‘Legal Positivism’ is a much abused term. It is often pejoratively invoked by those occupying both the natural law and critical legal studies ramparts. The former see it as a school of thought which ignores the role in law of those standards and values which have not been deliberately laid down or unintentionally evolved. Positivism, for them, fails because it is prepared to describe a legal world where moral values play no necessary part and where transcendent values may not exist at all. The latter group of critics, not too dissimilarly, see legal positivism’s doctrines as over-reliant on rules and too inclined to accept that a legal system somehow can generate a logically mandated code of answers.

In order to defend positivism it is advisable to start with an enunciation of its core precepts. With all that has been written attacking and supporting positivism though, this can be a contentious matter. So instead I shall defend one particular version of positivism, that of H.L.A. Hart. As Hart’s The Concept of Law, first published in 1961, is at worst one of the handful of great legal philosophy texts written in English this century and at best “the classic work of philosophical jurisprudence”, this preference for concentrating on the tangible and identifiable precepts of Hart over the woolly, elusive and frequently caricatured precepts of something disparagingly termed positivism has much to recommend it.

The charge that the United States Supreme Court exercised a conservative influence upon the nation’s constitutional life during the period from 1864 to 1938 is impossible to refute. The Supreme Court during the period from the end of the Civil War to the New Deal era has been portrayed as having largely abdicated its obligation to protect society’s common interests in favour of a laissez-faire constitutionalism reflecting the social and political views of new and powerful economic interests. The judicial conservatism of the late nineteenth and early twentieth centuries conflicted with the political ideals of Progressives and with the direction taken by American policy-makers since the acceptance of Franklin D. Roosevelt’s New Deal in the 1930s. Historians have labelled the Court’s laissez-faire conservative style as undesirable, if not consciously immoral.

Nevertheless, the problem of understanding the ideas which lay at the foundation of judicial conservatism should be addressed. General legal historians have preferred to begin and end their inquiries into early influences on the judicial mind with a short overview of legal education and leave aside the possible influence of college studies. In recent years, historians have broadened their investigations of the intellectual underpinnings of late nineteenth-century legal thought in an attempt to provide the sort of synthetic account of legal thought suggested by Perry Miller’s Life of the Mind—a work which attempts to connect the thought of leading members of the bar to intellectual currents outside the legal sphere. The result has been a limited rehabilitation of the Supreme Court’s reputation during the Gilded Age.

The concept of promise stirs many to write. Among ethical theorists, a cottage industry flourishes, devoted to answering Hume’s skeptical questions: What are promises? and Why are they binding? Among jurists and legal philosophers, the leading questions have been: When should promises be enforced? and What is the relationship between promissory and other forms of obligation? Among linguists and philosophers of language, the focus is different still. These scholars ask: What is the logical structure of the speech act of promising? and To what extent is promising a universal linguistic phenomenon?

This widespread interest in promises and promising is driven by several factors. One is a belief that the moral and political stakes are high. Promising is not only a common way by which we come to have obligations. It is the simplest, most direct, and most individualistic way in which we voluntarily come to have obligations. If one wishes to account for social, political or moral obligation in a way that maximizes the scope of individual liberty, one likely will focus on promissory obligation and its potential to serve as basis for more complex—even non-voluntary—types of obligation.

Another factor contributing to the interest in promising is the emergence of speech act theory as a framework for philosophical, linguistic, and to some extent jurisprudential, analysis. Speech act theory treats language as a system of verbal acts that effect changes in the world. A person cannot utter “Let there be light,” and bring it about that there is light. But he might be able to utter “I hereby declare you husband and wife” and bring it about that Jones and Smith are married to each other. This perspective on language quickly leads to an interest in promising, since promising appears to be one of the most straightforward ways of altering the world through words. What seems simpler than changing one’s relationship by uttering “I promise to ϕ”?

In November 1994 the Canadian government released its Immigration Plan for 1995 and an immigration and citizenship strategy mapping policy direction until the year 2000. This strategy, developed after extensive public consultations, was the government’s response to increasingly contentious public discourse about immigration. The 1994 document was the government’s attempt to reorient Canadian immigration law and policy. The 1996 and 1997 Immigration Plans, tabled in November 1995 and October 1996 respectively, are consistent with the five year plan announced in 1994, demonstrating that the change of direction set out in 1994 has met at least some of the government’s objectives.

This paper assesses the reorientation of Canadian immigration law contained in the 1995 Immigration Plan and accompanying documents. Much of the public debate about immigration concerns whether current immigration levels and policies are fair, or just. As Canada is a liberal society, it is appropriate to begin the search for standards of fairness—or justice—in liberal theory. But because liberal theory presumes a community and then explores theories of fairness and justice within that community, it does not yield a standard of justice which is useful for assessing changes in immigration law. Nor, I argue, can liberalism’s tenets be extrapolated to address this question. This conclusion leads to insights about the role of immigration law in liberal society and points to particular ways to assess this law. While other theoretical paradigms may contain ways of determining the fairness of immigration law, such paradigms are less useful in the Canadian setting, where liberal discourse is hegemonic and hence is the language in which debates about immigration law must take place to be immediately politically relevant. The first half of this paper examines liberal theory’s failure to address the justice of immigration laws, and evaluates attempts to extend classical liberalism to meet this challenge.

