Promoting the Study of Jurisprudence in Ireland

Workshop: Patrick O’Brien

The first session of the IJS Spring/Summer Workshop Series 2010 is on Thursday, 1 April at 7pm in Trinity College Dublin Law School (Room 11 in House 39).

Mr Patrick O’Brien, Doctoral Candidate, St. John’s College, Oxford, will present his paper: “The Democratic Objection to Judicial Review: Problems with Waldron’s Account”

Symposium at UCC, 17 April 2010

Below are the speakers and paper titles for the IJS/UCC Law Faculty Symposium on Jurisprudence and Legal Theory at University College Cork on Saturday, 17 April 2010. The schedule and running order will be confirmed shortly. The Symposium will be free to attend. Please register your interest in attending with the Symposium’s Convenor, Dr Maria Cahill <maria.cahill@ucc.ie>

* * IJS Symposium on Jurisprudence and Legal Theory, 17 April, UCC * *

Dr Shane Kilcommins, “The Security State and Constitutional Justice: the dangers of ignoring a ‘rights-based conception of the Rule of Law’ that ensures that ‘the majority cannot travel as fast or as far as it would like’”

Mr John McGroarty, “The International Judge at the ECtHR: politics, the judiciary and the advancement of human rights jurisprudence”

Dr Darren O’Donovan, ”The Role of Rights in Furthering Democratic Decision-Making: The Fruitful Conflict between Deliberative Democrats and Critical Race Theorists”

Dr Seán Patrick Donlan, ‘“The drunkenness of things being various”: legal theory in historical and comparative perspective’

Dr Oran Doyle, ”True Morality and the No Necessary Connection Thesis”

Mr Thomas Patrick Murray, ”The Politics of Property and Principle: Economic Rights in the Drafting of the Irish Free State Constitution”

Mr Eoin Daly, ’The relationship between law and liberty in Rawls’ political liberalism and Pettit’s neo-republicanism: re-locating the frontiers of the “political.”’

Donal Coffey’s workshop

Donal Coffey, PhD Candidate, UCD presents his paper “Distributive Justice and the Separation of Powers” at the fourth and final IJS workshop of the Winter 2009 series.

This workshop is at 7pm, 10 December 2009, House 39, Trinity College Dublin.

William Phelan’s workshop

The third session of the IJS Winter Workshop Series 2009 is on Thursday, 26 November at 7pm in TCD Law School (Room 11 in House 39).

Dr William Phelan, Lecturer in Political Science, TCD will present his paper:

“The Practical Irrelevance of National Constitutional Law Fundamental Rights to the application of European Community law in the National Legal Orders”

Eoin Daly’s Workshop

The IJS Winter Workshop Series 2009 continues at 7pm, 12 November 2009, Law School, Trinity College Dublin with Mr Eoin Daly, University College Cork, presenting:

“Religious liberty and the Rawlsian idea of legitimacy: the French laïcité project between comprehensive and political liberalisms”

Abstract:

Kahn has argued that the French laïcité project has degenerated, in some of its recent manifestations, into an illiberal public commitment to a “comprehensive” doctrine of enlightened or emancipated autonomy. He suggests that it can instead be conceived in a Rawlsian “procedural” or deontological sense, a concept of right derived independently of “comprehensive” conceptions of the good life –thus, merely an institutional appendage to liberty of conscience, distinct from any deeper social goal. This attempt at separating out “political” and “comprehensive” secularisms is best viewed through the prism of the headscarved schoolgoer whom the  liberal state deems un-free. Can such a state intervene to ensure the autonomy of its child-citizens with regard to comprehensive doctrines, or is this to impose a “comprehensive” or “teleological” conception of the emancipated rational life, freely lived? Is this autonomy of conscience distinguishable from a conception of the good life, merely a necessary guarantee of self-determination as a political conception – or is this distinction even viable? The figure of the headscarved adolescent ostensibly challenges the very Rawlsian assumption that the State’s claim to neutrality between comprehensive doctrines can transcend or stand outside these doctrines, and represent anything other than an ends-oriented project of liberal emancipation. This arises because, on one view, the State must, in order to guarantee schoolchildren freedom to choose between ways of life, paradoxically first impose such a particular conception, of emancipation or rational autonomy. However, this article suggests that despite its initial allure, the dualism of “political” and “comprehensive” secularisms is not the best lens through which to critique the French laïcité project.

Brian Flanagan’s workshop

The IJS’s 2009 Winter workshop series got underway on 29 October with Brian Flanagan, University College Dublin, presenting:

“Abstract Legislative Intentions: A Positivist Cure for the Semantic Sting?”

