Trinity 2013-2014 Termcard

Are Hard Cases Borderline Cases?
Diana Raffman (University of Toronto)
Thursday, 1 May 5.30pm (preceded by refreshments at 5.15)
Senior Common Room, Law Faculty


The function (if any) of vagueness in legal language is a matter of dispute. For example, some theorists (e.g., Endicott 2011) argue that vagueness serves the adaptive function of allowing courts to leave certain questions open for subsequent determination by individuals and/or bodies with greater relevant expertise. Others (e.g., Sorensen 2001) think that in most cases, vagueness forces judges into decisions made in bad faith, decisions about which they cannot be sincere; hence vagueness has no function in law.

Drawing on a newly developed theory of vagueness (Raffman 2014), I will suggest that vagueness does play a crucial role in the application of legal predicates, though one different from that proposed for example by Endicott. A distinction between so-called hard cases and borderline cases figures importantly in my account.


On Raz On Rights
David Frydrych (University of Oxford)
Thursday, 8 May 5.30pm (preceded by refreshments at 5.15)
Senior Common Room, Law Faculty


The Myth of Balancing: Limits on constitutional rights
Richard Moon (University of Windsor)
Thursday, 15 May (preceded by refreshments at 5.15)
Senior Common Room, Law Faculty

Canada is often cited as one of the principal sources of proportionality analysis --- an approach to the determination of limits on constitutional rights that has been adopted in a number of jurisdictions.

The proportionality/balancing approach has been subject to a variety of criticisms. The two most significant, or at least most familiar, of these, are:

1. The rights or interests the courts are asked to balance or trade-off are incommensurable. Because there is no common metric, the courts must simply choose between two interests or rights claims – a political task;

2. The willingness  to compare and balance competing claims may weaken the protection of fundamental rights – reducing them to the level of ordinary interests or preferences that are subject to the give and take of political judgment.

However, I want to offer a different critique of balancing. My claim is that, despite what they say they are doing, the courts do not (generally) resolve fundamental rights issues through the balancing of distinct but competing interests. 

The two-step structure of Charter adjudication is built on the idea that the enumerated rights are the basic conditions of individual autonomy or liberty that must be protected from the demands of collective welfare or the common good. These rights, though, may sometimes conflict with other rights or valuable interests and so in exceptional situations, they may be subject to limits that protect the rights or interests of other individuals. The right or interest of the individual  (for example, in expression) must be balanced against the distinct but conflicting interests or rights of other  individuals or of the collective (for example, the right to privacy or freedom from  manipulation or from racial hatred and violence). At the first stage of the adjudication the Court determines whether the restricted activity falls within the scope of the right. At the second stage, the Court balances the right against the competing interest to determine whether the restriction should be upheld. In R. v. Oakes case the Supreme Court of Canada sought to establish a rigorous test for the assessment of limits on all Charter rights – a balancing or proportionality test (the Oakes test – a 4 part proportionality test under s.1 of the Charter). This generic approach rests on the idea that the rights protected in the Charter have the same  basic structure – each right  representing a zone of individual liberty that should not be interfered with by the state except in very special circumstances.

But few if any of the Charter’s rights fit this individual liberty model and are better understood as social or relational in character. If we recognize that most Charter rights do not simply protect individual liberty –  freedom from external interference – but instead protect different aspects of human flourishing or dignity within community then two things may follow:

(1) There can be no a single generic test for limits on rights – like the Oakes test that is applied uniformly. If the rights protected by the Charter are diverse  in character,representing different aspects of human flourishing or dignity within community, then the form or character of "limitations" on these rights may differ in significant ways. A"limit" on freedom of expression may be very different from a limit on the right to equality. Or, better, perhaps, the issues and questions that must be addressed in the adjudication of a freedom of expression claim may be different from those that must be addressed  in an equality rights case. And this may account for the rather vague and malleable character of the Oakes test in practice.

(2) The two-steps of Charter adjudication – the determination of the right’s scope and the justification of limits – may often be difficult to separate or the separation may seem quite artificial, because the assessment of the value and the assessment of the harm of a protected activity, such as expression, are really two sides of the same complex issue. When determining the scope (and limits) of a right the courts are required to make a judgement – a single judgment -- about the relative value of a protected activity or status in a particular social/economic context. This is why in so many Charter cases the very same factors are taken into account when the court assesses the value of the right and the right’s harm. It is also why all the significant analysis in constitutional rights cases seems to occur at one stage – either the definition of the right’s scope or the determination of its limits. In freedom of expression cases all of the court’s analysis takes place at the s.1 stage (the limitations stage), while in the case of equality rights claims, all the analysis seems to occur at the s.15 stage with nothing much left for s.1. This is so because the courts are addressing a single complex issue rather than balancing the right against a distinct interest.

