This paper focuses on the practice of making reference to foreign law in legal adjudication. On the one hand, this practice has received overwhelming attention from legal scholars in the last two decades under the headings of “judicial dialogue”, “judicial cross-fertilization” or “constitutional conversation”; on the other hand, a systematic, theoretical picture of this practice is still lacking. The paper aims to bridge this gap by elucidating the structure of legal comparison in judicial decision-making from the point of view of argumentation theory. To this end, the paper examines the various forms of comparative reasoning, identifies the set of their implicit premises and shows under what conditions referring to foreign law in legal adjudication is justified on its own grounds. This analysis will lead us to discuss the thesis according to which comparative reasoning by courts is changing the nature of law and the structure of contemporary legal systems.

Contemporary economic analysts of the law argue that certain legal institutions, such as contract law, ought to be designed to promote wealth maximization, while different legal institutions ought to seek to achieve non-wealth maximizing aims, such as distributive justice. In order to preserve the normative claim that the sole aim of any single legal institution should be the promotion of wealth maximization, economists rely on the “specialization principle”: each legal institution must be organized around a single normative criterion, partitioned from and without regard to the normative aims of other legal institutions. I argue that this idea of a strict normative division of labour between institutions is problematic. On any instrumentalist view, the normative justification of the ends of a particular legal institution cannot ignore the normative aims of the legal system of which it is a part. I develop this argument by critically examining the economic analyst’s claim that commercial contract law should be limited to helping firms maximize profit.

This article explores how political authority is conceived and how we attempt to make sense of its legitimacy in a world that we imagine made of relatively equal and autonomous individuals who are members of multiple collective agencies. One such way is the Razian “Service Conception” of authority. This conception suffers from a variety of internal weaknesses and shortcomings. More importantly, while the Service Conception may be promoted as a normatively appealing theory of authority, it does not appear to fit the description of the central case of practical authority or, at least, it does not exhaust the list of central cases. Indeed, political authorities are often justified by self-assertive reasons that bind the subject to the authority claimant. Such cases are what we call “existential authorities”, as opposed to "functional authorities" associated with the Service Conception. The interplay between those types of authorities and their respective background assumptions forces us to take seriously the perceptions that subjects have of the nature of authority claimants as such perceptions will determine the attitudes of the subjects towards the directives issued by the authority claimants. We must therefore be able to distinguish between institutions meant to embody collective identities – “existential communities” – from institutions perceived as mere “functional regimes”. Indeed, the nature of the standards used to evaluate the actions and powers of each will differ accordingly.

The article seeks to demonstrate that hypotheticals which depict collective criminality shed light on the contested issue of conceptualizing criminal intent. Since the formulation of the doctrine of transferred malice in the English Common Law, criminal law has been grappling with the question of framing intent as either object-specific or type-oriented. This question is particularly salient where the defendant caused harm to a different object than the one he had in mind, either by accidentally missing the target or as a result of mistaken identification. In such cases, an object-specific conceptualization does not permit conviction for the harm caused, whereas a type-oriented one does, as would the doctrine that transfers the defendant’s intent from the intended person or object to the one actually harmed. Utilizing a methodology of embedding instances of accidental miss-aim and mistaken identification into scenarios that involve multiple accomplices, the article argues that the object-specific conceptualization of intent has the advantage of being most suited for assigning liability to the participants in an offence. The analysis offered also supports equal treatment of accidents and mistaken identification.

This annotated Coxford Lecture is the first account dedicated to tracing the part played in the 1980-82 patriation of the Canadian Constitution by the British House of Commons, particularly by its Select Committee on Foreign Affairs. This committee, for which author was the adviser, investigated the propriety of the UK Parliament’s acceding to a request for amendment of the British North America Act 1867 (as amended) if the amendment were opposed by a substantial number of Provinces and it would affect their powers. Against the firm opposition of the Canadian government (secretly being assisted by the British government), the Committee reported in January 1981 that acceding to such a request in such circumstances would be a breach of Parliament’s constitutional responsibilities. A second report, in April 1981, defended that opinion against the Canadian government’s vigorous attempt in March to refute it. The Committee’s position strongly resembles that of the “conventions” majority of the Canadian Supreme Court in September 1981. But the resemblance should not obscure a significant difference, rooted in the distinct authority of the UK Parliament during this terminal phase of the patrimony that, by Canadian decision in 1931, it had inherited: some imperial responsibilities (by then only procedural, and terminated in 1982) for the polity and people of Canada.

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 current system of decision making in land use law is not transparent and is open to biased or personal corruption. This gives rise to the possibility of unequal treatment under the law, especially given the judicial reluctance to interfere in reviewing the decision making process. Our solution is an auction mechanism to overcome these problems, under which the local government would be bound to award land use rights to the highest bidder and where offers will be examined in light of their contribution to the society’s best interest. Such mechanism has possible benefits in terms of transparency and insurance against favouritism or arbitrariness. The auction mechanism proposes the use of a simple metric (i.e., revealed private value of the competing claims) by which the local government can give a transparent, non-arbitrary, observable, and verifiable response. This mechanism, so we argue, treats each and every person’s choices with equal concern and respect. In this sense, the auction is procedurally fair by being conducted between potential bargainers that enjoy equality in background conditions and when means for offsetting brute bad lack are utilized.

