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Responsibility and the Negligence Standard

I identify a sense of ‘responsibility’ by which X is responsible for ing iff X’s ing was related to his capacities of rational agency in an appropriate way. I argue that the Guidance Principle (roughly: we are responsible for actions guided by our powers of rational agency when they are performed for, what we believe to be, an adequate reason, and their performance is controlled and guided by our beliefs about what reasons we have) provides a sufficient condition for responsibility, but that responsibility for negligence shows that the Guidance Principle is not necessary for responsibility. Much of the article is devoted to an analysis of negligence, and the associated duties, distinguishing between them and strict liability on the one hand and from liability arising under the Guidance Principle on the other hand. The discussion of negligence leads to a new conception of responsibility, embodied in the Rational Functioning Principle, of which the Guidance Principle is an important, but not the only component. Roughly speaking it holds us (non-derivatively) responsible for conduct which is the result of the functioning, successful or failed, of our powers of rational agency.

Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms

The well-established pattern of Executive expansionism and limited oversight of Executive action in times of terrorism is problematic from the civil libertarian point of view. How to limit such action has been the subject of much scholarship, a large amount of which focuses on perceptions of institutional competence rather than effectiveness. For the authors, the effective control of security-focused state action is to be judged by the extent to which it consists only of action that is necessary and proportionate and thereby strikes an appropriate balance between security exigencies and individual rights. This article, written and structured in dialectic form, presents competing perspectives on effective oversight mechanisms: on the one hand, an extra-constitutionalism perspective, proposing a limited role for the Judiciary and emphasizing the need for legislative and democratic controls; and on the other, an argument for judicial muscularity.

How Different are Waldron's and Fallon's Core Cases For and Against Judicial Review?

Recently Jeremy Waldron offered the ‘core of the case against judicial review’. Richard Fallon responded with the ‘core of an uneasy case for judicial review.’ The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar once we take the conditions and qualifications into account. At its heart Professor Fallon's case rests on the proposition that ‘[l]egislative action is more likely to violate fundamental rights than legislative inaction’. I call this the libertarian presupposition in Professor Fallon's case. This article examines the libertarian presupposition, raising questions about its implication that private violations of fundamental rights are less serious or pervasive than violations of fundamental rights pursuant to legislation. It then discusses Professor Waldron's argument that an important part of the core case against judicial review is the existence of reasonable disagreement about the proper specification of fundamental rights. I argue that, while Professor Fallon provides a plausible psychological account of why the existence of such disagreement is unlikely to do much work in persuading people to accept the core case against judicial review, that psychological account offers a path toward understanding the different dispositions that lead Professors Waldron and Fallon to characterize their quite similar positions in the more dramatic ‘against-for’ manner.

Legal Enigmas--Antonio de Nebrija, The Da Vinci Code and the Emendation of Law

It is rare in the extreme for a judge to embed an enigma, here an intentionally encrypted message, in the text of a judgment. Using the occasion of the cypher inserted into the judgment of Peter Smith J in Baigent v Random House, this article patiently reconstructs the humanist concept of aenigmata iuris or legal enigmas so as properly to interpret this recent use. Legal enigmas are shown to be the residues of forgotten histories, references to lost texts, marks left by encounters between law and its now marginal literary and poetic sources. Where current legal use treats enigmas as mere obscurities, this article argues that the enigma should be apprehended and appreciated as an image of juristic invention, the moment of devising a decision, the instant of creative encounter between ‘the sciences liberall’, doctrine and law.

Piloting PTWI--A Socio-Legal Window on Prosecutors' Assessments of Evidence and Witness Credibility

This article presents original empirical data generated from the Crown Prosecution Service (CPS) Pilot Evaluation of pre-trial witness interviewing (PTWI) in England and Wales. Section 1 introduces the PTWI Pilot and describes the methodological strengths and limitations of our qualitative socio-legal study. Forming the richly documented empirical core of the article, Sections 2–5 identify the principal considerations which seemed to influence case selection for Pilot interviews. An overlapping collection of evidentiary, strategic and circumstantial factors encouraged prosecutors to resort to PTWI, whilst other, countervailing considerations were apprehended as disincentives. Assessments of witness credibility were central to prosecutors’ attempts to balance these competing factors. Section 6 concludes by underlining the potential of qualitative socio-legal studies to promote more nuanced understandings of criminal process, and by extension to make practical contributions to evidence-based criminal procedure reform.

Retribution but No Recompense: A Critique of the Torturer's Immunity from Civil Suit

This article examines the principle of state immunity from the civil jurisdiction of national courts as it has been applied to officials. In Jones v Saudi Arabia the House of Lords held that individual officials should have the benefit of immunity, notwithstanding the possibility of criminal prosecution as agreed by states parties to the United Nations Convention Against Torture. It is incontrovertible as a matter of international and English law that the state itself is immune from suit in torture claims but there was scant authority prior to Jones requiring the extension of immunity to individual officials. There are two key hurdles for the torture victim to surmount: first, it must be demonstrated that the forum state has jurisdiction to make and adjudicate rules regarding the relevant conduct and, secondly, that any claim to immunity should be denied. It is argued that the assertion of civil jurisdiction over torture which has taken place in another country is permissible under English rules on conflict of laws and would not be excessive in view of the recognition of criminal jurisdiction by states parties to the United Nations Convention Against Torture and under customary international law. It is further argued that to allow civil suit against the torturer (but not the state) would not offend the principles of public international law that relate to immunity, nor should it breach the State Immunity Act 1978.

Political Authority, Moral Powers and the Intrinsic Value of Obedience

Three concepts—authority, obedience and obligation—are central to understanding law and political institutions. The three are also involved in the legitimation of the state: an apology for the state has to make a normative case for the state’s authority, for its right to command obedience, and for the citizen’s obligation to obey the state’s commands. Recent discussions manifest a cumulative scepticism about the apologist’s task. Getting clear about the three concepts is, of course, an essential preliminary to any cogent normative defence of the state. The analysis here yields three conclusions: (i) the state claims to possess a moral power to subject citizens to duties of obedience, but non-consent apologies (including appeals to a principle of fair-play) can at best deliver a ‘side-effect’ power; (ii) consent theories of political authority aspire to justify one moral power by appeal to another, but they encounter familiar objections (including the objection that the state claims authority over non-consenters); and (iii) if authority is a moral power—as the state claims—its justification will have to render obedience as intrinsically valuable. Perhaps a virtue–ethical account can deliver a justification of the needed kind, but that would have to be shown elsewhere.

Griffin on Human Rights

This review article considers James Griffin's book On Human Rights, which is an immensely important contribution to moral and political thought. The review article starts by explaining why Griffin thinks that the term ‘human right’ suffers from an unacceptable indeterminateness of sense, and then summarizes Griffin's objections to various prominent accounts of human rights. An outline of Griffin's own account of human rights follows. His theory grounds human rights in ‘personhood’ and practicalities. The final section of the article explores Griffin's objections to rule-consequentialism's approach to human rights.

Oxford Journal of Legal Studies - current issue

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