2015 July

Sina Akbari, “Against the Reductionism of an Economic Analysis of Contract Law”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 2 (July 2015) pp. 245-264.

Contemporary economic analysts of the law argue that certain legal institutions, such as contract law, ought to be designed to promote wealth maximization, while different legal institutions ought to seek to achieve non-wealth maximizing aims, such as distributive justice. In order to preserve the normative claim that the sole aim of any single legal institution should be the promotion of wealth maximization, economists rely on the “specialization principle”: each legal institution must be organized around a single normative criterion, partitioned from and without regard to the normative aims of other legal institutions. I argue that this idea of a strict normative division of labour between institutions is problematic. On any instrumentalist view, the normative justification of the ends of a particular legal institution cannot ignore the normative aims of the legal system of which it is a part. I develop this argument by critically examining the economic analyst’s claim that commercial contract law should be limited to helping firms maximize profit.

Keywords: contract law, economic analysis of law, instrumentalism, specialization principle

Hugo Cyr, “Functional and Existential Authorities”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 2 (July 2015) pp. 265-288.

This article explores how political authority is conceived and how we attempt to make sense of its legitimacy in a world that we imagine made of relatively equal and autonomous individuals who are members of multiple collective agencies. One such way is the Razian “Service Conception” of authority. This conception suffers from a variety of internal weaknesses and shortcomings. More importantly, while the Service Conception may be promoted as a normatively appealing theory of authority, it does not appear to fit the description of the central case of practical authority or, at least, it does not exhaust the list of central cases. Indeed, political authorities are often justified by self-assertive reasons that bind the subject to the authority claimant. Such cases are what we call “existential authorities”, as opposed to “functional authorities” associated with the Service Conception. The interplay between those types of authorities and their respective background assumptions forces us to take seriously the perceptions that subjects have of the nature of authority claimants as such perceptions will determine the attitudes of the subjects towards the directives issued by the authority claimants. We must therefore be able to distinguish between institutions meant to embody collective identities – “existential communities” – from institutions perceived as mere “functional regimes”. Indeed, the nature of the standards used to evaluate the actions and powers of each will differ accordingly.

Keywords: Raz, service conception, existential communities, functional authority, authority

Eoin Daly, “Freedom as Non-Domination in the Jurisprudence of Constitutional Rights”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 2 (July 2015) pp. 289-316.

In recent decades, neo-republican philosophers have developed a theory of freedom as non-domination, which, they claim, is conceptually and analytically distinct from the “liberal” concept of freedom as non-interference. However, neo-republicans have intervened in constitutional debate almost exclusively in relation to structural issues of institutional competence, and have made little impact on the analytical jurisprudence of constitutional rights. While judicial review seems ill equipped to respond to the distributive dimensions of republican freedom, republicans like Richard Bellamy have argued that the whole edifice of countermajoritarian, strong-form judicial review is itself an affront to freedom as non-domination properly understood. Republican freedom, in this lens, is defined structurally, procedurally and politically rather than in relation to a definite set, concept or theory of rights that is put outside and beyond politics. And partly for this reason, there has been little commentary concerning how the theory of freedom as non-domination might inform constitutional-rights doctrine. This article will argue, first, that the neo-republican view can usefully inform constitutional-rights doctrine notwithstanding republican reservations concerning judicial power. Second, it will propose a number of specific ways in which the jurisprudence of constitutional rights might account for the central concerns of the republican idea.

Keywords: Richard Bellamy, republicanism, strong judicial review, constitutional rights, liberalism, freedom, non-domination, Philip Pettit

Ronit Levine-Schnur & Avigail Ferdman, “On the Just Distribution of Land Use Rights”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 2 (July 2015) pp. 317-342.

The current system of decision making in land use law is not transparent and is open to biased or personal corruption. This gives rise to the possibility of unequal treatment under the law, especially given the judicial reluctance to interfere in reviewing the decision making process. Our solution is an auction mechanism to overcome these problems, under which the local government would be bound to award land use rights to the highest bidder and where offers will be examined in light of their contribution to the society’s best interest. Such mechanism has possible benefits in terms of transparency and insurance against favouritism or arbitrariness. The auction mechanism proposes the use of a simple metric (i.e., revealed private value of the competing claims) by which the local government can give a transparent, non-arbitrary, observable, and verifiable response. This mechanism, so we argue, treats each and every person’s choices with equal concern and respect. In this sense, the auction is procedurally fair by being conducted between potential bargainers that enjoy equality in background conditions and when means for offsetting brute bad lack are utilized.

Keywords: land use rights, auction, Dworkin

Oren Perez, “Fuzzy Law: A Theory of Quasi-Legal Systems”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 2 (July 2015) pp. 343-370.

Our lives are permeated by various forms of legality, produced by multiple bodies - both statist and non-statist. The pervasive presence of non-statist, soft law schemes in the contemporary society poses a challenge for legal theory: how to conceptualize legal-like structures that evolve outside the boundaries of the state and are able nonetheless to exert significant normative power? Understanding this phenomenon requires, I argue, a new model of law that will not be bounded by the binary (either/or) structure of traditional jurisprudence and sociology of law. I respond to this challenge by developing a degree-theoretic model of legal-normativity which I term “fuzzy law”. This model offers a new conceptual vocabulary for thinking about soft law as a social phenomenon. The model draws on three main theoretical sources: the theory of complementary pairs, fuzzy-set theory, and defeasible reasoning. I examine the jurisprudential and sociological implications of the fuzzy law model through a discussion of the dialectics of reasoning with fuzzy rules and an exploration of the coordination dynamics of quasi-legal systems.

