Abstract:Systemic corruption is usually described as a stable self-reinforcing equilibrium that traps individuals by reducing incentives to behave honestly. This article assumes that law enforcement institutions may also be trapped in this equilibrium, leaving no alternative to individuals who want to report corruption. Would the existence of multiple institutions performing accountability functions – what we call institutional multiplicity – reduce the probability that all institutions would be trapped in a systemic corruption environment? We start by hypothesizing that even in contexts of systemic corruption there may be ‘pockets of honesty.’ If this is the case, institutional multiplicity, by increasing the number of accountability institutions available, may create avenues for individuals to report corruption. On the other hand, multiplicity may also increase the risk of ‘façade enforcement’ – that is, the mere appearance of accountability that reinforces a systemic corruption equilibrium. We illustrate these two scenarios with Brazilian examples. We end the article with a discussion of the design of accountability systems in contexts of systemic corruption, arguing that there may be advantages in preserving institutional multiplicity if its deleterious effects are addressed. While based on the Brazilian experience, this article advances theoretical hypotheses that may be useful to other countries.
{"title":"Systemic corruption and institutional multiplicity: Brazilian examples of a complex relationship","authors":"M. Prado, Raquel de Mattos Pimenta","doi":"10.3138/utlj-2020-0119","DOIUrl":"https://doi.org/10.3138/utlj-2020-0119","url":null,"abstract":"Abstract:Systemic corruption is usually described as a stable self-reinforcing equilibrium that traps individuals by reducing incentives to behave honestly. This article assumes that law enforcement institutions may also be trapped in this equilibrium, leaving no alternative to individuals who want to report corruption. Would the existence of multiple institutions performing accountability functions – what we call institutional multiplicity – reduce the probability that all institutions would be trapped in a systemic corruption environment? We start by hypothesizing that even in contexts of systemic corruption there may be ‘pockets of honesty.’ If this is the case, institutional multiplicity, by increasing the number of accountability institutions available, may create avenues for individuals to report corruption. On the other hand, multiplicity may also increase the risk of ‘façade enforcement’ – that is, the mere appearance of accountability that reinforces a systemic corruption equilibrium. We illustrate these two scenarios with Brazilian examples. We end the article with a discussion of the design of accountability systems in contexts of systemic corruption, arguing that there may be advantages in preserving institutional multiplicity if its deleterious effects are addressed. While based on the Brazilian experience, this article advances theoretical hypotheses that may be useful to other countries.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"102 - 74"},"PeriodicalIF":0.6,"publicationDate":"2021-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47787651","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 article, I consider the degree to which criminal justice interventions may be expected to ameliorate systemic corruption. I distinguish between two ideal types of corrupt actors – conditional cooperators and autonomous defectors – and argue that the prospects of reform through criminal justice are greatly affected by the relative preponderance of each type. When conditional cooperators predominate, the criminal law serves primarily to provide assurance that a perceived social norm is effective, in that the norm is both widely adhered to, and adhered to because people endorse the propriety of that norm. When autonomous defectors predominate, the criminal law serves primarily to deter would-be cheaters by attaching costs, at least in expectation, to cheating. Because patterns of compliance based upon a social norm tend to be self-reinforcing, unlike patterns of compliance motivated by fear of sanction, I argue that the prospects of sustainable reform through criminal justice interventions is likely to depend to a substantial degree upon convincing people to trust social norms rather than rely upon their private judgments of what is in their interest – that is, to become conditional cooperators.
