Two-step proportionality-balancing [TSPB] has become the standard method for human and constitutional rights decision-making. The first step consists in determining whether a rights-provision has been infringed/limited; if the answer to that first question is positive, the second step consists in determining whether the infringement/limit is reasonable or justified according to a proportionality analysis. TSPB has regularly been the target of some criticism. Critiques have argued that both its ‘two-step’ and ‘proportionality’ elements distort reality by promoting a false picture of rights and constitutional decision-making. This would cause negative moral consequences. This article seeks to defend TSPB against these criticisms and to depict it in a more appropriate and favourable light. First, it is argued that both aspects of TSPB do not have the dire moral consequences that opponents suggest they have. Second, it is argued that TSPB, deploying notions such as burdens, presumptions and prima facie/defeasible propositions, constitutes a valuable framework for public argumentation and authoritative decision-making.

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.

In 1989, Jacques Derrida was the keynote speaker at a Cardozo Law School symposium entitled “Deconstruction and the Possibility of Justice.” Derrida’s speech was entitled “Force of Law: The ‘Mystical Foundation of Authority’” (hereinafter, “Force of Law”). As the title of the symposium indicated, the conference was organized to address, and perhaps quell, the widely-held impression that deconstruction lacks a coherent conception of justice. Derrida’s lecture is a bold response to those critics who have charged deconstruction with political nihilism, irrationalism, and conservatism. Surprisingly, in “Force of Law,” Derrida comes very close to setting up a full-scale theory of justice and an accompanying account of law. And because Derrida’s recent work affirms the account of justice set forth in “Force of Law,” his lecture merits a close reading.

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 nature of authority has been much debated in legal and political philosophy, and the terminology is not stable. I shall begin by stipulating how I understand some of the key terms used in this paper1. I consider authority here as a property of laws and of legal systems. Authority must be distinguished primarily from power, efficacy, and validity. Authority is not the same as power. A person or institution may have the power to affect the way that people behave, but lack authority because he, she, or it is purely coercive. Authority is not the same thing as efficacy; efficacy simply means that there is conformity to the rules of the system, whether willing conformity or not. But it is possible for there to be conformity to the laws of a successful repressive system, and such a system would not have authority. Authority is not the same as validity. To be valid is to be pedigreed by the rule of recognition of the legal system. A legal rule may have that property, and yet lack authority because it is not a rule which there is any obligation to obey. If the law has authority, then the demands that the law makes of us are such that we ought to conform to them. Theorists sometimes distinguish between “legitimate authority” and “de facto authority”. It follows from the above that in my terminology “authority” means legitimate authority as that term has been typically understood, as authority which issues directives we have an obligation to obey. “Legitimate authority” is pleonastic.

The new classical natural law theorists have been decidedly skeptical about claims that non-human animals deserve serious moral consideration. Their theory features an array of incommensurable, nonfungible basic aspects of welfare and a set of principles governing participation in and pursuit of these goods. Attacks on animals’ interests seem to be inconsistent with one or more of these principles. But leading natural law theorists maintain that animals do not participate in basic aspects of well being in ways that merit protection, that the so-called “argument from marginal cases” is unsuccessful as a basis for claims that animals have moral standing, and that affirming that animals have rights leaves one with no basis for maintaining that humans do as well. In response, I suggest that animals can be understood to participate in some aspects of well being, defend the argument from marginal cases, and offer reasons why we might believe that affirming that animals have rights does not undermine the claim that humans have rights.

The topic of ‘judicial discretion’ has been at the center of the debate on legal interpretation in the philosophy of law.1 In a general sense, ‘discretion’ here refers to the exercise of a judgment by a decision-maker due to the lack of legal constraints affecting one’s ability to decide a case. The most fundamental question on this topic is ‘do judges have discretion when interpreting the law?’ There are three kinds of answers to this query. One kind of answer states that judges never have discretion.2 Another kind of answer states that judges always have discretion in interpretation.3 The third kind of answer states that judges sometimes have discretion when interpreting the law, and sometimes they do not.4

When exploring the relations between the concept and the nature of law, ample philosophical reflection has been dedicated to the relations between the intension of terms (or the content of concepts) and their extension. Much less consideration has been given to the causal relations between concept and thing within socially constructed entities. This paper examines the interactive causal relationship between law and the concept we have of it and reflects on its implications for legal philosophy. First, it explains the causal role played by concepts in processes of social construction and applies this explanation to the analysis of the special case of law. Second, it compares this causal role played by the concept of law to the role assigned to it in the context of externalist theories of meaning and mental content. Lastly, it demonstrates the advantages of seeing law as an interactive kind in answering some contemporary methodological difficulties stemming from conceptual plurality or uncertainty, and in opening new avenues for research in legal philosophy.

