Constitutional democracies unilaterally enact the laws that regulate immigration to their territories. When are would-be migrants to a constitutional democracy morally justified in breaching such laws? Receiving states also typically enact laws that require their existing citizens to participate in the implementation of immigration restrictions. When are the individual citizens of a constitutional democracy morally justified in breaching such laws? In this article, I take up these questions concerning the justifiability of noncompliance with immigration law, focusing on the case of nonviolent—or mere—noncompliance. Dissenting from Javier Hidalgo’s view, I argue that the injustice of an immigration law is insufficient to make mere noncompliance justified. Instead, I contend that only if an immigration law lacks legitimate authority are individuals justified in breaching it, since the subjects of an institution with legitimate authority are under a content-independent moral duty to comply with its rules. I further argue that a constitutional democracy’s regimes of law regulating immigration and requiring its citizens’ participation in implementing these regulations have legitimate authority. Nevertheless, when a particular immigration law is egregiously unjust, its legitimacy is defeated.

In the opening pages of Liberalism, Community and Culture Will Kymlicka tells us that the book was motivated by two concerns:

Both the history of tort law and the recent theoretical literature on the subject suggest that there are two intellectually tenable and more or less equally respectable answers to the question of what should be the general standard of liablity in tort, namely fault and strict liability. Each is generally thought to have represented, at one time or another, the dominant approach of the positive common law. Each has its modern theoretical proponents: a fault-based approach has been argued for on grounds of economic efficiency by Richard Posner, for example, and on grounds of individual moral right by, among others, Ronald Dworkin and Ernest Weinrib; strict liability, on the other hand, has received an economic defence in the work of Guido Calabresi, and a rights-based defence in the writings of Richard Epstein. Each of these theorists has felt compelled not only to offer positive arguments in favour of fault or strict liability but also to answer the intellectual case, whether perceived as being founded on a conception of efficiency or of individual rights, for the rival approach.

It is a basic intuition about the law that organs of adjudication ought to justify their decisions by recourse to the appropriate applicable norms. Nevertheless, a sound reconstruction of the applicability of legal norms has been largely ignored in contemporary legal theory. Different connections between applicable norms and cases are explored in this paper, and a distinction is suggested between internal and external applicability. A legal norm is internally applicable to the cases regulated by its scope of validity (i.e. by its terms the norm fits the facts of the case), and is externally applicable when it has to be used in a certain case as a justification of an institutional decision (i.e. the presiding judge has a legal duty to apply it to the case). A usual claim holds that all and only valid norms which, by their terms, apply to the case at hand must be applied in determining the outcome of the case. However, we try to demonstrate that a valid legal norm that exists as a member in a legal system may be internally applicable to a case and yet not be externally applicable to it. It also may occur that judges sometimes have the legal duty to apply norms that are not part of their own legal system. Consequently, the relations between internal and external applicability and between external applicability and validity deserve a careful examination. In these pages we hold that, though validity plus internal applicability is neither a necessary nor a sufficient condition of the duty to apply a legal norm, there is a complex conceptual link between external applicability and the systematic reconstruction of the law.

Two classes of arguments are often deployed by the anti-global egalitarians against attempts to universalize the demands of distributive equality. One are arguments attempting to show that global egalitarians have misconstrued the reasons for why equality matters domestically, and hence have wrongly extended these reasons to the global arena. These arguments hold that the boundary of distributive justice is effectively coextensive with the boundaries of state. The other are arguments that attempt to show that membership in political societies generates special duties among members that may outweigh the demands of global egalitarianism. These arguments appeal to the ethical significance of state boundaries and membership. In my defense of global egalitarianism, I reject both the attempts to limit the boundary of justice and the attempts to give state boundaries special moral significance and priority. In particular, I will argue that the boundary of justice cannot coincide with the boundaries of states when the justice of the boundaries is at issue.

In the postcolonial era, we have witnessed waves of mass immigration. Consequently, many states are no longer associated with just one or two national languages. Newly formed immigrant minorities raise demands for language rights, alongside national minorities, which raise similar demands.Such a complex situation exists, for example, in Canada, where only French and English are declared official languages although there are other languages, such as Chinese, which are spoken by large communities of people. My paper addresses the general question of which linguistic minorities are most entitled to comprehensive language rights. Will Kymlicka distinguishes between national minorities, which he regards as deserving of comprehensive language rights, and immigrant minorities which are not. Many scholars challenge Kymlicka’s distinction. However, none of them have suggested alternative criteria for distinguishing minority languages that are entitled to protection from minority languages that are less entitled to protection. In my paper, I suggest such a criterion. My alternative criterion is based on the intrinsic interest people have in protecting their own language as the marker of their cultural identity, thus, comprehensive language rights are to be accorded to linguistic minorities that possess the strongest intrinsic interest in the protection of their language as their marker of cultural identity. I apply my criterion to the Israeli case, in which there are two dominant linguistic minorities: the Arab national minority and the Jewish Russian immigrant minority. Relying on general criticism of Kymlicka’s distinction, I argue that this distinction is not applicable to the Israeli linguistic case. Applying my alternative criterion to the Israeli case, I argue that Israeli Arabs have a stronger interest in Arabic than the Russian Jewish minority has in Russian because Arabic constitutes Israeli Arabs’ exclusive marker of identity.

