At its most basic level, autonomy is self direction or self rule. Let us take this as a rough working definition. Thus, anyone else who has (other than advisory) authority over one’s actions would seem to violate or be in a position to violate one’s autonomy. Yet, authority differs from power in that it is legitimized; so that violation is justified (if it is a “violation” at all). Put most simply, either you are autonomous and direct yourself or you yield to authority and surrender your autonomy.

In this paper, I attempt to clarify the ideas of equality underlying section 15 claims for benefits such as welfare and health care; I use the name ‘economic rights claims’ for these types of claims. I adopt Joseph Raz’s division of equality claims into rhetorical egalitarian claims, which are based in a failure to equally respect a universal claim (and typically take a form such as, ‘All Fs have a right to G’), and strict egalitarian claims, which are based on an actually existing unequal distribution of resources (and take the form, ‘All Fs who do not have G have a right to G if some Fs have G’). I show how the dignity-based approach to equality stemming from Law v. Canada is an example of a rhetorical egalitarian claim. With this groundwork set, I turn my attention to the economic rights claims. I survey three reasons for thinking that an unequal distribution of some benefit might, even absent any failure to respect or recognize the dignity of those at the losing end, be thought of as wrong or unjust. The first two reasons - an appeal to an idea of sufficiency, and the fear that some stigma might be associated with the inequality - I reject in favour of the third, which is that in a situation in which all the participants have some equal claim to a benefit, a fair procedure will result in their benefiting equally. Following John Rawls, I suggest that our society, as a cooperative venture for mutual advantage, creates in its members at least a prima facie equal claim to share in the society’s benefits. The economic rights claims, then, are claims that this prima facie equal claim has not been respected. But the benefits being claimed for, as benefits created by the society, are not benefits automatically due to everyone just in virtue of their humanity, instead they are due to the worst-off once the best off have come to be able to benefit from them. Thus they take a strict egalitarian form - once some members of our society benefit in a certain way, then the equality of all members as contributors to the cooperative venture for mutual advantage implies that the other members of our society gain a claim to that benefit. The fact that these economic rights claims are strict egalitarian claims means they cannot be grounded in arguments about dignity, as dignity-based claims are rhetorical egalitarian claims for benefits due to all in virtue of their universal human dignity. I conclude by returning to Law to highlight a passage which I believe provides a grounding for a recognition of economic rights in line with my argument; I also make some brief comments on the need for a stricter division of labour between section 15 and section 1 in the context of economic rights claims and on the effect of this argument on Canadian federal law more generally.

Recent U.S. tax cuts, to the extent that they involved a principled, long-term policy view, seem to have been aimed at shrinking the size of government. The idea apparently was to force eventual spending discipline, even (or perhaps especially) with respect to Social Security and Medicare, by turning reduced tax revenues into a political fact on the ground that would be difficult to reverse. In fact, however, the idea that the tax cuts would make the government smaller seems to have rested on spending illusion, or confusion between the actual size of government, in terms of its allocative and distributional effects, and the observed dollar flows that are denominated ‘taxes’ and ‘spending’.

Given the long-term budget constraint, which holds that government inflows and outlays must ultimately be equal in present value, and the huge preexisting fiscal imbalance, the tax cuts are likely to be paid for, in the main, through some combination of future tax increases and cuts to Social Security and Medicare. (Other government spending cuts, relative to the case where the tax cuts were not enacted, are likely as well, but cannot contribute nearly enough.) To the extent that the 2001 through 2003 tax cuts lead to future tax increases, the combined effect is likely to make the government bigger both allocatively and distributionally. To the extent that Social Security and Medicare spending bear the brunt, the government still gets larger in the sense of increasing redistribution from younger to older generations, although Medicare cuts might decrease the size of government allocatively.

This article provides an explanatory framework of the spontaneous lawmaking (“SL”) process in the area of private law. To illuminate the process of the spontaneous emergence of private law, this paper focuses on three issues: (1) the conditions under which SL is likely to generate efficient norms, (2) the mechanisms that explain the emergence of norms in the absence of centralized enforcing institutions, and (3) the comparative advantages and disadvantages in terms of the efficiency of SL compared to public centralized lawmaking processes. This discussion is organized as follows. Section I defines the scope of the analysis. Section II introduces the relevant analytical tools offered by game theory and transaction-cost economics. Section III identifies the conditions for the spontaneous emergence of efficient norms. Section IV identifies three alternative mechanisms that explain the spontaneous emergence of norms. Section V examines the limitations of SL processes. Finally, Section VI provides examples of SL in the area of private law to demonstrate concretely the analytical potential of the proposed framework.

