Vincent Chiao, “Equality, Assurance and Criminalization”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 5-26.
The criminal law has at least two goals: to provide a degree of protection to a variety of individual and collective interests, and to communicate to those to whom it applies that those interests are protected. The question I consider is whether the criminal law should be used to advance the second goal independently of its use in advancing the first. Drawing on what I refer to as non-comparative egalitarianism, I argue that it should not. After developing a general argument for this claim, I turn to considering its implications for the criminalization of hate speech, focusing specifically on a line of argument found both in the Supreme Court of Canada’s s.2 jurisprudence as well as Jeremy Waldron’s recent book, The Harm in Hate Speech. I also briefly consider a structurally similar, but broader argument – recently defended by Alon Harel – which suggests that there is a constitutional duty to criminalize conduct that would, if engaged in, interfere with a person’s dominion over how her life goes, regardless of whether criminalization would or would not drive down the actual incidence of the targeted conduct. I claim that egalitarians should not recognize any such duty.
Douglas Christie, “‘Obligations’, Decolonization and Indigenous Rights to Governance”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 259-282.
Many contemporary Indigenous communities in Canada assert an ability to make fundamental authoritative decisions about what is acceptable use of their territories. I focus on the question of legal obligations that might befall the Crown in its relationships with these communities and their claims. I argue that any such obligations must be seen as culturally and contextually specific, not only in the sense that particular Crown obligations take on content and form within the context of the culture within which the Canadian legal system has emerged but also in the sense that this non-Indigenous culture and history generate the very meaning of the notion of ‘obligation’ here at play. This culturally determined meaning functions to make it extremely difficult to make sense of the notion the Crown actually has legal obligations in relation to Indigenous assertions of authority over territories. This suggests decolonization in this context should be focused on discursive colonization and its undoing. Along those lines I offer a sketch of what ‘legal obligation’ might mean in an Indigenous cultural-historical setting. Within this way of understanding the situation, addressing questions of Crown obligations would begin with consideration of Indigenous systems of meaning-generation. Analysis would focus on working out what it means within such normative worlds to determine a party has a legal obligation, and would then turn to what this has to say about legal obligations that might be understood to fall on the Crown.
I argue that while the Crown will almost certainly not respond to claims it has legal obligations within what it takes to be separate legal systems, describing the landscape this way paints a truer picture of the world as it presents itself. The landscape has been, and continues to be, one of distinct meaning-generating peoples, each determining what it understands such concepts as ‘legal obligations’ to mean and entail. The colonial agenda has been for many generations to deny the existence of Indigenous systems, to have Indigenous communities come to think of ‘legal obligations’ in ways colonial authorities determine. Decolonization – in this form – requires a backing out of these ways of thinking. This article clears away forms of thinking that obstruct our view, giving us all an opportunity to perceive the complex landscape we in fact inhabit.
Michael Coyle, “Negotiating Indigenous Peoples’ Exit From Colonialism: The Case for an Integrative Approach”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 283-303.
New institutions of indigenous governance will be the product of negotiations, negotiations that will take place against a background of colonial structures and relationships. Having examined the challenges of structuring a negotiation process that takes due account of pre-existing cultural and power differences between the parties, the author analyzes the significance of their choice of negotiation strategy on the negotiation process and outcome. In particular, this paper reflects on the promise and limitations of the parties’ adopting interest-based, or “integrative”, negotiation strategies and the potential for fruitful entanglements between those strategies and indigenous diplomatic traditions.
Mariano Croce, “A Practice Theory of Legal Pluralism: Hart’s (inadvertent) defence of the indistinctiveness of law”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 27-48.
