Biography

Timothy Endicott has been Professor of Legal Philosophy since 2006, and a Fellow in Law at Balliol College since 1999. Professor Endicott writes on Jurisprudence and Constitutional and Administrative Law, with special interests in law and language and interpretation. He served as the Dean of the Faculty of Law for two terms, from October 2007 to September 2015. 

He is the author of Vagueness in Law (OUP 2000), and Administrative Law, 3rd ed (OUP 2015). 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 Law in Oxford in 1998. He was appointed by Universidad Carlos III de Madrid to a Cátedra de Excelencia during 2016. He has been General Editor of the Oxford Journal of Legal Studies since 2015.

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Publications

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  • TAO Endicott and P Oliver, 'The Role of Theory in Canadian Constitutional Law' in N Des Rosiers, P Macklem, P Oliver (ed), The Oxford Handbook of the Canadian Constitution (Oxford University Press 2017) (forthcoming)
    Constitutional theory has been institutionalized in distinctive ways in Canada. The Constitution Act, 1867 (formerly the British North America Act, 1867) created unique opportunities and imperatives for political leaders, advocates, judges, scholars, law students and others to articulate their understanding of Confederation. And even while the country chose a parliamentary form of government very different from American republicanism, Confederation generated a set of entrenched rules defining the powers of the federal and provincial governments, which would give judges a hand in the law of the Constitution that judges had not had in the United Kingdom. Moreover, Canadian federalism generated an extraordinary statutory provision for references (i.e., requests for advisory opinions) to the Supreme Court of Canada on matters of law and fact, including (as it would turn out) matters of convention. The judges’ reasons for decision involve them in the theoretical task of articulating the basis of the Constitution. The Constitution Act, 1982 further enhanced the judges’ role as theorists of the Constitution, through their role in the interpretation and elaboration of the Charter of Rights and Freedoms. We aim to illustrate ways in which both express theorizing and inarticulate theoretical assumptions have shaped Canadian constitutional law, and we argue that good theorizing is essential for the sound development of the law and practice of the Constitution. Keywords: Canadian Constitution, constitutional theory, parliamentary government, federalism
  • TAO Endicott, '"This Ancient, Secretive Royal Prerogative"' (2016) United Kingdom Constitutional Law Blog United Kingdom Constitutional Law Blog
    This note sketches reasons of constitutional principle for the Crown to have the authority that it has in the UK constitution in 2016. Those reasons undermine the interpretation of the European Communities Act 1972 on which the Divisional Court’s decision depended in R (on the application of Miller) v Secretary of State for Exiting the European Union [2016] EWHC 276.
  • TAO Endicott, 'Equity and Administrative Behavior: A Commentary' in P Turner (ed), Equity and Administration (Cambridge University Press 2016)
    The genuine role of equity in administrative law lies in the provision and the evolution of institutions that can make the law true to its own reason. The risk – as with any equitable jurisdiction – is that public administration will be ruled, instead, by the reason of the judges. Through a commentary on Henry E. Smith, ‘Equity and Administrative Behavior’ (in Peter Turner ed, Equity and Administration (Cambridge University Press 2015) 326-366), I argue that the core of English administrative law developed at common law not at equity, that the fiduciary principle developed in Chancery has no general role in administrative law, and that Professor Smith’s narrow anti-opportunism version of equity remains in tension with the rule of law.
    ISBN: 9781107142732
  • TAO Endicott, 'Law and Language' (2016) Summer 2016 Stanford Encyclopedia of Philosophy
    An outline of ways in which philosophy of law and philosophy of language can learn from each other. Philosophy of law can gain from a good philosophical account of the meaning and use of language in law, and of the institutionalized resolution of disputes over language. Philosophy of language can gain from studying the stress-testing of language in legal regulation and dispute resolution –and from the reminder that the task for philosophers of language is not only to account for what people share in virtue of the mastery of a language; they also need to account for the intelligibility of disagreements over the meaning and use of language, and for the possibility that there might be good reason for resolving those disagreements in one way rather than another.
    ISBN: 1-58113-513-0
  • TAO Endicott, 'Magna Carta 1215: A Glorious Failure' (2016) 11 Frontiers of Law in China 204
    DOI: 10.3868/s050-005-016-0012-2
    Along with the tradition of celebrating the importance of the Charter of 1215, there is a long tradition of skepticism concerning its purpose (which was not to achieve responsible government but to preserve the property of wealthy landowners), its force (it was annulled by the Pope and repudiated by the king within a few weeks), and even its success as a peace treaty (war broke out within a few months). The author will outline the reasons for skepticism, because we can only see what there is to celebrate in 2015, if we understand that the Charter of 1215 was the failed result of a reactionary armed tax rebellion by wealthy and powerful landowners, who were not trying to make a new constitution. What is there to celebrate? The author will address that question by asking why the Charter of 1215 was neither void (as the Pope asserted) for repugnancy to the King’s authority, nor voidable for duress. The author challenges the idea that the Charter of 1215 is the foundation of the rule of law in England, arguing that the rule of law goes back farther, and that the Charter of 1215 was very limited in its impact. But it did promote the rule of law in two ways: by giving new specificity to legal duties and restrictions that the king had already been subject to, and by highlighting the country’s need for effective processes for giving effect to those duties and restrictions.
    ISBN: 1673-3428
  • TAO Endicott, 'Parliament and the Prerogative: From the Case of Proclamations to Miller' (2016) Policy Exchange Lecture, 1 December 2016
    The Government’s argument in the Miller case is that triggering Article 50 lies within the power of the Crown to make and unmake international treaties – a power the leading litigant, Gina Miller, has termed ‘this ancient, secretive Royal Prerogative’. The legitimacy of the use of the prerogative is questioned by critics, who view its proposed use to trigger Article 50 as an unconstitutional scheme to bypass Parliament. This paper argues that there are positive reasons of constitutional principle for an efficient, unified and democratic executive. We can only understand the extent of the executive power, and how it ought to be constrained, if we understand what it is for. Acting to initiate a withdrawal from the European Union is within the proper constitutional role of the executive. Using the royal prerogative in this way is entirely consistent with the sovereignty of Parliament and the rule of law.
  • TAO Endicott, 'Comity among Authorities' (2015) Current Legal Problems 1
