Abstract The idea that legal systems conditionally threaten citizens is taken by most legal and political philosophers as ‘reasonably uncontroversial,’ ‘obvious,’ or as portraying ‘a large part of how law operates.’ This paper clarifies and ultimately rejects this idea: our legal systems, it is argued, rarely address citizens via conditional threats. If correct, the conclusion defended in this paper might force us to re-examine core debates in legal and political philosophy that rely on the assumption that legal systems often threaten citizens: debates about the justification of the state, global justice, and the coerciveness of law.
{"title":"Don’t Feel Threatened by Law","authors":"Lucas Miotto","doi":"10.1017/cjlj.2022.15","DOIUrl":"https://doi.org/10.1017/cjlj.2022.15","url":null,"abstract":"Abstract The idea that legal systems conditionally threaten citizens is taken by most legal and political philosophers as ‘reasonably uncontroversial,’ ‘obvious,’ or as portraying ‘a large part of how law operates.’ This paper clarifies and ultimately rejects this idea: our legal systems, it is argued, rarely address citizens via conditional threats. If correct, the conclusion defended in this paper might force us to re-examine core debates in legal and political philosophy that rely on the assumption that legal systems often threaten citizens: debates about the justification of the state, global justice, and the coerciveness of law.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"487 - 509"},"PeriodicalIF":0.6,"publicationDate":"2022-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41314334","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 For the past several decades, jurists have invested significant efforts in developing the law in general—and private law in particular—in terms of pluralism. However, the conceptualization of corporate law and governance according to pluralist principles rarely exists. This Essay is the first in the legal literature to address this deficiency by providing a unique pluralist theory of corporate governance regimes. It distinguishes between the plurality of corporate law’s sources, values, and principles, and discusses the implications for governance. Moreover, based on the social systems’ thinking and the framework of complexity, this Essay provides theoretical grounds for skepticism about any policies or structures applicable to all times and contexts. Therefore, rather than perceiving corporate governance as being identically applicable to all corporations, the law must meet the challenge of complexity by designing governance arrangements following a firm-specific perspective. Furthermore, I argue that in conditions of complexity, corporate governance eco-systems should be designed with a firm-specific view that incorporates the effect of the corporation participants’ heterogeneity, the heterogeneity of its internal power relations, and the heterogeneity of industries and markets. These novel arguments have profound implications for redesigning fundamental legal doctrines—such as fiduciary duties of controlling shareholders, regulation of related party transactions, the officers’ duty of care, and the company purpose.
{"title":"Corporate Law and Governance Pluralism","authors":"Leon Anidjar","doi":"10.1017/cjlj.2022.12","DOIUrl":"https://doi.org/10.1017/cjlj.2022.12","url":null,"abstract":"Abstract For the past several decades, jurists have invested significant efforts in developing the law in general—and private law in particular—in terms of pluralism. However, the conceptualization of corporate law and governance according to pluralist principles rarely exists. This Essay is the first in the legal literature to address this deficiency by providing a unique pluralist theory of corporate governance regimes. It distinguishes between the plurality of corporate law’s sources, values, and principles, and discusses the implications for governance. Moreover, based on the social systems’ thinking and the framework of complexity, this Essay provides theoretical grounds for skepticism about any policies or structures applicable to all times and contexts. Therefore, rather than perceiving corporate governance as being identically applicable to all corporations, the law must meet the challenge of complexity by designing governance arrangements following a firm-specific perspective. Furthermore, I argue that in conditions of complexity, corporate governance eco-systems should be designed with a firm-specific view that incorporates the effect of the corporation participants’ heterogeneity, the heterogeneity of its internal power relations, and the heterogeneity of industries and markets. These novel arguments have profound implications for redesigning fundamental legal doctrines—such as fiduciary duties of controlling shareholders, regulation of related party transactions, the officers’ duty of care, and the company purpose.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"283 - 320"},"PeriodicalIF":0.6,"publicationDate":"2022-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41796102","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 explores Peter Jaffey’s views on the trust and fusion and some aspects of his wider private law theory which impact on his view on trusts law. It shows that, although he is correct that the trust involves both proprietary and personal rights, in the end his theory is ahistorical and unDworkinian, despite his acceptance of a view of law based on Dworkin. His theory is also based on implausible views of the role of equity post-Judicature Acts and the ownership of value and does not adequately fit how trusts law works.
