Abstracts from Volume XXV, Number 1 (January 2012)
Tareq Al-Tawil, “On the Topic of the Divergence between Legal and Moral Obligations in Common Law”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 5-37.If common law is to run parallel to the morality of promissory obligation, it must require the breaching seller to keep his promise, not simply to pay off the buyer. However, in the event of promise-breaking, common law orders the defendant to compensate the claimant for the loss that flows from the breach of the duty to perform. The following questions then arise: why does English law not order the defendant to do the very thing that the substantive duty requires him to do? Why does it not adopt specific performance as the primary remedy? Is it because English law runs against the morality of promise? The answer is ‘no’. A number of justifications have been put forward to explain the common law’s reluctance to award specific performance despite its undoubted acceptance as the appropriate moral response to promise-breaking. This article will explain each and show which is more persuasive.
Peter Chau, “Poverty, Distributive Justice, and Punishment”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 39-52.
Should poverty be a mitigating factor, if it affects neither the strength of temptations to commit a crime an offender faced nor his mental capacity to refrain from committing the crime? I argue that it should, because of distributive justice. I argue for this conclusion in two steps. First, I argue that we can improve distributive justice by mitigating poor offenders. Second, I argue that there are no strong objections against taking into account considerations of distributive justice in the sentencing process. I also compare my argument with an argument made by Jeffrie Murphy and explain how some objections against Murphy’s argument do not apply against my argument.
Joel I. Colón-Rios, “The Counter-Majoritarian Difficulty and the Road not Taken: Democratizing Amendment Rules”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 53-78.
Discussions about the democratic legitimacy of judicial review of legislation are usually framed in terms of the so called ‘counter-majoritarian’ difficulty, the idea that judicial review is a deviant institution in a democracy. How can a country be considered democratic if a group of non-elected judges have the faculty to strike down laws that have been adopted by a majority of the elected representatives of the people? In framing the question in those terms, however, we tend to forget that there is nothing in the counter-majoritarian difficulty suggesting that judicial review of legislation is necessarily problematic from a democratic perspective. An institutional arrangement that gives judges the faculty to strike down laws inconsistent with the constitution only creates a counter-majoritarian difficulty if the constitution cannot be amended by simple majorities. In not paying proper attention to the role played by a rigid amendment process in the existence of a counter-majoritarian difficulty, this article argues, we have missed the opportunity of democratizing processes of constitutional reform in important ways while at the same time maintaining in place a system of constitutional review in which judges retain the ability of striking down legislation.
The idea of giving simple majorities the possibility of having the final word on the meaning and scope of rights is of course not new. In fact, it is the basic feature of the weak system of judicial review now present in several commonwealth countries. However, such a system does not go beyond courts and legislatures, and it is therefore open to the same types of critiques advanced by defenders of strong judicial review against systems of legislative supremacy. The article defends the view that in a democratic society, deliberation and decision-making about the meaning and content of the constitution should extend beyond the ordinary institutions of government. Under that conception, a more democratic approach to the counter-majoritarian difficulty would provide popular majorities (as opposed to legislatures) with the faculty of amending the fundamental law in order to respond to a judicial decision that invalidated (or validated) an ordinary law. For example, citizens could be able to engage in the activity of constitutional reform through non-constituent assemblies, triggered by popular referendum and having the specific mandate of deliberating about the judicial decision in question and the power to propose constitutional changes that would be subject to popular ratification.
David Dyzenhaus, “Legality Without the Rule of Law? Scott Shapiro on Wicked Legal Systems”, Critical Notice: Legality by Scott Shapiro, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 183-200.
In Legality, Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.
Bebhinn Donnelly-Lazarov, “Dworkin’s Morality and its Limited Implications for Law”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 79-95.
In his account of adjudication, Ronald Dworkin makes the case that judicial engagement with morality is a necessary feature of legal practice and so of law itself. This paper examines the nature and implications of this claim. It argues (a) that Dworkin is concerned with a form of engagement between law and morality that is insufficient to make morality count as part of law in virtue of it and (b) that the sort of engagement with morality that Dworkin identifies turns out to support only the notion that judicial acts have moral meaning or import of some sort. Dworkin’s key interpretive claim that adjudication entails offering a positive moral justification for the practice of law is undermined by the type of moral engagement he properly identifies.
Seán Patrick Donlan, “Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (2009) by Emmanual Melissaris”, Book Review, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 177-182.
A broad assortment of contemporary approaches to legal and normative complexity have challenged state law’s claim of dominance and exclusivity. In Ubiquitous law: Legal Theory and the Space for Legal Pluralism (2009), Emmanuel Melissaris similarly seeks to ground the ‘legal’ in what he calls ‘shared normative commitments’. As with much ‘legal pluralism’, his focus on normativity rejects long-established conventional concepts of law. Indeed, for Melissaris, state law may not even properly qualify as ‘law’.But understood as a descriptive theory of normativity, the dynamic legal-normative web he outlines has much to recommend it. It is certainly superior to the continuing narrow concentration of jurisprudes on state law and law-like regimes. Less convincing is Melissaris’ prescriptive suggestion, with ‘critical legal pluralists’, that illustrating the degree to which legal-normative reform occurs beyond the state and its laws promises liberation. Shared normative commitments do not necessarily result in popular control as existing social structures and power relationships remain. We may be ensnared rather than emancipated. On the whole, however, Melissaris has made a sophisticated and substantial contribution to our understanding of legal and normative plurality. His book deserves to be widely read.
