"Common sense" and legal judgment : community knowledge, political power and rhetorical practice

This 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.Law, Faculty ofGraduat