Abstract:Ownership is not likely to stand out in most people’s minds as either the most central or the most illuminating case of an office. And, yet, I will argue in this article that the idea of ownership as an office is especially revealing of a tension between the concept of an office and the normative significance of offices in a legal order, a tension that property law resolves in a particularly revealing way with respect to ownership. The tension between the concept of office and its normative significance amounts to this: whereas offices are always capable of vacancy because they are impersonal positions of authority separable from the office-holder, the law abhors vacancies in principle. In earlier articles, I have explained how horror vacui motivates property law’s concern ‘to see that the office of ownership is filled.’ In this article, I will explain how and why vacancy in office amounts to a defect in the legal order itself – in brief, because vacancy undermines the effectiveness and, ultimately, the legitimacy of law as a system for allocating authority. I will argue that the potential for vacancy in offices combined with law’s horror vacui leads to possession as a default procedure for appointment to offices, in general, and the office of ownership, in particular.
{"title":"Ownership and offices: The building blocks of the legal order","authors":"L. Katz","doi":"10.3138/utlj-2020-0067","DOIUrl":"https://doi.org/10.3138/utlj-2020-0067","url":null,"abstract":"Abstract:Ownership is not likely to stand out in most people’s minds as either the most central or the most illuminating case of an office. And, yet, I will argue in this article that the idea of ownership as an office is especially revealing of a tension between the concept of an office and the normative significance of offices in a legal order, a tension that property law resolves in a particularly revealing way with respect to ownership. The tension between the concept of office and its normative significance amounts to this: whereas offices are always capable of vacancy because they are impersonal positions of authority separable from the office-holder, the law abhors vacancies in principle. In earlier articles, I have explained how horror vacui motivates property law’s concern ‘to see that the office of ownership is filled.’ In this article, I will explain how and why vacancy in office amounts to a defect in the legal order itself – in brief, because vacancy undermines the effectiveness and, ultimately, the legitimacy of law as a system for allocating authority. I will argue that the potential for vacancy in offices combined with law’s horror vacui leads to possession as a default procedure for appointment to offices, in general, and the office of ownership, in particular.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"70 1","pages":"267 - 286"},"PeriodicalIF":0.6,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48516613","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Introduction","authors":"L. Katz, Nicole Roughan","doi":"10.3138/utlj-2020-0088","DOIUrl":"https://doi.org/10.3138/utlj-2020-0088","url":null,"abstract":"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48922552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract:In this paper, I argue that policing can be defended as consistent with the equality of all before the law – but not by denying that policing occupies a special place in our legal order that is dangerously close to certain ancien régime privileges. In order to defend the special privileges of policing, it is essential to show that they are something quite different from the ancien régime privileges that they in some respects resemble. The crucial conceptual tool for making that argument is the idea of public office. Policing, I argue, is a public office and like other public offices, it comes equipped with a number of special rights, privileges, powers, and immunities that are not generally possessed by all persons in their private capacity. But that situation is no challenge to the equality of all persons before the law. Those special rights do not belong to the office-holder as their private property, to do with them just as they would like. They belong, instead, to the office itself, and they may be exercised only by someone duly appointed to the office (who may also be duly removed from office) and only in pursuit of the purposes that define her office. The idea of public office is what makes possible a necessary and acceptable kind of inequality – that between individual private persons on the one hand and the collective person of the state on the other – while maintaining the kind of equality that matters, which is the equality of all persons vis-à-vis one another.
{"title":"Policing and public office","authors":"M. Thorburn","doi":"10.3138/utlj-2020-0085","DOIUrl":"https://doi.org/10.3138/utlj-2020-0085","url":null,"abstract":"Abstract:In this paper, I argue that policing can be defended as consistent with the equality of all before the law – but not by denying that policing occupies a special place in our legal order that is dangerously close to certain ancien régime privileges. In order to defend the special privileges of policing, it is essential to show that they are something quite different from the ancien régime privileges that they in some respects resemble. The crucial conceptual tool for making that argument is the idea of public office. Policing, I argue, is a public office and like other public offices, it comes equipped with a number of special rights, privileges, powers, and immunities that are not generally possessed by all persons in their private capacity. But that situation is no challenge to the equality of all persons before the law. Those special rights do not belong to the office-holder as their private property, to do with them just as they would like. They belong, instead, to the office itself, and they may be exercised only by someone duly appointed to the office (who may also be duly removed from office) and only in pursuit of the purposes that define her office. The idea of public office is what makes possible a necessary and acceptable kind of inequality – that between individual private persons on the one hand and the collective person of the state on the other – while maintaining the kind of equality that matters, which is the equality of all persons vis-à-vis one another.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"1169 ","pages":"248 - 266"},"PeriodicalIF":0.6,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41275042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract:Office and profession represent two distinct modes by which work can be regulated. The first has a primarily instrumental logic, which aims to align the private interests of the office-holder with the desired function of the office nexus. The second involves a distinctly anti-instrumentalist commitment, which is supposed to prevent the complete instrumentalization of professional expertise by clients and bureaucracies. This article considers the conjunction of office and profession as an element of institutional design of the sort found in the modern judiciary, the hospital, and the university. After analysing the useful tension that can be achieved by having office-holders who are also professionals, it then explains why recent social developments have put this mechanism under considerable strain in a way that should be a cause for concern for public lawyers and legal theorists.