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.

When is a liberal democratic state justified in enforcing an educational policy on its citizenry? This question is especially relevant in contexts where religious minorities wish to receive exemptions from mandatory educational policies. Parents in such groups argue that these educational demands threaten the traditional ways of life of their communities, infringing on their parental right to raise their children as they see fit. Parents may also claim that their free exercise rights, as granted by the First Amendment, are violated by an educational policy that requires them to breach a religious command specifying a certain type of religious upbringing for their children. The customary way that both the courts and commentators have addressed this issue is to represent it as a conflict among four divergent interests: 1) The child’s interest both in an adequate education and in the maintenance of a stable family and cultural community; 2) the parents’ interest in controlling the upbringing of their children and in protecting their right to the free exercise of religion; 3) the community’s interest in preserving its identity; 4) and, the State’s interest, on the one hand, in educating its children in order to maintain an informed citizenry capable of participating in the economic and political spheres, and on the other hand, in the maintenance of diversity.

While each of these interests appears significant and relevant to the enforcement of an educational policy, I will challenge the traditional way of addressing this problem as a balancing of these interests. Instead, I argue that the interests of children should be given primacy, and only after these interests have been addressed can the interests of others be given weight in determining and enforcing an educational policy.

In this paper, I will discuss the question of the response of the law to the social phenomenon of violation of the law from moral motives. This phenomenon is characterised by the fact that the motivation behind the violation of the law is the desire of the actor to act according to his moral beliefs. In the case of “normal” criminality, on the other hand, a person violates the law for non-moral reasons, e.g., to obtain an advantage, to release anger, etc. Within the category of morally-motivated violation, too, there are different types of breach. First, a distinction exists between “revolutionary disobedience” and other acts. “Revolutionary disobedience” might also be motivated by moral considerations, but it is differentiated in that it involves violations of the law which are intended to bring about a change in the existing regime. As opposed to this, there are violations of the law which are motivated by moral considerations, but which are perpetrated by people who are interested in the continuation of the existing regime and social structure in its entirety. I shall not deal with “revolutionary disobedience” in this paper.

Secondly, even within the group of violations from moral motives which do not constitute “revolutionary disobedience”, the present practice is to identify two types of breach: civil disobedience and conscientious objection. The main thrust of the distinction is this: in essence, civil disobedience is a political act, an appeal to the public, and its aim is to bring about a change in the law or in policy which seem to the violator to be wrong or immoral. Conscientious objection is a personal act. The violator feels that should he submit to the law, in the circumstances, he will be committing a moral wrong. The objector’s act is not motivated by a desire to influence the whole polity, but rather, by a desire to stay clean, and not to perpetrate, with his own hands, a moral wrong. In effect this is an act of the individual defending himself against coercive pressures to perform what he regards as a moral wrong.

Punishment, by definition, involves the intentional imposition of some deprivation or suffering on individuals against their wills. On any moral view, there is a very strong presumption against doing this to people; so, if a society has an institution of punishment, some justification is needed. On the face of things, such an institution would seem to be an evil. What, then, is the justification for punishment? And once this question has been raised, related questions arise. Who should be punished and how severely? And what principle or principles should we use when setting up sentencing guidelines? Any adequate theory of punishment must provide some guidance, some useful headings, even if not a detailed chart, for answering these questions, among others.

In this paper, I outline a theory of punishment that I believe best answers these sorts of questions. Inevitably, some parts are far sketchier than others; but within the general outline, the major focus is on the concept of desert and on the application of desert principles in determining the just allotment of punishments. This leads to a framework for constructing a crimes/punishments schedule for sentencing. Along the way, a number of lesser issues are discussed as well.

The ideology of ethno-nationalism creates a new world disorder. States and international organizations must find a way to deal with group conflicts to prevent ethno-nationalism from transmogrifying into ethnic cleansing and genocide. Minorities need protection against harm. The problem of minorities dominates many political conflicts.

The judiciary can provide a critical means of protection. Agreement comes readily over the general role for the courts in minority protection. Disagreement abounds over their specific role. Should courts, for instance, protect individuals but not specific groups? Should courts protect the identity of minority groups? The role of the judiciary becomes more tractable with a reorientation of our thinking by giving priority to the negative aspect of the minorities’ problem: the problem of injustice. Since group harm, and not group identity, lies at the heart of the difficulty, this is where the courts should look. Jurists become diverted in trying to define a minority in some positive terms when the harms that confront any minority are readily apparent.