Here is an introduction to the intellectual challenges presented by law in the western secular tradition. Treating not just British law, but the whole western tradition of law, Professor Honore guides the reader through eleven topics which straddle various branches of the law, including constitutional and criminal law, property, and contracts. He also explores moral and historical aspects of the law, including a discussion of justice and the difference between civil and common law systems. The law, Honore argues, is mainly (...) concerned with the question of obedience to authority, and establishing the situations in which obedience is required and those in which it may be waived ought to be the central concern of all legal theorists. (shrink)

1 Responsibility and self-control................................. 1 Michael Smith 2 The capacity to have done otherwise: an agent-centred view 21 Philip Pettit 3 Private law and private narratives.............................. 37 Arthur Ripstein 4 Honoré on responsibility for outcomes........................ 61 Stephen R. Perry 5 Responsibility and fault: a relational and functional approach to responsibility 81 Peter Cane 6 Obligations and outcomes in the law of torts............... 111 John Gardner 7 Unpacking “causation‘....................................... 145 Jane Stapleton 8 Private law: between visionaries and bricoleurs............... 187 William (...) Lucy 9 Appreciations and responses................................. 219 Tony Honoré Index................................................... 241. (shrink)

Expressing views not easily placed within any one school of opinion, this collection of the papers of Tony Honore reflects the author's contribution, as both critic and participant in debate, to the study of legal philosophy over the last twenty-five years. His wide-ranging essays cover such topics as motivation to conform to the law, norms and obligations, and rights and justice, and conclude with an essay supporting the use of law to encourage or reinforce morality.

An updated and extended second edition supporting the findings of its well-known predecessor which claimed that courts employ common-sense notions of causation in determining legal responsibility.

This is a thoroughly revised edition of the only full-scale work about possibly the most influential lawyer of all time, the Syrian Ulpian. Ulpian wrote a massive survey of Roman law in 213-17 AD and the author argues that his philosophy of freedom and equality make him a pioneer of human rights.

If positivism is interpreted as requiring that nothing is law that does not conform to socially accepted criteria, it is inconsistent with positive law. This is because law purports to be morally in order. Hence it is always possible to argue against a certain interpretation of the law that it is morally indefensible and there is always a certain pressure within a legal system to render it morally defensible. In that way critical morality necessarily becomes a persuasive source of law.

The first text of Justinian’s sixth century Digest records that Ulpian, the leading lawyer from Syria and counsellor to successive emperors of the Severan age (AD 193-235), related the term ‘law’ to four elements: art, religion, ethics and philosophy.2 Law is the art of the good and equitable, of which lawyers can well be called priests. They cultivate justice and the knowledge of right and wrong, and aim, unless Ulpian is mistaken, at the true philosophy.3 He goes on to say (...) that private law is collected from three sources: natural law,4 the law common to all communities (ius gentium) and the law specific to each community (civil law).5 Gaius, a generation earlier, listed two sources: the civil law of each community and the ius gentium.6 He recognized, however, the existence of natural law which, so far as performing a ‘natural obligation’ is concerned, cannot be changed by civil law.7 At times he identifies natural law with ius gentium. (shrink)

This collection of essays, published to coincide with Tony Honore's sixty-fifth birthday, focuses on the areas where Honore's thought has made the most significant contribution: Roman law and jurisprudence. Included are essays by P.S. Atiyah, Zenon Bankowski, John Bell, Peter Birks, John W. Cairs, Hugh Collins, David Daube, W. M. Gordon, J. W. Harris Nicola Lacey, A. D. E. Lewis, Detlef Liebs, G. D. MacCormack, Neil MacCormick, G. Maher, Pieter Norr, Alan Rodger, and Peter Stein.

The author proposes here “the first Romanian attempt at a hermeneutic systematization of the philosophy of European law”, a field that is approached from an organic, integrating perspective. It has to be seen as a synchronic lectio magistralis on the ineluctable role of the spiritual roots when deciphering and assuming national identity. The complicated “euronomosophical” discourse, whose beginning is an excellent page of self-history about the “Europe” of the author, voices an appeal to a deeper self-knowledge. A complex, dynamic reality: (...) from euromyth to euro-oniria and PaxEuropaea. Such incursions into the universe of law certainly involve an instructive and pedagogical side, building a patchwork of ideas, suggestions and themes that could be further developed. (shrink)

