2015 January
Damiano Canale, “Comparative Reasoning in Legal Adjudication”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 1 (January 2015) pp. 5-27.
This paper focuses on the practice of making reference to foreign law in legal adjudication. On the one hand, this practice has received overwhelming attention from legal scholars in the last two decades under the headings of “judicial dialogue”, “judicial cross-fertilization” or “constitutional conversation”; on the other hand, a systematic, theoretical picture of this practice is still lacking. The paper aims to bridge this gap by elucidating the structure of legal comparison in judicial decision-making from the point of view of argumentation theory. To this end, the paper examines the various forms of comparative reasoning, identifies the set of their implicit premises and shows under what conditions referring to foreign law in legal adjudication is justified on its own grounds. This analysis will lead us to discuss the thesis according to which comparative reasoning by courts is changing the nature of law and the structure of contemporary legal systems.
Keywords: Judicial dialogue, judicial cross-fertilization, constitutional conversation, foreign law, legal systems, adjudication
Gary Chartier, Book Review of Anarchy Unbound, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 1 (January 2015) pp. 237-240.
Peter T. Leeson’s Anarchy Unbound offers an interesting collection of historical and theoretical arguments for the view that bottom-up social order is perfectly possible and at least sometimes preferable to order imposed from the top down.
Shachar Eldar, “Examining Intent through the Lens of Complicity”, Canadian Journal of Law and Jurisprudence, vol. XXVIII, no. 1 (January 2015) pp. 29-50.
The article seeks to demonstrate that hypotheticals which depict collective criminality shed light on the contested issue of conceptualizing criminal intent. Since the formulation of the doctrine of transferred malice in the English Common Law, criminal law has been grappling with the question of framing intent as either object-specific or type-oriented. This question is particularly salient where the defendant caused harm to a different object than the one he had in mind, either by accidentally missing the target or as a result of mistaken identification. In such cases, an object-specific conceptualization does not permit conviction for the harm caused, whereas a type-oriented one does, as would the doctrine that transfers the defendant’s intent from the intended person or object to the one actually harmed. Utilizing a methodology of embedding instances of accidental miss-aim and mistaken identification into scenarios that involve multiple accomplices, the article argues that the object-specific conceptualization of intent has the advantage of being most suited for assigning liability to the participants in an offence. The analysis offered also supports equal treatment of accidents and mistaken identification.
Keywords: legal theory, criminal law, mens rea, intent, complicity, transferred malice
John Finnis, “Patriation and Patrimony: The Path to the Charter”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 1 (January 2015) pp. 51-75.
This annotated Coxford Lecture is the first account dedicated to tracing the part played in the 1980-82 patriation of the Canadian Constitution by the British House of Commons, particularly by its Select Committee on Foreign Affairs. This committee, for which author was the adviser, investigated the propriety of the UK Parliament’s acceding to a request for amendment of the British North America Act 1867 (as amended) if the amendment were opposed by a substantial number of Provinces and it would affect their powers. Against the firm opposition of the Canadian government (secretly being assisted by the British government), the Committee reported in January 1981 that acceding to such a request in such circumstances would be a breach of Parliament’s constitutional responsibilities. A second report, in April 1981, defended that opinion against the Canadian government’s vigorous attempt in March to refute it. The Committee’s position strongly resembles that of the “conventions” majority of the Canadian Supreme Court in September 1981. But the resemblance should not obscure a significant difference, rooted in the distinct authority of the UK Parliament during this terminal phase of the patrimony that, by Canadian decision in 1931, it had inherited: some imperial responsibilities (by then only procedural, and terminated in 1982) for the polity and people of Canada.
Keywords: Constitutional change, British North America Act 1867, patriation, constitutional conventions
Fabien Gélinas, “Modelling Fundamental Legal Change: The Paradox of Context and the Context of Paradox”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 1 (January 2015) pp. 77-96.
The author takes the paradox of omnipotence faced by lawyers in the context of constitutional change as a starting point to explore the relationship between formal law, logic, and the “pragmatics” that inform legal reasoning. Self-reference in constitutions appears problematic because it has no representation in basic, first-order logic. But self-reference in the context of legal change effectively represents a time dimension that is essential to the practice of law. The dissolution of the paradox is then used to illuminate the relationship between formal law and the context in which it is embedded. The author concludes with a nuanced understanding of law as a semi-open system in which judges play the key role of translating fundamental constitutional change into the law’s “internal” point of view.
Keywords: Constitutional change, Normative context, Formal validity, Parliamentary supremacy, Paradox of omnipotence, Logic, Self-reference
Amit Pundik, “Coercion and Deception in Sexual Relations”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 1 (January 2015) pp. 97-127.
In most Common-Law jurisdictions, deceptive sexual relations are criminalized with the same offence that is used to criminalize coercive sexual relations. This trend is strongly supported by feminist scholars like Susan Estrich, who regard deceptive sexual relations as being as wrongful as coercive. Others conflate coercion and deception, going as far to consider deception to be a form of coercion. Against this trend, the present paper argues firstly that deceptive sexual relations are analytically distinct from both coercive and consensual: secondly that, to the extent that cases of deception should be criminalized, this should be done by using an offence distinct from, and less grave than, the offence applicable to coercive sexual relations. To support the latter conclusion this paper suggests a novel argument for why coercive sexual relations are more wrongful than deceptive. The coercer’s conduct is more wrongful because it involves typical wrongmaking features that deception lacks: the coercer cruelly proceeds with the coercion while faced with the victim’s suffering and they dismissively disregard negative reactive attitudes such as resentment and anger that the victim forms and expresses toward them. It is then argued that this difference in wrongfulness serves as a reason for criminalizing coercion and deception in separate offences, the former graver than the latter.
