Abstracts from Volume XXII, Number 1 (January 2009)

“Nonconstitutional Amendments,” Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 1 (January 2009) pp. 5-47.

Richard Albert 
Orleans, Ontario 

The constitutional text in a constitutional democracy does not necessarily constrain constitutional change. Quite the contrary, constitutional change in a constitutional democracy often occurs in ways that depart from the rigid procedures governing constitutional amendment enshrined in the text of the constitutional. 
In this article, I illuminate this peculiar phenomenon in comparative perspective, drawing from the constitutional traditions of Canada, Germany, India, South Africa and the United States. In addition to illuminating distinctions in the amendment practices of liberal democratic constitutional states, I deploy those contrasts as a springboard to substantive insights about fundamental principles of statehood, namely sovereignty and legitimacy.

“Pseudo-Restitutionary Damages: Some Thoughts on the Dual Theory of Restitution for Wrongs,” Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 1 (January 2009) pp. 49-78.

Francesco Giglio 
School of Law 
University of Manchester 
Oxford Road 

Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant. 
In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ‘restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.

“Global Poverty, Human Rights and Correlative Duties,”Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 1 (January 2009) pp. 79-92.

Julio Montero 
Amnistía Internacional Argentina
School of Public Policy
University College
London, England

Does the fact that my actions cause someone to lack access to the objects of her human rights make me a human rights violator? Is behaving in such a way that we deprive someone of access to the objects of her human rights even when we could have avoided behaving in such a way, sufficient to maintain that we have violated her human rights? When an affluent country pursues domestic policies that will foreseeably cause massive deprivation abroad in order to improve its already prosperous economy, has this country violated the human rights of the very poor just by doing so? If international organizations such as the International Monetary Fund and the World Trade Organization pursue policies that lead to an increase in the global poverty rate, are such organizations human rights violators? Can an individual undertaking certain actions in the market place that render insecure the access of the worst-off to the objects of their human rights be blamed for violating their rights?In this article I discuss the thesis that claims that whenever we cause, or contribute to the cause of, someone else's lack of access to the objects of her human rights, we are human rights violators. I contend that this thesis, which seems to underpin the arguments of many cosmopolitan authors taking part of the global justice debate, is mistaken. In order to achieve this end, I analyze several alternative formulations of the causal thesis. My conclusion is that before it can be said that an agent has violated someone else's human rights, it has to be proven that this agent has caused, or contributed to the cause of, a state of affairs where someone lacks access to the object of some of her human rights, by infringing a duty not to do so. Furthermore, I maintain that this must be a perfect, as opposed to an imperfect, duty.

“Rethinking Criminal Law,” Critical Notice: Truth, Error, and Criminal Law: An Essay in Legal Epistemologyby Larry Laudan,Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 1 (January 2009) pp. 93-112.

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

Imagine the following. You have been asked to critically evaluate the criminal process in your home jurisdiction. In particular, you have been asked to determine whether the criminal process currently in place appropriately balances the need to maximize the chances of getting things right—of acquitting the innocent and convicting the guilty—with the need to minimize the chances of getting things wrong—of acquitting the guilty and convicting the innocent. How would you proceed? What rules of evidence and procedure would you put in place? Would you exclude germane inculpatory evidence that has been obtained in violation of the accused’s constitutional rights? Would you permit spouses to testify against each other, or allow the jury to draw adverse inferences from an accused’s failure to testify on his or her behalf? These are the sorts of epistemological issues addressed by Larry Laudan in his superb Truth, Error, and Criminal Law. The purpose of legal epistemology is to identify legal rules in order to assess them rationally, and, if necessary, to modify or replace them. The more and more widely Truth, Error, and Criminal Law is read, the more likely it is that legal epistemology will attract the attention of lawyers, legal academics, and philosophers, attention that can only contribute in a positive way to rethinking criminal law.

“The Devil’s Account: Men, Morals, and Constitutional Goods,” Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 1 (January 2009) pp. 113-186.

Thomas Poole 
Senior Lecturer in Law 
London School of Economics 
London England

Constitutional Goods, a work of political theory presented as constitutional theory, foregrounds law. Law is central to its method. The dialogic (or inclusive) theory developed in the book is based, we are told, on ‘a unity of elements found in actual case law.’ Law provides, then, much of the raw material on the basis of which the three conceptions of liberalism (libertarian, egalitarian and communitarian) are identified. And court cases are vital to the process of ‘sifting’ through which aspects of each conception that are of enduring value are identified and synthesized within a final ‘inclusive conception’ of the liberal constitution. Law is also central substantively. It plays a role in the high moment of the theory—the mutual recognition of citizen and ethos—and permeates (and justifies) every mode of social and political interaction within the ideal political community that Constitutional Goods presents. State, community, and individual are wrapped up and enfolded within law (or, as Brudner prefers to style it, ‘the Law’) within the inclusive theory. This paper looks closely at the role law plays in Constitutional Goods. Part I examines relevant legal aspects and makes some general claims about the way in which law is conceived within the inclusive theory. Part II concentrates on the legal aspects of the theory’s emphasis on Aristotelian perfectionism and the pedagogical role for the state. While interesting and important in their own right, these aspects of the theory allow us to shed light on the conception of law that predominates within the theory. Part III offers something of a Devil’s account, offering in response to Brudner’s Hegelian idealism an alternative approach grounded in Humean scepticism. I pursue this avenue of inquiry as a basis from which to argue that the ‘heaven of laws’ that Brudner imagines is a goal which is neither particularly liberal nor especially desirable.

