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).
- 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.
- 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.
- 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.
- 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):
- Use one side each of up to three sheets of business-sized (8.5” x 11”) paper.
- Use margins of at least one inch on all four sides.
- Use the font Times New Roman, or (if not available) the nearest available
- 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.)
- Use the same font and type size throughout your whole document.
- Double-space all the lines.
- Make the lines flush-left—that is, don’t right-justify them.
- Number each page at the bottom, in the center. (This can be in the
bottom margin, rather than above it.)
- On the first line of the first page (not every page), list the following items, separated by commas:
- Philosophy of Law
- paper 1
- topic X (where Y is the number of the
topic, from above, being answered)
- answer Y (where Y is the three-digit code that will be used for this sheet
and no other)
- 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.
- If you are absent on Wednesday, then by 12 noon on that day you must e-mail me
a copy of your paper (as an attachment, in Word format, not in the text of
your e-mail message). After I grade the hard copy you turn in on
Friday, I will download and print the attachment and 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
- If you are absent on Friday, then by 12 noon on that day you must e-mail me
a copy of your paper (as an attachment, in Word format, not in the text of
your e-mail message). I will print and grade electronically submitted papers,
but only with a 5-point penalty. (Note that this is still less than my
lateness penalty of 10 points per day.)
Before going on, let me answer a few frequently asked questions.
- “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.
- “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.
- “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:
- When you suggest some times, keep them open for at least a few hours, so
that if I can pick one and let you know quickly (as I hope to do), then we’ll
be all set.
- Be on time to our scheduled meeting.
- Bring any relevant texts (e.g., Hart and/or Dworkin), a copy of the paper
assignment, an exact physical duplicate of the paper you turned in to me in
class, and something to write with.
- Know the answer code you used, so that I can find your paper when we meet.
(Not until then will I know which paper is yours.) This answer code should, of
course, be on the copy of the paper you bring with you to our meeting, since
that should be an exact physical duplicate of what you turned in.
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” (http://www.ku.edu/~utile/courses/paper_guidelines_2.html) which contains information about additional, more
extensive, sources of advice.