The rule or supremacy of law is a political ideal requiring that the authority of the political community be exercised only within the confines of ordained structures, established procedures, and known legal rules and standards, creating reasonable expectations on the part of those subject to the law. Recent accounts of this ideal often include a list of principles or precepts of the rule of law. Lon Fuller’s list has been rightly influential: generality of law, promulgation, non-retroactivity, clarity, consistency of laws, not requiring the impossible, constancy of law through time, and congruence between official action and declared rule; these principles of the ‘internal morality of the law’ can conflict with each other, so that practical wisdom is required in balancing their demands.

Constitutional adjudication in many legal systems crucially involves giving courts the power to override the decisions of other state institutions, even democratically elected legislatures. The task of delimiting the domain of judicial review is of the first importance. In this paper my aim is primarily critical. I want to take issue specifically with Ronald Dworkin’s well-known attempt to discharge this task through his use of the distinction between principle and policy. Courts, he claimed in Taking Rights Seriously, ought to decide on questions of principle and not policy and they are better suited for this purpose than legislatures. Despite the years that have passed since its original conception, Dworkin’s theory is very much alive and also relevant to contemporary constitutional theory. For, I believe it exemplifies a still common -perhaps also the predominant- way of conceiving of the role of courts and especially the practice of judicial review. It taps on the powerful intuition that it falls on judges to decide questions pertaining to the exercise and protection of individual right. Since my interest is pitched to questions of constitutional design, I will not challenge the explanatory adequacy of the principle/policy distinction itself from the point of view of moral theory, as many others have. Rather, I wish to explore whether this distinction adequately accounts for salient features of the division of labour between courts and legislatures. More specifically I will assess the extent to which employing this distinction satisfies three desiderata.

For years Ronald Dworkin has been a leading academic defender of individual rights. The political and jurisprudential theory underlying his defense has had enormous influence. Defense of the rights of homosexuals has been a prominent theme in his writings. In 1966 he published his well-known critique of Lord Devlin’s critical essay on the Wolfenden’s Committee’s recommendations that sexual relations in private between consenting homosexual adults be de-criminalized (reprinted in 1978b, ch. 10). In recent writings, he has condemned key rulings by American courts that denied certain basic rights to homosexuals. References to the rights of homosexuals are made in many of his works. But nowhere does Dworkin present a developed argument for homosexual rights. He appears to think that support for the rights of homosexuals follows naturally from his political-legal theory. But does it? If so, how? And how adequate is such a defense?

It is not easy to summarize what this book is about, except to say that it is an exploration of a variety of themes and a variety of authors on the role of language in the practice of law, the role of theories of language in legal theory, and how all this bears on “the problems of legal determinacy.” By the latter we are to understand problems having to do with whether the law always, almost always, or never provides uniquely correct answers to legal questions like “Does the Canadian Charter of Rights and Freedoms invalidate the Federal government’s ban on tobacco advertising?” or “Is this defendant guilty of defamatory libel?” The works of several authors are discussed, with emphasis placed on Wittgenstein, Friedrich Waismann, Herbert Hart, Ronald Dworkin, Michael Moore, and Lon Fuller. As with the writings of Wittgenstein, who serves as Bix’s philosophical inspiration, it is not always abundantly clear what the discussions all add up to. Nevertheless, it is possible to distil from Bix’s somewhat unfocused discussions the following central themes. These, as Bix himself notes, are linked by nothing stronger than “family resemblance.”

Intention is a central concept in our system of criminal liability. And in recent years it has been much discussed, both by lawyers and philosophers. However, there remain disagreements, and some unclarity. My purpose in this paper is to examine, and propose solutions to, the main problems concerning the concept of intention in the criminal law.

