The criminal law has at least two goals: to provide a degree of protection to a variety of individual and collective interests, and to communicate to those to whom it applies that those interests are protected. The question I consider is whether the criminal law should be used to advance the second goal independently of its use in advancing the first. Drawing on what I refer to as non-comparative egalitarianism, I argue that it should not. After developing a general argument for this claim, I turn to considering its implications for the criminalization of hate speech, focusing specifically on a line of argument found both in the Supreme Court of Canada’s s.2 jurisprudence as well as Jeremy Waldron’s recent book, The Harm in Hate Speech. I also briefly consider a structurally similar, but broader argument – recently defended by Alon Harel – which suggests that there is a constitutional duty to criminalize conduct that would, if engaged in, interfere with a person’s dominion over how her life goes, regardless of whether criminalization would or would not drive down the actual incidence of the targeted conduct. I claim that egalitarians should not recognize any such duty.

This essay considers Brian Leiter’s arguments for ‘replacement naturalism’ in the domain of adjudication, his thesis being that we should reject as plausible the ‘normative theory of adjudication’ and replace it with a posteriori theory which best explains the causes of judicial decisions. My central claim is that his ‘naturalizing’ argument is incomplete in the following way: it is against a bad kind of philosophical theory and leaves scope for a better, non-naturalistic, account. Both Leiter’s original arguments for the position and his more recent suggestions in response to critics are considered.

Employing moral values as justifications in judicial decisions has been controversial. At present, there is increasing controversy over the application of human dignity. Contemporary debates on the role of dignity in law and adjudication are heavily influenced by Christopher McCrudden’s account of dignity as a placeholder, and much thinking on the contested nature of values is influenced by WB Gallie’s idea of Essentially Contested Concepts. In this paper I argue that both these accounts have limited explanatory and normative potential. McCrudden’s account is illuminating in terms of the role of dignity in the UDHR, but weak in terms of explaining why employing dignity in adjudication yields diverging conclusions, and why dignity should be understood to be a placeholder. His reliance on Gallie’s idea of Essentially Contested Concepts is also misplaced. Gallie’s views often serve as a philosophical basis for understanding the contested nature of values generally. I argue that his account is an external-descriptive one, which cannot explain why persistent disagreement ensues because of the peculiar nature of some concepts. Neither does it point out any property of essential contestability that is unique to some concepts. Thinking on how values such as dignity can figure as justifications for decisions, therefore, must explore other alternatives.

This article claims that H.L.A. Hart’s theory may be regarded as a sound vindication of what today is known as legal pluralism. In short, Hart’s practice theory of norms attests to the fact that state law is only one system of rules among many others, and that it does not exhibit any distinctive feature that may distinguish it from those others. I will depict this as an inadvertent but extremely valuable outcome of the practice theory. Indeed, Hart’s battle against the claimed connection between law and coercion and his firm conviction that legal normativity should be understood in light of the broader phenomenon of social normativity make his practice theory of rules a sound and fertile vindication of legal pluralism as a theoretical approach to legal phenomena. As a result, even though Hart was a legal centralist and a legal monist, his theorizing ends up dismantling the identity between the general phenomenon of law and the law of the state. I will proceed as follows: I will first look at the contentious issue of the relation between law and coercion by examining how two prominent legal scholars, Hans Kelsen and E. Adamson Hoebel, came to the conclusion that the distinguishing mark of law is coercion (sec. 1). This analysis will be instrumental in demonstrating that Hart failed to grasp the relevance and salience of the relation between law and coercion, and in particular, the peculiar role Kelsen and Hoebel attributed to the latter (sec. 2). I will argue that Hart’s discomfort with the emphasis on the notion of coercion was due not to the nature of this notion as such, but to the distortive effect its overemphasis had exerted on positivist legal theorizing. I will claim that Hart’s most insidious adversaries were two (at the time prominent) philosophical and jurisprudential streams, namely, behaviourism and emotivism (sec. 3). I will go on to say that Hart’s arguments against these adversaries are well addressed but inadequate, and will try to reinforce them by drawing on a Wittgensteinian view of practices (sec. 4). I will conclude by showing that the consistent outcome of a “reinforced” practice theory is a highly pluralist view of law (sec. 5).

