acknowledges that I can be black and good and black and bad, and that I can also be black and white, male and female, yin and yang, love and hate.250Here, the approach Williams advocates bears some similarity to Wittgenstein's ?perspicuous representation.? Indeed, Scheman notes that the fact that feminist interpreters of Wittgenstein are drawn to Williams is no coincidence, and arises from a shared interest in finding approaches that help to understand social phenomena (such as law) as practiced within particular social contexts.251Drawing on this literature on marginality, Naomi Scheman argues that the concept of marginality also assists in understanding the potential of Wittgenstein's philosophy for feminist scholarship.252 Scheman argues that feminists in the academy occupy a ?privileged marginality? 249 Williams, supra note 78 at 10.250 Ibid at 130. Matsuda argues for a similar approach to the task of feminist, anti-racist legal judgment: Mari J Matsuda, ?When the First Quail Calls: Multiple Consciousness as Jurisprudential Method? (1989) 11 Women?s Rts L Rep 7.251 Scheman, ?Introduction,? supra note 172 at 16.252 Naomi Scheman, ?Forms of Life: Mapping the Rough Ground? in Hans Sluga & David G Stern, eds, The Cambridge Companion to Wittgenstein (Cambridge: Cambridge University Press, 1996) 383 [?Forms of Life?]. 101that can be used as a resource for knowledge and creativity. Further, Scheman argues that the concept of marginality provides a way to understand how Wittgenstein's methodology can be used to move past debates about the foundations of knowledge. She argues that[T]he epistemic resources of variously marginal subject positions provide the ground for a critique of "what we do" that rejects both the possibility of transcending human practice and the fatalism of being determined by it, but that those resources are not available to someone who is unwilling or unable to stand on that ground. ... For complex reasons...Wittgenstein himself was so unwilling or unable.253Scheman argues that this shared commitment to exploring what can be learned from practice, in a way that acknowledges both agency and social constraint in meaning, is a strong point of similarity between Wittgenstein and feminist theorists. By taking up Wittgenstein to explore the importance of marginality in generating insight, feminist theorists are fulfilling some of Wittgenstein's most important ideas. Indeed, she writes, ?Wittgenstein's truest philosophical heirs and most faithful interpreters might well be found among people he would never have acknowledged as allies.?254This dissertation exists in tension with some of these insights about marginality. Indeed, in addition to my personal membership in communities of privilege, this dissertation is concerned with concepts and practices that lie very close to the centre of powerful institutions and communities: the words of judges, the interpretation of state law, and the notion of legal rights as a significant part of justice in a liberal democracy. The very notion of ?common sense? itself claims to take up space, not at the margins, but right in the middle of community knowledge and 253 Ibid at 387?8.254 Scheman, ?Introduction,? supra note 172 at 20. 102practice. However, my research is structured by these feminist insights about centre and margins in two essential ways. First, theorizing the value of the margins, ironically, (but crucially), reinforces the need to attend to the ?centre? as a subject of inquiry, not because all value or explanation can be found there, but because it is useful to scrutinize things that are usually assumed. For example, in his work on postcolonial theory, Dipesh Chakrabary calls this ?provincializing Europe?: the practice of questioning and subjecting to research those parts of life that play a central, stable, or historical role in relation to the social questions at hand.255 This approach has played a large role in motivating my study of ?common sense? which often functions precisely to identify knowledge that lies outside the realm of critical scrutiny, right at the centre. I study something from the ?centre,? not to reinforce its significance, but to reveal its particularity, its contingency, and its relationship to other social practices.Second, although I may have access to the ?privileged marginality? of a feminist in the academic world, I do not purport to conduct the kind of analysis that Williams, hooks and Hill Collins do when they speak about race and scholarship. However, I do adopt methodological concepts that are informed by feminist insights on marginality. At the most fundamental level, the literature on marginality demonstrates that whether something exists at the centre or at the margins of public life matters, both politically, conceptually and epistemologically. Further, things that exist on the boundary between ?inside? and ?out,? things that trouble the boundary 255 Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton: Princeton University Press, 2000). 103itself, are often especially interesting and potentially valuable. I suggest that ?common sense? is one such thing. Most importantly, literature on marginality demonstrates the need to adopt a multivalent, complex perspective when investigating social phenomena; to hesitate before establishing abstract definitions and certain judgments. On the basis of these feminist insights, I highlight these elements in my interpretation of what it means to create a ?perspicuous representation.? Reflexivity and political accountability?Perspicuous representation? is a particularly apt methodology in the context of ?common sense? and legal judgment because of the way it can help articulate the relationships between meaning and politics. As noted above, Wittgenstein's approach provides a way of thinking about meaning that goes beyond knowledge or information; inherited ?pictures? also involve political and psychological habits and commitments. This means that there are things ?we have a stake in not knowing.?256 Those who benefit from unequal social relationships can have an interest in maintaining a ?studied ignorance and privileged innocence? when it comes to questions about justice.257 Indeed, as can be seen from the problematic nature of ?common sense? itself, people may be especially certain of things that are, in fact, most worthy of challenge. 256 Pitkin, ?Wittgenstein and Justice,? supra note 150 at ix.257 For discussions of this phenomena by legal scholars, see for example: Bruce Feldthusen, ?The Gender Wars: ?Where the Boys Are?? (1990) 4 CJWL 66; McIntyre, ?Keeping Equity Academic,? supra note 57. 104In response to this dilemma, I draw on feminist theory to articulate the need for reflexivity in thought and attention to the situated life of the researcher. This challenges me to ask questions about the relationship between my own background and the subject of my research.258 As an individual and a member of numerous communities, I too have pictures of the world grounded in systems of judgment, and it is part of my methodology to reflect on this in relation to my subject matter. Without this step the therapeutic effect of perspicuous representation would be compromised. What about my own common sense? Here, it is important to note that my interest in the injustices of poverty arises from a certain political perspective but not from personal experience of living in poverty. As a middle class white woman, my life path has brought me into contact with various kinds of inequality and oppression, including some periods of low-income status as a university student, but I have not yet experienced anything like the kind of economic hardship or insecurity that is generally understood to count as ?poverty? in Canada, and my life is such that this possibility does not loom large in my imagined future. I parent my children in a heterosexual partnership and secure in my expectation that I will be able to provide for them. I read through a lens of privilege, created on several axes including race and class. This is important because of the way that ?research? can be related to power.259In this respect, my choice of the term ?poverty? to describe my subject matter is worthy of elaboration. When speaking about poverty, I aim to address a range of issues about injustice, when that injustice is rooted in or entangled with class, economic inequality, and/or material 258 Sandra Harding & Kathryn Norberg, ?New Feminist Approaches to Social Science Methodologies: An Introduction? (2005) 30:4 Signs: Journal of Women in Culture and Society 2009.259 Chakrabarty, supra note 255; Cossman, supra note 143; Williams, supra note 78; Smith, supra note 117; Neil Gotanda, ?The ?Common Sense? of Race? (2010) 83 S Cal L Rev 441. 105deprivation. I argue that poverty, while always having a material component, engages with all three axes of justice described by Fraser: distribution, recognition and representation. Among anti-poverty advocates and low-income communities, there is ongoing debate about the term ?poverty,? and particularly whether people wish to describe themselves as ?poor? rather than, for example, ?low-income.? The term ?poverty? carries with it a history of judgment and exclusion and can operate as a strong moral label. I have chosen to use the term ?poverty? because I feel that it captures a broader range of issues including inequality and marginalization, that may not be included by ?low income.? I am mindful that the right and capacity of communities to describe themselves is directly related to my research on common sense and communities.260 Thus, the method of ?perspicuous representation? assists in understanding the relationship between meaning and politics because it can take account of the way judgments ? such as my decision to use the word ?poverty? in this dissertation ? are related not only to knowledge but also to interests, social context, and political will. It makes more transparent the process of holding to account ? both politically and conceptually ? for the judgments made here and in the context of legal judgment. And it reinforces once again the importance of maintaining a methodological attitude of openness and multiplicity and an openness to revision when necessary.The methodology of perspicuous representation acquires its political force because of the ways 260 Charles Taylor also argues that adequately reflective judgment can be liberating both to the ?self? and ?other:? Taylor, ?Comparison, History, Truth,? supra note 222 at 164. 