The ways in which a society provides for people who, for one reason or another, are more socially and economically dependent throws into sharp focus the problems of equality as a political construct. The basic dilemma of social dependency is that of reconciling the responsibility of the state to ensure equality with the rights and needs of those who are dependent. The social, legal and economic policies in place at any given time in history reflect the ways that principles of justice have legitimated differential treatment. To study the case of intellectual disability, therefore, is to reflect upon the legal microcosm of the struggle for social justice and the parameters of political obligation to ameliorate inequality.

Conduct preparatory to the commission of a crime typically comprises acts such as gathering vital information, making initial contact with the prospective victim, reconnoitering the site of the crime, obtaining materials and tools, and gaining expertise knowledge. Many Western penal codes categorically distinguish preparatory actions from a punishable attempt in attending to cases whereby an actor engages in conduct planned to culminate in the commission of an offence. The article focuses on the desert of an actor who, after having formed an intention to commit a crime, conceives a plan and gets underway by performing acts of preparation - without commencing to commit the substantial offence, let alone bringing about its consummation. The actor’s failure to carry out the offence may be attributed to a vast array of causes, ranging from a decision on his part, prompted by a sudden change of heart, to discontinue the operation, through an inability to gain access to crucial information or tools, to the disappearance of the targeted victim or property. The article is divided in two parts. The first part addresses the factors which affect the blameworthiness of an actor intent on committing a crime as he gradually implements his plan by laying the groundwork for his undertaking. By considering the punishment of acts preparatory to the commission of a crime in the light of the principle of individual autonomy and the dilemma of moral luck, it explores the various respects in which the culpability of an actor who only engages in preparatory conduct differs from that of an actor who commences to commit the targeted offence. The second part takes the analysis a step further by probing the exceptional conditions under which preparatory actions may be sufficiently wrongful to warrant pressing the criminal law into service to provide for a punitive response. In this respect, attention focuses on such factors as the operational significance of the preparatory conduct; the acquisition of specialized tools and equipment; the organizational support available; and the seriousness of the substantial offense targeted.

I argue that institutions charged with giving justice must understand responsibility in terms of norms governing what people are entitled to expect of each other. On this conception, the sort of responsibility that is of interest to private law or distributive justice is not a relation between a person and the consequence, but rather a relation between persons with respect to consequences. As a result, nonrelational facts about a person’s actions and the circumstances in which she performs them will never settle the questions of responsibility that matter to institutions charged with giving justice. I show the significance of this way of thinking about responsibility by contrasting it with prominent conceptions of responsibility which suppose that its moral significance derives from the ways in which an individual person acts in the world. I demonstrate its power by focussing on cases in which responsibility is widely agreed to run out in ways that non-relational conceptions of responsibility cannot explain.

Beginning in the early 1990s, Third World Approaches to International Law scholarship (TWAIL) destabilized the mainstream narrative within international law that its doctrines were constituted by the historic search for order between formally equal state sovereigns. Instead, TWAIL scholars argued that the key constitutive dynamic of the discipline was the colonial experience, which continues to hold powerful sway over the legal architecture of global regulation whereby international law functions to perpetuate inequality and oppression. At the same time, however, TWAIL scholarship regularly posits international law as an emancipatory force that may be mobilized on behalf of former colonized populations and other marginalized social identities. The rise of post-Marxist scholarship, and more generally, the turn to interdisciplinary within the profession in recent years offers an opportunity to analyze this curious paradox and construct alternative modes of analysis for future TWAIL scholarship. In the first section, the paper draws upon a diverse array of TWAIL scholars over the last thirty years to map the argumentative logic within TWAIL literature. In the second section, the paper incorporates debates and insights from complimentary academic disciplines to illuminate some blind spots within TWAIL’s central arguments, and potentially ‘radicalize’ its future possibility of critique against the growing inequality within global governance.

The availability of a constitutional framework that encourages deference to the judiciary, and the existence of a political environment conducive to judicial empowerment have helped bring about a growing reliance on adjudicative means for articulating, framing, and settling fundamental moral controversies and highly contentious political questions. This has resulted in the gradual erosion of the exclusive prerogatives of legislatures and executives.

