For the past several decades, jurists have invested significant efforts in developing the law in general—and private law in particular—in terms of pluralism. However, the conceptualization of corporate law and governance according to pluralist principles rarely exists. This Essay is the first in the legal literature to address this deficiency by providing a unique pluralist theory of corporate governance regimes. It distinguishes between the plurality of corporate law’s sources, values, and principles, and discusses the implications for governance. Moreover, based on the social systems’ thinking and the framework of complexity, this Essay provides theoretical grounds for skepticism about any policies or structures applicable to all times and contexts. Therefore, rather than perceiving corporate governance as being identically applicable to all corporations, the law must meet the challenge of complexity by designing governance arrangements following a firm-specific perspective. Furthermore, I argue that in conditions of complexity, corporate governance eco-systems should be designed with a firm-specific view that incorporates the effect of the corporation participants’ heterogeneity, the heterogeneity of its internal power relations, and the heterogeneity of industries and markets. These novel arguments have profound implications for redesigning fundamental legal doctrines—such as fiduciary duties of controlling shareholders, regulation of related party transactions, the officers’ duty of care, and the company purpose.

This paper argues for a theory of the rule of law that is inclusive of sentient non-human animals. It critiques the rule of law theories of Fuller, Waldron, and Allan, by showing that their theories presuppose that the legal subject is a person who can be guided by legal norms. This unduly excludes non-human animals, as well as certain humans who do not have rational capacities. If we view the basic idea of the rule of law as restraining arbitrary power, then rule of law theories need to give an account of who can be a potential victim of such power. Non-human animals and humans, whether endowed with rational capacities or not, can all be victims of arbitrary power. So, we need a new rule of law theory which is inclusive of all sentient animals, humans and non-human alike. This paper sets out such an inclusive theory.

The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.

The dignity approach to racist hate speech regulation maintains that hate speech ought to be regulated because it impugns targets’ dignity and poses a threat to their equal treatment. This approach faces the significant causal challenges of showing that hate speech has the power to erode its targets’ dignity and that regulations can successfully protect that dignity. My aim is to show how a friend of the dignity approach can resolve these challenges. To do so, I borrow insights from the critical legal studies (CLS) approach to hate speech. Specifically, I argue that hate speech can erode its targets’ dignity 1) by constituting an act of discrimination, and 2) by enacting norms that call for treating targeted groups as inferior. Yet while I maintain that the CLS approach offers valuable resources for shoring up the dignity approach, I reject the CLS approach in favor of the dignity approach.

Repeat offenders receive longer sentences than first offenders in virtually every modern jurisdiction. Such prior-record enhancements are politically popular. Scholars are more divided, especially regarding severe enhancements. Retributivists have long disagreed about which enhancements, if any, are morally justifiable and on what basis. This article advances the debate, offering lessons for retributivists on all sides. I address an intuitive argument that justifies enhancements in terms of character. This argument has been caricatured and dismissed, with defenders of enhancements preferring character-independent arguments. I reconstruct an argument for enhancements that assumes recidivism constitutes evidence of culpability-aggravating character traits. The argument seems at least coherent, inferentially valid, and intuitively plausible. I then raise what I see as the real threats to the argument, which are neither conceptual nor normative, but empirical. I identify some formal features that the character argument requires of culpability-aggravating traits. To support enhancements, such traits must also correlate properly with criminal records. One place to look for characterizations of such traits, and evidence of correlation, is criminology, in theories of criminogenesis and criminality. I conclude that character arguments for prior-record enhancements cannot be dismissed, although their thorough evaluation awaits answers to complex empirical questions.

This article provides a theoretical and doctrinal explanation of how the but-for test links gains to the wrong that produced them. Gain-based damages cases focus on the gain resulting from the defendant’s tortious behaviour. In these cases, the contrastive aspect of the but-for test, requiring the factfinder to consider the hypothetical result that would have occurred had the right thing happened instead of the defendant’s wrongdoing, is not confined to the question of reasonability, as it is in negligence cases. Rather, in gain-based damages cases, the factfinder faces the open-ended normative task of determining the hypothetically appropriate scenario that contrasts with the wrongdoing that happened in reality. For this reason, in gain-based damages cases, the normative sensitivity of the but-for test is revealed in full. The article explains how this sensitivity influences the result of the but-for test expressing the amount of gain causally attributed to the defendant’s wrongdoing.

