Michaelmas 2008
Trinity 2008
Hilary 2008
Michaelmas 2007
Trinity 2007
Hilary 2007
Michaelmas 2006
Trinity 2006

Hilary 2006
Michaelmas 2005
Trinity 2005
Hilary 2005
Michaelmas 2004
Trinity 2004
Hilary 2004
Michaelmas 2003

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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.

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.

A Brief Examination of the Demands-of-Conscience Defence

In 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.

The Inevitable Efficiency of Using Racist Statistical Evidence in Court

In 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.

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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.

The Moral Distinctiveness of Genocide 

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.

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.

New Questions for Jurisprudence

The 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?".

Danny 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.)

Special Event

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)

7pm (drinks from 6.30pm)

Gulbenkian Lecture Theatre, Faculty of Law, St Cross Building

This 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.

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Note: we will meet in the Swire Seminar Room, University College
Limits on Constitutional Rights: Some Thoughts on the Proportionality Approach

 

Proportionality 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 high.
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 policy.

Dénise Réaume is Professor of Law at the University of Toronto, and the HT 2008 HLA Hart Fellow at the Oxford CEPL.

Note: we will meet in the Swire Seminar Room, University College
The Constitution of Criminal Law: Justifications, Policing and the State's Fiduciary Duties

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.

 

Malcolm Thorburn is Professor of Law at the Queen's University at Kingston, Ontario.

Note: change of weekday; we will meet in the Swire Seminar Room, University College
Rights, Reasons, and Legitimate Authority

My 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.

James Sherman is a doctoral student in Philosophy at the University of Texas.

Note: we will meet in the Swire Seminar Room, University College
The Exception Proves the Rule

Legal 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.

Richard Holton is Professor of Philosophy at MIT, and this term's HLA Fellow at the Oxford CEPL.

Note: we will meet in the Swire Seminar Room, University College
Separation of Church and State, Religious Conviction, and Democratic Politics (outline)

What 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 democracies.

Robert Audi is Professor of Philosophy and David E. Gallo Chair in Ethics at the University of Notre Dame.

Note: we will meet in the Swire Seminar Room, University College
Constitutional rights and personal autonomy

My 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 practice.

Kai Moller is DPhil student at Lincoln College, Oxford.

 

Discussion Panel
Punishing for Bad Luck: Should the Consequences of a Crime Affect the Punishment?

6pm (drinks from 5.30pm)

Lecture Theatre II, Faculty of Law, St Cross Building

 

Andrew Ashworth is Vinerian Professor of English Law and Fellow of All Souls College, Oxford.

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

Jeremy Horder is Professor of Criminal Law and Fellow of Worcester College, Oxford (he is currently on leave and holds the office of Criminal Law Commissioner).

 

RSVP (oxfordjdg@gmail.com) highly appreciated.

Wine and light refreshments will be served.

 

This event is kindly co-sponsored by Oxford University Press.

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 hypothetical illustrations.
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) [2000] 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.

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

What 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 morality.
Modern natural law theories have sometimes answered the legitimacy question by referring to the rule of law as guaranteed by human rights. The constitutional 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.

Giovanni Cogliandro is a doctoral student at the University of Rome Tre, and a Visiting Fellow at the Institute for Advanced Legal Studies, London

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Note: change of weekday
The Moral Division of Labor and the Jus ad Bellum/Jus in Bello Distinction

 

The 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 more right."
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.

Left-Libertarianism, Intergenerational Justice, and Socialism

 

One 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 contemporaries.

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.

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

 

A 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.

 

Danny Priel is Lecturer in Law at the University of Warwick School of Law.

Authority and Authorities

Contemporary 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 law itself.

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.

Leading 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 choice problem.

Bruce Chapman is Professor of Law at the University of Toronto.

You Still Know Nothin’ ’Bout Me: Toward Cross-Cultural Theorizing of Aboriginal Rights

This 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.

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 legislatures.

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.

 

Discussion Panel
The Rule of Law

6pm, Gulbekian Lecture Theatre, Law Faculty, St Cross Building (pre-talk drinks from 5.30pm)

 

Joseph Raz is Research Professor and Fellow of Balliol College, Oxford, and Professor at Columbia University Law School.

Leslie Green is Professor of the Philosophy of Law and Fellow of Balliol College, Oxford.

Nigel Simmonds is Reader in Jurisprudence and Fellow of Corpus Christi College, Cambridge.

 

RSVP (guy.sela@law.ox.ac.uk) highly appreciated.

Wine and light refreshments will be served.

