Philosophy of Law

PHL 3132A CRN: 21102

POL 3132A CRN: 21103

11:30 am - 12:50 pm MW

Racanelli Center 420

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 10:00AM - 11:30AM; F 7:00-8:00AM, or by appointment

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

Philosophical Problems in the Law 4th Edition, David M. Adams, Thompson-Wadsworth, 2005

On the Philosophy of Law, David Reidy. Wadsworth, 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, 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 write two papers and will do a take home exam.

· 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.

Reading Notes: you must make notes on the reading every week. Each class I will collect and review your reading notes. Each set is worth 0.5% of your final course grade and you must submit 20 sets. The notes should be at least 300 words, with benchmarks (page, section, or chapter markers), and should include some personal thoughts and reactions that strike you as you read. Since you either get full credit or no credit, you do not need to worry so much about spelling and grammar.

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 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.

Attendance: Attendance is required, including the first class. You need to be seated in the classroom by the start of the class period, when I will take attendance. If you are late to class, you need to speak to me at the end of class to explain why you were late and ask me to record your presence on my roster. If you need to miss a class, you should notify me by phone or email before the class. To get an absence excused, you must provide documentation of a medical reason. . Your attendance grade will suffer significantly if you miss classes without excuse.

Attendance grade: 0 absences =100; 1 absence =90; 2 absences=75; 3 absences=50; 4 or more = 0

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. You should be engaged in the class, ready to answer questions and thinking of useful questions to ask. You can also participate by engaging in discussion on the Blackboard 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 one of your papers. 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 papers on the schedule, on the day that we are covering that paper. You should summarize the main argument of the paper, 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 May 15.

Papers. Papers 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.

Grade breakdown

Attendance: 5%

Participation: 5%

Presentation: 10%

Reading notes: 10%

Take home exam: 25%

Paper 1: 15%

Paper 2: 30%

Paper 1. >1500 words. 2 scholarly references.

Paper 2. >3000 words. 4 scholarly references.

Schedule (subject to revision)

W 1/30/08

Introduction and extracts from documentary on the Nuremberg trials

M 2/4

Reading

Adams, What is Law? (Adams 15-19)

Robert H. Jackson, Opening Address for the United States, Nuremberg Trials (Adams 22-28) (Also available online)

Charles E. Wyzanski, Jr., Nuremberg: A Fair Trial? (Adams 28-33) (Also available online)

Nuremberg Trial Proceedings: Charter of the International Military Tribunal (available online)

W 2/6

Reading

Reidy, Ch.2, On Legal Positivisms (7-43)

M 2/11

Reading

John Austin, Legal Positivism (Adams 49-54)

H. L. A. Hart, Positivism and the Separation of Law and Morals (Adams 61-70)

Riggs et al. v. Palmer (Adams 149-153)

W 2/13

Reading

Reidy, Ch 3, On Natural Law Theories (Adams 44-81)

M 2/18 President's Day: No Class

W 2/20

Reading

Lon L. Fuller, Positivism and Fidelity to Law. (Adams 70-76)

Thomas Aquinas, What Is Law? From Summa Theologiae. (Adams 76-78)

Martin Luther King, Jr., Letter from Birmingham Jail. (Adams 78-82)

Lon L. Fuller, The Problem of the Grudge Informer (Adams 159-163)

M 2/25

Reidy, Ch 4, On Legal Realism and Its Progeny (82-111)

W 2/27

Reading

Oliver Wendell Holmes, The Path of the Law. (Adams 89-95)

Jerome Frank, A Realist View of the Law. (Adams 95-99)

Mark Tushnet, Critical Legal Studies: An Introduction to Its Origins and Underpinnings. (Adams 99-105)

M 3/3 First paper due

Reading

Reidy, Ch 7, On International Law (185-210)

W 3/5

Reading

Reidy, Ch 5, On Constitutionalism, Democracy and Judicial Review (112-150)

M 3/10

Reading

Smith v. U.S. (Adams, 172-176)

Church of the Holy Trinity v. U.S. (Adams 176-178)

