August 2019

Laurens van Apeldoorn, “A Sceptic’s Guide to Justice in International Tax Policy”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 2 (August, 2019).

Critical Notice

What, if any, are the moral norms governing the international taxation regime if the sceptic is right to think that considerations of distributive justice do not apply beyond the state? I sketch an answer to this question by examining Tsilly Dagan’s illuminating recent book International Tax Policy: Between Competition and Cooperation. In her work, Dagan identifies the position of Thomas Nagel, an influential global justice sceptic, as predominant among commentators in legal scholarship and policy debates on international taxation. According to Nagel, multilateral cooperation is appropriately conceived as a bargain between mutually self-interested states. In tracing the implications of his position for international tax policy Dagan argues that even a sceptic like Nagel is committed to identifying some considerations of distributive justice beyond the state to ameliorate the harmful effects of tax competition.

In response I argue that Dagan is correct to claim that the global justice sceptic is committed to seeing cooperation in international tax policy as constrained by moral norms, but that these norms are what Nagel calls humanitarian duties rather than duties of justice. I establish that Dagan’s argument that Nagel is committed to a duty of justice to promote distributive justice abroad faces some significant obstacles and suggest that Dagan can ground her argument in a humanitarian duty that Nagel does accept. The upshot of the argument is that even if the sceptic is right to think that considerations of distributive justice do not apply beyond the state, multilateral tax cooperation is governed by a duty of states to prevent human rights deficits where they can.

KEYWORDS: global justice; international taxation; multilateral cooperation; human rights.

 

César S. Arjona, “The Usage of What Country: A Critical Analysis of Legal Ethics in Transnational Legal Practice”, The Canadian Journal of Law and Jurisprudence, Vol. XXXII, No. 2 (August 2019).

This article maintains that the standard conception of legal ethics – the so-called ‘theory of amorality’ – is highly dependent on context and cannot be consistently applied to transnational legal practice. After defining in some detail the basic tenets of the standard conception, I identify its main assumptions, namely, (i) that a legal relation is an agency relation in which both lawyer and client are individual moral agents, (ii) that such relation is connected to a litigation process, and (iii) that such relation takes place within the framework of a decently well-functioning rule of law system. Using as a paradigmatic example the BTC pipeline case– a set of contracts and international treaties signed by a consortium of private companies and several sovereign states during the first decade of the 21st century to regulate the building and operation of a transnational oil pipeline – I analyze one by one these three assumptions to conclude that they are at the very least highly problematic in the context of global legal practice. Additionally, I consider the counter-argument that a lawyer who moves beyond the standard conception is actually usurping the role of the judge, an argument that loses much of its appeal on the transnational context. In a brief concluding remark I inscribe these problems within the more general post-Westphalian paradigm shift in law and jurisprudence.

KEYWORDS: legal ethics; jurisprudence; amorality; transnational legal practice; BTC pipeline case.

 

William Bülow, “Retributivism and the Use of Imprisonment as the Ultimate Back-up Sanction”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No.2 (August 2019).

Imprisonment is often said to be the ultimate back-up sanction for offenders who do not abide by their non-custodial sentence. From a standard consequentialist perspective this is morally justified, if it is a cost-effective means to crime prevention. In contrast, the use of imprisonment as a back-up is much harder to justify from retributivist perspectives, with their emphasis on just desert or deserved censure. The crux is this: if the reason for a non-custodial sentence is that a prison sentence risks being a disproportionate or inappropriate sanction, retributivists need to explain how a prison term can be warranted as the backup sanction for those who breach the requirements of their non-custodial sentence, even though their original crime wasn´t serious enough to warrant imprisonment in the first place.

The aim in this paper is to critically assess the extent to which retributivists can justify the use of imprisonment as the ultimate back-up sanction. In doing so, I first examine two broad strategies that are discussed in the literature, and which retributivists could employ in order to respond to this problem. The first strategy stresses how desert has only a limited role in sentencing such that it demarcates a range of deserved punishment. On this view, associated with limiting retributivism, one could initially opt for a less harsh yet deserved punishment, leaving room for the imposition of back-up sanctions when needed. The second strategy focuses on how the act of breach is a reprehensible act that can allow for a penalty increase, and thereby lead to imprisonment. Although it is argued that both strategies fail, the paper proposes an alternative solution to this problem.

KEYWORDS: back-up sanctions; imprisonment; limiting retributivism; normative theories of sentencing; retributivism.

