Trinity Term 2008


Week 1
Thu, 24 Apr

Limits on Constitutional Rights:
Some Thoughts on the Proportionality Approach [download paper]
Dénise Réaume
Professor of Law at the University of Toronto, and HLA Visiting Hart Fellow at the Oxford CEPL

Proportionality is all the rage in constitutional rights adjudication. The idea that constitutional rights may be capable of limitation or override in accordance with a proportionality test such as that found in section 1 of the Canadian Charter of Rights and Freedoms, and a host of other constitutional instruments, confronts the prospect of conflict between normative considerations in the constitutional arena; proportionality is meant to provide a method for working through such conflicts. The latest battle ground with respect to whether rights are being taken seriously is being fought through the debate about what proportionality means. Some, like Robert Alexy , seem to treat the proportionality approach as the means of sifting through any and all possibly relevant normative considerations or reasons for decision, in order to figure out which, on balance, are the strongest. This will seem alarming to anyone attracted to any variation on the idea that rights have a special role or power in moral or legal reasoning. Thus, the stakes are high.

It is therefore worrying to see that the theoretical grounding of the proportionality principle in Canadian judicial reasoning is remarkably thin. One reason for this may be that the question of what counts as a justification is obscured by debates about the propriety of judicial deference toward the legislature. In this paper, I want to try to separate out the test for justification from the arguments in favour of deference, using the standard steps in the proportionality approach. I will focus on how the deference debate tends to obscure the central justificatory principles at stake, point out some of the dangers arising from the confusion, and set the stage for tackling the normative questions directly. To set up this discussion, I first need to clarify what I take to be the structure of a proportionality analysis, contrasting it with two other models that may be more prevalent in the cases. I hope the analysis will clarify the role that each step in a proportionality analysis plays in justifying government policy.


Week 2
Thu, 1 May

The Constitution of Criminal Law:
Justifications, Policing and the State's Fiduciary Duties [download paper]
Malcolm Thorburn
Professor of Law, Queen's University at Kingston, Ontario

I came to write this paper by considering the criminal law implications of the German constitutional court decision of 15 February 2006. In that case, the court struck down a law empowering the German minister of defense to order the destruction of a hijacked airplane with innocent passengers on board in order to prevent it from being used as a weapon against human targets. In this paper, I consider whether those involved in the destruction of a plane under such circumstances might still be able to claim a justification defense at criminal law.

In the United States, those involved in shooting down the airplane would almost certainly be entitled to a justification defense, but in Germany (and in Canada and in England), it seems that they would not. What explains this divergence in the law between these jurisdictions? I suggest that an important consideration is the different roles that the criminal law is seen to play in the legal orders of the various jurisdictions. In the United States, the criminal law is widely understood to be an instrument of state policy over the citizenry and so Americans tend to assume that the state is free to structure justification defenses in whatever way best promotes its favored policies (or moral theories). In England, Canada and Germany, by contrast, there is a long-standing tradition of viewing the criminal law as a sort of “common law constitution” that structures the proper relations between citizen and state. As a result, English, Canadian and German lawyers insist that any change in the structure of what is and is not permitted subtly shifts the boundaries between state and citizen and is therefore of system-wide significance. Finally, I argue that the model of criminal law as a sort of “common law constitution” is considerably more attractive than its American instrumentalist alternative, for it conceives of criminal law as a form of self-governance rather than managerial control.


Week 3
Wed, 7 May

Rights, Reasons, and Legitimate Authority [download]
James Sherman
Doctoral student in Philosophy, University of Texas

My goal in this paper is to make some progress toward resolving two related debates about the nature of rights.  The first debate, between the instrumental theory and the status theory, concerns the justification of rights.  It focuses on the question: What justifies a right-holder’s possession of her rights? The second debate, between the interest theory and the will theory, concerns the function of rights.  It focuses on the question: How do we determine whether someone possesses a right?

