The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use. When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves “to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole.” To determine when a regulation amounts to a “taking” of property requiring compensation, the Court has rightly stated that the ultimate question is whether the burden of regulation has been unfairly placed on a small class of individuals rather than the public at large. To answer this question, the Court has identified a variety of factors to consider, including the character of the governmental action, (whether the regulation effects a permanent physical invasion, destroys a core property right, or is intended to prevent public harm), whether the regulation interferes with reasonable investment-backed expectations, and the extent of the diminution in value of the property (particularly whether the regulation deprives the owner of any economically viable use of the property).

The first line of Carl Schmitt's Political Theology is perhaps the most famous sentence—certainly one of the most infamous—in German political theory: “Sovereign is he who decides on the exception” [Souverän ist, wer über den Ausnahmezustand entscheidet]. And yet the full significance of this famous sentence is often underestimated. I intend to focus upon 1) its significance in the overall trajectory of Schmitt's Weimar work, and 2) its potential significance for contemporary constitutional theories of emergency powers.

Punishment, by definition, involves the intentional imposition of some deprivation or suffering on individuals against their wills. On any moral view, there is a very strong presumption against doing this to people; so, if a society has an institution of punishment, some justification is needed. On the face of things, such an institution would seem to be an evil. What, then, is the justification for punishment? And once this question has been raised, related questions arise. Who should be punished and how severely? And what principle or principles should we use when setting up sentencing guidelines? Any adequate theory of punishment must provide some guidance, some useful headings, even if not a detailed chart, for answering these questions, among others.

In this paper, I outline a theory of punishment that I believe best answers these sorts of questions. Inevitably, some parts are far sketchier than others; but within the general outline, the major focus is on the concept of desert and on the application of desert principles in determining the just allotment of punishments. This leads to a framework for constructing a crimes/punishments schedule for sentencing. Along the way, a number of lesser issues are discussed as well.

This essay maintains that the question in its title is really three sets of questions: a conceptual inquiry, a moral/political inquiry, and an empirical inquiry. After devoting some attention to the relevant conceptual issues, the essay ponders in detail the moral/political issues. It suggests some answers to the germane moral/political questions, and it takes pains to distinguish those questions from other lines of inquiry with which they might be confused. Although only animals and dead people are mentioned in the title, the essay also considers whether infants, comatose people, lunatics, future generations, groups, trees, and natural phenomena such as rivers should be classified as potential holders of legal rights.

As Michel Foucault famously observed, the Nineteenth Century’s construction of sexuality as an unspeakable subject paradoxically generated an extraordinary amount of talk about sex. This paper engages with another paradox in the same field: for my main thesis will be that the criminal law which purports to regulate sexual behaviour has, in an important sense, very little to do with sex at all.

Perhaps this rather startling aspect of my argument explains the difficulty which I had in writing the paper. It probably had more to do, however, with the fact that it was originally written as an inaugural lecture. I hope that you will bear with me if I begin by describing the history of the lecture—for this history is, I think, an integral part of the present paper’s argument.

Writing and delivering an inaugural lecture is, in my experience, a uniquely challenging process, which forces one to think in a particular way about the place one sees one’s work as having in and beyond the academy. For a woman, there is an added complication which probably (though subconsciously) informed the reference to ‘unspeakable subjects’ in my title. The delivery of a lecture is an authoritative activity culturally marked as masculine. This issue about, as it were, the sex of lecturing came home to me very forcefully when I asked a friend to read a draft of the lecture: a few pages into the text, she observed: ‘so far, the tone is more woman than professor….’ Having completed my higher education without once being taught by a woman, it perhaps wasn’t surprising that I was having trouble finding a feminine professorial voice. But my friend’s comment touched also on a deeper issue. This lies in the controversial philosophical and psychoanalytic literature which equates the feminine with a state of lack, abjection and silence. If a woman professor is in some sense ‘speaking as a man,’ and if, as a feminist and a woman, one wants to find an authentic voice and style, the inaugural lecture presents at once the forum in which one’s responsibility to do so is greatest, and that in which success is most elusive. I spoke, then, as a subject of the unspeakable sex, exercising the apparently impossible right of speaking on the unspeakable subject of sex.

