This database goes back to Michaelmas Term 2003, thanks to Danny
Priel's detailed compilation (2003-2005). But the JDG started in the late nineties.
| Schedule for HT 2009|
Week 1 (Thu, 22 Jan): Giovanni Battista Ratti
The Logical Structure of Legal Disagreements
In the paper I carry out an attempt to tackle and reconstruct the
problem of legal disagreements, as raised by Dworkin and taken up by
Scott Shapiro and Brian Leiter. In so doing, I examine the on-going
debate on legal disagreements in light of some ideas, which can be
found in Continental analytical jurisprudence. More precisely, I try to
defend legal positivism (understood not in Hartian terms, but rather in
Kelsenian and/or Alf Ross’s terms) on the basis that a legal realistic
view on legal interpretation (such as Kelsen’s or Ross’s) allows a
clearer reconstruction of the phenomenon of disagreements in law and a
dissolution of Dworkin’s second critique. My point is the following:
Dworkin is right in holding that contemporary legal systems seem to be
pervaded by disagreement. Nevertheless, there are different kinds of
disagreements about law: in particular, one can distinguish between
disagreements on legal sources and disagreements on the meaning-content
of such sources. Once this distinction is put in place, one can see
that disagreements on sources seem to be relatively rare in
contemporary legal orders, whereas disagreements on the meaning of
sources seem to be rampant. The point of the paper consists in
connecting these two ideas, and holding that legal positivism, in order
to satisfactorily respond to Dworkin’s criticisms, only has to stress
the phenomenon of agreement on sources, but not necessarily the
phenomenon of consensus on their interpretation.
Giovanni Battista Ratti is Lecturer in Legal Philosophy at the Faculty of Law, University of Girona.
Week 2 (Thu, 29 Jan): Andrea Dolcetti
Universal Jurisdiction Through Dante's Eyes
In this presentation I will discuss whether a universal jurisdiction is justifiable in the name of peace. This problem is relevant to the current state of international relations; it can nonetheless be profitably discussed with special reference to the political work of Dante Alighieri - or so I will argue. While an International Court of Justice has been established, its jurisdiction remains problematic. This reflects the tension between the idea of a universal jurisdiction and the principle of equal state sovereignty. Anyway, the commitment to settling conflicts and restoring justice within the international community by peaceful means, presently stated in the Charter of the United Nations, can be interpreted as the result of centuries-old experiences and the expression of normative theories and utopias about political life. The normative issues posed by the idea of a universal jurisdiction embodied in the political and legal power of a universal Monarch were discussed by Dante on three different levels: philosophical, historical, and theological. Given Dante's key position in the history of universal peace projects, it is likely that a careful analysis of his political ideal will prove useful to the understanding of the current international judiciary situation.
Andrea Dolcetti is M.St. student in Law at St Hilda's College, Oxford.
Week 3 (Thu, 5 Feb): Kimberley Brownlee
A Brief Examination of the Demands-of-Conscience Defence
this paper, I examine some issues related to demands of conscience. In
particular, I consider the legitimacy of a demands-of-conscience
defence for breach of law. I begin by examining the notion of
conscience, distinguishing, amongst other things, between negative
demands and positive demands of conscience. I then examine critically
both Joseph Raz’s qualified rejection of a legal defence for
conscientious objection and Jeremy Horder's limited endorsement of a
demands-of-conscience defence. Concerning the latter, I question
Horder's claim that such a defence could not be extended to acts of
suitably constrained civil disobedience.
Kimberley Brownlee is Lecturer in Philosophy at the University of Manchester, and this term's HLA Hart Fellow at the Oxford CEPL.
Week 4 (Thu, 12 Feb): Amit Pundik
The Inevitable Efficiency of Using Racist Statistical Evidence in Court
a hypothetical case, Abraham, a wealthy Jewish businessman, is accused
of a tax fraud and he also denies the allegations. In his trial,
the prosecution seeks to use statistical evidence which had been
gathered and analysed with the utmost proficiency. According to
these statistics, the probability of a person committing tax fraud is
doubled if he is Jewish. The use of such evidence is obviously
objectionable. The question is why this evidence should be
excluded from court. This paper argues that it is very difficult
for efficiency theories of law to provide a good justification
excluding this evidence. In contrast, corrective justice theories
(e.g. Weinrib) are better placed to do so. If successful, this
argument identifies an advantage of corrective justice theories over
their efficiency competitors. It also identifies the limitations
of the efficiency theories and highlights that they lead to some
problematic consequences in evidence law, consequences which have so
far been overlooked.
Amit Pundik is DPhil student in Law at Balliol College, Oxford, and Fellow of Hughes Hall, Cambridge.
Week 5 (Wed, 18 Feb): Walter Sinnott-Armstrong
Note: change of weekday
Brain Images as Legal Evidence
brain images probative of legal issues? Are they prejudicial in jury
trials? This paper explores these issues, citing some recent empirical
Walter P. Sinnott-Armstrong is Professor of Philosophy and Hardy Professor of Legal Studies at Dartmouth College
|Wed, 25 Feb|
The Morality of War (vs?) The Laws of War
Allen Buchanan, Jeff McMahan, and Jeremy Waldron
(drinks from 5.15pm)
Theatre, Faculty of Law, St Cross Building
event is part of a project on "Civil Society and the Rule of Law" supported by the Mellon Foundation.
|Thu, 26 Feb: Jeff McMahan|
Proportionality in Self-Defense and War
is generally assumed that proportionality is a relatively simple matter
of determining whether the bad effects of an act of self-defense or war
are excessive in relation to the intended good effects. It is,
however, vastly more complicated than this. There are many
dimensions to proportionality of which most legal theorists and just
war theorists are barely aware. Most people assume, for example,
that proportionality in self-defense is concerned with the harm that
one inflicts on the attacker, while proportionality in war is concerned
with harms inflicted on innocent bystanders. But there are in
fact distinct dimensions to proportionality in both self-defense and
war, one concerned with the harm inflicted on the attacker and another
concerned with harm inflicted on innocent bystanders. I will also
argue that the good effects that count in the first of these
proportionality calculations are more restricted than those that count
in the second, that both these proportionality restrictions are
sensitive to the agent’s intentions, and that there are deep
difficulties in determining the baseline for comparisons in
proportionality judgments. I will consider whether
proportionality is concerned with actual consequences or expected
consequences, and whether it allows any scope for personally partiality
in the evaluation of consequences. Finally, I will argue that
combatants who fight in a war that is unjust because it lacks a just
cause cannot in principle satisfy any of the proportionality conditions
on the morality of action, so that at present there is a necessary
divergence between proportionality in morality and proportionality in
the law of war.
Jeff McMahan is Professor of Philosophy at Rutgers University.
|Mon, 2 Mar|
The Hart-Fuller Debate: 50 Years On
Leslie Green, Nicola Lacey, Ruti Teitel
(drinks from 5.30pm)
Theatre II, Faculty of Law, St Cross Building
More details and draft papers here.
|Thu, 5 Mar: Pavlos Eleftheriadis|
Law and Sovereignty
looked at more carefully, the idea of sovereignty is actually very
strange. It assumes that a person or body may have all the powers of
law-making and none of the disabilities. This idea is actually contrary
to the idea of law. The reason is that law is not a command by anyone,
a mandate or a threat, but a text or argument that guides. This is now
commonplace among theories of law as diverse as Hart's legal positivism
and Dworkin's interpretivism. If this is generally held to be true,
then it should also be so held that sovereignty and law are actually
incompatible and mutually exclusive.
Pavlos Eleftheriadis is University Lecturer in Law, and Fellow and Tutor at Mansfield College, Oxford.
Week 8 (Thu, 12 Mar): Margaret Martin
Raz's Morality of Freedom: Two Conceptions of Authority
In The Morality of Freedom,
Joseph Raz situates his theory of law within a theory of authority.
Central to his project is an articulation of the conditions under which
a law or set of laws is binding on citizens: while all law claims
legitimate authority, not all law actually possesses it. A law, Raz
contends, is binding if by acting according to it, we are more likely
to comply with right reason; i.e., with reasons (including moral
reasons) which independently apply to us. This is Raz’s “normal
justification thesis,” a thesis about authority that seeks to
articulate the general conditions that must obtain for a given
directive to be morally justified and thus binding. Raz combines this
thesis with what he calls the “pre-emption thesis:” the directives of
an authority do not give us reasons which we may add to one side or the
other of our own judgment of the balance of reasons, but rather they
pre-empt our judgment and replace it with a new reason for acting. The
pre-emption thesis requires a pre-commitment to act according to the
norm in question while the normal justification thesis asks us to
evaluate the norm in question. Because Raz argues that only
justified norms are binding (and thus pre-emptive), we are continually
asked to evaluate the legal norm in question before acting according to
it. In short, the normal justification thesis undermines the
pre-emptive status of legal norms. I argue that Raz’s attempts to
overcome this tension - for instance by appealing to the distinction
between jurisdictional mistakes and other mistakes – fail.
Consequently, instead of offering us a unified account of legal
authority, Raz vacillates unstably between two different conceptions of
legal authority. Specifically, I argue that the pre-emption thesis and
the normal justification thesis offer us different models of authority
which are borne of different methodologies. The pre-emption thesis,
which is a re-articulation of Raz’s view that laws give us exclusionary
reasons for action, is the product of his positivist descriptive
methodology. Conversely, the normal justification thesis is the
centerpiece of his “focal concept” of authority. Raz does not
describe the common features shared by all authorities, but rather
looks to the ideal of morally justified authority to illuminate the
nature of authority in general. I argue that these methodological
approaches are fundamentally incompatible, and thus the tension in The Morality of Freedom is ineradicable.
Margaret Martin is Assistant Professor of Law at the University of Western Ontario.
| Schedule for MT 2008|
Oct): Jeremy Waldron
Partly Laws Common to all Mankind: Natural Law or the Law of
Waldron will discuss the suggestion that the law of nations (ius
gentium) has an important role to play in modern
(In a recent article and in his 2007 Storrs Lectures at Yale, Professor
Waldron argued that ius gentium provides an instructive model for
understanding the citation of foreign law in domestic cases - for
example, in the American juvenile death penalty case, Roper v. Simmons
543 U.S. 551 (2005).) Ius gentium is not the same as international law,
and the ways in which it is connected to (and differs from)
philosophical conceptions of natural law are very important.
Understanding all this involves a salutary complication of our usual
views about the relation between positive and natural law.
The following papers provide some
background for the talk (the talk will be an independent paper)
Waldron is University Professor at New York University Law School, and
2008-9 Fowler-Hamilton Visiting Fellow at Christ Church, Oxford.
Week 2 (Thu, 23 Oct): Sari
argue that Ronald Dworkin cannot explain some of the more complex
verdicts that the law can return in which the law directs judges to
reason morally, but does so in a constrained way. I argue that
Dworkin’s insistence on a moral test for the legal validity of moral
considerations renders him vulnerable to this difficulty. But, I argue,
he is committed to advancing such a test since it is only on this
interpretation of Dworkin’s position that he can ground his
in-principle objection to positivism. I thus conclude that it must be
possible for the ultimate test for the legal validity of moral
considerations to be a posited, rather than a moral one.
Sari Kisilevsky is a Postdoctoral Scholar in the UCLA Law and
Week 3 (Thu, 30 Oct): Richard Ekins
The nature of the legislature
Waldron argues that legal philosophers have neglected the study of
legislation and wrongly assumed a unitary model of the legislature,
ignoring the significance of the differences between a legislative
assembly and a sole legislator, such as a prince. Political
scientists study the legislature but they advance sceptical, reductive
accounts that overlook the distinctive value of legislatures and fail
to aid the understanding or interpretation of legislation.
Waldron argues that the features that mark out the legislative assembly
- size, diversity, and disagreement - support an alternative model of
the legislature, which he terms the voting machine. I agree that
legal philosophy has neglected the legislature. However, I argue
that the central case of the legislature is an assembly structured to
reason and act like a single person: that is, like a prince. The
point of the legislature is to stand ready to change the law when need
be, and changing the law for the common good requires reasoned
choice. There is good reason to authorise an assembly rather than
a prince to legislate but this changes who it is that legislates not
what it is to legislate. That is, for both the prince and the
legislative assembly, legislating is a choice in response to reasons to
change the law. The voting machine model would frustrate reasoned
choice and cannot explain the exercise of legislative authority;
ironically, the model has much in common with reductive accounts that
Waldron otherwise rejects. I conclude that there is good reason
for the legislature to be structured to make decisions like a single
Richard Ekins is DPhil student at Balliol College, Oxford.
Week 4 (Thu, 6 Nov): John
How Law Claims, What Law
In this paper, written
for a volume on the work of Robert Alexy, I discuss the idea that law
makes certain distinctive claims, an idea familiar from the work of
both Alexy and Joseph Raz. I begin by refuting some criticisms by
Ronald Dworkin of the very idea of law as a claim-maker. I then discuss
whether, as Alexy and Raz agree, law's claim is a moral one. Having
arrived at an affirmative verdict, I discuss the content of law's moral
claim. Is it, as Alexy says, a claim to moral correctness? Or is it, as
Raz says, a claim to moral authority? (An appendix examines Oliver
Wendell Holmes' judicial work to show that, pace Dworkin, Holmes does
indeed make moral claims for law.)
Gardner is Professor of Jurisprudence and
Fellow of University College, Oxford.
Week 5 (Thu, 13 Nov): Marcin Matczak
The ‘multiple groundings’ idea and how it applies to law
to Kripke and his causal theory of reference, a word starts its life
with an ‘original baptism’ – the first use of a word with reference to
a particular object. When people use the word later on, they
multiple-ground it in the original reference situation, confirming the
first designation. However, as G. Evans and M. Devitt indicate, the
multiple groundings can also cause a designation shift: this occurs
when people start referring to other objects or states of affairs while
using the same word, thereby changing its original meaning.
that the causal theory of reference apply to theoretical and legal
terms (as some legal theorists and linguists argue), one can use the
multiple groundings idea to understand better such legal phenomena as
the dynamic interpretation of law as opposed to originalism, foreign
law references in adjudication and their compatibility with legal
positivism, and compliance with a non-binding precedent in continental
legal systems. These are all based on the assumption that to identify a
word’s referent we need to reconstruct a chain of usages of the word
and the situations in which it was used. Therefore to identify a word’s
meaning one needs to know to what members of the same interpretative
community have referred in the past while using it and how they have
changed its reference through time, if at all.
