bluuebunny/crossref_metadata_2025 huggingface dataset:
Cognitive-Behavioural Treatment of a Thunder-Phobic Child
Authors: Matthey Stephen
Published: July 2016

This case report describes the successful treatment of a five year-old girl with phobic reactions to thunderstorms. Treatment consisted of six components: self-statements; positive reinforcement; peer modelling; exposure to a videotape of a weather report and exposure to an audiotape of storms; and, exposure to a school weather project. Ratings of the girl's behaviour were provided independently by the girl's mother and her teacher at pre- and post-treatment, and at a seven and twelve month follow-up. These ratings showed a decrease in fear behaviour at the end of treatment, and this decrease was maintained over the follow-up period.
Children's Perceptions of Time Out and Other Maternal Disciplinary Strategies: The Effects of Clinic Status and Exposure to Behavioural Treatment
Authors: Dadds Mark R. , Adlington Fiona M. , Christensen Alison P.
Published: July 2016

Behaviour therapy is now beginning to assess the social validity, along with efficacy, of its treatments. Literature dealing with the social validity of parent-training programs is reviewed. The aim of this investigation was to obtain acceptability ratings of the “time out” procedure from the perspective of behaviour problem and non-problem children. The study looked at acceptability ratings of five maternal behaviours/disciplinary techniques (permissiveness, physical punishment, directed discussion, quiet time, time out) across four different situations (non-compliance with an initiating instruction, aggression toward others, non-compliance with a terminating instruction, non-compliance with known rule) by samples of clinical (problem behaviour) children and control children. Both groups were alike in rating permissiveness as less acceptable than any of the other behaviours across most situations and rating it as unacceptable in absolute terms. Time out was rated equally acceptable with physical punishment, directed discussion and quiet time. The results support previous findings that young children prefer interventionist to permissive parents, including the use of exclusionary time out. In a second study, ratings were taken from two clinical groups, treatment and waitlist, both at pre- and post-treatment. Despite large individual differences in the treatment group, no change in acceptability ratings was found at post-treatment. Thus, experiencing time out did not change the children's evaluation of this procedure. Possible reasons for these findings and their practical implications are discussed.
Behavioural Treatment of Compulsive Polydipsia: Two Case Studies
Authors: Oldenburg Brian
Published: July 2016

Two case studies are described where behavioural strategies, including response prevention and controlled drinking, were used to successfully treat chronic compulsive polydipsia where traditional medical management had failed. The improvement during treatment and at the 3-month follow-up was reflected not only in reduced fluid intake but also in the reduction of associated thirst symptoms and psychological distress. The implications of these results for treatment of polydipsia and non-compliance with fluid restrictions, particularly among dialysis patients, are discussed.
Comparison of the Effects of Induced Muscle Tension Variations on Task Performance in Headache-prone and Non-headache Subjects
Authors: Moran Carmen C.
Published: July 2016

Tension (muscle contraction) headache is often associated with high task demands, and relaxation is frequently recommended during daily work activities in many treatment programs. The effect of relaxation on concurrent task performance is assumed to be beneficial, or at worst to have no effect, but this assumption is seldom made explicit. This paper presents results from two experiments which have examined the effects of muscle tension and relaxation on concurrent task performance, in headache-prone and non-headache groups. Results indicated that induced frontalis relaxation did not generally result in optimal task performance; the performance measure affected (accuracy or reaction time) was related to the type of task being performed. Differences between the headache and non-headache subjects were especially related to interactions between task difficulty level and “optimal” level of frontalis tension. Further research is needed to clarify the aspects of performance most affected by variations in frontalis tension and the appropriateness of attempting to relax the frontalis muscle in task situations.
Behavioural Assessment: Basic Principles
Authors: Molley Geoffrey N. , King Neville J.
Published: July 2016

Those seeking a definition of “behaviour therapy” or “behaviour modification” may experience some frustration when textbooks and journals are consulted. At one stage it was generally agreed that behaviour therapy involves the application of the principles and knowledge of modern learning theory to maladaptive human behaviour (Eysenck, 1959). However, this definition has been challenged. It has been suggested that behaviour therapy should not be restricted to learning theory but encompass experimental psychology and related disciplines such as physiology and neurophysiology (Yates, 1971). Still others suggest that ties to learning theory and experimental psychology are tenuous and should be discarded (Lazarus, 1971). With the advent of several conceptual variations — applied behaviour analysis, the neobehaviouristic stimulus-response model, multimodal behaviour therapy, social learning theory and cognitive-behaviour modification — attempts to define behaviour therapy are even more difficult. However, Kazdin and Hersen (1980) suggest that the major characteristics of behaviour therapy consist of:

1. A strong commitment to empirical evaluation of treatment and intervention techniques;

2. A general belief that therapeutic experiences must provide opportunities to learn adaptive or prosocial behaviour;

3. Specification of treatment in operational and, hence, replicable terms;

4. Evaluation of treatment effects through multiple-response modalities, with particular emphasis on overt behaviour.
The Behavioural Approach to Teaching Package (BATPACK): Evolution and Evaluation
Authors: Wheldall Kevin , Merrett Frank
Published: July 2016

The development of an in-service teacher training package is described which has the aim of training primary and middle school teachers to use behavioural methods of classroom management. It is shown how the package evolved from the programme of experimental behavioural research carried out by the authors in schools over the last ten years. Emphasis is placed on the on-going evaluations of successive versions of the package. The package was continually revised until it could meet the criterion of bringing about measurable changes in observed teacher behaviour and in the behaviour of primary and middle school classes. Experimental findings supporting its effectiveness are presented and discussed.
The Use of Reinforcement Procedures in Retraining Hand Movement of a CVA Hemiplegic
Authors: Smith John F. , Henriques Mary Ann , Parsonson Barry S.
Published: July 2016

This study investigated the effectiveness of reinforcement procedures in retraining upper extremity movement impaired as a result of cerebrovascular accident. A simply constructed instrument permitted accurate measurement of motor responding and, under some treatment conditions, provided the subject with direct feedback of movement. Experimenter praise for movement which met a pre-selected standard or criterion, in combination with binary visual feedback of performance and a knowledge of progress condition, was shown to bring about continuing improvement in the hemiplegic subject's range of supination. Praise with binary feedback alone functioned only to sustain responding at above baseline levels.
Hat Therapy: A Parody
Authors: Hunter Allen
Published: July 2016

An extensive review of the various approaches to therapy has found that most, if not all, can be described by epithets normally attributed to behaviour therapy, such as arid, rigid and sterile. Little-known papers have shed light on what could be described as existential leaps, or paradigmatic shifts in approaching therapy, leading to the present paper. This paper describes an entirely new approach to therapy, known as Hat Therapy, which embodies a collection of techniques thread through with a unifying theory. The origins, and empirical data supporting the theory behind Hat Therapy are presented, along with an explanation of new terms necessarily coined to encompass the complexity and originality of the approach. Applications for behaviour change are also presented.
Twenty Years of Token Economies in Psychiatric Institutions: Some Basic Issues
Authors: Winkler Robin C.
Published: July 2016

Developments over the last twenty years in the use of token economies in psychiatric institutions are reviewed. Token economies are considered in the context of two systems: the internal social system of psychiatric institutions and the mental health service system as a whole. Two themes emerge: the first concerns difficulties in establishing and maintaining token economies and the second, the impact of deinstitutionalization policies. It is argued that, although token economies remain viable for intervention goals internal to the institution, they have not been proven viable in furthering the goals of deinstitutionalization. Post-institutional programmes and community alternatives to institutions are of more current value than token economies in institutions.
Behavioural Assessment of Pharmacotherapy
Authors: Singh Nirbhay N. , Beale Ivan L.
Published: July 2016

There is growing recognition of the need for adequate procedures for evaluation of the effects of psychotropic drugs on the behaviour of individuals. Traditional methodology for drug evaluation is group based and therefore inappropriate for use with only one or a few subjects. Alternative procedures are described that are suitable for use with even a single subject, based on single-case research designs developed by researchers in applied behaviour analysis. Guidelines are given for choosing designs and methods of measurement that control for the common threats to internal and external validity and will enable clear and unambiguous conclusions to be reached regarding drug effects.
A Behavioural Checklist of Career Exploration Activities for use in Vocational Guidance and Research: Preliminary Study
Authors: Athanasou James A.
Published: July 2016

