Abstracts from Volume XXIV, Number 1 (January 2011)Ian Bartrum, Discussion: “Thoughts on the Divergence of Contract and Promise”, Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 1 (January 2011) pp. 225-235.
Key words: Contract, Promise, Shiffrin.
This essay offers some brief thoughts on Seana Shiffrin’s recent work regarding the divergence of contractual and promissory norms. I conclude that Shiffrin does not do enough to separate and account for the different consequentalist and deontological justifications underlying each institution, and does not do enough to explain how promises give rise to the “moral” duties she posits. I suggest, instead, that the divergence between contract and promise is justified by the different roles each institution plays in our lives, and that, in fact, keeping strictly promissory duties outside the scope of state coercion actually facilitates a strong culture of responsible moral agency.
Bryan Druzin, “Law, Selfishness, and Signals: An Expansion of Posner’s Signaling Theory of Social Norms”, Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 1 (January 2011) pp. 5-53.
Key words: Norms; Signaling theory; rational choice; internalization; Posner; discount rate.
Eric Posner’s signaling theory of social norms holds that individuals adopt social norms in order to signal that they have a low discount rate (that is, they value the future more than the present), and are therefore reliable long-term cooperative partners. This paper radically expands Posner’s theory by incorporating internalization into his model (the sense that norms possess some sort of binding quality, an “ought to”). I do this by tethering Posner’s theory to an evolutionary model. I argue that internalization is an adaptive quality that enhances the individual’s ability to play Posner’s signaling game and was thus selected for. The idea that internalization is evolutionarily conditioned is not new; however, linking this to Posner’s theory of discount rate signals is, and doing so offers tremendous explanatory potential.
Part I identifies the limitations of Posner’s purely rational choice approach, argues for the necessity of including internalization, and then proposes a model that does so – what I call the Expanded Signaling Model of Norms (ESM). Part II examines the problems that arise when we embrace such a model. How this model answers some key criticisms plaguing sociobiology is also briefly explored. Part III then examines existing criticisms of Posner’s theory, demonstrating how the Expanded Signaling Model clearly resolves these issues. The paper concludes that incorporating internalization into Posner’s signaling model greatly broadens the explanatory reach of Posner’s theory, providing a measure of clarity and predictability regarding how and why norms are internalized – an important insight, as these beliefs form the normative underpinning to law.
Julen Etxabe, “Tragic Incommensurability and Legal Judgment”, Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 1 (January 2011) pp. 55-78.
Key words: incommensurability, conflict, judgment, tragic choices, moral dilemmas, disagreement, consensus.
This article has several and concurrent purposes. The first is to offer conceptual clarification about the notion of incommensurability and how it can be meaningfully understood in various contexts. Secondly, the purpose is to advance the substantive position that something important is lost when incommensurability is rejected in the law as a matter of principle. Third, the aim is to bring to fuller awareness the practical difficulties that a judge facing a potentially incommensurable conflict would encounter when judging it. Finally there is the claim, against the backdrop of contemporary theories of procedural democracy, that tragic incommensurability cannot be wholly neutralized by the procedures aimed at the generation of consensus, nor dissolved through the harmonic integration of all the values that law is supposed to protect.
Ronit Donyets Kedar, “The Unrecognized Dominance of Law in Morality: The Case of Promises”,Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 1 (January 2011) pp. 79-107.
The commonplace view is that moral thinking has significantly influenced legal theory, but law has had very little theoretical effect on morality. In this article, I attempt to show this is not so. Taking the inverse course in tracing the interrelations between law and morality – investigating morality from the perspective of law rather than examining law from the perspective of morality – I show, through the case of promises, that legal theory has greatly affected dominant strands of moral thought. By bringing to the fore the robust legal elements that guide some of the prevailing moral theories, my aim is to offer a new diagnosis of their problems, showing that the legal mindset is what distorts their moral analysis.
I start by offering a list of law’s special underpinnings. Predicating law as a unique social phenomenon and, as such, as possessing certain features that distinguish it from other normative domains, this list, though not a definition of law as such, presents a sufficiently inclusive account of what it means for a normative theory to be legal or legal-oriented. This profile serves as a tool helping to discern, for the first time, the unrecognized influences of legal thinking on other normative domains, and to reveal whether, and to what extent, some normative accounts rest on and are affected by legal ideas, tools, terminology, and structure. Applying this model to the analysis of promises offered by such thinkers as Charles Fried, John Rawls, and T. M. Scanlon, I show how their legal mindset shapes their moral accounts of promises. My conclusions indicate that the unaccounted for influence of legal ideas on morality in general, and on the morality of promises in particular, leads to an unsatisfactory conception of both.
Charles-Maxime Panaccio, “In Defence of Two-Step Balancing and Proportionality in Rights Adjudication”, Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 1 (January 2011) pp. 109-128.
Two-step proportionality-balancing [TSPB] has become the standard method for human and constitutional rights decision-making. The first step consists in determining whether a rights-provision has been infringed/limited; if the answer to that first question is positive, the second step consists in determining whether the infringement/limit is reasonable or justified according to a proportionality analysis. TSPB has regularly been the target of some criticism. Critiques have argued that both its ‘two-step’ and ‘proportionality’ elements distort reality by promoting a false picture of rights and constitutional decision-making. This would cause negative moral consequences. This article seeks to defend TSPB against these criticisms and to depict it in a more appropriate and favourable light. First, it is argued that both aspects of TSPB do not have the dire moral consequences that opponents suggest they have. Second, it is argued that TSPB, deploying notions such as burdens, presumptions and prima facie/defeasible propositions, constitutes a valuable framework for public argumentation and authoritative decision-making.