Publicity of information is a fundamental principle of American democracy. Not only is it instrumental in increasing compliance with the laws, a necessity of any government, but also it is an essential element of the right to know-which itself is an aspect of the first amendment right to free speech. Unfortunately, publicity often conflicts with another fundamental right-the right to privacy. In regards to taxes, citizens essentially have two rights to know: a right to know what the tax laws are, and a right to know that these laws are being administered fairly. Publicity in the tax context traditionally means making tax return information public records in an attempt to ensure the fair administration of the tax laws. This type of publicity, however, generates intense hostility because taxpayers perceive it as a huge invasion of their privacy.

After examining the pros and cons of traditional publicity of tax information, this Essay suggests that tax publicity be reconceived more broadly. Redefined in the dictionary sense of simply the transmission of information, tax publicity can include a wide array of communications, varying as to content and audience, which can better achieve publicity’s underlying goals with minimal invasions of privacy. A large portion of publicity in this broad sense can be-and should be-educational.

The Essay outlines four publicity proposals to stimulate discussion. Three use the expanded definition of publicity and focus on individual taxpayers: an annual tax statement, a short booklet to accompany the 1040, called Know Your Taxes, and an annual W-4. These essentially educational programs should deliver tax information to taxpayers more effectively than currently occurs. The fourth, more controversial, proposal suggests partial publicity-in the traditional sense. It attempts, however, to minimize the customary objections to publicizing tax return information by reducing invasions of privacy.

All the proposals will cost money, but probably less than the costs of enforcing compliance only through increased audits and litigation. They may also have psychic and political costs. Although recent studies show that more informed taxpayers are often more compliant, some of the information may trigger negative attitudes which would decrease compliance and/or create pressure for lower taxes.

Regardless of whether taxpayer reactions to the increased information are positive or negative, the greater publicity proposed in the Essay could have salutary effects, especially if it occurred in the context of a rational debate by elected officials about tax policy (instead of the current inflammatory rhetorical sound bites). On the one hand, if taxpayers respond positively to publicity, compliance will increase. If they act negatively, and their hostility to taxes increase, at least the publicity will arm them with more precise information that will allow them to focus their objections to the income tax and thereby lobby more effectively for real tax reform.

What is equality? How is it generally understood? What customs and norms produce its egalitarian features? What are its cultural and social markers?

Preoccupied with these questions I read A Theory of Justice. It was a brilliant book, very much like chess. It told me a lot about white men’s dreaming and nothing about the life I know. My reality in North America tells me that equality as “autonomous and the same” is a dream only privileged white men can have. Not only are they the ones with the luxury to dream this myth. Only they are “by nature free and equal” to do so. Moreover, only they construe themselves as “the natural proprietor of (their) own person(s) and capacities owing nothing to society for them.” As all-powerful patriarchs, they have imperiously universalized their myth to conceal their social, political, legal, economic, military, educational, and professional privileges.

The article addresses the question of the role of the judiciary in the constitutional democratic state through an analysis of the concept of judicial activism. The model advanced in the article is based on a composite theory of the role of the judiciary, drawing on, and developing, Canon’s (1982) analysis of judicial activism and more recent multidimensional approaches to the assessment of judicial output. The article supplements the traditional vision of the judiciary as law enforcer in two directions. Drawing on the ‘constitutional dialogue/constitutional interdependence’ paradigm, the article perceives the judiciary as participant in a multi-player web of constitutional interactions, in which other government branches, individuals and public bodies participate in the decision making process; arguments on the omnipotency of the judiciary are thus replaced by a model of interdependency and interaction. The constitutionalist tradition serves as basis for the third vision, under which the judiciary is an active protector of core ‘thin’ societal values.

These three visions of the role of the judiciary support a multidimensional analysis of judicial activism, under which judicial output is considered not only against pre-decision law, but also on the basis of post-decision dynamics and the value content of the decision.