In order to identify the form of arbitrariness that is relevant to the rule of law, I discuss a Supreme Court of India decision and a Supreme Court of Canada decision in which judges held that other public authorities had acted arbitrarily. I also discuss Jeremy Bentham’s work on the rule of law, and his notion that the interpretive power of judges is itself an arbitrary power. I argue that the interpretive role of judges is not necessarily hostile to the rule of law, but that there is a standing tension between that interpretive role, and the rule of law. In the two decisions under discussion, the Canadian and Indian judges used their doctrines of arbitrariness to reallocate power to themselves, without any resulting enhancement in the rule of law.

This paper offers a critical assessment of the way the influential “conception of law as a shared activity” explains the normative component of law in general and legal obligation in particular. I argue that the conception provides a bipartite account of legal obligation: we have full-blooded legal obligation, carrying genuine practical force, and legal obligation in a perspectival sense, the purpose of which is not to engage with us in practical reasoning, but simply to state what we ought to do if we should take the perspective of individuals subject to the jurisdiction of the legal system. This structural feature makes the whole account disjointed, giving it a lack of unity from which stem what I take to be its three main problems, namely, its limited scope, its failure to recognize the moral features of obligation when made to arise out of law as a shared activity, and its failure to illustrate the sense in which law is widely recognized to be a practical institution.

Beginning in the early 1990s, Third World Approaches to International Law scholarship (TWAIL) destabilized the mainstream narrative within international law that its doctrines were constituted by the historic search for order between formally equal state sovereigns. Instead, TWAIL scholars argued that the key constitutive dynamic of the discipline was the colonial experience, which continues to hold powerful sway over the legal architecture of global regulation whereby international law functions to perpetuate inequality and oppression. At the same time, however, TWAIL scholarship regularly posits international law as an emancipatory force that may be mobilized on behalf of former colonized populations and other marginalized social identities. The rise of post-Marxist scholarship, and more generally, the turn to interdisciplinary within the profession in recent years offers an opportunity to analyze this curious paradox and construct alternative modes of analysis for future TWAIL scholarship. In the first section, the paper draws upon a diverse array of TWAIL scholars over the last thirty years to map the argumentative logic within TWAIL literature. In the second section, the paper incorporates debates and insights from complimentary academic disciplines to illuminate some blind spots within TWAIL’s central arguments, and potentially ‘radicalize’ its future possibility of critique against the growing inequality within global governance.

Jeremy Waldron has plausibly argued that historical injustices can be superseded by serious efforts to achieve justice in the present and future. This essay considers what it might mean to arrange things justly in the relevant way, focusing on the work of John Rawls as our best existing template for conceptualizing justice of this kind. The essay outlines ways in which a Rawlsian system of social justice seems unable to meet its own normative aspirations and unable to provide a model for overcoming historically constituted disadvantage. As the essay argues, the society described by Rawls is likely to remain divided by inherited class structures, given the motivational requirements of markets and the psychological effects of the division of labor, so that inheritors of historical injustice would remain disadvantaged even if Rawlsian principles were put into practice. The essay considers some speculative methods for overcoming these inequalities, and argues that the most promising approach in circumstances as we know them will draw on already-existing programs of compensation for historical expropriation. The essay also argues that Rawlsians should take seriously the application of the difference principle to the distribution of political authority alongside material resources, suggesting that we should give careful thought to how political structures can protect the interests of the least advantaged. The paper argues that, once again, existing mechanisms for Aboriginal self-governance are more appropriate as a system of forward-looking justice than they may otherwise appear. The essay argues in closing that political philosophy should give increased attention to the ethics of political action and to conflict among the disadvantaged in imperfect circumstances.