With regard to
legal terms this means to reconstruct the situations of its past and
contemporary usage in legal discourse understood in a broad context,
not only a national one. Instances of such usage can be found in court
verdicts, legal doctrine and general language use. In the process of
legal interpretation the reconstruction of previous usages is applied
to aid the argument that a particular term is to be understood in a
particular way, since while using it members of the same interpretative
community have referred to a particular element of reality.
multiple groundings idea allows legal interpretation to be rooted in a
powerful theoretical framework based on the pragmatic analysis of legal
language and epistemological realism. It helps to understand how what
we call ‘legal culture’ develops over time and how an individual (e.g.
a judge) may influence the general way of understanding legal terms by
attempting a convincing designation shift. These and other arguments in
favour of the usefulness of the multiple groundings idea for legal
theory are the topic of the paper.
Matczak is Lecturer in Legal Philosophy at the University of Warsaw
(Poland) and research associate at the Centre for Socio-Legal Studies,
Week 6 (Thu, 20 Nov): Steven Lee
The Moral Distinctiveness of Genocide
has been called “the crime of crimes.” Genocide is thought to be
morally special, a class of moral evil unto itself. The belief that
genocide is morally special is wide-spread, but it is not clear what it
means to claim that genocide has this status. In this paper, I offer an
account of genocide that assumes it to be morally special. I take it to
be one of the principal requirements of an adequate account of genocide
that it explain why and how it is morally special. I distinguish
between individualist and collectivist accounts of genocide and argue
for an individualist account, against the assumption that only a
collectivist account could explain why genocide is morally special. I
also consider whether it is the actus reus or the mens rea
of genocide that is more characteristic of the crime, and whether it is
the genocide or the individual acts of which it is composed that is
more fundamental to our understanding of the concept.
Lee is Professor of Philosophy at Hobart and William Smith Colleges
(Geneva, NY), and this term's HLA Hart Fellow at the Oxford CEPL.
Week 7 (Thu, 27 Nov): Danny Priel
New Questions for JurisprudenceThe
most widely discussed question within analytic jurisprudence in the
last half century has been "What is law?". In other work I have argued
that concern about this question has been misplaced, and that the
methods employed for answering it are unsatisfactory. The paper I will
present suggests new questions and perhaps also a new framework
for thinking about law. I will argue that focusing on these questions
will prove more illuminating on law, and could perhaps even prove a
more fruitful way for answering the old "What is law?".
Priel is Lecturer in Law at the University of Warwick School of Law.
(He was also the JDG's co-convener from 2003 to 2005.)
Tue, 2 Dec
Positive Law and Moral Autonomy
Themes from MacCormick's 'Institutions of Law'
(see video, pictures and discussion materials)
John Finnis, John Gardner, Nicos Stavropoulos and Jeremy Waldron on Neil MacCormick's 'Institutions of Law' (OUP 2007)
(drinks from 6.30pm)
Theatre, Faculty of Law, St Cross Building
event is kindly co-sponsored by Oxford
University Press. It is also part of a project on "Civil Society and the Rule of Law" supported by the Mellon Foundation.
|Thu, 4 Dec: Paul Yowell|
The Myth of Majoritarianism
theorists often characterise the legislature as an essentially
majoritarian institution. This characterisation plays a prominent role
in debates about judicial review of legislation: Ronald Dworkin argues
that courts should have power to overturn legislative decisions because
majorities cannot be trusted with regard to the rights of minorities,
while Jeremy Waldron argues that reducing the power of the majority to
make decisions about rights is undemocratic. The common
assumption is that legislative decision-making is a process by which
the ‘will of the majority’ is enacted into law. I argue that this
view of the legislature is misleading and question the existence of the
‘majority’ as a determinant group. As G.E.M. Anscombe has shown,
in a series of votes a majority of voters may be in the minority on a
majority of issues. Decisions made by majority vote should not be
understood as exercises of the power of the majority; there is
generally no majority that subsists through time and holds sway over
the legislature. I also address the claim that legislatures act
by aggregating the preferences of individuals into a collective
choice. Both this and the majoritarian view are external,
reductive accounts that focus on outside forces and do not reflect the
complexity of the reasoning processes of the legislature. Taking
an internal viewpoint, I briefly sketch an alternative account of
legislative deliberation as a type of practical reasoning.
Paul Yowell is DPhil student in Law at University College, Oxford.
| Schedule for TT 2008
Week 1 (Thu, 24 Apr): Dénise
Note: we will meet in
the Swire Seminar Room, University College
Limits on Constitutional Rights: Some Thoughts on
the Proportionality Approach
is all the rage in constitutional rights adjudication. The idea that
constitutional rights may be capable of limitation or override in
accordance with a proportionality test such as that found in section 1
of the Canadian Charter of Rights and Freedoms, and a host of other
constitutional instruments, confronts the prospect of conflict between
normative considerations in the constitutional arena; proportionality
is meant to provide a method for working through such conflicts. The
latest battle ground with respect to whether rights are being taken
seriously is being fought through the debate about what proportionality
means. Some, like Robert Alexy , seem to treat the proportionality
approach as the means of sifting through any and all possibly relevant
normative considerations or reasons for decision, in order to figure
out which, on balance, are the strongest. This will seem alarming to
anyone attracted to any variation on the idea that rights have a
special role or power in moral or legal reasoning. Thus, the stakes are
It is therefore worrying to see that the theoretical grounding of the
proportionality principle in Canadian judicial reasoning is remarkably
thin. One reason for this may be that the question of what counts as a
justification is obscured by debates about the propriety of judicial
deference toward the legislature. In this paper, I want to try to
separate out the test for justification from the arguments in favour of
deference, using the standard steps in the proportionality approach. I
will focus on how the deference debate tends to obscure the central
justificatory principles at stake, point out some of the dangers
arising from the confusion, and set the stage for tackling the
normative questions directly. To set up this discussion, I first need
to clarify what I take to be the structure of a proportionality
analysis, contrasting it with two other models that may be more
prevalent in the cases. I hope the analysis will clarify the role that
each step in a proportionality analysis plays in justifying government
Dénise Réaume is Professor of Law at the University of Toronto, and the
HT 2008 HLA Hart Fellow at the Oxford CEPL.
Week 2 (Thu, 1 May): Malcolm
Note: we will meet in
the Swire Seminar Room, University College
Constitution of Criminal Law: Justifications, Policing and the State's
I came to write this paper by considering the criminal law implications
of the German constitutional court decision of 15 February 2006. In
that case, the court struck down a law empowering the German minister
of defense to order the destruction of a hijacked airplane with
innocent passengers on board in order to prevent it from being used as
a weapon against human targets. In this paper, I consider whether those
involved in the destruction of a plane under such circumstances might
still be able to claim a justification defense at criminal law.
In the United States, those involved in shooting down the airplane
would almost certainly be entitled to a justification defense, but in
Germany (and in Canada and in England), it seems that they would not.
What explains this divergence in the law between these jurisdictions? I
suggest that an important consideration is the different roles that the
criminal law is seen to play in the legal orders of the various
jurisdictions. In the United States, the criminal law is widely
understood to be an instrument of state policy over the citizenry and
so Americans tend to assume that the state is free to structure
justification defenses in whatever way best promotes its favored
policies (or moral theories). In England, Canada and Germany, by
contrast, there is a long-standing tradition of viewing the criminal
law as a sort of “common law constitution” that structures the proper
relations between citizen and state. As a result, English, Canadian and
German lawyers insist that any change in the structure of what is and
is not permitted subtly shifts the boundaries between state and citizen
and is therefore of system-wide significance. Finally, I argue that the
model of criminal law as a sort of “common law constitution” is
considerably more attractive than its American instrumentalist
alternative, for it conceives of criminal law as a form of
self-governance rather than managerial control.
Thorburn is Professor of Law at the Queen's University at Kingston,
Week 3 (Wed,
7 May): James Sherman
Note: change of weekday;
we will meet in the Swire Seminar Room, University College
Reasons, and Legitimate Authority
goal in this paper is to make some progress toward resolving two
related debates about the nature of rights. The first debate,
between the instrumental theory and the status theory, concerns the justification
of rights. It focuses on the question: What justifies a
right-holder’s possession of her rights? The second debate, between the
interest theory and the will theory, concerns the function
of rights. It focuses on the question: How do we determine
whether someone possesses a right?
My primary aim is to develop and defend a new instrumental
theory. I argue that rights are ultimately justified by the
interests of right-holders. But I argue that duties—rather
than interests—directly justify rights, and that duties are, in turn,
directly justified by the interests of those to whom they are
owed. I therefore reverse the priority of justification that
rights are commonly thought to have over duties. This new
instrumental theory has the resources to respond to an important
problem posed by the status theory: the problem of justifying the
enforceability of rights. My instrumental theory also grounds
an argument for a revised version of Joseph Raz’s normal justification
thesis. The revisions to that thesis which I propose resolve
some problems in it by revealing the close connection between
possessing authority and having certain rights. I conclude
the case for my instrumental theory by arguing that status theories
cannot adequately account for imperfect duties, and that they provide
an unsatisfactory understanding of the notion of respect for persons.
My secondary aim is to argue that in the debate
over the function of rights we should accept an interest theory that
derives from my instrumental theory. There is an affinity
between instrumental theories and interest theories. One who believes
rights are justified by interests is likely to think that the function
of rights is to preserve the interests that justify them.
Similarly, there is an affinity between status theories and will
theories. One who thinks that rights are justified by the
rational autonomy of right-holders is likely to think that the function
of rights is to restrict the exercise of one person’s autonomy when it
infringes on another’s, so that the latter’s autonomy is
preserved. I argue that the superiority of my instrumental
theory supports the interest theory. An interest theory
derived from my instrumental theory, moreover, can handle the problem
of third-party beneficiaries of contracts, which has long plagued
interest theories. With this problem resolved, one of the
only promising routes to progress in the interest-will debate is an
argument based on the merits of the underlying justificatory theories.
Sherman is a doctoral student in Philosophy at the University of Texas.
Week 4 (Thu, 15 May): Richard
Note: we will meet in
the Swire Seminar Room, University College
The Exception Proves the Rule
rules admit of exceptions; indeed, it has been a legal maxim that
one can infer the existence of a rule from exceptions that are made to
it. Hart claims that the exceptions do not admit of exhaustive
statement (a form of legal particularism) but that nonetheless rules
can bind. This paper develops a logical framework which accommodates
this position, shows that it is available to a positivist, elucidates
the role of rules within it, and concludes by discussing the relevance
to issues of judicial discretion.
Holton is Professor of Philosophy at MIT, and this term's HLA Fellow at
the Oxford CEPL.
Week 5 (Thu, 22 May): Robert
Note: we will meet in
the Swire Seminar Room, University College
Separation of Church and State, Religious Conviction, and Democratic
principles should govern separation of church and state in a free
democracy? Must government in such a society be neutral toward religion
and, if so, how should the neutrality in question be understood? Should
there be a corresponding separation of the religious and the political
in the conduct of citizens? What ethical constraints should guide
religious citizens living in a pluralistic democracy in approaching
politics, and does that depend substantially on whether they hold
public office? Religious citizens naturally want to be guided by their
religious ideals in changing their society; but given that they live
with others of different religions (or none), should their political
conduct be guided only by secular standards? To say yes seems to
abridge religious liberty; to say no seems to risk religious conflict
or even domination by a majority religious group. This talk will
present a partial resolution of this problem centering on a series of
principles concerning the justification of coercion in pluralistic
Robert Audi is Professor of Philosophy and David E. Gallo Chair in
Ethics at the University of Notre Dame.
Week 6 (Thu, 29 May): Kai Moller
Note: we will meet in
the Swire Seminar Room, University College
Constitutional rights and personal autonomy
larger project is to develop a general, reconstructive, and substantive
moral theory of constitutional rights: a theory that identifies the
moral values underlying constitutional rights provisions and the case
law of courts around the world. In an earlier paper, I argued that the
point of constitutional rights is to protect personal autonomy. But
which conception of autonomy makes most sense of them? I present two
candidates. The excluded reasons conception holds
that a person is autonomous if his liberty is not interfered with for
certain, in particular moralistic or paternalistic, reasons. While this
model has intuitive appeal, it cannot explain, however, many of the
rights which courts and constitutions have to come to acknowledge: for
example, the rights to property, freedom of profession, and data
protection. Its rival, the protected interests conception
of autonomy, protects a person’s interests in exercising control over
specific activities and personal resources; and it attaches weight to
these actions and resources according to their importance for the
self-conception of the agent. I demonstrate that this conception of
autonomy has moral appeal and sits well with constitutional rights
Moller is DPhil student at Lincoln College, Oxford.
4 Jun: Andrew Ashworth, John Gardner, Jeremy Horder
for Bad Luck: Should the Consequences of a Crime Affect the Punishment?
(drinks from 5.30pm)
Theatre II, Faculty of Law, St Cross Building
Ashworth is Vinerian Professor of English Law and Fellow of All Souls
Gardner is Professor of Jurisprudence and Fellow of University College,
Horder is Professor of Criminal Law and Fellow of Worcester College,
Oxford (he is currently on leave and holds the office of Criminal Law
and light refreshments will be served.
event is kindly co-sponsored by Oxford
5 Jun: Amit Pundik
The Use of Statistical Evidence against Individual
Defendants: One Hypothetical Example and Three Real Cases
There are cases in which the use of statistical evidence is
unobjectionable and common in practice (most evidently, in the context
of DNA evidence). Nevertheless, other cases raise difficult questions
about if and how statistical evidence should be used in criminal
courts. The purpose of this talk is to explore in which cases the use
of statistical evidence is objectionable and why, using both real and
The talk starts by analysing a variation on Jonathan Cohen’s
gatecrasher paradox. In this hypothetical example, an individual is
prosecuted for gate-crashing into a football match based solely on the
evidence that ninety per cent of the participants did not pay for their
tickets. Empirical study has shown that most people would regard this
evidence as irrelevant and/or insufficient to convict the individual.
According to Wasserman, the evidence is objectionable because it treats
the accused as a predetermined mechanism rather than as an autonomous
individual who can make up his mind regardless of how other similar
people choose to behave.
