Tuesday 28 September 2010

Trinity Term 2007


Week 1
Thu, 26 Apr

The Limits of Tolerance: A Substantive-Liberal Perspective [download paper]
Yossi Nehushtan
Stipendiary Lecturer in Law, Balliol College, Oxford, and DPhil student, Worcester College, Oxford

In this paper I explore the concept of tolerance and suggest a description of that concept that could be accepted regardless the political theory one supports. Since a neutral perception of the limits of tolerance is impossible, this paper offers a guideline for a substantive-liberal or a perfectionist-liberal approach to it.

The limits of tolerance are described through the principles of reciprocity and proportionality. The former explains why intolerance should not be tolerated whereas the latter prescribes how and to what extent it should not be tolerated. The cumulative effect of these principles is that apart from extremely rare occasions intolerance should not be tolerated at all times.

The paper discusses various conceptual and normative issues concerning tolerance. For the main thesis, or arguments, please read pages 4-13, 16-21, 30-35.


Week 2
Thu, 3 May

How Intentional is Legislative Action? [download paper]
Richard Ekins
DPhil student at Balliol College, Oxford, and Lecturer at the Faculty of Law, University of Auckland

Raz and Gardner argue that legislative action is intentional, but that the legislature acts only on the minimal intention that the statutory text shall be law, rather than on any more specific  intentions. Statutory interpretation is thus a matter of applying conventions rather than searching for particular legislative intentions. I argue that this account is false for it cannot explain rational legislative action. Analysis of legislative authority and language use supports the claim that rational legislative action is action on specific intentions as to the meaning and effect of the statute. I argue further that the legislative process is structured to enable the legislature to form and act on such intentions.


Week 3
Thu, 10 May

Legal Principles
Nicos Stavropoulos
University Lecturer in Legal Theory at the Faculty of Law, Oxford
What does it mean to claim that certain principles ground rights and duties in law? I argue that the principles in question must meet two conditions: they must both justify actual practice and have independent moral appeal. I distinguish the claim that such principles justify the effect of a certain practice on people's rights and duties from the claim that the content of the practice, considered alone, is attractive. I claim that is wrong to say that bad practices are justified by bad principles-falsities do not justify anything. I further argue that principles are determinants of law for reasons of political morality. I briefly review these reasons and trace some of their implications for the relation between law and morality.


Week 4
Thu, 17 May

The Philosophical Significance of Trial Practices
Bob Burns
Professor of Law, Northwestern University, and litigation attorney in the Bluhm Legal Clinic.


Week 5
Wed, 23 May

Practical Reason and Legislation's Authority
Claudio Michelon
University of Edinburgh School of Law, and HLA Hart Visiting Fellow at the Oxford CEPL

The paper is an attempt to provide an argument for the authority of legislation. The argument does not resemble conceptions of legislative authority that are grounded on efficiency (including deliberative efficiency in searching for the moral truth), such as the one that follows from Waldron's (allegedly Aristotelian) "Doctrine of the Wisdom of Multitude". Indeed the first section of the paper attempts to show that those sorts of argument underplay certain features of practical reasoning that, if taken into consideration, would prove the argument for the deliberative efficiency of the multitude not to be able to ground anything like Waldron's DWM. In the second section, legislation's authority is said to spring from the institutional design that embodies the recognition of other members of the community as competent mature practical  reasoners. That sort of recognition is said to be both morally justified and a necessary condition for practical reason (throughout the paper, the working conception of practical reason is largely  inspired by Aristotle). The remaining sections work out some implications of that argument to related issues such as the idea of democratic representation.


Week 6
Thu, 31 May

Interpretation, Jurisdiction, and the Authority of Law [download paper]
Timothy Endicott
Professor of Legal Philosophy and Fellow of Balliol College, Oxford


Week 7
Thu, 7 Jun

Law and Brownies
Maris Köpcke Tinturé
DPhil student, University College, Oxford

As the title suggests, this talk will deal with the logical structure of power-conferring norms. (The talk is based on a draft chapter of my thesis on the concept of legal validity.)

Hart famously distinguished between duty-imposing and power-conferring norms. He made the case for this individuation primarily by stressing the distinct social function of power-conferring norms. They enable individuals to shape their own, or others', legal relations - as opposed to imposing duties on them. But what is their logical structure? Raz undertook to answer this question but was ultimately unsuccessful. However, there is a lot to be learned from his failure.

In particular, it sheds light on the way in which power-conferring norms are like brownie recipes. They both contain an 'instrumental ought'. But then, power-conferring norms are unlike brownie recipes as well. For it is not by virtue of the laws of physics that the act of signing a paper results in a valid will. It will be suggested that power-conferring norms belong to the class of norms which may be called 'count-as norms'. (Most rules governing the use of language belong to that class.)

Oven-fresh home-made brownies will be served at the beginning of the talk (food for thought).


Week 8
Thu, 14 Jun

What Went Wrong in the Case of Sally Clark?
Amit Pundik
DPhil student, Balliol College, Oxford

Sally Clark was convicted in murdering her two baby boys, Christopher and Harry, after Professor Sir Roy Meadow, a senior paediatrician testified that the chance of two cot deaths in one family is 1 per 73 million. Her conviction was upheld by the Court of Appeal, which criticised this statistical evidence, but considered the rest of the case against her as “overwhelming”. However, a few years later, her husband found evidence in the hospital archives indicating that Harry died from natural causes. Sally Clark was set free by the Court of Appeal, having served more than three years in prison.
This paper examines possible explanations for the mistaken conviction and questions whether and how this mistake could have been avoided. It rejects the explanation of the Court of Appeal (on the second appeal) that the problem was the pathologist’s failure to disclose the crucial evidence. More importantly, the paper challenges the public perception about the role of statistical evidence in this case and argues that the importance of the flaws in the statistical calculation was overrated. Based on the theory of contrastive explanation (from the Philosophy of Science), an original explanation for the real source of the mistake is suggested. This explanation highlights some important concerns about the way the presumption of innocence is currently interpreted in practice.