Hilary Term 2008


Week 1
Wed, 16 Jan

The Moral Division of Labor and the Jus ad Bellum/Jus in Bello Distinction [download paper]
Yitzhak Benbaji
Assistant Professor of Law and Philosophy, Bar-Ilan University, Israel

The legislation developed after World War II treats the in bello and the ad bellum codes as two entirely independent systems. The former applies to soldiers, the latter to states and statesmen. One of the most striking differences (or apparent incongruities) between the two codes is that in the ad bellum code, a state that initiates an aggressive war is condemned by international law as having committed a crime; it is not, however, the crime of the soldiers who carry out the war. Rather, legally speaking, soldiers' acts of killing within armed conflicts are permissible insofar as they follow the in bello regulations, which are purposely designed to apply to soldiers independently of the cause for which they fight.

Michael Walzer’s interpretation of this tradition is surprising and controversial: soldiers, he claims, are morally equal, whether they carrying out aggression or defending against aggression, and the egalitarian in bellum code is a reflection of this moral fact. He explicitly rejects the claim that the equality of soldiers "is merely conventional" and that the truth about war rights is best expressed in terms of justice: "the more justice the more right."

Some prominent critics (whom I call “purists”) are quick to attack this interpretation: Walzer, they argue, fails to attend to the merely conventional nature of the distinction between jus in bello and jus ad bellum. This failure is significant for various reasons. In particular, Walzer commits himself to the view that the individual acts that constitute prosecution of the unjust war might satisfy the in bello proportionality constraint; that the good effects of such acts might outweigh their bad effects. And this, the critics argue, does not make sense. No individual act, which together with others constitutes an aggressive war, can have good effects that can appropriately be weighed in the proportionality calculation. Jeff McMahan concludes that “it is rather mysterious what traditional just war theorists have been assuming in their supposition that unjust combatants can satisfy the requirement of proportionality in the same way that just combatants can.” Though they subject themselves to the in bello code, unjust combatants do not thereby change the simple fact that they kill innocent people -- that is, they kill soldiers who justifiably defend their homeland. These killings cannot be proportionate if they further an unjust goal.

This paper aims to draw a coherent moral distinction between the in bello and the ad bellum codes that would explain the above incongruity between them.


Week 2
Thu, 24 Jan

Left-Libertarianism, Intergenerational Justice, and Socialism
Nicholas Vrousalis
DPhil student in political philosophy, Lady Margaret Hall, Oxford
One major challenge for egalitarian political philosophers is to devise structures of property rights that guarantee sufficient autonomy, while ensuring equality of condition, properly conceived. Michael Otsuka has recently constructed a complex form of libertarianism that promises to reconcile self-ownership of a person's body and its (physical and mental) powers with intragenerational equality. His account does not, however, provide a reconciliation of self-ownership with intergenerational equality. Indeed, his strategy seems inherently incapable of doing so, given its emphasis on non-forced voluntary transfers of worldly resources between mutually disinterested contemporaries.

This paper offers a way out for the left-libertarian reconciliation strategy, by arguing that the rights of future people to equality of condition can be exercised in the present, albeit obviously not by future people themselves. It thus elicits a notion of trusteeship or guardianship of present people over the interests of future generations, which restores the left-libertarian egalitarian credo in the intergenerational dimension. The paper proceeds to argue that it is i) both possible and plausible to revive the old socialist notion of joint world ownership by all humanity, and that ii) doing so need not imply unfair intrusions into, or interference with, individual liberty or (effective) autonomy.


Week 3
Thu, 31 Jan

The Boundaries of Law and the Scope of Legal Philosophy [download paper]
Danny Priel
Lecturer in Law, University of Warwick School of Law

A prevalent view among legal philosophers is that an important task of jurisprudence is to provide a set of necessary and sufficient conditions for what counts as law. This view rests on an assumption that has been pithily summarized recently by Joseph Raz: “So long as we allow that it is possible for a population not to be governed by law, there must be a difference between legal standards and those which are not legal, not part of the law.” With this assumption in mind legal philosophers have spent considerable intellectual energy on trying to articulate as accurately as possible what it is that distinguishes legal standards (“laws”) from non legal standards (“non laws”).

