Private ordering – where private actors regulate, enforce, and resolve disputes on their own – has in recent years expanded across business, commercial, and financial sectors. Parties have economic and reputational incentives to take this approach over adjudication by the courts. Parties may prefer private ordering for reasons of process, substance, or both. Even when disputes come before them, courts often defer to parties’ private ordering. Their rationale: parties possess a stronger understanding of their intentions than do courts. This strong assumption, however, depends on parties’ knowledge and relative bargaining strength. In many instances, parties operate under incomplete or imperfect information; additional information could allow parties to enter into more efficient and more fair agreements ex ante, while better informing courts’ approach to adjudicating disputes arising from private ordering ex post. The emergence of artificial intelligence in legal technology – specifically in its ability to analyze vast amounts of data – can help advance this augmented informational objective. If made broadly accessible, AI has the potential to equalize information and bargaining power between parties. An empirical evaluation of the validity of assumptions that underpin the general support for private ordering can also be instructive for judges. For this reason, courts have an important role to play in the evolution of private law. Their ability to understand and harness AI can in the short term lead to more effective judicial oversight with respect to private ordering. Over the long term, courts can empower parties to make more informed choices when interacting with one another, reducing inefficiencies and rents.
{"title":"An Evidence-Based Approach to Private Ordering","authors":"Benjamin Alarie, Albert H. Yoon","doi":"10.3138/utlj-2023-0002","DOIUrl":"https://doi.org/10.3138/utlj-2023-0002","url":null,"abstract":"Private ordering – where private actors regulate, enforce, and resolve disputes on their own – has in recent years expanded across business, commercial, and financial sectors. Parties have economic and reputational incentives to take this approach over adjudication by the courts. Parties may prefer private ordering for reasons of process, substance, or both. Even when disputes come before them, courts often defer to parties’ private ordering. Their rationale: parties possess a stronger understanding of their intentions than do courts. This strong assumption, however, depends on parties’ knowledge and relative bargaining strength. In many instances, parties operate under incomplete or imperfect information; additional information could allow parties to enter into more efficient and more fair agreements ex ante, while better informing courts’ approach to adjudicating disputes arising from private ordering ex post. The emergence of artificial intelligence in legal technology – specifically in its ability to analyze vast amounts of data – can help advance this augmented informational objective. If made broadly accessible, AI has the potential to equalize information and bargaining power between parties. An empirical evaluation of the validity of assumptions that underpin the general support for private ordering can also be instructive for judges. For this reason, courts have an important role to play in the evolution of private law. Their ability to understand and harness AI can in the short term lead to more effective judicial oversight with respect to private ordering. Over the long term, courts can empower parties to make more informed choices when interacting with one another, reducing inefficiencies and rents.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2023-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46139914","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 public nuisance tort is now in a critical stage of development, mostly in the United States but also in other jurisdictions, including civil law systems. It is becoming ever more consequential in practice and, at the same time, widely misunderstood by courts and scholars. Our ambition is to defend a private law theory of public nuisance. Contrary to the view that the underlying rights protected by this tort contrast with private rights (say, to bodily integrity), we argue that these public rights are private rights like any other right in the law of torts since they protect private persons taken severally. And, yet, these private rights are also distinctively public in the sense that they protect the interests of private persons to use and enjoy the public sphere. In that, public nuisance imposes not merely ex post liability for undermining these interests but also, first and foremost, constructs a liberal public sphere. Our case for public nuisance shows that private law extends beyond the private sphere to capture entitlements and responsibilities that do not arise from, or attach to, ownership of land; it also resists the reduction of private law to rights of action and ex post determination of liabilities. More concretely, our reconstruction of public nuisance solves two key doctrinal challenges that the tort struggles with – concerning the standing to sue in public nuisance and the economic loss rule – and it also refines the potentially significant role of this tort in addressing the urgent threat posed by climate change.