{"title":"Corruption and the criminal law: Assurance and deterrence","authors":"Vincent Chiao","doi":"10.3138/utlj-2021-0014","DOIUrl":"https://doi.org/10.3138/utlj-2021-0014","url":null,"abstract":"Abstract:In this article, I consider the degree to which criminal justice interventions may be expected to ameliorate systemic corruption. I distinguish between two ideal types of corrupt actors – conditional cooperators and autonomous defectors – and argue that the prospects of reform through criminal justice are greatly affected by the relative preponderance of each type. When conditional cooperators predominate, the criminal law serves primarily to provide assurance that a perceived social norm is effective, in that the norm is both widely adhered to, and adhered to because people endorse the propriety of that norm. When autonomous defectors predominate, the criminal law serves primarily to deter would-be cheaters by attaching costs, at least in expectation, to cheating. Because patterns of compliance based upon a social norm tend to be self-reinforcing, unlike patterns of compliance motivated by fear of sanction, I argue that the prospects of sustainable reform through criminal justice interventions is likely to depend to a substantial degree upon convincing people to trust social norms rather than rely upon their private judgments of what is in their interest – that is, to become conditional cooperators.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"34 - 8"},"PeriodicalIF":0.6,"publicationDate":"2021-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41906909","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:This article reconstructs Operation Car Wash’s (Operação Lava Jato) political project. Three different phases of the operation are analysed: its conception, its encounter with political and administrative corruption, and its attempt to mobilize popular support to combat political and administrative corruption. The analysis characterizes the operation as a particular manifestation of judicial intervention in the system of representative politics, presenting a critical view of its effects on the balance of power between non-elected and elected officials.
摘要:本文对Operation Car Wash (opera o Lava Jato)政治项目进行了重构。本报告分析了行动的三个不同阶段:行动的构想、遇到的政治和行政腐败以及动员民众支持打击政治和行政腐败的努力。该分析将这一行动定性为代议制政治制度中司法干预的一种特殊表现，对其对非民选官员和民选官员之间权力平衡的影响提出了批判性的看法。
{"title":"From birth to agony: The political life of Operation Car Wash (Operação Lava Jato)","authors":"F. Limongi","doi":"10.3138/utlj-2021-0043","DOIUrl":"https://doi.org/10.3138/utlj-2021-0043","url":null,"abstract":"Abstract:This article reconstructs Operation Car Wash’s (Operação Lava Jato) political project. Three different phases of the operation are analysed: its conception, its encounter with political and administrative corruption, and its attempt to mobilize popular support to combat political and administrative corruption. The analysis characterizes the operation as a particular manifestation of judicial intervention in the system of representative politics, presenting a critical view of its effects on the balance of power between non-elected and elected officials.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"151 - 173"},"PeriodicalIF":0.6,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41388093","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 recent times, the idea of popular sovereignty has figured prominently in the rhetoric of neo-populist thinkers and activists who argue that legal and political authority must be concentrated in one single body or individual elected by the people to act in its name. The thesis of this article is that, while the notion of popular sovereignty may seem to offer some support to the neo-populist image of democracy, it serves more persuasively to support the idea of a polycentric, constitutional democracy. The constitutional state can be polycentric and yet feature a sovereign. And if this constitutional state is democratic in the sense of distributing power relatively equally amongst individual citizens, thus empowering the people-several, then it will establish the people-corporate in the role of sovereign.
{"title":"Popular sovereignty and constitutional democracy","authors":"P. Pettit","doi":"10.3138/utlj-2021-0048","DOIUrl":"https://doi.org/10.3138/utlj-2021-0048","url":null,"abstract":"Abstract:In recent times, the idea of popular sovereignty has figured prominently in the rhetoric of neo-populist thinkers and activists who argue that legal and political authority must be concentrated in one single body or individual elected by the people to act in its name. The thesis of this article is that, while the notion of popular sovereignty may seem to offer some support to the neo-populist image of democracy, it serves more persuasively to support the idea of a polycentric, constitutional democracy. The constitutional state can be polycentric and yet feature a sovereign. And if this constitutional state is democratic in the sense of distributing power relatively equally amongst individual citizens, thus empowering the people-several, then it will establish the people-corporate in the role of sovereign.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"251 - 286"},"PeriodicalIF":0.6,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44222235","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:The threat of sanctions is often insufficient to ensure compliance with legal norms. Recently, much attention has been given to nudges – choice-preserving measures that take advantage of people’s automatic System 1 thinking – as a means of influencing behaviour without sanctions, but nudges are often ineffective and controversial. This article explores the provision of information about the reasons underlying legal norms, as a means to enhance compliance, primarily through deliberative System 2 thinking. While the idea that legal norms should be accompanied by explanatory preambles – to complement the law’s threat of sanctions with persuasion – goes back to Plato, this technique is not commonly used nowadays, and scholars have failed to systematically consider this possibility. The article argues that reason giving can enhance compliance and reduce the need for costly enforcement mechanisms. The theoretical part of the article comprises three parts. It first describes the mechanisms through which reasons may influence people’s behaviour. It then distinguishes between reason giving as a means to enhance compliance and as a means to attain other goals and between reason giving and related means to enhance compliance. Finally, it discusses various policy and pragmatic considerations that bear on the use of reason giving. Following the theoretical discussion, the empirical part of the article uses vignette studies to demonstrate the feasibility and efficacy of the reason-giving technique. The results of these new studies show that providing good reasons for legal norms enhances people’s inclination to comply with them, in comparison to not providing the reasons underlying the norms. However, whereas persuasive reasons may promote compliance, questionable reasons might reduce it. We call on scholars and policy makers to pay more attention to this readily available measure of enhancing compliance with norms.
