1. UI 305: Judicial Reasoning Prof. H. Hamner Hill Spring 2010

2. 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

3. 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.

4. 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.

5. 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.

6. 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?

7. 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.

8. 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.

9. Varieties of Philosophers of Law Natural Lawyers: Aquinas, Fuller, Finnis Natural Lawyers: Aquinas, Fuller, Finnis Legal Positivists: Austin, Bentham, Hart Legal Positivists: Austin, Bentham, Hart Legal Realists and Critical Legal Studies: Holmes, Llewellyn, Frank Legal Realists and Critical Legal Studies: Holmes, Llewellyn, Frank Interpretivists: Dworkin, Ely Interpretivists: Dworkin, Ely Non-interpretivists: Bork, Berger, Scalia Non-interpretivists: Bork, Berger, Scalia

10. 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.

11. 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.

12. 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.