February 2019
Thomas Bustamante, “Law, Moral Facts and Interpretation: A Dworkinian Response to Mark Greenberg’s Moral Impact Theory of Law”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 1 (February 2019) pp. 5-43
Ronald Dworkin’s philosophy of law, in its mature version, is grounded in at least two central claims: first, a thesis about law and morality, which we might call the One-System Thesis; second, a thesis about how moral and legal propositions can be said to be true or false, which we might call the Interpretive Thesis. While the One-System Thesis holds that law and morality form a single system, the Interpretive Thesis makes two distinct claims: first, truth of interpretive propositions—such as moral and legal propositions—must be established from within the practice in which they figure; second, the soundness of an interpretive proposition is related to the purpose of the practice under consideration. Mark Greenberg’s Moral Impact Theory of Law accepts the One-System Thesis while rejecting the Interpretive Thesis. The Moral Impact Theory is a metaphysical theory of how moral facts rationally determine the content of the law. Its main contention is that the actions of legal institutions have an impact on the moral obligations people have in a polity, and the content of the law is made up of the moral obligations that result from the actions of such institutions. Greenberg assumes that moral facts pre-exist and have some metaphysical priority in relation to legal facts. Moral facts must be prior and independent from legal practice in order to play a part in the rational determination of the content of the law. The point of this paper is to offer a response to Greenberg. I argue that the One-System Thesis only should be supported if the Interpretive Thesis is correct, and that without the latter the former becomes an implausible version of natural law jurisprudence.
Vito De Lucia, “Ocean Commons, Law of the Sea and Rights for the Sea”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No.1 (February 2019) pp. 45-57
The aim of this paper is to re-activate certain layers of normative meaning that have been obscured, forgotten or rendered inoperative by the predominant traditions that engaged, from Grotius onwards, with the concept of res communes omnium. The hope and the purpose is that of offering a novel perspective on matters such as the protection and preservation of ocean commons that are of great urgency and importance today. Re-activating or ‘remembering’ the full scope of the concept of res communes omnium may produce some effects on the broader discourse of ocean environmental protection. It may, perhaps, help carve novel space for re-imagining the terms of the problems, and the array of available solutions that can be entertained and discussed, having particularly in mind the debates currently ongoing in the context of the negotiations towards a new global treaty on marine biodiversity in areas beyond national jurisdiction.
Helen Eenmaa-Dimitrieva, “The Problem of Dependency of Corrective Justice: Corrective Entitlements and Private Transactions”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 1 (February 2019) pp. 59-82
Several legal philosophers have argued that the principle of corrective justice provides the best explanation of various areas of the law—especially the law of torts. On the other hand, some philosophers of law and many economists of law have argued that the principle of corrective justice is not an independent principle of justice. I call this the problem of dependency. If the critics are right, the principle of corrective justice cannot be an explanation of a large area of our law as it claims to be.
I argue that the increasingly complex forms of the problem of dependency that the critics have proposed lose their force once we have a better understanding of the principle of corrective justice and its relationships with other principles. The principle of corrective justice does not serve a conception of distributive justice or efficiency and can provide an explanation of a large area of our law despite the criticism. It does so independently as a principle of justice that is reflected in our legal practice.
Keywords: corrective justice, distributive justice, dependency, efficiency, private law, tort law, entitlements, private transactions
Andrew Halpin, “Correlativity and its Logic: Asymmetry not Equality in the Law”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 1 (February 2019) pp. 83-108
This article provides a scheme of intelligibility for correlativity, recognising its importance for analytical and normative aspects of legal relations. It considers a variety of types of normative correlativity, investigates the logic of correlativity, and distinguishes three forms of correlation involving legal rights. It undertakes careful re-examination of Aristotelian texts to reveal neglected or misrepresented insights, restores certain Hohfeldian distinctions, and argues for a more complicated relationship between correlativity and reciprocity than previously acknowledged. Specific sections employ the scheme to provide critiques of Weinrib’s use of correlativity in his understanding of private law as corrective justice, and Zylberman’s amalgam of reciprocal correlativity in his non-instrumental view of human rights. A brief concluding section notes the deep asymmetry of law and suggests an understanding of corrective justice based on asymmetry rather than equality. More speculatively, it raises doubts about the core conviction of Kantian thinking on legal and social relationships.
