bluuebunny/crossref_metadata_2025 huggingface dataset:
Substantive Equality in Constitutional Jurisprudence: Meaning Within Meaning
Authors: Trakman Leon E.
Published: July 2016

The city…lists a host of nonracial factors which would seem to face a member of any racial group attempting to establish a new business enterprise, such as deficiencies in working capital, inability to meet bonding requirements, unfamiliarity with bidding procedures, and disability caused by an inadequate track record.

To accept Richmond’s claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for “remedial relief” for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs… We think such a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.

The minority ownership policies…are aimed directly at the barriers that minorities face in entering the broadcasting industry. The Commission’s task force identified as key factors hampering the growth of minority ownership a lack of adequate financing, paucity of information regarding license availability, and broadcast inexperience.

We hold that benign race-conscious measures mandated by Congress—even if those measures are not “remedial” in the sense of being designed to compensate victims of past governmental or societal discrimination—are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.

The excerpts introducing this article are drawn from two recent decisions of the Supreme Court of the United States on equality rights. Illustrating the directional changes in the nature of equality rights, they vary from antagonism to ambivalence towards remedial relief for disadvantaged groups. In particular, they illustrate the current debate between traditional individual rights and a new communitarian conception of equality rights.
Gender Equality in a Dual-Sex System: the Case of Onitsha
Authors: Nzegwu Nkiru
Published: July 2016

What is equality? How is it generally understood? What customs and norms produce its egalitarian features? What are its cultural and social markers?

Preoccupied with these questions I readA Theory of Justice. It was a brilliant book, very much like chess. It told me a lot about white men’s dreaming and nothing about the life I know. My reality in North America tells me that equality as “autonomous and the same” is a dream only privileged white men can have. Not only are they the ones with the luxury to dream this myth. Only they are “by nature free and equal” to do so. Moreover, only they construe themselves as “the natural proprietor of (their) own person(s) and capacities owing nothing to society for them.” As all-powerful patriarchs, they have imperiously universalized their myth to conceal their social, political, legal, economic, military, educational, and professional privileges.
Liberal Equality and the Justification of Multicultural, Civic Education
Authors: Andrews J.S.
Published: July 2016

The central feature of modern liberal political morality is the principle of equal respect for persons. According to Ronald Dworkin, governments have an obligation to treat each person as an equal, with equal concern and respect. In distributive contexts, this principle stipulates that each individual is entitled to an “equal” share of social resources, where equal is a function of what is required by the abstract principle of equal concern and respect. For Dworkin, this requirement means that liberal justice is fundamentally concerned with treating peopleas equalsand notequally. By treating someone as an equal he supposes that government must treat each of its citizens with equal dignity, regarding her as an individual with a standing interest in leading a truly good life. By contrast, to treat someone equally, according to Dworkin, “...requires that government treat all those in its chargeequallyin the distribution of some resource or opportunity....” To treat persons as equals, that is, with equal concern and respect, is to arrange for all individuals to receive those material goods and opportunities that make living a good life possible. For my purposes, I will assume that treating people as equals is the constitutive feature of liberal equality.
Self-Defense as a Justification for War
Authors: Ingram Peter Gordon
Published: July 2016

For those who believe in the values of liberalism and democracy the state is under a political obligation to seek the common welfare of its citizens. In furtherance of this domestic duty, it retains among its external rights and powers that right of self-defense which has been assigned to states under other ideologies.
Hate Promotion and Freedom of Expression: Truth and Consequences
Authors: Fish Arthur
Published: July 2016

........[he] pointed out the skill and art of the orator—how everything important to his purpose was said at the exact moment when he had brought the minds of his audience into the state most fitted to receive it; how he made steal into their minds, gradually and by insinuation, thoughts which, if expressed in a more direct manner would have aroused their opposition.

From the Autobiography of John Stuart Mill
The Deferral of Nature in Hume’s Theory of Justice
Authors: Kramer Matthew
Published: July 2016

In what follows, we must position ourselves in an obscure passage, a passage from the hostilities of nature to the serenity of civilized life. It is precisely here, at the dawn of social existence, that David Hume located the beginnings of law. His search for origins would eventuate in a narrative describing the spread of public peace by way of the greatest obstacle to such peace: unslacking self-interest. (That is what some refer to as an economy of means.) Along the route, language entered into his story with such prominence that it cannot safely be disregarded. We shall have to read Hume’s narrative as a narrative – that is, as a textual framing – if we hope to do justice to its arguments (about justice). To cross the gap between nature and society, we shall have to discover that the gap does not lie simply between them, but also lies within each of them. More specifically, we shall have to find that nature is perforce hollowed out by culture.
Legal Positivism and Natural Law Reconsidered, Again
Authors: Brink David O.
Published: July 2016

