Canadian Journal of Law and Jurisprudence

ISSNs: 0841-8209, 2056-4260

24 found

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  1.  12
    The Rule of Justice: The Compassionate Application of Law to Life.Rosalie Silberman Abella - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):305-315.
    I graduated from law school in 1970 and I’ve been proud every day since of being a lawyer. My father was a lawyer, as are our two sons, and I’ve always seen lawyers as democracy’s warriors: the people who protect rights and by protecting rights protect justice. You law students are the future democracy warriors—actually, the future of democracy full stop—so this lecture is dedicated to you and to the hope that you will make justice your transcendent preoccupation, no matter (...)
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  2.  5
    Children’s Participation in Divorce Proceedings—An Arendtian Critique.Lior Barshack - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):317-339.
    The essay proposes that children should not participate in custody proceedings because they lack a place in the public world, a concept which was developed by Arendt and which I elaborate on the basis of her writings. Arendt’s concepts of place in the world and of childhood are correlated, polar ethical concepts. ‘Place in the world’ as described by Arendt combines commitment to worldbuilding as a collaborative enterprise, relations of mutual-recognition among equal co-builders of the public world, an inviolable place (...)
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  3.  8
    Legal Obligation, Criminal Wrongdoing, and Necessity.M. E. Newhouse - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):437-462.
    Individuals sometimes do things that they know will violate the terms of a statute. Most scholars deny that such actions are always morally wrong, but a coherent theoretical account of the relationships between 1) moral obligation, 2) legal obligation, and 3) criminal wrongdoing that can robustly classify hard cases has been elusive. This article starts with a Kantian account of the relationship between law and morality, and it proposes two closely related standards: one for legal obligation, and another for criminal (...)
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  4.  10
    An Age of Rights?N. E. Simmonds - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):553-574.
    Rights seem to occupy a prominent place within the moral and political lexicon of modernity. But is this truly an age in which the idea of individual rights has flourished? Or might the frequency with which we speak of rights reflect a failure to appreciate the stringent demands that genuine rights would inevitably place upon us? Does our willingness to frame so many moral issues in terms of rights simply illustrate our failure to take the idea of rights seriously? Does (...)
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  5.  9
    The Standard Picture and Statutory Interpretation.Aaron Graham - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):341-358.
    The Standard Picture holds that the contribution to the law made by an authoritative legal pronouncement is directly explained by the linguistic content of that pronouncement. This essay defends the Standard Picture from Mark Greenberg’s purported counterexamples drawn from patterns of statutory interpretation in U.S. criminal law. Once relevant features of the U.S. rule of recognition are admitted into the analysis—namely, that it arranges sources of law hierarchically, and that judicial decisions are sources of valid law—Greenberg’s counterexamples are revealed as (...)
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  6.  14
    Legal Positivism for Legal Officials.Felipe Jiménez - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):359-386.
    This paper makes a conceptual prescription: it argues that judges and lawyers should adopt a positivist concept of law, on normative grounds. The positivist view, I will argue, is more consistent with reasonable disagreement and majority rule than nonpositivist views, offers a better view of law’s moral standing, and is more consistent with what Dworkin called ‘integrity’ than non-positivism. As the paper explains, this is an argument about what I call the ‘operative’ concept of law. As such, the argument avoids (...)
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  7.  17
    Hart on Legal Powers as Legal Competences.Matthew H. Kramer - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):387-405.
    This paper first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder a few of the junctures where (...)
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  8.  7
    Theorising Gambling Self-Exclusion Agreements: The Inadequacy of Procedural Autonomy.Bernard Long - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):407-435.
    Gambling self-exclusion agreements enable a person to have themselves prevented from gambling for some future period. In light of evidence of their effectiveness in helping problem gamblers manage their addiction, these agreements enjoy growing popularity. In particular, several jurisdictions now oblige gambling operators to offer self-exclusion to their clientele. If self-exclusion has a unique value that is distinct from paternalistic measures, such as forced exclusion, it is surely because it prizes the gambler’s autonomy. In this article, however, I will argue (...)
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  9.  6
    Aspiration and Reality in Legal Education David Sandomierski.Dwight Newman - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):575-579.
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  10.  6
    The Significance of Conscience in Community: Rethinking the ‘Hands Off Religion’ Doctrine.Chagai Schlesinger - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):463-490.
    When evaluating religious accommodation claims, courts refrain from examining the relationship between the specific claim and the common religious practice of the relevant religion. This paper rethinks this doctrine. I argue that it stems from understanding religious accommodation as a protection of conscience. This idea itself suffers from conceptual and practical challenges, which can be mitigated if we understand religion as a communal function of conscientious actions. The communal aspect bears practical and moral significance, and I explore three dimensions of (...)
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  11.  9
    Participation and Law’s Authority.Ẹniọlá Ànúolúwapọ́ Ṣóyẹmí - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):491-524.
    This article argues that despite its claim to be most concerned with the nature of law in the generality of cases, legal positivism’s almost exclusive focus on Anglo-American law has prevented the tradition from adequately answering the question of law’s authority. This article argues that much positivist analysis either ignores, or takes for granted, the participation of the local population in the historical development of any given society’s law and legal system. This failing means that positivism, and much of analytical (...)
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  12.  13
    Metaethics and the Limits of Normative Contract Theory.Shivprasad Swaminathan - 2023 - Canadian Journal of Law and Jurisprudence 36 (2):525-551.
    This article outlines two models of constructing contract theory: The impinging model (based on metaethical cognitivism), which gives central place to truth and justification; and the projectivist model (based on metaethical non-cognitivism), which gives central place to attitudes and motivation. It is argued that modern contract theories which typically seek to present the whole body of contract doctrine as deducible from, and morally justifiable by, one or a small number of apex principles, presuppose the impinging model. By contrast, a projectivist (...)
