Edinburgh Legal Theory Workshop Series 2010
As part of the Edinburgh Spring Programme in Legal Theory 2010, the Edinburgh Legal Theory Research Group organised a series of workshops in legal theory. These workshops were held at the School of Law, Old College, South Bridge, from May 31 to June 2, 2010 and were a great success.
Monday 31 May 2010
14:00 - 18:00
The Raeburn Room, Old College.
The Axiomatic Construction of a General Theory of Law: discussing Luigi Ferrajoli's 'Principia Iuris'.
As P.N. Lebedev put it in a 1965 essay on Kibernetika, 'in speaking of the axiomatic construction of a system of law, it is necessary to remember attempts undertaken in the past to axiomatize an entire field of knowledge-ethics (Spinoza) and political economy (Rodbertus). Those attempts were unsuccessful'. Thus Luigi Ferrajoli’s lifetime work, 'Principia Iuris', is of such great interest for two main theoretical (and methodological) reasons: firstly, because it claims to be indeed the very first successful attempt to axiomatize an entire field of knowledge; and secondly, because it is not, as Lebedev suggested, only the axiomatization of a specific system of law, but an entire [general] theory of law. Moreover, from the specific formal logic point of view, Ferrajoli’s axiomatic theory of law is, to its credit, both of complete and consistent: and that would be, considering Kurt Gödel’s Incompleteness Theorems by which if the computable axiomatic system is consistent it cannot be complete and the consistency of the axioms cannot be proved within the system, an outstanding achievement in empirical sciences progress.
In the latter, the theoretical and empirical fruitfulness of Ferrajoli's work endures beyond the formal theory of law, and this is evident even rom a very first survey of the second volume: in this sense, it can be said that constitutional democracies are complex political systems, based on the limits and legal restrictions imposed on all powers, both public and private, state and supranational, which safeguard peace and fundamental human rights. Although the theory of constitutional democracy that is in Principia Iuris is not built up by the axiomatic method, this does not mean it is any less important: on the contrary, as Ferrajoli himself states in the introduction to the first volume, theory of constitutional democracy is strictly based on, though not derived from, the axiomatic theory of law. The main aim of the workshop is therefore to acknowledge the great fruitfulness of an axiomatic theory of law, both from a normative (and theoretical) and from a descriptive (and empirical) point of view. In order to do so, it will be explained how such a theory of law can be built up and, moreover, why this methodological option can be so relevant and successful in legal thinking. Hopefully this will generate interest and future research with and within this unique approach to legal theory, providing the proper environment for intellectual interaction between scholars from UK universities and abroad.
Programme:
I. Introduction Paolo Sandro
II. First Panel: Law and Logic
Speakers: Giovanni Damele (Universidade de Lisboa), Logic and ideology in Luigi Ferrajoli's 'Principia Iuris'.
Giovanni Battista Ratti (Universitat de Girona), Ferrajoli's juridical logic.
III. Second Panel: Theory of Law and Democracy
Speakers: Pierluigi Chiassoni (Università di Genova), Between legal positivism and constitutionalism: Ferrajoli's way.
Richard Bellamy (University College London), 'Principia Iuris' and the question of international democracy.
Tuesday 1 June 2010
09:00 - 12:30
The Raeburn Room, Old College.
Constitutional Review Under the UK Human Rights Act.
British constitutional law has witnessed deep transformations of its core institutions in the last two decades. The Human Rights Act - HRA, enacted in 1998, and the Supreme Court, which started to work in October 2009, are two key symbols of this new institutional state of affairs. They put the principle of parliamentary sovereignty under a more complex conceptual framework, yet to be theorized within a particularly British conception of constitutional democracy. Aileen Kavanagh's new book (Constitutional Review under the UK Human Rights Act, CUP, 2009) contributed to this enterprise and argues that the HRA gives judges strong powers of constitutional review, similar to those exercised by the courts under an entrenched Bill of Rights. The aim of the book is to subject the leading case-law under the HRA to critical scrutiny, whilst remaining sensitive to the deeper constitutional, political and theoretical questions which underpin it. It closes with a sustained defence of the legitimacy of constitutional review in a democracy, thus providing a powerful rejoinder to those who are sceptical about judicial power under the HRA.
This workshop will consist of a roundtable with Aileen Kavanagh, who will react to the comments made by invited discussants and the audience.
