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LAW 300
Fall 2015
This course provides an introduction to jurisprudence, legal and political theory, key
principles of the common law, and critical approaches to the law. It is designed to give upper
year students an overview of the structure of law, and a critical insight into the various ways
in which law and its role in society can be understood. The course also aims to encourage
students to see the relationships between different branches of law and legal doctrine, and to
examine the role of ideology in the creation and enforcement of law.
Mondays and Wednesdays 9:00 – 10:30 (Room 105). In the event that a class is cancelled,
where possible a make-up class will be scheduled and students will be notified of the new
time and venue by email.
The main text for this course is M.D.A. Freeman (2014) Lloyd’s Introduction to Jurisprudence (9th
Edition), and most of the required reading for the term is taken from this text. Students
should assume that all material contained in the required reading and related discussion in
lectures is examinable, and as such students are strongly encouraged to attend all classes and
take detailed notes. In addition to the required reading for each class, supplementary reading
is also listed. Although this material is not examinable, it is provided in case: (1) you feel you
need to read further on a subject in order to understand it; or (2) you have developed a
particular interest in a subject and want to learn more. The main supplemental text for this
course is Margaret Davies (2008) Asking the Law Question (3rd Edition). In addition, various
articles are also listed as supplementary reading, and are available online or through the UBC
Law Library website.
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(4) Assessment and Examination
Students will be given the option of choosing either: (1) a 3-hour 100% closed book
examination; or (2) a 2-hour 70% closed book examination plus a 30% take-home
assignment (of no more than 1500 words). Assignment topics will be made available in class
on 19 October 2015, and students wishing to submit an assignment must inform the
instructor of their decision by email no later than 4pm on 19 November 2015. Students who
do not inform the instructor of their choice by the 19 November deadline will be assumed to
be sitting the 3-hour closed book examination. All assignments must be submitted by 4pm
on 22 December 2015.
Although attendance lists will not be taken, students are expected to attend all lectures in this
course. Students should arrive on time for the scheduled lecture, and try to avoid disrupting
the class by leaving early. Lectures should not be recorded without prior permission. If you
do wish to record a particular lecture, please email your request to me at least 24 hours
before the scheduled lecture.
All UBC law students are subject to the University's rules on Academic Misconduct
(http://vpacademic.ubc.ca/integrity/ubc-regulation-on-plagiarism/), and are expected to act
with academic integrity at all times. Students should be especially aware of the University's
rules in relation to plagiarism. If you plagiarize, you may be subject to penalties set out in the
UBC calendar: (http://www.calendar.ubc.ca/vancouver/index.cfm?tree=3,54,111,959)
If you would like to learn more about academic misconduct, visit the UBC Library's website
on academic integrity (http://learningcommons.ubc.ca/guide-to-academic-integrity/).
Examples of academic misconduct can also be found in the UBC Annual Report on Student
Discipline (http://universitycounsel.ubc.ca/discipline/).
Office hours will be held from 11:00am – 12:30pm on Mondays in Room 455. If you have a
question about a specific reading or section of the course, please email it to me 48 hours
beforehand if possible, as this will give me more time to prepare a detailed response (and
locate additional materials that may be helpful).
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(8) Schedule of Classes
(1)
Sept. 9 Introduction Lloyd: 1-5
(2)
Sept. 14, 16 Jurisprudence and the Nature of Law Lloyd: 6-25, 26-44, 46-
48, 60-74
(3)
Sept. 21, 23 Natural Law Lloyd: 75-124, 142-164
(4)
Sept. 28, 30 Legal Positivism Lloyd: 195-217, 249-
269, 311-334
(5)
Oct. 5, 7 Legal Reasoning and Theories of Adjudication Lloyd: 1549-1594
(6)
Oct. 14 Mid-Term Review None
(7)
Oct. 19, 21 Legal Realism Lloyd: 823-867
(8)
Oct. 26, 28 Critical Legal Studies Lloyd: 1017-1066
(9)
Nov. 2, 4 Feminist Jurisprudence Lloyd: 1079-1179
(10)
Nov. 9, 16 Critical Race Theory Lloyd: 1257-1286
Burrows (syllabus)
(11)
Nov. 18 Ronald Dworkin and Interpretivism Lloyd: 593-648
(12)
Nov. 23, 25 The Philosophy of Human Rights Lloyd: 1287-1375
(13)
Nov. 30, Key Issues and Course Summary None
Dec. 2
3
Introduction
Week 1 – September 9
Lloyd: 1-5
None
4
Jurisprudence and the Nature of Law
Davies, Ch. 1
• Defining law
What makes a law valid? Where does legal legitimacy come from?
