Are you a Law student, undergraduate or postgraduate? Would you like to present a short paper or give a presentation on a legal topic of your choice at a colloquium in Trinity College Dublin? If so, then the third annual Law Student Colloquium is for you. Kindly sponsored by Allen & Overy, it will take place in the Graduates’ Memorial Building, TCD (map) and the Law School, TCD (map), on Saturday 19 February 2011. Posts about the previous colloquia are here.

This conference brings together law students from Ireland and abroad to present papers on a wide variety of legal topics. The ethos of the Colloquium is one of re-thinking law. Papers which demonstrate originality, engage with current developments and challenge existing understandings of distinct legal issues are especially welcome.

Law students, both undergraduate and postgraduate, as well as researchers and recent graduates from all institutions, are invited to attend and participate. The Colloquium will consist of several panels on thematic areas of law with individual presentations of approximately fifteen minutes duration. An expert in the relevant area of law will chair each panel. There is some excellent advice here about the art of the conference paper; the article was written for US graduate students but it contains much that will be very helpful indeed for anyone interested in participating in the Colloquium. It will provide an excellent opportunity to explore current and future developments in law, to obtain feedback on your ideas and research, as well to experience presenting and participating at a law conference. There will be prizes for the best undergraduate presentations.

To submit an application to present a paper at the Colloquium, please use the online submission form before 3 December 2010 at 5pm. For answers to queries regarding submissions, please consult the FAQs, or email the Colloquium Committee. Finally, there are detailed regulations here (pdf).

It’s going to be interesting and lot of fun, honest! (And there’s a wine reception at the end). So, what are you waiting for? Fill in that form or send that email now! Indeed, it’s so much fun that even if you are not presenting a paper, you should turn up anyway and enjoy the papers and the fun. Attendance is free, but registration via email will be required.

Earlier this week, I had the great good fortune to attend an enjoyable lecture presented by the, Long Room Hub, Trinity College Dublin. It was

Blasphemy: Historical anachronism or modern crime?

by Professor David Nash, Department of History, Oxford Brookes University, UK. He is the author of Blasphemy in Modern Britain 1789-present (Ashgate Publishing, 1999 | Amazon) and Blasphemy in the Christian World (Oxford University Press, 2007 hbk; 2010 pbk | Amazon | cover left). His talk was in three parts: the historical context; the unhappy fit with current models and theories of human development; and the implications of taking blasphemy seriously again.

First, he used the historical context to illustrate the various reasons for longevity and adaptability of concepts of blasphemy. In ancient Greece, blasphemy consisted of speaking ill of the gods and of disturbing the peace. In early Christian dogma after the Council of Nicea in AD 325, it served to reinforce the virtues of orthodoxy. Medieval Christian Europe saw blasphemy as an element of heresy, but in the 13th century, blasphemy becomes decoupled from heresy, and it evolves into what Nash charaterised as the ‘passive blasphemy’ model, where the definition and enforcement of blasphemy is a matter for the State, seeking to eradicate states of mind and opinion that are dangerous to the community. For a member of the community to know that a blasphemy has taken place is to see a threat to the survival of the community; the individual is in peril from being in the presence of the blasphemer; and to permit it to go unpunished is to court divine retribution. Read the rest of this entry »

Professor Stefan Vogenauer (University of Oxford) (pictured left) will give the winter lecture for the Irish Society of Comparative Law (ISCL) at 5:00pm on Thursday, 11 November 2010, in the Swift Lecture Theatre, Room 2041A Arts Block, Trinity College Dublin (map here). His title is:

The Theory and Practice of Using Comparative Law in the Harmonisation of Private Law: the Case of Release of Contractual Rights.

Professor Vogenauer is Professor of Comparative Law at the University of Oxford, a Fellow of Brasenose College Oxford, and Director of the Oxford Institute of European and Comparative Law (IECL). His research interests lie mainly in the areas of comparative law, private law, international uniform law, European legal history and legal method. For his comparative and historical analysis of the interpretation of statutes in English, French, German and EU law, Die Auslegung von Gesetzen in England und auf dem Kontinent (Verlag Mohr Siebeck, Tübingen 2001, 2 vols), he was awarded the Max Weber Prize of the Bavarian Academy of Sciences and Humanities and the Otto Hahn Medal of the Max Planck Society in 2002, as well as the 2008 Prize of the German Legal History Conference. More recently, the Arts and Humanities Research Council (AHRC) awarded him approximately £350,000 to for a research project on ‘The Common Frame of Reference on European Contract Law in the Context of English and German Law’, which will explore the relationship between the recently published Common Frame of Reference and the contract laws of EU member states, as exemplified by German and English law. His ISCL lecture forms part of this larger work.

The ISCL encourages the comparative study of law and legal systems, and it seeks affiliation with individuals and organisations with complementary aims. As well as organising an annual winter lecture, it organises an annual conference. The next such event will take place at University College Dublin on 29-30 April 2011. The 2012 event will take place on 2-3 March 2012 at University College Cork.

