{"title":"CJL volume 36 issue 2 Cover and Back matter","authors":"","doi":"10.1017/cjlj.2023.16","DOIUrl":"https://doi.org/10.1017/cjlj.2023.16","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":" ","pages":"b1 - b2"},"PeriodicalIF":0.6,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46421909","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":"Aspiration and Reality in Legal Education David Sandomierski","authors":"D. Newman","doi":"10.1017/cjlj.2023.11","DOIUrl":"https://doi.org/10.1017/cjlj.2023.11","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"575 - 579"},"PeriodicalIF":0.6,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41539180","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}
I graduated from law school in 1970 and I’ve been proud every day since of being a lawyer. My father was a lawyer, as are our two sons, and I’ve always seen lawyers as democracy’s warriors: the people who protect rights and by protecting rights protect justice. You law students are the future democracy warriors—actually, the future of democracy full stop—so this lecture is dedicated to you and to the hope that you will make justice your transcendent preoccupation, no matter what you decide to do with your law degree. You are, after all, in law school where you have a window on what the law says—guided by your professors—and a window on what the law looks like outside the walls of your classrooms—guided by watching the news.
{"title":"The Rule of Justice: The Compassionate Application of Law to Life","authors":"R. Abella","doi":"10.1017/cjlj.2023.12","DOIUrl":"https://doi.org/10.1017/cjlj.2023.12","url":null,"abstract":"I graduated from law school in 1970 and I’ve been proud every day since of being a lawyer. My father was a lawyer, as are our two sons, and I’ve always seen lawyers as democracy’s warriors: the people who protect rights and by protecting rights protect justice. You law students are the future democracy warriors—actually, the future of democracy full stop—so this lecture is dedicated to you and to the hope that you will make justice your transcendent preoccupation, no matter what you decide to do with your law degree. You are, after all, in law school where you have a window on what the law says—guided by your professors—and a window on what the law looks like outside the walls of your classrooms—guided by watching the news.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"305 - 315"},"PeriodicalIF":0.6,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42914124","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 Rights seem to occupy a prominent place within the moral and political lexicon of modernity. But is this truly an age in which the idea of individual rights has flourished? Or might the frequency with which we speak of rights reflect a failure to appreciate the stringent demands that genuine rights would inevitably place upon us? Does our willingness to frame so many moral issues in terms of rights simply illustrate our failure to take the idea of rights seriously? Does our monocular focus upon rights lead us to ignore the broader context of law, virtue, and civility that is necessary if rights are to be a reality? These are the questions forming the background to my discussion in this essay.
{"title":"An Age of Rights?","authors":"N. Simmonds","doi":"10.1017/cjlj.2023.14","DOIUrl":"https://doi.org/10.1017/cjlj.2023.14","url":null,"abstract":"Abstract Rights seem to occupy a prominent place within the moral and political lexicon of modernity. But is this truly an age in which the idea of individual rights has flourished? Or might the frequency with which we speak of rights reflect a failure to appreciate the stringent demands that genuine rights would inevitably place upon us? Does our willingness to frame so many moral issues in terms of rights simply illustrate our failure to take the idea of rights seriously? Does our monocular focus upon rights lead us to ignore the broader context of law, virtue, and civility that is necessary if rights are to be a reality? These are the questions forming the background to my discussion in this essay.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"553 - 574"},"PeriodicalIF":0.6,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46580451","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 36 issue 2 Cover and Front matter","authors":"","doi":"10.1017/cjlj.2023.15","DOIUrl":"https://doi.org/10.1017/cjlj.2023.15","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"f1 - f3"},"PeriodicalIF":0.6,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44174500","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 When evaluating religious accommodation claims, courts refrain from examining the relationship between the specific claim and the common religious practice of the relevant religion. This paper rethinks this doctrine. I argue that it stems from understanding religious accommodation as a protection of conscience. This idea itself suffers from conceptual and practical challenges, which can be mitigated if we understand religion as a communal function of conscientious actions. The communal aspect bears practical and moral significance, and I explore three dimensions of it: the epistemic implications; its effect on constituting moral obligations toward others; and its importance as part of one’s culture. A communal-conscientious approach to religion can mitigate many challenges that confront conscience accommodation. This suggests that the relationship between the individual’s claim and their communal practice is crucial and should be evaluated by courts. I conclude by outlining the main considerations for creating a new, nuanced doctrine.