Although career exploration is essentially a process for the individual, behavioural counsellors may become involved in its planning, ordering and evaluation. The purpose of the present study was to provide some initial data on a standardised behavioural checklist of career exploration activities — FINDING OUT FACTS ABOUT JOBS. The checklist was designed for use in vocational guidance and research. It contains 40 career exploration activities grouped into six response classes e.g., reading, writing, talking etc. The checklist was administered to 196 vocational guidance and senior high school students. Subjects reported an average of 14.3 career exploration activities, with talking to friends being the most frequent (83%) and writing to unions, the least frequent (2%). Hierarchical cluster analysis of the 40 by 40 squared Euclidean distance matrix betwen items, identified fourteen optimum groups of activities. These were generally grouped together on the basis of level of response. Overall, it was found that activites involving talking and reading were most highly correlated (r = 0.570 p<.001). It was argued that preliminary data from this study provided practitioners with a standardised list, a measure of current achievements, and some basis for individual comparisons in career-exploration. The role of the checklist in behavioural assessment was also outlined.
The Nature and Incidence of Classroom Behaviour Problems and their Remediation Through Preventive Management
Authors: Fields Barry A.
Published: July 2016

Classroom management rates highly as one of the major concerns and problems experienced by techers. Unfortunately, evidence of the extent and nature of management problems, particularly data related to behaviourally and emotionally disturbed children in classrooms is conflicting. The result is that differences in opinion exist as to the complexity and magnitude of the interventions required to deal with such children. This study investigates the proposition that extreme behaviour problems are rare in primary classrooms and that procedures for preventive management are sufficiently powerful to alleviate most classroom behaviour disturbances.
Efficacy Expectations, Training Performance, and Competitive Performance in Women's Artistic Gymnastics
Authors: Lee Christina
Published: July 2016

This paper reports on a study examining the relationships between self-efficacy, training performance, and competitive performance in women's artistic gymnastics. Data were collected during normal training sessions from 16 female competitive gymnasts. Efficacy expectations were somewhat more accurate than were previous competition scores in predicting competitive performance, although training performance was the most accurate predictor. The tracking of performance and efficacy for six gymnasts during the weeks prior to a major competition illustrated the development and interaction of skill level and efficacy expectations. Efficacy measures may provide information on gymnasts' states of readiness for competition, and can be assessed without interfering with normal training.
Self-Help Books in Behavioural Sport Psychology
Authors: Lee Christina , Owen Neville
Published: July 2016

Self-help books on behavioural and general psychological techniques for sport competitors have proliferated in recent years. As with self-help books in general, there is concern over the validity of these books and their ability to help an athlete develop positive and lasting changes in cognitive and behavioural control skills. This article looks at some of the current issues for behavioural self-help in general, and examines three popular self-help books for athletes. They are examined both from the point of view of independent use by the athlete, and from that of their use as adjuncts to face-to-face therapy.
Introduction: Carl Schmitt's Challenge to Liberalism
Authors: Dyzenhaus David
Published: July 2016

The collapse of the Weimar Republic (1918-33) haunts political debate these days. Disaffected groups again challenge, with increasing support, the most fundamental values of the liberal democracies. In dealing with the “fact of pluralism” contemporary political philosophy grapples with this challenge. Any attempt to contest conceptions of the good life going against the grain of liberal democratic values invites the charge that liberalism is just one ideology among others, each seeking to enforce upon the whole its own partial idea of the good.
Pluralism and the Crisis of Parliamentary Democracy
Authors: Leydet Dominique
Published: July 2016

Carl Schmitt levels two kinds of criticism against liberal parliamentarism. First, Schmitt seeks to refute the liberal conception of politics (which assumes the possibility of rational will formation) on the basis of his own existential view of the political (which employs the distinction between friend and foe). Second, Schmitt attempts to show why and how the evolution of our political system, specifically the development of mass democracy, has made parliament an obsolete institution. This approach is both more dangerous and plausible, because it does not presuppose an acceptance of Schmitt's own controversial conception of politics, and relies on observations about the parliamentary system that are shared and deplored equally by many liberals. In The Crisis of Parliamentary Democracy, Schmitt does not confront directly what he considers to be fundamental principles of the parliamentary system—rational and public discussion—but rather shows that since these principles are unrealizable given the changes which the system has undergone, parliamentary institutions remain an empty shell, devoid of any justification and credibility.
Carl Schmitt's Internal Critique of Liberal Constitutionalism:Verfassungslehreas a Response to the Weimar State Crisis
Authors: Seitzer Jeffrey
Published: July 2016