Antonin Scalia, The Role of U.S. Federal Courts in Interpreting the Constitution. (Adams 178-184)

W 3/12

Reading

Ronald A. Dworkin, Comment on Scalia. (Adams, 184-188)

Robert Bork, The Right of Privacy (Adams, 188-191)

Griswold v. Connecticut. (Adams, 254-259)

Lawrence et al. v. Texas (Adams, 259-265)

M 3/17 Recess: No Class

M 3 19 Recess: No Class

M 3/24

Reading

Reidy, Ch 6. On Punishment, (151-184)

W 3/26

Reading

People v. Dlugash. (Adams, 391-394)

Douglas N. Husak, Intent. (Adams, 394-397)

Sanford H. Kadish, The Criminal Law and the Luck of the Draw (Adams, 397-404)

M 3/31

Reading

Paul H. Robinson, The Bomb Thief and the Theory of Justification Defenses. (Adams, 415-421)

State v. Leidholm. (Adams, 421-423)

State v. Cameron. (Adams, 430-433)

W 4/2

Reading

Norval Morris, The Abolition of the Insanity Defense. (Adams 433-437)

Stephen J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered (Adams, 437-440)

M 4/7

Reading

Lockyer v. Andrade. (Adams, 446-452)

David Dolinko, The Future of Punishment. (Adams, 449-452)

Jeremy Bentham, A Utilitarian Theory of Punishment. (Adams, 452-456)

Michael Moore, The Argument for Retributivism. (Adams, 456-461)

Coker v. Georgia (Adams, 509-512)

H. L. A Hart, Punishment and Responsibility. (Adams 461-464)

W 4/9

Reading

Adams, The Death Penalty (Adams 466-471)

Atkins v. Virginia. (Adams 471-476)

Ernest van den Haag, The Death Penalty Once More. (Adams 476-482)

Gregg v. Georgia. (Adams 512-516)

M 4/14

Reading

H. A. Bedau, A Reply to van den Haag. (Adams 482-490)

McCleskey v. Kemp. (Adams 490-494)

Randall Kennedy, Homicide, Race, and Capital Punishment (Adams 494-500)

W 4/16

Reading

Adams, Justice, Compensation, and Tort (Adams, 518-524)

Holden v. Wal-Mart Stores, Inc. (Adams 524-528)

Oliver Wendell Holmes, Jr., The Fault Requirement in Tort. (Adams 528-533)

Richard A. Posner, Wealth Maximization and Tort Law: A Philosophical Inquiry. (Adams 533-539)

M 4/21

Reading

Jules Coleman, Tort Law and Tort Theory. (Adams 539-549)

Roger Cramton, Individualized Justice and Mass Torts. (Adams 549-552)

W 4/23 Second paper due

Reading

Adams, Causation and Liability (Adams, 554-560)

Lynch v. Fisher. (Adams 560-563)

Palsgraf v. Long Island Railroad. (Adams 563-569)

H. L. A. Hart and A. M. Honoré, Tracing Consequences. (Adams 569-577)

Judith Jarvis Thomson, The Decline of Cause. (Adams 577-575)

M 4/28

Reading

Adams, Acts, Omissions, and the Duty to Rescue (586-590)

McFall v. Shimp. (Adams 590-591)

Thomas Babington Macaulay, Against a Legal Duty to Rescue. (Adams 591-593)

Ernest Weinrib, The Case for a Duty to Rescue. (Adams 593-599)

W 4/30

Reading

Quirke v. City of Harvey. (Adams 601-604)

Derdiarian v. Felix Contracting Corp. (Adams 604-607)

Summers v. Tice. (Adams 607-609)

Yania v. Bigan. (Adams 609-612)

M 5/5 No Class

W 5/7 No Class: Take home exam

M 5/12 Presentations

W 5/14 Presentations

Useful Internet Resources:

Internet Encyclopedia of Philosophy

Philosophy of Law (no author stated)

· Natural Law by Kenneth Einar Himma

Stanford Encyclopedia of Philosophy

· The Nature of Law by Andrei Marmor

· 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

Other Web Pages