The power of the legislature to override court rulings on rights—and to legislate ‘notwithstanding’ rights—is one of the most notable and controversial features of the Canadian Charter of Rights and Freedoms 1982 and the UK Human Rights Act 1998. By giving courts the power to protect rights, whilst giving the legislature the last word, the legislative override seems to solve the notorious counter-majoritarian difficulty. Yet in both jurisdictions, there has been a tendency to underuse the override. In this article, I argue that the underuse of the override is rooted in a set of unwritten constitutional norms requiring the branches of government to treat each other with comity and mutual respect—norms which preclude the legislature from regularly or lightly overriding court decisions. Foregrounding the principles of comity, collaboration, and conflict-avoidance, I argue that legislatures should apply—and in Canada and the UK generally do apply—a general presumption in favour of complying with judicial decisions, unless that presumption is rebutted by exceptional circumstances. Based on a close, comparative analysis of Canada and the UK, I then explore contemporary concerns about an increased use of the override in the Canadian context—and the potential for the Supreme Court of Canada to enter the fray by adjudicating the exercise of the override in challenging times.

To the extent they consider the matter, tort theorists sometimes assume that the subjects of authority in tort law are the citizens of the state whose tort law applies. This assumption underlies democratic and social contractarian accounts of how to justify the authority of tort law. But as the doctrine of private international law—particularly choice of law—reveals, the subject of tort law is not the citizen, but the generic person; and authority in tort law is not grounded in the state-citizen relationship. Instead, choice of law rules reveal a more complex picture of how tort structures authority. Here, I offer a sketch of an approach that can justify tort law’s authority over persons, not citizens. And I discuss how this analysis may require us to rethink not just the subjects of tort law but also the subject of tort law: the nature of its primary rights and duties.

Multi-judge courts may seem like paradigmatic examples of group agents. For instance, they issue decisions in the name of a group. Like other groups, courts arrive at these decisions by means of a vote that is not always unanimous. Unlike other groups, courts do not need a majority vote to issue a decision. Plurality judgements can occur, where the court’s decision is formed by multiple sets of reasons, none of which represents a majority of the judges. These show that a court’s decisions on issues and outcomes are distinct. Minority reasons may influence the state of the law on a particular issue if they agree with another set of reasons. This allows the court to preserve decision-making both on outcome and on premises. The result is that Kornhauser and Sager’s doctrinal paradox, sometimes called the discursive dilemma, is not the same for courts as it is for other group agents.

Functionalism has been increasingly challenged by legal comparatists questioning its nature and suitability. These epistemologically-focused critiques have effectively dichotomised modern comparative law methods, leaving two undertheorised possibilities, namely, the functionalist model—understood in conventional positivist (and substance-ontic) lexes—and emergent postmodern approaches as typified by Pierre Legrand’s system of ‘negative comparative law’ protocols. This article explores an often-neglected alternative grounded in process-relational philosophy. As shown by re-examining Ernst Rabel’s original model, its central claim is that a synthesis of early functionalist theory and process-relational principles exposes postmodern critiques as imprecise and overstated—arguably misconceiving key notions of ‘difference’ and ‘similarity’, and consequently failing to appreciate how greater awareness of the correct order and relationships between levels of abstraction can enhance the nature and possibilities of comparative legal knowledge.

This paper argues that (1) political community requires an agreed method of deciding disputes about the norms that will govern; (2) a decision method that includes a legislative process, strong judicial review, and a legislative override is a method with components that work at cross purposes; and (3) that such a method cannot be agreed upon responsibly. Points (1) and (2) describe Canada’s method of decision-making in which the legislative override is called the notwithstanding clause. An argument at cross purposes is incoherent and cannot responsibly be accepted, nor can someone responsibly obey a command that involves contradictory directives. By analogy of reasoning, steps that work at cross purposes in a decision-making system can weaken or erode agreement to it. In other words, the political legitimacy of that method is weakened and contributes to its illegitimacy. Optimally for democratic decision-making, eliminating strong judicial review removes this weakness.

In Relational Justice, Hanoch Dagan and Avihay Dorfman defend a longstanding intuition of bilateral normativity. They argue that private law, for the most part, should structure legal relationships so that parties show reciprocal respect for each other’s self-determination and substantive equality. In this critical notice, I argue against the plausibility of their account. My main claim is that a commitment to individual self-determination and substantive equality should be societal and not bilateral. Rather than reciprocal respect for each other’s self-determination and equality within bilateral relationships, those who care about these values should require that private law help secure them on a societal scale.