My primary aim is to develop and defend a new instrumental theory.  I argue that rights are ultimately justified by the interests of right-holders.  But I argue that duties—rather than interests—directly justify rights, and that duties are, in turn, directly justified by the interests of those to whom they are owed.  I therefore reverse the priority of justification that rights are commonly thought to have over duties.  This new instrumental theory has the resources to respond to an important problem posed by the status theory: the problem of justifying the enforceability of rights.  My instrumental theory also grounds an argument for a revised version of Joseph Raz’s normal justification thesis.  The revisions to that thesis which I propose resolve some problems in it by revealing the close connection between possessing authority and having certain rights.  I conclude the case for my instrumental theory by arguing that status theories cannot adequately account for imperfect duties, and that they provide an unsatisfactory understanding of the notion of respect for persons.
My secondary aim is to argue that in the debate over the function of rights we should accept an interest theory that derives from my instrumental theory.  There is an affinity between instrumental theories and interest theories. One who believes rights are justified by interests is likely to think that the function of rights is to preserve the interests that justify them.  Similarly, there is an affinity between status theories and will theories.  One who thinks that rights are justified by the rational autonomy of right-holders is likely to think that the function of rights is to restrict the exercise of one person’s autonomy when it infringes on another’s, so that the latter’s autonomy is preserved.  I argue that the superiority of my instrumental theory supports the interest theory.  An interest theory derived from my instrumental theory, moreover, can handle the problem of third-party beneficiaries of contracts, which has long plagued interest theories.  With this problem resolved, one of the only promising routes to progress in the interest-will debate is an argument based on the merits of the underlying justificatory theories.


Week 4
Thu, 15 May

The Exception Proves the Rule [download paper]
Richard Holton
Professor of Philosophy, MIT, and HLA Visiting Fellow at the Oxford CEPL

Legal rules admit of exceptions; indeed, it has been a legal maxim that
one can infer the existence of a rule from exceptions that are made to it. Hart claims that the exceptions do not admit of exhaustive statement (a form of legal particularism) but that nonetheless rules can bind. This paper develops a logical framework which accommodates this position, shows that it is available to a positivist, elucidates the role of rules within it, and concludes by discussing the relevance to issues of judicial discretion.


Week 5
Thu, 22 May

Separation of Church and State, Religious Conviction, and Democratic Politics [download outline]
Robert Audi
Professor of Philosophy and David E. Gallo Chair in Ethics, University of Notre Dame

What principles should govern separation of church and state in a free democracy? Must government in such a society be neutral toward religion and, if so, how should the neutrality in question be understood? Should there be a corresponding separation of the religious and the political in the conduct of citizens? What ethical constraints should guide religious citizens living in a pluralistic democracy in approaching politics, and does that depend substantially on whether they hold public office? Religious citizens naturally want to be guided by their religious ideals in changing their society; but given that they live with others of different religions (or none), should their political conduct be guided only by secular standards? To say yes seems to abridge religious liberty; to say no seems to risk religious conflict or even domination by a majority religious group. This talk will present a partial resolution of this problem centering on a series of principles concerning the justification of coercion in pluralistic democracies.


Week 6
Thu, 29 May

Constitutional rights and personal autonomy [download paper]
Kai Moller
DPhil student, Lincoln College, Oxford

My larger project is to develop a general, reconstructive, and substantive moral theory of constitutional rights: a theory that identifies the moral values underlying constitutional rights provisions and the case law of courts around the world. In an earlier paper, I argued that the point of constitutional rights is to protect personal autonomy. But which conception of autonomy makes most sense of them? I present two candidates. The excluded reasons conception holds that a person is autonomous if his liberty is not interfered with for certain, in particular moralistic or paternalistic, reasons. While this model has intuitive appeal, it cannot explain, however, many of the rights which courts and constitutions have to come to acknowledge: for example, the rights to property, freedom of profession, and data protection. Its rival, the protected interests conception of autonomy, protects a person’s interests in exercising control over specific activities and personal resources; and it attaches weight to these actions and resources according to their importance for the self-conception of the agent. I demonstrate that this conception of autonomy has moral appeal and sits well with constitutional rights practice.


Week 7
Wed, 4 Jun
Lecture Theatre II, Law Faculty, St Cross Building

Special Event: Discussion Panel
Punishing for Bad Luck:
Should the Consequences of a Crime Affect the Punishment?
Andrew Ashworth, John Gardner, Jeremy Horder

Photos: click here to open a slideshow
Video: click here to watch videos of the session

This event was kindly co-sponsored by Oxford University Press.


