bluuebunny/crossref_metadata_2025 huggingface dataset:
The Use of Hypnosis in an Applied Sport Psychology Setting
Authors: Winter Graham
Published: July 2016

Many psychologists are becoming involved in helping sportspeople to prepare for competition. These psychologists have a number of techniques at their disposal and one of these is hypnosis. There are benefits in using hypnosis with sportspeople but some misconceptions about its nature need to be overcome. This article outlines how hypnosis has been introduced and used at the South Australian Sports Institute and consideration is given to how it can be used with other techniques, to help sportspeople achieve their goals. Two case studies are presented, together with guidelines on the use of hypnosis in an applied sport psychology setting.
The ABMA as a Multidisciplinary Body: Implications for Training in Behavioural Skills
Authors: Hudson Alan
Published: July 2016

The membership of the ABMA was analysed by way of profession and this showed that the membership was comprised mainly of psychologists. The issue of whether psychologists ought share their behavioural skills with other professions was addressed with reference to the literature on training in behavioural skills. The conclusion was drawn that it was appropriate for a variety of professional groups to be trained in behavioural skills that are typical of the function of what Bernstein (1982, 1984) called the “the behavioural engineer” or what Gardner (1973, 1976) called the “behavioural technician”. Finally it was argued that the ABMA should be actively involved in the teaching of these skills.
The Roles of Positive and Negative Self-Statements in Socially Anxious Females
Authors: Oei Tian P.S.
Published: July 2016

Ten high and twelve low socially anxious females were recruited to participate in a simulated “colour and emotions experiment”. Half of each group received self-enhancing statements whilst the other half were presented with neutral statements. Subjects waited in a disguised observation room and their behaviours were monitored unobtrusively during interaction with a confederate. Results showed that prior to treatment high anxious females made significantly more negative self-statements, conversed less, made fewer initiations of conversation than low anxious females. Latency of conversation and non-verbal behaviours were not significantly different for the two groups. Treatment with self-enhancing statements had no effect on the degree of social interaction and self statements generated by the two groups.
Issues in Changing Behaviour to Promote Health
Authors: Owen Neville , Lee Christina
Published: July 2016

Health promotion involves the modification of behaviours which constitute risks to health, through such activities as intensive interventions with individuals, community health campaigns, and legislative and social change. Major target behaviours for health promotion include cigarette smoking, eating habits, exercising, and the management of stress. This paper outlines the range of approaches to behaviour change in health promotion, and considers the stages involved in the behaviour-change process. Theoretical frameworks for dealing with health-related behaviour change are suggested. In considering the relationship between behavioural research and health promotion activities, the process of development from basic research to programmes and policies is outlined, and the importance of maintaining conceptual and methodological rigour when working in field settings is stressed. We also argue that there is a need to take into account some relevant local contextual factors in the development and application of a behavioural approach to health promotion.
From Legitimacy to Dictatorship—and Back Again: Leo Strauss's Critique of the Anti-Liberalism of Carl Schmitt
Authors: Howse Robert
Published: July 2016

The encounter between Carl Schmitt and Leo Strauss remains a source of fascination and polemics for the friends and enemies of both thinkers. According to Stephen Holmes, both Schmitt and Strauss belong to a single tradition of anti-liberalism, whose ultimate practical implication is suggested by Schmitt's fate as a Nazi apologist. Indeed, Holmes places much emphasis on Strauss's criticism of Schmitt for failing to develop a critique of liberalism that goes beyond the horizon of liberalism itself, and interprets this criticism of Schmitt as a call for a form of anti-liberalism more extreme and virulent than that propounded by Schmitt on the very eve of his membership in the Nazi party.
Liberalism as a “Metaphysical System”: The Methodological Structure of Carl Schmitt's Critique of Political Rationalism
Authors: Mehring Reinhard
Published: July 2016

It is a commonplace that liberalism appears to be in crisis. While the tragedy of German liberalism consists above all in its collapse into National Socialist dictatorship, at present one often speaks of liberalism's final victory. There is no alternative, it appears, to the constitutional state. Liberal constitutional principles have been so fulfilled that no political goals and lessons seem left beyond their global self-affirmation.
Carl Schmitt on Sovereignty and Constituent Power
Authors: Cristi Renato
Published: July 2016

Schmitt's Verfassungslehre stands as perhaps the most systematic and least circumstantial of his works. While his production is marked, on the whole, by an extraordinary sensitivity toward his own concrete situation, leading at one point to an unbounded and shameless opportunism, this particular work seems to rise above the political fray, reflecting possibly the mood of 1928, which marks the halcyon days of the Weimar republic. Recently, Ernst-Wolfgang Böckenförde has tried to shake off the Verfassungslehre from its composed academic bearing by relating its argument to the polemical friend/enemy theory developed by Schmitt in his Der Begriff des Politischen (1927) and Schmitt's characterization of the state as the political unity of a nation. Beyond this, Böckenförde has connected the Verfassungslehre to the eminently partisan notion of sovereignty put forth by Schmitt in his Politische Theologie (1922), where he flaunts his allegiance to the Catholic counterrevolution.
National Self-Determination: A Sub- and Inter-Statist Conception
Authors: Gans Chaim
Published: July 2016

