Philosophy of Tort Law, the nature of legal authority and normativity, theories of intention and practical reason, transnational legal theory, philosophy of action and theory of contract law.
University of Birmingham-FAPERJ project on 'Responsibility, Judging and Law'.
Prof. Rodriguez-Blanco is happy to receive PhD applications on any of the following topics:
a) Philosophy of Tort Law, e.g. the nature of negligence, theories of responsibility and negligence, the action/omission distinction, the role of knowledge/ignorance in negligence, causation.
b) Transnational Legal Theory, e.g. the possibility of a transnational rule of law, the role of coercion at the transnational level.
c) Legal Philosophy, e.g. the role of agency in law, the nature of legal normativity.
d) Philosophy of Contract Law, e.g. the role of promises, unconscionability in contract law.
e) Ancient and medieval conceptions of agency to illuminate key aspects of private law.
Tort, Contract and Jurisprudence
Head of the Law School
Find me on campus Room: 38 AB 05
Much controversy has emerged on the demarcation between legal positivism and non-legal positivism with some authors calling for a ban on the -as they see it- nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term ‘legal positivism’ as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5½ Myths’ (Gardner 2001, 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls “the thin view”. The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts. The paper is divided into six sections. §1 aims to give an accurate and charitable explanation of Gardner’s thin view of legal positivism, which includes the possibility of recognising actions of engagement with the law that are inert. Section 2 sets the stage for the critical discussion using the example of a fictional country called DYSTOPIA where King Positus promulgates law with the aim of causing chaos in the activities of the citizens. The question we ask is, ‘What enables an imaginary observer to recognise what Gardner calls ‘acts of engagement’ with the law? In order to provide a plausible answer to this question we argue in sections 3 and 4 both that Gardner’s thin conception of legal positivism presupposes an empirical view of human action and that the sound conception of human action cannot be an empirical one. We use what we call Anscombe’s ‘institutional transparency thesis’ defended in ‘On Brute Facts’ (Anscombe 1958, 69) to show that the intelligibility of human action presupposes an institutional context but does not entail a description of that context. In §4 we stay with the example of DYSTOPIA to show that an imaginary observer cannot know whether or not there is a legal system in DYSTOPIA unless he/she understands the purpose of an institution that has already been learned within an institutional context. This conception of action is purposeful as opposed to empirical. §5 argues that the paradigm or central-case methodology, as opposed to the necessary and/or sufficient conditions methodology
Dworkin advances the view that judges decide legal cases according to the methodology of constructive interpretation and, hence, in their answer to a legal question judges focus on providing the best possible interpretation of the law in light of the two criteria of fitness with past legal materials and moral soundness. The aim of this constructive interpretative exercise is to justify the coercion of the State. This is key to understanding Dworkin’s criticism of the rule-based account of legal decision-making processes by judges. A trivial implication of this view is that officials and citizens comply with the law because of the justification advanced by judges in their exercise of constructive interpretation. Consequently, neither officials nor citizens comply with the law because they have been coerced or because they have been simply told to do so. It must be questioned, however, whether constructive interpretation really can provide any guidance since officials and citizens have been asked to accept the interpretation of the law put forward by the judges and, arguably, this interpretation is the best possible interpretation of what the law is in a particular case. Moreover, why should officials and citizens accept the indicated interpretation? Do officials/citizens simply accept the justification provided by judges or do they, rather, simply believe that the indicated interpretation is the sound and desirable interpretation of legal practice, and this belief causes the appropriate action? Is this a plausible conception to explain our compliance with legal decisions?
Macklem argues in his book Law and Life in Common that law and legal systems arise from the interplay between reason, will and imagination. He aims to show that critical theories of law, which construe law as will or power, have an element of truth since their focus on the idea of will or power sheds light on the contingent, open and plural features of the law. He aims to unify a) Raz’s Service Conception of Authority, which is grounded on reason; b) critical theories of law, which focus on will (or power), and c) Dworkin’s constructive theory of law which is built around the idea of imagination. Macklem tells us that unification is possible if we admit that each of these theories is incomplete and if we subsequently use this incompleteness to consider the respective notions each theory is grounded in, i.e. reason, will and imagination, to show how a complete and satisfactory picture of law as social practice can emerge.
In her recently published book Judging Positivism, Margaret Martin engages with the entire corpus of Joseph Raz’s legal philosophy and closely scrutinizes the development of Raz’s ideas on the nature of law and legal authority, from his early book Practical Reason and Norms to his later work Ethics in the Public Domain . Martin’s book has much to offer those interested in understanding Raz’s ideas in legal philosophy and the possible interconnections among his very prolific writings in legal philosophy.