This article claims that H.L.A. Hart’s theory may be regarded as a sound vindication of what today is known as legal pluralism. In short, Hart’s practice theory of norms attests to the fact that state law is only one system of rules among many others, and that it does not exhibit any distinctive feature that may distinguish it from those others. I will depict this as an inadvertent but extremely valuable outcome of the practice theory. Indeed, Hart’s battle against the claimed connection between law and coercion and his firm conviction that legal normativity should be understood in light of the broader phenomenon of social normativity make his practice theory of rules a sound and fertile vindication of legal pluralism as a theoretical approach to legal phenomena. As a result, even though Hart was a legal centralist and a legal monist, his theorizing ends up dismantling the identity between the general phenomenon of law and the law of the state. I will proceed as follows: I will first look at the contentious issue of the relation between law and coercion by examining how two prominent legal scholars, Hans Kelsen and E. Adamson Hoebel, came to the conclusion that the distinguishing mark of law is coercion (sec. 1). This analysis will be instrumental in demonstrating that Hart failed to grasp the relevance and salience of the relation between law and coercion, and in particular, the peculiar role Kelsen and Hoebel attributed to the latter (sec. 2). I will argue that Hart’s discomfort with the emphasis on the notion of coercion was due not to the nature of this notion as such, but to the distortive effect its overemphasis had exerted on positivist legal theorizing. I will claim that Hart’s most insidious adversaries were two (at the time prominent) philosophical and jurisprudential streams, namely, behaviourism and emotivism (sec. 3). I will go on to say that Hart’s arguments against these adversaries are well addressed but inadequate, and will try to reinforce them by drawing on a Wittgensteinian view of practices (sec. 4). I will conclude by showing that the consistent outcome of a “reinforced” practice theory is a highly pluralist view of law (sec. 5).
Timothy Endicott, “Arbitrariness”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 49-72.
In order to identify the form of arbitrariness that is relevant to the rule of law, I discuss a Supreme Court of India decision and a Supreme Court of Canada decision in which judges held that other public authorities had acted arbitrarily. I also discuss Jeremy Bentham’s work on the rule of law, and his notion that the interpretive power of judges is itself an arbitrary power. I argue that the interpretive role of judges is not necessarily hostile to the rule of law, but that there is a standing tension between that interpretive role, and the rule of law. In the two decisions under discussion, the Canadian and Indian judges used their doctrines of arbitrariness to reallocate power to themselves, without any resulting enhancement in the rule of law.
Doris Farget, “Words that Fly Back and Forth Between Two Mutually Oblivious Worlds: What is the Legal Meaning of an “Indigenous Way of Life”?”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 239-258.
This article highlights the trajectory of indigenous peoples’ territorial claims when they appear before certain international and regional authorities that protect human rights. It demonstrates that the right of indigenous peoples to have their ways of life respected is a misguided and hollow response to their claims, at best approximate and ambiguous. However, the right to communal property of ancestral lands and essential resources entrenched by international courts, even if it directly echoes back to indigenous claims, is formulated in a specific language and vocabulary and according to categories defined by the dominant society. As a consequence, rights derived from this process are confined to an intrastate pluralism, since they are shaped by sources of law defined by member states that have signed regional charters and conventions protecting human rights. In the absence of a reciprocal intercultural dialogue that would facilitate a mutual circulation of ideas in the language and based on the beliefs held by indigenous and non-indigenous peoples – the only real tool for effective decolonization – the initial hypothesis, that the communal right to ownership facilitates the decolonization process, is partially invalidated.
Victoria Freeman, “In Defence of Reconciliation”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 213-224.
Indigenous scholars and others have characterized Canadian discourses of reconciliation as supporting a top-down, government-defined and controlled agenda, which is at best ineffective and misleading and at worst fraudulent and recolonizing. Some have argued that reconciliation should only occur after the Indian Act has been abolished, reparations made, land and resources returned, and a political and economic nation-to-nation relationship restored. The author agrees that it is essential to look critically at state and nationalistic discourses of reconciliation and that neither the federal government, the churches, nor non-Indigenous peoples generally can or should control the agenda. However, while reconciliation is not a sufficient condition for decolonization in Canada, Indigenous resurgence on its own will not achieve full decolonization either. If the psychic structures of colonialism persist, various forms of neocolonialism will be prevalent even after a nominal “nation-to-nation” relationship has been established, given the demographic imbalance and geographical proximity between Indigenous and non-Indigenous peoples. There will always be a need for relationship and negotiation.
