University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law

Class notes: chapter 1

The following notes correspond roughly to what we cover, including at least a portion of what I put on the board or the screen, in class. In places they may be more or less comprehensive than what we actually cover in class, and should not be taken as a substitute for your own observations and records of what goes on in class.

The following outline is designed to be, and is in some Web browsers, collapsible: by clicking on the heading for a section, you can collapse that section or, if it’s already collapsed, make it expanded again. If you want to print some but not all of this outline, collapse the parts you don’t want to print (so that just their top-level headings remain), and then click here to print this frame.

  1. pp. 1–19
    1. the idea of the rule of law—limits on the exercise of power
    2. the principles that constitute it
      1. government under law
      2. government by rules
      3. fair warning and other formal features
      4. due process
      5. power of the people
    3. the values that it promotes
      1. avoidance of corruption
      2. avoidance of vengeance
      3. individual liberty (example?)
      4. economic prosperity (example?)
    4. the obstacles to implementing it
      1. aspects of human nature
      2. Were Hobbes and Kant and Madison, among others, right to think that human nature presented formidable obstacles to the establishment of the rule of law?
    5. substantive vs. legal justice
      1. which side the rule of law is on
      2. which is more important (depends on context?)
  2. pp. 19–35
    1. special prosecutors
      1. how they promote the rule of law
      2. how they can undermine the rule of law
    2. impeachment trials vs. criminal trials
    3. political trials
      1. partisan political interest
      2. general good of society
      3. public opinion
    4. criminal trials as political trials and the rule of law
    5. impeachment trials as political trials and the rule of law
  3. Scalia, “The Rule of Law as a Law of Rules”
    1. [ See Joe Nickels’s handout for the presentation he did on this article. ]
    2. main point: The “general rule of law” approach is superior to the “personal discretion to do justice” approach (the common-law approach, or the totality-of-the-circumstances approach) (p. 1176).
    3. reasons in support of the general-rule approach
      1. practical
        1. appearance of equal treatment
        2. predictability
        3. has virtue of judicial restraint, "making" as little law as possible in order to decide case at hand
          1. objection: Surely the common-law approach decides the case at hand in a way that makes as little law as possible.
          2. apparent response: the general-rule approach promotes restraint in the long run, since it shows more restraint to adopt a principle to bind oneself in the future, limiting judicial arbitrariness, than to leave a bit of new law top be made in each future case.
        4. emboldens courts to perform their (two) most important functions
      2. theoretical
        1. Deciding things case by case is like treating them as questions of fact, not law—“a regrettable concession of defeat” (p. 1182).
    4. how to take the general-rule approach (p. 1183)
    5. inclination not to hear cases not amenable to this approach (p. 1185)
    6. repetition of main point of essay (p. 1187)