bluuebunny/crossref_metadata_2025_split huggingface dataset:
“Our Real Need”: Not Explanation, But Education
Authors: Eisele Thomas D. 
Published: July 2016

The preconceived idea of crystalline purity can only be removed by turning our whole examination around. (One might say: the axis of reference of our examination must be rotated, but about the fixed point of our real need.)Wittgenstein wrote nothing on legal theory or law, so there is no obvious textual basis on which to draw possible connections between Wittgenstein and legal theory. And Wittgenstein abhorred theorizing in philosophy. So the odds are slim that Wittgenstein would have accommodated himself or his work to similar activity in the law. Where does this leave us?At sea, which is where we normally are in life and, thus, where Wittgenstein wants us to recognize ourselves as being when doing philosophy too. But theory can disguise this fact from us, as it also can make us think that we have unrivalled powers of knowledge and understanding and explanation. Wittgenstein’s criticism of theory, or the activity of theorizing, is meant to get us to see, and to acknowledge, our limits in this respect. But even though his terms and intent are mostly negative in tone and thrust, his criticism of theorizing has positive implications for how we should try to understand what we are doing and what we have done, including what we are doing and have done in the law. So, if understanding the law better is something that legal theory does or tries to do, and Wittgenstein’s later work can help us understand the law better, then Wittgenstein’s later philosophy is connected to the task set legal theory.
Moral Philosophy, the United States Supreme Court, and the Nation’s Character, 1860–1910
Authors: Bailey Mark Warren 
Published: July 2016

The charge that the United States Supreme Court exercised a conservative influence upon the nation’s constitutional life during the period from 1864 to 1938 is impossible to refute. The Supreme Court during the period from the end of the Civil War to the New Deal era has been portrayed as having largely abdicated its obligation to protect society’s common interests in favour of a laissez-faire constitutionalism reflecting the social and political views of new and powerful economic interests. The judicial conservatism of the late nineteenth and early twentieth centuries conflicted with the political ideals of Progressives and with the direction taken by American policy-makers since the acceptance of Franklin D. Roosevelt’s New Deal in the 1930s. Historians have labelled the Court’s laissez-faire conservative style as undesirable, if not consciously immoral.Nevertheless, the problem of understanding the ideas which lay at the foundation of judicial conservatism should be addressed. General legal historians have preferred to begin and end their inquiries into early influences on the judicial mind with a short overview of legal education and leave aside the possible influence of college studies. In recent years, historians have broadened their investigations of the intellectual underpinnings of late nineteenth-century legal thought in an attempt to provide the sort of synthetic account of legal thought suggested by Perry Miller’s Life of the Mind—a work which attempts to connect the thought of leading members of the bar to intellectual currents outside the legal sphere. The result has been a limited rehabilitation of the Supreme Court’s reputation during the Gilded Age.
Beyond Justice: The Consequences of Liberalism for Immigration Law
Authors: Dauvergne Catherine 
Published: July 2016

In November 1994 the Canadian government released its Immigration Plan for 1995 and an immigration and citizenship strategy mapping policy direction until the year 2000. This strategy, developed after extensive public consultations, was the government’s response to increasingly contentious public discourse about immigration. The 1994 document was the government’s attempt to reorient Canadian immigration law and policy. The 1996 and 1997 Immigration Plans, tabled in November 1995 and October 1996 respectively, are consistent with the five year plan announced in 1994, demonstrating that the change of direction set out in 1994 has met at least some of the government’s objectives.This paper assesses the reorientation of Canadian immigration law contained in the 1995 Immigration Plan and accompanying documents. Much of the public debate about immigration concerns whether current immigration levels and policies are fair, or just. As Canada is a liberal society, it is appropriate to begin the search for standards of fairness—or justice—in liberal theory. But because liberal theory presumes a community and then explores theories of fairness and justice within that community, it does not yield a standard of justice which is useful for assessing changes in immigration law. Nor, I argue, can liberalism’s tenets be extrapolated to address this question. This conclusion leads to insights about the role of immigration law in liberal society and points to particular ways to assess this law. While other theoretical paradigms may contain ways of determining the fairness of immigration law, such paradigms are less useful in the Canadian setting, where liberal discourse is hegemonic and hence is the language in which debates about immigration law must take place to be immediately politically relevant. The first half of this paper examines liberal theory’s failure to address the justice of immigration laws, and evaluates attempts to extend classical liberalism to meet this challenge.
Taking Codes of Ethics Seriously: Alternative Dispute Resolution and Reconstitutive Liberalism
Authors: Wellington Alex 
Published: July 2016

