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.

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.

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 first ten Amendments to the United States Constitution received final ratification on December 15, 1791. This year, then, marks the bicentenary of what is arguably the single most significant political event in my country’s history—the adoption of a Bill of Rights. So I write this essay in a celebratory spirit, to honor a most distinguished and influential U.S. Supreme Court Justice. Of the recently retired William J. Brennan, Jr.’s many outstanding contributions, his tireless promotion of human dignity as a preeminent legal principle stands out. Government should maintain and protect the dignity of those it serves, that the Constitution and Bill of Rights constitute nothing less than “a bold commitment by a people to the ideal of libertarian dignity protected through law”, are certainly attractive, even noble ideas. Yet, like so many abstract concepts, they are exasperatingly obscure.

Our conversations about punishment have been constrained by the presumption that crimes ought to be punished. This presumption does not entail that crimes must be punished, but rather that punishment occurs as a natural response to wrongdoing instead of as a conventional creation. As a consequence, the challenges for punishment’s justification have been reduced to the problems of purpose, opportunity and form, leaving unaddressed the question of the authority of a certain polity to impose this form of treatment on a given individual. In order to present and criticize this presumption, the article traces its origins by revisiting the debate about the nature of punishment that took place during the emergence of liberal political philosophy. After evaluating the main arguments of this debate the article concludes by arguing that liberal theories of punishment should give up this presumption.

The last two decades have witnessed a wide-ranging and global discussion of the theory and structure of human and constitutional rights. This debate initially focused on the principle of proportionality and subsequently on the related ideas of the ‘culture of justification’ and the ‘right to justification.’ There is now a far-reaching agreement that both proportionality and justification in human and constitutional rights law are concerned with the reasonableness, alternatively the justification in terms of public reason, of the act under consideration. Thus, reasonableness and/or public reason have assumed a, perhaps the, central place in the theory of human and constitutional rights.

Several legal philosophers have argued that the principle of corrective justice provides the best explanation of various areas of the law—especially the law of torts. On the other hand, some philosophers of law and many economists of law have argued that the principle of corrective justice is not an independent principle of justice. I call this the problem of dependency. If the critics are right, the principle of corrective justice cannot be an explanation of a large area of our law as it claims to be.

I argue that the increasingly complex forms of the problem of dependency that the critics have proposed lose their force once we have a better understanding of the principle of corrective justice and its relationships with other principles. The principle of corrective justice does not serve a conception of distributive justice or efficiency and can provide an explanation of a large area of our law despite the criticism. It does so independently as a principle of justice that is reflected in our legal practice.

Legal systems such as those in the United States and Canada, which include fundamental moral rights or provisions in their constitutions, present an interesting and difficult problem for legal positivists. Are such moral standards to count among the existence or validity conditions of laws in those systems, or are they better understood as fundamental objectives or justification conditions which laws may or may not achieve or respect in practice? The first option, known as inclusive legal positivism, expands the traditional positivist separation thesis to mean that although there is no necessary connection between law and morality in general, it is possible that in some systems it is a necessary truth that laws reproduce or satisfy certain demands of morality. The second option, known as exclusive legal positivism, denies this possibility, and maintains instead that it is never a necessary condition that laws reproduce or satisfy certain demands of morality, even if such demands are constitutionally recognized. On the exclusive account, in the context of constitutional states such as the U.S. and Canada, the separation thesis is expanded to mean that there is no necessary connection between the existence and content of laws and the demands of political morality typically included in constitutions. In this paper I defend exclusive positivism and argue that it best follows from traditional positivist commitments and avoids what I take to be a critical problem with inclusive positivism. Further, I argue that the concepts, distinctions, and arguments deployed in the internal positivist debate are also of value in the wider debate between H.L.A. Hart and Ronald Dworkin.

It is often assumed that there is an important conflict, perhaps even a contradiction, between claims to private property in land, on the one hand, and claims of public access to it, on the other. The conflict is manifest in the dispute, common to many industrialised countries, between those who have private property in land and those who claim access rights to that land for recreational purposes. The first aim of this essay is to clarify what is involved if this conflict is to be understood as taking place at the level of normative justification. Our focus is therefore narrow because we ignore other grounds which, though they need not necessarily ignore normative justification, do not regard it as central to an account of the genesis and existence of the conflict. So, for example, the conflict might be solely or mainly a product of self-interested pressure group politics or ideological dispute.

