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  1. The Honourable Ian Binnie (2013). Judging the Judges: ‘May They Boldly Go Where Ivan Rand Went Before’. Canadian Journal of Law and Jurisprudence 26 (1):5-22.
    Justice Ivan Rand was perhaps the greatest exponent of the rule of law in the history of the Supreme Court of Canada. He was a great judge. He scorned as impractical the admonition that judges should “apply the law, not make it”. His judgements frequently broke new ground, but it should be understood that in “making the law” great judges like Ivan Rand respond to fundamental considerations of order and fairness and not to personal whim. It is sometimes necessary for (...)
     
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  2. Nicholas Blomley (2013). Performing Property: Making The World. Canadian Journal of Law and Jurisprudence 26 (1):23-48.
    Scholars under the ‘Progressive Property’ banner distinguish between dominant conceptions of property, and its underlying realities. The former, exemplified by Singer’s ‘ownership model’, is said to misdescribe extant forms of ownership and misrepresent our actual moral commitments in worrisome ways. Put simply, it is argued that our representations of property’s reality are incorrect, and that these incorrect representations lead us to make bad choices. Better understandings of the reality of property should lead to better representations, and thus improved outcomes.However, the (...)
     
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  3. Geoff Callaghan (2013). Defective, But Still Law: A Critique of Mark Murphy’s Weak Natural Law Jurisprudence. Canadian Journal of Law and Jurisprudence 26 (1):219-228.
    In a number of places, Mark Murphy has defended what he calls a ‘weak version’ of the natural law thesis. His claim is that, “law not backed by decisive reasons for action is still law, but defective precisely as law”. In this paper, I attempt to provide an answer on behalf of Murphy to the question: when law is defective, what is it about law that continues to make it ‘law’ despite its being defective? Three separate, but related, strategies are (...)
     
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  4. Michael Da Silva (2013). Quantifying Desert Prior to the Rightful Condition: Towards a Theoretical Understanding of the Provocation Defence. Canadian Journal of Law and Jurisprudence 26 (1):49-82.
    The provocation defence, which militates against full legal responsibility for unjustified killings in several common law jurisdictions, has been the subject of considerable controversy during recent decades. Much of the criticism focused on substantive legal issues. This article examines the philosophical bases for the defence in hopes of establishing a theoretical groundwork for future debate on the legal defence. The defence originated on desert bases and continues to be understood on those grounds. This article thus examines it in light of (...)
     
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  5. Sari Graben (2013). Rationalizing Risks to Cultural Loss in Resource Development. Canadian Journal of Law and Jurisprudence 26 (1):83-114.
    I argue in this article for the use of a dialogical approach to cost-benefit analysis, which is identified here as a process that rationalizes cross-cultural judging. Weighing in on the Kahan-Sunstein debate about the effect of culture on risk perception, I use economic valuations of Indigenous sacred sites to demonstrate how cost-benefit analysis can misrepresent loss. I identify the way cost-benefit analysis operationalizes preferences that have little relevance for perceptions of substitutability, property, or harm related to sacred sites held by (...)
     
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  6. Peter Jaffey (2013). The Unjust Enrichment Fallacy and Private Law. Canadian Journal of Law and Jurisprudence 26 (1):115-136.
    The theory of unjust enrichment – the theory supporting the recognition of a doctrinal category of unjust enrichment – has been accepted across much of the common law world. The recognition of a doctrinal category is not just a matter of presentation. It has a role in legal reasoning that reflects the fact that it is based on a particular principle or distinct justification for a claim. The theory of unjust enrichment is misguided because there is no principle or distinct (...)
     
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  7. Zoë Sinel (2013). Concerns About Corrective Justice. Canadian Journal of Law and Jurisprudence 26 (1):137-156.
    According to the principle of corrective justice, one who causes a wrongful loss or receives a wrongful gain is obligated to make good that loss or restore that gain. The guiding principle of the remedies of private law is to put the aggrieved party in the position s/he would have been in had the complained of conduct not occurred. The connection between corrective justice and private law’s remedies thus appears analytic. My article challenges this orthodoxy. I argue that, on the (...)
     
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  8. Stephen Smith (2013). A Duty Of Make Restitution. Canadian Journal of Law and Jurisprudence 26 (1):157-180.
    The rules governing impaired transfers are widely thought to lie at the core of unjust enrichment law. This essay defends two propositions about these rules. First, there is no duty, in the common law, to make restitution of benefits obtained as the result of an impaired transfer . Rather than imposing duties to make restitution, or indeed duties of any kind, the rules governing impaired transfers impose only liabilities, in particular liabilities to judicial rulings. The only legal consequence of a (...)
     
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  9. 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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  10. 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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  11. Alice Woolley (2013). The Problem of Disagreement in Legal Ethics Theory. Canadian Journal of Law and Jurisprudence 26 (1):181-218.
    Legal ethics theories give competing and exclusive accounts of the ethical foundations of the lawyer’s role. They disagree about the relationship between morality and law, about the content of the lawyer’s central ethical duties and about how specific ethical problems should be resolved. Each theoretical account asserts that the others are mistaken in some fundamental way. Yet all legal ethics theories are theories of action; legal ethics theorists do not seek merely to enlighten, they also seek to influence how lawyers (...)
     
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