Modern contract law accords considerable significance to the basic assumptions on which a contract is made. It thus takes to heart a failure of a belief whose truthfulness is taken for granted by both parties. Where the failure results from the parties’ mistake at the time of formation, “the contract is voidable by the adversely affected party,” if that mistake “has a material effect on the agreed exchange of performances” and unless that party “bears the risk of the mistake.”1 Where, in turn, the failure of such a basic assumption results from the parties’ erroneous beliefs about future states of the world, a party’s duty to render performance may be discharged if they are not responsible for the supervening impracticability or frustration and “unless the language or the circumstances indicate the contrary.”2
{"title":"When Contract’s Basic Assumptions Fail","authors":"Hanoch Dagan, Ohad Somech","doi":"10.1017/cjlj.2021.5","DOIUrl":"https://doi.org/10.1017/cjlj.2021.5","url":null,"abstract":"Modern contract law accords considerable significance to the basic assumptions on which a contract is made. It thus takes to heart a failure of a belief whose truthfulness is taken for granted by both parties. Where the failure results from the parties’ mistake at the time of formation, “the contract is voidable by the adversely affected party,” if that mistake “has a material effect on the agreed exchange of performances” and unless that party “bears the risk of the mistake.”1 Where, in turn, the failure of such a basic assumption results from the parties’ erroneous beliefs about future states of the world, a party’s duty to render performance may be discharged if they are not responsible for the supervening impracticability or frustration and “unless the language or the circumstances indicate the contrary.”2","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"297 - 328"},"PeriodicalIF":0.6,"publicationDate":"2021-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.5","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46264290","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 first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder a few of the junctures where Hart failed to heed the admonitions which he had so deftly leveled against Austin.
{"title":"Hart on Legal Powers as Legal Competences","authors":"Matthew H Kramer","doi":"10.1017/cjlj.2022.32","DOIUrl":"https://doi.org/10.1017/cjlj.2022.32","url":null,"abstract":"Abstract This paper first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder a few of the junctures where Hart failed to heed the admonitions which he had so deftly leveled against Austin.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"36 1","pages":"387 - 405"},"PeriodicalIF":0.6,"publicationDate":"2021-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44042902","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 1 Cover and Front matter","authors":"","doi":"10.1017/cjlj.2021.2","DOIUrl":"https://doi.org/10.1017/cjlj.2021.2","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"f1 - f5"},"PeriodicalIF":0.6,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.2","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42409107","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}
My goal in this paper is to tell you a story, a story about race, about crime, about discretion, and about hope. I want to suggest that mass incarceration in the United States is not necessary or wise. It is the product of a criminal justice system that has ballooned beyond reason or recognition from its design.
{"title":"Transforming American Prosecution","authors":"E. Bazelon","doi":"10.1017/cjlj.2020.21","DOIUrl":"https://doi.org/10.1017/cjlj.2020.21","url":null,"abstract":"My goal in this paper is to tell you a story, a story about race, about crime, about discretion, and about hope. I want to suggest that mass incarceration in the United States is not necessary or wise. It is the product of a criminal justice system that has ballooned beyond reason or recognition from its design.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"1 - 10"},"PeriodicalIF":0.6,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.21","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45158114","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}
If land is divine and ought not be bought or sold,1 then bounded land, that which we term territory2 regardless of its form of being bounded, cannot be bought or sold without divine assent either. It may be defended, nurtured, utilised but not bought or sold. In defence of this is the human right to life and liberty. Were life and liberty to depend on access to land or territory then no hindrance would stand to merit. Theologically,3 the Divine created the land so the land belongs to the Divine.4 Similarly where humans labour (to work) and create (to make or build), such which is created is the property of the human, whether it is manufactured, built, sown. And from these personal properties flow the rights and privileges of personal property: alienation, transfer, purchase.5
{"title":"The “Other” Relationship to Land: Property, Belonging, and Alternative Ontology","authors":"A. Carleton","doi":"10.1017/cjlj.2020.24","DOIUrl":"https://doi.org/10.1017/cjlj.2020.24","url":null,"abstract":"If land is divine and ought not be bought or sold,1 then bounded land, that which we term territory2 regardless of its form of being bounded, cannot be bought or sold without divine assent either. It may be defended, nurtured, utilised but not bought or sold. In defence of this is the human right to life and liberty. Were life and liberty to depend on access to land or territory then no hindrance would stand to merit. Theologically,3 the Divine created the land so the land belongs to the Divine.4 Similarly where humans labour (to work) and create (to make or build), such which is created is the property of the human, whether it is manufactured, built, sown. And from these personal properties flow the rights and privileges of personal property: alienation, transfer, purchase.5","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"29 - 57"},"PeriodicalIF":0.6,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.24","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48042210","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}
Sophisticated realists, uncompromising positivists, and postmodernists created much of the law in the last century. Judges, lawyers, and philosophers now are continuing to clarify, improve, and use the law. The law is often clear. But it can be indeterminate because it is indefinite, indistinct, or vague. Two examples are provided.