Winter Workshop Series 2009 line up

29 October 2009
Mr Brian Flanagan, PhD Candidate, UCD
“The Attribution of Abstract Legislative Intentions: A Positivist Cure
for the Semantic Sting?”
A number of legal theories insist, or concede, that in mature legal systems there may be a legally determined outcome to virtually every case.  Some contemporary authors, among them Ronald Dworkin and Nicos Stavropoulos, have made use of the phenomenon of legal disagreement in defending this claim about legal determinacy. These scholars have also made use of the phenomenon in developing their primary criticism of legal positivism. The criticism is known as the ‘semantic sting’ and purports to offer a fatal challenge to descriptive understandings of law. This paper explores the possibility of a positivist response to the criticism that starts by making some concessions to legalist theory. Specifically, we consider acceptance of the legalist characterization of theoretical legal disagreement as genuine and interesting, and of a key premise in one of the legalist arguments for strong legal determinacy – that enactors may hold abstract legislative intentions in virtue of which, legal outcomes, such as the historic decisions of the Warren Court of the United States, are legally determined. These concessions in place, a response will be developed which deflects charges of incoherence without committing the positivist to acknowledging the success of legalist arguments for strong legal determinacy with respect to any particular jurisdiction or enactment. The alternative outlined in the essay aims to concede enough to disarm legalist critics of positivism’s coherence while permitting the positivist to continue to deny the application of theories of strong legal determinacy to a range of cases of central interest to the legalist.

* * * * * * * * * * * * * * * * * * * * * * * * * *
12 November 2009
Mr Eoin Daly, PhD Candidate, UCC
“Is Rawlsian secularism even possible? Tensions between emancipation
and deontology within the laïcité project.”

Pierre Kahn has eloquently argued that the French laïcité project has degenerated, in some senses, into an illiberal public commitment to a comprehensive doctrine of enlightened, emancipated autonomy. He suggests that it should instead be conceived in a Rawlsian deontological sense, a concept of right derived independently of comprehensive conceptions of the good life, and thus purely as an institutional appendage to liberty of conscience. This stance is confronted, however, by the headscarved adolescent whom the liberal secular state deems un-free. Can such a State intervene to ensure the autonomy of its child citizens with regard to comprehensive doctrines, or is this to impose a teleological conception of the emancipated rational life, freely lived? Is this autonomy of conscience indistinguishable from a particular conception of the good life, or merely reflective of a deontological commitment to the priority of the abstracted subject over its contingent ends? The headscarved adolescent thus presents a sharp challenge to the Rawlsian assumption that the State’s claim to neutrality between comprehensive doctrines can itself stand outside these doctrines, and maintain openness towards commitments which individuals might choose. This paper examines three critics of Rawlsian deontology, Barry, Sandel and Pena-Ruiz, who each takes aim in different ways at the idea that liberal secularism can be anything other than an ends-oriented project of individual emancipation. Their claims are fortified by the figure of the religiously-encumbered adolescent in the liberal state; because for the State to guarantee autonomy of conscience to such persons, it must first prefer a particular type of emancipated lifestyle, in such a manner as arguably punctures the deontological pretence. However, this dilemma, it is argued, is less sharp than is typically suggested. The headscarved adolescent is not fatal to the deontological conception of secularism insofar as this normative project is tethered to a rights-based rationale which is confined to very specific, limited interventions in the very peculiar context of public education. Although the current form of the laïcité project has probably discarded its liberal essence, it is at least possible that the State may restrain certain types of religious behaviour in this context without preferring secular ways of life, or establishing a comprehensive doctrine of secularism.

* * * * * * * * * * * * * * * * * * * * * * *
26 November 2009
Dr William Phelan, Lecturer in Political Science, TCD
“The Near Irrelevance of National Constitutional Law Human Rights to
the application of European Community law in the National Legal
Orders”

* * * * * * * * * * * * * * * * * * * *

10 December 2009
Mr Donal Coffey, PhD Candidate, UCD
“Distributive Justice and the Separation of Powers”

* * * * * * * * * * * * * * * * * * * * * * * * * *

Papers will be circulated several days before they are to be
presented. All workshops take place in the Law School at TCD (House 39,
which is roughly at the centre of Trinity campus). Workshops commence at
7pm.

Lecture by Professor Robert Moffat

Trinity College Law School and the Irish Jurisprudence Society jointly hosted a lecture by Professor Robert Moffat on Monday 25 May 2009.

Professor Moffat’s lecture was entitled:

“Hitler, Hart, and Fuller: The Challenges of Doing Evil Lawfully”

Professor Moffat is Professor of Law and Affiliate Professor of
Philosophy at University of Florida’s Fredric G. Levin College of Law.

The lecture took place at 7pm in Room 11 in Trinity College Dublin
Law School, House 39 on Monday 25 May.

Gerard Casey’s workshop

The IJS Spring Workshop Series 2009 concludes with Professor
Gerard Casey
, Senior Lecturer in Philosophy, University College
Dublin, presenting his paper:

“Constitutions of No Authority: Spoonerian Reflections”

The workshop will take place at 7pm on Thursday, 30 April. The venue
will be Room 11 in Trinity College Dublin Law School, House 39,
Trinity Campus

Maria Cahill’s workshop

The IJS Spring Workshop Series 2009 continues this week with Dr Maria
Cahill
, Lecturer in Law, University College Cork, presenting her
paper:

“Searching for the Meaning of Constitutional Endeavour”

The workshop will take place at 7pm on Thursday, 16 April. The venue
will be Room 11 in Trinity College Dublin Law School, House 39,
Trinity Campus.

The session will follow the usual format of IJS workshops. That is,
presentation of the paper (up to 40 minutes) followed by discussion.