Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant.

In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ’restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.

The principle of national self-determination asserts the collective right of the nation for self-government. This principle is now a corner-stone of modem political thought. The idea of “home rule” or the ideal of a self-governed political community is a very old one which originated in classical Greece. Yet the modern idea of the free self-governed community differs in some important aspects from the old one.

National sovereignty, or the community’s collective right of “home rule”, means today the right of the political community to its own State. The State, at least the modern liberal democratic Nation-State, is conceived as an instrument by which sovereignty is constituted and national interests are promoted. In this way antiquity poses an interesting problem, since the State is a product of the modern era and was hardly known in the ancient world. The absence of State was not accidental to the ancient community; it was accompanied by an adequate system of ideas concerning the nature of the political community.

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 article posits an interpretation of Thomas More’s Utopia that focuses on the ways in which the nature of justice within a putatively ideal state is illuminated by references to international relations and the law of nations. Like Plato’s Republic, Utopia uses differences of scale to provide a lens through which to examine the operation in one context of a unitary concept that is more visible elsewhere. Justice is constructed as a single concept; thus, in the same way that Plato uses the justice of the kallipolis to provide insight into the justice of an individual, More uses the justice of the international community to provide a macroscopic perspective on justice as it exists within a sovereign state. Through discussions of trade, diplomacy, war and empire, Utopian understandings of international law and justice are revealed. The ideal organisation of the state is then characterised as one in which the resulting notions of justice, defined as the correct operation of laws that accord with natural law, are institutionalised.

Several legal philosophers have argued that the principle of corrective justice provides the best explanation of various areas of the law—especially the law of torts. On the other hand, some philosophers of law and many economists of law have argued that the principle of corrective justice is not an independent principle of justice. I call this the problem of dependency. If the critics are right, the principle of corrective justice cannot be an explanation of a large area of our law as it claims to be.

I argue that the increasingly complex forms of the problem of dependency that the critics have proposed lose their force once we have a better understanding of the principle of corrective justice and its relationships with other principles. The principle of corrective justice does not serve a conception of distributive justice or efficiency and can provide an explanation of a large area of our law despite the criticism. It does so independently as a principle of justice that is reflected in our legal practice.

In my article “Legal Positivism and Natural Law Reconsidered” I suggested that we might be able to effect an interesting reconciliation of legal positivism (LP) and natural law theory (NL) by distinguishing two possible LP-NL debates. In particular, I suggested that we should distinguish, within legal philosophy, between theories of legal validity – that is, accounts of the existence conditions for valid law and theories (as I now would put it) of legal interpretation – and theories of adjudication – that is, accounts of how judges should decide cases. We can use this distinction to formulate two possible LPNL debates, one involving legal validity (LP1-NL1) and one involving adjudication (LP2-NL2). NL1 asserts and LP1 denies that the existence conditions for valid law and the theory of legal interpretation ensure that legal standards satisfy true or sound political morality to some significant extent. NL2 asserts and LP2 denies that the content of the correct or justifiable judicial decision must satisfy true or sound political morality to some significant extent. I sketched my own view of the relevant details of the theories of legal validity and adjudication and argued that these claims seem to vindicate LP1 and NL2 and so to allow a kind of reconciliation of LP and NL.

Discussion in the paper focuses on instituting a requirement that juries in criminal cases make public the reasons for their verdicts. The nature of such a requirement is elaborated, as is the way in which defects in the reasons provided might serve as a basis for appealing convictions. Various arguments for adopting such a requirement are considered, as are objections to doing so. In support of the requirement, I contend that it would enable defendants in criminal cases to ensure that their procedural rights have been respected. Such a requirement can also be construed as a condition of the legitimacy of exercises of political power and as an implication of the right of each person to be treated with equal concern and respect. The main objections to such a requirement concern its possible interference with jury independence and the complications and inefficiencies appeals of reasoned verdicts would produce.

The idea of universal liberal legal norms has long been under attack from a variety of sources. One of the most sustained and sophisticated philosophical versions of such an attack is found in the work of Martin Heidegger. His argument from the social embeddedness of the self to the ultimate contingency and groundlessness of any claims of normativity has been highly influential across a number of fields. This paper argues that legal theorists who wish to contest such a view should look to the work of philosopher Emmanuel Levinas. In his critique of Heidegger, Levinas affirms the significance of the human beyond the particular context in which we find ourselves embedded. Levinas wrote very little about law; his main focus was on ethical responsibility and the claim that an “other” makes on me. I argue that legal responsibility is fundamentally different, concerned instead with the claims that a self can make on others. Drawing upon Levinas’ understanding of the self as constituted through ethical responsibility, I argue that a Levinasian account of justice can support liberal-democratic norms such as freedom, equality and dignity. Indeed, Levinas himself endorsed universal human rights and even indicated a strong affinity with Kant’s idea of justice. What he denied, however, was that justice is a fully rational and coherent concept. I argue that this does not render justice incoherent or call into question the basic status of the norms of justice. Rather, a Levinasian account of justice shifts the emphasis to the community practice of reasoning about universal norms, a practice that is never complete. I further suggest that such a practice of reasoning should be familiar to lawyers as it bears a strong resemblance to common law reasoning.

