Imprisonment is often said to be the ultimate back-up sanction for offenders who do not abide by their non-custodial sentence. From a standard consequentialist perspective this is morally justified, if it is a cost-effective means to crime prevention. In contrast, the use of imprisonment as a back-up is much harder to justify from retributivist perspectives, with their emphasis on just desert or deserved censure. The crux is this: if the reason for a non-custodial sentence is that a prison sentence risks being a disproportionate or inappropriate sanction, retributivists need to explain how a prison term can be warranted as the backup sanction for those who breach the requirements of their non-custodial sentence, even though their original crime wasn’t serious enough to warrant imprisonment in the first place. The aim in this paper is to critically assess the extent to which retributivists can justify the use of imprisonment as the ultimate back-up sanction. In doing so, I first examine two broad strategies that are discussed in the literature, and which retributivists could employ in order to respond to this problem. The first strategy stresses how desert has only a limited role in sentencing such that it demarcates a range of deserved punishment. On this view, associated with limiting retributivism, one could initially opt for a less harsh yet deserved punishment, leaving room for the imposition of back-up sanctions when needed. The second strategy focuses on how the act of breach is a reprehensible act that can allow for a penalty increase, and thereby lead to imprisonment. Although it is argued that both strategies fail, the paper proposes an alternative solution to this problem.

New institutions of indigenous governance will be the product of negotiations, negotiations that will take place against a background of colonial structures and relationships. Having examined the challenges of structuring a negotiation process that takes due account of pre-existing cultural and power differences between the parties, the author analyzes the significance of their choice of negotiation strategy on the negotiation process and outcome. In particular, this paper reflects on the promise and limitations of the parties’ adopting interest-based, or “integrative”, negotiation strategies and the potential for fruitful entanglements between those strategies and indigenous diplomatic traditions.

Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice,’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, and founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication.

Patent law is often understood through the fiction of social contract. The author argues that this fiction does not offer an adequate economic or political theory of patent law, that is, one that will explain the unique relationship between government and property that patents entail. As an alternative to social contract theory, a regulatory theory of patent law is developed based on the assurance game taken from game theory. The assurance game is used to show how patent law serves to regulate the invention process and the market for innovative products.

In this paper, the author explores the question of whether formalizing the Canadian law of reception would lead to an increase in the domestic influence of international law. He begins by briefly recounting Canada’s decidedly informal law of reception and, through a review of academic commentary, suggests a relationship between informality and international law’s historically weak influence on judicial reasoning. Tying this commentary to seemingly sociological perspectives on globalization, judges’ international legal personality and the changing forms and functions of law, he forwards the hypothesis that judges’ subjective recognition of the authority of international law can be engendered, modified and/or regulated through the procedural use of more familiar domestic legal authority. This hypothesis is then tested through a comparative analysis of the impact which international law has had in South Africa, where an historically informal law of reception akin to Canada’s has been replaced with clear and robust constitutional rules obligating the judiciary to consider and use international law. The author observes that there are no perceptible differences in the two jurisdictions; in neither country does international law exert a significant, regular or predictable impact on judicial reasoning. He concludes, modestly, that there is no available evidence to support the belief that Canadian judicial practice would change if the Canadian law of reception were formalized. He further concludes, less modestly, that this has significant implications for underlying legal theory and, in particular, that theories concerning how the domestic impact of international law can be augmented, though seemingly sociological, are decidedly positivist in orientation. Given that judges’ subjective attitudes towards international law are not perceptibly linked to domestic legal procedures, international, comparative and transnational legal theorists must, either, find evidence to demonstrate this link, or, recognize that their theoretical allegiances are divided between two, inconsistent traditions: legal positivism and the sociology of law.

Courts do many good things. Judges carefully consider individual claims and arguments,1 and contrast them against the law in light of evidence. Their decisions are argued for, are public, and can be contested in form and content in different hierarchical stages. Additionally, and among other things, these practices are said to contribute to the will-formation of the public sphere and improve the quality of the legislative process.2

For those who believe in the values of liberalism and democracy the state is under a political obligation to seek the common welfare of its citizens. In furtherance of this domestic duty, it retains among its external rights and powers that right of self-defense which has been assigned to states under other ideologies.