{"title":"The Significance of Conscience in Community: Rethinking the ‘Hands Off Religion’ Doctrine","authors":"Chagai Schlesinger","doi":"10.1017/cjlj.2023.4","DOIUrl":"https://doi.org/10.1017/cjlj.2023.4","url":null,"abstract":"Abstract When evaluating religious accommodation claims, courts refrain from examining the relationship between the specific claim and the common religious practice of the relevant religion. This paper rethinks this doctrine. I argue that it stems from understanding religious accommodation as a protection of conscience. This idea itself suffers from conceptual and practical challenges, which can be mitigated if we understand religion as a communal function of conscientious actions. The communal aspect bears practical and moral significance, and I explore three dimensions of it: the epistemic implications; its effect on constituting moral obligations toward others; and its importance as part of one’s culture. A communal-conscientious approach to religion can mitigate many challenges that confront conscience accommodation. This suggests that the relationship between the individual’s claim and their communal practice is crucial and should be evaluated by courts. I conclude by outlining the main considerations for creating a new, nuanced doctrine.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"463 - 490"},"PeriodicalIF":0.6,"publicationDate":"2023-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49396127","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 article argues that despite its claim to be most concerned with the nature of law in the generality of cases, legal positivism’s almost exclusive focus on Anglo-American law has prevented the tradition from adequately answering the question of law’s authority. This article argues that much positivist analysis either ignores, or takes for granted, the participation of the local population in the historical development of any given society’s law and legal system. This failing means that positivism, and much of analytical jurisprudence, does not provide a truly general, non-circular explanation of authority that accounts as equally for post-colonial legal systems as it does for the Anglo-American systems with which positivism has been most concerned. I argue that the conceptual inadequacies in the explanations of law and legitimate authority offered by those such as H.L.A. Hart and Joseph Raz are most clearly exposed by post-colonial cases, such as Nigeria.
{"title":"Participation and Law’s Authority","authors":"Eniola Anuoluwapo Soyemi","doi":"10.1017/cjlj.2023.9","DOIUrl":"https://doi.org/10.1017/cjlj.2023.9","url":null,"abstract":"Abstract This article argues that despite its claim to be most concerned with the nature of law in the generality of cases, legal positivism’s almost exclusive focus on Anglo-American law has prevented the tradition from adequately answering the question of law’s authority. This article argues that much positivist analysis either ignores, or takes for granted, the participation of the local population in the historical development of any given society’s law and legal system. This failing means that positivism, and much of analytical jurisprudence, does not provide a truly general, non-circular explanation of authority that accounts as equally for post-colonial legal systems as it does for the Anglo-American systems with which positivism has been most concerned. I argue that the conceptual inadequacies in the explanations of law and legitimate authority offered by those such as H.L.A. Hart and Joseph Raz are most clearly exposed by post-colonial cases, such as Nigeria.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"491 - 524"},"PeriodicalIF":0.6,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42639109","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 Individuals sometimes do things that they know will violate the terms of a statute. Most scholars deny that such actions are always morally wrong, but a coherent theoretical account of the relationships between 1) moral obligation, 2) legal obligation, and 3) criminal wrongdoing that can robustly classify hard cases has been elusive. This article starts with a Kantian account of the relationship between law and morality, and it proposes two closely related standards: one for legal obligation, and another for criminal wrongdoing. It then tests the plausibility and resilience of these standards by using them to generate illuminating new analyses of classic hypothetical cases involving alleged crimes committed under circumstances of necessity. These analyses offer reason to believe that the standards proposed in this article can anchor a Kantian theory of criminal responsibility that is simultaneously rigorous and humane.
