Abstracts from Volume XXIII, Number 2 (July 2010)
Mátyás Bódig, “Legal Theory and Legal Doctrinal Scholarship”, Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 2 (July 2010) pp. 483-514.
Key words: conceptual legal theory, legal doctrinal scholarship, legal doctrine, doctrinal training, normative discourse, methodological legal positivism.
The essay is an attempt to clarify some issues concerning the point of doing conceptual legal theory. It provides a reassessment of the relationship between conceptual legal theory, legal doctrinal scholarship and the legal practice. The analysis concentrates on what may be termed the ʻmainstream’ discourse on conceptual legal theory (characterised by authors like Hart, Raz, Dworkin, Finnis), and depicts the mainstream discourse as functionally connected to legal doctrinal scholarship. The essay argues that a more open commitment to reflecting current problems of legal doctrinal scholarship would make the position of mainstream conceptual legal theory more intelligible. If it wants to maintain its position as a complex theoretical discourse, mainstream conceptual legal theory must take direct responsibility for serving the epistemic needs of legal doctrinal scholarship – by way of providing conceptual and methodological foundations for it. Conceptual legal theory can make a contribution to doctrinal debates by relying on its ability to assess competing doctrinal claims in light of the epistemological characteristics of the legal doctrines in a modern legal system. The mainstream conceptual discourse can also have a vital role in in making sense of the external challenges to legal doctrinal scholarship. Such cionsiderations lead to a criticism of Hartian methodological legal positivism: it is blamed for becoming oblivious of the ways in which the mainstream conceptual discourse is parasitic on the conceptual tensions encountered or even generated by doctrinal scholarship.
Sean Coyle, “The Intellectual Commitments of Modern Juridical Thought”, Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 2 (July 2010) pp. 461-482.
Key words: Law, Rawls, Dworkin, Kant, progress, jurisprudence, theory of justice.
To modern writers, the distinctive achievement of twentieth-century jurisprudence can be viewed as its emancipation from the narrow confines of English utilitarianism, and the subsequent development of perspectives rooted in the fundamental values of justice and rights. The central jurisprudential task of the new century is thus the exploration of a deeper, more elusive moral standpoint, the most profound intellectual commitments of which are yet to be fully digested and understood. My aim in this essay is to reveal something of the character of those commitments by considering the relationship of our present thinking about law and morality to its historical development.
Douglas Edlin, “Kant and the Common Law: Intersubjectivity in Aesthetic and Legal Judgment”,Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 2 (July 2010) pp. 429-460.
Key words: common law; judgment; aesthetics; Kant; subjective; intersubjective; community; disinterested; objectivity; validity.
This article develops some conceptual correlations between Kant’s theory of aesthetic judgment and the common law tradition of legal judgment. The article argues that legal judgment, like aesthetic judgment, is best conceived in terms of intersubjective validity rather than objective truth. Understanding the parallel between aesthetic and legal judgment allows us to appreciate better the relationship between subjectivity and intersubjectivity, the individual and the community, in the formulation and communication of judgments, which combine a personal response and a reasoned determination intended for a discrete audience. The article frames and pursues these themes in relation to four core concepts in Kant’s aesthetic theory: judgment, communication, community, and disinterestedness. Through sustained comparison and application of these concepts in aesthetic judgment and legal judgment, the article provides a conception of judging that more accurately captures the common law role and relationship of the individual judge and the institutional judiciary as integral parts of the broader legal and political community.
Andrew Halpin, “The Province of Jurisprudence Contested”, Critical Notice: The Province of Jurisprudence Democratized by Allan Hutchinson, Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 2 (July 2010) pp. 515-535.
Key words: Province of Jurisprudence, theoretical disagreement, law and democracy, law and politics, John Austin, Allan Hutchinson.
Allan Hutchinson’s recent book, The Province of Jurisprudence Democratized, considers what is involved in seeking to establish the province of jurisprudence as a distinctive field of inquiry.
