Abstracts from Volume XVII, Number 2 (July 2004)

1. Theodore Y. Blumoff, “Some Thoughts on the Aesthetics of Retribution,”Canadian Journal of Law and Jurisprudence, Vol. XVII, no. 2 (July 2004) at pp. 233-54.

There is a tendency among those who identify themselves as subjectivists on the issue of defining criminal intent to dismiss or minimize the role of actual non-trivial harm in the determination of criminal liability and punishment. That is to say, they are those who argue that an individual’s subjective intent is a sufficient indication of potential dangerousness and culpability to justify punishment. In this essay, the author presents a view, based on Adam Smith’s recognition of the “irregularity of the sentiments,” that actual physical harm matters; that it reflects the negative component of the two great motivators, pleasure and pain; and that it can release the worst sort of emotional reactivity: retribution. The infliction of a non-trivial first order harm can invoke a deeply felt aesthetic reaction which, in turn, reflects our natural (and cognitively “irregular”) human sentiments. Trying to dispense with harm as a feature in our understanding of criminality seems prima facie absurd. Awareness of the sentiment, as Smith understood, helps temper the worst parts of our nature: that which hopes to crush the people and ideas we find threatening. Ironically, the existence of and need for harm as a necessary condition of criminality heightens our awareness of the limitations of reason in dealing with victims of crime. We are not simply cognitive creatures.

2. Keith Culver, “How the New ICTs Matter to the Theory of Law”, Canadian Journal of Law and Jurisprudence, Vol. XVII, no. 2 (July 2004) at pp. 255-68.

Recent writers concerned with general theories of law have taken little notice of the new information communication technologies (ICTs). This situation ought to change. General theories of law ought to take into account the potential of the new ICTs to enable significant changes in the relations between legal authorities and legal subjects. This paper takes legal positivism as a stalking horse for examination of the way the new ICTs may affect presumptions regarding citizens' and officials' knowledge, attitudes, and allegiance to law. The positivist account of legal normativity, key to its general account of law, is significantly threatened by the prospect that e-consultation and e-petitioning may breach presumed differences between officials and citizens in life under law. This argument brings various consequences for the positivist view of normativity and legal system, all inclining toward the conclusion that the positivist view may lose its basis in social fact and so present an unrealistic account of law.

3. Michael Head, “The Rise and Fall of a Soviet Jurist: Evgeny Pashukanis and Stalinism,”Canadian Journal of Law and Jurisprudence, Vol. XVII, no. 2 (July 2004) at pp.269-94.

One question looms large in the early history of Soviet legal theory and practice: how and why did Evgeny Pashukanis emerge as the pre-eminent Soviet jurist from 1924 to 1930, come under only minor criticism from 1930 to 1936 and then be denounced and executed in 1937 as a ‘Trotskyite saboteur’? Of course, Pashukanis was not alone. Virtually every leading figure associated with the October 1917 Russian Revolution and the early years of the Soviet Union fell victim to Stalin's purges by 1937 (from Trotsky, Zinoviev, Kamenev and Bukharin to thousands of less-known socialists). Yet, there are some particularly revealing aspects in the case of Pashukanis that have not been probed adequately by most Western or Soviet writers. His rise to leadership of Soviet legal work in 1924, with the publication of his The General Theory of Law and Marxism, coincided with Stalin's initial victory over the Left Opposition and the enunciation of Stalin's program of seeking to build ‘socialism in one country’. Pashukanis' unexpected emergence from obscurity appears to be related to the fact that he publicly lined up against the Left Opposition as early as 1925. Pashukanis' central theme in his General Theory, somewhat simplistically referred to as a ‘commodity-exchange’ theory of law, was related to the limited restoration of commercial property and market relations under the 1921 shift to the New Economic Policy. The dangers inherent in this temporary retreat became entrenched in Stalin's bureaucratic elite after 1924. As discussed in this article, Pashukanis’ approach, which regarded commodity exchange as the essence of legal relations, to some extent reconciled Marxist theory with the official revival of economic relations based on private ownership and market forces.

4. Peter Jaffey, “Hohfeld’s Power-Liability/Right-Duty Distinction in the Law of Restitution,” Canadian Journal of Law and Jurisprudence, Vol. XVII, no. 2 (July 2004) at pp. 295-313.

In the first part of the article it is argued that a debt, which is generally taken to be a standard example of a Hohfeldian right-duty relation, is properly understood as a power-liability relation, although a separate right-duty relation can arise in respect of it. This understanding provides a solution to a problem devised by MacCormick and discussed in the jurisprudence literature concerning a right to a payment from the estate of a deceased person. The main part of the article is concerned with the restitutionary claim to recover money or property invalidly transferred, and it is argued that this claim is also a Hohfeldian power, not a right correlated with a duty to return the money or property. The recipient’s liability to the exercise of the power is to be distinguished from his or her duty to return or to preserve the money or property invalidly transferred. This analysis provides a solution to the controversy in the literature over the strict liability and fault-based approaches to restitutionary claims, and it explains and supports the traditional understanding of the equitable proprietary claim and the claim for knowing receipt. The discussion leads to some consideration of the harm principle and duties of positive action.

