Timothy Endicott is the Vinerian Professor of English Law. He writes on Constitutional and Administrative Law and Jurisprudence, with special interests in law and language and legal interpretation. He was a Fellow in Law at Balliol College from 1999 to 2000, and served as the Dean of the Faculty of Law for two terms, from October 2007 to September 2015.
He is the author of Administrative Law, 4th ed (OUP 2018) and Vagueness in Law (OUP 2000). After graduating with the AB in Classics and English 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, and was a Distinguished Visitor in the Faculty of Law, University of Toronto, in 2017. He has been General Editor of the Oxford Journal of Legal Studies since 2015.
- ISBN: 9780198804734All public power is held in trust. That explains the attraction of the fiduciary theory of government, which treats the duties of trustees and other fiduciaries in private law as an explanatory analogue for the duties of public officials and agencies, including the state. But I argue that, although public agencies have many fiduciary duties, and public officials generally have fiduciary duties to the agencies in which they serve the community, public duties are not generally fiduciary. Public power is held in trust in the sense that it is to be exercised for the public good. I seek to explain the fundamental difference between that duty of service to a community, and the fiduciary’s duty to serve the interests of beneficiaries.ISBN: 9781108155267Lord Reed’s convincing dissent in R (Miller) v Secretary of State for Exiting the European Union  UKSC 5 shows that the majority decision belongs to a long tradition of landmarks in constitutional adjudication (including the Case of Proclamations (1611) 12 Co Rep 74) for which there was no legal authority. I argue that such decisions are best understood as exercises of a judicial constituent power – that is, a power to make new constitutional rules. And then, the problem with the majority reasons in Miller is not that there was no legal authority for what the Court decided; it is that the novel decision depended on the idea that there was a constitutional need, in the interests of responsible government, for the judges to require legislation to authorize the triggering of art 50 of the Treaty of European Union. As Lord Reed implied and as Lord Carnwath explained, there was no such need.ISBN: 9781911250166Constitutional 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, federalismThere is a tension in the rule of law between the need for dispute resolution, and the need for conformity to law. The tension arises because conformity to law can require cumbersome processes that stand in the way of dispute resolution. I address the capacity of Online Dispute Resolution (ODR) to advance the rule of law by providing resolution of disputes that cannot effectively be resolved through the judicial paradigm of dispute resolution. And I point out pathologies of ODR, that can lead to one of the two antitheses of the rule of law: anarchy, or the arbitrary exercise of power. I conclude that ODR is not necessarily contrary to the rule of law, and may be a huge advance in the rule of law. But its potential failings are potential failures in the rule of law.ISBN: 8416477701This 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  EWHC 276.DOI: doi:10.1017/CBO9781316529706.019The 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: 9781107142732An 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: 1-58113-513-0DOI: 10.3868/s050-005-016-0012-2Along 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: 1673-3428The 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.DOI: 10.1093/clp/cuv004An 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.Entick v Carrington (1765) 2 Wils KB 275 was a landmark not only in the development of the law of the constitution, but also in the development of a distinctively English mixture of judicial restraint and judicial creativity. Lord Camden’s decision was a model of the common law method of devising new ways of controlling public powers, while disclaiming any power to legislate and, in fact, claiming to abide by the ‘ancient venerable edifice’ of the constitution. The result was a practical reform that protected civil liberties, on the basis of a very conservative understanding of the constitution, according to which public authorities are limited by law, but have powers that are not specified by law. I defend that understanding against the twenty-first-century idea that public authorities may do nothing except what the law expressly or impliedly authorises.ISBN: 9781849465588In 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 Benthams 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: 0841-8209DOI: 10.1093/jrls/jlu005Legal 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 Marmors argument that H.P.Grices 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.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: 9781107064072Translation 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: 978-88-7000-614-8Chapter 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: 978-1849463249John 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 systems regulation of the validity of its own legal norms.ISBN: 978-0-19-967550-0Interpretation 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: 978-0-415-87818-0DOI: 10.1007/978-94-007-0375-9After 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: 978-94-007-0374-2A 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.A state is sovereign if it has complete power within a political community, and complete independence. It may seem that the idea of sovereignty is objectionable because of two moral principles, or incoherent because of a paradox. The paradox is that a sovereign state must be capable of binding itself and must also be incapable of binding itself. The moral principles are that no state can justly exercise complete power internally, or complete independence (since complete independence would imply freedom from norms of ius cogens, and from interference with mass atrocities by the state). Through an analogy with human autonomy, 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, rightly understood, is a 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: 0199208573ISBN: 0065-8995A contribution to a debate with Professor T.R.S.Allan about the rule of law.DOI: 10.5235/204033210793524203I 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: 2040-3313ISBN: 1745-5235ISBN: 978-88-348-9801-7People 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 Razs 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: 1067-9464DOI: 10.1093/ojls/gqm007ISBN: 1464-3820Suppose 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: 0-19-929096-2Law 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 laws 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: 0065-8995The 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: 3-03910-653-8The 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.ISBN: 0023-933XWords and Rules: Essays in philosophy of law; a collection of essays translated into Spanish by Pablo Navarro and Rodrigo Sanchez BrígidoISBN: 968-476-483-9Review article on Mark Elliott, The Constitutional Foundations of Judicial Review (Hart 2001).ISBN: 0042-0220I address some implications of Joseph Razs 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 Razs 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: 0-19-924825-7A 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: 0065-8995DOI: 10.1111/1468-0149.00252Book reviewISBN: 0031-8051Spanish translation of '"International Meaning": Comity in Fundamental Rights Adjudication'.ISBN: 0212-0364ISBN: 0198298242Responds 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: 1382-4554Argues 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.ISBN: 0065-8995Every 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: 1352-3252Preface to a symposium on vagueness in law.ISBN: 1352-3252Italian 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: 1043-5778Discusses 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.ISBN: 0953-8186Abstract: It might seem that the court's role in resolving a contract dispute is just to hold the parties to the resolution that they intended. But the law uses objective tests for the existence and content of a contract. I argue that the content of an agreement is determined by the meaning of the conduct by which the parties agreed. Objective tests are not a departure from the law's central purpose of enforcing agreements. This objective view of agreement might seem to support a different view of contract adjudication: that the task of the court is only to enforce the terms of the agreement (as identified by the objective test). That view of the role of courts is too limited because the terms of agreements, understood on the objective view of agreement, are typically incomplete in significant respects. The conclusion is a view of the role of courts in which they must commonly give an outcome that was not intended by the parties, and that is not determined by their agreement. Courts must do so if they are to give effect to the intentions of the parties, and to their agreements.DOI: 10.1017/S1352325200001038An invited contribution to a special issue on Harts Postscript to The Concept of Law