Abstracts from Volume XX, Number 1 (January 2007)

1. “Restitution for Wrongs: A Structural Analysis,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 5-34.

Francesco Giglio 
Senior Lecturer in Law 
University of Manchester 
In this essay, I seek to provide an account of the scope and justification of gain-based damages for civil wrongs. My starting point is that the main accounts of restitution for wrongs are inconsistent with the structure of the law of damages. My alternative explanation provides a framework which is coherent with the law of obligations and allows a reading of restitution for wrongs in terms of corrective justice. When a wrong affects a proprietary or proprietary-like interest, I argue that the normal response is compensation, not restitution. In this context, I introduce the expression ‘pseudo-restitutionary damages’ to identify those awards in which the claimant’s loss is measured by the defendant’s gain. The true nature of pseudo-restitutionary damages is revealed by their close link to the loss. When the loss disappears, the benefit disappears with it. Unlike pseudo-restitution, proper restitution for wrongs requires a benefit which is independent of the loss and is only connected to the wrong. The benefit cannot be dissociated from the claimant’s loss if it is the consequence of a wrongful direct transfer of wealth from the claimant to the defendant. Corrective justice can account for proper restitutionary damages. It provides a normative ground for the victim to seize the defendant’s gain independently of any loss suffered by the victim. It isolates the wrongdoer and the victim as the parties to a restitutionary claim. The award is granted because it would be unjust if the wrongdoer would go scot-free with his wrongful gains; and it is granted to the victim because any wrongful behaviour is detrimental to the sufferer of the injustice. Although quite distinct, compensation and restitution for wrongs show certain structural similarities. The former aims to place the victim in the same position in which the victim was before the damaging event took place; the latter seeks to place the wrongdoer in the same position in which the wrongdoer was before he performed the wrongful act. Both legal responses aim at neutrality as between the pre- and post-wrong position but in respect of different parties.

2. “Problems of the Stufenbaulehre: Kelsen’s Failure to Derive the Validity of a Norm from Another Norm,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 35-68.

András Jakab 
Lecturer in Law
University of Liverpool 
The Stufenbaulehre is a central and founding element of the Pure Theory of Law (PTL).Most of the criticism of Stufenbaulehre targets the idea of the basic norm (Grundnorm), however unjustified. This criticism stems from a misunderstanding of the presumptive character of the basic norm and of the whole legal order. Others have criticised the relativisation of the difference between individual and general norms, Kelsen’s monism, and the determination of the validity of a norm by a single other norm. This can be refuted as well – either because their critique does not concern an essential part of Stufenbaulehre (monism), or because Stufenbaulehrecan be saved by making a small modification to it. However, there is one lethal criticism. It concerns the founding thought of the whole Stufenbaulehre, i.e., the derivation of validity. In a law-making process, there is never a derivation of validity: the logical result of a law-making process is only a norm saying “The new norm ought to be valid.” Whether the new norm is in fact valid, is a different issue which is not dealt with by the PTL. This has serious consequences: Without this derivationStufenbaulehre cannot survive, and withoutStufenbaulehre,PTLcannot survive either. Some valuable parts of PTL might be used in other legal theories, but these are nothing but transplanted organs from the dead body of PTL whose heart–Stufenbaulehre–can no longer keep the body alive.

3. “Restitution and Realism,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 225-240. A Critical Notice of The Law and Ethics of Restitution by Hanoch Dagan.

Dennis Klimchuk 
Associate Professor 
Department of Philosophy
University of Western Ontario 
While the roots of the common law of restitution reach back hundreds of years, the idea that it constitutes a domain of private law was first clearly articulated in the American Law Institute’s Restatement of Restitution in 1932. The U.S. was at the forefront of development in the law of restitution but interest has declined. Recently John Langbein offered an explanation, first in terms of law and economics and then through legal realism. Realism, by Langbein’s estimation, has exacted “a terrible toll” on doctrinal study in the postwar period. One of the principal aims of The Law and Ethics of Restitution, Hanoch Dagan writes, is to disprove this claim. Realism, properly understood, is supportive of doctrine and, he argues, in this context, provides a better account of the law than the prevailing view. This book is a challenging and important work not only in the law of restitution but also in legal theory. My main interest in this Critical Notice is to ask whether the kind of justification for liability in restitution Dagan offers is compelling. While part of what separates Dagan from Langbein is their understanding of legal realism, I take Dagan to be right on this point, and ask whether he’s made the case in favour of a realist account of restitution. I do that by considering two examples of the doctrinal analyses that form the bulk of the book: first by outlining a pair of issues on which Dagan takes a position by setting up the question he aims to ask, and then by considering his rejection of the view to which>The Law and Ethics of Restitutionoffers an alternative.

