Some Analytical Jurisprudence: On Canadian Arbitration Law

By Kyle, Rodney C. | Dispute Resolution Journal, August-October 2000 | Go to article overview

Some Analytical Jurisprudence: On Canadian Arbitration Law


Kyle, Rodney C., Dispute Resolution Journal


Cross-border disputes are increasingly being resolved through the use of alternative dispute resolution. The differing legal systems of countries-and resulting "legal relations" between people-can have a profound effect on bow ADR is administered, says Rodney Kyle. He shows bow the application of a particular analytical system can go a long way toward clarifying the legal relations relevant to arbitration in Canada.

ncreasingly, commercial interest are spanning national borders and legal disputes concerning those interests are being resolved by arbitrators. As a result, people in one nation often desire a practical insight into the arbitration law of another nation. That is particularly so in cases of significant trans-border trade, as between Canada and the United States. Analytical jurisprudence can be used to obtain such an insight.

Hohfeld's System A Summary

What are commonly called "legal relations" between people result from laws applying to facts. W. N. Hohfeld, by his system of legal analysis,! showed that all such relations are combinations of fundamental legal relations between people. In turn he showed that, at a more basic level, those fundamental relations are always pairings of fundamental elements with their respective correlatives and with their respective opposites. Specifically, the fundamental elements tt a person can have are one or more of right, privelege, power, and immunity and correcsponding to each of those elements another personas one or more correlative elements: duty (correlative of right), no right (correlative of privelege), liability (correlative of power) and disability (correlative of immunity). Each fundamental element is bounded by its mutually exclusive opposite element: no-right (opposite of right), duty (opposite of privelege), disability (opposite of power) and liability (opposite of immunity).2

Hohfeld's system is based on definitions of the fundamental elements which are themselves based on three concepts: claim, control, and freedom. Specifically, a right is one person's affirmative claim against another person to have that other person do something or not do something, and a privilege is one person's freedom from the right of another person. (As a result, to the extent that a privilege negates a right, the person that would otherwise have the right has a no-right and the person who has the privilege does not have a duty. However, to the extent that a privilege does not negate a right, the person that has the privilege still has a duty.) Likewise, a power is one person's affirmative control over creating or ending or maintaining a legal relation as against another person, and an immunity is one person's freedom from the power of another person. (As a result, to the extent that an immunity negates a power, the person that would otherwise have the power has a disability and the person that has the immunity does not have a liability. However, to the extent that an immunity does not negate a power, the person that has the immunity still has a liability.)3

Hobfeld's System: Practical and Useful

Law and justice are not synonymous. Moreover, justice consists of two tendencies that are inherently opposed to one another and neither tendency effects completely just results on its own. Formal justice tends toward stability (ie., not altering rules of law), certainty (ie., clarifying rules of law) and predictability (i.e., accurately predicting the results of applying rules of law). Substantive justice tends toward flexibility and fairness in the individual case (i.e., expanding, contracting or maintaining privileges or immunities, and thereby assigning nonremediable harm).4 Laws and adjudications contain tendencies toward both formal justice and substantive justice. Can arbitrators balance those tendencies to effect justice, and if so then how?

Hohfeld's system is for analyzing legal relations and so, on its own, it cannot effect justice.

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