- Reader in Jurisprudence in the University of Cambridge, and Fellow of Corpus Christi College.
- Amongst the best known examples are Frederick Schauer, Playing by the Rules (Oxford, Clarendon Press, 1991), and P.C. Atiyah and R. S. Summers, Form and Substance in Anglo-American Law (Oxford, Clarendon Press, 1987).
- Edward Craig, The Mind of God and the Works of Man (Oxford, Clarendon Press, 1987) at p.3.
- Yet it is not uncommon to hear the jurisprudence of Dworkin for example) defended by the claim that adjudication is an inherently moral enterprise; conventionalism or positivism is portrayed as denying this insight by presenting law as a mere calculus of rules. See Simmonds, “Bluntness and Bricolage” in H. Gross and R. Harrison eds.) Bluntness and Bricolage (Oxford, Clarendon Press, 1992) at p.3.
- H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford, Clarendon Press, 1983) at pp.7–8.
- Robert Alexy, A Theory of Legal Argumentation (Oxford, Clarendon Press, 1989) at p.8.
- Aldershot, Dartmouth, 1996.
- See Tom Campbell, The Left and Rights, (London, Routledge, 1983)
- Supra n.7 at p.173.
- Supra n.7.
- Ibid at p.3.
- Ibid.
- Ibid at p.72.
- Ibid at p.3.
- Ibid at p.10.
- Ibid at p.xi.
- Campbell might also have pointed out that the state, maintenance of general laws against assault and trespass provides as Hart demonstrated) a perimeter of protection to liberty. That which the state does not prevent, therefore, it protects and in some sense authorises. For example, the inhabitants of inner-city estates, whose lives are made intolerable by the inadequacies of law-enforcement on those estates, have their sufferings increased by the protection afforded by law to those who vandalise and terrorise their public spaces.
- Ibid at pp.29 and 41. Campbell is not opposed to the idea of fundamental human rights, but to the entrenchment of those rights in a way that enhances the power of judges at the expense of representative institutions. Thus he would be prepared to consider the utilisation of an approved statement of rights by a parliamentary committee charged with the review of legislation: ibid. at p.185.
- Ibid at pp.35–36.
- Although perhaps without Campbell, enthusiasm. One can be a democrat and nevertheless endorse Churchill's view that democracy is a terrible system of government, but one that is better than all of the alternatives.
- It is common to observe that popular assumptions about morality are “subjectivist” in character; but a more careful interpretation of claims that are often equated with subjectivism can lead to a different conclusion. See James Fishkin, Beyond Subjective Morality, (New Haven, Yale University Press, 1984).
- The belief that values are grounded in the will does not necessarily entail subjectivism or relativism: there are other possibilities. Kant, moral philosophy, for example, presents the moral law as objective yet grounded in the will. Like all moral voluntarists, however, Kant evinces a lack of concern for moral experience and sensitivity to circumstance. See, for example, his notorious observation that we cannot learn morality from examples because all such examples must first be judged by reference to abstract principles: Kant, Groundwork of the Metaphysics of Morals, Chap.2. My remarks concerning the difference between radicals and conservatives ignore the possibility of a Kantian position.
- Supra n.7 at p.9.
- Such recasting cannot always be analysed as the addition of an exception: see Simmonds, “Bluntness and Bricolage” in H. Gross and R. Harrison eds) Jurisprudence: Cambridge Essays, (Oxford, Clarendon Press, 1992) at pp.8–11.
- This point is emphasised by Schauer, (supra n.2) but it seems to be endorsed by Campbell too.
- For example, the hallowed wording of the “rule in Hadley v. Baxendale” suggests that contract damages depend upon a question of knowledge or foresight; the reality, however, is that the courts are concerned with a question of what potential liability was impliedly agreed to at the time of making the contract, and this is not a question of knowledge alone. I may tell the taxi driver of the million pound deal that depends upon my catching the next train to London, and he may promise to get me there on time; but, if he charges me the standard fare, it is unlikely that he will be liable for a million pounds in the event of my missing the train.
- Supra. n.7 at p.9.
- Schauer, supra. n.2 above, p.181.
- Simmonds, “The Possibility of Private Law” in J. Tasioulas ed.) Law, Values and Social Practices (Aldershot, Dartmouth, 1997).
- Supra n.7 at p.18.
- An example will help to correct the impression that I am indulging in woolly rhetoric. Suppose that trustees are empowered to award a scholarship on the basis of an examination. Suppose that we know of a precedent that says that the trustees are not obliged to award the scholarship to the candidate with the highest marks. Even so, we will suspect that they are acting illegally when they award the scholarship to the candidate with the second highest marks, who happens to be a nephew of the trustees. We will expect the court to say that, although there is no duty to award to the candidate with the highest marks, there is a duty to award to the candidate with the highest marks if the scholarship is awarded at all (later cases might qualify this ruling still further, by allowing for account to be taken of considerations other than academic merit, such as need). We can make these predictions without any real knowledge of the law. We may be unsure as to whether this is a matter of the law of contract, or of trusts, or what. Our judgement is based upon shared understandings of proper behaviour amongst trustees in such circumstances.
- See, e.g., Philip Soper, A Theory of Law, (Cambridge, Harvard UP, 1984).
- Tony Honore, Making Law Bind, (Oxford, Clarendon Press, 1987) at p.32.
- Dworkin, Finnis and Soper would all be examples.
- See Finnis, Natural Law and Natural Rights (Oxford, Clarendon Press, 1980) Chap.1; W.J. Waluchow, Inclusive Legal Positivism (Oxford, Clarendon Press, 1994) Chap.2; Simmonds, “Bringing the Outside In” (1993) 13 Oxford Journal of Legal Studies 147.
- Honore, supra n.33.
- Supra n.7 at pp. 73–75.
- Kant, Critique of Pure Reason (1781) A5/B8.
Legal Ethics
Volume 2, 1999 - Issue 1