Abstracts from Volume XXI, Number 1 (January 2008)

1. The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law,” Canadian Journal of Law and Jurisprudence, Vol. XXI, Number 1 (January 2008) pp. 5-69.

Mohammed Fadel 
Assistant Professor of Law 
University of Toronto
Toronto, Ontario 

The events of September 11, 2001 and the subsequent declaration of an open-ended “war on terror” have given a new urgency to long-standing discussions of the relationship of Islam to liberalism. In order to avoid the polemics that characterize much of the writing in the “Islam/Liberalism” genre, this Article proposes to use the framework set forth in John Rawls’ Political Liberalism to examine the grounds on which Muslim citizens of a liberal state could participate in a Rawlsian overlapping consensus. An overlapping consensus according to Rawls arises among citizens in a politically liberal state when they – despite holding incompatible theories of the good – each endorse the constitutional essentials of a politically liberal state for reasons within their own comprehensive religious or philosophical doctrines. This Article argues that the basis on which orthodox Muslims can participate in such an overlapping consensus can be found in Islamic theology and ethics. Because theology and ethics comprise the fundamental commitments of orthodox Islam, the political commitments set forth in Islamic substantive law which are inconsistent with constitutional essentials must be interpreted in light of those commitments.  After describing orthodox Islam’s theological and ethical commitments to rational theological and moral inquiry, the Article argues that such commitments implicitly require political institutions that allow free theological and ethical inquiry. The Article illustrates this aspect of Islam by describing the development of a system of intra-Muslim normative pluralism in which the existence of conflicting ethical judgments was accepted as a legitimate and inevitable product of moral reasoning. The existence of normative pluralism in the realm of ethics, in turn, made the project of a legal system derived entirely from revelation an epistemological impossibility. The result was that Islamic substantive law was forced to adopt non-theological modes of justification. The Article argues that, in the course of so doing, Muslim jurists made appeals to what Rawls would deem to be public reason. The Article concludes with a series of examples from Islamic substantive law that illustrate the ways in which the pre-modern Islamic legal system represents a qualified form of public reason, consistent with the public culture of a liberal democracy.

2. “Gender, Multiculturalism and Dialogue: The Case of Jewish Divorce,” Canadian Journal of Law and Jurisprudence, Vol. XXI, Number 1 (January 2008) pp. 71-96.

Lisa Fishbayn 
Project on Gender Culture, Religion and the Law 
Hadassah-Brandeis Institute 
Brandeis University 

Can the law act as a catalyst to change minority practices that discriminate against women? Can civil law merely impose remedies from outside the minority culture or can legal mechanisms be devised which spur internal change? Theorists of gender and multiculturalism have argued that civil law can play a role in creating the conditions which allow, and indeed compel, cultural communities to engage in internal dialogue to transform their norms into more egalitarian ones. This article explores this thesis through considering the development of Canadian civil family law remedies to alleviate the plight of women whose husbands use their power to withhold divorce under Jewish law to extort advantages in civil divorce settlements. It considers whether the process of negotiating, drafting and implementing amendments to the Divorce Act has supported the renegotiation of norms in the Canadian Orthodox Jewish community regarding the issuance of divorce decrees, the development of novel solutions or the re-invigoration of traditional forms of religious legal authority. In particular, the article evaluates whether these civil law strategies have had the effect of generating the sort of transformative dialogue about norms envisioned by theorists of multiculturalism and gender.

3. “Implication of Sen’s Concept of Commitment for the Economic Understanding of the Corporation,” Canadian Journal of Law and Jurisprudence, Vol. XXI, Number 1 (January 2008) pp. 97-127.

Ian B. Lee 
Assistant Professor of Law 
University of Toronto 
Toronto Ontario 

In a classic paper, Amartya Sen proposed that human reasons for action be conceptualized in terms of three distinct forms of motivation: self-interest, sympathy and commitment. This article explores the implications of the concept of commitment for the economic understanding of the corporation. It argues that commitment can help to explain the deliberative features of corporate governance — features that the traditional economic approach inadequately explains or passes over entirely.

4. "(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach," Canadian Journal of Law and Jurisprudence, Vol XXI, Number 1 (January 2008) pp. 128-148.

