This dissertation presents a concept of diversity as an ideal of international economic regulation. The theme of diversity refers to the differentiation of individual competitive strategies. The first advantage of such differentiation is argued to be as a means of stable and adaptive progress; increasing the number of possible techniques with which to meet as yet unforeseen challenges. As the first principle of diversity entails a method for systemic responsiveness, the second principle gives content to this method and states that social goals should serve as the incentives encouraging competitors toward differentiation. The advantage offered by the second principle is that social non-economic goals may be advanced in the present, as individuals attempt new routes to personal reward via the satisfaction of collective objectives that previously may have had little or no economic value. As an ideal of diversity contemplates a method of systemic incentives, rather than mandated outcomes, the location of innovation remains individual competitors. Accordingly, the ideal of diversity is justified and articulated from a basis in individual rights. Diversity is argued to be the optimal set of principles which individuals would select if given the ability to design a new competitive system. In joining a method of differentiation with the added social content of non-economic priority, diversity offers a unique blend of economic efficiency and equity; or of self-interest and concern for the welfare of others. Diversity allows an individual to think of their own pursuit of gain, but also and simultaneously further collective goals by selecting the priorities that should influence competitors toward differentiation. Other’s welfare becomes a route to individual success. The project progresses through three broad conceptual stages. First, international problems of market failure are considered in light of strategies and the economic impulses toward self and system defeating cycles of competition. Second, a redefinition of legal and economic progress is offered to meet conditions of unpredictability, and to arrive at an evolutionary method that encourages constantly competitive variation with which to meet society’s future challenges. Third, an evolutionary approach to international regulation is translated into a priority system of legal rights. / Law, Faculty of / Graduate

Some legal theorists argue that legal determinations apparently based on moral arguments actually involve an appeal to extra-legal standards because legal reasoning and the conceptual structure of a legal system necessarily excludes morality (Exclusive Legal Positivism). Others argue that moral principles can be _incorporated into legal systems (Inclusive Legal Positivism), or must be so incorporated (Dworkinian Interpretivism), where they operate as legal rules. Does Canada's Charter of Rights and Freedoms actually incorporate the moral principle of equality, or does it merely authorize judges to appeal to that extra-legal principle as a legitimate reason for invalidating those laws which violate it? To answer that question the philosophical legal theorist must evaluate and develop an account of juridical law in the face of epistemic uncertainty about the relation between law and morality (i.e. whether it is necessary or contingent). In this work I first consider the meta-theoretical characteristics of legal theories, particularly their methodologies and the evaluative criteria applied to them, so as to identify and make explicit the source of legal-theoretical epistemic uncertainty. I then argue for an approach to describing and explaining law whereby we neither ignore epistemic uncertainty nor dispense with it by means of a stipulative definition. This inclusive positivist approach, however, also requires that we abandon the ideal of a presuppositionless inquiry. Accordingly, I demonstrate how a descriptive-explanatory philosophical account of law can make use of a presupposition and, ultimately, offer a sound defense for it. Finally, through an analysis of some aspects of Canadian constitutional adjudication, I show that inclusive positivism is most able to describe and explain the legal-moral uncertainty exhibited by participants in legal systems of a certain type, and so offers the best philosophical account of legal practices as they are understood by those who instantiate them. / Thesis / Doctor of Philosophy (PhD)

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The law assigns to parents primary responsibility for their children and invests them with significant powers and discretion to discharge their duties. The considerable deference the law affords parents can appear to undermine important social and political values like equality, tolerance and social stability. The aim of this thesis is provide a rational account of why parents are invested with legal responsibility and authority over their children, and why the law limits state scrutiny of parental choice. To do so, I develop Hegel’s legal and political philosophy in order to show the family to be a necessary part of a system of institutions that constitute human freedom. As such, Hegel’s thought provides grounds to affirm the family, and broad scope of parental authority, even though the family constrains efforts to achieve equality of opportunity and can propagate intolerant and idiosyncratic values to subsequent generations.

