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  1. added 2015-01-23
    Anne Wagner & Jean-Claude Gémar (forthcoming). Les Enjeux de la Jurilinguistique Et de la Juritraductologie. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-8.
    OverviewEn 1979, la revue Meta publiait, sous la direction de Jean-Claude Gémar, un numéro spécial consacré, pour une première fois, à la traduction juridique comme activité et discipline autonomes au sein de la jeune traductologie [8]. Ce numéro reste une référence devant la persévérance et la rigueur manifestées par le Bureau des traductions d’alors et l’action, inspirée et audacieuse, du ministère de la Justice du Canada , qui laissaient entrevoir l’avènement d’une «jurilinguistique» en gestation. Cette tentative de refrancisation du langage (...)
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  2. added 2015-01-23
    Mark Thornton (2013). Book Review: Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Law, Edited by François Tanguay-Renaud & James Stribopoulos. [REVIEW] Canadian Journal of Law and Jurisprudence 26 (1):243-249.
    Professor John Gardner says on the jacket, “these essays – without exception insightful and penetrating – set a high standard for the rest of us to aspire to.” This collection of 15 essays by 16 Canadian authors originated in a conference at Osgoode Hall Law School, York University. The majority of contributors are based in southern Ontario . Two are from western Canada , two from the UK and one from the US . The essays are arranged in three parts, (...)
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  3. added 2015-01-23
    Richard Vernon (2013). Crime Against Humanity: A Defence of the ‘Subsidiarity’ View. Canadian Journal of Law and Jurisprudence 26 (1):229-242.
    “Subsidiarity” views of crime against humanity propose that state crime is at the core of the idea, thus necessitating a further level of authority. That proposal can be given a strong moral justification in terms of the enormous risks that arise from a state’s authority and territorial control. Discussions of crime against humanity by Larry May and Norman Geras, however, offer different views of the idea, May proposing that it be seen as group-based crime , Geras proposing that it be (...)
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  4. added 2015-01-23
    Mark Thornton (2012). The Limits of Criminal Culpability. Canadian Journal of Law and Jurisprudence 25 (1):159-175.
    The authors of Crime and Culpability hold a subjectivist theory of criminal culpability according to which the core concept in culpability is subjective recklessness, negligence is not culpable, and it is irrelevant to culpability whether or not a criminal act results in harm. I argue against these three theses and criticize the authors' views on the structure of criminal law, criminal defences, criminal attempts, and codification.
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  5. added 2015-01-23
    Theodora Kostakopoulou (2012). Defending the Case for Liberal Anationalism. Canadian Journal of Law and Jurisprudence 25 (1):97-118.
    Nationalism appears to be so entrenched in political life and discourse, that its illiberal face is often deemed to be an exception and unfortunate coincidence triggered by international terrorism. Alternatively, it may be depicted as the result of ill-thought policies which can be reversible. In this paper, I argue that liberal nationalism is conceptually flawed and politically illiberal. Illiberal tendencies are an integral part of it and these cannot be corrected by ‘taming’ unruly nationalism or by articulating ‘benign’ adaptations of (...)
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  6. added 2015-01-23
    David Dyzenhaus (2012). Legality Without the Rule of Law? Scott Shapiro on Wicked Legal Systems: Critical Notice: Legality by Scott Shapiro. Canadian Journal of Law and Jurisprudence 25 (1):183-200.
    In Legality, Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order (...)
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  7. added 2015-01-23
    Noam Gur (2012). Normative Weighing and Legal Guidance of Conduct. Canadian Journal of Law and Jurisprudence 25 (2):359-391.
    Contemporary legal philosophers commonly understand the normative force of law in terms of practical reason. They sharply disagree, however, on how exactly it translates into practical reason. Notably, some have argued that the directives of an authority that meets certain prerequisites of legitimacy generate reasons for action that exclude some otherwise applicable reasons, while others have insisted that such directives can only give rise to reasons that compete with opposing ones in terms of their weight . Does the weighing model (...)
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  8. added 2015-01-23
    Martin Stone (2012). Planning Positivism and Planning Natural Law. Canadian Journal of Law and Jurisprudence 25 (1):219-235.
    Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that (...)
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  9. added 2015-01-23
    Arthur Ripstein (2012). Self-Certification and the Moral Aims of the Law. Canadian Journal of Law and Jurisprudence 25 (1):201-217.
    In Legality, Scott Shapiro introduces what he calls the “Planning Theory of Law.” Shapiro introduces the idea of a plan with examples from outside of the law. He then must provide an account of what is distinctive about law, such that the other plan-based social orders are not also legal systems. He gives two answers: first, a legal system is organized by a moral aim. Second, a legal system is self-certifying. I examine these in turn, and argue that each can (...)
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  10. added 2015-01-23
    Tamar Meisels (2012). Preemptive Strikes – Israel and Iran. Canadian Journal of Law and Jurisprudence 25 (2):447-463.
    This essay looks at the contemporary just war theory literature on preventive war that has emerged largely in reaction to the US invasion of Iraq. Recent sanctions on Iran and the debate over its nuclear program now suggest the usefulness of a forward looking perspective on preventive strikes, rather than the retroactive analyses offered thus far primarily with reference to Iraq. With Iran closely in mind, I address the various arguments for and against preventive war indicating throughout that the various (...)
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  11. added 2015-01-23
    Lars Vinx (2011). Austin, Kelsen, and the Model of Sovereignty. Canadian Journal of Law and Jurisprudence 24 (2):473-490.
    Hans Kelsen's critique of John Austin has so far attracted little attention among legal theorists. This article argues that Kelsen's attack on Austin anticipated the key elements of Hart's rejection of the Austinian conception of law as sanction-backed sovereign command. At the same time, the way in which Kelsen presents his critique of Austin's conception of sovereignty reveals important differences in purpose and intention between Kelsen's Pure Theory of Law and Hart's legal theory. The Pure Theory of Law is animated (...)
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  12. added 2015-01-23
    Brian Bix (2011). John Austin and Constructing Theories of Law. Canadian Journal of Law and Jurisprudence 24 (2):431-440.
    One of the standard criticisms of John Austin’s work is that his portrayal of law, as essentially the command of a sovereign to its subjects, does not fit well with the way law is practiced or perceived by lawyers, judges, and citizens; and since the theory “fails to fit the facts,” Austin’s theory must be rejected in favor of later theories that have better fit. Many influential modern approaches to the nature of law, including Joseph Raz’s exclusive legal positivism and (...)
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  13. added 2015-01-23
    Michael Milde (2011). Book Review of Roger Shiner’s Legal Institutions and the Sources of Law. [REVIEW] Canadian Journal of Law and Jurisprudence 24 (2):403-408.
    Shiner has produced a valuable contribution to the field of analytical jurisprudence. He remains faithful to the investigative and exploratory task that he set for himself. Legal Institutions and the Sources of Lawcan be usefully consulted by anyone interested in the idea of a “source of law”. And it can certainly be used as an authoritative reference by those legal and political theorists who wish to pursue a fuller normative approach to law or politics.
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  14. added 2015-01-23
    Hamish Stewart (2011). The Limits of Consent and the Law of Assault. Canadian Journal of Law and Jurisprudence 24 (1):205-223.
    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 the body – 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 (...)
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  15. added 2015-01-23
    Pavlos Eleftheriadis (2011). Austin and the Electors. Canadian Journal of Law and Jurisprudence 24 (2):441-453.
    Austin's theory of theory of law is simple: the law follows the pattern of power; the sovereign gives commands and obeys none; the subject obeys commands; the law consists in only those commands that directly or indirectly emanate from the sovereign. Nevertheless, Austin's theory of sovereignty is not simple at all. When we look at the relevant chapters closely, it becomes evident that Austin has two rival theories of sovereignty, one for a single person and one for a 'determinate body'. (...)
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  16. added 2015-01-23
    David Lefkowitz (2011). The Principle of Fairness and States’ Duty to Obey International Law. Canadian Journal of Law and Jurisprudence 24 (2):327-346.