In my article “Legal Positivism and Natural Law Reconsidered” I suggested that we might be able to effect an interesting reconciliation of legal positivism (LP) and natural law theory (NL) by distinguishing two possible LP-NL debates. In particular, I suggested that we should distinguish, within legal philosophy, between theories of legal validity – that is, accounts of the existence conditions for valid law and theories (as I now would put it) of legal interpretation – and theories of adjudication – that is, accounts of how judges should decide cases. We can use this distinction to formulate two possible LPNL debates, one involving legal validity (LP1-NL1) and one involving adjudication (LP2-NL2). NL1 asserts and LP1 denies that the existence conditions for valid law and the theory of legal interpretation ensure that legal standards satisfy true or sound political morality to some significant extent. NL2 asserts and LP2 denies that the content of the correct or justifiable judicial decision must satisfy true or sound political morality to some significant extent. I sketched my own view of the relevant details of the theories of legal validity and adjudication and argued that these claims seem to vindicate LP1 and NL2 and so to allow a kind of reconciliation of LP and NL.
Liberalism and the Politicization of Ethnicity
Authors: Kymlicka Will
Published: July 2016

Most liberal democracies exhibit cultural pluralism, that is, citizens of the same country belong to various cultural communities, and so speak different languages, read different literatures, practice different customs. Most contemporary liberal political philosophy, on the other hand, assumes that countries are “nation-states”. Citizens of the same state are assumed to share a common nationality, speak the same language, develop the same culture. My concern in this paper is with how liberals have adapted their principles to deal with cultural pluralism.
Two Views of Collective Rights
Authors: Green Leslie
Published: July 2016

In this paper, I distinguish two views of collective rights, viz., rights of collective agents and rights to collective goods. My argument is that although both have a place in moral, political and legal argument, only the second can fulfil the political function generally assigned to collective rights, and that even it can do so only partially.
In Other Words: Putting Sex and Pornography in Context
Authors: Hutchinson Allan C.
Published: July 2016

We cannot ask reason to take us across the gulfs of the absurd. Only the imagination can get us out of the eternal present.

—Ursula Le Guin

Law controls sexuality not only by its coercive powers, but also through its discursive constructions. While there are other social forces and influences in play, sexual identities and sexual practices are framed within the ample reach of law’s linguistic domain. As well as enforcing prevailing moral norms and deciding the scope of socially-validated sexual behaviour, law also determines what counts as sex in the tableau of human behaviour. Although the relationship of law, sexuality and sex is always ideologically fraught, it is particularly so in regard to graphic representations of sex and sexuality. The debate around this so-calledpornographyhits a very sensitive nerve in the body politic. Indeed, in recent years, few social practices have managed to arouse as much intellectual angst and political anger as pornography. In part, this is because the debate seems to cut across traditional political lines; it sets traditional enemies against each other and fosters strange alliances among them. None of this should be too surprising as pornography touches profound issues which strike at the very heart of those dilemmas, difficulties and denials that comprise the human condition.
The Way The Law Is: On The Coherentist Character of American Legal Realism
Authors: Hill H. Hamner
Published: July 2016

Clifford Geertz claims that in a well-functioning legal system there should be a fit between what Geertz calls the “if, then” structure of legal rules and the “as, therefore” structure of legal decisions. Put simply, for a system of laws to work, the legal rules used to decide cases must make sense given how one understands the cases to which they are applied, and the resolution of the case must make sense given the legal rule chosen to decide it. There must be, in a well-functioning legal system, a fit, a symmetry, between the rules allegedly used for deciding cases and the actual practice of deciding cases. For Geertz, the following question always makes sense in a legal system: “How, given what we believe, must we act; what, given how we act, must we believe.” Geertz recognizes that his question parallels the sorts of questions that Nelson Goodman asks in epistemology, or that John Rawls asks in ethics, and he embraces what I take to be a Goodmanian, holistic approach to codifying the rules that govern practices.
On the Idea of Private Law
Authors: Stone Martin
Published: July 2016

