Inquiring into the fundamental nature of law has been traditionally formulated as an attempt to answer the question, “What is Law?” Such an inquiry typically proceeds by identifying the necessary features of law. Joseph Raz, for example, writes: A theory consists of necessary truths, for only necessary truths about the law reveal the nature of the law. We talk of ‘the nature of law’, or the nature of anything else, to refer to those of the law’s characteristics which are of the essence of law, which make law into what it is. That is those properties without which the law would not be law.1
{"title":"On the Nature of Necessary Truths in Jurisprudence: Putting Wittgensteinian Hinges to Use","authors":"Y. Tong","doi":"10.1017/cjlj.2021.1","DOIUrl":"https://doi.org/10.1017/cjlj.2021.1","url":null,"abstract":"Inquiring into the fundamental nature of law has been traditionally formulated as an attempt to answer the question, “What is Law?” Such an inquiry typically proceeds by identifying the necessary features of law. Joseph Raz, for example, writes: A theory consists of necessary truths, for only necessary truths about the law reveal the nature of the law. We talk of ‘the nature of law’, or the nature of anything else, to refer to those of the law’s characteristics which are of the essence of law, which make law into what it is. That is those properties without which the law would not be law.1","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"203 - 237"},"PeriodicalIF":0.6,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.1","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45994025","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}
What is the best explanation of private law? For many of us familiar, never mind exasperated, with the state of the current theoretical debates, any answer that is not some variation on, or combination of, “corrective justice,” “rights,” or most questionably, “the legal philosophy of Immanuel Kant” comes as a blessed relief. In this respect, Nicholas McBride is off to an auspicious start with his impressive new monograph, The Humanity of Private Law Part 1: The Explanation [HPL], which sets out “a way of thinking about private law.”1 Put simply, he argues that private law is concerned with promoting the flourishing of its subjects while preserving its legitimacy.2 At first sight, this might seem unobjectionable. Who could deny that flourishing is something that should be promoted? And we should be slow to accuse judges and other lawmakers of deliberately crafting the opposite: a private law that diminishes people’s flourishing and is unconcerned with maintaining its legitimacy. But first impressions can be deceiving. In what follows I give an overview of McBride’s theory before arguing that it is unpersuasive as an explanatory account of private law doctrine.
对私法最好的解释是什么？对于我们许多熟悉当前理论辩论的人来说，更不用说愤怒了，任何不是“矫正正义”、“权利”或最有疑问的是“伊曼纽尔·康德的法律哲学”的变体或组合的答案都是一种幸运的解脱。在这方面，尼古拉斯·麦克布赖德（Nicholas McBride）以其令人印象深刻的新专著《私法的人性第1部分：解释》（The Humanity of Private Law Part 1:The Explaition[HPL]）开创了一个良好的开端，该专著阐述了“对私法的一种思考方式”。1简单地说，他认为私法关心的是促进其主体的繁荣，同时保持其合法性。2乍一看，这似乎没有什么可反对的。谁能否认繁荣是应该提倡的呢？我们应该慢慢指责法官和其他立法者故意制定相反的法律：一项削弱人民繁荣、不关心维护其合法性的私法。但第一印象可能是骗人的。在下文中，我对麦克布赖德的理论进行了概述，然后认为它作为私法学说的解释性说明是没有说服力的。
{"title":"Flourishing Under Private Law? A Critique of McBride’s Explanatory Theory","authors":"C. Purshouse","doi":"10.1017/cjlj.2020.18","DOIUrl":"https://doi.org/10.1017/cjlj.2020.18","url":null,"abstract":"What is the best explanation of private law? For many of us familiar, never mind exasperated, with the state of the current theoretical debates, any answer that is not some variation on, or combination of, “corrective justice,” “rights,” or most questionably, “the legal philosophy of Immanuel Kant” comes as a blessed relief. In this respect, Nicholas McBride is off to an auspicious start with his impressive new monograph, The Humanity of Private Law Part 1: The Explanation [HPL], which sets out “a way of thinking about private law.”1 Put simply, he argues that private law is concerned with promoting the flourishing of its subjects while preserving its legitimacy.2 At first sight, this might seem unobjectionable. Who could deny that flourishing is something that should be promoted? And we should be slow to accuse judges and other lawmakers of deliberately crafting the opposite: a private law that diminishes people’s flourishing and is unconcerned with maintaining its legitimacy. But first impressions can be deceiving. In what follows I give an overview of McBride’s theory before arguing that it is unpersuasive as an explanatory account of private law doctrine.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"239 - 257"},"PeriodicalIF":0.6,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.18","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44647068","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 German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit.1 While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory,2 natural law theorists such as John Finnis opine that the lex injusta non est lex3 maxim has been no more than a subordinate theorem of classical natural law theory.4 In Finnis’s view, unjust laws give rise to legal obligation “in a legal sense.”5
