Trinity Term 2009


Week 0
Thu, 23 Apr

Outsourcing Violence? [download paper]
Alon Harel
Professor of Law, Hebrew University in Jerusalem

"And let these usurpers consider that they, much more than I, deserve that ignominy with which I am myself visited. For it is not I who kill the criminals who die beneath my blows; it is Justice that sacrifices them, it is Justice that makes me the avenger of society. Should not this appellation rather honour than abase me...Will philosophy not succeed in making my profession a glorious one" (Complaints of the Public Executioner against Those Who Have Exercised His Profession without having Served Out their Apprenticeship from Arthur Isak Applbaum, Ethics for Adversaries: The Morality of Roles in Public and Professional Life 15 (1999))

This paper develops a theory of "inherently governmental powers." Inherently governmental powers are the powers designed to execute or implement fundamental societal decisions, e.g., the decision to criminalize certain behaviour, the decision to inflict a certain sanction or to the decision to initiate a war or to end a war. While most theorists agree that the fundamental societal decisions of the type described above ought only to be made by the state, there are many theorists who believe that the power to execute or implement these decisions can be transferred to private entities. Thus, for instance, while only the state can criminalize behaviour, private prisons can execute the punishment; while only the state can initiate a war, private entities can fight it etc. This paper disputes this claim. By transferring powers of execution or implementation of fundamental societal decisions to private entities,the state severs the link between its fundamental societal decisions and the private actions designed to execute these decisions. Private entities which imprison people or soldiers who are hired to fight a war ought to be regarded not merely as executing or implementing public decisions. Instead, they ought to be regarded as private entities whose own private judgements concerning the appropriateness of the sanctions they inflict or the justifiability of the war they fight are prerequisite for the performance of their jobs. The contribution to the genesis of the action of the private entity made by the court's decision to inflict a sanction or the state's decision to go to war is, so to speak, superseded by the individuals' own judgements.


Week 1
Thu, 30 Apr

Duties and Powers
Gregory Klass
Associate Professor, Georgetown University

I plan to talk about some ideas that I am in the early stages of developing which relate to the distinction between power-conferring and duty-imposing rules. The ideas originated in a recent article of mine on contract theory, Three Pictures of Contract: Duty, Power, and Compound Rule. I’ve sent along a précis of that piece, which you might read [download].

The first is methodological: The concepts of power-conferring and duty-imposing rules are best defined functionally, with reference to the purposes of laws of each type. Individual laws, however, do not always wear their functions on their sleeves. Once we have the concepts of duty-imposing and power-conferring rules, there remains a further question: How do we tell whether a given law is power-conferring or duty-imposing? I suggest we do so by adopting a design stance towards the law: treating it as a tool, and abducing its intended purpose.
(The full paper is available on SSRN.) In the talk, I’ll defend approximately four theses.

The second and third theses concern what criteria we can use to identify laws as power-conferring. Here I limit my discussion to power-conferring rules of the legislative type.

One sure mark of a power-conferring function can be found in laws that condition legal change on acts that ensure that it is the actor’s purpose to effect just that change. Such laws include conditions of validity that sort for a legal purpose. One example can be found in laws that utilize required legal formalities. Such laws require the performance of an act that has no meaning or normative significance other than its legal effect. By conditioning legal change on the actor’s compliance with a legal formality, the law can ensure that it is among her purposes to effect such change. There are, however, other mechanisms that power-conferring laws use to ensure the actor’s legal purpose. These include requiring a speech act, conventional or not, with the right directive or commissive meaning – an act that can be translated in a sentence of the form to “I hereby…” – and requiring an express statement of intent. Laws that include such conditions of validity serve a power-conferring function.

The third claim is that, while conditions of validity that sort for legal purpose are sufficient to identify a law as power conferring, they are not necessary for identifying a law as such. In other words, there are power-conferring laws that do not include mechanisms that sort for the right legal purpose. I argue that these are laws that function at one and the same time both to confer powers and to impose duties, and I suggest reserving the term “compound laws” to describe them. The basic identifying feature of a compound law is that it is structured in a way that anticipates and enables its purposive use without conditioning legal change on having such a purpose. Three Pictures of Contract argue that contract law is best viewed as a compound law of this sort.