This essay endeavors to comment on the main themes of Ernest J. Weinrib’sThe Idea of Private Law. Weinrib’s primary example of private law, and the example I shall pursue here, is tort law. In a typical torts case, the plaintiff complains that he has been injured as the proximate result of the wrongdoing (usually the negligence) of the defendant. This, the plaintiff says, is a breach of legal duty for which the defendant is liable. Questions about the foundations of tort law are questions about the significance of the terms in this story and about why, when it is proven that a transaction characterizable in these terms has occurred, the plaintiff is entitled to what he asks for, namely, compensation.
The Varieties of Legal Positivism: Critical Notice: Inclusive Legal Positivism by W.J. Waluchow
Authors: Perry Stephen R.
Published: July 2016

It is not easy to come up with a characterization of legal positivism that is not vacuous and yet at the same time is sufficiently general to capture the myriad theories of law to which, over the years, the positivist label has been attached. Wil Waluchow suggests in his recent book Inclusive Legal Positivism that the core of positivism is the simple claim that any connections between law and morality are contingent only, dependent on whether the right kinds of laws have been created in the right kinds of ways (81). As a thumb-nail sketch of positivism this suggestion is plausible enough, so far as it goes, but it is important to note that it focuses on the possible connection between moral value and law, as opposed to that between moral value and theories of law. For there is an important strand in positivist thought that is as concerned with denying the latter type of connection as it is with denying the former. We can, in other words, distinguish between what we might call methodological and substantive versions of positivism.
Liberalism, Self-interest and Precommitment: Critical Notice:Passions and Constraint: On the Theory of Liberal Democracyby Stephen Holmes
Authors: Duxbury Neil
Published: July 2016

Human reason is frequently frustrated. Efforts to act rationally—leave aside the fact that human beings are sometimes deliberately irrational—can be thwarted by a variety of obstacles and limitations. The fact that rationality often proves elusive ensures, among other things, that rationally-motivated courses of action sometimes have counter-productive consequences. Attempts to make certain goods and activities seem unattractive may lead people to be attracted to them. Endeavours to legislate in the public interest can sometimes make things worse for intended beneficiaries. Efforts at rational action, in short, can backfire.
Resituating the Judicialization of Politics: Bush v. Gore as a Global Trend
Authors: Hirschl Ran
Published: July 2016

The availability of a constitutional framework that encourages deference to the judiciary, and the existence of a political environment conducive to judicial empowerment have helped bring about a growing reliance on adjudicative means for articulating, framing, and settling fundamental moral controversies and highly contentious political questions. This has resulted in the gradual erosion of the exclusive prerogatives of legislatures and executives.
From Status to Treaty: Henry Sumner Maine’sInternational Law
Authors: Landauer Carl
Published: July 2016

The article focuses on the overlooked volume of Henry Sumner Maine’s corpus, the posthumously published International Law and uses it to respond to the general critical difficulty in establishing Maine’s posture. Maine, of course, makes it difficult with the numerous contrapuntal moves of this book and others. For example, he strongly criticizes the predominant view of international law as an accretionary process of commentary by one theorist following another and yet he places tremendous value on Grotius, “whose works acted on the spirit of belligerency like a charm,” and other early international legal theorists. He sees his contemporary environment as marked by increasing militarization, even of militarization of society during time of peace, while he describes the relative humanity of the present over the distant past.

Ultimately, Maine is a realist who focuses on late nineteenth-century manuals of war rather than the idealism of the Anglo-American peace movement, and recognizes the importance of Czar Alexander II over any of nineteenth-century international legal theorists. If J.W. Burrow has identified social evolution as providing Victorians an “intellectual resting-place” between theoretical clarity and social diversity, Maine’s broad social evolution allows him to mediate between the moral amelioration in international life and the practical realities of that life.
What Constitutions Can Do (but Courts Sometimes Don’t): Property, Speech, and the Influence of Constitutional Norms on Private Law
Authors: Gerstenberg Oliver
Published: July 2016

In this paper I want to address, against the background of the ECtHR’s recent attempt to resolve the clash between property rights and the right to freedom of expression in its decision inApplebyv.UK, two questions, both of which I take to be related to the overarching theme of “social democracy”. First, there is the problem of the influence of “higher law”-of human rights norms and constitutional norms-on private law norms; second, the question of the role of adjudication in “constitutionalizing” private law, in other words, the question of the “judicial cognizability” of constitutional norms within private law.
The EU and European Democracy—Social Democracy or Democracy with a Social Dimension?
Authors: Burchill Richard
Published: July 2016

