Philosophy of Law

Nietzsche objects to Judeo-Christian morality (and its ‘ascetic’ analogues in non-Western traditions) because he argues it is a fatal obstacle to certain kinds of human flourishing and cultural excellence. This is closely connected to his opposition to Schopenhauer’s pessimistic view that the inescapable fact of suffering renders life without value (a life without human excellence would, on Nietzsche’s view, lack value). These issues (and others, e.g., the nature of philosophy and tragedy, the conception of Dionysus) have antecedents in his early work as a scholar of antiquity and the influence of his Basel colleague, the important historian Jacob Burckhardt. Roughly the first five sessions will be devoted to reconstructing the “mature” Nietzsche’s view, as represented by the Genealogy, but also excerpts from Daybreak, Beyond Good and Evil, Twilight of the Idols, and Ecce Homo. The remaining four sessions of the seminar will explore the historical background, in Greek literature and philosophy, the reception of Greek culture in German philosophy, and in the seminal work of his colleague Burckhardt. The ultimate goal is to reconstruct Nietzsche’s view from a philosophical point of view and, as importantly, in light of the historical context. (I)

The topic for 2018-19 will be "Enlightenment liberalism and its critics," the critics coming from both the left and the right. Enlightenment liberalism was marked by its belief in human freedom and the need for justifications on any infringements of that freedom; by its commitment to individual rights (for example, rights to expression or to property); and by its faith in the rational and self-governing capacities of persons and their basic moral equality. The Workshop will begin in the fall with several classes just for students to discuss foundational readings from liberal thinkers like Locke, Kant and Mill (we may also have some outside speakers taking up Kantian and Millian themes). In the Winter quarter, we will consider critics from the left, notably Marx and Frankfurt School theorists like Herbert Marcuse. In Spring, we will turn to critics from the "right" such as Nietzsche (who rejects the moral equality of persons) and Carl Schmitt. There will be sessions with the students discussing primary texts and then sessions with outside speakers sometimes interpreting the primary texts, sometimes criticizing the critics of liberalism, and sometimes developing their ideas.

The topic for 2018-19 will be "Enlightenment liberalism and its critics," the critics coming from both the left and the right. Enlightenment liberalism was marked by its belief in human freedom and the need for justifications on any infringements of that freedom; by its commitment to individual rights (for example, rights to expression or to property); and by its faith in the rational and self-governing capacities of persons and their basic moral equality. The Workshop will begin in the fall with several classes just for students to discuss foundational readings from liberal thinkers like Locke, Kant and Mill (we may also have some outside speakers taking up Kantian and Millian themes). In the Winter quarter, we will consider critics from the left, notably Marx and Frankfurt School theorists like Herbert Marcuse. In Spring, we will turn to critics from the "right" such as Nietzsche (who rejects the moral equality of persons) and Carl Schmitt. There will be sessions with the students discussing primary texts and then sessions with outside speakers sometimes interpreting the primary texts, sometimes criticizing the critics of liberalism, and sometimes developing their ideas.

About half of the sessions will discuss philosophical and legal issues related to animal rights, and the other half will discuss issues of environmental ethics, focusing on the ethics of climate change. This is a seminar/workshop many of whose participants are faculty from various related disciplines. It admits approximately ten students. Its aim is to study, each year, a topic that arises in both philosophy and the law and to ask how bringing the two fields together may yield mutual illumination. Most sessions are led by visiting speakers, from either outside institutions or our own faculty, who circulate their papers in advance. The session consists of a brief introduction by the speaker, followed by initial questioning by the two faculty coordinators, followed by general discussion, in which students are given priority. Several sessions involve students only, and are led by the instructors. Students write a 20-25 page seminar paper at the end of the year. The course satisfies the Law School Substantial Writing Requirement.

