There are a set of wrongs that are normatively distinct as ‘criminal wrongs’, and yet, there is disagreement as to ‘the basic features of criminal liability’ that explain this normative distinctiveness. The only consensus has been that criminal wrongs are ‘public wrongs’. For some, they are public wrongs in the sense that they infringe the values and interests for which the community has a shared and mutual concern. For others, they are public wrongs in the sense that they are the wrongs that public officials are responsible for punishing. A third view is that they are public wrongs in the sense that there are procedural advantages of having public officials empowered to address the wrongdoing. I argue here that the first two views are analytically inseparable: the considerations that explain the wrongs that merit social prohibition are the same considerations that explain the censuring and punitive response of the criminal law. I also argue here that, contrary to the third view, the powers of public officials in criminal law procedures follow from, rather than explain, the concept of a crime being a public wrong. Procedural advantages can explain how criminal wrongs are public wrongs, but they cannot explain why criminal wrongs are public wrongs.
{"title":"Public Wrongs and Private Wrongs","authors":"Jesse Wall","doi":"10.1017/cjlj.2018.8","DOIUrl":"https://doi.org/10.1017/cjlj.2018.8","url":null,"abstract":"There are a set of wrongs that are normatively distinct as ‘criminal wrongs’, and yet, there is disagreement as to ‘the basic features of criminal liability’ that explain this normative distinctiveness. The only consensus has been that criminal wrongs are ‘public wrongs’. For some, they are public wrongs in the sense that they infringe the values and interests for which the community has a shared and mutual concern. For others, they are public wrongs in the sense that they are the wrongs that public officials are responsible for punishing. A third view is that they are public wrongs in the sense that there are procedural advantages of having public officials empowered to address the wrongdoing. I argue here that the first two views are analytically inseparable: the considerations that explain the wrongs that merit social prohibition are the same considerations that explain the censuring and punitive response of the criminal law. I also argue here that, contrary to the third view, the powers of public officials in criminal law procedures follow from, rather than explain, the concept of a crime being a public wrong. Procedural advantages can explain how criminal wrongs are public wrongs, but they cannot explain why criminal wrongs are public wrongs.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116484398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This review considers some criticisms made of Arthur Ripstein’s Kantian theory of private law. Authors in this collection are Japa Pallikkathayil, Katrin Flikschuh, Andrea Sangiovanni, AJ Julius, George Pavlakos, Daniel Weinstock, Allen Wood, and Martin J Stone, with reply by Arthur Ripstein. The review itself focuses on the problematic role in Ripstein’s theory of individual choice or purposiveness in the light of the work of the eight critics.
{"title":"Freedom and Force: Essays on Kant’s Legal Philosophy edited by Sari Kisilevsky and Martin J Stone*","authors":"N. Sage","doi":"10.1017/cjlj.2018.10","DOIUrl":"https://doi.org/10.1017/cjlj.2018.10","url":null,"abstract":"This review considers some criticisms made of Arthur Ripstein’s Kantian theory of private law. Authors in this collection are Japa Pallikkathayil, Katrin Flikschuh, Andrea Sangiovanni, AJ Julius, George Pavlakos, Daniel Weinstock, Allen Wood, and Martin J Stone, with reply by Arthur Ripstein. The review itself focuses on the problematic role in Ripstein’s theory of individual choice or purposiveness in the light of the work of the eight critics.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125212206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Kant and Hegel offer two very different accounts of contract as a transfer of rights. In this paper, I argue that Kant’s approach largely corresponds to that taken by the German legal system, in which the transfer of property rights arises separately from the original contractual obligation. Hegel’s account of contract is instead most comfortably associated with the approach taken by the French legal system, in which a contract is sufficient on its own to effect a full transfer of property rights. I conclude that only German law and Kantian transfer theory properly conceive of contract as an obligation, while the Hegelian and French approaches risk erasing the obligational content of contract entirely.
{"title":"Transfer by Contract in Kant, Hegel, and Comparative Law","authors":"Stéphane Sérafin","doi":"10.1017/cjlj.2018.7","DOIUrl":"https://doi.org/10.1017/cjlj.2018.7","url":null,"abstract":"Kant and Hegel offer two very different accounts of contract as a transfer of rights. In this paper, I argue that Kant’s approach largely corresponds to that taken by the German legal system, in which the transfer of property rights arises separately from the original contractual obligation. Hegel’s account of contract is instead most comfortably associated with the approach taken by the French legal system, in which a contract is sufficient on its own to effect a full transfer of property rights. I conclude that only German law and Kantian transfer theory properly conceive of contract as an obligation, while the Hegelian and French approaches risk erasing the obligational content of contract entirely.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"136 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116718255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation.
{"title":"Why Judicial Formalism is Incompatible with the Rule of Law","authors":"Marcin Matczak","doi":"10.1017/cjlj.2018.3","DOIUrl":"https://doi.org/10.1017/cjlj.2018.3","url":null,"abstract":"Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115921509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"CJL volume 31 issue 1 Cover and Back matter","authors":"","doi":"10.1017/cjlj.2018.12","DOIUrl":"https://doi.org/10.1017/cjlj.2018.12","url":null,"abstract":"","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"99 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126572320","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores Aquinas’ views on property in the context of the revival of interest in Thomistic property thinking in the ‘human flourishing’ perspective on property. It highlights a broad coherence with the aims of human flourishing property theory, and progressive property theory more generally. At the same time, it argues that where property theorists use Aquinas’ views as direct authority for arguments concerning current property dilemmas, complex interpretative issues arise, which cast into sharp relief foundational questions concerning the balance between voluntary and legally compelled redistribution, and between public and private law measures, for progressive property theory.