{"title":"Judging Rationally","authors":"B. Hoffmaster","doi":"10.1017/cjlj.2020.20","DOIUrl":"https://doi.org/10.1017/cjlj.2020.20","url":null,"abstract":"Sophisticated realists, uncompromising positivists, and postmodernists created much of the law in the last century. Judges, lawyers, and philosophers now are continuing to clarify, improve, and use the law. The law is often clear. But it can be indeterminate because it is indefinite, indistinct, or vague. Two examples are provided.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"85 - 104"},"PeriodicalIF":0.6,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.20","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45715217","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 advent of fully autonomous vehicles (AVs) raises many questions. While some appear purely technical, others engage matters of public policy, sometimes with a prominent ethical component. Our expertise lies in law and applied ethics, and so our inquiry will focus heavily on legal or ethical issues arising from a widespread adoption of AVs and their response in emergency situations involving animals. By “animals” we do not mean all other animals than humans. We will concentrate on interest-bearing animals. These are animals who possess a welfare or wellbeing, animals whose lives can fare well or badly from their perspective.
{"title":"Humane Driving","authors":"Vaughan Black, Andrew Fenton","doi":"10.1017/cjlj.2020.17","DOIUrl":"https://doi.org/10.1017/cjlj.2020.17","url":null,"abstract":"The advent of fully autonomous vehicles (AVs) raises many questions. While some appear purely technical, others engage matters of public policy, sometimes with a prominent ethical component. Our expertise lies in law and applied ethics, and so our inquiry will focus heavily on legal or ethical issues arising from a widespread adoption of AVs and their response in emergency situations involving animals. By “animals” we do not mean all other animals than humans. We will concentrate on interest-bearing animals. These are animals who possess a welfare or wellbeing, animals whose lives can fare well or badly from their perspective.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"11 - 28"},"PeriodicalIF":0.6,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.17","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43884810","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 1 Cover and Back matter","authors":"","doi":"10.1017/cjlj.2021.3","DOIUrl":"https://doi.org/10.1017/cjlj.2021.3","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"b1 - b3"},"PeriodicalIF":0.6,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.3","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46312843","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}
Judicial verdicts matter. Apart from deciding the fate of litigants, common law verdicts hold precedential value. They create and alter legal cultures. Considering their importance, it is crucial to ask: what do judicial verdicts turn on? Each verdict is certainly influenced by the case facts, evidence and argumentation presented before the court. However, verdicts are also importantly shaped by how we think about language.1 Questions about language—about the relationship between words and meaning—are central to legal philosophy.
{"title":"The Value of Vagueness: A Feminist Analysis","authors":"Ira Chadha-Sridhar","doi":"10.1017/cjlj.2020.22","DOIUrl":"https://doi.org/10.1017/cjlj.2020.22","url":null,"abstract":"Judicial verdicts matter. Apart from deciding the fate of litigants, common law verdicts hold precedential value. They create and alter legal cultures. Considering their importance, it is crucial to ask: what do judicial verdicts turn on? Each verdict is certainly influenced by the case facts, evidence and argumentation presented before the court. However, verdicts are also importantly shaped by how we think about language.1 Questions about language—about the relationship between words and meaning—are central to legal philosophy.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"59 - 84"},"PeriodicalIF":0.6,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.22","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47520515","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 a widely-shared view, human rights encompass a very limited range of ethical concerns: not all human interests, only urgent interests;1 not our preferences, only our needs;2 not all wrongs, only severe injustices;3 not a good life in the fullest sense, but only a minimally decent or autonomous life.4 In short, human rights are not about realizing the best, they are about shielding us from the worst. I will call this general theoretical stance Minimalism.
{"title":"Minimalism, Determinacy, and Human Rights","authors":"R. Simpson","doi":"10.1017/cjlj.2020.25","DOIUrl":"https://doi.org/10.1017/cjlj.2020.25","url":null,"abstract":"According to a widely-shared view, human rights encompass a very limited range of ethical concerns: not all human interests, only urgent interests;1 not our preferences, only our needs;2 not all wrongs, only severe injustices;3 not a good life in the fullest sense, but only a minimally decent or autonomous life.4 In short, human rights are not about realizing the best, they are about shielding us from the worst. I will call this general theoretical stance Minimalism.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"149 - 169"},"PeriodicalIF":0.6,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.25","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42784489","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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