Michaelmas 2011 - Trinity 2012

Trinity Term 2012


Do We Need Substantive Law?

Luís Duarte d’Almeida
Churchill College, Cambridge; and University of Girona

In a previous presentation to the JDG I proposed and defended what I called a ‘proof-based’ account of legal exceptions. I then suggested that no ‘substantive’ representation could be given of the conditions of judicial decisions when exceptions happen to be at play. Shortly after that, presenting a later version of the same paper in another context, I received the comment that my proposed account of exceptions committed me to the more wide-ranging view that ‘there is no substantive law’. I didn’t take this as a reductio of my characterisation of exceptions. The underlying suggestion was rather, I think, that the claim that there is no substantive law is too strong a thesis to endorse simply on the basis of a theory of exceptions: I would therefore be well-advised to explore the more general jurisprudential implications of the account, and to work out more precisely what, exactly, its consequences were for the idea of the substantive law. That is the purpose of the present paper. Its topic, though, is not quite whether ‘there is’ substantive law. For reasons that I will try to make clear, I believe that the problem should be formulated instead by asking whether we need substantive law. Hence the question in my title (although my title is itself ambiguous, as I will explain). I will answer negatively.

Week 2

Is Insanity a Demeaning Defense? Examining the Ethics of Offender Pathologization through the Lens of the Classics 
Annalise Acorn
University of Alberta

A copy of the paper is available for download [here].
Further ideas relevant to the talk can be found [here].

Week 3

The Political Approach to Human Rights: Matching Human Rights Morality with Human Rights Mechanisms

Tom Campbell
Charles Sturt University

Sceptical responses to the increasing variety of human rights claims have given rise to less ‘moral’ and more ‘political’ approaches to the philosophy of human rights. These political approaches focus on the current practice of human rights, and reject ‘traditional’ theories which seek to conceptualise human rights without sufficient reference to their current political functions. Drawing on Charles Beitz, and  Joseph Raz, and using as an example the anti-poverty rights associated with global justice, this article endorses focusing on the political functions of human rights practice, including the mechanisms which feature in their institutionalisation.  However, it suggests modifying the political approach to render it more inclusive of  human rights morality and more interactive with respect to the relationship between human rights principles and human rights practice. Thus, assessing the case for adopting freedom from poverty as a human right is seen as requiring examination of the combined implications of the moral considerations relating to the elimination of poverty and the existing and potential practice of human rights institutions, including  the mechanisms at work in the implementation of their policies.

A copy of the paper is available [here].

Week 4

Lex specialis principle and legal reasoning

Silvia Zorzetto
University of Milan

A copy of the paper is available for downloaded [here].

Week 5

Penalty Clauses and the Promise Theory of Contract

Prince Saprai
University College London

The rule against penalty clauses in contract law sits uneasily with the idea that contracts enforce promises. According to the rule, if contracting parties agree a monetary remedy for breach which is substantially in excess of what would be required to compensate the claimant then that remedy is not enforceable. If contracts are promises however we would expect to see these agreed remedies enforced. Promissory theorists have responded to this lack of fit either by rejecting the penalties rule, or by seeking to use the promise principle to accommodate it or finally by claiming that the rule though justifiable sits outside promissory morality and is not a part of the law of contract.
In this paper I argue that all of these responses fail and that the failure is down to the fact that promissory theorists make the mistake of thinking that the only principle that is relevant to promissory morality is the promise principle. In fact, promissory morality is constituted by the interaction of the promise principle with many other principles, including principles related to concerns about proportionality, personal autonomy, the avoidance of economic waste, etc. This richer conception of promissory morality points the way to a plausible conception of the rule that is compatible with the idea that contracts are indeed promises.

Week 6

Opening the Bottlenecks: A New Approach to Anti-Discrimination Law

Joey Fishkin
University of Texas

This paper is an excerpt from my book manuscript, Opening the Bottlenecks: A New Theory of Equal Opportunity.  The book argues that we ought to rethink the concept of equal opportunity and the arguments in law and policy that build on it.  Instead of imagining that the opportunities different people enjoy could ever be made "equal" -- a goal that is not only impossible, but also might be dystopian if achieved -- we ought to focus our attention instead on the reasons we cared about making opportunities equal in the first place, and in particular, on giving people the chance to pursue flourishing lives.  We ought to focus on opening up a broader range of opportunities for different individuals, concentrating especially on those whose opportunities are now the most limited.  We can do this, I argue, by ameliorating what I call "bottlenecks," the narrow places through which one must pass in order to reach many valued life paths.  Bottlenecks are everywhere in the opportunity structure, for example when employers require college degrees, when colleges rely on the same standardized test in making admissions decisions, or when the only way to go to an excellent school is to live in a wealthy neighborhood.  By finding ways to help people through or around such bottlenecks, we open up a greater plurality of paths that lead to flourishing lives.

