Like many recent works in legal theory, especially those focusing on the apparently conflicting schools of legal positivism and natural law, Waluchow’s Inclusive Legal Positivism begins by admitting a degree of perplexity about the field; indeed, he suggests that the field has fallen into “chaos”. Disturbingly, those working within legal theory appear most uncertain about what the tasks of their field are. Legal philosophers often seem to suspect strongly that at least their colleagues in the field are confused about those (...) tasks. As a result, many recent books in legal theory are in large part exercises in legal metatheory, devoting many pages to attempts to define the purposes and goals of the field. Waluchow follows this trend and begins by expressing a desire to clarify the issues that separate those trying to give an account of the nature of law. His ultimate goal is to defend a version of legal positivism, inclusive legal positivism, that he thinks is at least implicit in H. L. A. Hart’s work. (shrink)

In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different (...) theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy. (shrink)

Constitutional Charters or Bill of Rights have been applauded because of the protection they provide to minorities and also in ensuring and protecting fundamental rights, however, Charters have been criticized for being considered morally and politically objectionable. The author responds to Charter critics most serious objections and offers some reasons for adopting an alternative framework.

In this paper, I defend H. L. A. Hart against two prevalent criticisms of his views on social rules and the obligations with which these rules are often associated. These criticisms, I argue, rely on misunderstandings ormischaracterizations of what Hart actually intended. These misunderstandings are plausibly explained by a failure on the part of his critics to appreciate fully two of the valuable lessons Hart sought to communicate in his inaugural lecture. First, words like ‘rule’ and ‘obligation’ should not be (...) removed from their various contexts of use and subjected to abstract philosophical definition and analysis. Second, when analyzing assertions in which such words figure in both legal practice and theory, it is crucial to bear in mind the different functions these assertions can be made to serve and the different purposes to which they can be put. -/- . (shrink)

Readings in Health Care Ethics provides a wide-ranging selection of important and engaging contributions to the field of health care ethics. The second edition adds a chapter on health care in Canada, and the introduction has been expanded to include discussion of a new direction in feminist naturalized ethics. The book presupposes no prior knowledge, only an interest in the bioethical issues that are shaping our world.

In this paper, I defend H. L. A. Hart against two prevalent criticisms of his views on social rules and the obligations with which these rules are often associated. These criticisms, I argue, rely on misunderstandings ormischaracterizations of what Hart actually intended. These misunderstandings are plausibly explained by a failure on the part of his critics to appreciate fully two of the valuable lessons Hart sought to communicate in his inaugural lecture. First, words like ‘rule’ and ‘obligation’ should not be (...) removed from their various contexts of use and subjected to abstract philosophical definition and analysis. Second, when analyzing assertions in which such words figure in both legal practice and theory, it is crucial to bear in mind the different functions these assertions can be made to serve and the different purposes to which they can be putResumen:En este ensayo el autor defiende a H. L. A. Hart de dos críticas recurrentes a su teoría de las normas sociales y a las obligaciones que regularmente acompañan a estas normas. Ambas críticas, sostiene el autor, descansan sobre malos entendidos o caracterizaciones equivocadas de lo que Hart en realidad se propuso. Estos malentendidos son explicados plausiblemente a través de la falta de capacidad de los críticos de apreciar plenamente dos de las valiosas lecciones que Hart deseaba expresar en su lectura inaugural. En primer lugar, palabras como “norma” y “obligación” no deberían ser sacadas de sus distintos contextos de uso para someterlas a definiciones abstractas y al análisis filosófico. En segundo lugar, cuando se analizan enunciados en los cuales figuran tales palabras, tanto en la teoría como en la práctica del derecho, resulta primordial tener en mente las diversas funciones que esos enunciados puedan tener y los diferentes propósitos para los cuáles esos enunciados fueron proferidos. (shrink)

An attempt top reconcile Dworkin with Hart's legal positivism.

This book assembles leading legal, political, and moral philosophers to examine the legacy of the work of Ronald Dworkin. They provide the most comprehensive critical treatment of Dworkin's accomplishments focusing on his work in all branches of philosophy, including his theory of value, political philosophy, philosophy of international law, and legal philosophy. The book's organizing principle and theme reflect Dworkin's self-conception as a builder of a unified theory of value, and the broad outlines of his system can be found throughout (...) the book. The first section addresses the most abstract and general aspect of Dworkin's work--the unity of value thesis. The second section explores Dworkin's contributions to political philosophy, and discusses a number of political concepts including authority, civil disobedience, the legitimacy of states and the international legal system, distributive justice, collective responsibility, and Dworkin's master value of dignity and the associated values of equal concern and respect. The third section addresses various aspects of Dworkin's general theory of law. The fourth and final section comprises accounts of the structure and defining values of discrete areas of law. (shrink)