    I employ the principle of fairness to argue that many existing states have a moral duty to obey international law simply in virtue of its status as law. On this voluntarist interpretation of the principle of fairness, agents must accept the benefits of a cooperative scheme in order to acquire an obligation to contribute to that scheme’s operation. I contend that states can accept the benefits international law provides, and that only if they do so do states have a fair-play (...)
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  17. added 2015-01-23
    Talia Fisher (2011). Critical Notice: Force and Freedom: Can They Co-Exist? Canadian Journal of Law and Jurisprudence 24 (2):387-402.
    Force and Freedom, a new book by Professor Arthur Ripstein, offers a comprehensive and highly sophisticated articulation of Kant’s legal and political philosophy. While Kant’s thinking on metaphysics and ethics has received paramount attention in the academic discourse, his contribution to legal and political theory has been somewhat marginalized. One reason for Kant’s exclusion from the central canon of political and legal philosophy is the abstract and very complicated nature of Kantian writing on law and political power, most particularly in (...)
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  18. added 2015-01-23
    George Pavlakos (2011). Constitutional Rights, Balancing and the Structure of Autonomy. Canadian Journal of Law and Jurisprudence 24 (1):129-153.
    The question of the character of constitutional rights norms is complex and admits of no easy answer. Without reducing the complexity of the issue, I attempt in this paper to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning that combines both balancing and the grounds as to why balancing is appropriate . Absent the latter type of reason, the application of constitutional principles remains a pure instance of (...)
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  19. added 2015-01-23
    David Dyzenhaus (2011). Austin, Hobbes, and Dicey. Canadian Journal of Law and Jurisprudence 24 (2):411-440.
    I argue that attention to Austin helps us to appreciate that there are significant continuities between his legal theory and that of contemporary positivists; hence, to the extent that Austin’s theory has defects, these are reproduced in the work of contemporary legal positivism. An historical perspective on contemporary philosophy of law thus permits one to appreciate that the basic divide in legal theory is between a tradition whose basic intuition is that law is answerable to a moral ideal of legality (...)
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  20. added 2015-01-23
    Gary Chartier (2010). Natural Law and Animal Rights. Canadian Journal of Law and Jurisprudence 23 (1):33-46.
    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, (...)
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  21. added 2015-01-23
    Jacob Weinrib (2010). What Can Kant Teach Us About Legal Classification? Canadian Journal of Law and Jurisprudence 23 (1):203-232.
    In Dimensions of Private Law, Professor Stephen Waddams describes the obstacles that an adequate classification of private law must overcome. The purpose of this essay is to offer a theoretical account of legal classification that explains how these obstacles can be overcome and what the resulting classification of private law might look like. I begin with the catalogue of obstacles that Waddams presents and argue that, because they are rooted in misconceptions about the classificatory project, they pose no threat to (...)
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  22. added 2015-01-23
    Andrew Halpin (2010). The Province of Jurisprudence Contested: Critical Notice: The Province of Jurisprudence Democratized by Allan Hutchinson. Canadian Journal of Law and Jurisprudence 23 (2):515-535.
    Allan Hutchinson’s recent book, The Province of Jurisprudence Democratized, considers what is involved in seeking to establish the province of jurisprudence as a distinctive field of inquiry.Hutchinson’s principal concern with the democratization of law, legal theory, and the province of jurisprudence is examined in detail. The process of democratization and its anti-elitist character is traced through Hutchinson’s opposition to the aloof philosophical analysis of the universal in favour of an engagement with local and particular issues. However, the weight Hutchinson places (...)
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  23. added 2015-01-23
    Philip Soper (2010). Book Review of Brian Burge-Hendrix’s Epistemic Uncertainty and Legal Theory. [REVIEW] Canadian Journal of Law and Jurisprudence 23 (1):249-254.
    Making the perspective of insiders critical to a theory of law, including particularly those who accept and enforce legal standards, has been the hallmark of corrections to John Austin’s theory at least since Hart’s The Concept of Law. Burge-Hendrix’s book continues this tradition and brings its insights to bear on the particular dispute between inclusive and exclusive positivists. That being said, the project has always seemed to me to be incomplete. If the participant’s perspective is indeed the critical one, then (...)