This paper focuses on Quebec language legislation which has the effect of prohibiting the use of the use of English on signs. The controversial “Frenchonly” sign law is considered in spelling out an argument for collective rights and assessing some of the obstacles which a collective rights thesis must overcome. No attempt is made in this discussion to resolve the question of the relative weight of the collective and individual rights which come into conflict in this situation. No doubt this latter is itself a difficult task. If the argument of this paper is sound, however, a solution phrased wholly in terms of individual rights and the public good is simpler only because it omits important dimensions of the problem.

Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation.

Indigenous peoples encounter restrictions on their modes of reasoning and account-giving within democratic sites of negotiation and deliberation. Political theorists understand these restrictions as forms of exclusion related to what theorist Iris Young has called the ‘internal exclusion’ of subordinated perspectives and theorist James Bohman has referred to as the ‘asymmetrical inclusion’ of such perspectives. ‘Internal exclusion’ refers to ways in which actors are formally accepted into decision-making processes, only to find their perspectives disqualified due to informal but no less pervasive criteria of exclusion. ‘Asymmetrical inclusion’ refers to the undue burdens placed on marginalized peoples to persuade dominant communities. It is argued in light of these problems that more inclusive institutions as well as the cultivation of an ethos of receptivity will be necessary for genuine inclusion. I argue that this focus on enriching dialogue can mischaracterize the nature of disagreement between Indigenous and non-Indigenous peoples.

Disagreement does not only arise between opinions or discourses that can be articulated and judged, but also at a deeper level, between the background assumptions against which practices of articulation and judgment are understood. Territorial state sovereignty, I argue, is a background understanding that can render sites of democratic negotiation inhospitable to Indigenous claims. I conclude that when thinking through Indigenous equality and autonomy, theorists should be attuned to the sites and conditions of dialogue that might serve to reinscribe relations of domination and exclusion.

These are the best of times for the Rule of Law. In all parts of the world, states, governments, and individuals, have found in the rule of law, at various times, a rallying cry, a principle of social ordering that promises the dawn of a just society that its supporters in Euro-American democracies claim to be its crowning glory, or a set of practices that is a sine qua non of a good society. The pursuit of the ideal is nothing new: after all, even those states where it was observed more often in its breach always paid lip service to it. And the defunct socialist countries of Eastern Europe, while they existed, could not escape its lure even as they sought to give it a different nomenclature—socialist legality. The movement towards the rule of law has accelerated after the collapse of Soviet communism and its foster progeny in different parts of the world. Given the present momentum towards the rule of law and the widespread enthusiasm with which it is being embraced and pursued at the global level, some would consider it somewhat churlish for anyone to inject any note of doubt or caution. This is more so when such a note emanates from Marxist quarters. But that is precisely what I wish to do in this essay. Although I do not intend to rain on the rule of law’s entire parade, I surely propose to rain on a segment of it: the Marxist float. I propose to look at the issue within the context of the Marxist politico-philosophical tradition.

Schmitt's Verfassungslehre stands as perhaps the most systematic and least circumstantial of his works. While his production is marked, on the whole, by an extraordinary sensitivity toward his own concrete situation, leading at one point to an unbounded and shameless opportunism, this particular work seems to rise above the political fray, reflecting possibly the mood of 1928, which marks the halcyon days of the Weimar republic. Recently, Ernst-Wolfgang Böckenförde has tried to shake off the Verfassungslehre from its composed academic bearing by relating its argument to the polemical friend/enemy theory developed by Schmitt in his Der Begriff des Politischen (1927) and Schmitt's characterization of the state as the political unity of a nation. Beyond this, Böckenförde has connected the Verfassungslehre to the eminently partisan notion of sovereignty put forth by Schmitt in his Politische Theologie (1922), where he flaunts his allegiance to the Catholic counterrevolution.

