Abstract Every country must allocate final decision-making authority over different issues/subjects within its boundaries. Historically, many scholars working on this topic implicitly assumed that identifying the features providing entities with justified claims for authority and the entities possessing those features would also identify which groups should have which powers (or vice versa). However, many candidate allocative principles select multiple entities as candidates for some sub-state authority and yet fail to explain which powers each should possess. Further work must explain which groups should possess which powers when and what to do when two groups can make equally-valid authority claims using the same principle. Subsidiarity, the principle under which authority should presumptively belong to the entity representing those ‘most affected’ by its exercise and capable of addressing underlying problems, is one of the few principles focused on identifying which groups should have which powers. Unfortunately, subsidiarity alone does not provide guidance on many issues/subjects. Useful subsidiarity-related guidance relies on balancing underlying justificatory interests, which do the real allocative work. Another allocative principle remains necessary. A deflationary account of subsidiarity’s allocative potential nonetheless provides insights into how to articulate a new principle and accounts of subsidiarity that can fulfill other moral roles.
{"title":"Subsidiarity and the Allocation of Governmental Powers","authors":"Michael Da Silva","doi":"10.1017/cjlj.2022.26","DOIUrl":"https://doi.org/10.1017/cjlj.2022.26","url":null,"abstract":"Abstract Every country must allocate final decision-making authority over different issues/subjects within its boundaries. Historically, many scholars working on this topic implicitly assumed that identifying the features providing entities with justified claims for authority and the entities possessing those features would also identify which groups should have which powers (or vice versa). However, many candidate allocative principles select multiple entities as candidates for some sub-state authority and yet fail to explain which powers each should possess. Further work must explain which groups should possess which powers when and what to do when two groups can make equally-valid authority claims using the same principle. Subsidiarity, the principle under which authority should presumptively belong to the entity representing those ‘most affected’ by its exercise and capable of addressing underlying problems, is one of the few principles focused on identifying which groups should have which powers. Unfortunately, subsidiarity alone does not provide guidance on many issues/subjects. Useful subsidiarity-related guidance relies on balancing underlying justificatory interests, which do the real allocative work. Another allocative principle remains necessary. A deflationary account of subsidiarity’s allocative potential nonetheless provides insights into how to articulate a new principle and accounts of subsidiarity that can fulfill other moral roles.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"83 - 111"},"PeriodicalIF":0.6,"publicationDate":"2022-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41520222","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 A Liberal Theory of Property1 I argue that property is one of society’s major power-conferring institutions. Property confers upon people some measure of private authority over things (both tangible and intangible). This temporallyextended private authority dramatically augments people’s ability to plan and carry out meaningful projects, either on their own or with the cooperation of others. Property’s empowerment, in other words, enhances people’s selfdetermination. But as such property also disables (other) people and renders them vulnerable to owners’ authority. Therefore, to be (and remain) legitimate, property requires constant vigilance. A genuinely liberal property must expand people’s opportunities for individual and collective self-determination while carefully restricting their options of interpersonal domination. Property cannot carry this justificatory burden on its own; its legitimacy is dependent upon a background regime that guarantees to everyone the material, social, and intellectual preconditions of self-determination. But the significance of property to self-determination implies that such a background regime—crucial as it is—is not sufficient. To properly meet property’s legitimacy challenge, law must ensure that property’s animating principles and the most fundamental contours of its architecture follow its autonomy-enhancing telos. Hence, the three pillars of liberal property—the features that distinguish it from property simpliciter:
{"title":"Liberal Property and the Power of Law","authors":"Hanoch Dagan","doi":"10.1017/cjlj.2022.24","DOIUrl":"https://doi.org/10.1017/cjlj.2022.24","url":null,"abstract":"In A Liberal Theory of Property1 I argue that property is one of society’s major power-conferring institutions. Property confers upon people some measure of private authority over things (both tangible and intangible). This temporallyextended private authority dramatically augments people’s ability to plan and carry out meaningful projects, either on their own or with the cooperation of others. Property’s empowerment, in other words, enhances people’s selfdetermination. But as such property also disables (other) people and renders them vulnerable to owners’ authority. Therefore, to be (and remain) legitimate, property requires constant vigilance. A genuinely liberal property must expand people’s opportunities for individual and collective self-determination while carefully restricting their options of interpersonal domination. Property cannot carry this justificatory burden on its own; its legitimacy is dependent upon a background regime that guarantees to everyone the material, social, and intellectual preconditions of self-determination. But the significance of property to self-determination implies that such a background regime—crucial as it is—is not sufficient. To properly meet property’s legitimacy challenge, law must ensure that property’s animating principles and the most fundamental contours of its architecture follow its autonomy-enhancing telos. Hence, the three pillars of liberal property—the features that distinguish it from property simpliciter:","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"281 - 297"},"PeriodicalIF":0.6,"publicationDate":"2022-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46748002","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 Ronald Dworkin’s argument from theoretical disagreement remains a pressing challenge for legal positivists. In this paper, I show how positivists can answer Dworkin’s argument without having to attribute confusion or disingenuity to legal officials. I propose that the argument rests on two errors. The first is to assume that positivism requires legal officials to converge on precise grounds of law when convergence on more general grounds will do. The second is to construe judicial speech too literally. If we pay attention to the pragmatics of judicial speech, we see that judges do not disagree over what the grounds of law are; they at most disagree over how courts should proceed when agreed-upon, though imprecise, grounds of law underdetermine what the content of the law directs in the case at hand.