Lastly, I want to suggest some other examples of compound laws. Marriage is another legislative-type compound law. Most U.S. states recognize informal marriages, in which the parties never undertake a ceremonial or other legally significant act. Many people, however, do marry in part because they want the change in legal status, and the law provides them formal means of doing so with greater certainty. This suggests that the reasons the law recognizes marriage involve both duty-imposing and power-conferring considerations. Guido Calabresi has recently suggested another possible example, one involving not the power to legislate but the power to prosecute. His claim is that writ of Trespass on the Case was originally solely a power-conferring law, in which the victim acted as a sort of private attorney general. The victim, according to this story, was granted the power to bring the writ solely for the purpose of deterring the relevant forms of wrongdoing. Because damages were paid to the victim, however, there emerged a sense of entitlement to them. Thus what was originally a power-conferring rule gave rise to a right to compensation, and therefore to the injurer’s second-order duty to compensate. Calabresi’s claim is that the law today plays both a power-conferring function, granting injured parties the power to prosecute certain wrongs, and a duty-imposing function, requiring injurers to compensate for harms caused.


Week 2
Thu, 7 May

Democracy and Judicial Review: Are They Really Incompatible? [download paper]
Annabelle Lever
Fellow in Philosophy, LSE

This article shows that judicial review has a democratic justification even though judges may be no better at protecting rights than legislatures. That justification is procedural, not consequentialist.  The point of judicial review, I argue, is to symbolize and give expression to the authority of citizens over their governors, not to reflect the wisdom, trustworthiness or competence of judges and legislators.

Above a threshold level of competence – which may be impossible to determine a-priori – the legitimacy of judicial review does not turn on the special wisdom, virtue or personal qualities of judges.  Instead, it reflects the importance that democracies properly attach to the ordinary virtues and competences of individuals.  Hence, this article takes issue with the defence of judicial review in Eisgruber and Brettschneider, as well as with the critiques of judicial review found in Waldron and Bellamy.

PS - While parts of this paper have been presented before, most of it - and, especially the most contentious bits - are new, and have not been presented anywhere else. I would really appreciate advice on the implications of these arguments (if they are right).


Week 3
Thu, 14 May

Power Rules [download paper]
Samuel Bray
Associate-in-Law, Columbia Law School

This Essay analyzes a way that law can protect a vulnerable person from a powerful one. Law's usual method is to penalize the powerful person if she harms the vulnerable person. But sometimes law turns its focus from regulating the infliction of harm to regulating the accumulation of power to inflict harm. Legal rules that reflect this shift in focus can be called "power rules," because they expressly restructure underlying relations of power and vulnerability. Power rules are attractive because they allow legal regulation of situations in which rules directly regulating harm ("harm rules") are not possible; in other situations, power rules can complement harm rules and improve their effectiveness. But power rules have drawbacks, too: they tend toward overbreadth, they encourage more use of expressive lawmaking, and they increase prosecutorial supremacy. The concept of power rules helps explain patterns in the use of legal rules, at least in the legal system of the United States, and it illuminates the trade-offs involved when lawmakers choose between different methods of protecting vulnerable persons.


Week 4
Wed, 20 May
Rules of the Game:
How Law Illuminates Sports; How Sports Illuminate Law
Mitch Berman
Professor of Law, University of Texas

As formal rule-governed practices, organized sports and municipal legal systems often pursue similar goals and confront many of the same challenges. For example, each domain must decide: to what extent to guide conduct by formal as opposed to informal norms, and, if the former, by rules or by standards; when to delegate discretion to the adjudicators (judges, juries, referees), and how best to constrain it; how, if at all, to provide for appellate review; how to conceptualize, deter, and sanction “cheating”; how to identify and rectify gaps between “the law in the books” and “the law in action”; how to respond to problems of epistemic uncertainty; and much else besides.  The ambition of this project—which might be understood as straddling a line between jurisprudence and comparative law—is not merely to identify similarities, but to draw forth lessons from one domain (including from a single sport or a particular legal department) that allow us to better understand a rule or practice in the other, or that offer a sturdy basis for criticizing, and thus reforming, what had previously been accepted.