The contemporary international tax regime has been increasingly criticized over the years from varied perspectives, particularly as to the unfairness it produces for developing countries. Some commentators argue it is unjust due to the lack of participation of developing countries in the policymaking process on an equal footing. Others suggest the international tax regime was designed by affluent countries to respond to self-interested goals. Some note that its current institutional design creates opportunities for tax competition and avoidance, which more seriously affect developing economies due to their relative dependence on corporate income tax and their greater vulnerability to capital mobility. Others specifically criticize how taxing rights, that is, the entitlement of countries to tax cross-border transactions, are currently allocated between home and host countries and how they disfavour capital-importing, developing countries.

In 1989, Jacques Derrida was the keynote speaker at a Cardozo Law School symposium entitled “Deconstruction and the Possibility of Justice.” Derrida’s speech was entitled “Force of Law: The ‘Mystical Foundation of Authority’” (hereinafter, “Force of Law”). As the title of the symposium indicated, the conference was organized to address, and perhaps quell, the widely-held impression that deconstruction lacks a coherent conception of justice. Derrida’s lecture is a bold response to those critics who have charged deconstruction with political nihilism, irrationalism, and conservatism. Surprisingly, in “Force of Law,” Derrida comes very close to setting up a full-scale theory of justice and an accompanying account of law. And because Derrida’s recent work affirms the account of justice set forth in “Force of Law,” his lecture merits a close reading.

The nature of authority has been much debated in legal and political philosophy, and the terminology is not stable. I shall begin by stipulating how I understand some of the key terms used in this paper1. I consider authority here as a property of laws and of legal systems. Authority must be distinguished primarily from power, efficacy, and validity. Authority is not the same as power. A person or institution may have the power to affect the way that people behave, but lack authority because he, she, or it is purely coercive. Authority is not the same thing as efficacy; efficacy simply means that there is conformity to the rules of the system, whether willing conformity or not. But it is possible for there to be conformity to the laws of a successful repressive system, and such a system would not have authority. Authority is not the same as validity. To be valid is to be pedigreed by the rule of recognition of the legal system. A legal rule may have that property, and yet lack authority because it is not a rule which there is any obligation to obey. If the law has authority, then the demands that the law makes of us are such that we ought to conform to them. Theorists sometimes distinguish between “legitimate authority” and “de facto authority”. It follows from the above that in my terminology “authority” means legitimate authority as that term has been typically understood, as authority which issues directives we have an obligation to obey. “Legitimate authority” is pleonastic.

e-government is a fast-developing phenomenon in many countries world-wide. Information and communication technology (ICT) has the potential to transform government generally and re-invigorate democracy in particular. This article considers the role of ICT in increasing democratic engagement both in relation to traditional aggregative forms of democracy and as regards more radical, participatory democracy. Within traditional democracy the potential of ICT moves beyond simply e-voting and has particular application in the various consultations processes that are increasingly of significance within ideas of "modernised government". The particular value that ICT can bring is of importance for more participatory versions of democracy too.; A model of consultation, drawn from mediation, is outlined and the application of ICT to such methods of decision-making is considered. Finally a range of best practice examples is given to illustrate how a technology of democracy requires putting information technology in service of democracy rather than the other way around.

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.

The proper jurisdiction of lawful authority has always been a central issue in Anglo-American jurisprudence. English and American legal institutions both grew out of a seventeenth-century British culture that valued liberty, and sought to defend it legally by carefully defining the scope and purpose of lawful authority. Yet after 1776 the two nations diverged. This paper will evaluate English conceptions of legal authority from an American perspective. My thesis is that English lawyers discuss the authority of law in language developed to counter seventeenth- and eighteenth-century European revolutionary thought. British reactions to the English, American and French Republics preserved Hobbesian conceptions of legal authority that still influence common-law jurisprudence today, and mislead English-speaking lawyers who have adopted British terminology. I will suggest a more precise vocabulary, and use it to criticise certain positivist conceptions of the authority of law.

Two-step proportionality-balancing [TSPB] has become the standard method for human and constitutional rights decision-making. The first step consists in determining whether a rights-provision has been infringed/limited; if the answer to that first question is positive, the second step consists in determining whether the infringement/limit is reasonable or justified according to a proportionality analysis. TSPB has regularly been the target of some criticism. Critiques have argued that both its ‘two-step’ and ‘proportionality’ elements distort reality by promoting a false picture of rights and constitutional decision-making. This would cause negative moral consequences. This article seeks to defend TSPB against these criticisms and to depict it in a more appropriate and favourable light. First, it is argued that both aspects of TSPB do not have the dire moral consequences that opponents suggest they have. Second, it is argued that TSPB, deploying notions such as burdens, presumptions and prima facie/defeasible propositions, constitutes a valuable framework for public argumentation and authoritative decision-making.