In one of his most famous dicta, the German legal and political theorist Carl Schmitt proclaimed it “obvious” that “all political concepts, images, and terms have a polemical meaning,” because “[t]hey are focused on a specific conflict and are bound to a concrete situation.” Taking Schmitt at his word, I argue that one must read Schmitt's masterpiece of comparative law from the Weimar period,Verfassungslehre, as a response to the Weimar state crisis. Schmitt's conceptual approach inVerfassungslehreaims to create a form of constitutional theory capable of compensating for structural defects of the Weimar state. ReadingVerfassungslehrein this way also reveals that Schmitt does not present his constitutional theory as an alternative to liberal constitutionalism, but rather Schmitt's comparative history of constitutionalism inVerfassungslehrelocates his decisionism at the very core of the liberal constitutional tradition.
Constitutional Theory and TheQuebec Secession Reference
Authors: Choudhry Sujit , Howse Robert
Published: July 2016

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion.
From Québec Veto to Québec Secession: The Evolution of the Supreme Court of Canada on Québec-Canada Disputes
Authors: Rosiers Nathalie Des
Published: July 2016

The Supreme Court of Canada has changed its approach in dealing with the complex symbolic issues surrounding Quebec’s role in the Canadian constitution as shown in two decisions: The Quebec Veto Reference (1982) and the Quebec Secession Reference (1998). This paper argues that, in the matter of Quebec/Canada disputes, the court should, as they did in the second decision, see themselves more as a forum for public debate than as simply a place for rule imposition. Process-oriented suggestions as well as framing principles are therapeutically better answers in this matter.
Toward a Proceduralist Theory of Secession
Authors: Weinstock Daniel M.
Published: July 2016

Substantive theorists of secession face a problem explaining why the international community ought on their view to withhold recognition from secessions which involve a loss in terms of the substantive criteria they privilege; this is so because the normal electoral politics giving rise to such a loss should not in their opinion meet with any adverse international reaction. The substantive theory of David Miller uses criteria for the legitimacy of secessions which give rise to strangely amoral consequences. A procedural theory of secession is to be preferred on both moral and pragmatic grounds; this is one which that countenance secession when appropriate procedural hurdles are cleared, regardless of the substance of the claims put forward by secessionists to justify secession.
Justifying Punishment
Authors: Blumoff Theodore Y.
Published: July 2016

Our reactions to actual crime-disbelief about the act committed, anger at the hurt caused, a desire to get even, and fear for ourselves and our children-arrive in an indecipherable rush of emotion. We perceive strong, intuitive, and sometimes oppositional reactions at once. So it is little wonder that no single traditional moral justification for punishment is satisfactory. Traditional theories, both retributive and utilitarian, are grounded in a priori truths that ignore the convergence of the theoretical, the practical and the emotional that gives rise to the need to punish. In their stead, we should embrace an advertently pragmatic theoretical approach, which recognize the primary need to protect ourselves against danger, but looks as well to providing reformation wherever possible. Such an approach does not ignore the traditional rationales. To eschew retribution entirely is to deny a deeply-rooted moral intuition and forego efforts to tame it. To jettison utility is to condemn the victim and community to perpetual fear; just to the extent that retributive impulses, by any name, undermine necessary forward-looking concerns about our future's safety, they poorly serve our needs, which include service to the victim, the community and the offender.
Do We Have A Right To Common Goods?
Authors: Marmor Andrei
Published: July 2016

The essay explores the question of whether people can have a right to common goods, such as the flourishing of their culture or national heritage. It first explains the concept of a common good and its distinction from other similar concepts, such as collective and public goods. Second, it argues that individuals ought not to have a right to common goods, unless a particular distributive principle applies to the good in question, and then the individual's right is the right to a certain share in that common good. Finally, the essay explores the question of how this analysis applies to group-rights, with respect to other groups and to members of the group itself.
Language, Rights, Remedies, and the Rule of Law
Authors: Réaume Denise
Published: July 2016

When Georges Forest challenged the validity of Manitoba’s Official Language Act in 1976, he opened up the larger issue of the status of the province’s English-only legislation. The courts had little difficulty in concluding that the Act, which purported to make English the only language used in the courts and legislature of Manitoba, violated s. 23 of the Manitoba Act, 1870. This left open the fate of legislation enacted over the preceding ninety years in breach of the obligation to legislate in both French and English. Prima facie, the natural remedy, in the Canadian constitutional context, would be to declare such unconstitutional legislation invalid and therefore of no force and effect. But this would have left the province with virtually no statutory law. To avoid this result the Manitoba Court of Appeal decided that s. 23 is directory rather than mandatory. This decision was appealed to the Supreme Court of Canada. At about the same time the federal government exercised its power under the Supreme Court Act to refer these remedial issues to the Court for its legal opinion. In Reference Re Language Rights under the Manitoba Act, 1870, the Court disagreed with the Court of Appeal’s classification of s. 23 as merely directory, but was equally troubled by leaving Manitoba without any statute law. Therefore, it declared all Manitoba’s statutes since 1890 to be invalid, but deemed the rights and obligations arising under them to be temporarily in force until the province could reasonably be expected to comply with s. 23. In order to reach this unusual result the Court relied on the doctrine of the rule of law. The constitutional remedies issue posed by this case is probably the most challenging that the Canadian courts have ever faced. The Supreme Court’s approach reveals important underlying presuppositions which go unnoticed in less difficult cases.
The Moral Obligations of Lawyers
Authors: Haber Joram Graf , Baumrin Bernard H.
Published: July 2016