I propose a set of distinctions that demarcate the structure that I consider suitable for the study and determination of the true value of the thesis of conceptual incompatibility between authority and autonomy. I begin with an analysis of the standard conception of authority, i.e., correlativism. I distinguish two versions: the epistemic and the voluntarist. Then I offer an analysis of two conceptions of moral autonomy: self-legislation and self-judgment. I conclude by remarking that we should distinguish two different versions of the conceptual incompatibility thesis: a) the conflict is unsolvable because moral autonomy requires that we always be the authors of the norms we have to obey, while the authority claims that its will is a source of such standards; and b) the conflict is unsolvable because moral autonomy requires that we always judge for ourselves what categorical reasons should guide our action and that we act accordingly. Authority, on the contrary intends that we rest on its judgment and give up acting on our own.

The Article examines the wisdom of loyalty oaths as a legal institution in contemporary liberal democracies. First, using comparative analysis the Article highlights the growing global interest in loyalty oaths. Second, based upon historical evidence the Article explores the functions of loyalty oaths and assesses their role. Third, through using legal analysis the Article challenges the validity of loyalty oaths and identifies three fundamental problems related to their content and form: the rule of law, freedom of conscience, and equality.The Article reveals liberal concerns associated with the added value of the duty of “loyalty to the law” (allegiance), as distinct from the duty to “obey the law” (obedience). It presents an ongoing tension between loyalty and liberalism and argues that the more loyalty liberal democracies demand, the less liberal they become. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests that liberal states should abandon them as a legal institution.

A famous libertarian argument is that any allocation of property is just, if it is the result of legitimate original acquisitions and legitimate transfers (‘justice in holdings’). However current ownership of property rarely follows ‘justice in holdings’. This creates a dilemma for libertarianism. If libertarian principles point to protecting current holdings, the result is a violation of ‘justice in holdings’. If the libertarian position requires that only holdings resulting from justice in holdings are legitimate, this will entail a policy of rectification and redistribution. Three major libertarians attempted to offer solutions to this problem: Nozick, Narveson and Epstein. The goal of this essay is to demonstrate that their solutions face two challenges. First, their solutions come into conflict with certain core libertarian principles. Second, their solutions are so different from one another as to be incompatible with each other. This demonstrates that libertarianism is struggling with a fundamental challenge, and a satisfying solution is yet to be suggested by libertarians.

The article examines the relationship between a wrongdoer and his victim. Based on this examination, a justification for criminal punishment is proposed. It is argued that crime violates the a priori equality of constituent boundaries and of infinite human value between the wrongdoer and the victim. Criminal punishment re-equalizes respective boundaries and infinite human value. To develop this argument, the article observes how subject-subject boundaries are essential for the formation of separateness between subjects - separateness which is recognized and acknowledged by them in a cooperative process. The article further discusses the value of boundaries and the significance of their a priori equality in every human relationship. It then shows how crime, which is intrusion of the victim’s boundaries, works to demolish the victim’s self-recognizing separateness and hence to create inequality in the parties’ value. Last, the article demonstrates that only punishment can reset the relationship between the parties and re-equate their (still infinite) human value in the relationship.

Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. Nascent norms of international law (e.g., crystallizing norms of customary law) can be binding in much the same way as better-established doctrine. This point becomes perspicuous, I argue, once we get a clear sense of the plausible options for grounding the moral authority of international law generally.

This result is interesting in its own right, but it also reveals two other features of the character of state responsibility under international law. First, the distinction between legislation and compliance is less pronounced compared to domestic law. Consequently, the virtues of good governance will frequently be pertinent to determining the content of states’ obligations under international law. Second, normally more powerful and influential agents will be more strongly bound by international law than other subjects. This is an attractive result, addressing a concern that motivates many international lawyers to view international law as absolutely binding. An absolutist view international legal authority is unnecessary for showing that the most powerful and dangerous states are strongly bound by the terms of much existing law.

