NEW YORK CITY COLLEGE OF TECHNOLOGY The City University of New York School of Arts & Sciences Department of Social Science Course Outline

Course code: PHIL 3211 Course title: Philosophy of Class hours/credits: 3 class hours, 3 credits Prerequisite: Previous philosophy course or department approval Pathways: Individual and Society

Catalog Description: An examination of the concepts and classifications used in and about legal systems; problems of legal reasoning and judicial decision-making; and the evaluation of philo- sophical and legal arguments in the areas of , liberty and responsibility on such issues as civil disobedience, capital punishment, censorship and pornography, reverse discrimination, the- ory of and .

RECOMMENDED/TYPICAL/REQUIRED TEXTBOOK (S) and/or MATERIALS* Legal Philosophy. Selected Readings, 1st Edition by Timothy Shiell, Holt, Rinehart and Winston, Inc. 1994 *suggested text; instructors may choose their own.

COURSE INTENDED LEARNING OUTCOMES/ASSESSMENT METHODS LEARNING OUTCOMES ASSESSMENT METHODS* 1. Gain familiarity with the basic methods of phi- 1. Class participation, paper, exams losophy, and the difference between and empirical study of law. 2. Understand the features and assumptions of 2. Class participation, paper, exams various theories of , such as and . 3. Become acquainted with philosophical issues in 3. Class participation, paper, exams, quizzes and major areas of law, such as torts, contracts, crimi- homework nal law, law, etc. 4. Critique and evaluate various contemporary 4. Class participation, paper, exams issues in law from philosophical perspectives dis- cussed in class. * may vary slightly per instructor to suit their own needs

PATHWAYS INDIVIDUAL AND SOCIETY LEARNING GOALS 1. Identify and apply the fundamental concepts and methods of a discipline or interdisciplinary field exploring the relationship between the individual and society, including, but not limited to, anthropology, communications, cultural studies, history, journalism, philosophy, political sci- ence, psychology, public affairs, religion, and sociology. 2. Examine how an individual’s place in society affects experiences, values, or choices.

3. Articulate and assess ethical views and their underlying premises. 4. Articulate ethical uses of data and other information resources to respond to problems and ques- tions.

GENERAL EDUCATION LEARNING OUTCOMES/ASSESSMENT METHODS LEARNING OUTCOMES ASSESSMENT METHODS* 1. KNOWLEDGE: Develop knowledge from a 1. Class participation, paper, exams, quizzes and range of disciplinary perspectives, and develop homework the ability to deepen and continue learning. 2. SKILLS: Acquire and use the tools needed for 2. Class participation, paper, exams communication, inquiry, analysis, and productive work. 3. INTEGRATION: Work productively within and 3. Class participation, paper across disciplines. 4. VALUES, ETHICS, AND RELATIONSHIPS: 4. Class participation, paper, exams Understand and apply values, ethics, and diverse perspectives in personal, civic, and cultural/global domains. * may vary slightly per instructor to suit their own needs

Capstone Course Statement: This course fulfills the LAA/LAS Associate Capstone requirement, though it can also be taken for other requirements and electives. The City Tech LAA/LAS Associate Capstone is designed for students entering their second year in the program. LAA/LAS Associate Capstone courses are meant to prepare students to continue their studies in a bachelor's degree, third-year, or junior, level. In addition, Associate Capstone courses are meant to help students develop an awareness of the importance of knowledge, values and skills developed in general education courses; and to integrate this knowledge, these values and these skills into their advanced academic study and professional careers. Please ask the instructor if you have any questions about what the LAA/ LAS Associate Capstone requirement entails.

SCOPE OF ASSIGNMENTS and other course requirements* Assignments should test students’ comprehension of assigned readings; critical thinking skills; ability to analyze cases; ability to verbally communicate ideas and ; and retention of theo- ries, concepts, principles, and cases discussed in class. Assignments should also give students an opportunity to reflect on their own beliefs and values. * may vary slightly per instructor to suit their own needs

METHOD OF GRADING – elements and weight of factors determining the students’ grade* Participation: 15%. Quizzes and homework: 20%. Midterm: 15%. Rough draft: 10%. Final draft: 20%. Final: 20%. * may vary slightly per instructor to suit their own needs

ATTENDANCE POLICY It is the conviction of the Department of Social Science that a student who is not in a class for any reason is not receiving the benefit of the education being provided. Missed class time in- cludes not just absences but also latenesses, early departures, and time outside the classroom tak- en by students during class meeting periods. Missed time impacts any portion of the final grade overtly allocated to participation and/or any grades awarded for activities that relate to presence in class.

Instructors may including a reasonable “Participation” grade into their final grade calculations for this course.

STUDENT ACCESSIBILITY City Tech is committed to supporting the educational goals of enrolled students with disabilities in the areas of enrollment, academic advisement, tutoring, assistive technologies, and testing ac- commodations. If you have or think you may have a disability, you may be eligible for reason- able accommodations or academic adjustments as provided under applicable federal, state, and/ or city . You may also request services for temporary conditions or medical issues under cer- tain circumstances. If you have questions about your eligibility and/or would like to seek ac- commodation services and/or academic adjustments, please email the Student Accessibility Cen- ter.

