Canadian Journal Of Law and Jurisprudence

Abstracts from Volume XXIV, Number 2 (July 2011)

1. Tareq Al-Twail, “Does Restitution for Wrongdoing Give Effect to Primary or Secondary Rights?” Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 243-275.

There are two main and quite distinct contractual interests or rights constitutive of a contract. First, the interest in securing the contracted-for performance; secondly, the interest in ensuring, if that performance is not completely (but substantially) secured or not secured at all, that one is not left worse off as a result thereof. The claimant can bring a claim to give effect to his performance interest and/or can bring a claim to give effect to his compensation interest. It can be argued, however, that in some cases both the claimant’s performance interest and his compensation interest cannot be protected, and the defendant has obtained a profit from his wrongful breach of contract. This article suggests that in such cases a secondary right does not always mean that the defendant who infringes a primary duty has to make good the claimant’s pecuniary loss. It may require the defendant to surrender to the claimant the profits made from his wrongful breach. In such a case, it is a secondary right to restitution rather than compensation. The claimant’s compensation interest is here replaced with a restitution interest. This article explains why the defendant in such cases should surrender to the claimant, rather than the state (or anyone else), the benefit obtained through his wrongful breach of contract. Three additional scenarios will also be envisaged to capture the wide range of possible outcomes that may result from the defendant’s breach of his primary duty to perform and how they should be tackled. First, the claimant’s primary performance interest can no longer be protected and the defendant has caused a financial loss to the claimant and obtained a profit from his breach of contract. Second, a specific performance or cost of cure award addresses substantially the claimant’s primary performance interest, but despite that, the defendant has obtained a benefit from the breach without causing the former any financial loss. Third, a specific performance or cost of cure award addresses substantially the claimant’s primary performance interest, but despite that, the defendant has caused a loss to the claimant and obtained a profit from his breach of contract.  

2. Jeffrey Bone, “Legal Perspectives on Corporate Responsibility: Contractarian or Communitarian Thought?” Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 277-304.

This paper reviews the accountability regimes of contractarian and communitarian theory. The contractarian theory is further elaborated with the developments of shareholder primacy, the stakeholder theory and team production model (TPM), and the communitarian themes of single constituency, Catholic social thought (CST) and corporate citizenship. Contractarian theory is rooted in liberalism, where as communitarian theory is a humanist discipline. While contractarians stress the value of competition, liberty and freedom, the communitarians emphasize cooperation, justice and civic responsibility. The purpose of this analysis is to frame corporate ‘personhood’ in the perspective of the existing theories. This article suggests that corporate citizenship has been revived under Canadian law which contemplates a communitarian corporation.

 

3. Brian Bix, “John Austin and Constructing Theories of Law,”Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 431-440.

 One of the standard criticisms of John Austin’s work is that his portrayal of law, as essentially the command of a sovereign to its subjects, does not fit well with the way law is practiced or perceived by lawyers, judges, and citizens; and since the theory “fails to fit the facts,” Austin’s theory must be rejected in favor of later theories that have better fit. Many influential modern approaches to the nature of law, including Joseph Raz’s exclusive legal positivism and Ronald Dworkin’s interpretivism, while they criticize the lack of fit of theories like Austin’s, themselves unapologetically offer characterizations of legal practice that deviate in significant ways from the way most people practice or perceive law.  Thus, it appears that many contemporary legal theorists wish to have it both ways:  they use the deviations from conventional understandings as grounds for dismissing some theories by other scholars, but forgive or overlook comparable deviations in their own theories. This article explores what general principles can be learned, or developed, regarding when or to what extent deviation from the way law is practiced and perceived can be justified in a theory of the nature of law by other theoretical gains.  Additionally, the article considers whether, in light of the proper approach to fit and mistake in theory-construction, Austin’s theory of law might be a more viable alternative than is conventionally assumed. 