Recent work in legal ethics has raised the question of whether lawyers, in performing certain kinds of actions otherwise criticizable on moral grounds, can escape such criticism by appealing to the role they occupy in the legal system. Such actions include but are not limited to “gray-mailing”, making truthful opposing witnesses look like liars, defending criminals believed to be guilty, and defeating just claims on technicalities. Often, the question has turned on whether the adversary system of which lawyers are members is itself a morally worthy system. And depending upon the answer to this question are the answers to a number of related questions. Of these, the most widely discussed is whether and to what extent a lawyer should respect a client’s confidences.
H.L.A. Hart and the Justification of Punishment
Authors: Cragg Wesley
Published: July 2016

Historically, discussions of the morality of punishment have been dominated by the conviction that punishment is an inescapable feature of social life. Thus it is widely believed that laws will not be respected unless those who break them are punished. Yet another view deeply entrenched is that avoiding or mitigating pain and suffering ought to be a fundamental goal of civilized societies. These two convictions are in obvious tension. Punishment requires the deliberated infliction of pain or suffering. How then can it be justified?
Native Rights as Collective Rights: A Question of Group Self-Preservation
Authors: Johnston Darlene M.
Published: July 2016

In his 1972 paper commissioned by the Inquiry on the Position of the French Language and on Language Rights in Quebec, Professor Francois Chevrette questioned the legal significance of the notion of “collective rights”:

The expression “collective rights” is not a term of art and it is significant both that it is found in the vocabulary of political philosophy and not found in the vocabulary of the jurist-technician. The reason is probably that the qualification “collective” attached to the word “rights” refers to the philosophical foundations of such rights much more than to their legal attributes or to their judicial implementation.
Authorial Intent and Hermeneutics
Authors: Patterson Dennis M.
Published: July 2016

The opposition between originalism and relativism is a persistent dualism in current debates over the nature of legal interpretation. For many legal academics, choice in interpretive theory is limited to the either/or of the authorial model of discourse or the “anything goes” approach of relativism of one stripe or another.

The struggle between these interpretive polar opposites had its origins in literary theory. In their classic essay, “The Intentional Fallacy,” W.K. Wimsatt and Monroe C. Beards ley argued that the only meaning worth investigating was that found in the literary text: to search after the “real intentions” of an author was to chase ghosts. Wimsatt and Beardsley influenced a generation of critics, but their thesis has, of late, been challanged anew.
Reasons, Authority, and the Meaning of “Obey”: Further Thoughts on Raz and Obedience to Law
Authors: Regan Donald H.
Published: July 2016

I recently published a long article discussing a variety of topics from Joseph Raz’s The Morality of Freedom. The article was part of a symposium on Raz’s work in the Southern California Law Review . Raz responded to the articles in that symposium, including my own.

From a perspective which surveys the whole range of views on political philosophy, Raz’s view and mine look very similar. Even so, we find many things to disagree about, which neither of us would regard as merely matters of detail. For the most part, we at least share a common understanding of our disagreements. But there is one set of issues we disagree about and where we seem to lack even a common understanding of the disagreement. These are issues about how authoritative directives function as reasons for action, and about whether, when we follow authority in the proper way, we can be said to “obey” it.
H.L.A. Hart’s Hermeneutic Positivism: On Some Methodological Difficulties in The Concept of Law
Authors: Hill H. Hamner
Published: July 2016