I do not intend to develop or defend any particular thesis at the workshop.  Instead, I hope to enlist participants’ help in exploring a small handful of puzzles that I will briefly introduce.  Additionally, I will ask participants to educate me about any rules or incidents of sports with which you are likely to be far more familiar than am I (including without limitation cricket, football, rugby, and golf) that you believe might repay jurisprudential attention.


Week 4
Thu, 21 May
Session co-organized with the Private Law Discussion Group
Lecture Room I, Law Faculty (St Cross Building) (lunchtime seminar)

Contrastive Causation in the Law
Jonathan Schaffer
Professor of Philosophy, Australian National University

I will argue for a contrastive view of causation, with special reference to the role of causation in the law. On the contrastive view, causation is a four-place relation (c rather than c* causes e rather than e*), with reference to specific contrasts (c* and e*) for the cause and the effect. Instead of considering whether the effect would have occurred if the cause had not occurred, the contrastive view instructs us to consider whether the specific effectual alternative would have occurred if the specific causal alternative had occurred. I will argue that this provides a more discriminating test for causation in the law, in two main ways.First, instead of considering the general supposition of the breach not occurring (which, on the standard semantics for counterfactuals, could involve other unlawful conduct instead), we consider the specific alternative of lawful conduct occurring. Second, instead of considering whether the actual injury at issue would not have occurred (which, on the standard semantics for counterfactuals, could obtain if some other worse injury would have occurred instead), we consider the specific alternative of a lesser injury occurring. The specification of lawful conduct as the contrast to the cause is essential to ensuring that the right counterfactual alternative gets assessed, and the consideration of the less injurious outcome as the contrast to the effect is essential to determining the damages that may be recovered.

Week 4
Thu, 21 May
Lecture Theatre II, Law Faculty, St Cross Building

Special Event: Discussion Panel
Causation and Responsibility
A discussion panel with Michael Moore, John Gardner, Jonathan Schaffer, and Jane Stapleton, based on Michael Moore's recent book (OUP 2009)
This event was co-sponsored by Oxford University Press.


Week 5
Thu, 28 May

Agreement as Joint Promise [download paper]
Hanoch Sheinman
Assistant Professor of Philosophy, Rice University

I propose a largely individualistic general account of agreements according to which an agreement is a joint action, namely an action the parties perform together as one.  The action agreement parties jointly perform is promise.  Specifically, each party to an agreement promises the other to do her part of the agreement, neither more nor less.  Two promises add up to a joint promise (agreement) just when they interdepend in the right way.  On my proposal, the interdependence of agreement promises is largely causal-motivational.  Specifically, each party’s promise causally depends on that party’s earlier belief that (she promises later to do her part of the agreement if an only if the other party promises later to do his), and each party is aware of this causal dependence.


Week 6
Thu, 4 Jun
[cancelled due to illness]

A Corrective Justice Argument for Intellectual Property Rights in Traditional Knowledge [download paper]
Stephen Munzer
Professor of Law, UCLA School of Law

Traditional knowledge (TK) is understanding or skill, which is typically possessed by indigenous peoples and whose existence in some form usually predates colonial contact, that relates to medicinal remedies, plant and animal products, technologies, and cultural expressions.  The term “cultural expressions” includes religious rituals, songs, dances, myths, the use of sacred objects, and folklore generally.  At present, it is hotly disputed whether domestic and international law do, or should, protect TK.  There are four main classes of arguments for intellectual property (IP) rights in TK: property arguments, human rights arguments, arguments of distributive justice, and arguments of corrective justice.  Here I am concerned only with the last of these, which subdivides into arguments of compensatory justice (roughly associated with damages at law) and restorative justice (roughly associated with equitable relief, especially injunctions and restitution).  Such remedies are, in the context of litigation, usually issued by courts.  In contrast, reparations can be a matter of both compensatory and restorative justice to rectify past wrongs and are usually provided by treaty or the legislative or executive branches of governments.

