Contemporary discussions of private law theory often assume that parties in a private law interaction can relate as equals if, and only if, equality is cast in terms of formal equality (sometimes called transactional equality). I devote these pages to refute this conceptual view, showing that it does not draw correctly the map of the logical space in which conceptions of private law equality are located. Negatively, I argue that the formal conception of equality, most comprehensively defended by certain influential corrective justice theories, does not exhaust this space. Affirmatively, I argue that this space provides room for at least one more conception which I call ‘substantive equality’.
{"title":"Private Law Exceptionalism? Part II: A Basic Difficulty with the Argument from Formal Equality*","authors":"Avihay Dorfman","doi":"10.1017/cjlj.2018.1","DOIUrl":"https://doi.org/10.1017/cjlj.2018.1","url":null,"abstract":"Contemporary discussions of private law theory often assume that parties in a private law interaction can relate as equals if, and only if, equality is cast in terms of formal equality (sometimes called transactional equality). I devote these pages to refute this conceptual view, showing that it does not draw correctly the map of the logical space in which conceptions of private law equality are located. Negatively, I argue that the formal conception of equality, most comprehensively defended by certain influential corrective justice theories, does not exhaust this space. Affirmatively, I argue that this space provides room for at least one more conception which I call ‘substantive equality’.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"112 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":"124144934","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 30 issue 2 Cover and Front matter","authors":"","doi":"10.1017/cjlj.2017.22","DOIUrl":"https://doi.org/10.1017/cjlj.2017.22","url":null,"abstract":"","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123164347","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 30 issue 2 Cover and Back matter","authors":"","doi":"10.1017/cjlj.2017.23","DOIUrl":"https://doi.org/10.1017/cjlj.2017.23","url":null,"abstract":"","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114840544","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}
In this article I seek to re-interpret some of the problems characteristic of Kelsen’s constitutional theory. I shall do so by making use of the Kelsenian perspectives of the legal scholar and the policy-maker as developed in his Pure Theory of Law. I shall argue that in his discussion of constitutional policy issues, Kelsen’s treatises mix legal theoretical arguments (related to the perspective of the legal scholar) with the practical approach of legal policy. My main contention is that political principles are more important for the use of Kelsen’s legal theoretical concepts than usually acknowledged in generally accepted interpretations. The Pure Theory of Law is based on the rejection of autocratic legal thinking, and may be regarded as a formalistic theory of law for a democratic rule of law. Such a conclusion, however, also means that Kelsen’s views concerning the methodology of legal theory are no longer tenable.
{"title":"Between Legal Technique and Legal Policy: Remarks on Hans Kelsen’s Constitutional Theory","authors":"P. Sólyom","doi":"10.1017/cjlj.2017.18","DOIUrl":"https://doi.org/10.1017/cjlj.2017.18","url":null,"abstract":"In this article I seek to re-interpret some of the problems characteristic of Kelsen’s constitutional theory. I shall do so by making use of the Kelsenian perspectives of the legal scholar and the policy-maker as developed in his Pure Theory of Law. I shall argue that in his discussion of constitutional policy issues, Kelsen’s treatises mix legal theoretical arguments (related to the perspective of the legal scholar) with the practical approach of legal policy. My main contention is that political principles are more important for the use of Kelsen’s legal theoretical concepts than usually acknowledged in generally accepted interpretations. The Pure Theory of Law is based on the rejection of autocratic legal thinking, and may be regarded as a formalistic theory of law for a democratic rule of law. Such a conclusion, however, also means that Kelsen’s views concerning the methodology of legal theory are no longer tenable.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131175068","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 paper asks whether refugee law is morally trustworthy. Trustworthiness here denotes that those who make refugee law—in particular those who decide refugee claims—are competent in this domain and are moved by the fact that refugee claimants and citizens of countries of refuge count on them to make morally sound decisions. Drawing on Adam Smith’s sentimentalist theory of law, the paper argues that refugee law is presumptively subject to various corruptions of the moral sentiments, namely national prejudice, contempt for the lowly, love of domination, and self-deceit. Combined, these corruptions may explain the apparent arbitrariness of refugee claim outcomes. They also suggest that we should be skeptical of any claims regarding the moral trustworthiness of refugee law. What they do not suggest, contrary to more cynical theories, is that refugee law is free of normative constraint.
