Sunday, 26 September 2010

Michaelmas Term 2009

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Week 1
Wed, 14 Oct

Poetic Justice: Why Sex-Slaves Should Be Allowed to Sue Ignorant Clients in Conversion [download paper]
Tsachi Keren-Paz
City Solicitors Educational Trust Lecturer in Commercial Torts, Keele University

In this article I argue that clients who purchase commercial sex from forced prostitutes should be strictly liable in torts towards the sex-slaves. Such an approach is both normatively defensible and doctrinally feasible. As I have argued elsewhere, fairness and equality demand that clients would compensate sex-slaves even if one refuses to acknowledge that purchasing sex from a prostitute who might be forced is a faulty behaviour. In this article I argue that such strict liability could be grounded in the tort of conversion, and not only (as argued elsewhere) in battery. Since the quintessential experience of sex-slaves is that of being treated as chattels, the appropriate legal response is to allow them to benefit from the strict liability imposed on those interfering with owners’ dominion over their property. Accordingly, sex-slaves should be viewed as both subjects and objects. As subjects they can sue clients for the violation of their sexual autonomy manifested by the fact that they were treated as objects. Such an approach is both advantageous to sex-slaves, in the sense it affords them protection that might not otherwise exist, and fair, since the ultimate response to the objectification of sex-slaves by clients should be to afford the former a proprietary-based claim against the latter. I further explain why such an approach is not problematic on conceptual grounds, anti-commodification sentiments or feminist concerns with the symbolic message of such solution: that the law treats women as property.

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Week 2
Thu, 22 Oct

Untangling Equality-Based Arguments for Indigenous Rights [download paper]
Dwight Newman
Associate Professor of Law, University of Saskatchewan, Canada, and Visiting Scholar at the McGill Faculty of Law, Canada

In this paper, I will try to untangle certain problems present in equality-based arguments for Indigenous rights. Will Kymlicka’s seminal Liberalism, Community, and Culture opened the prospect that Indigenous rights might be defended in terms of traditional liberal egalitarian values, claiming to offer an argument for Indigenous rights based on Ronald Dworkin’s account of equality of resources. Patrick Macklem’s monumental Indigenous Difference and the Constitution of Canada built on this approach to seek to justify the Aboriginal rights provisions of a Western democratic constitution, namely that of Canada, through equality-based arguments. Though laudable in intent, I will argue that these and similar arguments unfortunately elide different conceptions of equality that entail inconsistent normative commitments. Rendering analytically more transparent the equality rights implications of different Indigenous rights offers the prospect of revealing better the underlying choices about values in certain decisions about these rights’ extent. This paper seeks to begin that task.

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Week 3
Wed, 28 Oct

Obligation and Involvement [download paper]
David Owens
Professor of Philosophy, University of Sheffield, and Visiting Fellow of All Souls College

This paper discusses a class of social obligations which I call obligations of involvement. They include obligations of neighbourliness, friendship, hospitality, acquaintanceship etc. I argue that we can't understand such obligations unless we suppose that human beings have irreducibly normative interests, specifically an interest in being able to control when other people count as having wronged them. I reject the idea that obligations of involvement can be understood as arising from the value of benevolence or as a species of promissory obligation, as obligations of reciprocation or as obligations of due care for other people's expectations. Accounts of friendship offered by Raz, Rawls, Scheffler and Scanlon are criticised and contrasted with my own proposal.

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Week 4
Wed, 4 Nov

Nature, Language and the Human Sciences [download paper]
Russell Wilcox
PhD candidate, School of Oriental and African Studies, and Senior Research Fellow, Thomas More Institute, London

Working with an Aristotelian/Thomistic understanding of scientific knowledge acquisition, it is possible to speak in a more than merely metaphorical way of a whole range of distinctively human sciences. These sciences have as their objects the proper understanding of the human action system and its products. Unlike the study of systems in the non-human world, study of the human action system depends upon at least some form of cognitive reflexivity. This reflexivity is necessary to draw out evidence from the external world relating to the minds’ actions and work backwards in order to reach conclusions as to the underlying mechanisms governing human behaviour. It is also to engage in the sort of reconstructive procedure suggested by Jürgen Habermas, but without his commitment to a post-Kantian ontology, as well as to speak of the mechanisms underlying human action as of necessarily generative nature. In particular, this generativity allows for the unity-in-diversity which, it is argued, is fundamental to explaining the operations of the human person as an embodied intellect. Finally, the natural law concerns itself not with performative competence but with the right use of that competence, and observance of the precepts of the natural law is necessary to preserve the integrity of the human action system as a whole. To the extent that they are breached, so the human action system starts to display signs of disintegration that are manifest in the breaking down of its natural balance between unity and diversity.

