Survey in the History of Ancient Philosophy
Phil 105: Introduction to Philosophy of Law and Legal Ethics
Pennsylvania State University, University Park
117 Osmond Lab
MW 2.30-3.20p, 24 Aug to 11 Dec 2015
Sections: 113 Osmond Lab, F 11.15-12.05p or 12.20-1.10p
Instructor: Christopher Moore
Department of Philosophy
204 Sparks Building
Email: c.moore@psu.edu
Office hours: M 3.30-4.30p, W 12.15-1.15
TA: Kaitlyn Newman
Department of Philosophy
228 Sparks Building
Email: kjn145@psu.edu
Office hours: M 1.15-2.15p, W 3.30-5.30p
Required Texts
Plato, Trial and Death of Socrates (Hackett, 978-0872205543)
Melville, Billy Budd (Tor, 978-0812504262)
McEwan, The Child Act (Anchor, 978-1101872871)
Nussbaum, Poetic Justice (Beacon, 978-0807041093)
Hart, The Concept of Law (Oxford, 978-0199644704)
Dworkin, Law’s Empire (Harvard, 978-0674518360)
Foucault, Discipline and Punish (Vintage, 978-0679752554)
Studying the philosophy of law
Law organizes society in two primary and related ways: it limits what individuals or groups can do, and it structures society itself and its administration. The first way includes those laws that limit the grounds on which, for example, you can take something from somebody. You follow the law if you buy something or receive it as a gift; you break the law if you swindle or steal it. The second way includes those laws that structure, for example, the criminal justice system, with its courts, attorneys, jails, etc., that deal with people who do not follow the law. Decisions made by courts are legally binding; decisions made by random dudes on the street are not.
The study of law, accordingly, touches the study of both ethics (how should we treat people?) and political philosophy (how should we organize our state?). But law has its own set of philosophical difficulties, especially about its source, discovery, articulation, force, and effect. This class will take on some of those difficulties in each of these areas.
Source. We wonder where laws come from especially when we think some of them are bad (e.g., unjust, tortuous, inane). If we can prove that law comes from democratic decision-making, then we could change the bad law through a new course of democratic decision-making, or we could try to show that the bad law did not in fact come from democratic decision-making (but instead from, e.g., some autocratic decree). Of course, we might find out that law does not come from democratic decision-making, or at least not ultimately, but instead from human nature or divine decree or the will of the most powerful or of the majority. Rejection of a bad law might then require showing that it does not conform with human nature, etc. Put in abstract or theoretical language, then, just as moral philosophers investigate the source of moral rules (convention, reason, nature, etc.), legal philosophers investigate the foundation of legal rules.
Discovery. If our country’s law comes from, say, a specific political decision, then we will discover what our country’s laws are by reading the record of the president’s bill-signing (or something like that). If our law comes from something else, of course, then we will have to take some other route to discovering it. For example, if it comes from divine wish, then discovery depends on knowing the mind of god. If it comes from majority will, then discovery depends on figuring out the mind of 51% of the populace. People will differ about the most efficient or reliable routes to these discoveries.
Articulation. The range of possible human action is infinite, each subtly differentiated from the others by one thing or another. Law seems, by contrast, a bulky thing, with broad injunctions like “do not injure others.” Because of this mismatch, laws must be “articulated” before they can be applied effectively. This means that they are to be made determinate, precise, and narrowly construed, so that they disallow, for example, assault but not the surgeon’s incision or accidentally tripping a fellow runner in a race. Yet articulation risks casuistry, making a law fit a case for self-interested or malicious reasons. There must be principles for narrowing laws; but what these principles are is open to debate—perhaps more debate than in any other aspect of law.
Force. The law that limits action is generally backed by sanction, either monetary fines or degrees of punishment; it is also generally backed by argument that appeals to the moral, social, or economic benefit of following it. But some people wonder whether sometimes the law does not have the strongest of all claims on us. Perhaps we have good reason to break a law (e.g., Jim Crow laws) because the cause of justice is stronger. Or sometimes a perfectly just law (e.g., speed limits) is pretty weak against our (reasonable) self-interest to drive faster than they allow.
Effect. What you are allowed to do can determine the quality and nature of your life in sometimes unexpected ways. Such have been the arguments, for example, for the granting of property rights to women, voting rights to African-Americans, and marriage rights to gay couples. The defenders of the status quo would say that economically, politically, and socially, these new laws would make no difference (e.g., women control property through their influence on their husbands; African-Americans could have the same protections as everybody else; nothing is stopping gay couples from cohabitating and loving each other). But advocates say that, even were this so (and surely it is not), law effects your identity, your self-understanding and self-worth, others’ attitudes toward you, and the state’s protection of you.