The argument of this book has implications for many areas of policy and law, but I am particularly interested in the way it can help us understand antidiscrimination law.  The anti-bottleneck idea shows us what disparate impact law is really about and how it differs from affirmative action; it reveals a common principle behind a number of new statutes at the cutting edge of antidiscrimination law that address discrimination on the basis of factors such as credit score, unemployment status, and criminal history.

Week 7

A Panel Discussion of
The Ends of Harm
by Victor Tadros

With :

Victor Tadros, University of Warwick
James Edwards, University of Cambridge
Malcolm Thorburn, Queen's University

     Every modern democratic state imprisons thousands of offenders every year, depriving them of their liberty, causing them a great deal of psychological and sometimes physical harm. Relationships are destroyed, jobs are lost, the risk of the offender being harmed by other offenders is increased and all at great expense to the state.
     How can this brutal and costly enterprise be justified? Traditionally, philosophers answering this question have argued either that the punishment of wrongdoers is a good in itself (retributivism), or that it is a regrettable means to a valuable end, such as the deterrence of future wrongdoing, and thus justifiable on consequentialist grounds. This book offers a critical examination of those theories and advances a new argument for punishment's justification, calling it the 'duty view'. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most important duties that ground the justification of punishment are the duty to recognize that the offender has done wrong and the duty to protect others against wrongdoing. In the light of these duties the state has a permission to punish offenders to ensure that they recognize that what they have done is wrong, but also to protect others from crime.

    In contrast to other justifications of punishment grounded in deterrence, the duty view is developed in the light of a non-consequentialist moral theory: a theory which endorses constraints on the pursuit of the good. It is shown that it is normally wrong to harm a person as a means to pursue a greater good. However, there are exceptions to this principle in cases where the person harmed has an enforceable duty to pursue the good. The implications of this idea are explored both in the context of self-defence, and then in the context of punishment. Through the systematic exploration of the relationship between self-defence and punishment, the book makes significant progress in defending a plausible set of non-consequentialist moral principles that justify the punishment of wrongdoers, and marks a significant contribution to the philosophical literature on punishment.

Week 8

Coercion and Moral Explanation
Arudra Burra

A dominant view of coercion takes it to essentially involve threatening another with an unwelcome consequence if they refuse to comply with what one demands. I argue, on a variety of grounds, that no such “threat-based” account of coercion can explain why coercive acts are wrongful. In fact, I claim that no general theory of coercion can bear this explanatory burden. While coercive acts share a certain structure, at a deeper level the principles governing which coercive acts are wrongful are quite diverse. To discover what they are requires substantive moral reasoning about acceptable ways of getting people to do things in the domain in question (e.g. the domain of property transactions or the domain of sexual relations). So it is a mistake to think that coercive acts are wrongful because coercive; rather the reverse. A similar strategy is used to side-step, or rather to embrace, the long-standing “paradox of blackmail.”

A copy of the paper can be downloaded [here].

Hilary Term 2012

Permissibility, Practical Reason and Pre-emptive Harm
Victor Tadros
Warick University, School of Law

Thurs 26 February 2012 at 5:30pm, Law Faculty SCR 
preceded by drinks at 5:15pm

A copy of the paper is available [here].