5. Matthew H. Kramer, “On the Separability of Law and Morality,” Canadian Journal of Law and Jurisprudence, Vol. XVII, no. 2 (July 2004) at pp. 315-35.

If there is one doctrine distinctively associated with legal positivism, it is the separability of law and morality. Both in opposition to 
classical natural-law thinkers and in response to more recent theorists such as Ronald Dworkin and Lon Fuller, positivists have endeavored to impugn any number of ostensibly necessary connections between the legal domain and the moral domain. Such is the prevailing view of legal positivism among people familiar with jurisprudence. During the past couple of decades, however, that prevailing view has come into question among some estimable legal positivists. In particular, Joseph Raz and his followers have queried the importance and the very tenability of an insistence on the separability of law and morality. The present article maintains that the traditional view of legal positivism is correct and that the recent skepticism about it on the part of some positivists is unfounded. When the notion of the disjoinability of law and morality is understood properly as a large array of theses, it proves to be resistant to the challenges that have been mounted against it.

6. Pablo E. Navarro, et al., “Applicability of Legal Norms,” Canadian Journal of Law and Jurisprudence, Vol. XVII, no. 2 (July 2004) at pp. 337-59.

It is a basic intuition about the law that organs of adjudication ought to justify their decisions by recourse to the appropriate applicable norms. Nevertheless, a sound reconstruction of the applicability of legal norms has been largely ignored in contemporary legal theory. Different connections between applicable norms and cases are explored in this paper, and a distinction is suggested between internal and external applicability. A legal norm is internally applicable to the cases regulated by its scope of validity (i.e. by its terms the norm fits the facts of the case), and is externally applicable when it has to be used in a certain case as a justification of an institutional decision (i.e. the presiding judge has a legal duty to apply it to the case). A usual claim holds that all and only valid norms which, by their terms, apply to the case at hand must be applied in determining the outcome of the case. However, we try to demonstrate that a valid legal norm that exists as a member in a legal system may be internally applicable to a case and yet not be externally applicable to it. It also may occur that judges sometimes have the legal duty to apply norms that are not part of their own legal system. Consequently, the relations between internal and external applicability and between external applicability and validity deserve a careful examination. In these pages we hold that, though validity plus internal applicability is neither a necessary nor a sufficient condition of the duty to apply a legal norm, there is a complex conceptual link between external applicability and the systematic reconstruction of the law.

7. Arthur Ripstein, “Justice and Responsibility,” Canadian Journal of Law and Jurisprudence, Vol. XVII, no. 2 (July 2004) at pp. 361-86.

I argue that institutions charged with giving justice must understand responsibility in terms of norms governing what people are entitled to expect of each other. On this conception, the sort of responsibility that is of interest to private law or distributive justice is not a relation between a person and the consequence, but rather a relation between persons with respect to consequences. As a result, nonrelational facts about a person’s actions and the circumstances in which she performs them will never settle the questions of responsibility that matter to institutions charged with giving justice. I show the significance of this way of thinking about responsibility by contrasting it with prominent conceptions of responsibility which suppose that its moral significance derives from the ways in which an individual person acts in the world. I demonstrate its power by focussing on cases in which responsibility is widely agreed to run out in ways that non-relational conceptions of responsibility cannot explain.

8. William Wilson, “The Filtering Role of Crisis in the Constitution of Criminal Excuses,”Canadian Journal of Law and Jurisprudence, Vol. XVII, no. 2 (July 2004) at pp.387-416.

This paper seeks to counter a currently popular account of criminal defences which holds that both excuses and justifications are characterised by the fact that the conduct of the actor is consistent with the standards to be expected of good citizens in the role inhabited by the actor. Its object is to restore due prominence to the role played by human frailty in core defences. The position will be advanced that a significant reason for this loss of prominence is that insufficient attention has been paid to the filtering role played by crisis. For both excuses and justifications crisis marks the moral limits within which a workable system of norm enforcement can be achieved. In each case it ensures defences are socially validated, although the nature of the validation differs according to the nature of the defence. With defences of reasonable reaction crisis helps mark the parameters of reasonableness and ensures respect for the rule of law. Crisis may also deprive individuals of their susceptibility to conform their behaviour to rules. Its major constitutive role in this regard is to ensure that this susceptibility is rooted in the characteristics of human beings generally rather the specific characteristics of the actor. In this way it gives moral focus to the way excuses may intrude simply because the state cannot reasonably demand any better, at the same time providing a mechanism for distinguishing true excuses from exemptions or defences of impaired capacity.