The School of Law, Trinity College Dublin is delighted to present a public lecture entitled

Financial Services Supervision in the EU after the Financial Crisis: The Proposed Role of the European Securities and Markets Authority

by Professor Reyes Palá, Professor of Commercial Law, University of Zaragoza and former deputy Director of the Spanish Securities Exchange Commission (CNMV).

The lecture will take place at 6:00pm next Thursday, 15 July 2010, in the School of Law, TCD (map here), and all are welcome.

Abstract

In the 1980s, the European Community established the pillars of the financial services single market (specially mutual recognition of prospectuses in cases of IPOs and admission to listing, UCITs and a basic financial services legal framework). But the regulation was incomplete, fragmentary and didn’t achieve the freedom of financial services across Europe. At the beginning of the 21st century the Commission promoted an ambitious programme, endorsed by the Council and the Parliament, in the financial services area.
Read the rest of this entry »

I wrote a little while ago about a conference on Restitution of Overpaid Tax, which will be held in Merton College Oxford on the weekend of Friday 9 and Saturday 10 July 2010. Advance copies of the papers for the conference are being published on the new papers page as they become available. The page is password-protected; and delegates who have registered for the conference will be supplied with a password.

Registration for the conference will close on Thursday 24 June 2010 at 5:00pm. If you are interested in attending, please register before then.

At the Irish Jurisprudence Society (IJS) Symposium, the final paper is being delivered by Eoin Daly (UCC) on Non-domination as a primary good: re-thinking the frontiers of the ‘political’ in Rawls’s political liberalism. His main focus is the work of John Rawls, but he also engages with the criticisms of Rawls in John Maynor “Without Regret: the Comprehensive Nature of Non-domination” (2002) 22 Politics 51 and Phillip Pettit Republicanism: A Theory of Freedom and Government (Clarendon Press, Oxford, 1997); and, along the way, there are references to Bentham, Berlin, Hegel and Rousseau. In the end, he presents and defends a radical view of Rawls’s conception of liberty.

How far is state power precluded from certain social realms; conversely, how interventionist can the state be in protecting and supporting liberty? John Rawls seeks to provide answers to this question in A Theory of Justice and in Political Liberalism. On the one hand, principles of “neutrality” supposedly ground the legitimacy of the politically-liberal state. On the other hand, can the emancipatory goals of the republican state, in the guise of the politics of liberty as non-domination, be interpreted as spilling over into a realm of “comprehensive” values? Daly argues that the underlying idea of “justice as fairness” in Rawls work does not necessarily preclude the republican goal of non-domination. In his view, confinement of state power to the realm of the “political” (as Rawls defines it) does not translate into an assiduously non-interventionist, even “neutral” state, where “political” justice is excluded from “non-political” social spheres.

For Daly, under Rawls’s theory, “political” justice may require the state to endow its citizens with a range of capacities and powers that guarantees them the conditions necessary to enable them to pursue and revise their conceptions of the good. In particular, virtues, habits and attitudes may be constitutive of, rather than merely instrumental to liberty. Hence, “political” justice may consistently warrant radical changes across much of citizens’ lives, endowing them with certain resources and capacities, as long as it remains open to the “final ends” towards which these capacities might be directed. As a consequence, Daly argues that Rawls’s theory not only accommodates the premise of non-domination, it also extends beyond it, requiring the development of certain faculties and powers in citizens – not merely as instrumental to non-domination – but such as are necessary to enable them to realise their capacity to have and pursue a conception of the good. From his conclusion:

The anti-perfectionism of Rawlsian liberalism lies not, therefore, in its rejection that liberty may consist in the attainment of self-mastery or self-realisation per se, but in its rejection that liberty consists in the realisation or attainment of any particular set of ends. It is particularly concerned, however – and this is where it extends quite far beyond neo-republicanism in its radical ambition – that we master (“adequately develop”) as well as attain the capacity to pursue and realise indeterminate “final” ends which it itself does not specify. Rawlsian liberalism does not translate as a non-interventionist liberalism that precludes the inculcation of republican virtues, capacities and resources; and these goods in fact enjoy a less obviously instrumental role in this radical project of liberty than they do in neo-republicanism itself.

At the Irish Jurisprudence Society (IJS) Symposium, the fifth paper is being delivered by Thomas Patrick Murray (UCD) on The Politics of Property and Principle: Economic Rights in the Drafting of the Irish Free State Constitution. It is a fascinating use of archival material to underpin a theoretical discussion of the deliberations of the committee drafting the IFS constitution concerning the possibilities of constitutional engineering to create economic constraints and guarantees. In particular, he compares various drafts of various committee members on various issues, and locates their perspectives in their life experiences, religious convictions, and political beliefs. His conclusion is that an initial radical draft of socio-economic rights fell foul of external vested interests and the belief-systems of the majority of the committee.

Murray shows that it is clear from the archives and memoirs that, at the outset, the drafting committee paid significant attention to the economic foundations of the emerging Free State. Although economic freedom was to be secured in the first instance through formal democratic mechanisms, the framers also canvassed a number of binding economic provisions for inclusion. In particular, their focus was upon the principle of economic sovereignty, concerning land (especially farm land) and other natural resources (especially for energy generation) and the right to free elementary education.

