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PHL/POL 3132A Philosophy of Law

 

MW 1130AM-1250PM

 

Dr Christian Perring, Department of Philosophy, Dowling College

  

E-mail: perringc at dowling.edu  [All email to me should have "PHL3132" in the subject line]

Office Phone: 244-3349

Office: 330B RC (next to the computer lab)

Office Hours: MW 10:00-11:30 AM

 

Textbook: Philosophy of Law, by Joel Feinberg, Jules Coleman (editors), Wadsworth Publishing, 2004

 

Aims of the course and modes of assessment

·        Students will examine controversial issues in the law as a way to understand the debates over the ultimate justification of legal authority.  These will include topics such as the right to property, the legality of slavery, rape laws, abortion laws, religious freedom and other freedom of expression, assisted suicide, affirmative action, the death penalty, and the insanity defense.  These will provide material for more theoretical debates between legal positivism, natural law, and legal constructivism.

·        Students will understand the philosophical basis of law.  They will gain skills of articulating the issues in the foundations of law, defending their views, and assessing the plausibility of alternative views.  They will also be able to analyze legal cases to determine the philosophical assumptions with which legal decisions are made.

·        Students will do oral presentations, engage in structured discussion in class, write 2 short 4-page papers on particular cases and write a long 15-page term paper on central issues in the field.

·        The skills and knowledge required in coming to grasp the philosophical basis of law integrate well with both the rest of philosophy and also political science.  Naturally, as in most subjects, critical thinking, analysis and argumentative skills are central.  More particularly, the philosophy of law helps students to assess the authority of the state to rule its citizens, and this is central to most political science and many areas in ethics and political philosophy.

 

Reading assignments: Each class, one or more articles from Philosophy of Law will be assigned.  These readings are philosophically sophisticated and you must do the reading ahead of time to be prepared for class discussion.  You should be familiar with the main ideas in each assigned reading, and you should make notes of those parts that are hard to follow.  My policy will be to explain the readings to those who have read them and are ready to discuss them, not to explain them to students have not done the reading.  To a large extent, the course proceeds cumulatively and understanding the readings of the early weeks will be essential to understanding the discussion during later weeks.

 

Attendance: If you need to miss a class, you should notify me by phone or email before the class.  Your attendance grade will suffer significantly if you miss classes without excuse.  If you miss classes, you should request make-up work from me.  To get full credit for attendance, you need to be in class on time, be there for the full class time, and you need to be awake and paying attention to the class.  If you have to miss class for a legitimate reason, you should provide me with some evidence for your excuse.

 

Participation: You should participate in class discussion, both answering questions that are put to the class, raising questions when you do not fully understand an idea or a part of the text, or what someone in the class says. 

 

Keep copies of all your writing.  For any paper or piece of writing, there is a chance that I will mislay it.  So you must keep a copy of everything that you give me.  If your copy is electronic, you should keep your copy in at least 3 different places (floppy disk, hard drive, memory card, jump drive, etc) in order to minimize the danger of losing it in a computer crash or hardware failure.  If you give me something handwritten, you should photocopy or scan it first.

 

Due dates: Work is due on the day stated in the schedule.  You can give it to me in class, in my office if I am there, in my mailbox, or by e-mail or using turnitin.com by midnight.  If you are unable to make a deadline, you should tell me and explain why.  If your work is late without excuse, you may be penalized.

 

Plagiarism detection and prevention: All papers should be submitted via Turnitin.com or sent to me by email as an attachment in MS Word or RTF.  I cannot accept files in MS Works.  If you cannot do this, then you can give me a disk with your work on it.  I will give you information about how to use Turnitin.com.  Note that I view any form of academic dishonesty very seriously, and if I find that you have engaged in any significant form of plagiarism or cheating I will fail you in this course and report my action to the Dean of Students.

 

Grade breakdown

Attendance:      5%

Participation:     5%

Paper 1:           20%

Paper 2:           20%

Paper 3:           50%

 

Papers (links)

·        Paper 1

·        Paper 2

·        Paper 3

 

The structure of the course will mirror the structure of the book Philosophy of Law

 

Syllabus

Part I: LAW.

1.  Introduction.

The Natural Law Tradition.