This paper contends that corrective justice arguments for IP rights in TK are sometimes sound.  They are sound if (1) wrongs have been committed, (2) the wrongdoers are identifiable as a group or as individual members of a group or both, (3) the wrongs unjustifiably caused harm to an indigenous people or some of its members or both, (4) the indigenous people is identifiable either as a group or as individual members of the group who were harmed or both, (5) the wrongdoers have a moral duty to correct their wrongs and the harm caused, and (6) recognizing IP rights in TK would be an effective and reasonably efficient means of compensating or restoring justice to the indigenous people.

When such arguments are unsound, they are defective for various reasons. These reasons include a failure of any of the six conditions just enumerated.  Reasons having to do with condition (6) include excessive variation in the value of IP rights in TK, excessive variation in their content, available remedies providing only “untargeted” payments or reparations to “pools” of indigenous groups, and difficulties stemming from transgenerational harms and the non-identity problem.  A quite different reason is that indigenous peoples may need or want other remedies (e.g. land, health care, education, access to material resources) more than they need or want IP rights in TK.


Week 7
Thu, 11 Jun

Legal Sex
Luís Duarte d’Almeida
PRS student, University College, Oxford


Week 8
Wed, 17 Jun

Moral Luck and Liability Lotteries [download paper]
Guy Sela
D.Phil. student in Law, Keble College, Oxford

Those who believe (with the majority of moral philosophers) that luck cannot affect one’s moral standing (i.e. how culpable, blameworthy, at fault etc. one is) and also believe (with many deontologists) that the reason that wrongdoers ought to compensate their victims is that they are culpable for this harm, face the following problem. For every wrongdoer who causes compensable harm we can imagine a hypothetical wrongdoer who ends up not causing that harm due to factors beyond his control (or in other words luck) but who is similar to the actual wrongdoer in every respect that is under their control. Since the factors beyond his control cannot affect their fault, how can they play a part in whatever justifies imposing a duty to compensate on actual wrongdoers but not on counterfactual wrongdoers who luckily end up not causing harm?

In this paper I will examine one solution to this problem. This is a solution offered by Jeremy Waldron that builds on a similar argument made in the context of punishment by David Lewis. In the first section I will explain the solutions and how they aim to justify different punishment for successful and unsuccessful criminal attempts and tort liability, respectively. In the second section I will argue that the arguments’ way of justifying differential treatment of criminals and tortfeasors cuts under the main ideas that seem to underlie these institutions and that, at any rate, they only work if we presuppose some political order that validates these institutions and renders them justifiable. The arguments will thus not work in the absence of such order, in a state of nature. Finally, I will argue in the third section that even if these problems could somehow be overcome, the account of Lewis and Waldron ultimately fails to solve the main problem that it set out to solve, that of moral luck.


Week 9
Wed, 24 Jun
Lecture Theatre II, Law Faculty, St Cross Building

Special Event: Discussion Panel
Interpretation: Pluralism and Innovation
A panel with Joseph Raz, Timothy Endicott, Roger Scruton, and Nicos Stavropoulos, focusing on Joseph Raz's recent book (OUP 2009).
This event was co-sponsored by Oxford University Press.


Week 9
Thu, 25 Jun

Doing Another's Bidding
Matthew Hanser
Professor of Philosophy, University of California, Santa Barbara, and HLA Hart Fellow Visiting at the Oxford CEPL

When an agent obeys an order or accedes to a request there is a sense in which he subordinates his will to that of another.  What exactly is involved in such subordination of the will?  How should we evaluate acts of doing what another tells or asks you to do?


