This book presents the papers and comments on those papers delivered at a colloquium held at the Australian National University in December 2008 to celebrate 50 years since the publication in the Harvard Law Review of the famous and wide-ranging debate between H.L.A. Hart and Lon L. Fuller.

Lawyers who write about responsibility tend to focus on criminal law at the expense of civil and public law; while philosophers tend to treat responsibility as a moral concept,and either ignore the law or consider legal responsibility to be a more or less distorted reflection of its moral counterpart. This book aims to counteract both of these biases. By adopting a comparative institutional approach to the relationship between law and morality, it challenges the common view that morality stands to law (...) as critical standard to conventional practice. It shows how law and morality interact symbiotically, and how careful study of legal concepts of responsibility can add significantly to our understanding of responsibility more generally. Central to this project is a distinction between two paradigms of responsibility -- the criminal law paradigm and the civil law paradigm. Whereas theoretical discussions of responsibility tend focus on conduct and agency, taking account of civil law reveals the importance of outcomes and the interests of victims and society to ideas of responsibility. The book examines from a distinctively legal point of view central philosophical questions about responsibility such as its relationship with culpability (challenging the common view that moral responsibility requires fault), causation and personality. It explores the relevance of sanctions and problems of proof and enforcement to ideas of responsibility, as well as the relationship between responsibility and distributive justice, and the role of concepts of responsibility in public law. At the heart of this book lie two questions: what does it mean to say we are responsible? and, what are our responsibilities? Its aim is not to answer these questions but to challenge some traditional approaches to answering them and more importantly, to suggest fruitful alternative approaches that take law seriously. (shrink)

Contents: LEGAL THEORY 1. Reflections on law in context / William Twining -- 2. Are omissions less culpable? / Tony Honore -- 3. Scandinavian legal realism in the law of contract / Jan Hellner -- 4. Statutes and contracts as founts of formal reasoning / Robert S. Summers -- 5. Conceptions of public policy / John Bell LEGAL HISTORY 6. Aftermath / Paul D. Carrington -- 7. The role of the judiciary: lessons from the end of empire / Robert Stevens (...) -- 8. The Origins of futures trading in the Liverpool Cotton Market COMMON LAW 9.payment undertakings / Roy Goode -- 10. Pre-contractual duties of disclosure / S.M. Waddams -- 11. Three problems with the new product liability / Jane Stapleton -- 12. Evaluating the goals of personal injury law: some empirical evidence / Donald Harris -- 13. Negligence and economic loss / John Dwyer -- 14. Libel and constitutional free speech / John Fleming -- 15. The basis of tortious liability / Peter Cane. (shrink)

Hannah Arendt’s conception of politics has long invited criticism for potentially turning political action into an exercise in hollow dramatics, both ethically unrestrained and restricted in its practical import. This essay offers a new response to these criticisms while attempting to honor Arendt’s commitment to a form of theorizing that engages politics on its own terms instead of legislating for politics from a perspective of moral philosophy. It does so by explicating an underappreciated aspect of Arendt’s political theory: her claim (...) that action is always inspired and guided by “principles.” Although Arendt fails to offer a sustained account of the significance of principles for politics, I argue that her numerous shorter discussions of principles together yield a robust political ethics and a more nuanced conception of action than many readings of her thought allow. Having reconstructed a fuller account of Arendt’s principles of action, I then examine how she understands these principles to be historically regenerated. (shrink)

This article is about ‘role responsibility’ as understood by H. L. A. Hart in his taxonomy of responsibility concepts in his book, Punishment and Responsibility. More particularly, it focuses on what I call ‘public, institutional role responsibility’. The main arguments are that such role responsibility is based on authority and power rather than physical and mental capacity; and the foundation of role responsibility in authority has significant implications for what Hart referred to as ‘liability–responsibility’, which I unpack in terms of (...) ‘attribution’, ‘accountability’ and ‘liability’. The article addresses possible objections to the authority-based analysis of role responsibility based on the concept of ‘moral’ responsibility, and on understandings of what types of question are ‘philosophical.’. (shrink)