The paper explores how this account can be applied to three criminal
cases in which statistical evidence was used against individual
defendants. In the first case, a drug-trafficking case from the USA,
the prosecution adduced statistical evidence to prove (for the purpose
of sentence enhancement) the amount of drugs carried by the defendant
in previous trips, in which he had not been caught (United States v
Shonubi 103 F 3d 1085 (2d Cir 1997) [Shonubi-IV]). In the second case,
the accused was convicted based on DNA evidence alone, despite the
existence of other exonerating evidence (e.g. alibi, the victim did not
recognise him as her offender, etc). In the last case, the
prosecution’s expert relied on statistical evidence to negate the
possibility of natural cause of death (R v Clark (No 1)  EWCA
Crim 54). The paper seeks to show that according to Wasserman’s
account, the use of statistical evidence is unobjectionable in the
second case, but objectionable in the other two cases.
Amit Pundik is DPhil student at Balliol College, Oxford, and Lecturer
in Law at Hughes Hall, Cambridge.
Week 8 (Thu, 12 Jun): Giovanni
Note: we will meet in
the Swire Seminar Room, University College
English Nightmares and European Noble Dreams: Philosophical Ruminations
on the Rule of Law/Rechtstaat
is to rule? What is the law? These fundamental problems are often
connected with the very notion of the Rule of Law. In this paper I will
try to suggest some positive contributions for the debate resulting
from a new consideration of the European philosophical tradition.
The concept of the Rule of Law was recently analysed by Kramer, Raz,
Marmor, Allan, Dyzenhaus, Dworkin, Tamanaha, Fallon, Waldron and many
other authors in the Anglo-American Jurisprudence in the last two
decades and continues to undergo further scrutiny. In the European
continental sphere today (but also in the work of Bellamy in England),
the discussion is more focused on the neutralization of the political
sphere implied by the judicial supremacy at the national and
international levels: from the supremacy of the lawgiver, now the rule
of law seems to have switched to the supremacy of the courts. Herein
lies the importance and significance of the debate on Originalism in
the USA. Moving from the problematic equivalent definition of Rechtstaat
- Etat de Droit - Stato di Diritto, (analysed in depth by
Heuschling) in continental Europe, authors like Habermas and Ferrajoli
stated that the Rule of Law is to be characterized as the “Democratic
Rule of Law” or the “Constitutional Rule of Law”. They move from the
theories of Jellinek and Ihering, and their approaches are indebted to
the Hegelian Theory of the State. Hegel’s Theory of Law was recently at
the core of the theory of constitutional interpretation proposed by
Brudner: in this approach the
natural law idea of a hierarchy of laws at different levels of dignity
is replaced by a hierarchy of rights (Rechten), and
these rights in their different taxonomy are now the backbone of the
international jurisprudential debate on the Rule of Law, with the
assumption that law is better understood as a functional complement to
Modern natural law theories have sometimes answered the legitimacy
question by referring to the rule of law as
guaranteed by human rights. The
rule of law
(Fallon) is a dense formal model, whereas the rights
conception of Dworkin or the liberal justice theory of Allan are examples of a thick conception of
the rule of law. In the last years the Kramer/Simmonds debate posed the
question of the internal relation between the rule of law and morality,
and the nightmare of a perfect rule of law in a tyranny. As Habermas
stated about the other fundamental relation, the internal relation
between the rule of law and democracy has been concealed long enough by
the competition between legal paradigms that have been dominant up to
the present. The polyphony of these conceptual definitions is vital for
the possibility to give a philosophical description of the Rule of
Law. It can be a starting point for the noble dream of a fair
international or European order.
Cogliandro is a doctoral student at the University of Rome Tre, and a
Visiting Fellow at the Institute for Advanced Legal Studies, London
| Schedule for HT 2008
Week 1 (Wed,
16 Jan): Yitzhak Benbaji
Note: change of weekday
The Moral Division of Labor and the Jus
ad Bellum/Jus in Bello Distinction
legislation developed after World War II treats the in bello
and the ad bellum codes as two entirely independent
systems. The former applies to soldiers, the latter to states and
statesmen. One of the most striking differences (or apparent
incongruities) between the two codes is that in the ad bellum
code, a state that initiates an aggressive war is condemned by
international law as having committed a crime; it is not, however, the
crime of the soldiers who carry out the war. Rather, legally speaking,
soldiers' acts of killing within armed conflicts are permissible
insofar as they follow the in bello regulations,
which are purposely designed to apply to soldiers independently of the
cause for which they fight.
Michael Walzer’s interpretation of this tradition is surprising and
controversial: soldiers, he claims, are morally
equal, whether they carrying out aggression or defending against
aggression, and the egalitarian in bellum code is a
reflection of this moral fact. He explicitly rejects the claim that the
equality of soldiers "is merely conventional" and that the truth about
war rights is best expressed in terms of justice: "the more justice the
Some prominent critics (whom I call “purists”) are quick to attack this
interpretation: Walzer, they argue, fails to attend to the merely
conventional nature of the distinction between jus in bello
and jus ad bellum. This failure is significant for
various reasons. In particular, Walzer commits himself to the view that
the individual acts that constitute prosecution of the unjust war might
satisfy the in bello proportionality constraint;
that the good effects of such acts might outweigh their bad effects.
And this, the critics argue, does not make sense. No individual act,
which together with others constitutes an aggressive war, can have good
effects that can appropriately be weighed in the proportionality
calculation. Jeff McMahan concludes that “it is rather mysterious what
traditional just war theorists have been assuming in their supposition
that unjust combatants can satisfy the requirement of proportionality
in the same way that just combatants can.” Though they subject
themselves to the in bello code, unjust combatants
do not thereby change the simple fact that they kill innocent people --
that is, they kill soldiers who justifiably defend their homeland.
These killings cannot be proportionate if they further an unjust goal.
This paper aims to draw a coherent moral distinction between the
in bello and the ad bellum codes that
would explain the above incongruity between them.
Yitzhak Benbaji is Assistant Professor of Law and Philosophy at
Bar-Ilan University, Israel.
Week 2 (Thu, 24 Jan): Nicholas Vrousalis
Left-Libertarianism, Intergenerational Justice, and Socialism
major challenge for egalitarian political philosophers is to devise
structures of property rights that guarantee sufficient autonomy, while
ensuring equality of condition, properly conceived. Michael Otsuka has
recently constructed a complex form of libertarianism that promises to
reconcile self-ownership of a person's body and its (physical and
mental) powers with intragenerational equality. His account does not,
however, provide a reconciliation of self-ownership with
intergenerational equality. Indeed, his strategy seems inherently
incapable of doing so, given its emphasis on non-forced voluntary
transfers of worldly resources between mutually disinterested
This paper offers a way out for the left-libertarian reconciliation
strategy, by arguing that the rights of future people to equality of
condition can be exercised in the present, albeit obviously not by
future people themselves. It thus elicits a notion of trusteeship or
guardianship of present people over the interests of future
generations, which restores the left-libertarian egalitarian credo in
the intergenerational dimension. The paper proceeds to argue that it is
i) both possible and plausible to revive the old socialist notion of
joint world ownership by all humanity, and that ii) doing so need not
imply unfair intrusions into, or interference with, individual liberty
or (effective) autonomy.
Nicholas Vrousalis is DPhil student in political philosophy at Lady
Margaret Hall, Oxford.
Week 3 (Thu, 31 Jan): Danny
Note: This week we'll start at 7.30pm
(pre-talk drinks from 7.15pm)
The Boundaries of Law
and the Scope of Legal Philosophy
prevalent view among legal philosophers is that an important task of
jurisprudence is to provide a set of necessary and sufficient
conditions for what counts as law. This view rests on an assumption
that has been pithily summarized recently by Joseph Raz: “So long as we
allow that it is possible for a population not to be governed by law,
there must be a difference between legal standards and those which are
not legal, not part of the law.”1 With this assumption in mind legal
philosophers have spent considerable intellectual energy on trying to
articulate as accurately as possible what it is that distinguishes
legal standards (“laws”) from non legal standards (“non laws”).
In this Essay I wish to challenge this approach. My argument will
develop in two interrelated stages. After describing in greater detail
in Part I the view I set myself against, I will first argue in Parts II
and III that the fact that legal philosophy aims to explain a practice
sets limits on the scope of what it can explain; more specifically, I
will argue that on certain questions the practice may simply be
indeterminate, and that many questions about the boundaries of law
probably belong to this group. The second argument, developed in Part
IV, shows that even if the practice is not indeterminate on some
questions, it does not follow that finding an articulate answer to
those questions is important for understanding the practice. Part IV
also offers some directions towards what I believe are more important
issues for jurisprudence to tackle.
Priel is Lecturer in Law at the University of Warwick School of Law.
Week 4 (Thu, 7 Feb): Fred
jurisprudential discussions properly focus on the nature of authority,
and on its relation to law. Few of those discussions, however, connect
the philosophical dimensions of the idea of authority with the
pervasive use of authorities in common law legal argument, legal
reasoning, and legal decision-making. This paper attempts to bridge
that gap, and initiate a jurisprudential debate about the kinds of
sources that law has typically employed, and is employing now.
Moreover, to the extent that law is a source-based practice, changes in
the character of legal sources may produce changes in the character of
Fred Schauer is Frank
Stanton Professor of the First Amendment of the Kennedy School of
Government, Harvard University, and Eastman Visiting Professor
2007-2008 at Oxford.
Week 5 (Thu, 14 Feb): Bruce Chapman
You Down the Choice Path: Towards an Economics of Rational Persuasion
In this paper I explore the possible advantages of
a form of non-arbitrary path dependence within social choice that I
call rational persuasion. Persuasion is characterized here as
conversationally leading one’s protagonist down a particular choice
path to a particular result. The selected choice path is enticing, or
rationally persuasive, because it "makes sense" in a way that
alternative choice paths do not. It makes sense because it tends to
group, or partition, alternative choices together in a way either that
allows us to see or think of the partitioned alternatives as
instantiations of some concept or category,
or presents us with some issue that we recognize
as important in the choice situation. We shall see that not all
partitions of the alternatives do this equally well. Nor are they as
easy to talk about under the shared concepts that will organize, and be
persuasive in, conversation. In this respect rational persuasion is a
partition dependent idea.
However, we shall also see that the partitions have to be presented in
a certain order, or sequence, if social choices (and the individual
preferences that give rise to them) are going to be
sensitive to the issues and concepts at stake as well as
sensible under them. So, in the final
analysis, I will be arguing that rational persuasion must not only be a
partition dependent idea, but a path
dependent one as well. However, contrary to
what Arrow suggests in Social Choice and Individual Values,
I argue that path dependent social choice need not be viewed as
arbitrary. Indeed, because rational persuasion is a form of social
interaction and social choice that is both sensible and sensitive to
the issues that divide us, persuasion is an exhibition of our
collective rationality. It is a serious mistake, under the idea of a
social preference ordering (which precludes path dependent social
choice), simply to define it away as a possible approach to the social
Bruce Chapman is Professor of Law at the University of Toronto.
Week 6 (Thu, 21 Feb): Dwight
You Still Know Nothin’ ’Bout Me: Toward Cross-Cultural Theorizing of
paper represents my initial theoretical response to claims for an
attentionto 'Aboriginal perspectives' in discussions of Aboriginal
rights in certain legal systems (these claims being a subset of broader
questions about cross-cultural moral theoretical engagement). After a
mention of relevant case law from the Canadian Aboriginal rights
context in Part I (which may be omitted by the more purely
theoretically-oriented or simply those objecting to North American
article lengths), I exposit Charles Taylor's account of 'unforced
consensus' on human rights in Part II. I seek to clarify Taylor's
claims by drawing on a distinction between 'values-based' and
'concept-based' differences behind differing conclusions on rights.
Following on this distinction, I argue that Taylor's account grounds
certain methodologies of seeking engagement with thinkers from other
cultural communities. In Part III, I reflect on some examples of
engagement - or not - on issues related to Aboriginal rights as
collective rights and gesture toward some possible changes demanded in
modes of cross-cultural theoretical dialogue. Part IV reapplies these
conclusions to matters from Part I and, again, might be skipped by
readers wishing to focus solely on the theoretical content.
Dwight Newman is Assistant Professor at the University of Saskatchewan
College of Law, Canada.
Week 7 (Thu, 28 Feb): Tom
A Political Philosophy
of Human Rights
The paper explores what we might expect of a ‘political’ as distinct
from a legal philosophy of human rights in the context of the changing
role of the UK Parliament’s Joint Committee on Human Rights (JCHR), and
the recent White Paper ‘The Governance of Britain’, with a view to
considering how far the function of bills of rights can be detached
from the mechanism of judicial review of legislation. Taking the
approach that the discourse of human rights is primarily a powerful
moral discourse, albeit with significant implications for the proper
form and content of law, the paper takes off from the now standard
assumption that current bills, conventions and charters of rights are
best regarded as statements of values rather than ‘rights’ in any
usefully distinctive meaning of that term. Consequently, the form of
reasoning adopted by courts in the process of utilising such statements
of values to interpret ordinary legislation, issue ‘declarations of
incompatibility, or invalidate legislation, is more moral and political
than legal in nature. In such circumstances courts, within democratic
systems, are understandably unadventurous in the exercise of their
powers under, for instance, the UK Human Rights Act 1998. At the same
time the political salience and broad scope of human rights discourse
is diminished by the growing assumption that human rights articulation
and implementation is a matter for courts not governments and
Recently the JCHR (‘The Committee’s Future Working Practices’ 2006) has
said that it intends to undertake human rights scrutiny of
parliamentary bills by making its own assessment of ‘incompatibility’
in its own ‘less technical’ voice, in particular when ‘proportionality
considerations apply’, rather than seeking to ‘second guess’ what the
courts are likely to come up with by way of Declarations of
Incompatibility. This coincides neatly with the purported aim of ‘The
Governance of Britain’ to give Parliament more power by increasing its
capacity to hold the executive to account, for the object is that the
JCHR have a greater impact on policy and legislative debates. However,
once the JCHR cuts itself adrift from legal advice as how proposed
legislation accords with human rights law, what criteria can it draw
upon to identify what it calls the ‘major human rights significance’ on
the basis of which it intends to make its views known? There is no
currently available consensual philosophy of human rights of any
precision on which they can draw for this purpose. One rather distant
prospect is that the JCHR could interpret its terms of reference in the
light of the clearly articulated ‘Bill of Rights and Duties’ that is
contemplated in the Government’s White Paper, which, it is intended,
will clarify and affirm ‘British values’. This is an optimistic
scenario and is in any case obscured by the uncertainty as to whether
the Bill of Rights and Duties is to be rendered justiciable.