The right of national groups to self-government should be universally conceived of in sub-statist forms. Instead of interpreting the right to national self-determination in terms of independent statehood, it should in all cases be conceived of as a package of privileges to which each national group is entitled in its main geographic location, normally within the state that coincides with its homeland. According to this sub-statist conception, self-determination is not a right of majority nations within states vis-a-vis national minorities, but rather a right of homeland groups vis-a-vis non-homeland groups. It is a right to which each national group in the world is entitled, and which must be realized in at least one place.
Putting It in Writing: Drafting Faust's Contract with the Devil
Authors: Swais Nishan
Published: July 2016

The Faust legend is familiar to us as the story of a man who agrees to sell his soul to the devil in exchange for a moment of absolute spiritual fulfilment. Since its first recorded telling some five hundred years ago, the legend has survived both as an expression of our need for transcendence - for “something more” - and as a cautionary tale about the manner in which we try to achieve it. This paper addresses the Faust legend from a legal perspective by taking its central motif - Faust's pact with the devil - and literally reducing it to writing, that is, by presenting it in the form of a legally binding agreement of purchase and sale. The intent is to explore whether and how doing so can help illuminate key issues at the core of the Faust legend while allowing us to consider the commercial element implicit in the way in which we sometimes conduct our spiritual affairs. To lend perspective, the various provisions of the agreement have been footnoted to reference relevant passages from Goethe’s and Marlowe’s telling of the Faust legend.
The End of Human Rights: Critical Legal Thought at the Turn of the Century by Costas Douzinas, Oxford: Hart Publishing, 2000; ix + 410 pp. ISBN 1 901 362-91-4 (cloth) ISBN I 84113-000-1 (paper).
Authors: Harrington Joanna
Published: July 2016

This article is a review of Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century, Oxford: Hart Publishing, 2000.
Liberty, Community, and Corrective Justice
Authors: Weinrib Ernest J.
Published: July 2016

In a well-known article, Duncan Kennedy has stated that the central problem for law is its treatment of the fundamental contradiction of our condition. On the one hand we are dependent on others for protection against destruction and for the fullest realization of our sense of ourselves; on the other hand we recognize in others a threat to our own well-being. Kennedy regarded the dilemma “that relations with others are both necessary to and incompatible with our freedom” as the essence of every legal problem, and he ascribed to the liberal conception of law the historical function of dressing up as rational or natural the structures of bondage that emerged as its particular resolutions. Kennedy’s contradiction invokes the recurrent tension between the notions of liberty and community that supply traditional vantage points for the analysis of social and political relations. The reconciliation of these notions poses an enduring philosophical problem, and one need not agree with Kennedy’s unflattering assessment of the law’s function to realize that it is a problem in which law too has been centrally implicated.
Punitive Damages in Contract
Authors: Venour David E. R.
Published: July 2016

As the Writ System that prevailed in England until the nineteenth century defined particular rules and procedures for each Form of Action, so today our modern causes of action take to themselves a host of idiosyncratic details. Until recently the common law had long conceived of tort and contract law not as parts of a general law of obligation but as separate bodies of rules divided by a boundary wall that kept each from invading the territory of the other. New developments in the law have breached this wall in places and allowed tort to intrude into domains traditionally ruled by contract. But this process is far from complete, and many differences still remain between actions in contract and tort.
Property and the Canadian Charter of Rights and Freedoms
Authors: Shumiatcher Morris C.
Published: July 2016

“A free and democratic society” was declared to be the aborescent garden in which the Canadian Charter of Rights and Freedoms was planted in the spring of 1982. Branches of that new vigorous constitutional tree are now rapidly reaching out from many sections of the Charter. They will develop as nature and nurture allow; and provided they do not grow to obscure the sun or deplete the richness of the soil which the garden requires if it is to flourish, Canadians may one day come to
Cartesian Penology
Authors: Brodeur Jean-Paul
Published: July 2016

Writing on punishment can be a punishing experience. We face two kinds of problems, each threatening to make penal reflection a futile exercise. Primarily, there is a body of research and literature which might be called hyper-critical; this research points to the weaknesses of all theories of punishment but fails to replace them by an adequate theory, either because it cannot solve the problems which it raises or because it does not want to, punishment being seen as a concept that is so fraught with difficulties of all kinds that it ought to be altogether rejected. There is, on the other hand, a second trend in the literature, which is more positive and which offers a new theory of punishment. However, what is gained at the level of theory is lost at the level of application: not only is current penal practice unrelated to the proposed ideal, but its proponents do not see at present how we should proceed in adjusting practice to achieve this ideal.
Assisted Suicide and Active Voluntary Euthanasia
Authors: Browne Alister
Published: July 2016

