Courts are committed to promoting the diachronic integrity of legislative bodies, whether or not the latter are devoted to it. Such commitment materializes through theories of statutory interpretation that assume the law forms a consistent, coherent and complete whole. Courts assume that legislative bodies already —and have always— abided by ‘diachronic integrity’, that is, a commitment to consistency and coherence over a series of legislative decisions. Yet, contrary to this assumption, legislatures do not do so. Legislative bodies may change their mind over time. I argue that a realistic respect for diachronic legislative integrity should account for the dynamism of legislative activity. Whereas a ‘static’ account assumes that legislative bodies have reached some sort of reflective equilibrium where each piece of legislation is consistent and coherent with the others, a ‘dynamic’ account understands that legislative bodies are instead in an ongoing process of building this consistency and coherence and revising their judgments and principles upon learning new information, discovering undesirable outcomes and changing decision makers. Such a dynamic judicial approach to diachronic legislative integrity is more respectful of democracy.
{"title":"A Dynamic Judicial Approach to Diachronic Legislative Integrity","authors":"Michaël Lessard","doi":"10.1017/cjlj.2020.10","DOIUrl":"https://doi.org/10.1017/cjlj.2020.10","url":null,"abstract":"Courts are committed to promoting the diachronic integrity of legislative bodies, whether or not the latter are devoted to it. Such commitment materializes through theories of statutory interpretation that assume the law forms a consistent, coherent and complete whole. Courts assume that legislative bodies already —and have always— abided by ‘diachronic integrity’, that is, a commitment to consistency and coherence over a series of legislative decisions. Yet, contrary to this assumption, legislatures do not do so. Legislative bodies may change their mind over time. \u0000 \u0000I argue that a realistic respect for diachronic legislative integrity should account for the dynamism of legislative activity. Whereas a ‘static’ account assumes that legislative bodies have reached some sort of reflective equilibrium where each piece of legislation is consistent and coherent with the others, a ‘dynamic’ account understands that legislative bodies are instead in an ongoing process of building this consistency and coherence and revising their judgments and principles upon learning new information, discovering undesirable outcomes and changing decision makers. Such a dynamic judicial approach to diachronic legislative integrity is more respectful of democracy.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"481 - 491"},"PeriodicalIF":0.6,"publicationDate":"2020-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.10","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48530150","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 critique of bourgeois jurisprudence : : : must, above all, venture into enemy territory. It should not throw aside the generalisations and abstractions elaborated by bourgeois jurists, whose starting point was the needs of their class and of their times. Rather, by analysing these abstract categories, it should demonstrate their true significance and lay bare the historically limited nature of the legal form.1
{"title":"Private Law’s Estranged Bedfellows: Why Pashukanis Should Worry Contemporary Formalists","authors":"Igor Shoikhedbrod","doi":"10.1017/cjlj.2020.4","DOIUrl":"https://doi.org/10.1017/cjlj.2020.4","url":null,"abstract":"The critique of bourgeois jurisprudence : : : must, above all, venture into enemy territory. It should not throw aside the generalisations and abstractions elaborated by bourgeois jurists, whose starting point was the needs of their class and of their times. Rather, by analysing these abstract categories, it should demonstrate their true significance and lay bare the historically limited nature of the legal form.1","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"461 - 479"},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.4","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46585039","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 century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. In the wake of H.L.A. Hart’s mid-century turn to conceptual analysis, “during the course of the twentieth century, the boundaries of jurisprudential inquiry were progressively narrowed.”1 Jurisprudence today is dominated by legal philosophers engaged in conceptual analysis built on intuitions, seeking to identify essential features and timeless truths about law. In the pursuit of these objectives, they detach law from its social and historical moorings, they ignore variation and change, they drastically reduce law to a singular phenomenon—like a coercive planning system for difficult moral problems2—and they deny that coercive force is a universal feature of law, among other ways in which they depart from the reality of law; a few prominent jurisprudents even proffer arguments that invoke aliens or societies of angels.