“Inclusivity and the Constitution of the Family,” Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 1 (January 2009) pp. 135-152.

Clare Chambers 
University Lecturer and Fellow in Philosophy 
Jesus College 

This paper starts by discussing Alan Brudner's overall project: the project of inclusivity. It argues that the idea of inclusivity is problematic both conceptually and normatively, for three reasons. First, it is not clear that Brudner's aim to provide a unified theory of the liberal constitution is either possible or desirable. Second, Brudner assumes but does not adequately demonstrate the need for public justification of the liberal constitution. Third, Brudner does not sufficiently explain who should have a veto over his final theory. The paper then turns to Brudner's analysis of sex and family, and argues that his position on these matters is one that liberals would reject. In the case of marriage, Brudner’s conclusions may be compatible with liberalism but the arguments supporting them are not. In the case of abortion, neither argument nor policy is compatible with liberalism. Either his position requires that we attribute differential status to human persons, in direct contravention of the fundamental equality of moral worth that liberalism accords to all individuals. Or it requires that we override the rights of individuals by asserting that their own self-authorship is less important to them than a symbol of their personal relationship, a judgment that profoundly undermines individual autonomy.

“Transitional Problems in Brudner’s Inclusive Conception of Liberalism,” Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 1 (January 2009) pp. 153-164.

John Charvet 
Emeritus Professor of Political Science 
London School of Economics 

This paper is concerned with certain connections and oppositions that Brudner perceives between liberty, equality and community. As I understand his project, he begins with a strong atomist conception of the worth of individuals, which he calls libertarian, and claims to show how egalitarian and communitarian ideas of individual worth are unavoidably contained in the original idea and must be developed out of it in order to arrive at a coherent and conceptually stable view. This is the inclusive conception, which retains the libertarian and egalitarian moments as subordinate but essential aspects of a liberal ethical community. This paper is sceptical of the validity of the proposed deduction. It concentrates on a few passages, which purport to show how an initial position has implications that nevertheless are in contradiction with the premises from which they are derived. As a result of this concentration, the paper, unavoidably, ignores a great wealth of illuminating material that, together with the impressive sweep of the project as a whole, fully justifies the attention the book is receiving, even if, as I believe, the overall argument does not succeed.

“Fairness, Consensus, and the Justification of the Ideal Liberal Constitution,” Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 1 (January 2009) pp. 165-186.

Philip Cook 
LSE Fellow in Political Theory 
Department of Government 
London School of Economics 

In Constitutional Goods Brudner argues that the justification of the ideal liberal constitutional must be based on an alternative conception of public reason from that presented by Rawls in Political Liberalism. This paper sets out the disagreement between the two notions of justification, and argues that Brudner’s proposed account is problematic on two accounts. Firstly, it seems internally inconsistent. Brudner’s alternative to Rawls’s overlapping consensus, a convergent consensus on an inclusive conception of liberalism, will be impossible given the plural and often contradictory nature of differing liberal doctrines. Secondly, even if such a consensus is possible it will be characterized by modus vivendi rather than a reasonable agreement based on the value of fairness. Consequently, Brudner’s notion of public justification will lack both fairness and consensus, and should therefore be rejected as the basis for the ideal liberal constitution.

“In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law,” Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 1 (January 2009) pp. 187-203.

TRS Allan 
Professor of Public Law and Jurisprudence 
Pembroke College 
University of Cambridge 

Brudner argues that liberal constitutionalism, or the rule of Law, requires the adoption of a written constitution, regulating the respective powers of court and legislature. In his analysis, the common law constitution is associated with a libertarian paradigm that gives way, in part, to an egalitarian one embodied in a sovereign constitutional text. I argue, to the contrary, that the preservation of the rule of Law, including the protection of liberal rights, does not requirea codified constitution, but demands only the consistent application of the correct legal principles to particular cases. 
Statutes must always be interpreted consistently with such principles: their meaning and validity are alike dependent on their compatibility with fundamental constitutional rights. What could not be acknowledged as a legitimate requirement by an independent moral agent cannot qualify as law.

“The Place of Religion in Constitutional Goods,” Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 1 (January 2009) pp. 205-219.

Lorenzo Zucca 
Lecturer in Law 
King's College London 

This paper is about the place of religion in Alan Brudner’s Constitutional Goods. More generally, it offers some thoughts on the place of religion in constitutional theory and political philosophy today. This theologico-political question was central for many centuries, but gradually faded as our secular age affirmed itself. Recent political and social events at the European and at the global level have firmly turned the tide.Constitutional Goods as a modern natural law theory of liberal constitutionalism has a lot to say about religion, but crucially it does not say enough. In particular, it clearly shows how constitutional theory has shaped itself in relation to--if most of the time in opposition to--religion, but does not explain why political philosophy is mainly about the theologico-political question. Nor does it attempt to explain how that issue may characterize our future constitutional debates. However, it fails to directly address the question of the relation between religion and public reason. Does the inclusive conception provide a strictly secular conception of public reason or does it also include religious views? My impression is that the inclusive conception only brings together philosophical conceptions. By only doing so, it fails to engage with the more pressing social and political problems that we may face. And incidentally, it rides roughshod on the most important question of political philosophy. Under what conditions can public reason accommodate religious views? It is surprising that Constitutional Goods does not offer any substantive developments on these points. Modern secular states will face very difficult choices. We do not want to give up hope on the possibility of giving religion its due. But our constitutional theory and political philosophies have a lot of work to do before getting those problems right.