Theodora Kostakopoulou, “Defending the Case for Liberal Anationalism”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 97-118.
Nationalism appears to be so entrenched in political life and discourse, that its illiberal face is often deemed to be an exception and unfortunate coincidence triggered by international terrorism. Alternatively, it may be depicted as the result of ill-thought policies which can be reversible. In this paper, I argue that liberal nationalism is conceptually flawed and politically illiberal. Illiberal tendencies are an integral part of it and these cannot be corrected by ‘taming’ unruly nationalism or by articulating ‘benign’ adaptations of it. Because the liberal and illiberal faces are interwoven in complex ways, my suggestion is to look far ahead and beyond it. The territory may be uncharted, but a commitment to a pro-human welfare orientation could open the way for separating liberalism from nationalism and aligning the former with critical democratic politics. The challenge, as I see it, is to articulate a liberal anationalism which by affirming equal human dignity and the importance of non-domination could sustain inclusionary and democratic communities.
Stephen O’Hanlon, “Federalist 37: Man, Language, and Theory”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 137-157.
This article assesses three broad issues from James Madison’s writings in Federalist 37 – (1) the nature of man, (2) the contestability of language, and (3) the relevance of theory to the real-world constitutional project. Part I discusses the implications of Madison’s conception of man, outlining some of the checks and balances that can limit political tyranny and assesses his idea of achieving stability by allowing faction in the new federal polity. Part II discusses the openness or contestability of language which Madison embraces in Federalist 37, and relates Madison’s position to the contemporary originalist or textualist approach to constitutional interpretation. Part III assesses implications that arise fromFederalist 37 and concludes that, although real-life issues were at stake, the constitutional project was theoretical. Theory can incorporate real-life divergence of opinion.
Arthur Ripstein, “Self-certification and the Moral Aims of the Law”, Critical Notice: Legality by Scott Shapiro, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 201-217.
In Legality, Scott Shapiro introduces what he calls the “Planning Theory of Law.” Shapiro introduces the idea of a plan with examples from outside of the law. He then must provide an account of what is distinctive about law, such that the other plan-based social orders are not also legal systems. He gives two answers: first, a legal system is organized by a moral aim. Second, a legal system is self-certifying. I examine these in turn, and argue that each can only characterize what is distinctive about law if the relevant moral problem that law aims to solve is itself specifically concerned with authority—that is with who gets to decide about what. Other forms of planning assign roles to people to solve problems that have nothing to do with authority; law uses role-based authority to solve a moral problem that is fundamentally about authority.
N.W. Sage, “Original Acquisition and Unilateralism: Kant, Hegel, and Corrective Justice”,Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 119-136.
Contemporary Kantians suggest that the original acquisition of property is problematic for Kant’s theory of private law. Kant requires that private law obligations be consistent with the equal freedom of everyone. However, a rule of original acquisition seems to favor the acquirer’s freedom over others’: the acquirer originally obtains property in an unowned object simply by taking control of it, and thus seems to impose obligations on everyone else (to respect the property right) through her own “unilateral” action or choice. This article first addresses proposed Kantian solutions to the supposed “unilateralism” problem, which involve the creation of a “civil condition” of public legal institutions to determine property rights. Such solutions make property rights a matter of distributive justice rather than corrective justice. Moreover, they cannot actually solve the unilateralism problem. But in any event, the supposed “unilateralism” problem is in fact no problem at all for Kant. This is because one person’s original acquisition does not limit others’ “freedom” in the Kantian sense of that term. In this respect Kant’s account of property is equivalent to Hegel’s, which contemporary Kantians have criticized for denying any problem of unilateralism. And both Kant and Hegel’s accounts are fully consistent with a theory that explains property as a matter of corrective, rather than distributive, justice.
Martin Jay Stone, “Planning Positivism and Planning Natural Law”, Critical Notice: Legality by Scott Shapiro, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 219-235.
Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities in Legality might easily be resolved in favor of Planning Natural Law. The Planning Theory of Law, in other words, is not proprietary to positivism.
Mark Thornton, “The Limits of Criminal Culpability”, Critical Notice: Crime and Culpability by Alexander and Ferzan (with Morse), Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 1 (January 2012) pp. 159-175.
The authors of Crime and Culpability hold a subjectivist theory of criminal culpability according to which the core concept in culpability is subjective recklessness, negligence is not culpable, and it is irrelevant to culpability whether or not a criminal act results in harm. I argue against these three theses and criticize the authors' views on the structure of criminal law, criminal defences, criminal attempts, and codification.