{"title":"Property, Human Flourishing and St. Thomas Aquinas: Assessing a Contemporary Revival","authors":"R. Walsh","doi":"10.1017/cjlj.2018.9","DOIUrl":"https://doi.org/10.1017/cjlj.2018.9","url":null,"abstract":"This article explores Aquinas’ views on property in the context of the revival of interest in Thomistic property thinking in the ‘human flourishing’ perspective on property. It highlights a broad coherence with the aims of human flourishing property theory, and progressive property theory more generally. At the same time, it argues that where property theorists use Aquinas’ views as direct authority for arguments concerning current property dilemmas, complex interpretative issues arise, which cast into sharp relief foundational questions concerning the balance between voluntary and legally compelled redistribution, and between public and private law measures, for progressive property theory.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132902579","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"CJL volume 31 issue 1 Cover and Front matter","authors":"","doi":"10.1017/cjlj.2018.11","DOIUrl":"https://doi.org/10.1017/cjlj.2018.11","url":null,"abstract":"","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"799 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127654003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This paper discusses cases in which defendants were coerced to do something they wanted to do anyway. Through these cases a stark divergence between the legal and philosophical discussion of alternative possibilities is highlighted. The paper seeks to vindicate the legal approach to coercion and volition by showing that the legal approach could be accounted for with an epistemic version of the Principle of Alternative Possibilities, a version which is also immune to Frankfurt-type examples.
{"title":"Coercion and Volition in Law and Philosophy","authors":"Amit Pundik","doi":"10.1017/cjlj.2018.5","DOIUrl":"https://doi.org/10.1017/cjlj.2018.5","url":null,"abstract":"Abstract This paper discusses cases in which defendants were coerced to do something they wanted to do anyway. Through these cases a stark divergence between the legal and philosophical discussion of alternative possibilities is highlighted. The paper seeks to vindicate the legal approach to coercion and volition by showing that the legal approach could be accounted for with an epistemic version of the Principle of Alternative Possibilities, a version which is also immune to Frankfurt-type examples.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127414975","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When exploring the relations between the concept and the nature of law, ample philosophical reflection has been dedicated to the relations between the intension of terms (or the content of concepts) and their extension. Much less consideration has been given to the causal relations between concept and thing within socially constructed entities. This paper examines the interactive causal relationship between law and the concept we have of it and reflects on its implications for legal philosophy. First, it explains the causal role played by concepts in processes of social construction and applies this explanation to the analysis of the special case of law. Second, it compares this causal role played by the concept of law to the role assigned to it in the context of externalist theories of meaning and mental content. Lastly, it demonstrates the advantages of seeing law as an interactive kind in answering some contemporary methodological difficulties stemming from conceptual plurality or uncertainty, and in opening new avenues for research in legal philosophy.
{"title":"Law as an Interactive Kind: On the Concept and the Nature of Law","authors":"Arie Rosen","doi":"10.1017/cjlj.2018.6","DOIUrl":"https://doi.org/10.1017/cjlj.2018.6","url":null,"abstract":"When exploring the relations between the concept and the nature of law, ample philosophical reflection has been dedicated to the relations between the intension of terms (or the content of concepts) and their extension. Much less consideration has been given to the causal relations between concept and thing within socially constructed entities. This paper examines the interactive causal relationship between law and the concept we have of it and reflects on its implications for legal philosophy. First, it explains the causal role played by concepts in processes of social construction and applies this explanation to the analysis of the special case of law. Second, it compares this causal role played by the concept of law to the role assigned to it in the context of externalist theories of meaning and mental content. Lastly, it demonstrates the advantages of seeing law as an interactive kind in answering some contemporary methodological difficulties stemming from conceptual plurality or uncertainty, and in opening new avenues for research in legal philosophy.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128422701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The current approach to statutory interpretation in Canada, viz., the ubiquitous “modern principle,” is an empty rhetorical gesture that masks the contingent, subjective nature of language and naturalizes institutionally sanctioned definitions. Since the late-nineties, virtually every relevant decision cites the same passage as methodology, positing the discoverability of objective textual meaning by looking to things like the “ordinary sense” and “intention of Parliament.” This is theoretically incoherent and incompatible with most credible understandings of language and interpretive subjecthood. This paper begins with a critical reading of each directive in the “modern principle” to demonstrate the normative force of its outdated approach. After discussing the legitimizing function of an ostensibly consistent method that elides the difficulties of linguistic meaning, I conclude with a preliminary discussion on the possibility of progress—or the idea of (literally) a postmodern principle of statutory interpretation.
{"title":"Notes Toward a Postmodern Principle","authors":"N. Hooper","doi":"10.1017/cjlj.2018.2","DOIUrl":"https://doi.org/10.1017/cjlj.2018.2","url":null,"abstract":"The current approach to statutory interpretation in Canada, viz., the ubiquitous “modern principle,” is an empty rhetorical gesture that masks the contingent, subjective nature of language and naturalizes institutionally sanctioned definitions. Since the late-nineties, virtually every relevant decision cites the same passage as methodology, positing the discoverability of objective textual meaning by looking to things like the “ordinary sense” and “intention of Parliament.” This is theoretically incoherent and incompatible with most credible understandings of language and interpretive subjecthood. This paper begins with a critical reading of each directive in the “modern principle” to demonstrate the normative force of its outdated approach. After discussing the legitimizing function of an ostensibly consistent method that elides the difficulties of linguistic meaning, I conclude with a preliminary discussion on the possibility of progress—or the idea of (literally) a postmodern principle of statutory interpretation.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121603021","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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