This article provides an explanatory framework of the spontaneous lawmaking (“SL”) process in the area of private law. To illuminate the process of the spontaneous emergence of private law, this paper focuses on three issues: (1) the conditions under which SL is likely to generate efficient norms, (2) the mechanisms that explain the emergence of norms in the absence of centralized enforcing institutions, and (3) the comparative advantages and disadvantages in terms of the efficiency of SL compared to public centralized lawmaking processes. This discussion is organized as follows. Section I defines the scope of the analysis. Section II introduces the relevant analytical tools offered by game theory and transaction-cost economics. Section III identifies the conditions for the spontaneous emergence of efficient norms. Section IV identifies three alternative mechanisms that explain the spontaneous emergence of norms. Section V examines the limitations of SL processes. Finally, Section VI provides examples of SL in the area of private law to demonstrate concretely the analytical potential of the proposed framework.
{"title":"On the Spontaneous Emergence of Private Law","authors":"D. Bertolini","doi":"10.1017/cjlj.2016.1","DOIUrl":"https://doi.org/10.1017/cjlj.2016.1","url":null,"abstract":"This article provides an explanatory framework of the spontaneous lawmaking (“SL”) process in the area of private law. To illuminate the process of the spontaneous emergence of private law, this paper focuses on three issues: (1) the conditions under which SL is likely to generate efficient norms, (2) the mechanisms that explain the emergence of norms in the absence of centralized enforcing institutions, and (3) the comparative advantages and disadvantages in terms of the efficiency of SL compared to public centralized lawmaking processes. This discussion is organized as follows. Section I defines the scope of the analysis. Section II introduces the relevant analytical tools offered by game theory and transaction-cost economics. Section III identifies the conditions for the spontaneous emergence of efficient norms. Section IV identifies three alternative mechanisms that explain the spontaneous emergence of norms. Section V examines the limitations of SL processes. Finally, Section VI provides examples of SL in the area of private law to demonstrate concretely the analytical potential of the proposed framework.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129448741","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}
A corrective justice account of a private law remedy attempts to the explain the remedy as giving back to the plaintiff something to which the plaintiff had a prior right that was breached by the defendant's receipt of that thing. It has proven challenging to explain how disgorgement for breach of contract is consistent with corrective justice. This remedy gives to the plaintiff any profit that a defendant received from a third party by breaching a contract with the plaintiff. In this paper, I critique two leading attempts to show how disgorgement for breach of contract is consistent with corrective justice. I argue that these attempts fail, and I suggest that a plausible corrective justice account of disgorgement should be based on something other than the nature of the contractual rights borne by a plaintiff. I then develop an alternative account based on an analogy between disgorgement for breach of contract and disgorgement for breach of fiduciary duty. To do so, I draw on recent scholarship on the consistency of disgorgement for breach of fiduciary with corrective justice and analyze the leading judicial decision on disgorgement for breach of contract by the UK House of Lords in Attorney General v. Blake. I argue that the fiduciary-based account can provide a plausible explanation for how disgorgement effectuates corrective justice by giving back to a plaintiff something to which he had an antecedent right that the defendant violated by profiting from a breach of contract.
纠正司法对私法救济的解释试图将救济解释为将被告收到的东西违反了原告的优先权利的东西还给原告。事实证明，如何解释因违约而被撤销与纠正性正义是一致的具有挑战性。该救济将被告因违反与原告的合同而从第三方获得的任何利润给予原告。在本文中，我批评了两种主要的尝试，以表明违约的没收如何与纠正正义相一致。我认为，这些尝试都失败了，我建议，一个合理的纠正性司法对撤销的解释应该基于原告所承担的合同权利的性质以外的东西。然后，我根据违反合同和违反信义义务之间的类比，开发了另一种解释。为了做到这一点，我借鉴了最近关于违约解除与纠正性正义的一致性的学术研究，并分析了英国上议院在Attorney General v. Blake一案中对违约解除的主要司法判决。我认为，基于受托人的解释可以提供一个合理的解释，说明撤销是如何通过将被告从违约中获利而侵犯了原告的先行权利返还给原告来实现纠正性正义的。
{"title":"A Corrective Justice Account of Disgorgement for Breach of Contract by Analogy to Fiduciary Remedies","authors":"A. Sangiuliano","doi":"10.1017/cjlj.2016.6","DOIUrl":"https://doi.org/10.1017/cjlj.2016.6","url":null,"abstract":"A corrective justice account of a private law remedy attempts to the explain the remedy as giving back to the plaintiff something to which the plaintiff had a prior right that was breached by the defendant's receipt of that thing. It has proven challenging to explain how disgorgement for breach of contract is consistent with corrective justice. This remedy gives to the plaintiff any profit that a defendant received from a third party by breaching a contract with the plaintiff. In this paper, I critique two leading attempts to show how disgorgement for breach of contract is consistent with corrective justice. I argue that these attempts fail, and I suggest that a plausible corrective justice account of disgorgement should be based on something other than the nature of the contractual rights borne by a plaintiff. I then develop an alternative account based on an analogy between disgorgement for breach of contract and disgorgement for breach of fiduciary duty. To do so, I draw on recent scholarship on the consistency of disgorgement for breach of fiduciary with corrective justice and analyze the leading judicial decision on disgorgement for breach of contract by the UK House of Lords in Attorney General v. Blake. I argue that the fiduciary-based account can provide a plausible explanation for how disgorgement effectuates corrective justice by giving back to a plaintiff something to which he had an antecedent right that the defendant violated by profiting from a breach of contract.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114340268","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}
Familiar legal theories are epistemologically and politically stato-centric theories; they aim to rationalize intra- and inter-national legal systems. If this Westphalian approach were to be abandoned, then its replacement might be called Global Law, which invites theorizing that is not stato-centric. When that change happens, one would talk about a Global Turn in legal theory. Describing this turn is the aim of the paper. This description is articulated around two ideas about the history and geography of the globalizing of Law, and three intuitions about the fate of legal theory itself once this Global Turn is taken. Namely, how theorizing Law from this perspective leads to focus on what is emerging and circulating, how the aesthetics of legal thinking shifts towards perspectivism and dissociation, and how more pluralistic, eclectic and pragmatic modes of reasoning and arguing about Law become dominant. What follows is neither a substantial or positivistic analysis, nor a prediction or a wish, but an attempt to point out tendencies which might be essential features of contemporary legal thinking.
