1. Phl 347: Philosophy of Law Prof. Robert Koons Fall 2004

2. Instructors Prof. Rob Koons Prof. Rob Koons Wed. 3-4; Thurs. 11am-noon. Wed. 3-4; Thurs. 11am-noon. WAG 405; 471-5530 WAG 405; 471-5530 koons@mail.utexas.edu koons@mail.utexas.edu TA: Blinn Combs TA: Blinn Combs combsb@mail.utexas.edu combsb@mail.utexas.edu

3. Texts: Frederick Schauer and Walter Sinnott- Armstrong, ed., The Philosophy of Law (Harcourt Brace, 1997) Frederick Schauer and Walter Sinnott- Armstrong, ed., The Philosophy of Law (Harcourt Brace, 1997) Selection from: Andrew Altman, Arguing about Law: An Introduction to Legal Philosophy (Wadsworth, 1996). Available at Paradigm Lecture Notes. Selection from: Andrew Altman, Arguing about Law: An Introduction to Legal Philosophy (Wadsworth, 1996). Available at Paradigm Lecture Notes.

4. Evaluation: Two midterm exams: 25% each. Two midterm exams: 25% each. Final exam: 25% (may count 50%, dropping lower midterm grade) Final exam: 25% (may count 50%, dropping lower midterm grade) Weekly short papers on discussion questions: 10% Weekly short papers on discussion questions: 10% Class attendance and participation (including participation in section and via listserv and web site): 15% Class attendance and participation (including participation in section and via listserv and web site): 15%

5. Examinations (75%) Examinations will be in the form of a small number of short-essay questions. Examinations will be in the form of a small number of short-essay questions. At the end of the semester, you will have the option of selecting either a comprehensive or non-comprehensive final exam. At the end of the semester, you will have the option of selecting either a comprehensive or non-comprehensive final exam.

6. If you choose the non-comprehensive final, then your final exam grade will constitute 25% of your course grade. If you choose the non-comprehensive final, then your final exam grade will constitute 25% of your course grade. If you take the comprehensive exam, then you will be given a two-part exam: the first can be used to replace your lowest midterm grade, and the second part will count for the final 25% of your course grade. If you take the comprehensive exam, then you will be given a two-part exam: the first can be used to replace your lowest midterm grade, and the second part will count for the final 25% of your course grade.

7. Participation (15%) Class participation will be made up of three equal components: class attendance, section attendance, and activity in discussion. Class participation will be made up of three equal components: class attendance, section attendance, and activity in discussion. We will take roll both in class and in section. If you have an excused absence, please bring the relevant documentation to me or to Mr. Combs. We will take roll both in class and in section. If you have an excused absence, please bring the relevant documentation to me or to Mr. Combs.

8. Active, concise and relevant contributions (both in the form of questions and responses) are expected of each student. Contributions that are especially meritorious may earn extra credit. Active, concise and relevant contributions (both in the form of questions and responses) are expected of each student. Contributions that are especially meritorious may earn extra credit.

9. You may participate in discussion in any of four ways: contributing to discussion in class contributing to discussion in class contributing in discussion sections contributing in discussion sections contributing through messages posted to the Phl 347 Blackboard discussion forum. contributing through messages posted to the Phl 347 Blackboard discussion forum. contributing short (1000-1500 word) research paper on topic related to the course. contributing short (1000-1500 word) research paper on topic related to the course.

10. Weekly Discussion Papers (10%) You are responsible for submitting a total of ten one-to-two page papers (250-500 words) in the course of the semester. You are responsible for submitting a total of ten one-to-two page papers (250-500 words) in the course of the semester. Each paper must be submitted on a Tuesday at the beginning of the class period. Each paper must be submitted on a Tuesday at the beginning of the class period.

11. Each paper must contain written answers to two discussion questions pertaining to the forthcoming week's reading. Each paper must contain written answers to two discussion questions pertaining to the forthcoming week's reading. One of the questions should concern a court case, and the other should concern an essay from the readings. One of the questions should concern a court case, and the other should concern an essay from the readings. I will supply you with a list of discussion questions to choose from in advance. I will supply you with a list of discussion questions to choose from in advance.

12. Midterm Exams Sept. 30 Sept. 30 Oct. 21 Oct. 21

13. Next Week: Aug. 31-Sept. 2 Mens Rea and Strict Liability Mens Rea and Strict Liability Case study: Rape Case study: Rape S & S: pp. 784-788, 846-887 S & S: pp. 784-788, 846-887

14. Questions for Short Papers Wasserstrom, S & S, p. 866, question 2 or 3 Wasserstrom, S & S, p. 866, question 2 or 3 Tison v. Arizona, S & S, p. 872, question 1 or 2 Tison v. Arizona, S & S, p. 872, question 1 or 2 Lords' Decision, p. 874, question 2 Lords' Decision, p. 874, question 2 Estrich, p. 882, question 1 or 2 Estrich, p. 882, question 1 or 2 Commonwealth v. Sherry, pp. 885-6, question 1, 2 or 6 Commonwealth v. Sherry, pp. 885-6, question 1, 2 or 6

