Author: Lucas Miotto

Abstract: 

A signature claim of positivist views about the law is that what laws there are, and what laws there ought to be, are separate questions. As Austin famously said, “The existence of law is one thing; its merit and demerit another.” This distinction is achieved by linking the existence and content of law to certain social facts—in particular, in the simplest and earliest versions of positivism, to certain authoritative demands, where the authority that underpins the demand is not derived from the content of the demand, but rather from its source: paradigmatically, a sovereign backing her orders with coercive force.

In this paper, I suggest that certain recently popular views in metaethics, exemplified in the work of Stephen Darwall but reaching well beyond his corpus, amount to a kind of Austinian moral positivism—and that this gives us reason to think they are untenable. The views in question take second- personal moral demands to be the fundamental moral phenomenon, and claim such demands are made authoritative in virtue of some status all people (supposedly) have—e.g., being free and rational. My argument proceeds by considering what kind of authority would be required to make demands morally binding not in virtue of their content, and concludes that not only is the kind of basis proposed neither necessary nor sufficient, in fact there is no plausible basis for such authority in the moral domain. The moral positivist thus faces a dilemma:  either a given moral demand will be morally redundant, because its force will reduce to moral reasons present even without the demand, or it will be coercive, and so not a moral demand. Necessarily it will do either too little or too much, so it can never be just right: this is the Goldilocks problem.

I then consider the post-Austin refinements to legal positivism to see if they offer a way out for the moral positivist, and find that they do not. I conclude that contemporary versions of moral positivism cannot escape the difficulties faced by earlier incarnations such as divine command theory. (Indeed, the Goldilocks problem can be understood as simply another face of the Euthy- phro dilemma.)

In closing, I note that it is precisely the strengths of legal positivist views that become the points of failure for any moral positivist view. Most significantly, in the moral case, we cannot separate the question of what is required from what ought to be required. So while it is a commonplace to think of morality as a kind of law, this paper offers reasons to be cautious in doing so.

Discussant: Silvan Wittwer

Speakers:

Visa Kurki (Cambridge): Two senses of ‘legal persons’: why animals can be legal persons but rivers cannot

Benjamin Sachs (St. Andrews): A Middle Position on the Status of Animals before the Law

ABSTRACT:

This paper will explore the contemporary treatment or location of harm within academic research.  The focus will be on three primary areas which, it will be argued, have either colonised the notion of harm and/or social harm, or been assigned it without further discussion or critique: legal/moral philosophy; criminology; and the sociology of risk.

Whilst legal/moral philosophy, interrogates the concept of harm on an abstract level divorced from lived experiences and understandings of harm, both criminology and the sociology of risk work with the assumed notions of harm operating within contemporary philosophy without subjecting these to more critical, sociological analysis.  The result, it is contended, is a preponderance of individualised discourses of harm within contemporary research, which serve to separate out contemporary forms of harm from both one another and a broader social system of harm embedded within the structure of society.

Having identified the relative absence of discussion or critical exploration of the concept of harm within social research, the focus of the paper is to explore the role of disciplinarity in producing a distorted lens around harm which only recognises harm in discrete, individualised ways: asking why there seems to be a tension between sociological and philosophical approaches to crime, harm, and justice and how, if at all, they might be resolved.

Discussant: Paul Burgess

ABSTRACT:

This paper explores the influence of legal process theory on the judicial interpretation of legal challenges that are based on the use of unreliable forensic science against a petitioner, and pursued via ‘innocentric’ post-conviction relief mechanisms in the USA. These mechanisms are (1) appellate frameworks allowing due process challenges to the admissibility of unreliable forensic evidence admitted at trial; (2) newly discovered evidence frameworks that provide relief in the event “shifting scientific opinion” is ‘new’ and has ‘verdict changing capacity’; and (3) appellate frameworks that allow due process challenges to state clemency proceedings on the basis they are allegedly unfair due to a lack of state cooperation in providing access and testing of DNA evidence.

An examination of the relevant doctrine reveals that such challenges are rarely successful. In short, post-conviction courts reject these challenges on the basis that (1) the adversarial model should have weeded out unreliable forensic evidence at trial; (2) criticisms aimed at ‘soft’ forensic science disciplines are neither ‘new’ nor capable of deterring juries from findings of guilt; and (3) access to and testing of DNA evidence is not a constitutional right because the provision of such a right would usurp the United States’ “traditional system of justice.” In so holding, the courts side-line ideals of factual accuracy (to the best extent science can provide it) and, instead, rubber-stamp outcomes badged with procedural regularity.

My research confirms, therefore, that there is, in this context, a robust judicial fidelity to the legal process vision, which centres on the belief that procedural regularity (as opposed to substantive justice) legitimises outcomes. In particular, the judiciary demonstrate a systemic obsession with the doctrine of finality. This pattern in judicial decision-making is problematic because, inter alia, (1) it overlooks that the adversarial system itself and the social actors within that system struggle to accurately engage with scientific evidence; (2) it fails to accurately discern between credible and incredible ‘science’; and (3) it fails to acknowledge the corrective justice function afforded to clemency by the common law.

This approach to judicial decision-making ultimately fails to accept the way in which new and credible evidence – particularly scientific evidence – can cast legitimate doubt on the verdict of the trial or, indeed, the decision of a clemency board, “quite apart from any procedural defect.” As such, this body of research confirms the speculation of numerous theorists (such as Sheila Jasonoff, Mary Midgley, and David L. Faigman) that legal institutions misconstrue the capabilities of science. In light of the American Innocence Movement, which has seen 329 DNA exonerations to date, the courts’ continued fidelity to procedural regularity over substantive accuracy, and awkward approach to indeterminacy, in the post-conviction arenas explored, is troublesome and warrants a new approach that is more sensitive to accuracy. As such, this paper engages with legal theory in a practical and contemporary context.

Discussant: Dr. Euan MacDonald

ABSTRACT:

In some earlier work, I have argued that the way in which contemporary legal theory accounts for tests of legal voidness reveals deep problems with our understanding of law’s basic institutional structure.  In this paper I mean, to do three things.  First, I will briefly summarize the foregoing set of concerns.  Second, I will consider how other authors have moved to address these problems, and will discuss some problems with their respective approaches.  Third, I will suggest a modification to our understanding of law that would allow us to overcome these difficulties.

Discussant: Lucas Miotto

ABSTRACT:

The English courts have in the past year been faced with a number of applications for parental orders after surrogacy, which do not satisfy the conditions for the making of such an order laid down by section 54 of the Human Fertilisation and Embryology Act 2008.  These courts have nevertheless granted the applications, on the basis of the welfare of the child.  Professor Norrie is entirely unconvinced that the welfare of the child is a sufficiently strong basis to ignore clear and unambiguous statutory language.  Will the courts prove equally willing to ignore the similar conditions laid down in the adoption legislation?

Discussant: Martin Kelly

 

ABSTRACT:

The paper starts with a summary of traditional approaches to legislative intent, showing the extreme diversity of the perspectives involved. In the second part, I propose a new theoretical framework, based on three types of intentions; first, I identify these three intentions; then I look at the different roles and actors in the legislative process and allocate intentions to them. In the final part of the paper, I draw the consequences for legal interpretation of this more theorised model of legislative intent. In the conclusion, I show that the proposed model explains the theoretical conflations, reconciles allegedly competing positions and opens new perspectives for the debate on legislative intent.

Discussant: Martin Kelly