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Published online by Cambridge University Press: 01 January 2020
1 Poff, Deborah and Waluchow, Wilfrid eds., Business Ethics in Canada (Scarborough, ON: Prentice-Hall 1987)Google Scholar; henceforth BEC
2 I am not the only Canadian philosopher to find Dan-Cohen’s book of interest and importance — see Michael McDonald’s valuable review article ‘The Personless Paradigm,’ University of Toronto Law Journal 37 (1987) 212-26. Because of his own research interests, McDonald has much to say about Dan-Cohen’s book in relation to the concept of group rights (see 214, 220-6). I shall discuss other aspects of the book here, and strongly commend McDonald’s article to those who share a concern with group rights. See also the review article by Richard B. Stewart, ‘Organizational Jurisprudence,’ Harvard Law Review 101 (1987) 371-90.
3 The book is a revised version of a Yale Law School doctoral dissertation. Its origin shows in the obsessive footnoting of anyone who has ever said anything at all similar to a given sentence in Dan-Cohen’s text, and in the way that the canvassing of lines of argument often owes more to the goal of completeness than to intuitive plausibility and interest.
4 I don’t mean to imply Dan-Cohen is a natural law theorist. RPO is independent of that issue. Both legal positivism and natural law theory acknowledge the obvious - that the law has moral content and significance. They differ on the issue of whether reference to that content and significance is necessarily part of that story of what it is for the law to be the law.
5 I’ll now drop the scare-quotes, but anyone who fails to identify can put them back in again.
6 The best-known philosophical defence in a business ethics context of aggregation is probably French, Peter A. ‘The Corporation as a Moral Person,’ American Philosophical Quarterly 16 (1979) 207-15Google Scholar, reprinted in part in BEC, 33-8. French argues that any organization will have a Corporation Internal Decision (CID) Structure, and also declared policies and intentions. Persons constitute the CID, and produce the policies. Thus, any decision emerging properly from the CID and not incompatible with declared policies is a decision that organization had made intentionally. Such agency is a necessary and sufficient condition for moral personhood. BEC also quotes from the decision in R v Fane Robinson Ltd (1941) 76 CCC 196 (Alta CA), in which the Court held that the active directors were ‘the acting and directing will’ of the company so that ‘their culpable intention (mens rea) and illegal act (sc. defrauding an insurance company] (actus reus) were the intention and the act of the company’ (BEC, 32: per Ford JA).
7 For this story, at least as it relates to the law of contract, see P.S. Atiyah’s classic The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press 1979).
8 RPO, 77-8. Dan-Cohen mentions specifically the work of Richard Epstein in relation to tort and Charles Fried in relation to contract. One might also mention the work of Ernest Weinrib in tort. Cf. Epstein, Richard A. A Theory of Strict Liability: Toward a Reformulation of Tort Law (San Francisco: The Cato Institute 1980)Google Scholar; Fried, Charles Contract As Promise (Cambridge, MA: Harvard University Press 1981)Google Scholar; Weinrib, Ernest J. ‘Kantian Legality as Ideal of Reason,’ Columbia Law Review (1988)Google Scholar; ‘Toward a Moral Theory of Negligence Law,’ Law and Philosophy 2 (1983) 37.
9 Cf. Hart, H. L.A. ‘Between Utility and Rights,’ reprinted in his Essays in jurisprudence and Philosophy (Oxford: Clarendon Press 1983)CrossRefGoogle Scholar, 198, at 199ff.; Williams, Bernard in Smart, J.J.C. and Williams, B.A.O. Utilitarianism and Its Critics (Cambridge: Cambridge University Press 1973), 82-118Google Scholar; Rawls, John A Theory of justice (Cambridge, MA: Harvard University Press 1971), 187Google Scholar.
