2013 January

 Abstracts from CJLJ Volume XXVI, Number 1 (January, 2013)

The Honourable Ian Binnie, “Judging the Judges: ‘May They Boldly Go Where Ivan Rand Went Before’, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 5-22. The Coxford Lecture 2012.

Justice Ivan Rand was perhaps the greatest exponent of the rule of law in the history of the Supreme Court of Canada. He was a great judge. He scorned as impractical the admonition that judges should “apply the law, not make it”. His judgements frequently broke new ground, but it should be understood that in “making the law” great judges like Ivan Rand respond to fundamental considerations of order and fairness and not to personal whim. It is sometimes necessary for judges to return to first principles to provide legislators with a framework within which to operate in unforeseen situations. The word “activism” is usually used by critics to imply that a judge is pushing the envelope beyond the proper boundaries of the law, but properly understood the term may equally indicate a judicial tightening of the boundaries to deny the bench a power seemingly conferred by the Constitution or legislation. Restraint, as much as expansion, is governed by the judges’ recognition of the limits of their institutional competence and their appreciation of their role in the constitutional scheme.

In the absence of statutory authority the courts have not yet addressed issues related to globalization and human rights with the sort of boldness and creativity we associate with great judges like Ivan Rand. Order and fairness have acquired a global dimension. Globalization offers a different kind of challenge, but is no less demanding of the rule of law. In the case of creating some form or forum of relief for Third World victims of globalization, we seem to have used restraint as an excuse for inertia. Judges need to be practical, but their greatness will rest on their capacity to see not only what the law is but what it should become. There is a time for boldness and a time for restraint and judges should be judged on their ability to tell the difference.


Nicholas Blomley, “Performing Property: Making The World”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 23-48.

Scholars under the ‘Progressive Property’ banner distinguish between dominant conceptions of property, and its underlying realities. The former, exemplified by Singer’s ‘ownership model’, is said to misdescribe extant forms of ownership and misrepresent our actual moral commitments in worrisome ways. Put simply, it is argued that our representations of property’s reality are incorrect, and that these incorrect representations lead us to make bad choices. Better understandings of the reality of property should lead to better representations, and thus improved outcomes.

However, the relationship between ‘reality’ and ‘representation’ is not made fully explicit. This essay seeks to supplement progressive property through a more careful exploration of the relationship between the two, by drawing from performativity theory. From this perspective, accounts of property are in an important sense not descriptions of an external reality, but help bring reality into being.  The ownership model is not so much constative (descriptive) as performative. Such an account, I suggest, directs us to several important insights. Rather than asking what property is or is not, the task becomes that of trying to describe how property is performed (or not) into being. But concepts do not stand alone: rather, other ideas, people, things and other resources have to be enrolled in complicated (and often fragile) combinations. Rather than criticizing the ownership model for its mismatch with reality, we might consider that models do not have to be ‘true’, just successful.  As such, it may be more useful for progressive scholars of property to redirect their energy into enquiring how it is that certain conceptions of property are successful, and others not. To do so also requires that we think about the role of scholars in performing property, for good or bad, into being.


Michael Da Silva, “Quantifying Desert Prior to the Rightful Condition: Towards a Theoretical Understanding of the Provocation Defence”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 49-82.

The provocation defence, which militates against full legal responsibility for unjustified killings in several common law jurisdictions, has been the subject of considerable controversy during recent decades. Much of the criticism focused on substantive legal issues. This article examines the philosophical bases for the defence in hopes of establishing a theoretical groundwork for future debate on the legal defence. The defence originated on desert bases and continues to be understood on those grounds. This article thus examines it in light of two dominant desert-based theories of punishment originating with Aristotle and Immanuel Kant respectively.

Ultimately, the best theory of punishment and the best theory of defence are provided by different approaches. The more plausible and robust Kantian theory of punishment can nonetheless be supplemented by the Aristotelean theory of defence as a continent sociological morality to create a more nuanced account of defence that better explains both excuses in general and the provocation defence in particular. From a substantive legal perspective, this position justifies continued use of the provocation defence in our imperfect legal order, but the partial excuse of provocation will not exist in the ideal legal order. An ideal political order will sufficiently control its citizens’ emotions such that the defence cannot be justified. A partial excuse of provocation is only necessary in the interim.


Sari Graben, “Rationalizing Risks to Cultural Loss in Resource Development”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 83-114.

I argue in this article for the use of a dialogical approach to cost-benefit analysis, which is identified here as a process that rationalizes cross-cultural judging. Weighing in on the Kahan-Sunstein debate about the effect of culture on risk perception, I use economic valuations of Indigenous sacred sites to demonstrate how cost-benefit analysis can misrepresent loss. I identify the way cost-benefit analysis operationalizes preferences that have little relevance for perceptions of substitutability, property, or harm related to sacred sites held by some Indigenous peoples. In doing so, I problematize the use of cost-benefit analysis as a method for ascertaining loss and contextualize risk in the social context in which it is perceived. In order to further procedural justice, I recommend valuation of loss that allows for epistemological disparities in determining rationality. This dialogical approach expects to maximize the accuracy of cost benefit analysis so as to create greater accountability for loss valuation and destabilize formulations of culturally determined preferences as bounded but corrected by expert knowledge.


Peter Jaffey, “The Unjust Enrichment Fallacy and Private Law”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 115-136.

