What are the possible bases for the authority of the Australian Constitution? Why should people and judges ever obey the text of the Constitution? The developing tools of analytical jurisprudence assist in answering these questions. Despite its currency, the concept of "sovereignty" provides little assistance in understanding how law provides reasons for action. The concept of authority is more useful. The text of the Australian Constitution has authority in that it provides presumptive reasons for action, overruled when they appear sufficiently erroneous on a cursory examination. The Constitution is part of the Australian legal system. A legal system is normally identified partly by moral norms. These moral norms themselves require that legal systems also be identified where possible by reference to the directives of a previous de facto authority - even when that previous authority no longer has power to make new legal norms. A legal system will be "legitimate" if any improvement to be achieved by revolution would be outweighed by the uncertainty revolution creates. Against this theoretical background, various theories about the Constitution's authority can be assessed. Although the enactment of the Constitution by the Imperial Parliament provides the Constitution with legal authority, it does not confer moral legitimacy. Contrary to a growing judicial and academic consensus in Australia, the Constitution's legitimate authority is not derived from the "will of the people". Nor is it derived from the Constitution's Founders. The will of the people cannot be identified reliably, and wound not provide sufficient reasons for action. The Constitution does embody a federal compact between the colonies. Because it is worthwhile to keep political promises, the polities of the States should fulfil this compact, even though the compact only imposes weak obligations on the Commonwealth. Other possible bases for the Constitution's authority are also inadequate. These include claims that judges are bound to apply the Constitution because their authority is based upon it; that the Constitution embodies "associate obligations", and that the Constitution isa commitment to protect individual rights and democracy. Instead the Constitution has legitimate authority principally because it coordinates individual action towards desirable goals. The Australian Constitution settles the location of authority by authority.

Problem: Although Oliver Wendell Holmes Jr. transformed American jurisprudence into critical self-awareness, there is no consensus on the nature of his legal theory. Holmes imperfectly represents each of several incompatible approaches. Commentators presume Holmes lacked any original or coherent theory of justice. Friedrich Nietzsche is likewise presumed a critical philosopher without a coherent theory of justice. Nietzsche wrote esoterically, but there is no consensus on the content of his esoteric agenda. Nietzsche's attitudes toward women appear misogynistic, but his philosophy paradoxically appeals to many feminists. Method: By re-conceptualizing Holmes and Nietzsche in terms of the principles of self-organized criticality, their understandings of causation and developmental dynamics become coherent. This thesis re-conceptualizes common-law legal reasoning as exploiting principles of self-organized criticality to build knowledge inductively. This reveals that Holmes and Nietzsche's genealogical critique of idealism rests on the computational implausibility of assuming there always exist microlevel rules to achieve desired macro-level goals. The legal-reasoning model shows that justice entails an inexhaustible open-system dynamic of applying limited resources to accommodate better an ever-broadening matrix of conflicting values. Nietzsche assesses psychological and social conditions that foster this collective creativity and decadent conditions that inhibit the growth of justice. Nietzsche identifies problems specific to institutions that require special safeguards that he esoterically conceals. Using Nietzsche's exoteric accounts of psychology and rhetoric based on principles of self-organized criticality, Nietzsche's esoteric techniques can be inferred, including his syncretism of pagan myths, which reveals his esoteric content. Conclusion: Holmes and Nietzsche applied a coherent theory of justice based on principles of causation and dynamics not widely accepted until the late twentieth century but having roots in ancient myths and isolated prior thinkers. Nietzsche defines justice as pursuing robust community growth without sacrificing the future for the present. Both Holmes and Nietzsche accord pursuit of justice with the good life whereby individuals promote their own development for greater sacrifice for the community. Nietzsche's esoteric solution to his problem of institutions was matriarchy. Nietzsche's matriarchy follows from his identification of the root of the institutional problem as male windfall opportunism, an evolved unconscious male tendency resulting from uncertainty over genetic parentage. / Law, Peter A. Allard School of / Graduate

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.

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.