Perhaps the only concrete conclusion that can be drawn at this stage is
that the content of a bill, convention or charter of
rights/values/duties, if it is to have any guidance potential, must be
affected by the purpose for which that bill is to be used. One
particular issue is whether a bill of rights could have a greater,
broader and more progressive political impact if its functions did not
include its use in judicial review of legislation and did include
providing a basis for mechanisms, such as scrutiny committees, that are
designed to enhance the power of parliament to influence the conduct of
governments. One product of this might be ‘human rights legislation’ of
sufficient particularity to meet the norms of formally good positive
law and so provide the sort of legal material with which it is proper
to entrust to courts for interpretation and adjudication within the
parameters of an acceptable model of the rule of law and a proper
separation of powers within a democracy.
Tom Campbell is Director of the Centre for Applied Philosophy and
Public Ethics (CAPPE), Australian National University, Charles Sturt
University and University of Melbourne. Australia.
(Wed, 5 Mar): Joseph Raz, Leslie Green, Nigel
The Rule of Law
Gulbekian Lecture Theatre, Law Faculty, St Cross Building (pre-talk
drinks from 5.30pm)
Raz is Research Professor and Fellow of Balliol College, Oxford, and
Professor at Columbia University Law School.
Green is Professor of the Philosophy of Law and Fellow of Balliol
Simmonds is Reader in Jurisprudence and Fellow of Corpus Christi
and light refreshments will be served.
session is part of a project on “Civil Society and the Rule of Law”,
which is supported by the Mellon
Week 9 (Thu, 13 Mar): Paul
Vagueness and Constitutional Rights
in national constitutions and international treaties are commonly
formulated in vague, abstract language. In this presentation I explore
the nature of this vagueness and argue that some of these
rights--particularly those that assert a two-term relationship between
an individual and a moral value such as equality or liberty--are so
deficient with respect to the Rule of Law virtue of clarity that they
amount to marginal cases of law. The judge's task in interpreting such
two-term rights is different in kind from ordinary legal
interpretation. Most laws assert a three-term relationship between at
least two persons and a category of conduct that is either prohibited,
actionable, licensed, etc. (depending on the type of law in question).
I refer to this three-term relationship as the jural structure of a
law. When a term in an ordinary law is vague, the judge nonetheless
knows where that term fits in the overall jural structure of the law.
Two-term rights, however, have no specified jural structure. As a
result judges typically apply such rights by using proportionality or
balancing tests to determine whether or not a law violates rights.
These tests invite judges to engage in a reasoning process that
resembles that of a legislature in formulating legislation and deciding
whether to enact it.
Paul Yowell is DPhil student at University College, Oxford, and
Stipendiary Lecturer in Law at New College, Oxford.
| Schedule for MT 2007
Week 1 (Thu, 11 Oct): Timothy Endicott, John Gardner, Tony
Legal Philosophy - Past, Present, and Future
A colloquium with Professors
Endicott, Gardner and Honoré, who will discuss the evolution of
jurisprudential thought and arguments over the past decades in Oxford.
Champagne and light refreshments will be served; and, possibly, a birthday
Timothy Endicott is Professor of Legal Philosophy and Fellow of Balliol
John Gardner is Professor of Jurisprudence, and Fellow of Univesity
Tony Honoré is former Regius Professor of Civil Law, and Fellow of All
Souls College, Oxford.
Week 2 (Thu, 18 Oct): Leslie
On Being Tolerated
paper tries to explain what it is about toleration that often makes it
feel uncomfortable to be tolerated. It then explores how a liberal
political morality might respond to that discomfort. Rejecting the
claims that the tolerated are generally entitled to either acceptance
or recognition, it argues that there is a modest role for the neglected
virtue of /understanding /as complement to toleration.
Green is Professor of the Philosophy of Law and Fellow of Balliol
Week 3 (Thu, 25 Oct): Guy Sela
Note: The talk by Amanda-Perreau-Saussine has been
moved to week 7.
Moral Responsibility of Terrorists
tend to think that soldiers are not doing wrong by merely fighting an
unjust war, as long as they don't violate the humanitarian laws of jus
in bello. In the first part of my paper I examine the reasons
for excusing soldiers who fight unjustly. I then argue, in the second
part, that none of these considerations apply to terrorists or to
militia soldiers. Finally, I draw some practical implications of the
distinction I made.
Sela is DPhl student at Keble College, Oxford.
Week 4 (Thu, 1 Nov): Adam Tucker
in the Service Conception of Authority
It is common to encounter the criticism that Joseph Raz’s service
conception of authority is flawed because it appears to justify too
much. This essay argues that proponents of this brand of criticism have
failed to account for the extent to which the service conception
accommodates their critique. Two variants of this critical strategy are
considered. The first alleges that the service conception fails to
conceptualise substantive limits on the legitimate exercise of
authority. This variant fails; Raz has elucidated substantive limits on
jurisdiction within the service conception of authority, albeit
reluctantly and equivocally. The second alleges that the service
conception fails to conceptualise procedural limits on the legitimate
exercise of authority. This argument succeeds, but it loses its force
when it is aimed at the normal justification thesis rather than the
quite separate jurisdictional limits of Raz’s theory. Clarifying those
jurisdictional aspects of the service conception shows why the first
argument fails and exposes the real strength of the second. This
suggests a way in which the jurisdictional limits of the service
conception should be modified. The modification is warranted because
the new, wider principle defines the conditions under which the service
authorities are said to provide is indeed a service.
Adam Tucker is lecturer in Law at Christ Church
College, Oxford, and research student in Law at the University of
Week 5 (Thu, 8 Nov): Pavlos Eleftheriadis
is a Legal Right?
General theories of legal
rights must make sense of the complex role of legal rights in legal
doctrine and legal reasoning. Rights to property and bodily integrity
and the liberty of contract, for example, are central parts of various
areas of legal doctrine. Whenever specified by appropriate statutes and
cases, such rights are general premises in doctrinal argument. They are
reasons for winning a case. But rights are also particular
specifications of what we may or ought to do here and now. In English
law we lose our rights if we fail to claim them within the time limits
provided for by the Limitation Act 1980. In such a case the general
right and its doctrinal specification are true and they support my
position, but its vindication in a court of law against an oppenent is
impossible. I have lost my legal right, even though I have a special
legal right under a true general legal right. It is evident that the
term legal right is here used in three different ways that invite
confusion and contradiction: the general statement, the doctrinal
specification and the judicial recognition. How do we accommodate these
three senses, i.e. that in this case I have a right and that I do not
have it? Are all of them true examples of a legal right?
In this paper, a chapter of my forthcoming book 'Legal Rights', I
discuss and reject some 'deflationary' accounts of rights: the
'entitlement' view of Calabresi and Melamed, the similar 'nominalist'
(my term) view of Coleman and Kraus and the parallel views of Alf Ross
and Kelsen (and Kramer). All such theories believe that rights are just
collected remedial solutions (rather than general reasons with some
practical content). They turn rights into a mystery.
Pavlos Eleftheriadis is CUF Lecturer in Law and Fellow of Mansfield
Week 6 (Thu, 15 Nov): Noam Gur
Legal Directives in the Realm of Practical Reason: A Challenge to the
The question of how legal
directives bear on our reasons for action constitutes one of the
pivotal quandaries with which legal philosophy grapples. The main
purpose of this paper is to examine an influential position according
to which the fact that an authority requires performance of an action
is a reason for its performance that is not to be added to all other
reasons relevant when assessing what to do, but rather should exclude
some of them—Joseph Raz’s pre-emption thesis. Although at first glance
the pre-emption thesis seems appealing, on closer inspection
fundamental difficulties are revealed. Focusing on its application in
the legal context, I challenge that thesis, noting that an alternative
conception—which I term the weight-conception—is not susceptible to the
same challenge. There are certain cases in which subjects ought to, and
are likely to, disobey a directive for moral reasons. (1) Does the
pre-emption thesis purport to apply in these cases? (2) If so, can
these cases be reconciled with the thesis by distinguishing the reasons
for which subjects disobey from the reasons alleged to be excluded? As
to (1): no adequate criterion is able to rule out the possibility that
the pre-emption thesis purports to apply in the cases under
consideration. As to (2): no adequate criterion is capable of
distinguishing reasons for disobedience in these cases from purportedly
excluded reasons. Taking up a residual issue—the degree of clarity with
which subjects can identify that a directive should be disobeyed in our
test cases—I argue that this too is no key to solving the
aforementioned difficulties. The cases under discussion turn out to be
cases where subjects ought to, and are likely to, act for reasons
alleged to be excluded or indistinguishable from allegedly excluded
reasons. They are counter-examples to the pre-emption thesis, lending
support to the alternative model as well suited to account for these
Noam Gur is DPhil student at St Edmund Hall, Oxford.
Week 7 (Thu, 22 Nov): Amanda
Old Questions for New
At the opening Jurisprudence Discussion Group meeting of term, three
threats to the philosophy of law were outlined: that jurisprudence
becomes its own subject, chasing its own tail, or that it loses sight
either of its proper subject, law, or of its need for philosophical
rigour. I will suggest ways in which a contemporary natural lawyer
might aspire to avoid these dangers, raising some of the classical
questions at the heart of early modern theories of natural law.
Amanda Perreau-Saussine is University Lecturer at the Faculty of Law,
Cambridge, and this term's HLA Hart Fellow at the Oxford CEPL.
28 Nov: John Finnis, John Gardner, Matthew Kramer
Is there a positivist theory of law?
90 HS Lecture Room, University College
A panel on the
above question, which the panelists have long been disagreeing over.
Finnis is Professor of Law and Legal Philosophy, and Fellow of
University College, Oxford.
Gardner is Professor of Jurisprudence, and Fellow of University
Kramer is Professor of Legal and Political Philosophy, and Fellow of
Churchill College, Cambridge.
and light refreshments will be served.
29 Nov: Thom Brooks
Why I Am Not an Expressivist
theories of punishment have become increasingly popular. These theories
claim that the primary justification of punishment is the expression of
public condemnation to offenders. Other related versions, such as
communicative theories, claim that punishment aims primarily to both
express public condemnation and offer an opportunity to offenders to
repent. This paper challenges the main tenets of all expressivist
theories and argues that they rely on problematic foundations which
render them unsafe.
Thom Brooks is Reader in Political and Legal
Philosophy at the University of Newcastle.
| Schedule for TT
Week 1 (Thu, 26 Apr): Yossi
meeting in the Swire/CEPL Seminar room in
University College (directions available from the porters)
The Limits of
Tolerance: A Substantive-Liberal Perspective
this paper I explore the concept of tolerance and suggest a description
of that concept that could be accepted regardless the political theory
one supports. Since a neutral perception of the limits of tolerance is
impossible, this paper offers a guideline for a substantive-liberal or
a perfectionist-liberal approach to it.
The limits of tolerance are described through the principles of
reciprocity and proportionality. The former explains why intolerance
should not be tolerated whereas the latter prescribes how and to what
extent it should not be tolerated. The cumulative effect of these
principles is that apart from extremely rare occasions intolerance
should not be tolerated at all times.
The paper discusses various conceptual and normative issues concerning
tolerance. For the main thesis, or arguments, please read pages 4-13,
Yossi Nehushtan is Stipendiary Lecturer in Law
at Balliol College, Oxford, and DPhil student at Worcester College,
Week 2 (Thu, 3 May): Richard
How Intentional is Legislative Action?
Raz and Gardner argue
that legislative action is intentional, but that the legislature acts
only on the minimal intention that the statutory text shall be law,
rather than on any more specific intentions. Statutory
interpretation is thus a matter of applying conventions rather than
searching for particular legislative intentions. I argue that this
account is false for it cannot explain rational legislative action.
Analysis of legislative authority and language use supports the claim
that rational legislative action is action on specific intentions as to
the meaning and effect of the statute. I argue further that the
legislative process is structured to enable the legislature to form and
act on such intentions.
Richard Ekins is DPhil student at
Balliol College, Oxford, and Lecturer at the Faculty of Law, University
Week 3 (Thu, 10 May): Nicos
does it mean to claim that certain principles ground rights and duties
in law? I argue that the principles in question must meet two
conditions: they must both justify actual practice and have independent
moral appeal. I distinguish the claim that such principles justify the
effect of a certain practice on people's rights and duties from the
claim that the content of the practice, considered alone, is
attractive. I claim that is wrong to say that bad practices are
justified by bad principles-falsities do not justify anything. I
further argue that principles are determinants of law for reasons of
political morality. I briefly review these reasons and trace some of
their implications for the relation between law and morality.
Nicos Stavropoulos is University Lecturer in Legal Theory at the
Faculty of Law, Oxford.
Week 4 (Thu, 17 May): Bob Burns
Philosophical Significance of Trial Practices
Bob Burns is Professor of Law at Northwestern
University, and litigation attorney in the Bluhm Legal Clinic.
Week 5 (Wed,
23 May): Claudio Michelon note
change of weekday
Note: The previously announced talk by
Prof. Martin Stone has been cancelled.
Practical Reason and Legislation's Authority
paper is an attempt to provide an argument for the authority of
legislation. The argument does not resemble conceptions of legislative
authority that are grounded on efficiency (including
deliberative efficiency in searching for the moral truth), such as the
one that follows from Waldron's (allegedly Aristotelian) "Doctrine of
the Wisdom of Multitude". Indeed the first section of the paper
attempts to show that those sorts of argument underplay certain
features of practical reasoning that, if taken into consideration,
would prove the argument for the deliberative efficiency of the
multitude not to be able to ground anything like Waldron's DWM. In the
second section, legislation's authority is said to spring from the
institutional design that embodies the recognition of other members of
the community as competent mature practical reasoners. That
sort of recognition is said to be both morally justified and a
necessary condition for practical reason (throughout the paper, the
working conception of practical reason is largely inspired by
Aristotle). The remaining sections work out some implications of that
argument to related issues such as the idea of democratic
Michelon teaches Jurisprudence at the University of Edinburgh School of
Law, and is H.L.A. Fellow at the Oxford CEPL
for Trinity Term 2007.