Modern medicine has been enormously successful in saving and extending lives. No one can reasonably regret this, but it exacerbates a problem which has always been with us, namely, how to treat those who are alive, but not living lives they think worthwhile, and have no prospects for anything better. Under current Canadian law, one who wants to die can either commit suicide, or, if he is competent, refuse all treatment necessary for life. But one does not always have the ability and opportunity to do the former, and the latter does not always bring about a gentle and easy death for either the patient or his loved ones. The question thus arises as to whether we should make legal provision for assisted suicide - providing the means of suicide - and active voluntary euthanasia - killing the patient on request. The Canadian Law Reform Commission1 has recently taken up this question, and answered with a clear “No.” I shall argue in what follows that the answer should be “Yes.”
The Law of Construction Privileges: Corrective Justice or Distributive Justice?
Authors: Bordan Gregory
Published: July 2016

This paper explores how an adequate understanding of legal relations can be aided by, and sometimes requires, returning to the foundations of our conception of legal relations.

The process of conceptualization is a process of revealing the form in legal relations. The two most fundamental forms of legal relations, first enunciated by Aristotle, are corrective justice and distributive justice. The thesis of this paper is that an analysis of legal relations can be coherent only if it is faithful to the form of justice appropriate to the particular legal relation under study.
The Epistemology of Judging: Wittgenstein and Deliberative Practices
Authors: Morawetz Thomas
Published: July 2016

Wittgenstein seeks to inoculate us against the lure of metaphors. The conundrums of philosophy are, he implies, often the misbegotten offspring of abused metaphors. How many rooms are needed to house the “furniture of our mind”? With what key do others gain access to my “private” thoughts and feelings?

Jurisprudence has its own syllabus of philosophical puzzles. One of the hardiest is the issue of judicial license and judicial standards. This issue has special fascination for American legal theorists because of the pivotal role played by the Supreme Court in exercising the power of judicial review by interpreting the Constitution. American theorists have taken for granted, and other theorists have seemed to acquiesce in this assumption, that to understand the nature of law is to understand how appellate judges find and/or make law.
Are Judges Liars? A Wittgensteinian Critique of Law’s Empire
Authors: Yablon Charles M.
Published: July 2016

When Legal Realism first appeared in American jurisprudential thought in the 1920’s and early 1930’s, it was frequently misunderstood as an attack on the integrity and truthfulness of the American judiciary. After all, wasn’t it a central tenet of Legal Realism that judges did not decide cases by applying preexisting and authoritative legal rules, but merely decided cases in whichever way they thought was best? Such considerations led to the derogatory restatement of the Realist position as holding that the law is determined by “whatever the judge ate for breakfast”.
Rules and the Rule-Following Argument
Authors: Schauer Frederick
Published: July 2016

Sparked by books by Saul Kripke and Crispin Wright, the last several years have seen a renewal of interest in Wittgenstein’s remarks on rules. A large part of the contemporary discussion centers on what it is to follow a rule, how it is that human beings come to follow them, and what facts, mental or otherwise, determine or explain why some but not other logically equivalent extensions of a rule are deemed to constitute a following of the rule.
A Critique of the Paternalistic Theories of Correction
Authors: Häyry Heta
Published: July 2016

Recently, in the American literature concerning the justification of civic correction, two views have been presented in defence of paternalism as a proper basis for punishing wrongdoers. The first of these was introduced in Herbert Morris’s paper “A Paternalistic Theory of Punishment” and the second in Jean Hampton’s “The Moral Education Theory of Punishment”. Both views are strongly opposed to the therapeutic, or rehabilitative, theories of correction, and both stress the personal autonomy of human beings and aspects of punishment which are supposed to respect that autonomy. The opposition to the ideology of therapy is mainly based on its inherent paternalism which is both deleterious and wrongful as far as autonomy is concerned.
What Good is Truth?
Authors: Kramer Matthew H.
Published: July 2016

In the course of evolving an extensive theory of natural law, John Finnis declares that certain goods are self-evident. Among these basic values, the good of knowledge lends itself to a special argument—an argument directed against people who assail the ranking of knowledge as a good. Finnis maintains that anyone who seriously denies the goodness of truth or knowledge must contradict herself flagrantly in the act of putting forth her position. Skeptics therefore exclude themselves from participating genuinely in a debate over truth’s value. Although their self-disqualification never tout seul establishes the goodness of knowledge, it “should persuade the sceptic[s] to cut short idle doubting” (NLNR at 75; see also “Scepticism” at 267). Or so Finnis believes.
Langue et discrimination au Canada
Authors: Varennes Fernand de
Published: July 2016

[L]anguage is not merely a means of interpersonal communication and influence. It is not merely a carrier of content, whether latent or manifest. Language itself is content, a reference to loyalties and animosities, an indicator of social statuses and personal relationships, a marker of situations and topics as well as of the societal goals and the large-scale value-laden arenas of interaction that typify every speech community.

