Scholars under the ‘Progressive Property’ banner distinguish between dominant conceptions of property, and its underlying realities. The former, exemplified by Singer’s ‘ownership model’, is said to misdescribe extant forms of ownership and misrepresent our actual moral commitments in worrisome ways. Put simply, it is argued that our representations of property’s reality are incorrect, and that these incorrect representations lead us to make bad choices. Better understandings of the reality of property should lead to better representations, and thus improved outcomes.

However, the relationship between ‘reality’ and ‘representation’ is not made fully explicit. This essay seeks to supplement progressive property through a more careful exploration of the relationship between the two, by drawing from performativity theory. From this perspective, accounts of property are in an important sense not descriptions of an external reality, but help bring reality into being. The ownership model is not so much constative (descriptive) as performative. Such an account, I suggest, directs us to several important insights. Rather than asking what property is or is not, the task becomes that of trying to describe how property is performed (or not) into being. But concepts do not stand alone: rather, other ideas, people, things and other resources have to be enrolled in complicated (and often fragile) combinations. Rather than criticizing the ownership model for its mismatch with reality, we might consider that models do not have to be ‘true’, just successful. As such, it may be more useful for progressive scholars of property to redirect their energy into enquiring how it is that certain conceptions of property are successful, and others not. To do so also requires that we think about the role of scholars in performing property, for good or bad, into being.

In colloquial speech the terms ‘crime’ and ‘criminal’ have a use which, though connected to the strictly legal notion of criminality, goes well beyond it. It is a way of indicating a serious condemnation of an activity or action. Similarly, when people say of something “There ought to be a law against it,’ they are not necessarily speaking literally, though they might be. Nonetheless, even when they are speaking colloquially and figuratively in using this expression, it is clear that the ‘law’ here is the criminal law and not the civil law. The sense that ‘something ought to be done’ expressed in these usages reflects the idea that there is a kind of wrong which demands a collective response rather than just an individual one. The figurative, colloquial use trades, of course, on the literal one. However, pace Devlin, it requires more than a general feeling of outrage to characterise just what kinds of wrongs are appropriately categorised as crimes. The enduring debates concerning the distinction between crime and tort bear witness to the fact that such a characterisation is far from easy.

These academic debates can be situated against the background of wider philosophical discussions about the relationship between the individual and the collective, the private and the public, and the way in which these pairs of concepts map onto one another. We might agree with George Fletcher that “Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs”: the criminal law should deal with those kinds of wrong which are matters of public concern, and which therefore require a collective response from the whole community; wrongs which are, by contrast, properly the concern only of the private or individual victim should be dealt with under the civil law. What is far less clear, however, is how we should characterise that distinction.

The paper has the following structure. In Section I, I introduce some important methodological preliminaries by asking: How should one reason about global environmental justice in general and global climate change in particular? Section II introduces the key normative argument; it argues that global climate change damages some fundamental human interests and results in a state of affairs in which the rights of many are unprotected: as such it is unjust. Section III addresses the complexities that arise from the fact that some of the ill effects of global climate change will fall on the members of future generations. Section IV shows that some prevailing approaches are unable to deal satisfactorily with the challenges posed by global climate change. If the argument of this paper is correct, it follows that those who contribute to global climate change through high emissions are guilty of human rights violations and they should be condemned as such.

Between March 21,1992 and April 14,1992 Canadians witnessed a remarkable proliferation of controversy on the pages of The Globe and Mail. The issue was “cultural appropriation” or “appropriation of voice” in fictional and nonfictional writing. Articles, editorials, and letters to the editor considered the propriety of depicting a culture other than one’s own, telling “someone else’s story”, and whether it was possible to “steal the culture of another.” The debate was remarkable because of its emotional intensity, the absurdity of the analogies drawn in support of the respective arguments, and the inability of the protagonists to recognize each other’s terms of reference. Especially striking were the rhetorical tropes of possessive individualism adopted by all participants in the discussion.

All positivists hold that law has social foundations. According to H.L.A. Hart, for example, the legal system rests on customary social norms followed by judges and other officials: norms that recognize other norms as belonging to the system and norms that provide for the application and alteration of the system’s primary norms. Even if this view requires amendment, it is likely any plausible account of the nature of law needs some account of social norms. Finding a fully satisfactory one, however, has proved surprisingly difficult.

