A new form of 'autocratic legalism' - a term coined by Kim Lane Scheppele - that relies on law rather than guns raises a serious challenge to democratic constitutionalism. While authors tend to focus on the 'illiberal' challenge, this article is concerned with its jurisprudential dimension: what exactly is wrong with autocratic legalism? That is, to what extent does legalism, understood as the formalistic and one-sided instrumentalization of law, represent a hollowed-out, defective, and potentially harmful theory of law? And if legalism is such a theory of law, perhaps prone to authoritarianism, whence can we draw the resources to flesh out a 'non-legalistic' and democratic conception of law instead? The setting of my argument is the so-called crisis of the rule of law in Poland, as reflected in a series of cases of the European Court of Human Rights and, in particular, the 2023 case of Wa & lstrok;& eogon;sa v Poland. The latter not only provides an admirable rejoinder to autocratic legalism but also allows visualizing an alternative dialogical conception. Pursuing this thread leads us to revisit Lon Fuller's famous internal morality of law, which undergirds some of the Court's reasoning. Still, the instrumental abuse of law requires a different diagnosis and remedy than Fuller provided, which leads one to expand on the idea of law's limits beyond strictly moral ones. The dialogical and constitutively plural conception of law defended here does not introduce 'more morality' into law but, rather, reconceptualizes law beyond procedural and instrumental views and calls for a relational ethics.
This article demonstrates how artificial intelligence (AI) legal agents, empowered to act independently on behalf of human users, could structurally reconfigure legal systems through three transformative pathways. First, AI legal agents promise to democratize legal knowledge by dismantling vertical and horizontal institutional barriers to justice. Second, these agents could reconstitute legal authority, enabling novel frameworks of AI-mediated dispute resolution that challenge traditional paradigms of jurisdiction and legitimacy. Third, such agents may shift the temporal focus of legal intervention from post-violation remediation to continuous preventive measures. Harnessing this triple transformation - the democratization, pluralistic reconstitution, and temporal shift - will require design frameworks that balance accountability with efficiency, fairness with personalization, and societal values with algorithmic optimization. Together, these developments gesture toward a future in which AI legal agents, through their continuous interaction with human judgment and institutional frameworks, render law increasingly self-organizing, adaptive, and intelligible.
Is 'disaster' a legal concept? Legal sources from within Canada and around the world provide conflicting answers to this question. In some instances, both the concept and experience of disaster are treated as legally irrelevant. In others, disaster is defined with a level of precision that defies decades of disaster research highlighting the contextual and contested nature of disasters. This article makes the case that disaster must be analysed as a legal concept. Disaster is everywhere in law - often combined with significant legal effects - though it is mostly overlooked or oversimplified. Disaster, where it exists in law, exists mostly in fragments. By drawing together an analysis of Canadian legal sources with disaster law scholarship, this article argues that law creates a kaleidoscope of disaster, consisting of variable and shifting meanings and legal effects. Understanding disaster as a kaleidoscope, rather than as individual fragments, reveals disaster's distinctive, untapped legal potential: disaster demands a contextual legal analysis, one that attends to the particularities of the people and places affected.
This article develops a decision-theoretic analysis demonstrating why the goals of a legal regime are distinct from the decision rules created to achieve such goals and argues that this distinction is an essential yet overlooked dimension in the existing debates on the objectives of antitrust policy. The article then applies this framework to address one of the most controversial questions in this literature: whether antitrust should promote consumer welfare or preserve the competitive process itself. It argues that consumer welfare is a goal but not necessarily a decision rule and that, in contrast, the preservation of the competitive process is not a goal and can only serve as a proxy for other normative objectives.
The COVID-19 pandemic killed over eighteen million people worldwide and occasioned the most invasive mobility restrictions most nations have ever witnessed. In global discussions about state responses to the pandemic - both learned and popular - two familiar views of the role of the state frequently emerged. The 'Leviathan argument' bemoaned the impotence of courts and legislatures to control the 'hyper-executive' state. The 'Ciceronian argument' - that the safety of the people is the supreme law - either saw rights and law as obstructive of public health or found folly in the idea that enacted law could meaningfully bind the executive in an emergency. This article refutes both positions. It argues that a robust state is required to protect both public health and democracy, the rule of law, and rights. This 'positive constitutional state argument' supports a particular model of emergency powers: bespoke statutory schemes that enable urgent action while keeping accountability institutions active and vigilant. This article sustains these claims by drawing on a global dataset of over fifty in-depth studies of national responses to COVID-19. These studies reveal not only the structure and practice of emergency powers worldwide but also that egregious executive aggrandizement was largely kept in check. The article draws lessons from this global survey to show how a positive constitutional state can best optimize constitutional values without compromising the safety of the people.