L’importance des droits en matière linguistique est fondée sur le rôle essentiel que joue la langue dans l’existence, le développement et la dignité de l’être humain. C’est par la langue que nous pouvons former des concepts, structurer et ordonner le monde autour de nous. Le langage constitue le pont entre l’isolement et la collectivité, qui permet aux êtres humains de délimiter les droits et obligations qu’ils ont les uns envers les autres, et ainsi vivre en société.
Positively Fabulous: Why It Is Good To Be a Legal Positivist
Authors: Allan James
Published: July 2016

‘Legal Positivism’ is a much abused term. It is often pejoratively invoked by those occupying both the natural law and critical legal studies ramparts. The former see it as a school of thought which ignores the role in law of those standards and values which have not been deliberately laid down or unintentionally evolved. Positivism, for them, fails because it is prepared to describe a legal world where moral values play no necessary part and where transcendent values may not exist at all. The latter group of critics, not too dissimilarly, see legal positivism’s doctrines as over-reliant on rules and too inclined to accept that a legal system somehow can generate a logically mandated code of answers.

In order to defend positivism it is advisable to start with an enunciation of its core precepts. With all that has been written attacking and supporting positivism though, this can be a contentious matter. So instead I shall defend one particular version of positivism, that of H.L.A. Hart. As Hart’s The Concept of Law, first published in 1961, is at worst one of the handful of great legal philosophy texts written in English this century and at best “the classic work of philosophical jurisprudence”, this preference for concentrating on the tangible and identifiable precepts of Hart over the woolly, elusive and frequently caricatured precepts of something disparagingly termed positivism has much to recommend it.
The Pragmatics of Promise
Authors: Conison Jay
Published: July 2016

The concept of promise stirs many to write. Among ethical theorists, a cottage industry flourishes, devoted to answering Hume’s skeptical questions: What are promises? and Why are they binding? Among jurists and legal philosophers, the leading questions have been: When should promises be enforced? and What is the relationship between promissory and other forms of obligation? Among linguists and philosophers of language, the focus is different still. These scholars ask: What is the logical structure of the speech act of promising? and To what extent is promising a universal linguistic phenomenon?

This widespread interest in promises and promising is driven by several factors. One is a belief that the moral and political stakes are high. Promising is not only a common way by which we come to have obligations. It is the simplest, most direct, and most individualistic way in which we voluntarily come to have obligations. If one wishes to account for social, political or moral obligation in a way that maximizes the scope of individual liberty, one likely will focus on promissory obligation and its potential to serve as basis for more complex—even non-voluntary—types of obligation.

Another factor contributing to the interest in promising is the emergence of speech act theory as a framework for philosophical, linguistic, and to some extent jurisprudential, analysis. Speech act theory treats language as a system of verbal acts that effect changes in the world. A person cannot utter “Let there be light,” and bring it about that there is light. But he might be able to utter “I hereby declare you husband and wife” and bring it about that Jones and Smith are married to each other. This perspective on language quickly leads to an interest in promising, since promising appears to be one of the most straightforward ways of altering the world through words. What seems simpler than changing one’s relationship by uttering “I promise to ϕ”?
Immigration, Multiculturalism, and the Social Contract
Authors: Heath Joseph
Published: July 2016

Since the failure of the Meech Lake constitutional reforms and the crisis of national unity prompted by the most recent Quebec referendum, the Canadian Multiculturalism Act has been subjected to particularly intense and hostile scrutiny. While some of the criticism of this policy reflects merely parochial adherence to particular cultural or religious traditions, some of it has raised more significant doubts about the internal coherence, efficacy, and overall desirability of the policy. Most importantly, the multiculturalism policy is faulted for attempting to pursue two simultaneously unachievable goals, viz., to integrate ethnic minority groups into the dominant institutions of the society, while at the same time to protect them against various pressures to assimilate to the dominant culture. Critics have pointed out that social institutions and cultural values are interdependent. Not only do cultural value systems provide the central legitimations for social institutions, but the internalization of these values through socialization processes provides agents with their primary motivation for conforming to institutional expectations. This means that integrating an agent into a system of institutions can only be achieved by assimilating the agent to its underlying cultural system.
Parents’ Rights and Children’s Interests
Authors: Jordan Michael David
Published: July 2016

