philosophy 168: philosophy of law

winter 2009

Instructor: Michael Tiboris TA: Erick Ramirez

Office: 8037 HSS Office: 8089 HSS
Office Hours: M 1-3 or by appt. Office Hours: W 1-3
E-mail: mtiboris@ucsd.edu E-mail: ejramire@ucsd.edu

course website: http://sdcc3.ucsd.edu/~mtiboris/courses/168.htm

Course Description. This course offers a study of issues in jurisprudence, that is, philosophical issues in
the concept and administration of law. The theme of the course this quarter is the relationship between
morality and law. It will cover the nature of law and issues in normative jurisprudence such as the
justification of punishment, criminal responsibility, and diminished responsibility excuses. Prerequisite:
upper-division philosophy standing or consent of instructor.

What You Will Learn. By the end of the course I expect that you’ll know about the major views on the
nature of law: legal naturalism, legal positivism, legal realism, law as interpretation, and critical legal
studies. You’ll have done well if you can have a discussion about them in some depth and understand
the ways that they have influenced our views on the law, legal authority, and the relationship between
law and morality. We will ask questions like “What is the difference between a legal obligation and a
moral obligation?; “Are we somehow obliged to obey the law?”; “Is punishment essential to the concept
of legal obligation?”; “When, if ever, is punishment appropriate?”; “what is ‘criminal responsibility’ and
is it different than ‘moral responsibility’?”; and “how should the law justly handle difficult cases like the
insane or the immature?” By the end of the course you should have lots to say in response to these
questions.
I have two overarching pedagogical objectives in this course: to educate you about the major
philosophical theories of law, and also improve your ability to analyze philosophical issues within the
law. The latter will be the focus in your papers, exams, and discussions during class. You’ll have done
well on this part if you are prepared to take your experience with the course and apply it to new issues
you encounter in other courses, in the news, or in your profession.

Course Texts.
Books
(1) Dworkin, Ronald. Law’s Empire
(2) Hart, H.L.A. The Concept of Law

Electronic Reserves
(3) There will be articles available for download off the library’s electronic reserves website. You will be
responsible for printing them out if you wish to do so.
(4) I’ll put links to short selections from cases referred to in class or in the syllabus on the course website
which is listed at the top of this page.

Hard Reserves
I’ve put copies of both the books on reserve at the library.
Requirements.
1. Very Short Paper (1p.) 5%
1. Short Paper (800-900 words: about 3pp.) 20%
2. In-Class Exam 30%
3. Final Paper (1,700-2,000 words: about 6pp. Due:3/18/2009) 40%
4. Participation 5%

Description of Your Assignments.

Very Short Paper. This paper will be no more than a page and will be an opportunity to reflect on the
readings early in the course.

Short Paper. This 3ish page paper will be on the major theories about the nature of law. You will be
asked to present and analyze their contrasting visions of the law. I’ll give you a couple of prompts to
choose from. The purpose is for you to demonstrate your command of the main ideas of these theories
and explain how proponents of them may criticize other views while supporting their own.

In-Class Exam. The midterm will be a more standard type exam held during class time. It will ask you to
identify and explain key concepts and arguments. It will also ask you to analyze problems raised by our
reading. The purpose of this exam is to show me that you’ve thought carefully about the readings and
can apply the concepts you’ve learned in novel contexts.

Final Paper. This 6ish page paper will be a more detailed analysis of a specific problem in normative
jurisprudence. Ideally you will mix course materials with a current issue or topic, presenting a problem
and posing solutions. Again, I will give you some options, but will also be open to topics that you
suggest if something sparks your interest. The purpose of this assignment is for you to show your ability
at composing an argumentative philosophical essay on the topics of the course applied to a specific
normative problem in the law. Though the paper is short, the standards are high, so I expect that you’ll
really take the time to craft this paper well.

Participation. Asking questions and contributing to class discussion is a good idea. It will help you gain a
better understanding of the material and it lets me know whether I need to re-explain something or
whether I’m moving too slow. Also, it helps me get to know you. I know that some people have an
easier time participating in a public setting than others, so I want to offer other options for participation.
These include coming to office hours with good questions about the course material, and responding to
reading questions.

