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.

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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.

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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”

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

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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.

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