February 2016

Daniele Bertolini, “On the Spontaneous Emergence of Private Law”, Canadian Journal of Law & Jurisprudence, Vol. XXIX, No. 1 (February 2016), pp. 5-36

This article provides an explanatory framework of the spontaneous lawmaking (“SL”) process in the area of private law. To illuminate the process of the spontaneous emergence of private law, this paper focuses on three issues: (1) the conditions under which SL is likely to generate efficient norms, (2) the mechanisms that explain the emergence of norms in the absence of centralized enforcing institutions, and (3) the comparative advantages and disadvantages in terms of the efficiency of SL compared to public centralized lawmaking processes. This discussion is organized as follows. Section I defines the scope of the analysis. Section II introduces the relevant analytical tools offered by game theory and transaction-cost economics. Section III identifies the conditions for the spontaneous emergence of efficient norms. Section IV identifies three alternative mechanisms that explain the spontaneous emergence of norms. Section V examines the limitations of SL processes. Finally, Section VI provides examples of SL in the area of private law to demonstrate concretely the analytical potential of the proposed framework.

Antje du Bois-Pedain
, “Hegel and the Justification of Real-world Penal Sanctions”, Canadian Journal of Law & Jurisprudence, Vol. XXIX, No. 1 (February 2016), pp. 37-70

This article revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions. Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state. Hegel is also right to stress that punishment is – not merely conceptually, but also in the reality of our social world – a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom. This understanding of punishment sets significant limits to punishment’s permissible forms, particularly – but not only – with regard to the death penalty. By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents. In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

Hillary Nye
, “Staying Busy While Doing Nothing? Dworkin’s Complicated Relationship with Pragmatism”, Canadian Journal of Law & Jurisprudence, Vol. XXIX, No. 1 (February 2016), pp. 71-95

Ronald Dworkin was an outspoken critic of pragmatism, and engaged in extensive and at times virulent disagreements with Richard Posner and Richard Rorty. Yet, I argue here, that Dworkin himself had a number of deeply pragmatist commitments. I examine how we can square these two aspects of Dworkin’s thought. I suggest that part of the answer lies in seeing that there are different strands of pragmatism, and that Dworkin falls on the more objective, Peircean side of the divide, while Rorty and Posner belong more in the skeptical, Jamesian camp. But even with this distinction in mind, we should note the substantial overlap between the views of Dworkin and his pragmatist interlocutors—in particular, their anti-archimedeanism and their rejection of metaphysics. Attentiveness to this shared perspective is helpful in illuminating Dworkin’s disagreements with legal positivists. The more foundational divide, I argue, is between analytic legal philosophers who aim to provide an account of the metaphysics of law, and those, like Dworkin and the pragmatists, who reject such a project. I conclude by discussing the implications of Dworkin’s pragmatism for legal philosophy. I argue that it may lead to what some have recently called ‘eliminativism’, and engage with some new and prominent work on this current topic in legal philosophy.

Sylvia Rich
, “Corporate Criminals and Punishment Theory”, Canadian Journal of Law & Jurisprudence, Vol. XXIX, No. 1 (February 2016), pp. 97-118

Corporations are subject to criminal law and sentencing provisions in most legal jurisdictions in the world. This article considers how leading punishment theories apply to corporations. Corporations are, this article argues, group agents with the capacity to make moral judgments. It follows from this that retributivism, the dominant theory of punishment for moral agents, ought to be understood as a component justification of corporate punishment. However, a more fundamental problem arises in the attempt to apply punishment theory to corporations: punishment involves suffering, and corporations cannot suffer in the relevant sense. This means that corporations cannot be punished, though they can be harmed. I explore the possibilities of simply abandoning the word ‘punishment’ and creating sentences that are not at the same time punishments. This has the drawback of limiting what the criminal law can accomplish when it comes to addressing corporate malfeasance. I find that at least one practical consequence for corporate sentencing follows from this theoretical distinction: sentencers have more legitimate authority to raise upper limits for sentences for corporations than they do for individuals, though there are still principles that dictate the need for upper limits. Despite the impossibility of true punishment, the theories of retributivism, deterrence and rehabilitation are still relevant when sentencing corporations.

Arun Sagar,
“Federal-State Jural Relations: A Neo-Hohfeldian Approach to the Study of Federalism”, Canadian Journal of Law & Jurisprudence, Vol. XXIX, No. 1 (February 2016), pp. 119-147

The division of powers between Federal and State governments and its interpretation by constitutional courts are fundamental elements of a federal system and of Federal-State power relations. The exclusivity or concurrence of powers, supremacy, and the problem of implied powers are some of the issues that appear in the constitutional law of most federations, and indeed stem from the very logic of a federal structure. However, the theoretical literature on federalism has not produced any satisfactory explanation of this logic. This article shows how W.N. Hohfeld’s fundamental legal conceptions may be used to analyse Federal-State relations, and how they are directly applicable in the context of ‘intergovernmental immunities’. The article then elaborates a theory of ‘tertiary’ legal relations, i.e., those arising when the two levels of government act in their regulatory capacity; these relations flow from the triangular nature of the relationship between the two governments and those subject to legislation. The correlations identified between Federal and State powers provide a conceptual framework within which different constitutional questions may be analysed. Adopting Hohfeld’s method of highlighting legal concepts in extracts from judicial decisions, the article uses examples from the case-law of several different federal countries.

