Jonathan Crowe

Natural Law Beyond Finnis

The natural law tradition in ethics and jurisprudence has undergone a revival in recent years, sparked by the work of John Finnis and the new natural law theorists in the early 1980s. The ensuing decades have seen the emergence of an increasingly rich body of natural law scholarship, but this diversification has gone unnoticed by many outside the field. This article seeks to clarify the relationship between the core claims of the new natural law outlook and the more specific views of individual authors. It begins by discussing the place of the new natural law theory within contemporary natural law scholarship. It then offers an account of the core elements of the new natural law framework that emphasises their compatibility with a range of ethical and philosophical viewpoints.

Levinas on Shared Ethical Judgments

Emmanuel Levinas’s emphasis on the face to face encounter as the site of ethical engagement makes a genuinely shared conception of ethics seem both unnecessary and impossible. Discussions of this aspect of Levinas’s theory have tended to focus on his notion of the third [le tiers]. However, while the third explains why shared ethical judgments are necessary, it does not explain how they are possible. This article offers an alternative response, based on Levinas’s comments on the temporality of ethical experience. In order to see how shared ethical judgments are possible, we need to pay attention to the diachronic, as well as the synchronic, dimension of the face to face. This allows us to deepen the account of ethical discourse associated with the third.

Between Morality and Efficacy: Reclaiming the Natural Law Theory of Lon Fuller

This article clarifies the relationship between the work of Lon Fuller and the natural law tradition in jurisprudence through a critical engagement with Kristen Rundles book, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Hart, 2012). I argue that Fullers theory engages squarely with the central concern of natural law thought: namely, the idea of law as a rational standard. However, Fuller fails to recognise the full implications of his theory for the role of moral factors in determining legal validity.This paper is a contribution to a review symposium on Kristen Rundles recent book Forms Liberate. I discuss three central aspects of the book, as follows: (i) I consider Rundles claim that forms liberate, and offer a qualification with regard to this claim; (ii) I draw attention to a certain ambiguity in the triadic relation between law, form, and moral value, as figuring in the book; and (iii) I consider Rundles claims about the relationship between Fullers and Joseph Razs jurisprudential outlooks.The title of Kristen Rundle’s interesting and thoughtful book1 is drawn from a single sheet of paper in Fuller’s archive. A photograph of the document, with the words ‘forms liberate’ circled by Fuller, is reproduced as the frontispiece to the book. Rundle quite rightly takes the phrase ‘forms liberate’ to be a succinct expression of one of Fuller’s central concerns: the connection between human freedom and the form of law. However, the photograph reveals a feature of the document to which Rundle seems to attach no particular importance. Fuller has not only circled the words ‘forms liberate’ but has also written against them (I am assuming that the handwriting is Fuller’s) the following note: ‘cf negative concept of freedom’. The note is, of course, too cryptic to admit of interpretation. But it is at least possible that here we see Fuller beginning to notice that, if we are to understand the sense in which the form of law does indeed liberate, we need to understand aspects of freedom that are not captured by the standard negative account. In the middle decades of the twentieth century, theorists such as Oakeshott and Hayek sought to explain the intimate connections between liberty and the rule of law, but their efforts were marred by their reliance upon versions of the negative conception of freedom. I would say that, in common with Fuller, they needed, but did not possess, the idea of freedom as independence.2 In seeking to explain the intrinsic moral value of the form of law, Fuller himself pointed to a connection between governance by law and the status of the person as a responsible agent. But this latter notion is (as we shall see in a moment) really too

Principles of international humanitarian law

Contents: Preface 1. The Concept of Armed Conflict 2. Sources of International Humanitarian Law 3. Means and Methods of Warfare 4. Protection of Civilians 5. Protection of Combatants Hors de Combat 6. Humanitarianism and Human Rights 7. Liability of States and Non-State Groups 8. Liability of Individuals Index

The Role of Contextual Meaning in Judicial Interpretation

This article examines the relevance to judicial interpretation of contextual meaning: the meaning legal texts hold when considered in full light of their social and moral context. I argue first that, as a descriptive matter, contextual meaning is necessarily prior to any more restricted form of textual interpretation; that is, the contextual meaning of a legal text is its ordinary meaning. I then contend that, as a normative matter, judges should presumptively apply ordinary or contextual meaning when construing legal materials. The remainder of the article explores the nature and limitations of the contextualist model of judicial practice. The possibility of conflicts between contextual factors at different levels of abstraction makes it necessary to distinguish narrow and wide versions of the contextualist methodology. I argue that wide contextualism offers the best overall account of judicial interpretation. I conclude by examining the practical and normative limitations of this model.