In this paper I defend constitutional review against the charge that it neces- sarily runs afoul of democratic principle. In so doing, I draw both on Dworkin’s theory of constructive interpretation as well as Raz’s theory of detached normative statements and reasoning from a point of view. After arguing that constructive interpretation can be undertaken from a point of view other than that of the interpreter, I go on to argue for the following claims: (1) Constitutional interpretation and review can (...) be undertaken from the point of view of the democratic community and its constitutional morality; (2) This process can be undertaken by a judge without the deliberate intrusion of her own personal moral convictions; (3) When undertaken from this point of view, constitutional interpretation and review can be rendered consistent with democracy; and (4) This is so even when these activities require a good deal of substantive moral reasoning and argument on the part of judges. (shrink)

This distinctively Canadian text provides the reader with timely, up-to-date, theoretical, empirical and legal material on issues of relevance to ethicists in Canada today. The format is clear, accessible and user-friendly.

The Dimensions of Ethics offers a concise but wide-ranging introduction to moral philosophy. In clear and engaging fashion, the author first examines the scope of ethical theory, and explores central metaethical questions such as the issue of relativism, and the relationship between morality and religion. He then turns to an exploration of five theoretical approaches, in each case providing a consideration of various objections that have been advanced as well as a sympathetic exposition of the core principles of each approach. (...) Throughout he uses a wide range of examples, and integrates references to issues in applied ethics with his discussions of ethical theory. (shrink)

The author's primary objective is to show that versions of legal positivism, according to which legal validity sometimes depends on moral validity (Inclusive Legal Positivism), are theoretically preferable to those forms of positivism (Exclusive Legal Positivism) which deny this possibility. The author attempts to substantiate this conclusion by demonstrating that Inclusive Legal Positivism provides a better theoretical account of challenges to legal validity based on a document like the Canadian Charter of Rights and Freedoms. His secondary aim is to show (...) that the choice between Inclusive and Exclusive Legal Positivism can have important consequences for legal practice. (shrink)

In his recent book, Harm to Others, Joel Feinberg addresses the question whether a person can be harmed after his or her own death, that is, whether posthumous harm is a logical possibility. There is a very strong tendency to suppose that harm to the dead is simply inconceivable. After all, there cannot be harm without a subject to be harmed, but when death occurs it appears to obliterate the subject thus excluding the possibility of harm. On the other hand, (...) there is an inclination to believe that harmful events can indeed occur posthumously. As Aristotle observed, “a dead man is popularly believed to be capable of having both good and ill fortune—honour and dishonour and prosperity and the loss of it among his children and descendants generally—in exactly the same way as if he were alive but unaware or unobservant of what was happening”. Feinberg sides with Aristotle on this issue and develops an intriguing theory purporting to show how posthumous harms are possible. My intention in this paper is to argue that Feinberg's account meets with such serious difficulties that we must either develop an alternative theory or agree with those who claim that death logically excludes the possibility of harm. I shall begin in §2 with a brief sketch of Feinberg's provocative theory. This will be followed in §3 by my comments and criticisms. Section 4 will close with suggestions about where Feinberg's account goes wrong and how it might be repaired. (shrink)

This paper is an exploration of the concept equal value as it applies to pay equity. Following a brief discussion of several standard objections to pay equity legislation, the paper considers a number of different criteria which are employed in determining equal value or worth. Two in particular are isolated for extended discussion: the desert and the contribution criteria. The paper concludes with a major concern about the phrase equal value to the employer. This concern becomes pressing once the desert (...) and contribution criteria are distinguished. (shrink)

Recent years have witnessed major developments in philosophical inquiry concerning the nature of law and, with the growth of transnational legal institutions, in the phenomenon of law itself. This volume gathers leading writers in the field to take stock of current debates on the nature of law and the aims and methods of legal philosophy.

Readings in Health Care Ethics provides a wide-ranging selection of important and engaging contributions to the field of health care ethics. The second edition adds a chapter on health care in Canada, and the introduction has been expanded to include discussion of a new direction in feminist naturalized ethics. The book presupposes no prior knowledge, only an interest in the bioethical issues that are shaping our world.

Well and Good presents a combination of "classic" and little-known but real-life cases. Included are a range of cases involving nurses and other health professionals as well as many involving doctors. The cases in the main body of the book are accompanied by the editors' impartial discussions of the issues involved. The final section is comprised of unanalysed cases for further study. For the new edition, the introduction has been expanded to include discussions of feminist bioethics and of virtue ethics, (...) alongside the Kantian, Rossian and utilitarian frameworks discussed in previous editions. Most of the existing cases have been updated to reflect these additional foci, and four analysed cases have been added. Several cases have been added to the group of unanalysed cases, which now includes questions for discussion. Among cases new to this edition are the "mercy killing" case of Robert Latimer, the assisted suicide of Sue Rodriguez, the pregnancy solvent-abuse case of Ms. G., and a case involving sex-selection and abortion on gender grounds. (shrink)

