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.

Should a person in a life-threatening situation have a defence when he saves his life by causing death to a person who was not involved in creating the life-threatening situation? Viz., does the perpetrator have an excused necessity defence that negates imposing the punishment? This issue - excused necessity defence - has fascinated the legal world since antiquity and has been described as one of the most complicated issues in criminal law. The well-known case is the “plank of Carneades” or “two men and the plank”. Two men, A and B, are shipwrecked on the high seas; as their strength ebbs and they are about to drown, they see a wooden plank that is just large enough to support only one of them. A reaches the plank first and grabs it, but B, faced with the prospect of certain death, pushes A off the plank, resulting in the death of A by drowning. B then grabs the plank and manages to save his own life. Should B have a defence if he is prosecuted for pushing A off the plank in these circumstances?

I argue that our traditional conception of the duties imposed by human rights is unable to acknowledge the nature of many contemporary human rights violations. The traditional conception is based on a broadly deontological view according to which human rights impose primarily negative and perfect duties, and these duties are held to be specific prohibitions on certain kinds of actions (duties not to kill, assault and so on). I argue that given this conception of the nature of the duties imposed by human rights, not only claims to aid, but in addition, claims against many of the most serious and prevalent contemporary active harms will not count as genuine human rights claims. These harms increasingly result from extremely complex causal chains involving the behaviour of a huge number of agents, few or none of whom can be singled out as responsible for a serious harm to any specific victim. Institutional structures can have just as central a role to play in specifying and allocating responsibility for fulfilling many of the negative duties imposed by human rights as the positive duties. These structures can therefore be equally important in the realisation of both kinds of rights. Before the necessary institutional reforms have taken place, both kinds of rights are equally genuine, and ground the imperative of justice to reform existing social institutions.

In this paper I distinguish between three conceptions of human rights and thus three human rights agendas. Each is compatible with the others, but distinguishing each from the others has important theoretical and practical advantages. The first conception concerns those human rights tied to natural duties binding all persons to one another independent of and prior to any institutional context and the violation of which would “shock the conscience” of any morally competent person. The second concerns the institutional conditions necessary and sufficient for particularist legal and political obligations to take on prima facie moral force so that the members of different polities face one another in an asymmetric moral relationship, with each side having a rightful claim to political self-determination. The third concerns those human rights arising exclusively as a matter of positive international law out of the voluntary undertakings of legitimate polities within the international order. Each of these different conceptions is tied to a different human rights agenda. The second is tied to the struggle to realize recognitional norms of legitimacy within the international order. The third is tied to the ongoing effort to incorporate into positive international law through voluntary initiative an ever expanding moral consensus between legitimate polities. The first is tied to the emerging practice of humanitarian intervention and system of international criminal liability. Thus, while all human rights share certain features - they’re universal, and so on - human rights differ in important ways. Attending to these differences would likely improve both the theory and practice of human rights.

This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that methodology is not a resource capable of offering an independent assessment of the merits of competing theories.

Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.

A number of ancillary matters are discussed in the essay including: semantic (and metasemantic) approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law's Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz's split theory of legal reasoning and law.

The paper has the following structure. In Section I, I introduce some important methodological preliminaries by asking: How should one reason about global environmental justice in general and global climate change in particular? Section II introduces the key normative argument; it argues that global climate change damages some fundamental human interests and results in a state of affairs in which the rights of many are unprotected: as such it is unjust. Section III addresses the complexities that arise from the fact that some of the ill effects of global climate change will fall on the members of future generations. Section IV shows that some prevailing approaches are unable to deal satisfactorily with the challenges posed by global climate change. If the argument of this paper is correct, it follows that those who contribute to global climate change through high emissions are guilty of human rights violations and they should be condemned as such.