{"title":"Public Nuisance for Private Persons","authors":"Hanoch Dagan, Avihay Dorfman","doi":"10.2139/ssrn.4265981","DOIUrl":"https://doi.org/10.2139/ssrn.4265981","url":null,"abstract":"The public nuisance tort is now in a critical stage of development, mostly in the United States but also in other jurisdictions, including civil law systems. It is becoming ever more consequential in practice and, at the same time, widely misunderstood by courts and scholars. Our ambition is to defend a private law theory of public nuisance. Contrary to the view that the underlying rights protected by this tort contrast with private rights (say, to bodily integrity), we argue that these public rights are private rights like any other right in the law of torts since they protect private persons taken severally. And, yet, these private rights are also distinctively public in the sense that they protect the interests of private persons to use and enjoy the public sphere. In that, public nuisance imposes not merely ex post liability for undermining these interests but also, first and foremost, constructs a liberal public sphere. Our case for public nuisance shows that private law extends beyond the private sphere to capture entitlements and responsibilities that do not arise from, or attach to, ownership of land; it also resists the reduction of private law to rights of action and ex post determination of liabilities. More concretely, our reconstruction of public nuisance solves two key doctrinal challenges that the tort struggles with – concerning the standing to sue in public nuisance and the economic loss rule – and it also refines the potentially significant role of this tort in addressing the urgent threat posed by climate change.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2023-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45834837","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:Classic theories of punishment have been deeply criticized for their failure to attribute significance to victims and the fact of their victimization within their proposed frameworks for the justification and distribution of punishment. Retributive theory, in particular, has been criticized for its failure to recognize the significance of victims. Some theorists have been led by this lacuna to adopt a victim-centred approach to punishment as a solution to the ‘absence-of-victim’ problem. Per victim-centred approaches, the very justification and imposition of punishment rely on victims and the restoration of egalitarian relations between the offender and victim that were disturbed by crime. This move toward constructing criminal law and punishment in terms of victim recognition and vindication has become increasingly popular and has been endorsed by a number of prominent theorists, yet it raises important worries. This article proposes an alternative solution, embracing the insight that victims ought to matter to the punishment of those who offend against them, yet without constructing the edifice of criminal law and punishment on the function of victim vindication. It offers an account of the way in which the introduction of a victim changes the balance of reasons in favour of punishment, becoming important to the determination of whether or not punishment ought to be imposed (in full). Yet it does so without taking the ‘victim’s turn’ – that is, without reconstructing the institution of criminal punishment entirely in victim-centric terms.
{"title":"How victims matter: Rethinking the significance of the victim in criminal theory","authors":"Leora Dahan Katz","doi":"10.3138/utlj-2021-0091","DOIUrl":"https://doi.org/10.3138/utlj-2021-0091","url":null,"abstract":"Abstract:Classic theories of punishment have been deeply criticized for their failure to attribute significance to victims and the fact of their victimization within their proposed frameworks for the justification and distribution of punishment. Retributive theory, in particular, has been criticized for its failure to recognize the significance of victims. Some theorists have been led by this lacuna to adopt a victim-centred approach to punishment as a solution to the ‘absence-of-victim’ problem. Per victim-centred approaches, the very justification and imposition of punishment rely on victims and the restoration of egalitarian relations between the offender and victim that were disturbed by crime. This move toward constructing criminal law and punishment in terms of victim recognition and vindication has become increasingly popular and has been endorsed by a number of prominent theorists, yet it raises important worries. This article proposes an alternative solution, embracing the insight that victims ought to matter to the punishment of those who offend against them, yet without constructing the edifice of criminal law and punishment on the function of victim vindication. It offers an account of the way in which the introduction of a victim changes the balance of reasons in favour of punishment, becoming important to the determination of whether or not punishment ought to be imposed (in full). Yet it does so without taking the ‘victim’s turn’ – that is, without reconstructing the institution of criminal punishment entirely in victim-centric terms.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"73 1","pages":"263 - 292"},"PeriodicalIF":0.6,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47266310","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 division of tax room for shared tax bases, such as income taxes in Canada, the United States, Australia, and Switzerland, is a frequent cause of political conflict between national and sub-national governments. Economists and legal scholars have developed a theory that sets out an optimal division of tax room, but federal nations often substantially depart from this prescription by allocating too much or too little tax room to national governments. This article argues that the divergence between theory and actual practice can be partially explained by a ‘credit assignment problem’ that affects the political economy of government decision making. To illustrate, the article develops a model to identify the incentives governments face when dividing tax room. The model’s central observations are that (a) the optimal division of tax room requires robust intergovernmental contracting, but (b) the necessary contracts are difficult or impossible to perform due to problems in allocating political credit – electoral rewards and punishments – between the two levels of government. The result is political conflict and, frequently, a sub-optimal division of tax room and the revenue that results. This article argues that law can perform two functions in responding to the credit assignment problem: (a) it can facilitate credit assignment, so that the necessary contracts over tax room and revenue are politically feasible, and (b), failing perfect credit assignment, it can mitigate the welfare effects of a sub-optimal division of tax room. The article shows how a credit assignment perspective should lead to reconsideration of constitutional law doctrines, such as the federal spending power and various doctrines that enable or limit concurrent expenditure jurisdiction. While these doctrines are the subject of long-running debates in legal scholarship, the credit assignment perspective offers new insights and new doctrinal prescriptions.