Many religious associations exhibit internal norms that differ from liberal norms and rules. Such norms often directly contradict the non-discrimination norms and rules that are part and parcel of the liberal democracies in which these associations operate. Religious associations often are considered, in both legal and scholarly writings, exempt from at least some of these norms and rules. This tension between broad societal non-discrimination1 rules and the norms of specific religious associations has won the attention of scholars and courts.2 In many such debates, the background assumption is that these religious groups are voluntary associations functioning within a model of separation between religion and state; that is, such associations operate through the free choices of their members and individuals are as free to leave the associations as they were to form them.3 While theorizing about non-discrimination rules and whether they apply to religious associations that are funded via the contributions of their members is of obvious importance, this article examines a distinct problem: that of discrimination within religious associations that are directly supported by democratic governments. Recent research on religion-state relations4 has pointed out that, in many democratic countries, religious associations are funded by the government to a considerable extent. The tension between non-discrimination norms and the presumed rights of the state-funded religious associations to be exempted from such rules, however, is neglected in the literature. Perhaps this is because the most prominent legal cases of this kind were tried at the European Court of Human Rights5 and the U.K. Supreme Court,6 rather than the more conspicuous U.S. Supreme Court. This article asks the following question: in what way, if at all, does receiving governmental funding change the presumed right of religious associations to be exempted from non-discrimination rules? The ‘immunity thesis’—the idea that religious associations enjoy the right to be exempted from non-discrimination rules—is not challenged here: this article argues that if there is such a right to immunity, receiving governmental funding does not necessarily eliminate it. Much depends on how each case maintains the balance between the autonomy of religious associations7 and the protection of individual citizens from discrimination that impacts important civil interests such as access to jobs or high-quality education. Of the suggested variables identified to test this balance, three are internal to the associations’ structure: the centrality of the potentially illiberal norm to the funded religious association; the kind of violation of non-discrimination rules (either internal or external discrimination, see below); and the willingness of the religious association to internalize the cost of the discrimination. Two additional variables that can be used to test the balance of competing social values are external to the association and depend on the political-legal environment in which the association functions: the quantity of funding that the government makes available to the association, and the process by which potentially competing religious associations can become eligible for recognized and funded status. A multivariable ‘test’ is required in order to determine whether and how governmental funded religious associations can still claim immunity when practicing discriminatory norms.

Legal and political thinkers have always battled with the question of justice and, especially within a society, about the fair and just distribution of rights and responsibilities. This question is, however, not only relevant for the organization of municipal or domestic society; it has become increasingly relevant within the international legal system. An area where this has been most rife in the last three decades is the international law on climate change.

For years Ronald Dworkin has been a leading academic defender of individual rights. The political and jurisprudential theory underlying his defense has had enormous influence. Defense of the rights of homosexuals has been a prominent theme in his writings. In 1966 he published his well-known critique of Lord Devlin’s critical essay on the Wolfenden’s Committee’s recommendations that sexual relations in private between consenting homosexual adults be de-criminalized (reprinted in 1978b, ch. 10). In recent writings, he has condemned key rulings by American courts that denied certain basic rights to homosexuals. References to the rights of homosexuals are made in many of his works. But nowhere does Dworkin present a developed argument for homosexual rights. He appears to think that support for the rights of homosexuals follows naturally from his political-legal theory. But does it? If so, how? And how adequate is such a defense?

Liberalism is often identified with the claim that individuals should have a large space for decisionmaking into which the state is not morally justified to intrude. On this “negative liberty” conception of liberalism, the boundaries of that space are or should be set by a package of rights against the majority. Individuals can appeal to such rights to override majority decisions that seek to intrude into the space of negative liberty. If this space of negative liberty is preserved, for example, through courts empowered to strike down infringing laws, such liberals suppose that a fundamental interest of all individuals is served. This is the interest in autonomy, in being able to make, revise and carry out decisions about how to live in accordance with one’s own preferences.

In a well-known article, Duncan Kennedy has stated that the central problem for law is its treatment of the fundamental contradiction of our condition. On the one hand we are dependent on others for protection against destruction and for the fullest realization of our sense of ourselves; on the other hand we recognize in others a threat to our own well-being. Kennedy regarded the dilemma “that relations with others are both necessary to and incompatible with our freedom” as the essence of every legal problem, and he ascribed to the liberal conception of law the historical function of dressing up as rational or natural the structures of bondage that emerged as its particular resolutions. Kennedy’s contradiction invokes the recurrent tension between the notions of liberty and community that supply traditional vantage points for the analysis of social and political relations. The reconciliation of these notions poses an enduring philosophical problem, and one need not agree with Kennedy’s unflattering assessment of the law’s function to realize that it is a problem in which law too has been centrally implicated.

