2014 July

Thomas Adams, “Is there a Naturalistic Alternative? Realism, Replacement, and the Theory of Adjudication”, Canadian Journal of Law and Jurisprudence, July 2014. Vol. XXVII, No. 2, pp. 311-328.

This essay considers Brian Leiter’s arguments for ‘replacement naturalism’ in the domain of adjudication, his thesis being that we should reject as plausible the ‘normative theory of adjudication’ and replace it with a posteriori theory which best explains the causes of judicial decisions. My central claim is that his ‘naturalizing’ argument is incomplete in the following way: it is against a bad kind of philosophical theory and leaves scope for a better, non-naturalistic, account. Both Leiter’s original arguments for the position and his more recent suggestions in response to critics are considered.

Pritam Baruah, “Human Dignity in Adjudication: The Limits of Placeholding and Essential Contestability Accounts”, Canadian Journal of Law and Jurisprudence, July 2014. Vol. XXVII, No. 2, pp. 329-356.

Employing moral values as justifications in judicial decisions has been controversial. At present, there is increasing controversy over the application of human dignity. Contemporary debates on the role of dignity in law and adjudication are heavily influenced by Christopher McCrudden’s account of dignity as a placeholder, and much thinking on the contested nature of values is influenced by WB Gallie’s idea of Essentially Contested Concepts. In this paper I argue that both these accounts have limited explanatory and normative potential. McCrudden’s account is illuminating in terms of the role of dignity in the UDHR, but weak in terms of explaining why employing dignity in adjudication yields diverging conclusions, and why dignity should be understood to be a placeholder. His reliance on Gallie’s idea of Essentially Contested Concepts is also misplaced. Gallie’s views often serve as a philosophical basis for understanding the contested nature of values generally. I argue that his account is an external-descriptive one, which cannot explain why persistent disagreement ensues because of the peculiar nature of some concepts. Neither does it point out any property of essential contestability that is unique to some concepts. Thinking on how values such as dignity can figure as justifications for decisions, therefore, must explore other alternatives.

Stefano Bertea, “Law, Shared Activities, and Obligation”, Canadian Journal of Law and Jurisprudence, July 2014. Vol. XXVII, No. 2, pp. 357-382.

This paper offers a critical assessment of the way the influential “conception of law as a shared activity” explains the normative component of law in general and legal obligation in particular. I argue that the conception provides a bipartite account of legal obligation: we have full-blooded legal obligation, carrying genuine practical force, and legal obligation in a perspectival sense, the purpose of which is not to engage with us in practical reasoning, but simply to state what we ought to do if we should take the perspective of individuals subject to the jurisdiction of the legal system. This structural feature makes the whole account disjointed, giving it a lack of unity from which stem what I take to be its three main problems, namely, its limited scope, its failure to recognize the moral features of obligation when made to arise out of law as a shared activity, and its failure to illustrate the sense in which law is widely recognized to be a practical institution.

Richard Bronaugh, Book Review: Legal Philosophy in the Twentieth Century: The Common Law World by Gerald J. Postema, Canadian Journal of Law and Jurisprudence, July 2014. Vol. XXVII, No. 2, pp. 535-546.

This big book recounts the march of the giants of 20th century English language jurisprudence, one aiming to bring progress to history by means of a sustained philosophical inquiry over time. My task in this CJLJ Book Review is especially to show, by discussing but a small aspect of each chapter, how valuable Postema’s book is for a philosopher of law professionally. It is a story which for many well-practiced jurisprudes could spell, in a word, réanimation. That said: if someone early in the 22nd century writes a history of legal philosophy looking back on the 21st century, Gerald Postema’s critical history which looks back on 20th century will surely be counted as one of the major achievements of the 21st—our time. Legal Philosophy in the Twentieth Century: The Common Law World is a brilliant book and, for the rest of us incapable of achieving anything like this (and I mean the rest of us), it is simply breathtaking.

Kelly De Luca, Discussion: “Utopian Relations: A Literary Perspective on International Law and Justice”, Canadian Journal of Law and Jurisprudence, July 2014. Vol. XXVII, No. 2, pp. 521-534.

This article posits an interpretation of Thomas More’s Utopia that focuses on the ways in which the nature of justice within a putatively ideal state is illuminated by references to international relations and the law of nations. Like Plato’s Republic, Utopia uses differences of scale to provide a lens through which to examine the operation in one context of a unitary concept that is more visible elsewhere. Justice is constructed as a single concept; thus, in the same way that Plato uses the justice of the kallipolis to provide insight into the justice of an individual, More uses the justice of the international community to provide a macroscopic perspective on justice as it exists within a sovereign state. Through discussions of trade, diplomacy, war and empire, Utopian understandings of international law and justice are revealed. The ideal organisation of the state is then characterised as one in which the resulting notions of justice, defined as the correct operation of laws that accord with natural law, are institutionalised.

John D. Haskell, “TRAIL-ing TWAIL: Arguments and Blind Spots in Third World Approaches to International Law”, Canadian Journal of Law and Jurisprudence, July 2014. Vol. XXVII, No. 2, pp. 383-414.