Week 6 (Thu, 31 May): Timothy
Jurisdiction, and the Authority of Law
Endicott's discussion will address issues arising from "Interpretation,
Jurisdiction, and the Authority of Law" (2007) 6 American Philosophical
Association Newsletter 14.
Timothy Endicott is Professor of Legal
Philosophy and Fellow of Balliol College, Oxford.
Week 7 (Thu, 7 Jun): Maris
the title suggests, this talk will deal with the logical structure of
power-conferring norms. (The talk is based on a draft chapter of my
thesis on the concept of legal validity.)
Hart famously distinguished between duty-imposing and power-conferring
norms. He made the case for this individuation primarily by stressing
the distinct social function of power-conferring norms. They enable
individuals to shape their own, or others', legal relations - as
opposed to imposing duties on them. But what is their logical
structure? Raz undertook to answer this question but was ultimately
unsuccessful. However, there is a lot to be learned from his failure.
In particular, it sheds light on the way in which power-conferring
norms are like brownie recipes. They both contain an 'instrumental
ought'. But then, power-conferring norms are unlike brownie recipes as
well. For it is not by virtue of the laws of physics that the act of
signing a paper results in a valid will. It will be suggested that
power-conferring norms belong to the class of norms which may be called
'count-as norms'. (Most rules governing the use of language belong to
home-made brownies will be served at the beginning of the talk (food
Maris Köpcke Tinturé is DPhil student at
University College, Oxford.
8 (Thu, 14 Jun): Amit Pundik
Went Wrong in the Case of Sally Clark?
Clark was convicted in murdering her two baby boys, Christopher and
Harry, after Professor Sir Roy Meadow, a senior paediatrician testified
that the chance of two cot deaths in one family is 1 per 73 million.
Her conviction was upheld by the Court of Appeal, which criticised this
statistical evidence, but considered the rest of the case against her
as “overwhelming”. However, a few years later, her husband found
evidence in the hospital archives indicating that Harry died from
natural causes. Sally Clark was set free by the Court of Appeal, having
served more than three years in prison.
This paper examines possible explanations for the mistaken conviction
and questions whether and how this mistake could have been avoided. It
rejects the explanation of the Court of Appeal (on the second appeal)
that the problem was the pathologist’s failure to disclose the crucial
evidence. More importantly, the paper challenges the public perception
about the role of statistical evidence in this case and argues that the
importance of the flaws in the statistical calculation was overrated.
Based on the theory of contrastive explanation (from the Philosophy of
Science), an original explanation for the real source of the mistake is
suggested. This explanation highlights some important concerns about
the way the presumption of innocence is currently interpreted in
Pundik is DPhil student at Balliol College, Oxford.
for HT 2007
Week 0 (Thu, 11 Jan): Alon
The Right to
From the paper:
Judicial review is typically justified on
consequentialist grounds, namely that it is conducive to the effective
protection of individual rights. This Essay disputes this popular
explanation for judicial review and argues that judicial review is
based on a "right to voice a grievance" or a "right to a hearing" - a
right designed to provide an opportunity for the victim of an
infringement to challenge that infringement. The state must justify
and, in appropriate cases, reconsider any infringement in light of the
particular claims and circumstances of the victims of the infringement.
This right-to-a-hearing-based justification implies that judicial
review is justified even if, ultimately, it is found to be detrimental
to the protection of rights. Finally, this Essay concludes that the
right to a hearing is a participatory right and, consequently, that
judicial review does not conflict with the right to equal democratic
In his talk, Professor Harel will develop the issue of the right to a
hearing as a constitutive element of rights.
Alon Harel is Professor of Law, Phillip P. Mizock
& Estelle Mizock Chair in Administrative and Criminal Law,
Faculty of Law, Hebrew University.
Week 1 (Thu, 18 Jan):
Michelle M. Dempsey
justifies the actions of public criminal prosecutors? This paper
assumes that any plausible answer to this question requires attention
to the reasons that apply to prosecutors. If the reasons that apply to
a given prosecutor weigh in favour of a given prosecutorial action,
that’s at least a good start down the road to justifying that action.
If this is so, then we should spend some time trying to identify the
reasons that apply to prosecutors qua prosecutors. This paper takes
three steps toward that goal. First, it provides an account of what
prosecutors are and what they do. Second, it identifies some of the key
values that can be realised through prosecutorial action. Finally,
it defends the claim that only some of these values generate
reasons for prosecutors.
Michelle Dempsey is CUF Lecturer in Law and
Fellow of Worcester College, Oxford.
Week 2 (Thu, 25 Jan): Paul
Note: meeting in the Swire room
(Centre for Ethics and Philosophy of Law), University College
A Critical Examination of Dworkin's Theory of Rights
has argued that rights are best understood as ‘trumps’
against utilitarian and other collective justifications for laws.
In this paper I show that in his early work Dworkin proposed
two distinct theories of rights as trumps. The first, which I call the
shielded-interest theory, holds that certain fundamental rights protect
important human values from collective political justifications. The
second, which I call the filtered-preference theory, holds that the
purpose of rights is to trump laws based on ‘external’ utilitarian
preferences such as racist or ‘moralistic’ prejudice (whereas laws
based on ‘personal’ utilitarian preferences are justified). After
explaining these two theories, I will argue that they are inconsistent
and show that in Dworkin’s later work he abandoned the
filtered-preference theory and adopted a revised theory
in its place. I contend that each version of the theory of rights as
trumps is flawed.
Paul Yowell is Stipendiary Lecturer in Law at New College, Oxford, and
DPhil student at University College, Oxford.
Week 3 (Thu, 1 Feb): Jonathan
Justice and Norms of Co-operation
of global justice are often confronted with an apparent dilemma. If
citizens in the developed world have duties of justice to those
elsewhere on the globe, then it is supposed that the duties must be
very extensive indeed, requiring the same concern to be shown for
everyone on earth. Those who reject such extensive obligations often
assume that any obligations beyond borders must be based on charity,
rather than justice. The assumption on which this dilemma is based is
something like 'Justice is uniform'. In this paper I argue that such an
assumption should be rejected in favour of the view that justice is
relative to norms of co-operation. Consequently it is possible to
develop a view of 'justice but not the same justice' which allows
different duties of domestic and global justice.
Jonathan Wolff is Professor and Head of the Department of Philosophy,
University College London.
Week 4 (Thu, 8 Feb): Luis
The distinction between ‘conduct norms’ and
‘sanction norms’ (which is one of the legal theorist’s favourite toys)
is currently assumed to be an essential tool for a correct
understanding of criminal law. Conduct norms are typically mentioned
with the language of ‘prohibitions’, and the idea that a crime is a
piece of ‘forbidden’ or ‘prohibited’ behaviour lies at the very heart
of most contemporary theories of criminal responsibility. I mean to
discuss and criticize this rather consensual assumption. According to a
very common idea (which I call ‘the inference thesis’), the truth,
relative to a given legal system, of a proposition like (1) ‘whoever
does x shall be punished in manner m’
implies the truth of (2) ‘x is prohibited’. I try to
make sense of this thesis, and then proceed to show why it is wrong. In
order to do so, I discuss what conditions make a proposition like (2)
true when taken as a proposition about legal norms, and maintain that,
in the acception of ‘prohibited’ presupposed by the inference thesis,
propositions like (2) are always false. In the relevant sense, there are
no primary legal prohibitions addressed to citizens. If this is so,
either the inference theory is ill‑founded or propositions like (1)
will always be false, too (by modus tollens). But,
I contend, the law does include of ‘sanction norms’, and the inference
thesis may be shown to be false.
Luis Duarte d'Almeida teaches Legal Philosophy
and Criminal Law at the University of Lisbon (Portugal).
Week 5 (Thu, 15 Feb): Michael
the Role of Officials in Legal Positivism's Understanding of Legality
and Legal Systems
Nearly all contemporary legal positivist views share some version of
Hart's notion of the Rule of Recognition - an official-operated device
which gives life to a legal system. My co-author Keith Culver and I
argue, however, that analytical legal theory's use of the concept of
legal official faces serious problems of circularity and indeterminacy
at the edges of legality. These difficulties, in turn, threaten to
unravel the wider positivist account about the existence and reaches of
law. In place of an official-based account, we begin to develop an
institution-focussed account of legality and legal system.
Giudice is Assistant Professor in Philosophy, York University (Canada).
Week 6 (Thu, 22 Feb): John
of Practical Reason Revisited
John Finnis is Professor of Law and Legal
Philosophy and Fellow of University College, Oxford.
Week 7 (Thu, 1 Mar): Thomas
War Consequence Conditions
Thomas Hurka is Professor of Philosophy and
Jackman DIstinguished Chair in Philosophical Studies, University of
Toronto (Canada), and H.L.A. Hart Visiting Fellow at Oxford's CEPL.
Week 8 (Thu, 8 Mar): James Lee
in Interpretation: Lord Hoffmann and The Adventure of the Empty House
This paper explores Dworkin's "law as a chain novel" analogy and
considers the recent work of Dworkin
and MacCormick through close scrutiny of two recent judgments of Lord
Hoffmann. The aim is to
examine Dworkin's theory in the context of recent English private law
decisions and determine
whether Lord Hoffmann's approach to interpretation is consistent with
that of Dworkin (as his
Lordship has contended in the past). The two cases are Barker v Corus
 UKHL 20 and Barlow
Clowes v Eurotrust International  UKPC 37. I argue that Lord
Hoffmann's treatment of
recent decisions on which he himself sat raises significant questions
regarding fidelity and the
institutional structure of the House of Lords.
Lee is Teaching Fellow, School of Law, Reading University.
Week 9 (Thu, 15 Mar): Danny
meeting in the Swire room (Centre for Ethics and
Philosophy of Law), University College
the author: The paper is fairly long. You are welcome to read it all,
but if short on time I suggest that you concentrate only on parts II
and IV. You can read Part I too, but that’s just for fun.
Danny Priel is Fellow of the Yale Center for
Law and Philosophy, Yale University.
for MT 2006
Week 1 (Thu, 12 Oct): Kai
Proportionality and the Structure of Constitutional
There are important differences between reasoning with constitutional
rights and reasoning with
moral fundamental rights. One of them is that
constitutional courts around the world employ a balancing or
proportionality test to determine the limits of rights, whereas most
philosophers reject such an approach when reasoning with fundamental
rights. In his book ‘A Theory of Constitutional Rights’, Robert Alexy
has developed a comprehensive conception of constitutional rights,
claiming that constitutional rights are optimization requirements and
as such necessarily open to balancing. In my presentation, I will
review the success of this thesis.
Kai Moller is a DPhil student in Law at Lincoln
Week 2 (Thu, 19 Oct): Cristóbal
Natural law under other names: de nominibus non est
I maintain that Anglo-American analytical jurisprudence in the last
half century — since H. L. A. Hart— has retrieved some basic theses in
the tradition of natural law theory concerning the relationship between
positive and natural law, although not those contents defended by
traditional thought. To show this, I suggest attention to
four central affirmations in the Thomist interpretation of that
tradition: (i) the definition of law as an act of reason; (ii) the
immediate relevance of principles of natural law for adjudication;
(iii) the simultaneous concurrence of natural and positive law in legal
deliberation which justifies a legal decision, and (iv) the
non-obligatory nature, or the invalidity in the moral sense, of unjust
laws. Finally, I propose some consequences concerning the
manner of making a science of law and legal politics, consequences
which have not yet been accepted by most of those who cultivate
Cristóbal Orrego Sánchez is Profesor de Filosofía Jurídica y Política,
Universidad de Los Andes, Chile.
Week 3 (Thu, 26 Oct): Kate
Entrenchment of Positive Rights and Courts' Remedial Discretion
is necessary to examine the remedial power of courts in constitutional
rights’ cases in order to assess two purported implications of the
entrenchment of positive rights. In the first place, it has been
suggested that the entrenchment of positive rights necessarily involves
the transfer of ‘the power to govern’ to the courts. On this view, it
is a necessary consequence of the entrenchment of positive rights that
the courts will be determining the content of legislation. I dispute
the necessary connection which this view posits. I argue that the
effect of entrenchment is a contingent matter which depends on the
remedial approach of the courts rather than the positive (or negative)
nature of the duty imposed by the right. To the extent that the
remedial power of courts in constitutional rights’ cases is
discretionary, there is no necessary relationship between the violation
of a positive right and the order which a court will grant.
Appreciating the discretionary character of this power explains why
courts need not necessarily be involved in determining the content of
legislation when positive rights are breached. However, that such power
is discretionary raises a second concern about the consequences of
entrenching positive rights. The absence of standards to guide and
constrain their remedial power is said to place courts ‘adrift without
a compass on the sea of remedial discretion’. Without some restraint on
the courts’ exercise of this power, so we are told, the threat exists
that in their efforts to remedy positive rights’ violations, the courts
will encroach upon the functions of the other branches of government.
In order to develop the basis for such restraint and so resist the
threat, I propose a central case analysis of discretion and identify
the two variables around which the concept is based.
Kate Hofmeyr is an MPhil student at Balliol College, Oxford.
Week 4 (Thu, 2 Nov): Stephen
Control in the Modern Provocation Defence
Stephen Shute is Professor of Criminal Law and
Criminal Justice, University of Birmingham.
Week 5 (Thu, 9 Nov): Roger A.
Criminal Law Reform
The traditional or classical picture of criminal law reform has two
components. The first component is conceptual. The focus is on legal
doctrine as a conceptual structure that must be designed aright -- that
is, so as to reflect some preferred background set of norms, whether
these are viewed as internal or external to law. The second component
is empirical. It is understood that criminal law has functions and
effects. Criminology or other some social science can provide
information about these effects and about the success of criminal law
in performing its desired functions. Reform of doctrine can and should
be appropriately adjusted on the basis of such empirical information.
Contemporary critical legal and criminological theory repudiate this
traditional picture. They repudiate both the ideal of the
perfectibility of doctrine and the ideal of value-free social science.
Law, it is urged, is no more than a social construction subject to the
constraints of power, not of conceptual and empirical purity. Given
this diagnosis of criminal law, reform of criminal law via reform of
criminal law doctrine is pointless. Criminal law reform has no option
but to become radicalized, to serve the interests of the marginalized
and the dispossessed.