In The Hateful and the Obscene, Sumner offers a consequentialist reading of John Stuart Mill’s political philosophy that blinds him to the complexity and normative attractions of Canadian law's response to hate speech and pornography. This essay argues that qualified deontological moral philosophy provides a more adequate basis on which to understand the bodies of law examined by Sumner. The qualified deontological analysis is more adequate since it (unlike consequentialism) provides a basis on which to account for the presence within Canadian law of incommensurable values. The analysis offered here also addresses three further weaknesses in Sumner’s text. Sumner offers an inadequate account of the role played by the concept of community in the law’s operations. He also fails to recognise that a strong commitment to identity politics has shaped the development of Canadian law. But perhaps the most significant weakness in The Hateful and the Obscene is Sumner’s adoption of a ‘Millian’ position on free expression that fails adequately to address the threats posed by those political activists who seek to undercut liberal democracy's foundations.

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.

Judicial verdicts matter. Apart from deciding the fate of litigants, common law verdicts hold precedential value. They create and alter legal cultures. Considering their importance, it is crucial to ask: what do judicial verdicts turn on? Each verdict is certainly influenced by the case facts, evidence and argumentation presented before the court. However, verdicts are also importantly shaped by how we think about language.1 Questions about language—about the relationship between words and meaning—are central to legal philosophy.

Carl Schmitt levels two kinds of criticism against liberal parliamentarism. First, Schmitt seeks to refute the liberal conception of politics (which assumes the possibility of rational will formation) on the basis of his own existential view of the political (which employs the distinction between friend and foe). Second, Schmitt attempts to show why and how the evolution of our political system, specifically the development of mass democracy, has made parliament an obsolete institution. This approach is both more dangerous and plausible, because it does not presuppose an acceptance of Schmitt's own controversial conception of politics, and relies on observations about the parliamentary system that are shared and deplored equally by many liberals. In The Crisis of Parliamentary Democracy, Schmitt does not confront directly what he considers to be fundamental principles of the parliamentary system—rational and public discussion—but rather shows that since these principles are unrealizable given the changes which the system has undergone, parliamentary institutions remain an empty shell, devoid of any justification and credibility.

The last two decades have witnessed a wide-ranging and global discussion of the theory and structure of human and constitutional rights. This debate initially focused on the principle of proportionality and subsequently on the related ideas of the ‘culture of justification’ and the ‘right to justification.’ There is now a far-reaching agreement that both proportionality and justification in human and constitutional rights law are concerned with the reasonableness, alternatively the justification in terms of public reason, of the act under consideration. Thus, reasonableness and/or public reason have assumed a, perhaps the, central place in the theory of human and constitutional rights.

This paper focuses on the practice of making reference to foreign law in legal adjudication. On the one hand, this practice has received overwhelming attention from legal scholars in the last two decades under the headings of “judicial dialogue”, “judicial cross-fertilization” or “constitutional conversation”; on the other hand, a systematic, theoretical picture of this practice is still lacking. The paper aims to bridge this gap by elucidating the structure of legal comparison in judicial decision-making from the point of view of argumentation theory. To this end, the paper examines the various forms of comparative reasoning, identifies the set of their implicit premises and shows under what conditions referring to foreign law in legal adjudication is justified on its own grounds. This analysis will lead us to discuss the thesis according to which comparative reasoning by courts is changing the nature of law and the structure of contemporary legal systems.

Our conversations about punishment have been constrained by the presumption that crimes ought to be punished. This presumption does not entail that crimes must be punished, but rather that punishment occurs as a natural response to wrongdoing instead of as a conventional creation. As a consequence, the challenges for punishment’s justification have been reduced to the problems of purpose, opportunity and form, leaving unaddressed the question of the authority of a certain polity to impose this form of treatment on a given individual. In order to present and criticize this presumption, the article traces its origins by revisiting the debate about the nature of punishment that took place during the emergence of liberal political philosophy. After evaluating the main arguments of this debate the article concludes by arguing that liberal theories of punishment should give up this presumption.