This article aims to evaluate whether parents of minors who identify as transgender have moral duties to help their children achieve social or medical transition and whether they have moral permission to take a more oppositional posture and, if so, under what conditions. Very child-centred theories of parenting might recommend that children should get to make their own decisions without parental gatekeeping and very parent-centred theories of parenting might recommend that parental interests or values are appropriate to guide decision-making instead. A particular account of fiduciary parenting, the view developed and defended in this article, does not require that parents always accede to their children's demands for gender transitions irrespective of where in the life-course children find themselves. However, parents have obligations stemming from their fiduciary roles to evaluate their children's demands with careful deliberation, humility, conscientiousness, and sensitivity to dynamic change. In particular, children can require from their parents a decision procedure that properly orients parents toward children's welfare rather than the parents' own welfare and a decision procedure that also does not centre 'irreversibility' as a core anchoring mechanism. It is an essential moment to gain more clarity about how 'first-responder' parents should be managing demands from their children about their gender expressions.
This article argues that the principle of economic allegiance, long regarded as the normative foundation of international tax jurisdiction, has become insufficient in the face of recent global reforms that expand the concept of nexus and fragment taxing authority. Nexus once served as a constraint, delimiting the states entitled to tax. Yet, as recent reforms broaden the scope of both source and residence, nexus increasingly admits multiple overlapping claims, transforming tax jurisdiction into a form of shared authority. The challenge today is no longer merely whether a state has jurisdiction but how to allocate jurisdictional fragments among states. The economic allegiance principle excludes states with no claim but offers no guidance for allocation. This article contends that fairness - in particular, inter-nation equity - must be reaffirmed as the central normative principle in this allocation step. It demonstrates how recent reforms fail to articulate coherent distributional standards and instead rely on arbitrary formulas and ordering rules that disproportionately benefit wealthier states. To avoid reproducing inequities, political compromises in international tax must begin from explicit distributional considerations before turning to technical design.
It is not an exaggeration to say that Carol Rogerson has been instrumental in shaping Canadian family law. Along with Rollie Thompson of the Schulich School of Law at Dalhousie University, Carol created the Spousal Support Advisory Guidelines (SSAGs), a set of informal and non-binding guidelines that have fundamentally reshaped the Canadian law of spousal support. The importance of the SSAGs is impossible to overstate; they have given coherence and structure to an area of law that had become uncertain and unpredictable. The SSAGs have made spousal support orders more consistent and more principled, and the clarity that they provide has also improved access to justice by encouraging negotiation and settlement. Through her ground-breaking work on the SSAGs, Rogerson not only transformed the law, but she also improved the process for all Canadians involved in spousal support claims.
This is an introduction to 'Looking Forward by Looking Back,' a special issue of the University of Toronto Law Journal dedicated to the proceedings of a conference celebrating the seventy-fifth anniversary of the University of Toronto Faculty of Law. The introduction begins by reviewing Cecil A 'Caesar' Wright's writings about the nature and purpose of a modern law school and, following the issue's themes, suggesting how looking back to Wright's insights can help us look forward to the future of legal education. Following this, we briefly introduce each of the other articles in the special issue.
Katherine Swinton published The Supreme Court and Canadian Federalism: The Laskin-Dickson Years in 1990. It was a time of disenchantment with the law of federalism. Many scholars found the Court's interventions to be inconsistent or useless, hiding essentially political decisions behind a legally formalistic facade. Swinton's rebuttal remains one of the most robust and sophisticated defences of the role of law and courts in the life of Canadian federalism. Focusing on the wave of decisions of the 1970s and 1980s that thrust the Court back into the constitutional spotlight, Swinton reconstructed the principled visions of federalism and constitutional legality of Bora Laskin, Jean Beetz, and Brian Dickson. This article contextualizes Swinton's writings and analyses some of her main contributions to Canadian constitutional scholarship. Beyond the rich reconstruction of the jurisprudential debates of this pivotal period, the article argues that Swinton's whole approach rested on the appreciation of the importance of federalism in peoples' lives. Contrary to what critics believed, Swinton argued that governments are only one among many parties interested in the resolution of jurisdictional disputes. Swinton's penchant for the 'jurisprudence of interests' of Chief Justice Brian Dickson, which best captures the plurality of interested parties in federalism disputes, still offers valuable resources to think afresh about persisting constitutional debates. The article suggests that the development of the law of constitutional amendment can be read in a new light when 'jurisdiction' and 'interests' are thus considered as alternative prisms through which to think about the constitutional protection afforded to communities that transcend the provincial and federal orders of government. The article concludes by suggesting that a deepening of Swinton's pluralist sensibility is needed if federalism is to speak meaningfully to one of Canada's most pressing constitutional challenges - the confrontation of Indigenous and Crown sovereignty.