A critical analysis of theories of commercial impossibility and frustration of purpose is best undertaken in conjunction with a theoretical analysis of contract in general. Contracts function as a means of transferring social benefit, which can be subcategorised into subjective and objective benefit. Contracts also regulate the transfer or risk, which is inherent in property and hence any contractual relationship. In the light of the transfer of subjective and objective benefit and risk, contracts can be shown to be by definition ex ante Pareto superior for both parties. Frustration of purpose or commercial impossibility is pleaded where the ex post overall benefit differs greatly from the ex ante expected value. This difference results from the manifestation of a risk which one party bears under the terms of the original contractual risk/benefit equilibrium. Considering the various subjective and objective risks and benefits involved in the contract, it is possible to classify frustrating eventualities under eight heads. In at least six cases the importance of the principle of security of exchange clearly precludes the operation of frustration. One of the remaining cases corresponds with the controversial Krell v Henry; there appears to be a temptation to regard frustration as the most socially utilitarian solution. Given however the dynamics of contractual risk and benefit, allowing frustration there would be unworkable because it would entail placing a subjective risk burden on the party which is in a worse position to evaluate it. There should be no place in the law for a doctrine of frustration of contract on the grounds of commercial impossibility orchanged circumstances.

This Critical Notice deals with two recent books that report the findings of statistical analyses of Supreme Court of Canada judgments over extensive periods of time. The authors of both studies argue that empirical analysis can make significant contributions to theories of law and the understanding of what high court judges do, and in fact, that theoretical approaches on their own are necessarily inadequate to this task. The review questions whether the studies succeed in meeting the ambitions set for them. In Attitudinal Decision-making in the Supreme Court of Canada, Ostberg and Wetstein fail to establish that the attitudinal model of jurisprudence developed by American political science provides a strong explanation of the performance of the Supreme Court of Canada. In The Empirical Gap in Jurisprudence, Daved Muttart employs such broadly stated measures of judicial reasoning that his conclusions about the Court’s performance remain general in nature and do not pose serious challenges to the major, competing schools of jurisprudential thought he seeks to examine. Both studies fall back on unconvincing arguments about the prevalence of judicial activism in Supreme Court decision-making in the absence of stronger findings on their principal themes.

A first task of a philosophy of law and morals is to try to make explicit and authenticate a standpoint that allows for the evaluation of things in normative terms. It cannot begin straightaway with conceptions of the right, the good or the moral worth of persons. For these are notions whose adequate elucidation presupposes that we are already occupying a standpoint which, taken by itself, is unqualifiedly normative and complete. The account of what I shall refer to as “the standpoint of the normative” is thus prior to the explication of the criteria and contents of our normative conceptions.

Recent work in legal ethics has raised the question of whether lawyers, in performing certain kinds of actions otherwise criticizable on moral grounds, can escape such criticism by appealing to the role they occupy in the legal system. Such actions include but are not limited to “gray-mailing”, making truthful opposing witnesses look like liars, defending criminals believed to be guilty, and defeating just claims on technicalities. Often, the question has turned on whether the adversary system of which lawyers are members is itself a morally worthy system. And depending upon the answer to this question are the answers to a number of related questions. Of these, the most widely discussed is whether and to what extent a lawyer should respect a client’s confidences.

Analyses of the social contract described by Thomas Hobbes have proceeded in three major directions. First, some readers naturally have felt that Hobbes viewed the primal charter as a genuine outcome of events which truly occurred. Other exegetes have contended that the story of the formation of the social contract was a deliberate fiction—either an artful narrative designed to elicit orderliness, or a heuristic model designed to spark hypothetical reasoning about what would have occurred in a primeval context with specified conditions. Still other analysts affirm that Hobbes used the tale of the social contract as a warning against the evils that plague a society which descends into civil strife.