Despite the tremendous literature that has sprung up concerning Hart’s The Concept of Law, one very important feature of the work has been somewhat overlooked: its methodological underpinnings. While Hart himself says The Concept of Law may “be regarded as an essay in descriptive sociology”, this claim has not received adequate philosophical examination. Though a dedicated philosophical positivist, the distinctive feature of Hart’s legal philosophy – the internal aspect of rules – requires a social science methodology that moves him in the direction of hermeneutics. In defending the importance of the internal aspect of rules against the predictive theory of Scandinavian Legal Realist Alf Ross, Hart argues that without the internal aspect, one

jettisons something vital not only to the understanding of law but of any form of normative social structure. For the understanding of this the methodology of the empirical sciences is useless; what is needed is a ‘hermeneutic’ method which involves portraying rule-governed behaviour as it appears to its participants, who see it as conforming or failing to conform to certain standards.
Constructing a Theory of Punishment, Desert, and the Distribution of Punishments
Authors: Scheid Don E.
Published: July 2016

Punishment, by definition, involves the intentional imposition of some deprivation or suffering on individuals against their wills. On any moral view, there is a very strong presumption against doing this to people; so, if a society has an institution of punishment, some justification is needed. On the face of things, such an institution would seem to be an evil. What, then, is the justification for punishment? And once this question has been raised, related questions arise. Who should be punished and how severely? And what principle or principles should we use when setting up sentencing guidelines? Any adequate theory of punishment must provide some guidance, some useful headings, even if not a detailed chart, for answering these questions, among others.

In this paper, I outline a theory of punishment that I believe best answers these sorts of questions. Inevitably, some parts are far sketchier than others; but within the general outline, the major focus is on the concept of desert and on the application of desert principles in determining the just allotment of punishments. This leads to a framework for constructing a crimes/punishments schedule for sentencing. Along the way, a number of lesser issues are discussed as well.
Sexual Offenses and Consent
Authors: Brett Nathan
Published: July 2016

In this paper I address a question that has not been a prominent feature of cases or articles which have concerned the issue of consent in relation to sexual offenses. Much work has been done by judges and legal theorists regarding the defendant’s beliefs about the consent of the complainant and the mental element or mens rea of this offense. But, any answers to these questions presuppose some answer to a prior question: What is consent? What must be true of a person who does consent? What must be missing, on the other hand, in a situation where sexual activity takes place without consent?

Common sense provides a relatively simple answer to these questions: To consent is to give permission; a person acts without consent where no such permission has been obtained. It is this answer that I want to defend in this paper. This view assumes that talk of consent only makes sense in relation to some autonomy right. Giving consent involves autonomously making changes in a prevailing pattern of rights and obligations. It is a limited withdrawal of a right not to be interfered with; and it will make legally permissible actions that would otherwise be subject to criminal and civil penalties. To me it seems obvious that such a change in the prevailing pattern of rights and obligations can only take place where there is communication between the parties. This means that the question of consent is not just a question about the state of mind or attitude of the complainant. Rather, the matter which should be central to a court’s consideration of consent is the question of what was said or done that could be construed as granting permission to do the acts in question.
Self-Defence, Necessity and Duress: Understanding the Relationship
Authors: Horder Jeremy
Published: July 2016

The distinctions that may be drawn between self-defence, necessity and duress are interesting as a matter of theory, but may also be important in practice. In some jurisdictions, for example, duress and necessity are no defence to murder whereas self-defence is a defence available in principle to all crimes. In such jurisdictions, in homicide cases, the point at which one reaches the boundaries of self-defence and enters upon the terrain of necessity may thus be of crucial significance. Drawing on Suzanne Uniacke’s theory of self-defence, I would like to suggest that each defence can be distinguished by a different key issue. In necessity cases, the key issue is the moral imperative to act: what matters is whether in the circumstances it was morally imperative to act, even if this might involve the commission of wrongdoing, in order to negate or avoid some other evil. In duress cases, the key issue is the personal sacrifice D is being asked to make: should D be expected to make the personal sacrifice involved in refusing to give in to a coercive threat, rather than avoid implementation of the coercive threat by doing wrong? In self-defence cases, the key issue is D’s legal permission to act: where V unjustly represented a threat to D (normally, although not exclusively, through his—V’s—conduct), the question is whether necessary and proportionate steps were taken by D to negate or avoid the threat. For, D has a legal permission to take necessary and proportionate steps to negate or avoid an unjust threat, even if (exceptionally) these involve the use of lethal force. So baldly stated, the differences between the defences may seem obvious. Few common law jurisdictions, and few commentators, however, have appreciated the full significance of the differences, as we shall shortly see.
Partial Defenses
Authors: Husak Douglas N.
Published: July 2016

