In his The Moral Limits of the Criminal Law: Harm To Self, one volume in what is arguably the most impressive and thorough statement of liberal political philosophy to date, Joel Feinberg claims that there is a problem of reconciling the reasonableness of our concern for people who endanger themselves with our repugnance for paternalism:

Current legal trends tend to obscure the sharp distinction between substance and procedure. This tendency is manifested, inter alia, as a growing dependence of procedural norms in substantive law; greater flexibility of procedural norms; and growing judicial discretion to deviate from procedural rules. In order to evaluate these contemporary trends, we provide a theoretical analysis of the basic relationships between procedural norms and substantive legal outcomes. This framework reveals the moral commitments underling these modern trends as opposed to the moral foundations of the traditional view that legal decisions should be made under rigid procedural constraints. Focusing on criminal evidence law, the proposed theoretical framework is applied to some of the ongoing legal debates, such as about the admissibility of evidence seized in violation of rights, the exclusion of statistical and character evidence, and the flexibility of the reasonable doubt standard of proof.

This paper asks whether refugee law is morally trustworthy. Trustworthiness here denotes that those who make refugee law—in particular those who decide refugee claims—are competent in this domain and are moved by the fact that refugee claimants and citizens of countries of refuge count on them to make morally sound decisions. Drawing on Adam Smith’s sentimentalist theory of law, the paper argues that refugee law is presumptively subject to various corruptions of the moral sentiments, namely national prejudice, contempt for the lowly, love of domination, and self-deceit. Combined, these corruptions may explain the apparent arbitrariness of refugee claim outcomes. They also suggest that we should be skeptical of any claims regarding the moral trustworthiness of refugee law. What they do not suggest, contrary to more cynical theories, is that refugee law is free of normative constraint.

The central theoretical assumption of English land law (and land law in related legal systems) that all rights in land are derivative of the Crown’s rights does not provide a full account of the origins of rights in land. ‘Liberal’ theories of the origin of property rights, which see property rights as something that emerged independently of state action, retain considerable explanatory value. The paper begins with a discussion of the principal features of David Hume’s account of the origins of property. The paper then engages with historical scholarship that shows that (1) it is a mistake to see the medieval English hierarchy of administration as implying a hierarchy of property rights ultimately derived from the Crown’s ‘title,’ and (2) the idea that communal medieval agricultural practices were super-imposed upon a pre-existing system of individual property rights is plausible.

The crucial question for many legal disputes is “what happened,”? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas’s insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be factually reliable. This requires: (a) relevant evidence is admissible and exclusions are justified based on respecting human autonomy; (b) error-risk management is internally coherent and consistent; (c) the standard of proof is, at minimum, a balance of probabilities; (d) evidence is used rationally. Second, fact-finding processes must ensure fulsome participation rights. This project is justificatory—civil justice systems are imperfect, but there are attainable conditions that make them good, which must never be compromised.

The theory of unjust enrichment – the theory supporting the recognition of a doctrinal category of unjust enrichment – has been accepted across much of the common law world. The recognition of a doctrinal category is not just a matter of presentation. It has a role in legal reasoning that reflects the fact that it is based on a particular principle or distinct justification for a claim. The theory of unjust enrichment is misguided because there is no principle or distinct justification common to the various claims that have been gathered together to form the new category. The theory has appeared attractive, it would seem, not because a plausible version of the principle of unjust enrichment has been identified, but because it has appeared impossible to explain these various claims in any other way, in particular as claims in property or contract. This difficulty has arisen, it is suggested, largely as a result of a mistaken analysis of primary and remedial rights. The article explores these issues with respect to contract law and property law.

In recent years democracy has become a prominent topic in the development of international law and relations. The trend in the international system in pursuit of international legal requirements of democracy is perhaps most evident in Europe with significant support coming from the regional organisations of Europe. The EU is part of this development having established treaty-based provisions making democracy a requirement for current and potential members. At the same time the economic integration project of the EU places a range of demands upon states which directly impact the type of democracy they may be striving for. Significantly, the EU’s requirements will influence the extent to which social democratic practices may be pursued. Examining the type of democracy the EU is promoting among its current and potential members will be useful for understanding the meaning and content of the type of democracy international law is working towards and also for the future of social democratic practices in Europe.