 

This session is part of a project on “Civil Society and the Rule of Law”, which is supported by the Mellon Foundation.

Vagueness and Constitutional Rights

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.

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Special Opening Session

Oxford 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 cake...

Timothy Endicott is Professor of Legal Philosophy and Fellow of Balliol College, Oxford.
John Gardner is Professor of Jurisprudence, and Fellow of Univesity College, Oxford.
Tony Honoré is former Regius Professor of Civil Law, and Fellow of All Souls College, Oxford.

On Being Tolerated

This 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.

Leslie Green is Professor of the Philosophy of Law and Fellow of Balliol College, Oxford.

Note: The talk by Amanda-Perreau-Saussine has been moved to week 7.
The Moral Responsibility of Terrorists

We 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.

 

Guy Sela is DPhl student at Keble College, Oxford.

Jurisdiction 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 Manchester.

What 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 College, Oxford.

Legal Directives in the Realm of Practical Reason: A Challenge to the Pre-Emption Thesis

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 cases.

Noam Gur is DPhil student at St Edmund Hall, Oxford.

Old Questions for New Natural Lawyers

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.

Discussion Panel
Is there a positivist theory of law?

6pm, 90 HS Lecture Room, University College

A panel on the above question, which the panelists have long been disagreeing over.

 

John Finnis is Professor of Law and Legal Philosophy, and Fellow of University College, Oxford.

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

Matthew Kramer is Professor of Legal and Political Philosophy, and Fellow of Churchill College, Cambridge.

 

RSVP (guy.sela@law.ox.ac.uk) highly appreciated.

Wine and light refreshments will be served.

Why I Am Not an Expressivist

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.

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Note: meeting in the Swire/CEPL Seminar room in University College (directions available from the porters)

The Limits of Tolerance: A Substantive-Liberal Perspective

In 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, 16-21, 30-35

Yossi Nehushtan is Stipendiary Lecturer in Law at Balliol College, Oxford, and DPhil student at Worcester College, Oxford.

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 of Auckland.

Legal Principles

What 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.

The Philosophical Significance of Trial Practices

Bob Burns is Professor of Law at Northwestern University, and litigation attorney in the Bluhm Legal Clinic.

Note: The previously announced talk by Prof. Martin Stone has been cancelled.

Practical Reason and Legislation's Authority

The 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 representation.

Claudio 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.

Interpretation, Jurisdiction, and the Authority of Law

Professor 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.

Law and Brownies

As 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 that class.)

Oven-fresh home-made brownies will be served at the beginning of the talk (food for thought).

Maris Köpcke Tinturé is DPhil student at University College, Oxford.

What Went Wrong in the Case of Sally Clark?

Sally 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 practice.

Amit Pundik is DPhil student at Balliol College, Oxford.

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The Right to Judicial Review
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 participation.

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.

Reasons for Prosecutors

What 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.

Note: meeting in the Swire room (Centre for Ethics and Philosophy of Law), University College

A Critical Examination of Dworkin's Theory of Rights
Ronald Dworkin 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.

Global Justice and Norms of Co-operation
Theorists 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.

Against 'Prohibitions'
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).

Understanding 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.

Michael Giudice is Assistant Professor in Philosophy, York University (Canada).

Foundations of Practical Reason Revisited

John Finnis is Professor of Law and Legal Philosophy and Fellow of University College, Oxford.

Just 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.

Fidelity 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 [2006] UKHL 20 and Barlow Clowes v Eurotrust International [2005] 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.

James Lee is Teaching Fellow, School of Law, Reading University.

Note: meeting in the Swire room (Centre for Ethics and Philosophy of Law), University College

Forty Years On
From 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.

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Proportionality and the Structure of Constitutional Rights

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 College, Oxford.

Natural law under other names: de nominibus non est disputandum

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 analytical jurisprudence.

Cristóbal Orrego Sánchez is Profesor de Filosofía Jurídica y Política, Universidad de Los Andes, Chile.

The Entrenchment of Positive Rights and Courts' Remedial Discretion

It 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.

Self Control in the Modern Provocation Defence

Stephen Shute is Professor of Criminal Law and Criminal Justice, University of Birmingham.

Theorizing 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 doctrinal reform?
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 CEPL.

Egalitarianism 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.

Polycentricity 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 College, Oxford.

Empire and the Ends of Human Rights

Costas Douzinas is Professor of Law and Dean of the Faculty of Arts, Birkbeck College, University of London.

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Taking Rights Less Seriously. A Structural Analysis of Judicial Discretion
This article 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 College, Oxford.

