The reversal of Roe v. Wade raises the prospect that other due process guarantees upon which individuals have organised their lives, including the constitutional rights to same-sex intimacy and marriage, will be overturned. These potential upheavals in the hard-won legal infrastructure of basic social status call for a careful look at reliance arguments for sustaining constitutional precedent. When does reliance on a judicial decision provide reason for a court to sustain a precedent in the face of substantial doubts or convictions (...) that the original decision was importantly mistaken?Our commitments to democratic law pose distinctive challenges for reliance arguments in the public law domain that do not burden reliance arguments in the private law domain. A persuasive reliance argument in the public law context must offer a merits-independent rationale identifying limited circumstances in which reliance would justify honouring a prior (mistaken) decision and honouring it prospectively, into the future. I detail the challenges and offer a democratic account to identify when overturning a mistaken decision would impose an unfair and inequitable hardship. On this account, abortion, contraception, and same-sex intimacy rights warrant continued affirmation given reliance behaviours, but not other rights, including rights to gun ownership and freedom of contract. (shrink)

One of the theoretical developments associated with the law of the European Union has been the flourishing of legal and constitutional theories that extol the virtues of pluralism. Pluralism in constitutional theory is offered in particular as a novel argument for the denial of unity within a framework of constitutional government. This paper argues that pluralism fails to respect the value of integrity. It also shows that at least one pluralist theory seeks to overcome the incoherence of pluralism by implicitly (...) endorsing monism. The integrity and coherence of European law is best preserved by considering that both the national legal order and the international or European legal orders adopt sophisticated views of their own limits. (shrink)

Ronald Dworkin is one of the most frequently cited legal philosophers. His work, notably his attack on H. L. A. Hart's positivist theory of law, has received considerable attention, earning him praise as well as trenchant criticism. Instead of discussing the analytical validity of Dworkin's claims, though, we propose an alternative reading of his jurisprudential writings that emphasises their rhetorical nature. After delineating the rhetorical context of his work, we provide several illustrations of his use of rhetorical strategies and, with (...) the help of sentiment‐analysis techniques, emotional language. While resorting to classical rhetorical tactics, Dworkin's rhetoric, we argue, appealed to the emotional power of rights talk at a time when the notion of rights enjoyed greater resonance with his audience. (shrink)

Ratio Juris, Volume 34, Issue 4, Page 356-385, December 2021.

Law being a derivative feature of reality, it exists in virtue of more fundamental things, upon which it depends. This raises the question of what is the relation of dependence that holds between law and its more basic determinants. The primary aim of this paper is to argue that grounding is that relation. We first make a positive case for this claim, and then we defend it from the potential objection that the relevant relation is rather rational determination (Greenberg 2004, (...) 2006). Against this challenge, we argue that the apparent objection is really no objection, for on its best understanding, rational determination turns out to actually be grounding. Finally, we clarify the framework for theories on law-determination that results from embracing our view; by way of illustration, we offer a ground-theoretic interpretation of Hartian positivism, and show how it can defuse an influential challenge to simple positivist accounts of law. (shrink)