Week 7
Thu, 5 Jun

The Use of Statistical Evidence against Individual Defendants:
One Hypothetical Example and Three Real Cases
Amit Pundik
DPhil student, Balliol College, Oxford, and Lecturer in Law at Hughes Hall, Cambridge

There are cases in which the use of statistical evidence is unobjectionable and common in practice (most evidently, in the context of DNA evidence). Nevertheless, other cases raise difficult questions about if and how statistical evidence should be used in criminal courts. The purpose of this talk is to explore in which cases the use of statistical evidence is objectionable and why, using both real and hypothetical illustrations.

The talk starts by analysing a variation on Jonathan Cohen’s gatecrasher paradox. In this hypothetical example, an individual is prosecuted for gate-crashing into a football match based solely on the evidence that ninety per cent of the participants did not pay for their tickets. Empirical study has shown that most people would regard this evidence as irrelevant and/or insufficient to convict the individual. According to Wasserman, the evidence is objectionable because it treats the accused as a predetermined mechanism rather than as an autonomous individual who can make up his mind regardless of how other similar people choose to behave.
The paper explores how this account can be applied to three criminal cases in which statistical evidence was used against individual defendants. In the first case, a drug-trafficking case from the USA, the prosecution adduced statistical evidence to prove (for the purpose of sentence enhancement) the amount of drugs carried by the defendant in previous trips, in which he had not been caught (United States v Shonubi 103 F 3d 1085 (2d Cir 1997) [Shonubi-IV]). In the second case, the accused was convicted based on DNA evidence alone, despite the existence of other exonerating evidence (e.g. alibi, the victim did not recognise him as her offender, etc). In the last case, the prosecution’s expert relied on statistical evidence to negate the possibility of natural cause of death (R v Clark (No 1) [2000] EWCA Crim 54). The paper seeks to show that according to Wasserman’s account, the use of statistical evidence is unobjectionable in the second case, but objectionable in the other two cases.


Week 8
Thu, 12 Jun

English Nightmares and European Noble Dreams: Philosophical Ruminations on the Rule of Law/Rechtstaat
Giovanni Cogliandro
Doctoral student, University of Rome Tre, and Visiting Fellow at the Institute for Advanced Legal Studies, London

What is to rule? What is the law? These fundamental problems are often connected with the very notion of the Rule of Law. In this paper I will try to suggest some positive contributions for the debate resulting from a new consideration of the European philosophical tradition.

The concept of the Rule of Law was recently analysed by Kramer, Raz, Marmor, Allan, Dyzenhaus, Dworkin, Tamanaha, Fallon, Waldron and many other authors in the Anglo-American Jurisprudence in the last two decades and continues to undergo further scrutiny. In the European continental sphere today (but also in the work of Bellamy in England), the discussion is more focused on the neutralization of the political sphere implied by the judicial supremacy at the national and international levels: from the supremacy of the lawgiver, now the rule of law seems to have switched to the supremacy of the courts. Herein lies the importance and significance of the debate on Originalism in the USA. Moving from the problematic equivalent definition of Rechtstaat - Etat de Droit - Stato di Diritto, (analysed in depth by Heuschling) in continental Europe, authors like Habermas and Ferrajoli stated that the Rule of Law is to be characterized as the “Democratic Rule of Law” or the “Constitutional Rule of Law”. They move from the theories of Jellinek and Ihering, and their approaches are indebted to the Hegelian Theory of the State. Hegel’s Theory of Law was recently at the core of the theory of constitutional interpretation proposed by Brudner: in this approach
the natural law idea of a hierarchy of laws at different levels of dignity is replaced by a hierarchy of rights (Rechten), and these rights in their different taxonomy are now the backbone of the international jurisprudential debate on the Rule of Law, with the assumption that law is better understood as a functional complement to morality.

Modern natural law theories have sometimes answered the legitimacy question by referring to the rule of law as guaranteed by human rights.
The constitutional rule of law (Fallon) is a dense formal model, whereas the rights conception of Dworkin or the liberal justice theory of Allan are examples of a thick conception of the rule of law. In the last years the Kramer/Simmonds debate posed the question of the internal relation between the rule of law and morality, and the nightmare of a perfect rule of law in a tyranny. As Habermas stated about the other fundamental relation, the internal relation between the rule of law and democracy has been concealed long enough by the competition between legal paradigms that have been dominant up to the present. The polyphony of these conceptual definitions is vital for the possibility to give a philosophical description of the Rule of Law. It can be a starting point for the noble dream of a fair international or European order.


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