Criminal 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.

How to spell 'accommodation'

Timothy Endicott is Fellow and Tutor in Law at Balliol College, Oxford.

Also recommended this week:
Tue, 9 May:    HLA Hart Memorial Lecture: 'The Internal Point of View'
                            Jules L. Coleman (Yale Law School)
                            5pm, Examination Schools
Wed, 10 May: Seminar about the Lecture
                            Jules L. Coleman (Yale Law School)
                            10am-12pm, Goodhart Seminar Room, University College

Whose 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.

Note: The previously announced talk by Prof. Martin Stone has been cancelled.

The Germ of Justice

Leslie Green is Professor of Law and Philosophy at Osgoode Hall Law School, Toronto.

The Virtue of Law-Abidance
The 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 “virtue politics”.
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.

The Cult of Constitutional Rights Scholarship: A Critique of Balancing
and Proportionality

Grégoire Webber is a DPhil student at Balliol College, Oxford.

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.

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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 raised.

Alan Norrie is Edmund Davies Professor of Criminal Law and Justice, King's College, London.

Raz on Detachment and Describability
In 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.

Kevin 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.

Restitution 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 College, Oxford.

Statistical Evidence: An Investigation of Its Nature and Its Usage in the Criminal Context
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 context?
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.

Amit Pundik is a D.Phil. student at Balliol College, Oxford.

Reasons to Justify Rights
This presentation aims to give a general picture of the role of rights in  practical reasoning. I begin by reviewing some of Joseph Raz's central ideas: that rights are intermediate conclusions in practical reasoning; that they are 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 rights.

Juan Cruz Parcero teaches jurisprudence at UNAM, Mexico, and is a Visiting Researcher at Oxford.

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 School.

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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.

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.

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.

Legislative Intent and Group Action
Jeremy Waldron 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 unpersuasive.

Richard Ekins is a D.Phil. student at Balliol College, Oxford.

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.

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

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 required.

John Stanton-Ife teaches Jurisprudence at King's College London.

The Epistemic Conception of Deliberative Democracy Defended
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).

Note: meeting in the Arts Room, Trinity College

Four Tales About Fairness
Everyone 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

Cancelled 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 Aboriginal Rights
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).

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.

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 language rights.

Multiple Principles and the Obligation to Obey the Law
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 Law
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.

Leiter's Naturalized Jurisprudence

Hank Oberdiek is professor of philosophy at Swarthmore College in Pennsylvania.

Martin Stone will discuss two papers:
On the Old Saw, "Every reading of a text is an interpretation": Some Remarks
and
Theory, 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.

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.

General Jurisprudence
This 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.

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 concept.

Alexi Patsaouras is a BPhil student in Magdalen College, Oxford.

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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.

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, Oxford.

Unwritten Constitutionalism
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.

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.

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 Birmingham.

Associative Obligations and the Obligation to Obey the Law
In 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.

The 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.

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Collectivities 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.

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.

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 alternative.'

Amir Fuchs is a doctoral student in Somerville College, Oxford.

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.

Moral Positivism
From 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, Oxford.

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, London.

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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.

Thu, 29 April: Meeting with John Lough from Oxford University Press
Joint event with the IP, human rights and PIL discussion groups.
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.

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.

The 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, Two Responses
Hart Memotial Lecture 2004.This is not a JDG event, but anyone with interest in Jurisprudence is encouraged to attend.

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.

Harm, Offence and Mill's Conception of Liberty

Jorge Menezes Oliveira is a doctoral student in Wolfson College, Oxford.

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 utilitarianism.

James Petts is a BCL student in St. Hugh’s College, Oxford.

Two Objections to Luck Egalitarianism
This 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 the See-Saw
Objection. The concluding section assesses the level of damage on luck egalitarianism inflicted
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.

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.

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Inheriting Responsibilities
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.

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.

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.

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.

Rights to Exit and Rights to Eject
From 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.

Legal Realism and Legal Positivism Reconsidered - Again
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.

Justifying the Right to Self Defence: The Problem of Self Preference

Shlomit Wallerstein is a doctoral student in Balliol College, Oxford.

The Limited Modesty of Subsidiarity
Those interested in the paper can contact Nick Barber.

Nick Barber is a fellow of Trinity College, Oxford.

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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.

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.

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.

The Fallacies of Objections to Selective Conscientious Objection
Legislators 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.

A Specification to the Coherence Theory of Punishment's Justification

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.

Then and Now: The Natural/Positivist Nexus at War - Auden’s “September 1, 1939”
Auden’s 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.

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).