Nozick’s Reply to the Anarchist

Central to Nozick’s Anarchy, State and Utopia is a defense of the legitimacy of the minimal state’s use of coercion against anarchist objections. Individuals acting within their natural rights can establish the state without committing wrongdoing against those who disagree. Nozick attempts to show that even with a natural executive right, individuals need not actually consent to incur political obligations. Nozick’s argument relies on an account of compensation to remedy the infringement of the non-consenters’ procedural rights. Compensation, however, cannot remedy the infringement, for either it is superfluous to Nozick’s account of procedural rights, or it is made to play a role inconsistent with Nozick’s liberal voluntarist commitments. Nevertheless, Nozick’s account of procedural rights contains clues for how to solve the problem. Since procedural rights are incompatible with a natural executive right, Nozickeans can argue that only the state can enforce individuals’ rights without wronging anyone, thus refuting the anarchist.     

History’s Challenge to Criminal Law Theory

After briefly sketching an historical account of criminal law that emphasizes its longstanding reach into social, commercial and personal life outside the core areas of criminal offenses, this paper explores why criminal law theory has never succeeded in limiting the content of criminal codes to offenses that fit the criteria of dominant theories, particularly versions of the harm principle. Early American writers on criminal law endorsed no such limiting principles to criminal law, and early American criminal law consequently was substantively broad. But even with the rise of theories in the mid-nineteenth century that sought to limit criminal law’s reach, codified offenses continued to widely and deeply regulate social life and exceed the limits of those normative arguments. This essay suggests that this practical failure of criminal law theory occurred because it was never adopted by an institutional actor that could limit offense definitions in accord with normative commitments. Legislatures are institutionally unsuited to having their policy actions limited by principled arguments, and courts passed on the opportunity to incorporate a limiting principle for criminal law once they began, in the Lochner era, actively regulating legislative decisions through Constitutional law. The one avenue through which criminal law theory has had some success in affecting criminal codes is through the influence of specialized bodies that influence legislation, especially the American Law Institute advocacy of the Model Penal Code. But the institutional structure of American criminal law policymaking permits an unusually small role for such specialized bodies, and without such an institutional mechanism, criminal law theory is likely to continue to have little effect on actual criminal codes.     

The President’s power to withhold assent to Bills of Parliament

In terms of Article 64 of the Namibian Constitution, the President may withhold his or her assent to a Bill passed by Parliament on constitutional grounds, and may refer such Bill to a competent court for a decision. The strength of Article 64 is rooted in the fact that legislative proposal, which is not yet law, can be challenged for constitutionality. The power of the President is comparable with systems in South Africa, Ireland and India. This article examines the extent to which the executive, represented by the President, acts as a constitutional check on the legislative, represented by Parliament.     

Access to Legal Services in Women’s Shelters

This study examines access to legal services among clients of three Calgary-area domestic violence shelters. The study samples the views of staff and clients at three domestic violence shelters with the goals of improving understanding of clients’ legal service needs, understanding the challenges clients attempting to access legal services encounter and making recommendations for improvement. The authors conclude that clients’ service needs are complex and often involve legal problems, yet shelters face specific organizational barriers to coordinating legal services. The authors recommend that a further analysis be undertaken to examine the legal access patterns of women experiencing domestic violence, to assess the prevalence of the barriers identified in the study and to determine whether further barriers are present in other shelters.     

Levinas’s Contribution to the Law of Hospitality

Liverpool Law Review - This article examines the ethical thinking of Levinas, from which Derrida’s Law of Hospitality is derived, to see if it is sustainable in the face of Badiou’s...     

The Government’s Regulatory Obligations to Public Utilities Franchise

Under the public utilities franchise system, the executive branch may transfer the task of providing public utilities services for the common good to a private party. It should undertake to regulate and prevent the private party from pursuing its own interests to the detriment of public interest while discharging its duty under the public utilities franchise. Since any public interest must be enjoyed by all individuals, we can say that the obligations owed under administrative regulations aim at the ultimate goal of increasing individual welfare. In the public utilities franchise system, regulations of this kind can be divided into six different categories: maintaining and promoting necessary market competition, ensuring the continuity of public utilities services, ensuring non-discriminatory provision of public utilities services, ensuring the quality of public utilities services, ensuring reasonable charges for public utilities services, and ensuring the conservation of energy and protection of the environment while providing public utilities services. The absence of governmental regulation of the provision of public utilities and of reforms in such services in China has harmed both public interest and the rights and interests of consumers. Some of the problems caused include chaotic market access for public utilities, no guarantee of the sustainability of public utilities, the failure of the universality of public utilities, declining quality of public utilities, sharp rise in the prices of public utilities, insufficient regulations on the conservation of energy and environmental protection, and so on. In order to achieve the effective implementation of the administrative regulations and obligations therein with respect to public utilities and the maximization of public interest, the Chinese government should enhance its consciousness of regulating public utilities, improve the legal system to regulate public utilities, perfect the regulatory system for public utilities, and establish a system of liability to compensate for failures in regulation.     