This article adopts what Frederick Schauer calls a ‘non-essentialist’ approach to understanding the nature of law, which can be contrasted with the widely practised method of ‘conceptual analysis’. Instead of seeking a set of necessary conditions for the existence of law in all possible worlds, non-essentialism reflects upon pervasive features of actual legal systems. The article focuses on constitutional and administrative law and contrasts modern standard accounts of public law with HLA Hart’s highly influential threefold list of ‘necessary’ types of (...) public ‘secondary rules’: rules of recognition, change and adjudication. The argument is that non-essentialist methodology not only yields a rich descriptive account of certain fundamental characteristics of modern legal systems but also provides theoretically significant insights into how law is conceived in many contemporary societies. Because the resulting account is firmly rooted in actual social and legal practices, it provides a more fine-grained and less abstract theory of those practices than is offered by Hart’s approach, based as it is on hypothetical stories about how law ‘might have developed’. (shrink)

This work tracks the way in which the notion of the political is presented in certain texts of Ernesto Laclau and On Populist reason.). The aim is to detect the signifiers with which this notion is articulated, different status that are awarded and their linkages to the binomial contingency/necessity. It seeks as well, to offer elements that enrich the political discourse theory as analytical corpus for empirical researches on the constitution of political identities.

The famous mid-20th century debate between Patrick Devlin and Herbert Hart about the relationship between law and morality addressed the limits of the criminal law in the context of a proposal by the Wolfenden Committee to decriminalize male homosexual activity in private. The original exchanges and subsequent contributions to the debate have been significantly constrained by the terms in which the debate was framed: a focus on criminal law in general and sexual offences in particular; a preoccupation with the so-called (...) “harm principle,” a sharp delineation of the realms of law and morality, and a static conception of the relationship between them. This article explores the limitations imposed by these various starting-points and argues for a holistic and symbiotic understanding of the relationship between law and morality. (shrink)

In ethical terms, intention is widely felt to be the strongest basis for the attribution of personal responsibility for conduct and outcomes. By contrast, in tort law intention is a much less important ground of liability than negligence. This article analyses the meaning of intention in tort law and its relationship to other concepts such as voluntariness, recklessness, motive, and belief. It also discusses difficulties associated with proving intention and other mental states, and the idea of a general principle of (...) tort liability for intention. The key to explaining the relatively minor role of mens rea in tort law is found to lie in the emphasis tort law gives to the interests of victims, and to social values, in constructing its concept of responsibility. This approach also helps to explain the greater importance of mens rea in criminal law. (shrink)

The famous mid-20th century debate between Patrick Devlin and Herbert Hart about the relationship between law and morality addressed the limits of the criminal law in the context of a proposal by the Wolfenden Committee to decriminalize male homosexual activity in private. The original exchanges and subsequent contributions to the debate have been significantly constrained by the terms in which the debate was framed: a focus on criminal law in general and sexual offences in particular; a preoccupation with the so-called (...) “harm principle,” a sharp delineation of the realms of law and morality, and a static conception of the relationship between them. This article explores the limitations imposed by these various starting-points and argues for a holistic and symbiotic understanding of the relationship between law and morality. (shrink)

In her recent article, Sofia Näsström argues that the principle of responsibility provides a “normative basis” both for Hannah Arendt’s notion of the right to have right and for modern democracy. In this response, I argue that, while Näsström raises crucial questions regarding the relationships between principles of action, the right to have rights, and the institutionalization of democracy, she does not always recognize the nuance of Arendt’s insight into these questions.

Mené entre septembre 2019 et janvier 2020 par les designers Jürg Lehni et Douglas Edric Stanley au sein du Master Media Design de la Haute École d’Art & Design de Genève (HEAD – Genève), le workshop « Thinking Machines » prend comme point de départ l’automatisation des métiers de la création et le fantasme de machines « pensantes ». Ce projet examine, avec un brin d’ironie, un avenir où les designers seraient en mesure de cultiver les IA et de (...) s’extraire des fantasmes technologiques. En quoi le design pourrait-il contribuer à une critique de la culture dominante de l’IA? Comment inventer, par les pratiques de design, des alternatives soutenables? (shrink)

For any reader needing a concise explanation of a subject in law The New Oxford Companion to Law is the ideal reference work. Providing greater depth than legal dictionaries but always accessible to the non-expert, entries in the Companion cover all areas of law and legal systems and are extensively cross-referenced for ease of navigation.

This volume in the prestigious series of Oxford Handbooks provides a widely accessible overview of legal scholarship at the start of the 21st century. Through 43 essays by leading legal scholars based in the USA, the UK, Australia, New Zealand, Canada and Germany, it offers original and interpretative accounts of the nature, themes and trends of research and writing about all areas of the law.