Legal systems such as those in the United States and Canada, which include fundamental moral rights or provisions in their constitutions, present an interesting and difficult problem for legal positivists. Are such moral standards to count among the existence or validity conditions of laws in those systems, or are they better understood as fundamental objectives or justification conditions which laws may or may not achieve or respect in practice? The first option, known as inclusive legal positivism, expands the traditional positivist separation thesis to mean that although there is no necessary connection between law and morality in general, it is possible that in some systems it is a necessary truth that laws reproduce or satisfy certain demands of morality. The second option, known as exclusive legal positivism, denies this possibility, and maintains instead that it is never a necessary condition that laws reproduce or satisfy certain demands of morality, even if such demands are constitutionally recognized. On the exclusive account, in the context of constitutional states such as the U.S. and Canada, the separation thesis is expanded to mean that there is no necessary connection between the existence and content of laws and the demands of political morality typically included in constitutions. In this paper I defend exclusive positivism and argue that it best follows from traditional positivist commitments and avoids what I take to be a critical problem with inclusive positivism. Further, I argue that the concepts, distinctions, and arguments deployed in the internal positivist debate are also of value in the wider debate between H.L.A. Hart and Ronald Dworkin.

This paper identifies a volitional theory of meaning common to speech act theory and legal positivism, represented by Hart and Kelsen. This model is compared and contrasted with the model of social operations developed by Reid, a Common Sense Enlightenment philosopher. Whereas the former subscribes to the view that meaning is generated by acts of will, the latter finds meaning to consist of the dual elements of sign and ‘directedness’.

The ability of positivist theories to provide a structural account of the difference between legal rules and other rules is inextricably linked to this commitment to the volitional theory of meaning. The commitment to the volitional view however leads to problems in requiring that some kind of authority be presupposed in for plain rules to attain legal force. Such authority can only be established with recourse to further rules (thus falling into a malign infinite regress) or must be accepted as a matter of faith. Reid's criterion of direction however vitiates the need for an authority, instead accounting for social communication in general, and rules in particular, in terms of sociological factors. Although no comprehensive critique of the volitional theory is proposed, Reid's model is preferable on the grounds of explanatory richness.

The core claims of the paper are that: (a) legal positivism necessarily subscribes to the volitional theory of meaning; (b) rejection of the volitional theory necessarily entails rejection of the positivist view that legal and non-legal rules can be differentiated on structural grounds (c) another counter-model exists which avoids some of the pitfalls of the volitional theory; (d) if the volitional theory is rejected then the existence of rules can only be accounted for in a 'strong' sociological sense and legal theory must accordingly accept the dominant role of sociology in conceptualising the nature of rules.

Analyses of the social contract described by Thomas Hobbes have proceeded in three major directions. First, some readers naturally have felt that Hobbes viewed the primal charter as a genuine outcome of events which truly occurred. Other exegetes have contended that the story of the formation of the social contract was a deliberate fiction—either an artful narrative designed to elicit orderliness, or a heuristic model designed to spark hypothetical reasoning about what would have occurred in a primeval context with specified conditions. Still other analysts affirm that Hobbes used the tale of the social contract as a warning against the evils that plague a society which descends into civil strife.

It is often assumed that there is an important conflict, perhaps even a contradiction, between claims to private property in land, on the one hand, and claims of public access to it, on the other. The conflict is manifest in the dispute, common to many industrialised countries, between those who have private property in land and those who claim access rights to that land for recreational purposes. The first aim of this essay is to clarify what is involved if this conflict is to be understood as taking place at the level of normative justification. Our focus is therefore narrow because we ignore other grounds which, though they need not necessarily ignore normative justification, do not regard it as central to an account of the genesis and existence of the conflict. So, for example, the conflict might be solely or mainly a product of self-interested pressure group politics or ideological dispute.

This Critical Notice deals with two recent books that report the findings of statistical analyses of Supreme Court of Canada judgments over extensive periods of time. The authors of both studies argue that empirical analysis can make significant contributions to theories of law and the understanding of what high court judges do, and in fact, that theoretical approaches on their own are necessarily inadequate to this task. The review questions whether the studies succeed in meeting the ambitions set for them. In Attitudinal Decision-making in the Supreme Court of Canada, Ostberg and Wetstein fail to establish that the attitudinal model of jurisprudence developed by American political science provides a strong explanation of the performance of the Supreme Court of Canada. In The Empirical Gap in Jurisprudence, Daved Muttart employs such broadly stated measures of judicial reasoning that his conclusions about the Court’s performance remain general in nature and do not pose serious challenges to the major, competing schools of jurisprudential thought he seeks to examine. Both studies fall back on unconvincing arguments about the prevalence of judicial activism in Supreme Court decision-making in the absence of stronger findings on their principal themes.