The under-representation of women in the senior appellate judiciary in common law jurisdictions remains an enduring problem. Much has been written about the lack of women’s participation in the judiciary and what strategies, if any, should be undertaken in order to resolve this persistent problem. However, this thesis takes a step back to ask a broader question: what impact does gender diversity have upon judicial decision making in appellate courts? It seeks to answer this question by engaging feminist standpoint theory to assess the experiences of men and women judges from three common law jurisdictions: England, South Africa and Australia. Through a series of interviews conducted with members of the senior judiciary in these jurisdictions in 2012 and 2013, this thesis explores the extent that interviewees consider that gendered experiences impact upon their own judging, and judging within the dynamics of collegiate appellate courts. This thesis concludes that while it is not possible to pinpoint one particular ‘contribution’ or ‘impact’ that gendered experiences have upon judging, it is nonetheless generally considered by those interviewed to be an important part of the judicial decision making process in several subtle, yet important, ways. Because of the considerable role that diverse gendered experiences play in judicial decision making, appointments processes should be sensitised to the need for diversity of experience and alive to the danger of ostensibly neutral appointment criteria devaluing diverse experiences, particularly the experiences of women in the law.

Can contemporary liberalism justify antidiscrimination law? The question seems impertinent until we consider contemporary liberalism’s commitment to limited government. Once we do, we realize that contemporary liberals may not complacently assume that their theories justify antidiscrimination law simply because discrimination based on race or sex is so obviously wrongful. Rather, they must scrutinize antidiscrimination law just as they do other regulation of individual conduct. Providing such scrutiny, this thesis argues that three of the most prominent contemporary liberal doctrines of political legitimacy—John Rawls’s “political liberalism,” an antiperfectionist version of the “harm principle,” and Joseph Raz’s “liberal perfectionism”—all fail to justify core applications of antidiscrimination law, applications that we intuitively consider perfectly legitimate. In light of this failure, contemporary liberalism faces a dilemma: it must jettison either its commitment to comprehensive, uniform antidiscrimination regimes or its antiperfectionism and overriding commitment to personal autonomy. This thesis argues for the latter course by providing an account of the wrongfulness of discrimination based on race or sex that condemns all instances of the conduct. According to this account, discrimination is wrong because acting on discriminatory intentions is wrong. More specifically, by taking another person’s race or sex as a reason to treat her less favorably than one would treat people of other races or the other sex, one fails to respect her as a person, to regard her as a being of ultimate value. Unlike contemporary liberal accounts, this account is fully perfectionist, since it defines discrimination in terms of the intentions of discriminators, and the intentions of discriminators in terms of their attitudes, which partly constitute their moral characters. So long as we remain committed to antidiscrimination law in its current form, we must attend to discriminators’ characters. And to attend to discriminators’ characters, we must be willing to espouse perfectionism.

This thesis examines the Indian system of personal laws (‘the PLS’), under which the state applies a version of religious doctrine to the family matters of citizens whom it identifies as belonging to different religious groups. There has been a lengthy and persistent debate over the PLS, particularly in relation to its discriminatory effects upon women. However, another problem with the PLS has been little commented-upon. Supporters of the PLS emphasise its positive impact on religious freedom to such an extent that there is a pervasive assumption that the PLS is, indeed, good for religious freedom. But there has been surprisingly little critical assessment of the truth of this claim in either academic or political debates. This thesis, a work of applied normative legal theory, attempts to fill this important gap in the literature on the PLS. The thesis addresses the question of how the PLS affects one conception of religious freedom, namely religious autonomy. Its principal findings are that the PLS interferes with the religious autonomy of those subject to it by affecting their religious options (by interfering with their freedom from religion and their freedom to practice religion) and by harming their self-respect (by discriminating on the grounds of sex and religion, and by misrecognising their religious identities). Furthermore, the thesis finds that the PLS cannot be defended in the name of religious autonomy based on the possibility of exit from the system, the advantage of having the ‘option of personal law’, the power it gives people to bind their future selves, the expressive potential of the personal laws, the contribution it makes to membership in a religious community, the contribution it makes to religious group autonomy, or the recognition or validation it provides for religious identities. These conclusions imply that concerns relating to religious autonomy constitute an important set of objections to the PLS. The thesis then considers several reform proposals, including certain modifications of the PLS, a move towards a millet system, ‘internal’ reform of individual personal laws and the introduction of a Uniform Civil Code. It particularly focusses on one reform possibility – religious alternative dispute resolution – which has not been considered closely in the Indian context.

