In the common law world the oath has long provided one way of ensuring that trial witnesses tell the truth. The moral power of the oath supplements the judicial power of perjury laws. But unlike laws forbidding perjury, the oath cannot be used automatically. Through ignorance, belief or conscience a person may be incapable of meaningfully swearing an oath. Over the years there have been many legislative enactments and judicial pronouncements which sought to clarify conditions for the use of the oath and establish alternatives to it. With increasing secularization of society, the traditional ground rules have required modification. Because there has been little serious, theoretical discussion of the nature of the oath, these modifications have often exhibited inadequate understanding of the moral dimensions of the oath. As a result, judicial discussion has reached an impasse. In January, 1988 Bill C-15 became law. It contained yet another attempt to satisfactorily harness the power of the oath to the needs of the judicial system. The interpretation of this new legislation will offer excellent opportunities to eliminate some of the confusion surrounding the oath in Canadian law. This paper will analyze the nature of the oath with special attention to its obligation-generating capacity. The analysis developed here may help provide the understanding necessary for sensible judicial interpretation and reform.

In this essay, I argue that the role for exclusionary reasons in a sound account of practical rationality is, at most, much more circumscribed than proponents of exclusionary reasons might suppose. Specifically, I argue that an attractive account of moral motivation is in tension with the idea that moral reasons can be excluded. Limiting ourselves to the tools of first order moral reasons—including such relations as outweighing, and disabling—allows us to preserve a more attractive account of the relationship between what there is strongest reason to do, what one is motivated to do, and that for which one is praiseworthy or blameworthy. In closing, I argue that we can capture the normativity associated with legal decision-making using only the resources of the first-order model.

Recently, in Canada both the Federal Government and various provincial governments have introduced a series of measures intended to address gender inequalities in the workplace. These measures are of two basic types. Employment equity policies involve the implementation of affirmative action programmes designed to encourage the hiring and promotion of more women in, for example, the civil service. Pay equity policies have sought to institutionalize the principle of equal pay for work of equal value or, to use the American terminology, comparable worth. The aim of this paper is to resurrect the presently out of fashion view that the principles of affirmative action and comparative worth that underlie employment equity and pay equity can be defended on the grounds that they contribute to the realization of an ideal of equality of opportunity between men and women in Canadian society. This view, although once prevalent among those concerned with gender issues, has been pushed aside, largely because of doubts about the visionary depth of the ideal of equality of opportunity. It has been replaced instead by an ideal of equality of results which emphasizes the goal of reducing the gender wage gap. It is my intention here to formulate a principle of equality of opportunity that can incorporate recent feminist legal and political philosophy in a way that offers a promising way to analyze issues posed by gender inequalities in the workplace and, as a result, provide a clear rationale for the recent employment equity and pay equity initiatives in Canada.

In his The Moral Limits of the Criminal Law: Harm To Self, one volume in what is arguably the most impressive and thorough statement of liberal political philosophy to date, Joel Feinberg claims that there is a problem of reconciling the reasonableness of our concern for people who endanger themselves with our repugnance for paternalism:

Max Weber grappled with the rise of social democracy, the welfare state, or the Sozialstaat, most explicitly in the “sociology of law” sections of his posthumously published Economy and Society. Through a close reading of Weber’s text, this essay argues that the historical and analytic categories Weber deployed in his investigation of the Sozialstaat, its rise and its legal dimensions, were inadequate for an appropriate understanding of the phenomena and for the attempt to offer progressive prescriptions for their further development. Instead, by relying on a faulty historical logic, Weber obscured many realities of the Sozialstaat, and unwittingly laid the groundwork for the neo-conservative critique of the welfare state on both sides of the Atlantic. The essay concludes with some reflections on similar, “Weberian,” theoretical moves observable in literatures dealing with the most recent large-scale transformation of law and the state: the rise of the European Union.

Punishment consists in doing things to people which are expectedly undesirable from the point of view of the recipients. These have typically included the infliction of physical pain, deprivation of life itself, and, for long the standard form, deprivation of liberty of movement, in the form of a period in jail. We have a fairly strong prima facie duty to refrain from inflicting such things on anyone. (Some might even think that we have a rigorous, or “absolute” duty thus to refrain, but that would make punishment necessarily unjustifiable.) But if we accept any such duty—as we all do—then the question of justification for punishment obviously arises, for clearly we need to justify the doing of what is normally wrong. We need to show why certain kinds of non-normal behavior call for punishment.

