The ideology of ethno-nationalism creates a new world disorder. States and international organizations must find a way to deal with group conflicts to prevent ethno-nationalism from transmogrifying into ethnic cleansing and genocide. Minorities need protection against harm. The problem of minorities dominates many political conflicts.

The judiciary can provide a critical means of protection. Agreement comes readily over the general role for the courts in minority protection. Disagreement abounds over their specific role. Should courts, for instance, protect individuals but not specific groups? Should courts protect the identity of minority groups? The role of the judiciary becomes more tractable with a reorientation of our thinking by giving priority to the negative aspect of the minorities’ problem: the problem of injustice. Since group harm, and not group identity, lies at the heart of the difficulty, this is where the courts should look. Jurists become diverted in trying to define a minority in some positive terms when the harms that confront any minority are readily apparent.

John Rawls stands in a small pantheon of writers whose ideas have shaped the vocabularies of their age. Like a classical deity, his work has been invoked by disciple and dissenter alike as the essential totem of the modern liberal state. But his Promethean creation has grown independent from its original design, attaining significance not only for its initial merits but also for the competition it offers to the plan of its creator. So from the stage of Rawlsian liberal neutrality stalks the idea of legal perfectionism.

Legal perfectionism is the doctrine according to which officials may adopt and enforce laws according to the officials’ understanding of a good life, with the intended practical effect that people governed by such laws will lead better lives. In other words, legal perfectionism broadly enshrines the notion, sometime unpopular among Western theorists, that the government has, or should have, the power to reflect ideas of good and evil—the content of the good life or of good projects or of excellence—in framing the laws. While related both to older ideas of human perfection and perfectibility and to perennial concepts of virtue and morality, legal perfectionism has developed a distinct, modern meaning.

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

This essay concerns the question of whether it is possible to have an account of what judges ought to do when they decide cases if one accepts Stanley Fish’s thesis that man is a socially constructed creature, who can only see the world around him in terms of the practice that he is involved in. It puts forward the view that such a position is defensible, provided that one makes different metaphysical commitments to the ones made by Fish. It is argued that Fish is best understood as a metaphysical idealist. The essay seeks to demonstrate that Martin Heidegger’s conception of the self and interpretation are similar to those of Fish, but that, when understood as involving a commitment to metaphysical realism, Heidegger’s philosophy can hold the possibility of strong legal theory open in a way that Fish’s cannot. Michael S. Moore’s natural law position is used in order to articulate what such a position might be. Moore’s example of what a judge ought to do if called upon to define ‘death’ as a concept is used to illustrate the difference between Fish and Heidegger when it comes to metaphysics and strong legal theory, despite their similarities when it comes to an account of interpretation and of the self.

The perfectly competitive market of economic theory often enters political philosophy because it can be represented as illuminating important values. Theorists who are enthusiastic about the heuristic potential of the market claim that we can learn much about individual liberty, the promotion of mutual advantage and efficiency in the distribution of goods by studying it. However, a principal limitation of the market for many theorists is its supposed insensitivity to the demands of egalitarian justice. According to the standard charge, markets—even idealised ones—are hostile to the achievement and maintenance of an equitable distribution of resources. It is striking, then, that a leading exponent of egalitarian justice like Ronald Dworkin should argue that there are very deep and systematic links between equality and the market. He contends that, contrary to the received view, “the best theory of equality supposes some actual or hypothetical market in justifying a particular distribution of goods and opportunities.” Moreover, the articulation of Dworkin’s influential egalitarian account of liberal political morality depends on acceptance of the market as an ally of equality. Thus Dworkin claims not only that the market plays a crucial role in the elaboration of a doctrine of distributive justice but also that it illuminates the distinctively liberal commitments to the protection of extensive individual liberty and to the requirement that the state must be neutral between different conceptions of the good. The aim of this paper is to raise some doubts about the soundness of one of the fundamental onnections Dworkin draws between the market and distributive justice.

The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissibly – is to deny its premise, namely the permissibility of the threatened act. This view holds that upon reflection all cases of wrongful blackmail actually involve a threat to act impermissibly. Therefore, blackmail is coercive, and should be criminalized as a regular case of extortion. This conclusion may rely on a subjectivist notion of permissibility, which sees intentions as relevant to permissibility, given that the blackmailer intends to harm the victim via the threatened act. Yet the view that intentions are relevant to permissibility evaluations is strongly criticized in contemporary moral theory. Nevertheless, this paper attempts to show that under a full understanding of the functions of coercion claims and the wrong in extortion, harmful intentions can be relevant to criminalization even if they are not directly relevant to permissibility.

This article examines Steven M. Wise’s arguments in favour of rationally extending fundamental rights at common law to other animals, as well as the 2014 and 2017 decisions of the Appellate Division of the New York Supreme Court, which rejected the possibility of extending common law personhood to a chimpanzee on social contract grounds. The article argues that extending the common law rights to liberty and bodily integrity to animals whose cognitive characteristics indicate an interest in self-determination is both morally correct and legally feasible, since this interest is what said common law rights exist to protect. Moreover, the arguments from reciprocity and community membership adopted by the New York Court fail to provide a philosophically sound basis for denying nonhuman rights, nor does conceptualising rights and duties in terms of social contract necessarily preclude nonhuman emancipation.

