University of Toronto Law Journal Volume 61, Number 2 /2011 is now available at
http://utpjournals.metapress.com/content/h6874wxn1186/
Special Issue: Understanding Law on its Own Terms: Essays on the Occasion of Ernest Weinrib’s Killam Prize
This issue contains:
Editor's Note
Arthur Ripstein
http://utpjournals.metapress.com/content/7254147663782037/?p=2113eb630ab2482b9aa4d6b6fc4f5853&pi=0
DOI: 10.3138/utlj.61.2.i
Ernie's Three Worlds
Bruce Chapman
This article is the text of an introductory address presented at the Faculty of Law on 23 October 2009 in celebration of Professor Ernest Weinrib's receiving the 2009 Killam Prize, Canada's most distinguished annual award for outstanding scholarly achievement. It offers a very personal interpretation of the contributions that Weinrib has made to private-law scholarship over the last thirty years and is organized around three closely related questions that he has addressed in his work: What is a theory? What is a theory of law? and What is a theory of private law? His answers to these different questions land Weinrib in three different worlds – the world of the university, the world of the law school, and the world of legal practice – but it is Weinrib's special contribution as a legal philosopher to have brought all three much closer together.
http://utpjournals.metapress.com/content/768156l6122026w6/?p=2113eb630ab2482b9aa4d6b6fc4f5853&pi=1
DOI: 10.3138/utlj.61.2.179
Private Law And Public Right
Ernest J Weinrib
In Kant's philosophy of law “public right” refers to the condition in which public institutions guarantee rights. This lecture deals with the relationship between public right and the rights of private law. In accordance with corrective justice, private law links the parties to a transaction bilaterally, so that they are subject to correlatively structured bases of liability. In contrast, public right is omnilateral, linking everyone to everyone else. Two normative ideas inform public right: publicness (that public institutions secure everyone's rights on the basis of reasons that can be known and acknowledged by all) and systematicity (that the norms and institutions of law form a systematic whole). In standard cases public right makes no difference to a private law controversy except to add the dimensions of publicness and systematicity. In some circumstances, however, public right alters the principle on which a court resolves a controversy, without, however, changing the structure and content of the private-law right itself. Kant himself pointed out that publicness can have this effect, as he illustrated in his discussion of market overt. Systematicity operates similarly, sometimes extending and sometimes narrowing the effect of the plaintiff's right. For instance, the tort of inducing breach of contract expands the effect of the promisee's right by securing it against everyone. On the other hand, the privilege to preserve property, exemplified in the controversial case of Vincent v Lake Erie, narrows the effect of the plaintiff's right by subjecting it to conditions that justify its infringement. The effect of public right is to make right holders reciprocally determining participants in the legal system, thereby transforming private law into a community of rights.
http://utpjournals.metapress.com/content/7556607042g584h2/?p=2113eb630ab2482b9aa4d6b6fc4f5853&pi=2
DOI: 10.3138/utlj.61.2.191
Formalism In Music And Law
Allan Beever
Though apparently dead and buried for decades, formalist approaches to law appear to be gaining ground within the academy. This advance, however, has been strongly resisted by proponents of the alternative, functionalist, view. To many of them, formalism seems open to devastating, and indeed obvious, criticisms. In this article, I argue that these criticisms are without force, as they are based on misunderstandings concerning the formalist project. I demonstrate this by comparison with formalist approaches to another subject matter: music. In that area, too, formalism initially faced considerable challenge, but it survived to become the dominant view. It is submitted that the popular criticisms of formalism examined herein are no barrier to a similar outcome for formalism with respect to law. In that way, this article is intended as a defence and celebration of the path-breaking work of Ernest Weinrib.
http://utpjournals.metapress.com/content/7437045228121qu0/?p=2113eb630ab2482b9aa4d6b6fc4f5853&pi=3
DOI: 10.3138/utlj.61.2.213
The Idea Of Consideration
Peter Benson
No doctrine of the common law of contract has been longer settled or more carefully developed than consideration. Yet none has proved more intractable to theoretical justification. This article suggests that the problem is not with consideration but rather with the theories that defend or challenge it, theories not equipped to explain the doctrine because they invoke functions and purposes that do not belong to the specific kind of relation that consideration necessarily establishes. In contrast with current approaches, the article argues that consideration is not a control device that, for various policy reasons, negatively excludes certain prima facie enforceable promises. Rather, it is constitutive of a kind of interaction that is the only basis on which parties may reasonably be held to have undertaken fully contractual obligations enforceable by expectation remedies. The article sets out the main features of the promise for consideration relation; then seeks to explain the juridical meaning and role of this relation; and finally brings out the contrast with reliance.
http://utpjournals.metapress.com/content/70g7v1m857246v87/?p=2113eb630ab2482b9aa4d6b6fc4f5853&pi=4
DOI: 10.3138/utlj.61.2.241
Private Law And Kantian Right
Alan Brudner
In The Idea of Private Law, Ernest Weinrib sought to rescue private law's autonomy from functionalism's reduction of private law to an instrument of the public interest. The twin ideas he employed for this purpose were corrective justice and Kantian Right. According to Weinrib, corrective justice provides private law's unifying structure, while Kantian Right supplies its normative content. In this essay, I argue that Kantian Right cannot be the normative complement to the corrective-justice form of private law because, with the exception of trespass to the person, private law vanishes in Kantian Right. I argue that there is no possibility for an autonomous private law in Kantian Right and that there is, indeed, a logical progression from Kantian Right to the very functionalism that Weinrib opposes.
http://utpjournals.metapress.com/content/7637626456786876/?p=2113eb630ab2482b9aa4d6b6fc4f5853&pi=5
DOI: 10.3138/utlj.61.2.279
Legal Positivism As An Idea About Morality
Martin Stone
I ask what a proper critical target for ‘legal positivism’ might be. I argue that utilitarian moral theory, and more generally fully directive moral theories, are unacknowledged motivations for legal positivism. Contemporary debate about ‘the nature of law’ is, historically speaking, much more of a footnote to utilitarianism than has been recognized.
http://utpjournals.metapress.com/content/77116541vv8v506m/?p=2113eb630ab2482b9aa4d6b6fc4f5853&pi=6
DOI: 10.3138/utlj.61.2.313
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