4. “Are Constitutions Legitimate,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 69-112.

Andrei Marmor 
Professor of Law and Professor of Philosophy 
University of Southern California 
This paper argues that constitutionalism raises some serious concerns of moral legitimacy. Following a preliminary outline of the main features of constitutionalism, the paper presents some of the main moral concerns about the legitimacy of constitutions. It then considers in detail a number of arguments which purport to answer those concerns, arguing that they all fail to meet the challenge. The paper concludes with a brief outline of some of the moral implications of this failure and some suggestions for reform.

5. “Philosophical Anarchisms, Moral and Epistemological,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 95-112.

Mark C. Murphy 
Professor of Philosophy 
Department of Philosophy 
Georgetown University 
The moral formulation of philosophical anarchism is that most persons, even in just political communities, do not have a moral obligation to obey the law. The epistemological formulation of philosophical anarchism is that most persons are unjustified in believing that they have a moral obligation to obey the law. But the philosophical anarchists’ argument strategies do not, and in fact cannot, show that belief in the moral obligation to obey the law is unjustified. And, further, given that most persons in just political communities do believe that they are under such an obligation, the moral requirement that one ought to act in accordance with one’s conscience implies that most persons have a moral obligation to obey the law. Thus the moral formulation of philosophical anarchism is false and the epistemological formulation unjustified.

6. “Hate Speech and Pornography in Canada: A Qualified Deontological Response to a Consequentalist Argument,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 241-256. A Critical Notice of The Hateful and the Obsceneby L.W. Sumner.

Richard Mullender 
Reader in Law and Legal Theory
Newcastle Law School 
In The Hateful and the Obscene, Sumner offers a consequentialist reading of John Stuart Mill’s political philosophy that blinds him to the complexity and normative attractions of Canadian law’s response to hate speech and pornography. This essay argues that qualified deontological moral philosophy provides a more adequate basis on which to understand the bodies of law examined by Sumner. The qualified deontological analysis is more adequate since it (unlike consequentialism) provides a basis on which to account for the presence within Canadian law of incommensurable values. The analysis offered here also addresses three further weaknesses in Sumner’s text. Sumner offers an inadequate account of the role played by the concept of community in the law’s operations. He also fails to recognise that a strong commitment to identity politics has shaped the development of Canadian law. But perhaps the most significant weakness inThe Hateful and the Obscene is Sumner’s adoption of a ‘Millian’ position on free expression that fails adequately to address the threats posed by those political activists who seek to undercut liberal democracy’s foundations.

7. “Desert and Punishment for Acts Preparatory to the Commission of a Crime,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 113-142.

Daniel Ohana 
Research Fellow 
Institute of Criminology 
Hebrew University 

Conduct preparatory to the commission of a crime typically comprises acts such as gathering vital information, making initial contact with the prospective victim, reconnoitering the site of the crime, obtaining materials and tools, and gaining expertise knowledge. Many Western penal codes categorically distinguish preparatory actions from a punishable attempt in attending to cases whereby an actor engages in conduct planned to culminate in the commission of an offence. The article focuses on the desert of an actor who, after having formed an intention to commit a crime, conceives a plan and gets underway by performing acts of preparation – without commencing to commit the substantial offence, let alone bringing about its consummation. The actor’s failure to carry out the offence may be attributed to a vast array of causes, ranging from a decision on his part, prompted by a sudden change of heart, to discontinue the operation, through an inability to gain access to crucial information or tools, to the disappearance of the targeted victim or property. The article is divided in two parts. The first part addresses the factors which affect the blameworthiness of an actor intent on committing a crime as he gradually implements his plan by laying the groundwork for his undertaking. By considering the punishment of acts preparatory to the commission of a crime in the light of the principle of individual autonomy and the dilemma of moral luck, it explores the various respects in which the culpability of an actor who only engages in preparatory conduct differs from that of an actor who commences to commit the targeted offence. The second part takes the analysis a step further by probing the exceptional conditions under which preparatory actions may be sufficiently wrongful to warrant pressing the criminal law into service to provide for a punitive response. In this respect, attention focuses on such factors as the operational significance of the preparatory conduct; the acquisition of specialized tools and equipment; the organizational support available; and the seriousness of the substantial offense targeted.

8.“On the Intrinsic Value of Arabic in Israel—Challenging Kymlicka on Language Rights,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 143-172.