Murray the demonstrates that the committee’s sphere of action was quite bounded and indeed subject to influence from outside interests. The main interest of the provisional government was in maintaining social and political order and avoiding controversy. Countervailing economic interests featured too, especially the opposition of the farming lobby to any re-distribution of land. Moreover, the Catholic Church was unhappy with the socio-economic rights proposals, especially the provisions relating to education. The committee therefore kept the constitutional text to the bare minimum to ensure its success; controversial provisions were carefully curtailed; and established interests were assuaged. Murray concluded on this point, then, that, faced with the need to establish the legitimacy of the state, any innovation that might threaten established property-holders or any moral principle that might deny a hierarchical role for the Church was deemed ‘controversial’ and accordingly postponed.

But Muarry goes further. He argues that the members were not only constrained by various social boundaries, they were also necessarily constrained by their own boundaries of thought. In other words, various features of the prevailing discourse facilitated the diminution of the committee’s initial economic provisions. Most members of the committee were in thrall to the assertive Catholic-Nationalist ethos of early twentieth-century Dublin, and this prevailing ‘Irish Ireland’ discourse imposed significant limitations on the possibilities of embedding socio-economic rights in the constitution. Although those few members of the committee from outside of this political culture appear to have been more open to the lived experience of poverty and were more amenable to the substantive promotion of economic rights, their views did not prevail against the established discourse. Murray concluded on this point, then, that the pursuit of ‘Irish Ireland’ amounted to something very like an official othodoxy. Conversely, egalitarian discourses, envisioning a society based on principles of rational-legal equality and interdependent citizenship, came to be suppressed. Consequently, the committee’s initial economic rights proposals greatly watered down; prevailing ‘Irish Ireland’ discuorse meant this was not seen as wrong.

At the Irish Jurisprudence Society (IJS) Symposium, the fourth paper is being delivered by my colleague (and recently-elected Fellow) Dr Oran Doyle (TCD) on True Morality and the No Necessary Connection Thesis.

HLA Hart, in his seminal article “Positivism and the Separation of Law and Morals” 71 Harvard Law Review 593 (1958), famously asserted that there was no necessary connection between law and morality (the No Necessary Connection Thesis: NNC). Discussion of this point has been marred by much confusion, which can be traced to the ambiguous fashion in which Hart referred to “morality” in this article. At its most basic, the word carries two meanings which are best understood by contrasting “moral” with its two antonyms, “immoral” and “amoral”. “Immoral” means something that is contrary to true morality; on the other hand, “amoral” means something that has nothing to do with morality. Conversely, therefore, the word “moral” has two meanings: it can refer to true morality and it can also connote any other assertion about morality. Doyle’s view is that a clearer view on the merits of NNC can be obtained if we limit it to apply simply to true morality and not to asserted morality. Hence, in his view, no legal positivist should be concerned to defend and no natural lawyer should be concerned to rebut NNC if it relates to any assertion about morality. Moreover, on a close reading of Hart, Doyle argues that that NNC as conceived by Hart is concerned to deny necessary connections between law and true morality, not between law and asserted morality:

… although Hart’s various formulations of (NNC) may just about be ambiguous as between true morality and asserted morality, in every context in which he assesses challenges to NNC, his focus is unremittingly on true morality, not asserted morality.

Doyle then looks to the various critiques of NNC, especially Leslie Green and John Gardner. He says that Green, in “Positivism and the Inseparability of Law and Morals” 83 NYU L Rev 1035 (2008), conflates the distinction between true and asserted morality and ascribes this inaccurate conflation to Hart. Gardner, in “Legal Positivism: 5½ Myths” 46 American Journal of Jurisprudence 199 (2001) restates NNC as asserting

In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits (where its merits, in the relevant sense, include the merits of its sources).

Doyle acknowledges that this is probably a better representation of the position held by Hart in his article than is way Hart himself stated NNC, but he points out that Gardner’s reference to “merits” nevertheless ensures that the focus is true morality, as well as other meritorious standards, which is consistent with Hart’s general approach.

He concluded by conceding that, for the purposes of the paper, he assumes that there is a “true morality” but makes no argument as to what its content might be, and he further assumes that it is useful to the concept of true morality in an analytical scheme without necessarily specifying its content.

Against this background, the problems with the analysis of Hart are twofold. First, an ambiguity in our vocabulary about morality has led to a mistaken interpretation and appraisal Hart’s thesis. Second, this ambiguity exacerbated by the tendency for legal positivists committed to NNC to assert that it does not matter – for present purposes – what true morality it is. It is an approach which, Doyle argues, considerably blurs the distinction between true morality and asserted morality and perhaps explains how easy it is in this context to slide between different meanings of the word “morality” without realising it. Nevertheless, Doyle asserted that there are such different meanings, and that it is better to understand NNC as a thesis about true morality.