IJS Winter Workshop series 2008 abstracts


16 October 2008, TCD Law School, 7pm.

Desmond Clarke, ‘Causality, Common Sense and the Law’

There is no agreed ‘common sense’ or ‘ordinary language’ concept of causality that is adequate to the complexity of cases that come before the courts today, and whose resolution often depends on scientific or medical evidence. Rather than attempt to define what is meant by ‘the common-sense concept’ of causal connection and apply that to tort cases, therefore, the law should request explanations that reflect the complexity of the expert medical or scientific evidence on which it relies. The concept of cause has been inherited from two millennia of conceptual history, just like the concept of a mind. Attempts to define ‘cause’ are as unhelpful to the law, and for the same reasons, as definitions of ‘the mind’ are to the diagnosis and treatment of psychiatric illnesses.


13 November 2008, TCD Law School, 7pm.

Brian Flanagan, ‘The Rule as Point of Reference: Defeasibility and Intention’

There is no agreement on the role text plays in determining the solutions to legal disputes, or if it has one at all. This paper attempts two things: to present a rationalist argument for the conclusion that no enactment’s semantic meaning is decisive of a legal outcome; and to clarify the grounds for the conjecture that an enactment may convey information by conscious reference to which judges may decide outcomes. In favour of the argument for the first claim is that it doesn’t depend on the success of pragmatic linguistic theory. But a full defence of the second must await a clear refutation of skepticism about fully justified rule-following. Finally, the paper demonstrates the potential advantages of including the first claim in rationalist accounts of legal reasoning, principally, in its dissolution of the problem of explaining how interpreters have legal power to revise ostensibly controlling legal rules.


27 November 2008, TCD Law School, 7pm.

Garrett Barden, ‘The Nature and Function of Civil Law (ius civile)

From Gaius, Inst.i.1:

(1 On state* and natural law [iure])** All people who are governed by laws [legibus] and customs [moribus], use law [iure] which is partly theirs alone and partly shared by all mankind. The law [ius] which people makes for itself is called ‘state law’ [ius civile] , the law [ius] peculiar to that state. But the law [ius] which natural reason makes for all mankind is applied in the same way everywhere. It is called the ‘law of all peoples” [ius gentium] because it is common to all nations. The law [ius] of the Roman people is also partly its own and partly common to all mankind. Which parts are which we will explain below.

The Institutes of Gaius, trans. Gordon and Robinson, Duckworth, London, 1988

* Gordon and Robinson translate ‘ius civile’ by ‘state law’.

** The title within round brackets is thought to be a later addition.

Cf.Justinian, Inst. I.II.1;I.II.11; Cicero, De Officiis III.23 & 69.


4 December 2008, TCD Law School, 7pm.

Paul Brady, ‘Evaluation and Legal Theory: Can jurisprudence insulate itself from questions of moral philosophy?

“Political science is suffering from a difficulty that originates in its very nature as a science of man in historical existence. For man does not wait for science to have his life explained to him, and when the theorist approaches social reality he finds the field pre-empted by what may be called the self-interpretation of society. Human society is not merely a fact, or an event, in the external world to be studied by an observer like a natural phenomenon. Although it has externality as one of its important components, it is as a whole a little world, a cosmion, illuminated with meanings from within by the human beings who continuously create and bear it as the mode and condition of their self-realization.” Eric Voegelin, The New Science of Politics: An Introduction (1952).

In considering the consequences of Voegelin’s observations for legal theory this paper looks at the debate between Raz and Finnis over methodology in jurisprudence and argues in favour of the position staked out in Chapter 1 of Finnis’s book Natural Law and Natural Rights.

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