Hutchinson’s principal concern with the democratization of law, legal theory, and the province of jurisprudence is examined in detail. The process of democratization and its anti-elitist character is traced through Hutchinson’s opposition to the aloof philosophical analysis of the universal in favour of an engagement with local and particular issues. However, the weight Hutchinson places on his conception of strong democracy, so as to provide a different understanding of the law-power nexus and of the relationship between law and morality operating in strong democracies, is shown to be misplaced. Two related failings are pointed out.
First, there is a failure to recognize competing groupings within the people, which contradict the uniform collective body Hutchinson associates with those formerly governed by elites and then constituting those liberated to exercise self-governance. Secondly, this links into Hutchinson’s exclusive preoccupation with the participatory axis of democracy – which he regards as the core feature of strong democracy as well as the basis for the law-power nexus and the law-morality relationship within a strong democracy. This is revealed as an inadequate and impoverished understanding of democracy once the presence of competing groupings within the people is acknowledged. These corrections have important consequences for a role for law that cannot be reduced solely to politics, and for a broader sweep to analytical jurisprudence than Hutchinson allows.
Hutchinson’s own efforts to capture the province of jurisprudence are then assessed. These are recharacterized as seeking to establish within a split field of inquiry a theory of strong democratic law, but, in the absence of a convincing account of the nature of democracy and its relationship with law, the project is judged to be unfulfilled.
Ori J. Herstein, “Responsibility in Negligence: Why the Duty of Care is not a Duty ‘to Try’”,Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 2 (July 2010) pp. 403-428.
Key words: Negligence; Responsibility, Moral responsibility, Duty of care.
Although equating the duty of care in negligence with a duty to try to avoid negligent outcomes (i.e., a duty to act with reasonable care and with the view or intention of averting harming) has several theoretical and descriptive virtues – primarily offering a promising account of the (moral) responsibility-component in the negligence standard – it is an account that fails to capture the state of the law or to offer a compelling argument for revising the law. The better account of the duty of care is as a duty of reasonable conduct alone. The responsibility-component in the negligence standard does not, therefore, take the form of a duty to try. Alternatively, the responsibility-component is found in the conditions for being subject to the negligence standard: specifically possessing responsibility-capacities and the opportunity to exercise those capacities in compliance with the duty of care.
Geoffrey W.G. Leane, “Deliberative Democracy and the Internet: New Possibilities for Legitimising Law through Public Discourse?”, Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 2 (July 2010) pp.373-401.
Key words: democracy, internet.
Does the Internet offer the promise of a newly empowered, egalitarian public sphere more completely informing the institutions of representative democracy through an engaged and articulate public sphere? The Internet is with us now as a social fact. Its potential remains inchoate at a time when mass media, already debased as an intermediate medium for public discourse, suffers further erosion. The limitations of the Internet as a new medium for an enriched deliberative discourse are not necessarily fatal. Indeed the time may well be right. The institutional means for realising it are largely untried and controversial but not likely beyond our capabilities. In short, there is a need and a promise but not yet an active engagement. Against idealised Habermasian criteria the prospects are bleak and indeed there is danger of further fragmentation of publics. But judged against already debased modes of political discourse and the reality of the erosion of their mass media forms the prospects are perhaps not so bleak. The utopian best ought not to be allowed to crowd out the achievable good.
Ishani Maitra & Mary Kate McGowan, “On Racist Hate Speech and the Scope of a Free Speech Principle”, Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 2 (July 2010) pp. 343-372.
Key Words: Free speech, Hate speech, Racism, First Amendment, Charles Lawrence.
In this paper, we argue that to properly understand our commitment to a principle of free speech, we must pay attention to what should count as speech for the purposes of such a principle. We defend the view that ‘speech’ here should be a technical term, with something other than its ordinary sense. We then offer a partial characterization of this technical sense. We contrast our view with some influential views about free speech (due to Greenawalt, Cohen, and Sunstein), and show that our view has distinct advantages. Finally, we consider racist hate speech. Here, we argue that if certain theorists (e.g., Lawrence) are right about what some racist hate speech does, then such speech should fall outside the scope of the free speech principle, and so, should be as regulable as any non-speech action.
Allen Mendenhall, “Jefferson’s ‘Laws of Nature’: Newtonian Influence and the Dual Valence of Jurisprudence and Science”, Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 2 (July 2010) pp. 319-342.
