Transcript Phl 347: Philosophy of Law

UI 305:
Judicial Reasoning
Prof. H. Hamner Hill
Spring 2016
Student Expectations
5 case studies
 2 short writing assignments (6-8 pages)
 1 in class mid-term exam
 1 class presentation
 1 final exam

Grading Standards
Case studies
20%
 First short paper
15%
 Mid-term exam
15%
 Second short paper
20%
 Presentation
10%
 Final exam
20%
 Plagiarism and violations of academic
honesty result in zeroes for the
assignment.

What is Philosophy?
Three Answers:
Reflecting on common sense
knowledge, seeking a deeper
understanding of what we already know
 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

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 consistent
descriptions of those common features
of reality (cause, purpose, value) that
show up in every kind of inquiry.

These Three Answers are not
Mutually Exclusive
Some philosophers tend to follow one
model to the exclusion of others:
commonsense philosophers, ordinarylanguage philosophers, Rationalists.
 Many philosophers combine two or
three of these approaches. For
example, many accept common sense
or linguistic analysis as starting-points.

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 analyze the meanings of key
terms in the law: “rights”, “obligations”,
“punishment”, etc.
 We can seek the essence of law, legal
institutions.

Seeking the Essence of Law
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?
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What is Law?
Natural Law view.
 Positivist view.
 Historical view.
 Legal Realism view.

Natural Law
Assumes that law, rights and ethics are
based on universal moral principals
inherent in nature discoverable through
the human reason.
 The oldest view of jurisprudence dating
back to Aristotle .
 Jefferson’s Declaration assumes “the
Laws of Nature.”
 Divine law.

Natural Law
Rev. Martin Luther King, Jr.
Letter from the Birmingham Jail, April
16, 1963. “[T]here are two types of laws:
just and unjust laws. . . . A just law is a
man-made code that squares with the
moral law . . . . An unjust law is a code
that is out of harmony with the moral
law. . . . An unjust law is a human law
that is not rooted in eternal and natural
law.”
Legal Positivism
Law is the supreme will of the State that
applies only to the citizens of that nation
at that time.
 Law, and therefore rights and ethics,
are not universal. The morality of a law,
or whether the law is “bad or good,” is
irrelevant.

– The law is what the legislature says it is.
» Eg, Sunday closing laws, Estate Taxes
Legal Realism
Jurisprudence that holds law is not
simply a result of the written law, but a
product of the views of judicial decision
makers, as well as social,economic, and
contextual influences.
 Legal Realist view law functionally. The
purpose of law is to facilitate the
functioning of society.
• Eg, the UCC, Regulatory law.
Philosophies come in Many
Varieties
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.

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.
 Nominalists tend to be more empirical
and skeptical. In addition, they tend
toward more materialistic and
reductionistic accounts of human being.

Varieties of Philosophers of Law
Natural Lawyers: Aquinas, Fuller, Finnis
 Legal Positivists: Austin, Bentham, Hart
 Legal Realists and Critical Legal
Studies: Holmes, Llewellyn, Frank
 Interpretivists: Dworkin, Ely
 Non-interpretivists: Bork, Berger, Scalia
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The Normative/Descriptive
Dichotomy
Also known as: the fact/value
distinction.
 Widely accepted by nominalists,
including positivists.
 Tends to be rejected by Platonists,
natural lawyers.
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Natural Law Theory
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When we discover the essence of the
law, we learn both what the law truly is,
and what it ought to be.
Legal Positivism
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.
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