{"title":"Express Trusts, Private Law Theory, and Legal Concepts","authors":"D. Sheehan","doi":"10.1017/cjlj.2022.11","DOIUrl":"https://doi.org/10.1017/cjlj.2022.11","url":null,"abstract":"Abstract This paper explores Peter Jaffey’s views on the trust and fusion and some aspects of his wider private law theory which impact on his view on trusts law. It shows that, although he is correct that the trust involves both proprietary and personal rights, in the end his theory is ahistorical and unDworkinian, despite his acceptance of a view of law based on Dworkin. His theory is also based on implausible views of the role of equity post-Judicature Acts and the ownership of value and does not adequately fit how trusts law works.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"511 - 536"},"PeriodicalIF":0.6,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45684700","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 For obscure reasons, courts exclude some statutorily patentable inventions (‘judicial exceptions’) from patent protection. These exclusions have been criticized for impeding innovation, contrary to the purpose of patent law. I argue that freedom requires these exclusions even if they impede innovation. Patents, like property, can be unilaterally acquired, limiting others’ freedom without their consent. Kant explains why, to reconcile property with equal freedom, only rivalrous objects in acquirers’ first possession can be unilaterally acquired. States can rightfully authorize unilateral acquisition of only these objects. Drawing from Kant, I explain how patent protection conflicts with equal freedom unless patented inventions involve inventive uses of rivalrous objects external to human bodies. Enabled by inventive concepts, these uses would be impossible without these concepts, and are thus in the first possession of their inventors. I then show how the most recent United States Supreme Court judicial exception decisions limit patent protection to inventive uses of rivalrous external objects.
{"title":"Unilateral Acquisition and the Requirements of Freedom: A Kantian Account of the Judicial Exceptions to Patent Protection","authors":"Ian McMillan","doi":"10.1017/cjlj.2022.10","DOIUrl":"https://doi.org/10.1017/cjlj.2022.10","url":null,"abstract":"Abstract For obscure reasons, courts exclude some statutorily patentable inventions (‘judicial exceptions’) from patent protection. These exclusions have been criticized for impeding innovation, contrary to the purpose of patent law. I argue that freedom requires these exclusions even if they impede innovation. Patents, like property, can be unilaterally acquired, limiting others’ freedom without their consent. Kant explains why, to reconcile property with equal freedom, only rivalrous objects in acquirers’ first possession can be unilaterally acquired. States can rightfully authorize unilateral acquisition of only these objects. Drawing from Kant, I explain how patent protection conflicts with equal freedom unless patented inventions involve inventive uses of rivalrous objects external to human bodies. Enabled by inventive concepts, these uses would be impossible without these concepts, and are thus in the first possession of their inventors. I then show how the most recent United States Supreme Court judicial exception decisions limit patent protection to inventive uses of rivalrous external objects.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"459 - 486"},"PeriodicalIF":0.6,"publicationDate":"2022-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42988834","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 Functionalist justifications for the consideration requirement, and the many criticisms of them, are well developed in the literature. But Peter Benson offers a different sort of justification. He argues that contracts are transfers of ownership, and he builds his transfer theory around the consideration requirement. He claims that a bilateral and mutual act is required for ownership to be transferred. Therefore, he argues that consideration is a central part of what a contract inherently is because it works to ensure that there is a bilateral and mutual relationship between the parties. In this article, I challenge this view. I accept for the sake of argument that contracts are transfers of ownership and that they must be bilateral and mutual acts. However, I argue that a sufficiently bilateral relationship can be established, even without consideration, through the acts of offer and acceptance. In doing so, I demonstrate that it is not necessary to view the doctrines of offer, acceptance, and consideration as being inextricably linked as Benson does. Moreover, drawing on insights from the civil law tradition, I show that a relationship of mutuality can be established in contracts that are not backed by consideration. Since I demonstrate that contracts can be seen as transfers of ownership even without consideration, I argue that the bulk of Benson’s transfer theory could remain intact if the consideration requirement were to be removed. Finally, I argue that, in light of recent developments in many common law jurisdictions, Benson’s transfer theory must be understood without the consideration requirement in order for it to withstand the test of time.
