Michaelmas Term 2010


Week 1
Wed, 13 Oct

Moral Obstacles: On Killing People as a Side Effect
Gerhard Øverland
Project Leader, CSMN, University of Oslo, and Senior Research Fellow, CAPPE, Charles Sturt University

In one scenario you may need to defend yourself and nine others by killing an unjust aggressor and thereby also unavoidably an innocent non-threatening person standing nearby. In another scenario you may need to grab and kill an innocent person to shield yourself and nine others from the aggressor. While in the first scenario it may seem permissible to defend yourself, in the latter defending yourself seems impermissible. The standard way to justify the difference between such cases is to look at the intentions of the agent and whether or not she uses the non-threatening person as a means to her survival. This approach leads to puzzling situations, and its rationale is quite puzzling as well. Why should what goes on in the mind of the agent matter to whether killing the other person is permissible, and why is it worse to use a person’s death than to disregard it? In this paper I defend the view that there is a morally relevant difference between the two types of killing. However, I argue that it relates to the circumstances the people to be killed find themselves in, and not to what is going on in the agent’s mind or the means that she uses. The crux of the proposal is that when people are in the way of other people’s defensive action their mere presence might give rise to cost that some innocent non-threatening people have to bear. It is therefore fair that these people bear some of the cost and not leave it all to the defending party


Week 2
Wed, 20 Oct

The Resurgence of Character:
Responsibility in the Context of Criminalisation [download paper]
Nicola Lacey
Senior Research Fellow, All Souls College, Oxford

In this paper, I further develop the diagnosis of a revival of character in contemporary criminal law. First, I offer a more differentiated conceptual framework for identifying and analysing the waxing and waning influence of character in criminal law. In doing so I set out, deliberately, from a broad definition of character as a pattern or practice of responsibility-attribution which is premised in whole or in part on an evaluation or estimation of the quality of the defendant’s (manifested or assumed) disposition as distinct from his or her conduct. Second, drawing on this broad model of character, I aim to demonstrate in greater detail the variety of ways in which contemporary criminal law is marked by a resurgence of character, paying particular attention to the ways in which this resurgence both resembles and differs from the reliance on character typical of pre-modern or 18th Century criminal justice, and realises itself with particular force within certain areas of criminalization. The broad model of character serves to illuminate family relationships between a range of ostensibly varied phenomena. In particular, by including within my purview the notions of not only bad character as constitutive of guilt but also bad character as probative of guilt, I am able to explore the ways in which, in the practical context of criminal justice, the recognition of the latter may shade into a practice closer to the former. In other words, I argue that criminal conviction, understood within prevailing conventions of communication, is coming more frequently to imply a judgment of criminal character.
The upshot of this analysis is that the doctrinal arrangements of substantive criminal law, though not without importance, are in themselves rather rarely determinative of whether a character- or a capacity- approach to criminal responsibility prevails. Hence, third, I sketch an extra-doctrinal explanation of why we have seen a resurgence of interest in and reliance on ideas of character responsibility: one which finds the roots of the ideology of responsibility which shapes the criminal law in broad practices of criminalization, themselves influenced by a broader political, economic and social context. Finally, I draw some conclusions from this analysis for methodology in criminal law theory, and in particular for the appropriateness of a framework which locates its interpretation of criminal responsibility primarily within a conceptual analysis of legal doctrine in isolation from an analysis of the context of the criminal process, the rules of criminal procedure, the substantive scope of criminal law, and patterns of criminalization and punishment more generally.


Week 3
Wed, 27 Oct

Kelsen’s Radical Norm-Theoretical Argument
Stanley L. Paulson
Professor of Law and Philosophy, Washington University in St. Louis

From the beginning, students of Hans Kelsen’s legal theory have assumed that he subscribes to a conventional doctrine of legal norms. The conventional view of Kelsen’s theory was set into granite by H.L.A. Hart, who offers a brief statement in The Concept of Law, a statement that has been enormously influential. Kelsen, however, had something else in mind. Already in his first major work, Main Problems in the Theory of Public Law (1911), he gave voice to a programme for what would prove to be a decidedly radical theory of legal norms. No later than the end of the 1930s, the theory culminates in the form of empowerment — and its Hohfeldian permutations — as the fundamental legal modality, with obligation understood as derivative. Kelsen pursues this view up to and including the second edition of the Pure Theory of Law (1960).


