Trinity Term 2011


Weeks 1 to 4:


Week 1
Wed, 4 May

Why Moral Paradoxes Matter:
“Teflon Immorality” and the Perversity of Life
Saul Smilansky
University of Haifa, Faculty of Humanities, Department of Philosophy

“Teflon immorality” (or TI) is immorality that goes on unchecked, where the wrongdoing is not stopped and the perpetrators remain beyond the reach of sanction, and often may continue in their immoral ways. The idea that the immoral often flourish and that this is morally (and legally) disturbing has been recognized since ancient times, presumably as long as humanity has been reflective. There are, for example, many reactions to this reality already in the bible. The term Teflon immorality seeks to capture the “Teflon” effect involved, the idea that the immorality does not “stick”, so that it can continue and flourish, while the immoral remain unharmed.

Much immorality goes on for practically important but philosophically uninteresting reasons: the criminals have better resources than the authorities, or an unjust aggressor-state has a stronger army than its neighbor whom it invades, or an individual cares more about doing bad things than those around him care about stopping him. We are all familiar with such matters. Sometimes, however, philosophically much more interesting things are going on, and Teflon immorality results from moral paradoxes and indeed moral perversions. This has remained largely unnoticed. While the oddity of this or that example has occasionally been noted, the more general phenomena, the idea that immorality systematically triumphs because of moral paradoxes and perversions, has to the best of my knowledge not been seriously discussed. Building upon some of my previous publications, I will attempt here a broad tentative survey of this mostly uncharted territory. This should help us to deal more effectively with the always-present threat of Teflon immorality, and show the importance of moral paradoxes and related phenomena. Only by paying attention to moral paradoxes, only by philosophically exploring this perverse side of life, can we understand what is really going on, and try to deal with it.


Week 2
Wed, 11 May

Balancing in constitutional rights law
Kai Moller
Lecturer in Human Rights Law, Law Department, London School of Economics and Political Science

In the last decades, a global model of constitutional rights has emerged which is characterised by an extremely broad approach to the scope of prima facie rights combined with proportionality and balancing analysis at the justification stage. But while this model has continuing global success in judicial practice, it is still insufficiently theorised. This paper presents a substantive moral theory of one of its core features, namely the idea of balancing. It demonstrates that ‘balancing’ means different things in different contexts, depending, first, on the nature of the policy as redistributive, providing public goods and services, or regulating harmful or risky behaviour and, second, on the specific relationship which the policy creates between the right-holder and the beneficiary of the policy. It thus explores and lays bare the considerable complexity that hides under the convenient doctrinal label of ‘balancing’ and develops a workable theory of how this balancing ought to be conducted in the resolution of real cases.


Week 3
Wed, 18 May

What is indirect discrimination?
Ben Eidelson
DPhil student in philosophy, Oriel college, Oxford

In 2003, the City of New Haven, Connecticut administered a test to determine who in its Fire Department would be eligible for promotion.  The results revealed a striking racial imbalance: although a significant fraction of the applicants were African-American or Hispanic, few if any of these candidates would be promoted.  City officials concluded that, in light of this distribution, using the test results would constitute indirect discrimination against African-Americans and Hispanics—leaving them little choice but to invalidate the test.  A group of white firefighters who had performed well on the test then sued the City, alleging that by discarding the results, New Haven had engaged in direct racial discrimination against them.  In a landmark 2009 decision, the U.S. Supreme Court sided with the white firefighters by a vote of 5-4.  Whatever the City’s motives, the Court majority concluded, it had discriminated against the plaintiffs on the basis of race.

This case gives dramatic expression to fundamental conceptual questions about discrimination.  When does an effort to avoid indirect discrimination constitute direct discrimination in its own right?  Do unyielding prohibitions on direct and indirect discrimination sometimes place agents in a genuine dilemma?  And what connection, if any, does an effort to avoid indirect discrimination bear to more familiar efforts to promote racial equality through direct positive discrimination? I offer an account of indirect discrimination that speaks to these questions.


Week 4
Wed, 25 May

Raz’s authority-based argument for the sources thesis: a critical analysis
Paul Brady
DPhil student, Balliol College, Oxford

This short paper offers a critique of Joseph Raz’s authority-based argument for what he terms the sources thesis. It is drawn from a section in a draft of Chapter 4 of my DPhil thesis ‘Adjudication and Natural Law’. I have done my best to strip the argument of references to points and conclusions from previous chapters, and it is thus inevitable that certain presuppositions may be relied on in the course of this paper which I do not have space to properly account for here. I will try to note these where they arise and, of course, they can be subjected to critical consideration during the period of questions and discussion.

The paper has three parts. Part I offers a brief word on the theoretical question to which the sources thesis is offered as an answer. Part II presents the sources thesis and considers one of the two main arguments offered for it by Raz. Part III offers a critical analysis of Raz’s second argument for the sources thesis, his argument from the nature of law and, in particular, of law’s claimed authority.


