Hilary Term 2007
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Week 0
Thu, 11 Jan
The Right to Judicial Review [download paper]
Alon Harel
Professor of Law, Phillip P. Mizock & Estelle Mizock Chair in Administrative and Criminal Law, Faculty of Law, Hebrew University
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.
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Week 1
Thu, 18 Jan
Reasons for Prosecutors
Michelle M. Dempsey
CUF Lecturer in Law and Fellow of Worcester College , Oxford
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.
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Week 2
Thu, 25 Jan
A Critical Examination of Dworkin's Theory of Rights [download paper]
Paul Yowell
Stipendiary Lecturer in Law at New College , Oxford , and DPhil student at University College , Oxford
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.
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Week 3
Thu, 1 Feb
Global Justice and Norms of Co-operation
Jonathan Wolff
Professor and Head of the Department of Philosophy, University College London
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.
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Week 4
Thu, 8 Feb
Against 'Prohibitions'
Luís Duarte d'Almeida
Faculty of Law, University of Lisbon
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.
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Week 5
Thu, 15 Feb
Understanding the Role of Officials in Legal Positivism's Understanding of Legality and Legal Systems [download paper]
Michael Giudice
Assistant Professor in Philosophy, York University (Canada
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.
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Week 6
Thu, 22 Feb
Foundations of Practical Reason Revisited [download paper]
John Finnis
Professor of Law and Legal Philosophy and Fellow of University College , Oxford
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Week 7
Thu, 1 Mar
Just War Consequence Conditions [download paper]
Thomas Hurka
Professor of Philosophy and Jackman DIstinguished Chair in Philosophical Studies, University of Toronto (Canada ), and HLA Hart Visiting Fellow at the Oxford CEPL.
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Week 8
Thu, 8 Mar
Fidelity in Interpretation:
Lord Hoffmann and The Adventure of the Empty House [download paper]
James Lee
Teaching Fellow, School of Law , Reading University
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.
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Week 9
Thu, 15 Mar
Forty Years On [download paper]
Danny Priel
Fellow of the Yale Center for Law and Philosophy, Yale University
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.
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