The distinctions that may be drawn between self-defence, necessity and duress are interesting as a matter of theory, but may also be important in practice. In some jurisdictions, for example, duress and necessity are no defence to murder whereas self-defence is a defence available in principle to all crimes. In such jurisdictions, in homicide cases, the point at which one reaches the boundaries of self-defence and enters upon the terrain of necessity may thus be of crucial significance. Drawing on Suzanne Uniacke’s theory of self-defence, I would like to suggest that each defence can be distinguished by a different key issue. In necessity cases, the key issue is the moral imperative to act: what matters is whether in the circumstances it was morally imperative to act, even if this might involve the commission of wrongdoing, in order to negate or avoid some other evil. In duress cases, the key issue is the personal sacrifice D is being asked to make: should D be expected to make the personal sacrifice involved in refusing to give in to a coercive threat, rather than avoid implementation of the coercive threat by doing wrong? In self-defence cases, the key issue is D’s legal permission to act: where V unjustly represented a threat to D (normally, although not exclusively, through his—V’s—conduct), the question is whether necessary and proportionate steps were taken by D to negate or avoid the threat. For, D has a legal permission to take necessary and proportionate steps to negate or avoid an unjust threat, even if (exceptionally) these involve the use of lethal force. So baldly stated, the differences between the defences may seem obvious. Few common law jurisdictions, and few commentators, however, have appreciated the full significance of the differences, as we shall shortly see.

Barbara Fried takes the view that uniform taxation—that is, a single rate applicable to all income levels—cannot be defended on any grounds of justice. She goes further by saying that, of all possible rate structures, it might be “the hardest one”? to ground in “a”? theory of fairness. Using the contractarian-constitutional perspective advanced by John Rawls and James Buchanan, this article argues that tax uniformity can be seen as a requirement of justice. After modelling how the political world realistically decides to distribute tax shares (self-interested parties act under a majority constraint), I show how the uniformity principle could emerge from the constitutional contract. In other words, rational individuals would choose uniformity as a procedural constraint under a “veil of uncertainty”?; that is, with limited knowledge regarding their positions under the future application of the rule. Moreover, I elucidate how the uniformity requirement integrates generalized criteria of fairness and efficiency into fiscal politics as it precludes fiscal exploitation and constrains majorities, and their most influential subgroups, to opt for policies in the direction of the Pareto frontier, and as such promotes outcomes acceptable to all participants.

In his 1972 paper commissioned by the Inquiry on the Position of the French Language and on Language Rights in Quebec, Professor Francois Chevrette questioned the legal significance of the notion of “collective rights”:

After two decades of decline and indifference in the Anglo-American world, the subject of taxing inherited wealth has recently begun to resurface. In the past five years, the number of books and articles on the topic has shown a noticeable increase. And in Ontario, Canada’s most populous and industrialized province, the unexpected election of the New Democratic Party in September 1991, promising to reintroduce a provincial succession duty, has put the issue back on the political agenda.

This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that methodology is not a resource capable of offering an independent assessment of the merits of competing theories.

Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.

A number of ancillary matters are discussed in the essay including: semantic (and metasemantic) approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law's Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz's split theory of legal reasoning and law.

In this paper, we argue that to properly understand our commitment to a principle of free speech, we must pay attention to what should count as speech for the purposes of such a principle. We defend the view that ‘speech’ here should be a technical term, with something other than its ordinary sense. We then offer a partial characterization of this technical sense. We contrast our view with some influential views about free speech (due to Greenawalt, Cohen, and Sunstein), and show that our view has distinct advantages. Finally, we consider racist hate speech. Here, we argue that if certain theorists (e.g., Lawrence) are right about what some racist hate speech does, then such speech should fall outside the scope of the free speech principle, and so, should be as regulable as any non-speech action.

The problem of what property is or should be can take many different forms. The debate can focus on what kinds of powers or entitlements should flow from defining an object as someone’s property, or what the grounds are for limitations on those powers and entitlements. One can ask whether the right to property is the sort of right that should be treated as a constitutional right. One can focus on how to define the contours of a particular kind of property, like land or copyright. Or one can ask what sorts of things should be treated as property. And in fact a legalregime of property rights cannot avoid at least some of these questions; they are entailed in the task of defining and subtly redefining property that is inherent in the ongoing process of adjudication.

