The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree constitutional interpretation. The only “living trees are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order.

In “Legal Theory, Legal Interpretation, and Judicial Review”, David O. Brink advocates a central role in legal interpretation for considerations of human purpose. He states:

“Subsidiarity” views of crime against humanity propose that state crime is at the core of the idea, thus necessitating a further level of authority. That proposal can be given a strong moral justification in terms of the enormous risks that arise from a state’s authority and territorial control. Discussions of crime against humanity by Larry May and Norman Geras, however, offer different views of the idea, May proposing that it be seen as group-based crime (in one or both of two senses), Geras proposing that it be seen as a serious violation of human rights. Those views are questioned on the basis of their fit with either the nature of the crimes involved or the moral basis of their condemnation, and the subsidiarity view is restated.

The three major normative theories of secession are just-cause theories, choice theories, and national self-determination theories. Just-cause and choice theories are problematic because they view secession in terms of the application of liberal theories of justice or a liberal principle of autonomy, without regard for the dynamics of nationalist mobilitization and national politics. National self-determination theories can be supported by a collective autonomy argument. This is related to a particular view of the relationship between collective self-government and territory.

Fundamental legal conceptions are considered in relation to the analytical concerns of Hohfeld and Bentham, and also in relation to the normative concerns of constitutional and common law protection of rights and liberties. The use of a square of opposition to expound fundamental conceptions is rejected in favour of “a triangle of possibilities”. It is argued that using this device helps to provide a clearer understanding of which conceptions may appropriately be recognised as analytically fundamental, and in turn avoids confusion over the normative treatment of practical situations that may arise through the designation of legal rights and liberties as “fundamental”. In particular, the nature of legal liberties, and the priority accorded to legal rights, are both questioned.

This article provides a scheme of intelligibility for correlativity, recognising its importance for analytical and normative aspects of legal relations. It considers a variety of types of normative correlativity, investigates the logic of correlativity, and distinguishes three forms of correlation involving legal rights. It undertakes careful re-examination of Aristotelian texts to reveal neglected or misrepresented insights, restores certain Hohfeldian distinctions, and argues for a more complicated relationship between correlativity and reciprocity than previously acknowledged. Specific sections employ the scheme to provide critiques of Weinrib’s use of correlativity in his understanding of private law as corrective justice, and Zylberman’s amalgam of reciprocal correlativity in his non-instrumental view of human rights. A brief concluding section notes the deep asymmetry of law and suggests an understanding of corrective justice based on asymmetry rather than equality. More speculatively, it raises doubts about the core conviction of Kantian thinking on legal and social relationships.

In an early review of the Verfassungslehre (1928), Margit Kraft-Fuchs criticizes Carl Schmitt's argument as circular and illogical. While claiming to establish an entirely new constitutional theory, not a general theory of the state, Schmitt in fact relies on a tautology and derives “an is from an ought”. Quoting Schmitt's argument in Der Wert des Staates und die Bedeutung des Einzelnen (1914) that “The mere actuality of power at no point provides a justification unless it assumes a norm by reference to which its claim is legitimated”, Kraft-Fuchs concludes that it is “astonishing he has forgotten this basic logical insight between 1914 and 1928.”

Jim Nickel has criticized the account of human rights Rawls gives in The Law of Peoples as “ultraminimalist” and as wrongheadedly grounded in an excessive desire to accommodate illiberal and nondemocratic polities and in a confused identification of human rights with the regulation of coercive intervention in the international order. I show that Rawls’s position is not “ultraminimalist” and, more importantly, that it is more complex and attractive than Nickel (and other critics) recognizes. Rawls distinguishes between the human rights necessary and sufficient to there to being no principled grounds for coercive intervention into a state and those necessary and sufficient to there being a principled ground to accord a state status recognition and respect in the international order. This distinction reflects a distinction in The Law of Peoples between two forms of liberal toleration: toleration as mere non-interference and toleration as recognition or status respect. I discuss the role of each in the law of peoples and show how each is both principled and liberal.

This lecture asks whether judges might sometimes be morally justified in covert law-breaking in the interests of justice, the rule of law or good governance. Many historical examples of this phenomenon, are provided, drawn mainly from the British legal tradition, but also from Australia, Canada, India and the United States. Judicial noble lies are distinguished from fig-leaves and wishful thinking, and the relative importance of logic and pragmatism in legal reasoning is discussed. After examining arguments for and against judicial subterfuge, it is concluded that in modern liberal democracies subterfuge is justified only to avoid extreme injustices or violations of the rule of law.