My focus in this paper is on this latter modality. There is an obvious
kernel of truth to the linked ideas that our perceptions of crime in
our society are molded by social forces, and that crime does not exist
independently of the social structures and processes that help to
define and control it. But how do we get from there, can we get from
there to the alleged irrelevance of a focus in criminal law reform on
I begin the paper by sketching the traditional picture of criminal law
reform and the reasons why this picture is said to be unacceptable. I
then present what I think can be properly taken from the critical
theorists' focus on social construction. I then analyze the arguments
for the radicalization of criminal law reform, and consider what more
is needed in order to secure the soundness of those arguments from a
starting point of the kernel of truth in the `law as social
construction' thesis. I end by considering the real extent of the
damage done to the traditional picture of criminal law reform by the
arguments of criminal law theory and critical criminology.
Roger Shiner is Emeritus Professor of Philosophy, University of British
Columbia Okanagan, and H.L.A. Visiting Fellow for MT 2006 at the Oxford
Week 6 (Thu, 16 Nov): Claire
and the Law
This is a paper concerning what Anatole France once called the
'majestic equality' of law. It aims to convince egalitarians that law
is worth their sustained attention, and legal theorists that there are
distinct and worthwhile questions to be asked concerning socio-economic
inequality and the normativity of law. A prima facie sufficient value
of the inquiry might be established by saying that whichever poverty
line, definitional model or measure one subscribes to, roughly one in
four British people is impoverished. The question of whether
socio-economic disadvantage raises problems for standard accounts of
the normativity of law then ought not to be dismissed as an obviously
unavailing argument from marginal cases.
Claire Grant is Senior Lecturer in Law,
Birkbeck College, University of London.
(Thu, 23 Nov): Jeff King
and Resource Allocation: A Critique and Refinement
In his posthumously
published "Forms and Limits of Adjudication" (1978-9), Lon Fuller put
forth the influential view that polycentric disputes are often
inherently unsuited to adjudication. Such disputes implicate networks
of interlocking interests and relationships, such that a change to one
relationship affects a number of other relationships, much like pulling
on a single strand of a spider's web. This idea is the most influential
objection to involving courts in resource allocation disputes, and its
acceptance poses a limitation on the extent to which courts can protect
welfare rights in public law. This paper (a) seeks to critique and
refine the role played in Fuller's theory about the effects of
adjudication on non-represented parties, (b) show that courts do and
can legitimately take account of such effects (where relevant) without
compromising their integrity, and (c) give guidance on how
polycentricity can be used flexibly as a factor conditioning the
exercise of judicial deference in resource allocation disputes. The
general conclusion is that while Fuller's idea does not justify the
non-justiciability doctrine, it is relevant and useful when applied in
the stated fashion.
Jeff King is a DPhil student in Law at Keble
(Thu, 30 Nov): Costas Douzinas
and the Ends of Human Rights
Costas Douzinas is Professor of Law and Dean of
the Faculty of Arts, Birkbeck College, University of London.
Schedule for TT 2006
Week 1 (Thu, 27 Apr):
Less Seriously. A Structural Analysis of Judicial Discretion
investigates the concept and the argumentation-theoretical construction
of judicial discretion. Both Dworkin’s and Hart’s strengths and
weaknesses are analysed, and in view of these, it is argued that a full
picture of judicial discretion is to be found between the extremes.
Thus, a moderate theory of judicial discretion is maintained. The
article develops a balancing model of discretion and relates it to the
theory of legal argumentation. The limits of discretion and the
relation between structural (strong) and epistemic (weak) discretion
are addressed in detail, both with illustrations from the jurisdiction
of the German Federal Constitution Court.
Matthias Klatt is Junior Research Fellow at New
Week 2 (Thu, 4 May): Antony Duff
Responsibility: Municipal and International
In this paper I want to explore some of the
implications of two ideas that, I believe, can cast new light on the
normative structures and logic of criminal law. The first idea will not
play a large role in what follows, but provides a necessary prelude to
the paper’s main discussion: it is that we should take more seriously
than theorists have often taken the distinction between responsibility
and liability, and pay more attention to the idea of responsibility as
a matter of answerability. The second idea, which is central to this
paper, is that we should also pay more serious attention than theorists
have often paid to the relational dimensions of responsibility —in
particular to the fact that we are responsible not just for
something, but to some person or body.
Antony Duff is Professor of Philosophy at the
University of Stirling.
(Thu, 11 May): Timothy Endicott
to spell 'accommodation'
Endicott is Fellow and Tutor in Law at Balliol College, Oxford.
recommended this week:
Tue, 9 May: HLA Hart
Memorial Lecture: 'The Internal Point of View'
Jules L. Coleman (Yale Law School)
5pm, Examination Schools
10 May: Seminar about the Lecture
Jules L. Coleman (Yale Law School)
10am-12pm, Goodhart Seminar Room, University College
Week 4 (Thu, 18 May): Geoffrey
Autonomy Matters? Reconciling the Competing Claims of Privacy and
Freedom of Expression
Most people agree that privacy is important,
but there is no consensus as to why this is so or what we may be
protecting when we speak of a right to privacy. One important view is
that privacy is important to individual autonomy. I will address what
this might mean in the particular context of a shared privacy, that is,
the privacy of an intimate relationship. I will argue that, in this
context, privacy cannot be defended simply on the basis that it is
important that individuals should be able to decide to whom personal
information will be released. A more complicated justificatory
rationale is required.
This has implications for our understanding of an evolving
jurisprudence and the future development of the law.
Geoffrey Gomery is a BCL student
at Lady Margaret Hall, Oxford.
Week 5 (Thu, 25 May): Leslie
Note: The previously announced talk by
Prof. Martin Stone has been cancelled.
Germ of Justice
Green is Professor of Law and Philosophy at Osgoode Hall Law School,
Week 6 (Thu, 1 June): William
Virtue of Law-Abidance
last half-century has seen a steady loss of confidence in the
defensibility of a duty to obey the law–even a qualified, pro tanto
duty to obey the laws of a just or nearly just state. Over roughly the
same period, there has been increasing interest in virtue ethics as an
alternative to the dominant consequentialist and deontological
approaches to normative ethics. Curiously, these two tendencies have so
far only just barely linked up. Although there has been discussion of
the question whether patriotism should be considered a virtue, and
abstract discussion about the virtuous person’s relation to authority
and justice in general, there has been little virtue-orientated
discussion having specific reference to the kinds of difficulties that
have motivated the ascendant skepticism about political obligation.
This silence has persisted despite repeated calls for renewed work on
This article proposes and defends a preliminary account of law-abidance
(as contrasted to obedience) as a virtue It
will argue that a virtue-theoretic account of our relation to the law
offers advantages that are not contingent upon the independence or
priority of the virtues with respect to consequentialistic and
deontological components of a complete moral theory. Chief among these
advantages is the promise of an alternative to the deadlocked positions
taken by apologists for the duty to obey the law and their
philosophical-anarchist critics–positions which have tacitly been
assumed to exhaust the viable possibilities.
William Edmundson is Professor of Law and
Professor of Philosophy at Georgia State University, Atlanta, and
H.L.A. Hart Visiting Fellow at the Oxford CEPL during TT06.
Week 7 (Thu, 8 June): Grégoire
Cult of Constitutional Rights Scholarship: A Critique of Balancing
Grégoire Webber is a DPhil student at Balliol
(Thu, 15 June): Nicola Lacey
On H.L.A. Hart's Biography
Prof. Lacey will give an informal talk about her recently published
biography of H.L.A. Hart.
Nicola Lacey is Professor of Criminal
Law at the London School of Economics.
Schedule for HT 2006
Week 1 (Thu, 19 Jan): no
meeting this week
Week 2 (Thu, 26 Jan): Alan
War crime and
the failure of law: Arendt, Jaspers and the ontology of guilt
What happens to
guilt when a whole community thinks that the palpably wrong is
acceptable? This was the problem Hannah Arendt found in judging
Eichmann to be responsible for his crimes. It is also a problem in
other war crimes trials, where the 'tu quoque' argument is used to
attack the prosecuting authorities for their own dirty hands or
selectivity in prosecutions. Jaspers's essay on German guilt also
shares something of this problem, but there is a way of reading Jaspers
against the grain of his own argument to a more fruitful conclusion. In
so doing, meta-ethical questions about the nature of moral judgment are
Alan Norrie is Edmund Davies Professor of Criminal
Law and Justice, King's College, London.
Week 3 (Thu, 2 Feb): Kevin Toh
on Detachment and Describability
a previous paper, I argued (partly following Raz) that Hart offered in The
Concept of Law and elsewhere a noncognitivist or expressivist
analysis of internal legal statements. This paper attempts to defend
Hart’s conception of the legal discourse by responding to two lines of
criticism that Raz has devised. First, Raz has argued that Hart’s
analysis fails to account for what Raz calls “detached legal
statements”. Second, Raz has argued that Hart is wrong to assume that
normative practices, including legal practices, can be characterized
satisfactorily by deploying only descriptive statements. In response, I
argue that Hart has resources to account for detached internal legal
statements, and that Raz’s arguments against the describability of
legal practices are inconclusive.
Toh is Assistant Professor of Philosophy at Indiana University, and
H.L.A. Hart Fellow (Hilary 2006) at Oxford's Centre for Ethics and
Philosophy of Law.
Week 4 (Thu, 9 Feb): Prince
Without Corrective Justice
In recent times
it has become increasingly popular for unjust enrichment lawyers to
morally justify the law of unjust enrichment in terms of corrective
justice. In my paper, I argue that they are making a mistake. This is
because corrective justice cannot justify what is generally regarded to
be unjust enrichment’s core case: the mistaken payment. In light of
this I argue that there are good reasons for unjust enrichment lawyers
to drop corrective justice altogether as a moral justification for the
law of unjust enrichment.
Price Saprai is a D.Phil. student at Mansfield
Week 5 (Thu, 16 Feb): Amit
Evidence: An Investigation of Its Nature and Its Usage in the Criminal
In US vs. Shonubi, the prosecution relied on
impressively accurate statistics to prove the amount of drugs Shonubi
carried. However, the appellate court quashed the sentence because it
was not based on “specific” evidence.
But is there any real difference between statistical and
individualistic evidence or is it merely a matter of presentation? And
even if this difference is real, why should it matter for the criminal
In this paper, I argue that there is a real difference in quality.
While the mainstream holds that “all evidence is probabilistic in a
sense”, I argue that it is not in the same sense. There are different
kinds of uncertainty involved and each is irreducible to the other.
I then argue that this qualitative difference has important
implications for the criminal context. The debate about the usage of
statistical evidence in criminal courts is in fact about the proper
balance between two principles in tension: accuracy and personal
responsibility. I then suggest a procedure that mitigates between them.
I take my theory to practice, and analyse three
real cases, through which I deal with three residuals issues:
statistical evidence used for non-convicting purposes, DNA evidence,
and statistical evidence submitted by the defence.
Pundik is a D.Phil. student at Balliol College, Oxford.
Week 6 (Thu, 23 Feb): no
meeting this week
Week 7 (Thu, 2 Mar): Juan Cruz
to Justify Rights
presentation aims to give a general picture of the role of rights in
reasoning. I begin by reviewing some of Joseph Raz's central ideas:
that rights are intermediate conclusions in practical reasoning; that
grounds of duties; and that some rights justify
other rights. I then propose an analysis of the reasons that
justify rights and the relations between
them. I will consider two main kinds of reasons discussed by
Raz: individual self interest and general or common interest.
This is an introductory (and unfinished) work that identifies central
issues but also points to remaining challenges in the understanding of
Cruz Parcero teaches jurisprudence at UNAM, Mexico, and is a Visiting
Researcher at Oxford.
Week 8 (Thu, 9 Mar): Bernard
Against Prediction: Punishing and Policing in an Actuarial Age
In 1933, the state of
Illinois decided to hire its first prison actuary to predict the
probability of each inmate’s success or failure on parole. Today,
actuarial methods permeate the field of crime and punishment—from the
drug-courier profile and IRS fraud algorithms to predictions of future
dangerousness, violent sexual predator statutes, parole-failure
probability tests, and racial profiling. We have come to embrace the
use of group statistics to administer individual justice.
This text challenges the actuarial turn in crime and punishment. It
sets forth three compelling reasons why we should be skeptical
about—rather than embrace—the new actuarial
paradigm. First, the reliance on predictions of
future offending may be counterproductive to the primary goal of law
enforcement. The use of group statistics may actually increase
the overall amount of crime in society. Second, the reliance on
probabilistic methods produces a distortion of the carceral
population—a dissymmetry between the distribution of actual offenders
and of persons who have contact with the criminal justice system—which
can have devastating consequences on the subjects of profiling. Third,
the proliferation of actuarial methods biases our conception of
justice. It has begun to reshape and distort the
way we think about just punishment.
Instead of embracing
actuarial justice, we should turn instead to randomization.
Randomness in the policing context is simple: law
enforcement could use a lottery system for IRS audits, random selection
for airport screening, or numerical sequencing for consensual car
searches on the highway. In the sentencing area,
randomness means something quite different, but no less
straightforward: it means imposing a sentence based
on a proper metric and then avoiding the effect of prediction by
eliminating parole or other devices that are
prediction-based. In criminal law and enforcement,
the presumption should be against prediction.
Bernard Harcourt is Professor of Law and
Faculty Director of Academic Affairs at the University of Chicago Law
for MT 2005
Week 1 (Thu, 13 Oct):
Emergencies and the Rule of (Criminal) Law
After sketching out the main conflicting
theoretical positions on how the criminal law ought to contemplate and
provide for its own potential failure in cases of private emergency, I
argue that it is only in the most extreme and generalized cases that
its sole legitimate response is to disclaim competence in favour of the
individual (and give way to the 'rule of people'). In other cases, the
criminal law ought to engage with its subjects, while remaining aware
of the limits imposed on its authority and guidance ability by such
time-sensitive situations. Thus, the relationship between the rule of
(criminal) law and emergencies is one of degree. In a final
parenthesis, I argue that whenever the rule of people is contrasted
with the rule of law in the context of emergencies, it is the rule of
rational people that is first and foremost at issue.
François Tanguay-Renaud is a D.Phil. student at
Balliol College, Oxford.