In my article “Legal Theory, Legal Interpretation, and Judicial Review” I tried to do three main things. First, I tried to establish a link between familiar issues within legal theory about the nature and determinacy of the law and familiar issues within constitutional theory about the scope and record of judicial review via their common dependency on assumptions about the nature of legal interpretation. Second, I argued that a proper theory of interpretation has at least two important components: a theory of the semantics of legal terms and a theory about how best to characterize the purposes or intentions underlying legal provisions. Third, I sketched my own account of these two components of legal interpretation and then explored their implications for these familiar disputes within legal theory and constitutional theory. In particular, the semantic claims that I outlined require us (a) to distinguish between the meaning or reference of legal terms and people’s beliefs about the extension of those terms and (b) to rely on theoretical considerations, of various kinds, in ascertaining the extension of general terms occurring in legal provisions. The account of underlying purpose that I sketched requires legal interpreters to identify the purpose of a legal provision with the abstract values that the framers of that provision sought to implement, rather than with the specific activities that they sought to regulate, and then to determine the extension of these values (i.e., the activities that these provisions, properly understood, do regulate) by appeal to theoretical considerations about the nature of these principles and policies. These interpretive claims, I argued, tend to vindicate a belief in the determinacy of the law in hard cases and the style, if not the content, of the Court’s exercise of judicial review in cases concerning individual rights, against worries that in these cases it has exceeded the scope of legitimate judicial review.

This article examines and criticizes the conventional evidence doctrine and its core principle (albeit with exceptions) of legally unregulated fact-finding. New foundations for evidence law are offered that reflect a principled allocation of the risk of error in conditions of uncertainty. Such conditions are present in virtually every litigated case. This article opposes the doctrine of ‘free proof’. That doctrine underlies the current flowering of discretion injudicial fact-finding and is responsible for the ongoing abolition of evidentiary rules. The evidence law theory developed in this article is of course itself theory-dependent. Far from claiming the theory here is uniquely correct rather than simply valid, I shall be satisfied by its survival as yet “another view of the Cathedral”. Nonetheless, evidence law as conventionally portrayed can hardly be compared with Monet’s Cathedral. It is conspicuously more like Pisa’s Leaning Tower. This article aims at returning the leaning tower of evidence law to an upright position.

This paper looks at the contemporary debate over investigative torture in liberal democracies besieged by terrorism, from the viewpoint of the state leader, politician, judge or individual interrogator, called upon to make life-and-death decisions. It steers away from the classic debate between utilitarians and Kantians regarding moral justification, and, following Michael Walzer presents the issue as a specific case of "the problem of dirty hands in politics". Contra Walzer, the paper suggests, among other things, that the notion of dirty hands functions not only within moral theories that include absolute prohibitions but also within consequentialist theory, and that it is therefore far wider, practically illuminating and more applicable than Walzer originally assumed. Later it addresses Alan Dershowitz’s controversial suggestion requiring judicial "torture warrants", and argues that this too should be viewed in light of the notion of dirty hands rather than within the conventional debate over justifications. Finally, it suggests that, while torture may be morally unjustifiable on anything but purely consequentialist grounds, circumstances may offer the individual decision maker an excuse, rather than a justification, for resorting to torture under very restricted conditions.

Most liberal democracies exhibit cultural pluralism, that is, citizens of the same country belong to various cultural communities, and so speak different languages, read different literatures, practice different customs. Most contemporary liberal political philosophy, on the other hand, assumes that countries are “nation-states”. Citizens of the same state are assumed to share a common nationality, speak the same language, develop the same culture. My concern in this paper is with how liberals have adapted their principles to deal with cultural pluralism.

This two-part article addresses the “Who?” question in the hate speech debate: namely, which characteristics, social identities or statuses should or should not be treated as protected characteristics within a body of hate speech laws? Using United Kingdom incitement to hatred laws as a focal point, the article outlines and critically appraises five broad approaches to specification. Part 1 deals with consistency specification, which highlights norms of consistency both within incitement to hatred law itself and in relation to other laws, practical specification, which focuses on the ostensible goals or apparent aims of incitement to hatred laws, and formal specification, which looks at the formal qualities of the characteristics themselves and to the different forms of people’s relationships with those characteristics. And Part 2 considers functional specification, which concentrates on the underlying or real functions, purposes or objectives of incitement to hatred laws, and democratic specification, which appeals to democratic procedures as well as to democratic values, norms and principles that speak to the proper scope of incitement to hatred laws. Along the way I shall also critically assess a range of substantive arguments about which particular characteristics should or should not be covered by incitement to hatred laws given the aforementioned approaches. My main conclusion shall be that each of the approaches has its strengths and weakness and that, partly because of this, no single approach is adequate by itself as a tool for specifying the proper scope of incitement to hatred laws, but also, by the same token, no approach should be ruled out entirely. Instead, the best strategy is one that combines together all five approaches in reasonable ways given the law, the characteristic and the context.

In a recent paper in the Yale Law Journal, Malcolm Thorburn argued that to enjoy a justificatory defence in the criminal law is to have a normative power (more precisely, a measure of authority) that is exercised in the circumstances which give rise to the justification. He also argued that where such powers are conferred on private citizens, those citizens should be understood as acting as public officials pro tempore when they exercise them. In this extended reply, I resist both propositions and reply to some of the criticisms that Thorburn makes of my own rival views. I also take the opportunity to explore, philosophically, some of the criminal law relating to consent, self-defence and arrest, and to discuss the connections between the debate over the nature of criminal-law justifications and the debate over the nature of law.