In recent years democracy has become a prominent topic in the development of international law and relations. The trend in the international system in pursuit of international legal requirements of democracy is perhaps most evident in Europe with significant support coming from the regional organisations of Europe. The EU is part of this development having established treaty-based provisions making democracy a requirement for current and potential members. At the same time the economic integration project of the EU places a range of demands upon states which directly impact the type of democracy they may be striving for. Significantly, the EU’s requirements will influence the extent to which social democratic practices may be pursued. Examining the type of democracy the EU is promoting among its current and potential members will be useful for understanding the meaning and content of the type of democracy international law is working towards and also for the future of social democratic practices in Europe.
Media, Markets, and Democracy: Revisiting an Eternal Triangle
Authors: Pessach Guy
Published: July 2016

The article is a Critical Notice of C. Edwin Baker’s Media, Markets, and Democracy (Cambridge UP: 2002).
Some Thoughts on the Aesthetics of Retribution
Authors: Blumoff Theodore Y.
Published: July 2016

There is a tendency among those who identify themselves as subjectivists on the issue of defining criminal intent to dismiss or minimize the role of actual non-trivial harm in the determination of criminal liability and punishment. That is to say, they are those who argue that an individual’s subjective intent is a sufficient indication of potential dangerousness and culpability to justify punishment. In this essay, the author presents a view, based on Adam Smith’s recognition of the “irregularity of the sentiments,” that actual physical harm matters; that it reflects the negative component of the two great motivators, pleasure and pain; and that it can release the worst sort of emotional reactivity: retribution. The infliction of a non-trivial first order harm can invoke a deeply felt aesthetic reaction which, in turn, reflects our natural (and cognitively “irregular”) human sentiments. Trying to dispense with harm as a feature in our understanding of criminality seems prima facie absurd. Awareness of the sentiment, as Smith understood, helps temper the worst parts of our nature: that which hopes to crush the people and ideas we find threatening. Ironically, the existence of and need for harm as a necessary condition of criminality heightens our awareness of the limitations of reason in dealing with victims of crime. We are not simply cognitive creatures.
How the New ICTs Matter to the Theory of Law
Authors: Culver Keith
Published: July 2016

Recent writers concerned with general theories of law have taken little notice of the new information communication technologies (ICTs). This situation ought to change. General theories of law ought to take into account the potential of the new ICTs to enable significant changes in the relations between legal authorities and legal subjects. This paper takes legal positivism as a stalking horse for examination of the way the new ICTs may affect presumptions regarding citizens’ and officials’ knowledge, attitudes, and allegiance to law. The positivist account of legal normativity, key to its general account of law, is significantly threatened by the prospect that e-consultation and e-petitioning may breach presumed differences between officials and citizens in life under law. This argument brings various consequences for the positivist view of normativity and legal system, all inclining toward the conclusion that the positivist view may lose its basis in social fact and so present an unrealistic account of law.
Justice and Responsibility
Authors: Ripstein Arthur
Published: July 2016

I argue that institutions charged with giving justice must understand responsibility in terms of norms governing what people are entitled to expect of each other. On this conception, the sort of responsibility that is of interest to private law or distributive justice is not a relation between a person and the consequence, but rather a relation between persons with respect to consequences. As a result, nonrelational facts about a person’s actions and the circumstances in which she performs them will never settle the questions of responsibility that matter to institutions charged with giving justice. I show the significance of this way of thinking about responsibility by contrasting it with prominent conceptions of responsibility which suppose that its moral significance derives from the ways in which an individual person acts in the world. I demonstrate its power by focussing on cases in which responsibility is widely agreed to run out in ways that non-relational conceptions of responsibility cannot explain.
Patent Law and the Assurance Game: Refitting Intellectual Property in the Box of Regulation
Authors: Ghosh Shubha
Published: July 2016

Patent law is often understood through the fiction of social contract. The author argues that this fiction does not offer an adequate economic or political theory of patent law, that is, one that will explain the unique relationship between government and property that patents entail. As an alternative to social contract theory, a regulatory theory of patent law is developed based on the assurance game taken from game theory. The assurance game is used to show how patent law serves to regulate the invention process and the market for innovative products.
Judicial Activism: A Multidimensional Model
Authors: Cohn Margit , Kremnitzer Mordechai
Published: July 2016

The article addresses the question of the role of the judiciary in the constitutional democratic state through an analysis of the concept of judicial activism. The model advanced in the article is based on a composite theory of the role of the judiciary, drawing on, and developing, Canon’s (1982) analysis of judicial activism and more recent multidimensional approaches to the assessment of judicial output. The article supplements the traditional vision of the judiciary as law enforcer in two directions. Drawing on the ‘constitutional dialogue/constitutional interdependence’ paradigm, the article perceives the judiciary as participant in a multi-player web of constitutional interactions, in which other government branches, individuals and public bodies participate in the decision making process; arguments on the omnipotency of the judiciary are thus replaced by a model of interdependency and interaction. The constitutionalist tradition serves as basis for the third vision, under which the judiciary is an active protector of core ‘thin’ societal values.

