This paper argues that what scholars call ‘the free speech principle’ is not one principle but a slew of principles, and that these principles harbour several important differences that have remained largely unremarked upon, namely: (i) extending vs. limiting principles; (ii) comparative vs. non-comparative principles; and (iii) monistic vs. pluralistic principles. The paper also critically assesses certain generalisations that people might be tempted to make about these different principles, such as that one kind of free speech principle is harder to defend than another. Finally, the paper teases out the practical as well as theoretical implications of these insights, including degrees of complexity, the logical relationship between free speech principles and free speech policy dilemmas, and the virtue of compromise over free speech principles.

This paper argues that an AI judge is conceptually undesirable and not just something that lies beyond the state of the art in computer science. In a nutshell, even if an AI system could accurately predict how a good human judge would decide a particular case, its prediction would be the product of correlations between such factors as patterns of syntax in bodies of legal texts. This approach of AI systems is insufficient for basing their output on the sort of rationales that are expected of valid judicial decisions in any desirable legal system. Thus, by their very nature, AI systems are incapable of providing valid legal decisions in any such system.

This paper argues that community land trusts (CLTs) can be part of a liberal housing policy from both an economic and a legal point of view. In this, I depart from the defense of community land trusts based on the so-called ‘decommodification’ of housing. First, from an economic point of view, CLTs are a comparatively better option than other traditional policies, such as rent control, once the political complexity of housing policies is considered. Second, fostering autonomy and the capacity for self-authorship requires that individuals be able to choose from a diverse set of valuable institutional designs; CLTs correspond to that ideal and bring a unique nuance to the existing options within common-interest communities. Additionally, I look at the somewhat recent legal innovations that brought CLTs to Canada and continental Europe to show that the institutional flexibility of CLTs allows them to support different visions of self-realization through ownership.

The revolution in Western family law over the past 50 years—often described as ‘liberalization’—involves a decrease in the importance of fault-based factors alongside an increase in the significance of marital contracts. While these two trends generally complement each other, they may conflict when a couple seeks to assign economic consequences to sexual fault through a contract. Should such an agreement be legally enforceable? Which aligns more with a ‘true liberal’ perspective: advocating against fault or for the use of contracts? This paper suggests a new approach that goes beyond simply determining which trend should prevail. We illustrate how the perceived conflict between proponents of sexual liberalization and proponents of contractual liberalization could be resolved by identifying the underlying reasons that motivate each ‘camp’, proposing potential legal mechanisms and specific legal contexts in which broad agreement might be reached, and explicating the multidimensionality of family law liberalization.

In a 1998 article, Bohman argued that the contemporary deliberative turn in democratic theory had reached its ‘coming of age’, as deliberative democrats began to show greater interest in the institutionalization of their proposal. Moreover, Bohman referred to this growing interest with an expression that was unprecedented at the time: ‘deliberative constitutionalism’. At present, deliberative constitutionalism has become one of the most original and relevant contemporary proposals. In this context, my article proceeds as follows. I begin by arguing that the contemporary deliberative turn in democratic theory also gave rise to a deliberative turn in constitutionalism—that is, a trend aimed at orienting constitutionalism and judicial review towards democratic deliberation. Next, I argue that, at that embryonic yet promising stage, deliberative constitutionalism had shortcomings that hindered the aim assumed since its origins. Finally, I argue that, over recent decades, these shortcomings have been finessed, which shows that deliberative constitutionalism has also reached its coming of age.

Doctrinal legal scholarship faces persistent challenges from empirical approaches, but such criticism rarely seeks to encounter doctrine on its own terms. In this article, we seek to excavate the theoretical and methodological basis of doctrinal legal scholarship by situating the discipline in a hermeneutic continuum between theory and practice, or law’s engagement with the social world. We first unfold this dynamic as an exercise in methodological interpretivism and ontological hermeneutics and then turn to explicate our analysis with examples drawn from tort law and international criminal law. We ultimately argue that law can never be strictly circumscribed as an empirical object because law cannot be disassociated from an agent’s reasons, which are continuously bound up in a hermeneutic circle, and which the scholar must enter into to achieve legal understanding. Unavoidably, therefore, doctrinal legal scholarship becomes part of the very object it is investigating.

