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Unit 9 Seminar CHALLENGING THE LAW WINTER BREAK Unit 10 is shortened for Winter Break 12/21- Wed Ends 12/24 - Sat Winter break begins on 12/25. Starts There are no graded items in unit 10!!! If you would like an incomplete, please see me ASAP (due 12/16) LAST DAY of the term is 12/24/11 Unit 9 Assignment- Assess two speeches 1. Review BOTH speeches Dr. King Gov. Wallace 2. Review the required points (6 concepts) 3. Assess EACH speech as to these 6 points Give examples from speech Bring in philosophical theory to show application in speech Name theory/theorist You paper should: Have an introduction & conclusion Headings to separate sections In-text citations throughout A reference list with at least 3 references (hopefully far more) Be at least 4 pages but no more than 12 Debunking our commonplaces Law, in order to be non-defective, must be genuinely authoritative and genuinely for the common good. If these commonplaces are false or misleading, it puts in question the roles of subject, legislator, and judge. Sometimes do we need to challenge the law? Does that make us anarchists? Anarchy: absence or denial of any authority or established order (lawlessness) The Role of Subject: Anarchists Respond Philosophical anarchism challenges the duty of subjects to obey law. There are two ways anarchists challenge the role of subject. Moral Requirement Patterns of conformity Role of the subject???? Who’s theory was that one??? John Austin’s Theory of Law as Commands Rules are issued by the Sovereign Rules = Commands Commands are backed by threats The Sovereign is habitually obeyed Robert Paul Wolff Autonomy & Authority are incompatible! We have a moral duty to be and remain autonomous. As such, we can’t be faithful subjects- it is just asking too much! Critics respond: unless the laws are grossly unjust, one should obey because there needs to be a common standard to divide up responsibilities to promote the common good. The loss of autonomy is justified by the gain for the common good. The Role of Subject: Anarchists Respond No theory of moral requirement to obey the law is successful. Many acts the law forbids people would avoid anyway Mala en se Other acts, people would obey because the customs or patterns of coordination An important role that law has is regulating the demands we can make on each other not to endanger others by driving drunk. However, your definition of drunk might not be the same as mine. So, Much of the law is concerned with making more precise these standards of justice. Joseph Raz – Hard Positivist the law has “authority-potential” in that it claims to have genuine authority and “the role of authority, its function, is to give people dictates that help people act better” (Murphy, p. 34). Law must be made understandable and followed by people without engaging in their own individual moral deliberations. Language in the law that appears to include morality, such as the law prohibiting “cruel and unusual punishment, But the determination of what is “cruel” is not a morality call; it is a determination made by a judge in a court decision as part of the judge’s “limited law-making power” (Murphy, p. 35). Political Anarchism a claim about the undesirability of the state, rather than the whether one should obey the law. Political anarchists point out dangers posed by states due to hierarchical structures ruling through coercion, with authority wielded by powerful elites. They argue that the state causes many of the harms it is supposed to remedy States divide subjects from each other, oppressing some classes for the benefit of others; this oppression, it is said, causes crime. Marx an Anarchists Response Marx claimed that economic features of society generate constraints on noneconomic possibilities within that society. The economic class to which one belongs determines the conception of morality and value that one adopts. It is inevitable over the long haul that the results of one class dominating another will be reflected in law itself. Principles that appear to be neutral on their face will turn out to be favorable to those in power. The Role of Legislator: Anarchists Respond Bias in the law: (a) Economic Power often equates to power in the law (b) lawmakers and judges are drawn from the elite class; (c) the legal order is unable to sustain norms too contrary to the prevailing economic relationships. Example: As evidence of this phenomenon is cited law’s initial response to lawsuits by factory workers against their employers for injuries received on the job. The defenses of assumption of risk, contributory negligence, and the fellow servant rule were used by judges to deny recovery. Worker’s compensation was just a concession that blocked fuller reform as it does not compensate pain and suffering and caps damages allowing employers to pay far less Marx’s perception There is no neutral conception of justice and good class status shapes members’ conceptions of justice and the common good, which means there is no genuine long-term prospect that law can be for the common good. There can be no hope for law that is for the common good until society no longer consists of classes in conflict. A response: the legislators are capable of being objectively benevolent. The Role of Judge: Anarchists Respond Judges take legal rules as a guide in making decisions. Sometimes the law “runs out” and, it is argued, sometimes judges have to make decisions that go beyond the rules. This raises two questions (1) How pervasive is this phenomenon? (2) To what extent does this call into question the role of judge? Judges & American Legal Realists Law is massively indeterminate at least for those cases that are appealed (as contrasted with mundane cases). This skepticism is founded on the idea that interpretive standards are not sufficient to account for what will be relevant in determining what precedent is or what statutes and other law mean in a particular case. The fact that judges’ decisions are largely predictable cannot be explained by the law’s determinacy ,but instead from other facts, which could include political or moral beliefs of the judge or social factors, such as class. If realists are right, appellate judges are not making decisions in accordance with their role as judge because they are not applying law. Critical Legal Studies Critical legal studies philosophy goes further. It holds that even in the everyday workings of the lower court the law is rife with indeterminacy. They say judges have shared substantive extralegal understandings – shared moral/political views, ideas about the inviolability of property, and other understandings – and conclude that “law is politics.” The critics say judges are lawmakers rather than appliers of law. Why Should Subjects Accept Judicial Decisions? If cases are not decided based upon technical legal reasoning, but are the result of broader moral and political thinking judges as a class have no more expertise in these areas than other persons Ut-oh, that doesn’t sound so good?!?! An argument for having judges do this work is the practical need for binding decisions resolving disputes but this begs the question of whether alternative sources of resolution might be better. UNIT 10 Agenda No Seminar Discussion Board (ungraded) Reflection Course Closes on DEC. 24th @ 11:59 PM ET Saturday!!! No further coursework can be accepted after the close of the term! PLEASE DO NOT WAIT until the last minute to complete your work!