This article is the final report of a study of legal ethics and professionalism involving in depth interviews about problem solving conducted with nearly two hundred lawyers practicing in various settings: in different sizes of firms, in different sizes of communities, in private practice and in in-house or corporate counsel positions. Previously published findings of this research project having established that lawyers rarely turn to their ethical codes to solve problems, preferring instead to rely upon informal information gleaned from within their own offices (although lawyers from smaller firms remain more often comfortable with information drawn from beyond the firm than those from larger firms), this article focuses on analysis of the interviews of those lawyers who identified themselves as concerned with issues involving their roles as lawyers. The analysis maps the lawyers' own descriptions of their situations onto the “hired gun” and “counselor” models of lawyer-client interaction taken from the literature. The findings confirm our preliminary findings that these two roles are not mutually exclusive. Although all the lawyers concerned with their roles began in a mentoring mode, most lawyers eventually relinquished their decision-making to their clients, a transition fraught with challenges for many of them. A minority, however, despite the dictates of their code of ethics, withdrew from cases or even, exceptionally, substituted their own decision-making for that of their clients. The article links the mentoring model to the care perspective in the literature of moral development and the hired gun model to the rights perspective. The findings did not establish any support for the claim that the presence of women is creating a "softer" voice in the legal profession. However, two aspects of the structure of the profession, private practice versus in-house practice and the size of the centre in which the practice is located, engendered variations in professional attitudes.

Quite by accident, Scarlett is in imminent danger of losing life or limb. You know this, and can rescue her without any unreasonable cost, inconvenience, or danger to yourself. Yet you stand by idly, and she suffers accordingly. Assume that morally speaking, you failed to do your duty; you ought to have done your best to rescue her. Should there be a criminal law penalizing your omission?

Joel Feinberg imposes the following two constraints — which may be called “liberal” — on any answer to our question. First, if it is reasonable that there should be a criminal law requiring rescue, then whenever there is a morally wrong omission to rescue, there must be someone who is victim of that omission. There must be no victimless crimes. Secondly, all criminal law must protect individual moral rights. When law protects people who need to be rescued and when others can rescue them at no unreasonable inconvenience, cost, or danger, the imperilled people must have a moral right to be rescued. If so, what precisely is the moral right that comes into play? Who are the victims? Joel Feinberg offers answers to these questions, answers intended to support the view that it is indeed reasonable for there to be a criminal law penalizing omissions to rescue, where rescue would involve no unreasonable cost, inconvenience, or danger to the potential rescuer.

One thing seems clear in British politics today: many of the old truths no longer hold. Voters no longer vote according to class. The current government has made some effort to shake up the civil service and bring in outsiders. And a third political party is struggling along. Faced with all this, scholars have had to rethink their approach to British politics and governance. Appellate courts have long been considered Britain’s least interesting governing institution, but they have also benefited from the shake-up. Studies published in recent years mean to examine the politics of the British courts, primarily the Law Lords, the members of the House of Lords who comprise the final court of appeal in Britain. And, congruent with other changes in politics, studies find that courts have become interesting enough that they ought at least be considered in discussing British politics.

If common law is to run parallel to the morality of promissory obligation, it must require the breaching seller to keep his promise, not simply to pay off the buyer. However, in the event of promise-breaking, common law orders the defendant to compensate the claimant for the loss that flows from the breach of the duty to perform. The following questions then arise: why does English law not order the defendant to do the very thing that the substantive duty requires him to do? Why does it not adopt specific performance as the primary remedy? Is it because English law runs against the morality of promise? The answer is ‘no’. A number of justifications have been put forward to explain the common law’s reluctance to award specific performance despite its undoubted acceptance as the appropriate moral response to promise-breaking. This article will explain each and show which is more persuasive.

Constitutional Goods offers an ambitious constitutional theory that challenges basic liberal ideas such as the priority of basic liberties and the inevitable disagreement between competing conceptions of the right and the good. The book has two objectives: it attempts to widen, on the one hand, the list of constitutional goods that deserve priority over other interests. On the other, it tries to bring competing conceptions of the right and the good together under an overarching umbrella defined as the 'inclusive conception'. This article attempts to show that, despite the valuable and ambitious effort, Constitutional Goodsis unlikely to convince everyone of its capacity for inclusiveness.

In one of his most famous dicta, the German legal and political theorist Carl Schmitt proclaimed it “obvious” that “all political concepts, images, and terms have a polemical meaning,” because “[t]hey are focused on a specific conflict and are bound to a concrete situation.” Taking Schmitt at his word, I argue that one must read Schmitt's masterpiece of comparative law from the Weimar period, Verfassungslehre, as a response to the Weimar state crisis. Schmitt's conceptual approach in Verfassungslehre aims to create a form of constitutional theory capable of compensating for structural defects of the Weimar state. Reading Verfassungslehre in this way also reveals that Schmitt does not present his constitutional theory as an alternative to liberal constitutionalism, but rather Schmitt's comparative history of constitutionalism in Verfassungslehre locates his decisionism at the very core of the liberal constitutional tradition.

Monahan and Walker have proposed that American judges should fundamentally alter the way they receive and assess social science evidence in court, by treating social science research as “law-like” or authoritative when certain professional research criteria are met. Strict application of the stipulated criteria to various kinds of social science research introduced into American and Canadian courts reveals, however, that such research can seldom be considered authoritative in the way Monahan and Walker imagine. Accordingly, as a general rule judges should be reluctant to apply Monahan and Walker’s “social authority” model to the courtroom resolution of difficult questions of social, economic, and cultural or historical facts.

