Note: change of weekday
Note: change of venue - we will meet at the 90 HS Lecture Room in University College (please ask the Porters for directions)

Partly Laws Common to all Mankind: Natural Law or the Law of Nations 

Professor Waldron will discuss the suggestion that the law of nations (ius gentium) has an important role to play in modern jurisprudence.  (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)  

RSVP (oxfordjdg@gmail.com) highly appreciated.

 

Jeremy Waldron is University Professor at New York University Law School, and 2008-9 Fowler-Hamilton Visiting Fellow at Christ Church, Oxford.

Dworkin's Challenge

I 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 Philosophy Program.

The nature of the legislature

Jeremy 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 reasoning person.

Richard Ekins is DPhil student at Balliol College, Oxford.

How Law Claims, What Law Claims

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.)

John Gardner is Professor of Jurisprudence and Fellow of University College, Oxford.

The ‘multiple groundings’ idea and how it applies to law

According 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.
Assuming 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.
The 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.

Marcin Matczak is Lecturer in Legal Philosophy at the University of Warsaw (Poland) and research associate at the Centre for Socio-Legal Studies, Oxford University.

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Steven Lee is Professor of Philosophy at Hobart and William Smith Colleges (Geneva, NY), and this term's HLA Hart Fellow at the Oxford CEPL.

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