These three visions of the role of the judiciary support a multidimensional analysis of judicial activism, under which judicial output is considered not only against pre-decision law, but also on the basis of post-decision dynamics and the value content of the decision.

The model comprises seventeen distinct parameters, which include, inter alia, the degree of change in the law, interpretation techniques, interference with democratic processes, rhetoric, obiter dicta, reliance on comparative sources, the extent of the decision, and the complexity of the legal question brought before the court. Under this group of parameters, any change in the law, or action that extends beyond the mere settlement of the dispute before the court, would be considered activist. Additional parameters draw on the second vision of the role of the judiciary, and consider post-decision reaction of the legislature, the administration, the public and the judiciary itself as basis for supplementary assessment. In this context it is argued that a decision that is fully accepted and implemented by other members of the constitutional web should be viewed as less activist than a decision that is subsequently rejected; in the former case the decision conforms with societal consensus or equilibrium, while in the latter case, post-decision processes reflect judicial deviance from such consensus. A final parameter pertains to the value-content of the decision, under which a decision that promotes and protects core societal values should be considered less activist than one that intervenes in low-value policy areas. The model advanced in the article provides a basis for composite qualitative and quantitative assessments of the impact of the judiciary in the social and political spheres.
Equality of Opportunity Globalized?
Authors: Moellendorf Darrel
Published: July 2016

The principle of global equality of opportunity is an important part of the commitment to global egalitarianism. In this paper I discuss how a principle of global equality of opportunity follows from a commitment to equal respect for the autonomy of all persons, and defend the principle against some of the criticism that it has received. The particular criticisms that I address contend that a moral view based upon dignity and respect cannot take properties of persons-such as their citizenship-as morally arbitrary, that any justification of what counts as equal opportunity sets must be based upon national cultural understandings, that a positive account of equality of opportunity cannot adequately handle the fact of value pluralism across the globe, and that the principle of equality of opportunity is incompatible with national self-determination. In the course of defending the principle of equality of opportunity from these criticisms, I make revisions to my previously published defense of the principle.
Contractualism and Global Justice: The Iteration Proviso
Authors: Vernon Richard
Published: July 2016

While Rawls himself put contractualism to work at the national level, his more cosmopolitan followers have argued that the full requirements of international justice can be reached only by way of a global contractualist argument. Both positions neglect a resource from within the contractualist tradition, The need for iteration of the nation-level contract gives rise to strong and reasonably definite moral requirements. A good-faith adoption of the contractual argument entails, first, a duty to assist those whose potential recourse to just arrangements is blocked by tyranny or political collapse. Second, understood as a net risk-reducing project, a nation-level contract entails a duty not to impede the iterated risk-reduction projects of other national soceties. Envisaging the duty in this contractualist way avoids problems that beset both "natural duty" and "interactionist" approaches to international justice. The non-impedance requirement bears especially on international economic arrangements. The institutional representation of those affected by such arrangements would connect this abstract requirement with practical conclusions.
The One Who Is More Violent Prevails—Law and Violence from a Talmudic Legal Perspective
Authors: David Joseph E.
Published: July 2016

How are we to distinguish between law and violence? On what grounds is the former legitimized while the latter is condemned? This modern question sheds light on the essential concepts of law and order and their social value. My task in this paper is to trace the roots of this question in the Jewish jurisprudential tradition by focusing on a unique norm, established sometime during the 5th to the 6th century, in which violence become a legitimized norm when a case could not be determined by means of official legal procedure. This survey shows that while ancient sources legitimized this norm of extra-legal violence, medieval thinkers redefined it and neutralized it, reduced it to an economic procedure or even explicated interesting stances regarding the honor and stability of legal institutions.
The Authority of Law in the Circumstances of Politics
Authors: Capustin Mark
Published: July 2016