Week 5
Wed, 26 Jan

Recidivism, Retributivism, and the Labor Market
Christopher Lewis

One of the most important factors judges in sentencing guidelines in the U.S and the U.K is the offender's prior criminal record. An offender with prior convictions faces longer (sometimes much longer) prison time for the same offense than a first time offender does. Retributive justifications for this practice argue that offenders with criminal records deserve harsher punishment or are more culpable for their offense. The U.S Federal Sentencing Guidelines Manual, for example, says “A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.”

There are currently more than 16.4 million ex-felons in the U.S. Nearly 2/3 of those recently released will be charged with new crimes, and more than 40% will return to prison within three years. Incarceration is associated with more limited future employment and earning, which are the strongest predictors of future crime. Felons are often excluded from public housing, ineligible for welfare and student loans, and not allowed to drive. They are restricted from jobs as septic tank cleaners, embalmers, billiard room employees, real estate agents, plumbers, eyeglass dispensers, and barbers in many U.S states. In a recent study, Devah Pager found that a prior criminal record reduces the likelihood of a job callback by 50% for whites and 64% for blacks.

In this paper, I will explore whether the labor market stigma of incarceration can be reconciled with retributive justifications for the higher sentences imposed on repeat offenders. I ask whether stigmatization ought to be conceived as part of the punishment, and outline two possible approaches to the question. Diminished job opportunities ought not to be conceived as part of any reasonable kind of retributive punishment, I argue, because, among other reasons, the retributive principle of proportionality cannot be satisfied. If the mark of incarceration is a "side effect" of punishment, on the other hand, I argue, then repeat offenders (at least those who commit "acquisitive" crimes) may deserve less punishment than first time offenders, rather than more.


Week 6
Wed, 8 Jun

A Positivist Route for Explaining How Facts Make Law
David Plunkett
Postdoctoral scholar in Law and Philosophy, University of California, Los Angeles

In “How Facts Make Law” and other recent work, Mark Greenberg has argued that legal positivists cannot explain how non-legal facts (such as social facts) can determine facts about legal content in a particular way, namely in a way that Greenberg calls “rationally determine”. In this paper, I argue that positivists can respond to this challenge by drawing on a) the basic account of concepts and conceptual analysis put forward by Frank Jackson, David Chalmers, and David Braddon-Mitchell in combination with b) the basic account of the concept legal institution (and its conceptual connections to the concept legal norm) that we get from Scott Shapiro’s Planning Theory of Law. In addition to providing a compelling reply to Greenberg’s argument, I argue that this response underscores one of the central problems facing legal antipositivism: namely, its lack of a convincing account of the nature of legal institutions.


Week 7
Wed, 14 Jun
Lecture Theatre II, Law Faculty

Special Event: Discussion Panel
A Special Panel on John Finnis’ Philosophy of Law
on the occasion of the publication of the second edition of Natural Law and Natural Rights

Matthew Kramer (Cambridge) on ‘Positivism and the Separability of Law and Morality’
Hillel Steiner (Manchester) on ‘Value Pluralism and the Nature of Rights’

The two presentations were followed by a response from John Finnis, and by general discussion.

This even was kindly supported by Oxford University Press.


Week 7
Wed, 15 Jun

Risking future generations
Rahul Kumar
Associate Professor, Queen’s University; and HLA Hart Visiting Fellow, Oxford CEPL

Imagine we are faced with a choice between two policies, each of which has implications for the kinds of lives that will be led by those who will live in the further future. One policy creates a serious risk that those lives will be of a significantly lesser quality than if the other policy is chosen. It seems to me that the reason we have not to choose the seriously risky policy is that we owe it to those who will live in the further future not to do so. That is, to choose the risky policy would be to wrong those who will live in the further future.

This suggestion is likely to be thought by many to be philosophically suspect. In this paper, I argue that it is in fact quite plausible. Drawing on Scanlon’s contractualist account of what it is for one person to wrong another, I first offer an account of how a person can be wronged by being risked. I then go on to argue that the fact that who in particular will live in the further future turns on the choice of policy has no relevance for the question of the permissibility imposing a risk of serious burden on those who will live in the further future. We should, I suggest, reason about the permissibility of risking the interests of those who will live in the further future in the same way we reason about the permissibility of imposing a risk of being seriously burdened on strangers who live down the block.


Week 8
Wed, 22 Jun

Puzzling about State excuses as an instance of group excuses
Fran├žois Tanguay-Renaud
Assistant Professor, Osgoode Hall Law School of York University; and HLA Hart Visiting Fellow, Oxford CEPL

Can the state, as opposed to its individual members in their personal capacity, intelligibly and legitimately seek to avoid blame or sanctions by invoking duress, provocation, reasonable mistakes in justification, or other types of excuses? Although a number of theorists have, in the past, discarded in passing the possibility of state excuses, the issue has yet to receive sustained philosophical attention. In this paper, my aim is to map out the topic in a way that will, hopefully, spur a more systematic discussion of its various facets, including the wider question of when the state may legitimately be singled out, legally or morally, to bear adverse normative consequences for wrongdoing. The paper also has significant relevance to the wider question of whether group or corporate excuses may intelligibly and legitimately make excuses.


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