{"title":"Radbruch’s Formula Revisited: The Lex Injusta Non Est Lex Maxim in Constitutional Democracies","authors":"Seow Hon Tan","doi":"10.1017/cjlj.2021.12","DOIUrl":"https://doi.org/10.1017/cjlj.2021.12","url":null,"abstract":"According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit.1 While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory,2 natural law theorists such as John Finnis opine that the lex injusta non est lex3 maxim has been no more than a subordinate theorem of classical natural law theory.4 In Finnis’s view, unjust laws give rise to legal obligation “in a legal sense.”5","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"461 - 491"},"PeriodicalIF":0.6,"publicationDate":"2020-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.12","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49512853","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 What kind of argument is acceptable for this or that interpretation when the text is a court’s opinion? There is plenty of discussion about literary, constitutional, and statutory interpretation. Is it acceptable to import their tenets or theories to the interpretation of court opinions? This paper goes over the leading views on literary, constitutional, and statutory interpretation to compare them with the needs of the court opinions’ interpretation. The author argues that one must interpret court opinions according to the pragmatic model and endeavor to understand the meaning the judge intended for the text.
{"title":"The Interpretation of Court Opinions","authors":"Clovis Kemmerich","doi":"10.1017/cjlj.2021.20","DOIUrl":"https://doi.org/10.1017/cjlj.2021.20","url":null,"abstract":"Abstract What kind of argument is acceptable for this or that interpretation when the text is a court’s opinion? There is plenty of discussion about literary, constitutional, and statutory interpretation. Is it acceptable to import their tenets or theories to the interpretation of court opinions? This paper goes over the leading views on literary, constitutional, and statutory interpretation to compare them with the needs of the court opinions’ interpretation. The author argues that one must interpret court opinions according to the pragmatic model and endeavor to understand the meaning the judge intended for the text.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"35 1","pages":"169 - 186"},"PeriodicalIF":0.6,"publicationDate":"2020-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44020601","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 last two decades have witnessed a wide-ranging and global discussion of the theory and structure of human and constitutional rights. This debate initially focused on the principle of proportionality and subsequently on the related ideas of the ‘culture of justification’ and the ‘right to justification.’ There is now a far-reaching agreement that both proportionality and justification in human and constitutional rights law are concerned with the reasonableness, alternatively the justification in terms of public reason, of the act under consideration. Thus, reasonableness and/or public reason have assumed a, perhaps the, central place in the theory of human and constitutional rights.
{"title":"Beyond Reasonableness: The Dignitarian Structure of Human and Constitutional Rights","authors":"K. Möller","doi":"10.1017/cjlj.2021.9","DOIUrl":"https://doi.org/10.1017/cjlj.2021.9","url":null,"abstract":"The last two decades have witnessed a wide-ranging and global discussion of the theory and structure of human and constitutional rights. This debate initially focused on the principle of proportionality and subsequently on the related ideas of the ‘culture of justification’ and the ‘right to justification.’ There is now a far-reaching agreement that both proportionality and justification in human and constitutional rights law are concerned with the reasonableness, alternatively the justification in terms of public reason, of the act under consideration. Thus, reasonableness and/or public reason have assumed a, perhaps the, central place in the theory of human and constitutional rights.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"341 - 364"},"PeriodicalIF":0.6,"publicationDate":"2020-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.9","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42014961","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"CJL volume 33 issue 2 Cover and Front matter","authors":"","doi":"10.1017/cjlj.2020.15","DOIUrl":"https://doi.org/10.1017/cjlj.2020.15","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"f1 - f5"},"PeriodicalIF":0.6,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.15","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43681225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"CJL volume 33 issue 2 Cover and Back matter","authors":"","doi":"10.1017/cjlj.2020.16","DOIUrl":"https://doi.org/10.1017/cjlj.2020.16","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":" ","pages":"b1 - b2"},"PeriodicalIF":0.6,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.16","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43375082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Legal and political thinkers have always battled with the question of justice and, especially within a society, about the fair and just distribution of rights and responsibilities. This question is, however, not only relevant for the organization of municipal or domestic society; it has become increasingly relevant within the international legal system. An area where this has been most rife in the last three decades is the international law on climate change.
