Canadian Journal of Law and Jurisprudence

ISSNs: 0841-8209, 2056-4260

26 found

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  1.  40
    John Robots, Thurgood Martian, and the Syntax Monster: A New Argument Against AI Judges.Amin Ebrahimi Afrouzi - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):369-396.
    This paper argues that an AI judge is conceptually undesirable and not just something that lies beyond the state of the art in computer science. In a nutshell, even if an AI system could accurately predict how a good human judge would decide a particular case, its prediction would be the product of correlations between such factors as patterns of syntax in bodies of legal texts. This approach of AI systems is insufficient for basing their output on the sort of (...)
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  2.  11
    Doctrinal Legal Science: A Science of Its Own?William Hamilton Byrne & Henrik Palmer Olsen - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):343-367.
    Doctrinal legal scholarship faces persistent challenges from empirical approaches, but such criticism rarely seeks to encounter doctrine on its own terms. In this article, we seek to excavate the theoretical and methodological basis of doctrinal legal scholarship by situating the discipline in a hermeneutic continuum between theory and practice, or law’s engagement with the social world. We first unfold this dynamic as an exercise in methodological interpretivism and ontological hermeneutics and then turn to explicate our analysis with examples drawn from (...)
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  3.  18
    Necessary Truths and St. Thomas Aquinas’ Definition of ‘Law’.Shane D. Drefcinski - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):601-617.
    What is the nature of law? The question that St. Thomas Aquinas answers in Summa Theologica I-II continues to be a crucial question in contemporary philosophy of law. Various scholars of jurisprudence attempt to identify the necessary features of law. Yet they struggle with the question, what kind of necessity is involved? Is it conceptual necessity? Metaphysical necessity? In this paper, I explore an alternative way of distinguishing different kinds of necessity that is found in Aquinas’ Commentary on Aristotle’s Physics. (...)
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  4.  15
    The Coming of Age of Deliberative Constitutionalism.C. Ignacio Giuffré - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):397-426.
    In a 1998 article, Bohman argued that the contemporary deliberative turn in democratic theory had reached its ‘coming of age’, as deliberative democrats began to show greater interest in the institutionalization of their proposal. Moreover, Bohman referred to this growing interest with an expression that was unprecedented at the time: ‘deliberative constitutionalism’. At present, deliberative constitutionalism has become one of the most original and relevant contemporary proposals. In this context, my article proceeds as follows. I begin by arguing that the (...)
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  5.  16
    The Liberal Case for Community Land Trusts.Marc Goëtzmann - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):427-456.
    This paper argues that community land trusts (CLTs) can be part of a liberal housing policy from both an economic and a legal point of view. In this, I depart from the defense of community land trusts based on the so-called ‘decommodification’ of housing. First, from an economic point of view, CLTs are a comparatively better option than other traditional policies, such as rent control, once the political complexity of housing policies is considered. Second, fostering autonomy and the capacity for (...)
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  6.  19
    The Standard Picture and Statutory Interpretation – ERRATUM.Aaron Graham - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):645-645.
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  7.  19
    The Practical Otiosity of Exclusionary Reasons.Kenneth Einar Himma - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):457-473.
    One of Joseph Raz’s most influential contributions to legal philosophy is the Exclusionary Thesis, according to which any prescription that counts as mandatory is identical with an exclusionary reason that bars acting on certain reasons favoring noncompliance. This essay argues that exclusionary reasons are otiose in the sense there is no deliberative work they are ever needed to do under objective norms of practical reasoning.
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  8.  14
    Moral Pluralism and Constitutional Horizontality.Tom Kohavi - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):475-505.
    Despite the growing influence of constitutional rights over the regulation of horizontal (private) relations, many aspects of this trend remain under-theorized. This article criticizes four ideal-typical constitutional horizontality models for failing to accommodate moral reasons that must shape this regulatory practice: the state action model ignores basic consequentialist aspects of political morality; the direct application model ignores basic relational aspects of interpersonal morality; the strong indirect model recognizes both but subordinates the latter to the former; and the partitioned indirect model (...)