Does the authority of law derive from the threat of coercion, or does it have some
other source?
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Natural Law
Davies, Ch. 3
Greenawalt, K. (2000) “How Persuasive Is Natural Law Theory”, 75 Notre Dame Law
Review 1647-1680
http://scholarship.law.nd.edu/ndlr/vol75/iss5/4
Is it fair to say that modern natural law theory attempts to derive an ‘ought’ from an
‘is’?
Do you think that the ‘goods’ identified by John Finnis in his theory of natural law
are self-evident? Is his list exhaustive?
If an unjust law is not law, then what does this mean for our obligation to obey the
law? Are we obliged to follow an unjust law?
6
Legal Positivism
Hart, H. L. A. (1958) "Positivism and the Separation of Law and Morals", Harvard
Law Review 71(4): 593–629
http://www.jstor.org/stable/1338225
Fuller, Lon L. (1958) "Positivism and Fidelity to Law - A Reply to Professor Hart",
Harvard Law Review 71(4): 630–672
http://www.jstor.org/stable/1338226
What does Hart mean when he refers to a ‘minimum content of natural law’?
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Legal Reasoning and Theories of Adjudication
Week 5 – October 5, 7
Lloyd: 1549-1594
8
Mid-Term Review
Week 6 – October 14
The first of these classes will be divided into two parts. The first 60 minutes will consist of a
brief lecture summarising the work covered to date, with a particular emphasis on the
various policy issues raised throughout the year. During the last 15 minutes, we will go over
any questions from the class. The second class will be entirely devoted to student questions
and answering practice exam questions. There is no required reading for either of these
classes.
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Legal Realism
Lloyd: 823-867
Davies, Ch. 4
Duxbury, N. (1991) “Jerome Frank and the Legacy of Legal Realism”, Journal of Law
and Society 18(2): 175-205.
http://www.jstor.org/stable/1410136
Green, M.S. (2005) “Legal Realism as Theory of Law”, 46 William. & Mary Law
Review 1915-2000
http://scholarship.law.wm.edu/wmlr/vol46/iss6/2
Leiter, B. (2002) “American Legal Realism”, University of Texas Law Public Law Research
Paper No. 42
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=339562
• The “revolt against formalism” and the argument against legal rules
Do you agree with Holmes that law is simply “what the law will do in fact’?
10
Critical Legal Studies
Lloyd: 1017-1066
Davies, Ch. 5
Hunt, A. (1986) “The Theory of Critical Legal Studies” Oxford Journal of Legal Studies
6(1): 1-45
http://www.jstor.org/stable/764467
• Law as ideology
Why have critical legal scholars been so interested in judicial decision making?
Do you agree that law is inseparable from politics? If so, what does this mean for the
possibility of law reform?
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Legal Theory, Feminism, and Gender
Week 9 – November 2, 4
Lloyd: 1079-1179
Davies, Ch. 6
Fineman, M.A. (2005), "Feminist Legal Theory", Journal of Gender, Social Policy and the
Law, 13(1): 13-23
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1282&context
=jgspl
• The relationship between legal values and the exercise of legal power
Do you agree with Davies that feminist theory and practice cannot be usefully
separated?
Why is the distinction between sex and gender a key question for feminist legal
scholars? Do you think the law should divide people according to sex?
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Critical Race Theory
Week 10 – November 4, 6
Lloyd: 1257-1286
Davies, Ch. 7
What does it mean to say that a ‘Eurocentric’ model of the person underpins the
law? To what extent is this reinforced by a positivist commitment to the separation
of law and morality?
What was the significance of the doctrine of terra nullius to the propagation of British
law?
13
Ronald Dworkin and Interpretivism
Lloyd: 593-648
Lloyd: 648-700
• Rights as “trumps”
• Law as integrity
What does it mean to say that there is “one right answer” to a given legal problem?
Is belief in a shared set of moral values essential to the legitimacy of law? Does law
need such a belief to have authority?
14
The Philosophy of Human Rights
Lloyd: 1287-1375
How are human rights different from other types of legal rights?
In what sense do human rights provide people with reasons for action?
Does it make sense to talk about balancing human rights? How is balancing in this
context different from ideas of proportional infringement?
What is the key difference between will and interest theories of rights? How does
each theory approach the question of who can be a rights-holder?
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Key Issues and Course Summary
The first of these classes will be divided into two parts. The first 60 minutes will consist of a
brief lecture summarising the work covered to date, with a particular emphasis on the
various policy issues raised throughout the year. During the last 15 minutes, we will go over
any questions from the class. The second class will be entirely devoted to student questions
and answering practice exam questions. There is no required reading for either of these
classes.
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