1200 Academy St. Kalamazoo, MI 49006
Philosophy Department
THE PHILOSOPHY OF LAW
Professor: Chris Latiolais 202 Humphrey House 337-7076 (Office);
-7043
(Secretary)
Office Hours: 1) Mon. 9:00 - 10:00 2) Tues. 2:00 - 4:00 3) By
Appointment.
TEXTS:
1. Joel Feinberg & Hyman Gross (eds.): Philosophy of Law (Wadsworth
Publishing Company, 1995).
2. Andrew Altman: Critical Legal Studies: A Liberal Critique (Princeton
University Press, Princeton, New Jersey 1990).
3. (Translated passages) Juergen Habermas: Faktizitaet und Geltung:
Beitraege
zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats
(Suhrkamp
Verlag, Frankfurt am Main 1992).
COURSE GOALS:
This course is an introduction to some basic issues in the philosophy of
law. In the first, historical part of the course, we will review the
traditional
schools of thought concerning the origin and justification of legal
systems,
from theological and natural-law theories to legal positivism, formalism
and realism. The second part of the course examines, in some detail, a
contemporary
challenge to the traditional idea that "the rule of law"
should
be impartial and objective: the so-called "critical legal studies
movement."
In the third, we will explore special problems in jurisprudence, such as
legal paternalism, constitutional privacy, freedom of expression, and
constitutional
interpretation. In the fourth, students will present their independent
research
of a current legal issue.
EVALUATION:
Students will be evaluated on the basis of class participation, fidelity
to an academic journal, two midterm examinations and a final paper.
Class Participation, seminar presentations and discussion=30%
Midterm examinations 2 @ 15% each=30%
Biweekly Quizzes 5 at 5% each=25%
Journal (required though ungraded )
Final Paper 10-12 pages=15%
POLICIES:
Open, respectful, critical discussion is the life-blood of this course.
Journal provides preparation for classroom deliberation, and the paper
offers
the student the opportunity to gather his or her Journals will be
collected
every three weeks. The final paper is due on the date scheduled for the
final examination. 3 unexcused absences will result in a full grade
reduction.
READING SCHEDULE
INTRODUCTION:
WEEK ONE
WED, JAN. 3RD.
PART ONE: THE NORMATIVE FOUNDATIONS OF LAW: NATURAL LAW THEORY AND
LEGAL
POSITIVISM.
FRI, JAN. 5TH.
1. Norman Kretzmann: "Lex iniustia Non Est
Lex:
Laws on Trial in Aquinas' Court of Conscience."
2. Anthony D'Amato: "On the Connection Between Law and
Justice."
SAT, JAN. 6TH. Movie: The Trial at Nurenberg.
A. THE HART-FULLER DEBATE:
WEEK TWO
MON, JAN. 8TH.
1. John Austin: A Positivist Conception of Law, from The Province of
Jurisprudence
Determined (1832).
2. H.L.A. Hart: A More Recent Positivist Conception of Law, from The
Concept
of Law (1961).
3. H.L.A Hart: "Positivism and the Separation of Law and
Morals."
(1958).
WED, JAN. 10TH.
1. Lon L. Fuller: "Positivism and Fidelity to Law -- A Reply to
Professor
Hart" (1958).
2. Lon L. Fuller: Eight Ways to Fail to Make Law, from The Morality of
Law
(1964).
3. Joel Feinberg: "The Dilemmas of Judges Who Must Interpret
'Immoral
Laws'" (1995).
4. Quiz #1.
B. CIVIL DISOBEDIENCE: MUST LAWS BE MORAL?
FRI, JAN. 12TH.
1. Martin Luther King, Jr.: Letter from Birmingham Jail, from Why We
Can't
Wait (1963).
C. THE "THIRD THEORY OF LAW": DWORKIN'S REASSERTION OF THE
CONNECTION BETWEEN MORALITY AND LAW.
WEEK THREE
MON, JAN. 15TH.
1. Ronald M. Dworkin: "The Model of Rules" (1967).
2. Riggs v. Palmer -- Court of Appeals on New York
1889.
3. Ronald M. Dworkin: "Natural Law Revisited" (1982).
4. J. L. Mackie: "The Third Theory of Law" (1977).
WED, JAN. 17TH.
1. O. W. Holmes, Jr.: "The Path of the Law" (1897).
2. Jerome Frank: Legal Realism, from Law and the Modern Mind (1963).
FRI, JAN. 19TH.