Legal philosophers and property scholars sometimes disagree over one or more of the following: the meaning of the word 'property,' the concept of property, and the nature of property. For much of the twentieth century, the work of W.N. Hohfeld and Tony Honoré represented a consensus around property. The consensus often went under the heading of property as bundle of rights, or more accurately as a set of normative relations between persons with respect to things. But by the (...) mid-l 990s, the consensus was under attack. Key figures in the attack were James Penner, a legal philosopher, and Thomas W. Merrill and Henry E. Smith, two highly regarded professors of property law. This article aims to repel the attack and argues for property as a set of normative relations between persons with respect to things. The positive case for this view of property pays special attention to the philosophy of language and the analysis of concepts. The positive case also maintains that the right to use and the power to transfer are as central to property as the right to exclude. It is possible that the virtues of Smith's modular theory of property differ from the virtues of a well-crafted bundle theory. Indeed, it may be the case that these two theories throw light on different features of property law and are not, save at the margin, competitors with each other. The label 'new essentialism' sometimes applied to the work of Penner, Merrill, and Smith seems inapt if property does not have an essence. Of course, they might refuse the label. (shrink)

In a book contribution responding to H.L.A. Hart and Tony Honoré, Judith Jarvis Thomson casts a certain analysis of causation in an attractive light, but says that it unfortunately faces two objections. I draw attention to another objection.

Whereas previous discussions on ownership of biological material have been much informed by the natural rights tradition, insufficient attention has been paid to the strand in liberal political theory represented by Felix Cohen, Tony Honoré, and others, which treats property relations as socially constructed bundles of rights. In accordance with that tradition, we propose that the primary normative issue is what combination of rights a person should have to a particular item of biological material. Whether that bundle qualifies (...) to be called “property” or “ownership” is a secondary, terminological issue. We suggest five principles of bodily rights and show how they can be applied to the construction of ethically appropriate bundles of rights to biological material. (shrink)

The criminal law presently distinguishes between actions and omissions, and only rarely proscribes failures to avert consequences that it would be an offense to bring about. Why? In recent years it has been persuasively argued by both Glover and Bennett that, celeris paribus, omissions to prevent a harm are just as culpable as are actions which bring that harm about. On the other hand, and acknowledging that hitherto “lawyers have not been very successful in finding a rationale for it,” (...) class='Hi'>Tony Honoré has sought to defend the law's differential treatment. He proposes a “distinct-duties theory” that in addition to the general duties we owe to everyone, we also owe distinct duties to a more limited collection of people and associations, specified by features of our relationship with them. Where a distinct duty holds, breach by omission may well be no better than breach by positive action. But absent a distinct duty, omissions, per Honoré, are less culpable. They are mere failures to intervene and improve or rectify things, whereas actions are positive interventions which make things worse. And, thus, the law has good reason to differentiate between them. (shrink)

In their important book, Causation in the Law, H. L. A. Hart and Tony Honore argue that causation in the law is based on causation outside the law, that the causal principles the courts rely on to determine legal responsibility are based on distinctions exercised in ordinary causal judgments. A distinction that particularly concerns them is one that divides factors that are necessary or sine qua non for an effect into those that count as causes for purposes of legal (...) responsibility and those that do not. Hart and Honore claim that this distinction is often one of fact rather than of legal policy, and that the factual basis is to be found in the ordinary distinction we draw between causes and 'mere conditions'. If this claim is correct, we may hope to illuminate the legal distinction by articulating the principles behind the ordinary one. This is a challenging task since, as in the case of most cognitive skills, we are far better at making particular judgments than we are at stating the general principles that underlie them. Hart and Honore devote the first part of their book to this difficult task. We have, then, two large projects. One is to articulate our ordinary notion of causation, especially the distinction between cause and mere condition. This is the project of constructing an 'ordinary model'. The other is to argue for what we may call the 'shared concept claim', the claim that the concept of legal cause is based on the ordinary notion of causation, that 'causal judgments, though the law may have to systematize them, are not specifically legal. They appeal to a notion which is part of everyday life' (1985, p. lv; all references to follow are from this edition). This essay will focus on Hart and Honore's ordinary model, rather than on their shared concept claim. In my judgment, Hart and Honore's case for some version of the shared concept claim is strong, so they are right to maintain that a better understanding of our ordinary notion of.. (shrink)

The traditional, intuitively appealing, test for causation in tort law, known as 'the but-for test' has been subjected to what are widely believed to be devastating criticisms by Tony Honore, and Richard Wright, amongst others. I argue that the but-for test can withstand these criticisms. Contrary to what is now widely believed. there is no inconsistency between the but-for test and ordinary language, commonsense, or sound legal principle.