I argue in this article for the use of a dialogical approach to cost-benefit analysis, which is identified here as a process that rationalizes cross-cultural judging. Weighing in on the Kahan-Sunstein debate about the effect of culture on risk perception, I use economic valuations of Indigenous sacred sites to demonstrate how cost-benefit analysis can misrepresent loss. I identify the way cost-benefit analysis operationalizes preferences that have little relevance for perceptions of substitutability, property, or harm related to sacred sites held by some Indigenous peoples. In doing so, I problematize the use of cost-benefit analysis as a method for ascertaining loss and contextualize risk in the social context in which it is perceived. In order to further procedural justice, I recommend valuation of loss that allows for epistemological disparities in determining rationality. This dialogical approach expects to maximize the accuracy of cost benefit analysis so as to create greater accountability for loss valuation and destabilize formulations of culturally determined preferences as bounded but corrected by expert knowledge.

Legal philosophers have taken what Ronald Dworkin called “theoretical disagreement” or disagreement about the “grounds of law,” to be of jurisprudential interest because of its putative incompatibility with legal positivism. The first aim of this article is to reframe theoretical disagreement as part of a broader challenge for all jurisprudential theories, positivist or not: how to refine and reconcile three theses that should appear plausible, important, and in tension. (1) Conventionality: the content of the law is determined, presumptively if not definitively, by meta-rules of law whose status as meta-rules arises from a consensus among relevant legal actors to treat them as having that status. (2) Disagreement: judges have theoretical disagreements about the law-i.e., disagreements about such meta-rules of law as legal interpretive methods, which they do not attempt to resolve merely by reference to explicit or implicit empirical consensus. (3) Fidelity: judges’ theoretical disagreements can be in good faith, reasonable, and legally resolvable. The article’s second ambition is to synthesize a broad range of jurisprudential writing pertinent to conventionality, theoretical disagreement, and judicial fidelity to law, in order to bring forward a potential reconciliation of all three that gives each one its due. Law and the requirements of judicial fidelity can be broadly conventional yet subject to reasonable, genuinely “theoretical disagreement” insofar as they are determined not only by contingent empirical truths about convergent practice but also by non-contingent conceptual truths about law’s nature and distinctive virtues. Unlike accounts of theoretical disagreement developed by theorists attacking or defending legal positivism, the view of theoretical disagreement I sketch here is ecumenical. It is compatible with accepting or rejecting legal positivism-though not on all positivists’ or all non-positivists’ terms.

The perfectly competitive market of economic theory often enters political philosophy because it can be represented as illuminating important values. Theorists who are enthusiastic about the heuristic potential of the market claim that we can learn much about individual liberty, the promotion of mutual advantage and efficiency in the distribution of goods by studying it. However, a principal limitation of the market for many theorists is its supposed insensitivity to the demands of egalitarian justice. According to the standard charge, markets—even idealised ones—are hostile to the achievement and maintenance of an equitable distribution of resources. It is striking, then, that a leading exponent of egalitarian justice like Ronald Dworkin should argue that there are very deep and systematic links between equality and the market. He contends that, contrary to the received view, “the best theory of equality supposes some actual or hypothetical market in justifying a particular distribution of goods and opportunities.” Moreover, the articulation of Dworkin’s influential egalitarian account of liberal political morality depends on acceptance of the market as an ally of equality. Thus Dworkin claims not only that the market plays a crucial role in the elaboration of a doctrine of distributive justice but also that it illuminates the distinctively liberal commitments to the protection of extensive individual liberty and to the requirement that the state must be neutral between different conceptions of the good. The aim of this paper is to raise some doubts about the soundness of one of the fundamental onnections Dworkin draws between the market and distributive justice.

This paper intends to throw light upon some aspects of the debate on the characterization of legal principles and on their differences when compared to rules. Particularly, this analysis proposes differentiating principles from rules by considering the functions they perform in law instead of their structural differences. To achieve this, we distinguish between the functions of guidance and justification that legal principles fulfill. From that distinction, we observe that the attempt to characterize legal principles based on the way in which they guide conduct does not seem to be the most appropriate either. In contrast, this paper tries to show that all the different types of precepts known as principles perform a justifying function in legal reasoning.

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

John Rawls stands in a small pantheon of writers whose ideas have shaped the vocabularies of their age. Like a classical deity, his work has been invoked by disciple and dissenter alike as the essential totem of the modern liberal state. But his Promethean creation has grown independent from its original design, attaining significance not only for its initial merits but also for the competition it offers to the plan of its creator. So from the stage of Rawlsian liberal neutrality stalks the idea of legal perfectionism.

Legal perfectionism is the doctrine according to which officials may adopt and enforce laws according to the officials’ understanding of a good life, with the intended practical effect that people governed by such laws will lead better lives. In other words, legal perfectionism broadly enshrines the notion, sometime unpopular among Western theorists, that the government has, or should have, the power to reflect ideas of good and evil—the content of the good life or of good projects or of excellence—in framing the laws. While related both to older ideas of human perfection and perfectibility and to perennial concepts of virtue and morality, legal perfectionism has developed a distinct, modern meaning.

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.

