Abstracts from Volume XV, Number 1 (January 2002)
1. "A Classical Perspective on the Modern Workplace: The Aristotelian Conflict in Sexual Harassment Litigation", Canadian Journal of Law and Jurisprudence, Volume XV, Number 1 (January 2002) pp. 3-20
Erika Chamberlain, Clerk
Supreme Court of Canada
Ottawa, Ontario K1G 2W8
The current structure of sexual harassment litigation in Canada poses unique issues for Aristotle's distinction between corrective and distributive justice. Due to a series of decisions in the 1980s and 1990s, sexual harassment claims in Canada must be brought exclusively under human rights legislation. This system views sexual harassment as a form of sex discrimination, and roughly subscribes to the view that sexual harassment is an incident of distributive injustice. However, the form of the litigation tends to undermine its distributive justifications. The litigation generally corresponds to the traditional adversarial model, with the complainant seeking damages from the harasser. Consequently, some commentators have argued that sexual harassment should be treated as a private law cause of action, rather than an issue for the human rights system. This article examines the rationale for classifying sexual harassment as an object of corrective or distributive justice, and particularly whether harassment should be viewed as an individual or a group harm. It also addresses the emerging claims for heterosexual male-on-male or bisexual harassment, which create problems for the view that sexual harassment is a form of discrimination "because of sex." Finally, the article explains how the distributive and corrective theories of justice are manifested in the extent of employer liability and the available remedies.
2. "Are There Necessary Truths About Rights?" Canadian Journal of Law and Jurisprudence, Volume XV, Number 1 (January 2002) pp. 21-49
Department of Law
University of Durham
The essay considers whether there are necessary truths about rights. The existence of rights is contingent, but our practices involving rights rest upon fundamental conceptual assumptions necessary to their coherence. Hohfeld's analysis is proffered as the embodiment of those assumptions. An examination of the concept of necessity shows how those assumptions can be necessary truths about rights without being logically necessary.
3. "Social Meaning, Compliance Conditions, and Law's Claim to Authority", Canadian Journal of Law and Jurisprudence, Volume XV, Number 1 (January 2002) pp. 51-67
William A. Edmundson
College of Law
Georgia State University
Atlanta, GA USA
Political authorities claim to be able to impose moral duties on citizens by the mere expedient of legislating. This claim is problematic -- in fact, among theorists, it is widely denied that political authorities have such powers. I argue that the legitimacy of political authority is not contingent upon the truth of its claim to be able to impose moral duties by mere legislation. Such claims are better seen as exercises of semiotic techniques to alter social meanings. These alterations serve to facilitate desirable social change that may not have been antecedently obligatory because of the nonfulfillment of a compliance condition, which normally attaches to any "fair-play" duty. Where political authority uses the semiotic technique of announcing a legal -- and by implication moral -- duty, thereby altering social meaning as a means of bringing about the satisfaction of a compliance condition, it makes a claim whose literal falsehood (if false it be) does not derogate from the authority's legitimacy.
4. "Unconstitutionality, Invalidity, and Charter Challenges", Canadian Journal of Law and Jurisprudence, Volume XV, Number 1 (January 2002) pp. 69-83
Department of Philosophy
Hamilton, Ontario, Canada
Inclusive legal positivism maintains that the existence and content of laws may, but need not, depend on standards of morality. As Wil Waluchow argues, inclusive positivism derives much of its plausibility through its explanation of Charter societies such as Canada. On his account, the fundamental rights of political morality contained in the Canadian Charter of Rights and Freedoms serve as ultimate criteria of the existence or validity of all laws in Canada, and thus form part of Canada's rule of recognition. In this paper I challenge Waluchow's inclusive positivist picture of Charter challenges. I argue instead that exclusive legal positivism, which maintains that resort to moral reasons may never figure in determinations of the existence or content of laws, better captures our ordinary understanding of the authoritative role of judges, constitutionality, and the traditional positivist conception of legal validity as a matter of social fact. Specifically, I argue that Joseph Raz's notion of a directed law-making power, and not reliance on an inclusive positivist rule of recognition, best explains the duty of judicial review in Charter cases. Further, the fundamental rights of political morality recognized in the Charter are best understood as constitutional objectives, and not criteria of validity, which all subordinate laws in Canada ought to respect, yet may fail to do so in practice.
5. "Can Pragmatism Overcome the Impasse in Contemporary Legal Theory?" Canadian Journal of Law and Jurisprudence, Volume XV, Number 1 (January 2002) pp. 85-98
Department of Philosophy
St. Thomas More College
Saskatoon, Saskatchewan, Canada
In recent years, there has been a renewed interested in examining the nature of legal theory and finding ways to resolve impasses that may exist in contemporary legal theory. One suggestion made by some prominent philosophers of law (for example, Raz and Leiter) is the need to supplement arguments in legal theory with pragmatic considerations. By appealing to pragmatic considerations, it is thought that we can decide between competing conceptions of law. In this paper, I will examine how the appeal to pragmatism would work in the context of contemporary legal theory, and I will show why such an appeal to pragmatic considerations cannot solve the main problem that it was meant to solve.
6. "The Curious Case of Exclusionary Reasons", Canadian Journal of Law and Jurisprudence, Volume XV, Number 1 (January 2002) pp. 99-124
Corpus Christi College
This article explores Joseph Raz's concept of exclusionary reasons and attempts to explain how this concept fits into a general account of the authority of law. That account is elucidated and the concept of exclusionary force is considered in some detail. The article suggests that if 'exclusion' is read in a strong sense, it is extremely difficult to find examples of its existence. If though it is read in any weaker sense, it appears indistinguishable from the idea of 'weight'. The article also considers the phenomenological, functional and ultimately, the existential reasons in favour of saying, as Raz does, that all legal authorities make their claims to authority in terms of exclusionary reasons. It is argued that this is both unlikely and unnecessary. The curious nature of exclusionary reasons is hence thoroughly unearthed.
7. "In Pursuit of Pragmatic Legal Theory", Canadian Journal of Law and Jurisprudence, Volume XV, Number 1 (January 2002) pp. 125-50.
Department of Philosophy
Hamilton, Ontario, Canada
A critical review of Jules Coleman's The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Coleman's book has two principal objectives: (1) to defend both Inclusive Legal Positivism and Coleman's influential views on the role of corrective justice in explaining tort law; and (2) to show how philosophical pragmatism can usefully be employed in defending such views. In this article I both outline and critique the main elements of Coleman's book. I also explore ways in which some of its central arguments could usefully be modified or extended to solve related jurisprudential puzzles.