Week 4
Wed, 3 Nov

An autonomy-based foundation for the legal protection from discrimination [download paper]
Tarun Khaitan
Penningtons Fellow in Law, Christ Church, Oxford 

Antidiscrimination law has grown to encompass concepts such as indirect discrimination, reasonable accomodation and affirmative action. Its remarkable acceptance across several jurisdictions contrasts sharply with an abiding lack of consensus over its normative underpinnings. In this paper, I will presuppose the existing critiques of equality (and, to some extent, dignity) as inadequate justificatory foundations for antidiscrimination law. I will, instead, explore the extent to which the Razian ideal of personal autonomy can discharge the burden of justification.


Week 5
Wed, 10 Nov

Legal Rules in the Guise of the Good [download paper]
Veronica Rodriguez-Blanco
Senior Lecturer, University of Birmingham

In 1958, G.E.M. Anscombe wrote: “It is not profitable for us at present to do moral philosophy; that should be laid aside at any rate until we have an adequate philosophy of psychology, in which we are conspicuously lacking”.* Paraphrasing Anscombe, it is not profitable for us at present to do legal philosophy until we have an adequate understanding of the relationships between key jurisprudential concepts and philosophy of psychology, including under this rubric philosophy of action. The paper aims to contribute to this task. It scrutinises the relationships between the notions of ‘intentional action’, ‘practical reason’, ‘control guidance’ and ‘legal rule-following actions’ and tries to shed light on the normative and authoritative character of legal rules.

*Anscombe, E., “Modern Moral Philosophy”, reprinted in: Ethics, Religion and Politics: Collected Philosophical Papers of G.M.E. Anscombe (Oxford: Blackwell, 1981), pp. 26-42, at 26


Week 6
Wed, 17 Nov

Is Stephen Darwall right about why moral obligations are second-personal?
Mark Hanin
PhD Student in Law, Clare College, Cambridge

Like most philosophers, Stephen Darwall believes that metaethical truths are not grounded in substantive morality. In response, I contend that Darwall’s second-personal account of moral obligation is a first-order moral thesis, despite appearances (and Darwall’s own protestations) to the contrary. My case is made by showing that Darwall’s theory is incompatible with at least one coherent, though incorrect, moral thesis. My argument lends support to the view that all metaethical theses are substantively moral.


Week 7
Wed, 24 Nov

Applying a gender equality standard to the regulation of prostitution [download paper]
Barbara Havelkova
DPhil Student in Law – Exeter College, Oxford

Most feminist literature is divided on how to approach prostitution (some writers see it as sex work that should be normalized, some as an inherently violent and exploitative practice that should be abolished). Connected to these positions, many normative debates about the response to prostitution concentrate on a legislative overhaul of current systems and either propose legalization (the ‘Dutch model’) or the criminalization of demand (the ‘Swedish model’). Based on the finding that many national responses to prostitution fall in between the two models and the recognition that not all jurisdictions might choose a legislative overhaul in either the Dutch or the Swedish direction, this paper tries to construct a gender equality-based standard that could be used to improve the well-being of prostitutes especially in the regulatory regimes ‘in the middle’. It argues that the treatment of clients and prostitutes needs to be compared, and that any regime in which the treatment is asymmetric to the detriment of the prostitute is indirectly discriminatory on the basis of sex. It is argued that while the client and the prostitute are sufficiently similar, in being parties to the same transaction, in order for a requirement of formal equality to apply (i.e. they should be at least treated equally – symmetrically), they are also sufficiently different, in terms of social meaning, risk of harm, and de facto inequality, to justify an asymmetric treatment benefiting the prostitute.


Week 7
Thu 25 Nov
Lecture Theatre II, Law Faculty, St Cross Building

Special Event: Discussion Panel
The Wrong, The Bad, and the Wayward: Liberalism's Mala in Se [download paper]
Alan Brudner (speaker), with responses from John Gardner (Oxford) and Victor Tadros (Warwick)

Week 8
Wed, 1 Dec

More Information, Less Knowledge: Epistemic Contextualism and Evidentiary Exclusion [download paper]
Kenneth Ehrenberg
Assistant Professor of Philosophy, University of Buffalo, and H.L.A. Hart Visiting Fellow, Oxford CEPL

At least since Bentham there has been a strong and vocal critique of exclusionary rules in evidence law. This critique holds that all relevant evidence should be allowed to be considered by the trier of fact. Many replies to this critique admit its central thrust, claiming instead that exclusions are needed only for public policy reasons or to combat inevitable prejudices. The critique has had sufficient sway that judges routinely cast aside many exclusionary rules and principles when deciding bench trials. I argue that contextualist epistemology provides a justification for exclusionary rules against Benthamite antinomianism in that the law has an interest in resisting shifts of context away from a range anchored by the standard of proof. Much otherwise relevant evidence can shift the standards for knowledge attributions (by triers of fact to themselves or to witnesses) away from that anchor, and hence rules excluding it are justified.


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