Many political and moral theorists believe conceptual arguments about the nature of liberty, authority or power cannot be resolved independently of background normative theories. When this view is combined with the assumption that normative disputes are in some sense irresolvable—because, for example, reason fails us here—we have a partial account of the significance of controversy in moral and political argument. Controversy is significant because it is a manifestation of a deeper truth about reason and value. By contrast many would deny that controversy over such matters tells us anything important—it tells us merely what we already know, that disputants are stupid, self interested, in the thrall of an ideology, or informationally deprived.

In Law’s Empire, Ronald Dworkin introduces an important distinction between what he calls the ‘grounds’ and the ‘force’ of law. The former primarily interest Dworkin in LE and concern the “circumstances in which particular propositions of law should be taken to be sound or true.” (110) Propositions of law, we are told, are “all the various statements and claims people make about what the law allows or prohibits or entitles them to have.” (4) That Canadians owing income tax to the federal government must file their returns before April 30 or face a late penalty is presumably an example of a proposition of law. That the United States constitution prohibits slavery is another. These (true) propositions of law simply report the law’s (present) requirements, requirements which normally should be respected but which might justifiably be disobeyed or disregarded in exceptional cases. A true proposition of law, then, does not necessarily entail an answer to the question: What should I do, or decide (if called upon to render a judicial decision)? It also does not necessarily entail an answer to the question: Should the coercive power of the state be exercised against this person?

From the Autobiography of John Stuart Mill

Anthony Kronman’s 1980 article “Contract Law and Distributive Justice” has become something of a classic in the philosophy of private law. Kronman argued that any theory of contract which relied upon voluntariness was necessarily concerned with distributive justice, since voluntariness was itself a distributive notion. The argument targeted libertarian accounts of contract. Given the distributive nature of voluntariness, the claim went, libertarians could not give an adequate account of contract without violating their own injunction against appeal to the “fair division of wealth among the members of society”(472). It is easy to see why Kronman’s article attracted so much attention. The idea that voluntariness is not distributive is central not just to libertarianism but to liberalism generally. Kronman’s critique, though targeting a not terribly common species of liberalism, threatens the genus itself.

The purpose of this paper is to attempt to lay out a framework, both analytical and historical, in terms of which deeply conflicting and surprisingly complicated claims about equality and egalitarianism may be discussed. My aim is to help to make more intelligible what is at issue in contemporary disputes, and hence what kinds of arguments and evidence bear on and might illuminate these competing claims. I then exploit this conceptual framework to sketch a way of organizing some of the voluminous literature in the on-going debate about equality, that is, to bring into focus the dimension(s) in which the issues are being joined, and from which historical tradition an argument emerges, in hopes of clarifying these debates.

Essentialist legal theorists, represented by Raz, have depicted legal theory as a project of seeking necessary truths about law. They have, however, left the notion of necessity in their conception of legal theory largely unexplained. This paper explores four different notions of necessity in the philosophical literature and investigates two issues: first, what kind of necessity best fits the notion of necessity implicit in the essentialist conception of legal theory, and secondly, whether that notion of necessity is a coherent one that withstands philosophical challenges. I argue that the Putnamian notion of quasi-necessity best fits essentialist legal theorists’ self-understanding, but the notion of quasi-necessity does not withstand Ebbs’s two challenges. Meanwhile, although Plunkett’s theory of metalinguistic negotiation can be used to preserve a coherent notion of necessity that circumvents Ebbs’s two challenges, due to its broadly anti-essentialist underpinnings such a notion is unlikely to be congenial to essentialist legal theorists.

This paper considers the connections between the Statehood/recognition debate in international law and social ontology. I aim to show that certain theories of social ontology, which I call Groupjective Internalism, can be used to defend Constitutive Theories of Statehood. Among philosophers whom I consider committed to Groupjective Internalism are major figures in the field: Searle, Gilbert and Tuomela. This is an interesting result as Constitutive Theories are generally looked upon with suspicion in international law.

H.L.A. Hart says that The Concept of Law is focused on municipal or domestic law because that is the “central case”1 for the usage of the word ‘law.’ At the beginning of the book he states that “at various points in this book the reader will find discussions of the borderline cases where legal theorists have felt doubts about the application of the expression ‘law’ or ‘legal system,’ but the suggested resolution of these doubts, which he will also find here, is only a secondary concern of the book.”2 Yet among those borderline cases there is one that is rather intriguing, since Hart closely discusses a particular instance of them: it is international law, to which he devotes an entire chapter—the final one—of The Concept of Law. My goal in this article is therefore to make clear why the ‘resolution’ of the borderline case of international law is not entirely ‘secondary’ to Hart’s overall project in The Concept of Law and, in so doing, to show that Chapter X is not as unhappy as many think it is.