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. 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 and psychology. 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, 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. Next, we turn to the role played by emotions in constitutional law and in thought about just institutions - a topic that seems initially unpromising, but one that will turn out to be full of interest. (A) (I)

The topic for Winter 2018 is the "Epistemology of Etiological/Genealogical Critiques: Contemporary and Historical." Anglophone epistemology has recently become interested in the question whether the origin of our beliefs matters to their acceptability or justification. The intuitive thought is simple: If you had been brought up in a different family, or a different culture, or at a different time, your moral, religious, and philosophical beliefs (among any others) would likely have been very different than they are. Shouldn't that make us wonder whether we are really justified in believing what we believe? Should the origin or historical contingency of our beliefs and values make us skeptical about them, or lead us to revise them? Many historical figures in the German traditions have thought so: in different ways, Herder, Marx, Nietzsche, and Freud. Many recent Anglophone philosophers think not: they ask what epistemological principle would license a localized skepticism about certain beliefs without having far-reaching implications? When does the etiology of belief matter epistemically and when does it not? We begin by looking at contemporary approaches to this question in the recent Anglophone literature (with readings from G.A. Cohen, Sharon Street, Roger White, and Amia Sreenivasan, among others), then turn to historical figures in the Continental European traditions concerned with these questions. (I) (III)

About half of the sessions will discuss philosophical and legal issues related to animal rights, and the other half will discuss issues of environmental ethics, focusing on the ethics of climate change. This is a seminar/workshop many of whose participants are faculty from various related disciplines. It admits approximately ten students. Its aim is to study, each year, a topic that arises in both philosophy and the law and to ask how bringing the two fields together may yield mutual illumination. Most sessions are led by visiting speakers, from either outside institutions or our own faculty, who circulate their papers in advance. The session consists of a brief introduction by the speaker, followed by initial questioning by the two faculty coordinators, followed by general discussion, in which students are given priority. Several sessions involve students only, and are led by the instructors. Students write a 20-25 page seminar paper at the end of the year. The course satisfies the Law School Substantial Writing Requirement.

About half of the sessions will discuss philosophical and legal issues related to animal rights, and the other half will discuss issues of environmental ethics, focusing on the ethics of climate change. This is a seminar/workshop many of whose participants are faculty from various related disciplines. It admits approximately ten students. Its aim is to study, each year, a topic that arises in both philosophy and the law and to ask how bringing the two fields together may yield mutual illumination. Most sessions are led by visiting speakers, from either outside institutions or our own faculty, who circulate their papers in advance. The session consists of a brief introduction by the speaker, followed by initial questioning by the two faculty coordinators, followed by general discussion, in which students are given priority. Several sessions involve students only, and are led by the instructors. Students write a 20-25 page seminar paper at the end of the year. The course satisfies the Law School Substantial Writing Requirement.

The Workshop will expose students to cutting-edge work in "general jurisprudence," 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. We will be particularly interested in the way in which work in philosophy of language, metaethics, metaphysics, and other cognate fields of philosophy has influenced recent scholarly debates that have arisen in the wake of H.L.A. Hart's seminal The Concept of Law (1961). Students who have taken Leiter's "Jurisprudence I" course at the law school are welcome to enroll. Students who have not taken Jurisprudence I need to understand that the several two-hour sessions of the Workshop in the early fall will be required; they will involve reading through and discussing Chapters 1-6 of Hart's The Concept of Law and some criticisms by Ronald Dworkin. This will give all students an adequate background for the remainder of the year. Students who have taken jurisprudence courses elsewhere may contact Prof. Leiter to see if they can be exempted from these sessions based on their prior study. After the prepatory sessions, we will generally meet for one hour the week prior to our outside speakers to go over their essay and to refine questions for the speaker. Confirmed speakers so far include Leslie Green, Stephen Perry, Frederick Schauer, Natalie Stojlar, Mark Murphy, and Kevin Toh.

The topic for Winter 2017 is "Freedom and Responsibility, Contemporary and Historical." We will begin by canvassing the major philosophical positions in the Anglophone literature on free will and moral responsibility over the past half-century, with readings drawn from some or all of P.F. Strawson, G. Strawson, H. Frankfurt, G. Watson, D. Velleman and others. In the second half of the seminar we will step back to look at the treatment of these same issues by major figures in the history of philosophy, including M. Frede's A Free Will: Origins of the Notion in Ancient Thought, as well as primary texts by Hume, Kant, Hegel, Nietzsche, and Sartre. The seminar is open to philosophy PhD students without permission; to J.D. students with instructor permission; and to others with instructor permission. (I) (III)