Patent Claim Construction in the United States as a Form of Legal Interpretation
Christian Mammen
UC Hastings, College of the Law

Thurs 2 February 2012 at 5:30pm, Law Faculty SCR 
preceded by drinks at 5:15pm

The construction of patent claims is a form of legal interpretation.  This seemingly straightforward observation shines a spotlight on a connection that has long been neglected by both patent lawyers and legal philosophers.  
From the perspective of legal philosophy, and in particular the theory of legal interpretation, patents seem to be off the radar.  They do not  fit neatly within the traditional paradigms of constitutional, statutory and contract interpretation that form the bread and butter of most work in legal interpretation.  
From the perspective of patent lawyers, patent law is also seen as the province of a highly technical subspecialty, accessible mainly by those who also have training in hard sciences. Most patent lawyers simply lack exposure to the jurisprudence of legal interpretation.  Although the issues raised by patent claim construction in the United States—particularly since the 1996 landmark Supreme Court decision in Markman v. Westview Instruments—are closely related to issues of legal interpretation with which theorists have long wrangled, there has been surprisingly little effort to bridge the divide.  Most scholarship on the issue of patent claim construction comes from within the “silo” of patent law, and makes only superficial (if any) reference to the deeper theoretical issues lurking therein.
This paper aims to remedy that deficiency.  It is an important topic for several reasons.  First, it is jurisprudentially interesting, and promises to expand the horizons of traditional jurisprudence concerning interpretation.  Second, a more comprehensive theoretical examination of the issue will improve certainty and predictability within patent law.  Additionally, for practical reasons, trial courts have been limiting the numbers of claim terms they are willing to construe.  A deeper theoretical understanding will aid litigators in selecting which terms require construction, and in determining how those terms should be construed.

A copy of the paper is available [here].


The Steward: Legal Institution and/or
Ethical Metaphor?
Uta Bindreiter
Faculty of Law, University of Lund

Thurs 9 February 2012 at 5:30pm, Law Faculty SCR 
preceded by drinks at 5:15pm

As yet, not sufficient attention seems to have been given to the dimension of weight possessed by principles; and, what is more, to the reasons for variations in this weight. Owing to persistent moral concepts deeply embedded in our cultural heritage, there are principles which obviously defy the dichotomy legal/non-legal. 
    Stewardship, the ultimate expression of the principle of care, is a case in point. Stewardship is a highly complex concept, comprising - to use the proper Roman Law terms – cura as well as fiducia and integritas.  
    Today, the concept of stewardship is experiencing a startling renaissance, being used in various scientific, economic, and not least ecological contexts. Speaking in general terms, stewardship refers to the responsibility to take care of something owned by somebody else. In organizational contexts, stewardship refers to the tasks and responsibilities of the board and managing director. Among the qualities which are held to constitute ‘good’ stewardship can be named balance (between competing goals or priorities), accountability (to the board of directors, the general meeting, or the community at large) and integrity (that is, leading by example and manifesting in the decisions the values embraced by the organization). Curiously, more seems to be expected from the steward of a company than from an ‘ordinary’ managing director; more - but what?
    As a biblical metaphor, the steward is characterized by two mutually informing conceptions, namely, accountability and responsibility. There is a dialectic of stewardship: the steward is accountable (to his householder, or his liege, and in the last analysis to God), but he is also responsible - thinking, planning and acting with wisdom and foresight. The steward’s chief loyalty belongs to his principal (“God’s faithful steward”), but he is also mindful of the interests and well-being of third parties. 
    In strictly legal contexts, the figure of the steward has not fared so well. In Swedish law, for instance, ‘stewardly accountability’ is mentioned, but not defined, in the traveaux préparatoires, or motives, of major Swedish statutes: whilst the terms ‘steward’ and ‘stewardship´ do not figure in the main body of the statute, the managing director as well as the board of directors are declared (e.g. in the preparatory material to the Swedish Companies Act) to possess ‘stewardly accountability’ vis-à-vis the shareholders and third parties. However, the motives do not elucidate the distinction between ‘stewardly’ and ‘ordinary’ accountability.   
     This is where my paper comes in. It is curious, I think, that a former legal institution, without fulfilling any actual legal function (and, consequently, deemed de trop in a modern piece of legislation) is nevertheless considered important enough to be adduced in the motives (which, in Sweden, take an important second place within the hierarchy of legal sources). Is it really the legal conception of stewardship that is allowed, here, to hover in the background – or is it possible that a moral concept, owing to intrinsic and undisputable weight, is credited with the ability to influence the deliberations of the courts in so-called hard cases?
    In this project, I shall endeavour to show that the legislator, when employing a purely moral concept, not necessarily forms a legal conception of it but, rather, lifts it into statutory law with all its appertaining moral properties (and possibly, precisely because of them), and I shall argue that moral concepts may be so deeply anchored in the (legal and moral) culture of specific societies that the intension of these concepts has acquired preponderance over, and indeed outweighs, the specificity of any legal conceptions. 
    It seems to me that the entire potential of the steward is expressed in the very word: Steward.


