Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.

These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.

Bertolt Brecht’s The Caucasian Chalk Circle introduces the character of Azdak—a corrupt, disrespectful menial clerk who on the heels of a coup d’état finds himself appointed judge, complete with judicial robe and a wicker flask for a hat. The circumstances of his appointment foretell the irony of his tenure. A military coup spoils a sunny Easter Sunday in the Caucasian town of Grusinia. The governor is beheaded; the municipal judge hanged. Yet the Grand Duke, oppressive ruler of Grusinia and surrounding territories, escapes, due in no small part to unknowing protection afforded by Azdak. When Azdak learns the next day that the fugitive he harbored over night was the Grand Duke, he heads straight for the courthouse, raging at himself through the streets, to turn himself in and submit to punishment. No judge presides over the courtroom, however, only a few bored soldiers who find Azdak amusing though somewhat crazed. In their amusement they decide to make him the new judge, declaring that the old judge (still hanging in the corner) “was always a rascal. Now the rascal shall be the Judge” (72).

On becoming judge, Azdak acts anything but honorably and respectfully toward the law. He sits on the statute book to give himself a more regal aire. He takes bribes; he derides and ridicules the parties appearing before him; he requires a female litigant to perform sexual acts; he does a preliminary assessment of the worth of each lawyer’s arguments by asking the amount of his fee. In short, Azdak judges arbitrarily, with bias and partiality. By play’s end, immediately following his final decrees, he flees out of concern for his life, never to be seen again.

A legal theory, any legal theory, necessarily adopts one of two perspectives or vantages or points-of-view. The author of a legal theory may take up the internal, engaged vantage or the external, detached vantage. If he seeks to explore, say, how judges should decide hard cases then his theory, explicitly or implicitly, will adopt an internal participant’s perspective. Most likely, he will be putting himself in the shoes of the judge (or alternatively, asserting that we are all judges of a sort) in order to convince others of how best this role can be performed. Less likely, will be he who is a revolutionary and who thinks that the judge should decide cases in such a way as to contribute to the subversion of the legal system. In either event, both will be prescribing. Prescription, answering the ‘ought’ and the ‘should’, presupposes an involvement in the question and a concern with some evaluative dispute (though the revolutionary clearly does not accept the norms of his legal system as binding).

Legal positivism, like breakfast cereal, seems to come in a wide variety of brands, with modest variations in the ingredients. Each brand offers slightly different promises as to the benefits of choosing it over its competitors. The question for the tired morning consumer is whether anything important is at stake in the choice,’ or whether he or she should just choose whatever is handy or on sale that month. In this article, I will consider some of the debates within legal positivism, and some of the disputes between legal positivism and its critics, as a means of exploring some more general issues regarding the process of theorizing about law. In discussing the internal debates within legal positivism, I will focus on the debate between inclusive and exclusive forms of positivism, though there are numerous other, if lesser known, intra-group squabbles to be found, which are also of interest and warrant attention.

When we think of recent armed conflicts, such as those in the Persian Gulf, Bosnia or Rwanda, we realize that one profound difficulty shared by them was how they ended. The process of war termination—of resolving successfully serious outbreaks of armed conflict between national groups—is fraught with fragility and complexity, featuring often competing claims of security and justice.

Only recently have we begun to understand how crucial the issue of war termination is, with regard not only to bringing particular conflicts to an end but also to mitigating further devastations in the future. Whereas past attention focused obsessively on the beginning of war, and/or on proper conduct during wartime, it is becoming clear that the ending of war deserves equal time with regard to critical analysis, historical application and the creative construction of proposals for amelioration. There are only a handful of works on this important and topical, yet neglected, issue.

This article proposes to contribute to the sparse literature by constructing a theory of war termination. The article will offer reasonable responses to questions of what constitutes justice, security and legality in the aftermath of war. The inquiry will proceed first by examining the status quo with regard to war termination, undertaking an examination of its few strengths and many weaknesses. Then, the account will fashion a more satisfactory set of laws to regulate state conduct during the immediate aftermath of a particular war. These universal and abstract norms, once constructed, will be applied to a recent and concrete case, namely, that of the lengthy termination process of the Persian Gulf War of 1991. The theory will next shift its attention away from short-term principles, regulating the endings of particular wars, towards those longer-term rules and institutional reforms required to transform the international system itself into one in which the incidence and destructiveness of war will be diminished. Before concluding, attention will be paid to defeating doubts about the laws forwarded as a plausible theory about securing justice and peace when wars end.