J.L. Austin is usually credited with having called attention to the existence of different kinds of defenses. His philosophical insights have inspired many legal commentators, especially theorists of criminal law. The contrast between justification and excuse forms the cornerstone of his thought. Austin’s most valuable contribution was to identify and explore the similarities and differences between justification and excuse. Yet a very important feature of these defenses as Austin conceived them is typically neglected by most of the scholarship that he inspired. Austin maintained that “few excuses get us out of it completely.” Clearly, he held the same view about justifications. But most of the subsequent work on justifications and excuses has treated each as complete defenses. A complete defense, by definition, precludes liability altogether. If the foregoing claim by Austin is correct, however, relatively few excuses (or justifications) are complete defenses. Those justifications or excuses that do not preclude liability altogether—which Austin believed to be the more numerous—might be called partial defenses. Partial justifications and excuses have received far less scholarly attention than those that result in acquittal. In this paper I hope to make some small progress in correcting this oversight.
Rational Environmental Choice: Lessons for Economics from Law and Ethics
Authors: Chapman Bruce
Published: July 2016

In an interesting and thoughtful bookThe Economy of the Earth: Philosophy, Law and the Environment, Mark Sagoff provides us with a sustained critique of the methods used by economists to inform environmental policy and regulation. He debunks the relevance of the efficiency criterion in particular, even when it is supplemented with a concern for equity, and argues that environmental problems are better analyzed in moral, aesthetic, cultural, and political terms. To make this argument, Sagoff relies on four key distinctions. These distinctions, which overlap to some extent, are drawn between: (1) the citizen and the consumer, (2) values and preferences, (3) public and private interests, and (4) virtues and methods.
Justifying Property and Justifying Access
Authors: Lucy William N.R. , Barker François R.
Published: July 2016

It is often assumed that there is an important conflict, perhaps even a contradiction, between claims to private property in land, on the one hand, and claims of public access to it, on the other. The conflict is manifest in the dispute, common to many industrialised countries, between those who have private property in land and those who claim access rights to that land for recreational purposes. The first aim of this essay is to clarify what is involved if this conflict is to be understood as taking place at the level of normative justification. Our focus is therefore narrow because we ignore other grounds which, though they need not necessarily ignore normative justification, do not regard it as central to an account of the genesis and existence of the conflict. So, for example, the conflict might be solely or mainly a product of self-interested pressure group politics or ideological dispute.
The Perfectionisms of John Rawls
Authors: Sheppard Steve
Published: July 2016

The acts of even the gods

Have ends beyond their intent.

John Rawls stands in a small pantheon of writers whose ideas have shaped the vocabularies of their age. Like a classical deity, his work has been invoked by disciple and dissenter alike as the essential totem of the modern liberal state. But his Promethean creation has grown independent from its original design, attaining significance not only for its initial merits but also for the competition it offers to the plan of its creator. So from the stage of Rawlsian liberal neutrality stalks the idea of legal perfectionism.

Legal perfectionism is the doctrine according to which officials may adopt and enforce laws according to the officials’ understanding of a good life, with the intended practical effect that people governed by such laws will lead better lives. In other words, legal perfectionism broadly enshrines the notion, sometime unpopular among Western theorists, that the government has, or should have, the power to reflect ideas of good and evil—the content of the good life or of good projects or of excellence—in framing the laws. While related both to older ideas of human perfection and perfectibility and to perennial concepts of virtue and morality, legal perfectionism has developed a distinct, modern meaning.
Pornography: A Liberal’s Unfinished Business
Authors: Langton Rae
Published: July 2016

Old wars about pornography and censorship have new armies in radical feminists. So Ronald Dworkin once remarked, defending the new relevance of his now classic liberal defense of free speech in his essay, ‘Do We Have a Right to Pornography?’ Dworkin was right about the new battles, but wrong about his argument, which on the new battle ground not only failed to justify the permissive conclusion he desired, but helped to justify the prohibitive conclusion he despised. Pornography’s traditional foes said pornography is immoral. Feminists said pornography is ‘the graphic, sexually explicit subordination of women through pictures or words’. Feminists said that pornography harms women, subordinates women, and silences women. In this context, Dworkin’s old anti-moralist defense of pornography missed its mark.
Rule and Reason in the Common Law of Foreign Judgments
Authors: Fassberg Celia Wasserstein
Published: July 2016

Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.

These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.
Azdak, The Rascal Judge
Authors: Lind Douglas
Published: July 2016

Beware of willing Judges

For Truth is a black cat

In a windowless room at midnight

And Justice a blind bat.

A third and shrugging party

Alone can right our wrong.

