August 2020

Elkanah O. Babatunde, “Distributive Justice in the Age of Climate Change”, Canadian Journal of Law & Jurisprudence, Vol. XXXIII, No. 2 (August 2020)

In this paper an argument has been made for the application of distributive justice within the global climate change framework. It is argued that the injustice inherent both in the climate change problem and in the wealth gap between developed and developing countries gives rise to demands for justice and for the correction of these past injustices. Relying on Kant’s argument that human beings are naturally equal, equally deserving of honour and a decent life. The inequality that exists is a product of man’s injustice to man and it is the duty of the state to remedy this inequality and ensure that support is provided for the poor. In doing this, the state is not doing charity, it is merely returning the poor to a state which it would have been without the injustice. Distributive justice thus serves a corrective purpose. Or so one must hope.

Mark McBride, “The Unavoidability of Evaluation for Interest Theories of Rights”, Canadian Journal of Law & Jurisprudence, Vol. XXXIII, No. 2 (August 2020)

The aim of this article is to enter the debate over what I shall dub Gopal’s Granny—a case in the realm of the so-called third party beneficiary issue, wielded by Gopal Sreenivasan particularly against one of the foremost defenders of the interest theory, Matthew Kramer. It is my contention that the issues posed by Gopal’s Granny strike at the core of the interest theory. Put differently, Gopal’s Granny is no ordinary, run-of-the-mill counterexample; rather, it strikes at the core of the very structure of the interest theory, and enforces sustained self-reflection on the part of such theorists about the nature, and evaluative commitments, of their theory of rights. The ultimate aim of the paper, then, is to see how best an interest theorist should respond to Gopal’s Granny. But, in the course of prosecuting this aim, several distinctions and points of method central to general conduct in debates over rights will emerge. The conclusion is that, while the interest theory is still standing as a candidate theory of rights, or right-holding, it’s in urgent need of some complex surgery. 

Keywords: Statutory interpretation, diachronic integrity, democracy, reflective equilibrium.

Ivan Ozai, “Two Accounts of International Tax Justice”, Canadian Journal of Law & Jurisprudence, Vol. XXXIII, No. 2 (August 2020)

The contemporary international tax regime has been increasingly criticized over the years from varied perspectives, particularly as to the unfairness it produces to developing countries. In this article, I contrast two accounts of normative evaluation of the present international tax regime. One builds on the tradition of international political legitimacy and points to the lack of inclusivity of less powerful countries in the international tax policy-making process. The other builds on the tradition of international distributive justice and points to the imbalance in the allocation of taxing rights impacting less affluent countries. These two normative dimensions are frequently confounded in discussions of international tax policy, leading to what I call the Legitimacy-Justice Fallacy.

In this paper, I argue that contemporary rhetoric around justice in the international tax community demonstrates an outsize focus on political legitimacy to the exclusion of a genuine concern for distributive justice, to the ultimate detriment of the pursuit of international tax justice. Justice requires not only improving inclusivity of less affluent countries in the current tax policy decision-making (political justice) but also establishing a normative framework that provides them with equitable taxing rights (distributive justice).

Nahshon Perez, “Governmental-Funded Religious Associations and Non-Discrimination Rules: On Immunity and Public Funding”, Canadian Journal of Law & Jurisprudence, Vol. XXXIII, No. 2 (August 2020)

Many religious associations exhibit norms that are discriminatory. Religious associations are often thought to be exempted from non-discrimination rules. In many such debates, the assumption is that religious associations function in a religion-state model of separation. However, the current article examines discrimination exercised by religious associations that are funded by the government. In such cases there is a specified type of collision between non-discrimination rules and the presumed right of state-funded religious associations to associational autonomy or ‘immunity’ that is neglected in the literature. The current article asks: in what way, if at all, does receiving state funding change the presumed right of religious associations to be exempted from non-discrimination rules? The main argument is that if there is such a right to immunity, receiving state funding does not necessarily eliminate it; much depends on how each case fairs in a multivariable test that aims to maintain the balance between associational religious autonomy and protecting individual citizens from discrimination.

Sebastián A. Reyes Molina, “Judicial Discretion as a Result of Systemic Indeterminacy”, Canadian Journal of Law & Jurisprudence, Vol. XXXIII, No. 2 (August 2020)

The main claim of this paper is the following: In a typical rational legal system, legal adjudication is necessarily discretional. Discretion is the result of what I call ‘systemic indeterminacy’. Systemic indeterminacy is the thesis that claims that typical rational legal systems that have an interpretative code with more than one interpretative directive and the non-redundancy clause are necessarily indeterminate. Since typical rational legal systems do not have redundant rules a plurality of interpretative directives will necessarily yield a plurality of interpretative results. Due to the non-liquet rule judges are obligated to choose among the different interpretative results provided by the interpretative code. In other words, by building a thesis on legal indeterminacy as the consequence of having a plurality of interpretative directives that necessarily yield different results, I proceed to provide an account of discretion as a necessary feature of legal adjudication.

Keywords: Legal Interpretation; Ambiguity; Vagueness; Discretion; Legal Indeterminacy; Adjudication.

Ram Rivlin, “Fairness in Allocations of Parental Responsibilities, and the Limits of Law”, Canadian Journal of Law & Jurisprudence, Vol. XXXIII, No. 2 (August 2020)

When families dissolve, familial burdens and benefits as marital property and the burden of child support should be distributed. These allocations, sometimes made by courts and sometimes through private negotiation, are better to be fair. Also requiring allocation is the right and duty to take ongoing care of one’s children. Current legal schemes of allocation either ignore the allocation of caregiving while distributing property and support duties; or alternatively take the allocation of custody into account by seeing it as an extra burden inflicted on the custodian, hence seeing the custodian as entitled to exemption from the duty of support or even to a bigger share in the marital financial resources. Yet caregiving might be regarded as a benefit rather than a burden, at least when both parents genuinely desire to provide caregiving. Shouldn’t we lean the allocation of property and support in favor of the non-residential parent, as a counterbalance?

