August 2018
Donald Bello Hutt, “Constitutional Interpretation and Institutional Perspectives: A Deliberative Proposal”. Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 2 (August 2018) pp. 235-255
Legal scholars generally consider the theorisation and constitutionalisation of constitutional interpretation as a matter for the courts. This article first challenges this tendency on conceptual grounds, showing that no institutional commitment follows from the nature of interpretation in law, constitutional law included. It then provides guidance for thinking about institutional perspectives according to two criteria: the nature and normative strength of the sources interpreted and the capacity of the interpreter to include and consider every possibility affected when her interpretation carries collective effects and is authoritatively final. The application of these criteria places the discussion on the grounds of democratic theory. The article thus reviews competing democratic theories and champions deliberative democracy as the alternative whose constitutive features best allow for the development of institutions capable of exercising constitutional interpretation when the imposition of meaning on the constitution is final and carries erga omnes effects.
Giordana Campagna and Raffael N. Fasel, ‘“Listen to Them and Give Them a King”: Self-Determination, Democracy, and the Proportionality Principle’. Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 2 (August 2018) pp. 257-280
Is a right to democracy compatible with the right to self-determination? According to some, the two rights are incompatible because a right to democracy would prevent a people from choosing not to live in a democracy. As a result, these Incompatibilists argue, there can be no right to democracy. We argue that the Incompatibilists are right in that the two rights can indeed conflict. They are wrong, however, in that such conflicts do not preclude the mutual existence of both rights. To show why, we distinguish between two elements of self-determination and argue that the right to self-determination and the right to democracy each protect a different element. Arguing that both rights are best understood as principles that can be balanced using the proportionality principle, we reveal how, depending on the concrete circumstances, one right can outweigh the other without ceasing to exist, and thereby prove the Incompatibilists wrong.
William E. Conklin, “Legal Time”. Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 2 (August 2018) pp. 281-322
This article claims that legal time has excluded and submerged an important sense of time inside structured time. Structured time has two forms. Each form of structured time identifies a beginning to a legal order (droit, Recht) as a whole. The one form has focussed upon a critical date. The critical date is exemplified by a basic text, such as the Constitution, or the judicially identified date of settlement, sovereignty or territorial control of a territory by the state. The second form of structured time has begun with the judicial recognition of a value such as the rule of law, the protection of minorities, equal treatment, or due process of law. With the two forms of structured time, jurists have proceeded to identify a binding law. Such a law has been considered a rule, principle, doctrine or other intelligible standard. Once structured legal time has thus begun, events of legal relevance have been represented by jurists in a distinct phase or period of time. Each such a distinct period is parsed through reference to its named, or labelled, starting point and the latter, in turn and ultimately, with reference to the beginning of the very constitutional order as a whole. Legal justification and the conceptual structures of justification are presumed to follow suit. The article argues, however, that another sense of time, excluded and submerged inside structured time, is experienced. An experienced event, manifested as a discrete incident in experiential time, opens to a condition of the possibility of the existence of law.
Keywords: Legal Time, Structured Time, Experienced Time, Event, Possibility of Law.
Noam Gur, “Ronald Dworkin and the Curious Case of the Floodgates Argument”. Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 2 (August 2018) pp. 323-345
This article juxtaposes a jurisprudential thesis and a practical problem in an attempt to gain critical insight into both. The jurisprudential thesis is Dworkin’s rights thesis. The practical problem revolves around judicial resort to the floodgates argument in civil adjudication (or, more specifically, a version of this argument focused on adjudicative resources, which is dubbed here the FA). The analysis yields three principal observations: (1) Judicial resort to the FA is discordant with the rights thesis. (2) The rights thesis is instructive in one way but mistaken in another. While Dworkin has highlighted some valid and sound reasons against judicial policymaking, his conclusive exclusion of judicial policymaking from civil law adjudication is erroneous. Civil law adjudication, it is argued, is an arena of ineliminable tension between principle and policy. (3) The FA is a type of policy argument particularly vulnerable to objections against judicial policymaking. There should, therefore, be a (rebuttable) presumption against judicial resort to it.
Keywords: Ronald Dworkin, the floodgates argument, the rights thesis, policy and principle in judicial reasoning, civil adjudication, tort law.