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  24. added 2015-01-23
    Mark Thornton (2010). Book Review of John Gardner’s Offences and Defences: Selected Essays in the Philosophy of Criminal Law. [REVIEW] Canadian Journal of Law and Jurisprudence 23 (1):255-262.
    This volume contains eleven previously published essays on criminal law together with a new "Reply to Critics" by the Professor of Jurisprudence at Oxford, John Gardner. The principal themes of the essays, covering offences, defences, and punishment, are summarized in this review, which also highlights areas of controversy and various lines of criticism.
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  25. added 2015-01-23
    Larry Alexander (2009). Of Living Trees and Dead Hands: The Interpretation of Constitutions and Constitutional Rights. Canadian Journal of Law and Jurisprudence 22 (2):227-236.
    The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures and (...)
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  26. added 2015-01-23
    Veronica Rodriguez-Blanco (2009). Book Review: The Law and the Right: A Reappraisal of the Reality That Ought to Be, by Enrico Pattaro. [REVIEW] Canadian Journal of Law and Jurisprudence 22 (2):451-456.
    Rodriguez-Blanco examines Enrico Pattaro's effort to explain the normativeness or binding force of the law. Pattaro defends the controversial claim that norms are motives of behaviour and provides a rich explanation of how these motives, i.e., beliefs in the human brain, move human agency. In her review, Rodriguez-Blanco challenges Pattaro's empirical conception of human agency.
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  27. added 2015-01-23
    John Charvet (2009). Transitional Problems in Brudner’s Inclusive Conception of Liberalism. Canadian Journal of Law and Jurisprudence 22 (1):153-164.
    This paper is concerned with certain connections and oppositions that Brudner perceives between liberty, equality and community. As I understand his project, he begins with a strong atomist conception of the worth of individuals, which he calls libertarian, and claims to show how egalitarian and communitarian ideas of individual worth are unavoidably contained in the original idea and must be developed out of it in order to arrive at a coherent and conceptually stable view. This is the inclusive conception, which (...)
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  28. added 2015-01-23
    Richard Lippke (2009). The Case for Reasoned Criminal Trial Verdicts. Canadian Journal of Law and Jurisprudence 22 (2):313-330.
    Discussion in the paper focuses on instituting a requirement that juries in criminal cases make public the reasons for their verdicts. The nature of such a requirement is elaborated, as is the way in which defects in the reasons provided might serve as a basis for appealing convictions. Various arguments for adopting such a requirement are considered, as are objections to doing so. In support of the requirement, I contend that it would enable defendants in criminal cases to ensure that (...)
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  29. added 2015-01-23
    Andrew Botterell (2009). Rethinking Criminal Law: Critical Notice: Truth, Error, and Criminal Law: An Essay in Legal Epistemologyby Larry Laudan. Canadian Journal of Law and Jurisprudence 22 (1):93-112.
    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 (...)
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  30. added 2015-01-23
    Clare Chambers (2009). Inclusivity and the Constitution of the Family. Canadian Journal of Law and Jurisprudence 22 (1):135-152.
    This paper starts by discussing Alan Brudner's overall project: the project of inclusivity. It argues that the idea of inclusivity is problematic both conceptually and normatively, for three reasons. First, it is not clear that Brudner's aim to provide a unified theory of the liberal constitution is either possible or desirable. Second, Brudner assumes but does not adequately demonstrate the need for public justification of the liberal constitution. Third, Brudner does not sufficiently explain who should have a veto over his (...)
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  31. added 2015-01-23
    Pavlos Eleftheriadis (2009). Parliamentary Sovereignty and the Constitution. Canadian Journal of Law and Jurisprudence 22 (2):267-290.
    The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty (...)
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  32. added 2015-01-23
    L. Sumner (2008). Politician, Judges, and the Charter. Canadian Journal of Law and Jurisprudence 21 (1):227-238.
    The complaint is a familiar one: unelected, politically unaccountable judges are using their powers of judicial review to subvert the democratic process by shaping public policy in accordance with their own personal moral/political views. It is tempting to dismiss this complaint as the grumbling of those, usually on the political right, who have been disaffected by court decisions with which they personally disagree. But this temptation must be resisted, since the critics of judicial review, such as Jeremy Waldron, raise important (...)