Functionalist justifications for the consideration requirement, and the many criticisms of them, are well developed in the literature. But Peter Benson offers a different sort of justification. He argues that contracts are transfers of ownership, and he builds his transfer theory around the consideration requirement. He claims that a bilateral and mutual act is required for ownership to be transferred. Therefore, he argues that consideration is a central part of what a contract inherently is because it works to ensure that there is a bilateral and mutual relationship between the parties. In this article, I challenge this view. I accept for the sake of argument that contracts are transfers of ownership and that they must be bilateral and mutual acts. However, I argue that a sufficiently bilateral relationship can be established, even without consideration, through the acts of offer and acceptance. In doing so, I demonstrate that it is not necessary to view the doctrines of offer, acceptance, and consideration as being inextricably linked as Benson does. Moreover, drawing on insights from the civil law tradition, I show that a relationship of mutuality can be established in contracts that are not backed by consideration. Since I demonstrate that contracts can be seen as transfers of ownership even without consideration, I argue that the bulk of Benson’s transfer theory could remain intact if the consideration requirement were to be removed. Finally, I argue that, in light of recent developments in many common law jurisdictions, Benson’s transfer theory must be understood without the consideration requirement in order for it to withstand the test of time.

The political conception makes sense of human rights strictly in light of their role in international human rights practice, more specifically by describing how they justify interventions against states that engage in or fail to prevent human rights violations. This conception is, therefore, normative and fact-dependent. Beyond this, it does not seem to have much to say about the actual nature of international human rights practice. The argument sustained here reinterprets the political conception by resorting to a heuristic device that explains how normativity can be fact-dependent: the Hartian model. The characteristics of H.L.A. Hart’s rule of recognition are useful to determine the characteristics of human rights practice from the viewpoint of the political conception. Also, they help to overcome some of the problems typically faced by the political conception, such as whether there is only one practice or many, whether the notion of human rights becomes too contingent on the way the world is currently organised, how agents can violate content-changing practices, or how reliance on current states of affairs leaves room for criticism of those states of affairs.

Employers seeking to control employee behavior outside of working hours is nothing new. However, recent developments have extended efforts to control employee behavior into new areas, with new significance. Employers seek to control legal behavior by employees outside of working hours, to have significant influence over employees’ health-related behavior, and to monitor and control employees’ social media, even when this behavior has nothing to do with the workplace. In this article, I draw on the work of political theorists Jon Elster, Gerald Gaus, and Michael Walzer, and privacy scholars Daniel Solove and Anita Allen, to show what is wrong with this extension of employer control of employees’ outside of work behavior. I argue that there are ethical limits on the controls that employers may put on their employees’ behavior outside of work, and that many of these limits should be enshrined into legal protections which would prevent employers from conditioning employment on the regulations criticized.

Communitarianism has been misunderstood. According to some of its proponents, it supports the ‘Asian values’ argument that rights are incompatible with communitarian Asia because it prioritises the collective interest over individual rights and interests. Similarly, its critics are sceptical of its normative appeal because they believe that communitarianism upholds the community’s wants and values at all costs. I dispel this misconception by providing an account of communitarianism, properly understood. It is premised on the idea that we are partially constituted by our communal attachments, or constitutive communities, which are a source of value to our lives. Given the partially constituted self, communitarianism advances the thin common good of inclusion. In this light, communitarianism, properly understood, is wholly compatible with rights, and is a potent source of solutions to controversial issues that plague liberal societies, such as the right of a religious minority to wear its religious garment in public.

Essentialist legal theorists, represented by Raz, have depicted legal theory as a project of seeking necessary truths about law. They have, however, left the notion of necessity in their conception of legal theory largely unexplained. This paper explores four different notions of necessity in the philosophical literature and investigates two issues: first, what kind of necessity best fits the notion of necessity implicit in the essentialist conception of legal theory, and secondly, whether that notion of necessity is a coherent one that withstands philosophical challenges. I argue that the Putnamian notion of quasi-necessity best fits essentialist legal theorists’ self-understanding, but the notion of quasi-necessity does not withstand Ebbs’s two challenges. Meanwhile, although Plunkett’s theory of metalinguistic negotiation can be used to preserve a coherent notion of necessity that circumvents Ebbs’s two challenges, due to its broadly anti-essentialist underpinnings such a notion is unlikely to be congenial to essentialist legal theorists.

