Dean of the Faculty and Professor of Legal Philosophy
Timothy Endicott has been Dean of the Faculty of Law since October 2007. He is a Fellow in Law at Balliol College, and has been a Professor of Legal Philosophy since 2006. Professor Endicott writes on Jurisprudence and Constitutional and Administrative Law, with special interests in law and language and interpretation.
He is the author of Vagueness in Law (OUP 2000), and Administrative Law (OUP 2009). After graduating with the AB in Classics and English, summa cum laude, from Harvard, he completed the MPhil in Comparative Philology in Oxford, studied Law at the University of Toronto, and practised as a litigation lawyer in Toronto. He completed the DPhil in legal philosophy in Oxford in 1998.
TAO Endicott, 'Form and substance in the rule of law' (2010) Per Incuriam (the Cambridge University law students’ magazine) 23 [...]
A contribution to a debate with Professor T.R.S.Allan about the rule of law.
TAO Endicott, 'Habeas Corpus and Guantanamo Bay: A View from Abroad' (2010) 50 American Journal of Jurisprudence 1
I respond to Nigel Simmonds’ book Law as a Moral Idea (2008) by asking four questions, and offering tentative answers to them: Is politics a moral idea? Is there any such thing as law making? Is there a right answer to every legal dispute? What justifies a judicial decision? The theme of this exercise is that Simmonds is right to call law a ‘moral idea’, and that implies a connection between law and a moral ideal; but there is also a necessary connection between law and the morally non-ideal.
TAO Endicott, 'What Human Rights Are There, if Any, and Why?' (2010) 23 Studies in Christian Ethics 172
TAO Endicott, 'Adjudication and the Law' (2007) 27 Oxford Journal of Legal Studies 311
TAO Endicott, 'Interpretation, Jurisdiction, and the Authority of Law' (2007) 6 American Philosophical Association Newletter 14 [...]
People can be autonomous, if they are subject to authority. In particular, they can be autonomous if they are subject to the authority of law. I defend the first claim through a study of Joseph Raz’s compelling account of authority; I claim that his work leads to the conclusion that autonomous judgment is needed to determine the jurisdiction of an authority, and to interpret its directives. I defend the second claim by arguing (contrary to remarks by Raz) that law does not claim unlimited jurisdiction, and need not claim unlimited scope for its directives. But the requirements of the rule of law create a standing risk that the law will not adequately recognize the autonomy of its subjects, because of its artificial techniques for controlling its own jurisdiction and for controlling the scope of its own directives.
TAO Endicott, 'The Subsidiarity of Law and the Obligation to Obey' (2005) 50 American Journal of Jurisprudence 233 [...]
Law is a morally valuable institution, because every community with a legal system has valuable institutional facilities to coordinate the life of the community in a way that is general and systematic. In every legal system, the value of those facilities yields a moral obligation to obey some laws. But the law’s role in guiding conduct is subsidiary to the responsibility to act with a principled attention to the good of persons, and human law by nature is arbitrary in its application in some cases. The combination of its arbitrariness and its subsidiary role mean that there is no general obligation to obey the law.
TAO Endicott and others, 'Vagueness in the Scope of Copyright' (2005) 121 Law Quarterly Review 657 [...]
The extravagant vagueness in the scope of copyright protection is not itself a defect in the law. But it gives appellate courts a responsibility to articulate principles to guide decision-makers in resolving copyright disputes. And it gives rise to a special need for an adjudicative process that will serve the purposes of copyright protection.
A contribution to a symposium on the topic, "Law's Moral Foundations: Has it any?" I argue that it is only possible to identify the content of the ideal of the rule of law by making evaluative judgments as to which aspects of a community's life (and in particular, which aspects of official conduct) ought to be ruled by law. Because all legal systems attain the ideal of the rule of law to some extent, that need for evaluative judgment constitutes a necessary connection between law and morality.
TAO Endicott, 'Significado internacional\': la cortesia en la adjudicacion de derechos fundamentales' (2002) Anuario de Derechos Humanos 81 [...]
Spanish translation of '"International Meaning": Comity in Fundamental Rights Adjudication'.
Responds to Ronald Dworkin's claim that what he calls the "model of rules" cannot account for controversy over legal rights and duties. I give an account of social rules that explains why such controversy is common, and can be deep. So controversy gives no reason to reject the model of rules. [there is a reply by Ronald Dworkin at p.263 of the issue].
