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Philosophy of Law (Phil 5415)/Jurisprudence Spring 2017 Prof Philosophy of Law (Phil 5415)/Jurisprudence Spring 2017 Prof. Brian Bix Draft Syllabus and Course Summary Law School (Mondale Hall) Room 7 – Mondays, Wednesdays, Fridays, 1:25 – 2:20 pm Required Text: Brian Bix, Jurisprudence: Theory and Context (7th ed., 2015); Other texts will be from (free) Internet-accessible sites Course Objectives: To gain knowledge and understanding of the major legal theorists and schools of jurisprudence and the issues that concern them. More generally, to gain greater proficiency in making, analyzing, and critiquing theoretical arguments. Course grade: 50% final examination; 50% term paper. Jan. 18 Introduction, Jan. 20 The Nature of Jurisprudence and Conceptual Analysis Brian Bix, “Joseph Raz and Conceptual Analysis,” American Philosophical Association Newsletter on Philosophy and Law, vol. 06(2), pp. 1-7 (2007), reprinted at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948766 Jan. 23 Natural Law Theory (Aquinas) Aquinas on Law (Summa Theologica, I-II, Questions 90-97) http://www.fordham.edu/halsall/source/aquinas2.html Bix, pp. 67-74 Jan. 25 Natural Law Theory, cont. (John Finnis) John Finnis, “Natural Law Theories” (2015), The Stanford Encyclopedia of Philosophy http://plato.stanford.edu/entries/natural-law-theories/ Bix, pp. 75-81 1 Jan. 27 Lon Fuller Lon L. Fuller, “Positivism and Fidelity to Law -- A Reply to Professor Hart,” 71 Harvard Law Review 630 (1958) Matthew Kramer, “Scrupulousness Without Scruples: A Critique of Lon Fuller and His Defenders,” 18 Oxford Journal of Legal Studies 235 (1998) Both are available from Hein Online, The direct link is here: http://www.heinonline.org/HOL/Welcome Jan. 30 The Obligation to Obey the Law M.B.E. Smith, “Is There a Prima Facie Obligation to Obey the Law?” 82 Yale Law Journal 950 (1973) (Hein Online) Feb. 1 Legal Positivism -- Austin Brian Bix, “John Austin” (2014), The Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/austin-john/ Feb. 3 Legal Positivism -- Hart H. L. A. Hart, “Positivism and the Separation of Law and Morals,” 71 Harvard Law Review 593 (1958) (Hein Online) Bix, pp. 33-49 Feb. 6 Legal Positivism – Debates Within the Hartian Tradition Leslie Green, “Legal Positivism” (2003), The Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/legal-positivism/ Bix, pp. 49-52 Feb. 8 A Hybrid View: The Planning Theory of Law Scott Shapiro, Summary of Legality 72 Analysis 537-541 (2012), available at http://web.b.ebscohost.com/ehost/detail/detail?sid=767ff98a-3669-4d07-b984- 4bc165d4d33b%40sessionmgr112&vid=0&hid=124&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d %3d#db=a2h&AN=77692646 Jeremy Waldron, “Planning for Legality” (Book Review), 109 Michigan Law Review 883 (2011) (Hein Online) 2 Feb. 10 Hans Kelsen’s Pure Theory of Law Hans Kelsen, “What is the Pure Theory of Law?” 34 Tulane Law Review 269 (1960) Hans Kelsen, “The Pure Theory of Law and Analytical Jurisprudence,” 55 Harvard Law Review 44 (1941) (both Hein Online) Bix, 57-66 Feb. 13 Ronald Dworkin Ronald M. Dworkin, “The Model of Rules,” 35 University of Chicago Law Review 14 (1967) (Hein Online) Feb. 15 Ronald Dworkin, cont. Ronald M. Dworkin, “Law as Interpretation,” 60 Texas Law Review 527 (1982) (Hein Online) Bix, pp. 91-102 [No Class Feb. 17, 20: Law School Winter Break] Feb. 22 Precedent Frederick Schauer, “Precedent,” 39 Stanford Law Review 571 (1987) (Hein Online) Bix, pp. 153-159 Feb. 24 Legal Rights Kenneth Campbell, “Legal Rights” (2013), The Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/legal-rights/ Leif Wenar, “Rights” (2015), The Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/rights/ Feb. 27 Legal Enforcement of Morality Larry Alexander, “The Legal Enforcement of Morality,’” in R. G. Frey & C. H. Wellman (eds.), A Companion to Applied Ethics 128-141 (Blackwell, 2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=265451 Bix, pp. 169-179 3 March 1 Justice (Rawls) John Rawls, “Justice as Fairnesss: Political not Metaphysical,” 14 Philosophy and Public Affairs 223 (1985), available from JSTOR, linked from http://www.jstor.org/action/showBasicSearch Bix, pp. 107-115 March 3 Justice (feminist critique, other critiques) Susan Moller Okin, “Justice and Gender: An Unfinished Debate,” 72 Fordham Law Review 1537 (2004) (Hein Online) Bix, pp. 115-122 March 6 Punishment Antony Duff, “Legal Punishment” (2013), The Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/legal-punishment/ Bix, pp. 123-129 March 8 Legal Realism Oliver W. Holmes, Jr., “The Path of the Law,” 10 Harvard Law Review 457 (1897) Karl Llewellyn, “A Realistic Jurisprudence -- The Next Step,” 30 Columbia Law Review 431 (1930) (both Hein Online) March 10 Legal Realism, cont. Lon L. Fuller, “American Legal Realism,” 82 University of Pennsylvania Law Review 429 (1934) (Hein Online) Bix, pp. 193-204 [March 13-17 No Classes – Spring Break] March 20 Scandinavian Legal Realism Alf Ross, “Tu-Tu,” 70 Harvard Law Review 812 (1957) (Hein