PHIL 222 –
Philosophy of Law Spring 2014
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:
“Philosophy of
Law” course pack available at BSU bookstore.
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 writing
prompts 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 court decisions in the course of our investigations. Philosophy of Law, like the “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? Where does it come from? What is the nature of legal and judicial
reasoning? What grounds legal authority? 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?
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:
First
of all, please note that you are required to do all assigned readings and
viewings, whether from the texts, on handouts, or on the internet, and to be
prepared to comment on them if called on in class to do so. Repeated unpreparedness indicates that you
are not taking the class seriously and will result in grade reduction as
appropriate. Also, regular attendance is a requirement of the class. This is a reflection of the fact that the
primary vehicle for learning the material is the class itself, of which you
should see yourself as a part. You
should regard coming to class as the norm. Obviously there is such a thing as a
good reason to miss class, but be sure you limit your absences to such
occasions, as absences in excess of three will result in reduction of overall
grade no matter what your average is.
Excessive lateness will count as one or more absences -- besides being
disruptive, you are missing something. If you do have to miss class, it is your
responsibility to get the notes, and any announcements or additional
assignments, from a classmate. (On the
other hand, if I am late, it almost certainly means I am ill – call the
department office at x1258.) In general,
try to observe some of the ground rules of civilized society: Anything with an
off switch should be off (as should, ideally, hats), eat and drink quietly and
discreetly, don’t read the newspaper or do homework for another class, don’t go
to sleep. You are not to use your phone
during class. Disruptive behavior will
result in your being asked to leave.
Conversely, constructive participation will be rewarded. Philosophy has, as its essence, the idea
of conversation. There will be some
lecturing as I introduce you to 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.
Subject
to adjustments as noted above, your grade will primarily be calculated thus:
Weekly
response: each week, with one or two exceptions, I will ask you to respond
to some question or reflect on some problem.
You will reply via email not later than Sunday at noon. Your reply need not be more than a paragraph,
but must demonstrate critical reflection and real engagement with the
material. Successful completion of all
weekly responses=40%
Two
short papers (approx. 3 pages) I will ask you to (and help you figure out how
to) expand two of your weekly responses into full essays. This can happen at any time, but you will not
be asked to do them both in consecutive weeks.
@30% each=60%
Late
papers will be penalized one letter grade per day. Papers should be written in WORD, and 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. The papers should be a .doc or .docx file sent as an attachment to an email. The weekly responses should just be in the
body of an email, and in both cases, this should be an email sent from your
bridgew.edu account, with a subject line saying “weekly response #x” or “first
essay” etc.
Outline:
The course is
divided into several distinct but often related topics. Part 1 is on the nature of law. What is
law? What makes a valid law valid? What is the “natural” in “natural law”? Where does law come from? Part 2 is concerned with theories of
interpretation, some of which you may have heard discussed: formalism,
originalism, realism, and so on. Part 3
will be an exploration of the evolution of law and legal systems, including a
look at the idea of polycentric law.
Part 4 is devoted to several philosophical problems in the law: the
nature of punishment, the concept of responsibility, rights theory, and civil
disobedience theory. If time permits we
will discuss all four of these. The
basic outline, mapped onto a calendar, will be as follows:
Week of: Topic, reading assignment for that
week; other notes:
Jan 23 Distribution of syllabus; intro to
course
Jan 28 Begin
Part 1 (No class Jan 30)
Feb
4 (No
class Feb 6)
Feb 11-13
Feb 18-20
Feb 25 Begin
Part 2 (No class Feb 27)
Mar 4-6
Mar 18-20
Mar 25-27 Begin Part 3
Apr 1-3
Apr 8-10
Apr 15-17 Begin Part 4
Apr 22-24
Apr
29- May 1
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 a detailed outline.
*Zero Tolerance
Policy on cheating and plagiarism.
That’s an F for the course.
Course Outline
with readings:
Selections with
an asterisk are not in the course pack as they are available online. I will provide the URLs for these selections. Other selections may be handed out or posted.
Jan 28-Feb
20: The nature of law
1.