{"title":"Office and profession in the design of modern institutions","authors":"Arie Rosen","doi":"10.3138/utlj-2020-0038","DOIUrl":"https://doi.org/10.3138/utlj-2020-0038","url":null,"abstract":"Abstract:Office and profession represent two distinct modes by which work can be regulated. The first has a primarily instrumental logic, which aims to align the private interests of the office-holder with the desired function of the office nexus. The second involves a distinctly anti-instrumentalist commitment, which is supposed to prevent the complete instrumentalization of professional expertise by clients and bureaucracies. This article considers the conjunction of office and profession as an element of institutional design of the sort found in the modern judiciary, the hospital, and the university. After analysing the useful tension that can be achieved by having office-holders who are also professionals, it then explains why recent social developments have put this mechanism under considerable strain in a way that should be a cause for concern for public lawyers and legal theorists.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"70 1","pages":"198 - 213"},"PeriodicalIF":0.6,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46866434","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The future of Canadian labour law will not come by means of a sudden legislative tsunami that sweeps in broad-based sectoral collective bargaining or some other dramatic new system to replace the W...
{"title":"David Beatty’s redemption (and other thoughts on the future of labour law)","authors":"David J. Doorey","doi":"10.3138/utlj-2020-0014","DOIUrl":"https://doi.org/10.3138/utlj-2020-0014","url":null,"abstract":"The future of Canadian labour law will not come by means of a sudden legislative tsunami that sweeps in broad-based sectoral collective bargaining or some other dramatic new system to replace the W...","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"16 2","pages":"e20200014"},"PeriodicalIF":0.6,"publicationDate":"2020-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Private law theories tend to narrowly delineate their ambitions: many theories limit private law’s normative aspirations to a circumscribed set of liberalism’s core commitments, restrict its horizo...
{"title":"The domain of private law","authors":"Hanoch Dagan,Avihay Dorfman","doi":"10.3138/utlj-2020-0018","DOIUrl":"https://doi.org/10.3138/utlj-2020-0018","url":null,"abstract":"Private law theories tend to narrowly delineate their ambitions: many theories limit private law’s normative aspirations to a circumscribed set of liberalism’s core commitments, restrict its horizo...","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"297 ","pages":"e20200018"},"PeriodicalIF":0.6,"publicationDate":"2020-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract:Peter Benson’s Justice in Transactions offers a compelling internal, non-instrumental Hegelian conception of the law of contracts. It also connects this non-instrumental conception with broader issues like the social theory of the market, liberal justification, and socio-economic justice. The book is a remarkable achievement. As such, it will – and should – become part of the canon of contract theory. In this review essay, I focus on the theoretical status of the reconstruction offered by Benson in Part I of the book. I am sympathetic to the ‘juridical’ starting point of Benson’s theory and agree that contract law and its doctrinal categories should be taken seriously. However, I argue that Benson’s theory sits at a middle position between a doctrinalist account and a full-blown philosophical theory of contracts and that this detracts from its ability to provide an adequate public justification of contract law as a legal institution. Finally, I cast some doubts on Benson’s account of the relationship between his juridical conception of contract and markets and distributive justice.
{"title":"Contracts, markets, and justice","authors":"Felipe Jiménez","doi":"10.3138/UTLJ-2020-0062","DOIUrl":"https://doi.org/10.3138/UTLJ-2020-0062","url":null,"abstract":"Abstract:Peter Benson’s Justice in Transactions offers a compelling internal, non-instrumental Hegelian conception of the law of contracts. It also connects this non-instrumental conception with broader issues like the social theory of the market, liberal justification, and socio-economic justice. The book is a remarkable achievement. As such, it will – and should – become part of the canon of contract theory. In this review essay, I focus on the theoretical status of the reconstruction offered by Benson in Part I of the book. I am sympathetic to the ‘juridical’ starting point of Benson’s theory and agree that contract law and its doctrinal categories should be taken seriously. However, I argue that Benson’s theory sits at a middle position between a doctrinalist account and a full-blown philosophical theory of contracts and that this detracts from its ability to provide an adequate public justification of contract law as a legal institution. Finally, I cast some doubts on Benson’s account of the relationship between his juridical conception of contract and markets and distributive justice.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"144 - 163"},"PeriodicalIF":0.6,"publicationDate":"2020-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42291380","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract:Much of positivist jurisprudence and public law theory celebrates an idea of the ‘legal official’ as one appointed and identified by law to claim and wield law’s powers over subjects. That idea treats the official as the holder of an office constituted by law and so relies heavily upon law’s fabricated normativity and its insulation from social and moral normativity. This article challenges that view by drawing a distinction between ‘law’s offices’ and ‘officials of the law.’ More precisely, it distinguishes the status of office-holding under the law from the moral standing of ‘officiality’ carried by officials of the law and transmitted through practices of recognition of the role of official. The article challenges positivist orthodoxy to account for the moral standing that recognition carries into the role of official, alongside the institutional rules of office. In a response to John Gardner’s work on ‘officials of the law,’ which insists upon the morally laden role of official but avoids an over-moralized account of law’s normativity, I argue that recognition generates and carries moral normativity within and between the roles of official and subject in a way that inserts such recognition, and the role of official, into the story of law’s normativity.