A perennial question amongst social movement strategists is to what extent movements can use the tools of the system they are struggling against in their efforts to change that system. Whilst this debate traditionally distinguishes between two camps – radical and reformist approaches – this thesis investigates one movement that breaks this mould. The thesis uses the example of Bolivia's Landless Peasants' Movement (MST) to intervene into renewed theoretical discussion about the possibilities and perils for such movements of using the legal system in the pursuit of systemic social change. Through its tactic of land occupation, the MST breaks the law by occupying unused land on large estates, whilst also invoking other laws stipulating that unused land must be redistributed to those who will work it. The thesis situates the MST's approach to law in the context of an intensified process of juridification in the neoliberal period, through which the logic and language of law increasingly have come to structure political debate and dissent, creating particular pressures for radical movements to engage with the law. Yet it also suggests that movements like the MST have developed subversive ways of engaging the law in response. By examining the MST's tactic as it interacts with this broader context of intensified juridification, the thesis clarifies and nuances the theoretical discussion by identifying how the particular conditions of political mobilisation in the neoliberal period bear on this theoretical debate. Moreover, by examining specifically how this movement's approach to law is differentiated from traditional radical and reformist approaches, and from other attempts to combine the two, the thesis reveals further potential options for radical movements seeking to engage the law. The thesis ultimately suggests that the transformative potential of law may not lie in employing the content of individual laws but in strategic manipulations of the contradictions inherent in the liberal legal form.

This doctoral thesis aims to provide an answer to the question of why the criminal law should be concerned with the emotional response of the offender. Emotions have important instrumental aptness, such as the capacity to reveal a person's values to himself. Emotional obligations can exist within friendship, and even between strangers when the basic duty of respect has been breached. Emotions therefore have important roles to play in connection to wrongful acts between fellow citizens. The emotions that are the most relevant to the committing of a wrong are guilt and shame. The thought content of guilt is responsibility for a wrong, while the thought content of shame focuses on a weakness of the self. In response to a wrong, guilt feelings distance the wrongdoer from the moral falsehood that was implicit in the offence, restoring relations with society. Shame might have similar beneficial effects, but it might also tie the wrongdoer closer to a personal weakness (which is only indirectly related to the wrong) and might therefore weaken the relationship with himself and society. Preventing undesirable behavior is an aim of criminal law. Good criminal law should aim to persuade offenders to endorse the legal rule that was flouted by the offence. The law is not a suitable basis for citizen's emotional obligations, but emotions are particularly capable of allowing an offender to properly recognise certain reasons for obeying the law, such as moral reasons and reasons of respect for law. Guilt feelings in a setting of victim-offender mediation are very promising in this respect, while shame and humiliation run the risk of distancing the offender from his regard of himself as a moral person and society at large.

