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philosophy of law

PHIL 346-Philosophy of Law  (spring 2013)

Charlie Kurth                                                       Class: Mon & Wed, 4:00-5:300pm (Psych 251)

  Email: ckurth [at] wustl [dot] edu                       Office Hours: Tuesdays, 3-5pm and by app't

  Office phone: 314-935-4753                             Office Location: Wilson 112


Course Overview
This course will offer a survey of three general topics in the philosophy of law. In Part 1, we will ask what law is. More specifically, our project will be to explore questions about the metaphysical, epistemological, and normative dimension of the law. What makes law, as a set of rules, distinctive--different from say morality or etiquette? What about legal reasoning--how is it special? And what is the connection between morality and the law? Do we have, for instance, an obligation to obey the law? In Part 2 of the course, we will explore the nature and origin of legal rights. What, for instance, is the content of our rights to liberty and free speech? And how do we come to have rights in the first place? Finally, in Part 3 of the course we will explore questions about punishment and justification. Is punishment justified? How? What sorts of things can we be held responsible for and why?

The readings and assignments in this course
will not only introduce you to a variety of important issues in the philosophy of law, they will also help you develop the critical thinking skills that you will need to be able understand and assess these debates.

Texts

F. Schauer & W. Sinnott-Armstrong, The Philosophy of Law: Classic and Contemporary Readings (available from the Campus Bookstore) [Abbreviated as PL below]

Selected readings available on the course web site


Assignments

This course will have two graded components:

  • Reading Responses and Participation (30%).
    For each class you will be asked to write a half- to full-page (single-spaced) response to a prompt about the readings. These prompts will ask you to either summarize the core arguments of the readings, or answer a question about them. Your responses will be collected at the beginning of each class. You can skip four  reading responses and you can choose which responses you skip. Skipping more than four responses will result in a reduction in your grade for the summaries--a 5% penalty for each additional response skipped. (Example: four skipped summaries gets a grade of 100% for the responses; five skipped gets a grade of 95%, six skipped gets a grade of 90%...).
    So long as the responses are of sufficient quality, they will not be returned.

    The purpose of these responses is both to help you engage more deeply with the readings, and to better prepare you to participate in our class discussions. The responses are also meant to give you an opportunity to develop your philosophical writing skills. 

    In this course, much of our class time will be spent discussing the assigned readings. So you will be expected to come to class prepared to participate. 

  • Papers (70%).
    You will write two 3,000
    word papers for this class. The first paper will focus on Part 1 of the course and will be due on Monday, February 25. For the second paper, you will have the option of writing on material from either Part 2 or Part 3 of the course. If you chose to write your second paper on Part 2, it will be due on Monday, April 8. If you chose to write your second paper on Part 3, it will be due on Friday, May 3. I will provide you with paper prompts (and additional details) approximately two weeks before the papers are due.

    You may write papers for both Part 2 and Part 3 of the course. If you do this, I will use the better of the two when calculating your final grade.
Where possible, I prefer not to know whose paper I am grading, so please submit your reading responses and papers using only your student ID.


Resources
The following links my be useful:


Policies
In order to help ensure a successful class, please heed the following rules and policies:

  • Due Dates. Baring unusual circumstances, the due dates  on the syllabus are non-negotiable. If you think you have reason to miss an assignment, it is best to inform me well in advance.
  • Classroom Environment. Please arrive to class on time. All cell phones must be turned off during class. Texting, emailing, etc. is not permitted. Most importantly, treat your classmates with respect. Abuse of these courtesies may lead to penalties.
  • Statement of Academic Integrity. Upon arrival at Washington University, you signed a statement indicating that you understand that you will abide by the University's Academic Integrity Policy (available here). In this class, you will be expected to honor that commitment. This means that all work presented as original must, in fact, be original; the ideas and contributions of others (be they quotes, summaries, or paraphrases) must be appropriately acknowledged. You are responsible for (re)familiarizing yourself with these policies. If you have any questions, feel free to talk to me.


Tentative Schedule of Readings and Assignments

Course Introduction & Overview

Mon, Jan 14:
  • Course introduction
  • Read the syllabus and the University's Academic Integrity Policy (available here).

Part 1. The Law: What Grounds it? How to Understand it? Why Obey
it?
Wed, Jan 16: Natural Law
  • PL (pp. 8-27): Intro, Aquinas, Finnis, Fuller
  • Writing Prompt: What central theses do the Natural Law theories of Aquinas, Finnis, and Fuller have in common? What important differences do you see between them?

Mon, Jan 21-NO CLASS

Wed, Jan 23: Positivism

  • PL (pp. 29-32, 37-49): Intro, Austin (lecture V only), Hart
  • Writing Prompt: Briefly summarize the central theses of Hart's positivism and the arguments he uses to defend his view.

Mon, Jan 28: Dworkin (part 1)

  • PL (pp. 70-89): Intro, Dworkin (from Taking Rights Seriously)
  • Writing Prompt: Briefly summarize the central elements of Dworkin's attack on Positivism (focus on the material from pp. 74-86).