This, this, this, Azdak

Does for a mere song.

Bertolt Brecht’s The Caucasian Chalk Circle introduces the character of Azdak—a corrupt, disrespectful menial clerk who on the heels of a coup d’état finds himself appointed judge, complete with judicial robe and a wicker flask for a hat. The circumstances of his appointment foretell the irony of his tenure. A military coup spoils a sunny Easter Sunday in the Caucasian town of Grusinia. The governor is beheaded; the municipal judge hanged. Yet the Grand Duke, oppressive ruler of Grusinia and surrounding territories, escapes, due in no small part to unknowing protection afforded by Azdak. When Azdak learns the next day that the fugitive he harbored over night was the Grand Duke, he heads straight for the courthouse, raging at himself through the streets, to turn himself in and submit to punishment. No judge presides over the courtroom, however, only a few bored soldiers who find Azdak amusing though somewhat crazed. In their amusement they decide to make him the new judge, declaring that the old judge (still hanging in the corner) “was always a rascal. Now the rascal shall be the Judge” (72).

On becoming judge, Azdak acts anything but honorably and respectfully toward the law. He sits on the statute book to give himself a more regal aire. He takes bribes; he derides and ridicules the parties appearing before him; he requires a female litigant to perform sexual acts; he does a preliminary assessment of the worth of each lawyer’s arguments by asking the amount of his fee. In short, Azdak judges arbitrarily, with bias and partiality. By play’s end, immediately following his final decrees, he flees out of concern for his life, never to be seen again.
Scanlon on Promising
Authors: Pratt Michael
Published: July 2016

Legal orthodoxy has it that the wrong involved in breaking a promise, like that involved in breaking a contract, depends essentially on the making of a binding promise. It is in this sense sui generis. But philosophers are not so sanguine. T.M. Scanlon is the latest in a long line of moral philosophers who have sought to reduce the wrong of promise-breaking to a wider class of wrongs associated with a duty, variously formulated, not to disappoint the expectations one induces in another. I argue that Scanlon's theory founders on a logical impasse that plages all such reductionist accounts.
A Classical Perspective on the Modern Workplace: The Aristotelian Conflict in Sexual Harassment Litigation
Authors: Chamberlain Erika
Published: July 2016

The current structure of sexual harassment litigation in Canada poses unique issues for Aristotle’s distinction between corrective and distributive justice. Due to a series of decisions in the 1980s and 1990s, sexual harassment claims in Canada must be brought exclusively under human rights legislation. This system views sexual harassment as a form of sex discrimination, and roughly subscribes to the view that sexual harassment is an incident of distributive injustice. However, the form of the litigation tends to undermine its distributive justifications. The litigation generally corresponds to the traditional adversarial model, with the complainant seeking damages from the harasser. Consequently, some commentators have argued that sexual harassment should be treated as a private law cause of action, rather than an issue for the human rights system. This article examines the rationale for classifying sexual harassment as an object of corrective or distributive justice, and particularly whether harassment should be viewed as an individual or a group harm. It also addresses the emerging claims for heterosexual male-on-male or bisexual harassment, which create problems for the view that sexual harassment is a form of discrimination “because of sex.” Finally, the article explains how the distributive and corrective theories of justice are manifested in the extent of employer liability and the available remedies.
Unconstitutionality, Invalidity, and Charter Challenges
Authors: Giudice Michael
Published: July 2016

Inclusive legal positivism maintains that the existence and content of laws may, but need not, depend on standards of morality. As Wil Waluchow argues, inclusive positivism derives much of its plausibility through its explanation of Charter societies such as Canada. On his account, the fundamental rights of political morality contained in the Canadian Charter of Rights and Freedoms serve as ultimate criteria of the existence or validity of all laws in Canada, and thus form part of Canada’s rule of recognition. In this paper I challenge Waluchow’s inclusive positivist picture of Charter challenges. I argue instead that exclusive legal positivism, which maintains that resort to moral reasons may never figure in determinations of the existence or content of laws, better captures our ordinary understanding of the authoritative role of judges, constitutionality, and the traditional positivist conception of legal validity as a matter of social fact. Specifically, I argue that Joseph Raz’s notion of a directed law-making power, and not reliance on an inclusive positivist rule of recognition, best explains the duty of judicial review in Charter cases. Further, the fundamental rights of political morality recognized in the Charter are best understood as constitutional objectives, and not criteria of validity, which all subordinate laws in Canada ought to respect, yet may fail to do so in practice.