Ori J. Herstein, “Nobody’s Perfect: Moral Responsibility in Negligence”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 1 (February 2019) pp. 109-125
Given the unwittingness of negligence, personal responsibility for negligent conduct is puzzling. After all, how is it that one is responsible for what one did not intend to do or was unaware that one was doing? How, therefore, is one’s agency involved with one’s negligence so as to ground one’s responsibility for it? Negligence is an unwitting failure in agency to meet a standard requiring conduct that falls within one’s competency. Accordingly, negligent conduct involves agency in that negligence is a manifestation of agency failure. Now, nobody’s perfect. Human agency is innately fallible, and a measure of agency failure is, therefore, unavoidable. The more one’s negligence manifests failure in one’s agency as an individual, the more one is responsible for it. In contrast, the more one’s negligence involves the shortcomings innate to all human agency the less responsible one becomes, because one’s agency as an individual is less and less involved in one’s failure. Determinative of the measure of individual and of human failings mixed into an instance of negligent phi-ing is the background quality of one’s agency at meeting one’s competency at phi-ing. That is, how able one is at delivering on what one is able to competently do. The more able, the less one’s occasional instances of negligence involve manifestations of failures of one’s agency as an individual—nobody’s perfect—and are more manifestations of one’s agency’s innate human fallibility, making one less and less responsible for one’s negligence.
Keywords: responsibility, moral responsibility, negligence
Kyle L. Murray, “Philosophy and Constitutional Theory: The Cautionary Tale of Jeremy Waldron and the Philosopher’s Stone”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No.1 (February 2019) pp. 127-158
This article considers the relationship between moral philosophy and constitutional theory through a detailed examination of the work of Jeremy Waldron—an unavoidable voice in contemporary constitutionalist debate. Through a rigorous, original and holistic deconstruction of his work and its philosophical implications, I argue that Waldron’s engagement with core philosophy within his constitutional scholarship is wholly problematic, containing a number of ambiguities and apparent inconsistencies. These issues, I suggest, may stem from an at times rather casual treatment of the realist/anti-realist issue of core philosophy, perhaps owing something to his view that it is in fact safely irrelevant to his constitutional pursuits. In any case, this view, I argue, is misguided, and the problems which result are real: they not only create issues of theoretical consistency and clarity; they put Waldron’s constitutional theory in danger. Like all good tales, I suggest there are lessons to be learned from this: one must think, and think carefully, about the philosophical background of one’s work, and take care in setting this out in a clear, thorough and coherent way—the stakes are too high not to. With this in mind, this article also lays some groundwork for a path into constitutional theory firmly grounded in my own anti-realist moral scepticism.
Keywords: Jeremy Waldron; philosophy; constitutional theory; realism; anti-realism; objectivism; anti-objectivism; moral scepticism; irrelevance thesis; constitutional authority; instrumentalism.
Debra Satz, The Coxford Lecture: “Do Markets Drive Out Traditional Values?”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 1 (February 2019) pp. 159-172
This article explores the claim that markets can undermine the traditional values and motivations upon which a liberal society depends. Markets are alleged to do this through producing and distributing human motivations as well as goods and services. If this is correct, then this consequence gives us reason to protect non-market spheres of life. This concern finds little place in standard economic models. However, an earlier tradition—which includes Adam Smith as well as Karl Marx—addressed the corrosive effects of economic incentives on non-market values. I assess their earlier arguments and examine the contemporary evidence that markets provide individuals with incentives to be self-centered, unreliable and base. I conclude that we have much to learn from this earlier tradition.