In this Essay I wish to challenge this approach. My argument will develop in two interrelated stages. After describing in greater detail in Part I the view I set myself against, I will first argue in Parts II and III that the fact that legal philosophy aims to explain a practice sets limits on the scope of what it can explain; more specifically, I will argue that on certain questions the practice may simply be indeterminate, and that many questions about the boundaries of law probably belong to this group. The second argument, developed in Part IV, shows that even if the practice is not indeterminate on some questions, it does not follow that finding an articulate answer to those questions is important for understanding the practice. Part IV also offers some directions towards what I believe are more important issues for jurisprudence to tackle.


Week 4
Thu, 7 Feb

Authority and Authorities [download paper]
Fred Schauer
Frank Stanton Professor of the First Amendment, Kennedy School of Government, Harvard University, and Eastman Visiting Professor 2007-2008 at Oxford

Contemporary jurisprudential discussions properly focus on the nature of authority, and on its relation to law. Few of those discussions, however, connect the philosophical dimensions of the idea of authority with the pervasive use of authorities in common law legal argument, legal reasoning, and legal decision-making. This paper attempts to bridge that gap, and initiate a jurisprudential debate about the kinds of sources that law has typically employed, and is employing now. Moreover, to the extent that law is a source-based practice, changes in the character of legal sources may produce changes in the character of law itself.


Week 5
Thu, 14 Feb

Leading You Down the Choice Path:
Towards an Economics of Rational Persuasion [download paper]
Bruce Chapman
Professor of Law, University of Toronto

In this paper I explore the possible advantages of a form of non-arbitrary path dependence within social choice that I call rational persuasion. Persuasion is characterized here as conversationally leading one’s protagonist down a particular choice path to a particular result. The selected choice path is enticing, or rationally persuasive, because it "makes sense" in a way that alternative choice paths do not. It makes sense because it tends to group, or partition, alternative choices together in a way either that allows us to see or think of the partitioned alternatives as instantiations of some concept or category, or presents us with some issue that we recognize as important in the choice situation. We shall see that not all partitions of the alternatives do this equally well. Nor are they as easy to talk about under the shared concepts that will organize, and be persuasive in, conversation. In this respect rational persuasion is a partition dependent idea.
However, we shall also see that the partitions have to be presented in a certain order, or sequence, if social choices (and the individual preferences that give rise to them) are going to be sensitive to the issues and concepts at stake as well as sensible under them. So, in the final analysis, I will be arguing that rational persuasion must not only be a partition dependent idea, but a path dependent one as well. However, contrary to what Arrow suggests in Social Choice and Individual Values, I argue that path dependent social choice need not be viewed as arbitrary. Indeed, because rational persuasion is a form of social interaction and social choice that is both sensible and sensitive to the issues that divide us, persuasion is an exhibition of our collective rationality. It is a serious mistake, under the idea of a social preference ordering (which precludes path dependent social choice), simply to define it away as a possible approach to the social choice problem.


Week 6
Thu, 21 Feb

You Still Know Nothin’ ’Bout Me:
Toward Cross-Cultural Theorizing of Aboriginal Rights [download paper]
Dwight Newman
Assistant Professor, University of Saskatchewan College of Law, Canada

This paper represents my initial theoretical response to claims for an attentionto 'Aboriginal perspectives' in discussions of Aboriginal rights in certain legal systems (these claims being a subset of broader questions about cross-cultural moral theoretical engagement). After a mention of relevant case law from the Canadian Aboriginal rights context in Part I (which may be omitted by the more purely theoretically-oriented or simply those objecting to North American article lengths), I exposit Charles Taylor's account of 'unforced consensus' on human rights in Part II. I seek to clarify Taylor's claims by drawing on a distinction between 'values-based' and 'concept-based' differences behind differing conclusions on rights. Following on this distinction, I argue that Taylor's account grounds certain methodologies of seeking engagement with thinkers from other cultural communities. In Part III, I reflect on some examples of engagement - or not - on issues related to Aboriginal rights as collective rights and gesture toward some possible changes demanded in modes of cross-cultural theoretical dialogue. Part IV reapplies these conclusions to matters from Part I and, again, might be skipped by readers wishing to focus solely on the theoretical content.


