Grant Lamond is University Lecturer in Legal Philosophy and the Felix Frankfurter Fellow in Law, Balliol College. He holds degrees in Philosophy and Law from the University of Sydney and took the BCL at Magdalen College. He was a Junior Research Fellow at St Edmund Hall, where he completed his DPhil. His research interests lie in the philosophy of law and the philosophy of criminal law.
- DOI: 10.1080/20403313.2017.1333258DOI: 10.1111/raju.12181DOI: 10.1093/ojls/gqu014Analogical reasoning is a pervasive feature of the common law, yet its structure and rational force is much disputed by legal theorists, some of whom are sceptical that it has any rational force at all. This paper argues that part of the explanation for these disagreements lies in there being not one form of analogical reasoning in the common law, but three: classificatory analogies, close analogies, and distant analogies. These three differ in their functions and rationale. Classificatory analogies involve the use of decided cases to help characterize novel fact situations, and are justified by the rule of law ideal of minimizing the dependence of judicial decisions on the individual views of decision-makers. Close analogies are used to help resolve unsettled issues by reliance on decisions from other branches of the same legal doctrine. They complement the doctrine of precedent, and rest on similar considerations. Distant analogies are also used to help resolve unsettled issues, but by reference to decisions from other legal doctrines. They are the most susceptible to sceptical critique: although they can serve to maintain coherence in the law, they deserve a more modest role in legal reasoning than they are often given.ISBN: 1464-3820DOI: 10.1093/ajj/auu005A perennial puzzle about source-based law such as precedent is what makes sources legally binding. One of the most influential answers to this puzzle is provided by Harts rule of recognition. According to Hart, the sources of law are accepted as binding by the officials of a legal system, and this collective social practice of officials provides the foundations for a legal system. According to Hart, the rule of recognition differs fundamentally from other legal rules in three ways: (1) the grounds on which it is accepted; (2) the basis for its system-membership; and (3) its mode of existence. This paper argues that (1) is mistaken, and that (2) and (3) do not in fact make the rule of recognition fundamentally different to other legal rules in the way that Hart supposed. Instead, the rule of recognition is a form of customary law in foro whose existence is practice-dependent, but which is nonetheless legally binding and legally valid as other laws are. The foundations of a legal system do not lie in the acceptance of the ultimate sources of law, but in the acceptance of the system as a whole.ISBN: 2049-6494DOI: 10.1093/jrls/jlu007ISBN: 2219-7125DOI: 10.1002/9781444367072.wbiee696This paper provides an overview of issues raised by the nature of coercion. It outlines four major distinctions that are both important to understanding the nature of coercion and important to disputes about its nature: (1) coercion in the sense of actions that aim to force another to do something, as opposed to actions that simply have that effect (i.e. are "coercive"); (2) coercion by the use of physical force as opposed to coercion by the creation of a "forced choice"; (3) coercion as a factor affecting the liability of the person who succumbs to the force ("duress") as opposed to coercion as a means of making another do as one wills; and (4) distinguishing between proposals that are threats rather than offers. These distinctions all bear on the question of why the use of coercion is ordinarily regarded as requiring some moral warrant.ISBN: 9781405186414ISBN: 9781849463249The central argument of this paper is that the rule of law is an ideal concerned with the conditions that are necessary for the law to succeed in governing a community. The influential views of Fuller and Raz which ground the ideal in the conditions necessary for the law to exist at all (Fuller) or for the law to be capable of guiding behaviour (Raz) are discussed and criticised. Four conditions are highlighted as part of the rule of law: (1) the law is effective; (2) the state is governed by and governs through law; (3) individual laws can be jointly and severally obeyed; and finally (4) those other legal and social arrangements whose primary rationale is to serve conditions (1)(3). Condition (4) accounts for the significance of such arrangements as an independent legal profession. Condition (4) also helps to explain both the attraction of regarding other political ideals such as democracy and human rights as aspects of the rule of law, since their existence helps promote the other conditions, and the reasons for excluding them from the rule of law itself, since their primary rationale is not to ensure that the law succeeds in governing the community. Finally, it is argued that the rationale for the rule of law lies in the value of a law governed community. The rule of law itself, however, is not always morally valuable: not because it is purely of instrumental value, but because it is an inherently mixed-value good.ISBN: 978-0415878180DOI: 10.1002/9781444320114.ch46This article provides an overview of the key philosophical issues raised by the nature of coercion. It distinguishes two methods of coercion (physical force and rational compulsionparadigmatically by threats); and distinguishes coercion as a means of making someone act from coercion as a means affecting the normative position of the coerced party (duress). It surveys analyses of what makes a proposal a threat, whether offers can be coercive, and why rational compulsion is per se morally problematic (if it is). It suggests that while all forms of rational compulsion have a common core, the conditions for duress depend on additional situation specific features (e.g. duress as a criminal law defence versus duress as a vitiating factor in agreements or marriage). It goes on to consider the sense(s) in which law can be regarded as coercive, and