Expectations and Evaluation. This is an upper-level course in philosophy, so I expect that you are all
prepared to work through difficult readings and philosophical problems. Some previous experience in
philosophy is assumed. I expect that you’ll do the reading before you come to class, have (at least)
thought about any reflection questions I give you, and come prepared to discuss the material. I expect
you to turn assignments in on time (see my policy about late assignments below). And I expect that you
will do all of the work yourself, with seriousness and commitment to learning.

During class, I expect that you will respect the other students and allow them to express themselves.
Additionally, I expect you to engage them as well as me during discussion periods. Please don’t do
things that are distracting to others like chatting during lecture or surfing the web. If you want to IM or
sleep, sit in the back, or better yet, don’t come to class. Take notes if it helps you remember things, but
if it doesn’t just sit and listen carefully. The goal should be a command of the material that rises above
the level of memorization and regurgitation.

Here is how I will evaluate your performance. Each of the assignments will be worth a set number of
points. On written assignments, the TA and I will read your work carefully looking for clear thought and
writing. At the end of the course, your grade will be determined by the number of points you get out of
the total possible. I won’t be curving the class because I don’t believe that you are competing for a
limited amount of resources here. If everyone does A work, then everyone will get As. But this is
unlikely. A strong trend of improvement will help boost your participation grade.

Attendance. I’m not going to take attendance. But obviously, I want you to be here. We’re not just
learning the material in this course, we’re also learning how to think through jurisprudential issues. This
is best done in a group of peers. Plus, you will be accountable for some things that come up in lecture
and nowhere else. Please be here on time, and please don’t leave early or start to pack up before class
ends; it’s rude. Also, when you come in, please sit toward the front of the classroom reserving the back
rows for those who must come in late or leave early.

Late Assignments. Catastrophes aside, I won’t accept them at all (they’ll receive an ‘F’) unless you’ve
given me at least 48 hours notice and a good reason. And then, even if you’ve given me notice, I take
1/3 of a grade off for each day the assignment is late. So a B paper becomes a B- at one day late and a
C+ at two, etc. The reason for all this is that it’s not fair to the other students who completed their work
on time (sometimes in the face of great adversity/hangovers—I know I was an undergraduate once). So,
do try to get assignments in on time and in return we will grade them and turn them back as quickly as
possible.

“Academic Dishonesty” i.e. Cheating. Obviously not tolerated and mercilessly prosecuted. (Here’s a
link to the University’s policies about it http://www-senate.ucsd.edu/manual/appendices/app2.htm). I
intend to enforce this fully if it happens. You’ve been warned. But more importantly, don’t cheat
because it defeats the purpose of taking the course and wastes everybody’s time.

That said, I think it can be very helpful to work together outside of class in preparation for the exams
and even the papers. Discussing your answers to the prompts will help you to better understand the
material. Just make sure to write your papers and exams separately. If you have any questions about
my policy here, please don’t be afraid to ask.

Getting Extra Help. I intend to be supremely available to you. I answer my email daily and have regular
office hours. If you cannot make my office hours, extra appointments are easily arranged over email. I
don’t intend to hold study sessions before exams and papers because I think you’d benefit more from
organizing them among yourselves. Your TA is also an excellent resource, he will hold regular office
hours and be available by email. If you’re stressed about writing papers, make an appointment at the
undergraduate writing center associated with your college, or come talk to one of us about it.

Special Accommodations. If accommodations are needed for a disability or for religious reasons, please
discuss the matter with me as soon as possible so I’m not scrambling about it later.
Syllabus. This is the tentative schedule—it is subject to revision depending on our progress. Sources
available on the library’s electronic course reserves website (reserves.ucsd.edu) are noted with “*ER+”
Readings are to be completed before class.

M 1/5 Introduction: Law and Morality

W 1/7 Harms and Crimes
(1) Read Syllabus
(2) Feinberg, J. “A Ride on the Bus” from Offense to Others [ER]
(3) Mill, J.S. On Liberty, Ch. 1 “Introductory” [ER]

Part I. The Nature of Law

F 1/9 Classical Natural Law Theory
(1) St. Thomas Aquinas “Selections from On Law, Morality, and Politics” *ER]

M 1/12 Classical Legal Positivism

(1) Austin, J. The Province of Jurisprudence Determined, selections from Lectures I and VI: pp. 5-
25, pp. 170-176 [ER]
(2) Hart, H.L.A. The Concept of Law Ch. 2
[Ch. 1 of Hart’s book is a helpful introduction; read it if you have time]

