NOTES ON THE READINGS AND THE SEMINARS
The readings are linked to the names in parentheses. After each lecture, a link will be placed to the
audio and the notes.
Weeks 2 and 3 will be from the same book, which is by Daniel Chernilo on natural law theory and
social theory. Natural law theory is the oldest form of jurisprudence. It is based on the idea that
society is part of the natural order, and its governance needs to be understood in those terms. This
idea has been given both religious and scientific spins in the history of Western jurisprudence,
normally at the same time. The history of natural law theory is usually traced through Aristotle and
the Roman Catholic legal tradition (Thomas Aquinas), and remains most forceful today in discussions
of life at its extremities (e.g. abortion, euthanasia, torture, etc.). This is often expressed as the need
for a ‘higher law’ to guide the application of normal forms of legislation, which tends to be conceived
in global terms, such as the International Court of Justice, which deals with violations of ‘human
rights’, rights that humans have even if particular states don’t recognize or protect them.
Week 4: Natural law – in both its religious and secular forms – presupposes a conception of law’s
‘normativity’ that seems to be different from that offered by the modern American schools of
sociological jurisprudence and legal realism. But is there some foundational notion of ‘normativity’
that underwrites these diverse conceptions? I’ve attached Stephen Turner’s ‘Explaining
Normativity’, which is probably the best book around now to deal with this matter. Chapter 3 of
special relevance to us as it covers the disagreement between two legal scholars who were involved
in the drafting of the first republican constitution for Germany after the First World War, the legal
positivist Hans Kelsen and the sociologist Max Weber. The offer interesting albeit contrasting
insights into the basis for the law’s normativity.
Weeks 5 and 7 will be on ‘legal realism’ and its critique, which is called ‘critical legal theory’. ‘Legal
realism’ is a broad category for attempts to render the law scientific. It’s probably the distinctive
American contribution to jurisprudence. In contrast to natural law theory, the emphasis is shifted
from the fixity to the manipulability of human nature. Little surprise, since US has always understood
itself as a ‘land of opportunity’ with considerable potential for social mobility. Oliver Wendell
Holmes and Roscoe Pound each had a foot in the judiciary and the law school, and both took
seriously the idea that the legislation was a form of hypothesis-testing, in which we legislators and
judges had to know the latest empirical and theoretical understandings of human behaviour to
enable the law to achieve policy goals. In our own day, Cass Sunstein, a law professor who served in
the Obama administration, is a descendant of this tradition. He is best known for his best-selling
book Nudge, which has also been influential in the UK, where it is actually much easier to
manipulate the legal system for policy purposes. Sunstein’s preferred science is behavioural
economics, as you’ll see in the article included. However, the very idea that people can and should
be micromanaged in this fashion is challenged by critical legal theory, which looks at the matter from
the standpoint of the law’s natural openness permitting the prospect for individual empowerment in
specific concrete situations, such as a trial. Roberto Unger, the main theorist of critical legal studies,
writes of ‘destabilization rights’, which is the right of the agent to turn the openness of a legal
situation to his/her advantage.
In week 8, we shall consider the extent to which the increasing focus on human rights, especially
since 1948’s UN Universal Declaration, constitutes an overall trajectory of ‘moral progress’. I have
included three readings. Two of them are from a recent anthology on human rights, Human Rights:
The Hard Questions. The introduction provides a good overview of all the different legal, moral and
political issues surrounding human rights. I’ve then included the chapter by Alan Buchanan, an
American ethicist, on the possible relationships between human rights and what might be called
‘moral progress’. Finally, I’ve included an article on Max Weber’s rather sceptical view of human
rights, based on the experience of the French and Russian Revolutions: namely, as a kind of
charismatic personification of reason, which Weber associates with fanatical politics.
In weeks 9 and 10, we will consider human rights in relation to the emergence of animal and
machine rights in recent years. I have put a link to a report I made of a conference I attended at Yale
in December 2013, ‘Personhood beyond the human’, which was the first one to feature advocates of
human, animal and machine rights all in one room. The report contains further links to other things
you can read to get the measure what was going on. Here we will consider whether it is possible to
design a common legal environment that respects the appropriate sense of ‘rights’ for humans,
animals and machines. ‘Our Cyborg Future’, a report from the liberal US think tank, the Brookings
Institution, considers the legal implications of prosthetically enhanced humans becoming more
visible in society, not as disabled but as highly valued members (e.g. Steven Hawking, Paralympics).
HERE ARE THE SEMINAR QUESTIONS FOR EACH WEEK:
2. Do you find any of the classical formulations of natural law theory more compelling than others?
Do any of them deserve revival today?
3. Are the classical sociological critiques of natural law theory fair? What is the positive account of
law that those sociologists defend?
4. How would you characterize the difference in Kelsen’s and Weber’s positions on the source of the
law’s normativity? Is the dispute of more than academic interest to our understanding of the law?
5. Is it ‘realistic’ to expect the law to be informed by the findings of science? If so, which sciences
should take precedent, given that they may not be in mutual agreement?
7. What, if any, conception of normativity does it claim for the law: How is CLS similar/different from
legal realism?
8. Do we really need a conception of human rights to have a fair and just legal system?
9. What sorts of adjustments would humans and animals each need to make to live under a common
normative order? Is that possible? Desirable?
10. Will the increasing prominence of ‘cyborgs’ lead to a call for prosthetic enhancements by
normal bodied humans? Will it lead to a full-blown machine rights movement, especially in
light of the increasing use of androids at work and in the home?