Hilary Term 2009


Week 1
Thu, 22 Jan

The Logical Structure of Legal Disagreements [download paper]
Giovanni Battista Ratti
Lecturer in Legal Philosophy at the Faculty of Law, University of Girona

Abstract: In the paper I carry out an attempt to tackle and reconstruct the problem of legal disagreements, as raised by Dworkin and taken up by Scott Shapiro and Brian Leiter. In so doing, I examine the on-going debate on legal disagreements in light of some ideas, which can be found in Continental analytical jurisprudence. More precisely, I try to defend legal positivism (understood not in Hartian terms, but rather in Kelsenian and/or Alf Ross’s terms) on the basis that a legal realistic view on legal interpretation (such as Kelsen’s or Ross’s) allows a clearer reconstruction of the phenomenon of disagreements in law and a dissolution of Dworkin’s second critique. My point is the following: Dworkin is right in holding that contemporary legal systems seem to be pervaded by disagreement. Nevertheless, there are different kinds of disagreements about law: in particular, one can distinguish between disagreements on legal sources and disagreements on the meaning-content of such sources. Once this distinction is put in place, one can see that disagreements on sources seem to be relatively rare in contemporary legal orders, whereas disagreements on the meaning of sources seem to be rampant.  The point of the paper consists in connecting these two ideas, and holding that legal positivism, in order to satisfactorily respond to Dworkin’s criticisms, only has to stress the phenomenon of agreement on sources, but not necessarily the phenomenon of consensus on their interpretation.


Week 2
Thu, 29 Jan

Universal Jurisdiction Through Dante's Eyes [download paper]
Andrea Dolcetti
M.St. student in Law at St Hilda's College, Oxford.

In this presentation I will discuss whether a universal jurisdiction is justifiable in the name of peace. This problem is relevant to the current state of international relations; it can nonetheless be profitably discussed with special reference to the political work of Dante Alighieri - or so I will argue. While an International Court of Justice has been established, its jurisdiction remains problematic. This reflects the tension between the idea of a universal jurisdiction and the principle of equal state sovereignty. Anyway, the commitment to settling conflicts and restoring justice within the international community by peaceful means, presently stated in the Charter of the United Nations, can be interpreted as the result of centuries-old experiences and the expression of normative theories and utopias about political life. The normative issues posed by the idea of a universal jurisdiction embodied in the political and legal power of a universal Monarch were discussed by Dante on three different levels: philosophical, historical, and theological. Given Dante's key position in the history of universal peace projects, it is likely that a careful analysis of his political ideal will prove useful to the understanding of the current international judiciary situation.


Week 3
Thu, 5 Feb

A Brief Examination of the Demands-of-Conscience Defence
Kimberley Brownlee
Lecturer in Philosophy at the University of Manchester, and HLA Hart Visiting Fellow, Oxford CEPL

In this paper, I examine some issues related to demands of conscience. In particular, I consider the legitimacy of a demands-of-conscience defence for breach of law. I begin by examining the notion of conscience, distinguishing, amongst other things, between negative demands and positive demands of conscience. I then examine critically both Joseph Raz’s qualified rejection of a legal defence for conscientious objection and Jeremy Horder's limited endorsement of a demands-of-conscience defence. Concerning the latter, I question Horder's claim that such a defence could not be extended to acts of suitably constrained civil disobedience.


Week 4
Thu, 12 Feb

The Inevitable Efficiency of Using Racist Statistical Evidence in Court [download paper]
Amit Pundik
DPhil student in Law at Balliol College, Oxford, and Fellow of Hughes Hall, Cambridge

In a hypothetical case, Abraham, a wealthy Jewish businessman, is accused of a tax fraud and he also denies the allegations.  In his trial, the prosecution seeks to use statistical evidence which had been gathered and analysed with the utmost proficiency.  According to these statistics, the probability of a person committing tax fraud is doubled if he is Jewish.

The use of such evidence is obviously objectionable.  The question is why this evidence should be excluded from court.  This paper argues that it is very difficult for efficiency theories of law to provide a good justification excluding this evidence.  In contrast, corrective justice theories (e.g. Weinrib) are better placed to do so.  If successful, this argument identifies an advantage of corrective justice theories over their efficiency competitors.  It also identifies the limitations of the efficiency theories and highlights that they lead to some problematic consequences in evidence law, consequences which have so far been overlooked.


Week 5
Wed, 18 Feb

Brain Images as Legal Evidence
Walter Sinnott-Armstrong
Professor of Philosophy and Hardy Professor of Legal Studies at Dartmouth College

Are brain images probative of legal issues? Are they prejudicial in jury trials? This paper explores these issues, citing some recent empirical research.


Week 6
Wed, 25 Feb
Lecture Theatre II, Law Faculty, St Cross Building

Special Event: Discussion Panel
The Morality of War (vs?) The Laws of War
Allen Buchanan, Jeff McMahan, and Jeremy Waldron

This event was part of a project on "Civil Society and the Rule of Law" supported by the Mellon Foundation.


