Abstracts from Volume XXII, Number 2 (July 2009)

1. Coxford Lecture: “Of Living Trees and Dead Hands: The Interpretation of Constitutions and Constitutional Rights”, Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 2 (July 2009) pp. 227-236.

Larry Alexander 
School of Law 
University of San Diego 

The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree” constitutional interpretation. The only “living trees” are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order.

2. “A Reply to Critics of Constitutional Goods”, Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 2 (July 2009) pp. 237-266.

Alan Brudner 
Faculty of Law, 
University of Toronto 

In this article, the author replies to critiques of his book, Constitutional Goods(Oxford, 2004) by Professors Trevor Allan, Clare Chambers, John Charvet, Philip Cook, Thomas Poole, and Lorenzo Zucca. These critiques were originally presented at a symposium held in May, 2008 at the London School of Economics and Political Science and were later published together in Vol. XXII (January, 2009) Canadian Journal of Law and Jurisprudence.

3. “Parliamentary Sovereignty and the Constitution”, Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 2 (July 2009), pp. 267-290.

Pavlos Eleftheriadis 
Mansfield College 
Oxford University 
United Kingdom 

The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a ‘pouvoir constituent’. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions.

4. “Separate Persons Acting Together – Sketching A Theory of Contract Law”, Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 2 (July 2009) pp. 291-312.

Martín Hevia 
Universidad Torcuato Di Tella 
School of Law 
Buenos Aires 

This paper explores the following question: if, as John Rawls famously suggests, justice is the first virtue of social institutions, how are we to understand the institution of contract law? On the one hand, many writers take the view that the rules of contracts are merely a tool for bringing about distributive justice; on the other hand, some libertarian writers contend that the rules of contract leave no space for any idea of distributive justice. In this paper, I propose an alternative account. I situate contract law in terms of what John Rawls calls “the social division of responsibility”: society as a whole has to provide individuals with an adequate share of opportunities and resources that they need in order to set and pursue their own conception of the good. Once individuals have those fair shares, citizens have to take responsibility for how their own lives go. An important way that people may pursue their plans is by entering into arrangements with others. This requires a system of contract rules. I argue that justice requires that we understand contract rules in terms of the idea of fair terms of interaction – that is, terms that would be accepted by reasonable persons moved by a desire for a social world in which they, as free and equal, can cooperate with others on terms they accept. The underlying idea is that of reciprocity, that is, the idea that individuals should not set the terms of their interactions with others unilaterally. Those fair terms of interaction are reasonable terms. Thus, in this paper, I claim that contractual interactions should be approached from the perspective of the reasonable person. My aim is to explain the formation of a contract, the legal response to a breach, and other issues that come up with contractual interactions from that perspective.

5. “The Case for Reasoned Criminal Trial Verdicts”, Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 2 (July 2009) pp. 313-330.

Richard L. Lippke 
Frederick Visiting Scholar in Ethics 
DePauw University 
Indiana, USA

Discussion in the paper focuses on instituting a requirement that juries in criminal cases make public the reasons for their verdicts. The nature of such a requirement is elaborated, as is the way in which defects in the reasons provided might serve as a basis for appealing convictions. Various arguments for adopting such a requirement are considered, as are objections to doing so. In support of the requirement, I contend that it would enable defendants in criminal cases to ensure that their procedural rights have been respected. Such a requirement can also be construed as a condition of the legitimacy of exercises of political power and as an implication of the right of each person to be treated with equal concern and respect. The main objections to such a requirement concern its possible interference with jury independence and the complications and inefficiencies appeals of reasoned verdicts would produce.

6. “Beguiled by Metaphors: The ‘Living Tree’ and Originalist Constitutional Interpretation in Canada”,Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 2 (July 2009) pp. 331-354.

Bradley W. Miller 
Faculty of Law 
University of Western Ontario 
Ontario, Canada

Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen” at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly rejected in the new originalist theories that have been developed principally (but not exclusively) in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 (and periodically reaffirmed thereafter), is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. 
This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.

7. “The ‘Responsibility to Prevent’: A Remit for Intervention?”, Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 2 (July 2009) pp. 335-380.