The model comprises seventeen distinct parameters, which include, inter alia, the degree of change in the law, interpretation techniques, interference with democratic processes, rhetoric, obiter dicta, reliance on comparative sources, the extent of the decision, and the complexity of the legal question brought before the court. Under this group of parameters, any change in the law, or action that extends beyond the mere settlement of the dispute before the court, would be considered activist. Additional parameters draw on the second vision of the role of the judiciary, and consider post-decision reaction of the legislature, the administration, the public and the judiciary itself as basis for supplementary assessment. In this context it is argued that a decision that is fully accepted and implemented by other members of the constitutional web should be viewed as less activist than a decision that is subsequently rejected; in the former case the decision conforms with societal consensus or equilibrium, while in the latter case, post-decision processes reflect judicial deviance from such consensus. A final parameter pertains to the value-content of the decision, under which a decision that promotes and protects core societal values should be considered less activist than one that intervenes in low-value policy areas. The model advanced in the article provides a basis for composite qualitative and quantitative assessments of the impact of the judiciary in the social and political spheres.

A “human being,” Kant writes, “is not entitled to sell his limbs for money, even if he were offered ten thousand thalers for a single finger” (LE 124). This arresting statement is part of a broader position of Kant’s according to which persons lack property rights in parts of their own bodies. One can find in his work at least three arguments in support of this position. One is an argument from human freedom. It is riddled with difficulties. The second is an argument from humanity and dignity. It has general appeal but does little to justify Kant’s verdict on some of his own examples. The last is an argument from self-respect. It has some force. Yet, unless one tempers the Kant of moral opinion with the Kant of moral theory, this argument sometimes delivers unacceptable answers to casuistical questions.

I recently published a long article discussing a variety of topics from Joseph Raz’s The Morality of Freedom. The article was part of a symposium on Raz’s work in the Southern California Law Review . Raz responded to the articles in that symposium, including my own.

From a perspective which surveys the whole range of views on political philosophy, Raz’s view and mine look very similar. Even so, we find many things to disagree about, which neither of us would regard as merely matters of detail. For the most part, we at least share a common understanding of our disagreements. But there is one set of issues we disagree about and where we seem to lack even a common understanding of the disagreement. These are issues about how authoritative directives function as reasons for action, and about whether, when we follow authority in the proper way, we can be said to “obey” it.

Our lives are permeated by various forms of legality, produced by multiple bodies - both statist and non-statist. The pervasive presence of non-statist, soft law schemes in the contemporary society poses a challenge for legal theory: how to conceptualize legal-like structures that evolve outside the boundaries of the state and are able nonetheless to exert significant normative power? Understanding this phenomenon requires, I argue, a new model of law that will not be bounded by the binary (either/or) structure of traditional jurisprudence and sociology of law. I respond to this challenge by developing a degree-theoretic model of legal-normativity which I term "fuzzy law". This model offers a new conceptual vocabulary for thinking about soft law as a social phenomenon. The model draws on three main theoretical sources: the theory of complementary pairs, fuzzy-set theory, and defeasible reasoning. I examine the jurisprudential and sociological implications of the fuzzy law model through a discussion of the dialectics of reasoning with fuzzy rules and an exploration of the coordination dynamics of quasi-legal systems.

A Jehovah’s Witness suffers severe injuries in an automobile accident, and these injuries result from another person’s negligent driving. The victim refuses to accept standard medical treatment, which includes blood transfusions. Had she accepted standard treatment, the victim would have been returned to a near normal life. As a result of her decision, she now faces the prospect of life in a wheel-chair. Should the tortfeasor be held liable for the additional damages that result from the victim’s religious decision, or should the victim’s religious choice be treated as a failure of reasonable mitigation? I support the former option, arguing that the thin skull rule should be extended to include religious choices such as the refusal of blood transfusions. Our constitutional commitments to religious freedom and equality require us to treat these choices as reasonable ones, and this supports the notion of religious thin skulls. The argument provided here fits neatly with the structure of tort, and with the major Canadian precedents regarding the evaluation of victim behaviour.

Western democracies have developed a number of effective models for accommodating ethnocultural diversity. One of these involves the use of federal or quasi-federal forms of territorial autonomy to enable self-government for national minorities and indigenous peoples. These forms of territorial autonomy are in general a success. The merits of these models have been underestimated because many people measure success by an inappropriate criterion: namely, the absence of secessionist mobilization. This cannot be the correct standard for evaluating democratic multination states. The success of a common Western approach to territorial autonomy is related, in a complex way, to a particular view about the legitimacy and perhaps even inevitability of secessionist mobilization.