Conventional wisdom among contemporary liberal egalitarians is that taxing individuals according to their “endowment” or “earnings capacity” would constitute an unacceptable intrusion on basic human liberties. In effect, the argument goes, such a scheme would result in a type of slavery - in order to pay the tax, people would be forced to accept jobs commensurate with their identified levels of endowment. The most succinct formulation of this argument comes from John Rawls, who argued that an endowment tax “would force the more able into those occupations in which earnings were high enough for them to pay off the tax; it would interfere with their liberty to conduct their life within the scope of the principles of justice…”

This Article examines the Rawlsian objection to endowment taxes and considers whether it can be distinguished from the libertarian claim, advanced most famously by Robert Nozick, that taxation of earnings is unjust because it is “on a par with forced labor.” The Article’s principal claim is that unless one assigns greater moral value to non-market activities than to market activities (a position arguably in tension with the liberal principle of neutrality as between alternative visions of the good life), there is no difference in kind or in degree between the interference with liberty occasioned by the two types of taxes. It follows from this analysis that if one accepts Rawls’s argument regarding endowment taxes, one must also accept Nozick's argument regarding wage taxes. If correct, this conclusion presents the liberal egalitarian with a dilemma: she must either (1) embrace endowment taxes as a moral ideal, rejecting the liberty concerns expressed by Rawls and others, or (2) join Nozick in renouncing the ordinary taxation of earnings, a move that would substantially weaken her commitment to egalitarian outcomes.

The purpose of the Article is not to offer any particular resolution of this dilemma, but rather to expose some of the tensions inherent in the liberal egalitarian framework and to suggest that consideration of these tensions is necessary to the development of a more satisfactory liberal egalitarian position on questions of taxation and distributive justice. Toward that end, an alternative framework is suggested for assessing the liberty cost of taxation. It is contended that all taxes-whether on income, consumption, wealth, endowment or other tax bases-interfere with individuals’ pursuit of the good life. For any given level of revenue to be raised through taxation, the recognition and protection of a liberty interest in one type of activity will simply increase the liberty costs associated with unprotected activities. The liberal instinct to shield non-market activity from taxation does not reduce the liberty cost of taxation, but rather shifts it to those whose conceptions of the good life involve the use of markets. This is not to suggest that a concern for personal autonomy should not inform our choice of tax institutions, but rather that the question may ultimately be one of distribution. That is, in fashioning a tax system, how best can we allocate the benefit of being free from taxation's inevitable interference with personal autonomy?

In this article, I defend Charters of Rights and the practices of judicial review to which they normally give rise against a number of objections one encounters in public and academic discourse, most notably in the work of Jeremy Waldron. In answering Waldron and his fellow critics, I develop a “living tree” or “common law” conception of Charters and show how it can be used successfully to answer their most powerful criticisms.

Much of the work in contemporary jurisprudence is done on the assumption that legal philosophy should find the set of necessary and sufficient conditions that something must have in order to count as law. This essay challenges this view. It examines in detail two versions of this view: the first is the view that jurisprudence should find the necessary features of law and then, from among them, those that are “important” for understanding law. I argue that these two features are in tension with each other, and that there are good reasons for thinking that an account that tries to discover the important features about law will not limit itself only to those features that all laws necessarily possess. The second version is one that tries to discover what necessarily belongs to “our” concept (or practice) of law by looking at those features that participants in the practice of law deem most important about it. I argue that this argument is indeterminate because it has no non-circular standard of defining what belongs to “our” concept of law. I then offer an alternative role for jurisprudence that focuses on trying to solve certain puzzles about law, such as explaining how a social practice can create binding norms. Answering questions of legal philosophy does not require finding what features all laws necessarily possess while maintaining a role for jurisprudence alongside other interdisciplinary approaches to law.

Many human rights charters contain prohibitions on inhuman and degrading treatment of prisoners and detainees. Terms like “inhuman” and “degrading” are difficult to interpret, but they are certainly not meaningless. It is important to attend to attend to the meanings of the words themselves, as well as to the decisions that courts have made about particular practices. Reflection on the meanings of these highly-charged terms reveals important complexity, which we can unpack in a way that enables us to better focus our debate about the proper treatment of prisoners and detainees. Focusing on the ordinary-language meaning of evaluative terms like “inhuman” and “degrading” also helps us approach the relation between rules and standards in law more thoughtfully, as we see why it is important not to let the evaluative meaning of these terms be superseded by the definitions established in the course of their application.

This article presents the argument that our understanding of the nature of the relationship between modern constitutionalism and religious difference has suffered with the success of the story of legal tolerance and multiculturalism. Taking up the Canadian case, in which the conventional narrative of legal multiculturalism has such purchase, this piece asks how the interaction of law and religion - and, in particular, the practices of legal tolerance - would look if we sought in earnest to understand law as a component, rather than a curator, of cultural diversity in modern liberal societies. Understanding the law as itself a cultural form forces us to think about the interaction of law and religion as an instance of cross-cultural encounter. Drawing from theoretical accounts of cross-cultural encounter and philosophical literature about the nature of toleration, and paying close attention to the shape of Canadian constitutional doctrine on religious freedom (law’s rules of cross-cultural engagement), this paper suggests that legal toleration is far less accommodative and far more assimilative than the conventional narrative lets on. Influential alternative theoretical accounts ultimately reproduce this dynamic because they similarly obscure the role of culture on both sides of the encounter of law and religion. Indeed, owing to the particular features of the culture of law’s rule, even the more thickly cultural "solutions" proposed in dialogic theory ultimately fail. In the end, this article exposes the very real cultural limits of legal tolerance.