Anthony Robert Sangiuliano
, “A Corrective Justice Account of Disgorgement for Breach of Contract by Analogy to Fiduciary Remedies”, Canadian Journal of Law & Jurisprudence, Vol. XXIX, No. 1 (February 2016), pp. 149-190

A corrective justice account of a private law remedy attempts to the explain the remedy as giving back to the plaintiff something to which the plaintiff had a prior right that was breached by the defendant's receipt of that thing. It has proven challenging to explain how disgorgement for breach of contract is consistent with corrective justice. This remedy gives to the plaintiff any profit that a defendant received from a third party by breaching a contract with the plaintiff. In this paper, I critique two leading attempts to show how disgorgement for breach of contract is consistent with corrective justice. I argue that these attempts fail, and I suggest that a plausible corrective justice account of disgorgement should be based on something other than the nature of the contractual rights borne by a plaintiff. I then develop an alternative account based on an analogy between disgorgement for breach of contract and disgorgement for breach of fiduciary duty. To do so, I draw on recent scholarship on the consistency of disgorgement for breach of fiduciary with corrective justice and analyze the leading judicial decision on disgorgement for breach of contract by the UK House of Lords in Attorney General v. Blake. I argue that the fiduciary-based account can provide a plausible explanation for how disgorgement effectuates corrective justice by giving back to a plaintiff something to which he had an antecedent right that the defendant violated by profiting from a breach of contract.

Eric J. Scarffe,
“‘A New Philosophy for International Law’ and Dworkin’s Political Realism”, Canadian Journal of Law & Jurisprudence, Vol. XXIX, No. 1 (February 2016), pp. 191-213

During his career, Ronald Dworkin wrote extensively on an impressive range of issues in moral, political, and legal philosophy, but, like many of his contemporaries, international law remained a topic of relative neglect. His most sustained work on international law is a posthumously published article, “A New Philosophy for International Law” (2013), which displays some familiar aspects of his views in general jurisprudence, in addition to some novel (though perhaps surprising) arguments as well. This paper argues that the moralized account of international law we might have expected is conspicuously missing from this posthumous article; with Dworkin advancing an argument based on a form of political realism instead.

Mikhail Xifaras,
The Global Turn in Legal Theory”, Canadian Journal of Law & Jurisprudence, Vol. XXIX, No. 1 (February 2016), pp. 215-243

Familiar legal theories are epistemologically and politically stato-centric theories; they aim to rationalize intra- and inter-national legal systems. If this Westphalian approach were to be abandoned, then its replacement might be called Global Law, which invites theorizing that is not stato-centric. When that change happens, one would talk about a Global Turn in legal theory. Describing this turn is the aim of the paper.

This description is articulated around two ideas about the history and geography of the globalizing of Law, and three intuitions about the fate of legal theory itself once this Global Turn is taken. Namely, how theorizing Law from this perspective leads to focus on what is emerging and circulating, how the aesthetics of legal thinking shifts towards perspectivism and dissociation, and how more pluralistic, eclectic and pragmatic modes of reasoning and arguing about Law become dominant. What follows is neither a substantial or positivistic analysis, nor a prediction or a wish, but an attempt to point out tendencies which might be essential features of contemporary legal thinking.

Alain Zysset
, “Refining the Structure and Revisiting the Relevant Jurisdiction of Crimes against Humanity”, Canadian Journal of Law & Jurisprudence, Vol. XXIX, No. 1 (February 2016), pp. 245-265

In this article, I test predominant normative approaches to CAH against the notion’s deployment in law. Embarking on this cross-disciplinary project is needed because those the predominant literature fail to address (or were just articulated before) the waves of cases brought before international criminal courts throughout the last decade. I start by examining how international criminal courts have specified the core elements of the definition and then assess if and how the predominant philosophical literature can account for it. I then argue that this legal-empirical inquiry leads to both refining the structure and revisiting the relevant jurisdiction of CAH.

As far as structure is concerned, I distinguish a third but neglected element in the structure of CAH, which I identify as the preparatory conditions of the crimes (the ‘PCs’). In relying on Joseph Raz’ concept of authority, I argue that reconstructing the PCs help to specify what it is about states that those crimes deeply pervert. While the PCs strikingly mirror the systematic and pre-emptive role of the state, those patterns are established to massively persecute, terrorize and finally odiously attack. As far as jurisdiction is concerned, I infer that the agent of CAH and the state in which those crimes occur become ‘answerable’ to the normative community of responsible states (following Anthony Duff’s accountability model). By establishing international trials, this normative community does justice not only to the victims by proving the crimes but also to the perpetrators by treating them as responsible members.

Jacob Weinrib
, Book Review of Alon Harel’s Why Law Matters (2014), Canadian Journal of Law & Jurisprudence, Vol. XXIX, No. 1 (February 2016), pp. 267-270

Alon Harel’s Why Law Matters articulates a powerful and neglected approach for justifying legal institutions. Pushing back against the instrumentalist approach that dominates contemporary legal theory, he argues that legal institutions are not simply tools for realizing extrinsic values, but are themselves constitutive features of a just society. On this view, law is not an instrument for bringing about something that matters; rather, law itself matters and Harel elaborates a series of rich and insightful arguments to explain why. In this brief review, I will sketch the connection between Harel’s non-instrumental methodology and his account of (1) the nature of rights, (2) the distinctiveness of state authority, and (3) the justificatory basis of constitutional governance. I close with some critical comments about the non-instrumental justifications that Harel develops.