Philosophy of Law

Theme: Advanced Topics in General Jurisprudence

The Workshop will explore in more depth issues touched upon in the basic course on “general jurisprudence” at the Law School.  General jurisprudence is that part of philosophy of law concerned with the central questions about the nature of law, the relationship between law and morality, and the nature of legal reasoning.   Students who have taken Leiter’s “Jurisprudence I” course at the law school are welcome to enroll.  Students who have not taken Jurisprudence I must contact the Professor Leiter with information about their prior study of legal philosophy.   Detailed familiarity with Hart’s The Concept of Law and Dworkin’s criticisms of Hart is essential.   Scheduled speakers for the Workshop include Thomas Adams (Oxford), Mark Greenberg (UCLA), Giorgio Pino (Rome III), Louis Duarte D’Almeida (Lisbon), Daniel Wodak (Penn), and the Law & Philosophy Fellow Alma Diamond, among others.

This course will be on the part of the law known as private law — the part that adjudicates disputes between private citizens where one person is alleged to have suffered harm through the wrongdoing of another. Among the questions with which we will be concerned are the following: What constitutes a legal harm in such a context? What, in the eyes of the law, counts as one person being the cause of another person’s suffering? What sort of redress or compensation may one justifiably seek for such suffering? Who has a right to decide such questions? What justifies the use of sanction or force — and when is it justified — in the enforcement of such legal decisions? The first half of this course will present a selective historical genealogy of our contemporary understanding of how to go about answering such questions. The second half of the course will be on contemporary theories of private law. The historical portion of the course will begin by examining the origins of the modern distinction between private and public law in Aristotle’s ancient distinction between corrective and distributive justice. Next we will briefly consider what private legal adjudication looks like in the absence of the state, first by reading an Icelandic Saga and then by watching John Ford’s classic western The Man Who Shot Liberty Valence. (A)

This course will be an introduction to the philosophy of law. The first third will cover some historical classics: Plato's Crito, and selections from Aristotle's Nicomachean Ethics, Kant's Doctrine of Right, Hegel's Outline of the Philosophy of Right, and Austin's The Province of Jurisprudence Determined. The second third of the course will cover some classics of postwar Anglo-American jurisprudence, including selections from H.L.A. Hart, Ronald Dworkin, Richard Posner, and Ernest Weinrib. The final third of the course will explore in a little further detail philosophical problems that arise in the following areas: the philosophy of tort law, theories of constitutional interpretation, and feminist jurisprudence. (A)

Theme: Political Realism

The Workshop will introduce and asses "political realism," both its history (in figures like Thucydides and Machiavelli) and its contemporary manifestation (in writers like Bernard Williams and Raymond Geuss), often framed in reaction to the approach to political philosophy associated with John Rawls. Alison McQueen (who will be speaking at the Workshop) characterizes political realism in terms of four central ideas : (1) politics is a distinct realm, with its own norms; it is not simply applied moral philosophy; (2) "politics is agnostic or conflictual," a fact that arises from various possible causes: "human nature and the limits of rationality, competing identities and interests, and value pluralism"; (3) "the requirements of order and stability" take priority "over the demands of justice," precisely because the former cannot be taken for granted and are difficult to maintain; and (4) realists reject approaches to politics that "fail to take seriously the psychological, sociological, and institutional constraints on political action." Workshop sessions will explore and complicate this picture of political realism, as well as try to assess the merits of this as a position in theorizing about politics; connections with legal realism in jurisprudence will also be discussed. Speakers will include Alison McQueen, William Galston, Matt Sleat, Enzo Rossi, Alex Worsnip, and the instructors, among others.

Theme: Political Realism

The Workshop will introduce and asses "political realism," both its history (in figures like Thucydides and Machiavelli) and its contemporary manifestation (in writers like Bernard Williams and Raymond Geuss), often framed in reaction to the approach to political philosophy associated with John Rawls. Alison McQueen (who will be speaking at the Workshop) characterizes political realism in terms of four central ideas : (1) politics is a distinct realm, with its own norms; it is not simply applied moral philosophy; (2) "politics is agnostic or conflictual," a fact that arises from various possible causes: "human nature and the limits of rationality, competing identities and interests, and value pluralism"; (3) "the requirements of order and stability" take priority "over the demands of justice," precisely because the former cannot be taken for granted and are difficult to maintain; and (4) realists reject approaches to politics that "fail to take seriously the psychological, sociological, and institutional constraints on political action." Workshop sessions will explore and complicate this picture of political realism, as well as try to assess the merits of this as a position in theorizing about politics; connections with legal realism in jurisprudence will also be discussed. Speakers will include Alison McQueen, William Galston, Matt Sleat, Enzo Rossi, Alex Worsnip, and the instructors, among others.