What is the nature of law? The question that St. Thomas Aquinas answers in Summa Theologica I-II continues to be a crucial question in contemporary philosophy of law. Various scholars of jurisprudence attempt to identify the necessary features of law. Yet they struggle with the question, what kind of necessity is involved? Is it conceptual necessity? Metaphysical necessity? In this paper, I explore an alternative way of distinguishing different kinds of necessity that is found in Aquinas’ Commentary on Aristotle’s Physics. I argue that the three kinds of necessity simpliciter, from the formal, material, and efficient cause, and hypothetical necessity, from the final cause, are relevant for understanding how Aquinas’ definition of ‘law’—an ordinance of reason, for the common good, made by the one who has care for the community, and promulgated—is a necessary truth. This historically interesting approach offers insights for contemporary jurisprudence.

Despite the growing influence of constitutional rights over the regulation of horizontal (private) relations, many aspects of this trend remain under-theorized. This article criticizes four ideal-typical constitutional horizontality models for failing to accommodate moral reasons that must shape this regulatory practice: the state action model ignores basic consequentialist aspects of political morality; the direct application model ignores basic relational aspects of interpersonal morality; the strong indirect model recognizes both but subordinates the latter to the former; and the partitioned indirect model recognizes both but separates them too strongly. This article claims that a composite indirect model, which reflects basic features of the common law, can better realize constitutional rights through private law in conditions of moral pluralism: it can expose private law to constitutional rights-based and reform-oriented scrutiny without ignoring, eroding, or distorting the unique normativity of private relations and practices or their underlying values.

This article examines the ways in which the language of legal rights is invoked by those seeking to improve the treatment of animals. Drawing from a range of analytical, realist, and critical legal and social theorists, it argues that certain argumentative techniques commonly employed to justify the extension of legal rights to animals may serve to strengthen and reproduce the very forms of exploitation they seek to challenge. The article begins by identifying and critiquing the binary characterisation of rights/welfare and property/personality in liberal animal law scholarship. It then employs the insights of Theodor Adorno and Walter Benjamin to expose and critique various appeals to an ‘exterior’ or ‘extra-legal’ domain which functions to stabilise the meaning of these doctrinal categories. In doing so, it explores the strategic viability of rights discourse in the animal advocacy movement with a view to highlighting the limitations of liberal constructions of animal rights.

Theories of aggregated legislative intent posit that the legislative intent of parliament is what a significant enough proportion of legislators intended (e.g., legislative intent is p if a majority intend that p). After all, many think the same way about democracy (‘votes reveal the will of the people’) and about courts (‘a court decision is based on judicial voting’). The existing literature on aggregated legislative intent, however, tends to make two undefended assumptions: (i) Informed Assumption: all legislators have policy intentions; and (ii) Group Intent Assumption: the existence of an aggregated intent entails the existence of a group intent. Despite these assumptions being subject to great scrutiny, they largely remain undefended. This paper defends the Group Intent Assumption and shows that aggregated theories can survive with a weaker version of the Informed Assumption.

This article focuses on the relationship between democracy and the notwithstanding clause in s.33 of the Canadian Charter of Rights and Freedoms. A number of scholars argue that s.33 is inherently ‘democratic’, as it is an assertion of legislative supremacy. The most influential such theory is Jeremy Waldron’s. This article offers a democracy-based critique of Waldron’s democracy-based account of the notwithstanding clause. The argument that the notwithstanding clause is necessarily ‘democratic’ ignores the constitution of the legislature through elections and the risk of self-dealing by the legislative branch, adopts an idealistic view of legislatures at odds with the reality of executive dominance and party discipline, and over-relies on the assumption that the electorate will ensure retrospective accountability for misuse of s.33. Contrary to Waldron and those who have adopted his arguments in Canada in the context of the Charter, the article argues we can be democrats and have faith in the capacities of legislators and voters while still maintaining skepticism about the uses to which the notwithstanding clause may be put. In short, s.33 is not inherently democratic. The political morality of each use of the notwithstanding clause—including whether it helps or harms democracy—must be assessed on a case-by-case basis.