Abstracts from Volume XXV, Number 2 (July, 2012)

Pnina Alon-Shenker, “The Unequal Right to Age Equality: Towards a Dignified Lives Approach to Age Discrimination”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 2 (July 2012) pp. 243-282.

This paper critically examines prevailing egalitarian theories (which assess inequality between two individuals on the basis of their lifetime experience). The paper proposes an alternative theoretical framework: the Dignified Lives Approach. This theoretical framework, which rests on deontological foundations, considers all human beings as of equal moral worth, and advocates treating each individual with equal concern and respect at any given time. The paper articulates five essential principles of equality founded in the notion of equal concern and respect: the principle of individual assessment, the principle of equal influence, the principle of sufficiency, the principle of social inclusion, and the principle of autonomy. Focusing on senior workers, the paper reveals that age discrimination may be as unjust as other forms of discrimination. It therefore articulates a strong, moral case for eradicating age discrimination which is well supported by recent judicial developments.

Moshe Cohen-Eliya & Iddo Porat, “Judicial Minimalism and the Double Effect of Rules and Standards”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 2 (July 2012) pp. 283-311.

The aim in this article is to explore the complicated connections between standards and letting go and between rules and control. Both constitute a central tenet of Justice Roberts’ Graham concurrence, as well as a central tenet of the minimalist approach which he implicitly adopts. The tension within Roberts’ position is not conclusive. It may depend on the actual way one uses standards. If Roberts consistently uses standards de facto in a deferential way, and signals that he will not intervene, he may be consistent with the approach. But the tension exists. Standards and minimalism do not always go hand-in-hand. Finally, the article questions the efficacy of minimalism as a workable judicial philosophy. Roberts is, after all, the first Justice who adopted minimalism whole-heartedly. The difficulties with the application of minimalism in Graham and its inherent tensions revealed through this case raise some doubts as to the possibility that minimalism can move effectively from theory to actual judicial practice.

Helge Dedek, “A Particle of Freedom: The Kantian Theory of Transfer by Contract and Natural Law Thought”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 2 (July 2012) pp. 313-346.

Modern contract law theorists frequently invoke Kantian ideas to conceptualize contract as a form of immediate transfer. The Kantian theory of contract itself is eclectic: Kant makes use of the main conceptual building blocks of Natural Law (in particular Grotian) contract doctrine – promise and transfer. Yet Kant re-arranges and adapts them to his own epistemology and conceptual system. I submit that because of this connection, additional light can be shed on Kant’s theory of contract by placing it in the context of contemporary Natural Law discourse. One of the most outspoken critics of contract theory in the Grotian tradition was then famous (and now apocryphal) legal philosopher Theodor Schmalz. Schmalz faulted Natural Law thought for conceptualizing contract as transfer by fallaciously – “subreptively”– explaining the normative event of creating an obligation through the model of the empirical transfer of physical objects. Kant’s theory reads like a response to this critique: Kant avoids modelling contract on the transfer of property. Rather, he explains any transfer as contractual, brought about by a unified will.

Christopher Essert, Critical Notice: “From Raz’s Nexus to Legal Normativity,” Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 2 (July 2012) pp. 465-482.

This is a Critical Notice of From Normativity to Responsibility, Joseph Raz’s brilliant treatment of the nature of normativity and reasons. Building on the thought that the law claims to give reasons to its subjects, I consider the application of Raz’s views about reasons to some questions in legal philosophy. I concentrate on what I take to be the central idea of the book, Raz’s “normative/explanatory nexus”, according to which a consideration cannot be a (normative) reason for an agent to perform an action unless the agent could follow the consideration in performing the action. I show (briefly) how the nexus can explain some of the Fullerian principles of legality. And I examine (at somewhat greater length) the implications of the nexus for our understanding of the psychology of legal obligation; here I suggest that the nexus might cause trouble for Raz’s own well-known exclusionary reasons account of legal obligation.

Paula Gaido, “The Scope of the Participant’s Perspective in Joseph Raz’s Theory of Law”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 2 (July 2012) pp. 347-357.

This article explores Joseph Raz’s methodological thesis about the conceptual priority of the participants of legal practices in the understanding of law. In particular, it contends that given the participant’s conceptual priority in the understanding of law we must conclude that legitimate authority is a necessary property of law. It argues that to maintain that a claim to legitimate authority is the necessary property of law, and not legitimate authority itself, as Raz does, we must abandon the participant’s perspective. It defends that Raz introduces his thesis of the claim to legitimate authority of law without further justification, and deprives it from support from a methodological point of view.

