Sunday 26 September 2010

Trinity Term 2006


Week 1
Thu, 27 Apr

Taking Rights Less Seriously. A Structural Analysis of Judicial Discretion
Matthias Klatt
Junior Research Fellow at New College, Oxford

This article investigates the concept and the argumentation-theoretical construction of judicial discretion. Both Dworkin’s and Hart’s strengths and weaknesses are analysed, and in view of these, it is argued that a full picture of judicial discretion is to be found between the extremes. Thus, a moderate theory of judicial discretion is maintained. The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitution Court.


Week 2
Thu, 4 May

Criminal Responsibility: Municipal and International [download paper]
Antony Duff
Professor of Philosophy at the University of Stirling

In this paper I want to explore some of the implications of two ideas that, I believe, can cast new light on the normative structures and logic of criminal law. The first idea will not play a large role in what follows, but provides a necessary prelude to the paper’s main discussion: it is that we should take more seriously than theorists have often taken the distinction between responsibility and liability, and pay more attention to the idea of responsibility as a matter of answerability. The second idea, which is central to this paper, is that we should also pay more serious attention than theorists have often paid to the relational dimensions of responsibility —in particular to the fact that we are responsible not just for something, but to some person or body.


Week 3
Thu, 11 May

How to spell 'accommodation'
Timothy Endicott
Fellow and Tutor in Law, Balliol College, Oxford


Week 4
Thu, 18 May

Whose Autonomy Matters?
Reconciling the Competing Claims of Privacy and Freedom of Expression
Geoffrey Gomery
BCL student, Lady Margaret Hall, Oxford

Most people agree that privacy is important, but there is no consensus as to why this is so or what we may be protecting when we speak of a right to privacy. One important view is that privacy is important to individual autonomy. I will address what this might mean in the particular context of a shared privacy, that is, the privacy of an intimate relationship. I will argue that, in this context, privacy cannot be defended simply on the basis that it is important that individuals should be able to decide to whom personal information will be released. A more complicated justificatory rationale is required.

This has implications for our understanding of an evolving jurisprudence and the future development of the law.


Week 5
Thu, 25 May

The Germ of Justice [download paper]
Leslie Green
Professor of Law and Philosophy, Osgoode Hall Law School, Toronto


Week 6
Thu, 1 June

The Virtue of Law-Abidance [download paper]
William Edmundson
Professor of Law and Professor of Philosophy, Georgia State University, Atlanta, and HLA Hart Visiting Fellow at the Oxford CEPL

The last half-century has seen a steady loss of confidence in the defensibility of a duty to obey the law–even a qualified, pro tanto duty to obey the laws of a just or nearly just state. Over roughly the same period, there has been increasing interest in virtue ethics as an alternative to the dominant consequentialist and deontological approaches to normative ethics. Curiously, these two tendencies have so far only just barely linked up. Although there has been discussion of the question whether patriotism should be considered a virtue, and abstract discussion about the virtuous person’s relation to authority and justice in general, there has been little virtue-orientated discussion having specific reference to the kinds of difficulties that have motivated the ascendant skepticism about political obligation. This silence has persisted despite repeated calls for renewed work on “virtue politics."

This article proposes and defends a preliminary account of law-abidance (as contrasted to obedience) as a virtue It will argue that a virtue-theoretic account of our relation to the law offers advantages that are not contingent upon the independence or priority of the virtues with respect to consequentialistic and deontological components of a complete moral theory. Chief among these advantages is the promise of an alternative to the deadlocked positions taken by apologists for the duty to obey the law and their philosophical-anarchist critics–positions which have tacitly been assumed to exhaust the viable possibilities.


Week 7
Thu, 8 June

The Cult of Constitutional Rights Scholarship:
A Critique of Balancing and Proportionality
Grégoire Webber
DPhil student, Balliol College, Oxford


Week 8
Thu, 15 June

On H.L.A. Hart's Biography
Nicola Lacey
Professor of Criminal Law at the London School of Economics.