Unstated Legal Obligations
This event is part of the UCL Legal Philosophy Forum
Unstated Legal Obligations
15 Oct 2019, 16:00 – 18:00
Speaker: Professor Dale Smith (University of Melbourne)
Abstract
Every legal system generates a set of legal obligations. Sometimes, perhaps often, the law-maker does so by stating what obligation he, she or it is creating. Can there be legal obligations whose content is not stated by a law-maker? Clearly, yes. Not all legal obligations arise due to a deliberate activity of law-making – for example, some arise out of customary law. Even if we confine ourselves to statutes and constitutions, which are paradigms of deliberately-made law, the content of the legal obligation created by the law-maker need not be expressly stated. Statutes and constitutions can generate legal obligations implicitly as well as explicitly. However, can deliberately-made laws, such as statutes and constitutions, give rise to legal obligations the content of which is neither expressly stated nor conveyed by implication? In this paper, I argue that they can. I begin by considering some non-legal examples which I think are suggestive, and then seek to draw lessons from those examples for the case of law. I also offer some tentative thoughts about how the content of the legal obligation is fixed, in cases in which a statute or constitution generates an unstated legal obligation.
About the Speaker:
Dale Smith’s research focuses primarily on analytic legal philosophy, especially on the jurisprudential writings of Ronald Dworkin. He also writes on theoretical aspects of statutory interpretation and (with Colin Campbell) on anti-discrimination law. Dale’s recent publications include ‘Deliberative Freedoms and the Asymmetric Features of Anti-Discrimination Law’ (with Colin Campbell) (2017) 67(3) University of Toronto Law Journal 247; ‘Is the High Court Mistaken about the Aim of Statutory Interpretation?’ (2016) 44(2) Federal Law Review 227; ‘Direct Discrimination without a Comparator: Moving to a Test of Unfavourable Treatment’ (with Colin Campbell) (2015) 43(1) Federal Law Review 91; ‘Agreement and Disagreement in Law’ (2015) 28(1) Canadian Journal of Law and Jurisprudence 183; ‘Law, Justice and the Unity of Value’ (2012) 32 Oxford Journal of Legal Studies 383; and ‘Must the Law Be Capable of Possessing Authority?’ (2012) 18 Legal Theory 69. Together with Lisa Burton Crawford and Patrick Emerton, he is co-editor of a forthcoming festschrift for Emeritus Professor Jeff Goldsworthy (Lisa Burton Crawford, Patrick Emerton and Dale Smith (ed), Law under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (forthcoming, Hart, 2019))