The purpose of this Thesis is to determine which set of private law rules ought to apply to the use and storage of bodily material. I recommend that the most appropriate legal approach is through a combination of property rights and duties of confidentiality. The suggestion is that where a healthcare institution obtains possession of bodily material, their possession of the material may give rise to property rights in the material. In addition, where an individual retains entitlements in bodily material that is held by a healthcare institution, the entitlements of the individual ought to be protected through the imposition of duties on the healthcare institution that are akin to duties of confidentiality. This recommendation is the product of two main inquires. The first inquiry concerns which entitlements individuals and institutions ought to be able to exercise in separated bodily material. This involves an investigation into which aspects of the relationship between a person and their body can also be found in the relationship between a person and their separated bodily material. It also involves an assessment as to which societal interests can be served through allocating entitlements in bodily material to healthcare institutions, and how to resolve the conflict between individual and societal interests in the use and storage of bodily material. The second main inquiry concerns the way in which different branches of private law are able to protect entitlements in things. I identify that property rights, rights of bodily integrity and privacy are similar insofar as they protect entitlements through the exclusion of others. Property rights are nonetheless distinct as property law concerns rights than can exist independently of the rights-holder. The recommended approach follows from connecting the different entitlements in bodily material that ought to obtain legal protection with different ways an entitlement may be afforded legal protection.

Existing moral reflection on immigration law and policy is caught in an impasse between (1) proponents of an individual right to free international migration and (2) proponents of a state’s right to control its borders. In Chapter 1, I examine arguments supporting an individual right to free international migration. I show that the case for this putative right cannot be settled solely by considering the strength of individuals’ interest in being able to cross international borders according to their choice. Rather, at a crucial point, the argument for an individual right to free migration turns on the truth of a particular conception of global justice. In Chapter 2, I examine arguments supporting a state’s right to control its borders. I contend that these arguments do not seek to defend the substantive justice of restrictive immigration policies, but rather the legitimacy of processes of political decision-making by which states unilaterally determine their own immigration policies. Abandoning this right-versus-right paradigm, I recast the debate by focusing on two distinct questions: (1) the question of justice in immigration, which substantively evaluates immigrant admission policy; and (2) the question of the legitimacy of immigration law enacted by procedures responsive only to states’ internal political decisions. I further propose that in articulating principles of justice in immigration, we should first develop a conception of global justice which will provide the background for our evaluation of immigration policy. In Chapter 3, I develop and defend a conception of global justice I call cooperation-based internationalism. I argue that co-citizens are joint participants in a scheme of cooperation which provides them with the social goods they need to lead autonomous lives. They therefore owe each other special duties of social justice. In addition, I argue for a duty of assistance which applies among all human persons globally. This duty requires developed states to assist developing states in establishing minimally just institutions. In Chapter 4, I develop a conception of justice in immigration against the background of cooperation-based internationalism. I argue that there is no requirement for states to allow open immigration. Nevertheless, I argue that co-citizens owe each other duties which impose significant moral constraints on immigration policy: states must (1) allow for family unification; (2) eschew policies that select immigrants based on criteria that unjustly call into question the fitness for citizenship of certain current members; (3) regulate labour immigration so that all current citizens benefit equally unless unequal gains benefit worse-off citizens. The duty of assistance is also imposes constraints on immigration policy. Developed states should (4) avoid immigration policies which cause brain drain harmful to international development and (5) admit and resettle refugees. In Chapter 5, I turn to the distinct question of the legitimacy of unilaterally-enacted immigration law. I argue that the application and enforcement of immigration law counts as a coercive exercise of political power which stands in need of justification. I examine the consent and natural duty of justice theories of political legitimacy, concluding that these influential theories cannot establish the legitimacy of immigration law. I conclude by considering the implications of the illegitimacy of immigration law for the evaluation of irregular migration.

Two central issues in literature discussing legal authority seems to the the questions of what the law has when it has authority and under what conditions the law can be said to have authority. This thesis analyses an answer to these two questions as it has been developed by legal philosopher Joseph Raz. The analysis is conducted through scrutinizing the relation within and between three central concepts in Raz´s theory on legal authority; authority as normative power, the service conception and the obligation to obey. As for the concept of normative power, Raz seems to alternate between defining normative power as the ability to change protected reasons for action and as being a protected reason for action. The question the thesis aims to answer is whether normative power is best understood as the ability to change protected reasons for action or as being a protected reason for action? Raz does not seem to make a distinction between the two and thus, he regards both definitions as plausible. However, the analysis suggests that while it might be plausible to use both definitions as a definition of normative power, they are not interchangeable, but rather seems to represent two different levels of normative power. The analysis of the second concept, the service conception, examines Raz´s statement that justified exclusionary reasons entail a moral obligation to obey the law. Here the thesis asks if a moral obligation to obey is a plausible consequence of justified exclusionary reasons, given Raz´s own definition of obedience. The analysis suggests that a moral obligation to obey is not a plausible consequence of exclusionary reasons being justified and thus, that there seems to be incoherence between the two. Lastly, the thesis asks about the coherence between Raz´s two statements A. that justified exclusionary reasons entail a moral obligation to obey and B. that there is no moral obligation to obey the law. This last question had to be somewhat revised as the first statement (A) had already been suggested to be incoherent by the previous analysis. As such, this last question was revised into asking how the law can have legitimate authority when its legitimacy is tied to a moral obligation to obey, which is denied by Raz? The analysis suggests that these two statements are incoherent and that, as such, it is implausible that the law has the possibility to have legitimate authority at the same time as there exists no moral obligation to obey, as the former is dependent on the latter. The thesis ends in a number of concluding reflections.

