There are two main and quite distinct contractual interests or rights constitutive of a contract. First, the interest in securing the contracted-for performance; secondly, the interest in ensuring, if that performance is not completely (but substantially) secured or not secured at all, that one is not left worse off as a result thereof. The claimant can bring a claim to give effect to his performance interest and/or can bring a claim to give effect to his compensation interest. It can be argued, however, that in some cases both the claimant’s performance interest and his compensation interest cannot be protected, and the defendant has obtained a profit from his wrongful breach of contract. This article suggests that in such cases a secondary right does not always mean that the defendant who infringes a primary duty has to make good the claimant’s pecuniary loss. It may require the defendant to surrender to the claimant the profits made from his wrongful breach. In such a case, it is a secondary right to restitution rather than compensation. The claimant’s compensation interest is here replaced with a restitution interest. This article explains why the defendant in such cases should surrender to the claimant, rather than the state (or anyone else), the benefit obtained through his wrongful breach of contract. Three additional scenarios will also be envisaged to capture the wide range of possible outcomes that may result from the defendant’s breach of his primary duty to perform and how they should be tackled. First, the claimant’s primary performance interest can no longer be protected and the defendant has caused a financial loss to the claimant and obtained a profit from his breach of contract. Second, a specific performance or cost of cure award addresses substantially the claimant’s primary performance interest, but despite that, the defendant has obtained a benefit from the breach without causing the former any financial loss. Third, a specific performance or cost of cure award addresses substantially the claimant’s primary performance interest, but despite that, the defendant has caused a loss to the claimant and obtained a profit from his breach of contract.

Eric Posner’s signaling theory of social norms holds that individuals adopt social norms in order to signal that they have a low discount rate (that is, they value the future more than the present), and are therefore reliable long-term cooperative partners. This paper radically expands Posner’s theory by incorporating internalization into his model (the sense that norms possess some sort of binding quality, an “ought to”). I do this by tethering Posner’s theory to an evolutionary model. I argue that internalization is an adaptive quality that enhances the individual’s ability to play Posner’s signaling game and was thus selected for. The idea that internalization is evolutionarily conditioned is not new; however, linking this to Posner’s theory of discount rate signals is, and doing so offers tremendous explanatory potential.

Part I identifies the limitations of Posner’s purely rational choice approach, argues for the necessity of including internalization, and then proposes a model that does so – what I call the Expanded Signaling Model of Norms (ESM). Part II examines the problems that arise when we embrace such a model. How this model answers some key criticisms plaguing sociobiology is also briefly explored. Part III then examines existing criticisms of Posner’s theory, demonstrating how the Expanded Signaling Model clearly resolves these issues. The paper concludes that incorporating internalization into Posner’s signaling model greatly broadens the explanatory reach of Posner’s theory, providing a measure of clarity and predictability regarding how and why norms are internalized – an important insight, as these beliefs form the normative underpinning to law.

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.

This article has several and concurrent purposes. The first is to offer conceptual clarification about the notion of incommensurability and how it can be meaningfully understood in various contexts. Secondly, the purpose is to advance the substantive position that something important is lost when incommensurability is rejected in the law as a matter of principle. Third, the aim is to bring to fuller awareness the practical difficulties that a judge facing a potentially incommensurable conflict would encounter when judging it. Finally there is the claim, against the backdrop of contemporary theories of procedural democracy, that tragic incommensurability cannot be wholly neutralized by the procedures aimed at the generation of consensus, nor dissolved through the harmonic integration of all the values that law is supposed to protect.

This lecture asks whether judges might sometimes be morally justified in covert law-breaking in the interests of justice, the rule of law or good governance. Many historical examples of this phenomenon, are provided, drawn mainly from the British legal tradition, but also from Australia, Canada, India and the United States. Judicial noble lies are distinguished from fig-leaves and wishful thinking, and the relative importance of logic and pragmatism in legal reasoning is discussed. After examining arguments for and against judicial subterfuge, it is concluded that in modern liberal democracies subterfuge is justified only to avoid extreme injustices or violations of the rule of law.

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.

Two-step proportionality-balancing [TSPB] has become the standard method for human and constitutional rights decision-making. The first step consists in determining whether a rights-provision has been infringed/limited; if the answer to that first question is positive, the second step consists in determining whether the infringement/limit is reasonable or justified according to a proportionality analysis. TSPB has regularly been the target of some criticism. Critiques have argued that both its ‘two-step’ and ‘proportionality’ elements distort reality by promoting a false picture of rights and constitutional decision-making. This would cause negative moral consequences. This article seeks to defend TSPB against these criticisms and to depict it in a more appropriate and favourable light. First, it is argued that both aspects of TSPB do not have the dire moral consequences that opponents suggest they have. Second, it is argued that TSPB, deploying notions such as burdens, presumptions and prima facie/defeasible propositions, constitutes a valuable framework for public argumentation and authoritative decision-making.