When is a liberal democratic state justified in enforcing an educational policy on its citizenry? This question is especially relevant in contexts where religious minorities wish to receive exemptions from mandatory educational policies. Parents in such groups argue that these educational demands threaten the traditional ways of life of their communities, infringing on their parental right to raise their children as they see fit. Parents may also claim that their free exercise rights, as granted by the First Amendment, are violated by an educational policy that requires them to breach a religious command specifying a certain type of religious upbringing for their children. The customary way that both the courts and commentators have addressed this issue is to represent it as a conflict among four divergent interests: 1) The child’s interest both in an adequate education and in the maintenance of a stable family and cultural community; 2) the parents’ interest in controlling the upbringing of their children and in protecting their right to the free exercise of religion; 3) the community’s interest in preserving its identity; 4) and, the State’s interest, on the one hand, in educating its children in order to maintain an informed citizenry capable of participating in the economic and political spheres, and on the other hand, in the maintenance of diversity.

While each of these interests appears significant and relevant to the enforcement of an educational policy, I will challenge the traditional way of addressing this problem as a balancing of these interests. Instead, I argue that the interests of children should be given primacy, and only after these interests have been addressed can the interests of others be given weight in determining and enforcing an educational policy.
On the Possibility of a Criminal Law Defence for Conscientious Objection
Authors: Kugler Itzhak
Published: July 2016

In this paper, I will discuss the question of the response of the law to the social phenomenon of violation of the law from moral motives. This phenomenon is characterised by the fact that the motivation behind the violation of the law is the desire of the actor to act according to his moral beliefs. In the case of “normal” criminality, on the other hand, a person violates the law for non-moral reasons, e.g., to obtain an advantage, to release anger, etc. Within the category of morally-motivated violation, too, there are different types of breach. First, a distinction exists between “revolutionary disobedience” and other acts. “Revolutionary disobedience” might also be motivated by moral considerations, but it is differentiated in that it involves violations of the law which are intended to bring about a change in the existing regime. As opposed to this, there are violations of the law which are motivated by moral considerations, but which are perpetrated by people who are interested in the continuation of the existing regime and social structure in its entirety. I shall not deal with “revolutionary disobedience” in this paper.

Secondly, even within the group of violations from moral motives which do not constitute “revolutionary disobedience”, the present practice is to identify two types of breach: civil disobedience and conscientious objection. The main thrust of the distinction is this: in essence, civil disobedience is a political act, an appeal to the public, and its aim is to bring about a change in the law or in policy which seem to the violator to be wrong or immoral. Conscientious objection is a personal act. The violator feels that should he submit to the law, in the circumstances, he will be committing a moral wrong. The objector’s act is not motivated by a desire to influence the whole polity, but rather, by a desire to stay clean, and not to perpetrate, with his own hands, a moral wrong. In effect this is an act of the individual defending himself against coercive pressures to perform what he regards as a moral wrong.
Minorities In International Law
Authors: Simon Thomas W.
Published: July 2016

The ideology of ethno-nationalism creates a new world disorder. States and international organizations must find a way to deal with group conflicts to prevent ethno-nationalism from transmogrifying into ethnic cleansing and genocide. Minorities need protection against harm. The problem of minorities dominates many political conflicts.

The judiciary can provide a critical means of protection. Agreement comes readily over the general role for the courts in minority protection. Disagreement abounds over their specific role. Should courts, for instance, protect individuals but not specific groups? Should courts protect the identity of minority groups? The role of the judiciary becomes more tractable with a reorientation of our thinking by giving priority to the negative aspect of the minorities’ problem: the problem of injustice. Since group harm, and not group identity, lies at the heart of the difficulty, this is where the courts should look. Jurists become diverted in trying to define a minority in some positive terms when the harms that confront any minority are readily apparent.
Causation, Thin Skulls and Equality
Authors: Klimchuk Dennis
Published: July 2016

On May 3rd 1974 Mr. Blaue entered Ms Woodhead’s house, demanding that she have sexual intercourse with him. She refused, and he attacked her with a knife and fled. Wounded seriously, she staggered out of her house and collapsed on a neighbour’s lawn. She was taken by ambulance to a hospital, where she learned that she would require surgery. Upon being informed that a blood transfusion would be required, she refused, because permitting the procedure would have been contrary to her beliefs as a Jehovah’s Witness. She was told that if she refused a blood transfusion she would surely die. She said she preferred death to undergoing the procedure, and died early the next day.