106in which we create meaning, in part, through our choices and actions.261 This is particularly fruitful for this study, which is concerned with ?common sense? (a concept constantly shifting between categories of ?knowledge? and ?practice?) and with the adequacy of legal judgment measured against the demands of feminist, anti-poverty politics. This theme of practice and action as the home of meaning hearkens back to Wittgenstein's characterization of the method of perspicuous representation as a form of therapy. Perspicuous representation aims to challenge captivity by generating a change of aspect, an experience that alters a person's relationship to an idea and the way it is used. It requires attention not only to information but also to social context and to broader epistemological, political and psychological commitments. 262 In this context, the value of juxtaposition, of seeing new aspects and alternative pictures of the world becomes more clear: when we break free of captivity to a given picture, we become able to change and modify that picture. And thereby we change and modify our relationship to practices and social life.Wittgenstein argues that when we consider alternative pictures of the world, the important question is how these alternative pictures relate to alternative ways of life. The real question about challenging captivity to a picture is: ?what difference does it make??263 That is, if we break free from our captivity, and change the content of the system of beliefs that frames our judgment, how does this affect the specific social practices that form the context for the picture? What difference does it make to our lives, our ability to get out of locked rooms, our practices of 261 Wittgenstein, ?OC,? supra note 146, sec 204.262 The therapeutic effect of perspicuous representation is that it generates a change in aspect. The experience of this change might be an unpleasant one. In this research, I am particularly mindful of the risk that recognition of privilege can be unpleasant for the privileged person, and that the hurt feelings of a privileged person can operate to shut down discussion and reinforce oppression. See Williams, supra note 78.263 Havercroft, supra note 166 at 157. 107legal judgment? For feminist and critical social theorists, these different ways of living are subject to evaluation against political criteria, including the question of what community is the relevant point of reference. Here, the real question is: ?what difference does it make, to us, in ways that matter to us??264 Thus for feminist scholarship, including this dissertation, it is political and social inequality that serves as the motivation for challenging of aspectival captivity. The problem with the way many questions are posed and addressed is not just that they result in philosophically unsatisfying answers, but that they fail to provide knowledge or analysis that is useful for understanding and thus challenging oppression and inequality.265 What is at stake in our captivity is our capacity to envision and realize alternative, more just, pictures of the world. 266The methodology of perspicuous representation also carries with it the challenge to take responsibility for the political and moral choices that ground meaning. Acts of judgment come to an end, not with some foundational knowledge, but with the practices we engage in. Making this point in relation to political claims invoking the category ?women,? Zerilli argues:To say that every claim to the category of women inevitably excludes the very individuals it is supposed to unite and thus inevitably generates refusals to accept the category is to miss the whole point of politics. Politics consists precisely in the making of claims, which, being claims, are inevitably partial and thus exclusive. Acting politically is about testing the limits of every claim to community; it is about positing agreement and discovering what happens when that agreement breaks down or simply fails to materialize in the first place. That 264 Owen, supra note 156 at 84?5.265 Fraser, ?What's Critical,? supra note 5 at 31.266 For another discussion of ?what is at stake,? see Charles Taylor, ?Overcoming Epistemology? in Philosophical Arguments, (Cambridge MA: Harvard University Press, 1997) 1. 108the claim "we women demand x" excludes some women turns not on the theoretical insight (in the philosopher's study) into the exclusionary character of the category of women but rather on the political character of making claims (in a public space.)267Thus, claims about what pictures require challenge and revision are ultimately grounded in political judgment, and must be held on political, as well as epistemological, grounds. Because the methodology of perspicuous representation is oriented towards better understanding of the questions we ask about social life, rather than resolving those questions, it requires us to take responsibility for the inherently political ways in which our queries ultimately end.In the context of legal judgment, challenging the ?picture? that shapes our understanding of common sense opens the door to thinking about and using common sense in new ways, leading to better practices of legal judgment. In this way, this dissertation resists Wittgenstein's insistence that perspicuous representation functions purely to achieve clarity, for its own sake; to dispel theoretical problems plaguing philosophers. At the same time, my approach to perspicuous representation does take seriously Wittgenstein's insistence that concepts acquire their meaning in particular contexts, and that perspicuous representation is a tool, not to find some transcendent meaning, but to address a particular form of aspectival captivity. In this study, feminist and anti-poverty critiques provide the social and discursive motivation for challenging the ways in which our picture of common sense is not satisfying our need to fully make sense of judgment, including legal judgment. And these critiques also provide the political criteria for determining whether an attempt to free ourselves from captivity to that 267 Zerilli, ?Doing without Knowing,? supra note 152 at 148. 109picture has succeeded. 110Chapter 3 ? Thomas Reid's common sense: Accountability for judgment and the boundaries of debateWe jostle for seats at London's Haymarket Theatre, circa 1736. We find ourselves sitting beside Thomas Reid, a philosopher and Presbyterian minister arrived from Aberdeen, twenty years into the future. Our neighbour observes most of the proceedings with a serious expression, but breaks into raucous laughter at the biting satire. One character tries to awaken the sleeping Queen Common-Sense by describing how Common Sense protects against all kinds of nonsense and deceit. Reid nods his head wryly.Awake, great Common Sense, and sleep no more,.... for while thou art on Earth,The Convocation will not meet again.The Lawyers cannot rob Men of their Rights;Physicians cannot dose away their Souls:A Courtier's Promise will not be believ'd;Nor broken Citizens again be trusted.A thousand News-papers cannot subsist,In which there is not any News at all.Play-houses cannot flourish, while they dareTo Nonsense give an Entertainment's Name.268And as the play concludes, Common-Sense now dead, Reid applauds the final speech of the Ghost of Queen Common-Sense:And all the Friends of Ignorance shall find,My Ghost, at least, they cannot banish hence.And all henceforth, who murder Common-Sense,Learn from these Scenes that tho' Success you boast,You shall at last be haunted with her Ghost.269268 Fielding, supra note 3 at IV.2.269 Ibid at V.1. 111IntroductionThis chapter begins the task of building a ?perspicuous representation? of common sense in legal judgment. Here, I explore the ?aspect? of common sense that becomes visible when looking at common sense from the perspective of the 18th century Scottish philosopher Thomas Reid, whose writings are central in the political and intellectual history of common sense. Reid uses the phrase ?common sense? to mean a body of shared knowledge based in daily life and possessed by most everyone. Reid argues that this practical common sense knowledge is a form of knowledge no less true or meaningful than the structured knowledges of experts, including philosophers. In some respects, his perspective on common sense shares a great deal with the general view on common sense that tends to capture discourse on law. For example, there is the notion of common sense as a body of shared knowledge, and an egalitarian impulse that sometimes manifests itself in the form of exasperation at elite or technical knowledges. But Reid is also interested in how common sense relates to the exercise of independent and accountable judgment, and how it rhetorically shapes the boundaries of legitimate debate. Thus, when we take seriously the methodological exhortation to ?look and see,? Reid's approach turns out to be nuanced in interesting ways that begin to complicate the ?picture? of common sense that tends to dominate debates on common sense and legal judgment.Reid's ?aspect? of common sense ? that is, common sense as a body of common knowledge ? brings attention to accountability, expertise and the boundaries of debate. Reid's approach places a high value on non-expert knowledge and the experiences of daily life, which can help 112generate