{"title":"CJL volume 34 issue 2 Cover and Back matter","authors":"","doi":"10.1017/cjlj.2021.16","DOIUrl":"https://doi.org/10.1017/cjlj.2021.16","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"b1 - b2"},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46537170","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 34 issue 2 Cover and Front matter","authors":"","doi":"10.1017/cjlj.2021.15","DOIUrl":"https://doi.org/10.1017/cjlj.2021.15","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":" ","pages":"f1 - f5"},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44051976","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}
According to the Supreme Court of Canada, Aboriginal title is a property right, albeit of a distinctive kind. Most significantly, the right is subject to an inherent limit: title lands cannot be used in a way that deprives present and future generations of the right to use the land. Aboriginal title is also encumbered by a restraint on alienation, and has its source in Aboriginal legal systems that predate and survive the assertion of Crown sovereignty. In this paper, we argue that these features of Aboriginal title are not burdensome judicial innovations on a property right, but are instead the essential contours of a sovereign right. That is, the Court’s own description of Aboriginal title does not comport with sound theoretical understandings of a property right. Aboriginal title is much more akin to a right of sovereignty—the right to make laws about the use of a territory. Aboriginal title is the right of law-making jurisdiction over the title lands. The existing literature, while edging towards the view that Aboriginal title is a sovereign right, has lacked the unifying theoretical basis needed to decisively dispatch the Court’s property paradigm. In particular, all extant accounts find the inherent limit inexplicable. The account in this article theorizes and explains the inherent limit, as well as all of the sui generis elements of Aboriginal title, and shows their interconnectedness. Our view additionally answers a number of questions that the Court’s property paradigm does not, including: (1) what laws primarily govern title lands; (2) who has standing to question whether any particular use of title land violates the inherent limit; (3) what is the status of private land interests that overlap with Aboriginal title lands; and (4) how should the doctrine of Aboriginal title be updated in light of jurisprudential developments emphasizing that Indigenous peoples never ceded their sovereignty?
{"title":"Why Is Aboriginal Title Property if It Looks Like Sovereignty?","authors":"Douglas Amo Sanderson Binashii, Amitpal C. Singh","doi":"10.1017/cjlj.2021.13","DOIUrl":"https://doi.org/10.1017/cjlj.2021.13","url":null,"abstract":"According to the Supreme Court of Canada, Aboriginal title is a property right, albeit of a distinctive kind. Most significantly, the right is subject to an inherent limit: title lands cannot be used in a way that deprives present and future generations of the right to use the land. Aboriginal title is also encumbered by a restraint on alienation, and has its source in Aboriginal legal systems that predate and survive the assertion of Crown sovereignty. In this paper, we argue that these features of Aboriginal title are not burdensome judicial innovations on a property right, but are instead the essential contours of a sovereign right. That is, the Court’s own description of Aboriginal title does not comport with sound theoretical understandings of a property right. Aboriginal title is much more akin to a right of sovereignty—the right to make laws about the use of a territory. Aboriginal title is the right of law-making jurisdiction over the title lands. The existing literature, while edging towards the view that Aboriginal title is a sovereign right, has lacked the unifying theoretical basis needed to decisively dispatch the Court’s property paradigm. In particular, all extant accounts find the inherent limit inexplicable. The account in this article theorizes and explains the inherent limit, as well as all of the sui generis elements of Aboriginal title, and shows their interconnectedness. Our view additionally answers a number of questions that the Court’s property paradigm does not, including: (1) what laws primarily govern title lands; (2) who has standing to question whether any particular use of title land violates the inherent limit; (3) what is the status of private land interests that overlap with Aboriginal title lands; and (4) how should the doctrine of Aboriginal title be updated in light of jurisprudential developments emphasizing that Indigenous peoples never ceded their sovereignty?","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"417 - 460"},"PeriodicalIF":0.6,"publicationDate":"2021-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.13","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46383138","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 recent article2 I examined the nature of private law offices, and here I extend that analysis to consider the trustee-beneficiary relationship where the trust is of a kind that Lionel Smith has called a “massively discretionary trust.”3 After considering some of the problematic legal features of such trusts, I shall probe the morally problematic features that these trusts present.