{"title":"Giving reasons as a means to enhance compliance with legal norms","authors":"Daphna Lewinsohn-Zamir, E. Zamir, O. Katz","doi":"10.2139/ssrn.3892956","DOIUrl":"https://doi.org/10.2139/ssrn.3892956","url":null,"abstract":"Abstract:The threat of sanctions is often insufficient to ensure compliance with legal norms. Recently, much attention has been given to nudges – choice-preserving measures that take advantage of people’s automatic System 1 thinking – as a means of influencing behaviour without sanctions, but nudges are often ineffective and controversial. This article explores the provision of information about the reasons underlying legal norms, as a means to enhance compliance, primarily through deliberative System 2 thinking. While the idea that legal norms should be accompanied by explanatory preambles – to complement the law’s threat of sanctions with persuasion – goes back to Plato, this technique is not commonly used nowadays, and scholars have failed to systematically consider this possibility. The article argues that reason giving can enhance compliance and reduce the need for costly enforcement mechanisms. The theoretical part of the article comprises three parts. It first describes the mechanisms through which reasons may influence people’s behaviour. It then distinguishes between reason giving as a means to enhance compliance and as a means to attain other goals and between reason giving and related means to enhance compliance. Finally, it discusses various policy and pragmatic considerations that bear on the use of reason giving. Following the theoretical discussion, the empirical part of the article uses vignette studies to demonstrate the feasibility and efficacy of the reason-giving technique. The results of these new studies show that providing good reasons for legal norms enhances people’s inclination to comply with them, in comparison to not providing the reasons underlying the norms. However, whereas persuasive reasons may promote compliance, questionable reasons might reduce it. We call on scholars and policy makers to pay more attention to this readily available measure of enhancing compliance with norms.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"316 - 355"},"PeriodicalIF":0.6,"publicationDate":"2021-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47220101","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:Environmental obligations fit uncomfortably into the framework of federal insolvency law. Canadian courts have struggled to articulate which environmental obligations should be stayed, compromised, and discharged in insolvency proceedings and which should remain fully enforceable. In its 2019 decision, Orphan Well Association v Grant Thornton Ltd, the Supreme Court of Canada drew a distinction between two types of environmental obligations: debts and public duties. Debts are subject to being stayed, compromised, and discharged, whereas public duties remain enforceable notwithstanding the obligor's insolvency proceedings. This article elaborates the distinction drawn by the Supreme Court of Canada between debts and public duties by considering who constitutes the public. It offers three answers. The public could include existing members of the human community, future generations of humanity, or non-human environmental entities. The article synthesizes the legal precedents supporting the different conceptions of the public and traces their implications for insolvency practice. Critics charge that the Supreme Court of Canada's decision in Orphan Well has improperly given environmental obligations a super-priority in insolvency proceedings and that such a reordering of insolvency priorities should have been left to Parliament. Yet careful attention to the 'public' character of environmental obligations justifies judicial interventions like the Court's decision in Orphan Well. As humanity faces the existential threat of climate change, the common law provides scope for reimagining legal concepts to better serve the needs of our communities.
