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Philosophy of Law

PHL 3132A CRN: 91383

POL 3132A CRN: 91384

MW 1:00PM  Racanelli Center 202

Dr Christian Perring, Department of Philosophy, Dowling College

E-mail: perringc at dowling.edu  [All email to me should have "PHL/POL3132" in the subject line]

Office Phone: 244-3349

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

Office Hours: MW 11:30AM-1:00PM; F 8:30-9:30, or by appointment

Required Textbook: [Available at Dowling bookstore and through online booksellers.]

Readings in the Philosophy of Law 4th Edition, John Arthur and William Shaw, Pearson, 2006.

Learning outcomes 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, 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 write 1 paper and will do 2 exams.

· Students will do a presentation, and should also provide a hand-out summarizing the relevant details for the class.

· Students will engage in group-discussion, and will articulate their own questions and opinions concerning the philosophical basis of law with the rest of the class.

· 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, some reading from the class textbooks 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.

Plagiarism detection and prevention: The paper should be submitted via Turnitin.com.  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.

Classroom Etiquette.  All cell phones ringers should be turned off and you should never talk on your cell phone in class.  You should not eat any food in class, especially food that others will notice through sound or smell.  You should turn up on time to all classes.  You are free to express your views and question the views of others, including your professor, and you can be passionate about your opinions.  However, you must always treat others in the class with respect; you can criticize the views and arguments of others, but you cannot criticize them as persons.  You should also make sure you are not dominating classroom discussion to the exclusion of other class members. 

Participation: You need to contribute to class discussion, which means you need to be there.  You should be engaged in the class, ready to answer questions and thinking of useful questions to ask.  You should not dominate class discussion to the exclusion of other students. You can also participate by engaging in discussion on the Google group discussion board.

Presentations.  Presentations should be 10-15 minutes.  Your presentation should be on a topic related to the course.  The main opportunity for doing a presentation is at the end of the semester, but you can also do a presentation during the semester.  It is important that your presentation should generate discussion in the class, and you can organize an class activity if that will help generate participation.  Here are three main ways to do a presentation:

• You can summarize your paper.  You should not read it out.  Rather, you should convey your enthusiasm and make the rest of the class excited about your topic.
• You can set out the details of a legal case on the schedule, on the day that we are covering that case.  You should explain the facts of the case, the reasons given for the judgment, and, if there is a dissenting opinion, what objections are made to the majority opinion.
• You can discuss one of the articles on the schedule, on the day that we are covering that paper.  You should summarize the main argument of the article, and discuss the strengths weaknesses of the argument.

Academic and Personal Problems.  If you have problems that cause you to be late with work or to miss a number of classes, please stay in communication by phone, email, or by meeting with me in person.  I will be willing to work with you and sort out a way for you to still stay in the class and get a fair grade.  If you miss a number of classes or fail to hand in work on time but don't give me any explanation then you risk failing the class.

Keeping Copies of Your Work.  It is your responsibility to keep copies of all your work in this course until your final grade is submitted.  You need to keep copies of your work in at least 3 different places, because all storage methods are fallible.  Floppy disks are very unreliable and I recommend you don't use them.  If you do use them, back them up every day.  Better methods of storage are CD-ROMS, flashdrives or jumpdrives, zip-drives, hard disks, and emails to yourself with your work attached to the emails.  It can be a good idea to print out your work and keep a hard copy.  But remember that no method of data storage is perfect, which is why you should keep your work stored in at least 3 separate places.

Email.  You should email me using your Dowling email account.  Email sent from other non-Dowling accounts are likely to go straight to my spam-folder and I will never see them.  If you want acknowledgement of your email, please ask for it.  (There are instructions about how to activate your Dowling email at email.dowling.edu, and if you have difficulties, you should consult the Dowling Computer Help Desk.)

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 will be penalized.  For both papers, late papers will lose 1% in grade for each day late.  Grades will be submitted to the registrar on Dec 20.  I do not give Incompletes except in cases of documented medical problems. 

Paper.  The paper should be written with APA style references.  Your paper should also have an appendix describing how you found your scholarly sources and why you decided they were good sources to use.  You must write a draft of your paper and get my comments on it.  The final paper needs to be at least 2500 words, and should have at least 5 scholarly references.  (Note that strong papers will typically be longer and have more references.)