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Week 5
Wed, 11 Nov

Religion: Its Central Case and Foundational Importance to the Law [download paper]
Rachael Collins
PRS Student in Law, University College, Oxford

This paper argues that like law or game, religion is a concept that requires a more sophisticated definitional approach than a simple, dictionary-like formula of words. Examining the analogical approach taken by the United States Third Circuit Court of Appeals in Malnak v. Yogi (CA3 1978) and Africa v. Commonwealth of Pennsylvania (CA3 1981), and contrasting this with the definitional methods described by HLA Hart, Wittgenstein and Aristotle, an alternative, central case definition of religion is offered. This central case is delineated by reference to the internal viewpoint of the religious citizen and forms the basis of an argument in favour of the constitutional protection of religious freedom.

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Week 6
Wed, 18 Nov

Judicial Restraint in the Pursuit of Justice [download paper]
Aileen Kavanagh
Reader in Law and Fellow of St. Edmund Hall, Oxford

This paper examines the reasons in favour of judicial restraint in human rights adjudication. It seeks to address the worry that a policy of restraint may lead judges to refrain from protecting rights or at least refrain from protecting them to an optimal degree. Beyond this, it considers the way in which the concern to protect the courts’ reputation can give rise to judicial restraint. Finally, it explores the possibility that complete honesty may not be the best judicial policy in relation to their reasons for being restrained.

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Week 7
Wed, 25 Nov

On Defining Kinds of Actions, and Some Problems for the Rational Guidance of Conduct Related to Human Rights and Old and New Crimes [download paper]
Cristóbal Orrego
Professor of Legal and Political Philosophy, Universidad de los Andes, Chile

The quest for definitions of kinds of actions seems a rather abstract piece of philosophical psychology, with almost no direct significance for moral philosophy, or for the theory and practice of that part of the law that is the closest to the requirements of morality, such as criminal law and human rights law. According to some moral theories, moreover, the names of some kinds of actions (names such as 'murder', 'theft', 'torture', and 'lying') do not refer to a specific behavior describable in a way independent of their moral evaluation, since these names signify analytically the immorality or injustice of the behavior. If these theories were taken seriously in legal and political philosophy (as they are by many in moral philosophy), and in the practice of law and politics in a modern state committed to the Rule of Law, the creation and the application of the law would sink in uncertainty and arbitrariness, and only retroactive decisions would establish the true meaning of the law. This means that the inadequate solution of the very abstract problem of defining kinds of actions destroys the guiding capacity of legal rules, and also the deliberative capacity of political discourse.

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Week 8
Wed, 2 Dec

Is Legal Knowledge Practical? [download paper]
Giovanni Tuzet
Assistant Professor of Philosophy of Law, Bocconi University, Milan

Several authors have recently claimed that legal knowledge is eminently practical: one who knows the law knows how to exercise certain intellectual faculties, or how to perform certain activities. I will present some arguments to the effect that legal knowledge is not practical, being rather propositional in nature, even though such activities like interpretation and argumentation are extremely important in the legal domain. I will also consider whether legal knowledge is practical in a different sense, namely, knowledge with a view to decision and action. I will contend that it is not practical in this sense either.

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Week 8
Thu, 3 Dec
Gulbenkian Lecture Theatre, Law Faculty, St Cross Building

Special Event: Discussion Panel on N.E. Simmond’s 2007 book
Law as a Moral Idea
Timothy Endicott, John Finnis, John Gardner, and Nigel Simmonds (Chair: John Tasioulas)

In his book Simmonds pursued a novel and powerful argument about the value of law and the nature of legal theory. This panel discussion brings together the author with three leading legal and political philosophers, who will present and engage critically with the book's main arguments.

Organized by the Faculty of Law

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