{"title":"Elaborate Imaginings: Rethinking Environmental Obligations in Canadian Insolvency Law","authors":"Anna J. Lund","doi":"10.3138/utlj-2020-0035","DOIUrl":"https://doi.org/10.3138/utlj-2020-0035","url":null,"abstract":"Abstract:Environmental obligations fit uncomfortably into the framework of federal insolvency law. Canadian courts have struggled to articulate which environmental obligations should be stayed, compromised, and discharged in insolvency proceedings and which should remain fully enforceable. In its 2019 decision, Orphan Well Association v Grant Thornton Ltd, the Supreme Court of Canada drew a distinction between two types of environmental obligations: debts and public duties. Debts are subject to being stayed, compromised, and discharged, whereas public duties remain enforceable notwithstanding the obligor's insolvency proceedings. This article elaborates the distinction drawn by the Supreme Court of Canada between debts and public duties by considering who constitutes the public. It offers three answers. The public could include existing members of the human community, future generations of humanity, or non-human environmental entities. The article synthesizes the legal precedents supporting the different conceptions of the public and traces their implications for insolvency practice. Critics charge that the Supreme Court of Canada's decision in Orphan Well has improperly given environmental obligations a super-priority in insolvency proceedings and that such a reordering of insolvency priorities should have been left to Parliament. Yet careful attention to the 'public' character of environmental obligations justifies judicial interventions like the Court's decision in Orphan Well. As humanity faces the existential threat of climate change, the common law provides scope for reimagining legal concepts to better serve the needs of our communities.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"301 - 337"},"PeriodicalIF":0.6,"publicationDate":"2021-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42931056","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:People who are committed to religious freedom are generally also committed to protecting the conditions for the cultivation of religious life. Because of the deep linkages between religious belief and practice and religious institutions, it can seem natural and straightforward to move from championing religious freedom to championing religious freedom for religious institutions themselves. Members of the Supreme Court of Canada indicated their readiness to make this move in a 2015 case involving a Catholic secondary school in Quebec. In this article, I challenge the idea that according religious institutions section 2(a) protection in their own right is either a natural or a straightforward consequence of a commitment to collective religious freedom. I describe the intellectual history and characteristics of religious institutionalism and summarize the claims of its principal Canadian proponent. I then outline several ways in which religious institutionalism clashes with our basic constitutional commitments. Finally, I develop several prongs of a feminist response to religious institutionalism. I highlight the normative character of questions about the constitutional status of religious institutions, the gendered nature of the relationship between religious institutions and individual rights-holders, and the organic and dynamic features of religious institutions. I argue that we must approach institutional religious freedom claims cautiously and resist any interpretation of section 2(a) that would entrench and shield from internal resistance a singular, institutional religious voice.