My hypothesis is that social contract theory does not satisfactorily explain why we owe a serious concern or respect to profoundly mentally disabled individuals (PMD). This is a problem for social contract theories if we assume, like I do in this dissertation, that the PMD possess a robust moral status (RMS). My dissertation will explore the main strategies deployed by contractarian and contractualist theorists to bring the PMD within the purview of the social contract, in order to clarify why some aspects of their claims are promising but why they nonetheless fail to fully explain the robust moral status of the PMD. I notably find that they leave morally important dimensions of human relations out of the contractual frame, which means that they exclude the PMD from the scope of justice and morality when they claim that this contractual frame offers the only valid explanation to be a subject of justice and a moral patient. I do not conclude that this requires us to reject social contract theory altogether, nor do I count it as a reason to question whether the PMD have a robust moral status. In my concluding chapter, I will rather suggest a theoretical frame that has the potential of incorporating both contractual and non-contractual relations within the spheres of morality and justice, because both kinds of relation vehicle important intuitions about what is of value in human life. This dissertation will contribute to orientate future research on the moral and political grounds for the rights of profoundly mentally disabled people, as well as question or curtail the breadth of certain key assumptions of social contract theories.

While the United Kingdom has a general commitment to religious freedom, there is currently very little written on what this commitment ought to mean for religious organizations. This thesis contributes to religious freedom literature by considering when United Kingdom law ought to apply to religious organizations. It answers this question by exploring certain potential conflicts between United Kingdom law and religious organizations paying particular attention to those that are under-examined and where the possibility of differential treatment is strongest. The thesis is divided into three parts. Part One consists of Chapter One and sets out the doctrinal and theoretical foundations of religious freedom. Here the thesis accepts that autonomy is the liberal normative justification for religious freedom. Part Two consists of Chapters Two to Chapter Seven and examines the interaction between United Kingdom law and religious organizations in six contexts: employment; the provision of goods and services; membership admission; internal discipline, internal property disputes; and family matters. Each chapter in Part Two is divided into two parts. The first part considers the legal doctrine that applies to religious organizations in that context. It then considers whether that approach can be justified in light of the commitment to religious freedom and autonomy identified in Part One. Part Three consists of the final chapter, Chapter Eight. This chapter uses the conclusions from the preceding doctrinal chapters to suggest a general approach for determining when law should apply to religious organizations. The thesis concludes that a contextual approach, that considers the often competing interests involved, is the best way of determining when law should apply to religious organizations. Such consideration ought to pay special attention to the importance of the particular activity to ensuring that the option of a religious way of life is available.

SUMMARY: Linguistic interpretation of a legal text in philosophical contexts Keywords: philosophy of law, interpretation of law, language interpretation The thesis deals in a broader sense of the word with interpretation of legal texts and in the strict sense of the word with language interpretation itself. At the beginning of my thesis I explain why this is so particularly topical and problematic issue in the contemporary law. The reason is mainly the fact that because of many changes and events the modern law is more complex and extensive than in the past. This naturally leads to the question how to interpret such law. The aim of the thesis was to compare the relationship of law and language in the context of analytical philosophy, which was one of the most influential intellectual movements of the 20th century. The language is a paradigm of many scientific theories nowadays and as such deserves more intention of lawyers. I focused mainly on the role of meaning of words used for interpretation. In particular, I discussed the issue whether a legal term can name a thing. The most important finding of my thesis is the following one: No, things can not be named by meaning of the individual expressions. To prove the theory the thesis also deals with some other philosophical issues. Chapter VIII, for...