{"title":"The Global Turn in Legal Theory","authors":"Mikhaïl Xifaras","doi":"10.1017/cjlj.2016.8","DOIUrl":"https://doi.org/10.1017/cjlj.2016.8","url":null,"abstract":"Familiar legal theories are epistemologically and politically stato-centric theories; they aim to rationalize intra- and inter-national legal systems. If this Westphalian approach were to be abandoned, then its replacement might be called Global Law, which invites theorizing that is not stato-centric. When that change happens, one would talk about a Global Turn in legal theory. Describing this turn is the aim of the paper. This description is articulated around two ideas about the history and geography of the globalizing of Law, and three intuitions about the fate of legal theory itself once this Global Turn is taken. Namely, how theorizing Law from this perspective leads to focus on what is emerging and circulating, how the aesthetics of legal thinking shifts towards perspectivism and dissociation, and how more pluralistic, eclectic and pragmatic modes of reasoning and arguing about Law become dominant. What follows is neither a substantial or positivistic analysis, nor a prediction or a wish, but an attempt to point out tendencies which might be essential features of contemporary legal thinking.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122163064","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 29 issue 1 Cover and Front matter","authors":"","doi":"10.1017/cjlj.2016.11","DOIUrl":"https://doi.org/10.1017/cjlj.2016.11","url":null,"abstract":"","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123425426","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}
Corporations are subject to criminal law and sentencing provisions in most legal jurisdictions in the world. This article considers how leading punishment theories apply to corporations. Corporations are, this article argues, group agents with the capacity to make moral judgments. It follows from this that retributivism, the dominant theory of punishment for moral agents, ought to be understood as a component justification of corporate punishment. However, a more fundamental problem arises in the attempt to apply punishment theory to corporations: punishment involves suffering, and corporations cannot suffer in the relevant sense. This means that corporations cannot be punished, though they can be harmed. I explore the possibilities of simply abandoning the word ‘punishment’ and creating sentences that are not at the same time punishments. This has the drawback of limiting what the criminal law can accomplish when it comes to addressing corporate malfeasance. I find that at least one practical consequence for corporate sentencing follows from this theoretical distinction: sentencers have more legitimate authority to raise upper limits for sentences for corporations than they do for individuals, though there are still principles that dictate the need for upper limits. Despite the impossibility of true punishment, the theories of retributivism, deterrence and rehabilitation are still relevant when sentencing corporations.
{"title":"Corporate Criminals and Punishment Theory","authors":"S. Rich","doi":"10.1017/cjlj.2016.4","DOIUrl":"https://doi.org/10.1017/cjlj.2016.4","url":null,"abstract":"Corporations are subject to criminal law and sentencing provisions in most legal jurisdictions in the world. This article considers how leading punishment theories apply to corporations. Corporations are, this article argues, group agents with the capacity to make moral judgments. It follows from this that retributivism, the dominant theory of punishment for moral agents, ought to be understood as a component justification of corporate punishment. However, a more fundamental problem arises in the attempt to apply punishment theory to corporations: punishment involves suffering, and corporations cannot suffer in the relevant sense. This means that corporations cannot be punished, though they can be harmed. I explore the possibilities of simply abandoning the word ‘punishment’ and creating sentences that are not at the same time punishments. This has the drawback of limiting what the criminal law can accomplish when it comes to addressing corporate malfeasance. I find that at least one practical consequence for corporate sentencing follows from this theoretical distinction: sentencers have more legitimate authority to raise upper limits for sentences for corporations than they do for individuals, though there are still principles that dictate the need for upper limits. Despite the impossibility of true punishment, the theories of retributivism, deterrence and rehabilitation are still relevant when sentencing corporations.","PeriodicalId":244583,"journal":{"name":"Canadian Journal of Law & Jurisprudence","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121085315","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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