PHIL222
Philosophy of Law
Spring 2014
Here is the course syllabus. Check back here periodically for additional readings and messages.
Here are the web resources listed on the syllabus, here as working links:
The US Supreme
Court
Historical legal writings
(includes our Constitution)
Military law
Harvard Law Library
Searchable US Code
FindLaw-all-purpose resource
Volokh Conspiracy- legal issues blog by UCLA Law
Professor Eugene Volokh and other lawprofs
Lawrence Solum’s Legal
Theory Lexicon
And here's one I forgot to add to the syllabus: the
Library of Law and Liberty
Your first "law movie" assignment: watch the film Judgment at
Nuremberg (1961), by Feb 1.
For next week, read the selection from Thomas Aquinas
here - just read Q. 90-96.
Weekly Response #1: In the film Judgment at Nuremberg, one of the defense arguments is that what the Nazis did wasn't illegal. How does the prosecutor argue against this line of reasoning? Do you find this persuasive?
For next week, besides reading the selection from Lon Fuller, watch the movie
Billy Budd. (It's based on the Melville story.)
Weekly Response #2: Given Aquinas' claim that the natural law is
knowable to the human intellect, what would you say accounts for the fact of
widespread disagreement that on certain issues seems virtually irreconcilable?
Our next reading selection is an essay called "The Law," by Frederic Bastiat,
a 19th-century French thinker. This selection is not in the reader but may
be accessed here.
Weekly Response #3: Bastiat claims that "perverted law causes conflict" -
explain this by way of comparing it to what Fuller says on pages 22-24 of the
reader.
For next week, read the selections in the reader by F.A. Hayek.
Weekly Response #4: Consider Hayek's argument that "law is older
than legislation," and his distinction between thesis and nomos -
does this tie him to the natural law tradition, or is he doing something else
here?
Here is the Interpretation material again:
Formalism – we should only apply the black-letter law and not get into normative
issues. This has the flavor of syllogistic reasoning: all jaywalkers should be
ticketed (law), this person is jaywalking (alleged fact), therefore this person
should be given a ticket. But, it’s complicated:
http://lsolum.typepad.com/legal_theory_lexicon/2005/05/legal_theory_le_1.html
Textualism - we should stick with the plain meaning of the text. We all know
what jaywalking is, so we don’t need to “interpret” anything. Or do we?
http://lsolum.typepad.com/legal_theory_lexicon/2004/04/legal_theory_le_3.html
Ok, so if we do need to interpret, what guiding principle do we appeal to? What
the word means to most people today? What the word meant to the authors of the
law? What the word meant to the average person at the time the law was
enacted? What the authors of the law meant to accomplish by writing the law?
There is “originalism” in several varieties, and the non-originalism some refer
to as “living constitution.”
http://lsolum.typepad.com/legal_theory_lexicon/2004/01/legal_theory_le_1.html
http://lsolum.typepad.com/legal_theory_lexicon/2013/02/legal-theory-lexicon-071-the-new-originalism.html
Weekly Response #5: Now that you've read about the
different theories, look again at that case we discussed in class, but use this
link instead now:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=471&invol=84
This link also includes the actual opinions handed down by the court. Have
a look in particular at Justice Marshall's argument in section IIIA, and Justice
Stevens' dissent, esp. section I. Which argument do you find more
compelling and why?
Movie recommendation: A Man for All Seasons (1966)
Weekly Response #6: Review Hasnas pages 122-124 - why does he say the the Critical Legal Studies movement is missing the point of the indeterminacy argument? In what sense is his own view more radical than theirs?
Weekly Response #7: You've now seen something of early bottom-up legal systems in England, Ireland, and Iceland. Find three similarities, features common to all three, and explain how these fit Hayek's criteria for promoting peace and stability in the community.
One more reading on
Polycentrism Optional for this week, but contains material relevant
for next week.
Anyway, Weekly Response #8: In our class discussion of the
essay by Anderson and Hill, I deliberately skipped over their mention of
something called "Schelling Points." What are these, and in what ways
might they be relevant to a natural-law analysis of polycentrism?
Readings for next week (April 8-10) - we will begin with the philosophy of punishment. Bentham reading is here - chapters 13 and 14 mainly. Then, Kant - "On the Right to Punish" - go here and start on p. 194. Also, the selection "Two Concepts of Rules" in our reader.
Weekly Response #9: In the article (in your reader) by Herbert Morris, he contrasts punishment and therapy, particularly with regard to fundamental conceptions of the human person and human responsibility. Assess his argument, esp. pp. 255-261.
For next week's reading, in addition to the Plato, Rawls, and Simmons entries in the reader, you should read Thoreau's famous essay on the subject. It's here.
Weekly Response #10: Read this post, then: give your assessment of jury nullification.
For next week's reading, on causation and responsibility in law, read the final selection in the reader, by Epstein, and also the packet I emailed.
Weekly Response #11: Watch the film "Breaker" Morant -- reflect on the outcome of the trial- just or unjust? Why?
Readings for next week: The Declaration of Independence; the Bill of Rights; Solum's legal theory lexicon entry on rights, and individual liberty and the law; and this reading on the right to counsel.
The Castle, a 1997 Australian film, is one of the best film treatments
of the eminent domain issue, plus it's hilarious. You can stream it at the
link. Since it's for pay, I won't require it, but I do recommend it highly
(only 3 bucks though!).
Of course, the issue of just compensation is typically not the stuff of comedy;
as the real-life case of Kelo v. New London shows, it can be tragic.
Here is a summary of what happened in that
case by the public-interest law firm that helped the homeowners. Below the
summary are links to the court's ruling and the dissent, as well as the brief
filed on behalf of the homeowners.
The Gideon case was also the subject of a film treatment, if you're interested in following up on that.
WR #12: Reflect on the eminent domain/takings clause issues at stake in the Kelo case. Does, or should, the right to property trump state justifications for takings? Can you think of any exceptions? How can the problems with compensation be addressed?