The idea of universal liberal legal norms has long been under attack from a variety of sources. One of the most sustained and sophisticated philosophical versions of such an attack is found in the work of Martin Heidegger. His argument from the social embeddedness of the self to the ultimate contingency and groundlessness of any claims of normativity has been highly influential across a number of fields. This paper argues that legal theorists who wish to contest such a view should look to the work of philosopher Emmanuel Levinas. In his critique of Heidegger, Levinas affirms the significance of the human beyond the particular context in which we find ourselves embedded. Levinas wrote very little about law; his main focus was on ethical responsibility and the claim that an “other” makes on me. I argue that legal responsibility is fundamentally different, concerned instead with the claims that a self can make on others. Drawing upon Levinas’ understanding of the self as constituted through ethical responsibility, I argue that a Levinasian account of justice can support liberal-democratic norms such as freedom, equality and dignity. Indeed, Levinas himself endorsed universal human rights and even indicated a strong affinity with Kant’s idea of justice. What he denied, however, was that justice is a fully rational and coherent concept. I argue that this does not render justice incoherent or call into question the basic status of the norms of justice. Rather, a Levinasian account of justice shifts the emphasis to the community practice of reasoning about universal norms, a practice that is never complete. I further suggest that such a practice of reasoning should be familiar to lawyers as it bears a strong resemblance to common law reasoning.

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.

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.

The new classical natural law theorists have been decidedly skeptical about claims that non-human animals deserve serious moral consideration. Their theory features an array of incommensurable, nonfungible basic aspects of welfare and a set of principles governing participation in and pursuit of these goods. Attacks on animals’ interests seem to be inconsistent with one or more of these principles. But leading natural law theorists maintain that animals do not participate in basic aspects of well being in ways that merit protection, that the so-called “argument from marginal cases” is unsuccessful as a basis for claims that animals have moral standing, and that affirming that animals have rights leaves one with no basis for maintaining that humans do as well. In response, I suggest that animals can be understood to participate in some aspects of well being, defend the argument from marginal cases, and offer reasons why we might believe that affirming that animals have rights does not undermine the claim that humans have rights.

Jefferson appears to have conceived of natural law rather differently from his predecessors - namely, Saint Thomas Aquinas, Richard Hooker, Hugo Grotius, Samuel von Pufendorf, John Locke, and, among others, William Blackstone. This particular pedigree looked to divine decree or moral order to anchor natural law philosophy. But Jefferson’s various writings, most notably the Declaration and Notes on the State of Virginia, champion the thinking of a natural historian, a man who celebrated reason and scientific method, who extolled fact over fancy, material over the immaterial, observation over superstition, and experiment over divine revelation. They reveal, in other words, an Enlightenment homme du monde, a veritable encyclopedia of knowledge, able to discourse on any number of topics and to confront, as it were, his overseas counterparts, George Louis Leclerc and Comte de Buffon. Jefferson’s jurisprudence pivots on the dual valence of law and science. Jurisprudes have mostly ignored the sometime symbiotic relationship of law and science, just as they have downplayed or altogether ignored Jefferson’s unique contributions to legal philosophy. How does Jefferson’s natural philosophy conceptualize law? Science is all about studying objects and predicting their behaviors. If law is more than bills or statutes or glorified pieces of paper - if it is intangible but somehow immanent - how does one collect or observe it in nature? What is its ontology? Its epistemology? How do we discover it? How do we experiment with it? In what way is it, as Jefferson apparently believed, innate to humankind? This article will consider all of these questions while arguing for the inclusion of Jefferson into what I call the “natural law canon” of jurisprudence. I submit that Jefferson’s ideas about nature are tied to his ideas about reason and that his scientific approach to jurisprudence was not only innovative but nearly unprecedented. I have divided the article into two sections, the first dealing with Jefferson as a counteractive force to the positivist jurisprudence of Jeremy Bentham and John Austin, and the second dealing with such issues of materiality, reason, and experiment that make Jefferson’s jurisprudence truly distinctive. I am less concerned with tracing snippets of Jefferson’s writing back to Newton’s precise works or quotes than I am with demonstrating how Jefferson’s jurisprudence appropriates science, what makes that appropriation unique, and why that appropriation matters to a 21st century audience. These concerns alone should merit Jefferson’s inclusion in jurisprudence textbooks.