    DOI: 10.1093/clp/cuv004
    An authority often needs to take account of the decisions of another authority, in order to carry out its own responsibilities. This essay outlines general principles of the approach that authorities ought to take toward the decisions of others. The most important is the principle of comity: that the authority passing judgment (I will call it the 'second authority') ought to act in a way that respects the capacity of the other (the 'first authority') to carry out its own role. A duty of comity is not a duty to trust the first authority. It does not require the second authority to approve of the decisions of the first. It arises not from the rights of the first authority, nor even from the first authority's success in carrying out its duties, but from the second authority's duties to those whom the second authority serves, and to those whom the first authority serves. The reasons for the principle of comity support two more principles: that the second authority has limited responsibility for justice, and that the second authority has no general duty to agree with the judgment of the first authority.
  • TAO Endicott, 'Was Entick v Carrington a Landmark?' in Adam Tomkins and Paul Scott (eds), Entick v Carrington: 250 Years of the Rule of Law (Hart Publishing 2015)
  • TAO Endicott, 'Arbitrariness' (2014) Canadian Journal of Law and Jurisprudence
    In order to identify the form of arbitrariness that is relevant to the rule of law, I discuss a Supreme Court of India decision and a Supreme Court of Canada decision in which judges held that other public authorities had acted arbitrarily. I also discuss Jeremy Bentham’s work on the rule of law, and his notion that the interpretive power of judges is itself an arbitrary power. I argue that the interpretive role of judges is not necessarily hostile to the rule of law, but that there is a standing tension between the two. In the decisions under discussion, the Canadian and Indian judges used their doctrines of arbitrariness to reallocate power to themselves, without any resulting enhancement in the rule of law.
    ISBN: 0841-8209
  • TAO Endicott, 'Interpretation and Indeterminacy' (2014) Jerusalem Review of Legal Studies 1
    DOI: 10.1093/jrls/jlu005
    Legal interpretation is a reasoning process. It is needed whenever reasoning is needed in order to decide what a legal instrument means. I defend this approach through a critical discussion of the view that Andrei Marmor defends, in Philosophy of Law (2011), that legal interpretation is needed when the law is indeterminate. I also offer reasons for disagreeing with Marmor’s argument that H.P.Grice’s ‘cooperative principle’ does not generally apply in legal discourse. The content of the law made by legislation includes what the legislation asserts, and also those implicatures that courts have conclusive reason to act upon, in light of the cooperative principle.
  • TAO Endicott, 'Proportionality and Incommensurability' in Grant Huscroft, Bradley W. Miller, Gregoire Webber (ed), Proportionality and the Rule of Law (Cambridge University Press 2014)
    Proportionality doctrines in human rights adjudication require the judges to ‘balance’ interests that cannot actually be weighed against each other in any sort of scales. If judges are purporting to balance things that cannot actually be balanced, it may seem that the doctrines mean a departure from the rule of law, in favour of arbitrary rule by judges. I will argue that the resolution of incommensurabilities is not in itself a departure from the rule of law; the rule of law demands a system in which judges are often responsible for reconciling incommensurable interests. But some theorists have seen a potential in proportionality for rationality, transparency, objectivity, and legitimacy, which the doctrine cannot actually deliver. And proportionality reasoning involves pathologies, by which I mean structured tendencies toward misconceived decisions. I comment on some of these dangers, to illustrate the claim that they all depend on particular mistakes, and do not arise automatically from the judges’ role in resolving conflicts among incommensurable interests.
    ISBN: 9781107064072
  • TAO Endicott, La Generalità del Diritto (Mucchi Editore 2013)
    Translation into Italian of 'The Generality of Law' in Luís Duarte Almeida, Andrea Dolcetti, James Edwards (eds), Reading The Concept of Law (Oxford University Press 2013). With a new Preface on H.L.A.Hart and Jurisprudence in Oxford.
    ISBN: 978-88-7000-614-8
  • TAO Endicott, 'The Generality of Law' in Luís Duarte Almeida, Andrea Dolcetti, James Edwards (ed), Reading The Concept of Law (Oxford University Press 2013)
    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.
    ISBN: 978-1849463249
  • TAO Endicott, 'The Irony of Law' in John Keown and Robert P George (eds), Reason, Morality, and Law: The Philosophy of John Finnis (Oxford University Press 2013)
    John Finnis says that central cases of the concepts of social theory fully instantiate values that are instantiated in more-or-less watered-down ways in peripheral cases. I argue that the central case of a concept essential to social theory may excel in some specific good or in some specific ill, or in neither, or in both. As for law, the central cases of a legal system, or of a law, do indeed involve goods that Finnis ascribes to them; the central cases also involve certain ills. That is the irony of law. It secures essential goods for a community, and also (and, in fact, by the same token) it incurs certain ills that are necessarily involved in its specific techniques for securing those goods. I conclude by pointing out a resulting tension over a legal system’s regulation of the validity of its own legal norms.
    ISBN: 978-0-19-967550-0
  • 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.
    ISBN: 978-0-415-87818-0
  • TAO Endicott, 'Review of Reflections on The Concept of Law, by A.W.Brian Simpson, (Oxford University Press 2011)' (2012) 128 Law Quarterly Review 305 [Review]
  • TAO Endicott, 'Human Rights and Intellectual Disabilities' in D Griffiths, F Owen and S Watson (eds), Human Rights Agenda: An Action Plan to Advance the Rights of Persons with Intellectual Disabilities (Brock University 2011)
  • TAO Endicott, 'Vagueness and Law' in Giuseppina Ronzitti (ed), Vagueness: a Guide (Springer 2011)
    DOI: 10.1007/978-94-007-0375-9
    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.
    ISBN: 978-94-007-0374-2
  • 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.
    ISBN: 0199208573
  • 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, 'Morality and the Making of Law' (2010) 1 Jurisprudence 267
    DOI: 10.5235/204033210793524203
    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.
    ISBN: 2040-3313
  • TAO Endicott, 'What Human Rights Are There, if Any, and Why?' (2010) 23 Studies in Christian Ethics 172
    ISBN: 1745-5235
  • 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)
    ISBN: 978-88-348-9801-7
  • 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.
    ISBN: 1067-9464
  • TAO Endicott, 'Adjudication and the Law' (2007) 27 Oxford Journal of Legal Studies 311
    DOI: 10.1093/ojls/gqm007
    ISBN: 1464-3820
  • 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).
    ISBN: 0-19-929096-2
  • 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.
    ISBN: 0065-8995
  • 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.
    ISBN: 3-03910-653-8
  • TAO Endicott and Michael Spence, '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.

