The current structure of sexual harassment litigation in Canada poses unique issues for Aristotle’s distinction between corrective and distributive justice. Due to a series of decisions in the 1980s and 1990s, sexual harassment claims in Canada must be brought exclusively under human rights legislation. This system views sexual harassment as a form of sex discrimination, and roughly subscribes to the view that sexual harassment is an incident of distributive injustice. However, the form of the litigation tends to undermine its distributive justifications. The litigation generally corresponds to the traditional adversarial model, with the complainant seeking damages from the harasser. Consequently, some commentators have argued that sexual harassment should be treated as a private law cause of action, rather than an issue for the human rights system. This article examines the rationale for classifying sexual harassment as an object of corrective or distributive justice, and particularly whether harassment should be viewed as an individual or a group harm. It also addresses the emerging claims for heterosexual male-on-male or bisexual harassment, which create problems for the view that sexual harassment is a form of discrimination “because of sex.” Finally, the article explains how the distributive and corrective theories of justice are manifested in the extent of employer liability and the available remedies.

This paper is being written as the implications of September 11 continue to reverberate worldwide, its consequences going who knows where. Nothing, we are told, will be the same again. One aspect of this change will be how we think about international society, including its legal character. In this quest to understand international law in this changing, and uncertain, context, this paper posits a different sort of analysis, one that addresses the dialectical tension between globalism and territorialism. Globalism describes the emerging globally comprehensive legal (and political and economic) regime organized around expanding forms of centralized power. In contrast, territorialism describes an incipient movement to support a diversity of social and physical realms of authority rooted in a geographic tapestry of self-maintaining forms of place-based power. Both terms describe competing forces of social organization such as customary versus bureaucratic forms of regulation. These forces have long existed in a dialectical tension that, neither separate nor distinct, interpenetrate in countless aspects of political and economic life.

This dialectical tension permeates human history, but its operational character has been little considered, and its significance little understood. The conception of “territory” is a particularly complex one (especially when understood in its full historical sweep) that has a strong relevance to that foundational concern of international law, sovereignty. Externally, the territorial state is the legal subject. The challenge of this paper is to convey a vision and analytical framework that seeks to understand territory in a fuller sense than is traditionally used. To do so, this paper rechacterizes the increasingly centralized power structure from the perspective of ecological political economy. This perspective is particularly relevant to this age of ecological limits and global constitutionalism.

Based on this ecological analysis, the paper proposes a notion of territoriality that gives prominence to the state’s historical other--place-based institutions of cultural and community authority. A territorial framework is then presented as an alternative conception of international ordering to that embodied by globalism. In its self-maintaining diversity, plurality of discursive practices/ways of knowing, and wariness towards the universalizing state-centered system, the territorial approach seeks to put in practice many lessons of the postmodern critique. To pursue this line of enquiry exposes to scrutiny a host of foundational beliefs and assumptions about modern economic and political life. Nevertheless, at the beginning of the 21st century such enquiry is again critically important for international lawyers because the sustainability of continued centralized growth is in question, while its momentum into a constitutional dead-end resists re-direction.

The essay considers whether there are necessary truths about rights. The existence of rights is contingent, but our practices involving rights rest upon fundamental conceptual assumptions necessary to their coherence. Hohfeld’s analysis is proffered as the embodiment of those assumptions. An examination of the concept of necessity shows how those assumptions can be necessary truths about rights without being logically necessary.

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.

Karl Marx wrote that ‘the philosophers have only interpreted the world in various ways’, whereas ‘the point is to change it’. Are international legal scholars exposed to the same charge? Have they too placed theory before the demands of real-world emancipatory practice? The author explores these questions, and shows how Marx’s concerns about the philosophers indeed have resonance in the field of international law. At the same time, however, she observes that the problem is not with theory per se, if by theory is simply meant academic enquiry. Rather, it is with theory of a particular kind. Against this background, she discusses some of the ways in which academic enquiry can be itself a form of emancipatory practice, some of the features of what she refers to as transformative scholarship. In developing her account, she highlights the point that those who seek social transformation need not only to transcend the limitations for which Marx criticised certain kinds of philosophy (‘idealism’). They also need to avoid the antithetical pitfalls for which, much later, Frankfurt School theorist Adorno criticised certain modes of politics (‘actionism’).

The availability of a constitutional framework that encourages deference to the judiciary, and the existence of a political environment conducive to judicial empowerment have helped bring about a growing reliance on adjudicative means for articulating, framing, and settling fundamental moral controversies and highly contentious political questions. This has resulted in the gradual erosion of the exclusive prerogatives of legislatures and executives.

