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.

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.

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.

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.

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.

Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We show that, even from a purely consequentialist perspective, disgorgement remedies may be normatively warranted, especially when involving sellers’ breach. Recent experimental evidence revealed that the preferences and reactions of ordinary people are in line with our evaluation of the effects of opportunistic breach.

The offer-and-acceptance analysis has long been questioned as not (easily) applicable to certain methods of contracting. This paper looks at this analysis through the prism of normative powers and identifies much deeper problems with the analytic explanation of how such unilateral normative powers as offer and acceptance can generate such a normative result as concluding a contract. It argues that even if the powers to offer and accept are exercised, as they are in certain methods of contracting, these are not the normative powers that create contractual obligations; such obligations are always created by the jointly exercised power to contract. The paper substantiates an account of the power to contract as a sui generis normative power and explains the role the unilateral powers to offer and to accept play when they are exercised, while also explaining why there is no need to ‘invent’ offering and accepting where there are none.

Legal norms serve as practical standards for individuals and officials. While this ‘normative aspect’ of law is widely acknowledged, its significance for theories of law remains contested. In this paper, I examine three views on the matter. First, that we should explain legal norms as reason-giving. Second, that we should explain legal discourse as being about reasons for action. Third, that we should explain law as capable of being reason-giving. I survey some challenges associated with each of these views. What they have in common is an implicit assumption about the form that normative explanation must take: that it must be a linear, non-reductive explanation. There is an alternative model for normative explanation available, however. That model explains normative notions in terms of the practices and attitudes involved in recognizing, offering, and demanding them. I highlight the potentials, and limitations, of this practice-centered alternative.

In the immediate post-war period, a set of thinkers, most notably Jacques Maritain, developed influential natural law theories of constitutional democracy. The central tenet of the natural law approach to the post-war settlement was that, without the type of foundational understanding of the constitutional system it was proposing, the new democratic political institutions would relapse into totalitarianism. In response to this natural law challenge, Hans Kelsen sought to explicate and defend a self-consciously secular and relativistic understanding of the basis of constitutional democracy. This article will examine the debate between the Kelsenian and the natural law view of constitutional democracy. The debate raises questions of foundational importance, and a number of issues are of particular concern in the present global context. These issues concern the role of moral pluralism and its relevance to the structure of constitutional democracy, and the relationship between universal values and the common good of particular communities.

In this article, I argue that Dworkin’s one-system view of law and morality is not as easy to refute or dismiss as some would suggest. In a recent article, Dindjer criticizes a new kind of opposition to legal positivism characterized by both its opposition to a two-system view of law and morality and its promotion of a one-system alternative picture. By re-examining Dworkin’s criticisms of the two-system view and by providing additional reasoning of my own, I show that Dworkin’s one-system interpretative approach is not just sensible but also promising in refocusing contemporary debates in general jurisprudence on a moral and political reading of the structural features of law.

Should property owners have a unique right to express their opinion just because they own property? While current law recognizes owners’ rights to express their voices in certain instances, it does not provide comprehensive and coherent answers to this question. This article provides an analytical framework for recognizing the owners’ right to voice as an independent property entitlement within the owners’ property bundle of rights and delineates its boundaries. Yet even when the owners’ voice is property-dependent, there is a difference between voice that facilitates the realization of another property entitlement (such as the right to exclude, use, or trade) and voice that is constitutive to ownership in and of itself. Only the latter instances justify recognition of the owners’ right to a voice as an independent property entitlement. By examining different branches of both tangible and intellectual property law, such as inheritance law, eminent domain, homeowners’ association law, zoning law, and copyright law, this article demonstrates the usefulness of the proposed analytical framework in explaining certain parts of the current law and suggests modifications of other parts.

Rights seem to occupy a prominent place within the moral and political lexicon of modernity. But is this truly an age in which the idea of individual rights has flourished? Or might the frequency with which we speak of rights reflect a failure to appreciate the stringent demands that genuine rights would inevitably place upon us? Does our willingness to frame so many moral issues in terms of rights simply illustrate our failure to take the idea of rights seriously? Does our monocular focus upon rights lead us to ignore the broader context of law, virtue, and civility that is necessary if rights are to be a reality? These are the questions forming the background to my discussion in this essay.

When evaluating religious accommodation claims, courts refrain from examining the relationship between the specific claim and the common religious practice of the relevant religion. This paper rethinks this doctrine. I argue that it stems from understanding religious accommodation as a protection of conscience. This idea itself suffers from conceptual and practical challenges, which can be mitigated if we understand religion as a communal function of conscientious actions. The communal aspect bears practical and moral significance, and I explore three dimensions of it: the epistemic implications; its effect on constituting moral obligations toward others; and its importance as part of one’s culture. A communal-conscientious approach to religion can mitigate many challenges that confront conscience accommodation. This suggests that the relationship between the individual’s claim and their communal practice is crucial and should be evaluated by courts. I conclude by outlining the main considerations for creating a new, nuanced doctrine.

Several legal scholars have recently argued that U.S. tort law’s physical-emotional distinction commits tort to the objectionable position of mind-body dualism, but they have not considered the distinction’s role as an aid to judicial cognition and decision-making. Drawing primarily on the law of negligent infliction of emotional distress, this essay argues that tort’s physical-emotional distinction is not a relic of mind-body dualism but a heuristic that judges have used to structure and simplify the difficult but unavoidable task of drawing lines between legally cognizable and non-cognizable harm. The analysis has at least three normative implications: (1) users of tort’s physical-emotional distinction should clarify that they neither endorse dualism nor depreciate emotional harm; (2) because judicial expertise may not extend to the task of drawing lines between legally cognizable and non-cognizable harm, judicial performance in this area may be more adequate than critics suggest; and (3) although it may not be possible to determine the optimal way of drawing lines between legally cognizable and non-cognizable emotional harm, moral-philosophical tools such as Rawlsian and Scanlonian contractualism may be able to identify partial or pro tanto considerations for choosing among different ways of doing so.