{"title":"Distributive Justice in the Age of Climate Change","authors":"E. Babatunde","doi":"10.1017/cjlj.2020.13","DOIUrl":"https://doi.org/10.1017/cjlj.2020.13","url":null,"abstract":"Legal and political thinkers have always battled with the question of justice and, especially within a society, about the fair and just distribution of rights and responsibilities. This question is, however, not only relevant for the organization of municipal or domestic society; it has become increasingly relevant within the international legal system. An area where this has been most rife in the last three decades is the international law on climate change.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"263 - 292"},"PeriodicalIF":0.6,"publicationDate":"2020-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.13","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44179126","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 debates over rights, as much as, or perhaps more than, in any philosophical debate, it is important to see the wood from the trees. A little while ago, new life was breathed into debates over rights, as a new candidate theory emerged to rival the extant options. More specifically, Gopal Sreenivasan’s hybrid theory of (claim-) rights emerged to rival both will theory and interest theory. This new hybrid theory underwent a series of skirmishes with the interest theory. Moving from the wood, one principal ground over which battle ensued is the so-called third party beneficiary issue. And, more specifically still, descending into the trees, a particular problem within the foregoing third party beneficiary debate centred on what I shall dub Gopal’s Granny, a case wielded by Gopal Sreenivasan, particularly against one of the foremost defenders of the interest theory, Matthew Kramer.
{"title":"The Unavoidability of Evaluation for Interest Theories of Rights","authors":"Mark McBride","doi":"10.1017/cjlj.2020.11","DOIUrl":"https://doi.org/10.1017/cjlj.2020.11","url":null,"abstract":"In debates over rights, as much as, or perhaps more than, in any philosophical debate, it is important to see the wood from the trees. A little while ago, new life was breathed into debates over rights, as a new candidate theory emerged to rival the extant options. More specifically, Gopal Sreenivasan’s hybrid theory of (claim-) rights emerged to rival both will theory and interest theory. This new hybrid theory underwent a series of skirmishes with the interest theory. Moving from the wood, one principal ground over which battle ensued is the so-called third party beneficiary issue. And, more specifically still, descending into the trees, a particular problem within the foregoing third party beneficiary debate centred on what I shall dub Gopal’s Granny, a case wielded by Gopal Sreenivasan, particularly against one of the foremost defenders of the interest theory, Matthew Kramer.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"293 - 315"},"PeriodicalIF":0.6,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.11","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49158506","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}
Freedom of expression has been often described as a necessary precondition for democracy and for the implementation of an effective system of human rights. A deliberative democracy cannot function if citizens are not granted the fundamental right to express their views and to criticize the government without being censored.1 The rule of law becomes an empty notion if legal orders do not protect the impartial, autonomous judgments of the judiciary.2
{"title":"Categories, Balancing, and Fake News: The Jurisprudence of the European Court of Human Rights","authors":"Alessio Sardo","doi":"10.1017/cjlj.2020.5","DOIUrl":"https://doi.org/10.1017/cjlj.2020.5","url":null,"abstract":"Freedom of expression has been often described as a necessary precondition for democracy and for the implementation of an effective system of human rights. A deliberative democracy cannot function if citizens are not granted the fundamental right to express their views and to criticize the government without being censored.1 The rule of law becomes an empty notion if legal orders do not protect the impartial, autonomous judgments of the judiciary.2","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"435 - 460"},"PeriodicalIF":0.6,"publicationDate":"2020-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.5","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49442450","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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