Abstracts from Volume XX, Number 2 (July 2007)

1. “Property, Corrective Justice, and the Nature of the Cause of the Action in Unjust Enrichment,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 2 (July 2007) pp. 275-296.

Professor Andrew Botterell 
Department of Philosophy 
Faculty of Law 
University of Western Ontario 
London, Canada

In this paper I reconsider the relation between property and unjust enrichment and respond to a recent argument that actions in unjust enrichment cannot be actions in corrective justice. I suggest that any analysis that regards actions in unjust enrichment as embodying principles of corrective justice requires supplementation by considerations that are, at bottom, proprietary in nature. I argue that there is no incompatibility in viewing actions in unjust enrichment as actions whose grounds are broadly proprietary in nature; that understanding unjust enrichment in this manner does not threaten its theoretical coherence; and that understanding unjust enrichment in this manner allows us to view actions in unjust enrichment as actions in corrective justice. 

2. “The Authority of Law in the Circumstances of Politics,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 2 (July 2007) pp. 297-322.

Mark Capustin 
Department of Philosophy 
University of Manitoba 
Winnipeg, Canada

Joseph Raz’s influential account of authority holds that authority is normally justified by the authority’s ability to issue directives that, if followed, would increase a norm subject’s chances of conforming to the requirements of right reason. Jeremy Waldron raises a number of challenging and important questions about whether Raz’s account of authority can usefully illuminate our understanding of law’s authority in contemporary democracies, where laws are enacted by large, diverse legislatures in circumstances of disagreement. I examine a number of these questions, and conclude that Raz’s account of authority is equal to the task of illuminating our understanding of law’s authority in the “circumstances of politics,” where we often disagree about what right reason requires, and where law is enacted by large, diverse legislatures that settle on courses of social action by adopting participatory majoritarian procedures. 

3. “The Status of Classical Natural Law: Plato and the Parochialism of Modern Theory,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 2 (July 2007) pp. 323-350.

Dr. Eric Heinze 
Faculty of Laws 
University of London, Queen Mary 
Mile End Road, London E1 4NS

The concept of modernity has long been central to legal theory. It is an intrinsically temporal concept, expressly or implicitly defined in contrast to pre-modernity. Legal theorists sometimes draw comparisons between, on the one hand, various post-Renaissance positivist, liberal, realist or critical theories, and, on the other hand, the classical natural law or justice theories of antiquity or the middle ages, including such figures as Aristotle, Cicero, Augustine or Aquinas. Many theorists, however, while acknowledging superficial differences among the various classical theories, fail to appreciate the variety and complexity of pre-modern thought. Unduly simplifying pre-modern understandings of law, they end up drawing false distinctions between modern and pre-modern legal theory. The pre-modern example considered in this article is Plato. Unlike scholars within the Humanities, who have continued to revise their approaches to pre-modern thought (often reflecting changes in ethical or political thought today), legal theorists, including many who claim to challenge much of traditional positivism, have scarcely moved beyond traditional positivists’ ahistorical and reductionist views. 

4. “Necessity and Jury Nullification,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 2 (July 2007) pp. 351-378.

Professor Travis Hreno 
Department of Philosophy 
University of Akron 
Akron, Ohio 

Jury nullification refers to the behaviour of a jury that votes to acquit a defendant of criminal charges despite believing that: a) the defendant did in fact commit the actions with which she is charged; and, b) such actions are, indeed, prohibited by law. While there are many objections to this practice, the most striking thing about jury nullification is that nothing is done to actually prevent or punish jurors who behave this way. In this paper, I explore three rationales for why jury nullification is an officially tolerated, if not necessarily welcome, element of Anglo-American criminal law jury trials. All three of these rationales centre in one way or another on the idea that the very concept of a jury trial necessitates allowing the jury to extend its traditional purview in such a manner. 

5. “Principles, Policies and the Power of Courts,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 2 (July 2007) pp. 379-398.

Dr. Dimitrios Kyritsis 
Athens, Greece

Constitutional adjudication in many legal systems crucially involves giving courts the power to override the decisions of other state institutions, even democratically elected legislatures. The task of delimiting the domain of judicial review is of the first importance. In this paper my aim is primarily critical. I want to take issue specifically with Ronald Dworkin’s well-known attempt to discharge this task through his use of the distinction between principle and policy. Courts, he claimed in Taking Rights Seriously, ought to decide on questions of principle and not policy and they are better suited for this purpose than legislatures. Despite the years that have passed since its original conception, Dworkin’s theory is very much alive and also relevant to contemporary constitutional theory. For, I believe it exemplifies a still common –perhaps also the predominant- way of conceiving of the role of courts and especially the practice of judicial review. It taps on the powerful intuition that it falls on judges to decide questions pertaining to the exercise and protection of individual right. Since my interest is pitched to questions of constitutional design, I will not challenge the explanatory adequacy of the principle/policy distinction itself from the point of view of moral theory, as many others have. Rather, I wish to explore whether this distinction adequately accounts for salient features of the division of labour between courts and legislatures. More specifically I will assess the extent to which employing this distinction satisfies three desiderata. 

6. “The Religious Beliefs of Tort Victims: Religious Thin Skulls or Failures of Mitigation?” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 2 (July 2007) pp. 399-428.