Week 2 (Thu, 20 Oct): Sameer
Note: meeting in the Sutro Room, Trinity College
Reasons and Reparation
The challenge for
a theory of tort law is to explain why breaching a primary legal duty
places the tortfeasor under a secondary legal duty of repair. The law
defends the imposition of a secondary legal duty of repair by relying
on a corresponding moral duty of repair. In this paper, I examine a
recent attempt by John Gardner to justify the moral duty of repair. I
look at his ‘next-best doctrine’ according to which the secondary duty
of repair is simply the primary duty pressing for conformity. I argue
that the examples of failures to perform promissary obligations which
Gardner relies on do not support the case for reparation since an
individual is compelled to do the next-best thing only if the agreement
includes it as a fallback provision. I also argue that an agent does
have reason to regret or a reason to compensate because the original
reason not complied with still obtains and continues to call for
conformity. I then briefly discuss the problem which incommensurability
poses for the conformity account.
Sameer Singh is a D.Phil. student at Corpus
Christi College, Oxford.
Week 3 (Thu, 27 Oct): Pavlos
Rights in Deliberation
Rights are used in a number of different contexts.
The variety cannot be covered in its entirety by Hohfeld’s typology.
Nor is it fully explained by the distinction between legal and moral
rights or degrees of generality. In this paper I try to distinguish
between rights as reasons and rights as conclusions of practical
deliberation. There are quite a few theories about rights as reasons
(they are well known and I will not discuss them). It is more
interesting to ask about the role of rights as deliberative
conclusions. My discussion will argue that Hohfeld's typology is
correct and that the will theory and not the interest theory of rights
gives the most adequate account of this aspect of rights. These
questions raise deeper issues about practical reasoning and the role of
rules and judgment in legal argument.
Pavlos Eleftheriadis is Fellow and Tutor in Law at
Mansfield College, Oxford.
Week 4 (Thu, 3 Nov): Richard
Legislative Intent and Group Action
argues that legislative intent cannot exist because the legislative
assembly is a group rather than an individual. He suggests we should
conceive of legislation by assembly to have been produced by a voting
machine rather than chosen by a reasoning agent capable of forming and
acting on intentions. I argue instead that the assembly does form and
act on intentions, which may be termed the legislative intent.
Purposive groups in general form and act on intentions, not by summing
the intentions of each member of the group but instead by forming plans
of action that coordinate the action of the members of the group to the
shared end that defines the group. Legislatures exist to fulfil the
legislative function, which is to oversee and change the law as
appropriate. The sole legislator fulfils this function by reasoning and
choosing what should be done. The legislative assembly fulfils the
function by acting like a sole legislator and thus adopts proposals
that are reasoned and presumptively coherent. Waldron’s
alternative explanation – that the group acts like a voting machine –
cannot explain how the legislative function is fulfilled and is thus
Richard Ekins is a D.Phil. student at Balliol
Week 5 (Thu, 10 Nov): John
Simply in VIrtue of Being Human: the Whos and Whys
of Human Rights
In this paper I discuss some logical features
of human rights. In particular I discuss whether, inasmuch as they are
universally-held rights, human rights require a universal
justification. I suggest that the answer is no. Some ideas from James
Griffin's work are used as an inspiration, others as a counterpoint.
Gardner is Professor of Jurisprudence, and Fellow of University
Week 6 (Thu, 17 Nov): John
Harm and Autonomy
One of the most
influential versions of the 'Harm Principle' is the Perfectionist
Liberal version that seeks to derive harm from autonomy-loss or
autonomy-violation. I wish to raise doubt about the
derivation. Autonomy cannot be the concept for a
comprehensive account of harm, wide-ranging though its potential
is. The Harm Principle is said to limit legitimate
criminalization and this is the context in which it is usually
discussed. However, the principle is also said by some to limit
legitimate taxation and it is this latter context on which I
focus. I argue that an idea of 'valuable activity', not
reducible to autonomy is needed. I also speculate, more
programmatically, that a broad notion such as 'need' may also be
Stanton-Ife teaches Jurisprudence at King's College London.
Week 7 (Thu, 24 Nov): Josep
Lluís Martí Marmol
The Epistemic Conception of Deliberative Democracy
One of the most
popular and developed recent theories of democracy is deliberative
democracy. Hundreds of contributions bear an extensive literature on
it. And one of the alleged arguments for the model of deliberative
democracy consists in assigning epistemic value to it - that is, in
instrumentally justifying the deliberative democratic procedures
because of their reliability to produce right or just outcomes (right
or just public decisions). This paper discusses the main merits of such
a defence and holds that a coherent account of deliberative democracy
necessarily (conceptually) requires an epistemic conception of it, even
though a substantive justification is also required in order to avoid
the elitist trends involved in the epistemic accounts.
Josep Lluís Martí Marmol teaches Jurisprudence
at the Law Faculty of Pompeu Fabra University, Barcelona (Spain).
Week 8 (Thu, 1 Dec): Douglas
Note: meeting in the Arts Room,
Four Tales About Fairness
agrees today that in laws, policies, and actions we must give due
regard for fairness. We all assume that every (normal, adult) person is
equal in some sense relevant to morality. But philosophers have
disagreed for centuries about the meaning of equality and
fairness. Why do these disagreements persist? This
paper attempts to explain the underlying disagreements that distinguish
different plausible interpretations of fairness. It argues
that the underlying principles that support different conceptions are
incompatible with each other, so no neutral conception of fairness or
equity is possible.
Douglas MacLean is H.L.A. Hart Visiting Fellow at
the Oxford Centre for Ethics and Philosophy of Law, and Professor of
Philosophy at the University of North Carolina, Chapel Hill
Week 9 (Mon,
5 Dec): Dwight Newman [meeting
due to flight delay of the speaker - apologies for any inconvenience
Note: meeting on Monday, 4pm, in the
SCR (opposite the students' common room) of the
Law Faculty Building on St Cross Road
Solomon's Judgment, Procedural Rules, and
I will use Solomon's famous judgment in the Case of
the Two Women to focus attention on how moral theory has much to say
about procedural rules, perhaps more than commonly presumed. In the
context of any legal dispute, I will argue that moral theory both
demands the use of procedural rules and prescribes significant features
of their form; in the process, I challenge Alex Stein's recent
sophisticated defence of the commonly held view that legitimate
procedural rules have only instrumental purposes. Finally, I
will argue that these conclusions have significant implications for the
procedural rules to be used in the resolution of Aboriginal rights
claims(procedural rules that are hotly debated in contexts like that in
the more doctrinal paper that has circulated by way of background.)
Dwight Newman is Assistant Professor at the
College of Law of the University of Saskatchewan, Saskatoon (Canada).
Schedule for TT 2005
Week 1 (Tue,
26 Apr): Tony Coady
Morality and Private Warriors
From Tony Coady: 'The paper raises some questions
about the moral status of mercenary warriors that is of some relevance
to national and international law. It's a chapter in a book I'm writing
on "Morality and Political Violence".'
Tony Coady is Professor of Philosophy in the University of Melbourne.
(Tue, 3 May): Helder de Schutter
Justice and Multinational Federalism
From Helder de Schutter: 'In this paper I
critically examine existing normative theories of multinational
federalism. I argue that many such theories succeed in demonstrating
why justice requires granting national groups the right to
self-government, but in the process fail to offer a normative grounding
of the federal level of the multination state. Drawing on an extension
of what Rawls calls "the fact of reasonable pluralism", I develop a
suggestion to solve this normative lack, arguing that federalism should
mainly be understood as a fair mechanism for dealing with cross-cutting
and divergent identities.'
Helder de Schutter is a doctoral student at Leuven. He is writing on
Week 3 (Wed,
11 May): Nkiruka Ahiauzu
Multiple Principles and the Obligation to Obey the
George Klosko's multiple principle theory of
political obligation is a most recent formulation for the existence of
a general obligation to obey the law, consisting of a combination of
fair play, natural duty, and the common good. In the paper we argue
that the generality requirement of the obligation to obey the law has
normative and factual problems of, respectively, motivation and
comprehensiveness. We aim to show that whereas the multiple principle
theory may solve the factual problem of the generality requirement, it
does not solve its normative problem, which is a first-personal
implication of the question 'why should I obey the law?'
Nkiruka Ahiauzu is a Lecturer in Law in the Department of Law,
University of Wales at Aberystwuth.
Tuesday 10 May: Owen Fiss
The War on Terrorism and the Rule of
Hart Memorial Lecture 2005.
This is not a JDG event, but anyone with interest in jurisprudence is
encouraged to attend. This year’s Hart Memorial Lecture in
Jurisprudence and Moral Philosophy is given by Professor Owen Fiss,
Sterling Professor of Law in the Yale Law School.The lecture will be
held in the Schools at 5 o’clock.
(Tue, 17 May): Hans Oberdiek
Leiter's Naturalized Jurisprudence
Hank Oberdiek is professor of philosophy at Swarthmore College in
(Tue, 23 May): Martin Stone
Martin Stone will discuss two papers:
On the Old Saw, "Every reading of a text is an
interpretation": Some Remarks
Practice and Ubiquitous Interpretation: The Basics
Both deal with the work of Stanley Fish and his argument for the
essential role of interpretation in the understanding of all texts.
Martin Stone is Professor of Law in the Cardozo Law School, New York.
(Tue, 31 May): Emmanuel Fernando
Dworkin and Incompletely Theorised Judgments
The paper will criticize Dworkin's theory of constitutional
interpretation from the perspective of exclusive legal positivism.
Emmanuel Fernando is Associate Professor in the Department of
Philosophy, University of Philippines and Professional Lecturer in the
UP College of Law.
(Mon, 6 Jun): William Twining
is a draft of a paper that I am giving at a World Congress in Granada
in May. Part I summarises a position developed at length elsewhere.
Part II is a response to criticisms and queries raised about my earlier
writings about General Jurisprudence. Part III is a preliminary
statement that needs development. In my oral presentation here I shall
focus on Part II (b), (c) and (d). Questions and comments on any
aspects of the paper will, of course, be welcome.
William Twining is Emeritus Quain Professor of Jurisprudence in the
Faculty of Laws, University College London.
(Wed, 14 Jun): Alexi Patsaouras
The Practice of Legal Validity
I will present a section of an M.Phil. dissertation
in which I analyze Hart's practice theory of rules, and his distinction
between moral and legal validity, in light of Wittgenstein's
rule-following considerations and several strands in the private
language argument. I will first quickly outline part of Cora Diamond's
reading of Wittgenstein's attack on a truth conditional account of
meaning and his attempt to get us to look at our practice of using
words in order to unpack their meaning. I will then build on Joseph
Raz's theory of authority in order to lay the groundwork for an attempt
to flesh out the concept of legal validity, and its connection to moral
reasons for action, through a study of the practice of applying that
Alexi Patsaouras is a BPhil student in Magdalen College, Oxford.
Schedule for HT 2005
Week 1 (Tue,
18 Jan): no meeting
(Tue, 25 Jan): Danny Priel
Rights, Autonomy and Practical Reasoning
It has been argued by various writers that there is
a right to do wrong. In this paper I challenge this argument by first
presenting an account of the way right function in practical reasoning,
and then (if the general account is correct) showing that it follows
that a right to do wrong is logically impossible.
Danny Priel is a doctoral student in Magdalen College, Oxford.
Week 3 (Tue,
1 Feb): François Tanguay-Renaud
Exculpation on the Ground of Duress: A Legal
Response to Coercion-Based Emergencies
Although a relatively ‘stand-alone’ piece, this
paper forms part of a wider study on the relationship between the
concept of emergency and the criminal law (and hopefully, further down
the road, the law in general). Looking at coercion as a specific
instance of emergency, I ask what is wrong with it and focus on the
defence of duress to understand better the whys and hows of the
criminal law’s response to it. In particular, I attempt to take
seriously Anthony Kenny’s affirmation that ‘law and duress are, as it
were, in the same business’, looking at the link between authority,
coercion, and punishment, as well as inquiring whether holding the law
and private coercers accountable on the same moral plane can be
instructive in any way.
François Tanguay-Renaud is a research student in Balliol College,
(Tue, 8 Feb): Mark Walters
The dominant view of constitutionalism in common
law jurisdictions is thatlegislative power is legally unfettered except
to the extent that somewritten constitution provides otherwise. In this
paper I explore some ofthe theoretical implications of the emergence -
or re-emergence - of an
alternative view of constitutionalism according to which
so-called‘unwritten’ constitutional values are said to limit
legislative power. Inparticular, I will consider recent arguments
concerning ‘common lawconstitutionalism’ and ‘ancient
constitutionalism’ presented by David Dyzenhaus and James Tully.
Mark Walters teaches law at Queen's University, Kingston, Ontario.
(Tue, 15 Feb): Oonagh Reitman
Rethinking Multiculturalism and Feminism
The paper makes a distinction
between systemic patriarchy and patriarchy which attaches to distinct,
tangible practices and regulatory acts. In relation to the latter, the
paper defends multiculturalism only where it is synonymous with
feminism (understood as the multicultural feminism which has been
articulated in feminist debates on difference among women). In relation
to the former, even multiculturalism which is not synonymous with
feminism is defensible, provided certain deliberative principles and
conditions are respected and implemented with regard to enduring
systemic patriarchy. The paper defends and fleshes out how
multiculturalism and feminism can be regarded as synonymous, and
establishes the limits of this thesis while then specifying what are
the principles and conditions which are to attach to multiculturalism
to make it more defensible from a feminist perspective
Oonagh Reitman teaches at the Gender Institute in the LSE.
(Tue, 22 Feb): Verónica Rodríguez Blanco
A Detached Viewpoint in Legal Theory
Joseph Raz shares with John Finnis the view that there is a ‘detached’
viewpoint from where we can explain our evaluative practices. But what
are the conditions that make possible this kind of description or
explanation? This is a puzzling and intriguing view. The purpose of
this paper is to clarify those conditions that make possible the
description or explanation of normative concepts and more specifically
normative legal concepts.