Although equating the duty of care in negligence with a duty to try to avoid negligent outcomes (i.e., a duty to act with reasonable care and with the view or intention of averting harming) has several theoretical and descriptive virtues – primarily offering a promising account of the (moral) responsibility-component in the negligence standard – it is an account that fails to capture the state of the law or to offer a compelling argument for revising the law. The better account of the duty of care is as a duty of reasonable conduct alone. The responsibility-component in the negligence standard does not, therefore, take the form of a duty to try. Alternatively, the responsibility-component is found in the conditions for being subject to the negligence standard: specifically possessing responsibility-capacities and the opportunity to exercise those capacities in compliance with the duty of care.

Joel Feinberg’s magnificent four volume work, The Moral Limits of the Criminal Law, represents a sustained and comprehensive argument regarding what conduct is appropriately regulated through criminal prohibitions and sanctions. Feinberg’s conclusions are essentially those of the Millian liberal: Conduct that causes harm or offense to others may be criminalized, but conduct that is harmful only to the actor or that is a harmless immorality may not be. Feinberg’s governing principle, however, is not Mill’s maximization of utility but is instead respect for individual autonomy. For Feinberg, respect for autonomy delimits the legitimate boundaries of concern with others’ conduct insofar as the concern is expressed through criminal prohibitions.

This paper replies to the criticisms raised by Eric Scarffe and Thomas Christiano against Dworkin’s philosophy of international law. While the former argues that Dworkin’s philosophy of international law boils down into some form of political realism, the latter upholds that Dworkin’s attempt to ground the legitimacy of international law on the states’ duty to improve their own legitimacy is insufficient to establish a solid foundation for international obligations. In my response to these critics, I hold that they are based on an uncharitable and implausible reading of Dworkin’s theory of international law, since Dworkin’s theses about the law, whether we are considering “municipal” or “international” law, only make sense if they are understood in an interpretive way. This is, I submit, the only way to avoid turning Dworkin’s assumption of the “unity of value” into an implausible metaphysical theory of natural law. Once we adopt Dworkin’s interpretive attitude, it becomes clear that the route taken by Dworkin in “A New Philosophy for International Law” was the only route that remained available for his interpretive account of political legitimacy and the foundations of law.

Can the law act as a catalyst to change minority practices that discriminate against women? Can civil law merely impose remedies from outside the minority culture or can legal mechanisms be devised which spur internal change? Theorists of gender and multiculturalism have argued that civil law can play a role in creating the conditions which allow, and indeed compel, cultural communities to engage in internal dialogue to transform their norms into more egalitarian ones. This article explores this thesis through considering the development of Canadian civil family law remedies to alleviate the plight of women whose husbands use their power to withhold divorce under Jewish law to extort advantages in civil divorce settlements. It considers whether the process of negotiating, drafting and implementing amendments to the Divorce Act has supported the renegotiation of norms in the Canadian Orthodox Jewish community regarding the issuance of divorce decrees, the development of novel solutions or the re-invigoration of traditional forms of religious legal authority. In particular, the article evaluates whether these civil law strategies have had the effect of generating the sort of transformative dialogue about norms envisioned by theorists of multiculturalism and gender.

Ronald Dworkin’s philosophy of law, in its mature version, is grounded in at least two central claims: first, a thesis about law and morality, which we might call the One-System Thesis; second, a thesis about how moral and legal propositions can be said to be true or false, which we might call the Interpretive Thesis. While the One-System Thesis holds that law and morality form a single system, the Interpretive Thesis makes two distinct claims: first, truth of interpretive propositions—such as moral and legal propositions—must be established from within the practice in which they figure; second, the soundness of an interpretive proposition is related to the purpose of the practice under consideration. Mark Greenberg’s Moral Impact Theory of Law accepts the One-System Thesis while rejecting the Interpretive Thesis. The Moral Impact Theory is a metaphysical theory of how moral facts rationally determine the content of the law. Its main contention is that the actions of legal institutions have an impact on the moral obligations people have in a polity, and the content of the law is made up of the moral obligations that result from the actions of such institutions. Greenberg assumes that moral facts pre-exist and have some metaphysical priority in relation to legal facts. Moral facts must be prior and independent from legal practice in order to play a part in the rational determination of the content of the law. The point of this paper is to offer a response to Greenberg. I argue that the One-System Thesis only should be supported if the Interpretive Thesis is correct, and that without the latter the former becomes an implausible version of natural law jurisprudence.