I employ the principle of fairness to argue that many existing states have a moral duty to obey international law simply in virtue of its status as law. On this voluntarist interpretation of the principle of fairness, agents must accept (in a technical sense) the benefits of a cooperative scheme in order to acquire an obligation to contribute to that scheme’s operation. I contend that states can accept the benefits international law provides, and that only if they do so do states have a fair-play duty to obey international law. In addition, I demonstrate that A. John Simmons’ criticisms of the attempt to use the principle of fairness to establish a duty to obey domestic law – both with respect to understanding the legal order as a cooperative scheme, and to agents’ acceptance of benefits – do not apply in the international context.

Apart from examining the use of the Secession Reference in three post-Yugoslav, Southeastern European countries, this article also suggests that there is a different, more general reading of the Secession Reference that could have been deployed in Southeastern Europe. Before discussing what I call the ‘spirit of the Secession Reference’, I examine an important preliminary question: what could justify the migration of such a general constitutional idea? I argue that existing justifications for the use of comparative jurisprudence are either inadequate or need to be qualified before we can make an argument that the spirit of the Reference can indeed migrate. I then turn to outlining the components of the Secession Reference’s spirit. My argument is that the Secession Reference should be approached not only as a set of particular arguments and interpretive strategies, but also as embodying a distinct way of dealing with deep national diversity. To me, the spirit of the Secession Reference comprises four components: First, it embraces radical political projects as legitimate. Second, it establishes that all contentious political issues are subject to principled negotiations. Third, in doing so, it downplays the dominant contemporary vocabulary of popular sovereignty and self-determination. Fourth, as a result of the previous three components, the spirit of the Secession Reference simultaneously respects and deflates radical nationalist mobilization.

The question of the character of constitutional rights norms is complex and admits of no easy answer. Without reducing the complexity of the issue, I attempt in this paper to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning that combines both balancing (as Robert Alexy admits) and the grounds as to why balancing is appropriate (deontological constraints). Absent the latter type of reason, the application of constitutional principles remains a pure instance of balancing. Each time those reasons are touched upon, however, balancing becomes subject to deontological constraints. Yet deontological reasons are neither self-proclaiming nor complete. Rather they require for their articulation the background of an already operational practice of practical (legal) reasoning. This practice exemplifies what I shall dub the structure of autonomy, that is, a set of regulative ideals, not yet definitive norms, that derive from the reflective character of human agency. This structure comes to light when one turns to the agent’s point of view – to the point of view of someone who is engaged reflectively with practical questions (questions about rights are par excellence questions of this type). The structure of autonomy is more fundamental than any deontological or teleological reasons: it is in its light that deontology and teleology need to be understood as representing merely complementary forms of argument, which can be employed in reasoning that aims to maximise constitutional rights provisions. At the same time, the structure of autonomy as a regulative ideal generates prima facie reasons for allocating greater weight to deontological arguments in the relevant contexts of balancing. Such prima-facie reasons do not prescribe fully-fledged deontological constraints, but merely set the burden of proof in favour of specific reasons and ensure that the structure of autonomy be respected overall.

When Saint Thomas Aquinas makes claims such as “that which is not just seems to be no law at all” it is a bit difficult to discern what he means. Some think that Aquinas is defending what is now called the Strong Natural Law Thesis: for all X, X is a law only if X is just. Others think that Aquinas is defending what is now called the Weak Natural Law Thesis: for all X, X is a non-defective law only if X is just. In this paper, focusing on Aquinas’s metaphysics, I argue that both of these interpretations are mistaken. Aquinas is primarily defending what we can call The Metaphysical Natural Law Thesis: since being and goodness are convertible, legal validity (i.e., the existence or being of a law) comes in degrees—and this entails that the justice of a law literally increases the amount of being a law possesses, while the injustice of a law literally decreases the amount of being a law possesses. On this interpretation, then, the injustice of a law entails an ontological attenuation of the law without entailing an ontological annihilation of the law.

The availability of redress for historic wrongs committed against Indigenous people turns on a number of morally complex and politically charged issues. From the standpoint of moral theory, the problems of redress have been given articulate voice by Jeremy Waldron whose writings have come to take the shape of conventional wisdom. Waldron’s arguments are three-fold: 1) counterfactuals are impossible to verify, and so it is impossible to know how we are to put injured parties into the position they would have been had there been no injustice; 2) entitlements fade over time, and so whatever right to redress may have once existed, the basis for those entitlements is now eroded; and 3) injustices can be overtaken by circumstances, such that what was once unjust becomes just. In this article I argue that each of these objections to redressing of historic wrongs is mistaken, and they are mistaken in part because of Waldron’s failure to recognize that the injustices are not merely historic, the injustices are also contemporary and on-going wrongs committed against modern-day Indigenous people. There is no denying that circumstances have changed, but that does not eliminate the need to face up to the problems of injustice in the circumstances in which they occur: the present day, and we must face these challenges despite the fact that they present difficult choices and the probability of sacrifice.

Force and Freedom, a new book by Professor Arthur Ripstein, offers a comprehensive and highly sophisticated articulation of Kant’s legal and political philosophy. While Kant’s thinking on metaphysics and ethics has received paramount attention in the academic discourse, his contribution to legal and political theory has been somewhat marginalized. One reason for Kant’s exclusion from the central canon of political and legal philosophy is the abstract and very complicated nature of Kantian writing on law and political power, most particularly in the Doctrine of Right. Another reason is the difficulties many writers have encountered in their attempts to reconcile Kant’s political and legal writing with his moral philosophy. Against this background, the novelty and importance of Force and Freedom cannot be overstated.