This essay concerns the question of whether it is possible to have an account of what judges ought to do when they decide cases if one accepts Stanley Fish’s thesis that man is a socially constructed creature, who can only see the world around him in terms of the practice that he is involved in. It puts forward the view that such a position is defensible, provided that one makes different metaphysical commitments to the ones made by Fish. It is argued that Fish is best understood as a metaphysical idealist. The essay seeks to demonstrate that Martin Heidegger’s conception of the self and interpretation are similar to those of Fish, but that, when understood as involving a commitment to metaphysical realism, Heidegger’s philosophy can hold the possibility of strong legal theory open in a way that Fish’s cannot. Michael S. Moore’s natural law position is used in order to articulate what such a position might be. Moore’s example of what a judge ought to do if called upon to define ‘death’ as a concept is used to illustrate the difference between Fish and Heidegger when it comes to metaphysics and strong legal theory, despite their similarities when it comes to an account of interpretation and of the self.

Impersonality is frequently invoked as a core element of the rule of law. In this article, I discuss a troika of values and institutions–office, honour, and the oath–that provide deeply personal springs for the conduct of judges and other office-holders. In so doing, these institutions make possible the sort of impersonality valued by the rule of law. A focus on office emphasizes the importance of duty rather than power. Honour is the desire to be well thought of by others, and the internalized desire to deserve to be thought well of by others, especially one’s peers. Honour is often treated as an obsolete value that has been superseded by dignity. But it remains an essential force, providing judges and other office-holders with a source of energy and agency that motivates them to fulfil the duties of their office with virtue and excellence. The oath serves as a linchpin that connects the individual to the office and the office-holder to the commitment to serve honourably. Taken together, this troika of institutions encourages the faithful and energetic performance of one’s judicial office in a modern democratic constitutional society. Thinking about the rule of law this way encourages us to shift our focus from power to duty, and from doctrine to character and virtue. It encourages us to revive and revise honour rather than abandon it. It helps show that an impersonal “government of laws and not men” is and ultimately must be deeply personal.

The best way to cope with what is known as “the paradox of blackmail” – a threat to act permissibly – is to deny its premise, namely the permissibility of the threatened act. This view holds that upon reflection all cases of wrongful blackmail actually involve a threat to act impermissibly. Therefore, blackmail is coercive, and should be criminalized as a regular case of extortion. This conclusion may rely on a subjectivist notion of permissibility, which sees intentions as relevant to permissibility, given that the blackmailer intends to harm the victim via the threatened act. Yet the view that intentions are relevant to permissibility evaluations is strongly criticized in contemporary moral theory. Nevertheless, this paper attempts to show that under a full understanding of the functions of coercion claims and the wrong in extortion, harmful intentions can be relevant to criminalization even if they are not directly relevant to permissibility.

This article examines Steven M. Wise’s arguments in favour of rationally extending fundamental rights at common law to other animals, as well as the 2014 and 2017 decisions of the Appellate Division of the New York Supreme Court, which rejected the possibility of extending common law personhood to a chimpanzee on social contract grounds. The article argues that extending the common law rights to liberty and bodily integrity to animals whose cognitive characteristics indicate an interest in self-determination is both morally correct and legally feasible, since this interest is what said common law rights exist to protect. Moreover, the arguments from reciprocity and community membership adopted by the New York Court fail to provide a philosophically sound basis for denying nonhuman rights, nor does conceptualising rights and duties in terms of social contract necessarily preclude nonhuman emancipation.

This paper makes a conceptual prescription: it argues that judges and lawyers should adopt a positivist concept of law, on normative grounds. The positivist view, I will argue, is more consistent with reasonable disagreement and majority rule than nonpositivist views, offers a better view of law’s moral standing, and is more consistent with what Dworkin called ‘integrity’ than non-positivism. As the paper explains, this is an argument about what I call the ‘operative’ concept of law. As such, the argument avoids potential problems for conceptual prescription, and shows why even those who adopt non-positivist views about the nature of law might accept it.

According to a widely-shared view, human rights encompass a very limited range of ethical concerns: not all human interests, only urgent interests;1 not our preferences, only our needs;2 not all wrongs, only severe injustices;3 not a good life in the fullest sense, but only a minimally decent or autonomous life.4 In short, human rights are not about realizing the best, they are about shielding us from the worst. I will call this general theoretical stance Minimalism.

Litigation lawyers learn early in their practices that although the adversary system functions tolerably well in many civil cases, its defects are nevertheless extensive and profound. Tactics calculated to delay, distort, obfuscate, obstruct and wear down opponents through frustration and cost are common. Questionable conduct is justified by appeals to the ethics of the adversary system. The consequences are often born by clients—through increased cost, delay and conflict—and even by lawyers themselves—through stress, fatigue and dissatisfaction with the quality of life that the practice of litigation in our adversary system brings with it.

Courts do many good things. Judges carefully consider individual claims and arguments,1 and contrast them against the law in light of evidence. Their decisions are argued for, are public, and can be contested in form and content in different hierarchical stages. Additionally, and among other things, these practices are said to contribute to the will-formation of the public sphere and improve the quality of the legislative process.2