Rodriguez-Blanco examines Enrico Pattaro’s effort to explain the normativeness or binding force of the law. Pattaro defends the controversial claim that norms are motives of behaviour and provides a rich explanation of how these motives, i.e., beliefs in the human brain, move human agency. In her review, Rodriguez-Blanco challenges Pattaro’s empirical conception of human agency.
Law transforms our lives in the most important way: it changes how we act and because of this it gives rise to fundamental questions. One such question concerns legal authority and individual autonomy and asks; if we are autonomous agents how do legislators, judges and officials have legitimate authority to change our actions and indirectly change how we conduct our lives? We conceive ourselves as active agents who determine how and when to act, and we conceive ourselves as the planners of our own lives and the creators of change. Law asks us, however, to perform actions that range from the trivial to the complex. But how is it possible for me to do, in full awareness, as the law asks and, at the same time, be in control of my own destiny? How is my free will affected by the law?
Dworkin discusses his view on dignity in the context of providing an interpretive construction that integrates our moral and ethical responsibilities. In our ordinary lives, moral and ethical conceptions seem to pull us in opposite directions. We engage in personal projects, and have values and commitments that contradict and clash with our moral judgements or with what we ought to do categorically. Personal projects, values and commitments are subject to conditions, e.g. talents, wealth, intelligence, socio-economic status, and so on. By contrast, the demands of morality are unconditional. We cannot avoid acting according to a moral demand by excusing ourselves in terms of our circumstances. We can realise certain projects and participate in values if we are motivated to do them and if we have the talents, resources or intelligence to be able to do them. They are contingent on our psychological make-up, i.e. on our inclinations, desires, judgements of value and circumstances. They do not apply universally and we cannot demand categorically their realisation. By contrast, moral values do not depend on our desires or inclinations, socio-economic status, talents or intelligence. Consequently, every human being can realise and participate in a moral life. Our personal tragedy as human beings arises from the awareness that a successful life, which entails the realisation of our personal projects, values and commitments, does not necessarilymean that we have led a moral life. We cannot show that morality is essential to having a good life. In other words, that having a good life is being moral, or perhaps vice versa, that a moral life will ensure a good life. Disintegration of the relationship between morality and ethics seems inevitable. In an attempt to swim against this current Dworkin aims to show that integration between morality and ethics, i.e having a good life, is possible. According to him integration is possible if we seek moral responsibilities that will be construed in terms of, and therefore determined by, our ethical responsibilities. As part of this endeavour Dworkin attacks what might be called‘the independent view’. The independent view cannot integrate morality and ethics because our moral responsibilities are presented as being fixed. According to this view, morality can only be determined by morality itself and therefore ethics is necessarily excluded. By contrast, Dworkin advances what we might call the ‘constructivist view’. According
There are many key distinctions that play an important role in mapping out plausible ways of thinking about law construed as a social practice. Among the varied dichotomies the one that has probably been most infl uential is the distinction between a description of an action and the normative characterisation of an action. The former aims to explain the action without resorting to the values or principles of the agent; the latter aims to show how actions are part of the normative landscape where values, principles and other normative standards play a key role. The focus might be on the values, principles and standards of the agent or on values, principles and standards that are objective. 1 In previous work 2 I have defended the view that the primary conception of intentional action is normative all the way through. There is no ‘ brute fact ’ or ‘ pure facts ’ about actions and therefore actions cannot primarily be grasped by descriptors of the world either mental, physical or of a similar sort. I have argued that in order to make intentional actions intelligible we need to resort to the values or principles or goodmaking characteristics that the agent aims to bring about in the world and we need to understand that the values, principles or good-making characteristics of the action provide a unity and intelligibility to the various bodily movements of the agent. This is a complex and occasionally diffi cult understanding of agency but it is one that, in my view, is sound. The core elements of this account of agency are that (a) there is a parallel between practical reason or deliberative reasoning and intentional action; (b) practical reasoning involves practical knowledge which is non-observational; (c) the error of an action stems not from what the world looks like but from the performance of the agent; and (d) intentional action is primarily from the fi rst person or deliberative point of view and therefore it is forward-looking. I will not provide a full defence of features (a), (b) or (c) in this chapter; rather I will focus only on (d) and will argue that this feature provides the key premise for the conclusion that a characterisation of actions in social practices, including law, cannot be carried out on the basis of descriptions. I will fi rst show that (d) is true and I will then advance the best account of actions in terms of descriptions provided by legal philosophers in recent years, which is the idea that actions and the resulting social pract
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Expiry Date: Wednesday 22 November 2017 13:30:48
Assembly date: Fri Dec 15 00:51:00 GMT 2017
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