David Lefkowitz 
Department of Philosophy 
University of North Carolina Greensboro 

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

5. “Torture and the Problem of Dirty Hands,” Canadian Journal of Law and Jurisprudence, Vol. XXI, Number 1 (January 2008) pp. 149-173.

Tamar Meisel 
Lecturer in Political Theory 
Political Science Department 
Tel-Aviv University 

This paper looks at the contemporary debate over investigative torture in liberal democracies besieged by terrorism, from the viewpoint of the state leader, politician, judge or individual interrogator, called upon to make life-and-death decisions. It steers away from the classic debate between utilitarians and Kantians regarding moral justification, and, following Michael Walzer presents the issue as a specific case of ”the problem of dirty hands in politics”. Contra Walzer, the paper suggests, among other things, that the notion of dirty hands functions not only within moral theories that include absolute prohibitions but also within consequentialist theory, and that it is therefore far wider, practically illuminating and more applicable than Walzer originally assumed. Later it addresses Alan Dershowitz’s controversial suggestion requiring judicial “torture warrants”, and argues that this too should be viewed in light of the notion of dirty hands rather than within the conventional debate over justifications. Finally, it suggests that, while torture may be morally unjustifiable on anything but purely consequentialist grounds, circumstances may offer the individual decision maker an excuse, rather than a justification, for resorting to torture under very restricted conditions.

6. “Rights, Duties and Conditioning Welfare,” Canadian Journal of Law and Jurisprudence, Vol. XXI, Number 1 (January 2008) pp. 175-198.

Amir Paz-Fuchs 
Assistant Professor of Law 
Ono Academic College 

Somewhere between welfare to work policy and the jurisprudential analysis of rights and duties lies the third way motto of 'no rights without responsibilities'. This paper shows how this proclamation offers no less than a new construction of one's rights insofar as theydependon the obligations that he or she owes society. Investigating this new formulation through the established perspectives of the Interest (or Benefit) Theory and the Choice (or Will) theory sheds light on the jurisprudential background of this move, and its possible consequences. The paper then moves to describe the concrete impact that this theoretical reconstruction has on provisions embedded in welfare to work programs, and suggests that this may serve a pilot for a more comprehensive, and thus problematic, social policy. In the final section of the paper, the doctrine of 'unconstitutional conditions' is revisited and improved in a way that, if accepted, may bar governments from diluting rights of disadvantaged groups and endangering them into becoming 'illusory'.

7. “Censorship, Logocracy and Democracy,” Canadian Journal of Law and Jurisprudence, Vol. XXI, Number 1 (January 2008) pp. 199-226.

Mark Walker 
Department of Philosophy 
Hamilton Ontario 

This paper argues: (i) Canadian “Hate Speech Laws”, and similar laws in other jurisdictions, are instances of ‘unilateral censorship’, the suppression of a single political viewpoint. (ii) Unilateral censorship infringes upon the democratic commitment to free and fair elections. (iii) The legislated exclusion of some from the political process through the control of speech means that Canadian governance is best described as ‘logocratic’. (iv) It may be possible to mount a new “Charter Challenge” to Hate Speech laws invoking Section 3 of the Charter, based on the idea that unilateral censorship infringes upon Section 3 guarantees of free and fair elections, and eligibility to run for Canadian legislative bodies. (v) The envisioned challenge differs significantly from previous Charter Challenges because what is at issue are not the liberty rights of citizens in a democracy, but the democratic process itself.

8. Critical Notice: “Politician, Judges, and the Charter,” Canadian Journal of Law and Jurisprudence, Vol. XXI, Number 1 (January 2008) pp. 227-238.

L. W. Sumner 
University Professor of Philosophy 
University Toronto 
Toronto Ontario 

The complaint is a familiar one: unelected, politically unaccountable judges are using their powers of judicial review to subvert the democratic process by shaping public policy in accordance with their own personal moral/political views. It is tempting to dismiss this complaint as the grumbling of those, usually (though not invariably) on the political right, who have been disaffected by court decisions with which they personally disagree. But this temptation must be resisted, since the critics of judicial review, such as Jeremy Waldron, raise important issues about the role of judges in a democratic political system. In his recent book A Common Law Theory of Judicial Review, Wil Waluchow responds to the critics’ arguments. This Critical Notice outlines his response and assesses its adequacy.