Meital Pinto 
S.J.D. student 
Faculty of Law 
University of Toronto 

In the postcolonial era, we have witnessed waves of mass immigration. Consequently, many states are no longer associated with just one or two national languages. Newly formed immigrant minorities raise demands for language rights, alongside national minorities, which raise similar demands.Such a complex situation exists, for example, in Canada, where only French and English are declared official languages although there are other languages, such as Chinese, which are spoken by large communities of people. My paper addresses the general question of which linguistic minorities are most entitled to comprehensive language rights. Will Kymlicka distinguishes between national minorities, which he regards as deserving of comprehensive language rights, and immigrant minorities which are not. Many scholars challenge Kymlicka’s distinction. However, none of them have suggested alternative criteria for distinguishing minority languages that are entitled to protection from minority languages that are less entitled to protection. In my paper, I suggest such a criterion. 
My alternative criterion is based on the intrinsic interest people have in protecting their own language as the marker of their cultural identity, thus, comprehensive language rights are to be accorded to linguistic minorities that possess the strongest intrinsic interest in the protection of their language as their marker of cultural identity. I apply my criterion to the Israeli case, in which there are two dominant linguistic minorities: the Arab national minority and the Jewish Russian immigrant minority. Relying on general criticism of Kymlicka’s distinction, I argue that this distinction is not applicable to the Israeli linguistic case. Applying my alternative criterion to the Israeli case, I argue that Israeli Arabs have a stronger interest in Arabic than the Russian Jewish minority has in Russian because Arabic constitutes Israeli Arabs’ exclusive marker of identity.

9. “Jurisprudence and Necessity,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 173-200.

Danny Priel 
Yale Law School 
Much of the work in contemporary jurisprudence is done on the assumption that legal philosophy should find the set of necessary and sufficient conditions that something must have in order to count as law. This essay challenges this view. It examines in detail two versions of this view: the first is the view that jurisprudence should find the necessary features of law and then, from among them, those that are “important” for understanding law. I argue that these two features are in tension with each other, and that there are good reasons for thinking that an account that tries to discover the important features about law will not limit itself only to those features that all laws necessarily possess. The second version is one that tries to discover what necessarily belongs to “our” concept (or practice) of law by looking at those features that participants in the practice of law deem most important about it. I argue that this argument is indeterminate because it has no non-circular standard of defining what belongs to “our” concept of law. I then offer an alternative role for jurisprudence that focuses on trying to solve certain puzzles about law, such as explaining how a social practice can create binding norms. Answering questions of legal philosophy does not require finding what features all laws necessarily possess while maintaining a role for jurisprudence alongside other interdisciplinary approaches to law.

10. “In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 201-224.

Philip Soper 
Professor of Law 
Law School 
University of Michigan 
The classical view of natural law, often traced to Aquinas' statement that "unjust law is no law at all," finds few defenders today. Even those most sympathetic to natural law theories do not embrace the classical account, but, instead, convert Aquinas' 
claim into a claim of political theory (unjust law does not obligate) or construct new "natural law" accounts about the connection between legal and moral principles in a theory of adjudication. In this paper, I defend the view that extreme injustice disqualifies 
otherwise valid official directives from counting as "law”. Indeed, I suggest that modern positivism's characterization of the normative claims that typify legal systems leads inevitably to the conclusion that "law," as a conceptual matter, must be understood by insiders who employ the term to admit moral limits on what can count as "law." I proceed as follows. First, I begin with some preliminary clarifying comments about methodology and the precise issue under discussion. Second, I describe four leading theories about the nature of law and consider how central ideas in each theory can be seen to generate opposing ideas that lead in turn to opposing models of law. Third, I state briefly the affirmative case for thinking that the classical natural law view is correct. Fourth, I identify basic mistakes in current approaches to the question about the nature of law that help explain why modern positivism has overlooked the manner in which it leads logically to the classical natural law view. Finally, I add some brief remarks about why it
matters: what practical consequences follow from acknowledging that there are moral limits on what can count as law.

11. “Too Good to be True,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 1 (January 2007) pp. 257-268. A Critical Notice ofConstitutional Goods by Alan Brudner.

Lorenzo Zucca 
Lecturer in Law 
University of Aberdeen 
Constitutional Goods offers an ambitious constitutional theory that challenges basic liberal ideas such as the priority of basic liberties and the inevitable disagreement between competing conceptions of the right and the good. The book has two objectives: it attempts to widen, on the one hand, the list of constitutional goods that deserve priority over other interests. On the other, it tries to bring competing conceptions of the right and the good together under an overarching umbrella defined as the 'inclusive conception’. This article attempts to show that, despite the valuable and ambitious effort,Constitutional Goods&is unlikely to convince everyone of its capacity for inclusiveness.