{"title":"Office-holding and officiality","authors":"Nicole Roughan","doi":"10.3138/utlj-2020-0040","DOIUrl":"https://doi.org/10.3138/utlj-2020-0040","url":null,"abstract":"Abstract:Much of positivist jurisprudence and public law theory celebrates an idea of the ‘legal official’ as one appointed and identified by law to claim and wield law’s powers over subjects. That idea treats the official as the holder of an office constituted by law and so relies heavily upon law’s fabricated normativity and its insulation from social and moral normativity. This article challenges that view by drawing a distinction between ‘law’s offices’ and ‘officials of the law.’ More precisely, it distinguishes the status of office-holding under the law from the moral standing of ‘officiality’ carried by officials of the law and transmitted through practices of recognition of the role of official. The article challenges positivist orthodoxy to account for the moral standing that recognition carries into the role of official, alongside the institutional rules of office. In a response to John Gardner’s work on ‘officials of the law,’ which insists upon the morally laden role of official but avoids an over-moralized account of law’s normativity, I argue that recognition generates and carries moral normativity within and between the roles of official and subject in a way that inserts such recognition, and the role of official, into the story of law’s normativity.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"70 1","pages":"231 - 247"},"PeriodicalIF":0.6,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44391882","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract:In The Public’s Law, Blake Emerson proposes a ‘Progressive theory’ of administrative law that fuses Hegelian and democratic elements. The Progressive theory calls on administrators to make autonomous ethical and political judgments as opposed to restricting themselves to the instrumental application of statutory mandates. Such judgments are to respond to a diffuse process of deliberative engagement with the public. This review essay expounds the Progressive theory and discusses its relevance for administrative law debates in Canada. It closes with consideration of an important challenge to the theory – namely, whether it relies on an overly comprehensive conception of democracy.
{"title":"Bureaucracy without alienation","authors":"Colin Grey","doi":"10.3138/utlj-2020-0060","DOIUrl":"https://doi.org/10.3138/utlj-2020-0060","url":null,"abstract":"Abstract:In The Public’s Law, Blake Emerson proposes a ‘Progressive theory’ of administrative law that fuses Hegelian and democratic elements. The Progressive theory calls on administrators to make autonomous ethical and political judgments as opposed to restricting themselves to the instrumental application of statutory mandates. Such judgments are to respond to a diffuse process of deliberative engagement with the public. This review essay expounds the Progressive theory and discusses its relevance for administrative law debates in Canada. It closes with consideration of an important challenge to the theory – namely, whether it relies on an overly comprehensive conception of democracy.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"126 - 143"},"PeriodicalIF":0.6,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48991605","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract:Our legal regimes are crafted in a way that asserts control over a certain physical three-dimensional space. Some property regimes assert dominion over a vertical three-dimensional column, such as ownership of land that includes certain resources that are vertically related to it above and below the ground. Other property regimes, however, control resources on the horizontal axis. For example, legal control over a footpath exerts a kind of horizontal dominion over the space of and around the footpath. This article offers a conceptual framework for unpacking the spatial geometry of our property regimes and underscores its significance for policy and institutional design. It shows, importantly, that the compatibility between the space over which a regime holds control, and the space that is occupied by a particular resource, has profound implications. A misalignment between the two–for example, when a vertical regime is applied to a horizontal resource–implicates how well the regime functions. After laying out the conceptual framework, the article illustrates its application to a contemporary problem of extracting wind energy.
{"title":"The geometry of property","authors":"Yael R. Lifshitz","doi":"10.2139/ssrn.3692258","DOIUrl":"https://doi.org/10.2139/ssrn.3692258","url":null,"abstract":"Abstract:Our legal regimes are crafted in a way that asserts control over a certain physical three-dimensional space. Some property regimes assert dominion over a vertical three-dimensional column, such as ownership of land that includes certain resources that are vertically related to it above and below the ground. Other property regimes, however, control resources on the horizontal axis. For example, legal control over a footpath exerts a kind of horizontal dominion over the space of and around the footpath. This article offers a conceptual framework for unpacking the spatial geometry of our property regimes and underscores its significance for policy and institutional design. It shows, importantly, that the compatibility between the space over which a regime holds control, and the space that is occupied by a particular resource, has profound implications. A misalignment between the two–for example, when a vertical regime is applied to a horizontal resource–implicates how well the regime functions. After laying out the conceptual framework, the article illustrates its application to a contemporary problem of extracting wind energy.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"480 - 509"},"PeriodicalIF":0.6,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47082351","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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