Well and Good presents a combination of "classic" and little-known cases in health care ethics. These cases, accompanied by information about the major ethical theories, give students a chance to grapple with the ethical challenges faced by health care practitioners, policy makers, and recipients. The authors' narrative style and leading questions provoke student interest and engagement, while allowing instructors the freedom to draw from the theoretical perspectives they consider most useful. This fourth edition includes an expanded discussion of feminist ethics, (...) and new cases addressing pandemic ethics, humanitarian aid, the social determinants of health, research and aboriginal communities, and a number of other emerging issues. (shrink)

Constitutional Charters or Bill of Rights have been applauded because of the protection they provide to minorities and also in ensuring and protecting fundamental rights, however, Charters have been criticized for being considered morally and politically objectionable. The author responds to Charter critics most serious objections and offers some reasons for adopting an alternative framework.Resumen:Las cartas constitucionales o declaraciones de derechos han sido aplaudidas por la protección que brindan a las minorías y su función de asegurar derechos fundamentales; sin embargo, (...) también han sido criticadas por ser consideradas moral y políticamente refutables. El autor responde a las objeciones más serias de los críticos y ofrece algunas razones para adoptar un marco alternativo, de acuerdo al cual, las cartas no aspiran a establecer puntos de acuerdo y compromisos previos. (shrink)

-/- In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be (...) claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy. (shrink)

This is a collection of essays based on papers read at a conference on freedom of expression held at McMaster University in May, 1990. Its contributors are philosophers and lawyers, each of whom brings his unique perspective to bear on issues surrounding the justification of free expression and the bases, both legal and moral, for restricting or broadening its scope. Joseph Magnet, Wayne Sumner, and James Weinstein discuss legal attempts in America and Canada to restrict hate literature, while David Richards (...) brings a specifically American perspective to wider issues of free speech. Joseph Raz and Jan Narveson attempt to ground their theories of free speech in a wider political theory, while Leslie Green and Roger Shiner discuss more specific aspects of free expression, namely, the freedom to express oneself in the language of one's choice and freedom of commercial expression. (shrink)

In this paper I defend a liberal theory about how legal rules can and ought to be interpreted. The theory emerges from a critical examination of H. L. A. Hart's influential views on the limited but unavoidable indeterminacy of legal rules. I begin with a brief sketch of Hart's early theory (as it is traditionally understood) offering various suggestions as to how it might usefully be modified. Next, several possible objections to my modifications are sketched and criticized. Finally, reasons are (...) provided for supposing that the modified theory may well represent Hart's current position. (shrink)

Courts are sometimes called upon to review a law or some other official act of government to determine its constitutionality, its reasonableness, rationality, or its compatibility with fundamental principles of justice. In some jurisdictions, this power of judicial review includes the ability to ‘strike down’ or nullify a law duly passed by a legislature body. This article examines this practice and various criticisms of it, including the charge that it is fundamentally undemocratic. The focus is on the powerful critique mounted (...) by Jeremy Waldron, the foremost philosophical opponent of judicial review. (shrink)

The last decade has witnessed a particularly intensive debate over methodological issues in legal theory. The publication of Julie Dickson's Evaluation and Legal Theory (2001) was significant, as were collective returns to H.L.A. Hart's 'Postscript' to The Concept of Law. While influential articles have been written in disparate journals, no single collection of the most important papers exists. This volume - the first in a three volume series - aims not only to fill that gap but also propose a systematic (...) agenda for future work. The editors have selected articles written by leading legal theorists, including, among others, Leslie Green, Brian Leiter, Joseph Raz, Ronald Dworkin, and William Twining, and organized under four broad categories: 1) problems and purposes of legal theory; 2) the role of epistemology and semantics in theorising about the nature of law; 3) the relation between morality and legal theory; and 4) the scope of phenomena a general jurisprudence ought to address. (shrink)

Part I. Furthering debate between leading theories of Law -- The Explantory Role of the Weak Natural Law Thesis -- In Defense of Hart -- Law's Authority is not a Claim to Preemption -- The Normative Fallacy Regarding Law's Authority -- The Problem about the Nature of Law vis-à-vis Legal Rationality Revisited : Towards an Integrative Jurisprudence -- Part II. The Power of Legal Systems -- Law as Power : Two Rule of Law Requirements -- A Comprehensive Hartian Theory of (...) Legal Obligation : Social Pressure, Coercive Enforcement, and the Legal Obligations of Citizens -- Law and the Entitlement to Coerce -- Part III. Conceptual Analysis -- Farewell to Conceptual Analysis (in Jurisprudence) -- What Do We Want Law to Be? Philosophical Analysis and the Concept of Law -- Part IV. New Directions -- Legal as a Thick Concept -- Making Old Questions New : Legality, Legal System, and State -- Legal Disagreements and the Dual Nature of Law -- Is There One Right Answer to the Question of the Nature of Law? (shrink)