A critical knowledge of the evolution of the idea of property would embody, in some respects, the most remarkable portion of mental history of mankind.

– L.H. Morgan

Now you try and say what is involved in seeing something as something. It is not easy.

– Ludwig Wittgenstein

In this paper I argue that a comparison of English and Aboriginal conceptions of property yields insight into the ontologically specific grounds that inform institutionalized socio-cultural practices like property. Where the foundations of English conceptions of property are highly rationalistic, Aboriginal conceptions eschew categorization and are indicative of a highly nuanced and different way of understanding the worldliness of a human being. As such, a comparison of such conceptions becomes not simply a comparison of ways of owning and possessing, but a cross-cultural comparison of ways of relating to the world at large for what are ostensibly economic purposes.

To argue this is to assume that there is much more going on within culture that is determinative of ways of being than to simply assume that all cultures share universal cultural traits. In this paper I therefore discuss some of the philosophical foundations that underlie Western conceptions of the human’s relation to the world as embodied in principles of property law, as well as looking at the philosophical significance of that view. I also look at the way various Aboriginal peoples in Canada understand their own relationship to the world-at-large as it is expressed in what they understand as the property regimes of their society.

The central question for this paper is whether communities should have rights. This is a question that I will consider in a certain ideological or normative context, namely, that of liberalism. There are other contexts in which the question could be asked; for in non-liberal ideological settings there have sometimes been clear positive answers to the question of whether minority communities should have rights. Thus, the Ottoman Empire’s millet system provided a system of group rights. Various other autocratic states like Czarist Russia have also provided at least some de facto if not de jure protection for various minority groups. One might even argue that various nineteenth and twentieth century European colonial regimes protected to some extent minority ethnic rights. On paper, Marxist governments in the Soviet Union and Yugoslavia have made provision for various sorts of group rights; but as current events attest, neither Moscow nor Belgrade is very comfortable with the vigorous exercise of such rights. Indeed, in both the origins and the consequences of the First and Second World Wars, group rights played an extensive role.

The essence of legal positivism, wrote H.L.A. Hart, is a very simple contention: “[I]t is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality” (185-86).

It is tempting to treat this claim—which some have called “the separability thesis”—as a definitional truth about law, i.e., as a constraint on any adequate definition of the term “law.” On this understanding, the positivist maintains that one should not define “law" in a way that excludes some norms from the extension of this term simply because they do not reproduce or satisfy a particular moral demand. Similarly, on this understanding, one should not exclude a system of norms, S, from the extension of the term “legal system” on account of S’s failure to satisfy the demands of justice. Indeed, positivism entails not only that one should not exclude S on this ground, but also that the injustice of S is not even a reason for regarding S as a problematic or marginal or less-than-central case of “law.” The positivist holds that it is a mistake to build moral conditions into the definition of “law” in any way whatsoever.

Constitutional rights’ scholarship is anchored in the cult of proportionality and balancing. Despite the absence of reference to proportionality or balancing in most State constitutions or international conventions, scholars and judges alike have embraced a vocabulary of proportion, cost, weight, and balance. Drawing on the work of German scholar Robert Alexy and Canadian scholar David Beatty, this essay attempts to illustrate how the principle of proportionality conceals more than it reveals in rights-reasoning. By challenging the contemporary cult of practical reasoning over rights, the essay advocates a turn away from a methodology and vocabulary of proportionality in favour of a more direct struggle with political-moral reasoning.

This article is a jurisprudential analysis of the idea of a ‘living Constitution’, as a common feature of the constitutional practice in democratic countries. The main argument of the article is that constitutional interpretation encompasses, rather than excludes the judicial power to develop and change the content of constitutional guarantees. The metaphor of the ‘living Constitution’ is appropriate to the nature of constitutional adjudication because it suggests gradual, incremental change on a case-by-case basis. While it is stressed that courts can and should be creative, this judicial creativity is subject to significant legal and practical constraints.

In this paper, I distinguish two views of collective rights, viz., rights of collective agents and rights to collective goods. My argument is that although both have a place in moral, political and legal argument, only the second can fulfil the political function generally assigned to collective rights, and that even it can do so only partially.