Keywords: fuzzy-set theory, fuzzy law, defeasible reasoning, complementary pairs, quasi-legal systems

Mark R. Reiff, “No Such Thing as Accident: Rethinking the Relation Between Causal and Moral Responsibility”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 2 (July 2015) pp. 371-397.

According to the conventional view, causal and moral responsibility have a strict hierarchical relationship. Determining causal responsibility comes first; then we sort through the factors to which we have assigned causal responsibility and determine which, if any, should be assigned moral responsibility too. Moral inquiry accordingly stands not only apart but also above causal inquiry. But I am going to argue that this way of looking at causal and moral responsibility is a mistake. Rather than being separate and independent inquires with different purposes and concerns, I am going to argue that finding causal responsibility actually entails finding moral responsibility even when there is no evidence of what we would call traditional fault. Indeed, I am going to argue we cannot find someone causally responsible without finding them morally responsible too.

Keywords: actual cause, causation, intent, legal cause, legal liability, negligence, proximate cause, scienter, unreasonable conduct

Ram Rivlin, “Blackmail, Subjectivity and Culpability”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 2 (July 2015) pp. 399-424.

The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissibly – is to deny its premise, namely the permissibility of the threatened act. This view holds that upon reflection all cases of wrongful blackmail actually involve a threat to act impermissibly. Therefore, blackmail is coercive, and should be criminalized as a regular case of extortion. This conclusion may rely on a subjectivist notion of permissibility, which sees intentions as relevant to permissibility, given that the blackmailer intends to harm the victim via the threatened act. Yet the view that intentions are relevant to permissibility evaluations is strongly criticized in contemporary moral theory. Nevertheless, this paper attempts to show that under a full understanding of the functions of coercion claims and the wrong in extortion, harmful intentions can be relevant to criminalization even if they are not directly relevant to permissibility.

Keywords: blackmail, extortion, coercion, harmful intentions, criminalization

Kevin Walton, “Is Democracy Sufficient for Political Obligation?”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 2 (July 2015) pp. 425-442.

This paper examines the apparently widespread belief that the democratic pedigree of a state implies a moral obligation to obey its laws. The analysis focuses on the work of Ronald Dworkin, who is, perhaps surprisingly, alone among theorists of democracy in claiming that those whom the law addresses are morally bound to obey it whenever it is democratic. From Dworkin’s expansive conception of democracy, political obligation follows. But democracy should not be construed so widely. Rather, it ought to be conceived more narrowly, such that, as other theorists concede, it cannot be more than part of a case for a moral obligation to obey the law. Hence, belief in the sufficiency of democracy for political obligation, notwithstanding its ostensible popularity, has yet to be justified.

Keywords: moral obligation to obey law, Dworkin on democracy, political obligation

Miodrag A. Jovanović, “Discussion: Dworkin on International Law: Not Much of a Legacy?”, Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 2 (July 2015) pp. 443-460.

Dworkin’s proposal for a new philosophy of international law shares all the important features of his latest stage of philosophizing about domestic law. As a derivative theory, however, it faces not only the same problems as the original position, but some new ones as well. This paper focuses on three problems. First, already Dworkin’s exposition of the international legal regime of human rights, which is briefly analyzed in the paper, suffers from the ill-treatment of sovereignty, insofar as it is equated with the outdated Westphalian conception. Furthermore, Dworkin’s attempt to ground human rights in value monism opens a number of intricate philosophical and practical issues. At the general plane of international law, this theoretical proposal becomes even more vulnerable. Second, Dworkin’s moral reading of international law makes a revolutionary discontinuity with the developed institutional practices and standards of the international community, which is within his own theory considered as one of the key features of legality. Finally, Dworkin’s proposal is profoundly futuristic and utopian. It is no more about the claim that ‘law as it is’ needs to be assessed in light of ‘law as it ought to be’, according to some inherent standards of political morality of a given political community, but in light of some law that might develop in the distant future. The paper concludes by noticing that if Dworkin’s ‘interpretivist’ theory is to be employed in the area of international law, it would have to be along some different lines than the ones proposed by Dworkin himself.

Keywords: Dworkin, international law, human rights

Andrew Halpin, Book Review of Margaret Martin’s Judging Positivism (2014), Canadian Journal of Law & Jurisprudence, vol. XXVIII, no. 2 (July 2015) pp. 461-467.

This review of Margaret Martin’s book, Judging Positivism, considers the three levels on which her book operates as an intricate study of the principal works of Joseph Raz; a challenging critique of legal positivism, and a thoughtful reflection on the potential of legal theory. The main focus of the review is Martin’s argument against Raz’s exclusive positivism, which proceeds by identifying a change in the premises or theses of Raz’s theory of law over the course of his different writings, and then making an accusation of inconsistency and incoherence against Raz. The review examines the nature of Martin’s accusation and suggests some possible responses to it. It also comments on the relationship between Martin’s assessment of Raz and her wider rejection of legal positivism, and on her related concerns for the potential of legal theory.

Keywords: Margaret Martin, Joseph Raz, Judging Positivism