It might not seem difficult, at first, to explain the nature of law. After all, unlike more abstract ideas like "beauty" or "justice," the law has an easily identifiable institutional identity. In a crude sense the "law" in the U.S. might be identified with the total institutional matrix of courts, legislatures, and all of the people, professions, and activities which constitute the justice system. The difficulties begin to arise when we realize that this common sense understanding of the law doesn't help us understanding the relationship between the practice of law (in institutional life) and abstract ideals which we hope the law will embody, like justice, fairness, and the promotion of at least some aspects of a good life, like security. The goal of Unit I of the course is to understand this relationship.
In addition to this fundamental question, "What makes law law?," we have to question our common sense understanding that law only "happens" within the context of legal institutions. The vast majority of legal disputes never get solved in the courthouse. Even when courts are involved, most "cases" never proceed to trial. So we have to inquiry about the informal means by which lawyers, professional mediators, and others help pwople settle disputes. Unit II considers a range of literature on informal justice.
Within the institutional practice of the law, one finds still more philosophical problems. What does it mean to "find" or "create" law on the basis of a reading of a primary document like the U.S. Constitution? What approach to interpretation should judges use? Is there such a thing as a method of "constitutional interpretation"? Using the issues of privacy, sex, and gender equality as examples, we'll try to answer these questions in Unit III.
Units IV and V of the course deal with philosophical questions which arise within specific areas of the law. What constitutes criminal conduct? Does criminal responsibility apply only to crimes which a person specifically intends or brings about through reckless behavior? In the area of tort law, what view of causality is implicit in our understanding of liability? Should a person be liable for some harm even if they were not the principal (or proximate) cause of the harm?
As you can see, this course samples philosophical issues which arise both inside and outside the legal system. Within the law, we look at problems that arise out of the need for law to be interpreted and the need to distinguish between criminal and civil wrongs.
During the next two weeks, watch one of the following movies which depict some aspect of law in U.S. culture. For each movie, identify a major question regarding the law which the movie seems for present an answer to (e.g. What makes law legitimate? What kind of person do you have to be to be a lawyer? Is the law a refuge from oppression or a means of oppression? Is the legal system a place for finding resolutions or doing battle?)
Suggested titles:The Verdict, Prince of the City, High Noon, 12 Angry Men, The Paper Chase, or To Kill a Mockingbird.
What makes law law? Is it a relationship between the human practice of law and a "higher" or more fundamental "natural law"? Or does law result from the rule governed pronouncements of a person or persons with a particular kind of power? The historical example of the Nuremberg trials provides a good initial backdrop for this discussion, but ultimately the fundamental issues raised in this unit require a look at the theoretical debate over natural law and positivism, and some more contemporary theories such as realism and its recent descendants. (Unit dates: 1/13 - 2/8)
Charles E. Wyzanski, Nuremberg: A Fair Trial?, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 14-20.
H.L. A. Hart, Positivism and the Separation of Law and Morals, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 25-45.
Stanley Paulson, Classical Legal Positivism at Nurembery, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 45-58.
Martin Luther King, Letter from Birmingham Jail, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 58-62.
Lon Fuller, Positivism and Fidelity to Law, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 62-85.
Oliver Wendell Holmes, The Path of the Law, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 91-102.
Ronald A. Dworkin, "Natural" Law Revisited, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 102-18.
Andrew Altman, Legal Realism, Critical Legal Studies, and Dworkin, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 118-35.
Lon Fuller, The Problem of the Grudge Informer, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 141-45.
Reading Tip: Some of the readings you do in this course are purely informational, but most of them are argumentative. As you read for this course, remember to keep track of the core argument in each reading. By grasping the basic argument you will not only be better able to respond to issues in class, but you will also "compress" or condense a large amount of reading into a managageable form.
Each of the judicial philosophies in this unit is the subject of an extensive philosophical literature. In additional to further research on one or more of these approaches to the nature of law, you could look at the problem that civil disobedience poses for a philosophy of law. Behind the critical legal studies approach, there are theories of language and interpretation. You could learn more about these as a way of amplifying your understanding of CLS. If you are a polictical science major, you might compare accounts of jurisprudence from political science with the accounts you have read in this unit.
If law can be identified not only with the "rule of law" in society, but also with the personal practice of justice, then it is clear that we all practice law, and we've been doing so ever since we adjudicated our first playground dispute. Even when we engage professional legal services, we often do so with the goal of resolving a dispute or problem, whether that resolution involves the verdict of a judge or jury. We will sample some of the literature of the field of dispute resolution and think together about the usefullness of this broader understanding of the law and some of the ways that informal justice is being used in conjunction with or as an alternative to formal justice. (Unit dates: 2/10 - 3/1)
William L. F. Felstiner, Richard L. Abel, and Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, Before the Law, ed. John J. Bonsignore, 4 ed. (Boston: Houghton Mifflin Company, 1989) 468-70.