{"title":"Legal Obligation, Criminal Wrongdoing, and Necessity","authors":"M. Newhouse","doi":"10.1017/cjlj.2022.35","DOIUrl":"https://doi.org/10.1017/cjlj.2022.35","url":null,"abstract":"Abstract Individuals sometimes do things that they know will violate the terms of a statute. Most scholars deny that such actions are always morally wrong, but a coherent theoretical account of the relationships between 1) moral obligation, 2) legal obligation, and 3) criminal wrongdoing that can robustly classify hard cases has been elusive. This article starts with a Kantian account of the relationship between law and morality, and it proposes two closely related standards: one for legal obligation, and another for criminal wrongdoing. It then tests the plausibility and resilience of these standards by using them to generate illuminating new analyses of classic hypothetical cases involving alleged crimes committed under circumstances of necessity. These analyses offer reason to believe that the standards proposed in this article can anchor a Kantian theory of criminal responsibility that is simultaneously rigorous and humane.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"437 - 462"},"PeriodicalIF":0.6,"publicationDate":"2023-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42918942","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 makes a conceptual prescription: it argues that judges and lawyers should adopt a positivist concept of law, on normative grounds. The positivist view, I will argue, is more consistent with reasonable disagreement and majority rule than nonpositivist views, offers a better view of law’s moral standing, and is more consistent with what Dworkin called ‘integrity’ than non-positivism. As the paper explains, this is an argument about what I call the ‘operative’ concept of law. As such, the argument avoids potential problems for conceptual prescription, and shows why even those who adopt non-positivist views about the nature of law might accept it.
{"title":"Legal Positivism for Legal Officials","authors":"Felipe Jiménez","doi":"10.1017/cjlj.2022.36","DOIUrl":"https://doi.org/10.1017/cjlj.2022.36","url":null,"abstract":"Abstract This paper makes a conceptual prescription: it argues that judges and lawyers should adopt a positivist concept of law, on normative grounds. The positivist view, I will argue, is more consistent with reasonable disagreement and majority rule than nonpositivist views, offers a better view of law’s moral standing, and is more consistent with what Dworkin called ‘integrity’ than non-positivism. As the paper explains, this is an argument about what I call the ‘operative’ concept of law. As such, the argument avoids potential problems for conceptual prescription, and shows why even those who adopt non-positivist views about the nature of law might accept it.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"359 - 386"},"PeriodicalIF":0.6,"publicationDate":"2023-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42994106","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 Standard Picture holds that the contribution to the law made by an authoritative legal pronouncement is directly explained by the linguistic content of that pronouncement. This essay defends the Standard Picture from Mark Greenberg’s purported counterexamples drawn from patterns of statutory interpretation in U.S. criminal law. Once relevant features of the U.S. rule of recognition are admitted into the analysis—namely, that it arranges sources of law hierarchically, and that judicial decisions are sources of valid law—Greenberg’s counterexamples are revealed as only apparent, not genuine. The legal norms that result from the patterns of interpretation he identifies can be directly explained in terms of the linguistic contents of authoritative pronouncements: judicial decisions. Furthermore, those norms can be understood as modifications of the valid norms contained in their originating statutes because judicial decisions are permitted ‘explanatory intermediaries’ of statutes by the rule of recognition.
{"title":"The Standard Picture and Statutory Interpretation","authors":"Aaron Graham","doi":"10.1017/cjlj.2023.3","DOIUrl":"https://doi.org/10.1017/cjlj.2023.3","url":null,"abstract":"\u0000 The Standard Picture holds that the contribution to the law made by an authoritative legal pronouncement is directly explained by the linguistic content of that pronouncement. This essay defends the Standard Picture from Mark Greenberg’s purported counterexamples drawn from patterns of statutory interpretation in U.S. criminal law. Once relevant features of the U.S. rule of recognition are admitted into the analysis—namely, that it arranges sources of law hierarchically, and that judicial decisions are sources of valid law—Greenberg’s counterexamples are revealed as only apparent, not genuine. The legal norms that result from the patterns of interpretation he identifies can be directly explained in terms of the linguistic contents of authoritative pronouncements: judicial decisions. Furthermore, those norms can be understood as modifications of the valid norms contained in their originating statutes because judicial decisions are permitted ‘explanatory intermediaries’ of statutes by the rule of recognition.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"341 - 358"},"PeriodicalIF":0.6,"publicationDate":"2023-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45917120","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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