Third World Approaches to International Law (TWAIL) scholarship provides a trenchant critique of the contemporary international law regime, using concrete historical and cultural evidence to demonstrate that the central doctrines of international law are highly Eurocentric and, therefore, not representative of the values and beliefs of a large portion of the world’s population. Nevertheless, there is almost no recognition of TWAIL’s intellectual contribution in mainstream international law scholarship. It is only in rare cases that mainstream scholars make the effort to directly respond to Twailian critiques. And in these rare cases, TWAIL is positioned as just another “radically critical” post-modern approach to international law. The marginalization of TWAIL scholarship is frustratingly counterproductive, as recent developments in the international order offer unparalleled challenges for populations in the South. Further, Southern perspectives are conspicuously absent from the mainstream international law discourse. TWAIL seeks to represent marginalized world-views and incorporate them into this discourse. My project is to reinterpret the insights of TWAIL so as to make them more palatable to mainstream scholars with modernist theoretical commitments. I will argue that many TWAIL scholars should be understood to subscribe to the same methodological commitments as “naturalized epistemologists” because they are interested in the causes of belief-claims, prioritizing an etiological examination of international law doctrine and scholarship over substantive analytical critique. More specifically, TWAIL promotes a suspicious stance towards belief-claims that have problematic, hidden, and/or misrepresented foundations. I will conclude that TWAIL’s critique of international law is most reminiscent of a “hermeneutics of suspicion,” which is the interpretive approach famously embraced by Marx, Nietzsche, and Freud. Such an approach, while undeniably critical, falls squarely within the modernist philosophical tradition. According to TWAIL, practitioners and scholars of international law should engage in self-reflection and critically examine the epistemological foundations of their beliefs and doctrinal claims. If such practitioners and scholars agree that international law should be based on intellectual and moral commitments that reflect its global subject matter and not just its European history, then there is significant space for the insights of TWAIL in mainstream scholarship.

Criminal law defences may be classified as either “justification” or “excuse”. A justification negates the wrongfulness of the conduct. The following are considered justifications: law enforcement, self-defence and lesser evils. An excuse, on the other hand, negates only the culpability of the actor for wrongful conduct. Under special circumstances, such as extreme pressure, it is considered unfair to blame the actor for the violation of the norm. Insanity and duress are typical excuses.

The focus of this paper is not on the person, but on the work of Carl Schmitt, in particular the significance of Schmitt's concept of the political for an understanding of his legal and constitutional theory. Let me start with a short personal memory. When I was a third year law student, I read Carl Schmitt's Constitutional Theory. I came across the formulations that the state is the political unity of a people and that the rule of law component in a constitution is an unpolitical component. I was puzzled by these two remarks. I had learned from Georg Jellinek that the state, from a sociological perspective, is a purposeful corporative unit and, from a legal perspective, represents a territorially based corporation. I had also gathered some knowledge about “organic” state theories, especially that of Otto von Gierke who considers the state an organism and a real corporative personality rather than a mere legal fiction. On the basis of these theories, I felt unable to understand Schmitt's point that the state is the political unity of a people, because in those theories the political aspect is largely missing. It was only later that, by reading and studying Carl Schmitt's essay The Concept of the Political, I gradually learned to make sense of the above remarks. Thus I have discovered that that essay, and the understanding of the political elaborated in it, contains the key to understanding Carl Schmitt's constitutional theory in general. I would now like to explain this.

In “Why Should Liberals Care about Equality?,” Ronald Dworkin distinguishes between two forms of liberalism, one form based on neutrality, and the other one based on equality. As Dworkin explains it, proponents of both forms argue against legal incursion into private morality, and argue in favour of increased sexual, political, racial, and economic equality; however, they disagree about which of these traditionally liberal values is the fundamental one, and which is its derivative. Liberalism based on neutrality takes as its fundamental value that one which holds that government must remain neutral with respect to moral issues, and it supports egalitarian measures only insofar as they can be shown to derive from that constitutive principle. For liberalism based on equality, the fundamental value is that one which holds that government must treat each of its citizens as an equal; egalitarian liberalism insists upon moral neutrality only to the extent that equality requires it.