Grade breakdown

Participation:               10%

Presentation:               10%

Midterm                      20%

Final exam                   20%

Paper                           40%

Syllabus

Date	Topic	Reading	Case	Work Due
9/9	Introduction			Self-Info Sheet
9/14	Punishment	The Utilitarian Theory of Criminal Punishment, Richard B. Brandt. (246) Persons and Punishment, Herbert Morris. (252)	Who Should Be Punished? The Case of the Dog Provetie. (245)
9/16		The Message of Punishment, Jean Hampton. (259) Restitution: A New Paradigm of Criminal Justice, Randy E. Barnett.  (263)
9/21	Sentencing	Electric Shock: The Fairest Punishment of All, Graeme Newman. (331)	Capital Punishment, Gregg v. Georgia. (324)
9/23			Three Strikes, Rummell v. Estelle. (335) Racial Bias in Sentencing, McClesky v. Kemp.  (339)
9/30	Criminal Responsibility	The Principles of Criminal Law, Richard B. Brandt. (347)	Survival on a Lifeboat, The Queen v. Dudley and Stephens. (342)
10/5		Attempting the Impossible: The Crime That Never Was, Leo Katz. (358) Intention, H.L.A. Hart. (352)
10/7		Rape, Force, and Consent, Susan Estrich.  (368)	The Battered Woman Syndrome, State v. Leidholm. (365)
10/12	The Insanity Defense	Is the Insanity Defense Insane?, R.J. Gerber. (375) What Is So Special about Mental Illness?, Joel Feinberg (383)
10/14		The “Rotten Background” Excuse, United States v. Alexander and Murdock. (390) Responsibility and the Limits of Evil.  Gary Watson (On Reserve)	Executing Mentally Retarded Murderers, Atkins v. Virginia. (395)
10/19				Midterm exam
10/26	The Rule of Law	Magnitude and Importance of Legal Science, David Dudley Field. (24) Eight Ways to Fail to Make Law, Lon Fuller. (27)		Paper topics given out
10/28		Grudge Informers, H.L.A. Hart. (32) The Problem of the Grudge Informer, Lon Fuller. (33) The Rule of Law and Its Virtues, Joseph Raz. (38)
11/2	The Moral Force of Law	Crito, Plato. (45) The Justification of Civil Disobedience, John Rawls. (50)
11/4		On Not Prosecuting Civil Disobedience, Ronald Dworkin. (57)
11/9	The Nature of Law: Classical Perspectives	Traditional Natural Law Theory, Bix. (112) Natural Law: Summa Theologica, Thomas Aquinas. (121) The Province of Jurisprudence Determined (126)
11/11	Legal Realism	The System of Law, Joseph H. Beale. (132) The Path of the Law, Oliver Wendell Holmes. (135) Realism and the Law, Jerome Frank. (139)
11/16	Legal Positivism	Positivism and Separation of Law and Morals, H. L.A.Hart. (147) Law as the Union of Primary and Secondary Rules, H.L.A. Hart. (155)
11/18		The Model of Rules, Ronald Dworkin. (161) “Natural” Law Revisited, Ronald Dworkin. (170)		Draft paper due
11/23	International Law	International Law, H.L.A. Hart. (182)	The African Slave Trade, U.S. v. La Jeune Eugenie; The Antelope; The Armistad. (187)
11/30			International Law and Individual Responsibility, The International Military Tribunal at Nuremberg. (192)
12/7	Legal Reasoning: Statutes	A Case Study: Interpreting the Mann Act, Edward H. Levi. (69)	Interpreting the Small Bird Act, Regina v. Ojibway. (68) Cases Interpreting the Mann Act, Caminetti v. U.S.; Mortensen v. U.S.; and Cleveland v. U.S. (74)
12/9		Interpretation, Tony Honore. (80)	Who is a Drunk Driver? Kentucky v. Whitt. (84) What is a Vegetable? Nix v. Hadden. (85) Can a Murderer Inherit? Riggs v. Palmer. (86)
12/14		Review
12/16				Final exam

Useful Internet Resources:

Internet Encyclopedia of Philosophy

• Philosophy of Law (no author stated)
• Natural Law by Kenneth Einar Himma

• Legal Positivism by Kenneth Einar Himma
• Legal Pragmatism by Brian Edgar Butler
• Human Rights by Andrew Fagan

Stanford Encyclopedia of Philosophy

• The Nature of Law by Andrei Marmor
• Naturalism in Legal Philosophy by Brian Leiter
• Legal Positivism by Leslie Green
• John Austin by Brian Bix
• Interpretivist Theories of Law by Nicos Stavropoulos
• Interpretation and Coherence in Legal Reasoning by Julie Dickson
• Legal Obligation and Authority by Leslie Green

• Law and Language by Timothy Endicott
• Punishment by Hugo Adam Bedau
• Legal Punishment by Antony Duff
• Civil Rights by Andrew Altman

• Human Rights by James Nickel
• Legal Rights by Kenneth Campbell
• John Stuart Mill by Fred Wilson
• Liberalism by Gerald Gaus and Shane D. Courtland

Other Web Pages

• Avalon Project: Nuremberg Trial Proceedings Vol. 1
• Court TV web page for the Nuremberg Trials
• The Flag Burning Page by Warren S. Apel
• Texas v. Johnson at Caselaw
• John Stuart Mill, from The Penguin Dictionary of Philosophy, ed. Thomas Mautner
• Cohen v. California at Caselaw
• Village of Skokie v. National Socialist Party of America at Caselaw.

More links:

· PBS Frontline: A Crime of Insanity (The video is available at the library: Location: Oakdale Videos (1st Floor) Call Number: KF224.T67 C75 2002)

· Encyclopedia of Everyday Law on Insanity Defense.

· Insanity defense Encyclopedia of Psychology by Kenneth B. Chiacchia

· Antioch Sexual Offense Policy

· United States v Alexander and Murdock (full case)
Atkins v. Virginia (full case)
IEP on Punishment
Stanford Encyclopedia
TLC show Inside Super Max prisons.  Part 1 Part 2 Part 3 Part 4 Part 5

Positivism and Natural Law

· STATE of Maryland v.  Edward Salvatore RUSK 

· SMALL V. UNITED STATES

· MICHAEL M. v. SUPERIOR COURT OF SONOMA COUNTY

Civil Disobedience

· Schenck v. United States

· WALKER ET AL. v. CITY OF BIRMINGHAM

· Minersville School District v. Board of Education