The law assigns to parents primary responsibility for their children and invests them with significant powers and discretion to discharge their duties. The considerable deference the law affords parents can appear to undermine important social and political values like equality, tolerance and social stability. The aim of this thesis is provide a rational account of why parents are invested with legal responsibility and authority over their children, and why the law limits state scrutiny of parental choice. To do so, I develop Hegel’s legal and political philosophy in order to show the family to be a necessary part of a system of institutions that constitute human freedom. As such, Hegel’s thought provides grounds to affirm the family, and broad scope of parental authority, even though the family constrains efforts to achieve equality of opportunity and can propagate intolerant and idiosyncratic values to subsequent generations.

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In contemporary legal writing and discourse, Lord Atkin’s neighbour principle is unloved. The now dominant view is that the neighbour principle performs no practical function since it is a mere descriptive label of the very different factual circumstances in which a duty to take reasonable care exists. It is the central contention of this paper that the neighbour principle is – in fact – invaluable as aid for the principled development of the tort of negligence. As this paper will show, the neighbour principle furnishes a common perspective that renders possible uniform determinations of analogical similarity and difference between novel categories of relations and established forms of negligent liability. The principle thus works in tandem with analogical reasoning to ensure objectivity in the delineation of the proper ambit of negligence law’s protection. Accordingly, the principle is an essential in ensuring a principled law of negligence whereby like cases are treated alike.

In contemporary legal writing and discourse, Lord Atkin’s neighbour principle is unloved. The now dominant view is that the neighbour principle performs no practical function since it is a mere descriptive label of the very different factual circumstances in which a duty to take reasonable care exists. It is the central contention of this paper that the neighbour principle is – in fact – invaluable as aid for the principled development of the tort of negligence. As this paper will show, the neighbour principle furnishes a common perspective that renders possible uniform determinations of analogical similarity and difference between novel categories of relations and established forms of negligent liability. The principle thus works in tandem with analogical reasoning to ensure objectivity in the delineation of the proper ambit of negligence law’s protection. Accordingly, the principle is an essential in ensuring a principled law of negligence whereby like cases are treated alike.

The thesis seeks to examine the apparent tensions between fundamental ideas found in the literature of fifteenth century English legal theory and practice. The theorists studied are Fortescue and Pecock (whose ideas are set against those of their English and continental predecessors and contemporaries) and the practical materials examined are the Year Books and the Statutes. The work attempts to advance the view that legal thought in fifteenth-century England, both theoretical and practical, is characterised by two essentially opposing concepts of law. According to one outlook, described as the heteronomist thesis, in legal theory human law relies for its authority upon <i>natural law</i> and <i>justice</i>: it is not the human will which is used to shape law, it is these entities, divine in origin, which operate as external influences in the shaping of law. In the Year Books and in legislation the heteronomist thesis expresses itself as a mode or practice of disposing of cases and problems. Persistently during the period, legislators, judges and counsel rely upon <i>conscience</i> and <i>divine law</i>, and to a lesser extent <i>natural law</i> (distinctly moral ideas), and <i>reason</i> and <i>mischief</i> (more mundane ideas of good sense and wrong), to shape and legitimise their respective decisions. According to the other outlook, the autonomist thesis, it is simply the human will that shapes law, rather than abstractions like morality. In legal practice, and to a lesser extent in legal theory, popular <i>consent</i> and <i>usage</i> are conceived to supply the authority which immediately underlies law: it is from these that law and legal decisions originate. This prepares the way for the beginnings of a positivist view of law, by stressing the autonomy of law, its independence from the influences of abstract right and wrong. Legal theory supposes that humanly-created rules are still laws even when they depart from the requirements of abstract right and wrong. In the practical sphere, legislative enactments which are against <i>conscience</i> or which produce <i>mischief</i> are treated as entities which have to be expressly repealed, they are not automatically void. Similarly, judges commonly reject arguments based explicitly upon the claims of <i>reason</i> or <i>conscience</i>: the courts are shy of departing from the demands of law, from the <i>rigor iuris</i>; to depart from established practice would result in <i>inconvenience</i>, inconsistency, and this the courts would exclude even if it meant that a particular individual suffered a <i>mischief</i>.