If there is one doctrine distinctively associated with legal positivism, it is the separability of law and morality. Both in opposition to classical natural-law thinkers and in response to more recent theorists such as Ronald Dworkin and Lon Fuller, positivists have endeavored to impugn any number of ostensibly necessary connections between the legal domain and the moral domain. Such is the prevailing view of legal positivism among people familiar with jurisprudence. During the past couple of decades, however, that prevailing view has come into question among some estimable legal positivists. In particular, Joseph Raz and his followers have queried the importance and the very tenability of an insistence on the separability of law and morality. The present article maintains that the traditional view of legal positivism is correct and that the recent skepticism about it on the part of some positivists is unfounded. When the notion of the disjoinability of law and morality is understood properly as a large array of theses, it proves to be resistant to the challenges that have been mounted against it.

The essay explores the question of whether people can have a right to common goods, such as the flourishing of their culture or national heritage. It first explains the concept of a common good and its distinction from other similar concepts, such as collective and public goods. Second, it argues that individuals ought not to have a right to common goods, unless a particular distributive principle applies to the good in question, and then the individual's right is the right to a certain share in that common good. Finally, the essay explores the question of how this analysis applies to group-rights, with respect to other groups and to members of the group itself.

The Stufenbaulehre is a central and founding element of the Pure Theory of Law (PTL).Most of the criticism of Stufenbaulehre targets the idea of the basic norm (Grundnorm), however unjustified. This criticism stems from a misunderstanding of the presumptive character of the basic norm and of the whole legal order. Others have criticised the relativisation of the difference between individual and general norms, Kelsen’s monism, and the determination of the validity of a norm by a single other norm. This can be refuted as well - either because their critique does not concern an essential part of Stufenbaulehre (monism), or because Stufenbaulehre can be saved by making a small modification to it. However, there is one lethal criticism. It concerns the founding thought of the whole Stufenbaulehre, i.e., the derivation of validity. In a law-making process, there is never a derivation of validity: the logical result of a law-making process is only a norm saying “The new norm ought to be valid.” Whether the new norm is in fact valid, is a different issue which is not dealt with by the PTL. This has serious consequences: Without this derivation Stufenbaulehre cannot survive, and without Stufenbaulehre, PTL cannot survive either. Some valuable parts of PTL might be used in other legal theories, but these are nothing but transplanted organs from the dead body of PTL whose heart-Stufenbaulehre-can no longer keep the body alive.

There are many versions of legal positivism; perhaps as many as there are legal positivists around. All the versions of legal positivism, however, subscribe to the so-called Separation Thesis. This thesis basically maintains that detenriining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Legal positivists differ, however, and quite substantially, over the appropriate interpretation of this thesis. The so-called ‘strong’, or ‘exclusive’ version of legal positivism maintains that moral considerations never determine the legal validity of norms. ‘Soft’ positivists, on the other hand, do maintain that there is a close relation between legal validity and morality, but they hold that this relation is, at best, a contingent matter; it does not derive from the nature of law or legal reasoning as such. Soft-positivists claim that moral considerations determine legal validity only in certain cases, namely, in those cases which follow from the rules of recognition that happen to prevail in a given legal system.

Legal orthodoxy has it that the wrong involved in breaking a promise, like that involved in breaking a contract, depends essentially on the making of a binding promise. It is in this sense sui generis. But philosophers are not so sanguine. T.M. Scanlon is the latest in a long line of moral philosophers who have sought to reduce the wrong of promise-breaking to a wider class of wrongs associated with a duty, variously formulated, not to disappoint the expectations one induces in another. I argue that Scanlon's theory founders on a logical impasse that plages all such reductionist accounts.

My contention in this paper is that many of our commonly accepted ideas about property are defective. But these deficiencies are not just simple, surface mistakes that could be cleared up easily. They stem from a flawed conceptual framework used in making sense of and justifying property relationships. I also contend that this flawed conceptual framework maintains property relationships that are unjust. These property relationships produce an unequal distribution of wealth, status, and power, as well as reduced opportunities for autonomy and self-development. This is unjust because, I believe, no satisfactory justification has been given for this inequality. Exposing some weaknesses of this conceptual framework is thus a step in promoting more egalitarian property relationships.