A woman awakens surrounded by four men who remove her from her bed and take her to another room. Despite protests and physical resistance, the men engage in a series of sexual acts with her. She files a complaint and the men are charged, tried, and convicted. They appeal, claiming they believed she was agreeable to their actions. They had been told by her husband that she had unusual tastes in sexual matters, and liked simulated gang rape. Because they had thought she was willing, they had not intended to rape her and therefore should not have been convicted.

The commonplace view is that moral thinking has significantly influenced legal theory, but law has had very little theoretical effect on morality. In this article, I attempt to show this is not so. Taking the inverse course in tracing the interrelations between law and morality – investigating morality from the perspective of law rather than examining law from the perspective of morality – I show, through the case of promises, that legal theory has greatly affected dominant strands of moral thought. By bringing to the fore the robust legal elements that guide some of the prevailing moral theories, my aim is to offer a new diagnosis of their problems, showing that the legal mindset is what distorts their moral analysis.

I start by offering a list of law’s special underpinnings. Predicating law as a unique social phenomenon and, as such, as possessing certain features that distinguish it from other normative domains, this list, though not a definition of law as such, presents a sufficiently inclusive account of what it means for a normative theory to be legal or legal-oriented. This profile serves as a tool helping to discern, for the first time, the unrecognized influences of legal thinking on other normative domains, and to reveal whether, and to what extent, some normative accounts rest on and are affected by legal ideas, tools, terminology, and structure. Applying this model to the analysis of promises offered by such thinkers as Charles Fried, John Rawls, and T. M. Scanlon, I show how their legal mindset shapes their moral accounts of promises. My conclusions indicate that the unaccounted for influence of legal ideas on morality in general, and on the morality of promises in particular, leads to an unsatisfactory conception of both.

The purpose of this article is to explore the resources available within the economic analysis of law for rationalizing the constitutional right to freedom of expression. I have sought to falsify the hypothesis that economics is incapable of supplying a rationale for the constitutional guarantee of freedom of expression. I have argued that, from an economic perspective, the guarantee may be understood as a device for the facilitation of political competition and the mitigation of the agency costs of government. Nevertheless, economics provides no support for the notion that the fact that an act is undertaken by a person in the exercise of her “autonomy” is a licence for that person to set back another individual’s welfare. This applies to expressive acts as it does to all other acts that produce external consequences. There might be good reasons to require each of us to suffer the negative consequences of other individuals' self-fulfillment, or to place the information marketplace as a whole (and not only that part which relates to the political marketplace) under judicial protection. However, any such reasons do not appear to sound in economics; they require other frameworks of analysis and evaluation.

Dworkin advances the view that judges decide legal cases according to constructive interpretation. The aim of constructive interpretation is to justify the coercion of the State. A trivial implication of this view is that officials and citizens will comply with the law because of the justification that has been advanced by judges in their exercise of constructive interpretation. Consequently, neither officials nor citizens comply with the law because they have been coerced or because they have been simply told to do so. But then, it seems that constructive interpretation cannot really provide any guidance since officials and citizens have been asked to accept the interpretation of the law that has been put forward by the judges since arguably, it is the best possible interpretation of what the law is in this particular case. However, why they ought to do so?

I will argue that the mistake of the theory of constructive interpretation lies in a misleading and implausible conception of action that believes that action is raw behavioural data and that therefore we need to ‘impose meaning’, ‘value’ or ‘purpose’ on them. I will defend a more plausible conception of action along the classical tradition that understands practice as originating in agency and deliberation. The outcome is that constructive interpretation and its conception of ‘imposing meaning’ on practice is a theoretical perspective that neglects and misunderstands action and practical reason.

