LAW, ETHICS, and MORALITY GOVT 4176.001 Spring 2021

Professor: Charles Gregory Email: [email protected] Office: Liberal Arts North 106 Phone: (936) 468-2176 Office Hours:

Course Description

This course examines the principal theories and controversies in law and ethics. It focuses on the key concepts in law-justice, rights, duties, obligations, responsibilities, punishment, protection and empowerment-at the ethical foundations of the legal system. It evaluates the main philosophical theories of ethics and law, probes central moral and legal issues and controversies, examines the practical application of such theories and issues, and analyses critically the interrelationship between ethics and law. Prerequisites: PSC 141 and 142.

Text Books

• H.L.A. Hart. 2012. The Concept of Law. Oxford University Press 3rd edition.

• Lon Fuller. 1969. The Morality of Law. Yale University Press; Revised edition.

• Mark R. Reiff. 2011. Punishment, Compensation, and Law: A Theory of Enforceabil- ity. Cambridge University Press.

General Education Curriculum Objectives

In any given semester, one or more of the following Core Curriculum Objectives for the political science / government Foundational Component Area may be assessed.

• Critical Thinking Skills –creative thinking, innovation, inquiry, and analysis, evalua- tion, and synthesis of information

• Communication Skills – effective development, interpretation and expression of ideas through written, oral, and visual communication

• Social Responsibility – intercultural competence, knowledge of civic responsibility, and the ability to effectively engage in regional, national, and global communities

• Personal Responsibility – the ability to connect choices, actions, and consequences to ethical decision-making

1 Program Learning Outcomes

This course is a general education core curriculum course and no specific program learning outcomes for a political science major are addressed in this course.

Course Requirements

Grades for this course will be based on three response papers and a final paper.

Grade Percentage A 90-100 B 80-89 C 70-79 D 60-69 F 0-59

3 Response Papers (20 points each). Throughout the semester you will write 3 re- sponse papers on three separate readings. Your response papers should contain the name of the work being summarized, the author, and the general situation surrounding the text. This information is best placed at the beginning of your response, as it helps to contextualize what will follow. The body of your response should make a claim about an aspect of the text that you find interesting and worthy of discussion. Additionally, the body of your response must include support for your claims in the form quotations. Follow closely the work you are responding to and use an occasional word, phrase, or passage from the original to give your reader a taste of the original. Your response should begin to draw conclusions, possibly explaining how your understanding of the original is important in a broader context. Think about how the text relates to the ideas we’re discussing in the course or to other texts we have read and elaborate on these connections if they seem appropriate.

Final Paper (60 points). Your final paper will be related to the last subject covered in the course: Philosophy and International Law. Moreover, the final paper will be a 8-10 page essay (excluding footnotes and bibliography) due on Monday, 10 May 2019, at 12 noon. You are free to write about anything that interests you from this section. If you are unable to come up with a paper topic, contact me immediately and I will help you find one.

Academic Integrity

The following is taken from SFA’s Policy Manual and can be found in section 4.1 – Student Academic Dishonesty: Abiding by university policy on academic integrity is a responsibility of all university faculty and students. Faculty members must promote the components of academic integrity in their instruction, and course syllabi are required to provide information about penalties for cheating and plagiarism as well as the appeal process.

2 All cases of academic dishonesty, both cheating and plagiarism, will be handled according to University policies and procedures (A-4.1 & A-6.3). Cheating includes but is not limited to (1) using or attempting to use unauthorized materials to aid in achieving a better grade on a component of a class; (2) the falsification or invention of any information, including citations, on an assigned exercise; and/or (3) helping or attempting to help another in an act of cheating or plagiarism. Plagiarism is presenting the words or ideas of another person as if they were your own. Examples of plagiarism are (1) submitting an assignment as if it were one’s own work when, in fact, it is at least partly the work of another; (2) submitting a work that has been purchased or otherwise obtained from an Internet source or another source; and (3) incorporating the words or ideas of an author into one’s paper without giving the author due credit. While these are not exhaustive lists, students who are curious should peruse SFA’s Policy Manual.1 Specifically, you should focus on section 4.1 – Student Academic Dishonesty.2

To be clear, I do not take academic dishonesty lightly, and the consequences for academic dishonesty will be an “F” for the course. No exceptions.

