August 2016

Alexander Brown, “The ‘Who?’ Question in the Hate Speech Debate: Part 1: Consistency, Practical, and Formal Approaches”, Canadian Journal of Law & Jurisprudence, August 2016. Vol. XXIX, No. 2, pp. 275-320.

This two-part article addresses the “Who?” question in the hate speech debate: namely, which characteristics, social identities or statuses should or should not be treated as protected characteristics within a body of hate speech laws? Using United Kingdom incitement to hatred laws as a focal point, the article outlines and critically appraises five broad approaches to specification. Part 1 deals with consistency specification, which highlights norms of consistency both within incitement to hatred law itself and in relation to other laws, practical specification, which focuses on the ostensible goals or apparent aims of incitement to hatred laws, and formal specification, which looks at the formal qualities of the characteristics themselves and to the different forms of people’s relationships with those characteristics. And Part 2 considers functional specification, which concentrates on the underlying or real functions, purposes or objectives of incitement to hatred laws, and democratic specification, which appeals to democratic procedures as well as to democratic values, norms and principles that speak to the proper scope of incitement to hatred laws. Along the way I shall also critically assess a range of substantive arguments about which particular characteristics should or should not be covered by incitement to hatred laws given the aforementioned approaches. My main conclusion shall be that each of the approaches has its strengths and weakness and that, partly because of this, no single approach is adequate by itself as a tool for specifying the proper scope of incitement to hatred laws, but also, by the same token, no approach should be ruled out entirely. Instead, the best strategy is one that combines together all five approaches in reasonable ways given the law, the characteristic and the context.

Margit Cohn, “Tension and Legality: Towards a Theory of the Executive Branch”, Canadian Journal of Law & Jurisprudence, August 2016. Vol. XXIX, No. 2, pp. 321-350.

This article challenges hierarchical and binary thinking in constitutional theory, and offers an alternative basis that draws on multidimensionality. The recognition that constitutionalism is a collection of ingrained tensions between competing forces and conceptual bases is applied in a study of the executive branch, a field that is especially lacking in general theory. The existing research of the executive is almost entirely concerned with specific legal systems and is typically normative; descriptively, references to puzzles and ambiguity offer an inadequate, a-theoretical basis for the understanding of the nature of the executive. Rejecting three alternative models, two of them hierarchical, the third, binary, I reach the internal tension model, which acknowledges the internal irresolvable tension between the executive’s subservience to law and its dominance beyond law, which underlies executive action. The article addresses the ways law can, and does, maintain this internal tension, and ends with some comments on future research directions.

Luigi Corrias, “Crimes Against Humanity, Dehumanization and Rehumanization: Reading the Case of Duch with Hannah Arendt”, Canadian Journal of Law & Jurisprudence, August 2016. Vol. XXIX, No. 2, pp. 351-370.

The concept of humanity takes up a prominent place in the discourse on international (criminal) law. It remains, however, unclear what exactly is meant by an invocation of humanity. In this article, I aim to contribute to an elucidation of this concept. For this purpose, I will first analyse how the concept of crimes against humanity and the related notions of dehumanization and rehumanization are employed in the case of Duch, the chairman of the infamous Cambodian S-21 prison which functioned under the Khmer Rouge. Second, I will put these findings in a philosophical context. Building on the work of Hannah Arendt, I will devise a conceptual framework to analyse crimes against humanity, dehumanization and rehumanization in order to tease out what is at issue in the concept of humanity in international (criminal) law.

Adi Libson, “Moral Uncertainty and Redistribution through Private Law”, Canadian Journal of Law & Jurisprudence, August 2016. Vol. XXIX, No. 2, pp. 371-384.

One of the central arguments against redistribution through private law is its inefficiency due to the double-distortion phenomenon that accompanies it. I argue that in a subset of cases—in which there is uncertainty regarding the fairness principle that should be accepted in the realm of private law—it may be required to take into account redistributive considerations even if one generally accepts the double-distortion argument. I assert that while side-constraints may apply to direct redistribution, they do not apply to the role of redistributive considerations in determining which of the fairness principles should be accepted in the realm of private law. As a consequence, some distributive patterns could be achieved only by taking into account redistributive considerations in the realm of private law. I argue that redistributive considerations may tilt the scales toward accepting the fairness principle with the lower credence of being true.

Rocio Lorca, “The Presumption of Punishment: A Critical Review of its Early Modern Origins”, Canadian Journal of Law & Jurisprudence, August 2016. Vol. XXIX, No. 2, pp. 385-402.

Our conversations about punishment have been constrained by the presumption that crimes ought to be punished. This presumption does not entail that crimes must be punished, but rather that punishment occurs as a natural response to wrongdoing instead of as a conventional creation. As a consequence, the challenges for punishment’s justification have been reduced to the problems of purpose, opportunity and form, leaving unaddressed the question of the authority of a certain polity to impose this form of treatment on a given individual. In order to present and criticize this presumption, the article traces its origins by revisiting the debate about the nature of punishment that took place during the emergence of liberal political philosophy. After evaluating the main arguments of this debate the article concludes by arguing that liberal theories of punishment should give up this presumption.