Gambling self-exclusion agreements enable a person to have themselves prevented from gambling for some future period. In light of evidence of their effectiveness in helping problem gamblers manage their addiction, these agreements enjoy growing popularity. In particular, several jurisdictions now oblige gambling operators to offer self-exclusion to their clientele. If self-exclusion has a unique value that is distinct from paternalistic measures, such as forced exclusion, it is surely because it prizes the gambler’s autonomy. In this article, however, I will argue that self-exclusion’s theoretical basis cannot, in fact, be found in a procedural theory of autonomy that only regards agents’ own values and decisions. Rather, I will contend that if agents may bind their future selves in only some ways—for example, by preventing themselves from gambling but not preventing themselves from self-excluding or selling themselves into slavery—it can only be because of a normative, substantive claim.

When the liberals of the 18th and the 19th centuries demanded that the rights of men, of citizens or of peoples be guaranteed, it was in opposition to the abuse of power. They proclaimed in the name of mankind rights inherent to individuals and nations. From the French Revolution to President Wilson, one might have believed that individuals and peoples had been winning their freedom together. Individuals participated as citizens of a single nation in the power of the state. This power enforced civil and political, private and public rights. The Old Regime had to be destroyed, the empires dismembered and the nations liberated so that the people could be organized into states. But in practice, things were not so simple.

Since all peoples could not become nation-states, it was hoped that minorities could be protected. But how can they be protected? Who will protect them? How can one define a minority? What rights should they have? Are the collective rights of a people or a minority compatible with individual rights? These are the questions that arise spontaneously and which will be discussed in the following pages. We shall find no simple answer, but rather shall see why the answer is so difficult.

Patent law is often understood through the fiction of social contract. The author argues that this fiction does not offer an adequate economic or political theory of patent law, that is, one that will explain the unique relationship between government and property that patents entail. As an alternative to social contract theory, a regulatory theory of patent law is developed based on the assurance game taken from game theory. The assurance game is used to show how patent law serves to regulate the invention process and the market for innovative products.

In this paper, the author explores the question of whether formalizing the Canadian law of reception would lead to an increase in the domestic influence of international law. He begins by briefly recounting Canada’s decidedly informal law of reception and, through a review of academic commentary, suggests a relationship between informality and international law’s historically weak influence on judicial reasoning. Tying this commentary to seemingly sociological perspectives on globalization, judges’ international legal personality and the changing forms and functions of law, he forwards the hypothesis that judges’ subjective recognition of the authority of international law can be engendered, modified and/or regulated through the procedural use of more familiar domestic legal authority. This hypothesis is then tested through a comparative analysis of the impact which international law has had in South Africa, where an historically informal law of reception akin to Canada’s has been replaced with clear and robust constitutional rules obligating the judiciary to consider and use international law. The author observes that there are no perceptible differences in the two jurisdictions; in neither country does international law exert a significant, regular or predictable impact on judicial reasoning. He concludes, modestly, that there is no available evidence to support the belief that Canadian judicial practice would change if the Canadian law of reception were formalized. He further concludes, less modestly, that this has significant implications for underlying legal theory and, in particular, that theories concerning how the domestic impact of international law can be augmented, though seemingly sociological, are decidedly positivist in orientation. Given that judges’ subjective attitudes towards international law are not perceptibly linked to domestic legal procedures, international, comparative and transnational legal theorists must, either, find evidence to demonstrate this link, or, recognize that their theoretical allegiances are divided between two, inconsistent traditions: legal positivism and the sociology of law.

Litigation lawyers learn early in their practices that although the adversary system functions tolerably well in many civil cases, its defects are nevertheless extensive and profound. Tactics calculated to delay, distort, obfuscate, obstruct and wear down opponents through frustration and cost are common. Questionable conduct is justified by appeals to the ethics of the adversary system. The consequences are often born by clients—through increased cost, delay and conflict—and even by lawyers themselves—through stress, fatigue and dissatisfaction with the quality of life that the practice of litigation in our adversary system brings with it.

New institutions of indigenous governance will be the product of negotiations, negotiations that will take place against a background of colonial structures and relationships. Having examined the challenges of structuring a negotiation process that takes due account of pre-existing cultural and power differences between the parties, the author analyzes the significance of their choice of negotiation strategy on the negotiation process and outcome. In particular, this paper reflects on the promise and limitations of the parties’ adopting interest-based, or “integrative”, negotiation strategies and the potential for fruitful entanglements between those strategies and indigenous diplomatic traditions.