Among the leading themes in Stephen Waddams's monumental contributions to the development and deeper understanding of modern contract law, this chapter focuses on two of the most fundamental that particularly preoccupied him throughout his career. The first concerns the proper significance and roles of equity and common law after their integration in 1875 in a single court. Perhaps even more important for contract law, the second has to do with the meaning and place of principles of contractual fairness in the overall doctrinal framework of contract law and, more particularly, in relation to the doctrines of contract formation and also the need for certainty and security in contractual transactions. Waddams understood both sets of issues as relating to, and, indeed, as specifying, what he later referred to as 'the concept of contractual enforceability.' This chapter first presents key aspects of his view as he developed them across his entire scholarly work and then briefly suggests a line of inquiry that builds on his ideas and that further elaborates the concept of enforceability as he understood it.
Alan Mewett was one of Canada's most distinguished legal scholars in the fields of criminal law and evidence. His iconic status extended beyond academia, influencing judicial reasoning, legal education, and public policy in Canada. He quite literally wrote the book on criminal law, co-authoring the first Canadian criminal law textbook, shaping the foundation for modern Canadian legal thought. Much could be written about Mewett's lasting contribution to Canadian criminal law, but, in this article, my focus will be on his view of the relationship between criminal law and morality - in particular, his arguments for removing private morality from the regulation of sexual offences. I argue that Mewett was ahead of his time and that the reforms and the principles he articulated continue to have purchase for the legal regulation of sex and sexuality today.
In this article, I offer an alternative interpretation of John Willis's article 'Three Approaches to Administrative Law: The Judicial, the Conceptual, and the Functional,' published in the University of Toronto Law Journal in 1935. While celebrated as one of the founding fathers of Canadian administrative law, Willis has also been heavily criticized for his strong opposition to judicial review of administrative action. These criticisms, however, seem less pressing if his proposal for a functionalist approach to administrative law can be reinterpreted as being aligned with the American pragmatist tradition. According to this reinterpretation, I look back to argue that the philosophical assumptions of this school of thought can shed new light on Willis's resistance to judicial review at the time of his writing. Then I look forward to claim that, if we reinterpret Willis's proposal according to philosophical pragmatism's assumptions, a functionalist approach to administrative law seems very much in line with Canadian administrative law today.
The 1930 Divorce Act for Ontario, a federal statute, was a major landmark in Canadian divorce law. Before 1930, Ontario residents wanting a divorce had to secure a private Act of the federal Parliament, as did residents of Quebec and Prince Edward Island. People living in all other provinces had access to divorce through the provincial courts. It did not prove easy; five bills to grant divorce jurisdiction failed before the 1930 Act passed by a narrow margin. The debates over the divorce jurisdiction bills involved regional differences within and between provinces, denominational distinctions, and arguments about class and accessibility to this legal remedy for failed marriages. Most importantly, we argue, they concerned the deleterious effects of the national legislature having divorce jurisdiction on the institution of Parliament itself.
Dick Risk was not just a leading scholar in the University of Toronto Faculty of Law, he was the founder of modern legal history in anglophone Canada. Before he began to research and write about the subject, the work that had been done in the area was 'in equal measure antiquarian, descriptive and hagiographic.' This article highlights two articles by Dick which are exemplars of his work. One, on the origins of workers' compensation in Ontario, combined substantial empirical work on the operation of the law with an appreciation of the profound change in Canadian legal thought that the turn to an administrative agency rather than the courts and the common law represented. The other uncovered a little-known legal scholar of the 1920s and 1930s, WPM Kennedy, and the unique law school that he founded.
The famous US case of Vincent v Lake Erie refers to the view of theologians that 'a starving man may, without moral guilt, take what is necessary to sustain life, but it could hardly be said that the obligation would not be upon such a person to pay the value of the property so taken when he becomes able to do so.' In fact, this view was controversial among scholastic thinkers of the medieval and early modern period. This lecture outlines this controversy by considering the three apparently inconsistent ideas pertinent to the late medieval conception of private property: common possession in the Garden of Eden, the postlapsarian institution of private property, and the use of another's property in circumstances of extreme necessity. At the heart of this triad of ideas is the distinction between negating and limiting the original natural right to common possession. The lecture suggests that the modern notion of proportionality provides a conceptual and sequential framework for understanding the relationship between these three ideas. Scholastic thinkers differed on whether necessitous use was a matter of justice that went to the operation of rights as they evolved from the Garden of Eden (in which case, compensation was due for damages done by the use) or a matter of charity (in which case, compensation was not due). In its treatment of the three ideas, the scholastic literature attests to the relevance of sequential reasoning in law and especially to the importance of distinguishing between the scope and the operation of a right. A cause of the continuing perplexity about Vincent is the inattention to the sequential nature of the reasoning needed to resolve it.