 

4. David Dyzenhaus, “Austin, Hobbes, and Dicey,” Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 411-440.

I argue that attention to Austin helps us to appreciate that there are significant continuities between his legal theory and that of contemporary positivists; hence, to the extent that Austin’s theory has defects, these are reproduced in the work of contemporary legal positivism.  An historical perspective on contemporary philosophy of law thus permits one to appreciate that the basic divide in legal theory is between a tradition whose basic intuition is that law is answerable to a moral ideal of legality and the positivist tradition that sees law as the transmitter of political judgment. For the former, the rule of law tradition, the basic problem for philosophy of law is to explain the distinction between the rule of law and the arbitrary rule of men. For the latter, the rule by law tradition, the basic problem is to explain how law can effectively transmit the judgments made political elites. The rule by law tradition encounters severe difficulties in making sense of the idea of government according to law, difficulties which reach their height once legal positivists accept, following Hart, that philosophy of law has to understand law as a normative phenomenon, which in turns requires taking seriously the internal point of view of legal officials.

 

5. Pavlos Eleftheriadis, “Austin and the Electors,” Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 441-453.

Austin's theory of theory of law is simple: the law follows the pattern of power; the sovereign gives commands and obeys none; the subject obeys commands; the law consists in only those commands that directly or indirectly emanate from the sovereign. Nevertheless, Austin's theory of sovereignty is not simple at all. When we look at the relevant chapters closely, it becomes evident that Austin has two rival theories of sovereignty, one for a single person and one for a 'determinate body'. It is only the latter that allows him to say that sovereignty lies, ultimately, with the electors, the strange conclusion of his book. But Austin's second theory of sovereignty is not consistent with his own theory of law. Austin's faces a dilemma. Is law - as most people take it to be - a public order of standards of conduct aiming to guide behaviour? If so, sovereignty ought to be public and intelligible. If not, sovereignty can remain a mystery to those living under it (accessible only after the event by the expert legal philosopher). For the latter reading, law and sovereignty are 'normatively inert,' as some of Austin's followers claim today. But Austin does not agree with his modern followers. Austin's second theory of sovereignty is aimed at satisfying a practical requirement of law and jurisprudence, i.e. to be in the position of publicly guiding conduct.

 

6. Talia Fisher, “Critical Notice: Force and Freedom: Can They Co-exist?”  Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 387-402.

Force and Freedom, a new book by Professor Arthur Ripstein, offers a comprehensive and highly sophisticated articulation of Kant’s legal and political philosophy. While Kant’s thinking on metaphysics and ethics has received paramount attention in the academic discourse, his contribution to legal and political theory has been somewhat marginalized. One reason for Kant’s exclusion from the central canon of political and legal philosophy is the abstract and very complicated nature of Kantian writing on law and political power, most particularly in the Doctrine of Right. Another reason is the difficulties many writers have encountered in their attempts to reconcile Kant’s political and legal writing with his moral philosophy.  Against this background, the novelty and importance of Force and Freedom cannot be overstated.

 

7. Jeffery Goldsworthy, “The Limits of Judicial Fidelity to Law: The Coxford Lecture,”Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 305-325.

This lecture asks whether judges might sometimes be morally justified in covert law-breaking in the interests of justice, the rule of law or good governance. Many historical examples of this phenomenon, are provided, drawn mainly from the British legal tradition, but also from Australia, Canada, India and the United States. Judicial noble lies are distinguished from fig-leaves and wishful thinking, and the relative importance of logic and pragmatism in legal reasoning is discussed. After examining arguments for and against judicial subterfuge, it is concluded that in modern liberal democracies subterfuge is justified only to avoid extreme injustices or violations of the rule of law.

 

8. David Lefkowitz, “The Principle of Fairness and States’ Duty to Obey International Law,”Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 347-346.

 I employ the principle of fairness to argue that many existing states have a moral duty to obey international law simply in virtue of its status as law.  On this voluntarist interpretation of the principle of fairness, agents must accept (in a technical sense) the benefits of a cooperative scheme in order to acquire an obligation to contribute to that scheme’s operation.  I contend that states can accept the benefits international law provides, and that only if they do so do states have a fair-play duty to obey international law.  In addition, I demonstrate that A. John Simmons’ criticisms of the attempt to use the principle of fairness to establish a duty to obey domestic law – both with respect to understanding the legal order as a cooperative scheme, and to agents’ acceptance of benefits – do not apply in the international context.

 

9. Michael Milde, Book Review of Roger Shiner’s Legal Institutions and the Sources of Law,Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 403-408.

