In an early review of the Verfassungslehre (1928), Margit Kraft-Fuchs criticizes Carl Schmitt's argument as circular and illogical. While claiming to establish an entirely new constitutional theory, not a general theory of the state, Schmitt in fact relies on a tautology and derives “an is from an ought”. Quoting Schmitt's argument in Der Wert des Staates und die Bedeutung des Einzelnen (1914) that “The mere actuality of power at no point provides a justification unless it assumes a norm by reference to which its claim is legitimated”, Kraft-Fuchs concludes that it is “astonishing he has forgotten this basic logical insight between 1914 and 1928.”

According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit.1 While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory,2 natural law theorists such as John Finnis opine that the lex injusta non est lex3 maxim has been no more than a subordinate theorem of classical natural law theory.4 In Finnis’s view, unjust laws give rise to legal obligation “in a legal sense.”5

Although equating the duty of care in negligence with a duty to try to avoid negligent outcomes (i.e., a duty to act with reasonable care and with the view or intention of averting harming) has several theoretical and descriptive virtues – primarily offering a promising account of the (moral) responsibility-component in the negligence standard – it is an account that fails to capture the state of the law or to offer a compelling argument for revising the law. The better account of the duty of care is as a duty of reasonable conduct alone. The responsibility-component in the negligence standard does not, therefore, take the form of a duty to try. Alternatively, the responsibility-component is found in the conditions for being subject to the negligence standard: specifically possessing responsibility-capacities and the opportunity to exercise those capacities in compliance with the duty of care.

Jim Nickel has criticized the account of human rights Rawls gives in The Law of Peoples as “ultraminimalist” and as wrongheadedly grounded in an excessive desire to accommodate illiberal and nondemocratic polities and in a confused identification of human rights with the regulation of coercive intervention in the international order. I show that Rawls’s position is not “ultraminimalist” and, more importantly, that it is more complex and attractive than Nickel (and other critics) recognizes. Rawls distinguishes between the human rights necessary and sufficient to there to being no principled grounds for coercive intervention into a state and those necessary and sufficient to there being a principled ground to accord a state status recognition and respect in the international order. This distinction reflects a distinction in The Law of Peoples between two forms of liberal toleration: toleration as mere non-interference and toleration as recognition or status respect. I discuss the role of each in the law of peoples and show how each is both principled and liberal.

Joel Feinberg’s magnificent four volume work, The Moral Limits of the Criminal Law, represents a sustained and comprehensive argument regarding what conduct is appropriately regulated through criminal prohibitions and sanctions. Feinberg’s conclusions are essentially those of the Millian liberal: Conduct that causes harm or offense to others may be criminalized, but conduct that is harmful only to the actor or that is a harmless immorality may not be. Feinberg’s governing principle, however, is not Mill’s maximization of utility but is instead respect for individual autonomy. For Feinberg, respect for autonomy delimits the legitimate boundaries of concern with others’ conduct insofar as the concern is expressed through criminal prohibitions.

The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree constitutional interpretation. The only “living trees are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order.

The essay is an attempt to clarify some issues concerning the point of doing conceptual legal theory. It provides a reassessment of the relationship between conceptual legal theory, legal doctrinal scholarship and the legal practice. The analysis concentrates on what may be termed the ‘mainstream’ discourse on conceptual legal theory (characterised by authors like Hart, Raz, Dworkin, Finnis), and depicts the mainstream discourse as functionally connected to legal doctrinal scholarship. The essay argues that a more open commitment to reflecting current problems of legal doctrinal scholarship would make the position of mainstream conceptual legal theory more intelligible. If it wants to maintain its position as a complex theoretical discourse, mainstream conceptual legal theory must take direct responsibility for serving the epistemic needs of legal doctrinal scholarship – by way of providing conceptual and methodological foundations for it. Conceptual legal theory can make a contribution to doctrinal debates by relying on its ability to assess competing doctrinal claims in light of the epistemological characteristics of the legal doctrines in a modern legal system. The mainstream conceptual discourse can also have a vital role in in making sense of the external challenges to legal doctrinal scholarship. Such cionsiderations lead to a criticism of Hartian methodological legal positivism: it is blamed for becoming oblivious of the ways in which the mainstream conceptual discourse is parasitic on the conceptual tensions encountered or even generated by doctrinal scholarship.

