The Concept of Law

Political Science 304

Fall 1999

Prospectus

What is the law? If law is about rules, what is a rule? Does law have its own internal logic or does it serve social power? In what sense is it obligatory? What is the relationship of law to morality?

Requirements

Conference participation in good faith. There will be a midterm exam and a final paper due on the last day of class.

Books available in the Bookstore as well as on reserve

Vittoria, Political Writings
Pufendorf, On the Duties and Rights of Man
Carl Schmitt, The Concept of the Political
H.L.A. Hart, The Concept of Law (2nd Edition)
Lon Fuller, The Morality of Law
Ron Dworkin, Law's Empire

Books on reserve only

Austin, The Province of Jurisprudence Determined
Bornemann, Settling Accounts: Violence, Justice and Accoutnability in Post-Socialist Europe
Mark Osiel, Mass Atrocity, Collective Memory and the Law
Joseph Raz, Ethics in the Public Domain

Readings

First Half - Historical Survey

A. Neo-Thomism: Francisco de Vitoria, Political Writings
1. "On the American Indians," pp. 231-293
2. "On the Law of War," pp. 293-328.
3. "On Law: Lectures on ST I-II, 90-105" pp. 153-205.
4. "On Civil Power," pp. 1-45.

B. Modern Natural Law: Pufendorf, On the Duties of Man and Citizen
1. pp. 17-68
2. pp. 68-129
3. pp. 129-179

C. Modern Positive Law: Austin, The Province of Jurisprudence Determined
1. pp. 18-37
2. pp. 100-163
3. pp. 164-230
4. H.L.A. Hart, The Concept of Law, Chapters 2-4, pp. 18-79.

D. The Attack on Law: Carl Schmitt, The Concept of the Political
1. pp. ix-xxvii, 19-79
2. Osiel, Mass Atrocity, Collective Memory and the Law, pp. 1-55
(Recommended) Strauss, "Notes on Carl Schmitt" in Schmitt, pp. 83-107.

Fall Break.

3. Osiel, Mass Atrocity, Collective Memory and the Law, pp. 59-72, 241-301

E. Legal Positivism: HLA Hart, The Concept of Law
1. pp. 1-18, 79-155
2. pp. 156-238.

F. The Return of Natural Law: Lon Fuller, The Morality of the Law
1. pp. 3-95
2. pp. 95-187.

Midterm Exam

Second Half: Theory and Practice of the Law

G. The Lawyer's Perspective: Haskell, Why Lawyers Behave as They Do, pp. 1-109

H. The Jurisprudent's Perspective: Dworkin, Law's Empire,
1. pp. 1-76, 90-96, 410-413
2. pp. 114-135, 150-175, 224-275

I. Critical Perspectives

Group 1

Hart, "Replies to Critics" 239-277.

Raz, Ethics in the Public Domain, Chapters 10 and 11, "Authority, Law and Morality" and "The Inner Logic of the Law" , pp. 210-253

Group 2

Raz, Ethics in the Public Domain, "The Relevance of Coherence" pp. 277-325, and "The Nature of the Law" pp. 196-209.

Group 3

McCormick, "Three Ways of Thinking Critically About the Law" American Political Science Review (June 1999): 413-427

Raz, Ethics in the Public Domain, "On the autonomy of Legal Reasoning Chapter 14, 326-340.

Fuller, The Morality of the Law, pp. 187-245