The theory of unjust enrichment – the theory supporting the recognition of a doctrinal category of unjust enrichment – has been accepted across much of the common law world. The recognition of a doctrinal category is not just a matter of presentation. It has a role in legal reasoning that reflects the fact that it is based on a particular principle or distinct justification for a claim. The theory of unjust enrichment is misguided because there is no principle or distinct justification common to the various claims that have been gathered together to form the new category. The theory has appeared attractive, it would seem, not because a plausible version of the principle of unjust enrichment has been identified, but because it has appeared impossible to explain these various claims in any other way, in particular as claims in property or contract. This difficulty has arisen, it is suggested, largely as a result of a mistaken analysis of primary and remedial rights. The article explores these issues with respect to contract law and property law.


Alice Woolley, “The Problem of Disagreement in Legal Ethics Theory”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 181-218.

Legal ethics theories give competing and exclusive accounts of the ethical foundations of the lawyer’s role. They disagree about the relationship between morality and law, about the content of the lawyer’s central ethical duties and about how specific ethical problems should be resolved. Each theoretical account asserts that the others are mistaken in some fundamental way. Yet all legal ethics theories are theories of action; legal ethics theorists do not seek merely to enlighten, they also seek to influence how lawyers and the legal profession respond to ethical issues. This creates a problem of disagreement: the problem created by the divergent but exclusive claims made by different ethical theories at the point when those theories are to be translated into action.  This paper considers how, given the problem of disagreement, legal ethics theories can have any impact on individual ethical decision-making or public policy. Specifically, it considers how theories can have any impact given a) that they fundamentally disagree; and b) what experimental psychology tells us about how people make ethical decisions in fact, and the nature of lawyer regulation.


Richard Vernon, Discussion: “Crime Against Humanity: A Defence of the ‘Subsidiarity’ View”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 229-242.

“Subsidiarity” views of crime against humanity propose that state crime is at the core of the idea, thus necessitating a further level of authority. That proposal can be given a strong moral justification in terms of the enormous risks that arise from a state’s authority and territorial control.  Discussions of crime against humanity by Larry May and Norman Geras, however, offer different views of the idea, May proposing that it be seen as group-based crime (in one or both of two senses), Geras proposing that it be seen as a serious violation of human rights. Those views are questioned on the basis of their fit with either the nature of the crimes involved or the moral basis of their condemnation, and the subsidiarity view is restated.


Geoff Callaghan, Discussion: “Defective, But Still Law: A Critique of Mark Murphy’s Weak Natural Law Jurisprudence”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 219-228.

In a number of places, Mark Murphy has defended what he calls a ‘weak version’ of the natural law thesis. His claim is that, “law not backed by decisive reasons for action is still law, but defective precisely as law”. In this paper, I attempt to provide an answer on behalf of Murphy to the question: when law is defective, what is it about law that continues to make it ‘law’ despite its being defective? Three separate, but related, strategies are examined; all three – for separate, but related, reasons – are shown to fail. The conclusion drawn is that if Murphy is unable to provide a sufficient answer to the central question of the paper, the viability of his weak natural law theory is thrown into serious question.


Zoë Sinel, “Concerns about Corrective Justice”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 137-156.

According to the principle of corrective justice, one who causes a wrongful loss or receives a wrongful gain is obligated to make good that loss or restore that gain. The guiding principle of the remedies of private law (the law of torts, contract, and unjust enrichment) is to put the aggrieved party in the position s/he would have been in had the complained of conduct not occurred. The connection between corrective justice and private law’s remedies thus appears analytic. My article challenges this orthodoxy. I argue that, on the one hand, if corrective justice is treated narrowly, as an exclusively remedial principle, it severs the connection between right and remedy that lies at the heart of the corrective justice theories of private law. On the other, if it is interpreted broadly to encompass as well the parties’ original (pre-wrong or pre-unjust enrichment) relationship, it becomes otiose.


Stephen A. Smith, “A Duty of Make Restitution”, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 157-180.

The rules governing impaired transfers are widely thought to lie at the core of unjust enrichment law. This essay defends two propositions about these rules. First, there is no duty, in the common law, to make restitution of benefits obtained as the result of an impaired transfer (for example, a transfer made by mistake or as a result of fraud or compulsion). Rather than imposing duties to make restitution, or indeed duties of any kind, the rules governing impaired transfers impose only liabilities, in particular liabilities to judicial rulings. The only legal consequence of a mistaken payment is that the recipient is liable to be judicially ordered to repay a sum of money equal to the payment. Second, it matters that the law governing impaired transfers imposes only liabilities, and not duties, because, inter alia, explaining and justifying liabilities is different from explaining and justifying duties. In particular, certain well-known objections to attempts to explain impaired transfer law can be avoided once it is recognized that this law is concerned exclusively with liabilities. In summary, then, this essay argues that the distinction between duty-imposing and liability-imposing rules has important implications for understanding the foundations of the law governing impaired transfers.


Mark Thornton, Book Review: Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Law, edited by François Tanguay-Renaud & James Stribopoulos, Canadian Journal of Law and Jurisprudence, vol. xxvi, no. 1 (January 2013) pp. 243-249.

Professor John Gardner says on the jacket, “these essays – without exception insightful and penetrating – set a high standard for the rest of us to aspire to.” This collection of 15 essays by 16 Canadian authors originated in a conference at Osgoode Hall Law School, York University. The majority of contributors are based in southern Ontario (Osgoode or York 5, Western 3, Toronto 2, and Queen’s 1). Two are from western Canada (Alberta, Saskatchewan), two from the UK (Manchester, Oxford) and one from the US (Cornell). The essays are arranged in three parts, the first being subdivided according to subject matter. It is a good thing for criminal law theorists to interest themselves in all facets of the subject. On the other hand, some will be deterred by the presence of essays on topics outside their specialty. It must be said that it is a well-produced book, even containing a subject index. I hope this book has wide circulation.