This essay on Ernest Weinrib’s Reciprocal Freedom argues that his conceptions of correlativity and systematicity are at odds. Correlativity as he conceives it is inexplicably all-encompassing; it does not track the complexity of interpersonal fairness in either morality or law. Correlativity can be understood as a formal constraint or as a requirement of mutual justification. We do not have reason to treat it as the animating principle that shapes private law. Weinrib’s own concept of systematicity helps us to see why a system of private law that is oriented primarily to vindicating correlativity will always come up short. Systematicity requires that private law work in harmony with the rest of the legal system to promote the principles of justice to which our political community is committed. Systematicity is more demanding than Weinrib allows. The ex post and ad hoc process by which private right is acclimated to public right, in Weinrib’s account, will not suffice to realize systematicity.

In the third chapter of his book, Reciprocal Freedom, Ernest Weinrib lucidly lays out a Kantian conception of ownership, and deftly lays to rest a series of questions to which that conception might be thought to give rise. Here I explore two issues lying at the root of the Kantian account of ownership as elaborated by Weinrib: The first is how it is that acquired rights to external things are possible in the first place; the second is why, once the possibility of acquired rights is established, the form that they take should be that of a traditional right of ownership, rather than, for instance, a more limited right to use. Ultimately, Weinrib’s discussion leaves me more favorably disposed toward the Kantian view of the possibility of acquired rights, but it seems to leave some important questions about the form of those rights unanswered.

This paper discusses ways in which the Kantian account of private law might be more capacious than some of its critics believe it to be, and identifies more precisely the reasons that Kant’s system excludes from bearing on private rights. The development of Weinrib’s conception of private law in Reciprocal Freedom clarifies that certain policy reasons, along with some reasons that bear asymmetrically on the right-bearer and duty-holder, can still play a role in a Kantian account of private law. This follows from the sequential nature of the Kantian argument and, in particular, from the three ways in which the normativity of the first stage bears on the normativity within the civil condition. With that in place, it is possible to identify more precisely the types of reasons that cannot be brought into the Kantian fold and, consequently, to gain clarity on the argumentative burdens that Kantians need to discharge.

In his rich discussion of the rule of law in Reciprocal Freedom, Ernest Weinrib observes that the prospectivity central to the rule of law seems incompatible with the apparent retroactivity of adjudication, for “parties to litigation are held to a norm of which they had no specific notice when the impugned conduct occurred.” Weinrib offers a deflationary response. Insofar as the legal materials from which any judicial opinion is crafted exist antecedently, parties are in fact on notice prior to the adjudication of their dispute. All a judicial decision does, on Weinrib’s view, is make “definitive what ought to and could have been done earlier on the basis of the law as it existed earlier.” This, I argue, does not take seriously the choices that judges face in resolving cases, for while they are constrained by existing legal materials, those materials seldom demand only one resolution, and so the problem of retroactivity remains.

In Reciprocal Freedom, Weinrib offers a neat and powerful explanation of the relationship between private law, corrective justice, public law, and distributive justice. In the Kantian view, private law and corrective justice are conceptually prior to public law and distributive justice. The primary function of public law is to publicly determine and enforce private rights. Institutions of distributive justice are required to legitimize a system of private rights that creates the possibility of subordination. In this comment, I argue that Reciprocal Freedom is a justification for what I will call ‘orthodox private law’ that, because it neglects the place of distributive justice within private law, fails to secure genuine independence for all persons.

The recognition of the particular in law is crucial, and any good lawyer or judge should be able to correctly establish the potential instantiation of the abstract into the particular. This is the arduous task of the so-called ‘determination’. In his influential new book, Reciprocal Freedom, Ernest Weinrib elucidates the dynamic relationship of transforming the abstract into a determination. As is usual in his writings, Weinrib shows a perceptive, nuanced, and insightful position on the nature of private law. Nevertheless, I maintain that determination can only occur through the application of practical reason—a deliberative process that aligns with the valuable and the good, rather than solely focussing on the right and the dutiful. In grappling with Weinrib’s masterful work, I thus argue that the fundamental premise of his view is ‘the separation of rights and values’, and I aim to debunk this presupposition.

This comment focuses on two intersections between private right and public right: (1) permissions to use another’s property in circumstances of necessity, and (2) distributive justice. My overall claim is that the boundaries Weinrib deftly articulates between private right and public right should not be drawn exactly as Reciprocal Freedom maintains.

Reciprocal Freedom: Private Law and Public Right is an account of how the law can coherently concretize ‘the juridical’, understood as the internal morality specific to legal relationships. The book elucidates the relationship between private law and the state, presenting the Kantian notion of reciprocal freedom as the normative idea implicit in a legal order in which private law occupies a distinctive place. Emphasizing that the juridical—as the morality specific to legal relationships—does not involve an appeal to morality at large, this article responds to critical comments about the correlative structure of corrective justice, the Kantian conception of ownership, and the book’s treatment of distributive justice and of the rule of law. It also outlines the jurisprudentially fundamental difference between the scope of a right and the operation of a right, which lies at the heart of Kant’s distinction between the state of nature and the civil condition.