Michaelmas Term 2007


Week 1
Thu, 11 Oct
Allington Room, University College

Special Panel: Opening session
Oxford Legal Philosophy — Past, Present, and Future
Timothy Endicott, John Gardner, and Tony Honoré

Video: click here to watch videos of the session


Week 2
Thu, 18 Oct

On Being Tolerated [download paper]
Leslie Green
Professor of the Philosophy of Law and Fellow of Balliol College, Oxford

This paper tries to explain what it is about toleration that often makes it feel uncomfortable to be tolerated. It then explores how a liberal political morality might respond to that discomfort. Rejecting the claims that the tolerated are generally entitled to either acceptance or recognition, it argues that there is a modest role for the neglected virtue of /understanding /as complement to toleration.


Week 3
Thu, 25 Oct

The Moral Responsibility of Terrorists
Guy Sela
DPhil student at Keble College, Oxford

We tend to think that soldiers are not doing wrong by merely fighting an unjust war, as long as they don't violate the humanitarian laws of jus in bello. In the first part of my paper I examine the reasons for excusing soldiers who fight unjustly. I then argue, in the second part, that none of these considerations apply to terrorists or to militia soldiers. Finally, I draw some practical implications of the distinction I made.


Week 4
Thu, 1 Nov

Jurisdiction in the Service Conception of Authority [download paper]
Adam Tucker
Lecturer in Law, Christ Church College, Oxford, and research student in Law, University of Manchester

It is common to encounter the criticism that Joseph Raz’s service conception of authority is flawed because it appears to justify too much. This essay argues that proponents of this brand of criticism have failed to account for the extent to which the service conception accommodates their critique. Two variants of this critical strategy are considered. The first alleges that the service conception fails to conceptualise substantive limits on the legitimate exercise of authority. This variant fails; Raz has elucidated substantive limits on jurisdiction within the service conception of authority, albeit reluctantly and equivocally. The second alleges that the service conception fails to conceptualise procedural limits on the legitimate exercise of authority. This argument succeeds, but it loses its force when it is aimed at the normal justification thesis rather than the quite separate jurisdictional limits of Raz’s theory. Clarifying those jurisdictional aspects of the service conception shows why the first argument fails and exposes the real strength of the second. This suggests a way in which the jurisdictional limits of the service conception should be modified. The modification is warranted because the new, wider principle defines the conditions under which the service authorities are said to provide is indeed a service.

Week 5
Thu, 8 Nov

What is a Legal Right? [download paper]
Pavlos Eleftheriadis
CUF Lecturer in Law and Fellow of Mansfield College, Oxford

General theories of legal rights must make sense of the complex role of legal rights in legal doctrine and legal reasoning. Rights to property and bodily integrity and the liberty of contract, for example, are central parts of various areas of legal doctrine. Whenever specified by appropriate statutes and cases, such rights are general premises in doctrinal argument. They are reasons for winning a case. But rights are also particular specifications of what we may or ought to do here and now. In English law we lose our rights if we fail to claim them within the time limits provided for by the Limitation Act 1980. In such a case the general right and its doctrinal specification are true and they support my position, but its vindication in a court of law against an oppenent is impossible. I have lost my legal right, even though I have a special legal right under a true general legal right. It is evident that the term legal right is here used in three different ways that invite confusion and contradiction: the general statement, the doctrinal specification and the judicial recognition. How do we accommodate these three senses, i.e. that in this case I have a right and that I do not have it? Are all of them true examples of a legal right?

In this paper, a chapter of my forthcoming book 'Legal Rights', I discuss and reject some 'deflationary' accounts of rights: the 'entitlement' view of Calabresi and Melamed, the similar 'nominalist' (my term) view of Coleman and Kraus and the parallel views of Alf Ross and Kelsen (and Kramer). All such theories believe that rights are just collected remedial solutions (rather than general reasons with some practical content). They turn rights into a mystery.


Week 6
Thu, 15 Nov

Legal Directives in the Realm of Practical Reason:
A Challenge to the Pre-Emption Thesis [download paper]
Noam Gur
DPhil student, St Edmund Hall, Oxford

The question of how legal directives bear on our reasons for action constitutes one of the pivotal quandaries with which legal philosophy grapples. The main purpose of this paper is to examine an influential position according to which the fact that an authority requires performance of an action is a reason for its performance that is not to be added to all other reasons relevant when assessing what to do, but rather should exclude some of them—Joseph Raz’s pre-emption thesis. Although at first glance the pre-emption thesis seems appealing, on closer inspection fundamental difficulties are revealed. Focusing on its application in the legal context, I challenge that thesis, noting that an alternative conception—which I term the weight-conception—is not susceptible to the same challenge. There are certain cases in which subjects ought to, and are likely to, disobey a directive for moral reasons. (1) Does the pre-emption thesis purport to apply in these cases? (2) If so, can these cases be reconciled with the thesis by distinguishing the reasons for which subjects disobey from the reasons alleged to be excluded? As to (1): no adequate criterion is able to rule out the possibility that the pre-emption thesis purports to apply in the cases under consideration. As to (2): no adequate criterion is capable of distinguishing reasons for disobedience in these cases from purportedly excluded reasons. Taking up a residual issue—the degree of clarity with which subjects can identify that a directive should be disobeyed in our test cases—I argue that this too is no key to solving the aforementioned difficulties. The cases under discussion turn out to be cases where subjects ought to, and are likely to, act for reasons alleged to be excluded or indistinguishable from allegedly excluded reasons. They are counter-examples to the pre-emption thesis, lending support to the alternative model as well suited to account for these cases.


Week 7
Thu, 22 Nov

Old Questions for New Natural Lawyers
Amanda Perreau-Saussine
University Lecturer, Faculty of Law, Cambridge, and HLA Hart Visiting Fellow at the Oxford CEPL

At the opening Jurisprudence Discussion Group meeting of term, three threats to the philosophy of law were outlined: that jurisprudence becomes its own subject, chasing its own tail, or that it loses sight either of its proper subject, law, or of its need for philosophical rigour. I will suggest ways in which a contemporary natural lawyer might aspire to avoid these dangers, raising some of the classical questions at the heart of early modern theories of natural law.


Week 8
Wed, 28 Nov
90HS Lecture Room, University College

Special Event: Discussion panel
Is there a positivist theory of law?
John Finnis, John Gardner, and Matthew Kramer

Video: click here to watch videos of the session


Week 8
Thu, 29 Nov

Why I Am Not an Expressivist
Thom Brooks
Reader in Political and Legal Philosophy, University of Newcastle

Expressivist theories of punishment have become increasingly popular. These theories claim that the primary justification of punishment is the expression of public condemnation to offenders. Other related versions, such as communicative theories, claim that punishment aims primarily to both express public condemnation and offer an opportunity to offenders to repent. This paper challenges the main tenets of all expressivist theories and argues that they rely on problematic foundations which render them unsafe.


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