 

Jaye Ellis, “Crisis, Resilience, and the Time of Law”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 2 (August 2019).

The important and no longer novel insight from ecology that ecosystems are dynamic and ever-changing along immensely complex causal pathways prompts the further insight that environmental protection regimes should promote not a particular ecosystemic end state, but rather ecosystem resilience, or the capacity to absorb and adapt to stress without compromising essential function. For law to embrace resilience as an objective, it is argued, it must itself be dynamic and flexible, capable of learning and adaptation. This poses potentially serious challenges to law’s resilience: to what extent are flexibility and adaptability at odds with what Niklas Luhmann argues is an essential feature of normative systems, namely, resistance to learning in the face of disappointment? The potentially rapid rate of change expected of a law oriented to ecosystem resilience could overwhelm law’s capacity to provide the measure of order, stability, and predictability that are core to its contribution, or prestation, to society. This paper takes this challenge seriously, but also explores another possible implication of law in the pursuit of ecosystem resilience: if environmental law is no longer conceived of in primarily instrumental terms, as a means to bring about a specific set of ecosystem objectives, there may be some possibility for its own resilience to be enhanced.

 

Juan B. Etcheverry, “An Approach to Legal Principles Based on their Justifying Function,” Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 2 (August 2019).

This paper intends to throw light upon some aspects of the debate on the characterization of legal principles and on their differences when compared to rules. Particularly, this analysis proposes differentiating principles from rules by considering the functions they perform in law instead of their structural differences. To achieve this, we distinguish between the functions of guidance and justification that legal principles fulfill. From that distinction, we observe that the attempt to characterize legal principles based on the way in which they guide conduct does not seem to be the most appropriate either. In contrast, this paper tries to show that all the different types of precepts known as principles perform a justifying function in legal reasoning.

KEYWORDS: legal principles; rules; fundamental rights; justifying function; guidance function.

  

Adi Goldiner, “Membership Rights: the Individual Rights of Group Members”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 2 (August 2019).

Individuals often invoke the moral rights that they hold as members of certain groups or social categories. Yet, there is ambiguity in both terminology and theorizing surrounding the nature of those rights. Focusing on the paradigmatic case of disabled people’s right to reasonable accommodations, this paper develops a descriptive account of those group-related rights, as a distinct category of rights which I call ‘membership rights’.

Membership rights neither fit the concept of ‘human rights’, as not all people hold them, nor are they typical ‘group rights’, as they are held by members of some group as individuals, not by groups collectively. In addition, the grounding of membership rights is linked to the distinct features of group members, be it their special interests or special circumstances. Finally, the content of membership rights includes distinct entitlements and correlating duties, which are not secured by human rights, group rights, or any combination thereof. Recognizing the distinct features of membership rights may have practical implications by strengthening efforts to secure legal protection to membership rights. It also invites further theoretical inquiry, for example, towards identifying other specific rights that fit into this category.

KEYWORDS: disability rights; human rights; group rights; membership rights; reasonable accommodations; derivative rights.

 

Antony Hatzistavrou, “The Authority of Law in Plato’s Crito”, Canadian Journal of Law and Jurisprudence, Vol. XXXII, No. 2 (August 2019).

In this article I analyze the speech of the Laws in Plato’s Crito from a jurisprudential perspective. More specifically I explore the Laws’ views about the authority of law. I offer new interpretations of their famous ‘persuade or obey’ alternative and of their arguments about their superior moral status and the agreements of the citizens with them. I also explore the rather neglected topic of the mental attitude towards their authority that they demand from the citizens and conclude with a discussion of their understanding of the relation between law and morality. I approach the speech of the Laws as a historian of legal thought and try to locate their arguments firmly within both the context of the ancient Athenian legal system and the context of Platonic philosophy.

KEYWORDS: authority of law; Plato; Crito; ancient Athenian law.

 

Paul Horwitz, “Honour, Oaths, and the Rule of Law,” Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 2 (August 2019). Coxford Lecture.

Impersonality is frequently invoked as a core element of the rule of law. In this article, I discuss a troika of values and institutions—office, honour, and the oath—that provide deeply personal springs for the conduct of judges and other office-holders. In so doing, these institutions make possible the sort of impersonality valued by the rule of law. A focus on office emphasizes the importance of duty rather than power. Honour is the desire to be well thought of by others, and the internalized desire to deserve to be thought well of by others, especially one’s peers. Honour is often treated as an obsolete value that has been superseded by dignity. But it remains an essential force, providing judges and other office-holders with a source of energy and agency that motivates them to fulfil the duties of their office with virtue and excellence. The oath serves as a linchpin that connects the individual to the office and the office-holder to the commitment to serve honourably. Taken together, this troika of institutions encourages the faithful and energetic performance of one’s judicial office in a modern democratic constitutional society. Thinking about the rule of law this way encourages us to shift our focus from power to duty, and from doctrine to character and virtue. It encourages us to revive and revise honour rather than abandon it. It helps show that an impersonal “government of laws and not men” is and ultimately must be deeply personal.