The author takes the paradox of omnipotence faced by lawyers in the context of constitutional change as a starting point to explore the relationship between formal law, logic, and the “pragmatics” that inform legal reasoning. Self-reference in constitutions appears problematic because it has no representation in basic, first-order logic. But self-reference in the context of legal change effectively represents a time dimension that is essential to the practice of law. The dissolution of the paradox is then used to illuminate the relationship between formal law and the context in which it is embedded. The author concludes with a nuanced understanding of law as a semi-open system in which judges play the key role of translating fundamental constitutional change into the law’s “internal” point of view.

Our lives are permeated by various forms of legality, produced by multiple bodies - both statist and non-statist. The pervasive presence of non-statist, soft law schemes in the contemporary society poses a challenge for legal theory: how to conceptualize legal-like structures that evolve outside the boundaries of the state and are able nonetheless to exert significant normative power? Understanding this phenomenon requires, I argue, a new model of law that will not be bounded by the binary (either/or) structure of traditional jurisprudence and sociology of law. I respond to this challenge by developing a degree-theoretic model of legal-normativity which I term "fuzzy law". This model offers a new conceptual vocabulary for thinking about soft law as a social phenomenon. The model draws on three main theoretical sources: the theory of complementary pairs, fuzzy-set theory, and defeasible reasoning. I examine the jurisprudential and sociological implications of the fuzzy law model through a discussion of the dialectics of reasoning with fuzzy rules and an exploration of the coordination dynamics of quasi-legal systems.

In most Common-Law jurisdictions, deceptive sexual relations are criminalized with the same offence that is used to criminalize coercive sexual relations. This trend is strongly supported by feminist scholars like Susan Estrich, who regard deceptive sexual relations as being as wrongful as coercive. Others conflate coercion and deception, going as far to consider deception to be a form of coercion. Against this trend, the present paper argues firstly that deceptive sexual relations are analytically distinct from both coercive and consensual: secondly that, to the extent that cases of deception should be criminalized, this should be done by using an offence distinct from, and less grave than, the offence applicable to coercive sexual relations. To support the latter conclusion this paper suggests a novel argument for why coercive sexual relations are more wrongful than deceptive. The coercer's conduct is more wrongful because it involves typical wrongmaking features that deception lacks: the coercer cruelly proceeds with the coercion while faced with the victim’s suffering and they dismissively disregard negative reactive attitudes such as resentment and anger that the victim forms and expresses toward them. It is then argued that this difference in wrongfulness serves as a reason for criminalizing coercion and deception in separate offences, the former graver than the latter.

Wrongful pregnancy cases involve unwanted pregnancies and births caused by medical negligence. In all such cases, the resulting child is unplanned and the relevant healthcare professional’s services were retained in order to prevent pregnancy and childbirth. I argue that wrongful pregnancy victims are entitled to Total Recovery, damages for both child-rearing costs and losses associated with pregnancy. Critics of Total Recovery often appeal to the Offset/Benefits Approach (OBA). In its most radical form, OBA insists that healthy children always constitute an overall benefit to their parents and that this overall benefit cancels out any claim to damages for child-rearing costs. However, OBA cannot justify blocking or reducing wrongful pregnancy victims’ claims to child-rearing damages. The conviction that children must always be treated as overall beneficial to their parents is based on a confused combination of moralistic judgment and legal fiction. More importantly, the benefits of children, whatever these may be, fall outside the scope of the tortfeasor/victim relationship; these benefits are irrelevant to the assessment of damages. My case against OBA is based on an account of corrective justice that draws on the works of Ernest Weinrib and Arthur Ripstein. I illuminate both the defects of OBA and the justice of Total Recovery by comparing wrongful pregnancy suits with Weinrib’s famous plane crash example.

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.

The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissibly – is to deny its premise, namely the permissibility of the threatened act. This view holds that upon reflection all cases of wrongful blackmail actually involve a threat to act impermissibly. Therefore, blackmail is coercive, and should be criminalized as a regular case of extortion. This conclusion may rely on a subjectivist notion of permissibility, which sees intentions as relevant to permissibility, given that the blackmailer intends to harm the victim via the threatened act. Yet the view that intentions are relevant to permissibility evaluations is strongly criticized in contemporary moral theory. Nevertheless, this paper attempts to show that under a full understanding of the functions of coercion claims and the wrong in extortion, harmful intentions can be relevant to criminalization even if they are not directly relevant to permissibility.