criteria for good legal judgment in the context of diversity and inequality. Said another way, adopting Reid's approach would call on judges who invoke ?common sense? to value the common knowledge of ordinary people. In addition, Reid calls for close attention to the roles of language and rhetoric in legal judgment, allowing us to see how ?common sense? can set the boundaries of legal debate. Yet the encounter between Reid's approach and the use of common sense in legal judgment also provides a framework for critical consideration of Reid's writings. Thinking about common sense in legal judgment, in particular, shows that his arguments rely on broad generalizations across social groups, and view human knowledge and conduct as transparently linked. These elements of Reid's approach allow ?common sense? to fall too easily into uncritical majoritarianism, and provide little assistance in the quest to make legal judgment more reflective. Reid's approach as a problematic as it is helpful.This chapter has two parts. In the first part, I describe in more detail the ?aspect? of common sense that becomes visible when reading Reid. I focus on three themes. First, I describe how Reid relates common sense to the practice of judgment. Reid argues that common sense, rather than rules or expertise, necessarily grounds the exercise of judgment, and that common sense facilitates accountability for judgment. Second, I explore Reid's claim that common sense knowledge is, in some senses, universal, and the ways in which this has the effect of setting the boundaries of legitimate debate. Third, I discuss some of the rhetorical effects of common sense language and Reid's qualified advocacy of ridicule as a rhetorical strategy. 113In the second part of this chapter, I investigate how Reid's aspect of common sense ? that is, the understanding of common sense as a body of shared knowledge that frames our judgment ? speaks to legal judgment specifically. What happens to our understanding of legal judgment if we think of ?common sense? in this way, or from this aspect? In this part, I discuss the Supreme Court of Canada's decisions in Vetrovec v. The Queen270 and R. v. D.(D.),271 in which the Court appeals to ?common sense? to explain the basis on which judges and juries should assess the credibility of witnesses. In these cases, ?common sense? is used in contradistinction to expert evidence and to legal rules. I also return to the case of Gosselin, to explore the invocation of ?common sense? in that case, against this discussion of common knowledge and the assessment of credibility. Reid's approach focuses attention on the nature of judgment, and how it is structured or constrained by systems of rules, and specific bodies of knowledge. It also focuses attention on the criteria we use to assess accountability for judgment, and the boundaries of legitimate legal debate. All of these issues are important when thinking about how to make ?common sense? a part of fully reflective legal judgment that can address the injustices of poverty and social marginalization.This chapter will show that Reid's approach contains an inherent tension that is important for legal judgment. On one hand, Reid is committed to a kind of democratic epistemology, in which everyone shares equally in common sense. On the other hand, his works reveal a nascent discomfort with what to do about purported common sense claims that may be misled by error or limited by unduly insular social discourse. Reid recognized that even his own understanding 270 Vetrovec, supra note 220.271D.D., supra note 27. 114could be so limited.272 And yet the power of his notion of common sense comes from its claims to be universal and communal. This tension is what allows this first ?aspect? of ?common sense? to begin to shake free our captivity to an unsatisfying understanding of common sense, freeing us to develop one that is more complex and ultimately more useful for legal judgment.Thomas Reid on common senseJudgment and accountabilityThomas Reid (1710-1796) was a philosopher and Presbyterian minister whose work is central in the intellectual history of common sense, and who was one of the founders of the Scottish School of Common Sense Philosophy.273 Reid spent the earlier part of his life in the small northern city of Aberdeen, which provided a very particular context for his intellectual work. Aberdeen in the 18th century, like the larger urban centres of Edinburgh and Glasgow, was part of the intellectual and social phenomenon known as the Scottish Enlightenment.274 However, Aberdeen was more isolated both politically and economically, with strong connections to traditional, agricultural ways of life and to the institutions of the Presbyterian Church. In some ways, Aberdeen was a parochial and conservative place. At the same time, Aberdeen was also relatively free of some of the social and political conflicts of larger cities, which helped generate 272 Thomas Reid, Essays on the Intellectual Powers of Man (Edinburgh: Edinburgh University Press, 2002) at 46 [?Essays?].273 For general information about Reid's life and work see: Gideon Yaffe & Ryan Nichols, ?Thomas Reid? in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy, Winter 2009 ed (2009), online: <http://plato.stanford.edu/archives/win2009/entries/reid/>.274 Alexander Broadie, The Scottish Enlightenment: An Anthology (Edinburgh: Canongate Classics, 1997). 115a kind of intellectual tolerance and a commitment to freedom of inquiry. 275 And it was in this context of strong social traditions and relatively unfettered intellectual inquiry that Reid helped found the Philosophical Society of Aberdeen in 1758 (known as the ?Wise Club?).276 The members of this society met to discuss a wide range of topics, with the goal of self-improvement as well as the advancement of society generally.277 Particularly important to the group were questions about evidence and proof, and the way people came to know things.278 Reid and his colleagues were critical of epistemological skepticism, including that of their Scottish contemporary Hume, and they thought that skepticism undermined both intellectual inquiry and moral and community life.279 The members of the Wise Club, including Reid, thought that truly free ?scientific? thought led, not to skepticism, but to common sense. In the doctrine of common sense, Reid and his colleagues found a way to ground both their traditional religious and moral beliefs and practices, and their commitment to unconstrained, autonomous thinking.280Reid's most important writings on ?common sense? are contained in the two books An Inquiry into the Human Mind on the Principles of Common Sense (1764)281 and Essays on the Intellectual Powers of Man (1785).282 Reid employs the term ?common sense? throughout his work.283 However, his explicit discussion and definition of the term ?common sense? appear in 275 Rosenfeld, supra note 86 at 63.276 Ibid at 65.277 Ibid at 65?66.278 Ibid at 67.279 Ibid.280 Ibid at 67?69.281 Thomas Reid, An Inquiry into the Human Mind on the Principles of Common Sense (Edinburgh: Edinburgh University Press, 1997) [?Inquiry?].282 Reid, ?Essays,? supra note 272.283 For commentary on Reid's philosophy of common sense, see Stephen Boulter, The Rediscovery of Common Sense Philosophy (New York: Palgrave Macmillan, 2007); John Coates, The Claims of Common Sense: Moore, Wittgenstein, Keynes and the Social Sciences (Cambridge: Cambridge University Press, 1996); J Houston, 116Chapter VI of the Essays, which is called ?Of Judgment.?284 Reflecting an interest in common language that is both substantive and methodological, Reid defines ?common sense? according to how he understands it being used in the common language he hears around him. Reid notes that for philosophers, the word ?sense? often means ?the power by which we receive certain ideas or impressions from objects.?285 But Reid thinks that the phrase ?common sense? means more than this, and he points out that in common language, ?sense? implies not only the receipt of sensory information, but also some evaluation of that information.286 From this perspective, ?common sense? is necessarily bound up with assessments of what we perceive, that is, with judgment. Reid writes:[I]n common language, sense always implies judgment. A man of sense is a man of judgment. Good sense is good judgment. Nonsense is what is evidently contrary to right judgment. Common sense is that degree of judgment which is common to men with whom we can converse and transact business.287Reid argues that there is no good reason for departing from common language in this case, and, on this basis, pursues his discussion of ?common sense? on the basis that it is intertwined with judgment and evaluation.288 Reid's idea of common sense emerges in the context of his ideas about the task of a philosopher, Thomas Reid: Context, Influence and Significance (Edinburgh: Dunedin Academic, 2004); Lemos, supra note 1; Marcil-Lacoste, supra note 229; Nicholas Wolterstorff, Thomas Reid and the Story of Epistemology (Cambridge, U.K: Cambridge University Press, 2001); Nicholas Wolterstorff, ?Reid on Common Sense? in The Cambridge Companion to Reid (Cambridge: Cambridge University Press, 2004) 77 [?Reid on Common Sense?].284 There are interesting methodological issues arising from Reid's choice to defer an explicit definition of this key term until far into his second book. Philosopher Louise Marcil-Lacost argues that Reid was not so much describing a common-sense philosophy as demonstrating how one would work: Marcil-Lacoste, supra note 229 at 76?79.285 Reid, ?Essays,? supra note 272 at 423.286 Ibid.287 Ibid at 424.288 Reid's ideas about the connection between common language and common sense greatly influenced later thinkers: Austin, supra note 218; Moore, supra note 195. 