Canadian Journal of Law and Jurisprudence

ISSNs: 0841-8209, 2056-4260

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  1. 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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  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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  3.  1
    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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    Liberal Property and the Power of Law.Hanoch Dagan - 2023 - Canadian Journal of Law and Jurisprudence 36 (1):281-297.
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    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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  6.  1
    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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  7. 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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  8.  1
    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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  9.  1
    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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  10.  19
    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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  11.  4
    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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  12. 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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