Week 10
Thu, 2 Jul

Fear of Crime and Punishment
Annalise Acorn
Professor of Law, University of Alberta, and HLA Hart Visiting Fellow at the Oxford CEPL

In this paper I analyze the emotion of fear in its relation to crime and the criminal law. I consider whether the criminal law aspires to instill fear of punishment in the citizenry and I draw on Aristotle’s discussion of fear in The Rhetoric to examine some of the reasons why the law’s threat of punishment so often fails to inspire fear in the law-breaker. I argue that if Aristotle is right about the conditions under which we feel fear, the threat of surveillance is perhaps more apt to inspire fear than is the threat of punishment, howsoever severe. I also draw on Dostoyevsky’s novel Crime and Punishment as well as Thucydides’ History of the Peloponnesian War in trying to uncover some insights about the role of fear in its relation to punishment and obedience.


Week 11
Thu, 9 Jul

You'd better be committed: Legal norms and normativity [download paper]
Sylvie Delacroix
Lecturer in Law, University College London

There are many ways in which one may come to be committed to something. Commitment can be the result of an act of will; it can also be the culmination of some underlying disposition / sensibility. Part of the challenge in articulating our commitment to morality consists in understanding the interaction between its passive (we are all committed to morality just in virtue of being human) and its active (if it is to engage our responsibility, there has to be room for choice) dimensions.

In this paper, I seek to understand the role that this notion of commitment has to play in our understanding of both moral and legal normativity, as well as its link with the wider issue of "response-dependence" (an issue which Gardner's own definition of norm as "a kind of reason inescapably engaging the attention of any rational being without further ado" conveniently sets aside).


Week 12
Thu, 16 Jul

A Solution to the Equality Dilemma:
Second-Order Equality and Levelling Down [download paper]
Re'em Segev
Lecturer in Law, Hebrew University of Jerusalem

The question whether equality is morally significant in itself is perplexing. On the one hand, there is a strong argument in favor of equality (in the strict sense). On the other hand, the standard conception of equality faces a powerful objection since it entails a consideration equality that is good for no one and bad for some (or everyone) – most notably the levelling down objection. Accordingly, the common analysis generates a dilemma: either we abandon the strong intuition in favor of equality or we reject the powerful objection against it. This paper explores another alternative: a unique conception of equality – which is part of a more general conception of fairness concerning the resolution of interpersonal conflicts – which accommodates the strong intuition in favor of equality, while avoiding the powerful objection against (standard) equality.


Week 13
Thu, 23 Jul

"A Drunken Consent Is Still Consent” — Or Is It?
A Critical Analysis of The law on A Drunken Consent To Sex Following Bree [download paper]
Shlomit Wallerstein
University Lecturer in Law and Fellow of St Peter's College, Oxford

Does a person who is voluntarily drunk remain capable of giving valid consent to sex? The Court of Appeal in Bree held that “a drunken consent is still (valid) consent,” though it further recognises that the capacity to consent may evaporate well before a complainant becomes unconscious. This decision is a move in the right direction, yet I argue that it has not gone far enough, and that section 74 of the Sexual Offences Act 2003 which governs these scenarios allows—and even requires—a more drastic interpretation: A drunken consent is not consent when the person is very drunk. Based on a distinction between factual and legal consent, the article starts by setting up the legal framework as set out in s. 74, and developed in Bree and H. It then goes on to criticise the current case-law and its interpretation of s. 74 for not being restrictive enough, by examining two possible theoretical rationales, mentioned in the judgements. The first, which is based on an analogy with the law relating to intoxicated offenders, is criticised on the grounds of differences between consent and intent. The second, which is based on the general argument that this position recognises the positive aspect of sexual autonomy, is criticised for its failure to distinguish between claims of normative facts and claims of public policy and for giving too much weight to the latter considerations. From the discussion an alternative, more restrictive position, emerges in line with s. 74 of the 2003 Act, according to which a drunken consent is not consent. This position can be adopted by judges, through the provision of better guidance to juries, but failing that a reform of the law might be needed.


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