In this paper I reconsider the relation between property and unjust enrichment and respond to a recent argument that actions in unjust enrichment cannot be actions in corrective justice. I suggest that any analysis that regards actions in unjust enrichment as embodying principles of corrective justice requires supplementation by considerations that are, at bottom, proprietary in nature. I argue that there is no incompatibility in viewing actions in unjust enrichment as actions whose grounds are broadly proprietary in nature; that understanding unjust enrichment in this manner does not threaten its theoretical coherence; and that understanding unjust enrichment in this manner allows us to view actions in unjust enrichment as actions in corrective justice.

Despite tributes paid to Fuller as an intellectual father of ADR, little attention has been paid within the ADR field to the broader interactionist vision that underlies Fuller’s discussion about process. A closer reading of Fuller’s study of mediation, however, reveals that he intended that study to substantiate his interactionist thesis about the nature of social ordering. He understood ordering to be generated by and to reflect a particular experience of social interaction. Fuller’s interactionist vision recognizes the creative, choice-making and purposive dimensions of human reality, emphasizes participation as a normative criterion for institutional design, and gives rise to a pluralistic notion of power arrangements. It appears in Fuller’s thinking about process as a kind of dialectic and integrative mindset that pervades his means-ends analysis, functional analytical approach and his emphasis on institutional design. This interactionist vision has particular relevance for the practice and research of ADR, for example, in helping to develop a more integrative approach to process pluralism.

Matthew Kramer has recently proposed a distinction between norms that are free-floating and those that are not. The distinction, he argued, enables us to distinguish between norms that can be incorporated into the law and those that cannot. In this essay I argue that his distinction is based on several theoretical errors, and that even if it were successful, it is unclear why his distinction is relevant for the question of the boundaries between law and morality. I also provide many examples from actual legal systems of legal norms that do not correspond to Kramer’s distinction. I conclude the essay by suggesting that Kramer’s argument exemplifies a prevalent problem in contemporary legal philosophy, in which much work is often based on simplistic models of law and uses them to develop ‘conceptual’ arguments for what closer attention to the facts shows are empirical questions. As a result many current jurisprudential debates are not helpful for understanding legal phenomena. Recognizing this point is important for reorienting legal philosophy towards other questions which would be more helpful for illuminating its subject-matter.

Karl Marx wrote that ‘the philosophers have only interpreted the world in various ways’, whereas ‘the point is to change it’. Are international legal scholars exposed to the same charge? Have they too placed theory before the demands of real-world emancipatory practice? The author explores these questions, and shows how Marx’s concerns about the philosophers indeed have resonance in the field of international law. At the same time, however, she observes that the problem is not with theory per se, if by theory is simply meant academic enquiry. Rather, it is with theory of a particular kind. Against this background, she discusses some of the ways in which academic enquiry can be itself a form of emancipatory practice, some of the features of what she refers to as transformative scholarship. In developing her account, she highlights the point that those who seek social transformation need not only to transcend the limitations for which Marx criticised certain kinds of philosophy (‘idealism’). They also need to avoid the antithetical pitfalls for which, much later, Frankfurt School theorist Adorno criticised certain modes of politics (‘actionism’).