Key Words: Jefferson, jurisprudence, scientific method, Newton, natural law, Notes on the State of Virginia, Declaration of Independence, science, nature, positive law, Bentham, John Austin.
Thomas Jefferson appears to have conceived of natural law rather differently from his predecessors – namely, Saint Thomas Aquinas, Richard Hooker, Hugo Grotius, Samuel von Pufendorf, John Locke, and, among others, William Blackstone. This particular pedigree looked to divine decree or moral order to anchor natural law philosophy. But Jefferson’s various writings, most notably the Declaration and Notes on the State of Virginia, champion the thinking of a natural historian, a man who celebrated reason and scientific method, who extolled fact over fancy, material over the immaterial, observation over superstition, and experiment over divine revelation. They reveal, in other words, an Enlightenment homme du monde, a veritable encyclopedia of knowledge, able to discourse on any number of topics.
Jefferson's jurisprudence pivots on the dual valence of law and science. Jurisprudes have mostly ignored the sometime symbiotic relationship of law and science, just as they have downplayed or altogether ignored Jefferson’s unique contributions to legal philosophy. How does Jefferson’s natural philosophy conceptualize law? Science is all about studying objects and predicting their behaviors. If law is more than bills or statutes or glorified pieces of paper – if it is intangible but somehow immanent – how does one collect or observe it in nature? What is its ontology? Its epistemology? How do we discover it? How do we experiment with it? In what way is it, as Jefferson apparently believed, innate to humankind? This article will consider all of these questions while arguing for the inclusion of Jefferson into what I call the “natural law canon” of jurisprudence. I submit that Jefferson’s ideas about nature are tied to his ideas about reason and that his scientific approach to jurisprudence was not only innovative but nearly unprecedented. This article demonstrates how Jefferson’s jurisprudence appropriates science, what makes that appropriation unique, and why that appropriation matters to a 21st century audience.
David Reidy, “Human Rights and Liberal Toleration”, Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 2 (July 2010) pp. 287-317.
Key Words: James Nickel, The Law of Peoples, Rawls, international order, human rights, ultraminimalism, liberal toleration, liberalism.
Jim Nickel has criticized the account of human rights Rawls gives in The Law of Peoples as “ultraminimalist” and as wrongheadedly grounded in an excessive desire to accommodate illiberal and nondemocratic polities and in a confused identification of human rights with the regulation of coercive intervention in the international order. I show that Rawls’s position is not “ultraminimalist” and, more importantly, that it is more complex and attractive than Nickel (and other critics) recognizes. Rawls distinguishes between the human rights necessary and sufficient to there to being no principled grounds for coercive intervention into a state and those necessary and sufficient to there being a principled ground to accord a state status recognition and respect in the international order. This distinction reflects a distinction in The Law of Peoples between two forms of liberal toleration: toleration as mere non-interference and toleration as recognition or status respect. I discuss the role of each in the law of peoples and show how each is both principled and liberal.
Jeremy Waldron, The Coxford Lecture: “Inhuman and Degrading Treatment: The Words Themselves”, Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 2 (July 2010) pp. 269-286.
Key words: Alien Torts statute, cruelty, degrading, dignity, ECHR, evaluative language, human rights, indeterminacy, inhuman, ICCPR, international humanitarian law, moral reading, ordinary language, original meaning, prisoners, rules and standards, torture.
Many human rights charters contain prohibitions on inhuman and degrading treatment of prisoners and detainees. Terms like “inhuman” and “degrading” are difficult to interpret, but they are certainly not meaningless. It is important to attend to attend to the meanings of the words themselves, as well as to the decisions that courts have made about particular practices. Reflection on the meanings of these highly-charged terms reveals important complexity, which we can unpack in a way that enables us to better focus our debate about the proper treatment of prisoners and detainees. Focusing on the ordinary-language meaning of evaluative terms like “inhuman” and “degrading” also helps us approach the relation between rules and standards in law more thoughtfully, as we see why it is important not to let the evaluative meaning of these terms be superseded by the definitions established in the course of their application.