DOI: 10.1093/clp/cur014

A different-sex marriage need not be a marriage between heterosexuals, and a same-sex marriage need not be a marriage between homosexuals. This shows how little the law of marriage cares about the sexuality of parties to a marriage; it does not show that sex-restricted marriage laws do not discriminate on grounds of sexual orientation. They do. Neither does the law care much about sex, let alone possibly procreative sex, within marriage. The voidability of a different-sex marriage on grounds of non-consummation does not show otherwise. The formation of a valid marriage was always a matter of consent, not coitus. But what should happen to the doctrine of non-consummation in a sex-neutral marriage regime? It is an anachronism that should be abolished.

ISBN: 0070-1998

This article seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a “separation of law and morals.” The paper contends that Hart's “separability thesis” should not be confused with the “social thesis,” with the “sources thesis,” or with a methodological thesis about jurisprudence. In contrast to all of these, Hart's separability thesis denies the existence of any necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among them is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasized what he called the “internal morality of law,” the “morality that makes law possible”. Hart’s most important message is that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.

ISBN: 0028-7881

Why is it that toleration can be uncomfortable for the tolerated? And how should tolerators respond to that discomfort? This paper argues that properly directed toleration can be deficient in its scope, grounds or spirit. That explains some of the discomfort in being tolerated. Beyond this, the occasions for toleration¿the existence of a power to prevent and of an adverse judgment¿can also make toleration sting. The paper then explores and rejects two familiar suggestions about how one should respond to this discomfort: with acceptance or recognition of the tolerated. It is proposed instead that toleration should be supplemented by understanding. The nature and importance of this attitude are assessed.

ISBN: 978-0-19-954289-5