{"title":"Refugee Law and Its Corruptions","authors":"Colin Grey","doi":"10.1017/cjlj.2017.16","DOIUrl":"https://doi.org/10.1017/cjlj.2017.16","url":null,"abstract":"This paper asks whether refugee law is morally trustworthy. Trustworthiness here denotes that those who make refugee law—in particular those who decide refugee claims—are competent in this domain and are moved by the fact that refugee claimants and citizens of countries of refuge count on them to make morally sound decisions. Drawing on Adam Smith’s sentimentalist theory of law, the paper argues that refugee law is presumptively subject to various corruptions of the moral sentiments, namely national prejudice, contempt for the lowly, love of domination, and self-deceit. Combined, these corruptions may explain the apparent arbitrariness of refugee claim outcomes. They also suggest that we should be skeptical of any claims regarding the moral trustworthiness of refugee law. What they do not suggest, contrary to more cynical theories, is that refugee law is free of normative constraint.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132667301","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}
Compensation for expropriation in most western jurisdictions aims to provide justice. Yet, while this quest for justice is inherent in expropriation laws, they nevertheless say little, if any, about the underlying conception of justice or how justice should be pursued. A closer examination of courts’ judgments, as well as scholarly discourse on the quest for justice in expropriations reveals a muddled dialogue in which divergent justifications pull one towards different normative and positive conclusions. Currently, expropriation doctrine purports to incorporate a sense of fair dealings with those who become victim to legal devices such as eminent domain. However, based on current case law, the reality of expropriation laws fails to reflect any true practice of justice. This Article suggests a conceptual change in expropriation laws’ remedial scheme by embracing restorative justice as the underlying concept of what constitutes justice in expropriation law. By establishing expropriation law on a restorative conception of justice, a coherent framework will emerge that is circumstances attentive and will provide practical instruments to overcome some of current law’s most significant challenges. This opens a new venue for both expropriation law and restorative justice. Equally important, the Article provides a novel opportunity to consider restorative justice beyond the borders of criminal law.
{"title":"Remodeling Just Compensation: Applying Restorative Justice to Takings Law Doctrine","authors":"Shai Stern","doi":"10.1017/cjlj.2017.19","DOIUrl":"https://doi.org/10.1017/cjlj.2017.19","url":null,"abstract":"Compensation for expropriation in most western jurisdictions aims to provide justice. Yet, while this quest for justice is inherent in expropriation laws, they nevertheless say little, if any, about the underlying conception of justice or how justice should be pursued. A closer examination of courts’ judgments, as well as scholarly discourse on the quest for justice in expropriations reveals a muddled dialogue in which divergent justifications pull one towards different normative and positive conclusions. Currently, expropriation doctrine purports to incorporate a sense of fair dealings with those who become victim to legal devices such as eminent domain. However, based on current case law, the reality of expropriation laws fails to reflect any true practice of justice. This Article suggests a conceptual change in expropriation laws’ remedial scheme by embracing restorative justice as the underlying concept of what constitutes justice in expropriation law. By establishing expropriation law on a restorative conception of justice, a coherent framework will emerge that is circumstances attentive and will provide practical instruments to overcome some of current law’s most significant challenges. This opens a new venue for both expropriation law and restorative justice. Equally important, the Article provides a novel opportunity to consider restorative justice beyond the borders of criminal law.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"57 9","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114060241","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 “positivist turn” in legal ethics has found many scholars in the Anglo-American common-law world relating the duties of lawyers to the rights and duties assigned by the law to their clients. On this view, the role of lawyers should be understood as contributing to the law’s function of resolving conflict and establishing a framework for cooperation in a pluralist society. Critics of positivist legal ethics have suggested that it is impossible for lawyers to avoid resorting to moral considerations when representing clients. These critics claim that the guidance provided by law runs out at critical moments, leaving a lawyer no choice but to fall back on the moral considerations supposedly pre-empted by positive law. In particular they argue that the law cannot determine its own application, and normative questions remain regarding the interpretive attitude lawyers ought to take when representing clients. This paper responds to critics of positivist legal ethics by returning to foundations, specifically the values underpinning the rule of law as a practice of giving reasons based on norms established in the name of the political community.
