Philosophy of Law
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)
Harvard Law Library
Searchable US Code
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 Jan 25.
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?
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 #2: 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 #3: 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?
Reading assignment for Unit 2:
Theories of Legal Interpretation
Also: here's a short video on spontaneous order theory. Here's another short video on spontaneous order theory. Which brings me to Weekly Response #4: why should we think of common-law systems as examples of organic order?
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:
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?
Optional 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
That's due Sunday noon as usual. But also: if you want to get started on your first paper - this will be due March 16th at noon. Even though this will be submitted electronically, the paper should be formatted as if for printing: 2-3 pages, double-spaced, in Times New Roman, 12-point, with 1-inch margins on all sides. Do not submit incorrectly formatted papers. Put your name, date, and "PHIL222" on the top right of page 1, and number the pages. Use MS WORD (must be a .doc or .docx file), and submit electronically, as an attachment sent from your bridgew.edu email account. Topic: Explain how Hayek’s idea of “spontaneous order” is reflected in the common law tradition, and address whether or not this is a reflection of what Aquinas might call the human ability to know what is right, or a reflection of something else.
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.
Remember, on Tuesday 3/27, class will meet in the Science Building auditorium, DMF120.
No class Thurs 3/29. "Cyber-lesson" on polycentrism is here. Includes prompt for Weekly Response #8.
Week of 4/3: we begin the "philosophical issues in the law" section with a discussion 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, read the selection "Two Concepts of Rules," by John Rawls, in our reader.
After the punishment unit, we turn to the issue of civil disobedience. 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.
So, we have several facets to this issue: 1, Does Plato's point about about tacitly agreeing to "the laws" really imply a duty of obedience to _all_ laws? The disagreement between Rawls and Simmons explores this a little more. 2, the question of punishment: are you _obligated_ to accept the punishment, or is this a tactical advantage only? Or both? Or neither? Rawls and Simmons explore this also. 3, By definition, civil disobedience is non-violent, but does morally justified lawbreaking _necessarily_ entail non-violence, or is violence ever justified? Consider those, and we'll discuss on Thursday, but meanhile:
Weekly Response #9: Read this post, then: give your assessment of jury nullification. You can have til Monday at noon on this one.
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 Gideon case was also the subject of a film treatment, if you're interested in following up on that (totally optional).
Weekly Response #10: Reflect on the Gideon case's rationale for shifting from a negative right to a positive right - do you find this persuasive, and why or why not? Do you find other attempts to shift a negative right to a positive right analogous or spurious? Due Sunday.
For next week:
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.
No weekly response this week. You may begin working on your
second paper, which is due May 4th, 5:00 pm. Again, even
though this will be submitted electronically, the paper should be formatted as
if for printing: 2-3 pages, double-spaced, in Times New Roman, 12-point, with
1-inch margins on all sides. Do not submit incorrectly formatted papers.
Put your name, date, and "PHIL222" on the top right of page 1, and number the
pages. Use MS WORD (=must be a .doc or .docx file), and submit electronically, as an attachment sent from
your bridgew.edu email account. Topic:
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? Why is a right to
property important in the first place?