Nearly twenty-five hundred years ago, Aristotle first elucidated his theory of morality in the Nicomachean Ethics by systematically examining and analyzing the virtues which he felt were necessary for the attainment of the Good in the here and now. One of the most controversial and perhaps least understood portions of this magnum opus are those that pertain to the now famous building blocks of legal philosophy: corrective and distributive justice. These terms remain as relevant today as when they were first “discovered” in large part due to modern legal theory’s increasing tendency to rely on Aristotle’s corrective and distributive ideas as the organizing and distinguishing principles of the private and public law, respectively. If corrective justice is to define the limits and form of the private law, however, a blind reliance on Aristotle’s interpretation is mistaken. An examination of Aristotle’s corrective justice shows that his legal philosophy is incomplete and often paradoxical—asserting premises that are irreconcilable on a plain reading of Aristotelian texts. In order to demonstrate these inconsistencies, this paper will first distinguish between corrective and distributive justice. It will then examine three of the most difficult and least understood aspects of corrective justice: namely, Aristotle’s conception of equality, reciprocity, and correlativity in gain and loss.

Many religious associations exhibit internal norms that differ from liberal norms and rules. Such norms often directly contradict the non-discrimination norms and rules that are part and parcel of the liberal democracies in which these associations operate. Religious associations often are considered, in both legal and scholarly writings, exempt from at least some of these norms and rules. This tension between broad societal non-discrimination1 rules and the norms of specific religious associations has won the attention of scholars and courts.2 In many such debates, the background assumption is that these religious groups are voluntary associations functioning within a model of separation between religion and state; that is, such associations operate through the free choices of their members and individuals are as free to leave the associations as they were to form them.3 While theorizing about non-discrimination rules and whether they apply to religious associations that are funded via the contributions of their members is of obvious importance, this article examines a distinct problem: that of discrimination within religious associations that are directly supported by democratic governments. Recent research on religion-state relations4 has pointed out that, in many democratic countries, religious associations are funded by the government to a considerable extent. The tension between non-discrimination norms and the presumed rights of the state-funded religious associations to be exempted from such rules, however, is neglected in the literature. Perhaps this is because the most prominent legal cases of this kind were tried at the European Court of Human Rights5 and the U.K. Supreme Court,6 rather than the more conspicuous U.S. Supreme Court. This article asks the following question: in what way, if at all, does receiving governmental funding change the presumed right of religious associations to be exempted from non-discrimination rules? The ‘immunity thesis’—the idea that religious associations enjoy the right to be exempted from non-discrimination rules—is not challenged here: this article argues that if there is such a right to immunity, receiving governmental funding does not necessarily eliminate it. Much depends on how each case maintains the balance between the autonomy of religious associations7 and the protection of individual citizens from discrimination that impacts important civil interests such as access to jobs or high-quality education. Of the suggested variables identified to test this balance, three are internal to the associations’ structure: the centrality of the potentially illiberal norm to the funded religious association; the kind of violation of non-discrimination rules (either internal or external discrimination, see below); and the willingness of the religious association to internalize the cost of the discrimination. Two additional variables that can be used to test the balance of competing social values are external to the association and depend on the political-legal environment in which the association functions: the quantity of funding that the government makes available to the association, and the process by which potentially competing religious associations can become eligible for recognized and funded status. A multivariable ‘test’ is required in order to determine whether and how governmental funded religious associations can still claim immunity when practicing discriminatory norms.

Legal and political thinkers have always battled with the question of justice and, especially within a society, about the fair and just distribution of rights and responsibilities. This question is, however, not only relevant for the organization of municipal or domestic society; it has become increasingly relevant within the international legal system. An area where this has been most rife in the last three decades is the international law on climate change.

Wittgenstein’s writings on “rule-following” remain an important—and sharply contested—part of his later thought. The reference to “rules” in those writings was both broader and more basic than the use of that term in most discussions of practical reasoning or legal theory. Wittgenstein’s use of “rule” refers to all normative constraints which apply over an indefinite variety of cases, to practices where our actions might be said to be guided, to situations where characterizing actions as “correct” or “incorrect” makes sense. However, “[h]e aimed not to write a book on rules but to examine specific problems arising out of insights into the normative nature of a language, of logic and of reasoning.” He focused in particular on normative practices that on the surface do not seem troubling or difficult to understand: for example, using a word correctly, understanding a signpost, and continuing a simple mathematical series. In such examples, the interesting question is not whether a particular response or continuation is right or wrong; Wittgenstein specifically chose examples where there would be consensus on that issue. Wittgenstein’s question is what is it about the rule or about ourselves which makes our responses right or wrong (or which justifies us in reaching that evaluation)?

