February 2018
Avihay Dorfman, “Private Law Exceptionalism? Part II: A Basic Difficulty with the Argument from Formal Equality,” Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 1 (February 2018) pp. 5-32
Contemporary discussions of private law theory often assume that parties in a private law interaction can relate as equals if, and only if, equality is cast in terms of formal equality (sometimes called transactional equality). I devote these pages to refute this conceptual view, showing that it does not draw correctly the map of the logical space in which conceptions of private law equality are located. Negatively, I argue that the formal conception of equality, most comprehensively defended by certain influential corrective justice theories, does not exhaust this space. Affirmatively, I argue that this space provides room for at least one more conception which I call ‘substantive equality’.
Nicholas Hooper, “Notes Toward a Postmodern Principle,” Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 1 (February 2018) pp. 33-60
The current approach to statutory interpretation in Canada, viz., the ubiquitous “modern principle,” is an empty rhetorical gesture that masks the contingent, subjective nature of language and naturalizes institutionally sanctioned definitions. Since the late-nineties, virtually every relevant decision cites the same passage as methodology, positing the discoverability of objective textual meaning by looking to things like the “ordinary sense” and “intention of Parliament.” This is theoretically incoherent and incompatible with most credible understandings of language and interpretive subjecthood. This paper begins with a critical reading of each directive in the “modern principle” to demonstrate the normative force of its outdated approach. After discussing the legitimizing function of an ostensibly consistent method that elides the difficulties of linguistic meaning, I conclude with a preliminary discussion on the possibility of progress—or the idea of (literally) a postmodern principle of statutory interpretation.
Marcin Matczak, “Why Judicial Formalism is Incompatible with the Rule of Law,” Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 1 (February 2018) pp. 61-85
Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation.
Dorota Mokrosinska, “The People’s Right to Know and State Secrecy,” Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 1 (February 2018) pp.87-106
Among the classic arguments which advocates of open government use to fight government secrecy is the appeal to a “people’s right to know.” I argue that the employment of this idea as a conceptual weapon against state secrecy misfires. I consider two prominent arguments commonly invoked to support the people’s right to know government-held information: an appeal to human rights and an appeal to democratic citizenship. While I concede that both arguments ground the people’s right to access government information, I argue that they also limit this right and in limiting it, they establish a domain of state secrecy. The argument developed in the essay provides a novel interpretation of Dennis Thompson’s claim, who in his seminal work on the place of secrecy in democratic governance, has argued that some of the best reasons for secrecy are the same reasons that argue for openness and against secrecy.
Amit Pundik, “Coercion and Volition in Law and Philosophy,” Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 1 (February 2018) pp. 107-123
This paper discusses cases in which defendants were coerced to do something they wanted to do anyway. Through these cases a stark divergence between the legal and philosophical discussion of alternative possibilities is highlighted. The paper seeks to vindicate the legal approach to coercion and volition by showing that the legal approach could be accounted for with an epistemic version of the Principle of Alternative Possibilities, a version which is also immune to Frankfurt-type examples.
Arie Rosen, “Law as an Interactive Kind: On the Concept and the Nature of Law,” Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 1 (February 2018) pp. 125-149
When exploring the relations between the concept and the nature of law, ample philosophical reflection has been dedicated to the relations between the intension of terms (or the content of concepts) and their extension. Much less consideration has been given to the causal relations between concept and thing within socially constructed entities. This paper examines the interactive causal relationship between law and the concept we have of it and reflects on its implications for legal philosophy. First, it explains the causal role played by concepts in processes of social construction and applies this explanation to the analysis of the special case of law. Second, it compares this causal role played by the concept of law to the role assigned to it in the context of externalist theories of meaning and mental content. Lastly, it demonstrates the advantages of seeing law as an interactive kind in answering some contemporary methodological difficulties stemming from conceptual plurality or uncertainty, and in opening new avenues for research in legal philosophy.
Stéphane Sérafin, “Transfer by Contract in Kant, Hegel, and Comparative Law,” Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 1 (February 2018) pp. 151-176
Kant and Hegel offer two very different accounts of contract as a transfer of rights. In this paper, I argue that Kant’s approach largely corresponds to that taken by the German legal system, in which the transfer of property rights arises separately from the original contractual obligation. Hegel’s account of contract is instead most comfortably associated with the approach taken by the French legal system, in which a contract is sufficient on its own to effect a full transfer of property rights. I conclude that only German law and Kantian transfer theory properly conceive of contract as an obligation, while the Hegelian and French approaches risk erasing the obligational content of contract entirely.
Jesse Wall, “Public Wrongs and Private Wrongs,” Canadian Journal of Law & Jurisprudence, Vol. XXXI, No.1 (February 2018), pp. 177-196
There are a set of wrongs that are normatively distinct as ‘criminal wrongs’, and yet, there is disagreement as to ‘the basic features of criminal liability’ that explain this normative distinctiveness. The only consensus has been that criminal wrongs are ‘public wrongs’. For some, they are public wrongs in the sense that they infringe the values and interests for which the community has a shared and mutual concern. For others, they are public wrongs in the sense that they are the wrongs that public officials are responsible for punishing. A third view is that they are public wrongs in the sense that there are procedural advantages of having public officials empowered to address the wrongdoing. I argue here that the first two views are analytically inseparable: the considerations that explain the wrongs that merit social prohibition are the same considerations that explain the censuring and punitive response of the criminal law. I also argue here that, contrary to the third view, the powers of public officials in criminal law procedures follow from, rather than explain, the concept of a crime being a public wrong. Procedural advantages can explain how criminal wrongs are public wrongs, but they cannot explain why criminal wrongs are public wrongs.
Rachael Walsh, “Property, Human Flourishing and St. Thomas Aquinas: Assessing a Contemporary Revival,” Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 1 (February 2018) pp. 197-222
This article explores Aquinas’ views on property in the context of the revival of interest in Thomistic property thinking in the ‘human flourishing’ perspective on property. It highlights a broad coherence with the aims of human flourishing property theory, and progressive property theory more generally. At the same time, it argues that where property theorists use Aquinas’ views as direct authority for arguments concerning current property dilemmas, complex interpretative issues arise, which cast into sharp relief foundational questions concerning the balance between voluntary and legally compelled redistribution, and between public and private law measures, for progressive property theory.
Nick Sage, Book Review: “Freedom and Force: Essays on Kant’s Legal Philosophy edited by Sari Kisilevsky and Martin J Stone,” Canadian Journal of Law & Jurisprudence, Vol. XXXI, No. 1 (February 2018) pp. 223-229
This review considers some criticisms made of Arthur Ripstein’s Kantian theory of private law. Authors in this collection are Japa Pallikkathayil, Katrin Flikschuh, Andrea Sangiovanni, AJ Julius, George Pavlakos, Daniel Weinstock, Allen Wood, and Martin J Stone, with reply by Arthur Ripstein. The review itself focuses on the problematic role in Ripstein’s theory of individual choice or purposiveness in the light of the work of the eight critics.