    (pre-publication version)

    ISBN: 0023-933X
  • 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
    ISBN: 968-476-483-9
  • TAO Endicott, 'Constitutional Logic' (2003) 53 University of Toronto Law Journal 201 [Review]
    Review article on Mark Elliott, The Constitutional Foundations of Judicial Review (Hart 2001).

    (pre-publication version)

    ISBN: 0042-0220
  • 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.
    ISBN: 0-19-924825-7
  • TAO Endicott, 'The Reason of the Law' (2003) 48 American Journal of Jurisprudence 83
    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.
    ISBN: 0065-8995
  • 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'.
    ISBN: 0212-0364
  • TAO Endicott, 'Law and Language' in Jules L.Coleman and Scott Shapiro (eds), Handbook of Jurisprudence and Legal Philosophy (OUP 2002)
    ISBN: 0198298242
  • TAO Endicott, 'Are There Any Rules?' (2001) 5 Journal of Ethics 199
    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].
    ISBN: 1382-4554
  • TAO Endicott, 'How to Speak the Truth' (2001) 46 American Journal of Jurisprudence 229
    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.

    (pre-publication version)

    ISBN: 0065-8995
  • TAO Endicott, 'Law is Necessarily Vague' (2001) 7 Legal Theory 377
    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.
    ISBN: 1352-3252
  • TAO Endicott, 'Preface' (2001) 7 Legal Theory 377
    Preface to a symposium on vagueness in law.
    ISBN: 1352-3252
  • 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.
    ISBN: 1043-5778
  • 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.

    (pre-publication version)

    ISBN: 0953-8186
  • TAO Endicott, Vagueness in Law (Oxford University Press 2000)
  • TAO Endicott, 'Herbert Hart and the Semantic Sting' (1998) 4 Legal Theory 283
    DOI: 10.1017/S1352325200001038
    An invited contribution to a special issue on Hart’s ‘Postscript’ to The Concept of Law

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Jurisprudence and Political Theory, Constitutional and Administrative Law, Law and Language, Interpretation

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Administrative Law, Jurisprudence, Constitutional Law (Senior Status)

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