Values matter in both legal decision (lawmaking and lawapplying) and discourse (lawshaping and lawinfluencing). Yet, their purported subjectivity means that gaining or improving knowledge about values (whether they be epistemic, legal, moral, ethical, economic, political, cultural, social, or religious) in the context of analytic legal thought and understanding is often said to be at odds with its goal of objectivity. This phenomenon is amplified at the international level where the infusion of seemingly subjective political values by sovereigns, and the decisionmakers to whom they delegate, can, and does, interfere with an idealized and objective rule of law. The discourse on value subjectivity, and its relation to the purpose and function of the law, is particularly apparent in evolving international legal orders such as investment treaty arbitration. The primary aim of this work is to provide a new method for gaining empirical knowledge about value subjectivity that can help close a weak link in all nonpositivist (value-laden) legal theory: a weakness that has manifest itself as skepticism about the possibility of measuring value objectively enough to permit its incorporation as a necessary component of analytic jurisprudence. This work proposes a theory of configurative fairness for addressing the problem related to the development or evolution of legal regimes, and how legal regimes perceived as subjectively unfair can be remedied. Such a theory accepts the premise that perceptions of fairness matter in directing the way that legal orders develop, and that perceptions of fairness relate to the manner in which values are distributed and maximized in particular legal orders. It is posited that legal orders perceived as fair by their participants are more likely to be endorsed or accepted as legally binding (and are therefore more likely to comply with the processes and outcomes that such laws mandate). The purpose of a theory of configurative fairness is an attempt to provide a methodological bridge for improving knowledge about value in the context of legal inquiry through the employment of a technique called Q methodology: an epistemological and empirical means for the measurement and mapping of human subjectivity. It is a method that was developed in the early twentieth century by physicist-psychologist William Stephenson: the last research student of the inventor of factor analysis, Charles Spearman. What Stephenson did was to create a way for systematically measuring subjective perspectives, and although not previously used in jurisprudential thought, Q methodology will facilitate a means for the description and evaluation of shared subjectivities. In the context of law generally, and in investment treaty arbitration specifically, these are the subjectivities that manifest themselves as the conflicting perspectives about value that are omnipresent in both communicative lawshaping discourse and authoritative and controlling lawmaking and lawapplying decision. Knowledge about these shared value subjectivities among participants in investment treaty arbitration will allow the legal analyst to delineate and clarify points of overlapping consensus about the desired distribution of value as they relate to the regime-building issues of evolving legal orders. The focus for a theory of configurative fairness pertains to the identification of the various value positions that participants hold about a particular legal order and to configure those values, through its rules and principles, in a manner that is acceptable (and perceived as fair) by all of its participants. If such a value consensus can be identified, then particular rules in the legal order can be configured by decisionmakers in a way so as to satisfy participants’ shared value understandings. To engage such a theory, a means for identifying shared value subjectivities must be delineated. This work conducts a Q method study on the issues under debate relating to regime-building questions in investment treaty arbitration. The Q method study asked participants knowledgeable about investment treaty arbitration to rank-order a set of statements about the way that the values embraced by this legal order ought to be configured. The results of the study demonstrate that there is significant overlap about how participants in investment treaty arbitration perceive the desired distribution of values across the regime. The Q method study identified six distinct perspectives that represent shared subjectivities about value in the context of the development of investment treaty arbitration. The Q method study was also able to identify where there is an overlapping consensus about value distribution across the distinct perspectives. It is these areas of overlapping consensus that are most likely to reflect shared value understandings, and it is proposed that it is upon these shared value understandings that the future development of investment treaty arbitration ought to aim.

This thesis contends certain contentious court cases can be traced beyond their legal roots to deep, sometimes incommensurable philosophical disagreements. However, the unitary nature of the judicial system effectively forces the court to take sides, putting its institutional weight and moral authority behind one set of principles and not another. Following Cover, I contend that this encourages future litigants to rephrase their claims in the court’s preferred normative language, thus influencing our normative environment. The theories which guide judicial decisions, however, are generally insufficiently attentive to the court’s normative influence. In response, I attempt adapting Dworkin’s Law as Integrity around Cover’s more sociological view. Chapter 1 examines Cover’s view, Chapter 2 explores Syndicat Northcrest v. Amselem and Delmaagukw v. B.C. as case studies, and Chapter 3 adapts Dworkin around Covers view. My conclusions argue that further inspiration can be drawn from EU Coordinate Constitutionalism and Sui Generis aboriginal rights.