Guillaume Tusseau, “Towards a Linguistic Criticism of Legal Hegemony: Some remarks on ‘Bentham v. Judges and Co.’”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 1 (February 2019) pp. 173-194
Bentham’s hatred of the major elements of the legal culture of his times is legendary. He thoroughly criticised the notions of natural law and social contract that were at the roots of Blackstone’s legal doctrine as so many fictions. His criticism also centred, in a more technical manner, on several fictions that belonged to the ordinary legal reasoning of the common lawyers. Substantive fictions such as the crime of grand larceny and procedural fictions such as the procedure of ejectment were everyday fare for legal practitioners. By unveiling how these fictions, understood as linguistic devices, operated, Bentham highlighted how they contributed to debase the law’s addressee’s practical reasoning in order to reinforce her subjection to the class of jurists. His contempt for artificial (but purposeful) legal technicalities allows to understand how full blown the hermeneutics of suspicion he developed against the hegemony of legalism (which will sound familiar to Marxists) was. Nevertheless, one cannot help concluding that Bentham might have been the very victim of the power structure he fought.
Raef Zriek, “Ronald Dworkin and Duncan Kennedy: Two Views of Interpretation”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 1 (February 2019) pp. 195-234
Ronald Dworkin and Duncan Kennedy represent arguably two opposing poles in legal theory. This paper offers a novel frame for reading their respective legal theories which reconceptualizes the traditional way in which they were opposed, and new ways to compare them, to understand their commonalities and their differences.
While Dworkin is taken to be a champion of a theory of rights, he is also associated with a certain theory of interpretation which holds that even in hard cases judges have limited discretion and a right answer to every legal question we might reasonably encounter. Kennedy, in contrast, seems to disagree with Dworkin in every conceivable respect such as the nature of law and legal reasoning, the role of right, the relation of law to its outsides (politics/ideology), thus questioning the objectivity and neutrality of legal reasoning, and he seems to be advocating what could be termed as a “radical indeterminacy” thesis.
The paper attempts reading Dworkin and Kennedy alongside each other, rather than in opposition, and so it deploys two interrelated strategies to establish such frame. One is concerned softening what appear to be rigid opposition through scrutinizing their writings, whereas the other takes stock of the common themes, presuppositions, images of law, and sensibilities that both share either explicitly or implicitly. This double strategy reveals the arguments that are attributed to them and which they themselves deny they are making. To that end, the paper unveils an unacknowledged shift toward phenomenology in legal theory that took place in the last few decades.
Gregory S. Alexander, Critical Notice: “Can Human Flourishing Be Liberal? Human Flourishing, Liberal Theory, and the Arts by Menachem Mautner”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 1 (February 2019) pp. 235-247
The renewed interest in virtue ethics raises again a persistent question, namely, the relationship between the virtue ethics theory and liberalism as a political philosophy. Virtue ethicists focus on the good—i.e., human flourishing—and debate what constitutes that good. This focus creates a problem for liberals who are rights-oriented, which is the dominant form of contemporary liberalism.
The recent and timely book by Menachem Mautner, Human Flourishing, Liberal Theory, and the Arts, reminds us, however, that liberalism comes in many stripes. There is no one liberalism. Rather, there are many liberalisms. I discuss three aspects of Mautner’s remarkable and important book: first, his conception of human flourishing and its relationship to liberalism; second, his argument that a liberal political order committed to human flourishing ought to promote the arts; and third, his argument that the liberalism of flourishing is better able than neutralist liberalism to compete with religion in providing what Mautner calls “Big Meaning.”
Keywords: liberalism, human flourishing, virtue ethics, autonomy, liberalism of flourishing, the arts, art education
Shivprasad Swaminathan, Book Review: “Law in Theory and History: New Essays on a Neglected Dialogue edited by Maksymilian Del Mar and Michael Lobban”, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No. 1 (February 2019) pp. 249-254
This volume is an important contribution to a topic which has seen something of a resurgence lately and one from which both legal theorists and legal historians will greatly benefit. Some of the essays in this volume tackle questions on the ground floor, as it were, of interactions between legal theory and legal history. Others offer metatheoretical reflections on legal theory and legal history. Some combine the two. Given that the essays offer a rich variety of perspectives and do not unfold according to a master plan, it would be ill advised for a reviewer to impose an artificial order on them to be able to discuss the whole in one go. Instead, the discussion in this review will revolve primarily around some key themes revolving around the method and aims of legal theory.