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  33. added 2015-01-23
    David Lefkowitz (2008). Solving The Chronological Paradox In Customary International Law: A Hartian Approach. Canadian Journal of Law and Jurisprudence 21 (1):128-148.
    As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. (...)
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  34. added 2015-01-23
    Stephen Smith (2008). Troubled Foundations for Private Law. Canadian Journal of Law and Jurisprudence 21 (2):459-476.
    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 , though ignored and disparaged for (...)
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  35. added 2015-01-23
    Dan Priel (2008). Free-Floating From Reality. Canadian Journal of Law and Jurisprudence 21 (2):429-445.
    Matthew Kramer has recently proposed a distinction between norms that are free-floating and those that are not. The distinction, he argued, enables us to distinguish between norms that can be incorporated into the law and those that cannot. In this essay I argue that his distinction is based on several theoretical errors, and that even if it were successful, it is unclear why his distinction is relevant for the question of the boundaries between law and morality. I also provide many (...)
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  36. added 2015-01-23
    Avihay Dorfman (2008). Freedom of Religion. Canadian Journal of Law and Jurisprudence 21 (2):279-319.
    Why it is that the principle of freedom of religion, rather than a more general principle such as liberty or liberty of conscience, figures so prominently in our lived experience and, in particular, in the constitutional commitment to the free exercise of religion? The Paper argues, negatively, that the most prominent answers offered thus far fall short; and positively, that the principle of freedom of religion arises out of a thicker understanding of the much neglected relationship between religious liberty and (...)
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  37. added 2015-01-23
    Philip Soper (2007). In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All. Canadian Journal of Law and Jurisprudence 20 (1):201-224.
    The classical view of natural law, often traced to Aquinas' statement that "unjust law is no law at all," finds few defenders today. Even those most sympathetic to natural law theories do not embrace the classical account, but, instead, convert Aquinas' claim into a claim of political theory or construct new "natural law" accounts about the connection between legal and moral principles in a theory of adjudication. In this paper, I defend the view that extreme injustice disqualifies otherwise valid official (...)
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  38. added 2015-01-23
    Mark Murphy (2007). Philosophical Anarchisms, Moral and Epistemological. Canadian Journal of Law and Jurisprudence 20 (1):95-112.
    The moral formulation of philosophical anarchism is that most persons, even in just political communities, do not have a moral obligation to obey the law. The epistemological formulation of philosophical anarchism is that most persons are unjustified in believing that they have a moral obligation to obey the law. But the philosophical anarchists’ argument strategies do not, and in fact cannot, show that belief in the moral obligation to obey the law is unjustified. And, further, given that most persons in (...)
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  39. added 2015-01-23
    Andrei Marmor (2007). Are Constitutions Legitimate. Canadian Journal of Law and Jurisprudence 20 (1):69-94.
    This paper argues that constitutionalism raises some serious concerns of moral legitimacy. Following a preliminary outline of the main features of constitutionalism, the paper presents some of the main moral concerns about the legitimacy of constitutions. It then considers in detail a number of arguments which purport to answer those concerns, arguing that they all fail to meet the challenge. The paper concludes with a brief outline of some of the moral implications of this failure and some suggestions for reform.
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  40. added 2015-01-23
    Andrew Halpin (2006). The Methodology of Jurisprudence: Thirty Years Off The Point. Canadian Journal of Law and Jurisprudence 19 (1).
    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 (...)
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  41. added 2015-01-23
    Simon Caney (2006). Cosmopolitan Justice, Rights, and Global Climate Change. Canadian Journal of Law and Jurisprudence 19 (2).
    The paper has the following structure. In Section I, I introduce some important methodological preliminaries by asking: How should one reason about global environmental justice in general and global climate change in particular? Section II introduces the key normative argument; it argues that global climate change damages some fundamental human interests and results in a state of affairs in which the rights of many are unprotected: as such it is unjust. Section III addresses the complexities that arise from the fact (...)
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  42. added 2015-01-23
    Elizabeth Ashford (2006). The Inadequacy of Our Traditional Conception of the Duties Imposed by Human Rights. Canadian Journal of Law and Jurisprudence 19 (2).