Theme: Political Realism

The Workshop will introduce and asses "political realism," both its history (in figures like Thucydides and Machiavelli) and its contemporary manifestation (in writers like Bernard Williams and Raymond Geuss), often framed in reaction to the approach to political philosophy associated with John Rawls. Alison McQueen (who will be speaking at the Workshop) characterizes political realism in terms of four central ideas : (1) politics is a distinct realm, with its own norms; it is not simply applied moral philosophy; (2) "politics is agnostic or conflictual," a fact that arises from various possible causes: "human nature and the limits of rationality, competing identities and interests, and value pluralism"; (3) "the requirements of order and stability" take priority "over the demands of justice," precisely because the former cannot be taken for granted and are difficult to maintain; and (4) realists reject approaches to politics that "fail to take seriously the psychological, sociological, and institutional constraints on political action." Workshop sessions will explore and complicate this picture of political realism, as well as try to assess the merits of this as a position in theorizing about politics; connections with legal realism in jurisprudence will also be discussed. Speakers will include Alison McQueen, William Galston, Matt Sleat, Enzo Rossi, Alex Worsnip, and the instructors, among others.

The first half of the seminar will introduce major themes of Marx's philosophy-historical materialism, aspects of his economics relevant to his critique of capitalism, Marx's early theory of human nature and flourishing, and the theory of ideology (especially as applied to morality and law)-while the second half will consider the reception and development of Marx's ideas in 20th-century Continental European thought, with a particular focus on the theory of ideology (e.g., Lukacs, Gramsci, Sartre, Althusser) and the application of that theory to art and aesthetics (e.g., Adorno, Benjamin, Lifshits). (IV)

Emotions figure in many areas of the law, and many legal doctrines (from reasonable provocation in homicide to mercy in criminal sentencing) invite us to think about emotions and their relationship to reason.   In addition, some prominent theories of the limits of law make reference to emotions. (Thus Lord Devlin and, more recently, Leon Kass have argued that the disgust of the average member of society is a sufficient reason for rendering a practice illegal, even though it does no harm to others.  J. S. Mill and Herbert Hart argue against this view, but preserve a role for some emotions in the law.) Emotions, however, are all too rarely studied closely, with the result that both theory and doctrine are often confused.  

The first part of this course will study major theories of emotion, asking about the relationship between emotion and cognition, focusing on philosophical accounts, but also learning from anthropology, psychology, and psychoanalytic thought.  We will ask how far emotions embody cognitions, and of what type, and then we will ask whether there is reason to consider some or all emotions “irrational” in a normative sense. 

We then turn to the criminal law and select areas of constitutional law, asking how specific emotions figure in doctrine and theory: anger, fear, compassion, disgust, guilt, and shame. Legal areas considered will include self-defense, reasonable provocation, mercy, victim impact statements, sodomy laws, sexual harassment, shame-based punishments, equal protection, the role of constitutions in warding off fear, shame, and stigma.

Other topics will be included as time permits. (A) (I)

Hermeneutics, or the theory of interpretation, was developed in its modern form in Germany in the 18th- and early 19th-centuries by authors like Herder, F. Schlegel and Schleiermacher.  Later in the 19th-century, there emerged what Ricouer subsequently dubbed a “hermeneutics of suspicion”—an attempt to reveal the hidden meanings beneath the surface meanings people express—in figures like Marx, Nietzsche and Freud.  In the first half of the seminar, we will give a close reading of Nietzsche’s On the Genealogy of Morality as an exercise in the hermeneutics of suspicion, as well as consider in some detail Nietzsche’s remarks on perspectivism and interpretation.  In the second half of the seminar, we will then consider the historical background to this hermeneutics of suspicion in Romantic hermeneutics.  We will also give particular attention to the development of legal hermeneutics in Savigny and then, much later, through the work of Gadamer.   We will conclude by returning to the hermeneutics of suspicion, especially as illustrated by Marx. (I)

The year-long Workshop will expose students to work in "general jurisprudence" from roughly the last five years, including some new and forthcoming work. General jurisprudence is that part of philosophy of law concerned with the central questions about the nature of law, the relationship between law and morality, and the nature of legal reasoning. ; Confirmed speakers include Emid Ataq (Cornell), Julie Dickson (Oxford), David Plunkett (Dartmouth), Stephen Sachs (Duke), and Kevin Toh (University College London). Students who have taken Leiter's "Jurisprudence I" course at the law school are welcome to enroll. Students who have not taken Jurisprudence I must contact the instructor with information about their prior study of legal philosophy. Detailed familiarity with Hart's The Concept of Law and Dworkin's criticisms of Hart is essential. A final paper of 20-25 pages is required.