Argues that some important problems in legal interpretation can be resolved with three techniques that John Finnis used in Natural Law and Natural Rights to address a methodological problem in jurisprudence: (1) The analogy principle: The application of a word such as “friendship” or “law” is not based on a set of features shared by each instance, but is based on similarities of a variety of kinds, seen by the people who use the words as justifying the extension of the word. (2) The paradigm (or central case) principle: You cannot understand a word like “friendship” or “law” without seeing what counts as a good instance of friendship or law. (3) The context principle:What counts as a good instance depends on the context in which the word is to be used, and on the concerns and purposes which justify the use of the word.
Every legal system needs vague laws, because precision always brings a form of arbitrariness. The arbitrariness of precision sometimes gives lawmakers reason to make vague laws, and gives judges reason to give vague effect to precisely formulated laws. In any case, it is impossible for all the laws of a legal system to be precise.
Preface to a symposium on vagueness in law.
TAO Endicott, 'Raz sulle lacune: una tesi sorprendente' (2001) 6 Ars Interpretandi 367 [...]
Italian translation (by Aldo Schiavello) of a book chapter that is forthcoming in 'Rights, Culture, and the Law — Essays After Joseph Raz', edited by Thomas Pogge, Lukas Meyer, and Stanley Paulson, Oxford University Press.
TAO Endicott, '\"International Meaning\": Comity in Fundamental Rights Adjudication' (2001) 13 International Journal of Refugee Studies 280 [...]
Discusses requirements of comity between courts of different nations that are party to the Geneva Convention on the Status of Refugees; argues that comity does not require deference to authorities in other countries. Addresses possible reasons for establishing an international tribunal.
TAO Endicott, 'The Impossibility of the Rule of Law' (1999) 19 Oxford Journal of Legal Studies 43101
An invited contribution to a special issue on Hart’s ‘Postscript’ to The Concept of Law
TAO Endicott, 'Questions of Law' (1998) 114 Law Quarterly Review 292 [...]
TAO Endicott, 'Vagueness and Legal Theory' (1997) 3 Legal Theory 37
TAO Endicott, 'Putting Interpretation in its Place' (1994) 13 Law and Philosophy 451
TAO Endicott, 'The Conscience of the King: Christopher St. German, Thomas More, and the Development of English Equity' (1989) 47 University of Toronto Faculty of Law Review 549
TAO Endicott, Administrative Law (2nd edn, OUP 2011)
TAO Endicott, Palabras y reglas: Ensayos en filosofía del derecho (Distribuciones Fontamara 2004) [...]
‘Words and Rules: Essays in philosophy of law’; a collection of essays translated into Spanish by Pablo Navarro and Rodrigo Sanchez Brígido
TAO Endicott, Vagueness in Law (Oxford University Press 2000)
TAO Endicott, 'The Generality of Law' in Luís Duarte Almeida, Andrea Dolcetti, James Edwards (eds), Reading The Concept of Law (Oxford University Press 2013) (forthcoming) [...]
Chapter 2 of The Concept of Law is an accidental essay on the generality of law. Hart points out ways in which generality is a necessary feature of law. I point out ways in which his account can be made more complete, and I argue that law necessarily involves particularity as well as generality. Then I ask what ‘necessary’ means in all these claims. It is a popular idea that legal theorists should not try to identify necessary features of law; I argue that the popular idea is a mistake. I conclude by arguing that Hart should have been more willing to pass value judgments about law: the elucidation of the necessary features of law depends on an elucidation of the value of law.
TAO Endicott, 'Legal Interpretation' in Andrei Marmor (ed), The Routledge Companion to Philosophy of Law (Routledge 2012) [...]
Interpretation is a creative reasoning process of finding grounds for answering a question as to the meaning of some object. Deciding what is to be done according to law sometimes takes interpretation. But no need for interpretation arises, if no question arises as to the meaning of an object. And interpretation will not help to resolve a legal problem that does not depend on a conclusion as to the meaning of some object. Legal reasoning is not generally a matter of interpretation. I argue that each of the following aspects of legal reasoning need not involve interpretation: resolving indeterminacies as to the content of the law, working out the requirements of abstract legal provisions, deciding what is just, equitable interference with legal duties or powers or rights, and understanding the law.
After explaining two respects in which law is reflexive, this chapter points out that vagueness in law is typically extravagant, and that extravagant vagueness is a necessary feature of legal systems. Some philosophers of law and philosophers of language claim that bivalence is a property of statements in the domains that concern them; the chapter argues that the bivalence claim should be rejected. In philosophy of law, the motivation underlying the bivalence claim is an urge to assert the principle that the law must be capable of standing against arbitrary use of political power. The chapter seeks to articulate that principle in a way that is compatible with the possibility of indeterminacy in the application of vague laws.
