This thesis examines deliberation in legal proceedings. Legal deliberation is conceived of as the procedures by which a judge, jury, or other rational deliberating agents arrive at a verdict. Legal deliberation involves deliberation about laws and about facts. This thesis is concerned chiefly with deliberation about facts and how value considerations impinge on deliberation about facts. In legal proceedings there are a number of principles that are generally accepted, although their application varies according to whether the procedure is criminal, civil, administrative or other. These principles include: an accused must be proved to have committed an act according to a given standard; a person is presumed innocent until proven guilty; a proposition may be presumed by making an inference from a basic proposition which has been proved; only relevant evidence may be admitted; only reliable evidence is accepted; evidence may be accepted on the basis of judicial notice; and unreliable evidence may be admitted if corroborated. Some less familiar principles are that proved propositions are consistent; all the elements of a case need to be proved in order for the case to be proved; a proposition at issue is not proved unless it is based upon complete evidence; and that the degree of persuasion that a deliberator has towards a proposition at issue be equal to the objective probability of that proposition. Although these principles are generally accepted the intepretation of these principles is unsettled. This thesis attempts to give an interpretation of these principles which justifies them. All interpretations have in common, I hold, that a rational agent has principles for modifying his deliberative state given new evidence. The deliberative state of an agent consists of a set of elements < B, D, S, K, ⁺> where B is the agent's degree of belief over a set of propositions S; K is a subset of S — the full or accepted beliefs; D is the agent's degree of desirability over propositions in S; ⁺ is a dynamical principle of deliberation which determines how values for B(S), and D(S) change over time. The desires of the agent are taken to be a reflection of the values inherent in legal principles. A traditional principle is that in order to convict someone it must be proved that the accused committed the alleged act. There is little agreement, however, about what is involved in proving that a person has done something. There are two main theories which are used in law. One theory, the Austinian theory, takes an action to be a bodily movement that is voluntary. A second, wider view is that an action includes the bodily movement, consequences, relevant circumstances and voluntariness, and perhaps other elements, such as omissions, and things that happen to one, but not a mental event. I argue that an action is a part of a sequence of causally related events. It is that part of the sequence with the properties that are represented to the agent in his causally efficacious mental state. The interpretation of "prove" in the last cited principle is also unsettled. All views hold that, in some sense, a proved proposition be sufficiently probable. There are five views of probability that I canvass: the logical view, the subjective view, the relative frequency view, the chance view and the epistemic view. I argue that the epistemic view is particularly suited to legal reasoning. On this view probability is conceived as a mind independent logical relation between evidence admitted and the conclusion reached on the basis of that evidence. Probability also reflects the underlying chance of single events and so applies to individual actions. The traditional practices have been interpreted as the dynamics of deliberative states. There are two plausible models of these dynamics: Bayesian and non-Bayesian. On Bayesian theories all changes of belief are by Bayes' theorem or generalizations thereof. On a non-Bayesian view beliefs are changed by accepting new beliefs, conjoining them with the old beliefs, and modifying the old beliefs on the basis of the new ones. As an intepretation of legal deliberation the Bayesian view has a number of disadvantages. Among other difficulties I survey, on the Bayesian view one can not consider a case proved if all the elements of a case are proved, and one cannot regard a proved proposition at issue as true. Hence I reject the Bayesian theory. The principle that a person is proved to have committed an act if it is sufficiently probable that he committed such an act gives rise to a difficulty. Ultimately the problem amounts to how a theory of deliberation can meet three principles of legal reasoning: the deliberating agent's beliefs are consistent, the agent believes a proposition A if the probability of A is sufficiently high, and if the agent believes A and believes B then he believes (A & B). I show how this problem is resolved by requiring probability to be resilient. A person is proved to have committed an act if the probability of having committed that act reaches an appropriate standard of proof. But what is the standard that is at issue here? If the judge is a utilitarian, for instance his desire function must meet the constraint that it equals the average desires of all other agents. In the final chapter I argue that a utilitarian rationale for standards of proof violates a person's right not to be convicted if innocent. This is due to the fact that a person can be convicted by a utilitarian deliberator even though it is more probable than not that he did not commit the alleged offence. / Arts, Faculty of / Philosophy, Department of / Graduate