Levinasian Ethics and the Concept of Law

Most people think they have an obligation to obey the law. They think the mere fact that a particular action is required by law gives them a reason to behave in that way. This popular view of law has provoked considerable academic discussion. The influential legal theorist, H. L. A. Hart, responds to the popular view by positing a systematic distinction between legal and moral obligation.1 He suggests that we have a distinctive obligation to obey the law, regardless of its moral character. This line of argument has not been without its critics. Perhaps the most prominent dissenter from Hart’s view on this point has been Joseph Raz, one of Hart’s distinguished former students. Raz denies that we have any generic obligation to obey the law; whatever obligations we have to obey specific legal rules depends upon their moral content.2

Pre-reflective law

Legal reasoning is commonly regarded as a reflective process, in which legal actors — be they ordinary citizens or judges and other legal officials — consciously incorporate legal norms into their deliberations when deciding what to do. However, this picture is misleading. The primary influence of legal norms on practical decision making takes place at a pre-reflective level. In this chapter, I offer an account of this pre-reflective dimension of law. I begin by examining the pre-reflective foundations of normative reasoning generally, and then turn to the place of legal norms within that picture.

Understanding the information experiences of parents involved in negotiating post-separation parenting arrangements

The paper presents findings from a study into the information experiences of people needing to make post-separation parenting arrangements. Data was collected from 20 participants, through in-depth, semi-structured, telephone interviews. Thematic analysis identified five major themes: Following, Immersion, Interpersonal, History and Context which depict the information experiences of the participants. The findings can be used as an evidence base to inform the design and delivery of support and services provided by government agencies and other community groups supporting the legal information needs of individuals and families. The work extends current understandings of information experience as an object of study in the information science discipline.

The Limits of Legal Pluralism

Sionaidh Douglas-Scotts book, Law after Modernity, outlines a sophisticated theory of legal pluralism. The book makes extensive use of artworks and other cultural images to draw out laws social meanings. I explore Douglas-Scotts comments on the relationship between art and law through reference to Michèle Le Doeuffs work on the philosophical imaginary. I then address her views on legal pluralism. Douglas-Scott argues that legal positivisms failure to adequately capture the complexity of contemporary legal orders makes legal pluralism preferable as a descriptive theory of law. However, she distances herself from claims that legal pluralism also offers a normatively desirable view of law, arguing that it needs to be supplemented by a theory of critical legal justice. Douglas-Scott shows a commendable awareness of legal pluralisms descriptive insights and its normative limits, but her account of critical legal justice remains highly tentative. What, then, lies in the unmapped terrain beyond the limits of legal pluralism? I suggest the answer lies in overcoming the central assumption shared by both legal positivism and legal pluralism: the idea of law as a product of human authority.

Freedom, Responsible Agency and Law

This article clarifies the relationship between the work of Lon Fuller and the natural law tradition in jurisprudence through a critical engagement with Kristen Rundles book, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Hart, 2012). I argue that Fullers theory engages squarely with the central concern of natural law thought: namely, the idea of law as a rational standard. However, Fuller fails to recognise the full implications of his theory for the role of moral factors in determining legal validity.This paper is a contribution to a review symposium on Kristen Rundles recent book Forms Liberate. I discuss three central aspects of the book, as follows: (i) I consider Rundles claim that forms liberate, and offer a qualification with regard to this claim; (ii) I draw attention to a certain ambiguity in the triadic relation between law, form, and moral value, as figuring in the book; and (iii) I consider Rundles claims about the relationship between Fullers and Joseph Razs jurisprudential outlooks.The title of Kristen Rundle’s interesting and thoughtful book1 is drawn from a single sheet of paper in Fuller’s archive. A photograph of the document, with the words ‘forms liberate’ circled by Fuller, is reproduced as the frontispiece to the book. Rundle quite rightly takes the phrase ‘forms liberate’ to be a succinct expression of one of Fuller’s central concerns: the connection between human freedom and the form of law. However, the photograph reveals a feature of the document to which Rundle seems to attach no particular importance. Fuller has not only circled the words ‘forms liberate’ but has also written against them (I am assuming that the handwriting is Fuller’s) the following note: ‘cf negative concept of freedom’. The note is, of course, too cryptic to admit of interpretation. But it is at least possible that here we see Fuller beginning to notice that, if we are to understand the sense in which the form of law does indeed liberate, we need to understand aspects of freedom that are not captured by the standard negative account. In the middle decades of the twentieth century, theorists such as Oakeshott and Hayek sought to explain the intimate connections between liberty and the rule of law, but their efforts were marred by their reliance upon versions of the negative conception of freedom. I would say that, in common with Fuller, they needed, but did not possess, the idea of freedom as independence.2 In seeking to explain the intrinsic moral value of the form of law, Fuller himself pointed to a connection between governance by law and the status of the person as a responsible agent. But this latter notion is (as we shall see in a moment) really too