This thesis is about the nature of value incommensurability and its significance for judicial reasoning. It argues that there can be incommensurable values and that this incommensurability can have significant implications for judicial reasoning. I argue that incommensurability gives rise to a range of reasonableness, within which it is reasonable but in a sense also arbitrary to decide either way, and that this range is wider than is suggested by the notion that some options are roughly equal, because even a large improvement to one option may not make it the uniquely correct option. The thesis goes on to consider the effect that the authority of law can have on choices between incommensurable options. Although I argue that the authority of law can sometimes provide a conclusive reason to choose one of two incommensurable options, I also argue that it has limits and may not do so in every case of incommensurability. Moreover, the introduction of an authoritative directive may even give rise to incommensurable options where none previously existed. The thesis then draws out the implications of these claims, first, for human-rights adjudication—where my claim is that ‘balancing’ is appropriate both in the specification of rights and in assessing the justification for their infringement, provided we acknowledge the limits of balancing in cases of incommensurability—and, secondly, for adjudication involving common law reasoning and statutory interpretation. Finally, I suggest that we can distinguish between different ideals of the rule of law, and that the arbitrariness of judicial decisions involving incommensurable options has different implications for those different ideals. The arbitrariness involved in choosing between undefeated reasons may be necessary contrary to one ideal of the rule of law, understood as the rule of authority, but not contrary to an ideal of the rule of law understood as the rule of reason.

This thesis offers a reading of the legal philosophy of the mid-twentieth century legal scholar, Lon L. Fuller. By illuminating how Fuller’s vision of law gravitates constantly to the relationship between the form of law and the status of the legal subject as an agent, this reading provides a basis for revisiting the issues in dispute in his famous exchanges with the legal positivist philosopher, H.L.A. Hart. The thesis as a whole seeks to meet two main objectives. First, I seek to demonstrate how Fuller’s persistent concern for the way that the form of law instantiates respect for the legal subject lends his legal philosophy a coherence that has been insufficiently appreciated to this point. Second, I seek to elaborate the claim that once we appreciate the centrality of the relationship between legal form and agency to Fuller’s thought, we come to understand why he insisted that law can and should be distinguished from other modes of ordering, and why it must also be regarded as distinctively moral.

This thesis offers a reading of the legal philosophy of the mid-twentieth century legal scholar, Lon L. Fuller. By illuminating how Fuller’s vision of law gravitates constantly to the relationship between the form of law and the status of the legal subject as an agent, this reading provides a basis for revisiting the issues in dispute in his famous exchanges with the legal positivist philosopher, H.L.A. Hart. The thesis as a whole seeks to meet two main objectives. First, I seek to demonstrate how Fuller’s persistent concern for the way that the form of law instantiates respect for the legal subject lends his legal philosophy a coherence that has been insufficiently appreciated to this point. Second, I seek to elaborate the claim that once we appreciate the centrality of the relationship between legal form and agency to Fuller’s thought, we come to understand why he insisted that law can and should be distinguished from other modes of ordering, and why it must also be regarded as distinctively moral.