The article is a critique of Ernest Weinrib’s attempts to explain the structure of unjust enrichment law according to his theory of corrective justice. The plausibility of Weinrib’s account of unjust enrichment is of critical importance to his claim that corrective justice is a theory of private law in general. Ultimately, I argue that Weinrib’s efforts to accommodate unjust enrichment within his conception of corrective justice fail. This is in large part due to the fact that Weinrib sets himself the uphill task of both explaining unjust enrichment from its own internal perspective where the structure of liability is strict and not based on fault and justifying it in terms of his interpretation of corrective justice which is rooted in wrongdoing. The dilemma between structure and justification runs throughout Weinrib’s early and recent writings on unjust enrichment, and I argue that there is now a need to confront it.

In this paper, I show that a Kantian account can explain both the rule that consent is normally a defence to assault and the exceptions to that rule. Kant himself does not discuss the offence of assault, but the body – the manifestation of the person in space and time – is central to Kant’s account of each person’s innate right of humanity. Since Kant’s legal philosophy is oriented around the idea that each limit on freedom of action can be justified only for the sake of freedom itself, it is plausible to think that this might do all the work; but that is not the case. The law may rightly refuse to recognize consent to a physical interaction that is inconsistent with treating the participants as persons and may, in such cases, create an exception to the usual rule that lack of consent is an element of assault.

But this Kantian account needs to be supplemented in two ways. First, the account provides a structure but no criteria for determining whether an interaction is inconsistent with personhood. Second, the law does sometimes recognize consent as a defence in activities that expose the participants to the intentional application of force that creates a risk of permanent and serious damage, even though that damage itself could not be consented to. The distinction turns out to run parallel to Kant’s solution to the problem (as he sees it) of sexuality: how is it possible for two persons to engage in an activity that necessarily requires each to treat the other as an object, and yet to retain their humanity? With these supplements, the limits on consent in the positive law of assault can be justified in Kantian terms.

Shiner has produced a valuable contribution to the field of analytical jurisprudence. He remains faithful to the investigative and exploratory task that he set for himself. Legal Institutions and the Sources of Law can be usefully consulted by anyone interested in the idea of a “source of law”. And it can certainly be used as an authoritative reference by those legal and political theorists who wish to pursue a fuller normative approach to law or politics.

This essay offers some brief thoughts on Seana Shiffrin’s recent work regarding the divergence of contractual and promissory norms. I conclude that Shiffrin does not do enough to separate and account for the different consequentalist and deontological justifications underlying each institution, and does not do enough to explain how promises give rise to the “moral” duties she posits. I suggest, instead, that the divergence between contract and promise is justified by the different roles each institution plays in our lives, and that, in fact, keeping strictly promissory duties outside the scope of state coercion actually facilitates a strong culture of responsible moral agency.

I argue that attention to Austin helps us to appreciate that there are significant continuities between his legal theory and that of contemporary positivists; hence, to the extent that Austin’s theory has defects, these are reproduced in the work of contemporary legal positivism. An historical perspective on contemporary philosophy of law thus permits one to appreciate that the basic divide in legal theory is between a tradition whose basic intuition is that law is answerable to a moral ideal of legality and the positivist tradition that sees law as the transmitter of political judgment. For the former, the rule of law tradition, the basic problem for philosophy of law is to explain the distinction between the rule of law and the arbitrary rule of men. For the latter, the rule by law tradition, the basic problem is to explain how law can effectively transmit the judgments made political elites. The rule by law tradition encounters severe difficulties in making sense of the idea of government according to law, difficulties which reach their height once legal positivists accept, following Hart, that philosophy of law has to understand law as a normative phenomenon, which in turns requires taking seriously the internal point of view of legal officials.

One of the standard criticisms of John Austin’s work is that his portrayal of law, as essentially the command of a sovereign to its subjects, does not fit well with the way law is practiced or perceived by lawyers, judges, and citizens; and since the theory “fails to fit the facts,” Austin’s theory must be rejected in favor of later theories that have better fit. Many influential modern approaches to the nature of law, including Joseph Raz’s exclusive legal positivism and Ronald Dworkin’s interpretivism, while they criticize the lack of fit of theories like Austin’s, themselves unapologetically offer characterizations of legal practice that deviate in significant ways from the way most people practice or perceive law. Thus, it appears that many contemporary legal theorists wish to have it both ways: they use the deviations from conventional understandings as grounds for dismissing some theories by other scholars, but forgive or overlook comparable deviations in their own theories. This article explores what general principles can be learned, or developed, regarding when or to what extent deviation from the way law is practiced and perceived can be justified in a theory of the nature of law by other theoretical gains. Additionally, the article considers whether, in light of the proper approach to fit and mistake in theory-construction, Austin’s theory of law might be a more viable alternative than is conventionally assumed.