Canadian Journal of Law and Jurisprudence

ISSNs: 0841-8209, 2056-4260

12 found

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  1.  19
    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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  2.  51
    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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  3.  11
    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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  4.  12
    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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  5.  10
    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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  6.  18
    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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  7.  17
    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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  8.  8
    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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  9.  18
    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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  10.  21
    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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  11.  11
    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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  12.  17
    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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