Focusing on the recent U.S. Supreme Court decision, Eldred v. Ashcroft, which held that the U.S. Congress acted constitutionally when it extended copyright terms by twenty years, this article argues that copyright law in the United States for the most part responds to pragmatic imperatives. The article examines the theoretic/pragmatic distinction at an institutional level and argues that intellectual property lawmaking is at its most pragmatic in the legislative realm. While there is greater potential for theoretical concerns to influence intellectual property law-making in the judicial review context, in Eldred v. Ashcroft, the Court declined to allow grand intellectual property theories to dictate the freedom Congress enjoys to craft copyright legislation in the light of its rational view of the best (pragmatic) cultural and economic policies. The article concludes that in Eldred v. Ashcroft there can be detected an ontological approach to the “Copyright Clause” in the U.S. Constitution. The Court’s role is to ensure that Congress acts consistently with what copyright “is”; that is, a vehicle for motivating the “creative spark” of authorship. Congress has relatively free rein to determine what copyright should “do”. Moreover, any limitations on what copyright is meant to achieve are certainly not to be determined by theoretical concerns. Even the Court’s ontological approach to copyright law should be regarded as “modest,” however, given the Court’s general deference to the policy and cultural choices legislators make in the copyright field.

This article examines the work of Martin Loughlin, a prominent public lawyer who works in the leftwing tradition of political and legal theory, often associated with the London School of Economics and Political Science. It argues that tensions in Loughlin’s work exemplify certain trends within the left, the result of the left having lost faith in its positive political programme, one which was supposed to be delivered by Parliament. What remains once this faith is lost is a traditional hostility to liberalism and judicial review in combination with a sense that the realm of politics-the political-is valuable. This combination explains the turn taken by certain leftwing theorists to Carl Schmitt’s authoritarian understanding of politics and to a kind of romanticism about tradition. Given the risks inherent in this turn, would be better for the left both to return to its roots in a positive programme. This move would require the left to engage properly in the contemporary debate about the normativity of law.

This article considers the use of cultural analysis by tax academics, particularly as it concerns comparative tax issues. While various authors have used the terms “culture” and “cultural” in tax scholarship, it is not clear that they have ascribed the same meanings to these terms, and their approaches have (with rare exceptions) not yet been systematic. In particular there is a division between those scholars who have used the term to indicate broad national characteristics, such as the American ambivalence toward wealth or the Italian tolerance for tax evasion, and those who have considered the beliefs and practices of tax professionals or administrators--what might better be called the tax anthropology or sociology of a given country or region. The author considers these issues in the context of two specific problems: the issue of progressivity and tax reform, and the narrower issue of statutory interpretation and tax shelter limitations. The author concludes that cross-cultural comparisons hold substantial promise in the tax field, but are likely to be most productive when focused on specific, well-defined problems and when the author is clear as to what definition of culture he or she is concerned with.