Alternative dispute resolution has the potential to be many things to many people, although it cannot, of course, be everything to everybody. A careful reflection on the appropriate role and scope of alternative dispute resolution will evidence that it has much to offer the legal profession and the legal system. For one thing, it can rejuvenate the practice of law for its practitioners, being both fun and fascinating. It can also help to improve the public perceptions of lawyers, which may be sinking to all time lows. One way of approaching the topic is to suggest that lawyers need alternative dispute resolution—they need it both to enhance their public image and in order to drum up new business opportunities. Another way of approaching the topic is to focus on the contribution of treatments of alternative dispute resolution to the “growth of the modern social scientific study of law.” Studies along these lines may emphasize the development of the Alternative Dispute Resolution movement in terms of attempts to “recast the market for dispute resolution services by different interests attempting to advance their own professional projects.”.Yet a different way of examining alternative dispute resolution is to explore the self perceptions of its practitioners and theorists—what they think it has to offer to its consumers and society at large. Alternative dispute resolution certainly can provide a fertile source of ‘satisfaction’ to the parties to disputes. The “mediation alternative”, for instance, is said to provide a more complex form of ‘satisfaction’, one in which the needs and interests of the parties determine the final outcome. It is not only that there are some disputants—who currently are not aware of, or encouraged to pursue, opportunities to resolve their disputes by negotiation or mediation—who would benefit from access to ADR. It is also that even those who might fail to reach agreement if they tried negotiation or mediation would still benefit from the attempt and may be less likely to be disaffected or disappointed from the adjudicative outcome to their dispute having tried the “other way” beforehand. Perhaps even those who might decline to avail themselves of the option to try ADR even if offered would benefit just from having the choice. All disputants, therefore, benefit to some degree from the processes of ADR being readily available and carried out reliably and responsibly.
Identitarisation du droit et perspectivisme épistémologique. Quelques jalons pour une saisie juridique complexe de l’identitaire
Authors: Gaudreault-DesBiens Jean-François 
Published: July 2016

Le droit n’est pas un objet pur; il n’existe pas, on le fait. Et qu’il en ait ou non conscience, le juriste défend une cause. Décrire pour lui c’est choisir.Marquée par le positivisme, la modernité juridique a fait de l’objectivité et de la neutralité non seulement des idéaux mais des postulats. Plusieurs juristes, gravitant principalement dans l’orbite anglo-américaine, estiment cependant que ces postulats n’ont en bout de ligne servi qu’à masquer l’imposition à toute la société des systèmes normatifs en vigueur au sein des seuls groupes dominants, consacrant ainsi non seulement l’exclusion effective de plusieurs segments de la population mais également l’occultation symbolique de leur réalité sociale. Ce constat en incite d’ailleurs un nombre croissant à remettre en question le rôle que jouent l’objectivité et la neutralité dans les processus intellectuels et institutionnels d’élaboration et d’interprétation des normes juridiques. Ces juristes, qui se réclament de courants de pensée voués à l’affirmation sociale de groupes historiquement défavorisés, font un impératif catégorique de la prise en considération par la société majoritaire de l’expérience distincte qu’ont vécue et que vivent encore les membres de ces groupes, dont l’exclusion se fonde généralement sur la possession d’une identité quelconque, longtemps présumée moins digne de respect. C’est cette référence fondatrice à la variable identitaire qui unit leurs discours, de sorte qu’au-delà des différences méthodologiques et philosophiques les opposant, tous ces juristes participent à une mouvance que nous avons qualifiée ailleurs de «critique juridique identitaire». De fait, qu’ils se réclament de l’analyse féministe du droit, de la Critical Race Theory ou de la critique postcoloniale du droit, tous militent pour que soit enfin entendue la parole des groupes avec lesquels ils se solidarisent. De même, tous communient au projet d’ouvrir l’epistemologie du droit à cette parole. A une critique politico-philosophique soulevant la question de la justice intrinsèque des normes positives s’en adjoint ainsi une autre, encore plus fondamentale peut-être, de nature épistémologique. C’est de cette critique qu’il sera question dans cet article.
Statutory Rape: A Philosophical Analysis
Authors: Burgess-Jackson Keith 
Published: July 2016