{"title":"How to Answer Dworkin’s Argument from Theoretical Disagreement Without Attributing Confusion or Disingenuity to Legal Officials","authors":"B. Watson","doi":"10.1017/cjlj.2022.23","DOIUrl":"https://doi.org/10.1017/cjlj.2022.23","url":null,"abstract":"Abstract Ronald Dworkin’s argument from theoretical disagreement remains a pressing challenge for legal positivists. In this paper, I show how positivists can answer Dworkin’s argument without having to attribute confusion or disingenuity to legal officials. I propose that the argument rests on two errors. The first is to assume that positivism requires legal officials to converge on precise grounds of law when convergence on more general grounds will do. The second is to construe judicial speech too literally. If we pay attention to the pragmatics of judicial speech, we see that judges do not disagree over what the grounds of law are; they at most disagree over how courts should proceed when agreed-upon, though imprecise, grounds of law underdetermine what the content of the law directs in the case at hand.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"215 - 240"},"PeriodicalIF":0.6,"publicationDate":"2022-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48340745","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 Democratic theory tends to proceed on the assumption that law requires democratic legitimation because it is coercive. However, the claim that law requires democratic legitimation is distinct from claims about the nature of law. This paper takes issue with the notion that law is coercive by an exploration of three distinct understandings of the nature of law: the state-based conception of law, law as the rules of institutionalized normative systems, and law as social norms. Drawing on insights from legal and democratic theory, the paper defends the view that the ‘law’ to which democratic claims apply are the rules of conduct of institutionalized normative systems. Since rules that belong to such systems are found in associations beyond or below the level of the state, the scope of democratic participation is significantly wider than is usually recognized.
{"title":"Three Conceptions of Law in Democratic Theory","authors":"L. Beckman","doi":"10.1017/cjlj.2022.22","DOIUrl":"https://doi.org/10.1017/cjlj.2022.22","url":null,"abstract":"Abstract Democratic theory tends to proceed on the assumption that law requires democratic legitimation because it is coercive. However, the claim that law requires democratic legitimation is distinct from claims about the nature of law. This paper takes issue with the notion that law is coercive by an exploration of three distinct understandings of the nature of law: the state-based conception of law, law as the rules of institutionalized normative systems, and law as social norms. Drawing on insights from legal and democratic theory, the paper defends the view that the ‘law’ to which democratic claims apply are the rules of conduct of institutionalized normative systems. Since rules that belong to such systems are found in associations beyond or below the level of the state, the scope of democratic participation is significantly wider than is usually recognized.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"65 - 82"},"PeriodicalIF":0.6,"publicationDate":"2022-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44804082","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 The central theoretical assumption of English land law (and land law in related legal systems) that all rights in land are derivative of the Crown’s rights does not provide a full account of the origins of rights in land. ‘Liberal’ theories of the origin of property rights, which see property rights as something that emerged independently of state action, retain considerable explanatory value. The paper begins with a discussion of the principal features of David Hume’s account of the origins of property. The paper then engages with historical scholarship that shows that (1) it is a mistake to see the medieval English hierarchy of administration as implying a hierarchy of property rights ultimately derived from the Crown’s ‘title,’ and (2) the idea that communal medieval agricultural practices were super-imposed upon a pre-existing system of individual property rights is plausible.
{"title":"Hume’s Conventionalist Account of Property and the History of English Land Law","authors":"Darryn Jensen","doi":"10.1017/cjlj.2022.21","DOIUrl":"https://doi.org/10.1017/cjlj.2022.21","url":null,"abstract":"Abstract The central theoretical assumption of English land law (and land law in related legal systems) that all rights in land are derivative of the Crown’s rights does not provide a full account of the origins of rights in land. ‘Liberal’ theories of the origin of property rights, which see property rights as something that emerged independently of state action, retain considerable explanatory value. The paper begins with a discussion of the principal features of David Hume’s account of the origins of property. The paper then engages with historical scholarship that shows that (1) it is a mistake to see the medieval English hierarchy of administration as implying a hierarchy of property rights ultimately derived from the Crown’s ‘title,’ and (2) the idea that communal medieval agricultural practices were super-imposed upon a pre-existing system of individual property rights is plausible.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"147 - 170"},"PeriodicalIF":0.6,"publicationDate":"2022-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43566906","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 Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice,’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, and founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication.