Beginning in the early 1990s, Third World Approaches to International Law scholarship (TWAIL) destabilized the mainstream narrative within international law that its doctrines were constituted by the historic search for order between formally equal state sovereigns. Instead, TWAIL scholars argued that the key constitutive dynamic of the discipline was the colonial experience, which continues to hold powerful sway over the legal architecture of global regulation whereby international law functions to perpetuate inequality and oppression. At the same time, however, TWAIL scholarship regularly posits international law as an emancipatory force that may be mobilized on behalf of former colonized populations and other marginalized social identities. The rise of post-Marxist scholarship, and more generally, the turn to interdisciplinary within the profession in recent years offers an opportunity to analyze this curious paradox and construct alternative modes of analysis for future TWAIL scholarship. In the first section, the paper draws upon a diverse array of TWAIL scholars over the last thirty years to map the argumentative logic within TWAIL literature. In the second section, the paper incorporates debates and insights from complimentary academic disciplines to illuminate some blind spots within TWAIL’s central arguments, and potentially ‘radicalize’ its future possibility of critique against the growing inequality within global governance.

Juan Iosa, “The Structure of the Conflict between Authority and Autonomy”, Canadian Journal of Law and Jurisprudence, July 2014. Vol. XXVII, No. 2, pp. 415-438.

I propose a set of distinctions that demarcate the structure that I consider suitable for the study and determination of the true value of the thesis of conceptual incompatibility between authority and autonomy. I begin with an analysis of the standard conception of authority, i.e., correlativism. I distinguish two versions: the epistemic and the voluntarist. Then I offer an analysis of two conceptions of moral autonomy: self-legislation and self-judgment. I conclude by remarking that we should distinguish two different versions of the conceptual incompatibility thesis: a) the conflict is unsolvable because moral autonomy requires that we always be the authors of the norms we have to obey, while the authority claims that its will is a source of such standards; and b) the conflict is unsolvable because moral autonomy requires that we always judge for ourselves what categorical reasons should guide our action and that we act accordingly. Authority, on the contrary intends that we rest on its judgment and give up acting on our own.

Liat Levanon, “Personhood, Equality, and a Possible Justification for Criminal Punishment”, Canadian Journal of Law and Jurisprudence, July 2014. Vol. XXVII, No. 2, pp. 473-500.

The article examines the relationship between a wrongdoer and his victim. Based on this examination, a justification for criminal punishment is proposed. It is argued that crime violates the a priori equality of constituent boundaries and of infinite human value between the wrongdoer and the victim. Criminal punishment re-equalizes respective boundaries and infinite human value. To develop this argument, the article observes how subject-subject boundaries are essential for the formation of separateness between subjects - separateness which is recognized and acknowledged by them in a cooperative process. The article further discusses the value of boundaries and the significance of their a priori equality in every human relationship. It then shows how crime, which is intrusion of the victim’s boundaries, works to demolish the victim’s self-recognizing separateness and hence to create inequality in the parties’ value. Last, the article demonstrates that only punishment can reset the relationship between the parties and re-equate their (still infinite) human value in the relationship.

J. E. Penner, “The (True) Nature of a Beneficiary’s Equitable Proprietary Interest Under a Trust”, Canadian Journal of Law and Jurisprudence, July 2014. Vol. XXVII, No. 2, pp. 473-500.

In recent years Chambers, Smith, McFarlane and Stevens have all sought to explain the nature of equitable proprietary rights by way of the concept of a ‘right to (or ‘in’, or ‘against’) a right’. In this paper I argue that there is a sense in which this conceptualisation of the beneficiary’s equitable proprietary under a trust is illuminating, but that, rather than a right to the trustee’s possessory interest in tangible property, the ‘rights’ of the trustee in which the beneficiary is interested are the trustee’s powers of title. I also contend, in a ‘fusionist’ spirit, that equitable property interests should not be treated as a particular ‘legal kind’, but rather that only interests under trusts should be regarded as a distinct sort of property interest within the numerus clausas. I go on to show how the proposed analysis best explains (1) our notion of ‘beneficial interest’ under a trust; (2) why a trustee is not a residual claimant to the trust assets; (3) the interest of a discretionary object of a trust; (4) the rules of and rationale for tracing; and (5) the ‘automatic’ resulting trust.

Jonathan Yovel, Essay: “From Status to Contract: The Unhappy Case of Johann Sebastian Bach”, Canadian Journal of Law and Jurisprudence, July 2014. Vol. XXVII, No. 2, pp. 501-520.

This essay, of course, is not about Bach’s musicology: it is about the partially overlapping stories of Bach and of contract. The overlap concerns the legal relations between the creative, entrepreneurial artist and the community he joined and resented; the tensions, ironies and contradictions—but also usefulness—of contract as a way to tell and reinterpret movement along the proverbial “status to contract” narrative of modernity; what Bach found there, and how this may serve as both a specific story of artistic genius in the shadow of law and a case study for the contractual organization of relations in a transformative period of early modernity.