    I argue that our traditional conception of the duties imposed by human rights is unable to acknowledge the nature of many contemporary human rights violations. The traditional conception is based on a broadly deontological view according to which human rights impose primarily negative and perfect duties, and these duties are held to be specific prohibitions on certain kinds of actions . I argue that given this conception of the nature of the duties imposed by human rights, not only claims to (...)
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  43. added 2015-01-23
    Gillian Brock (2006). Basic Liberties and Global Justice. Canadian Journal of Law and Jurisprudence 19 (2).
    My primary goals in this article are to show: first, that we can identify and justify which basic freedoms are important ones to protect in the global context; second, that we can monitor whether we are making progress with respect to whether more or fewer people are enjoying the important freedoms; third, that we can identify some key institutions that play a central role in fortifying those freedoms; fourth, that we can help build or fortify local capacity with respect to (...)
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  44. added 2015-01-23
    Darrel Moellendorf (2006). Equality of Opportunity Globalized? Canadian Journal of Law and Jurisprudence 19 (2).
    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 (...)
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  45. added 2015-01-23
    Dale Smith (2006). Ronald Dworkin and the External Sceptic. Canadian Journal of Law and Jurisprudence 19 (2).
    Ronald Dworkin has repeatedly claimed that the debate between moral objectivists and anti-objectivists has no implications for legal practice or theory. He has offered two main arguments to support this claim. The first is that while assertions about the truth or falsity of moral objectivism may be intelligible, they are irrelevant to legal practice and theory. The second is more radical, namely, that no assertion can be given an intelligible meta-ethical reading. In this article, I contend that neither argument is (...)
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  46. added 2015-01-23
    Richard Vernon (2006). Contractualism and Global Justice: The Iteration Proviso. Canadian Journal of Law and Jurisprudence 19 (2).
    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 (...)
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  47. added 2015-01-23
    Andrei Marmor (2005). On The Right to Private Property and Entitlement to One’s Income. Canadian Journal of Law and Jurisprudence 18 (1).
    In this short essay I argue that the main insight of Murphy and Nagel’s book, The Myth of Ownership, that people have no right to their pre-tax income, is not supported by their claim that the right to private property is not a natural right. The non-naturalness of the right to private property, I argue, is irrelevant to their moral argument. The plausibility of their moral conclusion derives from the thesis that people have a right to the fruits of their (...)
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  48. added 2015-01-23
    Nigel Simmonds (2005). Jurisprudence as a Moral and Historical Inquiry. Canadian Journal of Law and Jurisprudence 18 (2).
    The essay builds on the claim that the concept of law is best understood as structured by an abstract archetype to which actual instances of law approximate, and that the archetype in question is an intrinsically moral idea: the idea of a realm of universality and necessity within which one can enjoy freedom as independence from the power of others. Reflection upon the nature of this archetype is a form of moral reflection upon experience, where we seek to grasp the (...)
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  49. added 2015-01-23
    Richard Epstein (2005). Taxation with Representation: Or, the Libertarian Dilemma. Canadian Journal of Law and Jurisprudence 18 (1).
    Without question, the libertarian vision that envisions the use of state power to control force and fraud as a proper governmental function is one piece of any comprehensive political theory. But the hard-line libertarian goes astray in finding this the sole function of government or in thinking that the maintenance of order is possible without the imposition of taxes. Rather, the case for taxation rests on the familiar view that state coercion is sometimes necessary to overcome coordination problems. The justification (...)
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  50. added 2015-01-23
    Edward Mccaffery (2005). Three Views of Tax. Canadian Journal of Law and Jurisprudence 18 (1).
    Virtually all liberal egalitarian advocates of redistributive taxation support an income tax, believing that consumption taxes fail to reach capital and its yield. But this is not true under progressive rates. There are two forms of consumption tax, prepaid and postpaid. A consistent progressive postpaid consumption tax reaches the yield to capital in just those cases in which ordinary moral intuitions want it to be reached: when savings are used to finance a "better," more expensive, lifestyle. Such a tax stands (...)
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