Veronica Rodriguez-Blanco is lecturer in Law in the University of
(Tue, 1 Mar): Stephen Perry
Associative Obligations and the Obligation to Obey
chapter 6 of <i>Law’s Empire</i> Ronald
Dworkin argues that there normally exists a general obligation to obey
the law and that this obligation is just one instance of a more general
family of so-called ‘associative obligations’. Such obligations, the
paradigmatic instances of which are obligations of family and
friendship, are said by Dworkin to arise under certain specified
conditions, the most important of which is that the relevant
association's practices must show equal concern for all the
association’s members. In this paper I argue that Dworkin’s general
analysis of associative obligations is flawed and that a different
argument, based on the intrinsic value of the relevant association for
its members, should be accepted instead. If, however, we accept this
alternative analysis, then Dworkin’s fundamental claim, which is that
political obligation is a species of associative obligation, turns out
after all to have a certain plausibility.
Stephen Perry is Fiorello LaGuardia Professor of Law and Professor of
Philosophy in NYU.
(Wed, 9 Mar): Zofia Stemplowska
Significance of Responsibility to Justice
What should the place of responsibility be in
theories of justice? Even among egalitarians the disagreement seems
immense. I want to show that once we re-examine the academic debate we
will notice that the similarities in the treatment of responsibility by
luck and democratic egalitarian theories of justice are greater than
the differences. Specifically, there are two
main aims to my argument. The first is to question the division of
theories of justice into those that see responsibility as
straightforwardly legitimising outcomes that stem from choices made
against the background of equality and those that do not. The second,
related, aim is to suggest another way in which considerations of
responsibility can enter our theories of justice.
Zofia Stemplowska is a doctoral student in Nuffield College, Oxford.
Schedule for MT 2004
Week 1 (Tue,
12 Oct): no meeting
(Tue, 19 Oct): Dwight Newman
as Moral Rights-Holders: Some Conceptual Foundations XX
From Dwight Newman: 'In this paper, I face a
preliminary challenge to the concept of collective moral rights and lay
some of the groundwork for such a theory of collective moral rights.
Namely, some theorists have put the challenge that collectivities
simply are not the sort of entity that can hold moral rights. Working
within an interest theory of rights (but arguing briefly that the
conclusions could also be developed under a choice theory of rights), I
argue against this challenge, employing in the process Dworkin's
account of community and others' recent writing on collective action
and collective intention.'
Dwight Newman is a doctoral student in St. John's College, Oxford.
Week 3 (Tue,
26 Oct): James Nickel
On the Alleged Indivisibility of Human Rights: When
Does One Right Require Another?
This paper critically examines the claim that human
rights are indivisible and
interdependent. It does so by creating a framework for understanding
supporting relations between politically implemented rights. The paper
also attempts to evaluate Henry Shue's arguments for "basic rights."
James Nickel is Professor of Law in Arizona State University.
(Tue, 2 Nov): no meeting
(Tue, 9 Nov): Amir Fuchs
Welfare Between Equality and Responsibility
From Amir Fuchs: 'Advocates
of welfare reform programmes emphasize the importance of personal
responsibility as a driving force in the justification of harsh
policies measures. Egalitarian theories have further enhanced this
position by grounding responsibility in choice and by allowing both to
mark the limits of equality. I criticize this position and offer an
Amir Fuchs is a doctoral student in Somerville College, Oxford.
(Tue, 16 Nov): Grégoire Webber
Legal Lawlessness and the Rule of Law
From Grégoire Webber: 'This paper examines whether, and how, the state
can exempt its agents from compliance with the criminal law. I argue
that the rule of law does not preclude this possibility, but that it
must be carefully conscribed in order to remain consistent therewith.
Sections 25.1ff of the Canadian Criminal Code are examined.'
Grégoire Webber is a doctoral student in Balliol College, Oxford.
(Tue, 23 Nov): Roger Crisp
Roger Crisp: 'I'm working on a book typescript at the moment, and the
first chapter argues for non-realism about morality based on a
morality/law analogy and positivism about the law.'
Roger Crisp is a fellow and tutor in philosophy in St. Anne's College,
(Tue, 30 Nov): Stephen Guest
Integrity, Equality, and Justice
Dworkin's idea of integrity seems sometimes to be a
theory of the second best to justice; apparently conflicting lines of
precedent are 'smoothed' by means of personal moral convictions about
what justice requires. This is actually fine, but it means that more is
claimed for integrity than is really there. Integrity is better
explained by a direct application of a conception of equality
underlying moral principles of fulfilling reasonable expectations,
economy of decision-making, rule of law virtues and democracy.
Stephen Guest is Professor of Legal Philosophy in University College,
Schedule for TT 2004
Week 1 (Tue,
27 Apr): Danny Priel
Farewell to the Exclusive-Inclusive Debate
In recent years there has been an ongoing debate
between ‘exclusive’ and ‘inclusive’ legal positivists. The paper argues
that both views are mistaken, as they both share one mistaken
assumption, viz. that when the law mentions moral words (like
‘equality’ or ‘justice’), it refers to moral concepts. The paper shows
that this assumption is false, and consequently that the
exclusive-inclusive debate should be abandonded.
Danny Priel is a doctoral student in Magdalen College, Oxford.
29 April: Meeting with John Lough from Oxford University Press
Joint event with the IP, human rights and PIL
John Lough, head of the academic law publishing department of OUP, will
speak about publication of doctoral theses.Light lunch will be
provided.Note the place and time: New College, Lecture Room 6, 12.15.
(Tue, 4 May): Vesselin Paskalev
Joint Commitment and Individual Freedom
The social fact that we sometimes feel or indeed
have obligations to various groups to which we belong is advanced by
some (e.g., Margaret Gilbert) as grounds for legitimation of political
obligations. However, individual freedom seems lost in this account. I
propose a way of justifying political obligations on similar grounds
without forgoing freedom by suggesting the requirement of actual
participation as a source and limit to these obligations.
Vesselin Paskalev is a visiting student in Wolfson College, Oxford.
Week 3 (Wed,
12 May): Timothy Endicott
One True Interpretation
Timothy Endicott is Lecturer in Law in the University of Oxford and
Fellow of Balliol College.
Tue, 11 May: David Wiggins
Objectivity in Ethics: Two Difficulties,
Hart Memotial Lecture 2004.This is not a JDG event,
but anyone with interest in Jurisprudence is encouraged to attend.
(Tue, 18 May): Luc J. Wintgens
Legisprudence: A New Theory of Legislation
Luc Wintgens is Professor of Law and Jurisprudence at the University of
Brussels and at the European Academy of Legal Theory, Brussels.
(Tue, 25 May): Jorge Menezes Oliveira
Harm, Offence and Mill's Conception of Liberty
Jorge Menezes Oliveira is a doctoral student in Wolfson College, Oxford.
(Tue, 1 Jun): James E. Petts
An Empirical Theory of Value
It is commonly accepted as true that one cannot derive an ‘ought’ from
an ‘is’, but such a stipulation is irreconcilable with the equally
popular proposition that existance is exhausted by physical reality. I
will argue that value, and the related concepts of purpose, the right,
importance and reason, are created by the existence of life, and that
truths about the nature and genesis of these concepts, just like truths
about the nature and genesis of life, can only be arrived at by
reasoning from empirical observations of physical reality. Such
reasoning supports, I then argue, conclusions about value that support
an account of the concept broadly consistent with classical
James Petts is a BCL student in St. Hugh’s College, Oxford.
(Tue, 8 Jun): Gerald Lang
Two Objections to Luck Egalitarianism
article considers two objections to the doctrine of ‘luck
egalitarianism’. The first of
them, derived from work by Susan Hurley, is the ‘Egalitarian Fallacy’.
The second of them, which
builds on an insight of Hurley’s, is titled the ‘See-Saw Objection’.
Both objections attack luck
egalitarianism’s policy of using an individual’s bad luck to ground
redistribution. It is argued
that luck egalitarianism can deflect the Egalitarian Fallacy, but not
Objection. The concluding section assesses the level of damage on luck
by the See-Saw Objection, and plots some future trajectories for those
broadly sympathetic to the luck egalitarian project.
Gerald Lang is fellow of University College.
(Tue, 15 Jun): John O'Dowd
The Justice of Adjudication and Social Justice
John O’Dowd is member of the faculty of law of University College,
Dublin and a doctoral student in Wolfson College, Oxford.
Schedule for HT 2004
| Week 1 (Tue, 20 Jan): David
The paper deals with the question of national
responsibility for infringements of rights of other peoples. In
particular, the paper examines the question whether such responsibility
can be ‘inherited’, i.e. whether one generation should be required to
compensate for the crimes of earlier generations.
Professor David Miller is Professor of Political Theory in the
University of Oxford and fellow of Nuffield College.
| Week 2 (Tue, 27 Jan): G.A. Cohen
Rescuing Justice from Constructivism
The paper draws upon a previous paper, Facts
and Principles.(This is an expanded
version of an article that appeared recently in Philosophy
and Public Affairs).Discussion will start by rehearsing
sections s and m of ‘Facts and Principles’, and will then focus on
sections 3 and 4 of ‘Rescuing Justice from Constructivism’.
Professor G.A. Cohen is Chichele Professor of Social and Political
Theory in the University of Oxford and fellow of All Souls College.
| Week 3 (Tue, 3 Feb): Michael
Participant Understanding in Legal Theory
From Michael Giudice: ‘I aim to investigate the
extent to which contemporary accounts of the
normativity of law successfully recognize the diversity of participants
in life under law.'
Michael Giudice is a visiting research student in Keble College, Oxford.
| Week 4 (Tue, 10 Feb): Dimitrios
Fussy People and the Limits of Authority
Joseph Raz’s theory of authority states that
authoritative directives be identifiable by reference to social facts
alone, without resort to moral considerations (sources thesis). The
paper will argue that a moral component is an essential part of the
identification of authoritative directives. To this effect, it will
focus on the attitudes of the ‘fussy people’ toward practical
authorities in general and toward law in particular.
Dimitrios Kyritsis is a doctoral student in Brasenose College, Oxford.
| Week 5 (Tue, 17 Feb): Dwight
Rights to Exit and Rights to Eject
Dwight Newman: ‘Some theorists have recently used the supposition that
group members should have exit rights to argue for the liberalization
of illiberal groups. I will offer an argument that these theorists
distort the role of exit, that rights of exit are not always necessary
in all groups, and that group rights to eject members need to be
contemplated more seriously.'
Dwight Newman is a doctoral student in St John’s College, Oxford.
| Week 6 (Tue, 24 Feb): Danny
Legal Realism and Legal Positivism Reconsidered -
The paper examines Brian Leiter’s thesis presented in a series of
papers that the legal realists were tacit hard legal positivists.A
representative article is ‘Legal
Realism and Legal Positivism Reconsidered’, Ethics
111 (2001): 278-301 (for JSTOR subscribers).
Danny Priel is a doctoral student in Magdalen College, Oxford.
| Week 7 (Tue, 2 Mar): Shlomit
Justifying the Right to Self Defence: The Problem
of Self Preference
Wallerstein is a doctoral student in Balliol College, Oxford.
| Week 8 (Wed, 10 Mar): Nick
The Limited Modesty of Subsidiarity
Those interested in the paper can contact Nick
Barber is a fellow of Trinity College, Oxford.
for MT 2003
| Week 1 (Tue, 14 Oct): no
| Week 2 (Tue, 21 Oct): Nicos
Interpretivist Theories of Law (www link)
The paper aims to correct some common
misunderstandings about interpretivism as a theory about the nature of
law and provide some arguments in its defence.
Nicos Stavropoulos is University Lecturer in Legal Theory in the
University of Oxford.
| Week 3 (Tue, 28 Oct): Pavlos
The Identity of Legal and Political Philosophy
Many philosophers say that legal philosophy is a
distinct kind of philosophy in order to insulate law from the political
debates that divide theories of justice and the state. Yet, the
position was strained when Kelsen put it forward and it remains so
today. The paper offers some new arguments why (a) jurisprudence is not
a description of anything, (b) jurisprudence is not a history of
anything, and (c) jurisprudence is political philosophy.
Pavlos Eleftheriadis, until recently in the Law Department of the LSE,
is now fellow of Mansfield College, Oxford.
| Week 4 (Tue, 4 Nov): Juan Vega
On Positivism's Inclusive/Exclusive Debate
The paper tackles the debate between Joseph Raz’s
exclusive positivism and Jules Coleman’s objections to it in The
Practice of Principle.The paper raises some doubts regarding Coleman’s
version of positivism and particularly his interpretation of the
practical difference thesis.
Juan Vega is an academic visitor in Oxford, attached to Balliol
College. He holds a research appointment at the Legal Research
Institute in Mexico's National Univeristy, and teaches jurisprudence at
the law faculty there.
| Week 5 (Tue, 11 Nov): Amir Fuchs
The Fallacies of Objections to Selective
and courts worldwide insist on distinguishing between absolute
conscientious objection (pacifism) and objection to particular wars.
The paper assesses the justifications to this distinction and finds
them wanting. Current affairs make the investigation of this issue all
the more relevant.To read an Israeli case (in translation) that will be
discussed clic here.
Amir Fuchs is a doctoral student in Somerville College, Oxford.
| Week 6 (Tue, 18 Nov): Kyron
A Specification to the Coherence Theory of
Kyron Huigens is Professor of Law, Cardozo Law School, Yeshiva
University, New York. Last year he was visiting professor at the
Michigan Law School, Ann Arbor.
| Week 7 (Tue, 25 Nov): Melanie
and Now: The Natural/Positivist Nexus at War - Auden’s “September 1,
poem exhibits a fractured rationality at its heart and the point of
fracture laid it open to subsequent popular and political
metabolisations. In revisiting this reception, the paper considers
whether such colonisation provides a more general lesson – whether such
‘fracture’ holds broad implications for the ‘tensile’ properties of
theory. Click here
for Auden's poem.
Melanie Williams teaches at the Law Department of the University of
Wales at Aberystwyth. She will shortly take up her new post as Reader
in Law at the University of Wales, Swansea.
| Week 8 (Wed, 3 Dec): Dennis
Interpretation in Law
From Professor Patterson:‘The draft I plan to
discuss with you is at a point where I can benefit from all manner of
criticism of the project. As you will see, my view of interpretation is
the product of my more fundamental view of law. Thus, it may rightly be
said that the success of my account of interpretation depends, at least
in part, on the success of my underlying view of law as a practice of
argument.The draft is compressed in places where I need to be more
capacious in developing my argument. Notwithstanding this compression,
I am sure the argument is developed enough for it to be profitably
criticized, and I look forward to engaging with you on the topic of
interpretation in law.’
Dennis Patterson is Distinguished Professor, Rutgers University School
of Law (Camden).