Philosophy 224
Philosophy of Law
Fall 2014
W. H. Wilcox
Office: Main 115 (696-6024)
Office Hours: Tuesday 11:15-12:15;
Thursday 8:30-9:30; & by appointment.
Course Description:
This course will survey several central topics in the philosophy of law including ones that
are extremely abstract and some that are quite concrete. We begin by looking at attempts
to explain the general nature of law and end with questions about contract law. Along the
way, we’ll look at recent controversies about the U.S. government’s responses to
terrorism in part to see whether views about the nature, purposes, and value of law can
help in resolving them. A significant portion of the course will be spent examining tort
and criminal law. Both provide a legal response to harmful conduct, but their responses
and purposes seem to differ. It seems that the criminal law is focused on those who cause
harm seeking punishment of wrongdoers, while tort law seems to focus on the parties
wrongly harmed seeking a way to repair the harm. Our readings will raise questions
about these very simple descriptions of the purposes of these two areas of law. A
traditional feature of Anglo-American law is that while it has created general legal duties
not to harm others (some harms being addressed by criminal law, some by tort law, and
some by both), it has not created general legal duties to come to the aid of others even if
their lives are endangered and they can be easily rescued. (A few states have fairly
recently departed from this tradition.) One section of the course will ask whether or not
there should be a legal duty to come to the assistance of others, at least when it can easily
and safely be done, and if so whether a failure to do so would be better addressed by
criminal or tort law.
Readings:
Most readings will be from the required textbook, Feinberg & Coleman, Philosophy of
Law, 8th ed., but some will be available on the web, most of those from Macalester’s
electronic journals.
Requirements and Grading:
1.
Reading Reactions (10%):
There are twenty-four days during the semester for which new readings are
assigned. For at least fifteen of these days, articulate and develop one
question that you think would be a good one to raise about some aspect of the
reading. Reactions should be about a page and should be completed by the
beginning of class. A hard copy could be brought to class, but it would be
better to send me a copy electronically as an email attachment. These will be
assessed as being satisfactory or unsatisfactory and will constitute 10% of
your final grade. For full credit you must complete fifteen of the assignments
satisfactorily. Late reactions will not be accepted.
2.
Short Papers (45%):
There will be three short (4-6) page papers. The first two are tentatively due
at the beginning of class on October 2 and November 6. The last short paper
is due at 3:30 p.m. on December 13, the time at which the final exam is
2
scheduled. Each will constitute 15% of your final grade. The first two short
papers may be rewritten and resubmitted up until one week after they are
returned in an attempt to improve the grade. The revision can improve the
grade on the paper no more than one full letter grade (e.g. from B- to A-).
The Final Short Paper must be on a topic from Sections VIII-X of the
syllabus.. The short papers will be penalized one grade (e.g. from A to A-) for
each day late.
3.
Longer Paper (45%):
A 10-15 page paper to be written in two drafts. The first draft will be due on
November 20 and will be returned with comments but no grade. The second
draft will be due on December 9. Your grade will depend both on the final
version’s quality and on the quality of its responses to comments. Late
papers will be penalized one grade (e.g. from A to A-) for every two days
they are late on either the first or final draft.
Note: To receive credit for the course all four papers must be completed.
4.
Class participation will be considered and can either raise or lower the final
grade by one grade (e.g. from B+ to A-). At a minimum, you are expected to
attend class regularly.
Academic Integrity: I follow the College’s policies on academic integrity.
Summary of Paper Due Dates:
October 2—First Short Paper
November 6—Second Short Paper
November 20—First Draft of Longer Paper
December 9—Final Draft of Longer Paper
December 13—Third Short Paper
3
Tentative Schedule of Topics and Readings
Unless otherwise noted, all readings are from the Feinberg & Coleman volume and should be
completed before the first day on which they will be discussed.
I. Introduction
Sept. 2
II. The Nature of Law: The Traditions of Natural Law Theory and Legal Positivism
 Aquinas, 8-13
Sept. 4

Austin, 55-68
Sept. 9
III. The Nature of Law: More Recent Natural Law Theory and Legal Positivism
 Hart, 68-84

Sept. 11

Ronald M. Dworkin, “The Model of Rules,” The University of
Chicago Law Review, Vol. 35, No. 1 (Autumn, 1967), pp. 14-46.
http://www.jstore.org/stable/1598947
Dworkin, 134-150
Sept. 16