Noam Gur, “Normative Weighing and Legal Guidance of Conduct”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 2 (July 2012) pp. 359-391.

Contemporary legal philosophers commonly understand the normative force of law in terms of practical reason. They sharply disagree, however, on how exactly it translates into practical reason. Notably, some have argued that the directives of an authority that meets certain prerequisites of legitimacy generate reasons for action that exclude some otherwise applicable reasons, while others have insisted that such directives can only give rise to reasons that compete with opposing ones in terms of their weight (an approach I will call the weighing model). Does the weighing model provide a normative framework within which law could adequately facilitate correct decision-making? At first glance, the answer appears to be ‘yes’: there seems to be nothing about law-following values—such as coordination reasons, the desirability of social order, deferential expertise, etc.—which prevents them from being factored into our decision-making in terms of normative weight that tips the balance in favor of compliance with law inasmuch as it is worthwhile to comply with it. This impression, however, turns out to be incorrect when, drawing on a body of empirical work in psychology, I observe that many of the practical difficulties law typically addresses are difficulties that have part of their root in biases to which we are systematically susceptible in the settings of our daily activity. I argue that the frequent presence of those biases in contexts of activity which law regulates, and the pivotal role law has in counteracting them, emphatically militate against the weighing model and call for its rejection.

Ryan Robb, Critical Notice: “Moral Theory, Autonomy, and Collective Rights: A Response to Dwight Newman”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 2 (July 2012) pp. 483-503.

This Critical Notice of Community and Collective Rights: A Theoretical Framework for Rights Held by Groups, has two parts. In the first part, I provide a detailed summary of the considerations Dwight Newman maintains will determine whether a particular group is a legitimate rights-holding collectivity. In the second part, I argue that his understanding of autonomy as one of a set of several significant and competing morally relevant values, combined with his reliance on that understanding of autonomy to describe and defend his theoretical framework, suggest it is not an acceptable or useful framework for Kantians.

Tamar Meisels, Discussion: “Preemptive Strikes – Israel and Iran”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 2 (July 2012) pp. 447-463.

This essay looks at the contemporary just war theory literature on preventive war that has emerged largely in reaction to the US invasion of Iraq. Recent sanctions on Iran and the debate over its nuclear program now suggest the usefulness of a forward looking perspective on preventive strikes, rather than the retroactive analyses offered thus far primarily with reference to Iraq. With Iran closely in mind, I address the various arguments for and against preventive war indicating throughout that the various principled objections to early military action can be overcome in this case. Many of the crucial concrete questions regarding costs and benefits need to be settled in practice, rather than in the realm of political theory. Ultimately, the discussion suggests that Iran is a legitimate candidate for early military action aimed to prevent it from developing nuclear weapons. I argue that in principle, subject to credible intelligence information and requirements of proportionality, a unilateral Israeli strike against Iran will be justifiable, both morally and legally, as self-defense.

E. Voyiakis, “Contract Law and Reasons of Social Justice”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 2 (July 2012) pp. 393-416.

The view that contract law should do social justice deserves closer and more charitable attention than it has been given in theoretical debates. In particular, resistance to that view is often due to misunderstandings about the nature of social justice and the interests it protects; the kind of impact that contract law can make on the social structure and the demands that this would involve for individual transacting agents, and; the relation between structure-sensitive and structure-insensitive principles for the enforcement of voluntary transactions. Once these misunderstandings are dealt with, taking contract law to aim for social justice seems a no less plausible or attractive a view than most other grand normative theories of contract.

Samuel G. Walker,Lawful Murder: Unnecessary Killing in the Law of War”, Canadian Journal of Law and Jurisprudence, Vol. XXV, No. 2 (July 2012) pp. 417-446.

The international law of war limits the use of violence, largely through protections afforded to civilians. However, the law provides no principled limit on the taking of combatant life — soldiers may be killed even if to do so would contribute absolutely no military advantage. This permissive approach to unnecessary killing has deep historical roots in the philosophy of the law of war. Three justifications for unnecessary killing have been advanced: a robust notion of sovereignty that views the soldier as a disposable molecule of a greater being; the idea that soldiers are ‘guilty’ and deserve what befalls them in war; and a pragmatic approach holding that limits on gratuitous violence are both impossible to implement in practice as well as harmful. None of these arguments are persuasive in light of the contemporary consensus that there is a human right to life that ought to be respected at all times, even in war. A rule of "combatant proportionality" should therefore be formally incorporated into the law of war.