{"title":"Religious institutionalism: A feminist response","authors":"K. Chan","doi":"10.3138/UTLJ-2020-0098","DOIUrl":"https://doi.org/10.3138/UTLJ-2020-0098","url":null,"abstract":"Abstract:People who are committed to religious freedom are generally also committed to protecting the conditions for the cultivation of religious life. Because of the deep linkages between religious belief and practice and religious institutions, it can seem natural and straightforward to move from championing religious freedom to championing religious freedom for religious institutions themselves. Members of the Supreme Court of Canada indicated their readiness to make this move in a 2015 case involving a Catholic secondary school in Quebec. In this article, I challenge the idea that according religious institutions section 2(a) protection in their own right is either a natural or a straightforward consequence of a commitment to collective religious freedom. I describe the intellectual history and characteristics of religious institutionalism and summarize the claims of its principal Canadian proponent. I then outline several ways in which religious institutionalism clashes with our basic constitutional commitments. Finally, I develop several prongs of a feminist response to religious institutionalism. I highlight the normative character of questions about the constitutional status of religious institutions, the gendered nature of the relationship between religious institutions and individual rights-holders, and the organic and dynamic features of religious institutions. I argue that we must approach institutional religious freedom claims cautiously and resist any interpretation of section 2(a) that would entrench and shield from internal resistance a singular, institutional religious voice.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"443 - 479"},"PeriodicalIF":0.6,"publicationDate":"2021-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46388747","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:This article examines the question of how a nation can combat corruption and collusion and prevent these practices from plaguing and undermining public procurement processes. This matter is especially important to Brazil where Operation Car Wash exposed widespread corruption and collusion affecting public procurement. Although focusing on Brazil, this article reflects on a broader academic and policy debate as to how a nation can escape from a ‘high-corruption’ equilibrium, especially one strengthened by its interaction with supplier collusion. In particular, whether endemic corruption can be combatted through an invigorated law enforcement push, combined with incremental reform, or whether some ‘big bang’ approach, with complete institutional overhaul, is required to establish a new equilibrium. The article notes that the Brazilian experience provides support for the hypothesis that, where corruption is endemic, better laws and law enforcement may be insufficient on their own to break a cycle and to remove the incentives and opportunities for corruption and collusion that exist. However, it also recognizes that, for many jurisdictions, wholesale big bang reform is unlikely to be feasible. It thus proposes a multi-pronged, and self-reinforcing, set of reforms to trigger change, concentrated on weaknesses diagnosed in the system. In particular, it suggests that where corruption affects public procurement, beyond specific adjustments to procurement, competition and anti-corruption laws, procurers, anti-corruption and competition enforcement agencies need to work closely together to coordinate policies, achieve synergies and to combat incentives and opportunities for corruption and collusion within procurement processes. Such reforms must be combined with measures to tackle broader factors contributing to systemic corruption. Although inspired by the Brazilian case study, the diagnosis and proposed reform strategy provides a workable model for use in other jurisdictions.
{"title":"Combatting corruption and collusion in public procurement: Lessons from Operation Car Wash","authors":"Alison Jones, Caio Mário S. Pereira Neto","doi":"10.2139/ssrn.3712858","DOIUrl":"https://doi.org/10.2139/ssrn.3712858","url":null,"abstract":"Abstract:This article examines the question of how a nation can combat corruption and collusion and prevent these practices from plaguing and undermining public procurement processes. This matter is especially important to Brazil where Operation Car Wash exposed widespread corruption and collusion affecting public procurement. Although focusing on Brazil, this article reflects on a broader academic and policy debate as to how a nation can escape from a ‘high-corruption’ equilibrium, especially one strengthened by its interaction with supplier collusion. In particular, whether endemic corruption can be combatted through an invigorated law enforcement push, combined with incremental reform, or whether some ‘big bang’ approach, with complete institutional overhaul, is required to establish a new equilibrium. The article notes that the Brazilian experience provides support for the hypothesis that, where corruption is endemic, better laws and law enforcement may be insufficient on their own to break a cycle and to remove the incentives and opportunities for corruption and collusion that exist. However, it also recognizes that, for many jurisdictions, wholesale big bang reform is unlikely to be feasible. It thus proposes a multi-pronged, and self-reinforcing, set of reforms to trigger change, concentrated on weaknesses diagnosed in the system. In particular, it suggests that where corruption affects public procurement, beyond specific adjustments to procurement, competition and anti-corruption laws, procurers, anti-corruption and competition enforcement agencies need to work closely together to coordinate policies, achieve synergies and to combat incentives and opportunities for corruption and collusion within procurement processes. Such reforms must be combined with measures to tackle broader factors contributing to systemic corruption. Although inspired by the Brazilian case study, the diagnosis and proposed reform strategy provides a workable model for use in other jurisdictions.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"103 - 150"},"PeriodicalIF":0.6,"publicationDate":"2021-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46501006","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 Recognizing Wrongs, John Goldberg and Benjamin Zipursky argue that tort law is just what 'it looks to be' – and that what it looks to be is a law of wrongs and recourse. It is not necessary, in their view, to turn to economics, sociology, philosophy, or any other discipline to understand tort law: it is sufficient to take seriously judges' reasons for why they decide tort cases as they do. In advancing this argument, Goldberg and Zipursky seek to distinguish themselves from two influential camps in contemporary tort theory: (a) theories that argue that tort law's rights are 'rights' in only a nominal sense and (b) theories that accept that tort law's rights are genuine but defend those rights by invoking a comprehensive moral theory. In this review essay, I argue that Goldberg and Zipursky largely succeed in their ambitions. The qualifications that I explore are twofold. First, certain tort remedies are not recourse for wrongs, even at the level of appearances. Second, it is not easy to construct a theory of tort law while sticking as close to tort law's appearances as Goldberg and Zipursky purport to stick. The theory that Goldberg and Zipursky ultimately defend relies on certain philosophic ideas (though it does not rely on a comprehensive moral theory); it is also complex, multilayered, and skeletal in its account of tort law's primary duties and, thus, arguably less of a 'theory of tort law' than those offered by their competitors (though I argue that this feature is a virtue of their account).