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  9.  9
    When Is it Right to Speak of Animal Rights?Lee McConnell - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):507-543.
    This article examines the ways in which the language of legal rights is invoked by those seeking to improve the treatment of animals. Drawing from a range of analytical, realist, and critical legal and social theorists, it argues that certain argumentative techniques commonly employed to justify the extension of legal rights to animals may serve to strengthen and reproduce the very forms of exploitation they seek to challenge. The article begins by identifying and critiquing the binary characterisation of rights/welfare and (...)
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  10.  10
    Freedom Under the Private Law Allan Beever.Manish Oza - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):639-644.
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  11.  18
    Democracy and the Notwithstanding Clause.Michael Pal - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):545-570.
    This article focuses on the relationship between democracy and the notwithstanding clause in s.33 of the Canadian Charter of Rights and Freedoms. A number of scholars argue that s.33 is inherently ‘democratic’, as it is an assertion of legislative supremacy. The most influential such theory is Jeremy Waldron’s. This article offers a democracy-based critique of Waldron’s democracy-based account of the notwithstanding clause. The argument that the notwithstanding clause is necessarily ‘democratic’ ignores the constitution of the legislature through elections and the (...)
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  12.  15
    Should No Further Books Be Written on the Law of Unjust Enrichment?Sagi Peari - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):619-638.
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  13.  23
    Defending Aggregated Legislative Intent.David Tan - 2024 - Canadian Journal of Law and Jurisprudence 37 (2):571-600.
    Theories of aggregated legislative intent posit that the legislative intent of parliament is what a significant enough proportion of legislators intended (e.g., legislative intent is p if a majority intend that p). After all, many think the same way about democracy (‘votes reveal the will of the people’) and about courts (‘a court decision is based on judicial voting’). The existing literature on aggregated legislative intent, however, tends to make two undefended assumptions: (i) Informed Assumption: all legislators have policy intentions; (...)
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  14.  42
    The Rise and Fall of Private Law - Reciprocal Freedom: Private Law and Public Right Ernest J. Weinrib.Alan Brudner - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):323-341.
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  15. Shadows or Forgeries? Explaining Legal Normativity.Alma Diamond - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):47-78.
    Legal norms serve as practical standards for individuals and officials. While this ‘normative aspect’ of law is widely acknowledged, its significance for theories of law remains contested. In this paper, I examine three views on the matter. First, that we should explain legal norms as reason-giving. Second, that we should explain legal discourse as being about reasons for action. Third, that we should explain law as capable of being reason-giving. I survey some challenges associated with each of these views. What (...)
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  16.  33
    The Foundations of Constitutional Democracy: The Kelsen-Natural Law Controversy.Nathan Gibbs - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):79-107.
    In the immediate post-war period, a set of thinkers, most notably Jacques Maritain, developed influential natural law theories of constitutional democracy. The central tenet of the natural law approach to the post-war settlement was that, without the type of foundational understanding of the constitutional system it was proposing, the new democratic political institutions would relapse into totalitarianism. In response to this natural law challenge, Hans Kelsen sought to explicate and defend a self-consciously secular and relativistic understanding of the basis of (...)
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  17.  33
    Defending Dworkin’s One-System Anti-Positivism.Maricarmen Jenkins - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):109-131.
    In this article, I argue that Dworkin’s one-system view of law and morality is not as easy to refute or dismiss as some would suggest. In a recent article, Dindjer criticizes a new kind of opposition to legal positivism characterized by both its opposition to a two-system view of law and morality and its promotion of a one-system alternative picture. By re-examining Dworkin’s criticisms of the two-system view and by providing additional reasoning of my own, I show that Dworkin’s one-system (...)
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  18.  30
    The Impact of the Size of Bribes on Criminal Sanctions: An Integrated Philosophical and Economic Analysis.Leora Dahan Katz & Adi Libson - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):31-46.
