This article revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions. Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state. Hegel is also right to stress that punishment is – not merely conceptually, but also in the reality of our social world – a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom. This understanding of punishment sets significant limits to punishment’s permissible forms, particularly – but not only – with regard to the death penalty. By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents. In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

There are a set of wrongs that are normatively distinct as ‘criminal wrongs’, and yet, there is disagreement as to ‘the basic features of criminal liability’ that explain this normative distinctiveness. The only consensus has been that criminal wrongs are ‘public wrongs’. For some, they are public wrongs in the sense that they infringe the values and interests for which the community has a shared and mutual concern. For others, they are public wrongs in the sense that they are the wrongs that public officials are responsible for punishing. A third view is that they are public wrongs in the sense that there are procedural advantages of having public officials empowered to address the wrongdoing. I argue here that the first two views are analytically inseparable: the considerations that explain the wrongs that merit social prohibition are the same considerations that explain the censuring and punitive response of the criminal law. I also argue here that, contrary to the third view, the powers of public officials in criminal law procedures follow from, rather than explain, the concept of a crime being a public wrong. Procedural advantages can explain how criminal wrongs are public wrongs, but they cannot explain why criminal wrongs are public wrongs.

Focusing on the recent U.S. Supreme Court decision, Eldred v. Ashcroft, which held that the U.S. Congress acted constitutionally when it extended copyright terms by twenty years, this article argues that copyright law in the United States for the most part responds to pragmatic imperatives. The article examines the theoretic/pragmatic distinction at an institutional level and argues that intellectual property lawmaking is at its most pragmatic in the legislative realm. While there is greater potential for theoretical concerns to influence intellectual property law-making in the judicial review context, in Eldred v. Ashcroft, the Court declined to allow grand intellectual property theories to dictate the freedom Congress enjoys to craft copyright legislation in the light of its rational view of the best (pragmatic) cultural and economic policies. The article concludes that in Eldred v. Ashcroft there can be detected an ontological approach to the “Copyright Clause” in the U.S. Constitution. The Court’s role is to ensure that Congress acts consistently with what copyright “is”; that is, a vehicle for motivating the “creative spark” of authorship. Congress has relatively free rein to determine what copyright should “do”. Moreover, any limitations on what copyright is meant to achieve are certainly not to be determined by theoretical concerns. Even the Court’s ontological approach to copyright law should be regarded as “modest,” however, given the Court’s general deference to the policy and cultural choices legislators make in the copyright field.

Wittgenstein’s writings on “rule-following” remain an important—and sharply contested—part of his later thought. The reference to “rules” in those writings was both broader and more basic than the use of that term in most discussions of practical reasoning or legal theory. Wittgenstein’s use of “rule” refers to all normative constraints which apply over an indefinite variety of cases, to practices where our actions might be said to be guided, to situations where characterizing actions as “correct” or “incorrect” makes sense. However, “[h]e aimed not to write a book on rules but to examine specific problems arising out of insights into the normative nature of a language, of logic and of reasoning.” He focused in particular on normative practices that on the surface do not seem troubling or difficult to understand: for example, using a word correctly, understanding a signpost, and continuing a simple mathematical series. In such examples, the interesting question is not whether a particular response or continuation is right or wrong; Wittgenstein specifically chose examples where there would be consensus on that issue. Wittgenstein’s question is what is it about the rule or about ourselves which makes our responses right or wrong (or which justifies us in reaching that evaluation)?

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.

We are experiencing a transitional moment in international law. What once seemed to be an unstoppable evolution toward cosmopolitan constitutionalism now appears as a fragile and easily reversible trend, threatened both by the imperial disregard of international legality by recent U.S. administrations and by the disinterest or active opposition of a group of states that was classified as ‘uncivilized’ in nineteenth century international law. A powerful account of the differences between these states -- former colonies and satellites of great powers – and the predominantly western states whose publics take for granted human rights culture has captured the imagination of international elites. The contemporary account of the differences between western European-descended political communities and the ‘others’ focuses on democratic governance, human rights, and human security. One important element of this narrative is the emerging international legal concept of the ‘responsibility to protect,’ often promoted as a means of securing the preceding three goods. This paper considers the recommendations of the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) concerning a subsidiary element of the responsibility to protect termed the ‘responsibility to prevent.’ It argues that the prescriptions associated with the responsibility to prevent rest upon a set of prevailing assumptions about the root causes of threats to human security that are not tenable or not proven, and which both rely upon and reinforce the dualistic narrative of lawful and outlaw states that now dominates international public policy-making in western countries. Further, it shows how the model of legalization of humanitarian intervention proposed by ICISS is susceptible to cooptation by the democracy promotion project frequently associated with the liberal peace thesis. Finally, the paper recommends that only a stripped-down version of the ICISS recommendations, limited to the ‘responsibility to react,’ should be legalized, primarily because of the current absence of a reasonable degree of intercultural agreement on a substantive grounding for a muscular interpretation of a responsibility to prevent that includes root cause prevention.

