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

Paper assignment no. 1

For this paper, first choose one of the following topics (or propose your own to me, and I might approve it—but do not write on a topic other than any of these, or on a variant of any of these, without getting my approval first).

  1. In chapters 5–6 of The Concept of Law, H. L. A. Hart describes what he takes to be the essential elements of a legal system. Write a paper offering the strongest criticism of Hart’s theory that you can. Note that your criticism might go in either of two directions: it might claim that Hart’s theory fails to acknowledge certain essential elements of a legal system, or it might claim that it includes, as essential elements, elements that aren’t really essential. Pick one of these (not both) and develop the strongest objection to Hart’s theory that you can.
  2. It is often thought that judges who believe in legal positivism are bound to be conservative, in the sense of sticking very closely to precedent and tradition. Consider, however, the following claim: “How seriously a judge takes precedent and tradition depends upon what she believes her society’s rule of recognition says. Different judges from one society with different understandings of their society’s rule of recognition might take precedent and tradition seriously to different degrees, and thus might disagree about the correct decisions in particular cases.” Write a paper supporting this claim. A good way to do this would be to develop a fairly elaborate hypothetical example in which two judges have different (but plausible) conceptions of their society’s rule of recognition, and in which these different conceptions of their society’s rule of recognition lead them to disagree about the correct decision in a particular case.
  3. In class, I said that the main argument of chapter 2 could be summarized as follows. (Premise 1:) Lawyers and judges using different factual criteria are disagreeing about creative interpretation. (Premise 2:) When people disagree about creative interpretation, they can still be talking about the same thing. (Conclusion:) Therefore, when lawyers and judges use different factual criteria, they can still be talking about the same thing. The argument is evidently valid—i.e., if the premises are true, then it seems that the conclusion must be true as well. But how are the premises true as well? That is, how does Dworkin’s notion of creative interpretation make the premises true? In writing a paper answering this question, you should not just explain creative interpretation. Instead, you should write some paragraphs about premise 1, adducing those aspects of creative interpretation needed to show that premise 1 is true; and then you should write some paragraphs about premise 2, adducing those aspects of creative interpretation needed to show that premise 2 is true.
  4. In the latter part of chapter 7, Dworkin anticipates and responds to several objections to his view. Pick an objection and write a paper showing that Dworkin’s response to that objection is unsuccessful (and cannot be developed in some fairly obvious way so that it is successful—I add this last remark in order to caution you away from criticizing Dworkin’s response to a particular objection on grounds of length, or something like that).

Following is a protocol for preparing your paper, turning it in, and further tasks. (As before, I require strict compliance; deviations will be penalized.)

Your paper should be formatted a lot like an answer for a take-home essay question, with a few changes (which are underlined):

  1. page
    1. Use one side each of up to three sheets of business-sized (8.5” x 11”) paper.
    2. Use margins of at least one inch on all four sides.
  2. type
    1. Use the font Times New Roman, or (if not available) the nearest available equivalent.
    2. Use a type size of at least 12 points. (Note: this is a change from the minimum of 11 points for the take-home essay question, because I am not requiring you to cram your whole paper onto just one page.)
    3. Use the same font and type size throughout your whole document.
    4. Double-space all the lines.
    5. Make the lines flush-left—that is, don’t right-justify them.
    6. Number each page at the bottom, in the center. (This can be in the bottom margin, rather than above it.)
  3. On the first line of the first page (not every page), list the following items, separated by commas:
    1. Philosophy of Law
    2. 3/2/05
    3. paper 1
    4. topic X (where Y is the number of the topic, from above, being answered)
    5. answer Y (where Y is the three-digit code that will be used for this sheet and no other)
  4. Start each paragraph of your paper with a half-inch indentation.

On Wednesday, March 2, bring three copies of your paper to class. On that day, you will get comments on your paper from some of your classmates, and you will read and comment on their papers. Two copies are for this purpose; the third copy is to turn in to me. But I will not look at it until I grade the paper you turn in on Friday, March 4 (see below), and then only to make sure you really had your paper substantially finished on Wednesday.

On Friday, March 4—after you have had a couple of days to revise your paper in response to your classmates’ comments—bring a hard copy of your paper to class to turn in. (Remember to change the date to 3/4/05, and make sure the pages are stapled together.) Also keep a hard copy for yourself.

Before going on, let me answer a few frequently asked questions.

  1. “Will you read rough drafts?” No, for three reasons. First, I have too often have the experience of giving comments on a rough draft, judging the final draft to be something short of perfect, being told something along the lines of “I thought I made all the changes you asked for,” and ending up mired in a discussion about what did or did not get said in the previous conversation about the rough draft rather than about what is good or bad about the paper itself. Second, I am setting aside a day in class for you to get feedback from your classmates. Since they are capable of catching much of what I usually end up catching—lack of clarity, structural problems, etc., as well more narrowly “philosophical” problems—their feedback should be a good partial substitute for mine. Third, I am perfectly willing to meet with you to talk about your ideas.
  2. “Oh, so you will meet with us in advance?” Absolutely. I would be glad to talk to you about the material, or help you think through the ideas in your paper, if you’d like. You can even write a draft of your paper and bring it to me, and describe what you do in your paper, and I will tell you whether it sounds like you are on the right track. This might compromise the anonymity of your paper, but I believe that cost should be borne in order to help you get as sound an understanding of the material as you can.
  3. “So can we e-mail you with questions, too?” Only if it is a simple procedural question. If it’s a substantive question, please find some time to ask me in person.

O.k., back to the assignment. At any time before or after you turn in your paper (e.g., as soon as you read this would be fine), and definitely by the end of Friday, March 4, send me an e-mail message letting me know of some times when you are available to meet during the week of March 7. (Don’t tell me your paper’s code! I will read and grade all the papers, maintaining their anonymity, by March 7.) At our agreed time, we will meet, and I will give you comments on your paper that you should take into account in revising it. To meet individually with each of you will be logistically challenging for me, so I am setting up the following rules to try to minimize unnecessary inefficiencies:

After we meet, you will have until Monday, March 14, to revise your paper, with a length limit of up to six pages. This version of your paper should be prepared in the same way as your March 4 version, except that the date should say 3/14/05. (Use the same answer code as on the 3/4/05 version.)

For general advice about writing a philosophy paper, see my “Guidelines for Writing a Philosophy Paper” ( which contains information about additional, more extensive, sources of advice.