{"title":"The Limits of Positivist Legal Ethics: A Brief History, a Critique, and a Return to Foundations","authors":"W. Wendel","doi":"10.1017/cjlj.2017.20","DOIUrl":"https://doi.org/10.1017/cjlj.2017.20","url":null,"abstract":"The “positivist turn” in legal ethics has found many scholars in the Anglo-American common-law world relating the duties of lawyers to the rights and duties assigned by the law to their clients. On this view, the role of lawyers should be understood as contributing to the law’s function of resolving conflict and establishing a framework for cooperation in a pluralist society. Critics of positivist legal ethics have suggested that it is impossible for lawyers to avoid resorting to moral considerations when representing clients. These critics claim that the guidance provided by law runs out at critical moments, leaving a lawyer no choice but to fall back on the moral considerations supposedly pre-empted by positive law. In particular they argue that the law cannot determine its own application, and normative questions remain regarding the interpretive attitude lawyers ought to take when representing clients. This paper responds to critics of positivist legal ethics by returning to foundations, specifically the values underpinning the rule of law as a practice of giving reasons based on norms established in the name of the political community.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126017684","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}
Conceptual analysis remains the methodology of much contemporary mainstream jurisprudence. The last fifteen years have seen significant contributions addressing the nature of conceptual analysis in legal theory, but many questions have not been answered in a satisfactory way. These questions can be more clearly addressed if we appreciate: a) that there is a central case of conceptual analysis; and b) the ways in which non-paradigmatic cases of conceptual analysis differ from the central one. Among other things, the article argues that conceptual analysis is necessary but not sufficient to a full understanding of the nature of law. Some knowledge about law is impervious to conceptual analysis but not to empirical social science. The reverse is also true. In explaining the meaning of ‘conceptual analysis’ the article also enacts conceptual analysis: the method the article uses to clarify the nature of conceptual analysis is precisely the method known as ‘conceptual analysis’.
{"title":"A Conceptual Analysis of Conceptual Analysis in Analytic Jurisprudence","authors":"Aleardo Zanghellini","doi":"10.1017/cjlj.2017.21","DOIUrl":"https://doi.org/10.1017/cjlj.2017.21","url":null,"abstract":"Conceptual analysis remains the methodology of much contemporary mainstream jurisprudence. The last fifteen years have seen significant contributions addressing the nature of conceptual analysis in legal theory, but many questions have not been answered in a satisfactory way. These questions can be more clearly addressed if we appreciate: a) that there is a central case of conceptual analysis; and b) the ways in which non-paradigmatic cases of conceptual analysis differ from the central one. Among other things, the article argues that conceptual analysis is necessary but not sufficient to a full understanding of the nature of law. Some knowledge about law is impervious to conceptual analysis but not to empirical social science. The reverse is also true. In explaining the meaning of ‘conceptual analysis’ the article also enacts conceptual analysis: the method the article uses to clarify the nature of conceptual analysis is precisely the method known as ‘conceptual analysis’.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115919957","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 examines Steven M. Wise’s arguments in favour of rationally extending fundamental rights at common law to other animals, as well as the 2014 and 2017 decisions of the Appellate Division of the New York Supreme Court, which rejected the possibility of extending common law personhood to a chimpanzee on social contract grounds. The article argues that extending the common law rights to liberty and bodily integrity to animals whose cognitive characteristics indicate an interest in self-determination is both morally correct and legally feasible, since this interest is what said common law rights exist to protect. Moreover, the arguments from reciprocity and community membership adopted by the New York Court fail to provide a philosophically sound basis for denying nonhuman rights, nor does conceptualising rights and duties in terms of social contract necessarily preclude nonhuman emancipation.