{"title":"Justifying (or Not) the Office of Trusteeship With Particular Reference to Massively Discretionary Trusts","authors":"James Penner","doi":"10.1017/cjlj.2021.7","DOIUrl":"https://doi.org/10.1017/cjlj.2021.7","url":null,"abstract":"In a recent article2 I examined the nature of private law offices, and here I extend that analysis to consider the trustee-beneficiary relationship where the trust is of a kind that Lionel Smith has called a “massively discretionary trust.”3 After considering some of the problematic legal features of such trusts, I shall probe the morally problematic features that these trusts present.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"365 - 390"},"PeriodicalIF":0.6,"publicationDate":"2021-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.7","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46437339","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}
H.L.A. Hart says that The Concept of Law is focused on municipal or domestic law because that is the “central case”1 for the usage of the word ‘law.’ At the beginning of the book he states that “at various points in this book the reader will find discussions of the borderline cases where legal theorists have felt doubts about the application of the expression ‘law’ or ‘legal system,’ but the suggested resolution of these doubts, which he will also find here, is only a secondary concern of the book.”2 Yet among those borderline cases there is one that is rather intriguing, since Hart closely discusses a particular instance of them: it is international law, to which he devotes an entire chapter—the final one—of The Concept of Law. My goal in this article is therefore to make clear why the ‘resolution’ of the borderline case of international law is not entirely ‘secondary’ to Hart’s overall project in The Concept of Law and, in so doing, to show that Chapter X is not as unhappy as many think it is.
{"title":"The Question To Be Faced Is One of Fact: H.L.A. Hart’s Legal Theory Through His View of International Law","authors":"Giovanni Bisogni","doi":"10.1017/cjlj.2021.11","DOIUrl":"https://doi.org/10.1017/cjlj.2021.11","url":null,"abstract":"H.L.A. Hart says that The Concept of Law is focused on municipal or domestic law because that is the “central case”1 for the usage of the word ‘law.’ At the beginning of the book he states that “at various points in this book the reader will find discussions of the borderline cases where legal theorists have felt doubts about the application of the expression ‘law’ or ‘legal system,’ but the suggested resolution of these doubts, which he will also find here, is only a secondary concern of the book.”2 Yet among those borderline cases there is one that is rather intriguing, since Hart closely discusses a particular instance of them: it is international law, to which he devotes an entire chapter—the final one—of The Concept of Law. My goal in this article is therefore to make clear why the ‘resolution’ of the borderline case of international law is not entirely ‘secondary’ to Hart’s overall project in The Concept of Law and, in so doing, to show that Chapter X is not as unhappy as many think it is.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"283 - 295"},"PeriodicalIF":0.6,"publicationDate":"2021-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41768512","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}
Over the last two decades, legal scholarship has been catching up with the more than century old calls by black Americans for reparations.1 Tax scholar Boris Bittker (in)famously launched the viability of black reparations into legal scholarship with his now classic monograph, The Case for Black Reparations.2 However, it would take more than twenty years for mainstream legal scholarship to take up the robust and wide-ranging set of questions raised by the possibility of reparations for American slavery.3 In the late 1990s private law scholars leapt into the debate, discussing unjust enrichment and torts-based models of black reparations.4 While these scholars made a variety of distinct arguments, collectively, their model rested on the contention that America had wrongfully expropriated the labor of generations of enslaved African Americans and the result had been systemic unjust enrichment, or a species of mass torts. Grounded in various conceptions of corrective justice, these models conceive black reparations as a set of claims that would be litigated through the courts. Over the ensuing two decades, the private law model has become somewhat of an outlier in reparations discussions, largely set aside in favor of broader, more explicitly political approaches.