In fact, decolonization and reconciliation may be understood as complementary and concurrent processes. The concept of reconciliation underlines the emotional, psychological and human changes that are as necessary as political and economic reformulations for decolonization and that are not easily addressed by other means. Rather than a top-down government-initiated campaign focused on assimilation into the status quo or a Eurocentric Christian doctrine focused on forgiveness, reconciliation can be a transformative process of building the relationships, alliances and social understandings necessary to support the systemic changes that true decolonization entails. Indigenous and other cultural paradigms for resolving conflicts, making restitution and healing relationships, such as the Sto:lo concept of lummi or “facing yourself,” can help restore interconnectedness and reciprocity at all levels, both within Indigenous communities and between Indigenous and non-Indigenous peoples and the land. We also should not overestimate the government’s power to control even those reconciliation processes it does initiate, let alone those that arise autonomously. Decolonization and reconciliation are processes underway on many fronts in Canada, and they can’t be controlled by anyone.
Mathieu Gagnon, “Contempt No More”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 197-212.
I have tried to show how criticism of aboriginal orthodoxy in discourse and measures taken by the current Conservative government and private commentators have set in motion a process of contempt, risking the harm associated with colonialism. Another critique of aboriginal orthodoxy, as presented by Jean-Jacques Simard, claims that First Nations are entitled to a certain level of self-government in defence of the rights of the abstract person: “it is first and foremost simply as human beings that all Amerindians possess the same rights as anyone else....” Yet this option ignores the history of First Nations’ relationships with French Canadians, English Canadians and the British. While appeal to the abstract person can protect people from a threat, it cannot eliminate that threat. It seems clear that contempt towards aboriginals is still present and that their emancipation without an honourable historical justification would also lead to the exacerbation of racism against aboriginals. To make mutual recognition possible between aboriginal and non-aboriginal, we need to have shared criteria for evaluation. It would seem, therefore, that if we were willing to integrate First Nations into the Canadian constitutional order by fully recognizing them, we must find a common project. If the Canadian government were to move more in the direction of an ecological vision of development rather than in the direction of a predatory capitalism based on infinite economic growth, I believe it would be easier to secure First Nations’ sense of belonging to Canada and to agree on models for joint territorial management. That awakening rings a bell we must hear: if seniority on the land and the role played by national groups in the founding of Canada are erased by a unitary, multicultural and monarchist vision of the country, the odds are high that Canadians of diverse origins will eventually suffer the blows of renewed authoritarianism and contempt.
Burke A. Hendrix, “Historical Injustice, Rawlsian Egalitarianism, and Political Contestation”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 73-98.
Jeremy Waldron has plausibly argued that historical injustices can be superseded by serious efforts to achieve justice in the present and future. This essay considers what it might mean to arrange things justly in the relevant way, focusing on the work of John Rawls as our best existing template for conceptualizing justice of this kind. The essay outlines ways in which a Rawlsian system of social justice seems unable to meet its own normative aspirations and unable to provide a model for overcoming historically constituted disadvantage. As the essay argues, the society described by Rawls is likely to remain divided by inherited class structures, given the motivational requirements of markets and the psychological effects of the division of labor, so that inheritors of historical injustice would remain disadvantaged even if Rawlsian principles were put into practice. The essay considers some speculative methods for overcoming these inequalities, and argues that the most promising approach in circumstances as we know them will draw on already-existing programs of compensation for historical expropriation. The essay also argues that Rawlsians should take seriously the application of the difference principle to the distribution of political authority alongside material resources, suggesting that we should give careful thought to how political structures can protect the interests of the least advantaged. The paper argues that, once again, existing mechanisms for Aboriginal self-governance are more appropriate as a system of forward-looking justice than they may otherwise appear. The essay argues in closing that political philosophy should give increased attention to the ethics of political action and to conflict among the disadvantaged in imperfect circumstances.
Liav Orgad, “Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 99-122.
The Article examines the wisdom of loyalty oaths as a legal institution in contemporary liberal democracies. First, using comparative analysis the Article highlights the growing global interest in loyalty oaths. Second, based upon historical evidence the Article explores the functions of loyalty oaths and assesses their role. Third, through using legal analysis the Article challenges the validity of loyalty oaths and identifies three fundamental problems related to their content and form: the rule of law, freedom of conscience, and equality.The Article reveals liberal concerns associated with the added value of the duty of “loyalty to the law” (allegiance), as distinct from the duty to “obey the law” (obedience). It presents an ongoing tension between loyalty and liberalism and argues that the more loyalty liberal democracies demand, the less liberal they become. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests that liberal states should abandon them as a legal institution.