Outing is conceptually linked to the notion of the “closet”; “coming out of the closet” amounts to publicly acknowledging one’s homosexuality, or at the least one’s participation in sexual activities with persons of the same sex. Outing makes someone’s homosexuality public; they are forced out of the closet, so to speak. Richard Mohr has described it this way: “outing [makes] publicly acknowledged the sexual orientation of a homosexual without regard to whether the person is willing to have this information publicly acknowledged”. Leslie Green provides this definition: “the practice of publicly exposing someone’s presumed sexual orientation, against his or her will, in circumstances where the revelation may be damaging.”

Over the last two decades, legal scholarship has been catching up with the more than century old calls by black Americans for reparations.1 Tax scholar Boris Bittker (in)famously launched the viability of black reparations into legal scholarship with his now classic monograph, The Case for Black Reparations.2 However, it would take more than twenty years for mainstream legal scholarship to take up the robust and wide-ranging set of questions raised by the possibility of reparations for American slavery.3 In the late 1990s private law scholars leapt into the debate, discussing unjust enrichment and torts-based models of black reparations.4 While these scholars made a variety of distinct arguments, collectively, their model rested on the contention that America had wrongfully expropriated the labor of generations of enslaved African Americans and the result had been systemic unjust enrichment, or a species of mass torts. Grounded in various conceptions of corrective justice, these models conceive black reparations as a set of claims that would be litigated through the courts. Over the ensuing two decades, the private law model has become somewhat of an outlier in reparations discussions, largely set aside in favor of broader, more explicitly political approaches.

Individuals sometimes do things that they know will violate the terms of a statute. Most scholars deny that such actions are always morally wrong, but a coherent theoretical account of the relationships between 1) moral obligation, 2) legal obligation, and 3) criminal wrongdoing that can robustly classify hard cases has been elusive. This article starts with a Kantian account of the relationship between law and morality, and it proposes two closely related standards: one for legal obligation, and another for criminal wrongdoing. It then tests the plausibility and resilience of these standards by using them to generate illuminating new analyses of classic hypothetical cases involving alleged crimes committed under circumstances of necessity. These analyses offer reason to believe that the standards proposed in this article can anchor a Kantian theory of criminal responsibility that is simultaneously rigorous and humane.

Legal theorists have become increasingly interested in whether or to what extent the later writings of Wittgenstein support scepticism about the possibility of rational objectivity or determinacy in legal reasoning and discourse. Some critical legal theorists have explicitly relied upon Wittgensteinian arguments to support arguments for radical scepticism. More recently, anti-sceptical theorists have argued that reliance by critical theorists upon Wittgensteinian arguments involves a serious misinterpretation. I shall in this essay add my voice to those already making this argument.

One of the most important and divisive issues facing heterogeneous or culturally diverse states—and most states are culturally diverse—is the relation between these different cultures and the state.

This question was raised initially in contemporary liberal political philosophy in terms of the fruitful debate between liberals and communitarians. Sandel, for example, criticized Rawls’s A Theory of Justice and, by extension, all liberal theories for falsely abstracting from conceptions of the good, abstracting from culturallyspecific conceptions, and grounding his liberal principles in terms of an abstract Kantian individualism. Liberal theorists countered by complaining that communitarians falsely conceived of a single homogeneous community. Although Rawls’s revised defense of liberal justice in his 1993 book Political Liberalism does not refer directly to the liberal-communitarian debate, nevertheless, his new grounding of liberal political principles, as principles which would be acceptable to individuals with diverse conceptions of the good, seems to justify liberal principles in terms of contemporary conditions, and, at the same time, challenges the relevance of those theories which appeal to any notion of a homogeneous ‘community’.

This paper reviews the accountability regimes of contractarian and communitarian theory. The contractarian theory is further elaborated with the developments of shareholder primacy, the stakeholder theory and team production model (TPM), and the communitarian themes of single constituency, Catholic social thought (CST) and corporate citizenship. Contractarian theory is rooted in liberalism, where as communitarian theory is a humanist discipline. While contractarians stress the value of competition, liberty and freedom, the communitarians emphasize cooperation, justice and civic responsibility. The purpose of this analysis is to frame corporate ‘personhood’ in the perspective of the existing theories. This article suggests that corporate citizenship has been revived under Canadian law which contemplates a communitarian corporation.