George Pavlakos, “Constitutional Rights, Balancing and the Structure of Autonomy”, Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 1 (January 2011) pp. 129-153.
The question of the character of constitutional rights norms is complex and admits of no easy answer. Without reducing the complexity of the issue, I attempt in this paper to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning that combines both balancing (as Robert Alexy admits) and the grounds as to why balancing is appropriate (deontological constraints). Absent the latter type of reason, the application of constitutional principles remains a pure instance of balancing. Each time those reasons are touched upon, however, balancing becomes subject to deontological constraints. Yet deontological reasons are neither self-proclaiming nor complete. Rather they require for their articulation the background of an already operational practice of practical (legal) reasoning. This practice exemplifies what I shall dub the structure of autonomy, that is, a set of regulative ideals, not yet definitive norms, that derive from the reflective character of human agency. This structure comes to light when one turns to the agent’s point of view – to the point of view of someone who is engaged reflectively with practical questions (questions about rights are par excellence questions of this type). The structure of autonomy is more fundamental than any deontological or teleological reasons: it is in its light that deontology and teleology need to be understood as representing merely complementary forms of argument, which can be employed in reasoning that aims to maximise constitutional rights provisions. At the same time, the structure of autonomy as a regulative ideal generates prima facie reasons for allocating greater weight to deontological arguments in the relevant contexts of balancing. Such prima-facie reasons do not prescribe fully-fledged deontological constraints, but merely set the burden of proof in favour of specific reasons and ensure that the structure of autonomy be respected overall.
Douglas Sanderson: “Against Supersession”, Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 1 (January 2011) pp. 155-182.
Key words: Historic Injustice, Supersession, Indigenous people, Waldron.
The availability of redress for historic wrongs committed against Indigenous people turns on a number of morally complex and politically charged issues. From the standpoint of moral theory, the problems of redress have been given articulate voice by Jeremy Waldron whose writings have come to take the shape of conventional wisdom. Waldron’s arguments are three-fold: 1) counterfactuals are impossible to verify, and so it is impossible to know how we are to put injured parties into the position they would have been had there been no injustice; 2) entitlements fade over time, and so whatever right to redress may have once existed, the basis for those entitlements is now eroded; and 3) injustices can be overtaken by circumstances, such that what was once unjust becomes just. In this article I argue that each of these objections to redressing of historic wrongs is mistaken, and they are mistaken in part because of Waldron’s failure to recognize that the injustices are not merely historic, the injustices are also contemporary and on-going wrongs committed against modern-day Indigenous people. There is no denying that circumstances have changed, but that does not eliminate the need to face up to the problems of injustice in the circumstances in which they occur: the present day, and we must face these challenges despite the fact that they present difficult choices and the probability of sacrifice.
Prince Saprai, “Weinrib on Unjust Enrichment”, Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 1 (January 2011) pp. 183-204.
Key words: Weinrib, unjust enrichment, restitution, corrective justice, strict liability.
The article is a critique of Ernest Weinrib’s attempts to explain the structure of unjust enrichment law according to his theory of corrective justice. The plausibility of Weinrib’s account of unjust enrichment is of critical importance to his claim that corrective justice is a theory of private law in general. Ultimately, I argue that Weinrib’s efforts to accommodate unjust enrichment within his conception of corrective justice fail. This is in large part due to the fact that Weinrib sets himself the uphill task of both explainingunjust enrichment from its own internal perspective where the structure of liability is strict and not based on fault and justifying it in terms of his interpretation of corrective justice which is rooted in wrongdoing. The dilemma between structure and justification runs throughout Weinrib’s early and recent writings on unjust enrichment, and I argue that there is now a need to confront it.
Hamish Stewart, “The Limits of Consent and the Law of Assault”, Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 1 (January 2011) pp. 205-223.
In this paper, I show that a Kantian account can explain both the rule that consent is normally a defence to assault and the exceptions to that rule. Kant himself does not discuss the offence of assault, but the body – the manifestation of the person in space and time – is central to Kant’s account of each person’s innate right of humanity. Since Kant’s legal philosophy is oriented around the idea that each limit on freedom of action can be justified only for the sake of freedom itself, it is plausible to think that this might do all the work; but that is not the case. The law may rightly refuse to recognize consent to a physical interaction that is inconsistent with treating the participants as persons and may, in such cases, create an exception to the usual rule that lack of consent is an element of assault.
But this Kantian account needs to be supplemented in two ways. First, the account provides a structure but no criteria for determining whether an interaction is inconsistent with personhood. Second, the law does sometimes recognize consent as a defence in activities that expose the participants to the intentional application of force that creates a risk of permanent and serious damage, even though that damage itself could not be consented to. The distinction turns out to run parallel to Kant’s solution to the problem (as he sees it) of sexuality: how is it possible for two persons to engage in an activity that necessarily requires each to treat the other as an object, and yet to retain their humanity? With these supplements, the limits on consent in the positive law of assault can be justified in Kantian terms.