As well as being an especially tragic case, R. v. Blaue raises several deep and important questions about the doctrine of causation in the criminal law. Did Blaue kill Woodhead? That is, was killing her among the things he did, an action of his rather than an event which followed his action, or an action of Woodhead’s? The general question underlying these more specific ones is: for which of the consequences of his action must a wrongdoer answer?
Is Judgment Inscrutable?
Authors: Stewart Hamish
Published: July 2016

Kant described the ability to move from theory to practice, to subsume particular facts under general principles, as “judgment”:

Between theory and practice, no matter how complete the theory may be, a middle term that provides a connection and transition is necessary. For to the concept of the understanding that contains the rule must be added an act of judgment by means of which the practitioner decides whether or not something is an instance of the rule.

But Kant had little to say by way of guidance for the exercise of judgment, because, in his view, judgment itself could not be completely theorized:

since further rules cannot always be added to guide judgment in its subsumptions (for that could go on indefinitely), there can be theoreticians who, lacking judgment, can never be practical in their lives, e.g., physicians or jurists, who, having done well in school, do not know how they should respond when they are asked for advice.
The Separation Thesis and the Limits of Interpretation
Authors: Marmor Andrei
Published: July 2016

There are many versions of legal positivism; perhaps as many as there are legal positivists around. All the versions of legal positivism, however, subscribe to the so-called Separation Thesis. This thesis basically maintains that detenriining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Legal positivists differ, however, and quite substantially, over the appropriate interpretation of this thesis. The so-called ‘strong’, or ‘exclusive’ version of legal positivism maintains that moral considerations never determine the legal validity of norms. ‘Soft’ positivists, on the other hand, do maintain that there is a close relation between legal validity and morality, but they hold that this relation is, at best, a contingent matter; it does not derive from the nature of law or legal reasoning as such. Soft-positivists claim that moral considerations determine legal validity only in certain cases, namely, in those cases which follow from the rules of recognition that happen to prevail in a given legal system.
All We Like Sheep
Authors: Waldron Jeremy
Published: July 2016

In an extreme case, … only officials might accept and use the system’s criteria of legal validity. The society in which this was so might be deplorably sheeplike; and the sheep might end in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.

The essence of legal positivism, wrote H.L.A. Hart, is a very simple contention: “[I]t is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality” (185-86).

It is tempting to treat this claim—which some have called “the separability thesis”—as a definitional truth about law, i.e., as a constraint on any adequate definition of the term “law.” On this understanding, the positivist maintains that one should not define “law" in a way that excludes some norms from the extension of this term simply because they do not reproduce or satisfy a particular moral demand. Similarly, on this understanding, one should not exclude a system of norms, S, from the extension of the term “legal system” on account of S’s failure to satisfy the demands of justice. Indeed, positivism entails not only that one should not exclude S on this ground, but also that the injustice of S is not even a reason for regarding S as a problematic or marginal or less-than-central case of “law.” The positivist holds that it is a mistake to build moral conditions into the definition of “law” in any way whatsoever.
Are There Necessary Truths About Rights?
Authors: Coyle Sean
Published: July 2016

The essay considers whether there are necessary truths about rights. The existence of rights is contingent, but our practices involving rights rest upon fundamental conceptual assumptions necessary to their coherence. Hohfeld’s analysis is proffered as the embodiment of those assumptions. An examination of the concept of necessity shows how those assumptions can be necessary truths about rights without being logically necessary.
Towards a Concept of Equality of Well-Being: Overcoming the Social and Legal Construction of Inequality
Authors: Rioux Marcia H.
Published: July 2016

The ways in which a society provides for people who, for one reason or another, are more socially and economically dependent throws into sharp focus the problems of equality as a political construct. The basic dilemma of social dependency is that of reconciling the responsibility of the state to ensure equality with the rights and needs of those who are dependent. The social, legal and economic policies in place at any given time in history reflect the ways that principles of justice have legitimated differential treatment. To study the case of intellectual disability, therefore, is to reflect upon the legal microcosm of the struggle for social justice and the parameters of political obligation to ameliorate inequality.
Sex Selection and theCharter
Authors: Boetzkes Elisabeth
Published: July 2016

One of the most perplexing difficulties for policy-making to emerge from the recent deliberations of Canadians over the new reproductive technologies is how to evaluate and if necessary, justify regulating, the practice of sex selection. Through the increasingly sophisticated reproductive technologies, gynosperm and androsperm may be separated and women artificially inseminated with the sperm most likely to result in a fetus of the favoured sex. Sex diagnosis may be performed on embryos in vitro, and selection for implantation made by reference to sex. And fetal monitoring may determine the sex of developing fetuses during pregnancy, thus allowing abortion of fetuses of the “wrong” sex. Recent Canadian trends in accessing and using sex selection technology, combined with sociological evidence showing a marked transcultural preference for male children, for male firstborns, and for more males than females within families of uneven sex ratios, alert us to the dangers of the practice of sex selection for women’s equality.
Realist Semantics and Legal Theory
Authors: Patterson Dennis M.
Published: July 2016

