Dwight G. Newman

Exit, Voice, and 'Exile': Rights to Exit and Rights to Eject

† I am grateful to Timothy Endicott and Joseph Raz for discussions on and written comments on substantial parts of versions of this article, which derives from a portion of Dwight G. Newman, Community and Collective Rights (D.Phil. Thesis, Oxford University Faculty of Law, 2005) [unpublished]. I am grateful to the anonymous reviewer for further comments and challenges. I thank Carolyn Frantz, Hans Oberdiek, and Leslie Sebba for comments on some of my claims. I have delivered earlier versions of this article at the Oxford University Jurisprudence Discussion Group and at a special seminar at the Law University of Lithuania. I thank all who commented on these occasions and, in particular, Simonne Horwitz, Maris Köpcke Tinturé, Dimitrios Kyritsis, John O’Dowd, Charalampos Papadopoulos, Vesselin Paskalev, Danny Priel, Prince Saprai, Ron Stevenson, and Delaine Swenson. I thank the Rhodes Trust and the Social Sciences and Humanities Research Council of Canada (SSHRC) for financial support during the preparation of this article. 1 Chandran Kukathas, ‘Are There Any Cultural Rights?’ (1992) 20 Pol.Theory 105 at 133. 2 Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1995) at 187 [Raz, Ethics] (though acknowledging that rights of exit are an ‘imperfect’ safeguard). 3 See, e.g., John Rawls, Political Liberalism (New York: Columbia University Press, 1996) at 221; Robert Nozick, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974) at 299, 312, 320, 330–1; Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ: Princeton University Press, 2002) at 19–20; William Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (Cambridge: Cambridge University Press, 2002) at 123 [Galston, Libereal Pluralism].

Indigenous Title and Its Contextual Economic Implications: Lessons for International Law from Canada's Tsilhqot'in Decision

International law on the rights of Indigenous peoples has developed rapidly in recent decades. In the latest phase of this development, international instruments on the rights of Indigenous peoples have increasingly offered universalized statements. However, the reality remains that the implementation of Indigenous rights must take place in particular circumstances in particular states. The form of domestic implementation of Indigenous rights may or may not connect closely to international law statements on these rights, and there may be good reasons for that. This essay takes up a particular example of Indigenous land rights and a significant recent development on land rights in the Supreme Court of Canada.

Private international law and the Internet, 2nd edn

basis for deeper analyses at some other levels. For example, the author noted (in the context of directors’ general duties) that ‘some considerable criticism has been levelled at the limited benefits codification will bring and how it may have the tendency to oversimplify and to condense case law developed over many years in response to an extensive variety of circumstances’ (p 59). In a sense, this seems to pre-empt a real concern about what may be perceived as a permissive regulatory system in corporate governance, which seems to find anchorage in the hope that the main actors in the corporate sector would behave and be influenced by moral suasion. This is quite different from the hard law approach of the American Sarbanes-Oxley Act, which does not offer the broad luxury to ‘comply or explain’, for example. It certainly is a matter for debate whether the ‘comply or explain’ regime is ‘still considered to work very well’, as postulated by the author (see p 327). However, such analyses would be the subject of some other scholarly venture. It might be expected that a book in its eleventh edition would be no less comprehensive, with the obvious opportunities to build and improve over time. Yet, this cannot be taken for granted in much the same way as the practical and resourceful nature of the book is not necessarily coterminous with having several editions. Thus, such qualities deserve commendation. Perhaps someday the author might consider some adventure in the consummate researcher’s terrain – that is, moving beyond description to providing some in-depth analyses, detailed referencing and evaluating grey areas or pitfalls in existing laws. This may well be a difficult decision, because it has the potential to make the book seem to lose its highly practical nature, which quality professionals from various backgrounds must find most attractive and useful. For now, however, the author seems to generally accomplish what she sets out to achieve.

A legal‐historical consideration of links between Canadian and South African racial policies

Significant recent writings have suggested strong parallels and actual links between the historical legal architectures of Canadian Aboriginal policy and South African apartheid. This articles further probing of these claims shows them to be very doubtful. At the same time, some more limited legal parallels between the two systems shows the importance of undertaking further analysis of the transmission and exchange of legal ideas and norms within the Commonwealth order.

Legal Protection of Sacred Natural Sites Within Human Rights Jurisprudence: Sápmi and Beyond

The protection of Indigenous sacred natural sites does not fit easily within Western freedom of religion jurisprudence. This chapter examines what room there is for sacred natural sites within regional human rights jurisprudence, in Europe and beyond. The authors ultimately argue that there is potential to develop freedom of religion so as to offer protection to sacred natural sites, particularly if weight is given to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Why Majority Rights Matter in the Context of Ethno-Cultural Diversity: The Interlinkage of Minority Rights, Indigenous Rights, and Majority Rights

Many discussions of ethno-cultural minority rights and indigenous rights have proceeded on the assumption that such rights flow from minority status or indigenous status rather than from collective interests of these communities. This focus on marginalized identities as the source of rights held by communities implicitly excludes the possibility of rights held by majority communities. This chapter challenges such an approach and simultaneously argues for the reality of majority rights. Part 1 contextualizes the issues and introduces the chapter. Part 2 explains a first disadvantage for minorities and indigenous communities themselves in an approach focused on marginalization, which is effectively that the approach risks locking them into victimhood. Part 3 considers the particular problems of minority groups that have regional majority status and thus need majority rights. Part 4 considers the particular problems of indigenous communities that have self-governmental powers recognized and thus similarly need majority rights within their jurisdiction. Part 5 introduces the author’s broader theoretical approach to collective rights, grounded in collective interests, and commences an argument that this approach properly grounds majority rights alongside minority rights and indigenous rights. Part 6 considers the frequent challenge that majority rights will be used to diminish minority rights and presents an account of how these different categories of rights can appropriately be reconciled. Part 7 introduces several policy implications, and Part 8 offers some brief concluding thoughts. Ultimately, the chapter argues for recognizing majority rights on the same platform as minority rights and indigenous rights, though arguing for a different platform than is often used for those rights, and argues that a principled approach to all of these rights can offer a set of interlinking rights that respect all communities.

The PHS Case and Federalism-Based Alternatives to Charter Activism

In the recent case of Canada (AG) v PHS Community Services (PHS, often called the Insite Decision), the Supreme Court of Canada purported to offer a case-specific decision limited to Vancouver’s Insite injection facility. The decision saw the Court declare that the Federal Minister of Health could not decline to continue an exemption from narcotics provisions for the Insite Clinic, which provided an injection site for narcotics users in Downtown Eastside Vancouver. Despite the Court’s claim to want a case-specific decision, I argue in the present discussion that by basing their decision on section 7 of the Charter, rather than using the alternative federalism argument that was available, the Court adopted a more activist route with more disruptive future legal consequences.

Custom as a source of law

by David J Bederman, Cambridge, Cambridge University Press, 2010, 266 pp., £55.00/

Liberalist Multiculturalism and Will

85.00 (hardback), ISBN 978-0-521-89704-4, £19.99/

The duty to consult : new relationships with Aboriginal peoples

29.99 (paperback), ISBN 978-0-521-72182-0 Discussions of customa...