Abstracts of Occasional Seminars

Macaulay, Codification and the Indian Penal Code: A Study in Reputation
By Sundram Soosay

Modern criminal law across much of what was formerly British-controlled Asia began life in the draft Penal Code composed by Thomas Babington Macaulay, then legal representative of the Governor-General's Legislative Council of British India. The Code was to be a fresh start, a repudiation of all that had come before. With this in mind, Macaulay looked not to the law as he found it in India at the time, nor to the law of England, which he thought beyond redemption, but to other examples of enlightened late-eighteenth and early-nineteenth century legal reform. Rather than work to produce a Code derived from careful study of existing law, his task was to be one of general or universal jurisprudence, his Code largely a product of speculative invention.

For a time, Macaulay's draft Code looked unlikely to succeed, being resisted in particular by the legal profession and the senior judiciary particularly. Unusually, however, resistance to Macaulay’s effort was eventually overcome and his Code has gone on to enjoy success in application and no small acclaim. The uncommon success of Macaulay’s effort therefore invites careful scrutiny, for there are surely valuable lessons to be had for the common law world more generally. As we will see, however, and contrary to contemporary academic opinion, the lessons to be learned from the Indian Penal Code are negative rather than positive. If the Code has been a success, it has been one only in a highly qualified sense, and more, the success it has enjoyed has come despite rather than because of Macaulay and the very modern aspirations he brought to his project.

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Promise Made Pure
By Daniel Markovits

This paper articulates an answer to the familiar problem of why promise-breaking is a wrong even in the absence of expectation or reliance by the promise. It seeks to connect promises to independently characterized human interests whose promotion depends on the intentions that promises characteristically involve. Persons are sociable creatures, which is to say that they have a fundamental interest in reciprocally recognizing and engaging one another as persons; that is, as agents who possess independent wills and whose intentions (and not just interests) therefore assert free-standing claims on one another’s practical lives. Promise—both promise-making and promise-keeping—constitutes an instance of such recognition, a form of social solidarity. Breaking a promise, by contrast, undermines solidarity. It involves a kind of insult, which alienates or estranges the promisor and promisee, placing their intentions undesirably at odds—that is, into a relation that sets back their interest in solidarity. Promise breaking has this consequence, moreover, even where the promisee has neither relied nor formed any promissory expectations. Even in this case, therefore, promissory obligation stands not bare but rather clothed by the human interest in solidarity.

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Thinking about Justice
By Mathias Risse

My book, On Global Justice, is about distributive justice at the global level. My view in that book brings a broad range of human affairs under the purview of justice but also thinks of demands of justice as the most stringent moral demands. As opposed to that, influential accounts of justice conceive of justice either as broadly applicable but not as stringent the way I do, or else as similarly stringent but not as broadly applicable the way I do. Ernst Tugendhat exemplifies the former approach, Immanuel Kant the latter. Their approaches generate an objection to mine. Justice, the objector may say, can either be defined, as Tugendhat does, in terms of the kind of situation to which it applies, and then would plausibly apply to a much broader set of contexts than what my theory accommodates. Or else justice can be defined in terms of its stringency, as Kant does, but then not even all those contexts where I talk about justice qualify. In elaboration and defense, I argue that it is sensible to limit justice to a narrower range of situations than Tugendhat allows, while thinking of the stringency of justice in such a way that a broader class of cases is covered than Kant allows.

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It’s Only Words: On Meaning and Mens Rea
By Findlay Stark

In English law, mens rea terms can be defined differently depending on the context. This article attacks this approach, arguing that it pays insufficient attention to the criminal law's twin needs to communicate effective guidance to citizens who wish to avoid punishment, and to control the discretion accorded to the criminal law's institutions. It would be preferable to have clear definitions of mens rea terms applied uniformly across the criminal law. If there are gaps, these ought to be filled by additional mens rea terms. The practical issues raised by this argument are considered briefly.

