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What is the "Dismissive-Judgment" charge
against natural law theory? How does Aquinas' definition of
law protect him against this charge?
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What is Austin's definition of law?
What does H.L.A. Hart find objectionable about it?
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What is H.L.A. Hart's definition of law?
What, according to him, is the appropriate way of understanding the
relationship between morality and the law? How might a sophisticated
anti-positivist argue against this account?
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What is Lon L. Fuller's argument for the
so-called "inherent morality of law"? Do you find his claim
convincing that this alleged "inherent morality of law" provides defenses
against the corruption of legal systems in fascist and totalitarian
regimes?
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In "The Model of Rules" and "Natural Law
Revisited," Dworkin presents and defends what J. L. Mackie has called
the "third theory" of law. What is Dworkin's conception of law?
How does Dworkin understand the special responsibilities of judges,
who must apply the law? In "The Third Theory of Law," J.L. Mackie
argues that Dworkin's account of law and jurisprudential determinacy
is unsuccessful. What are Mackie's arguments against the "third
theory"? Present your own arguments for or against Mackie's
criticism.
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In his article, "Civil Disobedience in the
Modern World," Feinberg analyzes the grounds for civil disobedience
in light of the debate between positivists and natural law theorists.
What is the issue of civil disobedience for Feinberg? What conclusions
does Feinberg reach in his discussion. Give clear and concise
expositions of his arguments and analyze their validity.
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In his article, "Legal Realism, Critical
Legal Studies and Dworkin" and in Chapter 8 of Arguing About Law:
An Introduction to Legal Philosophy, Altman analyzes CLS in relation
to legal positivism, realism and Dworkinian jurisprudence. Analyze
Altman's account of CLS's attack upon Dworkin's position regarding
legal determinacy. What are the central arguments that
CLS advances against Dworkin's model of legal determinacy? Do
you find CLS's arguments convincing?
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In Critical Legal Studies: A Liberal Critique,
Andrew Altman presents three different ways in which CLS argues against
the possibility of the liberal "rule of law." What are the Patchwork,
Duck-Rabbit and Truncation theses regarding legal determinacy?
How does Altman assess their significance for liberalism's insistence
upon the neutrality of the legal system vis-a-vis political discord?
How might a CLSer respond?
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In "Civil Rights Versus Civil Liberties:
The Case of Discriminatory Verbal Harassment," Thomas Grey argues
that Stanford's free-speech code is a subtle document that appropriately
balances concerns with civil rights and civil liberties. First,
give an exposition of Grey's argument for the type of university free-speech
regulation we should be adopting, given our constitutional and juridical
heritage. Analyze our "Academic Freedom" policy statement in
the terms Grey provides. Is our code at Kalamazoo College a
good one according to the criteria Grey provides?
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What do you think of Grey's claim that "the
civil-rights approach embodies a project, which is to be carried on
within a framework constituted by the civil-liberties approach?
Would Dworkin agree, and which of his central distinctions does Grey's
distinction invoke? How might an advocate of CLS refute Grey's
claim?
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In his article, "Civil Disobedience in the
Modern World," Feinberg analyzes the grounds for civil disobedience
in light of the debate between positivists and natural law theorists.
What is the issue of civil disobedience for Feinberg? What conclusions
does Feinberg reach in his arguments and do you find such arguments
sound?
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In The Concept of Law, H. L. A. Hart presents
and defends legal positivism. What is his account of legality, and
how have subsequent philosophers argued against it?
- The positivistic orientation to jurisprudence articulated
by H. L. A. Hart in The Concept of Law has been severely criticized
by Natural Law theorists for failing to answer the question of how laws
could be binding. How might one defend legal positivism against such
arguments? Do you find this defense entirely plausible?
- Explain how Lon Fuller secularizes Natural Law theory and
assess the logical requirements of articulating a functioning system
of laws he identifies preserves or undermines a normative orientation
to law.
- What type of Natural Law theory is at work in Martin Luther
King’s Letter from Birmingham Jail?
- David Luben interprets Martin Luther King as defending a Hermeneutic
understand of the U.S. legal system. How might Malcolm X be seen as
rejecting this hermeneutic ideal of a shared historical topoi?
- What is Dworkin’s argument against the system-of-rules
legal positivism championed by H. L. A. Hart? To what extent does Dworkin’s
argument succeed in discrediting legal positivism?
- Compare and contrast Legal Hermeneutics and Dworkinian jurisprudence.
In what sense is Dworkin a hermeneuticist?
- What is the debate surrounding Dworkinian jurisprudent and
Critical Legal Studies, and what do you think we should learn from it?
- What is Critical Legal Studies, and does it succeed in its
critique of the very idea of the rule of law?
- What is liberal neutrality, and how have philosophers argued
against it? Do you find such critiques convincing?
- Does Habermas’s Dicourse Theory of law remainder the
CLS/Dworkin debate?
- What is Habermas’s critique of Luhman’s system-theoretic
approach to law?
- What is Habermas’s critique of Dworkin’s normative
orientation to legal validity?
- How does Habermas propose to move beyond what he takes as
the false dichotomy between factual and normative approaches to the
study of law? Does he succeed in arguing that each presupposes the other?
- What is Habermas’s distinction between justification
and application discourses, and to what degree does this distinction
capture CLS concerns with social power?
- Compare and contrast Lon Fuller’s and Jurgen Habermas’s
accounts of “fidelity to the law”? Do found find their respective
foci on logic and language helpful in understanding legal validity?