In recent years Chambers, Smith, McFarlane and Stevens have all sought to explain the nature of equitable proprietary rights by way of the concept of a ‘right to (or ‘in’, or ‘against’) a right’. In this paper I argue that there is a sense in which this conceptualisation of the beneficiary’s equitable proprietary under a trust is illuminating, but that, rather than a right to the trustee’s possessory interest in tangible property, the ‘rights’ of the trustee in which the beneficiary is interested are the trustee’s powers of title. I also contend, in a ‘fusionist’ spirit, that equitable property interests should not be treated as a particular ‘legal kind’, but rather that only interests under trusts should be regarded as a distinct sort of property interest within the numerus clausas. I go on to show how the proposed analysis best explains (1) our notion of ‘beneficial interest’ under a trust; (2) why a trustee is not a residual claimant to the trust assets; (3) the interest of a discretionary object of a trust; (4) the rules of and rationale for tracing; and (5) the ‘automatic’ resulting trust.

This essay, of course, is not about Bach’s musicology: it is about the partially overlapping stories of Bach and of contract. The overlap concerns the legal relations between the creative, entrepreneurial artist and the community he joined and resented; the tensions, ironies and contradictions—but also usefulness—of contract as a way to tell and reinterpret movement along the proverbial “status to contract” narrative of modernity; what Bach found there, and how this may serve as both a specific story of artistic genius in the shadow of law and a case study for the contractual organization of relations in a transformative period of early modernity.

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.

This article posits an interpretation of Thomas More’s Utopia that focuses on the ways in which the nature of justice within a putatively ideal state is illuminated by references to international relations and the law of nations. Like Plato’s Republic, Utopia uses differences of scale to provide a lens through which to examine the operation in one context of a unitary concept that is more visible elsewhere. Justice is constructed as a single concept; thus, in the same way that Plato uses the justice of the kallipolis to provide insight into the justice of an individual, More uses the justice of the international community to provide a macroscopic perspective on justice as it exists within a sovereign state. Through discussions of trade, diplomacy, war and empire, Utopian understandings of international law and justice are revealed. The ideal organisation of the state is then characterised as one in which the resulting notions of justice, defined as the correct operation of laws that accord with natural law, are institutionalised.

I have tried to show how criticism of aboriginal orthodoxy in discourse and measures taken by the current Conservative government and private commentators have set in motion a process of contempt, risking the harm associated with colonialism. Another critique of aboriginal orthodoxy, as presented by Jean-Jacques Simard, claims that First Nations are entitled to a certain level of self-government in defence of the rights of the abstract person: “it is first and foremost simply as human beings that all Amerindians possess the same rights as anyone else….” Yet this option ignores the history of First Nations’ relationships with French Canadians, English Canadians and the British. While appeal to the abstract person can protect people from a threat, it cannot eliminate that threat. It seems clear that contempt towards aboriginals is still present and that their emancipation without an honourable historical justification would also lead to the exacerbation of racism against aboriginals. To make mutual recognition possible between aboriginal and non-aboriginal, we need to have shared criteria for evaluation. It would seem, therefore, that if we were willing to integrate First Nations into the Canadian constitutional order by fully recognizing them, we must find a common project. If the Canadian government were to move more in the direction of an ecological vision of development rather than in the direction of a predatory capitalism based on infinite economic growth, I believe it would be easier to secure First Nations’ sense of belonging to Canada and to agree on models for joint territorial management. That awakening rings a bell we must hear: if seniority on the land and the role played by national groups in the founding of Canada are erased by a unitary, multicultural and monarchist vision of the country, the odds are high that Canadians of diverse origins will eventually suffer the blows of renewed authoritarianism and contempt.

This big book recounts the march of the giants of 20th century English language jurisprudence, one aiming to bring progress to history by means of a sustained philosophical inquiry over time. My task in this CJLJ Book Review is especially to show, by discussing but a small aspect of each chapter, how valuable Postema’s book is for a philosopher of law professionally. It is a story which for many well-practiced jurisprudes could spell, in a word, réanimation. That said: if someone early in the 22nd century writes a history of legal philosophy looking back on the 21st century, Gerald Postema’s critical history which looks back on 20th century will surely be counted as one of the major achievements of the 21st—our time. Legal Philosophy in the Twentieth Century: The Common Law World is a brilliant book and, for the rest of us incapable of achieving anything like this (and I mean the rest of us), it is simply breathtaking.