Programme:
I. Questions of interpretation (9:00 - 10:00)
Discussants: Adam Tomkins (University of Glasgow) and Stephen Tierney (University of Edinburgh)
Respondent: Aileen Kavanagh (University of Oxford)
II. Questions of deference and proportionality (10:00 - 11:00)
Discussant: Jeff King (University of Oxford)
Respondent: Aileen Kavanagh (University of Oxford)
Coffee break (11:00 - 11:30)
III. Questions of constitutional legitimacy and design (11:30 - 12:30)
Discussant: Richard Bellamy (University College London)
Respondent: Aileen Kavanagh (University of Oxford)
14:00 - 16:30
The Raeburn Room, Old College.
Indeterminate Terms in Legal Regulation.
Indeterminate terms are commonplace in the law. For example, judges - and ordinary citizens organising their lives - are frequently asked to ascertain whether a course of conduct is "reasonable", whether an activity is "exploitative" or whether "consent" to an activity (e.g. to sexual intercourse) was present. Because they are commonplace, these terms are often used as if their meaning is self-evident. This is not, however, the case. This workshop will therefore discuss the problems and consequences of the use of indeterminate terms in legal regulation, with specific reference to the concepts of exploitation and consent.
The workshop will consist of three paper presentations. Each speaker will be given twenty minutes to present her/his argument before a discussant takes ten minutes to make comments, offer (constructive) criticism and ask questions. Thereafter, the discussion will open up to the wider group of participants (postgraduate students and academics) for fifteen minutes. The workshop will, accordingly, last for two and a half hours (a fifteen minutes coffee break will occur between papers two and three).
Programme:
Paper 1: (14:00 - 14:55)
Speaker: Prof. Andrew Halpin (University of Swansea)
Discussant: Mr. James Chalmers (University of Edinburgh)
The general theme of the workshop, indeterminate terms in legal regulation, will be introduced by Prof. Andrew Halpin. His books Definition in the Criminal Law (Oxford: Hart, 2004) and Reasoning with Law (Oxford: Hart, 2001) consider the problems which can be encountered when indeterminate terms are used in the formation of legal rules or in legal judgements. The discussant of the paper will be Mr. James Chalmers (University of Edinburgh).
Paper 2: (14:55 - 15:50)
Speaker: Prof. Stephen Wilkinson (Keele University)
Discussant: Dr. Anna Carline (Liverpool John Moores University)
Prof. Stephen Wilkinson, author of Bodies for Sale: Ethics and Exploitation in the Human Body Trade (London: Routledge, 2003), has agreed to speak on the topic of exploitation.
Coffee Break (15:50 - 16:05)
Paper 3: (16:05 - 17:00)
Speaker: Dr. Sharon Cowan (University of Edinburgh)
Discussant: Dr. Mary Ford (University of Strathclyde)
Dr. Sharon Cowan will speak on the topic of consent. Dr. Cowan is under contract with Hart Publishing to write a book on this topic in 2010.
We are grateful to the Postgraduate Research Committee at the University of Edinburgh School of Law, The Mind Association, and Social & Legal Studies for providing financial assistance.
Wednesday 2 June 2010
09:00 - 13:00
Room L05, Old College.
Political Economy and Moral Economy.
