Nearly twenty-five hundred years ago, Aristotle first elucidated his theory of morality in the Nicomachean Ethics by systematically examining and analyzing the virtues which he felt were necessary for the attainment of the Good in the here and now. One of the most controversial and perhaps least understood portions of this magnum opus are those that pertain to the now famous building blocks of legal philosophy: corrective and distributive justice. These terms remain as relevant today as when they were first “discovered” in large part due to modern legal theory’s increasing tendency to rely on Aristotle’s corrective and distributive ideas as the organizing and distinguishing principles of the private and public law, respectively. If corrective justice is to define the limits and form of the private law, however, a blind reliance on Aristotle’s interpretation is mistaken. An examination of Aristotle’s corrective justice shows that his legal philosophy is incomplete and often paradoxical—asserting premises that are irreconcilable on a plain reading of Aristotelian texts. In order to demonstrate these inconsistencies, this paper will first distinguish between corrective and distributive justice. It will then examine three of the most difficult and least understood aspects of corrective justice: namely, Aristotle’s conception of equality, reciprocity, and correlativity in gain and loss.

In his The Moral Limits of the Criminal Law: Harm To Self, one volume in what is arguably the most impressive and thorough statement of liberal political philosophy to date, Joel Feinberg claims that there is a problem of reconciling the reasonableness of our concern for people who endanger themselves with our repugnance for paternalism:

Punishment consists in doing things to people which are expectedly undesirable from the point of view of the recipients. These have typically included the infliction of physical pain, deprivation of life itself, and, for long the standard form, deprivation of liberty of movement, in the form of a period in jail. We have a fairly strong prima facie duty to refrain from inflicting such things on anyone. (Some might even think that we have a rigorous, or “absolute” duty thus to refrain, but that would make punishment necessarily unjustifiable.) But if we accept any such duty—as we all do—then the question of justification for punishment obviously arises, for clearly we need to justify the doing of what is normally wrong. We need to show why certain kinds of non-normal behavior call for punishment.

In the common law world the oath has long provided one way of ensuring that trial witnesses tell the truth. The moral power of the oath supplements the judicial power of perjury laws. But unlike laws forbidding perjury, the oath cannot be used automatically. Through ignorance, belief or conscience a person may be incapable of meaningfully swearing an oath. Over the years there have been many legislative enactments and judicial pronouncements which sought to clarify conditions for the use of the oath and establish alternatives to it. With increasing secularization of society, the traditional ground rules have required modification. Because there has been little serious, theoretical discussion of the nature of the oath, these modifications have often exhibited inadequate understanding of the moral dimensions of the oath. As a result, judicial discussion has reached an impasse. In January, 1988 Bill C-15 became law. It contained yet another attempt to satisfactorily harness the power of the oath to the needs of the judicial system. The interpretation of this new legislation will offer excellent opportunities to eliminate some of the confusion surrounding the oath in Canadian law. This paper will analyze the nature of the oath with special attention to its obligation-generating capacity. The analysis developed here may help provide the understanding necessary for sensible judicial interpretation and reform.

In Legality, Scott Shapiro introduces what he calls the “Planning Theory of Law.” Shapiro introduces the idea of a plan with examples from outside of the law. He then must provide an account of what is distinctive about law, such that the other plan-based social orders are not also legal systems. He gives two answers: first, a legal system is organized by a moral aim. Second, a legal system is self-certifying. I examine these in turn, and argue that each can only characterize what is distinctive about law if the relevant moral problem that law aims to solve is itself specifically concerned with authority—that is with who gets to decide about what. Other forms of planning assign roles to people to solve problems that have nothing to do with authority; law uses role-based authority to solve a moral problem that is fundamentally about authority.

Monahan and Walker have proposed that American judges should fundamentally alter the way they receive and assess social science evidence in court, by treating social science research as “law-like” or authoritative when certain professional research criteria are met. Strict application of the stipulated criteria to various kinds of social science research introduced into American and Canadian courts reveals, however, that such research can seldom be considered authoritative in the way Monahan and Walker imagine. Accordingly, as a general rule judges should be reluctant to apply Monahan and Walker’s “social authority” model to the courtroom resolution of difficult questions of social, economic, and cultural or historical facts.

A legal theory, any legal theory, necessarily adopts one of two perspectives or vantages or points-of-view. The author of a legal theory may take up the internal, engaged vantage or the external, detached vantage. If he seeks to explore, say, how judges should decide hard cases then his theory, explicitly or implicitly, will adopt an internal participant’s perspective. Most likely, he will be putting himself in the shoes of the judge (or alternatively, asserting that we are all judges of a sort) in order to convince others of how best this role can be performed. Less likely, will be he who is a revolutionary and who thinks that the judge should decide cases in such a way as to contribute to the subversion of the legal system. In either event, both will be prescribing. Prescription, answering the ‘ought’ and the ‘should’, presupposes an involvement in the question and a concern with some evaluative dispute (though the revolutionary clearly does not accept the norms of his legal system as binding).

