英美法理学与司法制度（英）（1411）

Course Description:

Jurisprudence is a study about law. Jurisprudence concerns the theoretical analysis of law at the highest level of abstraction (e.g. questions about the nature of a right or a duty, judicial reasoning, etc, and are frequently implied within substantive legal disciplines). In this class, I’ll discuss some key conceptual questions about law: its concept, nature, application and some intertwined topics. Such as, what is this thing called law? Does it consist of a set of commands issued by sovereignty? Or is it a collection of norms? Or even, is it a set of moral principles in accordance with common good? How do we apply the law in courts? How’s our understanding of the concept of law influence judicial adjudication? And how does our understanding and analysis of judicial adjudication affect our knowledge of law? Does the law have a specific purpose, such as the protection of individual rights, the attainment of justice? What’s law’s place in profound and also provoking social changes, e.g., the legalization of same-sex marriage, euthanasia, etc.

 

Grading and Requirements:

1. The total grade is constituted by class performance (20%), class presentation (20%) and a final exam (60%).
2. Class performance includes but is not exhausted by: attendance, participation in the class and respect for other students.
3. Presentation: each student must make a presentation to the class, and your presentation must be one of the topics below.

Most of all: Investment in readings, be critical, but cautiously.

• “I always assumed…that the writers we were studying were always much smarter than I was. If they were not, why was I wasting my time and the students’ time by studying them? If I saw a mistake in their arguments, I supposed they saw it too and must have dealt with it, but where? So I looked for their way out, not mine. ”

John Rawls, “My Teaching”

 

Recommended Introductory Text-Books:

1. Jules Coleman, Scott Shapiro, and Kenneth Einar Himma ed., The Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford University Press, 2004.
2. Mark Tebbit, Philosophy of Law: An Introduction, Routledge, 2005.
3. Brian Bix, Jurisprudence: Theory and Context, Sweet & Maxwell, 2006.
4. Andrei Marmor, Philosophy of Law, Princeton University Press, 2011.
5. Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press, 2012.
6. Liam Murphy, What Makes Law, Cambridge University Press, 2014.

And Stanford Online Encyclopedia of Philosophy might be of great help to you, which has many useful entries on topics in legal philosophy: http://plato.stanford.edu

 

Week 1: Orientation

Week 2: The rise of legal positivism and Austinian Positivism

Brian Bix, “John Austin” (2014), The Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/austin-john/.

John Austin, The Province of Jurisprudence (1832), Cambridge University Press, 1995, lecture I, Note of lecture V, lecture VI.

Week 3: Hans Kelsen’s pure theory of law

Hans Kelsen, Introduction to the Problems of Legal Theory, Clarendon Press, 1934, Introduction, Chapter V.

Hans Kelsen, “On the Basic Norm”, California Law Review 40(1959): 107-110.

Week 4: Hart’s critique of early positivism

H.L.A Hart, The Concept of Law, Clarendon Press, 1961, chs. 2-4.

Week 5: Hart’s legal positivism

H. L. A. Hart, “Positivism and the Separation of Law and Morals,” 71 Harvard Law Review 593 (1958).

H.L.A Hart, The Concept of Law, chs. 5-6.

Week 6: Dworkin on Hart 

Scott Shapiro, “The Hart-Dworkin Debate: A Short Guide for the Perplexed”, in Ronald Dworkin, Arthur Ripstein ed., Cambridge University Press, 2007, pp. 22-49, .

Ronald Dworkin, Taking Rights Seriously, Harvard University Press, 1977, chs. 2-3.

Week 7: Dworkin’s interpretation theory of law

Ronald Dworkin, Law’s Empire, Harvard University Press, 1986, chs. 1-2.

Ronald Dworkin, Justice in Robes, Harvard University Press, 2006, Introduction, ch. 8

Ronald Dworkin, Justice for Hedgehogs, Harvard University Press, 2011, ch. 19.

Week 8: Natural law theory

John Finnis, Natural Law and Natural Rights, Clarendon Press, 1980, chs. II, V-XII and pp. 437-476

Robert P. George, “Natural Law,” in American Journal of Jurisprudence, Vol. 52 (2007) 55-75.