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  13. Legal Positivism and the Moral Origins of Legal Systems.Emad H. Atiq - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):37-64.
    Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, I suggest (...)
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  14.  2
    Three Conceptions of Law in Democratic Theory.Ludvig Beckman - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):65-82.
    Democratic theory tends to proceed on the assumption that law requires democratic legitimation because it is coercive. However, the claim that law requires democratic legitimation is distinct from claims about the nature of law. This paper takes issue with the notion that law is coercive by an exploration of three distinct understandings of the nature of law: the state-based conception of law, law as the rules of institutionalized normative systems, and law as social norms. Drawing on insights from legal and (...)
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  15.  5
    Subsidiarity and the Allocation of Governmental Powers.Michael Da Silva - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):83-111.
    Every country must allocate final decision-making authority over different issues/subjects within its boundaries. Historically, many scholars working on this topic implicitly assumed that identifying the features providing entities with justified claims for authority and the entities possessing those features would also identify which groups should have which powers (or vice versa). However, many candidate allocative principles select multiple entities as candidates for some sub-state authority and yet fail to explain which powers each should possess. Further work must explain which groups (...)
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  16.  8
    Liberal Property and the Power of Law.Hanoch Dagan - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):281-297.
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  17.  11
    Purposes in Law and in Life: An Experimental Investigation of Purpose Attribution.Guilherme da Franca Couto Fernandes de Almeida, Joshua Knobe, Noel Struchiner & Ivar R. Hannikainen - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):1-36.
    There has been considerable debate in legal philosophy about how to attribute purposes to rules. Separately, within cognitive science, there has been a growing body of research concerned with questions about how people ordinarily attribute purposes. Here, we argue that these two separate fields might be connected by experimental jurisprudence. Across four studies, we find evidence for the claim that people use the same criteria to attribute purposes to physical objects and to rules. In both cases, purpose attributions appear to (...)
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  18.  7
    Theorizing Access to Civil Justice.Matthew Dylag - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):113-145.
    Despite more than half a century of reform efforts, access to civil justice is still understood to be in a state of crisis. Part of the reason for this is because there is no consensus among the legal community on the meaning of justice in this context. This paper seeks to provide a much-needed theoretical underpinning to the access-to-civil-justice movement. It advances ‘justice as fairness,’ as articulated by the American philosopher John Rawls, in conjunction with Lesley Jacobs’ model of equal (...)
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  19. Owning the Street: The Everyday Life of Property Amelia Thorpe.Alexandra Flynn - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):299-303.
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  20.  9
    Hume’s Conventionalist Account of Property and the History of English Land Law.Darryn Jensen - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):147-170.
    The central theoretical assumption of English land law (and land law in related legal systems) that all rights in land are derivative of the Crown’s rights does not provide a full account of the origins of rights in land. ‘Liberal’ theories of the origin of property rights, which see property rights as something that emerged independently of state action, retain considerable explanatory value. The paper begins with a discussion of the principal features of David Hume’s account of the origins of (...)
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  21.  3
    Discretion in the Automated Administrative State.Sancho McCann - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):171-194.
    Automated decision-making takes up an increasingly significant place in the administrative state. This article presents a conception of discretion that is helpful for evaluating the proper place of algorithms in public decision-making. I argue that the algorithm itself is not a site of discretion. The threat is that automated decision-making alters the relationships between traditional actors in a way that can cut down discretion and human commitment. Algorithmic decision-makers can serve to fetter the discretion that the legislature and the populace (...)
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  22.  40
    Political Obligation and the Need for Justice.Kevin Walton - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):195-214.
    This paper examines the claim that justice is necessary for a moral obligation to obey the law. By reflecting on the meaning of obedience, it identifies one version of the claim that must be right and another that must be wrong. It then focuses on the argument for a moral obligation to obey the law that most obviously includes the claim: John Rawls’s argument from the natural duty of justice. More specifically, it focuses on the degree of justice that is (...)
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  23.  9
    How to Answer Dworkin’s Argument from Theoretical Disagreement Without Attributing Confusion or Disingenuity to Legal Officials.Bill Watson - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):215-240.
    Ronald Dworkin’s argument from theoretical disagreement remains a pressing challenge for legal positivists. In this paper, I show how positivists can answer Dworkin’s argument without having to attribute confusion or disingenuity to legal officials. I propose that the argument rests on two errors. The first is to assume that positivism requires legal officials to converge on precise grounds of law when convergence on more general grounds will do. The second is to construe judicial speech too literally. If we pay attention (...)
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  24.  3
    Positivism and Unity.Meir H. Yarom - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):241-280.
    This article examines the grappling of modern positivists with the question of legal unity. It presents and contrasts two antagonistic positivist strands—naturalist and normativist—epitomized in the works of Austin and Kelsen, respectively. The two strands correspond to two contrasting models of legal authority—criterial and coherence-based—and they accordingly diverge on the proper explanation of unity. Naturalist, criterial models purport to explain the unity of law based on extra-legal facts alone; normativist, coherence-based models resort strictly to the interrelation of legal elements themselves. (...)
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