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)

Drawing on a social construction theory of ownership in biological material this paper discusses which differences in biological material might motivate differences in treatment and ownership rights. The analysis covers both the perspective of the person from whom the material originates and that of the potential recipient. Seven components of bundles of rights, drawing on the analytical tradition of Tony Honoré, and their relationship to various types of biological material are investigated. To exemplify these categories the cases of (...) a heart, a kidney, stem cells and hair are used. (shrink)

H. L. A. Hart’s (1907-1992) influence on contemporary philosophy is not restricted to the philosophy of law. As the book’s sub-title suggests and the table of contents confirm, he wrote widely on matters social, political and moral, not just legal. Probably best known for The Concept of Law (1961), Hart also authored a collection of essays on Jeremy Bentham (Essays on Bentham,1982), two books on the morality of criminal law based on his exchange with Lord Patrick Devlin (Law, Liberty and (...) Morality, 1963) and The Morality of the Criminal Law, 1965), one on punishment (Punishment and Responsibility, 1968), a treatise as well as a collection of essays on jurisprudential theory (Definition and Theory in Jurisprudence, 1953, and Essays in Jurisprudence and Philosophy, 1983), and finally a volume on legal causation, co-authored with Tony Honoré (Causation in the Law, 1959). The book under review here, on Hart’s legacy, is divided into six sections: the first is devoted to Hart’s general jurisprudential theory; the second to his writings on criminal law; the third to legal causation; the fourth to concerns of justice; the fifth to legal, political and moral rights; and the sixth and final section to matters of toleration and liberalism. (shrink)

Gratitude to others is typically understood as a response to good things people give to us or do for us. Occasionally, though, we thank people for things other than gifts or actions. We sometimes thank people for being there for us, for instance, or for loving us, or for being good parents or teachers, or for believing in us. In this article, I develop a set of considerations to help determine whether gratitude to others for being, loving, or believing can (...) be fitting in any of these cases. I begin by arguing that when it is appropriate for a beneficiary thank a benefactor for ϕ-ing, the beneficiary’s gratitude to the benefactor for ϕ-ing is fitting only insofar as the benefactor ϕ-ed out of benevolence, care or concern for the beneficiary. I then show that thanking can express attitudes other than gratitude, thereby highlighting the thanks-gratitude fallacy: the mistake of inferring the fittingness of one person’s gratitude to another from the fact that it would be reasonable for the former to thank the latter. These considerations imply that gratitude for being there for us, gratitude for believing in us, and gratitude for being a good professional can sometimes be fitting, while gratitude for loving us and gratitude for being a good intimate generally are not. (shrink)

ABSTRACT Issues concerning the putative perception/cognition divide are not only age-old, but also resurface in contemporary discussions in various forms. In this paper, I connect a relatively new debate concerning perceptual confidence to the perception/cognition divide. The term ‘perceptual confidence’ is quite common in the empirical literature, but there is an unsettled question about it, namely: are confidence assignments perceptual or post-perceptual? John Morrison in two recent papers puts forward the claim that confidence arises already at the level of perception. (...) In this paper, I first argue that Morrison’s case is unconvincing, and then develop one picture on perceptual precision with the notion of ‘matching profile’ and ‘supervaluation’ : 481–495.), highlighting the fact that this is a vagueness account, which is similar to but importantly different from indeterminacy accounts : 156–184.). With this model in hand, there can be rich resources with which to draw a theoretical line between perception and cognition. (shrink)

In this paper, we introduce and defend the recurrent model for understanding bodily spatial phenomenology. While Longo, Azañón and Haggard (2010) propose a bottom-up model, Bermúdez (2017) emphasizes the top-down aspect of the information processing loop. We argue that both are only half of the story. Section 1 intro- duces what the issues are. Section 2 starts by explaining why the top- down, descending direction is necessary with the illustration from the ‘body-based tactile rescaling’ paradigm (de Vignemont, Ehrsson and Haggard, (...) 2005). It then argues that the bottom-up, ascending direction is also necessary, and substantiates this view with recent research on skin space and tactile field (Haggard et al., 2017). Section 3 discusses the model’s application to body ownership and bodily self-representation. Implications also extend to topics such as sense modality individuation (Macpherson, 2011), the constancy- based view of perception (Burge, 2010), and the perception/cognition divide (Firestone and Scholl, 2016). (shrink)

