This project uses Michel Foucault’s underdeveloped notion of “tolerated illegality” as a departure point for two converging inquiries. The first analyzes, and then critiques, dominant legal logics and values. This part argues that traditional legal philosophers exhibit a “disagreement without difference,” generally concurring that legal certainty and predictability enhance agency. Subsequently, this section critiques “formal legal” logic by linking it to science envy (specifically the desire for certainty and predictability), and highlighting its agency- limiting effects (e.g. the violence of law en-force-ment). The second part examines multiple dimensions of tolerated illegality, exploring the permutations of this complex socio-legal phenomenon. Here the implications of tolerated illegality are mapped across different domains, ranging from the dispossession of Indigenous peoples of their lands, to the latent ideologies embedded in superhero shows. This section also examines the idea of liberal “tolerance,” as well as the themes of power, domination, politics, bureaucracy, and authority. Ultimately, this project demonstrates that it is illuminating to study legality and (tolerated) illegality in tandem because although analyses of “formal legality” provide helpful analytical texture, the polymorphous and entangled nature of tolerated illegality makes clear just how restricted and artificial strict analyses of legality can be. / Graduate

This thesis brings together two responses to the question ‘how can the law extend the timeframe for environmentally relevant decision-making?’ The first response is drawn from the context of institutional investment, and addresses the timeframe and breadth of environmental considerations in pension fund investment decision-making. The second response is related to the context of public environmental decision-making by legislators, the judiciary, and administrators. Three themes underlie and bind the thesis: the challenges to decision-making posed by the particular temporal and spatial characteristics of environmental problems, the existence and effects of short-termism in a variety of contexts, and the legal notion of the trust as a means for analysing and addressing problems of a long-term or intergenerational nature. These themes are borne out in each of the four substantive chapters. Chapter III sets out to demonstrate the theoretical potential of pension funds to drive the reduction of firms’ environmental impact, and, focusing particularly on the notion of fiduciary duty, explores the barriers that stand in their way. Chapter IV provides a practical application of the theoretical recommendations outlined in its predecessor. It provides a framework outlining how pension funds might implement a longer term, more sustainable approach to investing. The second half of the thesis, operating in the context of public environmental decision-making, is centred upon a particularly poignant legal notion with respect to the environment and time: the concept of intergenerational equity. Just as the first half of the thesis deals with the timeframes relevant to investment decision-making by pension funds within the bounds of fiduciary duty, largely a private law affair with public implications, the second half of the thesis is concerned with the principle of intergenerational equity as a means for extending the decision-making timeframe of legislative, judicial and administrative decision-makers. As previous analyses of the concept of intergenerational equity provide little insight into its practical implications when applied to particular factual situation, Chapter V sets out the structure of the principle of intergenerational equity as revealed by case law. Chapter VI brings together the issues from the first three papers by conceptualising intergenerational equity in resource management as an issue of long-term investment. Long-term environmental decision-making faces many obstacles. Individual behavioural biases, short-term financial incentive structures, the myopic pressures of the electoral cycle and the tendency of the common law to reinforce the (often shorttermist) status quo all present significant barriers to the capacity of both private and public decision-makers to act in ways that favour the longer term interests of the environment. Nonetheless, this thesis argues that there is reason for hope: drawing upon the three themes that underlie all of the substantive Chapters, it articulates potential legislative changes and recommends the adoption of particular governance structures to overcome barriers to long-term environmental decision-making.

A critical investigation of the public/private distinction as it has been conceived in Anglo-American political thinking in the second half of the 20th century. A broadly held consensus has developed amongst many theorists that public/private does not refer to any single determinate distinction or relationship but rather to an often ambiguous range of related but analytically distinct conceptual oppositions. The argument of this thesis is that if we approach public/private in the search for analytic or conceptual clarity then this consensus is correct. Against this I propose that a number of the most dominant invocations of the distinction can be understood to express public/private as an irreducibly political dialectic that mediates the relationship between the subjective and objective side of social and political life. By locating these conceptually diverse invocations within a broader and more determinate framework of the historical development and contestation of the boundaries which establish the conditions for subjectivity, as the assertion of political agency, on the one hand, and which demarcate, police and defend these particular boundaries, as part of the objectively given character of social life and institutional organisation, on the other hand, then a more determinate character to public/private can be recognized. I then seek to explore the capacity of this model to capture and explain the peculiar post-war problematisation of public/private amongst a number of new left thinkers in Britain and America.