Wittgenstein seeks to inoculate us against the lure of metaphors. The conundrums of philosophy are, he implies, often the misbegotten offspring of abused metaphors. How many rooms are needed to house the “furniture of our mind”? With what key do others gain access to my “private” thoughts and feelings?

Jurisprudence has its own syllabus of philosophical puzzles. One of the hardiest is the issue of judicial license and judicial standards. This issue has special fascination for American legal theorists because of the pivotal role played by the Supreme Court in exercising the power of judicial review by interpreting the Constitution. American theorists have taken for granted, and other theorists have seemed to acquiesce in this assumption, that to understand the nature of law is to understand how appellate judges find and/or make law.

No one familiar with Ronald Dworkin’s work can fail to be aware of his view that jurisprudence and law are both fundamentally enterprises of moral justification. Throughout his writings, Dworkin has resolutely set himself against the legal-positivist insistence on the separability of law and morality. The present essay critically explores the arguments and assumptions that underlie his stance.

No one has ever adequately described, either in poetry or in private conversation, what the very presence of justice or injustice in his soul does to a man, even if it remains hidden from gods and man....

The interest of political theory in the acceptance of law is obvious. If one believes that a regime is legitimate only if it governs with the consent of the governed, then the notion of acceptance is deeply linked with the notion of legitimacy, a fundamental concern of political theory. The interest of legal theory in the notion of acceptance is less obvious. I construe it to arise in the following way. One central tradition in legal theory is that of positivistic or content-independent theories of law. Positivism, crudely speaking, is characterized by some form of the Separation Thesis—that the existence of law is one thing and its merit or demerit another. But if it is important for positivistic legal theory to mark the separation of law and the merits of law, then it must also be important to mark the separation between law and the acceptance of law. The existence of law must be one thing and its acceptance as meritorious another. In deference to the separation of existence and merit, positivism tries to find a content-independent account of the validity of law. Equally, in deference to the separation of law and acceptance, positivism tries to find a content-independent account of the acceptance of law. The topic of this paper is whether the separation of law and the acceptance of law is possible. I shall try to suggest, in service of a non-positivistic or content-dependent approach to law, that this separation is not possible. I will attempt to argue on the basis of points which legal positivism itself has acknowledged to form valid constraints on any theory of acceptance. My ambitious thesis is that positivism has presented us with the reasons for rejecting it. Even if that thesis is not made out, I have a less ambitious thesis which I am confident of securing, that the demand for an account of law which permits law to be accepted ‘for any reason whatever’ is not a theoryneutral demand which might decide between positivism and natural law theory. Rather, it is an expression of a prior commitment to positivism. It is the familiar demand of natural law theory that the convergence of attitudes towards law which makes for acceptance of law must be a convergence for the right kind of reasons; ones that have to do with the value of law.

My primary goals in this article are to show: first, that we can identify and justify which basic freedoms are important ones to protect in the global context; second, that we can monitor whether we are making progress with respect to whether more or fewer people are enjoying the important freedoms; third, that we can identify some key institutions that play a central role in fortifying those freedoms; fourth, that we can help build or fortify local capacity with respect to protecting basic freedoms; fifth, that external support and building international institutions can play an important role in securing local capacity to protect basic liberties. The emphasis is on trying to construct local capacity to protect basic freedoms. However external support has a key role to play. I argue that protecting press freedom and building institutions of international justice play crucial roles in securing local capacity to protect basic liberties. We have obligations to support those institutions that would facilitate progress with respect to protection of basic liberties. So, for instance, we have a range of responsibilities to support press freedom in all countries, along with international efforts to bring to justice violators of basic liberties.

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.

The ideology of treatment, as well as confidence in the special preventive effects of punishment, was severely attacked in the late 1960’s. In Scandinavia, this criticism quickly led to a series of legislative reforms. The first target was the system of preventive detention. The lack of legal security was considered to be most obvious flaw here. After the reforms concerning the use of preventive measures—for example, for dangerous offenders—were implemented, attention shifted to the structure of the whole penal system. From the mid 70’s on, the Finnish criminal justice system was reformed in a “neo-classical” spirit. Instead of individualization and rehabilitation, the emphasis is now placed on legal security and the principles of proportionality, predictability, and equality. These ideas and principles received their most manifest expression in the 1976 reform of sentencing provisions (Chapter 6 in the Finnish penal code).

This paper explores how an adequate understanding of legal relations can be aided by, and sometimes requires, returning to the foundations of our conception of legal relations.

The process of conceptualization is a process of revealing the form in legal relations. The two most fundamental forms of legal relations, first enunciated by Aristotle, are corrective justice and distributive justice. The thesis of this paper is that an analysis of legal relations can be coherent only if it is faithful to the form of justice appropriate to the particular legal relation under study.