What is the difference between “judge-made law” and the laws created by an elected assembly? The purpose of this paper is to investigate this question by addressing the differences and similarities between common law judgment and political judgment. I contend that there is something distinctive about common law judgment. This distinctive nature is the result of the different ground of validity of legal and political decisions. Legal judgment has a distinct ground of validity. This validity derives from two aspects of common law judgment: the impartiality of the decision-maker and the critical function built into common law reasoning itself. I articulate this view by drawing on Hannah Arendt’s lectures on Immanuel Kant’s Critique of Judgment, as well as on the work of theorists such as H.L.A. Hart, Ronald Dworkin and Joseph Raz. I also discuss Canadian and U.K. cases in which judges address their role and explain their views on precedent, the need for judgments to respond to the arguments of the parties, and the importance of law adapting to the constantly changing circumstances of the modern world.

This Article explores the different intellectual and socio-political contexts that attended the emergence of the French, German, and English legal systems with a view to understanding French, German, and English private law from the perspective of the participants in these systems. The French legal system is a child of the Cartesian dualism that marked the Age of Reason, according to which the material world can and ought to be fully dominated by the human intellect. This conception of the relation of facts to ideas arguably is reflected in the structure and design of the French civil code, in such institutional features as the French conception of the role of the judge, as well as in the tendency of French jurists to view contractual consent subjectively. In contrast, the German legal system congealed at a time when Cartesian dualism was losing ground to German idealism. The dialectic conception of facts and ideas favoured by the German idealists arguably made its way into several institutional features of the German legal system, including the content of the BGB, the codification process, the conception of the role of the judge, the style of judicial decisions, and the greater inter-penetration of public and private law. It may also partly explain why German jurists have tended to view contractual consent as simultaneously objective and subjective. Finally, whereas both the French and the German legal systems emerged from highly intellectual contexts, the English legal system grew from a maize of pragmatic political and administrative considerations that left little room for explicit ideas. The emphasis on hard facts still is palpable in many aspects of contemporary English law, in particular, the doctrine of stare decisis, the conception of the judicial function, and the mode of reasoning by analogy. It arguably also is reflected in the tendency of English judges to privilege the objective conception of contractual consent.

My primary goals in this article are to show: first, that we can identify and justify which basic freedoms are important ones to protect in the global context; second, that we can monitor whether we are making progress with respect to whether more or fewer people are enjoying the important freedoms; third, that we can identify some key institutions that play a central role in fortifying those freedoms; fourth, that we can help build or fortify local capacity with respect to protecting basic freedoms; fifth, that external support and building international institutions can play an important role in securing local capacity to protect basic liberties. The emphasis is on trying to construct local capacity to protect basic freedoms. However external support has a key role to play. I argue that protecting press freedom and building institutions of international justice play crucial roles in securing local capacity to protect basic liberties. We have obligations to support those institutions that would facilitate progress with respect to protection of basic liberties. So, for instance, we have a range of responsibilities to support press freedom in all countries, along with international efforts to bring to justice violators of basic liberties.

In 2000, the BC government sued 14 "tobacco manufacturers" pursuant to the Tobacco Damages and Health Care Costs Recovery Act. The Tobacco Companies challenged the constitutionality of the legislation, alleging amongst other things that the Tobacco Act violated the rule of law. In this paper, I begin by showing that the Supreme Court of Canada adopts a formal approach to the rule of law devoid of much substantive content. This, I argue, is in line with the views of Joseph Raz. I then argue that the Tobacco Companies' reliance on Raz's views for support in its claim that the Tobacco Act violates the rule of law is misguided. Far from invalidating the Tobacco Act, Raz's view can be understood to license it. In the last section of the paper, I show that a formal approach to the rule of law such as Raz's does not confine Charter interpretation.

The principle of global equality of opportunity is an important part of the commitment to global egalitarianism. In this paper I discuss how a principle of global equality of opportunity follows from a commitment to equal respect for the autonomy of all persons, and defend the principle against some of the criticism that it has received. The particular criticisms that I address contend that a moral view based upon dignity and respect cannot take properties of persons-such as their citizenship-as morally arbitrary, that any justification of what counts as equal opportunity sets must be based upon national cultural understandings, that a positive account of equality of opportunity cannot adequately handle the fact of value pluralism across the globe, and that the principle of equality of opportunity is incompatible with national self-determination. In the course of defending the principle of equality of opportunity from these criticisms, I make revisions to my previously published defense of the principle.