{"title":"Legal Positivism and the Moral Origins of Legal Systems","authors":"Emad H. Atiq","doi":"10.1017/cjlj.2022.17","DOIUrl":"https://doi.org/10.1017/cjlj.2022.17","url":null,"abstract":"Abstract Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice,’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, and founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"37 - 64"},"PeriodicalIF":0.6,"publicationDate":"2022-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47875373","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 central claim of Hanoch Dagan’s A Liberal Theory of Property is that property law mostly does and should provide alternative property ‘types’ (xii, 6-7) in each ‘sphere’ of property relations (91-96, 104), and that these ‘types’ are “partial functional substitutes” for each other (6-7). Dagan calls this ‘property’s structural pluralism’. So, for example, in the sphere of residential property, types such as freehold estates, residential tenancies, condominiums, co-ops, and common interest communities count as partial functional substitutes. In providing a range of types, property law serves the self-determination1 of individuals, providing them with meaningful choices amongst legal relationships and thereby allowing them better to realise their life-plans than would be the case if a one-size-fits-all approach were taken by the law. So Dagan’s functionalism relates the inputs of different values that self-determining people might choose, such as personhood, community, and utility, in varying degrees, to the outputs of partial functional substitutes (50-58). This book is something of a companion piece to Dagan and Heller’s The Choice Theory of Contracts,2 whose intellectual structure is similar and with which it overlaps in significant respects. Dagan thinks that the cogency of the main claim turns upon a number of other theses, which will be the main focus of this notice. These are (1) Dagan’s characterisation of ‘mainstream liberalism’ and ‘relational justice’; (2) his critique of the ‘Blackstonian’ or ‘dominion’ theory of property; (3) his claim that property is ‘power-conferring’ and that the relation of owners to non-owners is a kind of authority relation; and (4) property’s ‘legitimacy challenge’. My conclusion will be that none of these theses are really relevant to the central claim, and that a person might support the latter without endorsing any of the former. But first we must examine the nature of the central claim.
{"title":"Property and Self-Determination","authors":"J. Penner","doi":"10.1017/cjlj.2022.13","DOIUrl":"https://doi.org/10.1017/cjlj.2022.13","url":null,"abstract":"The central claim of Hanoch Dagan’s A Liberal Theory of Property is that property law mostly does and should provide alternative property ‘types’ (xii, 6-7) in each ‘sphere’ of property relations (91-96, 104), and that these ‘types’ are “partial functional substitutes” for each other (6-7). Dagan calls this ‘property’s structural pluralism’. So, for example, in the sphere of residential property, types such as freehold estates, residential tenancies, condominiums, co-ops, and common interest communities count as partial functional substitutes. In providing a range of types, property law serves the self-determination1 of individuals, providing them with meaningful choices amongst legal relationships and thereby allowing them better to realise their life-plans than would be the case if a one-size-fits-all approach were taken by the law. So Dagan’s functionalism relates the inputs of different values that self-determining people might choose, such as personhood, community, and utility, in varying degrees, to the outputs of partial functional substitutes (50-58). This book is something of a companion piece to Dagan and Heller’s The Choice Theory of Contracts,2 whose intellectual structure is similar and with which it overlaps in significant respects. Dagan thinks that the cogency of the main claim turns upon a number of other theses, which will be the main focus of this notice. These are (1) Dagan’s characterisation of ‘mainstream liberalism’ and ‘relational justice’; (2) his critique of the ‘Blackstonian’ or ‘dominion’ theory of property; (3) his claim that property is ‘power-conferring’ and that the relation of owners to non-owners is a kind of authority relation; and (4) property’s ‘legitimacy challenge’. My conclusion will be that none of these theses are really relevant to the central claim, and that a person might support the latter without endorsing any of the former. But first we must examine the nature of the central claim.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"537 - 558"},"PeriodicalIF":0.6,"publicationDate":"2022-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45105630","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 35 issue 2 Cover and Front matter","authors":"","doi":"10.1017/cjlj.2022.18","DOIUrl":"https://doi.org/10.1017/cjlj.2022.18","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"f1 - f3"},"PeriodicalIF":0.6,"publicationDate":"2022-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43967904","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 35 issue 2 Cover and Back matter","authors":"","doi":"10.1017/cjlj.2022.19","DOIUrl":"https://doi.org/10.1017/cjlj.2022.19","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"b1 - b3"},"PeriodicalIF":0.6,"publicationDate":"2022-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47581883","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 The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.
{"title":"Legal Realism and ‘Working’ Rules","authors":"David Frydrych","doi":"10.1017/cjlj.2022.14","DOIUrl":"https://doi.org/10.1017/cjlj.2022.14","url":null,"abstract":"Abstract The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"321 - 364"},"PeriodicalIF":0.6,"publicationDate":"2022-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46588812","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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