Structure of the semester
This course falls into five sections.
Overview. The first few weeks of class introduce the philosophically most-pressing questions of law. These include the social purpose of law, the reasons for obeying law, the natural versus political origins of law, and the personal and public products of law. We will see, in particular, how we understand Supreme Court cases properly only through the context of the philosophy of law.
Literature. We may see the effects and workings of law most clearly through novels, imaginative literary evocations of concrete human situations. Thus we spend the next three weeks talking about the insight and epistemic maturation we gain by reading.
Nature of law. In this section we address most directly, analytically, and rigorously the elements of inquiry discussed above: source, discovery, articulation, force, and effect. We do this through two complementary and equally profound texts by the twentieth-century’s preeminent philosophers of law.
Punishment. Punishment follows the breaking of law; but its content is usually something that, in any other context, would itself require breaking the law (e.g., taking your money, restricting your movements, killing you). So we wonder what makes punishment legal and appropriate, and more specifically, which kinds of punishment, for which kinds of law-breaking, and for which reasons precisely.
The Supreme Court. We will study and read about a few Supreme Court cases throughout the semester. This prepares us for the end of the semester, where our final projects will investigate current (2014 or 2015) Supreme Court cases.
Class time
Each week comprises two large-class sessions (Moore) and one discussion section (Newman). In the large-class sessions, we will together talk through the readings, break into small-group directed-reading assignments, and build up skills of philosophical analysis. You are to be present, prepared, paying attention, phoneless, and participatory every day. You are also to take notes.
In the Friday discussion sections, you will always start with a ten-minute quiz on the previous three classes and recent reading. The remainder of the class will engage you in explanation, analysis, review, debate, advocacy, and the other legal-philosophical skills.
Graded work
Quizzes [120 pts]
Friday sections will begin with a quiz on the previous three classes and recent reading. (You may take it only if you arrive in class on time.) You will be graded on your top twelve scores. There are no make ups quizzes unless official documented University business (or illness documented by your Academic Advisor) prevents you from attending at least twelve Friday sections.
Course notes [40 pts]
I expect you to take notes during every class session, of important concepts, arguments, relationships, references, facts, names, and so forth—most of which will not be written on the board or included in handouts. This does not mean creating a verbatim account of the day, especially when hot in the middle of conversation. It does mean, however, that your notes should allow you to reconstruct the key elements of the day’s discussion. Accordingly, I will ask you both at the semester’s end and periodically beforehand to turn in all your notes (whether loose-sheet or in a notebook). Thus you should keep your notes together. You may retype your notes and fill in missing sections, but you may submit this only if you also submit the originals. You will lose points for days you missed (unless accompanied by a University-approved note or explanation).
One-page papers (+ a revision) [90 pts]
You will have a one-page paper associated with each of the four units. We will ask you to revise our choice of one of those papers; the grade for the revision will depend solely on the care, detail, and imagination with which you respond to our critique.
Final group project [50 pts]
In groups of three you will create a blog presenting summaries, analyses, and judgments about a 2014 or 2015 Supreme Court case, attending to crucial documents and their relevance to our readings and discussions in the philosophy of law.
Logistics
Grades
A 280-300 – Extraordinary
A- 270-279
B+ 260-269
B 250-259 – Good
B- 240-249
C+ 230-239
C 210-229 – Acceptable
D 180-209 – Minimal pass
F 0-179 – Fail
Technology
Please check and promptly respond class-related emails each school-day. I will do the same. I will email you additional handouts if I do not distribute paper copies. Please check with fellow students to ensure you have not missed any handouts. At no point should you look at or touch your cellphone unless asked to do so. You face a grade reduction of up to several increments for repeated infraction of this rule.
Accessibility
Penn State welcomes students with disabilities into the University’s educational programs. If you have a disability-related need for reasonable academic adjustments in this course, contact the Office for Disability Services (ODS) +1 814-863-1807(V/TTY). For further information regarding ODS, please visit equity.psu.edu/ods/. Please notify me at semester’s start about the need for reasonable academic adjustments.
Cheating
Academic dishonesty in any portion of the academic work for this course shall be grounds for failing the entire course and communication of dishonesty to the College. This includes, but is not restricted to, any plagiarism or cheating on quizzes, papers, notes, or final project. This includes any copying or modifying already-written material found anywhere. Please ask about any case you’re concerned about. For details on the PSU policy, see psu.edu/oue/aappm/G-9.html.
Topic, Reading, and Assignment Schedule
Overview
Aug M 24 Introduction to the course. The “no cell-phone use” rule.
W 26 Socrates and the law: religion, war, democracy, and philosophy.
Read: Plato, Apology
F 28 Student (legal) introductions. Reactions to Apology.