Withheld Grades

The following is taken from SFASU’s Policy Manual (2014), “Semester Grades Policy” (A-54): At the discretion of the instructor of record and with the approval of the academic chair/director, a grade of WH will be assigned only if the student cannot complete the course work because of unavoidable circumstances. Students must complete the work within one calendar year from the end of the semester in which they receive a WH, or the grade automatically becomes an F. If students register for the same course in future semesters, the WH will automatically become an F and will be counted as a repeated course for the purpose of computing the grade point average.

Students with Disabilities

To obtain disability related accommodations, alternate formats and/or auxiliary aids, students with disabilities must contact the Office of Disability Services (ODS), Human Ser- vices Building, and Room 325, 468-3004 / 468-1004 (TDD) as early as possible in the semester. Once verified, ODS will notify the course instructor and outline the accommo- dation and/or auxiliary aids to be provided. Failure to request services in a timely manner may delay your accommodations. For additional information, go to http://www.sfasu. edu/disabilityservices/.

1http://www.sfasu.edu/policies/ 2http://www.sfasu.edu/policies/student_academic_dishonesty.pdf

3 Course Schedule3

Week 1 - Introduction: What is Legal Philosophy? • N. E. Simmonds, Central Issues in Jurisprudence (4th ed., 2013), Introduction (if you go to Amazon.com, you can read the introduction as a free sample)

Week 2 - The Nature of Law • H.L.A. Hart, The Concept of Law (2d ed. 1994 or later), pp 1-154, 185-212

Week 3 - Adjudication and Interpretation • Ronald Dworkin, Law?s Empire (1986), pp. 1-150, 225-275

• H.L.A. Hart, ‘Postscript,’ The Concept of Law (2d ed. 1994 or later), pp. 238-276 (Hart’s response to Dworkin’s criticisms)

Week 4 - The Connection between Law and Morality • Lon Fuller, The Morality of Law (1969 rev. ed.), pp. 1-151

• H.L.A. Hart, Essays in Jurisprudence and Philosophy (1983), Essay 16, pp. 343-364 (Hart’s review of The Morality of Law)

• Lon Fuller, “A Reply to Critics,” from The Morality of Law (1969 rev. ed.), pp. 184-242

Week 5 - The Nature of Rights: The Philosophy of Settlement and Compromise • Mark R Reiff, “Proportionality, Winner-Take-All, and Distributive Justice,” Politics, Philosophy, and Economics 8 (2009): 5-42, 5-34

• John E. Coons, “Approaches to Court Imposed Compromise–The Uses of Doubt and Reason,” Northwestern University Law Review 58 (1964): 750-794.

• Joseph Jaconelli, “Solomonic Justice and the Common Law,” Oxford Journal of Legal Studies 12 (1992): 480-506.

Week 6 - The Philosophy of Regulation and Litigation: Game The- ory and Decision Theory • Daniel Ellsberg, “The Theory and Practice of Blackmail” (available online at http://www.rand.org/pubs/papers/P3883/)

3This is a tentative schedule, and I reserve the right to change the schedule as I see fit.

4 • Michael Trebilcock, “The Private Ordering Paradigm and Its Critics,” from Trebilcock, The Limits of Freedom of Contract (1993), chap. 1, pp. 1- 22

• Mark R. Reiff, Punishment, Compensation, and Law: A Theory of Enforceability (Cambridge: Cambridge University Press, 2005), pp. 12-15, 22-25, 68-73, 90-95

• Shaun Hargreaves Heap and Yanis Varoufakis, Game Theory: A Critical Introduction (Routledge, 2d ed. 2004)

Week 7 & 8 - The Philosophy of Punishment • Mark R. Reiff, “Punishment” The Routledge Companion to Social and Political Phi- losophy, ed. Fred D’Agastino and Gerald Gaus (Routledge, 2012), pp. 765-776