All forms of criminal charge adjudication produce errors of mistaken conviction or acquittal. Yet in most criminal justice systems, an endpoint of sorts is eventually reached and further attempts to correct errors are disallowed. The first issue discussed is whether such “finality” in charge adjudication should be presumptive or non-presumptive. My contention is that it should be presumptive. But should it be presumptive only for convictions or also for acquittals? As against strong forms of asymmetry, I urge weaker forms, according to which we should seek to correct both kinds of errors while exhibiting some degree of preference for correcting errors of wrongful conviction over those of wrongful acquittal. The issues that must be faced if we are to set up procedures allowing rebuttal of the presumption of finality are then surveyed. Doing so reveals the forms that weak asymmetry might take.

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.

Ensuring equal liberties requires neutral, i.e. impartial, settings where nobody would be deprived of freedom because of their personal characteristics. Religion and disability appear as characteristics which may clash with the existing social and physical environments. Therefore, the necessity of adjusting the existing environment, i.e., reasonable accommodation, is mostly discussed in reference to religion and disability. I aim to discuss reasonable accommodation from a different perspective and ask whether reasonable accommodation should be extended to age issues. I propose that age can lead to differences in conscience or culture like religion. Age can also be a source of dis/ability so it can be compared to accustomed disabilities. Eventually, age may also clash with the existing social and physical environments. I further propose that age is not only similar to but also different from religion and disability when it comes to reasonable accommodation. Therefore, I defend, reasonable accommodation should be extended to age in a special way. The next question then is how age could be accommodated under the European Union (EU) law, especially when we consider that reasonable accommodation law does not have a wide scope in the EU, unlike in Canada.

The topic of ‘judicial discretion’ has been at the center of the debate on legal interpretation in the philosophy of law.1 In a general sense, ‘discretion’ here refers to the exercise of a judgment by a decision-maker due to the lack of legal constraints affecting one’s ability to decide a case. The most fundamental question on this topic is ‘do judges have discretion when interpreting the law?’ There are three kinds of answers to this query. One kind of answer states that judges never have discretion.2 Another kind of answer states that judges always have discretion in interpretation.3 The third kind of answer states that judges sometimes have discretion when interpreting the law, and sometimes they do not.4

Austin’s theory of theory of law is simple: the law follows the pattern of power; the sovereign gives commands and obeys none; the subject obeys commands; the law consists in only those commands that directly or indirectly emanate from the sovereign. Nevertheless, Austin’s theory of sovereignty is not simple at all. When we look at the relevant chapters closely, it becomes evident that Austin has two rival theories of sovereignty, one for a single person and one for a ‘determinate body’. It is only the latter that allows him to say that sovereignty lies, ultimately, with the electors, the strange conclusion of his book. But Austin’s second theory of sovereignty is not consistent with his own theory of law. Austin’s faces a dilemma. Is law - as most people take it to be - a public order of standards of conduct aiming to guide behaviour? If so, sovereignty ought to be public and intelligible. If not, sovereignty can remain a mystery to those living under it (accessible only after the event by the expert legal philosopher). For the latter reading, law and sovereignty are ‘normatively inert,’ as some of Austin’s followers claim today. But Austin does not agree with his modern followers. Austin’s second theory of sovereignty is aimed at satisfying a practical requirement of law and jurisprudence, i.e. to be in the position of publicly guiding conduct.

While Rawls himself put contractualism to work at the national level, his more cosmopolitan followers have argued that the full requirements of international justice can be reached only by way of a global contractualist argument. Both positions neglect a resource from within the contractualist tradition, The need for iteration of the nation-level contract gives rise to strong and reasonably definite moral requirements. A good-faith adoption of the contractual argument entails, first, a duty to assist those whose potential recourse to just arrangements is blocked by tyranny or political collapse. Second, understood as a net risk-reducing project, a nation-level contract entails a duty not to impede the iterated risk-reduction projects of other national soceties. Envisaging the duty in this contractualist way avoids problems that beset both "natural duty" and "interactionist" approaches to international justice. The non-impedance requirement bears especially on international economic arrangements. The institutional representation of those affected by such arrangements would connect this abstract requirement with practical conclusions.