COMMITMENT TO STUDENT DIVERSITY The Department of Social Science complies with the college wide nondiscrimination policy and seek to foster a safe and inclusive learning environment that celebrates diversity in its many forms and enhances our students’ ability to be informed, global citizens. Through our example, we demonstrate an appreciation of the rich diversity of world cultures and the unique forms of expression that make us human.

ACADEMIC INTEGRITY POLICY STATEMENT Students and all others who work with information, ideas, texts, images, music, inventions, and other owe their audience and sources accuracy and honesty in using, credit- ing, and citing sources. As a community of intellectual and professional workers, the College recognizes its responsibility for providing instruction in information literacy and academic in- tegrity, offering models of good practice, and responding vigilantly and appropriately to infrac- tions of academic integrity. Accordingly, academic dishonesty is prohibited in The City Universi- ty of New York and at New York City College of Technology and is punishable by penalties, in- cluding failing grades, suspension, and expulsion. The complete text of the College policy on Academic Integrity may be found in the catalog.

SAMPLE SEQUENCE OF TOPICS AND TIME ALLOCATIONS*

PART ONE: THE CONCEPT OF LAW

WEEK ONE: Philosophy and the Question of Law • What is philosophy? • Why is there a problem in defining “law”? • Major schools of law-theory in response to defining law • Examples of definitions of what law is from the schools and how they reflect some ne- glected aspect of law.

WEEK TWO: Natural Law • Conceptual origins of the ideas of natural law: law as an instrument for realization of human purposes must contain rules concerning basic conditions of human life. • Aquinas’s views on natural and other laws and the relation of natural to (human) positive laws; his ideas on disobedience of law; origin of property . • Features of the human condition that lend credibility to the concept of a natural law. • The concept of the common good in terms of which laws obtain their obligatory quality. • Objections to the natural law tradition: especially, charges of confusing facts with values; challenge of moral relativism; differing conceptions of human nature. • Historical significance of natural law ideas.

WEEK THREE: Positivism and • Austin’s view of laws as commands/exercise of authority. • Nature, types of imperatives. • Penal model of laws/non-criminal types of laws and their interpretation by positivism. • Habits of obedience and the definition of law. • Austin’s view of sovereignty in the modern state. • Kelsen’s modern, Continental version of positivism and its better fit to . • Criticisms of positivism: types of laws//range of application of law/no clear sovereign. • Legal realism as a) approach to law (descriptive ) (b) view of rules (as types of social behavior) (c) view of magical thought in law (d) criticisms of views that cast as merely appliers of law. • Gray’s view of the function of , not mainly to declare the law but to maintain by deciding controversies/difficulties with this view.

WEEK FOUR: Related questions of civil disobedience and legal reasoning A. Civil Disobedience • Is there a general obligation to obey the law? • Rawls on how civil disobedience should be defined, and the three tasks a of civil disobedience should convey -Which duties/rights come into conflict on this issue? • Feinberg’s criticisms of Rawls, especially on civil disobedience as an act of conscience. • Historical examples of civil disobedience and a discussion of the conditions under which it should be, if ever, practiced.

B. Legal Reasoning • Deductive and inductive reasoning in judges’ decision-making. • When do bind? • How are hard cases different from usual ones and what special problems do they raise? • Criteria for an acceptable mode of interpreting . • Hart’s account of the meaning of asking for a justification of decision (not an account of real or ideal making-of-decisions) • Dworkin’s criticisms of Hart: rules as only one variety of the standards invoked by a judge in deciding legal issues.

PART TWO: ISSUES OF LIBERTY

WEEK FIVE: Liberty and Free Expression • Is there a presumption in favor of equal liberty? Liberty versus other values (justice, happiness). • Mill’s classic account of what justifies restrictions on liberty: the harm principle. • Attacks on Mill by those defending other principles on which to justify restrictions of liberty: //offense • Discussion of controversial cases which raise the question of the adequacy of Mill’s ac- count. • Natural rights as a check on the applicability of the harm principle. • Feinberg’s comments on additional conditions for morally satisfactory free expression in the contemporary world. • Traditional Anglo-American limits on free speech.

WEEK SIX: Moral Offenses and the Law • Schwartz on “offenses against morality” and their seeming unjustifiability by the harm principle: the use of the offense principle to justify restrictions on such conduct. • Kristol’s “moral paternalism” as a defense for some censorship within the general framework of a liberal society. • Dworkin’s defense of paternalism (in some cases); the principles he relies on; his attacks on Mill’s anti- paternalism; issues of paternalism in modern America. • Legal moralism: Devlin on the legal defense of a moral code as a way of maintaining social cohesion. WEEK SEVEN: Privacy and Human Rights • Privacy as a check on the liberty of other people and institutions, especially the state. • Origin of privacy in American law (law of torts): laws authorizing suits for damages against invasions of privacy. • Cases: Griswold v. Conn (privacy enters ). • Philosophical analyses of privacy as concept, right and values; it relation to loss of in- formation about oneself/connections to self-determination and self-respect. • Connection between liberty and rights: rights as a stronger type of liberty, guaranteed by a corresponding duty on the part of others. • Hohfeld’s clarification of the language of rights/his now very commonly invoked classi- fications of jural relations into rights (claims)/privileges/(liberties)/powers etc. • Lyon’s non-correlativity thesis of rights and duties, with applications to free speech/ Wellman on legal rights as clusters of Hohfeldian elements with a common functional to strengthen self-government. Applications to human rights and privacy.