Natalie Oman 
Department of Philosophy 
Memorial University 
Newfoundland, Canada

We are experiencing a transitional moment in international law. What once seemed to be an unstoppable evolution toward cosmopolitan constitutionalism now appears as a fragile and easily reversible trend, threatened both by the imperial disregard of international legality by recent U.S. administrations and by the disinterest or active opposition of a group of states that was classified as ‘uncivilized’ in nineteenth century international law. A powerful account of the differences between these states -- former colonies and satellites of great powers – and the predominantly western states whose publics take for granted human rights culture has captured the imagination of international elites. The contemporary account of the differences between western European-descended political communities and the ‘others’ focuses on democratic governance, human rights, and human security. One important element of this narrative is the emerging international legal concept of the ‘responsibility to protect,’ often promoted as a means of securing the preceding three goods. 
This paper considers the recommendations of the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) concerning a subsidiary element of the responsibility to protect termed the ‘responsibility to prevent.’ It argues that the prescriptions associated with the responsibility to prevent rest upon a set of prevailing assumptions about the root causes of threats to human security that are not tenable or not proven, and which both rely upon and reinforce the dualistic narrative of lawful and outlaw states that now dominates international public policy-making in western countries. Further, it shows how the model of legalization of humanitarian intervention proposed by ICISS is susceptible to cooptation by the democracy promotion project frequently associated with the liberal peace thesis. Finally, the paper recommends that only a stripped-down version of the ICISS recommendations, limited to the ‘responsibility to react,’ should be legalized, primarily because of the current absence of a reasonable degree of intercultural agreement on a substantive grounding for a muscular interpretation of a responsibility to prevent that includes root cause prevention.

8. “The Impossibility of Textualism and the Pervasiveness of Rewriting in Law”, Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 2 (July 2009), pp. 381-406.

Michael Robertson 
Faculty of Law 
University of Otago 
New Zealand 

In this paper I consider the arguments for and against textualism, or the position that the meaning of a text can be ascertained solely by reference to the rules of grammar and the conventional meanings of the words used in the text. Textualism has a great deal of intuitive force and has been attractive to lawyers because it seems to advance the rule of law. Textualism promises to deliver accessible, objective, and clear meanings for legal texts, which in turn will achieve predictability, co- ordination, efficiency, and the constraint of state officials. My analysis concludes, however, that the arguments for the impossibility of textualism are convincing. What follows from this? Surprisingly little. Clear and compelling meanings for legal texts are still possible, as is the rule of law. Existing practices need to be redescribed— but not changed—as a result of textualism’s failure. Some of these redescriptions do upset the conventional self-understandings of lawyers (rewriting the law, for example, turns out to be a pervasive practice), but this does not matter much because practices and accounts of practices are independent things. Extensive changes made to one need not have effects on the other.

9. “Re-examining States’ External Obligations to Implement Economic and Social Rights of Children”, Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 2 (July 2009), pp. 407-450.

Michael Wabwile 
Moi University 
Faculty of Law 
Kenya, Africa

International law on the protection and promotion of social and economic rights of the child binds states parties to respect, protect and secure these rights both in their own territories as well as to contribute to the programmes for such fulfilment in other countries in a strategy aiming at global implementation of these rights. This paper explores the legal basis for states’ external obligations to support fulfilment of social and economic rights. It surveys inter alia the relevant treaty texts, explanatory resolutions of the UN General Assembly and statements in reports submitted by states parties to the UN monitoring committees, and argues that recent state practice and interpretation of human rights obligations confirms the extraterritorial obligations to support fulfilment of these rights. Since these are obligations to fulfil the rights of human beings in other countries rather than obligations to third states, they can be referred to as ‘diagonal obligations’ to distinguish them from inter-state horizontal responsibility.

10. “Book Review: The Law and the Right: A Reappraisal of the Reality that Ought to Be, by Enrico Pattaro”, Canadian Journal of Law and Jurisprudence, Vol. XXII, Number 2 (July 2009), pp. 451-456.

Rodriguez-Blanco examines Enrico Pattaro's effort to explain the normativeness or binding force of the law. Pattaro defends the controversial claim that norms are motives of behaviour and provides a rich explanation of how these motives, i.e., beliefs in the human brain, move human agency. In her review, Rodriguez-Blanco challenges Pattaro's empirical conception of human agency.

Veronica Rodriguez-Blanco 
School of Law 
University of Birmingham, UK