Imprisonment is often said to be the ultimate back-up sanction for offenders who do not abide by their non-custodial sentence. From a standard consequentialist perspective this is morally justified, if it is a cost-effective means to crime prevention. In contrast, the use of imprisonment as a back-up is much harder to justify from retributivist perspectives, with their emphasis on just desert or deserved censure. The crux is this: if the reason for a non-custodial sentence is that a prison sentence risks being a disproportionate or inappropriate sanction, retributivists need to explain how a prison term can be warranted as the backup sanction for those who breach the requirements of their non-custodial sentence, even though their original crime wasn’t serious enough to warrant imprisonment in the first place. The aim in this paper is to critically assess the extent to which retributivists can justify the use of imprisonment as the ultimate back-up sanction. In doing so, I first examine two broad strategies that are discussed in the literature, and which retributivists could employ in order to respond to this problem. The first strategy stresses how desert has only a limited role in sentencing such that it demarcates a range of deserved punishment. On this view, associated with limiting retributivism, one could initially opt for a less harsh yet deserved punishment, leaving room for the imposition of back-up sanctions when needed. The second strategy focuses on how the act of breach is a reprehensible act that can allow for a penalty increase, and thereby lead to imprisonment. Although it is argued that both strategies fail, the paper proposes an alternative solution to this problem.

Courts do many good things. Judges carefully consider individual claims and arguments,1 and contrast them against the law in light of evidence. Their decisions are argued for, are public, and can be contested in form and content in different hierarchical stages. Additionally, and among other things, these practices are said to contribute to the will-formation of the public sphere and improve the quality of the legislative process.2

All forms of criminal charge adjudication produce errors of mistaken conviction or acquittal. Yet in most criminal justice systems, an endpoint of sorts is eventually reached and further attempts to correct errors are disallowed. The first issue discussed is whether such “finality” in charge adjudication should be presumptive or non-presumptive. My contention is that it should be presumptive. But should it be presumptive only for convictions or also for acquittals? As against strong forms of asymmetry, I urge weaker forms, according to which we should seek to correct both kinds of errors while exhibiting some degree of preference for correcting errors of wrongful conviction over those of wrongful acquittal. The issues that must be faced if we are to set up procedures allowing rebuttal of the presumption of finality are then surveyed. Doing so reveals the forms that weak asymmetry might take.

Rhetoric in praise of “our adversary system” flows freely in the prose of many legal insiders. But unexamined rhetoric, like self-praise, is of itself of little recommendation.

I will here (I) state and explain the four defining characteristics of our adversary system: (A) formal proceedings, (B) partisan presentation, (C) a neutral, passive fact finder, and (D) principles of professional responsibility. I will then (II) state, explain, and analyze critically the most common justifications advanced in defense of our adversary system: (A) the truth rationale, (B) the rights rationale, (C) the autonomy rationale, (D) the lawyer as friend rationale, (E) the ritualistic function rationale, (F) the dispute rationale, and (G) the pragmatic rationale. I conclude (III) that to date no convincing justification has been advanced which argues persuasively that our adversary system has independent value or that it serves important societal objectives better than other existing or possible legal systems.

e-government is a fast-developing phenomenon in many countries world-wide. Information and communication technology (ICT) has the potential to transform government generally and re-invigorate democracy in particular. This article considers the role of ICT in increasing democratic engagement both in relation to traditional aggregative forms of democracy and as regards more radical, participatory democracy. Within traditional democracy the potential of ICT moves beyond simply e-voting and has particular application in the various consultations processes that are increasingly of significance within ideas of "modernised government". The particular value that ICT can bring is of importance for more participatory versions of democracy too.; A model of consultation, drawn from mediation, is outlined and the application of ICT to such methods of decision-making is considered. Finally a range of best practice examples is given to illustrate how a technology of democracy requires putting information technology in service of democracy rather than the other way around.

The proper jurisdiction of lawful authority has always been a central issue in Anglo-American jurisprudence. English and American legal institutions both grew out of a seventeenth-century British culture that valued liberty, and sought to defend it legally by carefully defining the scope and purpose of lawful authority. Yet after 1776 the two nations diverged. This paper will evaluate English conceptions of legal authority from an American perspective. My thesis is that English lawyers discuss the authority of law in language developed to counter seventeenth- and eighteenth-century European revolutionary thought. British reactions to the English, American and French Republics preserved Hobbesian conceptions of legal authority that still influence common-law jurisprudence today, and mislead English-speaking lawyers who have adopted British terminology. I will suggest a more precise vocabulary, and use it to criticise certain positivist conceptions of the authority of law.

Immigration Law has as its primary subject the stranger: the outsider who is under no obligation of allegiance to the state, who is not represented in its political processes, and whose needs and interests are, in most situations, accorded less concern than those of people who already participate in the social and political life of a community. The immigrant stranger may, of course, appear in a variety of guises. He may be a wealthy entrepreneur or investor who belongs to another political community but who chooses to emigrate to advance his own or his family’s well-being. Alternatively, the stranger may be a person who has experienced life solely within the confines of a community that is plagued by economic deprivation. Such a person may be crippled by physical and emotional need or cultural fragmentation. His search is for a new social environment in which, it is hoped, these constraints will not be present in such exaggerated or severe measure. Sometimes the needy stranger will be seeking an immediate escape from a political regime which offers her no protection or which aims at her very destruction, and sometimes she will be searching for deliverance from the incessant, limbo-like tedium or the multitude of unspeakable terrors to which one is exposed in a refugee camp. Whatever the guise in which he or she appears, the stranger is someone with whom the modern political state must come to terms. He or she cannot be ignored.