Week 7
Thu, 28 Feb

A Political Philosophy of Human Rights
Tom Campbell
Director of the Centre for Applied Philosophy and Public Ethics (CAPPE), Australian National University, Charles Sturt University and University of Melbourne, Australia

The paper explores what we might expect of a ‘political’ as distinct from a legal philosophy of human rights in the context of the changing role of the UK Parliament’s Joint Committee on Human Rights (JCHR), and the recent White Paper ‘The Governance of Britain’, with a view to considering how far the function of bills of rights can be detached from the mechanism of judicial review of legislation. Taking the approach that the discourse of human rights is primarily a powerful moral discourse, albeit with significant implications for the proper form and content of law, the paper takes off from the now standard assumption that current bills, conventions and charters of rights are best regarded as statements of values rather than ‘rights’ in any usefully distinctive meaning of that term. Consequently, the form of reasoning adopted by courts in the process of utilising such statements of values to interpret ordinary legislation, issue ‘declarations of incompatibility, or invalidate legislation, is more moral and political than legal in nature. In such circumstances courts, within democratic systems, are understandably unadventurous in the exercise of their powers under, for instance, the UK Human Rights Act 1998. At the same time the political salience and broad scope of human rights discourse is diminished by the growing assumption that human rights articulation and implementation is a matter for courts not governments and legislatures.

Recently the JCHR (‘The Committee’s Future Working Practices’ 2006) has said that it intends to undertake human rights scrutiny of parliamentary bills by making its own assessment of ‘incompatibility’ in its own ‘less technical’ voice, in particular when ‘proportionality considerations apply’, rather than seeking to ‘second guess’ what the courts are likely to come up with by way of Declarations of Incompatibility. This coincides neatly with the purported aim of ‘The Governance of Britain’ to give Parliament more power by increasing its capacity to hold the executive to account, for the object is that the JCHR have a greater impact on policy and legislative debates. However, once the JCHR cuts itself adrift from legal advice as how proposed legislation accords with human rights law, what criteria can it draw upon to identify what it calls the ‘major human rights significance’ on the basis of which it intends to make its views known? There is no currently available consensual philosophy of human rights of any precision on which they can draw for this purpose. One rather distant prospect is that the JCHR could interpret its terms of reference in the light of the clearly articulated ‘Bill of Rights and Duties’ that is contemplated in the Government’s White Paper, which, it is intended, will clarify and affirm ‘British values’. This is an optimistic scenario and is in any case obscured by the uncertainty as to whether the Bill of Rights and Duties is to be rendered justiciable.

Perhaps the only concrete conclusion that can be drawn at this stage is that the content of a bill, convention or charter of rights/values/duties, if it is to have any guidance potential, must be affected by the purpose for which that bill is to be used. One particular issue is whether a bill of rights could have a greater, broader and more progressive political impact if its functions did not include its use in judicial review of legislation and did include providing a basis for mechanisms, such as scrutiny committees, that are designed to enhance the power of parliament to influence the conduct of governments. One product of this might be ‘human rights legislation’ of sufficient particularity to meet the norms of formally good positive law and so provide the sort of legal material with which it is proper to entrust to courts for interpretation and adjudication within the parameters of an acceptable model of the rule of law and a proper separation of powers within a democracy.


Week 8
Wed, 5 Mar
Gulbenkian Lecture Theatre, Law Faculty, St Cross Building

Special Event: Discussion Panel
The Rule of Law
Joseph Raz, Leslie Green, and Nigel Simmonds

This session was part of a project on “Civil Society and the Rule of Law”, supported by the Mellon Foundation.


Week 9
Thu, 13 Mar

Vagueness and Constitutional Rights
Paul Yowell
DPhil student, University College, Oxford, and Stipendiary Lecturer in Law at New College, Oxford

Rights in national constitutions and international treaties are commonly formulated in vague, abstract language. In this presentation I explore the nature of this vagueness and argue that some of these rights--particularly those that assert a two-term relationship between an individual and a moral value such as equality or liberty--are so deficient with respect to the Rule of Law virtue of clarity that they amount to marginal cases of law. The judge's task in interpreting such two-term rights is different in kind from ordinary legal interpretation. Most laws assert a three-term relationship between at least two persons and a category of conduct that is either prohibited, actionable, licensed, etc. (depending on the type of law in question). I refer to this three-term relationship as the jural structure of a law. When a term in an ordinary law is vague, the judge nonetheless knows where that term fits in the overall jural structure of the law. Two-term rights, however, have no specified jural structure. As a result judges typically apply such rights by using proportionality or balancing tests to determine whether or not a law violates rights. These tests invite judges to engage in a reasoning process that resembles that of a legislature in formulating legislation and deciding whether to enact it.


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