Abstracts from Volume XIV, Number 1 (January 2001)
1. "The Passionate Legal Debates of the Early Years of the Russian Revolution", Canadian Journal of Law and Jurisprudence, Volume XIV, Number 1 (January 2001) pp. 3-27
Faculty of Law
University of West Sydney
The Russian Revolution of October 1917 marked the first large-scale attempt to fundamentally reorganize economic, social and legal life along egalitarian lines. In relation to legal theory and practice, the revolution launched the boldest experiment of the 20th century, accompanied by passionate, free-ranging and scholarly debates. Lenin's government initially sought to fashion a radically new approach to the state, law and legal theory, with some striking results in the fields such as criminal and family law. Moreover, it attempted to create the conditions for the ultimate fading away ("withering away") of law and the state. These achievements offer insights for the future, notwithstanding the subsequent degeneration under Stalin.
2. "Do Animals and Dead People Have Legal Rights?", Canadian Journal of Law and Jurisprudence, Volume XIV, Number 1 (January 2001) pp. 29-54
Matthew H. Kramer
This essay maintains that the question in its title is really three sets of questions: a conceptual inquiry, a moral/political inquiry, and an empirical inquiry. After devoting some attention to the relevant conceptual issues, the essay ponders in detail the moral/political issues. It suggests some answers to the germane moral/political questions, and it takes pains to distinguish those questions from other lines of inquiry with which they might be confused. Although only animals and dead people are mentioned in the title, the essay also considers whether infants, comatose people, lunatics, future generations, groups, trees, and natural phenomena such as rivers should be classified as potential holders of legal rights.
3. "Should Any Court Accept the ‘Social Authority' Paradigm?", Canadian Journal of Law and Jurisprudence, Volume XIV, Number 1 (January 2001) pp. 55-77
School and Department of Law,
Monahan and Walker have proposed that American judges should fundamentally alter the way they receive and assess social science evidence in court, by treating social science research as "law-like" or authoritative when certain professional research criteria are met. Strict application of the stipulated criteria to various kinds of social science research introduced into American and Canadian courts reveals, however, that such research can seldom be considered authoritative in the way Monahan and Walker imagine. Accordingly, as a general rule judges should be reluctant to apply Monahan and Walker's "social authority" model to the courtroom resolution of difficult questions of social, economic, and cultural or historical facts.
4. "Professional Status and the Freedom to Contract: Towards a Common Law Duty of Non-Discrimination", Canadian Journal of Law and Jurisprudence, Volume XIV, Number 1 (January 2001) pp. 79-132
Center for Ethics and the Professions,
Harvard University,79 JFK Street, Taubman Building,
Cambridge, Mass, USA
This paper suggests that Canadian common law doctrine, according to which businesses providing goods and services to the public at large are allowed to refuse service because of a customer's group-based characteristics such as race, is inconsistent with previous case law as well as with the underlying reason-based structure of the common law. After suggesting that the common law has not been fully displaced by human rights legislation, the paper demonstrates that the common law contains three concrete articulations of a duty to provide equal service. It argues that at the core of the rationale that best fits these bodies of case law is a status-based demand placed on those interacting in their capacity as members of an impersonal profession to refrain from taking into account any personal or group-based characteristics beyond those relevant to the provision of goods and services around which the profession is organized.
5. "Making Inclusive Positivism Compatible with Razian Authority", Canadian Journal of Law and Jurisprudence, Volume XIV, Number 1 (January 2001) pp. 133-142
Jonathan M. Breslin,
Department of Philosophy,
McMaster University, 1280 Main St. West,
Hamilton, Ontario, Canada
Inclusive Legal Positivism (ILP) is the view that morality may, but need not be part of the criteria for valid law. Joseph Raz has argued against this position by showing that law cannot be authoritative on the ILP view. In this paper I argue that ILP and Razian authority can in fact be made compatible by developing Jules Coleman's distinction between authority and legality. While the rule of recognition is a necessary condition for legality (in order to validate law), it need not be a condition for authority (for citizens to identify law). By elaborating on this distinction and further developing the argument, I conclude that one can be an inclusive positivist about law and a Razian about authority.
6. "Scanlon on Promising", Canadian Journal of Law and Jurisprudence, Volume XIV, Number 1 (January 2001) pp. 143-154
TC Beirne School of Law
University of Queensland,
Legal orthodoxy has it that the wrong involved in breaking a promise, like that involved in breaking a contract, depends essentially on the making of a binding promise. It is in this sense sui generis. But philosophers are not so sanguine. T.M. Scanlon is the latest in a long line of moral philosophers who have sought to reduce the wrong of promise-breaking to a wider class of wrongs associated with a duty, variously formulated, not to disappoint the expectations one induces in another. I argue that Scanlon's theory founders on a logical impasse that plages all such reductionist accounts.