The following article begins by engaging in a debate with the literature on Carl Schmitt, a literature whose most obvious feature is its age. Nevertheless, the comprehensive engagement with Carl Schmitt's work which has appeared in the meantime has not in every respect advanced our knowledge in the area discussed in this article, because its attention is chiefly focussed on other matters. But that in itself indicates a problem.

In jurisprudence there is an orthodox position which stresses law’s rationality and coherence, and an unorthodox position which stresses law’s inconsistency and malleability. It is often assumed that you have to choose one and reject the other, but I want to consider the position that law cannot reject either orthodoxy or unorthodoxy as general accounts of law. This is not an attempt to produce a synthesis of the two accounts, or an attempt to say that each account is true of part of the law. Rather it is the claim that law is required to tell two incompatible stories about itself in order to do the important jobs assigned to it in Western pluralist societies. I argue that this jurisprudential position is advanced by Thurman Arnold, Oren Perez, Anthony Kronman, Karl Llewellyn and Stanley Fish.

Hans Kelsen’s critique of John Austin has so far attracted little attention among legal theorists. This article argues that Kelsen’s attack on Austin anticipated the key elements of Hart’s rejection of the Austinian conception of law as sanction-backed sovereign command. At the same time, the way in which Kelsen presents his critique of Austin’s conception of sovereignty reveals important differences in purpose and intention between Kelsen’s Pure Theory of Law and Hart’s legal theory. The Pure Theory of Law is animated by an ideal of legality that is alien to purely descriptive jurisprudential approaches in the Hartian tradition.

The article concludes that this difference between Kelsen and Hart merits further exploration and that it might help to show that the Pure Theory of Law is still relevant to contemporary legal theory.

Most common law jurisdictions require mistakes about self-defence to be reasonable. But there is a lively debate about whether reasonably mistaken self-defence should be regarded as excused or justified. On one view, reasonably mistaken self-defence is not justified but excused because the conduct is, all things considered, wrongful; on another view, reasonably mistaken self-defence is justified because the reasonable appearance of an attack gives one a right to respond. This paper argues in favour of the second view. When viewed through the lens of cases involving the defence of third parties, the first view leads to counter-intuitive results, and that the source of these results is the effort to characterize mistaken self-defence through conceptual rather than normative argument. Moreover, the second view is more compatible with both the blame-assigning and conduct-guiding aspects of criminal law.

Every country must allocate final decision-making authority over different issues/subjects within its boundaries. Historically, many scholars working on this topic implicitly assumed that identifying the features providing entities with justified claims for authority and the entities possessing those features would also identify which groups should have which powers (or vice versa). However, many candidate allocative principles select multiple entities as candidates for some sub-state authority and yet fail to explain which powers each should possess. Further work must explain which groups should possess which powers when and what to do when two groups can make equally-valid authority claims using the same principle. Subsidiarity, the principle under which authority should presumptively belong to the entity representing those ‘most affected’ by its exercise and capable of addressing underlying problems, is one of the few principles focused on identifying which groups should have which powers. Unfortunately, subsidiarity alone does not provide guidance on many issues/subjects. Useful subsidiarity-related guidance relies on balancing underlying justificatory interests, which do the real allocative work. Another allocative principle remains necessary. A deflationary account of subsidiarity’s allocative potential nonetheless provides insights into how to articulate a new principle and accounts of subsidiarity that can fulfill other moral roles.

Jeremy Bentham (1748–1832) was a life-long opponent of capital punishment. All told he left us three essays on the subject, dating from 1775,1809 and 1830, only the first and third of which have been published and subjected to critical analysis. In this article I am concerned with the unpublished manuscripts of 1809. Hitherto ignored by students of utilitarian legal philosophy, these papers contain what is perhaps Bentham’s most trenchant criticisms not only of capital punishment per se but also of the extensive discretionary powers which its administration made available to England’s magistrates. With legislators making increasing use of the penalty of death in the second half of the eighteenth century, magistrates felt compelled to grant reprieves to convicted capital offenders and to substitute lesser penalties as a matter of common practice. By the beginning of the nineteenth century, however, this manner of dispensing justice was an issue of some moment to law reformers of all persuasions, including the radical Bentham.