Incommensurability, Practices and Points of View: Revitalizing H.L.A. Hart's Practice Theory of Rules

Eric J. Miller
University of Saint Louis University Law School

Thurs 16 February 2012 at 5:30pm, Law Faculty SCR 
preceded by drinks at 5:15pm

The standard reading of H.L.A. Hart’s practice theory of rules is that it failed to provide a sufficient normative basis for a theory of law.  That standard reading rests upon a significant misunderstanding: that Hart has an exclusionary reason approach to law.  Instead, Hart understands law to be a social practice, one capable of generating valid norms that not only block the operation of moral norms, but which are incommensurable with them in a wholesale manner I label normative incommensurability.  
Wholesale or normative incommensurability entails that law, as a form of social practice, constitutes a discrete normative system in which the truth-conditions of legal propositions are distinct from the truth-conditions of moral propositions: put differently, normative terms such as right, duty, obligation, permission, and so on, have a different meaning in law as in morality, because made true by different facts.  
The upshot is that Hart takes a distinctively strong view of judicial power: judges can expressly reject morality in the course of their decision-making.  The power possessed judicial authority rests on no more, but no less, than a set of social conventions, and judges get the power to decide cases based on those conventions alone.  The practice of law enables the judge to change and determine the scope of these conventions, as well as to impose them on others.  And the judge may use the practice of law to pursue her own agendas: her underlying moral, political, or personal motivations are irrelevant to the validity of law or of her individual decisions from the legal point of view.

A copy of the paper is available [here].


The Procedural Democratic Legitimacy of Constitutional Courts
Ross Carrick
University of Oxford

Thurs 1 March 2012 at 5:30pm, Law Faculty SCR 
preceded by drinks at 5:15pm

    This research focuses on the democratic role of courts, and presents an original conceptual framework for an examination thereof. The core thesis of this paper is to provide a new answer to the question – how can courts (in particular constitutional courts) be democratically legitimate? – by considering how a constitutional court can be procedurally democratically legitimate. There are two dimensions of procedural democratic legitimacy: intrinsic and instrumental. The intrinsic is a measure of the democratic credentials of the constitutional court as a discrete decision-making authority, whereas the instrumental is concerned with the ways in which the constitutional court contributes to the democratic functioning of the polity. Finally, the conceptual framework is put to the test by examining the constitutional court of the democratically complex and contested EU polity: the Court of Justice of the European Union.

A copy of the paper is available [here].


Is No One Responsible for Global Environmental Tragedy?
Climate Change as a Challenge to Our Ethical Concepts

Stephen Gardiner
Department  of Philosophy, University of Washington

Thurs 8 March 2012 at 5:30pm, Law Faculty SCR 
preceded by drinks at 5:15pm

A copy of the paper is available [here].

Michaelmas Term 2011

Assertions de sententia pendente
Andrej Kristan
Faculty of Law, University of Genoa

Thurs 13 October 2011 Massey Room,  Balliol College 5:15 pm

Imagine that you have in your possession a notebook, for instance, the property of which is challenged in court. Now consider your attorney saying
(1)    “The courts will decide in your favour.”
This is an assertion de sententia pendente. In other words: its truth-value or correctness depends on some future judicial decision.
Now suppose that you got the notebook from your uncle. And that we have a full and undisputed account of the facts; no problem of evidence, but only those of the choice of the normative premises, their interpretations and, in this respect, qualification of the facts. Before the final court decision is made one cannot tell for sure whether, legally speaking, you actually owe the instrument or not. Some say it for epistemic reasons, others make a stronger metaphysical claim. In any case, this is a commonly accepted view in legal practice (even if we disregard the possibility of error judgement and assume—as I will do throughout this study—that judges decide cases non-arbitrarily, that is, according to the law in force). The question is: can your attorney's assertion of (1) be true?
This question is not easy to answer for there are good (linguistic and jurisprudential) reasons to argue both in the affirmative and in the negative. I will discuss these reasons and I will show how to approach the dilemma.