    This article analyzes the question of how the size of bribes should impact criminal sanctions. In contrast to the commonly held view that punishment should increase with the size of the bribe, we argue to the contrary: that the punishment of the bribee should decrease with the size of the bribe. Our conclusion is based both on a philosophical argument and an economic argument. We argue that all else being equal, as an agent’s reservation price for selling public interests decreases, (...)
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  19.  32
    Rights Talk and Constitutional Emotivism.Alexander Loehndorf - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):133-166.
    This paper builds on the work of several exceptional scholars from the disciplines of philosophy, law, and history. My central aim is to introduce and explicate an idea closely related to (and derivative of) the concept of rights talk, a concept I call ‘constitutional emotivism’. By drawing upon scholars including Mary Ann Glendon, Jamal Greene, A.J. Ayer, and Alasdair MacIntyre, I aim to gather the conceptual threads that I trace through their work which together form the idea of constitutional emotivism. (...)
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  20.  27
    The Property Right to Voice.Avital Margalit & Shai Stern - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):167-197.
    Should property owners have a unique right to express their opinion just because they own property? While current law recognizes owners’ rights to express their voices in certain instances, it does not provide comprehensive and coherent answers to this question. This article provides an analytical framework for recognizing the owners’ right to voice as an independent property entitlement within the owners’ property bundle of rights and delineates its boundaries. Yet even when the owners’ voice is property-dependent, there is a difference (...)
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  21.  22
    Opportunistic Breach of Contract.Francesco Parisi, Ariel Porat & Brian H. Bix - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):199-230.
    Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the (...)
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  22.  33
    The Physical-Emotional Distinction in Tort.Philip Petrov - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):231-259.
    Several legal scholars have recently argued that U.S. tort law’s physical-emotional distinction commits tort to the objectionable position of mind-body dualism, but they have not considered the distinction’s role as an aid to judicial cognition and decision-making. Drawing primarily on the law of negligent infliction of emotional distress, this essay argues that tort’s physical-emotional distinction is not a relic of mind-body dualism but a heuristic that judges have used to structure and simplify the difficult but unavoidable task of drawing lines (...)
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  23.  52
    Human Rights, Interpretivism, and the Semantic Sting.Gabriel Costa Val Rodrigues - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):1-29.
    What are human rights? What makes a particular human rights claim ‘genuine’ or ‘valid’? These are difficult questions with which current philosophical literature on human rights is concerned. They are also the same kind of questions that legal philosophers asked about Law throughout the 20th century. Drawing from the similarities between the two fields, I attempt to do with the concept of human rights something similar to what Ronald Dworkin accomplished with that of Law in Law’s Empire. First, I offer (...)
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  24.  37
    The Power to Contract and the Offer-and-Acceptance Analysis of Contract Formation.Irina Sakharova - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):261-285.
    The offer-and-acceptance analysis has long been questioned as not (easily) applicable to certain methods of contracting. This paper looks at this analysis through the prism of normative powers and identifies much deeper problems with the analytic explanation of how such unilateral normative powers as offer and acceptance can generate such a normative result as concluding a contract. It argues that even if the powers to offer and accept are exercised, as they are in certain methods of contracting, these are not (...)
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  25.  32
    Public Law’s Cerberus: A Three-Headed Approach to Charter Rights-Limiting Administrative Decisions.Richard Stacey - 2024 - Canadian Journal of Law and Jurisprudence 37 (1):287-322.
    This article offers a theoretical and doctrinal solution to a vexing question in public law: how to determine the justifiability of Charter rights-limiting administrative decisions. The jurisprudence suggests three approaches, or modes of reasoning: minimal impairment analysis, ‘interest balancing’, and ‘values-advancing reasoning’. Like Cerberus, the guard dog of Hades, Canadian public law has become three-headed. While scholars and courts argue about which mode of reasoning is categorically best, the culture of justification compels us to ask instead which provides the most (...)
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  26. Allan Beever, Freedom Under the Private Law[REVIEW]Manish Oza - 2024 - Canadian Journal of Law and Jurisprudence:1-6.
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