Can the law act as a catalyst to change minority practices that discriminate against women? Can civil law merely impose remedies from outside the minority culture or can legal mechanisms be devised which spur internal change? Theorists of gender and multiculturalism have argued that civil law can play a role in creating the conditions which allow, and indeed compel, cultural communities to engage in internal dialogue to transform their norms into more egalitarian ones. This article explores this thesis through considering the development of Canadian civil family law remedies to alleviate the plight of women whose husbands use their power to withhold divorce under Jewish law to extort advantages in civil divorce settlements. It considers whether the process of negotiating, drafting and implementing amendments to the Divorce Act has supported the renegotiation of norms in the Canadian Orthodox Jewish community regarding the issuance of divorce decrees, the development of novel solutions or the re-invigoration of traditional forms of religious legal authority. In particular, the article evaluates whether these civil law strategies have had the effect of generating the sort of transformative dialogue about norms envisioned by theorists of multiculturalism and gender.

Ronald Dworkin’s philosophy of law, in its mature version, is grounded in at least two central claims: first, a thesis about law and morality, which we might call the One-System Thesis; second, a thesis about how moral and legal propositions can be said to be true or false, which we might call the Interpretive Thesis. While the One-System Thesis holds that law and morality form a single system, the Interpretive Thesis makes two distinct claims: first, truth of interpretive propositions—such as moral and legal propositions—must be established from within the practice in which they figure; second, the soundness of an interpretive proposition is related to the purpose of the practice under consideration. Mark Greenberg’s Moral Impact Theory of Law accepts the One-System Thesis while rejecting the Interpretive Thesis. The Moral Impact Theory is a metaphysical theory of how moral facts rationally determine the content of the law. Its main contention is that the actions of legal institutions have an impact on the moral obligations people have in a polity, and the content of the law is made up of the moral obligations that result from the actions of such institutions. Greenberg assumes that moral facts pre-exist and have some metaphysical priority in relation to legal facts. Moral facts must be prior and independent from legal practice in order to play a part in the rational determination of the content of the law. The point of this paper is to offer a response to Greenberg. I argue that the One-System Thesis only should be supported if the Interpretive Thesis is correct, and that without the latter the former becomes an implausible version of natural law jurisprudence.

The Stufenbaulehre is a central and founding element of the Pure Theory of Law (PTL).Most of the criticism of Stufenbaulehre targets the idea of the basic norm (Grundnorm), however unjustified. This criticism stems from a misunderstanding of the presumptive character of the basic norm and of the whole legal order. Others have criticised the relativisation of the difference between individual and general norms, Kelsen’s monism, and the determination of the validity of a norm by a single other norm. This can be refuted as well - either because their critique does not concern an essential part of Stufenbaulehre (monism), or because Stufenbaulehre can be saved by making a small modification to it. However, there is one lethal criticism. It concerns the founding thought of the whole Stufenbaulehre, i.e., the derivation of validity. In a law-making process, there is never a derivation of validity: the logical result of a law-making process is only a norm saying “The new norm ought to be valid.” Whether the new norm is in fact valid, is a different issue which is not dealt with by the PTL. This has serious consequences: Without this derivation Stufenbaulehre cannot survive, and without Stufenbaulehre, PTL cannot survive either. Some valuable parts of PTL might be used in other legal theories, but these are nothing but transplanted organs from the dead body of PTL whose heart-Stufenbaulehre-can no longer keep the body alive.

The essay explores the question of whether people can have a right to common goods, such as the flourishing of their culture or national heritage. It first explains the concept of a common good and its distinction from other similar concepts, such as collective and public goods. Second, it argues that individuals ought not to have a right to common goods, unless a particular distributive principle applies to the good in question, and then the individual's right is the right to a certain share in that common good. Finally, the essay explores the question of how this analysis applies to group-rights, with respect to other groups and to members of the group itself.

In order to identify the form of arbitrariness that is relevant to the rule of law, I discuss a Supreme Court of India decision and a Supreme Court of Canada decision in which judges held that other public authorities had acted arbitrarily. I also discuss Jeremy Bentham’s work on the rule of law, and his notion that the interpretive power of judges is itself an arbitrary power. I argue that the interpretive role of judges is not necessarily hostile to the rule of law, but that there is a standing tension between that interpretive role, and the rule of law. In the two decisions under discussion, the Canadian and Indian judges used their doctrines of arbitrariness to reallocate power to themselves, without any resulting enhancement in the rule of law.