All positivists hold that law has social foundations. According to H.L.A. Hart, for example, the legal system rests on customary social norms followed by judges and other officials: norms that recognize other norms as belonging to the system and norms that provide for the application and alteration of the system’s primary norms. Even if this view requires amendment, it is likely any plausible account of the nature of law needs some account of social norms. Finding a fully satisfactory one, however, has proved surprisingly difficult.

Alternative dispute resolution has the potential to be many things to many people, although it cannot, of course, be everything to everybody. A careful reflection on the appropriate role and scope of alternative dispute resolution will evidence that it has much to offer the legal profession and the legal system. For one thing, it can rejuvenate the practice of law for its practitioners, being both fun and fascinating. It can also help to improve the public perceptions of lawyers, which may be sinking to all time lows. One way of approaching the topic is to suggest that lawyers need alternative dispute resolution—they need it both to enhance their public image and in order to drum up new business opportunities. Another way of approaching the topic is to focus on the contribution of treatments of alternative dispute resolution to the “growth of the modern social scientific study of law.” Studies along these lines may emphasize the development of the Alternative Dispute Resolution movement in terms of attempts to “recast the market for dispute resolution services by different interests attempting to advance their own professional projects.”.

Yet a different way of examining alternative dispute resolution is to explore the self perceptions of its practitioners and theorists—what they think it has to offer to its consumers and society at large. Alternative dispute resolution certainly can provide a fertile source of ‘satisfaction’ to the parties to disputes. The “mediation alternative”, for instance, is said to provide a more complex form of ‘satisfaction’, one in which the needs and interests of the parties determine the final outcome. It is not only that there are some disputants—who currently are not aware of, or encouraged to pursue, opportunities to resolve their disputes by negotiation or mediation—who would benefit from access to ADR. It is also that even those who might fail to reach agreement if they tried negotiation or mediation would still benefit from the attempt and may be less likely to be disaffected or disappointed from the adjudicative outcome to their dispute having tried the “other way” beforehand. Perhaps even those who might decline to avail themselves of the option to try ADR even if offered would benefit just from having the choice. All disputants, therefore, benefit to some degree from the processes of ADR being readily available and carried out reliably and responsibly.

No one familiar with Ronald Dworkin’s work can fail to be aware of his view that jurisprudence and law are both fundamentally enterprises of moral justification. Throughout his writings, Dworkin has resolutely set himself against the legal-positivist insistence on the separability of law and morality. The present essay critically explores the arguments and assumptions that underlie his stance.

Judging the Judges, Judging Ourselves is an excellent book for at least three reasons. First, it is a critically engaged, firsthand account of a unique legal and political event: the inquiry by South Africa’s Truth and Reconciliation Commission into the operation of that country’s legal system under Apartheid. Second, it develops an extended argument for a challengingly normative conception of the rule of law, complete with compelling practical illustrations of what can happen if officials charged with maintaining the integrity of a legal system adopt a less substantive standard. And third, the book is well written and a pleasure to read.

South Africa’s Truth and Reconciliation Commission (TRC) represents an unusual attempt to confront, acknowledge and overcome the devastating injustice, violence and hatred generated during the Apartheid era. What makes it unusual is the conscious decision to set aside demands for retributive justice. Instead, by exposing abuses and violations of human rights, and then compensating victims and pardoning confessed perpetrators, the TRC aimed to establish a framework in which former antagonists could set aside adversarial postures and work together to create a new, integrated and just South Africa. Whether this laudable experiment will succeed remains to be seen.

What was clear early on was that the TRC could not hope to complete its task if it did not investigate the performance of the legal system and the legal profession under the Apartheid regime. Apartheid was a social and political construct that systematically denied basic human rights to the vast majority of South Africa’s population on the basis of race. A substantial amount of state violence was required to secure this result. But it is a singular, remarkable fact that the racial divide was maintained by a legal system which in many respects resembled its counterparts in liberal democratic societies where the courts actively and successfully protect civil liberties. What is particularly striking is that gross human rights violations were permitted, even approved, by legal institutions that appeared to respect such fundamental legitimacy-conferring principles as the rule of law and judicial independence. Equally troubling is the observation that the system was staffed by functionaries many of whom had unimpeachable credentials as advocates of human rights. So how could this justice system have produced such iniquitous results?