Coase’s world and Coase’s blackboard

In this contribution I focus on a particular characteristic of Ronald Coase’s work, as exhibited in “The Problem of Social Cost”: his ability to force upon his audience a clearer grasp of reality than they previously held. More specifically, I aim to consider to what extent the “blackboard economics” that Coase himself derided have been avoided in a Coasean world, taking that expression to refer in some sense to a world where Coasean insights can flourish, and as such to be a world not simply of Coase’s own making but a world that has been developed by others in applying the Coase Theorem. My strategy is to interrogate the nature of a Coasean world through developing a framework that can look more closely at different approaches to theoretical modelling, the different worlds involved in these models, and the different positive and normative applications that can be derived from them. I shall further consider whether the understanding of the law that inhabits a Coasean world reflects a “real-world” legal environment. Finally, I shall seek to assess the impact of Coase’s work on our understanding of the relationship between law and economics, in our world.     

Introduction to Special Issue on Seana Shiffrin’s Speech Matters

Law and Philosophy -     

Teaching to shift people’s thinking toward peace: the relevance of Colman McCarthy’s work for peacemaking criminology

Peacemaking criminology is often conceived as a theoretical perspective built upon linkages between religious, feminist, and critical traditions. Equally important in peacemaking criminology is its teaching tradition, which promotes educating people about the values of peace, integration, cooperation, and caring over the values of control, repression, power, and domination. Teaching from a peacemaking perspective has generally involved efforts to design crime‐related courses that feature core concepts, readings, and policies within peacemaking criminology writings. However, such peacemaking teaching and writings have not commonly provided a central focus upon what needs to be taught to shift people’s thinking. This article thereby illustrates the work of peace educator Colman McCarthy, whose teaching experiences in high schools and universities are predicated upon influencing teenagers and young adults to embrace the idea that nothing can matter more than the struggle for and embracing of peace. This article also explores the ways in which Colman McCarthy’s books, I’d Rather Teach Peace and All of One Peace: Essays on Nonviolence, offer a foundation to help people shift their thinking toward a culture of nonviolence and peace.     

Confessing their Crime: Factors Influencing the Offender’s Decision to Confess to the Police

Confessions are crucial to successful police investigations but scholars have significantly overlooked factors that contribute to an offender’s decision to confess a crime. This study aims to examine a large array of factors that play a role in the offender’s decision to confess a crime to the police and potential interaction effect among them. A total of 221 adult males incarcerated in a federal Canadian penitentiary were recruited. Correctional files, police reports, and offenders’ self‐reported data were collected and analyzed. Controlling for sociodemographic, criminological, and contextual factors, a series of logistic regression analyses were conducted. Findings highlighted the predominant role of police evidence over and above other factors analyzed. Furthermore, sociodemographic and criminological factors played a more important role in the offender’s decision to confess when police evidence was weak. Findings are discussed in light of the current scientific literature on the determinants of offenders’ decision to confess their crime.     

From Sore Throats to Greenland: Howard Brenton’s Utopian Plays

British playwright Howard Brenton once wrote, “There is an infinite variety of ways of making theatre, but only one theme which, inevitably, Aeschylus was onto—it’s simply ‘how can we live justly?’” Brenton’s entire oeuvre reflects his struggle to answer this basic question but he has specifically characterized three of his plays as Utopian. These are Sore Throats, Bloody Poetry, and Greenland. The plays comprise a journey which begins, in the playwright’s words, “far from human dignity and peace” and ends 700 years from now with a vision of Brenton’s hopes for the future: “how I hope my children, or my children’s children’s children, will live and think.” The works explore the nature of love, individual relationships, and sexual roles as these relate to issues of power and manipulation. The corrupting power of money, and English complacency and acquiescence, are additional major themes. Finally, they all confront the question of human responsibility and its relationship to the individual and to society. Ultimately, they offer us an unmerciful look at the worst of human nature and a liberating vision of the good we are capable of achieving.     

Effects of an Alibi Witness’s Relationship to the Defendant on Mock Jurors’ Judgments

Two studies tested the impact of an alibi witness’s relationship to a defendant on the perceived credibility of that witness. In the first study, 291 mock jurors estimated the frequency with which individuals would invent alibis, the frequency they themselves would do so, and the frequency of interpersonal contact among individuals of varying relationships. The degree of relationship between an alibi witness and a defendant remained a predictor of witness credibility when contact frequency was controlled. In the second study, 512 mock jurors were randomly assigned to case scenarios. Skepticism toward witnesses who are biologically or affinally related to a defendant was greater than skepticism toward a socially linked witness. Both studies supported predications from kinship theory and reciprocal altruism.