Developments in artificial intelligence and robotics promise increased interaction between humans and autonomous machines, presenting novel risks of accidental harm to individuals and property.1 This essay situates the problem of autonomous-machine-caused harm within the doctrinal and theoretical framework of tort law, conceived of as a practice of corrective justice. The possibility of autonomous-machine-caused harm generates fresh doctrinal and theoretical issues for assigning tort liability. Due to machine-learning capabilities, harmful effects of autonomous machines may be untraceable to tortious actions of designers, manufacturers or users.2 As a result, traditional tort doctrine—framed by conditions of foreseeability and proximate causation—would not ground liability.3 Without recourse to compensation, faultless victims bear the accident costs of autonomous machines. This doctrinal outcome reflects possible incompatibility between tort’s theoretical structure of corrective justice and accidents involving autonomous machines. As a practice of corrective justice, tort liability draws a normative link between particular defendants and plaintiffs, as doers and sufferers of the same tortious harm, grounding defendants’ agent-specific obligations to repair the harm. Where accidents are caused by autonomous machines, the argument goes, the essential link between defendants and plaintiffs is severed; since resulting harm is not legally attributable to the human agency of designers, manufacturers or users, victims have no remedy in tort.

This paper argues that the wrong of slavery lies in the denial of the good of law to the slave. Defending this proposition will require the positing of three related claims: (i) that law is good, (ii) that the good of law is denied to the slave, and (iii) that the denial is wrong. This paper will defend the main proposition by defending its three constituent claims. On claim (i), the paper will relate the form of law to the formation of freedom. On claim (ii), the paper will relate law’s objectivity to legal subjectivity. On claim (iii), the paper will relate the state of nature to the state of civil society.

This article maintains that the standard conception of legal ethics – the so-called ‘theory of amorality’ – is highly dependent on context and cannot be consistently applied to transnational legal practice. After defining in some detail the basic tenets of the standard conception, I identify its main assumptions, namely, (i) that a legal relation is an agency relation in which both lawyer and client are individual moral agents, (ii) that such relation is connected to a litigation process, and (iii) that such relation takes place within the framework of a decently well-functioning rule of law system. Using as a paradigmatic example the BTC pipeline case– a set of contracts and international treaties signed by a consortium of private companies and several sovereign states during the first decade of the 21st century to regulate the building and operation of a transnational oil pipeline – I analyze one by one these three assumptions to conclude that they are at the very least highly problematic in the context of global legal practice. Additionally, I consider the counter-argument that a lawyer who moves beyond the standard conception is actually usurping the role of the judge, an argument that loses much of its appeal on the transnational context. In a brief concluding remark I inscribe these problems within the more general post-Westphalian paradigm shift in law and jurisprudence.

Compensation for expropriation in most western jurisdictions aims to provide justice. Yet, while this quest for justice is inherent in expropriation laws, they nevertheless say little, if any, about the underlying conception of justice or how justice should be pursued. A closer examination of courts’ judgments, as well as scholarly discourse on the quest for justice in expropriations reveals a muddled dialogue in which divergent justifications pull one towards different normative and positive conclusions. Currently, expropriation doctrine purports to incorporate a sense of fair dealings with those who become victim to legal devices such as eminent domain. However, based on current case law, the reality of expropriation laws fails to reflect any true practice of justice.

This Article suggests a conceptual change in expropriation laws’ remedial scheme by embracing restorative justice as the underlying concept of what constitutes justice in expropriation law. By establishing expropriation law on a restorative conception of justice, a coherent framework will emerge that is circumstances attentive and will provide practical instruments to overcome some of current law’s most significant challenges. This opens a new venue for both expropriation law and restorative justice. Equally important, the Article provides a novel opportunity to consider restorative justice beyond the borders of criminal law.

In a recent article2 I examined the nature of private law offices, and here I extend that analysis to consider the trustee-beneficiary relationship where the trust is of a kind that Lionel Smith has called a “massively discretionary trust.”3 After considering some of the problematic legal features of such trusts, I shall probe the morally problematic features that these trusts present.

We love our children. We really do. Yet we also find ourselves happy when they finally fall asleep, or when they go back to school at the end of their summer vacation. We wish we could spend more time with our children, we really do. Yet we also wish to pursue our own projects, both professionally and personally. This ambivalence hints at a basic characteristic of caring for one’s own child, which is known to every person who ever had a child: it involves both a burden and a benefit.1

The “positivist turn” in legal ethics has found many scholars in the Anglo-American common-law world relating the duties of lawyers to the rights and duties assigned by the law to their clients. On this view, the role of lawyers should be understood as contributing to the law’s function of resolving conflict and establishing a framework for cooperation in a pluralist society. Critics of positivist legal ethics have suggested that it is impossible for lawyers to avoid resorting to moral considerations when representing clients. These critics claim that the guidance provided by law runs out at critical moments, leaving a lawyer no choice but to fall back on the moral considerations supposedly pre-empted by positive law. In particular they argue that the law cannot determine its own application, and normative questions remain regarding the interpretive attitude lawyers ought to take when representing clients. This paper responds to critics of positivist legal ethics by returning to foundations, specifically the values underpinning the rule of law as a practice of giving reasons based on norms established in the name of the political community.

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.

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.