I will aim to illustrate the claim that the courts are not generally engaged in the balancing of distinct interests when they assess “limits” on Charter right (but are instead addressing a single complex issue concerning the relative harm/value of a socially embedded right) by looking at some leading constitutional rights cases from Canada, the jurisdiction with which I am most familiar, and of course a jurisdiction that is said to have played a central role in the development of the proportionality/balancing approach to the limitation of rights.

I will focus my comments on freedom of expression - s. 2(b) of the Charter -- since it is often regarded as the paradigmatic liberal right and because many of the Supreme Court of Canada’s leading s. 1 judgments involve limits on freedom of expression. I will begin with the observation that the constitutional right to freedom of expression does not simply protect individual freedom or liberty  from state interference. Rather it protects the individual from state interference with her or his freedom to communicate  with others -- to engage  with others and  participate in community life. This relationship is valuable because individual agency and identity emerge and flourish in the joint activity of creating meaning. However, recognition that individual agency and identity emerge in communi­cative interaction is crucial to understanding not only the value of expression but also its potential for harm.


The Metalinguistic Dimension to the Dispute Over Legal Positivism
David Plunkett,
(Dartmouth College)
Thursday, 22 May 5.30pm (preceded by refreshments at 5.15) 
Senior Common Room, Law Faculty


Naturalism and the Demarcation Problem
Giovanni Battista Ratti (University of Genoa)
Thursday, 29 May 5.30pm (preceded by refreshments at 5.15)
Senior Common Room, Law Faculty

In the first part of the paper, which comprises three sections, I analyse three themes that emerge from Brian Leiter’s “Naturalizing Jurisprudence”. In particular, I consider the following three theses defended in this book: (i) American Legal Realism is a kind of avant la lettre philosophical naturalism applied to the study of legal adjudication; (ii) (American) Legal Realism is not only compatible with, but in fact presupposes, an exclusive version of legal positivism; and (iii) moral objectivism is not compatible with a “realistic” general theory of law (and adjudication).

In the first section, I discuss thesis (i) in light of the argument that the two characteristic features of American Legal Realism – the search for an empirical epistemology and a predictive theory – are derived from philosophical naturalism and pragmatism. In the second section, I discuss thesis (ii) by engaging with two arguments. First, that, as a type of legal positivism, a “realistic” theory offers the best explanation of the cases in which more than one correct answer is available to the court. Second, that by focusing on the causes that determine legal decisions, American Legal Realism shares some methodological theses with “Continental” Legal Realism. In the third section, I discuss thesis (iii) in light of Leiter’s critique of Dworkin’s legal philosophy.

On the basis of my discussion of theses (i), (ii), and (iii), the second part of the paper analyses the difficulties faced by the naturalistic project vis-à-vis the analysis of the problem of demarcating law from morality, as recently presented by Leiter in his “The Demarcation Problem in Jurisprudence: A New Case for Skepticism” (2011).

The purpose of the second part of the paper is to find a possible way out of the stalemate inherent in Leiter’s naturalistic project. I submit that a possible way out consists in distinguishing between the substantive and the epistemic aspect of the problem of the demarcation of law and morality. In so far as the arguments offered in the second part of my paper are not affected by the problems in demarcating science from pseudo-science (as discussed in the first part of the paper), I conclude that the naturalistic project in jurisprudence remains a solid and fruitful one.


Some Positive Remarks about Unconstitutional Constitutional Change
Mikolaj Barczentewicz (University of Oxford)
Thursday, June 5 5.30pm (preceded by refreshments at 5.15)
Seminar Room F, Law Faculty


Is the Obligation to Obey the Law Relational?
Leah Trueblood (University of Oxford)
June 12 5.30pm (preceded by refreshments at 5.15)
Senior Common Room, Law Faculty


A Tale of Two Harts: The Paradox in Essays on Bentham
Shivprasad Swaminathan
(Jindal Global University)
June 19 5.30pm (preceded by refreshments at 5.15) 
Senior Common Room, Law Faculty

This paper hypothesizes that the paradox Hart confesses to in Ch. X of Essays on Bentham entitled ‘Commands and Authoritative Reasons’ was the result of metaethical ambivalence. Hart eclectically yokes together metaethically incompatible elements from two disparate models of ‘normativity of law’ with different sources of normativity: the impinging model based on a cognitivist metaethic and the projectivist model based on a non-cognitivist metaethic. The ‘sources’ of normativity on the two models are different. On the impinging model the source of normativity is a reason-giving objective moral requirement; and on the projectivist model, which eschews the idea of objective moral requirements and along with it, the idea of reason-givingness, the source of normativity is a motivationally affective conative attitude. The metaethical configuration of the rule of recognition in Essays on Bentham—which it will be argued was unlike that of the version of the rule of recognition in The Concept of Law—constrained Hart to postulate a ‘source’ of normativity metaethically congruous with the impinging model. However, the ‘source’ of normativity Hart seemed keen to advance—he makes an ‘attitude’ the source of normativity—was congruous with the projectivist account based on a non-cognitivist metaethic. 

A copy of the paper is available here


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