本文考察了史蒂文·m·怀斯(Steven M. Wise)支持将普通法上的基本权利合理地扩展到其他动物的论点，以及2014年和2017年纽约最高法院上诉部门的决定，这些决定拒绝了以社会契约为由将普通法人格扩展到黑猩猩的可能性。文章认为，将普通法对自由和身体完整的权利扩展到那些认知特征表明有自决兴趣的动物身上，在道德上是正确的，在法律上也是可行的，因为这种兴趣正是上述普通法权利存在的目的。此外，纽约法院采用的互惠和社区成员资格的论点未能为否认非人权提供哲学上合理的基础，从社会契约的角度将权利和义务概念化也不一定排除非人类的解放。
{"title":"Steven M. Wise and the Common Law Case for Animal Rights: Full Steam Ahead","authors":"Daniel Davison-Vecchione, Kate Pambos","doi":"10.1017/cjlj.2017.14","DOIUrl":"https://doi.org/10.1017/cjlj.2017.14","url":null,"abstract":"This article examines Steven M. Wise’s arguments in favour of rationally extending fundamental rights at common law to other animals, as well as the 2014 and 2017 decisions of the Appellate Division of the New York Supreme Court, which rejected the possibility of extending common law personhood to a chimpanzee on social contract grounds. The article argues that extending the common law rights to liberty and bodily integrity to animals whose cognitive characteristics indicate an interest in self-determination is both morally correct and legally feasible, since this interest is what said common law rights exist to protect. Moreover, the arguments from reciprocity and community membership adopted by the New York Court fail to provide a philosophically sound basis for denying nonhuman rights, nor does conceptualising rights and duties in terms of social contract necessarily preclude nonhuman emancipation.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115123090","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}
In this paper I draw on the fairy tale Cinderella to examine the distinction articulated in analytical jurisprudence between harm and injustice. I argue that the wrong done to Cinderella is an injustice, not a harm. While law is increasingly concerned with harms to children, it is persistently unconcerned with the injustices they suffer. This, I argue, is a mistake informed by a deeply gendered understanding of the distinction between the public and private realms. From Cinderella’s case, I turn to the US Supreme Court decision in Brown v. Board of Education and the settlement of the residential schools claims of Indigenous children in Canada to argue that the law ought not to take the view that injustice to children is not legally cognizable unless and until it can be conceptually transposed into harm. Injustice to children ought particularly to engage the law’s concern where (as in both school segregation in the US and the residential schools in Canada) state action is directly responsible for the injustice in question.
{"title":"Should the Injustice Done to Her be the Law’s Concern? The Case of Cinderella","authors":"A. Acorn","doi":"10.1017/CJLJ.2017.12","DOIUrl":"https://doi.org/10.1017/CJLJ.2017.12","url":null,"abstract":"In this paper I draw on the fairy tale Cinderella to examine the distinction articulated in analytical jurisprudence between harm and injustice. I argue that the wrong done to Cinderella is an injustice, not a harm. While law is increasingly concerned with harms to children, it is persistently unconcerned with the injustices they suffer. This, I argue, is a mistake informed by a deeply gendered understanding of the distinction between the public and private realms. From Cinderella’s case, I turn to the US Supreme Court decision in Brown v. Board of Education and the settlement of the residential schools claims of Indigenous children in Canada to argue that the law ought not to take the view that injustice to children is not legally cognizable unless and until it can be conceptually transposed into harm. Injustice to children ought particularly to engage the law’s concern where (as in both school segregation in the US and the residential schools in Canada) state action is directly responsible for the injustice in question.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128245101","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：