In the Canadian criminal justice system, there is a procedure which provides additional protections to Indigenous offenders during sentencing and its related events. This procedure is commonly referred to as the Gladue process. This thesis defends the plausibility of extending Gladue-like procedures to non-Indigenous offenders on the grounds that failing to do so would be a failure of consistency of the law. The law must be consistent in the sense that it must treat like cases alike. It will be argued in this thesis that there are other individuals and groups who may be similarly deserving of additional protections during sentencing because of their significant circumstances of vulnerability. This includes black individuals, LGBTQIA+, and mentally ill persons, but this is by no means an exhaustive list. This thesis does not aim to diminish the unique experience of Indigenous persons, but rather, it suggests that extending Gladue-like processes to particular non-Indigenous persons and groups may be required based on consistency of the law and attention to intersectionality. It is my hope that this thesis brings about greater awareness to the sentencing procedures pertaining to both Indigenous and non-Indigenous offenders alike, and that it may spark discussion on the subject of extending additional legal protections to vulnerable persons. This thesis relies heavily on the hybrid theory of punishment, as presented by H.L.A. Hart, which combines both utilitarian and retributivist elements in justifying the act of punishment. Hart’s theory aligns with the Canadian legislation on sentencing and provides a convincing justification for punishment while allowing the inclusion of restorative punishment practices for vulnerable persons. It will be argued that extending restorative practices to non-Indigenous offenders is, in some cases, plausible, and at times, necessary. / Thesis / Master of Arts (MA) / Within Canadian legislation Indigenous offenders are provided an additional procedure during sentencing and its related events. This system is commonly known as the Gladue process. Gladue provides a good model for how the sentencing of vulnerable individuals and groups should be handled. However, this process or something similar to it is not provided to other offenders who may also experience vulnerability or should be comparably deserving of additional protections or mitigating factors during sentencing. This thesis argues for the plausibility of extending Gladue-like procedures to other, similarly situated, non-Indigenous offenders based on arguments for consistency of the law and respect for intersectionality. The law must treat like cases alike, and in doing so, must pay particular attention to the intersections between layers of vulnerability. The main contribution of this thesis is to make suggestions for change in Canada’s sentencing procedures of vulnerable individuals and groups.

This thesis develops a novel account of judicial common-law reasoning by precedent. If a new case is relevantly similar to a precedent case, judges are generally bound to follow the decision made in the precedent case. Important differences between cases can justify deciding the new case differently. The literature offers two main approaches to reasoning by precedent. According to rule-based-approaches, every case is decided by either following an existing rule or establishing a new one. I show that rule-based approaches are untenable. Analogy-based approaches claim that similarities and differences between two cases are determined through reasoning by analogy. These approaches are problematic because some similarity or difference can always be found between two cases. Accounts suggested so far cannot explain how precedents can provide significant guidance to judges. My dissertation salvages analogy-based approaches by supplementing them with insights from argumentation theory. Analogies contain a figurative part that is used to make someone see the analogy‘s literal part in a new way. An arguer can manipulate her interlocutor‘s perception of the literal part through the way she describes the figurative part by rhetorically drawing attention to those similarities that she considers relevant. Arguments by analogy use this to convince interlocutors of conclusions about the literal part. I propose to see judges in the role of interlocutors, evaluating arguments by precedent. The opinion that documents the precedent case from the point of view of the former judge is the figurative part of an analogy. The literal part is the new case. They form an analogical argument for repeating the precedent decision. The judge evaluates the argument by considering a number of critical questions. If all the critical questions can be answered, the precedent is applicable and must be followed. Otherwise, the precedent is either not applicable or has to be distinguished. / Dissertation / Doctor of Philosophy (PhD) / This thesis describes reasoning by precedent in the common law. I discuss two important approaches to how reasoning by precedent works, rule-based theories and analogy-based theories. I reject rule-based theories as untenable. I describe the main problem analogy-based theories face: To show that precedents can constrain judicial reasoning so that judges cannot decide cases according to their own normative commitments. I use insights from psychological research into analogical reasoning and from argumentation theory to develop a new analogy-based account. I suggest that judges should be seen as interlocutors evaluating an argument by precedent. This argument contains an analogy between precedent case and present case, and a rule stating that the precedent decision needs to be followed if precedent case and present case are legally the same. The judge needs to first understand the analogy under the application of the principle of charity, and then evaluate it using critical questions.