Those employing constructive interpretive methods and coherence theorists of law generally agree that the coherent reconstructed set of legal principles and norms must meet a high threshold of fit with legal doctrine and institutional practice. Critics of these methods and theories argue that the high threshold of fit they require lead law to be unacceptably conservative. But it is unclear why legal coherentist methods and constructive interpretation must fit legal doctrine to a high degree. The intuition is misplaced from coherence theories of truth and justified belief, where a high threshold of fit with some set of beliefs is necessary. An independent argument is needed for that claim in law. I am unaware of any persuasive independent arguments for a requirement of a high threshold of fit in coherence theories of law. If coherentist methods in law need not fit the settled law to as high a degree as either their proponents or critics think, then they are in theory, and potentially in practice, morally better than their critics urge. However, they are also in practice potentially morally worse than their advocates or critics think. As a first crude approximation, we might claim that judges with superior moral acumen who deploy coherentist methods will do justice more often than if they were more tightly constrained to fit the settled law. Regrettably, however, if the constraint of fit is lower than the conventional wisdom would have it, coherentist judges with poor moral judgment will more often produce unjust decisions. I will qualify this crude approximation later.

Old wars about pornography and censorship have new armies in radical feminists. So Ronald Dworkin once remarked, defending the new relevance of his now classic liberal defense of free speech in his essay, ‘Do We Have a Right to Pornography?’ Dworkin was right about the new battles, but wrong about his argument, which on the new battle ground not only failed to justify the permissive conclusion he desired, but helped to justify the prohibitive conclusion he despised. Pornography’s traditional foes said pornography is immoral. Feminists said pornography is ‘the graphic, sexually explicit subordination of women through pictures or words’. Feminists said that pornography harms women, subordinates women, and silences women. In this context, Dworkin’s old anti-moralist defense of pornography missed its mark.

There are many versions of legal positivism; perhaps as many as there are legal positivists around. All the versions of legal positivism, however, subscribe to the so-called Separation Thesis. This thesis basically maintains that detenriining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Legal positivists differ, however, and quite substantially, over the appropriate interpretation of this thesis. The so-called ‘strong’, or ‘exclusive’ version of legal positivism maintains that moral considerations never determine the legal validity of norms. ‘Soft’ positivists, on the other hand, do maintain that there is a close relation between legal validity and morality, but they hold that this relation is, at best, a contingent matter; it does not derive from the nature of law or legal reasoning as such. Soft-positivists claim that moral considerations determine legal validity only in certain cases, namely, in those cases which follow from the rules of recognition that happen to prevail in a given legal system.

These are the best of times for the Rule of Law. In all parts of the world, states, governments, and individuals, have found in the rule of law, at various times, a rallying cry, a principle of social ordering that promises the dawn of a just society that its supporters in Euro-American democracies claim to be its crowning glory, or a set of practices that is a sine qua non of a good society. The pursuit of the ideal is nothing new: after all, even those states where it was observed more often in its breach always paid lip service to it. And the defunct socialist countries of Eastern Europe, while they existed, could not escape its lure even as they sought to give it a different nomenclature—socialist legality. The movement towards the rule of law has accelerated after the collapse of Soviet communism and its foster progeny in different parts of the world. Given the present momentum towards the rule of law and the widespread enthusiasm with which it is being embraced and pursued at the global level, some would consider it somewhat churlish for anyone to inject any note of doubt or caution. This is more so when such a note emanates from Marxist quarters. But that is precisely what I wish to do in this essay. Although I do not intend to rain on the rule of law’s entire parade, I surely propose to rain on a segment of it: the Marxist float. I propose to look at the issue within the context of the Marxist politico-philosophical tradition.

The essence of legal positivism, wrote H.L.A. Hart, is a very simple contention: “[I]t is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality” (185-86).

It is tempting to treat this claim—which some have called “the separability thesis”—as a definitional truth about law, i.e., as a constraint on any adequate definition of the term “law.” On this understanding, the positivist maintains that one should not define “law" in a way that excludes some norms from the extension of this term simply because they do not reproduce or satisfy a particular moral demand. Similarly, on this understanding, one should not exclude a system of norms, S, from the extension of the term “legal system” on account of S’s failure to satisfy the demands of justice. Indeed, positivism entails not only that one should not exclude S on this ground, but also that the injustice of S is not even a reason for regarding S as a problematic or marginal or less-than-central case of “law.” The positivist holds that it is a mistake to build moral conditions into the definition of “law” in any way whatsoever.