       A copy of the paper is available for [download here]

JDG Special Panel

The status of the human embryo in UK law and public policy: Gradualist language but instrumental use
David Albert Jones
Director, The Anscombe Bioethics Centre, Oxford

Thurs 20 October 2011 Senior Common Room, Law Faculty St.Cross Building 
5.00 pm (preceded by drinks at 4.45)

With respondents:

Robert P. George
McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideal and Institutions, Princeton University

Imogen Goold
Lecturer, Faculty of law, University of Oxford

A copy of the paper can be downloaded [here]

The strength of moral duties in a partial compliance world

Eduardo Rivera-Lopez
Hart Visiting Fellow, Faculty of Law, Universidad Torcuato di Tella

Thurs 27th October 2011 Massey Room, Balliol College 5.30 pm
(preceded by drinks at 5.15)


Are Legal Rules Content–Independent Reasons?
Noam Gur
Shaw Foundation Fellow in Law, Lincoln College, University of Oxford

Thurs 3 November 2011 Massey Room, Balliol College 5.30pm
(preceded by drinks at 5.15)

I argue that the answer to the above question turns on three distinctions which make it clear that legal rules are content-independent reasons in some senses, but not in others. The first distinction is between two senses of content-independence, which I refer to as weak and strong content-independence. I argue that, while legal rules do give rise to content-independent reasons in the weak sense, whether they can be said to generate content-independent reasons in the strong sense depends on two further distinctions: first, a distinction between evaluative and descriptive statements about reasons; second, a distinction between reasons for action and reasons for adopting certain attitudes. Strong content-independence, I argue, is a sound notion only insofar as it figures in descriptive reason-statements (as opposed to evaluative reason-statements) with regard to actions (as opposed to attitudes). Finally, I uncover an underlying explanation that links the different senses in which legal rules are content-independent reasons, and accounts for the differences between them.

A copy of the paper can be downloaded [here].


Electing Prosecutors: An Exploration of the Issues
Richard L. Lippke
Visiting Fellow at the Oxford Centre for Criminology
Senior Scholar, Dept of Criminal Justice, Indiana University

Thurs 10 November 2011 Massey Room, Balliol College 5.30 pm
(preceded by drinks at 5.15)

Chief prosecutors in most local legal jurisdictions in the United States periodically stand for election. Concerns have been expressed about this practice—in particular that it fuels the U. S. tendency toward over-criminalization and harsh punishment. After detailing the various tasks prosecutors in the U. S. perform, I raise the question whether the democratic electorate is in a position to monitor and evaluate the quality of prosecutorial execution of these tasks. Further, there is a principled argument to the effect that prosecutors should not be elected. They are (or should be) individuals with specialized knowledge of and commitments to procedural justice. As such, they are more appropriately situated in professional bureaucracies where their performance can be monitored and evaluated by other experts. After exploring various difficulties with this “expertise account” of prosecutors, I raise the question whether other aspects of the criminal justice system should also be seen as more appropriately under the control of experts. The remainder of the paper explores the tension between expertise and democratic participation in the criminal justice system.

A copy of the paper can be downloaded [here].

A Theory of Redressive Justice
Andrew Gold
Hart Visiting Fellow, Faculty of Law, University of Oxford
Professor of Law, DePaul College of Law, Chicago

Thurs 17 November 2011 Massey Room, Balliol College 5.30pm
(preceded by drinks at 5.15)

This Essay proposes a new category of justice between individuals. This category – redressive justice – governs the enforcement of rights by a wronged party against the party who committed the wrong. More precisely, it governs the undoing of a transaction between two parties, either by a right holder, or by a party acting on a right holder’s behalf. Redressive justice is importantly distinct from leading conceptions of corrective, retributive, preventive, and distributive justice. And, as the Essay indicates, redressive justice can also provide insights for explanatory theories of private law.

A copy of the paper can be viewed [here].

Relative Authority 
Nicole Roughan
University of Cambridge

Thurs 24 November 2011 Massey Room, Balliol College 5.30pm
(preceded by drinks at 5.15)

A copy of the paper can be found [here].

Coordination, Authority and the Law's Moral Claim
Maris Kopcke Tinture
Fellow in Law,Worcester College, University of Oxford

Thurs 1 Dec 2011 Massey Room, Balliol College 5.30 pm
(preceded by drinks at 5.15)

A copy of the paper can be downloaded [here] . 

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