Sally Engle Merry, The Social Organization of Mediation in Nonindustrial Societies: Implications for Informal Community Justice in America, Before the Law, ed. John J. Bonsignore, 4 ed. (Boston: Houghton Mifflin Company, 1989) 490-98.
Linda R. Singer, "Chapter 6: Settling Disputes in Communities," Settling Disputes (Boulder, Colorado: Westview P, 1990) 111-30.
Doris Walker, People's Court in China: Trial of a Divorce Case, Before the Law, ed. John J. Bonsignore, 4 ed. (Boston: Houghton Mifflin Company, 1989) 446-50.
Robert H. Mnookin, and Lewis Kornhauser, "Bargaining in the Shadow of the Law: The Case of Divorce," Yale Law Journal 88 (1979): 950-97.
There is a substantial literature in the field of mediation theory from which to find additional research interests. I have a bibliographic on the subject for interested students to consult. In addition, much study has attended each of the specific alternatives dispute methods which have been tried in recent years.
Many recent disputes over "judicial activism" focus on cases like Justice Douglas' attempt to articulate a theory of "penumbral rights" in Griswold v. Connecticut and subsequent appeal to this doctrine in Roe v. Wade. We'll sample several views in this debate. Proponents of reform in social attitudes toward gender have also argued for a more "activist" approach to promoting gender equality. We'll read several cases which raise issues about sexism in the law and look at several theoretical discussions of this issue. The primary goal of this unit is not so much to learn about constituional theories of privacy and gender, as it is to think about the problems of interpretation which we face as contemporary readers of the Constitution. (Unit dates: 3/3 - 3/28)
Griswold V. Connecticut, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 160-65.
Robert Bork, The Right of Privacy, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 165-68.
Mark Tushnet, The Indeterminacy of Privacy, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 168-75.
Laurence Tribe, On Reading the Constitution, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 175-82.
Michael M. V. Superior Court of Sonoma County, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 367-72.
Nadine Taub, and Elizabeth Sneider, Perspectives on Women's Subordination and the Role of the Law, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 372-381 1992) 165-68.
John Hart Ely, Sexism and the Political Power of Women, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 381-84.
Richard Wasserstrom, The Assimilationist Ideal, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 384-99.
Personnel Administrator of Massachusetts V. Feeney, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 403-06.
Watkins V. U.S. Army, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 406-11.
There are many topics and theoretical concerns under this heading. You could chose an area of constitutional theory or controversy such as the separation of church and state or free speech and address the philosophical issues raised by that area. You could compare a legal system, such as ours, which emphasizes consitutional law with one that doesn't.
What distinguishes criminal behavior from other kinds of actionable violations of the law? The particular understanding of of men rea, or intent, has traditionally been part of the distinction, but recently some legal theorists have argued that we should broaden the theoretical basis for categorizing some acts as criminal. We'll think about the relationship between criminal behavior and causing suffering or harm, as well as the grounds for classifying some acts as criminal. (Unit dates: 3/30 - 4/12)
David Lewis, The Punishment That Leaves Something to Chance, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 429-36.
People V. Dlugash, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 436-41.
People V. Hickman, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 442-46.
George Fletcher, Reflections on Felony-Murder, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 446-51.
Mark Kelman, Strict Liability: An Unorthodox View, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 451-58.
Washington State recently passed a criminal sentencing law which makes manadatory a lifetime jail sentence for 3 time felons. Federal sentencing guidelines were stiffened in the 80s to fight the "war on drugs". Both of these measures have their advocates and critics and both raise interesting questions about the kind of justice involved in sentencing and the justice of mandatory sentencing.
In tort law, we try to determine the conditions under which it makes sense to hold someone legally liable for some harm which their conduct (or failure to act) has brought about to some injured party. As in criminal law, we are again thinking about a kind of culpablility, but whereas in the criminal law we regard the defendent as having harmed society, in tort law we want to know when a harm done to another person entitles that person to compensation. (Unit dates: 4/14 - 4/28)
David Adams, Chapter VI: Introduction to Tort Law, Philosophical Problems in the Law, David Adams (Belmont, CA: , 1992) 537-39.
Lynch V. Fisher, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 545-48.
Palsgraf V. Long Island Railroad, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 548-54.
W.Page Keeton, Causation, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 554-59.
H.L. A. Hart, and A.M. Honore, Tracing Consequences, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 559-68.
Judith Jarvis Thomson, The Decline of Cause, Philosophical Problems in the Law, ed. David M. Adams (Belmont, California: Wadsworth Publishing Co., 1992) 568-77.
Has there been a litigation explosion? If so, what should be done about it? You might investigate calls for "tort reform" both in terms of their justification and recommendations. This area of law also raises interesting historical and cultural questions about how we regard "accidents" and "mistakes." Compare, for example, U.S. negligence standards with those of other countries. What cultural differences are in our expectations for "responsible" conduct? What do such differences tell you about the relationship between law and social values?