Constitutional Goods offers an ambitious constitutional theory that challenges basic liberal ideas such as the priority of basic liberties and the inevitable disagreement between competing conceptions of the right and the good. The book has two objectives: it attempts to widen, on the one hand, the list of constitutional goods that deserve priority over other interests. On the other, it tries to bring competing conceptions of the right and the good together under an overarching umbrella defined as the 'inclusive conception'. This article attempts to show that, despite the valuable and ambitious effort, Constitutional Goodsis unlikely to convince everyone of its capacity for inclusiveness.

Max Weber grappled with the rise of social democracy, the welfare state, or the Sozialstaat, most explicitly in the “sociology of law” sections of his posthumously published Economy and Society. Through a close reading of Weber’s text, this essay argues that the historical and analytic categories Weber deployed in his investigation of the Sozialstaat, its rise and its legal dimensions, were inadequate for an appropriate understanding of the phenomena and for the attempt to offer progressive prescriptions for their further development. Instead, by relying on a faulty historical logic, Weber obscured many realities of the Sozialstaat, and unwittingly laid the groundwork for the neo-conservative critique of the welfare state on both sides of the Atlantic. The essay concludes with some reflections on similar, “Weberian,” theoretical moves observable in literatures dealing with the most recent large-scale transformation of law and the state: the rise of the European Union.

One thing seems clear in British politics today: many of the old truths no longer hold. Voters no longer vote according to class. The current government has made some effort to shake up the civil service and bring in outsiders. And a third political party is struggling along. Faced with all this, scholars have had to rethink their approach to British politics and governance. Appellate courts have long been considered Britain’s least interesting governing institution, but they have also benefited from the shake-up. Studies published in recent years mean to examine the politics of the British courts, primarily the Law Lords, the members of the House of Lords who comprise the final court of appeal in Britain. And, congruent with other changes in politics, studies find that courts have become interesting enough that they ought at least be considered in discussing British politics.

In an Icelandic saga there is a story of Torgeir, a young man of high rank, who one day as part of his morning activities cut off the head of a serf. Asked why he did this, answered—and it sounds better in Norwegian—“Fordi han sto sa lagelig til for hugg”: because he stood there so well suited for a cut. That was the end of the story.

One episode, yet representative both for Viking-time and later epochs. Up until 1766 it was a matter of course that people of high rank received less severe punishments than those of low rank. Fragments of this basic principle are still preserved in the Norwegian constitution where it is explicitly stated the King cannot be blamed or brought before any court of law.

Does the Internet offer the promise of a newly empowered, egalitarian public sphere more completely informing the institutions of representative democracy through an engaged and articulate public sphere? The Internet is with us now as a social fact. Its potential remains inchoate at a time when mass media, already debased as an intermediate medium for public discourse, suffers further erosion. The limitations of the Internet as a new medium for an enriched deliberative discourse are not necessarily fatal. Indeed the time may well be right. The institutional means for realising it are largely untried and controversial but not likely beyond our capabilities. In short, there is a need and a promise but not yet an active engagement. Against idealised Habermasian criteria the prospects are bleak and indeed there is danger of further fragmentation of publics. But judged against already debased modes of political discourse and the reality of the erosion of their mass media forms the prospects are perhaps not so bleak. The utopian best ought not to be allowed to crowd out the achievable good.

Recently, in Canada both the Federal Government and various provincial governments have introduced a series of measures intended to address gender inequalities in the workplace. These measures are of two basic types. Employment equity policies involve the implementation of affirmative action programmes designed to encourage the hiring and promotion of more women in, for example, the civil service. Pay equity policies have sought to institutionalize the principle of equal pay for work of equal value or, to use the American terminology, comparable worth. The aim of this paper is to resurrect the presently out of fashion view that the principles of affirmative action and comparative worth that underlie employment equity and pay equity can be defended on the grounds that they contribute to the realization of an ideal of equality of opportunity between men and women in Canadian society. This view, although once prevalent among those concerned with gender issues, has been pushed aside, largely because of doubts about the visionary depth of the ideal of equality of opportunity. It has been replaced instead by an ideal of equality of results which emphasizes the goal of reducing the gender wage gap. It is my intention here to formulate a principle of equality of opportunity that can incorporate recent feminist legal and political philosophy in a way that offers a promising way to analyze issues posed by gender inequalities in the workplace and, as a result, provide a clear rationale for the recent employment equity and pay equity initiatives in Canada.

