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.

In this work, I contribute to the debate on the status and legitimacy of principled disobedience in a democratic polity. After introducing the notion, I move to argue that principled disobedience can be framed not only as a moral and political stance but also, and without contradiction, as a legal requirement. As a result, it will be maintained that not only can we engage in principled disobedience without necessarily violating our legal obligations, but these obligations may actually mandate principled disobedience. This framing of the problem of principled lawbreaking makes the proposed discussion distinctive and original in virtue of its claim—namely, that we may have not only a moral justification to disobey the law but a legal obligation to do so, an obligation to break the law on principled legal grounds.

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.

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.

Discussions of Nazi law tend to centre upon Fuller’s desiderata of the rule of law. Whilst not disputing this connection, this essay argues that tyranny and oppression are marked by the (ab)use of law to invade the domain proper to individual moral thinking, and to transform citizens into models of conformity to whatever values the tyrant cherishes. Its main consideration is how a community can recover from periods of tyranny, and how the law can recover its dignity having shown itself capable of evil uses. So, it is focused more on ‘substantive’ rather than ‘procedural’ morality.

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.

Matthew Kramer’s theory of right-holding is a major contender in the debate about rights. Kramer proposes a version of the Interest Theory that amends the Basic Idea of the Interest Theory—that rights protect interests—by incorporating Bentham’s Test, an algorithm that identifies the party to whom an existing duty is owed. It is argued that Kramer’s methodological approach in devising Bentham’s Test as a tool to answer questions about right-holding leads into a dilemma: Either Kramer is left with no theory at all or with one that has alarmingly implausible implications. It is suggested that organizing conceptual investigations around a notion of normalcy may provide a way of avoiding both this unsatisfactory approach and the problems that affect other versions of the Interest Theory.

Equity has traditionally been understood as a judicial corrective to the generality of statutory law caused by the limited foresight of legislatures. Because of the ad hoc and corrective character of equity, many scholars have seen a tension between the morality of equity and the positivity of law. Equity, John Gardner once suggested, is “justice’s rebellion against law”—insofar as the positive law does not usually authorise the exercise of equity by judges. In this article, I argue that while the exercise of equity requires the exercise of an equitable power, there are good reasons for the law to allow this power. I do so while showing the conditions under which the positive law could implement the two main historical ways of exercising equity in adjudication: ‘equitable interpretation’ and ‘equitable suspension’ of the law. In defending this argument, I also offer a brief historical sketch of equity and its connection with the modern approach to the study of implicit exceptions in the law: legal defeasibility.

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.

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 enquires into the relationship between democracy, law, and revolution in the Marxist works of Harold J. Laski (1893-1950). It is a helpful study to sketch the way in which British Socialists interpreted Marxian categories in the early twentieth century. Laski’s theses on legal pluralism, the opposition of ‘revolution’ and ‘counter-revolution’, and the incompatibility between capitalism and democracy will be discussed by emphasising their interaction with his notion of ‘revolution by consent’. I will also show that Laski’s conception of law and revolution might shed light on his interpretation of the relationship between the economic structure and the politico-legal superstructure, and particularly on his thesis of the reciprocal influence of those two layers of society as giving crucial importance to democratic methods. These conclusions, in the end, might be profitably compared with some conventional readings of Marx’s ideas about revolution, in order to examine and discuss their interpretive validity and stress their implications concerning the transformation of legal systems.

Consider the following argument: (1) Whether, or the degree, persons are morally culpable ultimately depends on the (final) reasons that motivate their actions; (2) The degree to which persons are morally culpable should be a central concern of criminal law; (3) Criminal law in many countries focuses more on the beliefs and intentions of agents and less on their motivating reasons; therefore (4) Criminal law in many countries is unjust and should be revised. The premises of this argument are appealing and widely accepted, yet its conclusion is radical. Therefore, the argument is interesting and important. However, the argument is not entirely clear in several respects, and the attempt to clarify it reveals several significant (although not necessarily decisive) doubts regarding its soundness. In this paper, I examine these doubts as well as a related, more general, lesson concerning normative arguments about the law.

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 article applies van Gennep’s structure of the ritual to the patent application process, arguing that information undergoes several ontological transformations on the way to patentability. The second half of the article applies Turner’s focus on the liminal space. From this perspective, the ‘pure possibility’ of the liminal space is essential to patent law, because it helps negotiate between strong boundaries (as a form of property) and the almost improvisational way in which general rules are applied to specific patents. Taken together, these two approaches provide a more nuanced understanding of how patent law comes into existence and how the patents themselves operate as distinct social and cultural artefacts. The analysis does not intend to replace the economic understanding of patent law, but instead seeks to reflect more completely how it actually functions.

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.

Given the distinction between knowing-that and knowing-how, one could claim that legal knowledge is eminently practical: One who knows the law enjoys some form of knowing-how, namely, how to exercise certain intellectual faculties, or how to perform such activities as interpreting legal texts or arguing a case. I present some arguments to the effect that legal knowledge is not practical, being rather propositional in nature, as knowing-that instead of knowing-how. This is not to deny, however, that such activities as interpretation and argumentation are extremely important in the legal domain. I also consider whether legal knowledge is practical in a different sense—namely, with a view to decision and action. I contend that it is not practical in this sense either, even if it is mainly used for practical purposes.