The liberal conception of the state is marked by an insistence upon the equal civil and political rights of each inhabitant. Recently, though, a number of writers have argued that this emphasis on uniform rights ignores the fact that the populations of most states are culturally diverse, and that their inhabitants have significant interests qua members of particular cultures. They argue that liberals should recognize special, group-based cultural rights as a necessary part of a theory of justice in multicultural societies. In this thesis I examine the idea of special cultural rights. In the first part (Chapters 1 to 4), I begin by setting out some of the different conceptions of culture and multiculturalism that are involved in the debate over cultural rights. I then discuss three claims made by supporters of special cultural rights: (1) that having culture is an essential part of individual autonomy; (2) that people have morally significant interests qua members of particular cultures; and (3) that these interests are inadequately protected by existing liberal conceptions of human rights. Although I conclude that (1) is correct, I argue that both (2) and (3) are mistaken. Among other things, I suggest that the version of culture relied upon by supporters of special cultural rights is an implausible one and I outline what I take to be a more plausible, cosmopolitan conception of culture. In the second part (Chapters 5 to 9), I begin by looking at specific instances of cultural rights-claims, and analyzing the concept of cultural rights qua rights. I consider the practical and conceptual difficulties with special cultural rights at great length. But the core of my thesis is that our interest in culture lies in its contribution of worthwhile goals and options, and that this interest lies in culture generally rather than in particular cultures. Hence, adopting a special or group-based distribution of any right to culture would seem to be inconsistent with liberal egalitarian principles. If there are such things as cultural rights, I argue, they are general rather than special rights. I conclude by offering a very preliminary account of what a cosmopolitan conception of cultural rights might involve in the case of the right to free association and language rights.

This thesis contends certain contentious court cases can be traced beyond their legal roots to deep, sometimes incommensurable philosophical disagreements. However, the unitary nature of the judicial system effectively forces the court to take sides, putting its institutional weight and moral authority behind one set of principles and not another. Following Cover, I contend that this encourages future litigants to rephrase their claims in the court’s preferred normative language, thus influencing our normative environment. The theories which guide judicial decisions, however, are generally insufficiently attentive to the court’s normative influence. In response, I attempt adapting Dworkin’s Law as Integrity around Cover’s more sociological view. Chapter 1 examines Cover’s view, Chapter 2 explores Syndicat Northcrest v. Amselem and Delmaagukw v. B.C. as case studies, and Chapter 3 adapts Dworkin around Covers view. My conclusions argue that further inspiration can be drawn from EU Coordinate Constitutionalism and Sui Generis aboriginal rights.

This dissertation identifies institutional positivism and historically grounded pluralism as interpretive trends in the Canadian case law on Indigenous-state relations, and explores tensions between these trends. These are tensions between practices of judicial interpretation, not between theories of interpretation or legal concepts. They are practices developed case- by-case, with interpretive trends emerging over time through series of cases addressing similar issues in related contexts. Institutional positivist approaches insist that judicial recognition of Indigenous legal orders and accommodation of Indigenous interests must take place within established constitutional forms founded on state sovereignty. Historically grounded pluralist approaches show greater willingness to balance principles of state sovereignty against principles of popular sovereignty and of Indigenous priority in Canadian territory. While the two approaches overlap significantly, their differences sometimes lead to contrasting legal conclusions on key issues of, e.g., treaty interpretation, the relationship between Indigenous legal orders and the state legal system, and the jurisdictional dimension of Aboriginal title. This dissertation examines these positivist-pluralist tensions in the context of the current period of ideological transition and rapidly evolving imaginaries of Indigenous-state relations. Chapters 1 and 2 explore the case law to highlight concrete ways in which this ideological transition finds doctrinal expression in both positivist and pluralist modes. Chapters 3 and 4 offer broader reflections on philosophical debates relating to legal positivism and the role of popular sovereignty in constitutional interpretation by Canadian courts. The final chapter then considers the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law, with a focus on implementing legislation recently adopted by British Columbia and on two recent judgments that split the Supreme Court of Canada on the proper role of the Canadian judiciary in coordinating Canadian state law with non-state legal orders (Indigenous in one case and international in the other). This concluding chapter explains how the ongoing interplay of positivist and pluralist concerns will inevitably shape the reception of UNDRIP in Canadian law and the ongoing elaboration of Canadian Aboriginal law more generally. / Graduate / 2022-08-26