No two names better recall the polarized character of political life in mid-century Europe than Carl Schmitt and Hannah Arendt. Like so many of his peers in the Weimar intelligentsia, Schmitt eagerly polemicized against the Weimar Republic and actively sought its destruction. In 1933, he sold his soul to the Nazis and soon became one of their most impressive intellectual apologists. In striking contrast, Arendt risked her life to help anti-fascists and fellow Jews struggling to escape Germany in the immediate aftermath of the Nazi takeover. Forced to join the ranks of the thousands of “stateless” persons stripped of their German citizenship by the new regime, she ultimately found her way to New York City and a stunning career as one of our century's most impressive critics of totalitarianism. While Schmitt would continue to seize every opportunity to belittle the achievements of liberal democracy, even after the establishment of the relatively robust German Federal Republic in 1949, Arendt refused to abandon her chosen Heimat, the United States, even in its darkest hours. For Arendt, Vietnam and Watergate offered indisputable proof that the republican legacy of the American founding demanded our critical loyalty, but hardly—as one can imagine Schmitt arguing—of the inevitability of senseless political violence and authoritarian government.

It is said that hard cases make bad law. But one of our tasks in jurisprudence is to consider the justification of legal institutions. If this enterprise is to be conducted in a spirit of argument rather than ideology, then hard cases—indeed the hardest cases—must be our primary point of reference. To undertake with any integrity to defend an institution, one must be willing to contemplate the existence of serious moral objections. In many cases, that involves confronting the possibility that the institution under discussion has an unacceptable impact on people’s lives—that it imposes unbearable costs, for example, or unacceptably constrains their freedom or their dignity. To defend an institution in an ideological way is to ignore or conceal such possibilities. Justification, by contrast, involves a willingness to confront the issue of unacceptable hardship. Its success (if indeed the institution is justified) turns on one’s ability to show that the hardship will not in fact occur, or that it is unavoidable or for some other reason not morally unacceptable in the circumstances.

Old wars about pornography and censorship have new armies in radical feminists. So Ronald Dworkin once remarked, defending the new relevance of his now classic liberal defense of free speech in his essay, ‘Do We Have a Right to Pornography?’ Dworkin was right about the new battles, but wrong about his argument, which on the new battle ground not only failed to justify the permissive conclusion he desired, but helped to justify the prohibitive conclusion he despised. Pornography’s traditional foes said pornography is immoral. Feminists said pornography is ‘the graphic, sexually explicit subordination of women through pictures or words’. Feminists said that pornography harms women, subordinates women, and silences women. In this context, Dworkin’s old anti-moralist defense of pornography missed its mark.

J.L. Austin is usually credited with having called attention to the existence of different kinds of defenses. His philosophical insights have inspired many legal commentators, especially theorists of criminal law. The contrast between justification and excuse forms the cornerstone of his thought. Austin’s most valuable contribution was to identify and explore the similarities and differences between justification and excuse. Yet a very important feature of these defenses as Austin conceived them is typically neglected by most of the scholarship that he inspired. Austin maintained that “few excuses get us out of it completely.” Clearly, he held the same view about justifications. But most of the subsequent work on justifications and excuses has treated each as complete defenses. A complete defense, by definition, precludes liability altogether. If the foregoing claim by Austin is correct, however, relatively few excuses (or justifications) are complete defenses. Those justifications or excuses that do not preclude liability altogether—which Austin believed to be the more numerous—might be called partial defenses. Partial justifications and excuses have received far less scholarly attention than those that result in acquittal. In this paper I hope to make some small progress in correcting this oversight.

This article explores Joseph Raz's concept of exclusionary reasons and attempts to explain how this concept fits into a general account of the authority of law. That account is elucidated and the concept of exclusionary force is considered in some detail. The article suggests that if ‘exclusion’ is read in a strong sense, it is extremely difficult to find examples of its existence. If though it is read in any weaker sense, it appears indistinguishable from the idea of ‘weight’. The article also considers the phenomenological, functional and ultimately, the existential reasons in favour of saying, as Raz does, that all legal authorities make their claims to authority in terms of exclusionary reasons. It is argued that this is both unlikely and unnecessary. The curious nature of exclusionary reasons is hence thoroughly unearthed.

Little about strict liability has evoked much agreement among commentators except for their opposition to it. Most but not all philosophers of law regard strict liability in the criminal law as unjust. To be sure, the opposition of commentators is highly qualified. Legal philosophers are more tolerant of strict liability in tort law than in criminal law, less vehement when punishments are relatively lenient, and sometimes prepared to allow the exigencies of law enforcement to override considerations of justice. These concessions, however, are made in a general climate of hostility to strict liability.