Keywords: Coercion, Consent, Cruelty, Culpability, Harm, Moral Wrong, Sexual offences, Rape, Violence, Criminal law
Marc Ramsay, “Wrongful Pregnancy and the Offset/Benefits Approach”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 1 (January 2015) pp. 129-154.
Wrongful pregnancy cases involve unwanted pregnancies and births caused by medical negligence. In all such cases, the resulting child is unplanned and the relevant healthcare professional’s services were retained in order to prevent pregnancy and childbirth. I argue that wrongful pregnancy victims are entitled to Total Recovery, damages for both child-rearing costs and losses associated with pregnancy. Critics of Total Recovery often appeal to the Offset/Benefits Approach (OBA). In its most radical form, OBA insists that healthy children always constitute an overall benefit to their parents and that this overall benefit cancels out any claim to damages for child-rearing costs. However, OBA cannot justify blocking or reducing wrongful pregnancy victims’ claims to child-rearing damages. The conviction that children must always be treated as overall beneficial to their parents is based on a confused combination of moralistic judgment and legal fiction. More importantly, the benefits of children, whatever these may be, fall outside the scope of the tortfeasor/victim relationship; these benefits are irrelevant to the assessment of damages. My case against OBA is based on an account of corrective justice that draws on the works of Ernest Weinrib and Arthur Ripstein. I illuminate both the defects of OBA and the justice of Total Recovery by comparing wrongful pregnancy suits with Weinrib’s famous plane crash example.
Keywords: Medical Negligence, malpractice, wrongful pregnancy, Total Recovery, children
Duncan Sheehan, “Mistake, Failure of Consideration and the Planning Theory of Intention”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 1 (January 2015) pp. 155-181.
Recovery of mistaken payments in the law of restitution is often justified by reference to a vitiated intention and that of payments where there is a failure of consideration by reference to a qualified intention. This paper aims to investigate whether this is a misleading characterisation and suggests that both causes of action should be understood in terms of conditions affecting our intentions. Specifically we should look at the failure of our planning agency, and Michael Bratman’s theory of agency in particular. In cases of mistaken payments we should look at the failure of a background condition to the payment. In such cases to fail to allow recovery is to fail to respect me as an autonomous actor, acting under norms having agential authority for me.
In failure of consideration cases the autonomy of the other party is at stake, but we can take this into account by positing not a failure of a condition affecting personal intention, but affecting collective intention. There are different views on what collective intention is and how it should be understood, which may themselves have different implications in terms of the concurrency of mistake and failure of consideration as unjust factors. The paper examines different ways in which collective intentions might fail and how they fit the failure of consideration paradigm.
Keywords: Mistaken payments, restitution, intent, contract, failure of considerion,
Dale Smith, “Agreement and Disagreement in Law”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 1 (January 2015) pp. 183-208.
In recent years, there has been renewed interest in the question of whether Ronald Dworkin was correct to allege that legal positivists are unable to account for theoretical disagreement about law. However, relatively little attention has been paid to the related question of who can best account for agreement about law. An important exception is Brian Leiter’s argument that there is massive and pervasive agreement in legal judgments and that positivism can account for this agreement but Dworkin cannot. In this article, I argue that Dworkin can account for such agreement, and that his explanation is no less straightforward than the positivist’s. I further contend that Leiter’s strategy for explaining theoretical disagreement is weakened once we recognise that Dworkin has a plausible explanation of agreement in legal judgments. I conclude by exploring how we might choose between the positivist’s and Dworkin’s competing explanations of agreement in legal judgments.
Keywords: Ronald Dworkin, theoretical disagreement, Brian Leiter, agreement in legal judgments, theory choice in jurisprudence, positivists
Lael K. Weis, “Resources and the Property Rights Curse”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 1 (January 2015) pp. 209-236.
This paper offers a critical appraisal of the growing body of philosophical work on questions of justice in the exploitation of natural resources. It argues that failure to treat property as a distinct set of considerations from those of distributive justice has led to an impoverished philosophical analysis. Moreover, it demonstrates how a property-based approach contributes to a more complete view of the interests at stake in resource exploitation by drawing attention to aspects of human relationships with the physical environment that cannot be captured through the allocation of wealth, such as environmental and cultural integrity. The reason that philosophers have not, by and large, appreciated this contribution rests on mistaken views about the function of property rules that could be rectified through legal understanding. In pursuing this line of argument, the paper considers a recent proposal that seems promising on this front: Leif Wenar’s analysis of the resource curse. Wenar’s proposal is unique in suggesting that questions of resource justice be analysed and resolved through settled principles of property law, rather than through a theory of distributive justice. However, he makes several key tactical errors. Examining where the proposal goes wrong and why provides important insights into the use of legal concepts to analyse intractable questions of justice in political philosophy, and into the place of property in particular—methodological issues that have not received adequate attention, despite the increasingly interdisciplinary nature of scholarship in this area.
Keywords: property rights, resources, exploitation, resource justice, environment
