August 2017
Annalise Acorn, “Should the Injustice Done to Her be the Law’s Concern? The Case of Cinderella,” Canadian Journal of Law & Jurisprudence, Vol. XXX, No. 2 (August 2017) pp. 237-258
In this paper I draw on the fairy tale Cinderella to examine the distinction articulated in analytical jurisprudence between harm and injustice. I argue that the wrong done to Cinderella is an injustice, not a harm. While law is increasingly concerned with harms to children, it is persistently unconcerned with the injustices they suffer. This, I argue, is a mistake informed by a deeply gendered understanding of the distinction between the public and private realms. From Cinderella’s case, I turn to the US Supreme Court decision in Brown v. Board of Education and the settlement of the residential schools claims of Indigenous children in Canada to argue that the law ought not to take the view that injustice to children is not legally cognizable unless and until it can be conceptually transposed into harm. Injustice to children ought particularly to engage the law’s concern where (as in both school segregation in the US and the residential schools in Canada) state action is directly responsible for the injustice in question.
Thomas Bustamante, “Revisiting Dworkin’s Philosophy of International Law: Could the Hedgehog Have Done It Any Other Way?,” Canadian Journal of Law & Jurisprudence, Vol. XXX, No. 2 (August 2017) pp. 259-285
This paper replies to the criticisms raised by Eric Scarffe and Thomas Christiano against Dworkin’s philosophy of international law. While the former argues that Dworkin’s philosophy of international law boils down into some form of political realism, the latter upholds that Dworkin’s attempt to ground the legitimacy of international law on the states’ duty to improve their own legitimacy is insufficient to establish a solid foundation for international obligations. In my response to these critics, I hold that they are based on an uncharitable and implausible reading of Dworkin’s theory of international law, since Dworkin’s theses about the law, whether we are considering “municipal” or “international” law, only make sense if they are understood in an interpretive way. This is, I submit, the only way to avoid turning Dworkin’s assumption of the “unity of value” into an implausible metaphysical theory of natural law. Once we adopt Dworkin’s interpretive attitude, it becomes clear that the route taken by Dworkin in “A New Philosophy for International Law” was the only route that remained available for his interpretive account of political legitimacy and the foundations of law.
Daniel Davison-Vecchione & Kate Pambos, “Steven M. Wise and the Common Law Case for Animal Rights: Full Steam Ahead,” Canadian Journal of Law & Jurisprudence, Vol. XXX, No. 2 (August 2017) pp. 287-309
This article examines Steven M. Wise’s arguments in favour of rationally extending fundamental rights at common law to other animals, as well as the 2014 and 2017 decisions of the Appellate Division of the New York Supreme Court, which rejected the possibility of extending common law personhood to a chimpanzee on social contract grounds. The article argues that extending the common law rights to liberty and bodily integrity to animals whose cognitive characteristics indicate an interest in self-determination is both morally correct and legally feasible, since this interest is what said common law rights exist to protect. Moreover, the arguments from reciprocity and community membership adopted by the New York Court fail to provide a philosophically sound basis for denying nonhuman rights, nor does conceptualising rights and duties in terms of social contract necessarily preclude nonhuman emancipation.
Daniel Del Gobbo, “Unreliable Narration in Law and Fiction,” Canadian Journal of Law & Jurisprudence, Vol. XXX, No. 2 (August, 2017) pp. 311-338
This article revisits long-standing debates about objective interpretation in the common law system by focusing on a crime novel by Agatha Christie and judicial opinion by the Ontario High Court. Conventions of the crime fiction and judicial opinion genres inform readers’ assumption that the two texts are objectively interpretable. This article challenges this assumption by demonstrating that unreliable narration is often, if not always, a feature of written communication. Judges, like crime fiction writers, are storytellers. While these authors might intend for their stories to be read in certain ways, the potential for interpretive disconnect between unreliable narrators and readers means there can be no essential quality that marks a literary or legal text’s meaning as objective. Taken to heart, this demands that judges try to narrate their decisions more reliably so that readers are able to interpret the texts correctly when it matters most.
Colin Grey, “Refugee Law and Its Corruptions,” Canadian Journal of Law & Jurisprudence, Vol. XXX, No. 2 (August 2017) pp. 339-362
This paper asks whether refugee law is morally trustworthy. Trustworthiness here denotes that those who make refugee law—in particular those who decide refugee claims—are competent in this domain and are moved by the fact that refugee claimants and citizens of countries of refuge count on them to make morally sound decisions. Drawing on Adam Smith’s sentimentalist theory of law, the paper argues that refugee law is presumptively subject to various corruptions of the moral sentiments, namely national prejudice, contempt for the lowly, love of domination, and self-deceit. Combined, these corruptions may explain the apparent arbitrariness of refugee claim outcomes. They also suggest that we should be skeptical of any claims regarding the moral trustworthiness of refugee law. What they do not suggest, contrary to more cynical theories, is that refugee law is free of normative constraint.