In Gosselin v. Quebec, the Supreme Court of Canada considered whether the Quebec legislature violated the Canadian Charter of Rights and Freedoms by failing to provide unemployed adults under the age of 30 (young adults) with the level of social assistance provided to other unemployed adults. A majority of the Court concluded that the underinclusive legislation in question was not unconstitutional. The case gave rise, however, to one of the most progressive and intriguing dissenting opinions in Canadian constitutional history-a dissent made all the more interesting by the fact it was written by a judge who would later become the United Nations High Commissioner for Human Rights: Louise Arbour. Her dissent focused on the proper interpretive approach to s. 7 of the Charter, which states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” She argued that the “right to life” contained in s. 7 entails a number of positive rights, including the right to a minimum level of social assistance.This paper argues that Arbour J.’s dissent in Gosselin reveals an inherent flaw with the very concept of rights; namely, that they presuppose the state’s authority to exclude whole populations from the protection of law. The argument has four parts. Part I reads Arbour J.’s approach to the constitutional questions raised in Gosselin as broadly sympathetic to Foucault’s understanding of power in the modern era. Part II claims that Arbour J.’s judgment presumes that formal legal regulations, and not other, informal mechanisms of power, chiefly bear the burden of governing life. Part III examines Agamben’s critique of Foucault to show why Arbour J.’s privileging of state governance of well being is problematic; in particular, that the greater the formalization and centralization of the mechanisms by which life is governed, the greater the prospect of exclusion of groups and classes from rights regimes altogether. Finally, Part IV explains that Arbour J.’s concession to juridification is driven by an inherent problem with rights, and that the difficulties she runs into cannot be avoided; that exclusion from the rights framework is built into the very concept of rights.

This article considers the relationship between moral philosophy and constitutional theory through a detailed examination of the work of Jeremy Waldron—an unavoidable voice in contemporary constitutionalist debate. Through a rigorous, original and holistic deconstruction of his work and its philosophical implications, I argue that Waldron’s engagement with core philosophy within his constitutional scholarship is wholly problematic, containing a number of ambiguities and apparent inconsistencies. These issues, I suggest, may stem from an at times rather casual treatment of the realist/anti-realist issue of core philosophy, perhaps owing something to his view that it is in fact safely irrelevant to his constitutional pursuits. In any case, this view, I argue, is misguided, and the problems which result are real: they not only create issues of theoretical consistency and clarity; they put Waldron’s constitutional theory in danger. Like all good tales, I suggest there are lessons to be learned from this: one must think, and think carefully, about the philosophical background of one’s work, and take care in setting this out in a clear, thorough and coherent way—the stakes are too high not to. With this in mind, this article also lays some groundwork for a path into constitutional theory firmly grounded in my own anti-realist moral scepticism.

Alan Brudner’s closely-argued, richly-textured and wide-ranging work, Constitutional Goods, provides a striking and original account of the rule of law and its implications for legitimate government. Since the rule of law includes the enforcement of substantive principles ofjustice, it requires a clear separation of powers between court and legislature. The role of the court is chiefly confined to pure practical reason, determining what the public reason of the liberal consti-tution requires. It is the role of the legislative assembly to give its assent to governmental measures that apply the principles ofjustice to empirical circumstances, where the scope for reasonable disagreement provokes a transition from natural law to political judgment. Judicial review carries no anti-democratic implications because it defends the conceptual boundaries of popular decision-making: ‘Democracy is not defeated but protected if the court invalidates a law no free person could impose on himself, for the majority has no more authority to pass such a law than an autocrat nor any jurisdiction to decide by fiat a question to which there is a correct legal answer.’

While recognizing that H.L.A. Hart’s The Concept of Law has exerted a powerful and continuing influence on general jurisprudence, Brian Simpson finds it wanting. Simpson argues that Hart’s determination to make broad generalizations about the nature of a legal system deflected him from the important task of attending to the particularities of actually-existing law. Moreover, he identifies Hart as a ‘hedgehog’ in Isaiah Berlin’s sense: a thinker whose work gives expression to a ‘single central vision’ (in Hart’s case, law as a system of rules). This critique of Hart leads Simpson to argue for an approach to legal philosophy that is more attentive to the details of existing legal systems. But Simpson fails to present his readers with the theoretical approach for which he argues. This essay seeks to make good this deficiency in his response to The Concept of Law. To this end, it uses the writings of two philosophers on whom Simpson draws (Berlin and Michael Oakeshott) with the aim of enriching Hart’s contribution to general jurisprudence. Moreover, it finds in this Hart-Oakeshott-Berlin-based interdisciplinary theory (HOBBIT) a basis on which to throw much light on Britain as a distinctive form of politico-legal life.