{"title":"Rethinking the division of tax room and revenue in fiscal federalism","authors":"Rory Gillis","doi":"10.3138/utlj-2021-0107","DOIUrl":"https://doi.org/10.3138/utlj-2021-0107","url":null,"abstract":"The division of tax room for shared tax bases, such as income taxes in Canada, the United States, Australia, and Switzerland, is a frequent cause of political conflict between national and sub-national governments. Economists and legal scholars have developed a theory that sets out an optimal division of tax room, but federal nations often substantially depart from this prescription by allocating too much or too little tax room to national governments. This article argues that the divergence between theory and actual practice can be partially explained by a ‘credit assignment problem’ that affects the political economy of government decision making. To illustrate, the article develops a model to identify the incentives governments face when dividing tax room. The model’s central observations are that (a) the optimal division of tax room requires robust intergovernmental contracting, but (b) the necessary contracts are difficult or impossible to perform due to problems in allocating political credit – electoral rewards and punishments – between the two levels of government. The result is political conflict and, frequently, a sub-optimal division of tax room and the revenue that results. This article argues that law can perform two functions in responding to the credit assignment problem: (a) it can facilitate credit assignment, so that the necessary contracts over tax room and revenue are politically feasible, and (b), failing perfect credit assignment, it can mitigate the welfare effects of a sub-optimal division of tax room. The article shows how a credit assignment perspective should lead to reconsideration of constitutional law doctrines, such as the federal spending power and various doctrines that enable or limit concurrent expenditure jurisdiction. While these doctrines are the subject of long-running debates in legal scholarship, the credit assignment perspective offers new insights and new doctrinal prescriptions.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136186802","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 story of Canadian administrative law could be seen as a move toward deference driven by some fundamental decisions of the Supreme Court of Canada. Debates about this move centre on the proper role for reviewing courts as well as the politics lying behind administrative law decisions. Most recently, the 2019 Supreme Court decision in Vavilov raised concerns that it licenses judges to undertake more intrusive review. Key to this story is the assumption that these groundbreaking decisions of the Supreme Court influence how lower court judges decide challenges in the administrative law context. Prior empirical studies have found that the 2008 Supreme Court decision in Dunsmuir increased the use of the reasonableness standard of review as well as the rate at which judges affirm administrative decisions. However, it can be difficult to empirically account for the variety of contexts and decision makers involved. This article uses decisions of the Federal Court to examine whether Dunsmuir and Vavilov changed how judges decide. It finds that, while the use of reasonableness has dramatically increased, the rate at which judges affirm administrative decisions has not changed over time. The article discusses these results and what they imply about the influence of these groundbreaking Supreme Court decisions.
{"title":"How Important Are the Groundbreaking Cases in Administrative Law?","authors":"A. Green","doi":"10.2139/ssrn.4114959","DOIUrl":"https://doi.org/10.2139/ssrn.4114959","url":null,"abstract":"The story of Canadian administrative law could be seen as a move toward deference driven by some fundamental decisions of the Supreme Court of Canada. Debates about this move centre on the proper role for reviewing courts as well as the politics lying behind administrative law decisions. Most recently, the 2019 Supreme Court decision in Vavilov raised concerns that it licenses judges to undertake more intrusive review. Key to this story is the assumption that these groundbreaking decisions of the Supreme Court influence how lower court judges decide challenges in the administrative law context. Prior empirical studies have found that the 2008 Supreme Court decision in Dunsmuir increased the use of the reasonableness standard of review as well as the rate at which judges affirm administrative decisions. However, it can be difficult to empirically account for the variety of contexts and decision makers involved. This article uses decisions of the Federal Court to examine whether Dunsmuir and Vavilov changed how judges decide. It finds that, while the use of reasonableness has dramatically increased, the rate at which judges affirm administrative decisions has not changed over time. The article discusses these results and what they imply about the influence of these groundbreaking Supreme Court decisions.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44207178","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}
Judges decide multiple types of disputes, including disputes involving the property or contractual rights of two private parties (their ‘private rights’). The nature of these private rights has long been the focus of philosophical debates between conventionalists, non-conventionalists, and Kantians. In this article, I offer an argument in favour of the adoption of a legalist concept of private rights by judges and lawyers involved in private law disputes. According to this argument for private law legalism, judges and lawyers should see these rights as purely legal rights that do not reflect any pre-existing moral entitlements but are simply the upshots of positive law. The reason for adopting this legalist view is that it contributes to the rationality, predictability, and stability of legal reasoning, as well as to an appropriate evaluative stance toward positive law. Thus understood, the argument for legalism is not an argument about the nature of private rights, but about the conception of such rights that participants in private law reasoning ought to adopt.