{"title":"Corrective Justice and Reparations for Black Slavery","authors":"Adrienne D. Davis","doi":"10.1017/cjlj.2021.10","DOIUrl":"https://doi.org/10.1017/cjlj.2021.10","url":null,"abstract":"Over the last two decades, legal scholarship has been catching up with the more than century old calls by black Americans for reparations.1 Tax scholar Boris Bittker (in)famously launched the viability of black reparations into legal scholarship with his now classic monograph, The Case for Black Reparations.2 However, it would take more than twenty years for mainstream legal scholarship to take up the robust and wide-ranging set of questions raised by the possibility of reparations for American slavery.3 In the late 1990s private law scholars leapt into the debate, discussing unjust enrichment and torts-based models of black reparations.4 While these scholars made a variety of distinct arguments, collectively, their model rested on the contention that America had wrongfully expropriated the labor of generations of enslaved African Americans and the result had been systemic unjust enrichment, or a species of mass torts. Grounded in various conceptions of corrective justice, these models conceive black reparations as a set of claims that would be litigated through the courts. Over the ensuing two decades, the private law model has become somewhat of an outlier in reparations discussions, largely set aside in favor of broader, more explicitly political approaches.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"329 - 340"},"PeriodicalIF":0.6,"publicationDate":"2021-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.10","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46045401","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 law uses ‘discrimination’ to denote practices of exclusion and distinction that are wrongful from a legal point of view. Anti-discrimination doctrines around the world use the concept of ‘wrongful distinctions’ to enumerate the ways in which irrelevant distinctions between individuals or groups are made and to explain their illegality. But how should the term ‘irrelevant’ be understood in this context? Most legal systems around the world use the term ‘irrelevant’ only in denunciation of distinctions based on ‘common,’ ‘classic,’ or ‘suspicious’ grounds, such as race-based or sex-based distinctions.
{"title":"Arbitrariness as Discrimination","authors":"Meital Pinto","doi":"10.1017/cjlj.2021.8","DOIUrl":"https://doi.org/10.1017/cjlj.2021.8","url":null,"abstract":"The law uses ‘discrimination’ to denote practices of exclusion and distinction that are wrongful from a legal point of view. Anti-discrimination doctrines around the world use the concept of ‘wrongful distinctions’ to enumerate the ways in which irrelevant distinctions between individuals or groups are made and to explain their illegality. But how should the term ‘irrelevant’ be understood in this context? Most legal systems around the world use the term ‘irrelevant’ only in denunciation of distinctions based on ‘common,’ ‘classic,’ or ‘suspicious’ grounds, such as race-based or sex-based distinctions.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"391 - 415"},"PeriodicalIF":0.6,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.8","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45554404","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}
Courts do many good things. Judges carefully consider individual claims and arguments,1 and contrast them against the law in light of evidence. Their decisions are argued for, are public, and can be contested in form and content in different hierarchical stages. Additionally, and among other things, these practices are said to contribute to the will-formation of the public sphere and improve the quality of the legislative process.2
{"title":"Making What Present Again? A Critique of Argumentative Judicial Representation","authors":"Donald Bello Hutt","doi":"10.1017/cjlj.2021.6","DOIUrl":"https://doi.org/10.1017/cjlj.2021.6","url":null,"abstract":"Courts do many good things. Judges carefully consider individual claims and arguments,1 and contrast them against the law in light of evidence. Their decisions are argued for, are public, and can be contested in form and content in different hierarchical stages. Additionally, and among other things, these practices are said to contribute to the will-formation of the public sphere and improve the quality of the legislative process.2","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"259 - 281"},"PeriodicalIF":0.6,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.6","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46074516","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 Employers seeking to control employee behavior outside of working hours is nothing new. However, recent developments have extended efforts to control employee behavior into new areas, with new significance. Employers seek to control legal behavior by employees outside of working hours, to have significant influence over employees’ health-related behavior, and to monitor and control employees’ social media, even when this behavior has nothing to do with the workplace. In this article, I draw on the work of political theorists Jon Elster, Gerald Gaus, and Michael Walzer, and privacy scholars Daniel Solove and Anita Allen, to show what is wrong with this extension of employer control of employees’ outside of work behavior. I argue that there are ethical limits on the controls that employers may put on their employees’ behavior outside of work, and that many of these limits should be enshrined into legal protections which would prevent employers from conditioning employment on the regulations criticized.