The relationship between possibility / impossibility and attempts is complex. Accounts of the relationship are often marked by a confusion that serves to distort our understanding of the nature of attempts as such. It will be argued below that impossibility is irrelevant to an understanding of attempts. This is not just to say that impossibility should not affect our view of how blameworthy certain defendants are. It is rather to say that the ‘impossibility’ referred to in the context of attempts is just not aboutattempts at all. In contrast, possibility is relevant to an understanding of attempts but its relevance is found to be universal and no normative distinctions among attempts can be made on the basis of possibility. If it can be shown that impossibility is a concept that does not belongtoattempts then it follows that attempts which are treated as different to ‘central cases’ of attempts in virtue of impossibility either, (a) are not different at all or, (b) are different for reasons other than impossibility. If some attempts belong to category (b) then it may be considered that the equal blame that is ordinarily taken to survive impossibility, does not survive these other reasons.

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.

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.

Does the Internet offer the promise of a newly empowered, egalitarian public sphere more completely informing the institutions of representative democracy through an engaged and articulate public sphere? The Internet is with us now as a social fact. Its potential remains inchoate at a time when mass media, already debased as an intermediate medium for public discourse, suffers further erosion. The limitations of the Internet as a new medium for an enriched deliberative discourse are not necessarily fatal. Indeed the time may well be right. The institutional means for realising it are largely untried and controversial but not likely beyond our capabilities. In short, there is a need and a promise but not yet an active engagement. Against idealised Habermasian criteria the prospects are bleak and indeed there is danger of further fragmentation of publics. But judged against already debased modes of political discourse and the reality of the erosion of their mass media forms the prospects are perhaps not so bleak. The utopian best ought not to be allowed to crowd out the achievable good.

This paper concerns the role of property theory in explaining why so many people around the world control their assets informally, without recourse to the state. According to one influential view, owners and their assets are driven to the informal sector because of deficiencies in the form of ownership on offer in the formal sphere. Where too many people have the power to veto the optimal use of a resource, we have a form of ownership, an anticommons, that is deficient. But this account of informality proceeds from an overly capacious theory of ownership. On this view, an owner’s position is incomplete if she lacks the requisite inputs for a project that represents the optimal use of an object. Further, a person counts as an “owner,” albeit one locked in an anticommons, merely if she has the power to block the ends that others are able to achieve with an object. I argue that this view of ownership leaves us unable to see that owners are in a radically different position vis-à-vis other owners with the same authority over an object than they are vis-à-vis the state or other non-owners who may be in a position to block an owner’s valuable ends. The integrity of the concept of the anticommons is undermined if we define it in terms of veto-power over the ends for which a resource is optimally suited.

In this paper, I situate the concept of the anticommons within a larger theory of ownership as agenda-setting authority. Seen this way, what is important about an anticommons is its effect on an owner’s means rather than her ends. Whereas owners of private property are never guaranteed the ability to achieve their ends, owners in an anticommons are not even guaranteed the ability to exercise their very means, their agenda-setting authority. From this revised and much narrower concept of the anticommons, what follows is that talk of “gridlock” in the formal sphere makes sense just as a normative argument about the best distribution of ownership and regulatory authority rather than a conceptual argument rooted in the idea of ownership.

In recent years, Professor Birks’ doctrine of constitutional right to restitution has become a new normative rule with respect to the issue of restitution of improperly collected taxes. Nevertheless, the new doctrine has puzzled academic scholars. Profound questions regarding the conceptual “private law-public law” location of Professor Birks’ doctrine and the current status of traditional law doctrines have arisen.

This study challenges Professor Birks’ doctrine and demonstrates that despite its universal adoption, the doctrine was based on weak premises. Furthermore, based on Professor Weinrib’s legal philosophy, this study develops an alternative framework to analyze the issue of improperly collected taxes. The study shows that the “private-public” puzzle and the doctrines traditional to improperly collected taxes may be coherently explained within this legal philosophy.

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.

