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PHILOSOPHY OF LAW

LAW016M (G04)
Professor Jinkee De Ocampo Bantug
1st Term SY 2015-2016
Saturdays, 0900-1100 (A1406)
j-bantug@onu.edu

This is only a working syllabus. Since this is my first time teaching this course, I admit that I
still have to a lot of readings and re-readings to do to come up with a really solid course
syllabus that would serve the objectives of the course.

Law is a set of conventional rules that regulate the conduct of every member of society.
Every day we live our lives observing them without really questioning them or assailing them
except when they inconvenience us or harm us in any way. As future lawyers, it is not
enough that we know the positive aspect of law (e.g., what the law is) but also the normative
aspect of it (e.g., what the law ought to be). When we speak of normative, we depart from
being merely investigative where we explain the content of a particular legal system to being
evaluative with the objective of taking a stand on what is the better rule or set of rules in a
particular legal context. This would enable us to not just merely apply or observe the law in a
parochial way but observe and critique it and arrive at a reasoned judgment.

Course Objectives:

1) Know and understand the different theories or school of thought about the nature of
law;
2) Understand the different practical problems (within the legal context) involved in
responding to law;
3) Construct and defend arguments in support of or in opposition to particular
propositions in the Philosophy of Law.

There is no required textbook but the links in the assigned readings are found here and can be
found in internet-accessible sites. I would assign additional readings throughout the course.

Schedule of Readings:

Every class takes its own pace, so it is difficult to tell in advance how many sessions we will
spend on each topic. But I have structured below a working schedule to guide us on the topics
we would be taking for each session but of course, this would have to be modified as we go
along.

1
The Nature of Jurisprudence and Conceptual Analysis
Brian Bix, Joseph Raz and Conceptual Analysis, American
Philosophical Association Newsletter on Philosophy and Law,
vol. 06(2), pp. 1-7 (2007 reprinted at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948766.

Natural Law Theory (Aquinas)


Aquinas on Law (Summa Theologica, I-II, Questions 90-97)
http://www.fordham.edu/halsall/source/aquinas2.html

Natural Law Theory, cont. (John Finnis)


John Finnis, Natural Law Theories, The Stanford
Encyclopedia of Philosophy
http://plato.stanford.edu/entries/natural-law-theories/

Lon Fuller
Lon L. Fuller, Positivism and Fidelity to Law -- A Reply to Professor
Hart, 71 Harvard Law Review 630 (1958)
http://people.brandeis.edu/~teuber/Positivism%20and%20Fidelity%20to%20Law%20-
%20A%20Reply%20to%20Professor%20Hart.pdf.

The Obligation to Obey the Law


M.B.E. Smith, Is There a Prima Facie Obligation to Obey the Law?
82 Yale Law Journal 950 (1973)
A copy has been emailed to you

Legal Positivism (Austin)


Brian Bix, John Austin, The Stanford Encyclopedia of
Philosophy, http://plato.stanford.edu/entries/austin-john/.

Legal Positivism, cont. (Hart)


H. L. A. Hart, Positivism and the Separation of Law and Morals, 71
Harvard Law Review 593 (1958)
http://www.umiacs.umd.edu/~horty/courses/readings/hart-1958-positivism-separation.pdf.

Legal Positivism, cont. (developments after Hart)


Leslie Green, Legal Positivism, for The Stanford Encyclopedia of
Philosophy, http://plato.stanford.edu/entries/legal-positivism/.

Hans Kelsens Pure Theory of Law


Hans Kelsen, What is the Pure Theory of Law?
34 Tulane Law Review 269 (1960)

Hans Kelsen, The Pure Theory of Law and Analytical Jurisprudence,


55 Harvard Law Review 44 (1941)
*I am still searching for links on free internet sites for these topics. I will announce shortly
the sites.
http://plato.stanford.edu/entries/lawphil-theory/.

2
Ronald Dworkin
Ronald M. Dworkin, The Model of Rules, 35 University of Chicago
Law Review 14 (1967)
http://www.umiacs.umd.edu/~horty/courses/readings/dworkin-1967-model-of-rules.pdf.

Ronald Dworkin, cont.


Ronald M. Dworkin, Law as Interpretation, 60 Texas Law Review
527 (1982)
https://helda.helsinki.fi/bitstream/handle/10224/3739/dworkin.pdf?...1.

Precedent
Frederick Schauer, Precedent, 39 Stanford Law Review 571 (1987)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1836384.

Legal Rights

Kenneth Campbell, Legal Rights, The Stanford Encyclopedia of


Philosophy, http://plato.stanford.edu/entries/legal-rights/.

Leif Wenar, Rights, The Stanford Encyclopedia of Philosophy,


http://plato.stanford.edu/entries/rights/.

Legal Enforcement of Morality


Larry Alexander, The Legal Enforcement of Morality
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=265451.

Justice (Rawls)
John Rawls, Justice as Fairnesss: Political not Metaphysical, 14
Philosophy and Public Affairs 223 (1985),
http://philosophyfaculty.ucsd.edu/faculty/rarneson/Philosophy%20167/Rawlsjusticeasfairness
.pdf.

Justice (feminist critique, other critiques)


Susan Moller Okin, Justice and Gender: An Unfinished Debate,
72 Fordham Law Review 1537
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3963&context=flr.

Punishment
Antony Duff, Legal Punishment, The Stanford Encyclopedia of
Philosophy, http://plato.stanford.edu/entries/legal-punishment/.