Quiz 1: on syllabus and Plato
M 31 Law and one’s upbringing. Submission and gratitude.
Read: Plato, Crito
Sep W 02 The idea of civic disobedience.
Read: King, “Letter from Birmingham Jail”
F 04 Discuss: when should one break the law?
Read: Thoreau, “Civil Disobedience”
Quiz 2: on Plato, King, Thoreau
M 07 NO CLASS: LABOR DAY
W 09 Marriage laws and the expansion of liberty.
Read: Obergefell v. Hodges [Kennedy]
F 11 Purported limits on constitutional interpretation.
Read: Obergefell dissent [Roberts]
Quiz 3: on Obergefell
Literature
M 14 Obergefell and the philosophy of law. Kennedy’s use of life stories.
Law and literature. Context for Billy Budd.
Due: PAPER 1
W 16 The trial.
Read: Melville, Billy Budd, chs. 19-22
F 18 Discuss: two proceedings.
Read: McEwan, The Children Act, pp. 1-41
Quiz 4: on Bill Budd and TCA chapter 1
M 21 The advocacy model of the courts.
Read: TCA, pp. 45-133
W 23 What information should a jurist have?
Read: TCA, pp. 137-175
F 25 Discuss: Fiona Maye’s judgment.
Read: TCA, pp. 179-221
Quiz 5: on the complete TCA
M 28 Remarks on Nussbaum’s vocabulary and argumentative project.
Read: Nussbaum, Poetic Justice, pp. xiii-xviii, 1-12
W 30 Judicial opinions and the particularity of lives.
Read: PJ, pp. 83-118
Oct F 02 Discuss: emotion and legal decision-making.
Read: PJ, pp. 53-59, 72-78
Quiz 6: on PJ
Nature of Law
M 05 Concluding remarks about novels and education.
Introduction to H.L.A. Hart’s philosophy of law: concern for the nature of law.
Due: PAPER 2
W 07 “What is law?”: Definitions, rules, and vagueness.
Read Concept of Law, pp. 1-17
F 09 Discuss: the differences between laws and coercive orders.
Read CL, pp. 18-33
Quiz 7: on CL
M 12 Law, commands, obedience, and habit.
Read CL, pp. 42-44, 50-66
W 14 Primary and secondary rules, and the rule of recognition.
Read CL, pp. 79-99
F 16 Vagueness and determinacy.
Read CL, pp. 124-136, 141-147
Quiz 8: on CL
M 19 Justice and difficulties in making and applying law fairly.
Read CL, pp. 155-167, 172-180
W 21 The relationship between law and morality. Why obey the law?
Read CL, pp. 193-212
F 23 Discuss: Four cases
Read Dworkin, Law’s Empire, pp. 15-30
Quiz 9: on CL and LE
M 26 Introduction to Dworkin’s philosophy of law. Interpretation. The chain novel.
Read LE, pp. 228-250
W 28 Statutory interpretation.
Read LE, pp. 313-337
F 30 Statutory interpretation, continued.
Read LE, pp. 338-354
Quiz 10: on LE
Nov M 02 Constitutional interpretation.
Read LE, pp. 355-379
W 04 Constitutional interpretation, continued.
Read LE, pp. 380-399
F 06 Discuss: the US Constitution to and American understanding of law.
Quiz 11: on LE
Due: PAPER 3
Punishment
M 09 The puzzle of state-sponsored punishment.
Read: “Punishment”
W 11 Possible grounds for legitimate punishment.
Read: “Legal Punishment”
F 13 Non-utilitarian considerations.
Read: “Retributive Justice”
Quiz 12: on aims of punishment
M 16 From punishment of body to punishment of soul. Foucault’s theory of power.
Read: Foucault, Discipline and Punish, pp. 3-24
W 18 Torture, spectacle, and the power of the sovereign.
Read: DP, pp. 32-65
F 20 Discuss: the pain and purpose of punishment.
Read: DP, pp. 73-101
Quiz 13: on Foucault
M 23 NO CLASS: THANKSGIVING
W 25 NO CLASS: THANKSGIVING
F 27 NO CLASS: THANKSGIVING
The Supreme Court
M 30 Overview of Supreme Court’s 2015 Term. Discuss final project.
Due: PAPER 4
Dec W 02 Legal, critical, and philosophical materials connected to Supreme Court cases.
Read:
F 04 Discuss: the value of oral arguments
Read: oral arguments of a case TBA
Quiz 14: on those oral arguments
M 07 Supreme Court Case TBA
Read: relevant documents TBA
W 09 Remarks on the final project. Conclusions. Farewell.
F 11 Questions about the final project
Quiz 15: on final matters.
TBA Final project due.
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