Tuesday, 28 September 2010

Michaelmas Term 2008

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Week 1
Wed, 15 Oct

Partly Laws Common to all Mankind: Natural Law or the Law of Nations
Jeremy Waldron
University Professor, New York University Law School, and 2008-9 Fowler-Hamilton Visiting Fellow at Christ Church, Oxford

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) [download] [download].
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Week 2
Thu, 23 Oct

Dworkin's Challenge [download paper]
Sari Kisilevsky
Postdoctoral Scholar, UCLA Law and Philosophy Program

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.

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Week 3
Thu, 30 Oct

The nature of the legislature [download paper]
Richard Ekins
DPhil student, Balliol College, Oxford

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.

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Week 4
Thu, 6 Nov

How Law Claims, What Law Claims [download paper]
John Gardner
Professor of Jurisprudence and Fellow of University College, Oxford

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.)

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Week 5
Thu, 13 Nov

The ‘multiple groundings’ idea and how it applies to law
Marcin Matczak
Lecturer in Legal Philosophy, University of Warsaw (Poland), and research associate at the Centre for Socio-Legal Studies, Oxford University

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,ince 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.

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Week 6
Thu, 20 Nov

The Moral Distinctiveness of Genocide [download paper]
Steven Lee
Professor of Philosophy, Hobart and William Smith Colleges (Geneva, NY), HLA Hart Visiting Fellow at the Oxford CEPL

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.

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Week 7
Thu, 27 Nov

New Questions for Jurisprudence
Danny Priel
Lecturer in Law, University of Warwick School of Law

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?".
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Week 8
Tue, 2 Dec
Lecture Theatre II, Law Faculty, St Cross Building

Special Event: Discussion panel
Positive Law and Moral Autonomy:
Themes from MacCormick's 'Institutions of Law'
John Finnis, John Gardner, Nicos Stavropoulos, and Jeremy Waldron on Neil MacCormick's Institutions of Law (OUP 2007).

The book Institutions of Law (OUP 2007) is the third book in the quartet 'Law, State, and Practical Reason'. The other books are Questioning Sovereignty (OUP 1999), Rhetoric and the Rule of Law (OUP 2005) and Practical Reason in Law and Morality (forthcoming OUP 2009).

Discussion materials for download:

Short synopsis of the book, by Neil MacCormick
Photos: click here to open a slideshow
This event was kindly co-sponsored by Oxford University Press. It was also part of a project on "Civil Society and the Rule of Law" supported by the Mellon Foundation.

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Week 8
Thu, 4 Dec

The Myth of Majoritarianism [download paper]
Paul Yowell
DPhil student in Law, University College, Oxford

Legal theorists often characterise the legislature as an essentially majoritarian institution. This characterisation plays a prominent role in debates about judicial review of legislation: Ronald Dworkin argues that courts should have power to overturn legislative decisions because majorities cannot be trusted with regard to the rights of minorities, while Jeremy Waldron argues that reducing the power of the majority to make decisions about rights is undemocratic.  The common assumption is that legislative decision-making is a process by which the ‘will of the majority’ is enacted into law.  I argue that this view of the legislature is misleading and question the existence of the ‘majority’ as a determinant group.  As G.E.M. Anscombe has shown, in a series of votes a majority of voters may be in the minority on a majority of issues.  Decisions made by majority vote should not be understood as exercises of the power of the majority; there is generally no majority that subsists through time and holds sway over the legislature.  I also address the claim that legislatures act by aggregating the preferences of individuals into a collective choice.  Both this and the majoritarian view are external, reductive accounts that focus on outside forces and do not reflect the complexity of the reasoning processes of the legislature.  Taking an internal viewpoint, I briefly sketch an alternative account of legislative deliberation as a type of practical reasoning.

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