The object of the statute is to protect the virtuous maidens and the undefiled virgins of the State and not the unchaste female.To deny exculpating effect to B’s fully voluntary hence valid consent to A’s conduct is not only unjust to A; it is also an objectionably paternalistic interference with the autonomy of B—even if B is a child. Insofar as children are (or would be) capable of consenting voluntarily [to sexual conduct, including intercourse], it is indefensible paternalism to prevent them from doing so.Power is a prerequisite of responsibility, and the primary justification for statutory rape laws is that women in our society do not have enough power to resist coercive male initiative in sex. To the extent that statutory rape laws enable women to resist aggression, they increase women's sense of personal responsibility. I believe that we should acknowledge the present reality of pervasive male sexual aggression in our society and devise ways to change it rather than deny it as an “outmoded stereotype.”
Political Liberalism and Cultural Diversity
Authors: Moore Margaret 
Published: July 2016

One of the most important and divisive issues facing heterogeneous or culturally diverse states—and most states are culturally diverse—is the relation between these different cultures and the state.This question was raised initially in contemporary liberal political philosophy in terms of the fruitful debate between liberals and communitarians. Sandel, for example, criticized Rawls’sA Theory of Justiceand, by extension, all liberal theories for falsely abstracting from conceptions of the good, abstracting from culturallyspecific conceptions, and grounding his liberal principles in terms of an abstract Kantian individualism. Liberal theorists countered by complaining that communitarians falsely conceived of a single homogeneous community. Although Rawls’s revised defense of liberal justice in his 1993 bookPolitical Liberalismdoes not refer directly to the liberal-communitarian debate, nevertheless, his new grounding of liberal political principles, as principles which would be acceptable to individuals with diverse conceptions of the good, seems to justify liberal principles in terms of contemporary conditions, and, at the same time, challenges the relevance of those theories which appeal to any notion of a homogeneous ‘community’.
Pseudo-Restitutionary Damages: Some Thoughts on the Dual Theory of Restitution for Wrongs
Authors: Giglio Francesco 
Published: July 2016

Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant.In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ’restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.
Red Tape and Gridlock
Authors: Katz Larissa 
Published: July 2016

This paper concerns the role of property theory in explaining why so many people around the world control their assets informally, without recourse to the state. According to one influential view, owners and their assets are driven to the informal sector because of deficiencies in the form of ownership on offer in the formal sphere. Where too many people have the power to veto the optimal use of a resource, we have a form of ownership, an anticommons, that is deficient. But this account of informality proceeds from an overly capacious theory of ownership. On this view, an owner’s position is incomplete if she lacks the requisite inputs for a project that represents the optimal use of an object. Further, a person counts as an “owner,” albeit one locked in an anticommons, merely if she has the power to block the ends that others are able to achieve with an object. I argue that this view of ownership leaves us unable to see that owners are in a radically different position vis-à-vis other owners with the same authority over an object than they are vis-à-vis the state or other non-owners who may be in a position to block an owner’s valuable ends. The integrity of the concept of the anticommons is undermined if we define it in terms of veto-power over the ends for which a resource is optimally suited.In this paper, I situate the concept of the anticommons within a larger theory of ownership as agenda-setting authority. Seen this way, what is important about an anticommons is its effect on an owner’s means rather than her ends. Whereas owners of private property are never guaranteed the ability to achieve their ends, owners in an anticommons are not even guaranteed the ability to exercise their very means, their agenda-setting authority. From this revised and much narrower concept of the anticommons, what follows is that talk of “gridlock” in the formal sphere makes sense just as a normative argument about the best distribution of ownership and regulatory authority rather than a conceptual argument rooted in the idea of ownership.
Law, Selfishness, and Signals: An Expansion of Posner’s Signaling Theory of Social Norms
Authors: Druzin Bryan 
Published: July 2016

