Hilary Term 2011

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Week 1

Wed, 19 Jan

Sobering truths: On law and oppression [download paper]

Claire Grant

Professor of Public Law and Jurisprudence, School of Law, University of Leicester

Oppression is the subordination of one group by another. It may be deliberate, but it may also be the unintended and systematic outcome of social arrangements. It may be widely recognised for what it is or it may go unrecognised, even by the oppressed themselves. Given what oppression is surely law is altogether different? Perhaps the law is just that kind of thing to stand against oppression, to furnish a bulwark against it. Alas things are not so simple. Hart sounds a 'sobering truth' about the connection of law with oppression. Law, he (1997: 201) says, may be used 'to subdue and maintain, in a position of permanent inferiority, a subject group...' This view seems dispiriting, after all Hart writes of the helplessness of the oppressed as victims of the system. What then of law's prospects as an instrument of resistance to oppression? Only when we have an idea of what 'oppression' means can we tackle the question of what connections there may be between law and oppression. Accordingly in what follows I first consider what oppression is. I then clarify Hart's argument on law and oppression and I raise some questions regarding practical attitudes toward law under oppression. Thinking about those practical attitudes brings the role of law in resistance to oppression into view.

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Week 2

Wed, 26 Jan

Do soldiers' lives matter? A view from proportionality [download paper]

Ruvi Ziegler

DPhil student, Lincoln College, Oxford

A military operation is about to take place during an ongoing armed conflict; it can be carried out either by aerial bombardment, which is expected to cause c1 enemy civilian deaths, or by using ground troops, which is expected to cause c2 enemy civilian deaths (c2<c1) as well as s deaths among the attacker’s soldiers. Does the principle of proportionality in International Humanitarian Law (IHL) impose a duty on an attacker to expose its soldiers to life-threatening risks in order to minimize or avert risks of collateral damage to enemy civilians? If such a duty exists, what is its justificatory basis, and which considerations determine its scope? In other words, the queries are whether soldiers’ lives matter, and, if they do, which justifications may determine their value.

The paper presents an analytic framework, under the current IHL legal structure, following a proportionality analysis. The proposed framework identifies five main positions for addressing the above queries. The five positions are arranged along two “axes”: the value “axis”, which identifies the value assigned to the lives of the attacker’s soldiers in relation to enemy civilian lives; and the justification “axis”, which outlines the justificatory basis for assigning certain values to soldiers’ and civilians’ lives: intrinsic, instrumental or a combination thereof.

The paper critically assesses these positions, and favours a position which attributes a value to soldiers’ lives, premised on a justificatory basis which marries intrinsic justifications with concrete instrumental considerations, while avoiding the indeterminacy entailed by expansive instrumental approaches.

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Week 2

Thu 27 Jan

Lecture Room, Philosophy Faculty

Special Event: Discussion Panel

The Torture Debate: Does the law, and should morality, ever permit torture?

Uwe Steinhoff (Hong Kong), David Rodin (Oxford), and Jeremy Waldron (Oxford)

Torture has been the subject of intense debate in recent years in political, legal and philosophical circles around the world. In this discussion panel, three leading philosophers discuss some of the questions which feature in, and lie behind, these debates. Is torture, as Jeremy Waldron recently claimed in Torture, Terror, and Trade-Offs, a moral abomination: something which is, morally speaking, out of the question in all circumstances? Should torture become, or remain, a legal abomination: something which is, as Waldron puts it, utterly forbidden by law? Should torturers always face legal sanctions for violating the prohibition on torture (assuming there is such a prohibition to violate), or can the circumstances sometimes be such that a torturer ought to be excused? Though some have claimed that even discussing such questions is a danger to be avoided, we warmly invite you to join our panellists’ exploration of this terrain.

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Week 3

Wed, 2 Fev

Judges as Tribunes: Judicial review as a democratic institution [download paper]

Patrick O’Brien

DPhil student, St John’s College, Oxford

Recent works by Jeremy Waldron and Richard Bellamy (amongst others) emphasise the counter-majoritarian features of judicial review, criticising the institution as undemocratic because it overbears the will of the people. However, this type of argument does not survive close scrutiny. The system of representative democracy allows for ‘rule by the people’ in only a limited sense: a negative, ‘checking’ power over the actions of representatives. It permits only limited participation by citizens and does not give citizens rule in a voluntaristic sense at all: it does not give them any power to have their preferences reflected in the decisions of government. Because of this, representative democracy does not lead to the expression of a ‘popular will’ and so judicial review cannot be said to overbear this. Judicial review is indeed defensible as a democratic institution because it offers individuals the opportunity to challenge political power, thus vindicating the right to political equality that is at the core of democracy. In this sense, judges engaged in judicial review can be said to be exercising a function similar to that of the Tribunes of the ancient Roman republic.