Joseph Raz’s influential account of authority holds that authority is normally justified by the authority’s ability to issue directives that, if followed, would increase a norm subject’s chances of conforming to the requirements of right reason. Jeremy Waldron raises a number of challenging and important questions about whether Raz’s account of authority can usefully illuminate our understanding of law’s authority in contemporary democracies, where laws are enacted by large, diverse legislatures in circumstances of disagreement. I examine a number of these questions, and conclude that Raz’s account of authority is equal to the task of illuminating our understanding of law’s authority in the “circumstances of politics,” where we often disagree about what right reason requires, and where law is enacted by large, diverse legislatures that settle on courses of social action by adopting participatory majoritarian procedures.
Gender, Multiculturalism and Dialogue: The Case of Jewish Divorce
Authors: Fishbayn Lisa
Published: July 2016

Can the law act as a catalyst to change minority practices that discriminate against women? Can civil law merely impose remedies from outside the minority culture or can legal mechanisms be devised which spur internal change? Theorists of gender and multiculturalism have argued that civil law can play a role in creating the conditions which allow, and indeed compel, cultural communities to engage in internal dialogue to transform their norms into more egalitarian ones. This article explores this thesis through considering the development of Canadian civil family law remedies to alleviate the plight of women whose husbands use their power to withhold divorce under Jewish law to extort advantages in civil divorce settlements. It considers whether the process of negotiating, drafting and implementing amendments to the Divorce Act has supported the renegotiation of norms in the Canadian Orthodox Jewish community regarding the issuance of divorce decrees, the development of novel solutions or the re-invigoration of traditional forms of religious legal authority. In particular, the article evaluates whether these civil law strategies have had the effect of generating the sort of transformative dialogue about norms envisioned by theorists of multiculturalism and gender.
Torture and the Problem of Dirty Hands
Authors: Meisels Tamar
Published: July 2016

This paper looks at the contemporary debate over investigative torture in liberal democracies besieged by terrorism, from the viewpoint of the state leader, politician, judge or individual interrogator, called upon to make life-and-death decisions. It steers away from the classic debate between utilitarians and Kantians regarding moral justification, and, following Michael Walzer presents the issue as a specific case of "the problem of dirty hands in politics". Contra Walzer, the paper suggests, among other things, that the notion of dirty hands functions not only within moral theories that include absolute prohibitions but also within consequentialist theory, and that it is therefore far wider, practically illuminating and more applicable than Walzer originally assumed. Later it addresses Alan Dershowitz’s controversial suggestion requiring judicial "torture warrants", and argues that this too should be viewed in light of the notion of dirty hands rather than within the conventional debate over justifications. Finally, it suggests that, while torture may be morally unjustifiable on anything but purely consequentialist grounds, circumstances may offer the individual decision maker an excuse, rather than a justification, for resorting to torture under very restricted conditions.
Troubled Foundations for Private Law
Authors: Smith Stephen A.
Published: July 2016

In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations (contract, tort, unjust enrichment), though ignored and disparaged for much of the 19th and 20th centuries, are today familiar to most private law scholars (thanks in part to Gordley’s earlier work). Yet Gordley’s understanding of these concepts and, in particular, of their relationship both to one another and to the apex idea of ‘living a distinctively human life’ is unique, setting his account apart not just from utilitarian and other ‘modern’ accounts of private law, but also from other neo-Aristotelian theories (e.g., those of Ernest Weinrib or Jules Coleman). In Gordley’s presentation, commutative (or ‘corrective’) justice is derived from distributive justice and distributive justice is derived from the idea of the distinctively human life. Confidently traversing a wide range of historical, comparative and theoretical materials, the book’s argument is at once ambitious, learned, and elegantly presented. But as a theoretical account of the foundations of the modern private law it is unpersuasive. The book’s own account of property law suggests that in practice the idea of distributive justice does little, if any, work in explaining the rules we actually have. Nor is it clear how, if at all, distributive justice flows from the allegedly foundational idea of the ’distinctively human life’. As for commutative justice, it is not clear why, if is derived from distributive justice in the way Gordley believes, the courts should care about it. Finally, but perhaps most significantly, Gordley’s conception of commutative justice is unable to account for central features of the law of obligations.
Uneasy Partners: Multiculturalism and Rights in Canada by Janice Gross Stein, David Robertson Cameron, John Ibbitson, Will Kymlicka, John Meisel, Haroon Siddiqui, and Michael Valpy, (Waterloo, ON: Wilfrid Laurier University Press, 2007); xiii + 165 pp. Paper ISBN: 1-55458-012-9, ISBN 13: 978-1-55458-012-5. Numbers in parentheses are page references to this work, except where indicated.
Authors: Thornton Mark
Published: July 2016