This thesis argues for a novel understanding of the relationship between law and coercion. One of the relationships H.L.A. Hart sought to clarify is between law and coercion. In his work, Hart denies that coercion is a conceptually necessary feature of law – denies that the existence of law is in some sense determined by the presence of coercive mechanisms. According to Hart, coercion is naturally necessary to our legal practices. We humans need our law to be backed by coercive mechanisms so that it can do what it is supposed to: serve as an authoritative guide for behaviour. Investigating the relationship between law and coercion not only depends on what one thinks about law, but also what one means by ‘coercion.’ I define an instance of coercion as a forced-choice. I also explain that understanding what it means to say, ‘law coerces’ is made difficult by the fact that what is coercive for one person may not be coercive for another. This subjective aspect of coercion means that more specific questions need to be asked in order to understand the relationship between law and coercion. This thesis asks: is there a conceptual relationship between law and the law’s institutionalisation and utilisation of coercive mechanisms? I argue that coercive mechanisms are not a conceptually necessary feature of law. I also argue that Hart’s work still leaves the relationship between law and coercion problematically undefined. Rather, I put forward the claim that law is coercion-apt. I expand this claim by distinguishing law from other normative systems, like morality. Unlike law, morality, I argue, is not coercion-apt. Therefore, this thesis not only refines our understanding of the relationship between law and coercion, but also between law and morality – which is another relationship Hart sought to clarify in his work. / Thesis / Candidate in Philosophy / This thesis explores the relationship between law and coercion. By ‘coercion’, I mean the way in which the law forces compliance with its prohibitions and requirements through the institutionalisation of sanctions (e.g., fines or prison sentences). A debate concerning the relationship between law and coercion has been present in jurisprudential literature for decades. Those who claim that that coercion is a conceptually necessary feature of law are essentially claiming that the existence of law is, in part, determined by the presence of coercive mechanisms. In this thesis I explain why such claims are erroneous. I then defend my own understanding of the relationship between law and coercion. I argue that it would be incorrect to call y ‘law’ if y is not coercion-apt. I explain what it means to say, ‘law is coercion-apt’ by distinguishing law from other normative systems like morality, religion, and voluntary associations and clubs.

In law as well as in ordinary life, it matters what rules societies have; but what does it mean for a society to have a rule? HLA Hart’s famous answer is that for a society to have a rule is for there to be a certain social practice in that society, consisting of an external, behavioural aspect and an internal, attitudinal aspect. Hart’s ‘practice theory’ dominates thinking in jurisprudence about social rules, but, I argue, there are serious problems with it. It would be better to adopt what I call the ‘acceptance theory’. In the early chapters of this thesis, I argue that the practice theory is both overinclusive and underinclusive. It is overinclusive because Hart’s description of the ‘internal aspect’ is too general. It is underinclusive because the ‘external aspect’ is unnecessary. Once these criticisms are taken into account, what remains of the practice theory is the idea that a society has a rule because its members have a certain attitude. I spend much of this thesis determining the features of this attitude. Ultimately, I focus on the attitude known as “acceptance” in the philosophy of action. Acceptance of a proposition simulates belief in that proposition, though it may be held independently of that belief. I argue that a person or society has a rule when that person, or that society’s members, accept that some action ought to be performed, whatever their beliefs about the matter. This theory incorporates the plausible core of the practice theory, while avoiding its problems.

The idea of the social contract has in many ways always been primarily concerned with the distribution of freedoms and powers between the State and legal subjects. It has effectively become trite that the State may, through legislation, limit if not extinguish the liberty of individuals. At the same time, there appears to be widespread agreement that the law is at least also relevant to the protection of the individual’s freedom to self-determine their own affairs. One school of thought, libertarianism, elevates the recognition and protection of individual rights, including private property rights, to the main, if not the sole, purpose of law. Another, distinctively South African school that may be referred to as Transformationism, does not, and appears willing if not eager to sacrifice individual freedom on the altar of wide-ranging socio-economic and political change in society. In this study, three broad, multi-faced objectives are pursued, each roughly corresponding to Chapters 2, 3, and 4 respectively. First, the legal-jurisprudential component of libertarianism is extracted from its political-philosophical discourse and described and considered in detail. This includes, primarily, a determination of what libertarianism’s approach to the individual’s place in society entails, how the individual’s inalienable rights were brought about, and how and why the law must protect those rights. Some of the legal implications of this state of affairs are also identified. Second, the emerging ideological basis of new South African law, mostly in the form of legislation and superior court judgments, called “Transformationism”, is considered. Some of the latent undercurrents of this school of thought, including so-called “Critical Legal Studies”, “Critical Race Theory”, and “transformative constitutionalism”, and how certain ideas from these currents have made their way into the law are also discussed. Third, key aspects of Transformationism are selected for a theoretical reply by libertarianism. Those aspects are the Transformationist aversion toward the freedom of the individual (particularly when it comes to private property rights), the emphasis on so-called substantive equality in legal policy, and the subversion of constitutionalism, understood to be a doctrine aimed at limiting the scope and exercise of government power. The study concludes that the best account of law is that it exists chiefly for the recognition and protection of individual liberty, and that third parties, including the State, may not interfere uninvitedly in the affairs of individual persons unless they themselves are interfering in the affairs of others. In other words, the law’s role is fixed and protective, not creative and offensive. South African law (indeed all law), particularly having regard to the contemporary influence of Transformationism, should therefore be developed in favorem libertatis. / Dissertation (LLM)--University of Pretoria, 2020. / Public Law / LLM / Unrestricted

