Michaelmas Term 2005
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Week 1
Thu, 13 Oct
Emergencies and the Rule of (Criminal) Law
François Tanguay-Renaud
D.Phil. student, Balliol College , Oxford
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.
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Week 2
Thu, 20 Oct
Reasons and Reparation [download paper]
Sameer Singh
D.Phil. student, Corpus Christi College , Oxford
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
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Week 3
Thu, 27 Oct
Rights in Deliberation [download paper]
Pavlos Eleftheriadis
Fellow and Tutor in Law, Mansfield College , Oxford
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.
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Week 4
Thu, 3 Nov
Legislative Intent and Group Action [download paper]
Richard Ekins
D.Phil. student, Balliol College , Oxford
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.
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Week 5
Thu, 10 Nov
Simply in VIrtue of Being Human: the Whos and Whys of Human Rights
John Gardner
Professor of Jurisprudence, and Fellow of University College , Oxford
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.
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Week 6
Thu, 17 Nov
Harm and Autonomy
John Stanton-Ife
King's College, London
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.
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Week 7
Thu, 24 Nov
The Epistemic Conception of Deliberative Democracy Defended [download paper]
Josep Lluís Martí Marmol
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.
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Week 8
Thu, 1 Dec
Four Tales About Fairness [download paper]
Douglas MacLean
H.L.A. Hart Visiting Fellow at the Oxford CEPL, and Professor of Philosophy at the University of North Carolina , Chapel Hill
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.
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Week 9
Mon, 5 Dec
Solomon's Judgment, Procedural Rules, and Aboriginal Rights
Dwight Newman
Assistant Professor at the College of Law of the University of Saskatchewan , Saskatoon (Canada
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.)
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