• Mark R. Reiff and Rowan Cruft, “Antony Duff and the Philosophy of Punishment,” in Crime, Punishment and Responsibility: The Jurisprudence of Antony Duff, ed. Matthew Kramer, Rowan Cruft, and Mark Reiff (Oxford: Oxford University Press, 2011), pp. 6-21

• Mark R. Reiff, Punishment, Compensation, and Law: A Theory of Enforceability (Cambridge: Cambridge University Press, 2005), pp. 76-98 and 111-159

• Jeremy Bentham, An Introduction to the Principles of Morals in Legislation, ed. J.H. Burns and H.L.A. Hart (1970), pp, 158-186

• Immanuel Kant, “On the Right to Punish and to Grant Clemency,” from The Meta- physics of Morals, ed. Mary Gregor (1996), pp. 104-109

• G.F.W. Hegel, Elements of the Philosophy of Right, ed. Allen Wood (Cambridge University Press, 1991), sec. 90-103, pp. 119-131

• John Rawls, “Two Concepts of Rules” Philosophical Review 64 (1955): 3-32

• H.L.A. Hart, “Prolegomenon to the Principles of Punishment,” from Punishment and Responsibility (1968), pp. 1-27

• Antony Duff and David Garland, A Reader on Punishment (Oxford, 1994)

Week 9, 10, & 11 - Philosophy and Contract Law • The Philosophical Basis of Contract Law

– Morris Cohen, “The Basis of Contract,” Harvard Law Review 46 (1933): 553-592 – Charles Fried, Contract as Promise (1981), chap. 2, pp. 7-27

• Coercion

– Michael Trebilcock, The Limits of Freedom of Contract (1993), chap. 4, pp. 78-101

5 – Charles Fried, Contract as Promise, “Duress and Unconscionability,” chap. 7, pp. 92-103 – Robert Nozick, “Coercion,” from Socratic Puzzles (1997), pp. 15-44

• Commodification

– Michael Trebilcock, The Limits of Freedom of Contract (1993), chap. 2, pp. 23-57 – Debra Satz, Why Some Things Should Not Be For Sale: The Moral Limits of Markets (Oxford University Press, 2010)

• Fairness

– Anthony Kronman, “Contract Law and Distributive Justice,” 89 Yale Law Journal 472-511 (1980) – Charles Fried, Contract as Promise, “Duress and Unconscionability,” chap. 7, pp. 103-111

Week 12, 13, & 14 - Philosophy and International Law • The Nature of International Law and the Role of the International Lawyer

– H.L.A. Hart, The Concept of Law, pp. 213-237 – Mark R Reiff, “How the Law of War is Formed” Vimeo (https://vimeo.com/89790124) (first 12 minutes only)

• The Rights of Nations: Aggression and Self-Defense

– Michael Walzer, Just and Unjust Wars, chapters 2, 3, 4, and 5, pp. 21-47 and 51-86 – Jeff McMahan, “Preventive War and the Killing of the Innocent,” in The Ethics of War, ed. Richard Sorabji and David Rodin (2006), pp. 169-190

• The Moral Regulation of Targets, Weapons, Methods, and Tactics: Four Principles

– Michael Walzer, Just and Unjust Wars, chapters 8-9, pp. 127-159 – Robert K. Fullinwider, “War and Innocence,” Philosophy and Public Affairs 5 (1975): 90-97 – Lawrence A. Alexander, “Self-Defense and the Killing of Noncombatants: A Reply to Fullinwider,” Philosophy and Public Affairs 5 (1976): 408-415 – Jeff McMahan, “The Ethics of Killing in War,” Ethics 114 (2004): 693-733 – Jeff McMahan, Killing in War (OUP 2009) – “Symposium on Jeff McMahan’s Killing in War,” Ethics 122:1 (October 2011), pp. 1-230

6 – David Rodin and Henry Shue (ed.), Just and Unjust Warriors: The Moral and Legal Status of Soldiers, (OUP 2008)

• Terrorism and Torture

– Mark R. Reiff, “Terrorism, Retribution, and Collective Responsibility,” Social Theory and Practice 34 (2008): 209- 242 – Henry Shue, “Torture,” Philosophy and Public Affairs 7 (1978): 124-143

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