David A. Reidy, “Moral Psychology, Stability and The Law of Peoples,” Canadian Journal of Law & Jurisprudence, Vol. XXX, No. 2 (August 2017) pp. 363-397
In this paper I take seriously Rawls’s characterization of his The Law of Peoples as carrying forward the project of Political Liberalism. The latter articulates Rawls’s reworking of the stability argument from Part III of A Theory of Justice to better square it with the permanent fact of reasonable doctrinal pluralism under conditions of freedom and right. As presented in Theory the stability argument is an argument from moral psychology. This moral psychology structures the problem generated by doctrinal pluralism in both Political Liberalism and The Law of Peoples, each of which sets out a consistent principled liberal response to it, the former in the domestic, and the latter in the international, context. Bringing this moral psychology to the surface sheds considerable light on Rawls’s attempt to vindicate the possibility of world hospitable to enduring just and stable constitutional liberal democracies governed by legitimate law.
Péter Sólyom, “Between Legal Technique and Legal Policy: Remarks on Hans Kelsen’s Constitutional Theory,” Canadian Journal of Law & Jurisprudence, Vol. XXX, No. 2 (August 2017) pp. 399-411
In this article I seek to re-interpret some of the problems characteristic of Kelsen’s constitutional theory. I shall do so by making use of the Kelsenian perspectives of the legal scholar and the policy-maker as developed in his Pure Theory of Law. I shall argue that in his discussion of constitutional policy issues, Kelsen’s treatises mix legal theoretical arguments (related to the perspective of the legal scholar) with the practical approach of legal policy. My main contention is that political principles are more important for the use of Kelsen’s legal theoretical concepts than usually acknowledged in generally accepted interpretations. The Pure Theory of Law is based on the rejection of autocratic legal thinking, and may be regarded as a formalistic theory of law for a democratic rule of law. Such a conclusion, however, also means that Kelsen’s views concerning the methodology of legal theory are no longer tenable.
Shai Stern, “Remodeling Just Compensation: Applying Restorative Justice to Takings Law Doctrine,” Canadian Journal of Law & Jurisprudence, Vol. XXX, No. 2 (August 2017) pp. 413-441
Compensation for expropriation in most western jurisdictions aims to provide justice. Yet, while this quest for justice is inherent in expropriation laws, they nevertheless say little, if any, about the underlying conception of justice or how justice should be pursued. A closer examination of courts’ judgments, as well as scholarly discourse on the quest for justice in expropriations reveals a muddled dialogue in which divergent justifications pull one towards different normative and positive conclusions. Currently, expropriation doctrine purports to incorporate a sense of fair dealings with those who become victim to legal devices such as eminent domain. However, based on current case law, the reality of expropriation laws fails to reflect any true practice of justice.
This Article suggests a conceptual change in expropriation laws’ remedial scheme by embracing restorative justice as the underlying concept of what constitutes justice in expropriation law. By establishing expropriation law on a restorative conception of justice, a coherent framework will emerge that is circumstances attentive and will provide practical instruments to overcome some of current law’s most significant challenges. This opens a new venue for both expropriation law and restorative justice. Equally important, the Article provides a novel opportunity to consider restorative justice beyond the borders of criminal law.
Bradley Wendel, “The Limits of Positivist Legal Ethics: A Brief History, a Critique, and a Return to Foundations,” Canadian Journal of Law & Jurisprudence, Vol. XXX, No. 2 (August 2017) pp. 443-465
The “positivist turn” in legal ethics has found many scholars in the Anglo-American common-law world relating the duties of lawyers to the rights and duties assigned by the law to their clients. On this view, the role of lawyers should be understood as contributing to the law's function of resolving conflict and establishing a framework for cooperation in a pluralist society. Critics of positivist legal ethics have suggested that it is impossible for lawyers to avoid resorting to moral considerations when representing clients. These critics claim that the guidance provided by law runs out at critical moments, leaving a lawyer no choice but to fall back on the moral considerations supposedly pre-empted by positive law. In particular they argue that the law cannot determine its own application, and normative questions remain regarding the interpretive attitude lawyers ought to take when representing clients. This paper responds to critics of positivist legal ethics by returning to foundations, specifically the values underpinning the rule of law as a practice of giving reasons based on norms established in the name of the political community.
Aleardo Zanghellini, “A Conceptual Analysis of Conceptual Analysis in Analytic Jurisprudence,” Canadian Journal of Law & Jurisprudence, Vol. XXX, No. 2 (August 2017) pp. 467-491
Conceptual analysis remains the methodology of much contemporary mainstream jurisprudence. The last fifteen years have seen significant contributions addressing the nature of conceptual analysis in legal theory, but many questions have not been answered in a satisfactory way. These questions can be more clearly addressed if we appreciate: a) that there is a central case of conceptual analysis; and b) the ways in which non-paradigmatic cases of conceptual analysis differ from the central one. Among other things, the article argues that conceptual analysis is necessary but not sufficient to a full understanding of the nature of law. Some knowledge about law is impervious to conceptual analysis but not to empirical social science. The reverse is also true. In explaining the meaning of ‘conceptual analysis’ the article also enacts conceptual analysis: the method the article uses to clarify the nature of conceptual analysis is precisely the method known as ‘conceptual analysis’.
