No one has ever adequately described, either in poetry or in private conversation, what the very presence of justice or injustice in his soul does to a man, even if it remains hidden from gods and man....

In a well-known article, Duncan Kennedy has stated that the central problem for law is its treatment of the fundamental contradiction of our condition. On the one hand we are dependent on others for protection against destruction and for the fullest realization of our sense of ourselves; on the other hand we recognize in others a threat to our own well-being. Kennedy regarded the dilemma “that relations with others are both necessary to and incompatible with our freedom” as the essence of every legal problem, and he ascribed to the liberal conception of law the historical function of dressing up as rational or natural the structures of bondage that emerged as its particular resolutions. Kennedy’s contradiction invokes the recurrent tension between the notions of liberty and community that supply traditional vantage points for the analysis of social and political relations. The reconciliation of these notions poses an enduring philosophical problem, and one need not agree with Kennedy’s unflattering assessment of the law’s function to realize that it is a problem in which law too has been centrally implicated.

Rhetoric in praise of “our adversary system” flows freely in the prose of many legal insiders. But unexamined rhetoric, like self-praise, is of itself of little recommendation.

I will here (I) state and explain the four defining characteristics of our adversary system: (A) formal proceedings, (B) partisan presentation, (C) a neutral, passive fact finder, and (D) principles of professional responsibility. I will then (II) state, explain, and analyze critically the most common justifications advanced in defense of our adversary system: (A) the truth rationale, (B) the rights rationale, (C) the autonomy rationale, (D) the lawyer as friend rationale, (E) the ritualistic function rationale, (F) the dispute rationale, and (G) the pragmatic rationale. I conclude (III) that to date no convincing justification has been advanced which argues persuasively that our adversary system has independent value or that it serves important societal objectives better than other existing or possible legal systems.

Both the history of tort law and the recent theoretical literature on the subject suggest that there are two intellectually tenable and more or less equally respectable answers to the question of what should be the general standard of liablity in tort, namely fault and strict liability. Each is generally thought to have represented, at one time or another, the dominant approach of the positive common law. Each has its modern theoretical proponents: a fault-based approach has been argued for on grounds of economic efficiency by Richard Posner, for example, and on grounds of individual moral right by, among others, Ronald Dworkin and Ernest Weinrib; strict liability, on the other hand, has received an economic defence in the work of Guido Calabresi, and a rights-based defence in the writings of Richard Epstein. Each of these theorists has felt compelled not only to offer positive arguments in favour of fault or strict liability but also to answer the intellectual case, whether perceived as being founded on a conception of efficiency or of individual rights, for the rival approach.

When Georges Forest challenged the validity of Manitoba’s Official Language Act in 1976, he opened up the larger issue of the status of the province’s English-only legislation. The courts had little difficulty in concluding that the Act, which purported to make English the only language used in the courts and legislature of Manitoba, violated s. 23 of the Manitoba Act, 1870. This left open the fate of legislation enacted over the preceding ninety years in breach of the obligation to legislate in both French and English. Prima facie, the natural remedy, in the Canadian constitutional context, would be to declare such unconstitutional legislation invalid and therefore of no force and effect. But this would have left the province with virtually no statutory law. To avoid this result the Manitoba Court of Appeal decided that s. 23 is directory rather than mandatory. This decision was appealed to the Supreme Court of Canada. At about the same time the federal government exercised its power under the Supreme Court Act to refer these remedial issues to the Court for its legal opinion. In Reference Re Language Rights under the Manitoba Act, 1870, the Court disagreed with the Court of Appeal’s classification of s. 23 as merely directory, but was equally troubled by leaving Manitoba without any statute law. Therefore, it declared all Manitoba’s statutes since 1890 to be invalid, but deemed the rights and obligations arising under them to be temporarily in force until the province could reasonably be expected to comply with s. 23. In order to reach this unusual result the Court relied on the doctrine of the rule of law. The constitutional remedies issue posed by this case is probably the most challenging that the Canadian courts have ever faced. The Supreme Court’s approach reveals important underlying presuppositions which go unnoticed in less difficult cases.

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.

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.

From earliest times it has been recognized that there are situations in which it is inappropriate to hold someone criminally liable despite his apparent violation of the law. Such situations are said to excuse the accused from his wrongdoing. In the Nichomachean Ethics, for example, Aristotle claims that “any sensible man” would throw another’s goods overboard in a storm if such an action was necessary to save both himself and his crew. And in Leviathan, Hobbes remarks that “If a man by the terrour of present death, be compelled to doe a fact against the Law, he is totally Excused; because no Law can oblige a man to abandon his own preservation”.

“A free and democratic society” was declared to be the aborescent garden in which the Canadian Charter of Rights and Freedoms was planted in the spring of 1982. Branches of that new vigorous constitutional tree are now rapidly reaching out from many sections of the Charter. They will develop as nature and nurture allow; and provided they do not grow to obscure the sun or deplete the richness of the soil which the garden requires if it is to flourish, Canadians may one day come to

As the Writ System that prevailed in England until the nineteenth century defined particular rules and procedures for each Form of Action, so today our modern causes of action take to themselves a host of idiosyncratic details. Until recently the common law had long conceived of tort and contract law not as parts of a general law of obligation but as separate bodies of rules divided by a boundary wall that kept each from invading the territory of the other. New developments in the law have breached this wall in places and allowed tort to intrude into domains traditionally ruled by contract. But this process is far from complete, and many differences still remain between actions in contract and tort.

Recent work in legal ethics has raised the question of whether lawyers, in performing certain kinds of actions otherwise criticizable on moral grounds, can escape such criticism by appealing to the role they occupy in the legal system. Such actions include but are not limited to “gray-mailing”, making truthful opposing witnesses look like liars, defending criminals believed to be guilty, and defeating just claims on technicalities. Often, the question has turned on whether the adversary system of which lawyers are members is itself a morally worthy system. And depending upon the answer to this question are the answers to a number of related questions. Of these, the most widely discussed is whether and to what extent a lawyer should respect a client’s confidences.