D.Phil. / The purpose of this research was to answer the following question: Can a feasible liberal model be developed and defended that promotes and integrates egalitarian and Anon-egalitarian @ and aggregative values, while at the same time respecting the individual as an autonomous agent, who, as such, may be held accountable for the consequences of his decisions and actions but not for those consequences that may be attributed to his circumstances? In order to answer the research question a systematic examination of the leading liberal conceptions of equality, with special attention to an alternative approach in terms of a substantive equality of opportunity model, is undertaken. The research falls into three distinguishable parts. In the first part the role of equality in Rawls=s theory of justice as fairness was critically analysed. The conclusion reached was that whereas Rawls=s theory provides valuable insights on which to base a liberal theory of equality his theory fails to provide specific guidelines on which to make the crucial distinction between autonomous choices and choices dictated by the person=s circumstances. In the second part the conceptions of equality found in the work of Nozick, Dworkin, Sen and Walzer were compared with that of Rawls and explored for its potential for grounding a liberal conception of equality based on equality of opportunity. Limited support for the compound equality of opportunity model is found in Nozick=s libertarian conception of equality as formal equality of opportunity. Conceptually Dworkin=s conception of equality as equality of resources was found to be a powerful model to distinguish between those circumstances over which the individual has no control and therefore should not be held accountable and those choices over which the individual exercises control and hence should be held accountable. Moving from the equality of resources approaches, as exemplified by Rawls and Dworkin, to the equality of opportunity approaches, Sen=s equality of capability is discussed. Of particular importance is Sen=s insight that equality of opportunity requires one to take into consideration the individual=s capacity to convert the means at his or her disposal into ends and henceforth that these differential conversion capacities should be equalized. The compound equality of opportunity model proposed in this thesis in important part rests on the assumption that equality is a complex value which derives its value from the context in which it is employed. As such Walzer=s idea of complex equality is valuable in that it recognizes the plurality and the contextuality of the ideal of equality. In the third part the compound equality of opportunity model is introduced by distinguishing between equality of results and equality of opportunity approaches. It is then argued that it is possible, even though imperfectly, to distinguish between circumstances and autonomous choice by means of statistical techniques whereby people may be grouped by identifying independent variables predicative of success in the different spheres of life. It is shown how this approach may enable us to hold people accountable for their autonomous actions and choices but not for their circumstances. It is further argued that efficiency and aggregative considerations may operate as moderating variables in the different spheres of life. It is also argued that this model will promote accountability at the individual as well as the institutional level and how substantive equality of opportunity should predominate at the early stages of life while formal equality of opportunity should prevail at the point where positions of some importance are distributed so that third party interests are protected. This thesis is concluded with the claim that conceptually the model is feasible and capable of implementation. If we take seriously the idea of individual autonomy and accountability, and the notion that equality of opportunity provides the means to isolate the consequences of individual effort and motivation from the consequences of (undeserved) circumstances, then something like the compound equality of opportunity model may provide the means to give expression to our convictions. / Prof H.P.P. Lötter Prof E.F.J. Malherbe

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This dissertation offers a dialectical analysis of law creation insofar as legal rules and processes of social ordering are the products of interactions among agents inter se and between agents and legal institutions. This perspective demands that agents be regarded as contributing to the creation of law governing their own lives. The agents involved are not restricted to legal officials but include all persons with the capacity to exercise agency. This perspective of law creation is defended on the basis that the dialectical analysis permits a better comprehension of the relationship between law and morality. The normative defence of the dialectical approach is based on four inter-related arguments. First, law creation is an instantiation of moral practice for "full insiders", these being agents committed to norms and intrinsic goods. Secondly, the conflicts ensuing from the interactions of agents tend to imbue legal authority with some degree of legitimacy through normative compromises. Thirdly, as the agents involved in this process exercise political freedom, they have the capacity to exercise judgement in mediating between a commitment to institutional structures that facilitate moral practice and a commitment to moral reasoning that can counsel the instigation of change. Lastly, even in the case of "truncated insiders", agents who are not committed to moral reasoning, there are certain weak prudential checks that exist within the games they play inhibiting unfair processes and unjust outcomes.

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Recent revisions to Articles 9 and 1 of the Uniform Commercial Code (the "UCC") have proposed new intangible secured financing choice of law rules. These choices of law rules contain rules that represent all three major schools of thought in the field of conflicts of laws: multilateralism, substantivism and unilateralism. This thesis examines the new rules by analysing them in the context of the strengths and weakness of these schools of thought and in light of the requirements of a secured financing system. On the whole the strong mulitlateralist focus of the majority of the rules provides a solid basis for the UCC's choice of law provisions. The elimination of the rule that was based on a unilateralist basis is a logical improvement. However, the inclusion of a rule, &sect;9-307(c), with a substantivist basis introduces an element of uncertainty into the system and should be removed.