TAO Endicott, '‘The Logic of Freedom and Power’ ' in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Oxford University Press 2010) [...]
A state is sovereign if it has complete power within its political community, and complete external freedom. It may seem that the idea of sovereignty is incoherent, or that sovereignty is objectionable, because of a paradox and two moral principles. The paradox is that a sovereign state must be capable of binding itself and also must not be capable of binding itself. The moral principles are that no state can justly have complete freedom internally, and that a state ought to be bound in international law by rules that it has not agreed to, such as norms of ius cogens. I argue that the paradox is only apparent, and that the moral principles are compatible with state sovereignty. So the idea of sovereignty is a coherent idea, and sovereignty is a potentially valuable feature of states in international law. Sovereignty is to be understood as internal power and external freedom that are complete for the purposes of a good state.
TAO Endicott, 'I diritti umani sono davvero universali? (‘Are human rights really universal?\\\')' in Tecla Mazzarese and Paola Parolari (eds), Diritti fondamentali: le sfide del nuovo millennio (G. Giappichelli Editore, Torino 2009)
TAO Endicott, 'The Infant in the Snow' in Timothy Endicott, Joshua Getzler, and Edwin Peel (eds), Properties of Law (Oxford University Press 2006) [...]
Suppose that you are wandering across the tundra, and you find an infant, all alone, in the snow. She is incapable of discourse, and yet she has the same human rights as anyone who is capable of discourse. Those rights do not depend on the practices or conventions of your people, or hers. Human discourse and human conventions play no role in human rights. I elaborate these claims through a critique of J.W. Harris’s groundbreaking analytical account of human rights. I conclude that some welfare rights are paradigms of human rights, while rights of freedom of expression, privacy, and assembly, and rights to vote, and rights to independent tribunals are not human rights at all, except in a distantly metaphorical sense. Moreover, human rights can be explained with no reference at all to state authorities (though state authorities may have various special roles in observing and promoting some of them).
TAO Endicott, 'The Value of Vagueness' in Vijay K. Bhatia, Jan Engberg, Maurizio Gotti and Dorothee Heller (eds), Vagueness in Normative Texts (Peter Lang 2005) [...]
The rule of law requires vague regulation in every legal system. The rule of law stands against arbitrary government and against anarchy, and vague rules are essential techniques to oppose both arbitrary government and anarchy. A general refusal to use vague rules would lead to anarchy because some forms of regulation cannot be performed at all by the use of precise rules. And precision, even when it is possible, can itself lead to arbitrary government.
TAO Endicott, 'Raz on Gaps—The Surprising Part' in Thomas Pogge, Lukas Meyer, and Stanley Paulson (eds), Rights, Culture, and the Law — Essays After Joseph Raz (OUP 2003) [...]
I address some implications of Joseph Raz’s ‘sources thesis’- the claim that the existence and content of any law ‘can be identified by reference to social facts alone, without resort to any evaluative argument’. By the sources thesis, there is a gap in the law whenever the law appeals to moral considerations. But contrary to Raz’s conclusions, I argue that gaps in the law do not necessarily confer discretion on judges. A legal requirement to apply moral considerations does give courts discretion, but only because (and to the extent that) moral considerations are vague.
TAO Endicott, 'Law and Language' in Jules L.Coleman and Scott Shapiro (eds), Handbook of Jurisprudence and Legal Philosophy (OUP 2002)
A survey of relations between philosophy of law and philosophy of language. A historical note is followed by two sections explaining (1) how an understanding of the use of language in law is important to legal philosophy, and (2) some important ways in which legal philosophers (including Bentham, Hart, and Dworkin) have attempted to use philosophy of language to solve problems in philosophy of law.
Review article on Mark Elliott, The Constitutional Foundations of Judicial Review (Hart 2001).
TAO Endicott, 'Rules and Reasoning: Essays in Honour of Fred Schauer, Ed. Linda Meyer, (Oxford: Hart Publishing, 1999)' (2002) 43 Philosophical Books 71 [...]
St Petersburg International Legal Forum
On 15-17 May 2013 Professor Timothy Endicott attended the St Petersburg International Legal Forum and took part in the Plenary Session 'Competition and Cooperation between Legal Systems', and in a roundtable discussion on legal education [more…]
Research: Jurisprudence, Public Law, Law and Language