Inclusive legal positivism maintains that the existence and content of laws may, but need not, depend on standards of morality. As Wil Waluchow argues, inclusive positivism derives much of its plausibility through its explanation of Charter societies such as Canada. On his account, the fundamental rights of political morality contained in the Canadian Charter of Rights and Freedoms serve as ultimate criteria of the existence or validity of all laws in Canada, and thus form part of Canada’s rule of recognition. In this paper I challenge Waluchow’s inclusive positivist picture of Charter challenges. I argue instead that exclusive legal positivism, which maintains that resort to moral reasons may never figure in determinations of the existence or content of laws, better captures our ordinary understanding of the authoritative role of judges, constitutionality, and the traditional positivist conception of legal validity as a matter of social fact. Specifically, I argue that Joseph Raz’s notion of a directed law-making power, and not reliance on an inclusive positivist rule of recognition, best explains the duty of judicial review in Charter cases. Further, the fundamental rights of political morality recognized in the Charter are best understood as constitutional objectives, and not criteria of validity, which all subordinate laws in Canada ought to respect, yet may fail to do so in practice.

The article focuses on the overlooked volume of Henry Sumner Maine’s corpus, the posthumously published International Law and uses it to respond to the general critical difficulty in establishing Maine’s posture. Maine, of course, makes it difficult with the numerous contrapuntal moves of this book and others. For example, he strongly criticizes the predominant view of international law as an accretionary process of commentary by one theorist following another and yet he places tremendous value on Grotius, “whose works acted on the spirit of belligerency like a charm,” and other early international legal theorists. He sees his contemporary environment as marked by increasing militarization, even of militarization of society during time of peace, while he describes the relative humanity of the present over the distant past.

Ultimately, Maine is a realist who focuses on late nineteenth-century manuals of war rather than the idealism of the Anglo-American peace movement, and recognizes the importance of Czar Alexander II over any of nineteenth-century international legal theorists. If J.W. Burrow has identified social evolution as providing Victorians an “intellectual resting-place” between theoretical clarity and social diversity, Maine’s broad social evolution allows him to mediate between the moral amelioration in international life and the practical realities of that life.

In recent years, there has been a renewed interested in examining the nature of legal theory and finding ways to resolve impasses that may exist in contemporary legal theory. One suggestion made by some prominent philosophers of law (for example, Raz and Leiter) is the need to supplement arguments in legal theory with pragmatic considerations. By appealing to pragmatic considerations, it is thought that we can decide between competing conceptions of law. In this paper, I will examine how the appeal to pragmatism would work in the context of contemporary legal theory, and I will show why such an appeal to pragmatic considerations cannot solve the main problem that it was meant to solve.

This paper presents a particular reading of Truth and Method, Hans-Georg Gadamer’s landmark text, as a lens through which to consider the meaning of international texts in domestic contexts. His thoughts have remained virtually unknown within international human rights law but is highly relevant to accommodating variations in interpretation between national jurisdiction.

This article explores Joseph Raz's concept of exclusionary reasons and attempts to explain how this concept fits into a general account of the authority of law. That account is elucidated and the concept of exclusionary force is considered in some detail. The article suggests that if ‘exclusion’ is read in a strong sense, it is extremely difficult to find examples of its existence. If though it is read in any weaker sense, it appears indistinguishable from the idea of ‘weight’. The article also considers the phenomenological, functional and ultimately, the existential reasons in favour of saying, as Raz does, that all legal authorities make their claims to authority in terms of exclusionary reasons. It is argued that this is both unlikely and unnecessary. The curious nature of exclusionary reasons is hence thoroughly unearthed.

A critical review of Jules Coleman’s The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Coleman’s book has two principal objectives: (1) to defend both Inclusive Legal Positivism and Coleman’s influential views on the role of corrective justice in explaining tort law; and (2) to show how philosophical pragmatism can usefully be employed in defending such views. In this article I both outline and critique the main elements of Coleman's book. I also explore ways in which some of its central arguments could usefully be modified or extended to solve related jurisprudential puzzles.

In international law the understanding of gender and its relationship to sex remains fairly traditional. In this essay, I explore the subversive possibilities of feminist criticism of this story for international law.

The way I discuss here the history of censorship and criticism of La Grande Illusion reflects the normal context today, in which it is acknowledged that there are certain common concerns of law and art and that they influence each other mutually. The expressive and ceremonial aspects of criminal law are well known.

It is the theory of this paper that while the natural analytic tendency is to seek the legal character of terror in the impugned act, it can actually be found only by examining the narrative of the law. As a legal concept, terrorism strikes not at the political power of states or at the safety of individual citizens, but at the law's own stability as law.