The Political Conception of Human Rights and Its Rule(s) of Recognition

The political conception makes sense of human rights strictly in light of their role in international human rights practice, more specifically by describing how they justify interventions against states that engage in or fail to prevent human rights violations. This conception is, therefore, normative and fact-dependent. Beyond this, it does not seem to have much to say about the actual nature of international human rights practice. The argument sustained here reinterprets the political conception by resorting to a heuristic device that explains how normativity can be fact-dependent: the Hartian model. The characteristics of H.L.A. Hart’s rule of recognition are useful to determine the characteristics of human rights practice from the viewpoint of the political conception. Also, they help to overcome some of the problems typically faced by the political conception, such as whether there is only one practice or many, whether the notion of human rights becomes too contingent on the way the world is currently organised, how agents can violate content-changing practices, or how reliance on current states of affairs leaves room for criticism of those states of affairs.

Moving Along the Continuum of Loyalty From a Standard Towards Rules

This article focuses on the location of the duty of loyalty—a unique legal norm in Common Law jurisdictions—both actual and desirable, on the continuum between rules and standards. A rule is a relatively ‘closed’ technical norm, at a high level of specificity; it requires little judicial discretion. A standard is an ‘open’ norm, with a greater degree of flexibility, that requires the exercise of discretion. The insights from this jurisprudential perspective are used to reveal the preferred way for further developing the duty of loyalty. The article explains that ‘loyalty,’ intuitively classified as a ‘pure’ standard, has been reconstructed over time as more specific rules. Moreover, it suggests that, ideally, this movement should continue; namely, when applying loyalty to a specific case, courts should include informative content that would promote predictability. It then illustrates that, unfortunately, this road is not always taken by the courts. A decision to retain loyalty as an ad hoc standard, or an inverse attempt to delineate the boundaries of this norm, has implications on the certainty, consistency, and ethical content of the law. Considering that this duty spreads across different legal fields, personal and commercial, the significance of this discussion becomes all the more evident.

The Rule of Law for All Sentient Animals

This paper argues for a theory of the rule of law that is inclusive of sentient non-human animals. It critiques the rule of law theories of Fuller, Waldron, and Allan, by showing that their theories presuppose that the legal subject is a person who can be guided by legal norms. This unduly excludes non-human animals, as well as certain humans who do not have rational capacities. If we view the basic idea of the rule of law as restraining arbitrary power, then rule of law theories need to give an account of who can be a potential victim of such power. Non-human animals and humans, whether endowed with rational capacities or not, can all be victims of arbitrary power. So, we need a new rule of law theory which is inclusive of all sentient animals, humans and non-human alike. This paper sets out such an inclusive theory.

Law, Freedom, and Slavery

This paper argues that the wrong of slavery lies in the denial of the good of law to the slave. Defending this proposition will require the positing of three related claims: (i) that law is good, (ii) that the good of law is denied to the slave, and (iii) that the denial is wrong. This paper will defend the main proposition by defending its three constituent claims. On claim (i), the paper will relate the form of law to the formation of freedom. On claim (ii), the paper will relate law’s objectivity to legal subjectivity. On claim (iii), the paper will relate the state of nature to the state of civil society.

Why Is Aboriginal Title Property if It Looks Like Sovereignty?

According to the Supreme Court of Canada, Aboriginal title is a property right, albeit of a distinctive kind. Most significantly, the right is subject to an inherent limit: title lands cannot be used in a way that deprives present and future generations of the right to use the land. Aboriginal title is also encumbered by a restraint on alienation, and has its source in Aboriginal legal systems that predate and survive the assertion of Crown sovereignty. In this paper, we argue that these features of Aboriginal title are not burdensome judicial innovations on a property right, but are instead the essential contours of a sovereign right. That is, the Court’s own description of Aboriginal title does not comport with sound theoretical understandings of a property right. Aboriginal title is much more akin to a right of sovereignty—the right to make laws about the use of a territory. Aboriginal title is the right of law-making jurisdiction over the title lands. The existing literature, while edging towards the view that Aboriginal title is a sovereign right, has lacked the unifying theoretical basis needed to decisively dispatch the Court’s property paradigm. In particular, all extant accounts find the inherent limit inexplicable. The account in this article theorizes and explains the inherent limit, as well as all of the sui generis elements of Aboriginal title, and shows their interconnectedness. Our view additionally answers a number of questions that the Court’s property paradigm does not, including: (1) what laws primarily govern title lands; (2) who has standing to question whether any particular use of title land violates the inherent limit; (3) what is the status of private land interests that overlap with Aboriginal title lands; and (4) how should the doctrine of Aboriginal title be updated in light of jurisprudential developments emphasizing that Indigenous peoples never ceded their sovereignty?

Radbruch’s Formula Revisited: The Lex Injusta Non Est Lex Maxim in Constitutional Democracies

According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit.1 While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory,2 natural law theorists such as John Finnis opine that the lex injusta non est lex3 maxim has been no more than a subordinate theorem of classical natural law theory.4 In Finnis’s view, unjust laws give rise to legal obligation “in a legal sense.”5

Justifying (or Not) the Office of Trusteeship With Particular Reference to Massively Discretionary Trusts

In a recent article2 I examined the nature of private law offices, and here I extend that analysis to consider the trustee-beneficiary relationship where the trust is of a kind that Lionel Smith has called a “massively discretionary trust.”3 After considering some of the problematic legal features of such trusts, I shall probe the morally problematic features that these trusts present.

The Question To Be Faced Is One of Fact: H.L.A. Hart’s Legal Theory Through His View of International Law

H.L.A. Hart says that The Concept of Law is focused on municipal or domestic law because that is the “central case”1 for the usage of the word ‘law.’ At the beginning of the book he states that “at various points in this book the reader will find discussions of the borderline cases where legal theorists have felt doubts about the application of the expression ‘law’ or ‘legal system,’ but the suggested resolution of these doubts, which he will also find here, is only a secondary concern of the book.”2 Yet among those borderline cases there is one that is rather intriguing, since Hart closely discusses a particular instance of them: it is international law, to which he devotes an entire chapter—the final one—of The Concept of Law. My goal in this article is therefore to make clear why the ‘resolution’ of the borderline case of international law is not entirely ‘secondary’ to Hart’s overall project in The Concept of Law and, in so doing, to show that Chapter X is not as unhappy as many think it is.