Recovery of mistaken payments in the law of restitution is often justified by reference to a vitiated intention and that of payments where there is a failure of consideration by reference to a qualified intention. This paper aims to investigate whether this is a misleading characterisation and suggests that both causes of action should be understood in terms of conditions affecting our intentions. Specifically we should look at the failure of our planning agency, and Michael Bratman’s theory of agency in particular. In cases of mistaken payments we should look at the failure of a background condition to the payment. In such cases to fail to allow recovery is to fail to respect me as an autonomous actor, acting under norms having agential authority for me. In failure of consideration cases the autonomy of the other party is at stake, but we can take this into account by positing not a failure of a condition affecting personal intention, but affecting collective intention. There are different views on what collective intention is and how it should be understood, which may themselves have different implications in terms of the concurrency of mistake and failure of consideration as unjust factors. The paper examines different ways in which collective intentions might fail and how they fit the failure of consideration paradigm.

In recent years, there has been renewed interest in the question of whether Ronald Dworkin was correct to allege that legal positivists are unable to account for theoretical disagreement about law. However, relatively little attention has been paid to the related question of who can best account for agreement about law. An important exception is Brian Leiter’s argument that there is massive and pervasive agreement in legal judgments and that positivism can account for this agreement but Dworkin cannot. In this article, I argue that Dworkin can account for such agreement, and that his explanation is no less straightforward than the positivist’s. I further contend that Leiter’s strategy for explaining theoretical disagreement is weakened once we recognise that Dworkin has a plausible explanation of agreement in legal judgments. I conclude by exploring how we might choose between the positivist’s and Dworkin’s competing explanations of agreement in legal judgments.

This paper examines the apparently widespread belief that the democratic pedigree of a state implies a moral obligation to obey its laws. The analysis focuses on the work of Ronald Dworkin, who is, perhaps surprisingly, alone among theorists of democracy in claiming that those whom the law addresses are morally bound to obey it whenever it is democratic. From Dworkin’s expansive conception of democracy, political obligation follows. But democracy should not be construed so widely. Rather, it ought to be conceived more narrowly, such that, as other theorists concede, it cannot be more than part of a case for a moral obligation to obey the law. Hence, belief in the sufficiency of democracy for political obligation, notwithstanding its ostensible popularity, has yet to be justified.

This paper offers a critical appraisal of the growing body of philosophical work on questions of justice in the exploitation of natural resources. It argues that failure to treat property as a distinct set of considerations from those of distributive justice has led to an impoverished philosophical analysis. Moreover, it demonstrates how a property-based approach contributes to a more complete view of the interests at stake in resource exploitation by drawing attention to aspects of human relationships with the physical environment that cannot be captured through the allocation of wealth, such as environmental and cultural integrity. The reason that philosophers have not, by and large, appreciated this contribution rests on mistaken views about the function of property rules that could be rectified through legal understanding. In pursuing this line of argument, the paper considers a recent proposal that seems promising on this front: Leif Wenar’s analysis of the resource curse. Wenar’s proposal is unique in suggesting that questions of resource justice be analysed and resolved through settled principles of property law, rather than through a theory of distributive justice. However, he makes several key tactical errors. Examining where the proposal goes wrong and why provides important insights into the use of legal concepts to analyse intractable questions of justice in political philosophy, and into the place of property in particular—methodological issues that have not received adequate attention, despite the increasingly interdisciplinary nature of scholarship in this area.

Dworkin’s proposal for a new philosophy of international law shares all the important features of his latest stage of philosophizing about domestic law. As a derivative theory, however, it faces not only the same problems as the original position, but some new ones as well. This paper focuses on three problems. First, already Dworkin’s exposition of the international legal regime of human rights, which is briefly analyzed in the paper, suffers from the ill-treatment of sovereignty, insofar as it is equated with the outdated Westphalian conception. Furthermore, Dworkin’s attempt to ground human rights in value monism opens a number of intricate philosophical and practical issues. At the general plane of international law, this theoretical proposal becomes even more vulnerable. Second, Dworkin’s moral reading of international law makes a revolutionary discontinuity with the developed institutional practices and standards of the international community, which is within his own theory considered as one of the key features of legality. Finally, Dworkin’s proposal is profoundly futuristic and utopian. It is no more about the claim that ‘law as it is’ needs to be assessed in light of ‘law as it ought to be’, according to some inherent standards of political morality of a given political community, but in light of some law that might develop in the distant future. The paper concludes by noticing that if Dworkin’s ‘interpretivist’ theory is to be employed in the area of international law, it would have to be along some different lines than the ones proposed by Dworkin himself.

This review of Margaret Martin’s book, Judging Positivism, considers the three levels on which her book operates as an intricate study of the principal works of Joseph Raz; a challenging critique of legal positivism, and a thoughtful reflection on the potential of legal theory. The main focus of the review is Martin’s argument against Raz’s exclusive positivism, which proceeds by identifying a change in the premises or theses of Raz’s theory of law over the course of his different writings, and then making an accusation of inconsistency and incoherence against Raz. The review examines the nature of Martin’s accusation and suggests some possible responses to it. It also comments on the relationship between Martin’s assessment of Raz and her wider rejection of legal positivism, and on her related concerns for the potential of legal theory.

Peter T. Leeson's Anarchy Unbound offers an interesting collection of historical and theoretical arguments for the view that bottom-up social order is perfectly possible and at least sometimes preferable to order imposed from the top down.