In recent decades, neo-republican philosophers have developed a theory of freedom as non-domination, which, they claim, is conceptually and analytically distinct from the “liberal” concept of freedom as non-interference. However, neo-republicans have intervened in constitutional debate almost exclusively in relation to structural issues of institutional competence, and have made little impact on the analytical jurisprudence of constitutional rights. While judicial review seems ill equipped to respond to the distributive dimensions of republican freedom, republicans like Richard Bellamy have argued that the whole edifice of countermajoritarian, strong-form judicial review is itself an affront to freedom as non-domination properly understood. Republican freedom, in this lens, is defined structurally, procedurally and politically rather than in relation to a definite set, concept or theory of rights that is put outside and beyond politics. And partly for this reason, there has been little commentary concerning how the theory of freedom as non-domination might inform constitutional-rights doctrine. This article will argue, first, that the neo-republican view can usefully inform constitutional-rights doctrine notwithstanding republican reservations concerning judicial power. Second, it will propose a number of specific ways in which the jurisprudence of constitutional rights might account for the central concerns of the republican idea.

The proportionality test is the subject of much debate, both in academia and in the legal community. In a recent article, Kai Möller presents a powerful defence of proportionality in reply to objections made against it. The reply is premised on a distinct account of proportionality, which has become prominent in recent writings of proponents of this test, and which is different from other more traditional accounts. Here I aim to clarify this change in the understanding of proportionality, its importance for the proportionality debate, and to offer a critique of it. This version of proportionality would sacrifice many important features of the rule of law, and, crucially, it would offer no guidance to judges, thus diminishing the likelihood of judges arriving at a reasonable solution to the case and fulfilling important values at stake in legal adjudication.

The purpose of this essay is to offer a reconstruction of Lon Fuller’s critique of Hart’s legal positivism. I show that contrary to the claims of Fuller’s many critics, one can derive from his work a clear and powerful argument against legal positivism, at least in the guise found in the work of H.L.A. Hart. The essence of the argument is that Fuller’s principles of legality posit that the same considerations that count for law’s excellence are relevant also for the determining what counts as law. I contrast this view with Hart’s legal positivism, which acknowledged that the principles of legality are relevant for law’s excellence, but considered them irrelevant for determining the question what counts as law. I argue that the positivist position is arbitrary, and - a point on which I focus - completely undefended. I draw from this point a more general challenge to Hart’s theory of law (as well as that of many of his followers), namely that though claimed to be a true theory of law, it has no resources to explain why this is so. I argue that Fuller’s theory does not suffer from this problem, because Fuller rejected a staple of contemporary jurisprudence - the separation of conceptual and normative jurisprudence.

In this article, I shall examine sexual orientation as a human rights issue. The reasons why discrimination on the grounds of sexual orientation should be considered an issue of human rights have been articulated by others, and I do not propose to repeat their arguments here. Rather, I seek to examine in a more critical way some of the analytical problems that may arise in fashioning human rights protection. While the substantive goals of human rights struggles are surely commendable—freedom from persecution and from invidious discrimination, or more positively framed claims to the means necessary to live a decent life—the discourse of rights has been the subject of critique, for example, by the Critical Legal Studies movement in the United States. Rights claims, it has been argued, reinforce the separation of the individual from community. The focus on abstract rights undermines the substantive claims of groups and individuals within society by reifying formal (but ultimately alienating) individual rights. Of course, the CLS critique itself has been subjected to sustained criticism, particularly from the schools of Feminist Legal Theory and Critical Race Theory (and the intersection of the two). The CLS attack on rights is criticized for its failure to recognize both the substantive and the symbolic impact of concrete rights victories. Furthermore, it has been argued that rights struggles can be contradictory and complex.

The idea that taxes involve the confiscation of private property is widely held in popular thinking and scholarly writing. This article challenges the libertarian foundations of this assumption by critically examining libertarian theories of private property and their implications for tax policy. Part II summarizes the leading libertarian theories of private property, reviewing John Locke’s argument in the Second Treatise of Government and Robert Nozick’s account in Anarchy, State, and Utopia. Part III examines the implications of these libertarian theories for tax policy, considering libertarian prescriptions for substantive tax measures as well as institutional arrangements that affect tax policy outcomes. Part IV criticizes libertarian theories of private property, casting doubt on tax thinking that relies on these libertarian foundations. Part V considers the implications of this critique for tax policy and tax scholarship.