10 The chief U.S. cases are Marsh v Alabama 326 US 501 (1946); Amalgamated Food Employees Union v Logan Valley Plaza 391 US 308 (1968); Lloyd Corporation v Tanner 407 US 551 (1972); Hudgens v NLRB 424 US 507 (1976); Robins v PruneYard Shopping Center 592 P 2d 341 (1979) (the shopping centre cases); First National Bank of Boston v Bellotti 435 US 765 (1978) (corporate free speech).
Comparable Canadian cases are Harrison v Carswell 75 CLLC 608 (1975) (SCC); Halifax Antiques Ltd. v Hildebrand et al 22 DLR (4th) 289 (1985) (NSSC); Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd 33 DLR (4th) 174 (1986) (SCC); Comité pour la république du Canada v The Queen in Right of Canada 36 DLR (4th) 501 (1987) (FCA); B.C. Government Employees’ Union v Attorney-General of B.C. 1 C of R News), no. 6 (November 1988) (SCC) (restriction on picketing of court houses during labour dispute conflicts with s.2[b] of Charter, but is overwhelmingly justified by s.1) (cases of picketing in shopping centres and other public spaces): Re Law Society of Manitoba and Savino 1 DLR (4th) 285 (1983) (regulation of professional advertising conflicts with s.2 of the Charter, but is a reasonable limit in accord with s.1); Re Klein and the Law Society of Upper Canada 16 DLR (4th) 489 (1985) (OHCt) (rejecting claim that s.2[b] of the Charter covers pure commercial speech); Irwin Toy Ltd v A-G of Quebec 32 DLR (4th) 641 (1986) (QCA) (denies that there is any rule of interpretation which would exclude commercial speech from freedom of expression. ‘The economic choices of the citizens are just as important as, if not more important than, their artistic and cultural choices’ [Jacques JA)); Re Grier and Alberta Optometric Association et al 42 DLR (4th) 327 (1987) (ACA) (rejects Klein - ‘Dissemination of product information is a valued activity in our society, and is an expression protected by s.2[b] of the Charter’ [Kerans JA)); R v Pinehouse Plaza Pharmacy Ltd 1 C of R News), no. 2 (June 1988) (Sask QBD) (s.2[b] does not protect commercial speech); Rocket and Price v Royal College of Dental Surgeons 1 C of R Newsl, no. 2 (June 1988) (regulation of professional advertising conflicts with s.2[b) of the Charter and cannot be justified by s.1) (OCA).
11 Dan-Cohen notes versions of the distinction in other writers, of which the best-known is Weiler, Paul ‘Two Models of Judicial Decision-Making,’ Canadian Bar Review 46 (1968) 406Google Scholar.
12 I would be one of them: see ‘Adjudication Coherence, and Moral Value,’ in Bayefsky, Anne F. ed., Legal Theory Meets Legal Practice (Edmonton, AB: Academic Printing and Publishing 1988) 87-107Google Scholar.
13 See his Taking Rights Seriously, 2nd edn (Cambridge, MA: Harvard University Press 1978), Ch. 4. The Rights Thesis says that judicial decisions enforce antecedently existing political rights.
14 Nozick, Robert Anarchy, State and Utopia (New York: Basic Books 1974)Google Scholar
15 The potential values of legislative regulation as promoting efficiency by saving transaction costs, since the propounding of Coase’s well-known theorem (d. R.H. Coase, ‘The Problem of Social Cost,’ The Journal of Law and Economics 3 (1960]1) that, given zero transaction costs and perfect information and cooperation, any assignment of legal rights will be efficient, has underwritten much of the Economic Analysis of Law, or Law and Economics. See Posner, R. A. The Economic Analysis of Law, 3rd edn (Toronto: Little, Brown 1986)Google Scholar, and, for an introductory guide for philosophers, Coleman, Jules ‘Economics and the Law: A Critical Review of the Foundations of the Economic Approach to Law,’ Ethics 94 (1983-84) 649CrossRefGoogle Scholar.