Lonneke Peperkamp, “On the Duty to Reconstruct After War: Who is responsible for jus post bellum?”, Canadian Journal of Law & Jurisprudence, August 2016. Vol. XXIX, No. 2, pp. 403-430.

Many argue that the problems encountered in and after today’s armed conflicts demonstrate the need for norms to govern the aftermath of war. Therefore, jus post bellum is welcomed as a ‘new’ branch of just war theory, complementing the theory’s two traditional branches—jus ad bellum and jus in bello. Jus post bellum is meant to function as moral compass, offering the needed guidance in the aftermath of war. While many agree on the importance of a third branch, an important question is often overlooked: After war, how should we distribute post war duties? This question deserves more attention, because uncertainty about specific duty bearers might lead to a situation in which no one will properly acquit these duties, and the critique could be raised that jus post bellum is in fact merely empty rhetoric. Two specific questions need answering. First: Which conditions can serve as the foundation for post war duties? Second: How to weigh these conditions when they clash or when they point to different actors? This article directly addresses the foundation for responsibility after war, using David Miller’s and H.L.A. Hart’s theories on responsibility, with an eye to developing a system for assigning post war duties in concrete situations. Only with such a system in place is there a realistic prospect that jus post bellum functions as a useful tool in the creation of a just and stable peace.

Veronica Rodriguez-Blanco, “Action in Law’s Empire: Judging in the Deliberative Mode”, Canadian Journal of Law & Jurisprudence, August 2016. Vol. XXIX, No. 2, pp. 431-456.

Dworkin advances the view that judges decide legal cases according to constructive interpretation. The aim of constructive interpretation is to justify the coercion of the State. A trivial implication of this view is that officials and citizens will comply with the law because of the justification that has been advanced by judges in their exercise of constructive interpretation. Consequently, neither officials nor citizens comply with the law because they have been coerced or because they have been simply told to do so. But then, it seems that constructive interpretation cannot really provide any guidance since officials and citizens have been asked to accept the interpretation of the law that has been put forward by the judges since arguably, it is the best possible interpretation of what the law is in this particular case. However, why they ought to do so?

I will argue that the mistake of the theory of constructive interpretation lies in a misleading and implausible conception of action that believes that action is raw behavioural data and that therefore we need to ‘impose meaning’, ‘value’ or ‘purpose’ on them. I will defend a more plausible conception of action along the classical tradition that understands practice as originating in agency and deliberation. The outcome is that constructive interpretation and its conception of ‘imposing meaning’ on practice is a theoretical perspective that neglects and misunderstands action and practical reason.

Robert Mark Simpson, “Defining “Speech”: Subtraction, Addition, and Division”, Canadian Journal of Law & Jurisprudence, August 2016. Vol. XXIX, No. 2, pp. 457-494.

In free speech theory ‘speech’ has to be defined as a special term of art. I argue that much free speech discourse comes with a tacit commitment to a ‘Subtractive Approach’ to defining speech. As an initial default, all communicative acts are assumed to qualify as speech, before exceptions are made to ‘subtract’ those acts that don’t warrant the special legal protections owed to ‘speech’. I examine how different versions of the Subtractive Approach operate, and criticize them in terms of their ability to yield a substantive definition of speech which covers all and only those forms of communicative action that—so our arguments for free speech indicate—really do merit special legal protection. In exploring alternative definitional approaches, I argue that what ultimately compromises definitional adequacy in this arena is a theoretical commitment to the significance of a single unified class of privileged communicative acts. I then propose an approach to free speech theory that eschews this theoretical commitment.

Guilherme Vasconcelos Vilaça, Critical Notice: “Why a Theory of International Arbitration and Transnational Legality?” Canadian Journal of Law & Jurisprudence, August 2016. Vol. XXIX, No. 2, pp. 495-520.

Is it feasible and useful to articulate a general theory of transnational legality? In the book Transnational Legality: Stateless Law and International Arbitration, Thomas Schultz replies yes and argues, furthermore, that we need such a theory. In this Critical Notice I suggest otherwise. The overarching theme of my critique is a plea for thinking seriously on why we still insist on building general theories of legality. As I try to show, by engagement with Schultz’s main claims, those general theories face unsurmountable conceptual and normative problems. Here are some questions. Which theory of society do we endorse? Are transnational society and law different in nature from their domestic and regional counterparts? Why should we adopt a concept of complex legal system rather than focusing on the looser “community”? Should a concept of transnational legality be as inclusive as possible or narrowly-tailored? In virtue of which normative principles are we to make such a decision? How can we decide which elements from our state tradition are we to preserve and which ones are we to let go? Why devising a concept of legal system that does not see the connections to other legal and normative orders? How do Fuller’s legality criteria meet the expectations we attach to law? And whose expectations are we speaking of? Why undergoing all these headaches to conclude that after all legality is a matter of clarity and we are not provided any tools on how to proceed empirically? All things considered why is this sort of enterprise worth it?