In Dimensions of Private Law, Professor Stephen Waddams describes the obstacles that an adequate classification of private law must overcome. The purpose of this essay is to offer a theoretical account of legal classification that explains how these obstacles can be overcome and what the resulting classification of private law might look like. I begin with the catalogue of obstacles that Waddams presents and argue that, because they are rooted in misconceptions about the classificatory project, they pose no threat to an adequate conception of legal classification. In search of such a conception, I consider how three great legal theorists – Aristotle, Kant, and Hegel – answer three fundamental classificatory questions about private law. First, what is the unitythat underlies the seemingly chaotic array of legal instances? Second, what is the principle of differentiationthat applies to this unity? Third, how are legalinstancessubsumed under this differentiated unity? The focus of this essay is the enduring significance of Kant’s conception of legal classification, which provides an alternative to Waddams’ conception and offers a set of coherent answers to the fundamental classificatory questions. In contrast, both Aristotle and Hegel respond to the fundamental classificatory questions by providing a conception of the unity of private law that fails to cohere with their ensuing accounts of its differentiation.

If common law is to run parallel to the morality of promissory obligation, it must require the breaching seller to keep his promise, not simply to pay off the buyer. However, in the event of promise-breaking, common law orders the defendant to compensate the claimant for the loss that flows from the breach of the duty to perform. The following questions then arise: why does English law not order the defendant to do the very thing that the substantive duty requires him to do? Why does it not adopt specific performance as the primary remedy? Is it because English law runs against the morality of promise? The answer is ‘no’. A number of justifications have been put forward to explain the common law’s reluctance to award specific performance despite its undoubted acceptance as the appropriate moral response to promise-breaking. This article will explain each and show which is more persuasive.

This is a Critical Notice of From Normativity to Responsibility, Joseph Raz’s brilliant treatment of the nature of normativity and reasons. Building on the thought that the law claims to give reasons to its subjects, I consider the application of Raz’s views about reasons to some questions in legal philosophy. I concentrate on what I take to be the central idea of the book, Raz’s “normative/explanatory nexus”, according to which a consideration cannot be a (normative) reason for an agent to perform an action unless the agent could follow the consideration in performing the action. I show (briefly) how the nexus can explain some of the Fullerian principles of legality. And I examine (at somewhat greater length) the implications of the nexus for our understanding of the psychology of legal obligation; here I suggest that the nexus might cause trouble for Raz’s own well-known exclusionary reasons account of legal obligation.

In this essay, I argue that the role for exclusionary reasons in a sound account of practical rationality is, at most, much more circumscribed than proponents of exclusionary reasons might suppose. Specifically, I argue that an attractive account of moral motivation is in tension with the idea that moral reasons can be excluded. Limiting ourselves to the tools of first order moral reasons—including such relations as outweighing, and disabling—allows us to preserve a more attractive account of the relationship between what there is strongest reason to do, what one is motivated to do, and that for which one is praiseworthy or blameworthy. In closing, I argue that we can capture the normativity associated with legal decision-making using only the resources of the first-order model.

Despite more than half a century of reform efforts, access to civil justice is still understood to be in a state of crisis. Part of the reason for this is because there is no consensus among the legal community on the meaning of justice in this context. This paper seeks to provide a much-needed theoretical underpinning to the access-to-civil-justice movement. It advances ‘justice as fairness,’ as articulated by the American philosopher John Rawls, in conjunction with Lesley Jacobs’ model of equal opportunities, as a suitable theory in which to frame the access-to-civil-justice movement. I explain why this framework is appropriate for pluralistic democracies like Canada and how it can be used to define measures of justice. This exercise is thus not simply a theoretical discussion, but rather is intended to be used as a practical framework to assess current and proposed policy initiatives.

Current legal trends tend to obscure the sharp distinction between substance and procedure. This tendency is manifested, inter alia, as a growing dependence of procedural norms in substantive law; greater flexibility of procedural norms; and growing judicial discretion to deviate from procedural rules. In order to evaluate these contemporary trends, we provide a theoretical analysis of the basic relationships between procedural norms and substantive legal outcomes. This framework reveals the moral commitments underling these modern trends as opposed to the moral foundations of the traditional view that legal decisions should be made under rigid procedural constraints. Focusing on criminal evidence law, the proposed theoretical framework is applied to some of the ongoing legal debates, such as about the admissibility of evidence seized in violation of rights, the exclusion of statistical and character evidence, and the flexibility of the reasonable doubt standard of proof.