16 Dan-Cohen borrows this expression from Duguit, Léon Law in the Modern State, trans. Frieda, and Laski, Harold (New York: B.W. Huebsch 1919), 240Google Scholar.
17 Werhane, Patricia Hogue ‘Formal Organizations, Economic Freedom, and Moral Agency,’ reprinted in BEC, 39-44Google Scholar
18 ‘Thinking’ here is to be understood as a place-holder for mentalistic predicates generally.
19 Joseph Raz defends such a fundamental value pluralism in his paper ‘Right-Based Moralities,’ in Frey, R.G. ed., Utility and Rights (Minneapolis: University of Minnesota Press 1984) 42Google Scholar.
20 Peters v The Queen (1971) 17 DLR (3d) 128
21 Dickson is quoting with approval a remark of Sir Owen Dixon, former Chief Justice of the High Court of Australia.
22 Powell J, in Central Hardware Co v NLRB 407 US 539 (1972), at 543
23 Marshall J in Lloyd (supra n.10), at 577. He goes on to say that we are ‘striking a balance between the freedom to speak, a freedom that is given a preferred place in our hierarchy of values, and the freedom of a private property owner to control his property. When the competing interests are fairly weighted, the balance can only be struck in favour of speech’ (580).
24 Schwartz-Torrance Investment Corpn v Bakery and Confectionery Workers’ Union (1964) 394 P 2d 921; In re Lane (1969) 457 P 2d 561; In re Hoffman (1967) 434 P 2d 353. Prune Yard was appealed by the shopping center to the U.S. Supreme Court, (1979) 447 US 74. However, the argument turned entirely on whether this provision of the California Constitution was incompatible with the paramount Constitution of the United States. The Supreme Court ruled that it was not, and dismissed the appeal. The details of the argument are not relevant to our present discussion.
25 Cattle v Stockton Waterworks Co (1875) LR 10 QB 453
26 Hedley Byrne & Co Ltd v Heller & Partners Ltd (1963) 2 All ER 575
27 The case law and academic literature is voluminous. For a thorough survey omitting only the most recent material, see Smith, J.C. Liability in Negligence (Agincourt, ON: Carswell Legal Publications 1984)Google ScholarPubMed.
28 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1972) 3 All ER 557. It is no coincidence that Dworkin picks this case in his essay ‘Hard Cases’ (vid. supra n.13) to illustrate the distinction he wishes to draw between arguments of policy and arguments of principle.
29 Junior Books Ltd v Veitchi Co Ltd (1982] 3 All ER 201
30 Feldthusen, Bruce Economic Negligence (Agincourt, ON: Carswell Legal Publications 1984), 215Google Scholar. Feldthusen’s terminology is confusing in that consequentialism would, on many construals of the term ‘moral,’ also be a moral theory. Moreover, it is also true that a consequentialist would not necessarily defend no-fault liability rules; the suffering of an innocent person might count enough for a consequentialist to tip the balance against such a regime. Nonetheless, it is easy enough to see what Feldthusen is getting at.
31 See, for example, Cane, Peter Atiyah’s Accidents, Compensation and the Law, 4th edn (London: Weidenfeld and Nicolson 1987), 415-36Google Scholar.
32 Hindley, Brian and Bishop, Bill ‘Accident Liability Rules and Externality,’ International Review of Law and Economics 3 (1983) 59CrossRefGoogle Scholar. Bishop has written sensitively from the Law and Economics perspective on many of the issues referred to here - see ‘Economic Loss in Tort,’ Oxford Journal of Legal Studies 2 (1982) 1; ‘The ContractTort Boundary and the Economics of Insurance,’ Journal of Legal Studies 12 (1983) 241; (with John Sutton) ‘Efficiency and Justice in Tort Damages: The Shortcomings of the Pecuniary Loss Rule,’ Journal of Legal Studies 15 (1986) 347.
33 I am grateful to Janet Sisson for comments on an earlier version of these remarks.