In order to evaluate this suggestion, the paper first undertakes a long list of simplifying assumptions, attempting to provide the best possible defense for such line of argument. Through these assumptions, the discussion abstracts from other relevant considerations as the best interest of the child, gender-justice considerations, various confounding contingencies and the obstacles for legal implementation. The paper then drops these assumptions, one by one, considering their effect on both the principled requirements of fairness and the appropriate legal regulation, thus carefully evaluating the argument and its limits. It then considers its ramifications on the general appropriate legal norm, on the legal norm that applies to private ordering, and on the moral norm that applies to the contracting parties, exploring the anti-Holmesian idea of assessing the law from the perspective of the good person.

Keywords: divorce settlement; child support; marital property; fairness; law and morality.

Alessio Sardo, “Categories, Balancing, and Fake News: The Jurisprudence of the European Court of Human Rights”, Canadian Journal of Law & Jurisprudence, Vol. XXXIII, No. 2 (August 2020)

Freedom of expression is often regarded as a necessary precondition for democracy and for the implementation of a system of human rights; however, the contours of this notion are difficult to identify. The present essay focuses on recent ECtHR case law, with an eye to fake news and web-speech. The jurisprudential analysis illustrates how the Strasbourg Court has traditionally relied on a form of categorical balancing for applying the protections of Article 10 ECHR. The author explores the possibility of extending the traditional, structured balancing method to fake news as a particular category of web-expression. The construction of a unitary notion of fake news is not easy. However, it is possible to create a neutral, minimal working definition, and to isolate several sub-categories that can be coupled with different balancing tests. A fine-grained categorization of ‘fake news’ is a safeguard against forms of censorship in disguise, “collateral” over-censorship, and judicial arbitrariness.

Keywords: freedom of expression; balancing; proportionality; Article 10 ECHR; human rights; fake news.

Igor Shoikhedbrod, “Private Law’s Estranged Bedfellows: Why Pashukanis Should Worry Contemporary Formalists”, Canadian Journal of Law & Jurisprudence, Vol. XXXIII, No. 2 (August 2020)

This article begins by exploring Evgeny Pashukanis’s reception among liberal legal theorists, starting with Lon Fuller, through Hans Kelsen, and all the way to the Kantian representatives of the ‘Toronto School’—Ernest Weinrib and Arthur Ripstein. After showing counter-intuitive affinities between Pashukanis and contemporary Kantian legal formalists, I show why these estranged bedfellows are misguided in their fetishization of private law and the transactional equality of abstract rights bearers. I also take up Arthur Ripstein’s exposition of the private law of torts in Private Wrongs and explain why it fails to address Pashukanis’s enduring challenge and the most glaring wrong within private law—condoning voluntary but exploitative contracts between individual labourers and capitalists in a capitalist market system that is based simultaneously on reciprocal exchange and class domination. In the end, private law and the norms on which it continues to be grounded by contemporary formalists lacks theoretical resources for redressing impersonal class domination. Pashukanis is shown to offer the most serious challenge to contemporary formalists precisely because he shares most of their theoretical assumptions while seeking to unmask relations of domination that are concealed by the liberal legal form.

Michaël Lessard, “Discussion: A Dynamic Judicial Approach to Diachronic Legislative Integrity”, Canadian Journal of Law & Jurisprudence, Vol. XXXIII, No. 2 (August 2020)

Courts are committed to promoting the integrity of legislative bodies through time, whether or not the latter are devoted to it. Such commitment materializes through theories of statutory interpretation that assume the law forms a consistent, coherent and complete whole. Courts assume that legislative bodies already—and have always—abided by “diachronic integrity,” that is, a commitment to consistency and coherence over a series of legislative decisions. Yet, contrary to this assumption, legislatures do not do so. Legislative bodies may change their minds over time. I argue that a realistic respect for diachronic legislative integrity should account for the dynamism of legislative activity. Whereas a “static” account assumes that legislative bodies have reached some sort of reflective equilibrium where each piece of legislation is consistent and coherent with the others, a “dynamic” account understands that legislative bodies are instead in an ongoing process of building this consistency and coherence and revising their judgments and principles upon learning new information, discovering undesirable outcomes and changing decision makers. Such a dynamic judicial approach to diachronic legislative integrity is more respectful of democracy.

Keywords: Statutory interpretation, diachronic integrity, democracy, reflective equilibrium.

Luigi Lonardo, “Book Review: Legal Directives and Practical Reasons by Noam Gur”, Canadian Journal of Law & Jurisprudence, Vol. XXXIII, No. 2 (August 2020)

In Legal Directives and Practical Reasons, Noam Gur presents a ‘dispositional model’ of authority: valid law creates a law-abiding attitude, a persistent but nonetheless overridable disposition to obey the law. This model has the virtue of recognising the bindingness of law while leaving scope for case-specific assessment of legally required actions. While Gur’s dispositional account has controversial aspects it is a welcome addition to that field of legal theory concerned with the normativity of law, the reasons for action, and the fundamental question: what is law? Gur’s work is bound to be indispensable and deeply engaging reading for students and scholars working in jurisprudence, legal theory, and the philosophy of action.