Even though the Islamic legal tradition advanced its own set of conceptions of time, modern scholarship on Islamic law has not paid much attention to these conceptions. This paper argues that Islamic jurisprudents understood time in moral terms, not as a neutral container or mere background for action, but as a series of opportunities in which the authority of divine revelation and human moral reasoning are articulated. I suggest that the debates over the manners of compliance with divine commands in time were attempts at reaching some form of balance between the considerations of faithfulness to the demands of divine revelation and the practical imperatives of human temporal lives. This argument is advanced through a study of classical debates among jurists within the two major Sunnī schools of jurisprudence on the specific question of whether divine commands that are devoid of time indications should result in immediate or delayed performance.

What kind of argument is acceptable for this or that interpretation when the text is a court’s opinion? There is plenty of discussion about literary, constitutional, and statutory interpretation. Is it acceptable to import their tenets or theories to the interpretation of court opinions? This paper goes over the leading views on literary, constitutional, and statutory interpretation to compare them with the needs of the court opinions’ interpretation. The author argues that one must interpret court opinions according to the pragmatic model and endeavor to understand the meaning the judge intended for the text.

For obscure reasons, courts exclude some statutorily patentable inventions (‘judicial exceptions’) from patent protection. These exclusions have been criticized for impeding innovation, contrary to the purpose of patent law. I argue that freedom requires these exclusions even if they impede innovation. Patents, like property, can be unilaterally acquired, limiting others’ freedom without their consent. Kant explains why, to reconcile property with equal freedom, only rivalrous objects in acquirers’ first possession can be unilaterally acquired. States can rightfully authorize unilateral acquisition of only these objects. Drawing from Kant, I explain how patent protection conflicts with equal freedom unless patented inventions involve inventive uses of rivalrous objects external to human bodies. Enabled by inventive concepts, these uses would be impossible without these concepts, and are thus in the first possession of their inventors. I then show how the most recent United States Supreme Court judicial exception decisions limit patent protection to inventive uses of rivalrous external objects.

This article focuses on the location of the duty of loyalty—a unique legal norm in Common Law jurisdictions—both actual and desirable, on the continuum between rules and standards. A rule is a relatively ‘closed’ technical norm, at a high level of specificity; it requires little judicial discretion. A standard is an ‘open’ norm, with a greater degree of flexibility, that requires the exercise of discretion. The insights from this jurisprudential perspective are used to reveal the preferred way for further developing the duty of loyalty. The article explains that ‘loyalty,’ intuitively classified as a ‘pure’ standard, has been reconstructed over time as more specific rules. Moreover, it suggests that, ideally, this movement should continue; namely, when applying loyalty to a specific case, courts should include informative content that would promote predictability. It then illustrates that, unfortunately, this road is not always taken by the courts. A decision to retain loyalty as an ad hoc standard, or an inverse attempt to delineate the boundaries of this norm, has implications on the certainty, consistency, and ethical content of the law. Considering that this duty spreads across different legal fields, personal and commercial, the significance of this discussion becomes all the more evident.

The idea that legal systems conditionally threaten citizens is taken by most legal and political philosophers as ‘reasonably uncontroversial,’ ‘obvious,’ or as portraying ‘a large part of how law operates.’ This paper clarifies and ultimately rejects this idea: our legal systems, it is argued, rarely address citizens via conditional threats. If correct, the conclusion defended in this paper might force us to re-examine core debates in legal and political philosophy that rely on the assumption that legal systems often threaten citizens: debates about the justification of the state, global justice, and the coerciveness of law.

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 paper explores Peter Jaffey’s views on the trust and fusion and some aspects of his wider private law theory which impact on his view on trusts law. It shows that, although he is correct that the trust involves both proprietary and personal rights, in the end his theory is ahistorical and unDworkinian, despite his acceptance of a view of law based on Dworkin. His theory is also based on implausible views of the role of equity post-Judicature Acts and the ownership of value and does not adequately fit how trusts law works.

This Article examines ability taxation, which is a tax on a person’s earning ability or potential earnings, rather than earned income. Despite this regime’s longstanding favor as a theoretical ideal for fair and efficient taxation among public finance economists, certain political philosophers, and tax law scholars, insufficient effort has been made to provide an analysis of what ‘potential earnings’ means. This Article explores competing understandings of this notion, and situates them within a multipart taxonomy. In so doing, it unearths a tension at the core of the ability tax program involving a fundamental misalignment between the metaphysics (or correct conceptual analysis) of potential earnings and the economics of its taxation. It concludes that once we correctly understand its requirements, we should reject ability taxation as the first-best normative ideal it has been held out to be on the grounds that it is overly burdensome and unfair to certain individuals.