H.L.A
Hart, The Concept of Law (Oxford UP,
1961) , pp. 77-96
2.
*Thomas
Aquinas, Summa Theologica,
questions 90-97
3.
Lon
Fuller, The Morality of Law (Yale UP
1964), pp. 33-38
4.
*Frederic
Bastiat, The
Law (FEE, 1987 (1850))
5.
Friedrich
Hayek, The Constitution of Liberty (U
of Chicago Press, 1960), pp. 148-175
6.
Friedrich
Hayek, Law, Legislation, and Liberty
(U of Chicago Press, 1973), pp. 35-54, 72-144
Feb 25-Mar 20:
Legal interpretation
1.
Handout
2.
Richard
Posner, “Legal Formalism, Legal Realism, and the Interpretation of Statutes and
the Constitution,” Case Western Reserve
University Law Review, v. 37 (1987), pp 179ff
3.
John
Hasnas, “The Myth of the Rule of Law,” Wisconsin Law Review, vol 1995 no. 1, pp. 199ff
Mar 25-Apr 10:
Polycentrism and the evolution of law
1.
Bruce
Benson, “Are Public Goods Really Common Pools? Considerations of the Evolution
of Policing and Highways in England,” Economic
Inquiry XXXII (April 1994), pp. 249-271
2.
Joseph
R. Peden, “Property Rights in Celtic Irish Law,” Journal of Libertarian Studies 1 (1977),
pp. 81-95
3.
David
Friedman, “Private Creation and Enforcement of Law – A Historical Case,” Journal of Legal Studies 8 (1979), pp.
399-415
4.
Paul
Milgrom, Douglass North, and Barry Weingast, “The Role of Institutions in the Revival of
Trade: The Law Merchant, Private Judges, and the Champagne Fairs,” Economics and Politics 2 (1990), pp.
1-23
5.
Bruce
Benson, Legal Evolution in Primitive Societies, Journal of Institutional and Theoretical Economics 144, 5 (1988),
pp. 772-788
6.
Terry
L. Anderson and P.J. Hill, “An American Experiment in Anarcho-Capitalism:
The Not So Wild, Wild West,” Journal of Libertarian Studies 3, 1 (1979), pp. 9-29.
7.
Harold
Berman, Law and Revolution (Harvard
UP, 1983), pp. 520-558
8.
*Randy
Barnett, “Pursuing Justice in a Free Society,” Part One (Criminal Justice Ethics Summer-Fall 1985); Part Two (Criminal Justice Ethics Winter-Spring
1986)
Apr 15-May 1:
philosophical issues in the law
1.
*Jeremy
Bentham, The Principles of Morals and
Legislation (Prometheus Books 1988), pp. 170-188
2.
*Immanuel
Kant, “On the Right to Punish,” The
Metaphysics of Morals (Cambridge UP, 1991), pp. 140-144
3.
John
Rawls, “Two Concepts of Rules,” Philosophical
Review 64 (1955), pp. 3-13
4.
Herbert
Morris, “Persons and Punishment,” The Monist (1968)
5.
Plato,
“Crito,” in Five
Dialogues, ed. G.M.A. Grube (Hackett 1981), pp.
45-56
6.
*Thoreau,
“Civil Disobedience”
7.
John
Rawls, “Legal Obligation and the Duty of Fair Play,” in S. Hook, ed., Law and Philosophy (NYU Press 1964), pp.
3-18
8.
A.
John Simmons, “The Principle of Fair Play,” Philosophy
and Public Affairs, vol 8, no 4 (1979), pp.
307-337
9.
Richard
Epstein, “A Theory of Strict Liability,” Journal
of Legal Studies vol 2 (Jan 1973)
10. Hart and Honore,
selection TBD
11. *Thomas Jefferson, Declaration of
Independence
12. Rights theory handout
Films assigned
for home viewing may include: 12 Angry Men, Breaker Morant,
A Man for All Seasons, Judgement at Nuremberg, The
Castle, Billy Budd, Gideon’s Trumpet, Unalienable.
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