It is not easy to summarize what this book is about, except to say that it is an exploration of a variety of themes and a variety of authors on the role of language in the practice of law, the role of theories of language in legal theory, and how all this bears on “the problems of legal determinacy.” By the latter we are to understand problems having to do with whether the law always, almost always, or never provides uniquely correct answers to legal questions like “Does the Canadian Charter of Rights and Freedoms invalidate the Federal government’s ban on tobacco advertising?” or “Is this defendant guilty of defamatory libel?” The works of several authors are discussed, with emphasis placed on Wittgenstein, Friedrich Waismann, Herbert Hart, Ronald Dworkin, Michael Moore, and Lon Fuller. As with the writings of Wittgenstein, who serves as Bix’s philosophical inspiration, it is not always abundantly clear what the discussions all add up to. Nevertheless, it is possible to distil from Bix’s somewhat unfocused discussions the following central themes. These, as Bix himself notes, are linked by nothing stronger than “family resemblance.”

Intention is a central concept in our system of criminal liability. And in recent years it has been much discussed, both by lawyers and philosophers. However, there remain disagreements, and some unclarity. My purpose in this paper is to examine, and propose solutions to, the main problems concerning the concept of intention in the criminal law.

The rule or supremacy of law is a political ideal requiring that the authority of the political community be exercised only within the confines of ordained structures, established procedures, and known legal rules and standards, creating reasonable expectations on the part of those subject to the law. Recent accounts of this ideal often include a list of principles or precepts of the rule of law. Lon Fuller’s list has been rightly influential: generality of law, promulgation, non-retroactivity, clarity, consistency of laws, not requiring the impossible, constancy of law through time, and congruence between official action and declared rule; these principles of the ‘internal morality of the law’ can conflict with each other, so that practical wisdom is required in balancing their demands.

Constitutional adjudication in many legal systems crucially involves giving courts the power to override the decisions of other state institutions, even democratically elected legislatures. The task of delimiting the domain of judicial review is of the first importance. In this paper my aim is primarily critical. I want to take issue specifically with Ronald Dworkin’s well-known attempt to discharge this task through his use of the distinction between principle and policy. Courts, he claimed in Taking Rights Seriously, ought to decide on questions of principle and not policy and they are better suited for this purpose than legislatures. Despite the years that have passed since its original conception, Dworkin’s theory is very much alive and also relevant to contemporary constitutional theory. For, I believe it exemplifies a still common -perhaps also the predominant- way of conceiving of the role of courts and especially the practice of judicial review. It taps on the powerful intuition that it falls on judges to decide questions pertaining to the exercise and protection of individual right. Since my interest is pitched to questions of constitutional design, I will not challenge the explanatory adequacy of the principle/policy distinction itself from the point of view of moral theory, as many others have. Rather, I wish to explore whether this distinction adequately accounts for salient features of the division of labour between courts and legislatures. More specifically I will assess the extent to which employing this distinction satisfies three desiderata.

Austin’s theory of theory of law is simple: the law follows the pattern of power; the sovereign gives commands and obeys none; the subject obeys commands; the law consists in only those commands that directly or indirectly emanate from the sovereign. Nevertheless, Austin’s theory of sovereignty is not simple at all. When we look at the relevant chapters closely, it becomes evident that Austin has two rival theories of sovereignty, one for a single person and one for a ‘determinate body’. It is only the latter that allows him to say that sovereignty lies, ultimately, with the electors, the strange conclusion of his book. But Austin’s second theory of sovereignty is not consistent with his own theory of law. Austin’s faces a dilemma. Is law - as most people take it to be - a public order of standards of conduct aiming to guide behaviour? If so, sovereignty ought to be public and intelligible. If not, sovereignty can remain a mystery to those living under it (accessible only after the event by the expert legal philosopher). For the latter reading, law and sovereignty are ‘normatively inert,’ as some of Austin’s followers claim today. But Austin does not agree with his modern followers. Austin’s second theory of sovereignty is aimed at satisfying a practical requirement of law and jurisprudence, i.e. to be in the position of publicly guiding conduct.

The concept of modernity has long been central to legal theory. It is an intrinsically temporal concept, expressly or implicitly defined in contrast to pre-modernity. Legal theorists sometimes draw comparisons between, on the one hand, various post-Renaissance positivist, liberal, realist or critical theories, and, on the other hand, the classical natural law or justice theories of antiquity or the middle ages, including such figures as Aristotle, Cicero, Augustine or Aquinas. Many theorists, however, while acknowledging superficial differences among the various classical theories, fail to appreciate the variety and complexity of pre-modern thought. Unduly simplifying pre-modern understandings of law, they end up drawing false distinctions between modern and pre-modern legal theory. The pre-modern example considered in this article is Plato. Unlike scholars within the Humanities, who have continued to revise their approaches to pre-modern thought (often reflecting changes in ethical or political thought today), legal theorists, including many who claim to challenge much of traditional positivism, have scarcely moved beyond traditional positivists’ ahistorical and reductionist views.