{"title":"Private Law Legalism","authors":"Felipe Jiménez","doi":"10.2139/ssrn.4161123","DOIUrl":"https://doi.org/10.2139/ssrn.4161123","url":null,"abstract":"Judges decide multiple types of disputes, including disputes involving the property or contractual rights of two private parties (their ‘private rights’). The nature of these private rights has long been the focus of philosophical debates between conventionalists, non-conventionalists, and Kantians. In this article, I offer an argument in favour of the adoption of a legalist concept of private rights by judges and lawyers involved in private law disputes. According to this argument for private law legalism, judges and lawyers should see these rights as purely legal rights that do not reflect any pre-existing moral entitlements but are simply the upshots of positive law. The reason for adopting this legalist view is that it contributes to the rationality, predictability, and stability of legal reasoning, as well as to an appropriate evaluative stance toward positive law. Thus understood, the argument for legalism is not an argument about the nature of private rights, but about the conception of such rights that participants in private law reasoning ought to adopt.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45670857","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":"Martin Loughlin, Against Constitutionalism","authors":"R. Gargarella","doi":"10.3138/utlj-2022-0080","DOIUrl":"https://doi.org/10.3138/utlj-2022-0080","url":null,"abstract":"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42979250","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}
Purposive interpretation leads a double life. As a matter of constitutional practice, it forms the doctrine through which courts in Canada and around the world determine the concrete protections that abstract constitutional rights afford. However, as a matter of constitutional theory, purposive interpretation is routinely rejected as either an empty phrase that offers no alternative to established theories of constitutional interpretation or a dangerous doctrine that provides no basis for distinguishing between justified and unjustified interpretations of constitutional rights. This article formulates a conception of purposive interpretation that is not vulnerable to these objections. The purposive approach to the interpretation of constitutional rights follows from a set of ideas about how legal interpretation differs from interpretation more broadly, how constitutional interpretation differs from interpretation in other legal domains, and how constitutional interpretation constrains both the purposes it attributes to particular provisions and the application of those purposes to particular contexts. My aim is to show that these ideas fit together in a coherent doctrinal whole that is neither empty nor dangerous. Purposive interpretation is not empty because it offers a genuine alternative to the presuppositions and structure of opposing interpretive paradigms. Purposive interpretation is not dangerous because it provides a principled set of resources for distinguishing between justified and unjustified interpretations.
{"title":"What Is Purposive Interpretation?","authors":"J. Weinrib","doi":"10.3138/utlj-2021-0116","DOIUrl":"https://doi.org/10.3138/utlj-2021-0116","url":null,"abstract":"Purposive interpretation leads a double life. As a matter of constitutional practice, it forms the doctrine through which courts in Canada and around the world determine the concrete protections that abstract constitutional rights afford. However, as a matter of constitutional theory, purposive interpretation is routinely rejected as either an empty phrase that offers no alternative to established theories of constitutional interpretation or a dangerous doctrine that provides no basis for distinguishing between justified and unjustified interpretations of constitutional rights. This article formulates a conception of purposive interpretation that is not vulnerable to these objections. The purposive approach to the interpretation of constitutional rights follows from a set of ideas about how legal interpretation differs from interpretation more broadly, how constitutional interpretation differs from interpretation in other legal domains, and how constitutional interpretation constrains both the purposes it attributes to particular provisions and the application of those purposes to particular contexts. My aim is to show that these ideas fit together in a coherent doctrinal whole that is neither empty nor dangerous. Purposive interpretation is not empty because it offers a genuine alternative to the presuppositions and structure of opposing interpretive paradigms. Purposive interpretation is not dangerous because it provides a principled set of resources for distinguishing between justified and unjustified interpretations.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45411768","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}
Classic theories of punishment have been deeply criticized for their failure to attribute significance to victims and the fact of their victimization within their proposed frameworks for the justification and distribution of punishment. Retributive theory, in particular, has been criticized for its failure to recognize the significance of victims. Some theorists have been led by this lacuna to adopt a victim-centred approach to punishment as a solution to the ‘absence-of-victim’ problem. Per victim- centred approaches, the very justification and imposition of punishment rely on victims and the restoration of egalitarian relations between the offender and victim that were disturbed by crime. This move toward constructing criminal law and punishment in terms of victim recognition and vindication has become increasingly popular and has been endorsed by a number of prominent theorists, yet it raises important worries. This article proposes an alternative solution, embracing the insight that victims ought to matter to the punishment of those who offend against them, yet without constructing the edifice of criminal law and punishment on the function of victim vindication. It offers an account of the way in which the introduction of a victim changes the balance of reasons in favour of punishment, becoming important to the determination of whether or not punishment ought to be imposed (in full). Yet it does so without taking the ‘victim’s turn’ – that is, without reconstructing the institution of criminal punishment entirely in victim-centric terms.