This paper makes a conceptual prescription: it argues that judges and lawyers should adopt a positivist concept of law, on normative grounds. The positivist view, I will argue, is more consistent with reasonable disagreement and majority rule than nonpositivist views, offers a better view of law’s moral standing, and is more consistent with what Dworkin called ‘integrity’ than non-positivism. As the paper explains, this is an argument about what I call the ‘operative’ concept of law. As such, the argument avoids potential problems for conceptual prescription, and shows why even those who adopt non-positivist views about the nature of law might accept it.

Justice Ivan Rand was perhaps the greatest exponent of the rule of law in the history of the Supreme Court of Canada. He was a great judge. He scorned as impractical the admonition that judges should “apply the law, not make it”. His judgements frequently broke new ground, but it should be understood that in “making the law” great judges like Ivan Rand respond to fundamental considerations of order and fairness and not to personal whim. It is sometimes necessary for judges to return to first principles to provide legislators with a framework within which to operate in unforeseen situations. The word “activism” is usually used by critics to imply that a judge is pushing the envelope beyond the proper boundaries of the law, but properly understood the term may equally indicate a judicial tightening of the boundaries to deny the bench a power seemingly conferred by the Constitution or legislation. Restraint, as much as expansion, is governed by the judges’ recognition of the limits of their institutional competence and their appreciation of their role in the constitutional scheme.

In the absence of statutory authority the courts have not yet addressed issues related to globalization and human rights with the sort of boldness and creativity we associate with great judges like Ivan Rand. Order and fairness have acquired a global dimension. Globalization offers a different kind of challenge, but is no less demanding of the rule of law. In the case of creating some form or forum of relief for Third World victims of globalization, we seem to have used restraint as an excuse for inertia. Judges need to be practical, but their greatness will rest on their capacity to see not only what the law is but what it should become. There is a time for boldness and a time for restraint and judges should be judged on their ability to tell the difference.

Impersonality is frequently invoked as a core element of the rule of law. In this article, I discuss a troika of values and institutions–office, honour, and the oath–that provide deeply personal springs for the conduct of judges and other office-holders. In so doing, these institutions make possible the sort of impersonality valued by the rule of law. A focus on office emphasizes the importance of duty rather than power. Honour is the desire to be well thought of by others, and the internalized desire to deserve to be thought well of by others, especially one’s peers. Honour is often treated as an obsolete value that has been superseded by dignity. But it remains an essential force, providing judges and other office-holders with a source of energy and agency that motivates them to fulfil the duties of their office with virtue and excellence. The oath serves as a linchpin that connects the individual to the office and the office-holder to the commitment to serve honourably. Taken together, this troika of institutions encourages the faithful and energetic performance of one’s judicial office in a modern democratic constitutional society. Thinking about the rule of law this way encourages us to shift our focus from power to duty, and from doctrine to character and virtue. It encourages us to revive and revise honour rather than abandon it. It helps show that an impersonal “government of laws and not men” is and ultimately must be deeply personal.

Modern contract law accords considerable significance to the basic assumptions on which a contract is made. It thus takes to heart a failure of a belief whose truthfulness is taken for granted by both parties. Where the failure results from the parties’ mistake at the time of formation, “the contract is voidable by the adversely affected party,” if that mistake “has a material effect on the agreed exchange of performances” and unless that party “bears the risk of the mistake.”1 Where, in turn, the failure of such a basic assumption results from the parties’ erroneous beliefs about future states of the world, a party’s duty to render performance may be discharged if they are not responsible for the supervening impracticability or frustration and “unless the language or the circumstances indicate the contrary.”2

The principle of national self-determination asserts the collective right of the nation for self-government. This principle is now a corner-stone of modem political thought. The idea of “home rule” or the ideal of a self-governed political community is a very old one which originated in classical Greece. Yet the modern idea of the free self-governed community differs in some important aspects from the old one.

National sovereignty, or the community’s collective right of “home rule”, means today the right of the political community to its own State. The State, at least the modern liberal democratic Nation-State, is conceived as an instrument by which sovereignty is constituted and national interests are promoted. In this way antiquity poses an interesting problem, since the State is a product of the modern era and was hardly known in the ancient world. The absence of State was not accidental to the ancient community; it was accompanied by an adequate system of ideas concerning the nature of the political community.