We are experiencing a transitional moment in international law. What once seemed to be an unstoppable evolution toward cosmopolitan constitutionalism now appears as a fragile and easily reversible trend, threatened both by the imperial disregard of international legality by recent U.S. administrations and by the disinterest or active opposition of a group of states that was classified as ‘uncivilized’ in nineteenth century international law. A powerful account of the differences between these states -- former colonies and satellites of great powers – and the predominantly western states whose publics take for granted human rights culture has captured the imagination of international elites. The contemporary account of the differences between western European-descended political communities and the ‘others’ focuses on democratic governance, human rights, and human security. One important element of this narrative is the emerging international legal concept of the ‘responsibility to protect,’ often promoted as a means of securing the preceding three goods. This paper considers the recommendations of the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) concerning a subsidiary element of the responsibility to protect termed the ‘responsibility to prevent.’ It argues that the prescriptions associated with the responsibility to prevent rest upon a set of prevailing assumptions about the root causes of threats to human security that are not tenable or not proven, and which both rely upon and reinforce the dualistic narrative of lawful and outlaw states that now dominates international public policy-making in western countries. Further, it shows how the model of legalization of humanitarian intervention proposed by ICISS is susceptible to cooptation by the democracy promotion project frequently associated with the liberal peace thesis. Finally, the paper recommends that only a stripped-down version of the ICISS recommendations, limited to the ‘responsibility to react,’ should be legalized, primarily because of the current absence of a reasonable degree of intercultural agreement on a substantive grounding for a muscular interpretation of a responsibility to prevent that includes root cause prevention.

Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities in Legality might easily be resolved in favor of Planning Natural Law. The Planning Theory of Law, in other words, is not proprietary to positivism.

The essay considers whether there are necessary truths about rights. The existence of rights is contingent, but our practices involving rights rest upon fundamental conceptual assumptions necessary to their coherence. Hohfeld’s analysis is proffered as the embodiment of those assumptions. An examination of the concept of necessity shows how those assumptions can be necessary truths about rights without being logically necessary.

Individuals sometimes do things that they know will violate the terms of a statute. Most scholars deny that such actions are always morally wrong, but a coherent theoretical account of the relationships between 1) moral obligation, 2) legal obligation, and 3) criminal wrongdoing that can robustly classify hard cases has been elusive. This article starts with a Kantian account of the relationship between law and morality, and it proposes two closely related standards: one for legal obligation, and another for criminal wrongdoing. It then tests the plausibility and resilience of these standards by using them to generate illuminating new analyses of classic hypothetical cases involving alleged crimes committed under circumstances of necessity. These analyses offer reason to believe that the standards proposed in this article can anchor a Kantian theory of criminal responsibility that is simultaneously rigorous and humane.

This article revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions. Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state. Hegel is also right to stress that punishment is – not merely conceptually, but also in the reality of our social world – a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom. This understanding of punishment sets significant limits to punishment’s permissible forms, particularly – but not only – with regard to the death penalty. By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents. In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

This paper suggests that Canadian common law doctrine, according to which businesses providing goods and services to the public at large are allowed to refuse service because of a customer’s group-based characteristics such as race, is inconsistent with previous case law as well as with the underlying reason-based structure of the common law. After suggesting that the common law has not been fully displaced by human rights legislation, the paper demonstrates that the common law contains three concrete articulations of a duty to provide equal service. It argues that at the core of the rationale that best fits these bodies of case law is a status-based demand placed on those interacting in their capacity as members of an impersonal profession to refrain from taking into account any personal or group-based characteristics beyond those relevant to the provision of goods and services around which the profession is organized.

There are a set of wrongs that are normatively distinct as ‘criminal wrongs’, and yet, there is disagreement as to ‘the basic features of criminal liability’ that explain this normative distinctiveness. The only consensus has been that criminal wrongs are ‘public wrongs’. For some, they are public wrongs in the sense that they infringe the values and interests for which the community has a shared and mutual concern. For others, they are public wrongs in the sense that they are the wrongs that public officials are responsible for punishing. A third view is that they are public wrongs in the sense that there are procedural advantages of having public officials empowered to address the wrongdoing. I argue here that the first two views are analytically inseparable: the considerations that explain the wrongs that merit social prohibition are the same considerations that explain the censuring and punitive response of the criminal law. I also argue here that, contrary to the third view, the powers of public officials in criminal law procedures follow from, rather than explain, the concept of a crime being a public wrong. Procedural advantages can explain how criminal wrongs are public wrongs, but they cannot explain why criminal wrongs are public wrongs.