We are pleased to welcome Professor George Pavlakos, presenting 'Where Law Starts: on the Site and Scope of the Legal Relation'. This is an optional pre-read seminar. Registered attendees will
We are pleased to welcome Professor George Pavlakos, presenting ‘Where Law Starts: on the Site and Scope of the Legal Relation’. This is an optional pre-read seminar. Registered attendees will receive the paper by email one week prior to the event.
Abstract: The paper proposes to redraw the boundaries of the legal relation, plausibly the relation that gives rise to legal obligations, in order to show that it outstrips the limits of any given institutional legal order. I employ two arguments with an eye to dissuading the initial surprise that this move might cause. The key argumentative move will be to reconceive the legal relation independently of the existence of any institutional legal order, or what Kant called the rightful condition. This will support an explication of the legal relation as encompassing a postulate for the consistency of freedom, which dovetails with the Kantian requirements of Right.
Then, I propose to isolate the postulate for the consistency of freedom and explain it through an independent route, which does not defer in the slightest to any facts of political institutions. I show that the Principle of External Freedom (PEF) is the requirement that we act consistently with the freedom of others and that PEF can be triggered by interactions between agents, independently of any particular institutional arrangement. As a result, I argue that instances of agential interaction that trigger PEF, along with PEF, fully explain (or ground) the legal relation.
In supplementing the main line of argument, I will suggest a route for integrating ordinary institutional legal obligations into my explanation of the legal relation. This is paved by a principle requiring that the general principles of justice, which instantiate the conditions of freedom-consistent action, be equipped with the type of effectiveness which pertains to institutions which have the capacity to enforce the principles. Accordingly, the legal relation will be shown to be a source for two types of obligation: on the one hand proto-legal obligations which are grounded on the general principles of justice; on the other, institutional legal obligations which are grounded on proto-legal obligations plus the facts of institutional action that is undertaken by the relevant political institutions of an institutional legal order.
Any lingering surprise aside, if my argument is sound it might contribute to a novel and, perhaps, more fine-grained view on the normative challenges posed by the rapid interconnectedness we are experiencing across the globe. On this view it would constitute a normative failure to tolerate forms of interaction that are indifferent to the demands of freedom-consistent action. At the same time it would raise much higher the bar of the (trans-national) obligations we owe to each other.
George Pavlakos is Professor of Law and Philosophy at the School of Law, University of Glasgow. From 2007 to 2016 he was Research Professor of Globalisation and Legal Theory and director of the Centre for Law and Cosmopolitan Values at the University of Antwerp, Belgium. His research awards include two Alexander von Humboldt Fellowships, an FWO-Odysseus grant, a J.E. Purkyne Senior Research Fellowship (Czech Academy of Sciences) and a Fernand Braudel Senior Fellowship (EUI, Florence). His published work includes the monograph “Our Knowledge of the Law” (Hart Publishing, 2007) and has recently edited “Reasons and Intentions in Law and Practical Agency” (Cambridge University Press, 2015). He is also general editor of the book series “Law and Practical Reason” at Hart Publishing and joint general editor of the journal Jurisprudence published by Routledge.
Prof. Pavlakos’s seminar is part of our Hart Seminar Series, which features a diverse group of leading scholars working at the intersection of law and philosophy. Hart Publishing contributes generous support to make the seminar series possible. The complete 2017-18 line-up is available here.
(Wednesday) 4:00 pm - 6:00 pm
University of Surrey School of Law
Frank Whittle Building (AB) Fifth Floor, Guildford, GU2 7XH