Andrew Jordan, “Exclusionary Reasons, Virtuous Motivation, and Legal Authority”. Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 2 (August 2018) pp. 347-364
In this essay, I argue that the role for exclusionary reasons in a sound account of practical rationality is, at most, much more circumscribed than proponents of exclusionary reasons might suppose. Specifically, I argue that an attractive account of moral motivation is in tension with the idea that moral reasons can be excluded. Limiting ourselves to the tools of first order moral reasons—including such relations as outweighing, and disabling—allows us to preserve a more attractive account of the relationship between what there is strongest reason to do, what one is motivated to do, and that for which one is praiseworthy or blameworthy. In closing, I argue that we can capture the normativity associated with legal decision-making using only the resources of the first-order model.
Federico Picinali, “Can the Reasonable Doubt Standard be Justified? A Reconstructed Dialogue”. Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 2 (August 2018) pp. 365-402
The justification of the reasonable doubt standard has been hotly debated in recent years. Deontologists—including retributivists—have generally defended the standard, whilst consequentialists have generally argued for a lower standard of proof. Captivating arguments have been produced from both sides. The paper narrates this debate through a dialogue between ideal representatives of these different camps. In doing so, it recasts—and, hopefully, improves—some of the arguments presented thus far. Then, the paper introduces a new participant in the debate, the Intermediary. The Intermediary is under the impression that the debate has reached an impasse, due to fundamental moral disagreements between the parties involved. Therefore, she presents them with a challenge: to find a common ground that allows the parties to justify to each other the choice of a standard of proof, notwithstanding their different basic moral commitments. The Intermediary takes up this challenge, and provides a justification for the reasonable doubt standard based on the value of respecting defendants and on rules of instrumental rationality.
Keywords: Reasonable doubt; standard of proof; criminal trial; evidence law; respect; instrumental rationality.
David Tan, “The Metaphysics of Statehood”. Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 2 (August 2018) pp. 403-429
This paper considers the connections between the Statehood/recognition debate in international law and social ontology. I aim to show that certain theories of social ontology, which I call Groupjective Internalism, can be used to defend Constitutive Theories of Statehood. Among philosophers whom I consider committed to Groupjective Internalism are major figures in the field: Searle, Gilbert and Tuomela. This is an interesting result as Constitutive Theories are generally looked upon with suspicion in international law.
Daniel Ward, “A Taxonomy of Legal Control”. Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 2 (August 2018) pp. 431-457
Ideas as to how the law exercises control over its subjects can be formulated as explanations for the concurrence of two facts: A. the law stipulates certain behaviour, and B. a given subject behaves in conformity with that stipulation. Such explanations can be organised into a taxonomy. The exercise forces us to consider what is important in a theory of legal order. The taxonomy developed here suggests that there are three main mechanisms for controlling a particular subject’s behaviour: (1) collateral motivation (coercion and reward); (2) authority; and (3) coordination, or the intervention in the subject’s strategic situation through affecting the behaviour of others. Other accounts have tended either to leave out coordination or to seek to assimilate it to authority. Such treatment overlooks important, ethically distinctive features of coordination as a mechanism of bringing about compliance with the law.
Caleb Yong, “Justifying Resistance to Immigration Law: The Case of Mere Noncompliance”. Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 2 (August 2018) pp. 459-481
Constitutional democracies unilaterally enact the laws that regulate immigration to their territories. When are would-be migrants to a constitutional democracy morally justified in breaching such laws? Receiving states also typically enact laws that require their existing citizens to participate in the implementation of immigration restrictions. When are the individual citizens of a constitutional democracy morally justified in breaching such laws? In this article, I take up these questions concerning the justifiability of noncompliance with immigration law, focusing on the case of nonviolent—or mere—noncompliance. Dissenting from Javier Hidalgo’s view, I argue that the injustice of an immigration law is insufficient to make mere noncompliance justified. Instead, I contend that only if an immigration law lacks legitimate authority are individuals justified in breaching it, since the subjects of an institution with legitimate authority are under a content-independent moral duty to comply with its rules. I further argue that a constitutional democracy’s regimes of law regulating immigration and requiring its citizens’ participation in implementing these regulations have legitimate authority. Nevertheless, when a particular immigration law is egregiously unjust, its legitimacy is defeated.