{"title":"Pragmatic Reconstruction in Jurisprudence: Features of a Realistic Legal Theory","authors":"B. Tamanaha","doi":"10.1017/cjlj.2020.19","DOIUrl":"https://doi.org/10.1017/cjlj.2020.19","url":null,"abstract":"A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. In the wake of H.L.A. Hart’s mid-century turn to conceptual analysis, “during the course of the twentieth century, the boundaries of jurisprudential inquiry were progressively narrowed.”1 Jurisprudence today is dominated by legal philosophers engaged in conceptual analysis built on intuitions, seeking to identify essential features and timeless truths about law. In the pursuit of these objectives, they detach law from its social and historical moorings, they ignore variation and change, they drastically reduce law to a singular phenomenon—like a coercive planning system for difficult moral problems2—and they deny that coercive force is a universal feature of law, among other ways in which they depart from the reality of law; a few prominent jurisprudents even proffer arguments that invoke aliens or societies of angels.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"171 - 202"},"PeriodicalIF":0.6,"publicationDate":"2020-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.19","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42658213","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 33 issue 1 Cover and Front matter","authors":"","doi":"10.1017/cjlj.2020.1","DOIUrl":"https://doi.org/10.1017/cjlj.2020.1","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":" ","pages":"f1 - f5"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.1","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48587101","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}
Mistaken payment is the ‘core case’ of unjust enrichment, and it has had a powerful effect on the development of this area of private law. For Peter Birks, unjust enrichment was simply ‘the law of all events materially identical to mistaken payment’—to be shaped through a process of abstraction from that core case. But this begs the question: how do we work out what counts as ‘materially identical’ to mistaken payment? The most obvious starting point, and that which Birks chose, is the central characteristic of money: money is valuable. Thus, ‘the law of all events materially identical to mistaken payments’ is ‘the law of all events that unjustly enrich one party at another’s expense’. In this article, I argue that this starting point is incorrect. Rather than looking for some factual similarity between mistaken payment and other events, we should identify the role that money plays in justifying restitution. And what justifies restitution in the core case is not the ‘value’ or ‘benefit’ that money confers; rather, it is a defect in the legal transaction that links payor with payee. The payee is not liable because she has been ‘enriched’, but because she is the counterparty to a legal transaction which exhibits traits that there are institutional reasons to disavow. Just like contract and torts, the role of value is secondary: where correcting the injustice in specie is impossible or undesirable, the defendant must pay whichever sum will most nearly achieve that goal.
{"title":"Materially Identical to Mistaken Payment","authors":"Tatiana Cutts","doi":"10.1017/cjlj.2019.29","DOIUrl":"https://doi.org/10.1017/cjlj.2019.29","url":null,"abstract":"Mistaken payment is the ‘core case’ of unjust enrichment, and it has had a powerful effect on the development of this area of private law. For Peter Birks, unjust enrichment was simply ‘the law of all events materially identical to mistaken payment’—to be shaped through a process of abstraction from that core case. But this begs the question: how do we work out what counts as ‘materially identical’ to mistaken payment? The most obvious starting point, and that which Birks chose, is the central characteristic of money: money is valuable. Thus, ‘the law of all events materially identical to mistaken payments’ is ‘the law of all events that unjustly enrich one party at another’s expense’. In this article, I argue that this starting point is incorrect. Rather than looking for some factual similarity between mistaken payment and other events, we should identify the role that money plays in justifying restitution. And what justifies restitution in the core case is not the ‘value’ or ‘benefit’ that money confers; rather, it is a defect in the legal transaction that links payor with payee. The payee is not liable because she has been ‘enriched’, but because she is the counterparty to a legal transaction which exhibits traits that there are institutional reasons to disavow. Just like contract and torts, the role of value is secondary: where correcting the injustice in specie is impossible or undesirable, the defendant must pay whichever sum will most nearly achieve that goal.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"31 - 57"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2019.29","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57149458","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}
Ensuring equal liberties requires neutral, i.e. impartial, settings where nobody would be deprived of freedom because of their personal characteristics. Religion and disability appear as characteristics which may clash with the existing social and physical environments. Therefore, the necessity of adjusting the existing environment, i.e., reasonable accommodation, is mostly discussed in reference to religion and disability. I aim to discuss reasonable accommodation from a different perspective and ask whether reasonable accommodation should be extended to age issues. I propose that age can lead to differences in conscience or culture like religion. Age can also be a source of dis/ability so it can be compared to accustomed disabilities. Eventually, age may also clash with the existing social and physical environments. I further propose that age is not only similar to but also different from religion and disability when it comes to reasonable accommodation. Therefore, I defend, reasonable accommodation should be extended to age in a special way. The next question then is how age could be accommodated under the European Union (EU) law, especially when we consider that reasonable accommodation law does not have a wide scope in the EU, unlike in Canada.