WEEK 8: Review and Mid-term Exam

PART THREE: JUSTICE AND PUNISHMENT

WEEK NINE: and Mill on Justice • Discuss the cosmological/moral origins in ancient Greek thought of concept of justice. • Plato’s view of justice in the soul and the city in terms of function and division of labor. • Aristotle’s fundamental notions of justice • Discussion of the Hume-Mill utilitarian interpretation of justice in terms of violations of rights or deserts of some assignable person. • Present the utilitarian rebuttal of claims that social utility would justify acts patently un- just • Discussion of specific moral/legal issues in terms of utilitarian views. • Standard criticism of .

WEEK TEN: Rawls and Nozick on Justice • Rawls’s contraction view of justice; antecedents and logical plausibility of this approach. • Concept of the veil of ignorance and its usefulness. • The two principles of justice which rationally self-interested people would select. Does Rawls prove they would select them? • Procedural justice (Fairness): its centrality of Rawls. • Applications of Rawls’s theory in the philosophy of law and legal theory. • Nozick’s conservative account of justice: his criticisms of Rawls’ approach. • Nozick’s entitlement theory: origin of property rights. • Nozick’s (mis-) use of Locke • Nozick’s attack on the philosophical foundations of the welfare state, what a Nozick state would look like. WEEK ELEVEN: Corrective and Reverse Discrimination • Aristotle on compensation to injured part. • Recent development in law of torts: economic efficiency as explicating justice. Econom- ic consequences of rules of liability and their role in understanding justice in laws of torts. Posner and Coleman on wealth maximization and Aristotle’s theory of corrective justice. • Justice and the basic law. Kronman on pursuing aims of distributive justice through rules of contract law versus Fried and contracts as promises. • How reverse discrimination should be defined. • General case for reverse discrimination to reduce Aristotle’s distributive injustice. Katzner on four conditions for making reverse discrimination justifiable. • Lisa Newton on reverse discrimination as measures to eliminate continuing discriminato- ry attitudes but as resulting in new injustice.

WEEK TWELVE: Punishment • Punishment for as paradigms of punishment. Part of the topic of morally blame- worthy conduct. Another approach: the practical (social) purposes served by punishment. • What is punishment? Flemming v. Nestor illustrates the importance of defining punish- ment for both philosophy and for constitutional validity of government acts. • Utilitarian versus Retributive theories of punishment: clear statement of their different views, one looking forward and the other backward in justifying punishment. • Discussion and analysis of the idea that the punishment should fit or be proportionate the crime/Kant’s use of lex talionis. • Criticisms of both retributive and utilitarian theories of punishment, raising the question of the point of punishment; excessive punishment as possible under utilitarian ideas; punishment of trivial offenses etc. • Vindictive theories of punishment (escape-value theory/hedonistic version/Romantic version): Why these views are so common.

WEEK THIRTEEN: Rehabilitation and Capital Punishment • Lady Wootton’s defense of rehabilitation versus Herbert Morris’s defense of a right to punishment: treating the offender as “sick” means considering people not as agents or persons but as mere instruments, incapable also of taking credit for anything and lacking self-respect. • Question of how one draws the line between those who do harm but not wrong and those who should not get therapy but are respected by being punished. • Alternatives to punishment and rehabilitative therapy. • Furman v. Georgia (1972) on capital punishment’s Administration Selection from judges’ reasoning examined. • Arbitrary, even discriminatory application of capital punishment by judge and • Moral restatement of the community against it as a reason for discontinuing it: Evalua- tion of these two main themes sounded in this case. • Standard pro and con arguments on capital punishment discussed. • Gregg v. Georgia: Danger of arbitrary sentence removed under bifurcated system with verdict first, then, under separate instruction, deciding on recommendation for sentence with reference to specific findings of /judicial review. • Cohen v. Georgia: death penalty for rape violates eighth Amendment to : punishment disproportionate to the crime. How is “Disproportion” uncovered?

WEEK FOURTEEN: Responsibility. • Moral and legal responsibility as topics: significance in daily life of holding people re- sponsible. • An area of extreme richness in the intersection of law and philosophy. • Distinctions in language as guide to types of fault. • “His fault” analysis by Feinberg examined; role of causal statements and attribution of moral failings. • Changing concepts of criminal responsibility outlined by Hart. • Importance of the M’Naghten rules (1843) in taking into account the mental state of the “criminal.” • Hinckley case as a contemporary illustration of the issues.

WEEK FIFTEEN: Review and Final Exam

*guidelines from which instructors may select or adapt

Revised by Peter Parides, Spring 2021