University of Pittsburgh, Summer 2000

Philosophy 1390: Philosophy of Law

C.L. 226—Tuesdays, 6 p.m. to 8:55 p.m.

Ben Eggleston—


Philosophy of Law


I.          Description


We will begin by inquiring into the nature of law itself. Is law (properly so called) a branch of morality, discoverable by reason and necessarily conducive to the common good; or is it nothing more than the commands issued by whoever has the most power; or is it something in between? When judges interpret the Constitution and other laws, do they discover the law or do they, in effect, make it up as they go along? We will then consider several questions that arise in the contemporary practice of law in America, such as the following: Is civil disobedience just? To what extent does the U.S. Constitution provide for privacy rights (including abortion rights)? Does plea bargaining corrupt the criminal-justice system? Under what circumstances can we hold people responsible for outcomes that they caused or could have prevented? Is the death penalty an acceptable form of punishment? We will address such questions by reading not only theoretical essays about law but also actual legal decisions. Assign­ments will include papers and tests, but the schedule of papers will be flexible, to suit the needs of each student.


II.        Books


Almost all of the required reading is contained in the following book:


Joel Feinberg and Jules Coleman (eds.), Philosophy of Law, sixth edition (Wadsworth).


No other books will be needed for the course, though you will need to buy a small course packet from the university photocopy center.


III.       Schedule


Following is a list of topics and reading assignments, along with in-class events such as videos and tests. (Note: PL refers to Philosophy of Law, mentioned above.)


May 16         Introduction


May 23         What law is: Hart

·        PL, pp. 1–6 (editors’ introduction)

·        PL, pp. 45–59 (H. L. A. Hart, “A More Recent Positivist Conception of Law”)


May 30         What law is: Dworkin

·        PL, pp. 130–147 (Ronald Dworkin, “The Model of Rules”)

·        PL, pp. 147–152 (Court of Appeals of New York, Riggs v. Palmer)

·        PL, pp. 152–166 (Dworkin, “Integrity in Law”)


June 6           The duty to obey the law

·        PL, pp. 210–218 (Plato, Crito)

·        documentary: “Eyes on the Prize,” no. 4: “No Easy Walk (1961–63)” (shown in class)

·        PL, pp. 219–226 (Martin Luther King, Jr., “Letter from Birmingham Jail”)


June 13        Legal interpretation: reproductive freedom

·        PL, pp. 254–256 (editors’ introduction, up to “Freedom of Expression and Its Limits”)

·        PL, pp. 281–286 (U.S. Supreme Court, Griswold v. Connecticut)

·        PL, pp. 287–290 (U.S. Supreme Court, Roe v. Wade)

·        documentary: part of “The Constitution: That Delicate Balance,” no. 10: “Right to Live, Right to Die” (shown in class)

·        PL, pp. 291–294 (U.S. Supreme Court, Planned Parenthood of S.E. Pennsylvania v. Casey)


June 20        Legal interpretation: free speech

·        PL, pp. 256–258 (editors’ introduction, from “Freedom of Expression and its Limits” to the end)

·        PL, pp. 322–325 (U.S. Supreme Court, Cohen v. California)

·        PL, pp. 326–329 (Supreme Court of Illinois, Village of Skokie v. National Socialist Party of America)

·        PL, pp. 330–338 (U.S. Supreme Court, Texas v. Johnson)


June 27        Legal interpretation: same-sex marriage

·        Mary Bonauto et al., “The Freedom to Marry for Same-Sex Couples: The Opening Appellate Brief of Plaintiffs Stan Baker et al. in Baker et al. v. State of Vermont” (in course packet)

·        documentary: oral arguments in the case of Baker v. State (shown in class)

·        Supreme Court of Vermont, Baker v. State, majority opinion (in course packet)


July 4           [no class: university holiday]


July 11         Issues in criminal justice: procedural problems

·        PL, pp. 394–403 (John H. Langbein, “Torture and Plea Bargaining”)

·        documentary: “Frontline: Inside the Jury Room” (shown in class)

·        PL, pp. 404–408 (Kent Greenawalt, “Jury Nullification”)


July 18         Issues in criminal justice: responsibility

·        PL, pp. 648–662 (Lon L. Fuller, “The Case on the Speluncean Explorers”)

·        PL, pp. 668–669 (The House of Lords, “The M’Naghten Rules”)

·        PL, pp. 669–671 (American Law Institute, “The Insanity Defense”)

·        PL, pp. 672–673 (Supreme Court of New Jersey, State v. Guido)

·        documentary: “The Constitution: That Delicate Balance,” no. 6: “Crime and Insanity” (shown in class)


July 25         Issues in criminal justice: the death penalty

·        PL, pp. 836–841 (Ernest van den Haag, “In Defense of the Death Penalty: A Practical and Moral Analysis”)

·        PL, pp. 842–850 (Stephen Nathanson, “Should We Execute Those Who Deserve to Die?”)


August 1       Final exam


IV.       Requirements


1.            attendance and participation (15 percent)


Attendance includes being in class on time and being awake. And note that participation means not simply talking in class, but saying intelligent and helpful things.


2.            an in-class presentation (15 percent)


The default assignment for the presentation is pretty simple: Identify two or three claims in the assigned reading (for the day on which you do your presentation) that you regard as questionable or objectionable, and give reasons for regarding these claims as questionable or objectionable. But you do not have to do the default assignment; if you would like to do a presentation on some other material than the day’s assigned reading, let me know—in general I am receptive to such requests, since it can be helpful for every­one when presen­ta­tions introduce unassigned, but relevant and informative, material. Note, how­ever, that although I am open to such requests, I do require that you make a proposal along these lines to me at least one class meeting in advance of the class in which you will do your presentation. So if I don’t hear from you at least one class in advance, I’ll grade your presentation as an attempt to respond to the default assignment.


3.            papers (50 percent)


For your papers, you will be given four assignments—one on each of the four units into which the course is divided (what law is, the duty to obey the law, legal inter­pretation, and issues in criminal justice). The default paper-writing option is to write a paper on the first topic and then write papers on two of the next three topics, of your choosing. You do not have to select your second and third topics in advance; you can just decide, as the second, third, and fourth assignments are issued, whether it’s the one you would like to skip. Each of the three papers that you end up writing should be 4–5 typed, double-spaced pages in length.


That, as I said, is the “default paper-writing option.” But to make the schedule of paper-writing assignments more flexible, I encourage you to think about what interests you most in this course and to consider embarking on a more ambitious writing project in some area. For example, if you are very interested in Hart and Dworkin, you might want to expand your initial paper of 4–5 pages into one of 8–10 or 12–15 pages. Or, if you are very interested in civil disobedience, you might want to write a pager of 8–10 pages on that; then you wouldn’t have to write a 4–5 page paper on some later topic that doesn’t interest you as much. Note, however, that you must get permission from me in advance if you want to deviate in any way from the schedule of assignments that I called the “default paper-writing option.” Nothing in this paragraph counts as such permission; it is just meant to give you some ideas.


4.            the final exam (20 percent)


The final exam will be cumulative and will consist of multiple-choice and short-answer questions.