This thesis concerns a philosophical analysis of originalism in a context that has not yet received sufficient attention: in the context of old constitutional regimes. Through this lens, I argue that originalism becomes something lesser in that both the normative justification and legitimacy originalism once held begins to withdraw from the theory’s principled commitments. In other words, the nature of old constitutions begins to reject a normative argument for an originalist approach. The thesis bases this analysis on one originalist theory in particular for the sake of brevity: Lawrence Solum’s public meaning originalism. It proceeds through two avenues of argument: originalism as it relates to 1) historical analysis and the interpretation-construction distinction and 2) stare decisis and democratic legitimacy. Taken together, these avenues point to originalism’s fading normative justification and legitimacy in light of the challenges that old constitutions and their characteristics pose for the judicial philosophy. / Thesis / Master of Arts (MA)

There has been controversy surrounding high-profile Canadian court cases due to stakeholders asserting that justice was not delivered in the offenders’ sentencing. Cases such as R v. Bernardo (including R. v. Homolka), R v. Pickton and R v. Li have drawn criticism from stakeholders, such as the victims’ families and the public, for perceived lax and disproportionate sentencing. I aim to make sense of and determine why this is their perception of these cases and offer a way to understand these cases’ judicial decisions. Reading these cases through the lens of philosophical punishment theories will (1) determine the underlying compatible legal theory guiding these sentences that are perceived as lax and disproportionate, (2) explain the reasoning behind these sentences, and (3) help us understand why the public and the victims’ families perceive these sentences as lax and disproportionate. In this thesis, I will argue that Canada’s criminal justice system could be understood as incorporating various punishment theories for criminal offender sentencing, such as strict retribution, utilitarianism, and paternalism as a form of rehabilitation. I will focus my research on three punishment theories that I believe have been significant in guiding the law’s application in the Canadian legal system and the modern history of Western law: Immanuel Kant’s strict retributive punishment theory, Jeremy Bentham’s utilitarian punishment theory, and Herbert Morris’ paternalistic punishment theory. I will argue that by identifying the underlying punishment theories, we can identify where the judicial decision is perceived as flawed by the public and the victims’ families and how to understand the effect of these theories in future judicial decisions. Based on my findings, I will sketch an alternative Kantian punishment theory that can be a theoretical lens through which we can evaluate proportionality in sentencing by providing a victim-centred approach to punishment. / Thesis / Master of Arts (MA) / There has been controversy surrounding high-profile Canadian court cases due to the victims’ families and the public perceiving the offenders’ sentencing as lax and disproportionate to their crimes’ severity. I aim to make sense of and determine why this is their perception of these cases and offer a way to understand these cases’ judicial decisions. Reading these cases through the lens of philosophical punishment theories will (1) determine the underlying compatible legal theory guiding these sentences that are perceived as lax and disproportionate, (2) explain the reasoning behind these sentences, and (3) help us understand why the public and the victims’ families perceive these sentences as lax and disproportionate. Based on my findings, I will sketch an alternative Kantian punishment theory that can be a theoretical lens through which we can evaluate proportionality in sentencing by providing a victim-centred approach to punishment.