The events of September 11, 2001 and the subsequent declaration of an open-ended “war on terror” have given a new urgency to long-standing discussions of the relationship of Islam to liberalism. In order to avoid the polemics that characterize much of the writing in the “Islam/Liberalism” genre, this Article proposes to use the framework set forth in John Rawls’ Political Liberalism to examine the grounds on which Muslim citizens of a liberal state could participate in a Rawlsian overlapping consensus. An overlapping consensus according to Rawls arises among citizens in a politically liberal state when they - despite holding incompatible theories of the good - each endorse the constitutional essentials of a politically liberal state for reasons within their own comprehensive religious or philosophical doctrines. This Article argues that the basis on which orthodox Muslims can participate in such an overlapping consensus can be found in Islamic theology and ethics. Because theology and ethics comprise the fundamental commitments of orthodox Islam, the political commitments set forth in Islamic substantive law which are inconsistent with constitutional essentials must be interpreted in light of those commitments.After describing orthodox Islam’s theological and ethical commitments to rational theological and moral inquiry, the Article argues that such commitments implicitly require political institutions that allow free theological and ethical inquiry. The Article illustrates this aspect of Islam by describing the development of a system of intra-Muslim normative pluralism in which the existence of conflicting ethical judgments was accepted as a legitimate and inevitable product of moral reasoning. The existence of normative pluralism in the realm of ethics, in turn, made the project of a legal system derived entirely from revelation an epistemological impossibility. The result was that Islamic substantive law was forced to adopt non-theological modes of justification. The Article argues that, in the course of so doing, Muslim jurists made appeals to what Rawls would deem to be public reason. The Article concludes with a series of examples from Islamic substantive law that illustrate the ways in which the pre-modern Islamic legal system represents a qualified form of public reason, consistent with the public culture of a liberal democracy.

Inclusive legal positivism maintains that the existence and content of laws may, but need not, depend on standards of morality. As Wil Waluchow argues, inclusive positivism derives much of its plausibility through its explanation of Charter societies such as Canada. On his account, the fundamental rights of political morality contained in the Canadian Charter of Rights and Freedoms serve as ultimate criteria of the existence or validity of all laws in Canada, and thus form part of Canada’s rule of recognition. In this paper I challenge Waluchow’s inclusive positivist picture of Charter challenges. I argue instead that exclusive legal positivism, which maintains that resort to moral reasons may never figure in determinations of the existence or content of laws, better captures our ordinary understanding of the authoritative role of judges, constitutionality, and the traditional positivist conception of legal validity as a matter of social fact. Specifically, I argue that Joseph Raz’s notion of a directed law-making power, and not reliance on an inclusive positivist rule of recognition, best explains the duty of judicial review in Charter cases. Further, the fundamental rights of political morality recognized in the Charter are best understood as constitutional objectives, and not criteria of validity, which all subordinate laws in Canada ought to respect, yet may fail to do so in practice.

The constitutional text in a constitutional democracy does not necessarily constrain constitutional change. Quite the contrary, constitutional change in a constitutional democracy often occurs in ways that depart from the rigid procedures governing constitutional amendment enshrined in the text of the constitutional.

In this article, I illuminate this peculiar phenomenon in comparative perspective, drawing from the constitutional traditions of Canada, Germany, India, South Africa and the United States. In addition to illuminating distinctions in the amendment practices of liberal democratic constitutional states, I deploy those contrasts as a springboard to substantive insights about fundamental principles of statehood, namely sovereignty and legitimacy.

The principle of global equality of opportunity is an important part of the commitment to global egalitarianism. In this paper I discuss how a principle of global equality of opportunity follows from a commitment to equal respect for the autonomy of all persons, and defend the principle against some of the criticism that it has received. The particular criticisms that I address contend that a moral view based upon dignity and respect cannot take properties of persons-such as their citizenship-as morally arbitrary, that any justification of what counts as equal opportunity sets must be based upon national cultural understandings, that a positive account of equality of opportunity cannot adequately handle the fact of value pluralism across the globe, and that the principle of equality of opportunity is incompatible with national self-determination. In the course of defending the principle of equality of opportunity from these criticisms, I make revisions to my previously published defense of the principle.