BackgroundThe Health Research Council of New Zealand is the first major government funding agency to use a lottery to allocate research funding for their Explorer Grant scheme. This is a somewhat controversial approach because, despite the documented problems of peer review, many researchers believe that funding should be allocated solely using peer review, and peer review is used almost ubiquitously by funding agencies around the world. Given the rarity of alternative funding schemes, there is interest in hearing from the first (...) cohort of researchers to ever experience a lottery. Additionally, the Health Research Council of New Zealand wanted to hear from applicants about the acceptability of the randomisation process and anonymity of applicants.MethodsThis paper presents the results of a survey of Health Research Council applicants from 2013 to 2019. The survey asked about the acceptability of using a lottery and if the lottery meant researchers took a different approach to their application.ResultsThe overall response rate was 39%, with 30% from applicants in the years 2013 to 2018, and 68% for those in the year 2019 who were not aware of the funding result. There was agreement that randomisation is an acceptable method for allocating Explorer Grant funds with 63% in favour and 25% against. There was less support for allocating funds randomly for other grant types with only 40% in favour and 37% against. Support for a lottery was higher amongst those that had won funding. Multiple respondents stated that they supported a lottery when ineligible applications had been excluded and outstanding applications funded, so that the remaining applications were truly equal. Most applicants reported that the lottery did not change the time they spent preparing their application.ConclusionsThe Health Research Council’s experience through the Explorer Grant scheme supports further uptake of a modified lottery. (shrink)

Street art is an art form that entails creating public works incorporating the street physically and in their meaning. That physical property is employed as an artistic resource in street art raises two questions. Are street artworks necessarily illegal? Does being illegal change the nature of production and aesthetic appreciation? First, I argue street artworks must be in the street. On my view, both the physical and sociocultural senses of the street can be constitutive of meaning. Second, I argue that (...) illegality is a prototypical and paradigmatic feature of street art. While illegality alone does not make works better than sanctioned street art, it affects the production process and changes what is available to appreciate. (shrink)

Conceived through collaboration by activist academics from Israel and Northern Ireland, this book draws from experience to offer practical and theoretical insights and programs for promoting activist pedagogy for shared learning and shared life in divided societies.

There have recently been various empirical attempts to answer Molyneux’s question, for example, the experiments undertaken by the Held group. These studies, though intricate, have encountered some objections, for instance, from Schwenkler, who proposes two ways of improving the experiments. One is “to re-run [the] experiment with the stimulus objects made to move, and/or the subjects moved or permitted to move with respect to them” (p. 94), which would promote three dimensional or otherwise viewpoint-invariant representations. The other is “to use (...) geometrically simpler shapes, such as the cube and sphere in Molyneux’s original proposal, or planar figures instead of three-dimensional solids” (p. 188). Connolly argues against the first modification but agrees with the second. In this article, I argue that the second modification is also problematic (though still surmountable), and that both Schwenkler and Connolly are too optimistic about the prospect of addressing Molyneux’s question empirically. (shrink)

Peer review is embedded in the core of our knowledge generation systems, perceived as a method for establishing quality or scholarly legitimacy for research, while also often distributing academic prestige and standing on individuals. Despite its critical importance, it curiously remains poorly understood in a number of dimensions. In order to address this, we have analysed peer review to assess where the major gaps in our theoretical and empirical understanding of it lie. We identify core themes including editorial responsibility, the (...) subjectivity and bias of reviewers, the function and quality of peer review, and the social and epistemic implications of peer review. The high-priority gaps are focused around increased accountability and justification in decision-making processes for editors and developing a deeper, empirical understanding of the social impact of peer review. Addressing this at the bare minimum will require the design of a consensus for a minimal set of standards for what constitutes peer review, and the development of a shared data infrastructure to support this. Such a field requires sustained funding and commitment from publishers and research funders, who both have a commitment to uphold the integrity of the published scholarly record. We use this to present a guide for the future of peer review, and the development of a new research discipline based on the study of peer review. (shrink)

This study draws on semistructured interviews with 19 white, rural, straight-identified men who have sex with men to understand how they perceive their gender and sexuality. It is among the first to use straight men’s own narratives, and helps address the underrepresentation of rural masculinities research. Through complex interpretive processes, participants reworked non-normative sexual practices—those usually antithetical to rural masculinities—to construct normative masculinity. Most chose other masculine, white, and straight or secretly bisexual men as partners for secretive sex without romantic (...) involvement. By choosing these partners and having this type of sex, the participants normalized and authenticated their sexual encounters as straight and normatively masculine. The participants engaged in bud-sex, a specific type of male–male sex that reinforced their rural masculinity and heterosexuality. The married men framed sex with men as less threatening to marriage than extramarital sex with women, helping to preserve a part of their lives that they described as central to their straightness. The results highlight the flexibility of heterosexuality; the centrality of heterosexuality to normative rural masculinity; how similar sexual practices carry different meanings across contexts and populations; and the social construction of masculinities and sexualities by age, race, gender, time period, and place. (shrink)