In Dimensions of Private Law, Professor Stephen Waddams describes the obstacles that an adequate classification of private law must overcome. The purpose of this essay is to offer a theoretical account of legal classification that explains how these obstacles can be overcome and what the resulting classification of private law might look like. I begin with the catalogue of obstacles that Waddams presents and argue that, because they are rooted in misconceptions about the classificatory project, they pose no threat to an adequate conception of legal classification. In search of such a conception, I consider how three great legal theorists – Aristotle, Kant, and Hegel – answer three fundamental classificatory questions about private law. First, what is the unitythat underlies the seemingly chaotic array of legal instances? Second, what is the principle of differentiationthat applies to this unity? Third, how are legalinstancessubsumed under this differentiated unity? The focus of this essay is the enduring significance of Kant’s conception of legal classification, which provides an alternative to Waddams’ conception and offers a set of coherent answers to the fundamental classificatory questions. In contrast, both Aristotle and Hegel respond to the fundamental classificatory questions by providing a conception of the unity of private law that fails to cohere with their ensuing accounts of its differentiation.

Does the Internet offer the promise of a newly empowered, egalitarian public sphere more completely informing the institutions of representative democracy through an engaged and articulate public sphere? The Internet is with us now as a social fact. Its potential remains inchoate at a time when mass media, already debased as an intermediate medium for public discourse, suffers further erosion. The limitations of the Internet as a new medium for an enriched deliberative discourse are not necessarily fatal. Indeed the time may well be right. The institutional means for realising it are largely untried and controversial but not likely beyond our capabilities. In short, there is a need and a promise but not yet an active engagement. Against idealised Habermasian criteria the prospects are bleak and indeed there is danger of further fragmentation of publics. But judged against already debased modes of political discourse and the reality of the erosion of their mass media forms the prospects are perhaps not so bleak. The utopian best ought not to be allowed to crowd out the achievable good.

This is a Critical Notice of From Normativity to Responsibility, Joseph Raz’s brilliant treatment of the nature of normativity and reasons. Building on the thought that the law claims to give reasons to its subjects, I consider the application of Raz’s views about reasons to some questions in legal philosophy. I concentrate on what I take to be the central idea of the book, Raz’s “normative/explanatory nexus”, according to which a consideration cannot be a (normative) reason for an agent to perform an action unless the agent could follow the consideration in performing the action. I show (briefly) how the nexus can explain some of the Fullerian principles of legality. And I examine (at somewhat greater length) the implications of the nexus for our understanding of the psychology of legal obligation; here I suggest that the nexus might cause trouble for Raz’s own well-known exclusionary reasons account of legal obligation.

A legal theory, any legal theory, necessarily adopts one of two perspectives or vantages or points-of-view. The author of a legal theory may take up the internal, engaged vantage or the external, detached vantage. If he seeks to explore, say, how judges should decide hard cases then his theory, explicitly or implicitly, will adopt an internal participant’s perspective. Most likely, he will be putting himself in the shoes of the judge (or alternatively, asserting that we are all judges of a sort) in order to convince others of how best this role can be performed. Less likely, will be he who is a revolutionary and who thinks that the judge should decide cases in such a way as to contribute to the subversion of the legal system. In either event, both will be prescribing. Prescription, answering the ‘ought’ and the ‘should’, presupposes an involvement in the question and a concern with some evaluative dispute (though the revolutionary clearly does not accept the norms of his legal system as binding).

This paper asks whether refugee law is morally trustworthy. Trustworthiness here denotes that those who make refugee law—in particular those who decide refugee claims—are competent in this domain and are moved by the fact that refugee claimants and citizens of countries of refuge count on them to make morally sound decisions. Drawing on Adam Smith’s sentimentalist theory of law, the paper argues that refugee law is presumptively subject to various corruptions of the moral sentiments, namely national prejudice, contempt for the lowly, love of domination, and self-deceit. Combined, these corruptions may explain the apparent arbitrariness of refugee claim outcomes. They also suggest that we should be skeptical of any claims regarding the moral trustworthiness of refugee law. What they do not suggest, contrary to more cynical theories, is that refugee law is free of normative constraint.

The central theoretical assumption of English land law (and land law in related legal systems) that all rights in land are derivative of the Crown’s rights does not provide a full account of the origins of rights in land. ‘Liberal’ theories of the origin of property rights, which see property rights as something that emerged independently of state action, retain considerable explanatory value. The paper begins with a discussion of the principal features of David Hume’s account of the origins of property. The paper then engages with historical scholarship that shows that (1) it is a mistake to see the medieval English hierarchy of administration as implying a hierarchy of property rights ultimately derived from the Crown’s ‘title,’ and (2) the idea that communal medieval agricultural practices were super-imposed upon a pre-existing system of individual property rights is plausible.