1. Midterm examination #1.
D. THE CHALLENGE OF CRITICAL LEGAL STUDIES:
WEEK FOUR
MON, JAN. 22ND.
1. Andrew Altman: "Legal Realism, Critical Legal Studies, and
Dworkin"
(1986).
2. Andrew Altman: "Critical Legal Studies v. Liberalism" &
"Liberalism and Legality" (Chapters One and Two of CLS).
3. Quiz #2.
WED, JAN. 24TH.
1. Andrew Altman: "The Possibility of the Liberal Rule of Law"
(Chapter Three of CLS).
WEEK FIVE
MON, JAN. 29TH.
1. Andrew Altman: "The Contradictions of Law" (Chapter Four of
CLS).
WED, JAN 31ST.
1. Andrew Altman: "Law and Social Reality" (Final Chapter of
CLS).
2. Midterm Examination #2.
PART 2: THE CONSTITUTIONAL-DEMOCRATIC FOUNDATIONS OF LAW: THE GAP
BETWEEN
MORAL SELF-DETERMINATION AND POLITICAL LEGITIMACY.
A. CIVIL LIBERTIES AND THE SCOPE OF LAW:
WEEK SIX
MON, FEB. 5TH.
1. John Stuart Mill: The Liberal Argument, from On Liberty (1859).
2. Gerald Dworkin: "Paternalism, from Morality and the Law
(1971).
3. Gerald Dworkin: Paternalism: Some Second Thoughts, from Paternalism
(1983).
4. Patrick Devlin: Morals and the Criminal Law, form The Enforcement of
Morals (1965).
5. Patrick Devlin: Morals and Contemporary Social Reality, from The
Enforcement
of Morals (1965).
B. CONSTITUTIONAL PRIVACY:
WED, FEB. 7TH.
1. Griswold v. Connecticut -- United Sates Supreme Court, 1965.
2. Roe v. Wade: United States Supreme Court, 1973.
3. Planned Parenthood of S.E. Pennsylvanian v. Casey -- United Sates
Supreme
Court, 1992.
4. Bowers v. Hardwick -- United States Supreme Court, 1986.
5. Quiz # 3.
C. FREEDOM OF EXPRESSION AND ITS LIMITS:
WEEK SEVEN
MON, FEB. 12TH.
1. Joel Feinberg: "Limits to the Free Expression of
Opinion."
2. Cohen v. California -- United States Supreme Court
1971.
3. Village of Skokie v. National Socialist
Party
of America -- Supreme Court of Illinois, 1978.
4. Texas v. Johnson -- United States Supreme Court,
1989.
5. Thomas C. Grey: "Civil Rights Versus Civil Liberties: The Case
of
Discriminatory Verbal Harassment.
WED, FEB. 14TH.
1. Freedom of Expression (Continued).
2. Quiz #4.
PART THREE: JUSTICE AND THE POLITICAL-EMANCIPATORY ROLE OF LAW:
A. AFFIRMATIVE ACTION:
WEEK EIGHT
MON, FEB. 19TH.
1. Thomas Nagel: "Equal Treatment and Compensatory
Discrimination"
(1973).
2. Thomas E. Hill, Jr.: "The Message of Affirmative Action"
(1991).
B. GENDER-BASED DISCRIMINATION:
WED, FEB. 21ST.
1. Kim Lane Scheppele: "The Reasonable Woman" (1991).
2. State v. Rusk -- Court of Appeals of Maryland,
1981.
3. Regina v. Morgan -- House of Lords, 1976.
4. State v. Kelly -- Supreme Court of New Jersey,
1984.
5. Larry May and John C. Hughes: Is Sexual Harassment Coercive?, from
Moral
Rights and the Workplace (1987).
6. Ellen Frankel Paul: "Bared Buttocks and Federal Cases"
(1991).
7. Michael M. v. Superior Court of Sonoma
County
-- United States Supreme Court, 1981.
8. Quiz #5.
WEEK NINE
MON, FEB. 26TH.
1. Student Research Presentations.
WED, FEB 28TH.
1. Student Research Presentations (Continued).
WEEK TEN
MON, MARCH 4TH.
1. Student Research Presentations (Continued).
WED, MARCH 6TH.
1. Student Research Presentations (Continued).
2. Student Evaluations.
FINALS WEEK
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