In “Legal Theory, Legal Interpretation, and Judicial Review”, David O. Brink advocates a central role in legal interpretation for considerations of human purpose. He states:

It is important to remember that the primary objects of legal interpretation – statutes, constitutional provisions, and precedents – like most objects of interpretation, are human artifacts, the products of purposeful activity. In interpreting the products of purposeful activity, we must appeal to the purposes which prompted and guided the activity whose product we are trying to understand.
Minority Rights: Caught Between Individual Rights and Peoples’ Rights
Authors: Pestieau Joseph
Published: July 2016

When the liberals of the 18th and the 19th centuries demanded that the rights of men, of citizens or of peoples be guaranteed, it was in opposition to the abuse of power. They proclaimed in the name of mankind rights inherent to individuals and nations. From the French Revolution to President Wilson, one might have believed that individuals and peoples had been winning their freedom together. Individuals participated as citizens of a single nation in the power of the state. This power enforced civil and political, private and public rights. The Old Regime had to be destroyed, the empires dismembered and the nations liberated so that the people could be organized into states. But in practice, things were not so simple.

Since all peoples could not become nation-states, it was hoped that minorities could be protected. But how can they be protected? Who will protect them? How can one define a minority? What rights should they have? Are the collective rights of a people or a minority compatible with individual rights? These are the questions that arise spontaneously and which will be discussed in the following pages. We shall find no simple answer, but rather shall see why the answer is so difficult.
Collective Rights and the Ancient Community
Authors: Berent Moshe
Published: July 2016

The principle of national self-determination asserts the collective right of the nation for self-government. This principle is now a corner-stone of modem political thought. The idea of “home rule” or the ideal of a self-governed political community is a very old one which originated in classical Greece. Yet the modern idea of the free self-governed community differs in some important aspects from the old one.

National sovereignty, or the community’s collective right of “home rule”, means today the right of the political community to its own State. The State, at least the modern liberal democratic Nation-State, is conceived as an instrument by which sovereignty is constituted and national interests are promoted. In this way antiquity poses an interesting problem, since the State is a product of the modern era and was hardly known in the ancient world. The absence of State was not accidental to the ancient community; it was accompanied by an adequate system of ideas concerning the nature of the political community.
The Perils of Postmodernity for Gay Rights
Authors: Mohr Richard D.
Published: July 2016

All at once they started yelling “faggot” and “fucking faggot”.... One of them missed me with a beer can .... College and my literary education agreed that I should see myself as a random conjunction of life’s possibilities, certainly an enviable, luxurious point of view. But it’s hard to draw on that as a model when four men are chasing you down the street. What life will that model sustain, and when aren’t we being chased?
Punishment and Inclusion: The Presuppositions of Corrective Justice in Aristotle and What They Imply
Authors: Curren Randall R.
Published: July 2016

There is a view of Aristotle’s conception of corrective justice which has enjoyed some following among tort theorists in recent years, according to which corrective justice isdistinctfrom distributive justice and entirelyindependentof it. The distinctness of the two is, of course, asserted by Aristotle in a well-known passage in theNicomachean Ethics, and no one could seriously doubt that he does take theformsof these two kinds of justice to be distinct:

What is just in distributions of common assets will always fit the [geometrical] proportion mentioned above,... On the other hand, what is just in transactions is certainly equal in a way, and what is unjust is unequal; but still it fits numerical proportion, not the [geometrical] proportion of the other species.
Shiner on ‘Detached Legal Statements’: A Defense of Raz
Authors: Culver Keith C.
Published: July 2016

In his recently published book Norm and Nature, Roger Shiner contends that legal positivists cannot account adequately for the internal point of view which characterizes legal agents’ attitude of commitment to legal norms. Shiner expects that an adequate legal theory will “reproduce the way in which law functions in the lives of those who have the internal point of view to law” (NN, 137). He calls this the “reproduction demand.” In his analysis of Joseph Raz he claims that such “sophisticated positivists” cannot maintain a theory of legal statements which are “detached” from moral commitment to the legal norms they refer to. The failure of the theory of detached legal statements leaves positivists without an adequate account of the necessarily personal aspect of the internal point of view in legal systems—a point of view which according to Shiner requires normative commitment to the justification of the legal norm.
Dworkin on Disablement and Resources
Authors: Tremain Shelley
Published: July 2016