This collection of essays originated in an article for the Literary Review of Canada by Janice Gross Stein, which prompted replies from two journalists, John Ibbitson and Haroon Siddiqui. The present volume contains essays by three political scientists, Stein, David Robertson Cameron, and John Meisel, three journalists, Ibbitson, Siddiqui, and Michael Valpy, and a philosopher, Will Kymlicka, with an introduction by Frank Iacobucci, former Justice of the Supreme Court. Since the volume has no editor, it is unclear who is responsible for the title, which holds out the promise of an in-depth exploration of problems in Canada’s Charter of Rights and Freedoms. The Charter embraces both multiculturalism and rights. Are these really uneasy partners? In fact all the contributors are both pro-Charter and pro-multiculturalism. The uneasy partners turn out to be religion and equality, hardly a novel thesis. Uneasy Partners would have been much improved by the presence of anti-multiculturalists and non-liberal pro-multiculturalists. The three journalists do as much as could be expected of them; but the three political scientists do a mediocre job. When one considers how many political theorists have written on Canadian multiculturalism, surely a university press could have done a better job than this.
Rethinking Criminal Law
Authors: Botterell Andrew
Published: July 2016

Imagine the following. You have been asked to critically evaluate the criminal process in your home jurisdiction. In particular, you have been asked to determine whether the criminal process currently in place appropriately balances the need to maximize the chances of getting things right—of acquitting the innocent and convicting the guilty—with the need to minimize the chances of getting things wrong—of acquitting the guilty and convicting the innocent. How would you proceed? What rules of evidence and procedure would you put in place? Would you exclude germane inculpatory evidence that has been obtained in violation of the accused’s constitutional rights? Would you permit spouses to testify against each other, or allow the jury to draw adverse inferences from an accused’s failure to testify on his or her behalf? These, in broad outlines, are the sorts of issues addressed by Larry Laudan in his superb Truth, Error, and Criminal Law.
The Devil’s Account: Men, Morals, andConstitutional Goods
Authors: Poole Thomas
Published: July 2016

Constitutional Goods, a work of political theory presented as constitutional theory, foregrounds law. Law is central to itsmethod. The dialogic (or inclusive) theory developed in the book is based, we are told, on ‘a unity of elements found in actual case law.’ Law provides, then, much of the raw material on the basis of which the three conceptions of liberalism (libertarian, egalitarian and communitarian) are identified. And court cases are vital to the process of ‘sifting’ through which aspects of each conception that are of enduring value are identified and synthesized within a final ‘inclusive conception’ of the liberal constitution. Law is also centralsubstantively. It plays a role in the high moment of the theory—the mutual recognition of citizen and ethos—and permeates (and justifies) every mode of social and political interaction within the ideal political community thatConstitutional Goodspresents. State, community, and individual are wrapped up and enfolded within law (or, as Brudner prefers to style it, ‘the Law’) within the inclusive theory.
A Reply to Critics of Constitutional Goods
Authors: Brudner Alan
Published: July 2016

In this article, the author replies to critiques of his book, Constitutional Goods(Oxford, 2004) by Professors Trevor Allan, Clare Chambers, John Charvet, Philip Cook, Thomas Poole, and Lorenzo Zucca. These critiques were originally presented at a symposium held in May, 2008 at the London School of Economics and Political Science and were later published together in Vol. XXII (January, 2009) Canadian Journal of Law and Jurisprudence.
The ‘Responsibility to Prevent’: A Remit for Intervention?
Authors: Oman Natalie
Published: July 2016

We are experiencing a transitional moment in international law. What once seemed to be an unstoppable evolution toward cosmopolitan constitutionalism now appears as a fragile and easily reversible trend, threatened both by the imperial disregard of international legality by recent U.S. administrations and by the disinterest or active opposition of a group of states that was classified as ‘uncivilized’ in nineteenth century international law. A powerful account of the differences between these states -- former colonies and satellites of great powers – and the predominantly western states whose publics take for granted human rights culture has captured the imagination of international elites. The contemporary account of the differences between western European-descended political communities and the ‘others’ focuses on democratic governance, human rights, and human security. One important element of this narrative is the emerging international legal concept of the ‘responsibility to protect,’ often promoted as a means of securing the preceding three goods. This paper considers the recommendations of the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) concerning a subsidiary element of the responsibility to protect termed the ‘responsibility to prevent.’ It argues that the prescriptions associated with the responsibility to prevent rest upon a set of prevailing assumptions about the root causes of threats to human security that are not tenable or not proven, and which both rely upon and reinforce the dualistic narrative of lawful and outlaw states that now dominates international public policy-making in western countries. Further, it shows how the model of legalization of humanitarian intervention proposed by ICISS is susceptible to cooptation by the democracy promotion project frequently associated with the liberal peace thesis. Finally, the paper recommends that only a stripped-down version of the ICISS recommendations, limited to the ‘responsibility to react,’ should be legalized, primarily because of the current absence of a reasonable degree of intercultural agreement on a substantive grounding for a muscular interpretation of a responsibility to prevent that includes root cause prevention.
Natural Law and Animal Rights
Authors: Chartier Gary
Published: July 2016