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Most social practices nave some purpose or another to fulfil that justifies their existence. Indeed, we explain many formal and informal rules by reference to their particular raison d'etre. The reason for doing something, then, is clearly of major importance in considering the nature of the relevant practice as a whole. If this is true of informal social practices it must also follow for the legal system. The thesis of this essay, therefore, is that law is a purposeful activity and that such purposes have a very significant function within the system of law. Particular emphasis is placed upon the role that purpose plays in the decision-making process. It is argued to be a part of the law itself as opposed to some extra-legal criterion that may he taken into account. The law is not, in fact, neutral as to goals. The first chapter constitutes a study of the major theories of law in relation to their respective interpretations of the function of goals in the legal system. The schools of Positivism and Natural Law are examined as representing the polar positions in the debate. Then the intermediate standpoints of the Sociological jurisprudents and other writers are discussed. The basic issue here is whether it is at all possible to attribute an important role to purpose in this field. In chapter 2 a classification of goals is presented with a discussion of how it was derived and the problems that arose in doing so. If we are able to use goals in some way in the decisionmaking process it is necessary to look at various methods by which this can be done. This task is the subject of the final chapter. The problems involved in using goals and especially the fundamental difficulty of identifying the goals are examined. Some of the theories discussed in the first chapter are re-examined and evaluated. The possible limits upon the practicality of using purpose in the ways discussed have not yet become clear. However, it does appear that there is great potential for using purpose in the decision process. It offers a means for resolving many disputes and, frequently, even hard cases may be settled by looking to the purposes of the rules concerned. The exercise of drawing up a classification of goals has proved to be a practical method of assessing the viability of using purpose and a valuable indicator as to the major drawbacks to doing so successfully. / Law, Peter A. Allard School of / Graduate

In this thesis I argue that contemporary legal philosophy provides an inadequate analysis of central indeterminacies in law. I focus on "judicial discretion" as central to current analysis. Positivists, such as H.L.A. Hart, argue that it is the contingencies of human society that give rise to uncertainty in the application of law. Therefore, they believe that judges must be given discretionary powers. Ronald Dworkin, an American philosopher, believes that judges should not be given such powers. For him, it is the positivists' conception of law that is amiss. He believes that once the institutions of law are correctly appraised, the need for judicial discretion will be seen as a conceptual fault arising from a positivist analysis. In order to provide a critical framework in which to assess this debate, I outline the Causal Theory of Law developed by Professors S.C. Coval and J.C. Smith. If the attention given the concept of judicial discretion represents a concern with subjective elements in law, then the attention given the concept of a rule represents a concern with objective elements in law. In a tentative way, one might interpret the question at issue as being: "Is law ultimately an affair of reason or will?" Other questions follow: "Is this a false dichotomy?" "Must law be a combination of both authority and power, rational argument and official fiat?" I address these questions indirectly through an examination of Ronald Dworkin's legal philosophy. I find that Dworkin fails to understand the nature and complexity of the problems that he confronts. He believes that legal systems can be designed so that authority and power, legitimacy and efficacy never compromise each other. He does this, however, by giving precedence authority. The causal Theory interprets such resolutions as "disjunctive". Dworkin's resolution betrays his inability to appreciate the complexity of the problem. He also obscures the nature of the problem by his "rights thesis", which interprets the issue involved as primarily a question of normative political theory. However, his conception of normativeness is ambiguous and requires analysis. I argue, against Dworkin, first, that indeterminacy in law is a problem for institutional design, and second, that to argue that this design problem is normative is to take a view that is overly narrow and ultimately misleading. I conclude that those involved in the philosophical debate surrounding indeterminacy in law erroneously think that the solution will take a disjunctive form: One side or the other, of the antinomy between reason and fiat in law must be rejected. In line with the Causal Theory, I argue that once this problem is seen as one of institutional design, the problem takes on an entirely new shape. It becomes one of management and experiment. The function of the law is to help manage the political affairs of society, and also to provide opportunities for individual and group initiatives. Man is limited in his experience and knowledge. In the design of legal institutions man's abilities are not infinite; he can hardly be expected to foresee all eventualities. But such indeterminacy remains a matter of degree, relative to man's knowledge and his ability to use it. The legal enterprise, as does the scientific, can proceed without a completely worked out set of agreements, or system of beliefs. What is essential is an understanding among the participants as to how such sets will be developed. The core remains empirical. / Arts, Faculty of / Philosophy, Department of / Graduate