{"title":"That’s None of Your Business! On the Limits of Employer Control of Employee Behavior Outside of Working Hours","authors":"Matthew Lister","doi":"10.1017/cjlj.2022.6","DOIUrl":"https://doi.org/10.1017/cjlj.2022.6","url":null,"abstract":"Abstract Employers seeking to control employee behavior outside of working hours is nothing new. However, recent developments have extended efforts to control employee behavior into new areas, with new significance. Employers seek to control legal behavior by employees outside of working hours, to have significant influence over employees’ health-related behavior, and to monitor and control employees’ social media, even when this behavior has nothing to do with the workplace. In this article, I draw on the work of political theorists Jon Elster, Gerald Gaus, and Michael Walzer, and privacy scholars Daniel Solove and Anita Allen, to show what is wrong with this extension of employer control of employees’ outside of work behavior. I argue that there are ethical limits on the controls that employers may put on their employees’ behavior outside of work, and that many of these limits should be enshrined into legal protections which would prevent employers from conditioning employment on the regulations criticized.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"405 - 426"},"PeriodicalIF":0.6,"publicationDate":"2021-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44047652","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}
Recognizing Wrongs is the latest instalment from the leading civil recourse theorists John Goldberg and Benjamin Zipursky. It is a defence of the theory of tort law that they have developed, together and apart, for more than two decades. Unlike their earlier book on tort,1 this instalment does not focus on tort doctrine. Instead, it presents, elucidates, and defends from criticism the position that underlies its authors’ analysis of that doctrine. The book is both welcome and important. It is also very well-written: clear and accessible. Because of this, the book is not only the authors’ latest statement of their theoretical position, it will also serve as a good entry point for those coming to the debate for the first time. If, for instance, you have ever wondered with respect to rights-based approaches to tort law generally, ‘Why do people think like this?’, this book provides a very accessible answer. As usual, when reviewing a book, it is important to interpret the work in the light of its intended audience. Who is this book for? In the case of Recognizing Wrongs, the answer is very clear. It is for American legal scholars. Its arguments are explicitly aimed at US academics. Its authors maintain that US academic thought is unable to understand tort law, because it approaches that law via theoretical frameworks inconsistent with that law’s structure. The two main aims of the book are to demonstrate this and to defend an alternative framework that better fits the law and so renders that law intelligible. Though I am very sympathetic with this project, I should immediately confess that I am not a member of this intended audience. I am a New Zealander whose work on tort has focussed primarily on the laws of what we somewhat erroneously label the Commonwealth.2 I am, then, an outsider looking in. Thankfully, given the geographical location of this journal, that seems fitting. Most of the readers of this review will also be outsiders looking in. Because
{"title":"Recognizing One More Wrong","authors":"Allan Beever","doi":"10.1017/cjlj.2021.4","DOIUrl":"https://doi.org/10.1017/cjlj.2021.4","url":null,"abstract":"Recognizing Wrongs is the latest instalment from the leading civil recourse theorists John Goldberg and Benjamin Zipursky. It is a defence of the theory of tort law that they have developed, together and apart, for more than two decades. Unlike their earlier book on tort,1 this instalment does not focus on tort doctrine. Instead, it presents, elucidates, and defends from criticism the position that underlies its authors’ analysis of that doctrine. The book is both welcome and important. It is also very well-written: clear and accessible. Because of this, the book is not only the authors’ latest statement of their theoretical position, it will also serve as a good entry point for those coming to the debate for the first time. If, for instance, you have ever wondered with respect to rights-based approaches to tort law generally, ‘Why do people think like this?’, this book provides a very accessible answer. As usual, when reviewing a book, it is important to interpret the work in the light of its intended audience. Who is this book for? In the case of Recognizing Wrongs, the answer is very clear. It is for American legal scholars. Its arguments are explicitly aimed at US academics. Its authors maintain that US academic thought is unable to understand tort law, because it approaches that law via theoretical frameworks inconsistent with that law’s structure. The two main aims of the book are to demonstrate this and to defend an alternative framework that better fits the law and so renders that law intelligible. Though I am very sympathetic with this project, I should immediately confess that I am not a member of this intended audience. I am a New Zealander whose work on tort has focussed primarily on the laws of what we somewhat erroneously label the Commonwealth.2 I am, then, an outsider looking in. Thankfully, given the geographical location of this journal, that seems fitting. Most of the readers of this review will also be outsiders looking in. Because","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"493 - 514"},"PeriodicalIF":0.6,"publicationDate":"2021-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.4","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49593027","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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