The new classical natural law theorists have been decidedly skeptical about claims that non-human animals deserve serious moral consideration. Their theory features an array of incommensurable, nonfungible basic aspects of welfare and a set of principles governing participation in and pursuit of these goods. Attacks on animals’ interests seem to be inconsistent with one or more of these principles. But leading natural law theorists maintain that animals do not participate in basic aspects of well being in ways that merit protection, that the so-called “argument from marginal cases” is unsuccessful as a basis for claims that animals have moral standing, and that affirming that animals have rights leaves one with no basis for maintaining that humans do as well. In response, I suggest that animals can be understood to participate in some aspects of well being, defend the argument from marginal cases, and offer reasons why we might believe that affirming that animals have rights does not undermine the claim that humans have rights.
Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship
Authors: Webber Grégoire C. N.
Published: July 2016

Constitutional rights’ scholarship is anchored in the cult of proportionality and balancing. Despite the absence of reference to proportionality or balancing in most State constitutions or international conventions, scholars and judges alike have embraced a vocabulary of proportion, cost, weight, and balance. Drawing on the work of German scholar Robert Alexy and Canadian scholar David Beatty, this essay attempts to illustrate how the principle of proportionality conceals more than it reveals in rights-reasoning. By challenging the contemporary cult of practical reasoning over rights, the essay advocates a turn away from a methodology and vocabulary of proportionality in favour of a more direct struggle with political-moral reasoning.
The Unrecognized Dominance of Law in Morality: The Case of Promises
Authors: Kedar Ronit Donyets
Published: July 2016

The commonplace view is that moral thinking has significantly influenced legal theory, but law has had very little theoretical effect on morality. In this article, I attempt to show this is not so. Taking the inverse course in tracing the interrelations between law and morality – investigating morality from the perspective of law rather than examining law from the perspective of morality – I show, through the case of promises, that legal theory has greatly affected dominant strands of moral thought. By bringing to the fore the robust legal elements that guide some of the prevailing moral theories, my aim is to offer a new diagnosis of their problems, showing that the legal mindset is what distorts their moral analysis.

I start by offering a list of law’s special underpinnings. Predicating law as a unique social phenomenon and, as such, as possessing certain features that distinguish it from other normative domains, this list, though not a definition of law as such, presents a sufficiently inclusive account of what it means for a normative theory to be legal or legal-oriented. This profile serves as a tool helping to discern, for the first time, the unrecognized influences of legal thinking on other normative domains, and to reveal whether, and to what extent, some normative accounts rest on and are affected by legal ideas, tools, terminology, and structure. Applying this model to the analysis of promises offered by such thinkers as Charles Fried, John Rawls, and T. M. Scanlon, I show how their legal mindset shapes their moral accounts of promises. My conclusions indicate that the unaccounted for influence of legal ideas on morality in general, and on the morality of promises in particular, leads to an unsatisfactory conception of both.
Against Supersession
Authors: Sanderson Douglas
Published: July 2016

The availability of redress for historic wrongs committed against Indigenous people turns on a number of morally complex and politically charged issues. From the standpoint of moral theory, the problems of redress have been given articulate voice by Jeremy Waldron whose writings have come to take the shape of conventional wisdom. Waldron’s arguments are three-fold: 1) counterfactuals are impossible to verify, and so it is impossible to know how we are to put injured parties into the position they would have been had there been no injustice; 2) entitlements fade over time, and so whatever right to redress may have once existed, the basis for those entitlements is now eroded; and 3) injustices can be overtaken by circumstances, such that what was once unjust becomes just. In this article I argue that each of these objections to redressing of historic wrongs is mistaken, and they are mistaken in part because of Waldron’s failure to recognize that the injustices are not merely historic, the injustices are also contemporary and on-going wrongs committed against modern-day Indigenous people. There is no denying that circumstances have changed, but that does not eliminate the need to face up to the problems of injustice in the circumstances in which they occur: the present day, and we must face these challenges despite the fact that they present difficult choices and the probability of sacrifice.