University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law
Ben Eggleston—eggleston@ku.edu

Study questions: chapter 2, “Law and Morality”

The following questions are intended to guide your reading of the assigned texts by calling attention to key concepts, distinctions, principles, and other parts of the texts. The questions are listed in the order in which their answers should become evident to a close reader.

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  1. pp. 40–49 (based on questions written by Paul Stucky)
    1. What sort of law were the defendants in the Nuremberg trial accused of violating? (This is not a question about the content of the laws in question, but rather a question about their “level” or scope or jurisdiction.) What did the defenders of the trial say was the basis for the law that the defendants were accused of violating? (That is, how was the content of the law to be ascertained?)
    2. On what grounds might it be said that the Nuremberg trial violated the rule of law?
  2. pp. 49–66 (based on questions written by Paul Stucky)
    1. What do all natural-law theories claim about positive law and morality?
    2. According to traditional natural-law theory (exemplified in the work of Aquinas), is it possible for some genuine laws of a political community (such as a state or a country) to be unjust?
    3. According to Fuller, is it possible for some genuine laws of a political community to be unjust?
    4. What are the principles of legality, or the principles of the inner morality of the law, in Fuller’s theory?
    5. According to Fuller, do the principles of legality create a prima facie moral obligation to obey the rules of any system of positive law?
    6. Dworkin is the theorist to whom we’ll devote the most time, of all the theorists whose work we’ll consider in this course. According to Dworkin, do the principles of legality create a prima facie moral obligation to obey the rules of any system of positive law?
    7. In Dworkin’s theory, the law of a political community includes more than rules such as laws passed by legislatures, judicial rulings, and so on. What, besides rules, does the law include?
    8. One criterion that determines what moral principles are part of a political community’s laws is the criterion of fit. What are the two aspects of fit?
    9. What is the other criterion that determine what moral principles are part of a political community’s laws? In what way does this mean that legal interpretation necessarily involves making moral judgments? (This is extremely important.)
    10. What are the three different moral principles pertaining to privacy that Altman mentions as principles that might be seen as underlying the Fourth Amendment?
    11. What is the challenge of external skepticism to Dworkin’s theory?
    12. What is the challenge of internal skepticism?
  3. pp. 66–76
    1. What is a law, according to Austin? (Hint: Your answer should include the word ‘sovereign’.)
    2. How does Austin identify the sovereign of a political community?
    3. What is Hart’s “gunman” objection to Austin’s theory?
    4. When, according to Hart, does a rule exist?
    5. What, according to Hart, enables a rule to impose an obligation?
    6. What is a secondary rule? What are the three kinds of secondary rule?