{"title":"Taking tort seriously","authors":"S. Smith","doi":"10.3138/utlj.2020-0110","DOIUrl":"https://doi.org/10.3138/utlj.2020-0110","url":null,"abstract":"Abstract:In Recognizing Wrongs, John Goldberg and Benjamin Zipursky argue that tort law is just what 'it looks to be' – and that what it looks to be is a law of wrongs and recourse. It is not necessary, in their view, to turn to economics, sociology, philosophy, or any other discipline to understand tort law: it is sufficient to take seriously judges' reasons for why they decide tort cases as they do. In advancing this argument, Goldberg and Zipursky seek to distinguish themselves from two influential camps in contemporary tort theory: (a) theories that argue that tort law's rights are 'rights' in only a nominal sense and (b) theories that accept that tort law's rights are genuine but defend those rights by invoking a comprehensive moral theory. In this review essay, I argue that Goldberg and Zipursky largely succeed in their ambitions. The qualifications that I explore are twofold. First, certain tort remedies are not recourse for wrongs, even at the level of appearances. Second, it is not easy to construct a theory of tort law while sticking as close to tort law's appearances as Goldberg and Zipursky purport to stick. The theory that Goldberg and Zipursky ultimately defend relies on certain philosophic ideas (though it does not rely on a comprehensive moral theory); it is also complex, multilayered, and skeletal in its account of tort law's primary duties and, thus, arguably less of a 'theory of tort law' than those offered by their competitors (though I argue that this feature is a virtue of their account).","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"415 - 441"},"PeriodicalIF":0.6,"publicationDate":"2020-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42194234","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 first edition of his famous treatise Reine Rechtslehre, Einleitung in die Rechtswissenschaftliche Problematik (translated as Introduction to the Problems of Legal Theory), Hans Kelsen makes the claim that the existing liberal, property rights-based private law of his era is a 'democratic form of law' and that private law rights are 'political in the same sense as those rights that are usually characterized as political rights.' In this article, I aim to explain how Kelsen developed his theory of private law and private rights within the theoretical and methodological framework of the 'Pure Theory of Law' and its philosophical underpinnings of relativism and 'value neutrality,' culminating in the connection between private law and democracy. I wish to highlight, in particular, the still often underappreciated fact that the Pure Theory saw itself as a critical project, aimed at exposing and exorcizing 'ideology.' To Kelsen's contemporary audiences, drawing a connection between 'capitalist' private law and democracy must have appeared particularly counter-intuitive against the backdrop of one of the most important – if now almost forgotten – political debates of the Weimar era, the debate on 'economic democracy' ('Wirtschaftsdemokratie'). It was a powerful trope in the inter-war period that the capitalist economy and its institutional safeguards – private, labour, commercial, and corporate law – were 'undemocratic.' I submit that Kelsen's statement – flipping the contemporaneous revisionist-socialist rhetoric on its head – may be better understood in the larger context of the precarity of democracy in the Weimar period and especially in the context of a theoretical and political challenge that contrasted the existing 'bourgeois' parliamentary democracy with a 'true,' 'social' democracy that would realize conditions of social and economic justice. By connecting 'capitalistic' law with 'democracy' and 'socialistic' law with 'autocracy,' Kelsen once more underscores that democracy, properly understood as a formal principle, is irreducible to substantive justice.