{"title":"How Victims Matter: Rethinking the Significance of the Victim in Criminal Theory","authors":"L. Katz","doi":"10.3138/utlj.2021-0091","DOIUrl":"https://doi.org/10.3138/utlj.2021-0091","url":null,"abstract":"Classic theories of punishment have been deeply criticized for their failure to attribute significance to victims and the fact of their victimization within their proposed frameworks for the justification and distribution of punishment. Retributive theory, in particular, has been criticized for its failure to recognize the significance of victims. Some theorists have been led by this lacuna to adopt a victim-centred approach to punishment as a solution to the ‘absence-of-victim’ problem. Per victim- centred approaches, the very justification and imposition of punishment rely on victims and the restoration of egalitarian relations between the offender and victim that were disturbed by crime. This move toward constructing criminal law and punishment in terms of victim recognition and vindication has become increasingly popular and has been endorsed by a number of prominent theorists, yet it raises important worries. This article proposes an alternative solution, embracing the insight that victims ought to matter to the punishment of those who offend against them, yet without constructing the edifice of criminal law and punishment on the function of victim vindication. It offers an account of the way in which the introduction of a victim changes the balance of reasons in favour of punishment, becoming important to the determination of whether or not punishment ought to be imposed (in full). Yet it does so without taking the ‘victim’s turn’ – that is, without reconstructing the institution of criminal punishment entirely in victim-centric terms.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"0 1","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43086988","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}
This article takes as its starting point a particular idea about the nature of private law: that it is specially concerned with relational or interpersonal justice. The relational conception is meant to be juxtaposed against non-relational conceptions typically grouped under the heading of ‘instrumentalism’: the idea that law is a means to an end. But a question mark hovers over domains beyond the private. Are these non-relational or relational and anti-instrumentalist in different ways? To answer this question, this article articulates a more capacious framework of interpersonal justice that captures the continuities and discontinuities between private law and non-private fields. I rework the architectonic of relationality, untangling foundational concepts such as the notions of parties and identities; the process of reasoning to different structures of interpersonal obligations; and the multifaceted idea of instrumentalism. Working through moral philosophy, jurisprudence, criminal law, and constitutional and administrative law, I follow the golden thread of interpersonal justice that is woven through the conceptual architecture of all these fields and suggest further consolidations, extensions, and implications that are yet to be fully grasped.
{"title":"Rethinking Relational Architecture: Interpersonal Justice Beyond Private Law","authors":"Z. Tan","doi":"10.3138/utlj-2021-0087","DOIUrl":"https://doi.org/10.3138/utlj-2021-0087","url":null,"abstract":"This article takes as its starting point a particular idea about the nature of private law: that it is specially concerned with relational or interpersonal justice. The relational conception is meant to be juxtaposed against non-relational conceptions typically grouped under the heading of ‘instrumentalism’: the idea that law is a means to an end. But a question mark hovers over domains beyond the private. Are these non-relational or relational and anti-instrumentalist in different ways? To answer this question, this article articulates a more capacious framework of interpersonal justice that captures the continuities and discontinuities between private law and non-private fields. I rework the architectonic of relationality, untangling foundational concepts such as the notions of parties and identities; the process of reasoning to different structures of interpersonal obligations; and the multifaceted idea of instrumentalism. Working through moral philosophy, jurisprudence, criminal law, and constitutional and administrative law, I follow the golden thread of interpersonal justice that is woven through the conceptual architecture of all these fields and suggest further consolidations, extensions, and implications that are yet to be fully grasped.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46578973","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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