In this workshop we want to explore and critically reflect on the possibilities for ethical life in market institutions, taking ‘ethical life’ in its broad sense of the good for humans, both material and spiritual, and including specifically moral questions of right conduct. Taking its cue from the claim by Fukuyama and other social scientists that market institutions and their associated legal forms depend for their ‘success’ on drawing upon the ethical resources established and practised in the non-market domains of civil society, it will examine the variety of ethical possibilities provided by market institutions in the context of differing socio-cultural and religious conditions. These issues will also be explored within the context of increasing globalization
Exchange relations are held to characterise market societies and to be expressed in their structures of law and legality. They are generally regarded as having a single, determinate character, and as distinct from the kinds of ‘exchange’ which take place outwith the market domain. However, exchange relationships have different forms in differing socio-cultural context, and the ethical meanings and forms of life they express differ correspondingly. When it is recognised that non-market forms of exchange impact upon market institutions and their associated legal forms, the possibility arises of so-called ‘market’ exchange possessing a variety of forms with different ethical implications. The roles of exchange and law will also be examined through the idea of community; since it is though this that the types of solidarities and public goods that these forms of exchange can create are best understood. , including the development of ‘global cities’
We aim:
- To examine contractual relations and relational theories of contract in the law on a comparative, religious and socio-cultural basis in the context of their public function of promoting mutual, welfare-maximising exchanges
- To study the types of solidarities and dependencies that these relationships can create, and more specifically and comparatively through their playing our in concrete legal systems
- To examine the role that such emotions as compassion, mercy, hope and love play in exchange and legal institutions in general, as contrasted with the rationalizing features of the market and law
- To link the above into debates about which forms of exchange and legality should be protected and promoted, and hence about ‘ethical life’ and ‘common goods’
PROGRAMME
09:00 - 09:20 Introduction. Zenon Bankowski (Edinburgh University)
09:20 - 09:40 "Liberty and anthropogenic global warming", Michael Northcott (Divinity Edinburgh University)
09:40 - 10:00 "Hans Jonas and corporate responses to climate change", Sally Wheeler (Law Queen’s University Belfast)
10:00 - 10:40 Discussion
10:40 - 11:10 Coffee break
11:10 - 11:30 "Human Rights and their critics: the churches",
Aidan O'Neill QC
11:30 - 11:50 Outline of a Moral Economy, John Holmwood (Sociology, Nottingham University)
11:50 –3:00 Discussion
14:00 - 18:00
Room L05, Old College.
Law's Normative Claims: Legitimacy, Authority, and Moral Correctness.
The question whether and, if so, then in what sense, the concept of normative truth comes into play in legal philosophy has generated engaging discussions and long controversies since the first stages of inquiry into the nature of law. Although it has often been argued that ‘truth’ is irrelevant to the law, it is widely accepted that both legislators and judges cannot successfully fulfil their duties, if their decision-making fails to meet the minimum requirements of normative soundness. The very quest for both the validity of law-making process and the lawfulness of judicial decisions necessarily assumes an intersubjective ground of normative soundness providing the criteria against which the successful exercise of law-making and law-applying authority is to be judged. The question thus arises: What does normative soundness stand for and what should a decision-maker do so that she complies with its requirements? There is no doubt that the very concept of normative soundness epitomises the moral character of law. Yet what is still open to discussion is how strong law’s moral character is or we want it to be. At the dawn of the 21st century the international protection of human rights, the promotion of democracy and the establishment of the Rule of Law are said to be the main criteria for law’s moral appraisal. Yet it is argued that they do not cover an important number of moral ideals that an ethical polity should be keen on putting forward. If this criticism against the Rule of Law doctrine is fair, then law should be opener to moral considerations than current legal systems allow it to be. Yet new concerns arise. How can law deal with the controversies that are endemic to the moral debate without loosing the certainty and broad social acceptance that people expect it to have? And taking into account the multicultural character of modern societies how could the endorsement of a certain morality by the law maintain intact the principled tolerance that lies at the heart of constitutional liberalism? These are just some of the questions that fall under the scope of the workshop “Between Law and Morality: The Perplexities of Normative Truth”.
Programme:
I. Session 1 (14:00 - 15:50)
| 14:00 - 14:30 |
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Dr. Verónica Rodríguez-Blanco (University of Birmingham), "Legal rules in the guise of the good". |
| 14:30 - 15:00 |
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Professor George Pavlakos (University of Antwerp / University of Glasgow), "Non-naturalism, normativity and the meaning of ought". |
| 15:00 - 15:30 |
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Dr. Margaret Martin (University of Western Ontario), "The curious case of command theories: Reflections on the question of law's normative force". |
| 15:30 - 15:50 |
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Discussion |
Coffe break (15:50 - 16:10)
II. Session 2 (16:10 - 18:00)
| 16:10 - 16:40 |
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Professor Martin Krygier (University of New South Wales), "Philip Selzncik, "responsive law" and the rule of law". |
| 16:40 - 17:10 |
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Dr. Dan Priel (University of Warwick), "Normativity, legitimacy, and the objectivity of morality". |
| 17:10 - 17:40 |
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Dr. Bebhinn Donelly (Swansea University), "Adjudication's necessary engagement with morality; why it does not establish a moral purpose in Law?". |
| 17:40 - 18:00 |
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Discussion |
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