Abstract Simon Franz Ewers, in the pages of this journal, has recently undertaken a critique of my philosophical account of the holding of claim-rights. In this short response to Ewers, I defend that account against some significant misrepresentations or misapprehensions in Ewers’s article.
This lecture considers conserving and upholding Anishinaabe law as it relates to the more-than-human world. It suggests that we must continually renew our broadest legal commitments to protect and preserve what sustains us. Protecting clans and the animals from which they derive is close to the heart of Anishinaabe law (ode'naakonige). This law is embodied through Anishinaabe treaties with our evolutionary progenitors, our clan relatives. These treaties with the more-than-human world were incorporated into treaties with other First Nations. From an Anishinaabe perspective, these obligations were, in turn, eventually imported into treaties with the Crown. Anishinaabe treaties with the more-than-human world continue to inform how Anishinaabe people practice constitutional law through consultation protocols, legislation, and participation in court proceedings.
How should legal theory address populist governance? This article assesses recent efforts to align populist legal theory with H.L.A. Hart's positivism, particularly the claim that populists embrace a democratic version of the rule of recognition. It argues instead that the alliance is deceptive: Populists selectively rely on Hart, given that both endorse a static legal theory. It presents two arguments in support. The first, negative argument shows that populist aspirations to immediate popular sovereignty are at odds with Hartian grounds of legal authority. The second, positive argument draws on Hans Kelsen's distinction between static and dynamic legal orders to reveal their deeper structural similarity: Populism and Hartian positivists likewise minimize official discretion and conceptualize law as a conduit for external political decisions. Clarifying this affinity exposes the risks of static legal theories in legitimating populist distortions and underscores the normative urgency of a dynamic understanding of legal order.
The traditional account of the criminal trial holds that its fundamental purpose is to search for the truth-that is, the truth of whether the accused factually committed the alleged crime. However, purely truth-seeking accounts, as well as more nuanced side-constraint and pluralist accounts, fail to adequately explain the relationship between the epistemic principles and those of political morality shaping the criminal trial. In response, this article proposes that we understand the criminal trial first and foremost in terms of its purpose as a public procedure concerned with the legitimate use of coercive state powers against a particular person. Specifically, the criminal trial is a procedure that calls upon the state to provide a public justification for exercising its criminal law powers to convict and punish the accused. This account preserves the importance of establishing factual guilt because doing so is an essential part of the state's justificatory burden.
Some philosophers and legal theorists believe that certain fundamental normative phenomena cannot be adequately explained without appeal to second-order reasons-that is, reasons to act (or not to act) for certain reasons. Others are resistant to such an appeal. This resistance takes a robust form in the Credit Argument, which holds that, since we cannot act for a reason for a reason, the very idea of second-order reasons must be incoherent. In this paper, I do several things. Firstly, I clarify in just what sense the Credit Argument supposes it is not 'possible' to act for a reason for a reason. Secondly, I propose a novel typology of second-order reasons. Thirdly, using these insights, I demonstrate that the Credit Argument is weak at several points and should therefore be roundly rejected. This amounts to a partial defence of the appeal to second-order reasons in the explanation of fundamental normative phenomena.
In recent years, the controversy between legal positivists and their opponents has been reframed as a debate on whether 'legal facts'-aka facts about the 'content of the law'-are determined by social or moral facts. This new framing ought to be resisted, for two reasons. First, it is biased against legal positivism, by making it the default picture that the 'content of the law' is not a set of legal norms atomistically individuated-which is essential to positivism-but a set of 'facts' ("the fact that Jones legally ought to pay $35 to Smith") which can then be grounded holistically in moral facts. Second, talk of 'legal facts' has been instrumental in the recent metaphysical turn in jurisprudence, especially in the growing literature on grounding and law. Jurisprudes-of all stripes-should resist it, as it impoverishes and obfuscates many important philosophical questions about law.
In the literature, the Rule of Law (ROL) is mainly explained, and its value justified, by reference to its support for a liberal conception of human agency. As such, the connection between the ROL and legitimacy is normally considered contingent if the conception of the ROL is thin. It can be rendered necessary, it seems, only by a substantive conception that incorporates other political ideals, notably democracy. Without recourse to such a move, this article defends a necessary ROL-legitimacy connection by exploring the ROL's contribution to the task of pacification, which, I argue, is inherent in the claim of legitimacy. My interpretation re-orients the ROL's foundational value from the liberal conception of human agency to politically inspired fear and summa mala. The paradigmatic shift is in line with the realism approach to political theory which derives and explains moral claims in political theories from considerations of basic political necessity.
This paper addresses a well-worn topic: originalism, the theory that judges should interpret the Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, another effect of originalism that I identify is the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law. I argue that originalism is closer to a perspective than a methodology.
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 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.
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.
Countermajoritarianism is the view that judicial review is antidemocratic because it allows an unelected and unaccountable minority (judges) to overrule laws that represent the will of the majority. The core claim of this view stresses the conflict between agents with a democratic and a non-democratic pedigree. I call this conflict the ‘pedigree problem’ of judicial review. Against countermajoritarianism, I argue that the pedigree problem does not affect some forms of judicial review: specifically, the judicial review that declares a norm inapplicable in a specific case due to the unconstitutional effects that this application brings about. Countermajoritarianism fails when objecting to the inapplicability model because the agents involved in judicial review—the constitutional court and the judge—have the same pedigree, i.e., non-democratic. In order to justify this claim, I draw insights from legal interpretation literature, specifically, the distinction between ‘norm formulation’ and ‘norm’.
Can Hartian positivism adequately explain disagreements, among U.S. officials, about the correct method of statutory interpretation? Ronald Dworkin influentially argued it cannot. Dworkin maintained that (1) debates about the correct method of statutory interpretation are 'theoretical' disagreements; and (2) Hartian positivism cannot explain theoretical disagreements, except by positing implausible confusion or disingenuity on the part of legal officials. I show here that (1) is false. A disagreement about the correct method of statutory interpretation need not involve a theoretical disagreement of any kind. It may instead involve a purely 'denotational' disagreement among officials-i.e., a disagreement about the denotation of a concept appearing in a criterion of legal validity that all officials accept. I argue that, since the U.S. statutory interpretation debate plausibly is a purely denotational one, it does not pose the difficulties for Hartian positivism that Dworkin and other critics have supposed.
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.
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 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.
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.
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.
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.
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.