Online) Bix, pp. 278-279 4 March 22 Historical Jurisprudence Robert E. Rodes, Jr., “On the Historical School of Jurisprudence,” 49 American Journal of Jurisprudence 165 (2004) Harold Berman, “The Historical Foundations of Law,” 54 Emory Law Journal 13 (2005) (both Hein Online) [Berman also at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=666123] Bix, pp. 275-276 March 24 Economic Analysis of Law (Coase) Ronald Coase, “The Problem of Social Cost,” 3 Journal of Law and Economics 1 (1960) (JSTOR) Bix, pp. 211-216 March 27 Economic Analysis of Law, cont. (overview) Lewis Kornhauser, “Economic Analysis of Law” (2011), in Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/legal-econanalysis/ Bix, pp. 205-211, 216-231 March 29 Economic Analysis of Law, cont. (behavioral critique) Cass R. Sunstein, “Behavioral Analysis of Law,” 64 University of Chicago Law Review 1175 (1997) (Hein Online) March 31 Critical Legal Studies I Duncan Kennedy, “Legal Education and the Reproduction of Hierarchy,” 32 Journal of Legal Education 591 (1982) Morton J. Horwitz, “Rights,” 23 Harvard Civil Rights-Civil Liberties Law Review 393 (1988) (both Hein Online) Bix, pp. 235-239 April 3 Critical Legal Studies II Mark Tushnet, “Defending the Indeterminacy Thesis,” 16 QLR [Quinnipiac Law Review] 339 (1996) John Finnis, “On ‘The Critical Legal Studies Movement,’” 30 American Journal of Jurisprudence 21 (1985) (both Hein Online) 5 April 5 Feminist Theory I Robin West, “Re-Imagining Justice,” 14 Yale Journal of Law and Feminism 333 (2002) Martha Albertson Fineman, “Gender and Law: Feminist Legal Theory’s Role in New Legal Realism,” 2005 Wisconsin Law Review 405 (both Hein Online) Bix, pp. 240-247 [April 7 No Class] April 10 Feminist Theory II Catharine A. MacKinnon, “Reflections on Sex Equality Under Law,” 100 Yale Law Journal 1281 (1991) (Hein Online) April 12 Feminist Theory/Critical Race Theory Angela P. Harris, “Race and Essentialism in Feminist Legal Theory,” 42 Stanford Law Review 581 (1990) Derrick Bell, “Racial Realism,” 24 Connecticut Law Review 363 (1992) (both Hein Online) [April 14 No Class] April 17 Critical Race Theory II Mari Matsuda, “Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up Ground,” 11 Harvard Women’s Law Journal 1 (1988) Derrick A. Bell, “Who’s Afraid of Critical Race Theory?,” 1995 University of Illinois Law Review 893 (1995) Girardeau A. Spann, “Just Do It,” 67 Law and Contemporary Problems 11 (Summer 2004) (all Hein Online) April 19 Law and Literature I Sanford Levinson, “Law as Literature,” 60 Texas Law Review 373 (1982) (Hein Online) Bix, pp. 257-263 6 [April 21 No Class] April 24 Law and Literature II Robert M. Cover, “Violence and the Word,” 95 Yale Law Journal 1601 (1986) Robin West, “The Literary Lawyer,” 27 Pacific Law Journal 1187 (1996) (both Hein Online) April 25 (Tues.) Law and Culture Naomi Mezey, “Mapping a Cultural Studies of Law,” in Austin Sarat & Patricia Ewick (eds.), The Handbook of Law and Society 39-55 (Wiley & Sons, 2015), available at http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2686760 April 26 Law and Evolutionary Biology, Review Session Owen D. Jones, “Law and Biology: Toward an Integrated Model of Human Behavior,” 8 Journal of Contemporary Legal Issues 167 (1997) (Hein Online) Wednesday, May 10, 8:30 – 10:30 am: Final Exam 7 Paper Topics The task is to read a legal theory article or a chapter from a book on legal theory, offer a short but precise summary, and evaluate the article’s strengths and weaknesses. Suggested authors include (but are not limited to): - H.L.A. Hart - Duncan Kennedy - Jules Coleman - Lon Fuller - Morton Horwitz - Joseph Raz - Hans Kelsen - Richard Delgado - Jerome Frank - John Finnis - Derrick Bell - Richard Posner - Ronald Dworkin - Martha Fineman - Robin West - Oliver Wendell Holmes - Catharine MacKinnon - Wesley Hohfeld If you have a question about the appropriateness of an article or an author, ask me about it. (It is probably best to avoid articles that assigned for reading for the class. If you do select an article that was assigned for the class, the paper will be expected to go significantly beyond the descriptive and critical classroom discussion of that article.) Reference to other authors and other works is not required, but any such references must be adequately documented. Similarly, the paper should also give sufficient documentation to show me the location of quotations reproduced from the article under review and the location of arguments summarized. Prior to writing the paper, you will need to write up an outline. That outline will not be graded, but you will need to set up an appointment with me to discuss it (briefly). The finished paper must be word-processed, and at least 5,000 words long (please use double- spacing, reasonable margins, and a 12-point font; insert page numbers). The paper must be submitted to me (by email digital attachment – as a Word or PDF file) by the end of the day, the last day of the course, April 27.
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