Abstracts from Volume XIV, Number 2 (July 2001)
1. "Justifying Punishment", Canadian Journal of Law and Jurisprudence, vol. XIV, number 2 (July 2001) pp.161-211.Theodore Y. Blumoff
Mercer University School of Law
Macon Georgia, USA
Our reactions to actual crime-disbelief about the act committed, anger at the hurt caused, a desire to get even, and fear for ourselves and our children-arrive in an indecipherable rush of emotion. We perceive strong, intuitive, and sometimes oppositional reactions at once. So it is little wonder that no single traditional moral justification for punishment is satisfactory. Traditional theories, both retributive and utilitarian, are grounded in a priori truths that ignore the convergence of the theoretical, the practical and the emotional that gives rise to the need to punish. In their stead, we should embrace an advertently pragmatic theoretical approach, which recognize the primary need to protect ourselves against danger, but looks as well to providing reformation wherever possible. Such an approach does not ignore the traditional rationales. To eschew retribution entirely is to deny a deeply-rooted moral intuition and forego efforts to tame it. To jettison utility is to condemn the victim and community to perpetual fear; just to the extent that retributive impulses, by any name, undermine necessary forward-looking concerns about our future's safety, they poorly serve our needs, which include service to the victim, the community and the offender.
2. "Do We Have a Right to Common Goods?", Canadian Journal of Law and Jurisprudence, vol. XIV, number 2 (July 2001) pp. 213-225.
Andrei Marmor
Interdisciplinary Center
Herzlyia, Israel
The essay explores the question of whether people can have a right to common goods, such as the flourishing of their culture or national heritage. It first explains the concept of a common good and its distinction from other similar concepts, such as collective and public goods. Second, it argues that individuals ought not to have a right to common goods, unless a particular distributive principle applies to the good in question, and then the individual's right is the right to a certain share in that common good. Finally, the essay explores the question of how this analysis applies to group-rights, with respect to other groups and to members of the group itself.
3. "Putting it in Writing: Drafting Faust's Contract with the Devil",Canadian Journal of Law and Jurisprudence, vol. XIV, number 2 (July 2001) pp. 227-247.
Nishan Swais
Cap Gemini Ernst & Young
Toronto ON, Canada
The Faust legend is familiar to us as the story of a man who agrees to sell his soul to the devil in exchange for a moment of absolute spiritual fulfilment. Since its first recorded telling some five hundred years ago, the legend has survived both as an expression of our need for transcendence - for "something more" - and as a cautionary tale about the manner in which we try to achieve it. This paper addresses the Faust legend from a legal perspective by taking its central motif - Faust's pact with the devil - and literally reducing it to writing, that is, by presenting it in the form of a legally binding agreement of purchase and sale. The intent is to explore whether and how doing so can help illuminate key issues at the core of the Faust legend while allowing us to consider the commercial element implicit in the way in which we sometimes conduct our spiritual affairs. To lend perspective, the various provisions of the agreement have been footnoted to reference relevant passages from Goethe's and Marlowe's telling of the Faust legend.
4. "Quantum Physics in Private Law", Canadian Journal of Law and Jurisprudence, vol. XIV, number 2 (July 2001)
Avner Levin
Toronto ON, Canada
Izhak Englard argues that Ernest Weinrib's idea of coherence in private law, based solely on corrective justice, must be modified to include distributive justice in order to better fit legal practice. Englard proposes complementarity, a framework accommodating mutually exclusive scientific concepts, as a basis for private law's coherence, based on an analogy between the concepts of light and justice. This analogy is insufficient as an epistemological basis common to science and law upon which complementarity can be applied as Englard suggests. Despite Englard's failure complementarity may yet be applicable to law, based on an epistemological 'problem of observation' that science and law share.
5. Critical Notice: "The Social Character of Freedom of Expression", Canadian Journal of Law and Jurisprudence, vol. XIV, number 2 (July 2001) pp. 261-271.
Colin Farrelly
Department of Political Science
University of Birmingham
Birmingham UK
Richard Moon's The Constitutional Protection of Freedom of Expression is an insightful and comprehensive study of the right to freedom of expression in Canadian constitutional law. Moon begins by stressing the importance of the distinction between freedom of expression as a moral or political ideal and as a constitutional right. The former certainly informs the latter. But the general structure of constitutional adjudication will also play an important role in determining how these issues are resolved and this may, in turn, influence our understanding of the right as a moral and political ideal. Moon focuses on the most important Canadian freedom of expression decisions which cover a wide range of topics from the regulation of racist expression and pornography to access to state and private property.
6. Book Review: "The End of Human Rights: Critical Legal Thought at the Turn of the Century", Canadian Journal of Law and Jurisprudence, vol. XIV, number 2 (July 2001) pp. 273-274
Joanna Harrington
Faculty of Law
University of Western Ontario
London ON, Canada
This article is a review of Costas Douzinas,The End of Human Rights: Critical Legal Thought at the Turn of the Century, Oxford: Hart Publishing, 2000.
7. Book Review "The Philosophy of Law: An Encyclopedia", Canadian Journal of Law and Jurisprudence, vol. XIV, number 2 (July 2001) pp. 275-281.
Mark Thornton
Department of Philosophy
University of Toronto
Toronto ON, Canada
This encyclopedia provides a comprehensive survey of philosophy of law. The articles cover every period of Western philosophy and every part of the globe. Every school and methodology of legal philosophy is detailed. There are ninety articles on individual thinkers in both the Anglo-American and European traditions. Every facet of law as a social institution, of criminal law, and of private law, is covered. Relevant political, moral, and epistemological issues are discussed. The general standard, though uneven, is high. To guide readers a subject list by topic and four indexes are included. The editor deserves congratulations for a remarkable achievement.