{"title":"Reasonable Accommodation for Age","authors":"Refia Kaya","doi":"10.1017/cjlj.2019.33","DOIUrl":"https://doi.org/10.1017/cjlj.2019.33","url":null,"abstract":"Ensuring equal liberties requires neutral, i.e. impartial, settings where nobody would be deprived of freedom because of their personal characteristics. Religion and disability appear as characteristics which may clash with the existing social and physical environments. Therefore, the necessity of adjusting the existing environment, i.e., reasonable accommodation, is mostly discussed in reference to religion and disability. I aim to discuss reasonable accommodation from a different perspective and ask whether reasonable accommodation should be extended to age issues. I propose that age can lead to differences in conscience or culture like religion. Age can also be a source of dis/ability so it can be compared to accustomed disabilities. Eventually, age may also clash with the existing social and physical environments. I further propose that age is not only similar to but also different from religion and disability when it comes to reasonable accommodation. Therefore, I defend, reasonable accommodation should be extended to age in a special way. The next question then is how age could be accommodated under the European Union (EU) law, especially when we consider that reasonable accommodation law does not have a wide scope in the EU, unlike in Canada.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"115 - 143"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2019.33","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46824763","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 33 issue 1 Cover and Back matter","authors":"","doi":"10.1017/cjlj.2020.2","DOIUrl":"https://doi.org/10.1017/cjlj.2020.2","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"b1 - b2"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.2","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42794647","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}
Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society.
{"title":"Describing Law","authors":"Raff Donelson","doi":"10.1017/cjlj.2019.31","DOIUrl":"https://doi.org/10.1017/cjlj.2019.31","url":null,"abstract":"Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"85 - 106"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2019.31","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42288264","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 I was asked to serve as Governor General of Canada, I discovered I had much to relearn. Despite my background as a law student, professor, and dean, I had to revisit the legal principles and conventions of our constitution, especially as they relate to the authority and function of the Crown in Canada. My re-education enabled me to develop an even deeper admiration for how precious the rule of law is in our country, how thin and vulnerable its veneer can be, and how vital it is in moving closer to justice. Even more, my re-education revealed for me anew that the study and practice of law is a hollow pursuit if we do not use it to strive toward justice.
{"title":"The Coxford Lecture Seek the Good: Professional Trust, Justice, and the Rule of Law","authors":"David Johnston","doi":"10.1017/cjlj.2019.32","DOIUrl":"https://doi.org/10.1017/cjlj.2019.32","url":null,"abstract":"When I was asked to serve as Governor General of Canada, I discovered I had much to relearn. Despite my background as a law student, professor, and dean, I had to revisit the legal principles and conventions of our constitution, especially as they relate to the authority and function of the Crown in Canada. My re-education enabled me to develop an even deeper admiration for how precious the rule of law is in our country, how thin and vulnerable its veneer can be, and how vital it is in moving closer to justice. Even more, my re-education revealed for me anew that the study and practice of law is a hollow pursuit if we do not use it to strive toward justice.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"107 - 113"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2019.32","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43258384","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 explores the possibility that Hobbesian jurisprudence is best understood as a “third way”? in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential “third theories”? of law—legal pragmatism and legal dualism—and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading.
{"title":"Hobbes’s Third Jurisprudence: Legal Pragmatism and the Dualist Menace","authors":"B.L.S. Nelson","doi":"10.1017/cjlj.2019.35","DOIUrl":"https://doi.org/10.1017/cjlj.2019.35","url":null,"abstract":"This paper explores the possibility that Hobbesian jurisprudence is best understood as a “third way”? in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential “third theories”? of law—legal pragmatism and legal dualism—and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"183 - 214"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2019.35","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46049289","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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