Week 6
Thu, 26 Feb

Proportionality in Self-Defense and War
Jeff McMahan
Professor of Philosophy at Rutgers University.

It is generally assumed that proportionality is a relatively simple matter of determining whether the bad effects of an act of self-defense or war are excessive in relation to the intended good effects.  It is, however, vastly more complicated than this.  There are many dimensions to proportionality of which most legal theorists and just war theorists are barely aware.  Most people assume, for example, that proportionality in self-defense is concerned with the harm that one inflicts on the attacker, while proportionality in war is concerned with harms inflicted on innocent bystanders.  But there are in fact distinct dimensions to proportionality in both self-defense and war, one concerned with the harm inflicted on the attacker and another concerned with harm inflicted on innocent bystanders.  I will also argue that the good effects that count in the first of these proportionality calculations are more restricted than those that count in the second, that both these proportionality restrictions are sensitive to the agent’s intentions, and that there are deep difficulties in determining the baseline for comparisons in proportionality judgments.  I will consider whether proportionality is concerned with actual consequences or expected consequences, and whether it allows any scope for personally partiality in the evaluation of consequences.  Finally, I will argue that combatants who fight in a war that is unjust because it lacks a just cause cannot in principle satisfy any of the proportionality conditions on the morality of action, so that at present there is a necessary divergence between proportionality in morality and proportionality in the law of war.


Week 7
Mon, 2 Mar
Lecture Theatre II, Law Faculty, St Cross Building

Special Event: Discussion Panel
The Hart-Fuller Debate: 50 Years On
Leslie Green, Nicola Lacey, Ruti Teitel

The debate was based on the speakers' contributions to the then forthcoming book The Hart-Fuller Debate in the Twenty-First Century, edited by Peter Cane (Hart Publishing 2010).

Drafts of the speakers' contributions (not for quotation) can be found here (L Green), here (N Lacey) and here (R Teitel).

This event was kindly sponsored by Hart Publishing. It was also part of a project on "Civil Society and the Rule of Law" supported by the Mellon Foundation.


Week 7
Thu, 5 Mar

Law and Sovereignty [download paper]
Pavlos Eleftheriadis
University Lecturer in Law, and Fellow and Tutor at Mansfield College, Oxford.

When looked at more carefully, the idea of sovereignty is actually very strange. It assumes that a person or body may have all the powers of law-making and none of the disabilities. This idea is actually contrary to the idea of law. The reason is that law is not a command by anyone, a mandate or a threat, but a text or argument that guides. This is now commonplace among theories of law as diverse as Hart's legal positivism and Dworkin's interpretivism. If this is generally held to be true, then it should also be so held that sovereignty and law are actually incompatible and mutually exclusive.


Week 8
Thu, 12 Mar

Raz's Morality of Freedom: Two Conceptions of Authority [download paper]
Margaret Martin
Assistant Professor of Law at the University of Western Ontario

In The Morality of Freedom, Joseph Raz situates his theory of law within a theory of authority. Central to his project is an articulation of the conditions under which a law or set of laws is binding on citizens: while all law claims legitimate authority, not all law actually possesses it. A law, Raz contends, is binding if by acting according to it, we are more likely to comply with right reason; i.e., with reasons (including moral reasons) which independently apply to us.  This is Raz’s “normal justification thesis,” a thesis about authority that seeks to articulate the general conditions that must obtain for a given directive to be morally justified and thus binding. Raz combines this thesis with what he calls the “pre-emption thesis:” the directives of an authority do not give us reasons which we may add to one side or the other of our own judgment of the balance of reasons, but rather they pre-empt our judgment and replace it with a new reason for acting. The pre-emption thesis requires a pre-commitment to act according to the norm in question while the normal justification thesis asks us to evaluate the norm in question.  Because Raz argues that only justified norms are binding (and thus pre-emptive), we are continually asked to evaluate the legal norm in question before acting according to it. In short, the normal justification thesis undermines the pre-emptive status of legal norms. I argue that Raz’s attempts to overcome this tension - for instance by appealing to the distinction between jurisdictional mistakes and other mistakes – fail. Consequently, instead of offering us a unified account of legal authority, Raz vacillates unstably between two different conceptions of legal authority. Specifically, I argue that the pre-emption thesis and the normal justification thesis offer us different models of authority which are borne of different methodologies. The pre-emption thesis, which is a re-articulation of Raz’s view that laws give us exclusionary reasons for action, is the product of his positivist descriptive methodology. Conversely, the normal justification thesis is the centerpiece of his “focal concept” of authority.  Raz does not describe the common features shared by all authorities, but rather looks to the ideal of morally justified authority to illuminate the nature of authority in general. I argue that these methodological approaches are fundamentally incompatible, and thus the tension in The Morality of Freedom is ineradicable.

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