PHIL 222 – Philosophy of Law                   Spring 2012

Syllabus – keep handy for reference

 

Dr. Aeon J. Skoble

341 Tillinghast, x2460

Email: askoble@bridgew.edu     Web: http://webhost.bridgew.edu/askoble

Office hours: M 10-11, TR 1:45-2:45, or by appointment

 

Texts:

The Philosophy of Law, F. Schauer and W. Sinnott-Armstrong, eds.

There will be additional readings either posted on the course web page or distributed in class.  All readings mentioned are required unless otherwise noted.  I will also assign some films to be viewed at home – these may be the subject of exam questions and hence required.

 

Overview and objectives:

This course is an exploration of a variety of philosophical issues pertaining to law.  We will not be studying the law in the sense of learning what all the laws are, although we will refer to real laws and Supreme Court decisions in the course of our investigations.  Philosophy of Law, like “philosophy of” other things, is concerned with the theoretical underpinnings of our subject; ontological, epistemological, and ethical ramifications or presuppositions of our subject; questions of justification.  More specifically, we will examine questions such as: What is law?  What is the nature of legal reasoning, especially judicial reasoning?  How, if at all, does it differ from other reasoning in philosophy or politics?  Where does legal authority come from?  How are rights understood in the law?  How shall we understand the relation between morality and law?  What is the grounding of a system of punishment?  What is responsibility in the law?  There are also interesting questions about the evolution of legal practice, such as rules of evidence and criminal procedure.  Our objectives for this semester are to look at some of the main philosophical theories pertaining to these questions, get a better sense of what law is and what legal systems are, and to learn to think philosophically about these issues.  Although this class is beneficial to the pre-law student, its essence is philosophy.

 

Requirements:

There will be a take-home, essay mid-term exam due March 4th worth 20%, a comprehensive, take-home, essay final exam due May 3rd worth 30%, and two papers of around 5-6 pages, each worth 20%.  Please be advised that failure to complete any assignment constitutes sufficient grounds for failing the class.  The remaining 10% is for attendance and participation.  Regular attendance is expected – absences in excess of three will result in deductions from your grade, and excessive lateness will count as absences.  But beyond your mere presence, it is expected that you will come fully prepared, having done the readings and ready to discuss them, or to be called on to answer a question about them.  No previous study of the law is presupposed, but any court case assigned in conjunction with the readings is your responsibility.  Late papers will be penalized one letter grade per day.  Papers and take-home exams will be submitted via email from your bridgew.edu account as attachments in Word.  Word should be configured to 12-point Times New Roman, double-spaced with 1-inch margins all around.  Your name, date, and “PHIL222” should appear top right on the first page.  Page numbering on.  Documentation of sources on a separate page following the end of your paper.

Outline:

The first part of the course will provide a brief overview of philosophical treatments of the nature of law.  What is law?  What makes a valid law valid?   What is the “natural” in “natural law”?  The second part of the course will be devoted to studying different modes of legal reasoning.  This section will involve an analysis of currently controversial doctrines such as original intent, legal pragmatism, legal realism, critical legal studies and so on.  The third part of the course will be an exploration of the strengths and weaknesses of different types of legal reasoning and legal analysis in the context of specific “hard cases.”  Here we will discuss the moral foundations of law and questions about the moral obligation to obey the law.  This will involve a discussion of different notions of rights and their role in legal reasoning.  We will also address different conceptions of justice, and other topics as time permits.

 

A detailed conceptual outline appears at the end of the syllabus.  The basic outline, mapped onto a calendar, will be as follows: 

Week of:         Topic, reading assignment for that week; other notes:

Jan 19              Distribution of syllabus; intro to course

Jan 24-26         What is Law? 

Jan 31-Feb 2   

Feb 7-9            Legal Reasoning

Feb 14-16       

Feb 21-23        1st paper due Feb 23 – begin Morality and Law

Feb 28-Mar 1  midterm due Mar 4

[Mar 6-8          Spring break, no class]

Mar 13-15       Rights

Mar 20-22       Rights; Justice

Mar 27-29      

Apr 3               Punishment [No class April 5]

Apr 10-12         

Apr 17-19        Responsibility- 2nd paper due Apr 22

Apr 24-26        ch. 8 if time permits

May 1-3           T 5/1 is reading day; Th 5/3, 11:00 am, due date for take-home final exam

The above calendar is subject to change and deliberately vague to allow us some flexibility.  As the discussions proceed, we may find some topics expanded, others reduced.  See below for detailed outline.