In “Why Should Liberals Care about Equality?,” Ronald Dworkin distinguishes between two forms of liberalism, one form based on neutrality, and the other one based on equality. As Dworkin explains it, proponents of both forms argue against legal incursion into private morality, and argue in favour of increased sexual, political, racial, and economic equality; however, they disagree about which of these traditionally liberal values is the fundamental one, and which is its derivative. Liberalism based on neutrality takes as its fundamental value that one which holds that government must remain neutral with respect to moral issues, and it supports egalitarian measures only insofar as they can be shown to derive from that constitutive principle. For liberalism based on equality, the fundamental value is that one which holds that government must treat each of its citizens as an equal; egalitarian liberalism insists upon moral neutrality only to the extent that equality requires it.
Theoretical Underpinning of Intellectual Property: “I am a Pragmatist But Theory is my Rhetoric”
Authors: Fitzgerald Brian
Published: July 2016

This article emanates from a Symposium hosted by Professor Margaret Ann Wilkinson and sponsored by the University of Western Ontario Law School and Centre for Innovation Law and Policy. The Symposium and the resulting articles aim to explore the theoretical dimensions of intellectual property law. This article argues, in contrast to the learned scholarship of my co-panellist, that theorising about intellectual property law is an innately political act that implements a pragmatic moment fueled by economic, social and cultural factors.
Montaigne’s Inquiry into the Sources of Normativity
Authors: Delacroix Sylvie
Published: July 2016

How can one explain the normative outcome of the initial law-creating practices without any reference to some pre-existing natural laws “guaranteing” the lawgiver’s enterprise? The challenge which the rejection of the classical natural law model represents amounts to explaining the normative dimension of law despite the arbitrariness of the social practices from which it stems. Montaigne gave both an exemplary formulation and a peculiar solution to that question: in order to reconstruct the authority of law despite the “dangerous arbitrariness” from which it flows, Montaigne decides to avoid any inquiry regarding the original law-creating practices by positing a “law of pure obedience”.
Principle, Pragmatism, and Paralysis: Stanley Fish on Free Speech
Authors: Robertson Michael
Published: July 2016

Unlike those who read Fish as declaring that free speech is an illusion or incoherent, I argue that Fish provides a superior explanation of what makes free speech possible, and a more insightful description of what judges are doing when they decide cases under laws which protect it. In this paper I first identify the central philosophical commitment from which Fish derives most of his controversial positions. Next, I demonstrate how his position on free speech in particular flows from this central philosophical commitment. Finally, in the main section of the paper, I consider three serious objections to Fish’s analysis of free speech, and consider how Fish might respond to them. I seek to defend Fish's denial that the relationship between freedom and constraint is one of simple opposition; rather he claims that constraint is the precondition for freedom. He therefore sees all speech as made under conditions of constraint. He also sees a commitment to censoring some speech as inherently contained within any commitment to freedom of speech, and so toleration of all viewpoints is impossible. He denies that any free speech principle can be neutral regarding viewpoints, and he denies that any "free market of ideas" is without bias and exclusions. He therefore rejects the accounts given by American courts deciding cases under the First Amendment which stress a fidelity to neutral principle. Since there are no such principles in existence, such courts are really doing one of two things. Either they are pragmatically advancing a partisan agenda, and constraining some speech in a way which is obfuscated, or their false belief in the existence of neutral principles paralyses them in the face of danger and prevents them from performing this pragmatic exercise.
The Left and the Question of Law
Authors: Dyzenhaus David
Published: July 2016

This article examines the work of Martin Loughlin, a prominent public lawyer who works in the leftwing tradition of political and legal theory, often associated with the London School of Economics and Political Science. It argues that tensions in Loughlin’s work exemplify certain trends within the left, the result of the left having lost faith in its positive political programme, one which was supposed to be delivered by Parliament. What remains once this faith is lost is a traditional hostility to liberalism and judicial review in combination with a sense that the realm of politics-the political-is valuable. This combination explains the turn taken by certain leftwing theorists to Carl Schmitt’s authoritarian understanding of politics and to a kind of romanticism about tradition. Given the risks inherent in this turn, would be better for the left both to return to its roots in a positive programme. This move would require the left to engage properly in the contemporary debate about the normativity of law.
On the Separability of Law and Morality
Authors: Kramer Matthew H.
Published: July 2016

If there is one doctrine distinctively associated with legal positivism, it is the separability of law and morality. Both in opposition to classical natural-law thinkers and in response to more recent theorists such as Ronald Dworkin and Lon Fuller, positivists have endeavored to impugn any number of ostensibly necessary connections between the legal domain and the moral domain. Such is the prevailing view of legal positivism among people familiar with jurisprudence. During the past couple of decades, however, that prevailing view has come into question among some estimable legal positivists. In particular, Joseph Raz and his followers have queried the importance and the very tenability of an insistence on the separability of law and morality. The present article maintains that the traditional view of legal positivism is correct and that the recent skepticism about it on the part of some positivists is unfounded. When the notion of the disjoinability of law and morality is understood properly as a large array of theses, it proves to be resistant to the challenges that have been mounted against it.