117and what it means to engage in philosophical thinking.289 Specifically, Reid turns to ?common sense? as a way to respond to the claims of philosophical skepticism.290 Reid argues that common sense forms the background against which we assess other claims, including philosophical claims.291 Against both idealist and empiricist versions of epistemological skepticism (which would value only reason or raw sense data as determinative of truth), Reid defends ?common sense? as a legitimate basis for testing philosophical claims.292 For example, Reid argues that common sense knowledge leads us to have faith in the reliability of our senses. As a legitimate framework for assessing truth, this common sense knowledge provides us with good reason to be very wary of the claims of skeptical philosophers who insist that our senses are fallacious, or that we must assume that our sensory perceptions are meaningless for the purposes of real knowledge.293Reid also argues that common sense necessarily plays a role in the actual practice of philosophy.294 Turning again to the example of the common sense belief that we can rely on our 289 Wolterstorff, ?Reid on Common Sense,? supra note 283 at 77.290 ?The skeptic who preoccupied Reid was a foundationalist of the classically modern sort who tried to lay on the philosopher the obligation to use the deliverances of reason and of introspection to assess the reliability of all other belief-forming faculties. To fail to devote oneself to this task of critique is to defect from the high calling of the philosopher to live the life of reason; it is to live as the herd lives.? Nicholas Wolterstorff, ?Reid on Common Sense, with Wittgenstein?s Assistance? 74:3 American Catholic Philosophical Quarterly at 216 [?With Wittgenstein's Assistance?].291 Lemos, supra note 1 at 5. 292 There are two strands of thought about ?common sense? in Reid. Nicholas Wolterstorff describes the two strands in these terms: ?Sometimes he thinks of the principles of common sense as first principles of our reasoning; at other times he thinks of them as things taken for granted in the living of our everyday lives.?: Wolterstorff, ?Reid on Common Sense,? supra note 283 at 82. Noah Lemos writes that sometimes Reid appears to be saying that common sense knowledge has ?positive epistemic value,? and other times that it is merely ?irresistible:? Lemos, supra note 1 at 16, 22. The distinction between these two strands in Reid does not play a role in this chapter, because both strands speak to ?common sense? as a part of judgment. I discuss the ways in which Reid's writings address both normative and empirical commonality for common sense knowledge in the following section.293 Reid, ?Essays,? supra note 272 at 480.294 Reid's description of the task and social role of the philosopher has quite radical elements, in the sense that he rejects the ?high calling? of the philosopher in favour of the idea that philosophers base their thinking on exactly the same common sense beliefs that ground everyone's everyday activity: Wolterstorff, ?Reid on 118senses, he argues that even those philosophers who claim to doubt their senses in their philosophical work never actually doubt them in their daily lives. In characteristically witty form, Reid writes that he ?never heard that any sceptic run his head against a post, or stepped into a kennel, because he did not believe his eyes.?295 It is significant for Reid that the philosopher who professes to doubt his or her senses is an actual human being, one and the same as the person who, in fact, relies on those senses. And he insists that philosophizing, just like walking, is an inherently human activity which should not be understood as divorced from other parts of life.Reid argues that the daily life judgment that prevents one from walking into a post, and the philosophical judgment one practices in reflective thinking, are both grounded in common sense. Philosopher and religious scholar Nicholas Wolterstorff writes that according to Reid, ?[p]hilosophers are related to the principles of common sense in the same way everybody else is - and in the same way that he, the philosopher, is related when not engaged in philosophy.? 296 Further, for Reid, this common sense background is not only inevitable but also valuable. Disconnected from common sense, philosophy loses its ability to meaningfully speak to human life. Reid says:Philosophy...has no other root but the principles of Common Sense; it grows out of them, and draws its nourishment from them. Severed from this root, its honours wither, its sap is dried up, it dies and rots.297At the same time, Reid's idea of common sense knowledge does not describe it as infallible, and Common Sense,? supra note 283.295 Reid, ?Essays,? supra note 272 at 46.296 Wolterstorff, ?Reid on Common Sense,? supra note 283 at 96.297 Reid, ?Inquiry,? supra note 281 at 19. 119he is interested in exploring the boundaries of the usefulness of common sense. In his writings, he notes our tendency to over-value authority298 and to interpret new things in light of things we are already familiar with.299 The best way to approach these realities of human judgment is not to use them as the basis for rejecting everything about our common ways of thinking, but rather to address them as part of a larger whole with strengths and weaknesses.The function of Reid's common sense knowledge in judgment is to provide a kind of background against which we assess things. We use common sense to decide whether to affirm or deny the plausibility of some other claim. When something seems to defy common sense, we are less likely to judge it true or meaningful. In this way, common sense knowledge creates a kind of burden of proof that other claims must meet.300 This means that rather than forming a body of positive knowledge, common sense tends to remain invisible until challenged.301 When challenged (for example, by the views of epistemological skeptics who argue that we cannot trust our senses), common sense knowledge comes into view and forms the basis of a judgment (here, a judgment that tends to reject those skeptical claims).Reid argues that common sense knowledge is made visible not by our ability to state it in general or abstract terms, but through our practical reliance on it in daily life. For Reid, the ?inner conviction? evidenced by a person's actions reveals a judgment.302 Reid argues that a 298 Reid, ?Essays,? supra note 272 at 528.299 Ibid at 529.300 This idea of a burden of proof is often invoked by philosophers defending common sense. See Lemos, supra note 1; Moore, supra note 195; Boulter, supra note 283.301 Reid, ?Essays,? supra note 272 at 41.302 Ibid at 409. Note that here Reid is relying on a notion of ?belief? in which there is a fairly transparent correspondence between one's beliefs and one's actions. This contrasts with the views of other theorists who appear in this dissertation, especially Gramsci and Wittgenstein. 120person who demonstrates faith in his or her senses has made a judgment that his or her senses are worthy of this credit:When a man in the common course of his life gives credit to the testimony of his senses, his memory, or his reason, he does not put the question to himself, whether these faculties may deceive him; yet the trust he reposes in them supposes an inward conviction, that, in that instance at least, they do not deceive him.303Thus, Reid's common sense is related to the practices of daily life because it is in daily life that common sense develops, and it is through daily life that common sense becomes visible.The practical and quotidian nature of common sense knowledge also means that, unlike science or abstract philosophy, which rely more on certainty and clarity for their usefulness, common sense works well even though it is uncertain. If asked, few people could identify the contents of their ?common sense? precisely in advance. Reid argues that the ways in which common sense knowledge is ill-defined do not work against common sense as true or meaningful, but actually supports its usefulness in context. In a passage foreshadowing Wittgenstein, Reid argues that the unclear boundaries of common sense do not pose a problem when understood in the right context:What the precise limits are which divide common judgment from what is beyond it on the one hand, and from what falls short of it on the other, may be difficult to determine; and men may agree in the meaning of the word who have different opinions about those limits, or who even never thought of fixing them. This is as intelligible as, that all Englishmen should mean the same thing by the county of York, though perhaps not a hundredth part of them can point out its precise limits.304In this way, the vagueness and ill-defined boundaries of common sense knowledge do not 303 Ibid at 482. 304 Ibid at 427. 121detract from its value; rather, these moments of vagueness and imprecision speak to the practical usefulness of the common sense.305 Although undefined in advance, once challenged, common sense knowledge is revealed as self-evident.306 This means that we generally accept common sense knowledge as obviously true. Common sense beliefs are self-evident in the sense that we do not generally have reasons for believing them, nor do we usually think that such reasons are required. For example, if challenged, I would say that I believe that my senses provide me with accurate information about the world. This belief comes from my daily life experiences. I did not arrive at this belief by acquiring reasons to support it (such as, for example, learning information about how nerves function). I cannot fully explain or justify why I have such confidence in my senses, other than to point to my ongoing reliance on this belief in my life. Further, Reid argues, if we attempt to locate the reasons for our common sense beliefs or try to justify them on the basis of logic, we find the reasons themselves are not as convincing as the original belief.307 Thus, all the reasons I can find in support of my belief in the reliability of my senses (ranging from neuroscience to metaphysics) are, in themselves, less certain to me than my original belief. In this way, common sense beliefs come to form the ?first principles? of other kinds of knowledge.308305 Coates, supra note 283.306 Ibid at 15; Reid, ?Essays,? supra note 272 at 452.307 Reid, ?Inquiry,? supra note 281 at 18.308 As noted earlier, Reid scholars sometimes note two strands in Reid's writings about the possible epistemic value of common sense propositions (i.e. whether we can say that common sense is really ?true,? or whether we simply have no option but to believe it). This distinction, whether it appears in Reid or his interpreters, does not play a role in this dissertation because the connections to judgment and daily life remain the same. Philosopher Noah Lemos argues that the strand in Reid that identifies some positive epistemic value for common sense beliefs is what distinguishes Reid from Wittgenstein, who is not interested in claiming that common sense is ?true? in that way. Lemos, supra note 1 at 1, 6, 16, 20, 21. 