Week 9: Hard positivism

Joseph Raz, “Legal Positivism and Sources of Law”, in The Authority of Law, Oxford University Press, 1979.

Joseph Raz, “Authority, Law and Morality”, in Ethics in the Public Domain, Oxford University Press, 1995.

Joseph Raz, “About Morality and the Nature of Law,” The American Journal of Jurisprudence 48(2003):1.

Week 10: Law and Adjudication: Formalism and Realism

W. H jr. Holmes, “The Path of the Law”, Harvard Law Review 110, no. 5 (1997): 991-1009.

Karl Llewellyn, The Bramble Bush, Quid pro, 1953, pp. 69-76.

H.L.A Hart, The Concept of Law, ch.7.

Brian Leiter, "Rethinking Legal Realism: Toward a Naturalized Jurisprudence", Tex. L. Rev. 76 (1997): 267.

Week 11: The Contemporary Debate about Eliminativism

Mark Greenberg, “The Moral Impact Theory of Law,” The Yale Law Journal 123 (2014): 1288.

Scott Hershovitz, “The End of Jurisprudence,” The Yale Law Journal 124 (2015): 1160.

Liam Murphy, What Makes Law, Cambridge University Press, 2014, pp. 73-78, 88-108.

Week 12: Freedom (e.g., the 1^st Amendment in U. S. Constitution)

Kent Greenawalt, Religion and the Constitution: Vol. I, Free Exercise, Princeton University Press, 2009, pp. 68- 108.

John Rawls, Political Liberalism, Columbia University Press, 1993, pp. 310-24.

Chris Eberle , Religion and Political Theory, The Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/religion-politics/

Sherbert v. Verner (1963)https://supreme.justia.com/cases/federal/us/374/398/case.html

Wisconsin v. Yoder (1972)https://supreme.justia.com/cases/federal/us/406/205/case.html

Employment Division v. Smith (1990)https://supreme.justia.com/cases/federal/us/494/872/case.html

Week 13: Equality (e.g., the 14^th Amendment in U. S. Constitution)

Kenji Yoshino, “The New Equal Protection”, Harvard Law Review 124(2010): 747.

Judith Jarvis Thomson, “A Defense of Abortion”, Philosophy and Public Affairs 1 (1971): pp. 47-66.

Cases involving equality of race:

Brown v. Board of Education (1954) https://supreme.justia.com/cases/federal/us/347/483/

Regents of the University of California v. Bakke (1978) https://supreme.justia.com/cases/federal/us/438/265/

Gratz v. Bollinger (2003) https://supreme.justia.com/cases/federal/us/539/244/

Grutter v. Bollinger (2003) https://supreme.justia.com/cases/federal/us/539/306/

Cases involving equality of sex and sexuality:

Frontiero v. Richardson (1973) https://supreme.justia.com/cases/federal/us/411/677/

United States v. Virginia (1996) https://supreme.justia.com/cases/federal/us/518/515/

Obergefell v. Hodges (2015)https://supreme.justia.com/cases/federal/us/576/14-556/

Week 14: Is There a Duty to Obey the Law? 

Consent: A. J. Simmons, Moral Principles and Political Obligations, Princeton University Press, 1979, chs. 3-4.

Fair play: John Rawls, “Legal Obligation and the Duty of Fair Play”, In Law and Philosophy, Sidney Hook (ed.), New York University Press, 1964.

Natural duty: Jeremy Waldron, “Special Ties and Natural Duties”, Philosophy & Public Affairs (1993): 3-30.

M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?," Yale Law Journal, Vol. 82 (1973).

Week 15: Responsibility

H. L. A Hart, Punishment and Responsibility: Essays in the Philosophy of Law, Clarendon Press, 1968, ch. 9.

Peter F. Strawson, “Freedom and Resentment”, Proceedings of the British Academy 48(1962): 187-211.

Bernard Williams, “Moral Luck”, in Moral Luck: Philosophical Papers 1973–1980, Cambridge University Press, 1981. 

Week 16: Final Exam