This book provides an important addition to the debate about the nature and normative basis for the United Kingdom's constitutional ordering. It combines a strong argument against moves to adopt forms of "legal constitutionalism" with a defence of the country's existing "political constitution", one sourced in the ideals of republican government. This critical review explores the structure of Tomkins' claims, and raises three questions about how they might apply to certain aspects of the United Kingdom's constitutional order: the place of a republican United Kingdom in an increasingly integrated Europe; the place of the courts in a republican constitutional order; and the role of political parties in a republican parliament.

Two classes of arguments are often deployed by the anti-global egalitarians against attempts to universalize the demands of distributive equality. One are arguments attempting to show that global egalitarians have misconstrued the reasons for why equality matters domestically, and hence have wrongly extended these reasons to the global arena. These arguments hold that the boundary of distributive justice is effectively coextensive with the boundaries of state. The other are arguments that attempt to show that membership in political societies generates special duties among members that may outweigh the demands of global egalitarianism. These arguments appeal to the ethical significance of state boundaries and membership. In my defense of global egalitarianism, I reject both the attempts to limit the boundary of justice and the attempts to give state boundaries special moral significance and priority. In particular, I will argue that the boundary of justice cannot coincide with the boundaries of states when the justice of the boundaries is at issue.

Although we are provided with a clever game of metaphor for the description of adjudication and a rather diverse survey of other jurisprudential theories, Hutchinson fails to provide a distinct, coherent, theory of adjudication. He either overly radicalizes foundationalism or under radicalizes antifoundationalism.

While Rawls himself put contractualism to work at the national level, his more cosmopolitan followers have argued that the full requirements of international justice can be reached only by way of a global contractualist argument. Both positions neglect a resource from within the contractualist tradition, The need for iteration of the nation-level contract gives rise to strong and reasonably definite moral requirements. A good-faith adoption of the contractual argument entails, first, a duty to assist those whose potential recourse to just arrangements is blocked by tyranny or political collapse. Second, understood as a net risk-reducing project, a nation-level contract entails a duty not to impede the iterated risk-reduction projects of other national soceties. Envisaging the duty in this contractualist way avoids problems that beset both "natural duty" and "interactionist" approaches to international justice. The non-impedance requirement bears especially on international economic arrangements. The institutional representation of those affected by such arrangements would connect this abstract requirement with practical conclusions.

The incommensurability of values thesis is widely regarded as an effective and highly detrimental line of criticism against utilitarianism. The article begins by providing some general background about the development of the incommensurability thesis, as used both in mathematics, in the philosophy of science, and, most importantly, in moral and political philosophy. It then moves on to clarify the alleged importance of the incommensurability of values argument as an objection to utilitarianism and to distinguish two different meanings of that argument (labelled incomparability1 and incomparability2). The main part of the article provides an analysis of these two alternative meanings. Incomparability1 (the claim that a particular scale is either not applicable, or irrelevant, or arbitrary), though perfectly valid, is shown to be misguided as a criticism of utilitarianism. Incomparability2 (the claim that some options cannot be translated into or associated with particular locations on the relevant scale in a way that would generate positive value relations) is shown not to pose any real difficulty to utilitarianism by demonstrating that incomparability of that kind is, as a matter of fact, indistinguishable from the notion of rough equality and that, accordingly, indifference towards the choice between the incomparable2 competing options is justified.

How are we to distinguish between law and violence? On what grounds is the former legitimized while the latter is condemned? This modern question sheds light on the essential concepts of law and order and their social value. My task in this paper is to trace the roots of this question in the Jewish jurisprudential tradition by focusing on a unique norm, established sometime during the 5th to the 6th century, in which violence become a legitimized norm when a case could not be determined by means of official legal procedure. This survey shows that while ancient sources legitimized this norm of extra-legal violence, medieval thinkers redefined it and neutralized it, reduced it to an economic procedure or even explicated interesting stances regarding the honor and stability of legal institutions.