Corporations are subject to criminal law and sentencing provisions in most legal jurisdictions in the world. This article considers how leading punishment theories apply to corporations. Corporations are, this article argues, group agents with the capacity to make moral judgments. It follows from this that retributivism, the dominant theory of punishment for moral agents, ought to be understood as a component justification of corporate punishment. However, a more fundamental problem arises in the attempt to apply punishment theory to corporations: punishment involves suffering, and corporations cannot suffer in the relevant sense. This means that corporations cannot be punished, though they can be harmed. I explore the possibilities of simply abandoning the word ‘punishment’ and creating sentences that are not at the same time punishments. This has the drawback of limiting what the criminal law can accomplish when it comes to addressing corporate malfeasance. I find that at least one practical consequence for corporate sentencing follows from this theoretical distinction: sentencers have more legitimate authority to raise upper limits for sentences for corporations than they do for individuals, though there are still principles that dictate the need for upper limits. Despite the impossibility of true punishment, the theories of retributivism, deterrence and rehabilitation are still relevant when sentencing corporations.

It has been argued that the difference between liberal states and theocratic, communist or fascist states is not that the liberal states promote different ideals of the good, but that they promote none. Unlike illiberal states, which regard it as a primary function of the state to prescribe the moral character of society, liberal states shun such attempts and allow freedom to citizens to develop their own conceptions.

The aim of this paper is to analyze the notions of “conception of the good” and “neutrality” and to suggest a perspective which provides a middle ground between strict perfectionism, on the one hand, and complete neutrality, on the other. This perspective would allow plurality and diversity without resorting to absolute neutrality. It would involve some form of perfectionism without resorting to coercion. I will assert that liberal states do resort to some forms of perfectionism in conducting their policies. I will further argue that the policy they should adhere to is one of impartiality rather than one of neutrality.

In his introduction to the paperback edition of Political Liberalism, John Rawls, referring to Carl Schmitt's critique of parliamentary democracy, suggests that the fall of Weimar's constitutional regime was in part due to the fact that German elites no longer believed in the possibility of a decent liberal parliamentary regime. This should, in his view, make us realize the importance of providing convincing arguments in favor of a just and well-ordered constitutional democracy. “Debates about general philosophical questions”, he says, “cannot be the daily stuff of politics, but that does not make these questions without significance, since what we think their answers are will shape the underlying attitudes of the public culture and the conduct of politics.”

The availability of redress for historic wrongs committed against Indigenous people turns on a number of morally complex and politically charged issues. From the standpoint of moral theory, the problems of redress have been given articulate voice by Jeremy Waldron whose writings have come to take the shape of conventional wisdom. Waldron’s arguments are three-fold: 1) counterfactuals are impossible to verify, and so it is impossible to know how we are to put injured parties into the position they would have been had there been no injustice; 2) entitlements fade over time, and so whatever right to redress may have once existed, the basis for those entitlements is now eroded; and 3) injustices can be overtaken by circumstances, such that what was once unjust becomes just. In this article I argue that each of these objections to redressing of historic wrongs is mistaken, and they are mistaken in part because of Waldron’s failure to recognize that the injustices are not merely historic, the injustices are also contemporary and on-going wrongs committed against modern-day Indigenous people. There is no denying that circumstances have changed, but that does not eliminate the need to face up to the problems of injustice in the circumstances in which they occur: the present day, and we must face these challenges despite the fact that they present difficult choices and the probability of sacrifice.

It is not easy to come up with a characterization of legal positivism that is not vacuous and yet at the same time is sufficiently general to capture the myriad theories of law to which, over the years, the positivist label has been attached. Wil Waluchow suggests in his recent book Inclusive Legal Positivism that the core of positivism is the simple claim that any connections between law and morality are contingent only, dependent on whether the right kinds of laws have been created in the right kinds of ways (81). As a thumb-nail sketch of positivism this suggestion is plausible enough, so far as it goes, but it is important to note that it focuses on the possible connection between moral value and law, as opposed to that between moral value and theories of law. For there is an important strand in positivist thought that is as concerned with denying the latter type of connection as it is with denying the former. We can, in other words, distinguish between what we might call methodological and substantive versions of positivism.

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion.

In international law the understanding of gender and its relationship to sex remains fairly traditional. In this essay, I explore the subversive possibilities of feminist criticism of this story for international law.