This paper argues that constitutionalism raises some serious concerns of moral legitimacy. Following a preliminary outline of the main features of constitutionalism, the paper presents some of the main moral concerns about the legitimacy of constitutions. It then considers in detail a number of arguments which purport to answer those concerns, arguing that they all fail to meet the challenge. The paper concludes with a brief outline of some of the moral implications of this failure and some suggestions for reform.

The traditional philosophical justifications for copyright policy fail to account for current expansionary trends. The proprietary logic of contemporary copyright policies is justified on neither utilitarian nor rights-based grounds. Instead, copyright developments are located within the broader framework of commodification and the logic of capital itself. Since copyright law has been outpaced by a technology that undermines both the legal framework and the underlying economic theory on which it is based, a critical theoretical framework rooted in political economy is needed to harmonize the use and dissemination of information with the developing productive forces in society. Central to this framework is the contradiction between use-value and exchange-value, which is inherent in every commodity. This tension, which is particularly acute in the case of the information commodity, becomes sharper with the use of new technologically enabled exclusion mechanisms, as well as with various policy initiatives that seek to expand the duration, scope, and intensity of the copyright monopoly. Reconceptualizing copyright theory through the lens of critical political economy will help raise issues that are often overlooked in the current policy environment, and should decrease the acceptance of traditional justifications without considering all of the policy alternatives.

Substantive theorists of secession face a problem explaining why the international community ought on their view to withhold recognition from secessions which involve a loss in terms of the substantive criteria they privilege; this is so because the normal electoral politics giving rise to such a loss should not in their opinion meet with any adverse international reaction. The substantive theory of David Miller uses criteria for the legitimacy of secessions which give rise to strangely amoral consequences. A procedural theory of secession is to be preferred on both moral and pragmatic grounds; this is one which that countenance secession when appropriate procedural hurdles are cleared, regardless of the substance of the claims put forward by secessionists to justify secession.

The justification of the reasonable doubt standard has been hotly debated in recent years. Deontologists—including retributivists—have generally defended the standard, whilst consequentialists have generally argued for a lower standard of proof. Captivating arguments have been produced from both sides. The paper narrates this debate through a dialogue between ideal representatives of these different camps. In doing so, it recasts—and, hopefully, improves—some of the arguments presented thus far. Then, the paper introduces a new participant in the debate, the Intermediary. The Intermediary is under the impression that the debate has reached an impasse, due to fundamental moral disagreements between the parties involved. Therefore, she presents them with a challenge: to find a common ground that allows the parties to justify to each other the choice of a standard of proof, notwithstanding their different basic moral commitments. The Intermediary takes up this challenge, and provides a justification for the reasonable doubt standard based on the value of respecting defendants and on rules of instrumental rationality.

Political authorities claim to be able to impose moral duties on citizens by the mere expedient of legislating. This claim is problematic -- in fact, among theorists, it is widely denied that political authorities have such powers. I argue that the legitimacy of political authority is not contingent upon the truth of its claim to be able to impose moral duties by mere legislation. Such claims are better seen as exercises of semiotic techniques to alter social meanings. These alterations serve to facilitate desirable social change that may not have been antecedently obligatory because of the nonfulfillment of a compliance condition, which normally attaches to any "fair-play" duty. Where political authority uses the semiotic technique of announcing a legal -- and by implication moral -- duty, thereby altering social meaning as a means of bringing about the satisfaction of a compliance condition, it makes a claim whose literal falsehood (if false it be) does not derogate from the authority’s legitimacy.

The Article examines the wisdom of loyalty oaths as a legal institution in contemporary liberal democracies. First, using comparative analysis the Article highlights the growing global interest in loyalty oaths. Second, based upon historical evidence the Article explores the functions of loyalty oaths and assesses their role. Third, through using legal analysis the Article challenges the validity of loyalty oaths and identifies three fundamental problems related to their content and form: the rule of law, freedom of conscience, and equality.The Article reveals liberal concerns associated with the added value of the duty of “loyalty to the law” (allegiance), as distinct from the duty to “obey the law” (obedience). It presents an ongoing tension between loyalty and liberalism and argues that the more loyalty liberal democracies demand, the less liberal they become. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests that liberal states should abandon them as a legal institution.

In the most general terms, this article focuses on the tension between competing justifications of intellectual property. Section I examines the nature and definition of economic pragmatism and argues that, while economic pragmatism comes in many flavors, each is either unstable or self-defeating. Section II advances the view that Anglo-American systems of intellectual property have both theoretical and pragmatic features. In Section III a sketch of a theory is offered--a theory that may limit applications of economic pragmatism and provide the foundation for copyright, patent, and trade secret institutions. To be justified--to warrant coercion on a worldwide scale--systems of intellectual property should be grounded in theory. Intellectual property rights are, in essence, no different than our rights to life, liberty, and tangible property. Intellectual property rights are neither pure social constructions nor bargains without foundations.