Shiner has produced a valuable contribution to the field of analytical jurisprudence. He remains faithful to the investigative and exploratory task that he set for himself. Legal Institutions and the Sources of Law can be usefully consulted by anyone interested in the idea of a “source of law”. And it can certainly be used as an authoritative reference by those legal and political theorists who wish to pursue a fuller normative approach to law or politics.

 

10. Zoran Oklopcic, “The Migrating Spirit of the Secession Reference in Southeastern Europe,” Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 347-376.

Apart from examining the use of the Secession Reference in three post-Yugoslav, Southeastern European countries, this article also suggests that there is a different, more general reading of the Secession Reference that could have been deployed in Southeastern Europe. Before discussing what I call the ‘spirit of the Secession Reference’, I examine an important preliminary question: what could justify the migration of such a general constitutional idea? I argue that existing justifications for the use of comparative jurisprudence are either inadequate or need to be qualified before we can make an argument that the spirit of the Reference can indeed migrate. I then turn to outlining the components of the Secession Reference’s spirit. My argument is that the Secession Reference should be approached not only as a set of particular arguments and interpretive strategies, but also as embodying a distinct way of dealing with deep national diversity. To me, the spirit of the Secession Reference comprises four components: First, it embraces radical political projects as legitimate. Second, it establishes that all contentious political issues are subject to principled negotiations. Third, in doing so, it downplays the dominant contemporary vocabulary of popular sovereignty and self-determination. Fourth, as a result of the previous three components, the spirit of the Secession Reference simultaneously respects and deflates radical nationalist mobilization.

 

11. Matthew Schaeffer, “Aquinas and the Ontological Flexibility of Law,” Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 377-386.

When Saint Thomas Aquinas makes claims such as “that which is not just seems to be no law at all” it is a bit difficult to discern what he means.  Some think that Aquinas is defending what is now called the Strong Natural Law Thesis: for all X, X is a law only if X is just.  Others think that Aquinas is defending what is now called the Weak Natural Law Thesis: for all X, X is a non-defective law only if X is just.  In this paper, focusing on Aquinas’s metaphysics, I argue that both of these interpretations are mistaken.  Aquinas is primarily defending what we can call The Metaphysical Natural Law Thesis: since being and goodness are convertible, legal validity (i.e., the existence or being of a law) comes in degrees—and this entails that the justice of a law literally increases the amount of being a law possesses, while the injustice of a law literally decreases the amount of being a law possesses.  On this interpretation, then, the injustice of a law entails an ontological attenuation of the law without entailing an ontological annihilation of the law.

 

12. Fred Schauer, “Positivism Before Hart,” Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 455-471.

Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism largely from Hart, and the debates about legal positivism exist largely in a post-Hartian world. But if we examine carefully the writings and motivations of Bentham and even Austin, we will discover that there are good historical grounds for treating both a normative version of positivism and a version more focused on legal decision-making as entitled to at least co-equal claims on the positivist tradition. And even if we conceive of the inquiry in philosophical and not historical terms, there are reasons to doubt the view that a theory of the nature of law is the exclusive understanding of the core commitment of legal positivism. Positivism as a descriptive theory of the nature of law is important, but so too is positivism as a normative theory about the preferable attitude of society or theorists, and so too is positivism as a normative or descriptive theory of adjudication and other forms of legal decision-making. Those who understand positivism and the positivist tradition as being more normative or more adjudication-focused than the contemporary understanding allows are thus committing neither historical or philosophical mistakes, and little would be lost were we to recognize the multiple important contemporary manifestations of the legal positivist tradition.

 

13. Lars Vinx, “Austin, Kelsen, and the Model of Sovereignty” Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 2 (July 2011) pp. 473-490.

Hans Kelsen's critique of John Austin has so far attracted little attention among legal theorists. This article argues that Kelsen's attack on Austin anticipated the key elements of Hart's rejection of the Austinian conception of law as sanction-backed sovereign command. At the same time, the way in which Kelsen presents his critique of Austin's conception of sovereignty reveals important differences in purpose and intention between Kelsen's Pure Theory of Law and Hart's legal theory. The Pure Theory of Law is animated by an ideal of legality that is alien to purely descriptive jurisprudential approaches in the Hartian tradition.

The article concludes that this difference between Kelsen and Hart merits further exploration and that it might help to show that the Pure Theory of Law is still relevant to contemporary legal theory.

 

 

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