My contention in this paper is that many of our commonly accepted ideas about property are defective. But these deficiencies are not just simple, surface mistakes that could be cleared up easily. They stem from a flawed conceptual framework used in making sense of and justifying property relationships. I also contend that this flawed conceptual framework maintains property relationships that are unjust. These property relationships produce an unequal distribution of wealth, status, and power, as well as reduced opportunities for autonomy and self-development. This is unjust because, I believe, no satisfactory justification has been given for this inequality. Exposing some weaknesses of this conceptual framework is thus a step in promoting more egalitarian property relationships.

Legal orthodoxy has it that the wrong involved in breaking a promise, like that involved in breaking a contract, depends essentially on the making of a binding promise. It is in this sense sui generis. But philosophers are not so sanguine. T.M. Scanlon is the latest in a long line of moral philosophers who have sought to reduce the wrong of promise-breaking to a wider class of wrongs associated with a duty, variously formulated, not to disappoint the expectations one induces in another. I argue that Scanlon's theory founders on a logical impasse that plages all such reductionist accounts.

This article provides a scheme of intelligibility for correlativity, recognising its importance for analytical and normative aspects of legal relations. It considers a variety of types of normative correlativity, investigates the logic of correlativity, and distinguishes three forms of correlation involving legal rights. It undertakes careful re-examination of Aristotelian texts to reveal neglected or misrepresented insights, restores certain Hohfeldian distinctions, and argues for a more complicated relationship between correlativity and reciprocity than previously acknowledged. Specific sections employ the scheme to provide critiques of Weinrib’s use of correlativity in his understanding of private law as corrective justice, and Zylberman’s amalgam of reciprocal correlativity in his non-instrumental view of human rights. A brief concluding section notes the deep asymmetry of law and suggests an understanding of corrective justice based on asymmetry rather than equality. More speculatively, it raises doubts about the core conviction of Kantian thinking on legal and social relationships.

On May 3rd 1974 Mr. Blaue entered Ms Woodhead’s house, demanding that she have sexual intercourse with him. She refused, and he attacked her with a knife and fled. Wounded seriously, she staggered out of her house and collapsed on a neighbour’s lawn. She was taken by ambulance to a hospital, where she learned that she would require surgery. Upon being informed that a blood transfusion would be required, she refused, because permitting the procedure would have been contrary to her beliefs as a Jehovah’s Witness. She was told that if she refused a blood transfusion she would surely die. She said she preferred death to undergoing the procedure, and died early the next day.

As well as being an especially tragic case, R. v. Blaue raises several deep and important questions about the doctrine of causation in the criminal law. Did Blaue kill Woodhead? That is, was killing her among the things he did, an action of his rather than an event which followed his action, or an action of Woodhead’s? The general question underlying these more specific ones is: for which of the consequences of his action must a wrongdoer answer?

In this paper I address a question that has not been a prominent feature of cases or articles which have concerned the issue of consent in relation to sexual offenses. Much work has been done by judges and legal theorists regarding the defendant’s beliefs about the consent of the complainant and the mental element or mens rea of this offense. But, any answers to these questions presuppose some answer to a prior question: What is consent? What must be true of a person who does consent? What must be missing, on the other hand, in a situation where sexual activity takes place without consent?

Common sense provides a relatively simple answer to these questions: To consent is to give permission; a person acts without consent where no such permission has been obtained. It is this answer that I want to defend in this paper. This view assumes that talk of consent only makes sense in relation to some autonomy right. Giving consent involves autonomously making changes in a prevailing pattern of rights and obligations. It is a limited withdrawal of a right not to be interfered with; and it will make legally permissible actions that would otherwise be subject to criminal and civil penalties. To me it seems obvious that such a change in the prevailing pattern of rights and obligations can only take place where there is communication between the parties. This means that the question of consent is not just a question about the state of mind or attitude of the complainant. Rather, the matter which should be central to a court’s consideration of consent is the question of what was said or done that could be construed as granting permission to do the acts in question.