Although grand, explanatory theories of tort law come apart from one another in many ways, they also have a fair amount in common. One core claim found in the work of various Kantian theorists, as well as a number of leading rights theorists, is that tort law develops, incrementally, in such a way as to achieve ever greater coherence (where such coherence is measured according to key tenets of the particular theories). This article takes issue with that claim. It shows, by reference to a host of legal landmarks, that tort law neither does, nor must, develop in this way. A great many important innovations in tort cannot be reconciled with central aspects of the theories in view, but they are easily explained by reference to major changes in material conditions of life, shifts in the ideological Zeitgeist, judicial partiality and juristic influence. As long as such factors are free to exert their influence – and there is nothing to suggest that they are not so free – it is implausible to suggest that tort law will inexorably move towards a state of ever greater coherence.

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.

This essay looks at the contemporary just war theory literature on preventive war that has emerged largely in reaction to the US invasion of Iraq. Recent sanctions on Iran and the debate over its nuclear program now suggest the usefulness of a forward looking perspective on preventive strikes, rather than the retroactive analyses offered thus far primarily with reference to Iraq. With Iran closely in mind, I address the various arguments for and against preventive war indicating throughout that the various principled objections to early military action can be overcome in this case. Many of the crucial concrete questions regarding costs and benefits need to be settled in practice, rather than in the realm of political theory. Ultimately, the discussion suggests that Iran is a legitimate candidate for early military action aimed to prevent it from developing nuclear weapons. I argue that in principle, subject to credible intelligence information and requirements of proportionality, a unilateral Israeli strike against Iran will be justifiable, both morally and legally, as self-defense.

Of all the various aspects of legal positivism, it is those bearing upon a theory of adjudication which have prompted its critics’ fiercest attacks. Legal positivism is taken to be committed to the thesis that a distinction exists between (so called) ‘easy’ cases—where the law can be identified and applied straightforwardly—and ‘hard’ cases—where the issue is not determined by the existing legal standards. Most critics are united in their rejection of this dichotomy, but divided by the two main routes they follow. The more familiar one, first outlined by Professor R.M. Dworkin, sets out to deny that hard cases are not regulated by legal standards. The other objection, and the one I wish to consider here, strives to show that the distinction itself is illusory since in all relevant respects, there are no easy cases as the positivist presumes.

When Legal Realism first appeared in American jurisprudential thought in the 1920’s and early 1930’s, it was frequently misunderstood as an attack on the integrity and truthfulness of the American judiciary. After all, wasn’t it a central tenet of Legal Realism that judges did not decide cases by applying preexisting and authoritative legal rules, but merely decided cases in whichever way they thought was best? Such considerations led to the derogatory restatement of the Realist position as holding that the law is determined by “whatever the judge ate for breakfast”.

This paper examines the claim that justice is necessary for a moral obligation to obey the law. By reflecting on the meaning of obedience, it identifies one version of the claim that must be right and another that must be wrong. It then focuses on the argument for a moral obligation to obey the law that most obviously includes the claim: John Rawls’s argument from the natural duty of justice. More specifically, it focuses on the degree of justice that is needed for this duty to ground a moral obligation to obey the law.

Democratic theory tends to proceed on the assumption that law requires democratic legitimation because it is coercive. However, the claim that law requires democratic legitimation is distinct from claims about the nature of law. This paper takes issue with the notion that law is coercive by an exploration of three distinct understandings of the nature of law: the state-based conception of law, law as the rules of institutionalized normative systems, and law as social norms. Drawing on insights from legal and democratic theory, the paper defends the view that the ‘law’ to which democratic claims apply are the rules of conduct of institutionalized normative systems. Since rules that belong to such systems are found in associations beyond or below the level of the state, the scope of democratic participation is significantly wider than is usually recognized.

From the Autobiography of John Stuart Mill

This article develops some conceptual correlations between Kant’s theory of aesthetic judgment and the common law tradition of legal judgment. The article argues that legal judgment, like aesthetic judgment, is best conceived in terms of intersubjective validity rather than objective truth. Understanding the parallel between aesthetic and legal judgment allows us to appreciate better the relationship between subjectivity and intersubjectivity, the individual and the community, in the formulation and communication of judgments, which combine a personal response and a reasoned determination intended for a discrete audience. The article frames and pursues these themes in relation to four core concepts in Kant’s aesthetic theory: judgment, communication, community, and disinterestedness. Through sustained comparison and application of these concepts in aesthetic judgment and legal judgment, the article provides a conception of judging that more accurately captures the common law role and relationship of the individual judge and the institutional judiciary as integral parts of the broader legal and political community.

International law on the protection and promotion of social and economic rights of the child binds states parties to respect, protect and secure these rights both in their own territories as well as to contribute to the programmes for such fulfilment in other countries in a strategy aiming at global implementation of these rights. This paper explores the legal basis for states‘ external obligations to support fulfilment of social and economic rights. It surveys inter alia the relevant treaty texts, explanatory resolutions of the UN General Assembly and statements in reports submitted by states parties to the UN monitoring committees, and argues that recent state practice and interpretation of human rights obligations confirms the extraterritorial obligations to support fulfilment of these rights. Since these are obligations to fulfil the rights of human beings in other countries rather than obligations to third states, they can be referred to as ‘diagonal obligations‘ to distinguish them from inter-state horizontal responsibility.