122The fact that common sense beliefs are not held on the basis of reasons means that the content of common sense knowledge has to be approached differently and more carefully than other kinds of knowledge. Reid writes:There are ways by which the evidence of first principles may be made more apparent when they are brought into dispute; but they require to be handled in a way peculiar to themselves. Their evidence is not demonstrative, but intuitive. They require not proof, but to be placed in a proper point of view.309Reid argues that the mistake of some philosophers, such as his skeptical contemporaries, is to confuse the boundary between self-evident, common sense propositions and the propositions of reason and philosophy that can be built upon them. Thus, these philosophers have tried to seek reasons in support of common sense knowledge, and, finding no adequate ones, declare common sense knowledge invalid.310 This is to misunderstand the notion of common sense.Reid argues that if we refuse to acknowledge the role of common sense in all kinds of judgments and instead attempt to set it aside, we are not led to pure rationality, as some philosophers might have it. Rather, Reid says, we are led to absurdity. Skeptical philosophers mistakenly attempt to replace common sense with a philosophical ?system? divorced from the reality of human practice. The attempt to build philosophical knowledge on such an ungrounded structure renders the resulting philosophy of little use.311 But, for Reid, the more serious problem arising from this approach is that, in effect, it precludes 309 Reid, ?Essays,? supra note 272 at 41. Note again an interesting foreshadowing of Wittgenstein; indeed, what Reid is proposing here might be similar to the method of ?perspicuous representation? I am pursuing.310 Ibid. In rejecting this line of reasoning, Reid shares something with many thinkers, many of whom might roughly be described as anti-foundationalist (including Wittgenstein), who take some version of the view that our beliefs and actions are not ultimately grounded on some rationally defensible belief, but rather on practices and ways of life.311 See Wolterstorff, ?With Wittgenstein's Assistance,? supra note 290 at 216. 123the practice of good judgment. Judgment requires the assessment of something as it appears in life. When philosophers attempt to build knowledge solely on the basis of logic, they claim to withhold judgment on questions that logic cannot satisfactorily resolve. (Logic cannot, for example, establish with certainty the reliability of our senses.) By claiming that we have no reliable basis on which to judge these questions, philosophers are, in fact, not judging at all.312 They are not assessing the value of a particular claim, they are deferring this responsibility to an artificial system of rules. This abdication of judgment permits the mistaken rejections of an important part of human life. Reid argues: In all matters belonging to our cognisance, every man must be determined by his own final judgment, otherwise he does not act the part of a rational being. Authority may add weight to one scale; but the man holds the balance, and judges what weight he ought to allow to authority. If a man should even claim infallibility, we must judge of his title to that prerogative. If a man pretend to be an Ambassador from heaven, we must judge of his credentials. No claim can deprive us of this right or excuse us for neglecting to exercise it.313 Failure to exercise judgment leads to errors and, moreover, a failure to fulfill important parts of being human. Further, it is our genuine judgments for which we can be held to account; by failing to judge, we avoid taking responsibility for their consequences.312 Reid, ?Essays,? supra note 272 at 528?9.313 Ibid at 528. On the obligation to seek out the truth rather than defer to others, Reid also writes: ?....there are many more who may be called mere beggars with regard to their opinions. Through laziness and indifference about truth, they leave to others the drudgery of digging for this commodity....? Ibid at 529. 124Normative and empirical commonalityReid's common sense knowledge is a type of knowledge that is shared by almost everyone; for most purposes, it is universal. All people (or at least all sane adults314) share in common sense knowledge. Those excluded are those who lack the ?degree of reason...that makes a man capable of managing his own affairs, and answerable for his conduct towards others.?315 Reid's claims about the universality of common sense knowledge have two important consequences. First, if common sense is universal, it can be used to ground claims about what everyone knows and what everyone should know. And second, the content of common sense knowledge must be severely limited (otherwise it could not possibly be held universally).Common sense knowledge is not only possessed by virtually everyone, but is possessed equally by everyone. When it comes to matters of common sense, ?every man is a competent judge.?316 Moreover, the content of common sense knowledge is the same for everyone: ?the learned and the unlearned, the Philosopher and the day-labourer, are upon a level, and will pass the same judgment.?317 This last point comes with an important caveat though. Reid always maintains the possibility that people can be mistaken about their common sense.318 The full passage says:To judge of first principles, requires no more than a sound mind free from prejudice, and a distinct conception of the question. The learned and the unlearned, the Philosopher and the day-labourer, are upon a level, and will pass the same judgment, when they are not misled by some bias, or taught to renounce 314 Reid, ?Essays,? supra note 272 at 426.315 Ibid at 433.316 Ibid at 461.317 Ibid.318 Rosenfeld argues that this caveat is related to Reid's religious views and his need to preserve the particular tenets of his faith: Rosenfeld, supra note 86 at 80. 125their understanding from some mistaken religious principle.319There is a strong, even radical, egalitarianism inherent in this argument; Reid insists that common sense is indeed common. In her account of the political history of common sense, Rosenfeld argues that the democratic political consequences of Reid's views on common sense were largely unintended, but, in the hands of Reid and his colleagues, common sense epistemology helped propel a ?democratic ethos into the realm of public judgment.?320 This picture of common sense knowledge as self-evident to virtually all human beings has the consequence of setting the boundaries of what can constitute rational debate. Reid argues that opinions contrary to common sense knowledge ?are not only false, but absurd.?321 Common sense knowledge consists of things that all rational people cannot help but believe; anything contrary to common sense knowledge is nonsense, not worthy of rational consideration. Common sense knowledge thus helps set the boundaries of reasoned debate because of its normative claim to universality: Reid's common sense knowledge consists of those things that every rational person should believe. Reid also argues that common sense knowledge is ?common? in the sense that it is empirically shared, and this is a large part of why common sense is valuable. Reid argues that ?before men can reason together, they must agree in first principles; and it is impossible to reason with a man 319 Reid, ?Essays,? supra note 272 at 461.320 Rosenfeld, supra note 86 at 61.321 Reid, ?Essays,? supra note 272 at 462. This relates to the strand in Reid in which ?common sense? principles are those things that we must necessarily rely on in daily life: ?...when an opinion is so necessary in the conduct of life, that without the belief of it, a man must be led into a thousand absurdities in practice, such an opinion, when we can give no other reason for it, may safely be taken for a first principle.? Ibid at 467. 