Eric Posner’s signaling theory of social norms holds that individuals adopt social norms in order to signal that they have a low discount rate (that is, they value the future more than the present), and are therefore reliable long-term cooperative partners. This paper radically expands Posner’s theory by incorporating internalization into his model (the sense that norms possess some sort of binding quality, an “ought to”). I do this by tethering Posner’s theory to an evolutionary model. I argue that internalization is an adaptive quality that enhances the individual’s ability to play Posner’s signaling game and was thus selected for. The idea that internalization is evolutionarily conditioned is not new; however, linking this to Posner’s theory of discount rate signals is, and doing so offers tremendous explanatory potential.Part I identifies the limitations of Posner’s purely rational choice approach, argues for the necessity of including internalization, and then proposes a model that does so – what I call the Expanded Signaling Model of Norms (ESM). Part II examines the problems that arise when we embrace such a model. How this model answers some key criticisms plaguing sociobiology is also briefly explored. Part III then examines existing criticisms of Posner’s theory, demonstrating how the Expanded Signaling Model clearly resolves these issues. The paper concludes that incorporating internalization into Posner’s signaling model greatly broadens the explanatory reach of Posner’s theory, providing a measure of clarity and predictability regarding how and why norms are internalized – an important insight, as these beliefs form the normative underpinning to law.
The Limits of Consent and the Law of Assault
Authors: Stewart Hamish 
Published: July 2016

In this paper, I show that a Kantian account can explain both the rule that consent is normally a defence to assault and the exceptions to that rule. Kant himself does not discuss the offence of assault, but thebody– the manifestation of the person in space and time – is central to Kant’s account of each person’s innate right of humanity. Since Kant’s legal philosophy is oriented around the idea that each limit on freedom of action can be justified only for the sake of freedom itself, it is plausible to think that this might do all the work; but that is not the case. The law may rightly refuse to recognize consent to a physical interaction that is inconsistent with treating the participants as persons and may, in such cases, create an exception to the usual rule that lack of consent is an element of assault.But this Kantian account needs to be supplemented in two ways. First, the account provides a structure but no criteria for determining whether an interaction is inconsistent with personhood. Second, the law does sometimes recognize consent as a defence in activities that expose the participants to the intentional application of force that creates a risk of permanent and serious damage, even though that damage itself could not be consented to. The distinction turns out to run parallel to Kant’s solution to the problem (as he sees it) of sexuality: how is it possible for two persons to engage in an activity that necessarily requires each to treat the other as an object, and yet to retain their humanity? With these supplements, the limits on consent in the positive law of assault can be justified in Kantian terms.
Austin, Kelsen, and the Model of Sovereignty
Authors: Vinx Lars 
Published: July 2016

Hans Kelsen’s critique of John Austin has so far attracted little attention among legal theorists. This article argues that Kelsen’s attack on Austin anticipated the key elements of Hart’s rejection of the Austinian conception of law as sanction-backed sovereign command. At the same time, the way in which Kelsen presents his critique of Austin’s conception of sovereignty reveals important differences in purpose and intention between Kelsen’s Pure Theory of Law and Hart’s legal theory. The Pure Theory of Law is animated by an ideal of legality that is alien to purely descriptive jurisprudential approaches in the Hartian tradition.The article concludes that this difference between Kelsen and Hart merits further exploration and that it might help to show that the Pure Theory of Law is still relevant to contemporary legal theory.
The Methodology of Jurisprudence: Thirty Years Off the Point
Authors: Halpin Andrew 
Published: July 2016

This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that methodology is not a resource capable of offering an independent assessment of the merits of competing theories.Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.A number of ancillary matters are discussed in the essay including: semantic (and metasemantic) approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law's Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz's split theory of legal reasoning and law.