2.         Brian Bix, Natural Law Theory (p. 8)

            Lon L. Fuller, Eight Ways to Fail to Make Law (p. 20)

Positivism and Its Critics

3.         John Austin: A Positivist Conception of Law. (p. 24)

            Jules Coleman and Brian Leiter: Legal Positivism. (p. 105) (optional)

4.         H.L.A. Hart: Law at the Union of Primary and Secondary Laws. (p. 36)

H.L.A. Hart: Positivism and the Separation of Law and Morals. (p. 50)

5.         Lon L. Fuller: Positivism and Fidelity to Law--A Reply to Professor Hart. (p. 67)

6.         Ronald Dworkin: The Model of Rules. (p. 82)

Riggs v. Palmer. (p. 100)

7.         [Oliver Wendell Holmes: The Path of the Law. (p. 119) Not Required]

           

Oct 10.                        Ronald Dworkin: Integrity in Law. (p. 127)

Jerome Frank: Legal Realism. (p. 125)

First paper due October 10, 2005

Oct 12.            [Lon L. Fuller: The Case of the Speluncean Explorers. (p. 142) Not Required]

John Hart Ely: Discovering Fundamental Values. (p. 157)

                        David Lyons: Constitutional Interpretation and Original Meaning. (p. 172)

JUSTICE.

Liberty.

Oct 17.                        John Stuart Mill: The Liberal Argument. (p. 267)

                        Joel Feinberg: Offensive Nuisances. (p. 278)

Oct 19.                        Gerald Dworkin: Paternalism. (p. 293)

Rights.

Oct 24.                        Joel Feinberg: The Nature and Value of Rights. (p. 304)

Oct 26.                        F.M. Kamm: Conflicts of Rights. (p. 313)

[Jules Coleman and Jody Kraus: Rethinking the Theory of Legal Rights. (p. 323) Optional]

Freedom of Expression and Its Limits.

Oct 31.                        Joel Feinberg: Limits to the Free Expression of Opinion. (p. 379)

Cohen v. California. Village of Skokie v. National Socialist Party of America. (p. 395)

Texas v. Johnson. (p. 399)

Nov 2.             Henry Louis Gates: War of Words: Critical Race Theory and the First Amendment. (p. 412)

                        Second paper due, November 7, 2005

Torts.

Nov 7.             Jules Coleman and Arthur Ripstein: Mischief and Misfortune. (p. 526) (Optional)

Stephen R. Perry: Loss, Agency, and Responsibility for Outcomes: Three Conceptions of Corrective Justice. (P. 546)

RESPONSIBILITY AND PUNISHMENT.

Ascribing Responsibility.

Nov 9.             Stephen Perry: The Impossibility of General Strict Liability. (p. 612)

Nov 14.           H.L.A. Hart and A.M. Honore: Causation and Responsibility. (p. 630)

Judith Jarvis Thomson: The Decline of Cause. (p. 642)

Nov 16.           John Gardner: Obligations and Outcomes in the Law of Torts. (p. 658)

Palsgraf v. The Long Island Railroad Co. (p. 676)

Summers v. Tice. (p. 682)

Sindell v. Abbott Laboratories. (p. 686)

Defeating Responsibility.

Nov 21.           John Martin Fischer and Mark Ravizza: Responsibility for Consequences. (p. 724)

People v. Young. (p. 739)

Nov 28.           Sanford S. Kadish and Stephen J. Schulhofer: The Case of Lady Eldon's French Lace. (p. 741)

The M'Naghten Rules. (p. p. 746)

The American Law Institute, The Insanity Defense. (p. 747)

State v. Guido. (p. 750)

Nov 30.           Joel Feinberg: What Is So Special About Mental Illness? (p. 751)

Draft of final paper due, November 30

Punishment.

Dec 5.              Joel Feinberg: The Expressive Function of Punishment. (p. 761)

Toni M. Massaro: Shame, Culture, and American Criminal Law. (p. 771)

Dec 7,              Joel Feinberg: The Classic Debate. (p. 799)

[C.L. Ten: Fantastic Counterexamples and the Utilitarian Theory. (p. 804) (Optional)]

Dec 12.            Herbert Morris: Persons and Punishment. (p. 819)

Russ Shafer-Landau: The Failure of Retributivism. (p. 831)

Dec 14.            Jeffrie G. Murphy: Getting Even: The Role of the Victim. (p. 842)

 

Final paper due, December 14.

 

 

Useful Internet Resources:

 

Internet Encyclopedia of Philosophy

·        Natural Law by Kenneth Einar Himma

 

Stanford Encyclopedia of Philosophy

·        The Nature of Law by Andrei Marmor

·        Legal Obligation and Authority by Leslie Green

·        Punishment by Hugo Adam Bedau

·         Legal Punishment by Antony Duff

·        Civil Rights by Andrew Altman

 

Other Web Pages