This article develops some conceptual correlations between Kant’s theory of aesthetic judgment and the common law tradition of legal judgment. The article argues that legal judgment, like aesthetic judgment, is best conceived in terms of intersubjective validity rather than objective truth. Understanding the parallel between aesthetic and legal judgment allows us to appreciate better the relationship between subjectivity and intersubjectivity, the individual and the community, in the formulation and communication of judgments, which combine a personal response and a reasoned determination intended for a discrete audience. The article frames and pursues these themes in relation to four core concepts in Kant’s aesthetic theory: judgment, communication, community, and disinterestedness. Through sustained comparison and application of these concepts in aesthetic judgment and legal judgment, the article provides a conception of judging that more accurately captures the common law role and relationship of the individual judge and the institutional judiciary as integral parts of the broader legal and political community.

This paper seeks to specify the requirements that follow from the Rawlsian duty of assistance. In order to determine them, the hypothesis I will defend is that this duty is a specification of the natural duty of justice. This interpretation has several advantages: a) It facilitates the task of appreciating how one of the most important parts of the Rawlsian conception of international justice presented in The Law of Peoples is connected with the natural duty of justice presented in A Theory of Justice. b) It enables one to appreciate a new requirement of the duty of justice overlooked by Rawls: the duty of contributing to maintaining well-ordered foreign institutions. c) This new requirement enables one to appreciate the critical potential of justice as fairness in relation to one of the most pressing problems nowadays: the foreign debt of developing countries.

To modern writers, the distinctive achievement of twentieth-century jurisprudence can be viewed as its emancipation from the narrow confines of English utilitarianism, and the subsequent development of perspectives rooted in the fundamental values of justice and rights. The central jurisprudential task of the new century is thus the exploration of a deeper, more elusive moral standpoint, the most profound intellectual commitments of which are yet to be fully digested and understood. My aim in this essay is to reveal something of the character of those commitments by considering the relationship of our present thinking about law and morality to its historical development.

Constitutional rights’ scholarship is anchored in the cult of proportionality and balancing. Despite the absence of reference to proportionality or balancing in most State constitutions or international conventions, scholars and judges alike have embraced a vocabulary of proportion, cost, weight, and balance. Drawing on the work of German scholar Robert Alexy and Canadian scholar David Beatty, this essay attempts to illustrate how the principle of proportionality conceals more than it reveals in rights-reasoning. By challenging the contemporary cult of practical reasoning over rights, the essay advocates a turn away from a methodology and vocabulary of proportionality in favour of a more direct struggle with political-moral reasoning.

In Dimensions of Private Law, Professor Stephen Waddams describes the obstacles that an adequate classification of private law must overcome. The purpose of this essay is to offer a theoretical account of legal classification that explains how these obstacles can be overcome and what the resulting classification of private law might look like. I begin with the catalogue of obstacles that Waddams presents and argue that, because they are rooted in misconceptions about the classificatory project, they pose no threat to an adequate conception of legal classification. In search of such a conception, I consider how three great legal theorists – Aristotle, Kant, and Hegel – answer three fundamental classificatory questions about private law. First, what is the unitythat underlies the seemingly chaotic array of legal instances? Second, what is the principle of differentiationthat applies to this unity? Third, how are legalinstancessubsumed under this differentiated unity? The focus of this essay is the enduring significance of Kant’s conception of legal classification, which provides an alternative to Waddams’ conception and offers a set of coherent answers to the fundamental classificatory questions. In contrast, both Aristotle and Hegel respond to the fundamental classificatory questions by providing a conception of the unity of private law that fails to cohere with their ensuing accounts of its differentiation.

The essay is an attempt to clarify some issues concerning the point of doing conceptual legal theory. It provides a reassessment of the relationship between conceptual legal theory, legal doctrinal scholarship and the legal practice. The analysis concentrates on what may be termed the ‘mainstream’ discourse on conceptual legal theory (characterised by authors like Hart, Raz, Dworkin, Finnis), and depicts the mainstream discourse as functionally connected to legal doctrinal scholarship. The essay argues that a more open commitment to reflecting current problems of legal doctrinal scholarship would make the position of mainstream conceptual legal theory more intelligible. If it wants to maintain its position as a complex theoretical discourse, mainstream conceptual legal theory must take direct responsibility for serving the epistemic needs of legal doctrinal scholarship – by way of providing conceptual and methodological foundations for it. Conceptual legal theory can make a contribution to doctrinal debates by relying on its ability to assess competing doctrinal claims in light of the epistemological characteristics of the legal doctrines in a modern legal system. The mainstream conceptual discourse can also have a vital role in in making sense of the external challenges to legal doctrinal scholarship. Such cionsiderations lead to a criticism of Hartian methodological legal positivism: it is blamed for becoming oblivious of the ways in which the mainstream conceptual discourse is parasitic on the conceptual tensions encountered or even generated by doctrinal scholarship.