126who has no principles in common with you.?322 Reid also talks about common sense forming the shared ground upon which people might ?converse? or ?transact business.?323 Reid sees this type of common knowledge as essential in order for people to understand one another, and therefore essential for community and for developing other forms of knowledge.324From this perspective, Reid's notion of common sense becomes more sensitive to the distinction between ?common sense knowledge? and beliefs that are merely commonly held. If knowledge is not, in fact, actually shared among individuals, it fails to fulfill its role as a creator of common ground or facilitator of conversation and business. Like the ?common sense? invoked by Hannah Arendt to demonstrate the communal character of human judgment (discussed later in chapter 5), Reid's common sense must be linked to a real community. Reid understands common sense knowledge to be useful in large part precisely because it facilitates our communal lives, which he values highly.325 When speaking in defence of the ?common sense principle? that gives credit to our senses, he points to our belief in each others' existence as central to human life and all kinds of meaningful communication: ?It is evident that we can have no communication, no correspondence or society with any created being, but by means of our senses.?326 Further, he writes: When I consider myself as speaking to men who hear me, and can judge of what I say, I feel that respect which is due to such an audience. I feel an enjoyment in a reciprocal communication of sentiments with candid and ingenious friends, and my soul blesses the Author of my being, who has made me capable of this manly 322 Ibid at 39.323 Ibid at 424.324 The social or intersubjective elements of Reid's philosophy in general have many implications for thinking about law. See Thomas Roberts, ?Legal Positivism and Scottish Common Sense Philosophy? (2005) 18 Can JL & Jur 277.325 Rosenfeld, supra note 86 at 63?67.326 Reid, ?Essays,? supra note 272 at 477. 127and rational entertainment.327Reid's concern that common sense knowledge be actually, as well as normatively, shared requires him to grapple with the question of how contradictory versions of common sense knowledge co-exist. For Reid, this is a question of error ? when common sense contradicts itself, this indicates that a mistake has been made about whether something can properly count as common sense knowledge. While Reid argues that common sense knowledge is real, meaningful knowledge that we can and should rely on, common sense knowledge is not infallible.But is it not possible, that men who really love truth, and are open to conviction, may differ about first principles? I think it is possible, and that it cannot, without great want to charity, be denied to be possible.328It will always be necessary to take certain things for granted. But, when dealing with taken-for-granted principles, we should treat our judgments, even our common sense ones, as open to scrutiny. Drawing, interestingly enough, on a legal metaphor, Reid writes:We do not pretend, that those things that are laid down as first principles may not be examined, and that we ought not to have our ears open to what may be pleaded against their being admitted as such. Let us deal with them, as an upright judge does with a witness who has a fair character. He pays a regard to the testimony of such a witness, while his character is unimpeached. But if it can be shown that he is suborned, or that he is influenced by malice or partial favour, his testimony loses all its credit, and is justly rejected.329 In this way, Reid treats common sense as properly benefitting from a presumption of reliability, and any proposition that goes against common sense, as properly bearing the burden of proof. Common sense knowledge remains primarily invisible until challenged. And when challenged, 327 Ibid.328 Ibid at 460.329 Ibid at 47. 128real common sense knowledge will seem self-evident. But on other occasions, the challenge can provoke reflection on our opinions, leading to the rejection of something that had previously been harboured with our common sense.Reid argues that we can be led astray by ?prejudices,? which are the causes of errors in relation to the principles of common sense. While it is not our natural way to be led into error, there are times when this happens, just as good health can be corrupted by disease.330 Reid enumerates a number of different kinds of prejudices, which he thinks might affect our proper judgment and our common sense. Two of these are particularly relevant for present purposes because they relate to the problems of knowledge and marginality that are posed when legal judgment speaks to poverty.First, Reid argues that ?[m]en are prone to be led too much by authority in their opinions.?331 While Reid notes that deference to authority and expertise can be useful and indeed essential in some contexts, people have a natural tendency to over-value authorities of various kinds (including legal, scientific and religious authorities), and that doing so abdicates their responsibility to determine their own judgments. Reid clearly disdains the notion that one might follow the ?authority? of one's social group, or that one's judgments might be determined by one's circumstances.332 Reid argues that it is essential for people to determine their own judgments and not to defer to authorities without careful consideration.333 Thus, he argues:[A]uthority...ought to have more or less weight, in proportion to the evidence on 330 Ibid at 527.331 Ibid at 528.332 Ibid at 529.333 Ibid at 528. 129which our own judgment rests, and the opinion we have of the judgment and candour of those who differ from us, or agree with us.334 Here, the egalitarian and potentially democratic consequences of Reid's approach become clear. Reid's doctrine of common sense as a form of common knowledge provides a justification for valuing the knowledge of ordinary people, and the capacity of ordinary people to exercise good judgment within the realm of common sense. Reid's approach, like that of Antonio Gramsci (explored in chapter 4), explains why ordinary individuals have the capacity, the right, and even the obligation, to scrutinize and challenge what is accepted as ?knowledge.? If some knowledge claim ? either purported common sense or part of something more formalized ? contradicts my ?common sense,? I have the right and capacity to examine that part of my common sense and come to a judgment about whether or not it has stood up to the test. If my common sense belief seems to stand up, I can use it to assess the validity of the other claims I encounter. Regardless of what I hear from ?authorities? like experts or the commonly held beliefs in my community, I can and should consider the situation myself and come to an independent judgment. Moreover, everyone else has this same right and obligation to exercise their judgment.Second, Reid identifies the tendency to reason by analogy as a possible prejudice that might skew our appreciation of common sense principles. Reid accepts that, like reliance on authority, analogical reasoning is an essential tool. However, it carries with it certain kinds of risks: It would be absurd to lay aside this kind of reasoning altogether, and it is difficult to judge how far we may venture upon it. The bias of human nature is to judge from too slight analogies.335 It is natural and somewhat inevitable that we judge new things in terms of things we already 334 Ibid.335 Ibid at 529. 130know, but this way of thinking can also cause us to misjudge. To address this problem, Reid argues that opinions contrary to (true) common sense are made vulnerable by our exposure to a more diverse social context. In particular, the prejudices that result from our tendency to understand new things in terms of things we already know can be moderated if we test our beliefs against a wider group of others. Reid writes:Men judge other men by themselves, or by the small circle of their acquaintance.....It is commonly taken for granted, that this narrow way of judging of men is to be cured only by an extensive intercourse with men of different ranks, professions, and nations; and that the man whose acquaintance has been confined within a narrow circle, must have many prejudices and narrow notions, which a more extensive intercourse would have cured.336This approach to the problem of over-reliance on analogy and the risks of insular communities has notable connections to the views of Hannah Arendt, explored in chapter 5. The aspect of common sense that comes to light by reading Arendt is essentially focused on this process of ?acquaintance? and ?intercourse? that shapes one's judgment; Arendt calls this process ?enlargement of mind? and for her it is at the very heart of discovering and developing a community's common sense. For Reid, the practice of human conversation and exchange is not so much the very essence of common sense as a corrective practice that can help identify those anomalous moments when errors or prejudices are masquerading as common sense.It is also important to note that Reid's claims about the virtual universality of common sense lead him to describe the province of common sense as quite circumscribed. Since something can count as a common sense belief only if it is self-evident, shared and not generated by prejudices, the range of common sense knowledge is fairly narrow. Examples of things Reid 336 Ibid at 530. 131thinks have a ?just claim? to the character of ?common sense? are: ?that I think, that I remember, that I reason, and, in general, that I really perform all those operations of mind of which I am conscious,? and ?by consciousness we know certainly the existence of our present thoughts and passions; so we know the past by remembrance.?337 Reid also counts among his ?first principles? the idea of self-identity. This highlights once again the connection between common sense, everyday experience, philosophy, and appropriate modes of reasoning:I take it for granted that all the thoughts I am conscious of, or remember, are the thoughts of one and the same thinking principle, which I call myself, or my mind. Every man has an immediate and irresistible conviction, not only of his present existence, but of his continued existence and identity, as far back as he can remember. If any man should think fit to demand a proof that the thoughts he is successively conscious of belong to one and the same thinking principle. If he should demand a proof that he is the same person today as he was yesterday, or a year ago, I know no proof that can be given him: He must be left to himself, either as a man that is lunatic, or as one who denies first principles, and is not to be reasoned with.338On the question of the value of shared knowledge, Reid also argues that the fact that some belief is widely shared is, by itself, some reason to think it is a reliable belief. He argues that when a piece of knowledge is held in common across places and times, this speaks in favour of its value as legitimate knowledge: ?