 

Class policies and other tips:

Philosophy has, as its essence, the idea of conversation.  There will be some lecturing as I introduce you to the material, but you should feel free to ask questions -- of me, and of your classmates -- and to agree or disagree as you see fit.  However, you must strive to maintain an atmosphere of civil discourse.  There is a difference between philosophical argument (which is cooperative and constructive) and belligerent bickering.  You should come prepared – meaning, you should have done the readings, given them some thought, and be enthusiastic about exploring the issues further.

 

*I will have a web page for this class.  On the top of my home page look for a link to “PHIL222”

 

*Make use of my office hours, and don’t hesitate to make an appointment if the posted  times are not convenient for you.  (In any class, don’t wait until it’s “too late” to seek help. If you’re having trouble, let the professor know and show you are concerned.)  Don’t expect a full recap of the entire semester’s work the day before an exam.  Come to office hours with definite questions, concerns, or problems in mind. Don’t wait until you arrive to think about what you need help with.

*If you’re finding the subject matter interesting, consider getting involved with the BSU Philosophy Club, which is student-run and meets periodically, independent of faculty oversight.  You might also consider the advantages of Philosophy as a major or minor.  It offers excellent preparation for a variety of careers, especially law, public policy, and management.  I will make one announcement about this later in the semester, but feel free to speak to me or any of my colleagues about it at any time.

*The department maintains a web page, which contains links to useful resources, fun philosophical diversions, and information about coming events of potential interest.  Go to http://www.bridgew.edu/philosophy and have a look around!

*All electronic devices, and ideally hats, should be off.

*Zero Tolerance Policy on cheating and plagiarism.  That’s an F for the course.

 

 

Useful online resources:

http://www.supremecourtus.gov/opinions/opinions.html -- The US Supreme Court

http://www.constitution.org/liberlib.htm -- Historical legal writings (includes our Constitution)

http://www.constitution.org/mil/ucmj19970615.htm -- Military law

http://www.law.harvard.edu/library/ -- Harvard Law Library

http://www4.law.cornell.edu/uscode/ -- Searchable US Code

http://www.findlaw.com -- all-purpose resource

http://volokh.com – legal issues blog by UCLA Law Professor Eugene Volokh and others

http://lsolum.typepad.com/legal_theory_lexicon/ -- Lawrence Solum’s Legal Theory Lexicon

Conceptual Course Outline:

 

I. What is Law?

            A. What sort of question is that?

            B. Natural law theory

            C. Legal Positivism

            D. Defusing the Natural-Law/Positivism split

                        1. American Legal Realism

                        2. Critical Legal Studies

                        3. Who is right about Indeterminacy?

            E. Dworkin’s “integrity theory”

            F. Hayek’s thesis/nomos distinction

 

II. The nature of legal reasoning

            A. Legal reasoning as a subset of logical reasoning

            B. The allure of mechanical jurisprudence

                        1.Legal rules and the rule-of-law model

                        2.Mechanical jurisprudence and original intent

                        3. Originalism-its varieties and competitors

            C. Reaching versus justifying a decision

            D. Interpreting legal texts

                        1.Statutes

                        2.Constitutional provisions

            E. Reasoning from precedent and analogy

            F. The Indeterminacy Argument revisited

 

III. The moral force of law

            A.Is there a moral obligation to obey the law?

            B. Civil disobedience

 

IV. The nature and role of rights in legal reasoning

            A. Different senses of “rights”

            B. Property rights in the law

            C. Basic issues in constitutional rights

 

V. Justice and Equality

            A. Theories of justice

            B. Problems of justice

 

VI. Punishment

            A. Deterrence

B. Retribution

C. Restitution

 

VII. Responsibility

VIII. Procedure and Evidence