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Week 4

Wed 9 Fev

Lecture Theatre II, Law Faculty

Special Event: Discussion Panel

Resituating Fuller

Speaker: Kristen Rundle (LSE)

Respondents: Nicola LAcey (Oxford), Pavlos Eleftheriadis (Oxford)

Lon L. Fuller’s account of legality is widely accepted as the classic twentieth century statement of the principles of the rule of law. Yet his own argument that a necessary connection between law and morality manifests in the form of law is not generally accepted, and his legal theory continues to occupy a marginal place in the field of legal philosophy.

In her forthcoming book, Forms Liberate: Reclaiming the jurisprudence of Lon L. Fuller, Kristen Rundle makes a case for the inner coherence of Fuller’s jurisprudence by illuminating how his insistence on the connection between law and morality finds its foundation in the claim that the form of law, in its connection to the agency of the legal subject, introduces meaningful limits to lawgiving power. Having reclaimed this reading of Fuller from his published writings as well as from archival material, the book's final chapter (the paper under discussion) turns to ask how that reading might be situated within the landscape of contemporary legal philosophy, referring primarily to the jurisprudence of Joseph Raz and Ronald Dworkin.

Two draft Chapters of Forms Liberate are available for download: Chapter 6, on which this special panel was focused, and (for the purpose of outlining the project) the introductory Chapter 1.

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Week 5

Wed, 16 Fev

Harmless wrongdoing? The tort of wrongful life

Sandy Steel (Lecturer in Law, King’s College London)

Will Crouch (DPhil student, St Anne’s College, Oxford)

In this paper, we consider whether a claimant should succeed in tort law for what is known as a "wrongful life" claim. In such a claim, a severely disabled claimant, C, who could not have existed other than in a severely disabled state, asserts that the defendant caused C to exist and that this existence constitutes a legally recognisable damage to C. Courts have largely rejected claims of this type, claiming that C has not been harmed, and therefore cannot be the victim of a tort. They have given two independent reasons to justify this claim. First, they have claimed that the assertion that an individual is worse off existing than not existing is unintelligible: bringing someone into existence therefore neither harms nor benefits them. Second, they have claimed that, though the comparison is intelligible, existing is always better than not existing: bringing someone into existence is, therefore, always a benefit. We argue that neither of these reasons is a good one, and argue that at least some wrongful life claims should be successful in tort law.

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Week 6

Wed, 23 Fev

Human rights and moral consensus [download paper]

Adam Etinson

DPhil student, New College, Oxford

This paper examines the popular but poorly developed idea that human rights are rights that, in some important sense, sit at the focus of international agreement. In particular, the paper examines two specific versions of this idea, either of which might be thought to constitute an "agreement theory" of human rights: (i) that human rights just are objects of international agreement and (ii) that human rights are grounded in such objects. After providing an overview of the conceptual variations on these claims, I argue that the case for affirming either of them is weak. The idea of moral consensus is a poor guide to understanding either the nature or grounds of human rights. This remains true even if we consult the primary motivations behind "agreement theory," which are, (a) to remain theoretically faithful to the modern practice of human rights, (b) to theoretically capture the distinctive importance of human rights, and (c) to counter worries about the ethnocentrism or parochialism of human rights.

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Week 7

Wed, 2 Mar

The regulation of assisted death [download paper]

L. Wayne Sumner

University Professor Emeritus, Department of Philosophy, University of Toronto; and H.L.A. Hart Visiting Fellow, Oxford CEPL

The question whether to legalize some form of assisted death — either physician-assisted suicide or euthanasia — is currently on the agenda in a number of jurisdictions. This paper joins that debate by outlining a Model Policy for the legalization and regulation of these end-of-life measures. A constructive case is made for this policy, based on the civic virtues of compassion and respect, and the policy is then defended against the objections standardly raised against it, especially those that invoke the spectre of abuse or a slippery slope.

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Week 8

Wed, 9 Mar

Special obligations: The case of Citizenship

Christopher Hinchcliffe

DPhil student, Balliol College, Oxford

While we are commonly thought to have certain general obligations, owed to all people on account of e.g. their being rational agents, it is also commonly believed that we have certain special obligations to specific people or groups on account of our relationship to them. Among e.g. friendship and family, many have counted citizenship as such a relationship, arguing that we owe special consideration to the needs of our fellow citizens. States devote the vast majority of their resources to promoting the interests of their own members rather than those of other states and, it is usually thought, rightly so. In this paper I discuss several serious difficulties with the idea that citizenship includes any special obligations owed to fellow citizens qua fellow citizens. Instead, I argue that the nature of citizenship as a legal status characterised by the legal power to participate in and influence the politics of a state does give rise to some moral constraints in the exercise of that power. Any partiality we do in fact show to the interests of the members of our own state can in part be justified by a principle of responsibility in exercising the powers of citizenship.

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