The art, craft, and science of policing -- Crime and criminals -- Criminal process and prosecution -- The crime-preventive impact of penal sanctions -- Contracts and corporations -- Financial markets -- Consumer protection -- Bankruptcy and insolvency -- Regulating the professions -- Personal injury litigation -- Claiming behavior as legal mobilization -- Families -- Labor and employment laws -- Housing and property -- Human rights instruments -- Constitutions -- Social security and social welfare -- Occupational safety and health -- Environmental (...) regulation -- Administrative justice -- Access to civil justice -- Judicial recruitment, training, and careers -- Trial courts and adjudication -- Appellate courts -- Dispute resolution -- Lay decision-makers in the legal process -- Evidence law -- Civil procedure and courts -- Collective actions -- Law and courts on development and democratization -- How does international law work? -- Lawyers and other legal service providers -- Legal pluralism -- Public images and understandings of courts -- Legal education and the legal academy -- The (nearly) forgotten early empirical legal research -- Quantitative approaches to empirical legal research -- Qualitative approaches to empirical legal research -- The need for multi-method approaches in empirical legal research -- Legal theory and empirical research -- Empirical legal research and policy-making -- The place of empirical legal research in the law school curriculum -- Empirical legal training in the US academy. (shrink)

This article explores the relevance of disagreement about values and about the functions and effects of law to debates concerning the appropriate relationship between courts and legislatures, common law and statute. Recent developments in tort law provide a context for the discussion. The argument is that in general, political processes of law-making should be preferred judicial processes.

Este artículo revisita la crisis argentina de 2001 a través de un análisis de las disputas en torno al significante “crisis” en los discursos de los dirigentes políticos del periodo 1999-2003, desde una perspectiva que articula el pensamiento político posfundacional y el análisis del discurso argumentativo. Como resultado, se identifica allí un proceso desarticulación-rearticulación de consensos sobre lo posible y lo deseable en relación con la propia crisis (causas, alcances, soluciones) y con la configuración del tiempo de lo común (en (...) dos niveles, el de la narrativa histórica y el del tiempo ontológico). Finalmente, se ofrece una clave interpretativa que vincula el proceso de pérdida de legitimidad de la palabra política que caracterizó al periodo con el carácter anti-política que comporta la forma inevitabilista de concebir el tiempo de lo común. (shrink)

This paper suggests that the understanding of the use and the concept of “landscape” can be facilitated by a comparison with Wittgenstein’s language games and that indeed “landscape” functions in a similar way to language games, understood in their intertwinement with forms of life. On this basis, I proceed to outline three fundamental elements of a pragmatist, anti-essentialist conception of landscape and develop two of them schematically. In conclusion, I reflect on some ramifications and possible developments of the proposed perspective.

Key to Gadamer's theory of hermeneutics are notions of translation, conversation, and openness. What is often not known is just how much Gadamer himself embodied those notions in his own practice as a teacher and a friend. In what follows, I speak of how the man I knew Hans-Georg Gadamer to be, illustrated some of the traits of hermeneutic theory that show that such a theory is always a practice of life and an ethical practice. Not a theoretical text but (...) a recollection follows. S. Afr. J. Philos. Vol.21(4) 2002: 223–227. (shrink)

Persons with visual impairments (hereafter PVI) detect and discover obstacles and road conditions by touching with a white cane when walking on the streets. In one training session, an Orientation and Mobility specialist (hereafter SPT) guided a PVI by grasping and moving the cane that the PVI was holding. We conducted a multimodal analysis of two instruction sequences, one a "proving and achieving" demonstration (Sacks in Lectures on conversation, Blackwell, 1992) and the other a "learnable" (Zemel and Koschmann, (...) in Discourse Stud 16:163–183, 2014) demonstration. The achieving demonstration proved the assessment of the PVI's performance. In the "learnable" demonstration, the PVI was able to receive and perform the most critical part of the "learnable" of the long contact touch without the aid of talk. Sharing a single cane touch is an efficient way for both the guiding SPT and the guided PVI to jointly experience and understand the environmental features. The SPT did not need to verbally confirm that the guided touch was accountable to the PVI and seemed confident that intersubjectivity with the PVI had been established. A unique form of being with others and achieving intersubjectivity in society was identified. In traditional learning instruction, it has been assumed that the learnable is presented and communicated visually and audibly. However, through guided touch learnable is presented and conveyed effectively in the cases of this paper. It seems that the sense of touch has been considered to be just for the occasion, but this is an example of something that is not just for the occasion but is consequential, that is, usable for further occasions. The data is in Japanese. (shrink)