IzhakEnglard, a prominent tort scholar and a former justice of the Supreme Court of Israel, has dedicated the last few years to an unprecedented research project, aimed to “retrace the long and complex history of the Aristotelian conceptual distinction between distributive and corrective justice from antiquity to the present day.” Modern legal theorists are well versed in the Aristotelian concepts. But although these concepts have engaged “the most brilliant philosophical, legal, and theological minds for generations,” the millennial treatment of the Aristotelian distinction has been disregarded in recent times. Englard’s recently published book brings the cumulative knowledge to the attention of contemporary thinkers, offering an opportunity to enhance and deepen ongoing jurisprudential discourse.

Englard has structured the book chronologically (with a single exception), on the grounds that a topical arrangement would be impractical due to its complexity. Nonetheless, one can break down his sequential analysis of discrete manuscripts and extract fascinating inter-temporal debates on concrete questions that have occupied the minds of Western thinkers for centuries. This Critical Notice focuses on one of the main themes that run throughout the book, and may be of the greatest importance to contemporary legal theorists, namely the place of retributive (punitive, vindictive) justice within the Aristotelian framework. Following a short presentation of the Aristotelian text, this Critical Notice utilizes Englard’s painstaking study to systematically evaluate four possible attitudes to the place of retributive justice vis-à-vis the Aristotelian forms: (1) retribution is part of corrective justice (the Thomist position); (2) retribution pertains to distributive justice (the Scotist position); (3) retribution combines both forms of justice; (4) retribution is a third form of justice.

Allan Hutchinson’s recent book, The Province of Jurisprudence Democratized, is regarded as presenting the opportunity for considering what is involved in seeking to establish the province of jurisprudence as a distinctive field of inquiry. The scale of Hutchinson’s ambition matches John Austin’s original efforts to determine the Province of Jurisprudence, but seeks to replace an analytical approach to jurisprudence he associates with Austin by a theoretical approach committed to advancing “strong” democracy. This provokes an initial reflection on the nature of theoretical disageement, and in particular disagreement which goes beyond trivial theoretical contestability so as to contest the nature of the subject matter that is being investigated by establishing an appropriate field of inquiry for it. Three different techniques are introduced which are capable of demarcating the subject matter of jurisprudence through establishing a field of inquiry favouring a particular theoretical viewpoint: axiomatic disengagement, ambitious insight, and a split field of inquiry.

Hutchinson’s principal concern with the democratization of law, legal theory, and the province of jurisprudence is examined in detail. The process of democratization and its anti-elitist character is traced through Hutchinson’s opposition to the aloof philosophical analysis of the universal in favour of an engagement with local and particular issues. However, the weight Hutchinson places on his conception of strong democracy, so as to provide a different understanding of the the law-power nexus and of the relationship between law and morality operating in strong democracies, is shown to be misplaced. Two related failings are pointed out. First, there is a failure to recognize competing groupings within the people, which contradict the uniform collective body Hutchinson associates with those formerly governed by elites and then constituting those liberated to exercise self-governance. Secondly, this links into Hutchinson’s exclusive preoccupation with the participatory axis of democracy – which he regards as the core feature of strong democracy, and at the same time the basis for the law-power nexus and the law-morality relationship within a strong democracy. This is revealed as an inadequate and impoverished understanding of democracy once the presence of competing groupings within the people is acknowledged. Hutchinson’s one-dimensional representation of democracy along a participatory-representational continuum is rejected for failing to recognize a distinct fiduciary-beneficiary axis, which a richer understanding of “for the people” conveys. These corrections have important consequences for a role for law that cannot be reduced solely to politics, and for a broader sweep to analytical jurisprudence than Hutchinson allows.

Hutchinson’s own efforts to capture the province of jurisprudence are then assessed. These are recharacterized as seeking to establish within a split field of inquiry a theory of strong democratic law, but, in the absence of a convincing account of the nature of democracy and its relationship with law, the project is judged to be unfulfilled.