The essay builds on the claim that the concept of law is best understood as structured by an abstract archetype to which actual instances of law approximate, and that the archetype in question is an intrinsically moral idea: the idea of a realm of universality and necessity within which one can enjoy freedom as independence from the power of others. Reflection upon the nature of this archetype is a form of moral reflection upon experience, where we seek to grasp the nature of a value by considering the forms in which the value has been partially realised. The departure from Aristotelian thought (to be found in writers from Grotius to Kant) served to obscure the possibility of such a form of moral reflection. Twentieth-century theories of the nature of law have tended to focus upon the problem of law’s self-genesis, but this neglects the full extent of the philosophical problem of law’s nature.

The fundamental political concern of liberalism has been to secure equal liberties for all citizens. There has, however, been no agreement among liberals on the extent to which this project depends, both normatively and practically, on the democratization of society. Socialism, on the other hand, has been fundamentally concerned with the realization of emancipated forms of life. But socialists too have disagreed with one another on the extent to which political structures of democratic self-government are central to the revolutionary task of emancipation. Social democracy, as a tradition, has involved the attempt to show how these core political projects of the modern era, liberalism and socialism, are mutually interdependent. The most appropriate emancipatory project for late modern, increasingly complex societies, from a social-democratic perspective is to create and maintain a social structure that can deliver equal and effective liberties for all citizens. This achievement is to be best understood in republican terms, as the realization of a democratic form of life in which free and equal citizens engage one another in the collective task of autonomous self-governance. Jürgen Habermas has been one of the most significant intellectual contributors to the development of the idea of social democracy as an emancipatory project. Over several decades from the early 1960s to the present, Habermas has set about recasting critical social theory in terms of a theory of communicative action. The main legal and political implications of this critical perspective are outlined in his discourse theory of democracy Habermas considers the realization of rights through the democratic self-organization of legal communities to be the normative core of emancipatory politics in the modern era.

This paper identifies a volitional theory of meaning common to speech act theory and legal positivism, represented by Hart and Kelsen. This model is compared and contrasted with the model of social operations developed by Reid, a Common Sense Enlightenment philosopher. Whereas the former subscribes to the view that meaning is generated by acts of will, the latter finds meaning to consist of the dual elements of sign and ‘directedness’.

The ability of positivist theories to provide a structural account of the difference between legal rules and other rules is inextricably linked to this commitment to the volitional theory of meaning. The commitment to the volitional view however leads to problems in requiring that some kind of authority be presupposed in for plain rules to attain legal force. Such authority can only be established with recourse to further rules (thus falling into a malign infinite regress) or must be accepted as a matter of faith. Reid's criterion of direction however vitiates the need for an authority, instead accounting for social communication in general, and rules in particular, in terms of sociological factors. Although no comprehensive critique of the volitional theory is proposed, Reid's model is preferable on the grounds of explanatory richness.

The core claims of the paper are that: (a) legal positivism necessarily subscribes to the volitional theory of meaning; (b) rejection of the volitional theory necessarily entails rejection of the positivist view that legal and non-legal rules can be differentiated on structural grounds (c) another counter-model exists which avoids some of the pitfalls of the volitional theory; (d) if the volitional theory is rejected then the existence of rules can only be accounted for in a 'strong' sociological sense and legal theory must accordingly accept the dominant role of sociology in conceptualising the nature of rules.

Modern medicine has been enormously successful in saving and extending lives. No one can reasonably regret this, but it exacerbates a problem which has always been with us, namely, how to treat those who are alive, but not living lives they think worthwhile, and have no prospects for anything better. Under current Canadian law, one who wants to die can either commit suicide, or, if he is competent, refuse all treatment necessary for life. But one does not always have the ability and opportunity to do the former, and the latter does not always bring about a gentle and easy death for either the patient or his loved ones. The question thus arises as to whether we should make legal provision for assisted suicide - providing the means of suicide - and active voluntary euthanasia - killing the patient on request. The Canadian Law Reform Commission1 has recently taken up this question, and answered with a clear “No.” I shall argue in what follows that the answer should be “Yes.”

Historically, discussions of the morality of punishment have been dominated by the conviction that punishment is an inescapable feature of social life. Thus it is widely believed that laws will not be respected unless those who break them are punished. Yet another view deeply entrenched is that avoiding or mitigating pain and suffering ought to be a fundamental goal of civilized societies. These two convictions are in obvious tension. Punishment requires the deliberated infliction of pain or suffering. How then can it be justified?