W 1/14 Legal Positivism: Law as the Sovereign’s Command

(1) Hart, H.L.A. The Concept of Law, Ch. 3
Very Short Paper Prompt Handed Out

F 1/16 H.L.A. Hart: Law as a System of Rules

(1) Hart, H.L.A. The Concept of Law, start Chs. 4&5
Very Short Paper Due

M 1/19 MLK Day, no class

W 1/21 H.L.A. Hart: Law as a System of Rules

(1) Hart, H.L.A. The Concept of Law, finish chs. 4&5

F 1/23 Return of Natural Law Theory: Modern Views

(1) Hart, H.L.A. The Concept of Law, Ch. 9
(2) Fuller, L. The Morality of Law “Eight Ways to Fail to Make Law” [ER]

M 1/26 Dworkin and Judicial Interpretation

(1) Summary of Riggs v. Palmer (1889) “Elmer’s Case” from Dworkin pp. 15-20.
(2) Summary of McLoughlin v. Obrian (1983) “McLoughlin” from Dworkin pp. 23-29.
(3) Dworkin, R. Law’s Empire, Ch. 2

W 1/28 Dworkin: The Return of Natural Law

(1) Dworkin, R. Law’s Empire, Ch. 3

F 1/30 Dworkin: Law as Integrity

(1) Dworkin, R. Law’s Empire, Ch. 7
Short Paper Prompt Handed Out
M 2/2 Critical Voices: Legal Realism
(1) Holmes, O.W., “The Path of Law” [ER]

Critical Legal Studies

W 2/4 (1) MacKinnon, C., “Feminism, Marxism, Method, and the State: Toward a Feminist
Jurisprudence[ER]

Part II. Moral Obligation and the Law

F 2/6 An Obligation to Obey the Law?
Short Paper Due
(1) Plato, Crito [ER]
(2) Martin Luther King Jr., “Letter from the Birmingham Jail” *ER+

M 2/9 Consent and Political Obligation

(1) Nozick, R. Anarchy, State, and Utopia, Ch. 3 “Moral Constraints and the State” *ER+

W 2/11 Fairness and Political Obligation

(1) Rawls, J. A Theory of Justice, Ch. 6 “Duty and Obligation” [ER]
(for optional background reading see Theory, §3 & §18 [ER])

Part III. Punishment

F 2/13 Proportional Punishment
(1) Nozick, R., Philosophical Explanations, Ch. 3 “Retributive Punishment” (pp. 363-383)[ER]
(2) Dressler Understanding Criminal Law (Esp. §6.01-6.04) [ER]

M 2/16 Presidents’ Day, no class

W 2/18 Punishment: Rehabilitation and Social Control

(1) Moore, “Closet Retributivism”[ER]

F 2/20 Punishment: Retributivism

(1) Moore, “Closet Retributivism” review [ER]

M 2/23 Punishment and Chance

(1) Lewis, D. “The Punishment that Leaves Something to Chance” [ER]

W 2/25 In-Class Exam

F 2/27 TBA
Paper 2 Prompt Handout
Part IV. Moral Responsibility and the Law
M 3/2 Moral Responsibility and Excuse
(1) Watson, G. “Responsibility and the Limits of Evil” *ER+

W 3/4 Criminal Responsibility and Excuse

(1) Hart, H.L.A., Punishment and Responsibility “Legal Responsibility and Excuses” [ER]

F 3/6 Responsibility and Insanity

(1) Moore, Law and Psychology “The Legal Concept of Insanity” *ER+
(2) The M’Naghten case (1843) [website]
(3)Blake v. United States (1969) [website]
(4) State v. Crenshaw (1983) [website]
(5) State v. Guido (1963) [website]

M 3/9 Responsibility and Drug Addiction

(Group 1) Husak, D., “Addiction and Criminal Liability” [ER]
(Group 2) Morse, S., “Hooked on Hype” *ER+
(Group 3) Wallace, Jay “Addiction as a Defect of the Will” *ER+
(Group 4) Watson, G. “Excusing Addiction” *ER+

W 3/11 Responsibility and Immaturity

(1) Zimring, F. “Penal Proportionality for the Young Offender: Notes on Immaturity, Capacity,
and Diminished Responsibility” in Youth on Trial [ER]

F 3/13 Conclusion: Morality and the Law

Final Paper Due: Wednesday 3/18/2009 IN PERSON at HSS 8037 between 8 and 11 AM