15. What is Philosophy? Three Answers: Reflecting on common sense knowledge, seeking a deeper understanding of what we already know Reflecting on common sense knowledge, seeking a deeper understanding of what we already know Linguistic or conceptual analysis Linguistic or conceptual analysis That branch of science that is concerned with those features of reality that are of the greatest possible generality or universality That branch of science that is concerned with those features of reality that are of the greatest possible generality or universality

16. Philosophy as the General Science of Being Philosophers seek theories that provide an overarching framework within which the contents of the other branches of knowledge (science, scholarship, law) can be placed. Philosophers seek theories that provide an overarching framework within which the contents of the other branches of knowledge (science, scholarship, law) can be placed. Philosophers seek consistent descriptions of those common features of reality (cause, purpose, value) that show up in every kind of inquiry. Philosophers seek consistent descriptions of those common features of reality (cause, purpose, value) that show up in every kind of inquiry.

17. These Three Answers are not Mutually Exclusive Some philosophers tend to follow one model to the exclusion of others: commonsense philosophers, ordinary- language philosophers, Rationalists. Some philosophers tend to follow one model to the exclusion of others: commonsense philosophers, ordinary- language philosophers, Rationalists. Many philosophers combine two or three of these approaches. For example, many accept common sense or linguistic analysis as starting-points. Many philosophers combine two or three of these approaches. For example, many accept common sense or linguistic analysis as starting-points.

18. Applying these Models to the Philosophy of Law We can reflect on our common understanding of law, legal obligations, legal rights, due process, justice. We can reflect on our common understanding of law, legal obligations, legal rights, due process, justice. We can analyze the meanings of key terms in the law: “rights”, “obligations”, “punishment”, etc. We can analyze the meanings of key terms in the law: “rights”, “obligations”, “punishment”, etc. We can seek the essence of law, legal institutions. We can seek the essence of law, legal institutions.

19. Seeking the Essence of Law What makes something a law (as opposed to a custom, habit, religious rite, moral duty)? What makes something a law (as opposed to a custom, habit, religious rite, moral duty)? Are there any necessary connections between law and morality? law and politics? biology? theology or cosmology? Are there any necessary connections between law and morality? law and politics? biology? theology or cosmology?

20. Philosophies come in Many Varieties Platonism: Universals, like truth, justice, goodness, humanity, beauty, really exist, independently of our language or structure of thought. Platonism: Universals, like truth, justice, goodness, humanity, beauty, really exist, independently of our language or structure of thought. Nominalism: Universals don’t really exist. All that exists are concepts and terms of language that refer in a general way to many things. Nominalism: Universals don’t really exist. All that exists are concepts and terms of language that refer in a general way to many things.

21. General Tendencies of Platonists and Nominalists Platonists tend to be more rationalistic, open to metaphysical theories, including the irreducibility of human being to physical processes. Platonists tend to be more rationalistic, open to metaphysical theories, including the irreducibility of human being to physical processes. Nominalists tend to be more empirical and skeptical. In addition, they tend toward more materialistic and reductionistic accounts of human being. Nominalists tend to be more empirical and skeptical. In addition, they tend toward more materialistic and reductionistic accounts of human being.

22. Varieties of Philosophers of Law Legal Realists and Critical Legal Studies Legal Realists and Critical Legal Studies Legal Positivists: Austin, Hare Legal Positivists: Austin, Hare Interpretivists: Dworkin Interpretivists: Dworkin Natural Lawyers: Aquinas, Fuller, Finnis Natural Lawyers: Aquinas, Fuller, Finnis

23. The Normative/Descriptive Dichotomy Also known as: the fact/value distinction. Also known as: the fact/value distinction. Widely accepted by nominalists, including positivists. Widely accepted by nominalists, including positivists. Tends to be rejected by Platonists, natural lawyers. Tends to be rejected by Platonists, natural lawyers.

24. Natural Law Theory When we discover the essence of the law, we learn both what the law truly is, and what it ought to be. When we discover the essence of the law, we learn both what the law truly is, and what it ought to be.

25. Legal Positivism Discovering what the law is tells us very little about what it ought to be. Discovering what the law is tells us very little about what it ought to be. We may discover certain minimal requirements that every legal system must satisfy. We may discover certain minimal requirements that every legal system must satisfy.

26. Direction of the Course We will proceed from the concrete to the abstract. We will proceed from the concrete to the abstract. We will begin with certain philosophical issues about criminal responsibility, fairness and liberty. We will begin with certain philosophical issues about criminal responsibility, fairness and liberty. As we proceed, we will gradually see the need to dig deeper. As we proceed, we will gradually see the need to dig deeper.

27. We will then be in a position to grapple with questions about the problem of interpreting the law and the constitution. We will then be in a position to grapple with questions about the problem of interpreting the law and the constitution. Finally, we will turn to the question about the nature of law itself, and the debate between positivism and natural law. Finally, we will turn to the question about the nature of law itself, and the debate between positivism and natural law.