Wed, Jan 30: Dworkin (part 2)

  • PL (pp. 90-100): Dworkin (from Law's Empire
  • Writing Prompt: Briefly summarize the central theses of Dworkin's 'law as integrity' position and the arguments he uses to defend this view.

Mon, Feb 4: Interpreting Legal Texts

  • PL (pp. 122-4): Intro
  • Scalia
  • PL (pp. 132-6, 149) Bork [recommended], US v. Locke
  • Writing Prompt: Briefly summarize the central theses of Scalia's textualist account of legal interpretation and the arguments he uses to defend this view.

Wed, Feb 6: Interpreting Legal Texts (con't)

  • PL (pp. 151-5, 142-9) Posner, Dworkin
  • Writing Prompt: Briefly summarize the central argument of Posner's essay.

Mon, Feb 11: Interpreting Legal Texts (con't)

  • MacKinnon  [You can skim the discussion of Marxism starting at the bottom of p. 640 and ending in the middle of p. 642]
  • PL (pp. 156-8) Bray v. Alexandria Women's Health Clinic
  • Writing prompt: Briefly summarize the central argument of MacKinnon's essay.

Wed, Feb 13: An Obligation to Obey the Law?

  • PL (pp. 231-48) Rawls, Simmons
  • Martin Luther King
  • No Reading Response (work on Paper 1 instead)

Mon, Feb 18


Part 2. Legal Rights: What are they? Where do they come from
?
Wed, Feb 20
: The Right to Liberty

  • PL (pp. 307-28) Intro, Mill, Stephen, Feinberg, New England Naturlists Assoc v. Larsen
  • Writing Prompt: Briefly summarize Stephen's arguments against Mill.
Mon, Feb 25: The Right to Liberty (con't)
  • PL (pp. 328-37) Mill, Dworkin
  • Writing Prompt: Briefly summarize Dworkin's argument for a moderate form of paternalism.
  • Paper 1 DUE

Wed, Feb 27: The Right to Liberty (con't)

  • PL (pp. 338-52) Devlin, Hart, Bowers v. Hardwick
  • Writing Prompt: Briefly summarize Devlin's argument.

Mon, Mar 4: The Right to Free Speech 

Wed, Mar 6: The Right to Free Speech (con't)
  • PL (pp. 372-387) Paris Adult Theatre I v. Slaton, MacKinnon, American Booksellers Assoc v. Hudnut, Dworkin 
  • Writing Prompt: Briefly summarize the core of Dworkin's reply to MacKinnon. In your response, be sure to discuss the two versions of MacKinnon's argument that Dworkin notes.

Mar 10-16: Spring Break

Mon, Mar 18: Promises & Contracts

  • Fried
  • Writing Prompt: Briefly summarize Fried's argument.

Wed, Mar 20: Promises & Contracts (con't)

  • Shiffrin [you can skip from the bottom of p. 487 to the middle of p 496, and all of section III]
  • Writing Prompt: Briefly summarize Shiffrin's argument.

Mon, Mar 25: Promises & Contracts (con't)

  • Narveson [you can skip section 5 which starts on p. 228]
  • Writing Prompt: Briefly summarize the Narveson paper.

Wed, Mar 27: Unconscionable Contracts


Part 3. Punishment and Responsibility

Mon, Apr 1: Utilitarian theories of punishment

  • PL (pp. 666-89) Intro, Bentham, Rawls
  • Writing Prompt: Briefly summarize the central argument of the Rawls reading.

Wed, Apr 3: Retributivist theories of punishment

  • PL (pp. 691-715) Intro, Kant, Davis
  • Writing Prompt: Briefly summarize the central argument of the Davis reading.

Mon, Apr 8: Capital punishment

  • Lewis
  • PL (pp. 761-4) Furman v. Georgia
  • Writing Prompt: Briefly summarize the Lewis paper.
  • Paper 2 (option 1) DUE

Wed, Apr 10: Capital punishment (con't)

  • PL (pp. 720-60) Intro, van den Haag, Reiman, Nathanson
  • Writing Prompt: Briefly summarize the van der Haag reading

Mon, Apr 15: Responsibility--Legal causation

  • PL (pp. 789-812) Intro, Hart & Honore, Palsgraf v. Long Island Railroad
  • Writing Prompt: Briefly summarize the Hart & Honore reading.

Wed, Apr 17: Responsibility--Omissions

  • PL (pp. 815-44) Intro, Epstein, Weinrib, Farwell v. Keaton
  • Writing Prompt: Briefly summarize the central argument of either the Epstein or the Weinrib essay.

Mon, Apr 22: Responsibility--Strict liability and crime

  • PL (pp. 846-71) Intro, Wasserstrom, Tison v. Arizona
  • Writing Prompt: Briefly summarize the Wasserstrom reading

Wed, Apr 24: Responsibility--Insanity defense

  • PL (pp. 888-911) Intro, Morris, Bonnie
  • Writing Prompt: Briefly summarize the central argument of either the Morris or the Bonnie essay.


Fri, May 3: Paper 2 (option 2) DUE

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