{"title":"Contract as Transfer of Ownership, Even Without Consideration","authors":"Zackary Goldford","doi":"10.1017/cjlj.2022.9","DOIUrl":"https://doi.org/10.1017/cjlj.2022.9","url":null,"abstract":"Abstract Functionalist justifications for the consideration requirement, and the many criticisms of them, are well developed in the literature. But Peter Benson offers a different sort of justification. He argues that contracts are transfers of ownership, and he builds his transfer theory around the consideration requirement. He claims that a bilateral and mutual act is required for ownership to be transferred. Therefore, he argues that consideration is a central part of what a contract inherently is because it works to ensure that there is a bilateral and mutual relationship between the parties. In this article, I challenge this view. I accept for the sake of argument that contracts are transfers of ownership and that they must be bilateral and mutual acts. However, I argue that a sufficiently bilateral relationship can be established, even without consideration, through the acts of offer and acceptance. In doing so, I demonstrate that it is not necessary to view the doctrines of offer, acceptance, and consideration as being inextricably linked as Benson does. Moreover, drawing on insights from the civil law tradition, I show that a relationship of mutuality can be established in contracts that are not backed by consideration. Since I demonstrate that contracts can be seen as transfers of ownership even without consideration, I argue that the bulk of Benson’s transfer theory could remain intact if the consideration requirement were to be removed. Finally, I argue that, in light of recent developments in many common law jurisdictions, Benson’s transfer theory must be understood without the consideration requirement in order for it to withstand the test of time.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"385 - 403"},"PeriodicalIF":0.6,"publicationDate":"2022-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45384274","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 Essentialist legal theorists, represented by Raz, have depicted legal theory as a project of seeking necessary truths about law. They have, however, left the notion of necessity in their conception of legal theory largely unexplained. This paper explores four different notions of necessity in the philosophical literature and investigates two issues: first, what kind of necessity best fits the notion of necessity implicit in the essentialist conception of legal theory, and secondly, whether that notion of necessity is a coherent one that withstands philosophical challenges. I argue that the Putnamian notion of quasi-necessity best fits essentialist legal theorists’ self-understanding, but the notion of quasi-necessity does not withstand Ebbs’s two challenges. Meanwhile, although Plunkett’s theory of metalinguistic negotiation can be used to preserve a coherent notion of necessity that circumvents Ebbs’s two challenges, due to its broadly anti-essentialist underpinnings such a notion is unlikely to be congenial to essentialist legal theorists.
{"title":"Exploring the Notion of Necessity in Essentialist Legal Theory","authors":"Ziyu Liu","doi":"10.1017/cjlj.2022.8","DOIUrl":"https://doi.org/10.1017/cjlj.2022.8","url":null,"abstract":"Abstract Essentialist legal theorists, represented by Raz, have depicted legal theory as a project of seeking necessary truths about law. They have, however, left the notion of necessity in their conception of legal theory largely unexplained. This paper explores four different notions of necessity in the philosophical literature and investigates two issues: first, what kind of necessity best fits the notion of necessity implicit in the essentialist conception of legal theory, and secondly, whether that notion of necessity is a coherent one that withstands philosophical challenges. I argue that the Putnamian notion of quasi-necessity best fits essentialist legal theorists’ self-understanding, but the notion of quasi-necessity does not withstand Ebbs’s two challenges. Meanwhile, although Plunkett’s theory of metalinguistic negotiation can be used to preserve a coherent notion of necessity that circumvents Ebbs’s two challenges, due to its broadly anti-essentialist underpinnings such a notion is unlikely to be congenial to essentialist legal theorists.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"427 - 458"},"PeriodicalIF":0.6,"publicationDate":"2022-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46271527","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 provides a theoretical and doctrinal explanation of how the but-for test links gains to the wrong that produced them. Gain-based damages cases focus on the gain resulting from the defendant’s tortious behaviour. In these cases, the contrastive aspect of the but-for test, requiring the factfinder to consider the hypothetical result that would have occurred had the right thing happened instead of the defendant’s wrongdoing, is not confined to the question of reasonability, as it is in negligence cases. Rather, in gain-based damages cases, the factfinder faces the open-ended normative task of determining the hypothetically appropriate scenario that contrasts with the wrongdoing that happened in reality. For this reason, in gain-based damages cases, the normative sensitivity of the but-for test is revealed in full. The article explains how this sensitivity influences the result of the but-for test expressing the amount of gain causally attributed to the defendant’s wrongdoing.
