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.

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.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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 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.

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.

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.

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.