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Dworkin and the Common Law
By Sundram Soosay

Dworkin often gave the impression that he was interested in presenting a more realistic, craft- or practitioner-oriented account of law. As such, Dworkin is sometimes thought to belong to the common law tradition. He did indeed share with the common law theorists the insistence that law works through a community of human actors, and judicial discretion is not marginal. Despite this, however, Dworkin was ambivalent about the common law tradition and never embraced it explicitly. And when we look more closely, we can see some key differences. For thinkers belonging to the common law tradition, disagreement, though inescapable, is far less problematic than it is for Dworkin. Fundamentally, Dworkin saw the process of legal interpretation as constructive. For the common law tradition, by contrast, legal interpretation is a form of practical interpretation that is oriented towards modest problem-solving.

Ultimately, by contrast with the common law thinkers, Dworkin’s theory of law as integrity does not aim at accuracy or realism. Dworkin’s project, and his gifts, were persuasive and rhetorical; his work does not provide insight into how any of the processes described actually function.

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We all make Mistakes
By James Penner

Here I raise for consideration a particular perspective on the moral foundation of liability to make restitution of mistaken payments. I want to suggest that, similar (though not identical to) the way the law might instantiate a duty of easy rescue as a “crystallisation” of the general duty of beneficence, liability for mistaken payments counts as an instantiation of the same duty of beneficence.

If this is right, then one of Birk’s most cherished theses – that the law of unjust enrichment is a distinctive aspect of private law, not to be assimilated to contract, tort, or the law of property – can be made out: it is distinctive in having an entirely different normative source: one has to look to Part Two of the Metaphysics of Morals, not Part One. But it is made out at a price – in the same way that a legal system can function more or less justly without a duty of easy rescue, a legal system could function more or less justly without a liability to return the value of mistaken payments. Moreover, if this is right, another of Birk’s cherished theses would have to be abandoned: his thesis that liability for mistaken payment is the archetype or paradigmatic case of liability for unjust enrichment. On the duty of virtue explanation of liability for mistaken payments, this liability is contingently instantiated in the system, a normative outlier, very much not a paradigm.

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Why Constitutional Rights Matter
By Alon Harel

This chapter argues that a society in which the legislature honours rights but is not constitutionally bound to do so is inferior to a society in which the legislature is bound by constitutional duties protecting individual rights (and complies with them). The latter society is superior for the reason that in such a society individuals do not live “at the mercy” of the legislature.

Compare a state A in which a benevolent legislature refrains from violating the rights of individuals or, even, protects these rights vigorously with a state B in which rights are protected to the same extent as in state A, but they are also enshrined in a constitution or bill of rights. Given that there are no other differences between the two states, which scheme (if any) is superior? Is it valuable to constitutionally entrench pre-existing moral/political rights even when such an entrenchment is not conducive to the protection of these rights? Do constitutional rights matter, and, if so, why? This essay addresses those questions and maintains that constitutional rights matter, as the constitutional entrenchment of pre-existing moral/political rights is valuable (independently of whether such an entrenchment is conducive to the protection of these rights).

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The Normativity of Law
By Liam Murphy

This paper is a chapter from a book I am writing about the nature of law. The main focus of the book is competing theories of the grounds of law—the considerations relevant to determining the content of the law in force. There are a range of views, but for the most part I have in mind just two. By “positivism,” I mean the view that the grounds of law are entirely matters of social fact, that moral considerations are never relevant. By “nonpositivism” I mean the view that moral considerations are always in principle relevant to determining the content of law. Ronald Dworkin’s legal theory is the most important example of nonpositivism, but it comprises several strong commitments that are not essential to nonpositivism in my undemanding sense of the term.

I argue that these two views reflect different foundational understandings of the kind of thing law is and that compelling arguments for either view are unlikely to be found. However, this does not leave us never having a unique answer to a question about the content of law because despite appearances the two approaches overlap considerably in particular cases. In most cases, the difference in the eligible grounds of law makes no difference to the factors that are actually playing a role in determining the content of law.

In some cases, however, the different theories of law do require different conclusions about the content of law. Does it matter that we have this standoff about the grounds of law that in some cases leads to different answers to questions about law’s content? The standoff matters only if knowing what the law is matters. This chapter continues a discussion of whether law matters by asking whether, in particular, it matters because it provides us with moral reasons to comply with it.