Professor Mark Ramsay 
Department of Philosophy
Acadia University 
Wolfville, NS B4P 2R6

A Jehovah’s Witness suffers severe injuries in an automobile accident, and these injuries result from another person’s negligent driving. The victim refuses to accept standard medical treatment, which includes blood transfusions. Had she accepted standard treatment, the victim would have been returned to a near normal life. As a result of her decision, she now faces the prospect of life in a wheel-chair. Should the tortfeasor be held liable for the additional damages that result from the victim’s religious decision, or should the victim’s religious choice be treated as a failure of reasonable mitigation? I support the former option, arguing that the thin skull rule should be extended to include religious choices such as the refusal of blood transfusions. Our constitutional commitments to religious freedom and equality require us to treat these choices as reasonable ones, and this supports the notion of religious thin skulls. The argument provided here fits neatly with the structure of tort, and with the major Canadian precedents regarding the evaluation of victim behaviour. 

7. “Telling the Law’s Two Stories,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 2 (July 2007) pp. 429-452.

Professor Michael Robertson 
Faculty of Law 
University of Otago 
P. O. Box 56, Dunedin, New Zealand

In jurisprudence there is an orthodox position which stresses law’s rationality and coherence, and an unorthodox position which stresses law’s inconsistency and malleability. It is often assumed that you have to choose one and reject the other, but I want to consider the position that law cannot reject either orthodoxy or unorthodoxy as general accounts of law. This is not an attempt to produce a synthesis of the two accounts, or an attempt to say that each account is true of part of the law. Rather it is the claim that law is required to tell two incompatible stories about itself in order to do the important jobs assigned to it in Western pluralist societies. I argue that this jurisprudential position is advanced by Thurman Arnold, Oren Perez, Anthony Kronman, Karl Llewellyn and Stanley Fish. 

8. “Winch and H.L.A Hart: Two Concepts of the ‘Internal Point of View’,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 2 (July 2007) pp. 453-474. 

Dr. Veronica Rodriguez-Blanco 
School of Law 
University of Birmingham 
Birmingham, B15 2 TT 

In his book The Concept of Law, Hart advances an arresting idea: the internal point of view. The idea immediately captured the imagination of legal theorists and was envisaged as a step forward in understanding both the nature of law and its practices. There is, however, lack of clarity and ambiguity on understanding Hart’s important notion and its role in different key jurisprudential problems such as the normativity of law and the methodology of legal theory. This article reconstructs the intellectual roots of the internal point of view and argues that although the seeds of Hart’s idea can be found in Winch’s seminal book The Idea of a Social Science, there are striking differences between Hart’s and Winch’s notions of the internal point of view. Winch endeavors to explain the participant’s viewpoint in terms of what the participants are doing. On the other hand, Hart aims to provide an explanation of how the law enables judges and law-abiding citizens to determine what they ought to do. This difference has been often overlooked by legal scholars; however, it provides the key to understanding Hart’s connection between the internal viewpoint and the normativity of law, i.e., the idea that legal rules provide reasons for action and, in some circumstances, create and impose duties and obligations. The distinction also illuminates the demarcation in the methodology of legal theory between an explanation from a detached perspective, namely the second or third-person standpoint of the practical point of view and, on the other hand, either a theoretical or hermeneutical explanation of the participant’s point of view. I argue that the non-recognition of the practical/participant distinction has been pervasive in two ways. First, there has been an overemphasis on the distinction between the internal and the external point of view. Second, a more fundamental distinction between an ‘engaged’ and ‘detached’ viewpoint which is a predominant feature of the practical point of view has been under-researched. 

9. “TWAIL as Naturalized Epistemological Inquiry,” Canadian Journal of Law and Jurisprudence, Vol. XX, Number 2 (July 2007) pp. 475-507.

Andrew F. Sunter 
Toronto, Canada

Third World Approaches to International Law (TWAIL) scholarship provides a trenchant critique of the contemporary international law regime, using concrete historical and cultural evidence to demonstrate that the central doctrines of international law are highly Eurocentric and, therefore, not representative of the values and beliefs of a large portion of the world's population. Nevertheless, there is almost no recognition of TWAIL's intellectual contribution in mainstream international law scholarship. It is only in rare cases that mainstream scholars make the effort to directly respond to Twailian critiques. And in these rare cases, TWAIL is positioned as just another "radically critical" post-modern approach to international law. The marginalization of TWAIL scholarship is frustratingly counterproductive, as recent developments in the international order offer unparalleled challenges for populations in the South. Further, Southern perspectives are conspicuously absent from the mainstream international law discourse. TWAIL seeks to represent marginalized world-views and incorporate them into this discourse. My project is to reinterpret the insights of TWAIL so as to make them more palatable to mainstream scholars with modernist theoretical commitments. I will argue that many TWAIL scholars should be understood to subscribe to the same methodological commitments as "naturalized epistemologists" because they are interested in the causes of belief-claims, prioritizing an etiological examination of international law doctrine and scholarship over substantive analytical critique. More specifically, TWAIL promotes a suspicious stance towards belief-claims that have problematic, hidden, and/or misrepresented foundations. I will conclude that TWAIL's critique of international law is most reminiscent of a "hermeneutics of suspicion," which is the interpretive approach famously embraced by Marx, Nietzsche, and Freud. Such an approach, while undeniably critical, falls squarely within the modernist philosophical tradition. According to TWAIL, practitioners and scholars of international law should engage in self-reflection and critically examine the epistemological foundations of their beliefs and doctrinal claims. If such practitioners and scholars agree that international law should be based on intellectual and moral commitments that reflect its global subject matter and not just its European history, then there is significant space for the insights of TWAIL in mainstream scholarship.