Indigenous scholars and others have characterized Canadian discourses of reconciliation as supporting a top-down, government-defined and controlled agenda, which is at best ineffective and misleading and at worst fraudulent and recolonizing. Some have argued that reconciliation should only occur after the Indian Act has been abolished, reparations made, land and resources returned, and a political and economic nation-to-nation relationship restored. The author agrees that it is essential to look critically at state and nationalistic discourses of reconciliation and that neither the federal government, the churches, nor non-Indigenous peoples generally can or should control the agenda. However, while reconciliation is not a sufficient condition for decolonization in Canada, Indigenous resurgence on its own will not achieve full decolonization either. If the psychic structures of colonialism persist, various forms of neocolonialism will be prevalent even after a nominal “nation-to-nation” relationship has been established, given the demographic imbalance and geographical proximity between Indigenous and non-Indigenous peoples. There will always be a need for relationship and negotiation.

In fact, decolonization and reconciliation may be understood as complementary and concurrent processes. The concept of reconciliation underlines the emotional, psychological and human changes that are as necessary as political and economic reformulations for decolonization and that are not easily addressed by other means. Rather than a top-down government-initiated campaign focused on assimilation into the status quo or a Eurocentric Christian doctrine focused on forgiveness, reconciliation can be a transformative process of building the relationships, alliances and social understandings necessary to support the systemic changes that true decolonization entails. Indigenous and other cultural paradigms for resolving conflicts, making restitution and healing relationships, such as the Sto:lo concept of lummi or “facing yourself,” can help restore interconnectedness and reciprocity at all levels, both within Indigenous communities and between Indigenous and non-Indigenous peoples and the land. We also should not overestimate the government’s power to control even those reconciliation processes it does initiate, let alone those that arise autonomously. Decolonization and reconciliation are processes underway on many fronts in Canada, and they can’t be controlled by anyone.

This article re-examines the distinction between the libertarian approach and the egalitarian approach to the regulation of campaign finance. The conventional approach (as exemplified by the work of Owen Fiss and Ronald Dworkin) is to reconcile the competing values of liberty and equality. By contrast, this article advances the normative claim that democracies should seek to incorporate both the libertarian and the egalitarian approaches within constitutional law. I argue that instead of emphasizing one value over the other, the ideal position is one that simultaneously recognizes the values of liberty and equality despite the irreconcilable tension between them. Rather than choosing one value over the other, or reconciling these values by redefining them, I claim that it is vital to maintain the tension between liberty and equality by instantiating the conflict in law. Democracy is better served when the law contains an explicit tension between these foundational values.

After setting forth this normative framework, I then apply it to the campaign finance decisions of the Supreme Courts of the United States and Canada, respectively. I make two main claims. First, I argue that although the libertarian/egalitarian distinction is usually presented as a binary choice, the laws of a given jurisdiction often simultaneously display both libertarian and egalitarian characteristics. For this reason, I claim that the libertarian/egalitarian distinction is better conceived of as a “libertarian-egalitarian spectrum.” Second, I argue that in recent years, the U.S. Supreme Court and the Supreme Court of Canada, respectively, have privileged one value—liberty or equality—at the expense of the other. The U.S. Supreme Court has over-emphasized the value of liberty (most notably in its Citizens United decision), with the result that political equality is markedly undermined. By the same token, the Supreme Court of Canada’s commitment to equality has become too one-sided in recent cases (Harper and Bryan), with the result that there are significant impairments to free speech liberties. I argue that both of these approaches are detrimental to democratic participation and governance. Finally, this article offers a preliminary proposal for how courts and legislatures can allow for the conflict between liberty and equality to be instantiated in law.

Since the failure of the Meech Lake constitutional reforms and the crisis of national unity prompted by the most recent Quebec referendum, the Canadian Multiculturalism Act has been subjected to particularly intense and hostile scrutiny. While some of the criticism of this policy reflects merely parochial adherence to particular cultural or religious traditions, some of it has raised more significant doubts about the internal coherence, efficacy, and overall desirability of the policy. Most importantly, the multiculturalism policy is faulted for attempting to pursue two simultaneously unachievable goals, viz., to integrate ethnic minority groups into the dominant institutions of the society, while at the same time to protect them against various pressures to assimilate to the dominant culture. Critics have pointed out that social institutions and cultural values are interdependent. Not only do cultural value systems provide the central legitimations for social institutions, but the internalization of these values through socialization processes provides agents with their primary motivation for conforming to institutional expectations. This means that integrating an agent into a system of institutions can only be achieved by assimilating the agent to its underlying cultural system.