{"title":"Linking Gains to Wrongs","authors":"Maytal Gilboa","doi":"10.1017/cjlj.2022.7","DOIUrl":"https://doi.org/10.1017/cjlj.2022.7","url":null,"abstract":"Abstract This article provides a theoretical and doctrinal explanation of how the but-for test links gains to the wrong that produced them. Gain-based damages cases focus on the gain resulting from the defendant’s tortious behaviour. In these cases, the contrastive aspect of the but-for test, requiring the factfinder to consider the hypothetical result that would have occurred had the right thing happened instead of the defendant’s wrongdoing, is not confined to the question of reasonability, as it is in negligence cases. Rather, in gain-based damages cases, the factfinder faces the open-ended normative task of determining the hypothetically appropriate scenario that contrasts with the wrongdoing that happened in reality. For this reason, in gain-based damages cases, the normative sensitivity of the but-for test is revealed in full. The article explains how this sensitivity influences the result of the but-for test expressing the amount of gain causally attributed to the defendant’s wrongdoing.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"365 - 383"},"PeriodicalIF":0.6,"publicationDate":"2022-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49576365","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":"Justice in Transactions Benson Peter","authors":"Jennifer Nadler","doi":"10.1017/cjlj.2022.5","DOIUrl":"https://doi.org/10.1017/cjlj.2022.5","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57149519","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 dignity approach to racist hate speech regulation maintains that hate speech ought to be regulated because it impugns targets’ dignity and poses a threat to their equal treatment. This approach faces the significant causal challenges of showing that hate speech has the power to erode its targets’ dignity and that regulations can successfully protect that dignity. My aim is to show how a friend of the dignity approach can resolve these challenges. To do so, I borrow insights from the critical legal studies (CLS) approach to hate speech. Specifically, I argue that hate speech can erode its targets’ dignity 1) by constituting an act of discrimination, and 2) by enacting norms that call for treating targeted groups as inferior. Yet while I maintain that the CLS approach offers valuable resources for shoring up the dignity approach, I reject the CLS approach in favor of the dignity approach.
{"title":"Words That Harm: Defending the Dignity Approach to Hate Speech Regulation","authors":"Chris Bousquet","doi":"10.1017/cjlj.2021.18","DOIUrl":"https://doi.org/10.1017/cjlj.2021.18","url":null,"abstract":"Abstract The dignity approach to racist hate speech regulation maintains that hate speech ought to be regulated because it impugns targets’ dignity and poses a threat to their equal treatment. This approach faces the significant causal challenges of showing that hate speech has the power to erode its targets’ dignity and that regulations can successfully protect that dignity. My aim is to show how a friend of the dignity approach can resolve these challenges. To do so, I borrow insights from the critical legal studies (CLS) approach to hate speech. Specifically, I argue that hate speech can erode its targets’ dignity 1) by constituting an act of discrimination, and 2) by enacting norms that call for treating targeted groups as inferior. Yet while I maintain that the CLS approach offers valuable resources for shoring up the dignity approach, I reject the CLS approach in favor of the dignity approach.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"31 - 57"},"PeriodicalIF":0.6,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44693303","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 1 Cover and Front matter","authors":"","doi":"10.1017/cjlj.2022.3","DOIUrl":"https://doi.org/10.1017/cjlj.2022.3","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":" ","pages":"f1 - f3"},"PeriodicalIF":0.6,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49317310","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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