Unlike those who read Fish as declaring that free speech is an illusion or incoherent, I argue that Fish provides a superior explanation of what makes free speech possible, and a more insightful description of what judges are doing when they decide cases under laws which protect it. In this paper I first identify the central philosophical commitment from which Fish derives most of his controversial positions. Next, I demonstrate how his position on free speech in particular flows from this central philosophical commitment. Finally, in the main section of the paper, I consider three serious objections to Fish’s analysis of free speech, and consider how Fish might respond to them. I seek to defend Fish's denial that the relationship between freedom and constraint is one of simple opposition; rather he claims that constraint is the precondition for freedom. He therefore sees all speech as made under conditions of constraint. He also sees a commitment to censoring some speech as inherently contained within any commitment to freedom of speech, and so toleration of all viewpoints is impossible. He denies that any free speech principle can be neutral regarding viewpoints, and he denies that any "free market of ideas" is without bias and exclusions. He therefore rejects the accounts given by American courts deciding cases under the First Amendment which stress a fidelity to neutral principle. Since there are no such principles in existence, such courts are really doing one of two things. Either they are pragmatically advancing a partisan agenda, and constraining some speech in a way which is obfuscated, or their false belief in the existence of neutral principles paralyses them in the face of danger and prevents them from performing this pragmatic exercise.

In November 1994 the Canadian government released its Immigration Plan for 1995 and an immigration and citizenship strategy mapping policy direction until the year 2000. This strategy, developed after extensive public consultations, was the government’s response to increasingly contentious public discourse about immigration. The 1994 document was the government’s attempt to reorient Canadian immigration law and policy. The 1996 and 1997 Immigration Plans, tabled in November 1995 and October 1996 respectively, are consistent with the five year plan announced in 1994, demonstrating that the change of direction set out in 1994 has met at least some of the government’s objectives.

This paper assesses the reorientation of Canadian immigration law contained in the 1995 Immigration Plan and accompanying documents. Much of the public debate about immigration concerns whether current immigration levels and policies are fair, or just. As Canada is a liberal society, it is appropriate to begin the search for standards of fairness—or justice—in liberal theory. But because liberal theory presumes a community and then explores theories of fairness and justice within that community, it does not yield a standard of justice which is useful for assessing changes in immigration law. Nor, I argue, can liberalism’s tenets be extrapolated to address this question. This conclusion leads to insights about the role of immigration law in liberal society and points to particular ways to assess this law. While other theoretical paradigms may contain ways of determining the fairness of immigration law, such paradigms are less useful in the Canadian setting, where liberal discourse is hegemonic and hence is the language in which debates about immigration law must take place to be immediately politically relevant. The first half of this paper examines liberal theory’s failure to address the justice of immigration laws, and evaluates attempts to extend classical liberalism to meet this challenge.

Automated decision-making takes up an increasingly significant place in the administrative state. This article presents a conception of discretion that is helpful for evaluating the proper place of algorithms in public decision-making. I argue that the algorithm itself is not a site of discretion. The threat is that automated decision-making alters the relationships between traditional actors in a way that can cut down discretion and human commitment. Algorithmic decision-makers can serve to fetter the discretion that the legislature and the populace expect to be exercised. We must strive to maintain discretion, moral agency, deliberative ideals, and human commitment through the system that surrounds the use of an algorithm and to develop a new expertise that can retain and exercise the expected discretion. Backing this argument are traditional legal constraints, public expectations, and administrative law principles, tied together through the organizing principle of discretion.

The dignity approach to racist hate speech regulation maintains that hate speech ought to be regulated because it impugns targets’ dignity and poses a threat to their equal treatment. This approach faces the significant causal challenges of showing that hate speech has the power to erode its targets’ dignity and that regulations can successfully protect that dignity. My aim is to show how a friend of the dignity approach can resolve these challenges. To do so, I borrow insights from the critical legal studies (CLS) approach to hate speech. Specifically, I argue that hate speech can erode its targets’ dignity 1) by constituting an act of discrimination, and 2) by enacting norms that call for treating targeted groups as inferior. Yet while I maintain that the CLS approach offers valuable resources for shoring up the dignity approach, I reject the CLS approach in favor of the dignity approach.