Legal Realism
Oliver W. Holmes, Jr., The Path of the Law, 10 Harvard Law Review
457 (1897)
http://www.constitution.org/lrev/owh/path_law.htm.

Frederick Schauer, Legal Realism Untamed, 91 Tex. L. Rev. 749 2012-2013


http://www.law.virginia.edu/pdf/faculty/hein/schauer/schauer91texlrev749.pdf.

3
Legal Realism, cont.
Lon L. Fuller, American Legal Realism, 82 University of Pennsylvania
Law Review 429 (1934)
* I will provide the link on this article shortly

James Boyle, Legal Realism and the Social Contract: Fullers Public Jurisprudence of Form
Private Jurisprudence of Substance, 78 Cornell Law Review, 371 (1993)
scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2481&context=clr.

Historical Jurisprudence
Robert E. Rodes, Jr., On the Historical School of Jurisprudence,@
49 American Journal of Jurisprudence 165 (2004)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931650.

Harold Berman, The Historical Foundations of Law,@


54 Emory Law Journal 13 (2005)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=666123.

Economic Analysis of Law (Coase)


Ronald Coase, The Problem of Social Cost, 3 Journal of Law
and Economics 1 (1960)
http://www.econ.ucsb.edu/~tedb/Courses/UCSBpf/readings/coase.pdf.

Economic Analysis of Law, cont. (overview)


Lewis Kornhauser, Economic Analysis of Law, in Stanford
Encyclopedia of Philosophy,
http://plato.stanford.edu/entries/legal-econanalysis/ (2011)

Economic Analysis of Law, cont. (behavioral critique)


Cass R. Sunstein, Behavioral Analysis of Law, 64 University of
Chicago Law Review 1175 (1997)
http://www.law.uchicago.edu/files/files/46.CRS_.Behavioral.pdf.

Critical Legal Studies


Mark Tushnet, Defending the Indeterminacy Thesis,
16 QLR [Quinnipiac Law Review] 339 (1996)
http://www.quinnipiac.edu/prebuilt/pdf/SchoolLaw/LawReviewLibrary/24_16QLR339%281
996-1997%29.pdf.

John Finnis, On The Critical Legal Studies Movement, 30 American


Journal of Jurisprudence 21 (1985)
http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1854&context=law_faculty_schola
rship.

Feminist Theory
Christine A. Littleton, Reconstructing Sexual Inequality, 75 Cal., L. Rev., 1279 (1987)
http://politicalscience.tamu.edu/documents/faculty/Littleton-Reconstructing.pdf.

4
Martha L. A. Fineman, Feminist Theory and Law, 18 Harvard Journal
of Law & Public Policy 349 (1995)
http://www.ssc.wisc.edu/irpweb/initiatives/trainedu/igrfp/readings06/Fineman.HJLP.95.pdf.

Catharine A. MacKinnon, Reflections on Sex Equality Under Law,


100 Yale Law Journal 1281 (1991)
http://feminish.com/wp-content/uploads/2012/08/MacKinnon-Reflections-on-Sex-Equality-
under-Law.pdf.

Feminist Theory/Critical Race Theory


Angela P. Harris, Race and Essentialism in Feminist Legal Theory,
42 Stanford
http://www2.law.columbia.edu/faculty_franke/Certification%20Readings/Harris%20Race%2
0and%20Essentialism.pdf.

Derrick Bell, Racial Realism, 24 Connecticut Law Review 363 (1992)


http://liberalarts.iupui.edu/mpsg/Essays/Bell%20-%20Racial%20Realism.pdf.

Critical Race Theory II


Derrick A. Bell, Whos Afraid of Critical Race Theory?, 1995
University of Illinois Law Review 893 (1995)
http://sph.umd.edu/sites/default/files/files/Bell_Whos%20Afraid%20of%20CRT_1995UIllL
Rev893.pdf.

Girardeau A. Spann, Just Do It, 67 Law and Contemporary Problems 11


(Summer 2004)
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1228&context=facpub.

Course Requirements:

I. Papers:

1) Two Short Papers- no less than two but no more than three pages (typed, double-
spaced, 1 inch margins and 12 sized-font, Times New Roman) in length. You pick a
topic from among the topics covered in the syllabus. Your task is to make an original
critical evaluation of the argument/theories/principles from one or more of the
readings we have covered in class. I will announce the dates of submission for these
papers.

2) Term Paper should be between 12-15 pages (typed, double-spaced, 1 inch margins
and 12 sized-font, Times New Roman) in length. You are free to pick any topic on
Philosophy of Law (even beyond the scope of this syllabus in which case you should
consult with me first). Pick an issue or controversy regarding this topic and your task
is to defend a claim or proposition. This paper is due two weeks before the final exam
date for the course.

3) Peer Review - On November ____ (I will announce the exact date shortly), turn in a
completed draft of your term paper. This draft will be given to another student in class

5
and you in turn will receive a paper from one of your fellow students. Your task is to
write a 2-page peer evaluation of the draft term paper of your fellow student.

II. Oral Report- pick a topic that is scheduled to be discussed on a certain date and
present the topic to the class (theory, proponents, debate involved, etc.) This is more
of an expository rather than an argumentative presentation. There is no written report
required for this. The report will be minimum of 15 minutes and maximum of 20
minutes.

III. Class Participation


IV. Unannounced quizzes

Grading:
Term Paper: 40%
Oral Report: 20%
Short Paper I (pre-midterm) 10%
Short Paper II (post-midterm) 10%
Quizzes 10%
Participation 10%
====================================
Total 100%