When state regulations prevent owners from certain uses of their property, is this action of the state a taking of property which requires compensation? One way of answering this problem, within a framework viewing property as a bundle of rights, is to inquire into whether the incident of use is an essential element of the bundle making up the property. Given the difficulties with figuring out what is essential and what is not, I propose an alternative solution, which does not give up the bundle-of-rights framework, but which, while assuming all incidents to be equally essential, it concentrates, instead, upon the legal entitlements conveying those incidents. I begin by arguing that while the incident of possession may be expressed by a right to exclude, the incident of use is expressed by a Hohfeldian liberty, and then I consider the consequences of this argument for the question of regulatory takings. I argue that while the liberty to use does not render the incident of use meaningless (at least, insofar as regulation of property use is concerned), there is nonetheless a significant distinction between transgressing a right and transgressing a liberty, and this implies that what it takes for an infringement of the right to exclude to be translated into a taking of the (whole) property is less than what it takes for the infringement of the liberty to use to be translated into a taking of property. As I show in the paper, we can achieve this result either by means of an argument from ‘constitutional residue’ or by means of an argument from the specification of constitutional rights.

Discussion in the paper focuses on instituting a requirement that juries in criminal cases make public the reasons for their verdicts. The nature of such a requirement is elaborated, as is the way in which defects in the reasons provided might serve as a basis for appealing convictions. Various arguments for adopting such a requirement are considered, as are objections to doing so. In support of the requirement, I contend that it would enable defendants in criminal cases to ensure that their procedural rights have been respected. Such a requirement can also be construed as a condition of the legitimacy of exercises of political power and as an implication of the right of each person to be treated with equal concern and respect. The main objections to such a requirement concern its possible interference with jury independence and the complications and inefficiencies appeals of reasoned verdicts would produce.

This article has several and concurrent purposes. The first is to offer conceptual clarification about the notion of incommensurability and how it can be meaningfully understood in various contexts. Secondly, the purpose is to advance the substantive position that something important is lost when incommensurability is rejected in the law as a matter of principle. Third, the aim is to bring to fuller awareness the practical difficulties that a judge facing a potentially incommensurable conflict would encounter when judging it. Finally there is the claim, against the backdrop of contemporary theories of procedural democracy, that tragic incommensurability cannot be wholly neutralized by the procedures aimed at the generation of consensus, nor dissolved through the harmonic integration of all the values that law is supposed to protect.

The idea of universal liberal legal norms has long been under attack from a variety of sources. One of the most sustained and sophisticated philosophical versions of such an attack is found in the work of Martin Heidegger. His argument from the social embeddedness of the self to the ultimate contingency and groundlessness of any claims of normativity has been highly influential across a number of fields. This paper argues that legal theorists who wish to contest such a view should look to the work of philosopher Emmanuel Levinas. In his critique of Heidegger, Levinas affirms the significance of the human beyond the particular context in which we find ourselves embedded. Levinas wrote very little about law; his main focus was on ethical responsibility and the claim that an “other” makes on me. I argue that legal responsibility is fundamentally different, concerned instead with the claims that a self can make on others. Drawing upon Levinas’ understanding of the self as constituted through ethical responsibility, I argue that a Levinasian account of justice can support liberal-democratic norms such as freedom, equality and dignity. Indeed, Levinas himself endorsed universal human rights and even indicated a strong affinity with Kant’s idea of justice. What he denied, however, was that justice is a fully rational and coherent concept. I argue that this does not render justice incoherent or call into question the basic status of the norms of justice. Rather, a Levinasian account of justice shifts the emphasis to the community practice of reasoning about universal norms, a practice that is never complete. I further suggest that such a practice of reasoning should be familiar to lawyers as it bears a strong resemblance to common law reasoning.

In The Hateful and the Obscene, Sumner offers a consequentialist reading of John Stuart Mill’s political philosophy that blinds him to the complexity and normative attractions of Canadian law's response to hate speech and pornography. This essay argues that qualified deontological moral philosophy provides a more adequate basis on which to understand the bodies of law examined by Sumner. The qualified deontological analysis is more adequate since it (unlike consequentialism) provides a basis on which to account for the presence within Canadian law of incommensurable values. The analysis offered here also addresses three further weaknesses in Sumner’s text. Sumner offers an inadequate account of the role played by the concept of community in the law’s operations. He also fails to recognise that a strong commitment to identity politics has shaped the development of Canadian law. But perhaps the most significant weakness in The Hateful and the Obscene is Sumner’s adoption of a ‘Millian’ position on free expression that fails adequately to address the threats posed by those political activists who seek to undercut liberal democracy's foundations.