Why it is that the principle of freedom of religion, rather than a more general principle such as liberty or liberty of conscience, figures so prominently in our lived experience and, in particular, in the constitutional commitment to the free exercise of religion? The Paper argues, negatively, that the most prominent answers offered thus far fall short; and positively, that the principle of freedom of religion arises out of a thicker understanding of the much neglected relationship between religious liberty and democracy. Indeed, a proper account of the legitimacy of the democratic process. I argue, dissolves the mystery surrounding freedom of religion, and thus allows for an adequate justification of this principle. The thesis of this paper is that freedom of religion is a remedy that redresses the (warranted) exclusion of certain religious arguments from the democratic process. The redress is grounded in a republican concern for political self-determination while exclusion is prescribed by a liberal ideal of political legitimation.

Many contemporary Indigenous communities in Canada assert an ability to make fundamental authoritative decisions about what is acceptable use of their territories. I focus on the question of legal obligations that might befall the Crown in its relationships with these communities and their claims. I argue that any such obligations must be seen as culturally and contextually specific, not only in the sense that particular Crown obligations take on content and form within the context of the culture within which the Canadian legal system has emerged but also in the sense that this non-Indigenous culture and history generate the very meaning of the notion of ‘obligation’ here at play. This culturally determined meaning functions to make it extremely difficult to make sense of the notion the Crown actually has legal obligations in relation to Indigenous assertions of authority over territories. This suggests decolonization in this context should be focused on discursive colonization and its undoing. Along those lines I offer a sketch of what ‘legal obligation’ might mean in an Indigenous cultural-historical setting. Within this way of understanding the situation, addressing questions of Crown obligations would begin with consideration of Indigenous systems of meaning-generation. Analysis would focus on working out what it means within such normative worlds to determine a party has a legal obligation, and would then turn to what this has to say about legal obligations that might be understood to fall on the Crown.

I argue that while the Crown will almost certainly not respond to claims it has legal obligations within what it takes to be separate legal systems, describing the landscape this way paints a truer picture of the world as it presents itself. The landscape has been, and continues to be, one of distinct meaning-generating peoples, each determining what it understands such concepts as ‘legal obligations’ to mean and entail. The colonial agenda has been for many generations to deny the existence of Indigenous systems, to have Indigenous communities come to think of ‘legal obligations’ in ways colonial authorities determine. Decolonization – in this form – requires a backing out of these ways of thinking. This article clears away forms of thinking that obstruct our view, giving us all an opportunity to perceive the complex landscape we in fact inhabit.

This paper has four aims. First it distinguishes two kinds of philosophical accounts of the ‘formal’ features of rights: models and theories. Models outline the ‘conceptually basic’ types of rights (if indeed a given model deems there to be more than one), their differences, and their relationships with duties, liabilities, etc. Theories of rights posit a supposed ultimate purpose for all rights and provide criteria for determining what counts as ‘a right’ in the first place. Second, the paper argues that Monistic rights models (ones positing only a single basic type of right) are under-inclusive. They wrongly exclude and cannot explain relevant data, i.e., ordinary and legal linguistic practices. The third aim is to show that certain Pluralistic models are over-inclusive in terms of what they count as ‘rights’. Fourth, the paper begins to touch upon, but does not provide, criteria for determining what counts as ‘a right’. Two candidate factors will be addressed.

According to the conventional view, causal and moral responsibility have a strict hierarchical relationship. Determining causal responsibility comes first; then we sort through the factors to which we have assigned causal responsibility and determine which, if any, should be assigned moral responsibility too. Moral inquiry accordingly stands not only apart but also above causal inquiry. But I am going to argue that this way of looking at causal and moral responsibility is a mistake. Rather than being separate and independent inquires with different purposes and concerns, I am going to argue that finding causal responsibility actually entails finding moral responsibility even when there is no evidence of what we would call traditional fault. Indeed, I am going to argue we cannot find someone causally responsible without finding them morally responsible too.