Oxford said essays 2011

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Publications

This Article considers the relation between theories of justice, such as John Rawls's theory, and theories of socioeconomic rights. In different ways, these two kinds of theories address much of the same subject matter. But they are quite strikingly different in format and texture. Theories of socioeconomic rights defend particular line-item requirements: a right to this or that good or opportunity, such as housing, health care, education, and social security.

Theories of justice tend to involve a more integrated normative account of a society's basic structure, though they differ considerably among themselves in their structure. So how exactly should we think about their relation? The basic claim of this Article is that we should strive to bring these two into closer relation with one another because it is only in the context of a theory of justice that we can properly assess the competition that arises between claims of socioeconomic right and other claims on public and private resources.

The author is particular on the relation between law and state and its implication on the international law in sovereigns and jurisprudence. The rule of law is sometimes associated with the precision and determinacy of legal rules, and the predictability of the environment that they provide. But it is important also to think about the various ways in which law helps to make us more thoughtful and reflective, governing us through standards and principles rather than through the robotic precision of rules.

Whether in private law with standards of reasonable care , or in human rights law with norms prohibiting inhuman and degrading treatment , law sometimes invites its subjects to make thoughtful judgments about their behavior or about the situations that they face, structuring and channeling those judgments in various ways. The paper focuses on three ways in which law itself sponsors thoughtfulness and argumentation: 1 first, in its use of standards as well as rule ; 2 secondly in the way legal procedures structure and facilitate argumentation; 3 in the way precedents provide shared premises for argument.

It would be a pity if we were to lose sight of these functions of law; and equally it would be a pity to distinguish too sharply between these key features of law and the aide of the rule of law. This paper reflects in general terms on the circumstances in which law's facilitation of thoughtfulness is appropriate, and on the dangers of losing sight of this aspect of the rule of law.

The article presents the author's views on laws prohibiting group defamation which is regarded as hate speech. He argues that several law professors including Ronald Dworkin believe prohibiting hate speech might bring loss to the democratic legitimacy of other laws. He states several aspects of hate speech, regulations controlling hate speeches for the protection of each member of the society, and criticisms of his favoring the laws and legislation against the group defamation.

The article discusses Ronald Dworkin's lifeboat examples on his argument in the fairness of majority-decision voting in his book "Justice for Hedgehogs. The other version shows the unfair inclusion of personal attachments and antagonisms in the selection process. The article presents a lecture by Jeremy Waldron delivered at the Natural Law Lecture, in which he discusses positive law and its importance to natural lawyers as well as the view of Thomas Aquinas about the Latin word determinatio that means concretization or positivization within the principles of natural law.


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General jurisprudence purports to consider law in general. But to break out of the arid abstractions of analytic legal philosophy, it may be worth also giving some jurisprudential consideration to the distinctive features of law in the context of a particular kind of political system. This paper considers the jurisprudence of law in a modern democracy. It explores a suggestion made by Ronald Dworkin and others that legal positivism might be a theory particularly apt for a democracy. And it explores the meaning and significance for democratic political theory of ideas like the generality of law, the separation of law and morality, the sources thesis, and law's public orientation.

At the very end, the paper also considers Jean-Jacques Rousseau's view that the word. Both community and property are, each in its own way, exclusionary concepts.

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Property — certainly private property — is defined in large part by a right of exclusion. Enthusiasm for these exclusions is made to seem legitimate by the thought that those excluded from my property probably have somewhere else of their own to go to, and those excluded from our community probably also have a community of their own to live in. In fact, neither proposition is entirely justified.

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We know that in most economically developed countries there are large numbers of people who live as transients and are not welcome or rooted in any community. Their only places of refuge are the substantial patches of public property like parks and sidewalks which society maintains for everyone's use.

But public places are not themselves unregulated, and often they are regulated according to norms of community and in response to communitarian pressures. If these communities are themselves exclusive in character, they tend to reproduce at the public property level the exclusions that manifest themselves at the private property level. This Article attempts to chart and analyze the deadly combination of exclusive community and exclusive property that these modes of regulation represent.

Debates about judicial authority? Of course, what we want is for moral issues to be addressed, not as one would make a personal moral decision, but in the name of the whole society. Perhaps the judicial mode of addressing them satisfies that description, but there are other ways of satisfying it too-including legislative approaches, which proceed by identifying all the issues and all the opinions that might be relevant to a decision, rather than artificially limiting them in the way that courts do.