[t]he consent of ages and nations, of the learned and unlearned, ought to have great authority with regard to first principles.?339 Theorists who engage more directly with history and political power (such as Antonio Gramsci), may see the fact that a belief is very widely shared as as a sign of its embeddedness in a dominant cultural view or its relation to specific historical conditions. For Gramsci, the dominance of a belief is a red flag, calling for particular scrutiny. In contrast, Reid sees the fact of a belief's widespread presence as evidence 337 Ibid at 42.338 Ibid at 42?3.339 Ibid at 464. 132of its usefulness and reliability for large groups of people, and this speaks to its value as common sense knowledge.340 Gramsci agrees that a widespread belief is ?useful? for a large group of people, but his socialist and egalitarian politics lead him to ask ?useful for what?? and ?use to whom?? Reid's form of egalitarianism takes him in a different direction: he argues that for an ?expert? or a philosopher to doubt a widespread belief without good reason (for example, by insisting that it be proven rather than demonstrating it to be false) reveals a kind of arrogance or hubris that devalues the lived experiences of all of the people who rely on that belief in their daily lives. To engage in this approach is to lose opportunities to develop our knowledge. He writes:But if, in spite of Nature, we resolve to go deeper, and not to trust our faculties, without a reason to shew that they cannot be fallacious, I am afraid, that seeking to become wise, and to be as gods, we shall become foolish, and being unsatisfied with the lot of humanity, we shall throw off common sense.341Ridicule and debateWhen we are presented with apparent conflicts in the content of common sense knowledge, Reid says that we are at a ?peculiar disadvantage? because we do not have recourse to our usual way of resolving such disputes ? we cannot point to reasons to decide which belief should count as common sense knowledge.342 Since common sense knowledge forms the ?first principles? of other kinds of knowledge, we cannot resolve controversies about common sense with resort to first principles. However, Reid argues, there are other, compensating 340 Ibid.341 Ibid at 497.342 Ibid at 461. 133characteristics about disagreements on common sense that make it possible to engage in meaningful debate. To begin, although disputes about common sense cannot generally be resolved with recourse to rational argument, there are some forms of logical reasoning that are still effective, such as tests of internal consistency.343 Moreover, Reid argues, logical reasoning does not exhaust the resources available for assessing knowledge. In particular, Reid points to the ?emotion of ridicule? as an aspect of the human disposition that equips us to deal with debates about common sense.344 Reid's defence of ridicule as a rhetorical strategy is provocative because of the way ridicule so often functions to exclude, not the grandiose claims of high status people like philosophers, but the claims of marginalized people who challenge more powerful groups in society. For example, Mary Wollenstonecraft's argument that women should be understood as equal with men in a liberal polity was met with ridicule in many communities.345 Women advancing essentially the same liberal arguments about women's participation in contemporary politics are also met with derision and dismissal. Even powerful women whose actual political views fit very neatly with dominant perspectives find it impossible to participate in politics without facing ridicule about their appearance, sexuality and femininity.346 There is good reason to be concerned about Reid's advocacy of ridicule as a way to support legitimate knowledge in 343 Ibid at 463.344 For a discussion of Reid's style and rhetoric, including his use of ridicule and analogy, see Houston, supra note 283.345 Mary Wollstonecraft, A Vindication of the Rights of Woman: With Strictures on Political and Moral Subjects (Unwin, 1891). For a general overview of the reception of the text, including satire and ridicule (as well as critical acclaim), see: ?A Vindication of the Rights of Woman,? Wikipedia, the free encyclopedia (2013), online: <http://en.wikipedia.org/w/index.php?title=A_Vindication_of_the_Rights_of_Woman&oldid=563855483> accessed 28 July 2013.346 Consider the media treatment of prominent US and Australian political leaders Hillary Clinton and Julia Gillard: Anne Summers, ?The Sexual Politics of Power? online: <http://meanjin.com.au/articles/post/the-sexual-politics-of-power/> accessed 28 July 2013. For a general discussion, see Heather MacIvor, Women and Politics in Canada (University of Toronto Press, 1996). 134society.At the same time, the methodology I am working with points back to the text and careful attention to what Reid actually says about ridicule. The strategy of ?look and see? yields some interesting results: while the caution about the capacity of ridicule as a tool for the powerful still stands, Reid's defence of ridicule as a rhetorical strategy also has links to the democratic and egalitarian character of his common sense.Reid argues that opinions that contradict common sense are not only false, but also absurd or nonsensical, and thus vulnerable to ridicule. While acknowledging that ridicule, like rational argument, can be abused, Reid writes: This weapon, when properly applied, cuts with as keen an edge as argument. Nature hath furnished us with the first to expose absurdity; as with the last to refute error. Both are well fitted for their several offices, and are equally friendly to truth when properly used.?347Reid's explicit defence of ridicule as a rhetorical device (and indeed his own employment of the reductio ad risum) corresponds to his argument that common sense knowledge is made up of self-evident things that we believe without reasons. Reid writes:All men that have common understanding agree in such principles, and consider a man as lunatic or destitute of common sense, who denies, or calls them in question. Thus, if any man were found of so strange a turn as not to believe his own eyes; to put no trust in his senses, nor have the least regard to their testimony; would any man think it worth while to reason gravely with such a person, and, by argument, to convince him of his error? Surely no wise man would. For before men can reason together, they must agree in first principles; and it is impossible to reason with a man who has no principles in common with you.348347 Reid, ?Essays,? supra note 272 at 462.348 Ibid at 39. 135Ridicule has the effect, not necessarily of persuading the person whose words are ridiculed that they are wrong, but of helping to draw the boundaries around legitimate argument. Ridicule communicates that the person's perspective is not worthy of consideration. Further, the evaluative character of common sense means that ridiculing a belief on the grounds that it is contrary to common sense can also communicate the unworthiness of the speaker, since common sense knowledge is what every rational person can't help but believe.Reid acknowledges the potential weaknesses of ridicule as a rhetorical strategy. He notes that it can be stifled by the competing emotion he calls ?sanctity,? in which people unreasonably insulate some particular belief from scrutiny.349 Reid also acknowledges that ridicule, just like reasoned argument, can be ?abused to serve the cause of error.?350 However, Reid argues that when we are not blinded by prejudices, ridicule can be effective to uncover absurdities for what they are, leaving them to dissolve on their own and true common sense knowledge to ?gain rather than lose ground among mankind.?351 The ridiculousness of a belief is a clue that it is wrong, and ridicule can help make this evident in a way that reasoned argument never can.352Reid wants to endorse the capacity of ordinary people to hear a philosophical claim (such as the idea that we have no way to know whether our senses are reliable), and to judge it from within the framework of knowledge that they use in their daily lives; to say ?that is ridiculous? and to rely on that judgment. Further, he argues that philosophers should pay heed to such judgments and to abandon views that turn out to be absurd or ridiculous when judged against real common 349 Ibid at 462.350 Ibid.351 Ibid at 463.352 Coates, supra note 283 at 17. 