This two-part article addresses the “Who?” question in the hate speech debate: namely, which characteristics, social identities or statuses should or should not be treated as protected characteristics within a body hate speech laws? Using United Kingdom incitement to hatred laws as a focal point, the article outlines and critically appraises five broad approaches to specification. Part 1 deals with consistency specification, which highlights norms of consistency both within incitement to hatred law itself and in relation to other laws, practical specification, which focuses on the ostensible goals or apparent aims of incitement to hatred laws, and formal specification, which looks at the formal qualities of the characteristics themselves and to the different forms of people’s relationships with those characteristics. And Part 2 considers functional specification, which concentrates on the underlying or real functions, purposes or objectives of incitement to hatred laws, and democratic specification, which appeals to democratic procedures as well as to democratic values, norms and principles that speak to the proper scope of incitement to hatred laws. Along the way I shall also critically assess a range of substantive arguments about which particular characteristics should or should not be covered by incitement to hatred laws given the aforementioned approaches. My main conclusion shall be that each of the approaches has its strengths and weakness and that, partly because of this, no single approach is adequate by itself as a tool for specifying the proper scope of incitement to hatred laws, but also, by the same token, no approach should be ruled out entirely. Instead, the best strategy is one that combines together all five approaches in reasonable ways given the law, the characteristic and the context.

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.

The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a ‘pouvoir constituent‘. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions.

Should a person in a life-threatening situation have a defence when he saves his life by causing death to a person who was not involved in creating the life-threatening situation? Viz., does the perpetrator have an excused necessity defence that negates imposing the punishment? This issue - excused necessity defence - has fascinated the legal world since antiquity and has been described as one of the most complicated issues in criminal law. The well-known case is the “plank of Carneades” or “two men and the plank”. Two men, A and B, are shipwrecked on the high seas; as their strength ebbs and they are about to drown, they see a wooden plank that is just large enough to support only one of them. A reaches the plank first and grabs it, but B, faced with the prospect of certain death, pushes A off the plank, resulting in the death of A by drowning. B then grabs the plank and manages to save his own life. Should B have a defence if he is prosecuted for pushing A off the plank in these circumstances?

The paper offers a rights-based, Kantian interpretation of the idea/expression dichotomy in the law of copyright. It demonstrates that the idea/expression dichotomy normatively structures the relation between the parties to a copyright action in terms of their equal rights to authorship. To the extent that the defendant has not copied the plaintiff’s expression but has instead expressed an idea anew, the defendant has exercised her own authorship. The limits of the plaintiff’s right (i.e. the law’s refusal to copyright ideas) are therefore the contours of a public domain that, as a matter of equality, the plaintiff himself must be held to recognize. The public domain is not externally imposed upon but internally constitutive of authorial right. Thus the paper shows that a Kantian understanding of the fundamentals of copyright questions the perceived opposition between authorial right and public domain that informs much of contemporary copyright discourse. In so doing, the paper establishes the largely neglected possibility of a rights-based defense of the public domain.

In “Legal Theory, Legal Interpretation, and Judicial Review”, David O. Brink advocates a central role in legal interpretation for considerations of human purpose. He states:

The classical view of natural law, often traced to Aquinas’ statement that “unjust law is no law at all,” finds few defenders today. Even those most sympathetic to natural law theories do not embrace the classical account, but, instead, convert Aquinas’ claim into a claim of political theory (unjust law does not obligate) or construct new “natural law” accounts about the connection between legal and moral principles in a theory of adjudication. In this paper, I defend the view that extreme injustice disqualifies otherwise valid official directives from counting as “law”. Indeed, I suggest that modern positivism’s characterization of the normative claims that typify legal systems leads inevitably to the conclusion that “law,” as a conceptual matter, must be understood by insiders who employ the term to admit moral limits on what can count as “law.” I proceed as follows. First, I begin with some preliminary clarifying comments about methodology and the precise issue under discussion. Second, I describe four leading theories about the nature of law and consider how central ideas in each theory can be seen to generate opposing ideas that lead in turn to opposing models of law. Third, I state briefly the affirmative case for thinking that the classical natural law view is correct. Fourth, I identify basic mistakes in current approaches to the question about the nature of law that help explain why modern positivism has overlooked the manner in which it leads logically to the classical natural law view. Finally, I add some brief remarks about why itmatters: what practical consequences follow from acknowledging that there are moral limits on what can count as law.

Fundamental legal conceptions are considered in relation to the analytical concerns of Hohfeld and Bentham, and also in relation to the normative concerns of constitutional and common law protection of rights and liberties. The use of a square of opposition to expound fundamental conceptions is rejected in favour of “a triangle of possibilities”. It is argued that using this device helps to provide a clearer understanding of which conceptions may appropriately be recognised as analytically fundamental, and in turn avoids confusion over the normative treatment of practical situations that may arise through the designation of legal rights and liberties as “fundamental”. In particular, the nature of legal liberties, and the priority accorded to legal rights, are both questioned.

The three major normative theories of secession are just-cause theories, choice theories, and national self-determination theories. Just-cause and choice theories are problematic because they view secession in terms of the application of liberal theories of justice or a liberal principle of autonomy, without regard for the dynamics of nationalist mobilitization and national politics. National self-determination theories can be supported by a collective autonomy argument. This is related to a particular view of the relationship between collective self-government and territory.