摘要:汉斯·凯尔森(Hans Kelsen)在其著名论著《法学问题导论》(Reine Rechtslehre, Einleitung In die Rechtswissenschaftliche Problematik)的第一版中声称，他那个时代现存的自由主义的、以财产权为基础的私法是一种“民主形式的法律”，私法权利“与那些通常被定性为政治权利的权利在同一意义上是政治性的”。在这篇文章中，我的目的是解释凯尔森如何在“纯粹法律理论”的理论和方法论框架内发展他的私法和私人权利理论，以及它的相对主义和“价值中立”的哲学基础，最终在私法和民主之间建立联系。我希望特别强调一个仍然经常被低估的事实，即《纯粹理论》将自己视为一个批判性的项目，旨在揭露和驱除“意识形态”。对于凯尔森同时代的读者来说，将“资本主义”私法与民主联系起来，在魏玛时代最重要的政治辩论之一——关于“经济民主”(“wirtschaftsdemocrdemocratic”)的辩论的背景下，肯定显得特别违反直觉。在两次世界大战期间，资本主义经济及其制度保障——私法、劳动法、商法和公司法——是“不民主的”，这是一个强有力的比喻。我认为，凯尔森的声明——颠覆了当时修正主义社会主义的修辞——在魏玛时期民主不稳定的大背景下，尤其是在理论和政治挑战的背景下，可以更好地理解，这种挑战将现有的“资产阶级”议会民主与“真正的”、“社会的”民主进行了对比，后者将实现社会和经济正义的条件。通过将“资本主义”法律与“民主”、“社会主义”法律与“专制”联系起来，凯尔森再次强调，民主，如果被恰当地理解为一种形式原则，是不可简化为实质正义的。
{"title":"Private law rights as democratic participation: Kelsen on private law and (economic) democracy","authors":"H. Dedek","doi":"10.3138/utlj-2020-0039","DOIUrl":"https://doi.org/10.3138/utlj-2020-0039","url":null,"abstract":"Abstract:In the first edition of his famous treatise Reine Rechtslehre, Einleitung in die Rechtswissenschaftliche Problematik (translated as Introduction to the Problems of Legal Theory), Hans Kelsen makes the claim that the existing liberal, property rights-based private law of his era is a 'democratic form of law' and that private law rights are 'political in the same sense as those rights that are usually characterized as political rights.' In this article, I aim to explain how Kelsen developed his theory of private law and private rights within the theoretical and methodological framework of the 'Pure Theory of Law' and its philosophical underpinnings of relativism and 'value neutrality,' culminating in the connection between private law and democracy. I wish to highlight, in particular, the still often underappreciated fact that the Pure Theory saw itself as a critical project, aimed at exposing and exorcizing 'ideology.' To Kelsen's contemporary audiences, drawing a connection between 'capitalist' private law and democracy must have appeared particularly counter-intuitive against the backdrop of one of the most important – if now almost forgotten – political debates of the Weimar era, the debate on 'economic democracy' ('Wirtschaftsdemokratie'). It was a powerful trope in the inter-war period that the capitalist economy and its institutional safeguards – private, labour, commercial, and corporate law – were 'undemocratic.' I submit that Kelsen's statement – flipping the contemporaneous revisionist-socialist rhetoric on its head – may be better understood in the larger context of the precarity of democracy in the Weimar period and especially in the context of a theoretical and political challenge that contrasted the existing 'bourgeois' parliamentary democracy with a 'true,' 'social' democracy that would realize conditions of social and economic justice. By connecting 'capitalistic' law with 'democracy' and 'socialistic' law with 'autocracy,' Kelsen once more underscores that democracy, properly understood as a formal principle, is irreducible to substantive justice.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"376 - 414"},"PeriodicalIF":0.6,"publicationDate":"2020-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46185979","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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