Legal philosophy
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Rights for Us, or Limits on Them?
I blogged recently about whether, in Canadian constitutional law, corporations can challenge laws as violations of the freedom of religion. The answer, I said, is sometimes yes, and sometimes maybe, depending on the nature of the statute at issue, and maybe on other things too. But does that make sense in theory? A corporation itself… Continue reading
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R.I.P., Ronald Dworkin
“Yes, man is mortal, but that would be just half the trouble. What’s bad is that he is sometimes suddenly mortal; there’s the rub!” Woland’s grim words from Bulgakov’s The Master and Margarita ring very true indeed today. Ronald Dworkin’s death this morning comes an absolute shock. Neither nor, I believe, anyone I know was… Continue reading
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Freedom and Institutions
The who study the question of religious freedom often wonder why it should benefit and protect not only individual believers, but also religious institutions. Application of religious freedom to institutions such as the Catholic Church―institutions which, needless to say, are not often themselves models of internal liberalism, equality, or democracy―generates a good deal of criticism.… Continue reading
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A Purely Hypothetical Maiden
In one of my first posts, I wrote―referring to the suggestion in Stanislaw Lem’s The Cyberiad that there are “three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical, … all, one might say, nonexistent, but each nonexist[ing] in an entirely different way”―that “judicial activism is something like the dragon of constitutional… Continue reading
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In Cautious Praise of Rhetoric
Rhetoric―the art of packaging one’s arguments so as to make them more attractive―has a bad name. It is associated with deceit at worst, and meaninglessness at best. It is seen as a distraction. Why should we care about the way arguments are packaged―surely what really matters is their substance? A student put something like this… Continue reading
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What Sort of Rules Are in a Constitution?
A very interesting post about constitutionalism by C.J. Peters on his new MODblog makes a couple of claims that is worth addressing at some length. Constitutional law, prof. Peters suggests, consists of “legal rules that are both entrenched and secondary” (his emphasis). “Secondary” rules refers to H.L.A. Hart’s category for rules that, unlike “primary” rules which impose duties to… Continue reading
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The Wrongs of Rights?
The New York Review of Books has an interesting piece by David Cole on Michael J. Klarman’s From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. The thesis of the book (which I haven’t read, so I’m relying on prof. Cole’s summary) is that litigation in pursuit of the recognition… Continue reading
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The Faint of Heart
Justice Scalia of the Supreme Court of the United States famously admits to being a “fainthearted” originalist, who would hold that the punishment of flogging is “cruel and unusual” and thus prohibited by the Eighth Amendment to the U.S. Constitution, even though, at the time of its ratification, the Amendment was not generally understood to… Continue reading
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Mass Confusion
There is a long article in the New York Times about the increasing opposition to the use of exceedingly long prison sentences―often life imprisonment without parole―as punishment for all sorts of crimes, often not involving any violence, including drug-related offences, resulting in the phenomenon of “mass incarceration.” The article highlights the findings of social scientists… Continue reading
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Hart and Voice
As part of its commemoration of the 50th anniversary of H.L.A. Hart’s The Concept of Law, the Oxford University Press has put online the recordings of a substantive interview David Sugarman took with Hart, in 1988. (You have to scroll down to get to the audio links.) There’s a lot of interesting stuff there. Though much… Continue reading
Double Aspect 