The article discusses the logical arguments about judicial review and the legitimate authorities of legislators who are acting as judges to the legislatures. Accordingly, when a statute restrict the liberties and individual rights of the people, the parliamentary supremacy overrules the rights-violation. It adds that the final arbitration rests with the legislature whether to amend or repeal the law in response to any complaint which effectively judge the legislature as an institution in a dispute.

The question about whether judges are better than legislatures at identifying and addressing the moral issues associated with rights needs to be posed in a more refined way that takes account of the suggestions made by Professors Beaud, Dyzenhaus, and Sadurski. As Professor Sadurski points out, it is not clear that issues about rights differ in their moral salience from other decisions that need to be faced in politics.

Professor Dyzenhaus insists, quite rightly, that the question be posed as a question about institutional competence and institutional procedures.

In this response, however, I argue that that reformulation does not make the question go away; it just poses it in a more complex setting. Professor Beaud rightly emphasizes that the question is usually raised in this form only in common law systems. Here, however, I argue that the fact that moral reasoning is concealed beneath the esoteric structures of adjudication in civil law systems does not mean that my question has no application there. All it means is that, in order to answer it, we must persuade judges to be a little more candid about what they are doing.

The article presents a speech delivered by Jeremy Waldron during the symposium titled "The Most Disparaged Branch: The Role of Congress in the Twenty-First Century," held at the Boston University School of Law on November 14 and15, , in which he discussed ways that make legislation an attractive mode of lawmaking.

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This article explores and connects two issues: 1 the relation between the Rule of Law or legality and the work we do in general jurisprudence on the concept of law; and 2 the distinction between conceptions of the Rule of Law that emphasize certainty, rules, and predictability and conceptions of the Rule of Law that also emphasize procedure and argument, even when legal argumentation detracts from the certainty emphasized the first set of conceptions.

It argues 1 in favour of a more demanding understanding of what law is informed by the ideal of the Rule of Law and against. This Article considers the role of luck in judicial outcomes, stemming from differences in the moral and legal views and reasoning of the judges who decide them. It suggests that luck is ineliminable from a system of positive law and that although it poses important moral problems of unpredictability, arbitrariness, and unfairness, it is not easily remediable.

It is certainly not remediable by replacing a system of positive law with a system of adjudication addressing moral issues directly. Nor is it remediable by insisting on integrity as a feature of judicial decision-making. Lon Fuller, in his response to H. In different writings, Hart seems variously to affirm and to deny that legality is a necessary criterion for the existence of law. Likewise, he sometimes suggests and elsewhere scorns the idea that legality has moral significance.

Some degree of legality might be a prerequisite of law, while some failures of legality might not condemn it. Principles of legality might have contingent rather than inherent moral value, might have moral value that is severable from their legal value, or might have both positive and negative moral effect. This paper explores the application of the concept of "dignity" to groups such as nations, peoples, cultures, and communities.

It suggests that while there are certain difficulties with attributing dignity to groups, and while the attribution of dignity to some groups can be invidious, and while the attribution of dignity to a group might in the end amount to nothing more than an emphasis on the dignity of its members, still the idea of group dignity cannot be ruled out. It cannot be ruled out on either logical grounds or on grounds of moral and political principle; indeed it may often be the best way of conveying important moral information about the value of groups to their members.

This article considers the hostility to legislation — particularly social and economic legislation, legislation that restricts the use of property or interferes with or restructures market process — implicit in some recent discussions of the rule of law. The hostility to legislation is especially evident in some well-known discussions of what law and the rule of law can contribute to economic development.

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It also argues that legislation and the felt need for legislation — especially on social and economic matters — should be accorded more respect than they have been accorded in recent discussions of the rule of law. This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law.

The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate.

The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously even if they may disagree about what rights they have.

NewStatesman

The Essay ends by considering what follows from the failure of these conditions. In recently published memoranda, Justice Department lawyers have suggested that it is not in all circumstances wrong or unlawful to inflict pain in the course of interrogating terrorist suspects. Also, at least one legal scholar has suggested that the United States might institute a system of judicial torture warrants, to permit coercive interrogation in cases where it might yield information that will save lives.

The shocking nature of these suggestions forces us to think afresh about the legal prohibition on torture. This Article argues that the prohibition on torture is not just one rule among others, but a legal archetype-a provision which is emblematic of our larger commitment to nonbrutality in the legal system.

Characterizing it as an archetype affects how we think about the implications of authorizing torture or interrogation methods that come close to torture. It affects how we think about issues of definition in regard to torture. And it affects how we think about the absolute character of the legal and moral prohibitions on torture.