In recent years, there has been an increased interest in considering collectivities to be moral agents and holders of collective rights. Peter French and others have argued that corporations are agents and bear moral responsibility for their actions. Virginia Held makes similar claims about nations. She also believes that we have “obligations to humanity collectively, to bring about its continued existence, and perhaps also to such lesser groups within it as our fellow nationals or conceivably the ethnic group to which we belong or the family or clan of which we are a member” and that in some of these cases—humanity, nations—the obligation correlates with a collective right. Perhaps, the area where claims of collective rights have aroused the greatest interest is that of the alleged rights of minority groups within some larger political unit. Thus, in recent political debate in Canada, collective rights have been ascribed or invoked in relation to Quebec and to aboriginal peoples. It is with this last group of alleged collective rights that I will be particularly concerned in this paper.

In the Spring of 1995,1 was asked to testify as an expert witness in a case in Canada that raised a number of different philosophical and jurisprudential issues. The case concerned whether prisoners sentenced to two years or more in a Canadian penitentiary had the right to vote. For many years, Canada has denied those incarcerated in its prisons voting rights (following the British practice of doing so), but after the enactment of the Canadian Charter of Rights and Freedoms in 1982, which grants each citizen of Canada the right to vote, that practice was challenged; in a series of court cases, prisoners maintained that denying them the right to vote during their incarceration amounted to denying them one of their basic constitutional rights as Canadian citizens.

One of the most important issues raised by this case was the nature of Canada’s political identity. The fact that the political identity of a state can be partly at stake in a law is, I believe, important and insufficiently recognized. A law can be not only a tool for the organization of the community (e.g., by promoting order, or coordination, or public wellbeing), but also a significant expressive force in that community, symbolizing the community’s sense of its values and (what I will call) its “political personality”. Indeed, for countries which are not culturally homogeneous and in which the unity of the community is primarily purchased through the principles of its polity, the expressive nature of certain laws can be essential in the creation, maintenance or revision of a unifying identity for that society; this is an identity that not only helps to hold the pluralist society together but also helps people to have a sense of themselves as members of that political community. I hope to argue that the controversy surrounding the issue of whether or not prisoners’ voting rights should be suspended reflects controversy about what kind of state Canada is and shows the ways in which law can be expressive.

I argue that our traditional conception of the duties imposed by human rights is unable to acknowledge the nature of many contemporary human rights violations. The traditional conception is based on a broadly deontological view according to which human rights impose primarily negative and perfect duties, and these duties are held to be specific prohibitions on certain kinds of actions (duties not to kill, assault and so on). I argue that given this conception of the nature of the duties imposed by human rights, not only claims to aid, but in addition, claims against many of the most serious and prevalent contemporary active harms will not count as genuine human rights claims. These harms increasingly result from extremely complex causal chains involving the behaviour of a huge number of agents, few or none of whom can be singled out as responsible for a serious harm to any specific victim. Institutional structures can have just as central a role to play in specifying and allocating responsibility for fulfilling many of the negative duties imposed by human rights as the positive duties. These structures can therefore be equally important in the realisation of both kinds of rights. Before the necessary institutional reforms have taken place, both kinds of rights are equally genuine, and ground the imperative of justice to reform existing social institutions.

Contemporary “flexible capitalism” requires novel forms of legal regulation. In this vein, Joshua Cohen, Michael Dorf, Archon Fung, and Charles Sabel have developed a provocative set of proposals for a new mode of regulatory law, what they describe as “democratic experimentalism” or, alternately, “directly deliberative polyarchy.” Their proposal are criticized: they not only fail to take traditional liberal democratic rule of law virtues seriously enough, but it remains unclear whether they can effectively tame and humanize capitalism. Instead, some evidence suggests that their proposals simply amount to a normatively problematic synchronization of the legal system with contemporary high-speed capitalism.

The question addressed in this paper is whether there are any collective rights. I am inclined to answer this in the negative; but the main challenge is to provide a reasonably clear sense to the notion of collective rights. My negative answer will then be defended from a general viewpoint utilizing what we may call a kind of ‘individualism’. Some are inclined these days to reject a priori anything with that label. I shall have something to say later on that inclination. Individualism, as I shall explain, by no means implies that there are no group rights in any sense that may reasonably be given to that term. Very much the contrary. A careful explication is needed.