Nahshon Perez, “Libertarianism, Rectification and Property Rights: A Re-evaluation”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp.123-144.
A famous libertarian argument is that any allocation of property is just, if it is the result of legitimate original acquisitions and legitimate transfers (‘justice in holdings’). However current ownership of property rarely follows ‘justice in holdings’. This creates a dilemma for libertarianism. If libertarian principles point to protecting current holdings, the result is a violation of ‘justice in holdings’. If the libertarian position requires that only holdings resulting from justice in holdings are legitimate, this will entail a policy of rectification and redistribution. Three major libertarians attempted to offer solutions to this problem: Nozick, Narveson and Epstein. The goal of this essay is to demonstrate that their solutions face two challenges. First, their solutions come into conflict with certain core libertarian principles. Second, their solutions are so different from one another as to be incompatible with each other. This demonstrates that libertarianism is struggling with a fundamental challenge, and a satisfying solution is yet to be suggested by libertarians.
Anthony R. Reeves, “The Binding Force of Nascent Norms of International Law”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 145-166.
Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. Nascent norms of international law (e.g., crystallizing norms of customary law) can be binding in much the same way as better-established doctrine. This point becomes perspicuous, I argue, once we get a clear sense of the plausible options for grounding the moral authority of international law generally.
This result is interesting in its own right, but it also reveals two other features of the character of state responsibility under international law. First, the distinction between legislation and compliance is less pronounced compared to domestic law. Consequently, the virtues of good governance will frequently be pertinent to determining the content of states’ obligations under international law. Second, normally more powerful and influential agents will be more strongly bound by international law than other subjects. This is an attractive result, addressing a concern that motivates many international lawyers to view international law as absolutely binding. An absolutist view international legal authority is unnecessary for showing that the most powerful and dangerous states are strongly bound by the terms of much existing law.
Toby Rollo, “Mandates of the State: Canadian Sovereignty, Democracy, and Indigenous Claims”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 225-238.
Indigenous peoples encounter restrictions on their modes of reasoning and account-giving within democratic sites of negotiation and deliberation. Political theorists understand these restrictions as forms of exclusion related to what theorist Iris Young has called the ‘internal exclusion’ of subordinated perspectives and theorist James Bohman has referred to as the ‘asymmetrical inclusion’ of such perspectives. ‘Internal exclusion’ refers to ways in which actors are formally accepted into decision-making processes, only to find their perspectives disqualified due to informal but no less pervasive criteria of exclusion. ‘Asymmetrical inclusion’ refers to the undue burdens placed on marginalized peoples to persuade dominant communities. It is argued in light of these problems that more inclusive institutions as well as the cultivation of an ethos of receptivity will be necessary for genuine inclusion. I argue that this focus on enriching dialogue can mischaracterize the nature of disagreement between Indigenous and non-Indigenous peoples.
Disagreement does not only arise between opinions or discourses that can be articulated and judged, but also at a deeper level, between the background assumptions against which practices of articulation and judgment are understood. Territorial state sovereignty, I argue, is a background understanding that can render sites of democratic negotiation inhospitable to Indigenous claims. I conclude that when thinking through Indigenous equality and autonomy, theorists should be attuned to the sites and conditions of dialogue that might serve to reinscribe relations of domination and exclusion.
Francisco J. Urbina, “Is it Really That Easy? A Critique of Proportionality and ‘Balancing as Reasoning’”, Canadian Journal of Law and Jurisprudence, vol. xxvii, no. 1 (January 2014) pp. 167-192.
The proportionality test is the subject of much debate, both in academia and in the legal community. In a recent article, Kai Möller presents a powerful defence of proportionality in reply to objections made against it. The reply is premised on a distinct account of proportionality, which has become prominent in recent writings of proponents of this test, and which is different from other more traditional accounts. Here I aim to clarify this change in the understanding of proportionality, its importance for the proportionality debate, and to offer a critique of it. This version of proportionality would sacrifice many important features of the rule of law, and, crucially, it would offer no guidance to judges, thus diminishing the likelihood of judges arriving at a reasonable solution to the case and fulfilling important values at stake in legal adjudication.