Coleman, 84-100
Sept. 18

Lon L. Fuller, “Reason and Fiat in Case Law,” Harvard Law Review, Vol. 59, No. 3.
(Feb., 1946), pp. 376-395. http://www.jstor.org/stable/1335588
Recommended: Murphy, 17-36
Sept. 23

IV. The Nature of Law: American Legal Realism
 Holmes, 120-126
Only roughly the first half of this classic essay is reprinted in Feinberg &
Coleman. If you would like to read the entire essay see:
O. W. Holmes, “The Path of the Law,” Harvard Law Review, Vol. 10, No.
8. (Mar. 25, 1897), pp. 457-478. http://www.jstor.org/stable/1322028
 Frank, 117-119
Sept. 25

Lon L. Fuller, “American Legal Realism,” University of Pennsylvania Law Review and
American Law Register, Vol. 82, No. 5. (Mar., 1934), pp. 429-462. [Read 429-438]
http://www.jstor.org/stable/3308406
Sept. 30
V. How Should We Want Judges to Decide Cases?

October 2—FIRST SHORT PAPER DUE
Fuller, 37-54
Oct. 2
4
VI. Terrorism and Torture
 Smith, 456-471
Oct. 7


Yoo and Delahunty, 471-479
Hamden v. Rumsfeld, 479-496

Dershowitz, 497-508
Oct. 14

Waldron, 509-529
Only a small portion of this essay is reprinted in Feinberg & Coleman.
If you would like to read the entire essay see: Jeremy Waldron, “Torture
and Positive Law: Jurisprudence for the White House,” Columbia
Law Review, Vol. 105, No. 6 (October 2005), pp. 1681-1750.
http://www.jstor.org/stable/4099502
Oct. 16
VII. Responsibility and Tort Law
 Palsgraf v. The Long Island Railroad Co., 767-774
 Summers v. Tice, 774-777
 Sindell v. Abbott Laboratories, 778-794
Oct. 9
Oct. 21


Honoré, 574-589
Gardner, 685-706
Oct. 28


Perry, 706-721
Coleman & Ripstein, 722-744
Oct. 30

Shiffrin, 745-767
See also Shiffrin’s “Harm and Its Moral Significance,” Legal Theory (September
2012), pp. 1-42. Macalester doesn’t have access to Legal Theory, but the paper
can be downloaded from Shiffrin’s website at UCLA’s Law School.
Nov. 4
VIII. Responsibility and Criminal Law
November 13—SECOND SHORT PAPER DUE

Feinberg, 624-29
Nov. 6


Morris, 641-655
Murphy, 655-664
Nov. 11


Kadish & Schulhofer, 590-595
Lewis, 595-603
Nov.13
5


Gardner, 604-615
People v. Young, 615-618
Nov. 18
November 20-- FIRST DRAFT OF LONG PAPER DUE

Randy E. Barnett, “Restitution: A New Paradigm of Criminal Justice,” Ethics, Vol. 87,
No. 4. (Jul., 1977), pp. 279-301.
http://www.jstor.org/stable/2379899
Nov 20
IX. Duty to Rescue
We’ll read some of the following:
 Ernest J. Weinrib, “The Case for a Duty to Rescue,” The Yale Law Journal, Vol. 90, No.
2 (Dec., 1980), pp. 247-293.
http://www.jstor.org/stable/795987
 Jeremy Waldron’s contribution to “Symposium: On The Road: Good Samaritans and
Compelling Duties,” Santa Clara Law Review, Vol. 40 (fall 2000).
http://www.lexisnexis.com/hottopics/lnacademic/?sfi=AC00NBGenSrch&csi=14
4688&shr=t
 The essays in “The Moral and Legal Limits of Samaritan Duties,” Law and Philosophy,
Vol. 19, No. 6 (Nov., 2000).
http://www.metapress.com/content/ba6x9hn2d476/?p=6a5cdc7242fc42489a270fb
9fdae2542 &pi=68
Nov. 25 & Dec. 2
X. Contract
 Fried, 829-850
 Shiffren, 873-892
Dec. 4
XI. Conclusion
Dec. 9
December —FINAL DRAFT OF LONG PAPER DUE
December 13, 3:30 p.m.—THIRD SHORT PAPER DUE