 

John Murphy, “Contemporary Tort Theory and Tort Law’s Evolution,” Canadian Journal of Law and Jurisprudence, Vol XXXII, No. 2 (August 2019).

Although grand, explanatory theories of tort law come apart from one another in many ways, they also have a fair amount in common. One core claim found in the work of various Kantian theorists, as well as a number of leading rights theorists, is that tort law develops, incrementally, in such a way as to achieve ever greater coherence (where such coherence is measured according to key tenets of the particular theories).  This article takes issue with that claim. It shows, by reference to a host of legal landmarks, that tort law neither does, nor must, develop in this way. A great many important innovations in tort cannot be reconciled with central aspects of the theories in view, but they are easily explained by reference to major changes in material conditions of life, shifts in the ideological Zeitgeist, judicial partiality and juristic influence.  As long as such factors are free to exert their influence – and there is nothing to suggest that they are not so free – it is implausible to suggest that tort law will inexorably move towards a state of ever greater coherence.

KEYWORDS: contemporary tort theory; legal history; liability insurance; judicial partiality; juristic influence.

 

Jennifer Nadler, “Contract Damages, Moral Agency, and Henry James’ The Ambassadors”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 2 (August 2019).

This paper enters the dispute over the proper interpretation of the expectation measure of damages in contract law. Should damages be measured by the plaintiff’s financial loss or by the cost of acquiring a substitute performance (“cost of cure”)? I begin by presenting a moral (as opposed to an economic or a pragmatic) justification for the traditional contract principle that a plaintiff has a right to compensation for the financial loss flowing from breach but no right to performance. I do so by showing that implicit in the principle that the plaintiff has a right to compensation for financial loss alone is a conception of moral agency as a capacity for detachment from things. Through an exploration of Henry James’ novel The Ambassadors, I try to show what is valuable in that conception, although I argue that it is, in the end, incomplete. Then I consider the self-authorship conception of moral agency implicit in the moralist’s proposal to replace the financial loss remedy with a right to performance or to compensation for the cost of securing a substitute performance. Again, through a reading of James’ novel, I try to show what is valuable in this conception although I argue that it too is incomplete. I suggest that the conceptions of moral agency respectively implicit in the financial loss and cost of cure remedies are constituent parts of a complete conception. Once we see this, we arrive at a moral justification for a contract law which treats compensation for financial loss as the normal rule but exceptionally allows for a remedy that aims at securing performance.

KEYWORDS: contract theory; expectation damages; cost of cure; performance interest; law and literature.

 

Cosmin Vraciu, “Property Rights and the Regulatory State”, Canadian Journal of Law and Jurisprudence, Vol. XXXIII, No. 2 (August 2019).

When state regulations prevent owners from certain uses of their property, is this action of the state a taking of property which requires compensation? One way of answering this problem, within a framework viewing property as a bundle of rights, is to inquire into whether the incident of use is an essential element of the bundle making up the property. Given the difficulties with figuring out what is essential and what is not, I propose an alternative solution, which does not give up the bundle-of-rights framework, but which, while assuming all incidents to be equally essential, it concentrates, instead, upon the legal entitlements conveying those incidents. I begin by arguing that while the incident of possession may be expressed by a right to exclude, the incident of use is expressed by a Hohfeldian liberty, and then I consider the consequences of this argument for the question of regulatory takings. I argue that while the liberty to use does not render the incident of use meaningless (at least, insofar as regulation of property use is concerned), there is nonetheless a significant distinction between transgressing a right and transgressing a liberty, and this implies that what it takes for an infringement of the right to exclude to be translated into a taking of the (whole) property is less than what it takes for the infringement of the liberty to use to be translated into a taking of property. As I show in the paper, we can achieve this result either by means of an argument from ‘constitutional residue’ or by means of an argument from the specification of constitutional rights.

KEYWORDS: property rights; liberty to use; regulatory takings; right to exclude; bundle of rights; Hohfeldian entitlements; incidents of ownership.