whether coercion is a necessary feature of law.ISBN: 9781405170062This article discusses the nature of persuasive authorities in the common law, and argues that many of them are best understood in terms of their (being regarded) as having theoretical rather than practical authorities for the courts that cite them. The contrast between theoretical and practical authority is examined at length in order to support the view that the treatment of many persuasive authorities by courts is more consistent with this view. Finally, it is argued that if persuasive authorities are best understood as theoretical authorities, this raises difficulties for both positivistic and interpretivist theories of law.ISBN: 1062-6239DOI: 10.1111/j.1747-9991.2007Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice.DOI: 10.1093/ojls/gqm018This article presents a philosophical account of the nature of crime. It argues that the criminal law contains both fault-based crimes and strict liability offences, and that these two represent different paradigms of liability. It goes on to argue that the gist of fault-based crimes lies in their being public wrongs, not (as is often thought) because they wrong the public, but because the public is responsible for punishing them, i.e. because they merit state punishment. What makes wrongs deserving of punishment is that they are seriously blameworthy, inasmuch as they evince a disrespect for the values violated. But they only merit state punishment when they violate important values, not simply due to the well-known pragmatic considerations against the use of the criminal law, but to the intrinsic expressive force of criminal conviction. Finally, the analysis of fault-based crimes points to a role for strict liability in regulating actions that are not seriously blameworthy but do increase the risk of values being damaged.ISBN: 0143-6503Arguments from precedent and analogy are two central forms of reasoning found in many legal systems, especially Common Law systems. Precedent involves an earlier decision being followed in a later case because both cases are the same. Analogy involves an earlier decision being followed in a later case because the later case is similar to the earlier one. The main philosophical problems raised by precedent and analogy are these: (1) when are two cases the same for the purposes of precedent? (2) when are two cases similar for the purposes of analogy? and (3) in both situations, why should the decision in the earlier case affect the decision in the later case?ISBN: 1095-5054DOI: 10.1017/S1352325205050019This article argues that legal precedents do not create rules, but rather create a special type of reason in favour of a decision in later cases. Precedents are often argued to be analogous to statutes in their law-creating function, but the common law practice of distinguishing is difficult to reconcile with orthodox accounts of the function of rules. Instead, a precedent amounts to a decision on the balance of reasons in the case before the precedent court, and later courts are required to decide cases on the basis that the earlier decision was correctly decided.ISBN: 1469-8048DOI: 10.1017/S1352325201071026The main focus of the article is upon two major lines of argument that attempt to establish a link between law and coercion: one based upon the law's efficacy; the other upon the law's normativity. It argues that the claim that law is necessarily coercive because it must be efficacious is mistaken--not necessarily on sociological or psychological grounds, but because it identifies law with the preconditions for its existence. On the other hand, the argument that law's normativity is inherently linked to coercion contains an important truth--not because coercion is necessary to account for normativity, but because the scope of law's claim to authority encompasses the right to authorize the use of coercion.ISBN: 1469-8048DOI: 10.1093/ojls/20.1.39One of the central features associated with law is its coerciveness. A major source of our interest in law's coerciveness is that the use of coercion is thought to require moral justification - hence the liberal interest in the harm principle. This article seeks to contribute to the debate about the justifiable grounds for legal coercion by clarifying the ways in which law is coercive and demonstrating that coerciveness is a highly complex phenomenon. It argues that the legal authorization of physical force and sanctions, rather than the existence of enforcement institutions, is the appropriate focus for these enquiries. It considers the appropriate methodology for understanding the nature of coercion and goes on to argue that there are a group of nested conceptions of coercion which perform different roles in different contexts. The differences between these conceptions help to account for some of the disagreements over law's coerciveness. There is also an important contrast between laws which aim to coerce and those which merely have a coercive effect. All of these internal distinctions within coercion matter because they have considerable significance for the justification of coercive legal measures. Finally, it is argued that sanctions are neither necessary for the law to be coercive, nor always sufficient.ISBN: 0143-6503DOI: 10.1093/acprof:oso/9780198260578.001.0001This paper discusses the puzzle of blackmail, i.e. the way in which the threat of an otherwise legally permissible action can in some cases constitute blackmail. It argues that the key to understanding blackmail is in terms of coercion and threats, and the effect such threats have on the validity of a victims consent. The nature of coercion and of coercive threats is considered in detail to support the thesis that threats are prima facie impermissible, though often justified all-things-considered. The puzzle of blackmail arises due to the fact that the law rarely has regard to an agents motives in acting, whereas this is the focus of the puzzling cases.ISBN: 0198260571
Criminal Law, Jurisprudence
Options taughtJurisprudence, Criminal Law (Mods), Moral and Political Philosophy, Philosophical Foundations of the Common Law