136sense. This is the egalitarian component of common sense judgment, and it can be served by ridicule. Reid is attentive, to some extent, to the prejudices potentially associated with authority and insular society. However, Reid gives no real consideration to the risk that ridicule can serve to silence marginal, alternative or non-traditional views, not because they are necessarily wrong, but for other, potentially illegitimate or unjust, reasons. Reid's commitment to egalitarianism and to the common sense of his community thus carries with it the risk of entrenching knowledge that is linked to injustice. With this complexity in mind, I turn in the next sections to the task of placing Reid's common sense in conversation with the requirements of legal judgment. Reid's common sense in legal judgment: expertise, accountability and credibilityIn Reid's writings, common sense and judgment are often contrasted with the practice of reaching a decision with unthinking reference to a set of technical rules, or deference to the opinions of experts. For Reid, the failure to exercise judgment leads us into error. In law, the failure to exercise real judgment leads not only to errors, but to the failure to meet some of the basic demands of the legal system. The obligation of the judge and/or jury to decide, to judge, is more than a matter of good epistemology, but also a matter of justice. In this section, I read Reid's theory of common sense in conjunction with legal judgments that invoke the term 137?common sense.?353 In particular, I explore Reid's approach to common sense in the context of Supreme Court of Canada judgments on the assessment of witness credibility, which is an area of law in which the phrase ?common sense? is repeated and endorsed by the Court. As the remainder of this chapter will show, these cases and Reid's writings on common sense reveal overlapping concerns about judgment, accountability, and the reliability of common knowledge.The challenge of assessing the credibility of witnesses is a complex one, which judges and juries must undertake in almost every legal proceeding. Assessing credibility is challenging, a task described by the Supreme Court of Canada as a ?notoriously difficult problem.?354 When a witness testifies in a court of law, the finder of fact must decide to what extent that person is trustworthy and reliable.355 There is little doubt that this is one area where common sense knowledge plays a major role. According to socio-legal scholar Richard Thompson:The concept of ?credibility? is the legal curtain behind which common sense lurks...Determining what is plausible or worthy of belief requires a context of interpretation, a context that is itself not open to belief or tests of plausibility because it determines same. This context is the system of common sense, and when a judge rules that a witness's testimony lacks credibility, she is saying, without of course actually saying, that such testimony goes against or doesn't square with common sense.356Thus, legal judgments about credibility assessment are a fruitful place to explore the meaning of ?common sense? in law.353 For more general discussions of how Reid's philosophy might be applied to legal theory, see Roberts, supra note 324; Ibid; van Holthoom, supra note 85.354 R v Marquard,  4 SCR 223, 108 DLR (4th) 47, para 49.355 For a general discussion of the complexity of credibility assessment, see Barry R Morrison & Warren Comeau, ?Judging Credibility of Witnesses? (2001) 25 Advocates? Q 411. For more critical perspectives on the task of credibility assessment and fact-determination in general, see Boyle & MacCrimmon, supra note 20; Richard H Thompson, ?Common Sense and Fact-Finding: Cultural Reason in Judicial Decisions? (1995) 19 Legal Stud F 119.356 Thompson, supra note 355 at 124. Thompson provides a nuanced discussion of the role of common sense in judicial assessments of credibility at the trial level. 138VetrovecThe case of Vetrovec v. The Queen,357 is a landmark decision about the assessment of witness credibility. In Vetrovec, the Court made some fundamental changes to the law on ?corroboration,? or the rules of evidence concerning how the testimony of ?suspect? or ?unsavoury? witnesses (such as accomplices) should be treated. Prior to Vetrovec, a rule of law had developed that required judges to issue a specific kind of instruction to juries, warning them not to convict an accused person by relying solely on the testimony of an accomplice, unless that testimony was ?corroborated? in the required manner. A complex body of law had grown up in order to answer questions about who counted as an ?accomplice,? what counted as ?corroborating evidence? and what, exactly, that evidence had to corroborate.358 This set of rules was born out of the concern that juries might not fully appreciate just how compromised the testimony of an accomplice might be, and that unjust convictions could result. These rules on corroboration were intended to provide some structure for juries, and also to allow juries to benefit from the expertise of trial judges, whose experience in the courtroom purportedly gave them special knowledge about credibility and about accomplices.359 Many critics, including a report from the Law Commission of Canada, alleged that the jury instructions emerging from these rules were excessively technical and rather than assisting juries in the task of assessing credibility, distracted them with legal terms of art.360 In Vetrovec, Dickson J. addressed this problem head-on when he wrote:The result [of the current rules] is that what was originally a simple, common sense proposition ? an accomplice's testimony should be viewed with caution 357 Vetrovec, supra note 220.358 Ibid at 818, 824.359 Ibid at 822, 831.360 Canada, Report on Evidence (Ottawa: Canada Law Reform Commission, 1975). 139? becomes transformed into a difficult and highly technical area of law. Whether this "enormous superstructure" (to use the description of the Law Reform Commission) has any meaningful relationship with the task performed by the jury is unknown.361Here, as it is in Reid's writings, common sense knowledge is invoked in opposition to a body of determinative rules. A body of rules may lead to a conclusion, but it does not assist in the practice of judgment. Indeed, a set of rules may actively hinder the genuine exercise of judgment. In Vetrovec, the Supreme Court of Canada rejected the idea that the trial judge had a duty to describe a complex set of rules to the jury. Instead, following on the ?common sense proposition? noted above, Dickson J. articulated a discretion to warn the jury, in general terms, about the potential problems with relying on uncorroborated evidence from a suspect witness like an accomplice.362 In Dickson J.'s judgment, one can see something like Reid's distinction between genuine, human judgment on one side, and unreflective adherence to rules on the other, with ?common sense? firmly located on the side of judgment. A more complex picture emerges when considering the question of the content of common sense knowledge itself. Recall that Reid, in his own work, is careful to circumscribe what will count as common sense knowledge. Although the boundaries of common sense knowledge are unclear in advance, there is a definite boundary delineating those things that are the proper subject of common sense, and those that are not. Further, by identifying possible prejudices that might lead us to harbour wrong beliefs under the auspices of common sense, Reid calls on us to exercise our considered judgment when identifying common sense knowledge. 361 Vetrovec, supra note 220 at 826. [emphasis added]362 Ibid at 831?2. 140Similarly, Dickson J. does not advocate for reliance on totally unstructured resort to common sense knowledge for the assessment of credibility in a legal case. Rather, he argues that this exercise must be bound by the particular requirements of judgment in the context of legal judgment. This reflects a concern about boundaries, context and difference that is always relevant to common sense knowledge, but is made particularly acute in the case of law because of the way fact-finding is related to the requirements of legitimate legal judgment. In legal judgment, we care not only that the judgment be epistemologically correct, but that it be just. If a jury assessing the credibility of a witness relies on something that purports to be a matter of common sense but is actually a result of mistake or prejudice, injustice results. Further, in a way not fully accounted for by Reid, this problem becomes especially acute when we try to apply the justice values of the legal system, such as equality and the rule of law, in a context involving the marginalization of certain social groups. In this context, common sense is especially likely to overstep its jurisdiction because the knowledge in question may not be shared between majority and minority groups. And so it is here that injustice is especially likely to be unnoticed, reified or reinforced. Thus, while Reid's approach supports the idea that the genuine exercise of judgment is related to common sense, not to rules, it also supports the idea that, in legal judgment especially, attention must be paid to the boundaries of common sense knowledge.Dickson J. appears to be seeking a middle ground, between unstructured reliance on common sense and imposition of technical rules. He notes the tension inherent in trying to establish guidelines for exercising legal judgment: 141All this takes one back to the beginning and that is the search for the impossible: a rule which embodies and codifies common sense....363In some respects, Dickson J.'s words in Vetrovec reflect the idea that the common sense of a judge or jury can only play a positive role in legal judgment once common sense has been structured, to some degree, by an understanding of the relevant legal principles and standards. The Court's findings in that case, like Reid's arguments on common sense, are not motivated by opposition to rules per se, but rather by the search for good judgment. In the context of law, some kinds of formal rules are necessarily part of judging practice.Reid's approach is useful in negotiating the relationship between formal rules and common sense because of the way ?common sense? and judgment are linked to accountability. Deference to rules also allows abdication of responsibility; when we exercise judgment, we can be held to account for our decisions. Part of Reid's argument about the strength of common sense knowledge as a basis for judgment is that it facilitates our exercise of independent judgment and, in so doing, facilitates accountability for the choices we make.364 Advocates of common sense such as Finkel365 and Howard366 (described above in the introduction), both follow this line of argument into the legal realm, showing how excessively detailed rules allow us to forgo making difficult choices and
UBC Theses and Dissertations
"Common sense" and legal judgment : community knowledge, political power and rhetorical practice Cochran, Patricia 2013
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