UNIT 1
Arbitrator
RE Law
Child support
Entertainment
Jot bulletpoints down for each philosopher, or a chart.
If miss seminar, review archive, do brief writeup, email as Word to prof.
Advise in advance for extensions. Can deduct up to 5%, but generally does not.
Late posts, to 75%. Want 3-4 posts over several days maximizes points.
Look at subjextive & objective.
Authoritative… must have a final decision maker & practical authority. Without judge, cops, etc, would
people be willing to always do right? Structure with final decision maker. It doesn’t have to be
considered serious, but obeyed. There are reasons for compliance. If kids didn’t have parents they had
to obey??? There is a consequence. Law commands, not request. Norms are rules. Violators are guilty.
Common Good… justifiable for all, regardless of class. How is common good interpreted and what
values are used or included as appropriate objectives?
BASIC AUSTINAIANISM
UNIT 2
Austin… rules are commands that affect specific and common tasks. There can be divine & positive
(man-made) law. Positive creates legal obligations. Therefore things can be legally right/wrong, but not
moral.
Secondary Rules:
Singles them out
How they can be changed
Specifies who can enforce & apply the rules.
POSITIVE LAW:
Man made law
Imposes legal obligations on people vs moral obligations. Example: legal to own people (slaves), but
morally reprehensible.
LEGAL POSITIVISM:
No link between positive law and morality & are man-made laws.
NATURAL LAW vs. POSITIVE LAW:
Natural law applies universally vs. positive law that pplies to people within a given territory.
UNIT 4
Aims of law are those aspects of the common good that the law should support by means of
authoritative rules.
Common good laws must be authoritative or people won’t follow.
Consider the nature of common good & practical & moral limits of authoritative disposition.
Proper aims of law may be limited by the fact that law involves exedrcise of authority.
Utilitarian Approach:
If punishment can cause pain to the wrongdoer and dint do anything else, it was not justified. Pain for
pain-sake is NOT justified.
Reasons forpunishment:
1) General deterrence… deter other member of society
2) Special deterrence- deter the wrongdoer from future crimes
3) Incapacitation- Punish to limit the opportunity to commit future crimes (if jailed… not able to
commit a crime)
4) Rehabilitation- Change the moral character of the criminal (some believe this does not happen
in jail).
John Stuart Mill
1) Follower of Bentham
2) Some pleasures are by their nature better or nobler than others
3) LOOK AT PPT
Harm Principle
The only legitimate reason for society to restrict the liberty of on of its members is to prevent him from
directly harming the interests of others
Personal conduct is purely a private matter
For Mill, the fact that behavior harms ones self or is unpopular, vulgar, orimmoral does not count as
harm to others.
Some feel there is no such thing as victimless crime. So we have a right to restrict liberty to prevent
harm to others.
To Mill, what couts as harm to others? He finds that
1) Acts that directly diministh anothers well beting
2) Failure to perform SEE PPT for 2 & 3
3) D
Rule should apply to speech and conduct. Restrictions on opinions cannot be justified- whether
opinions expressed or… SEE PPT
Restricting true opinions makes it harder for people to come to correct beliefs. Restrciting false opinions
make it harder for the falsity to become publicly clear.
Restricting a miture of the two makes it harder for people to distinguish the true from the false.
Restrictions on self-regarding conduct cannot be justified w/o showing a direct harmful effect on others.
You need to show if the words are actually harming others. Where is line from offensive language v.
libel/slander to reputation. Can be offended but not harmed.
But the overall happiness can be diminished by actions that harm the self, so why does Mill choose
“harm to others” as the standard?
1. Overall happiness will be better promoted by letting individuals decide what will promote their
own happiness rather than letting lawmakers do it for them because individuals are better
informed and mor motivated to make the choice
2. Experiments in living can discover better ways of living… restricting ways of libing that do not
harm others deprive both the experimeneters and the community at large of the benefit ofhtis
knowlldedge
3. Autonomy, the freedom to choose for oneself, has value independent of the choices made.
Mill would permit laws intended to prevent harm to self in the case of children, mentally incompetent,
and backward societies, as these individual s are not capable of caring for themselves.
Regarding adults in civilized societies, laws to prevent harm to self oculd be justified in rare cases… such
as prohibitin someone selling himself into slavery, where the action itself would undermine the
individual’s own liberty.
Gerald Dworkin
Gerald D develops this idea in the notion of limited paternalism/
Paternalis is the view that legal restriction is permitted to protect or promote the subject’s good.
Gerlad D argues Mill’s exceptions permitting legal restrictions to promote the subjec’s own good are
based upon the idea that it is ereasonable ot permit limimtations onautonomy for the ske of autonomy.
… You have to restrict liberties sometimes.
Gerald justifieds this view under a test of “Hypothetical consent”… that it is justified if it would be
rational for one to agree in advance to this restriction.
If ou were to think about this clearly, rationally, and knowledgably, this is what you would want to be
done to and for you.
Sometimes happens with assisted suicide… person may be depressed, but not really want to die.
MIDTERM??
Gerald D:
2 yptes of paternatlistic restrictions are justifiable as protections, or a kind of Social Insurance against
failures of knowledge or will (a) actions that would greatly put at risk human goods necessary to exercise
autonomy, such as helth or certain degree of education; (b) preventing actions made under duress that
are irrevocable, life-altering, or very costly (suicide, abortion). If propsription is not justified, some legal
requirement to wait or deliberate might be.
Patrick Devlin: Every society has its own moral code and the preservation of that moral code is essential
to the well being of the society.
Devlin: Shared ideas of right & wrong=society moral code. When the code is violated, societyis
weakened. That is why society has a need to enforce the code. Society is weakened when violators are
not punished.
Moral Legistlation:
The phrase “you can’t legislate morality” is true in some senses and false in others. Laws that attempt
to legislate morality over time can affect behavior, habit, and public… SEE PPT.
Critical morality consists in those moreal norms that correctly prescribes what is to be done from a
moral point of view and can be used to accurately criticize choices, beliefs, and attitudes.
SEE PPT
Devlin argues that critical morality is religious in nature and law shoud not enforce critical or religious
morality, but should enforce positive morality.SEE PPT
Devlin says refusal to countenance legislation that reinforces positive morality threatens society iself.
Hart challenges Devlins premises that private mimmorality threatens society and or that society worth
preserving should be drfined by a common…. SEE PPT.
Another basis for morality as a factor lin legistlation is based upon paternalism.
Morality may be a humand good in itself that makes for a better quality life, hence laws promoting
morality may be justified as paternalism.
Rober George argues that critical morality should be the basis of morals legislation and thathe common
good of society benefits from more virtue and less vice.
Thus paternalism justifies morals legislation as a human good for the individiaul and the neo-Devlinian
view of George justifies for the good of the community… or Good morals make a good society.
A third view is that a moral community is an ideal that is good in and of itself an dpursuit of this ideal
sould be included… SEE PPT
Some would argue, echoing Mill, thatblcoking human living experiments through morals legistlatino
could block actual moral progress, which requires authonmy. People should not have individual choice…
for society to progress.
MIDTERM:
Suggestions: law about gay marriage, abortion, use of marijuana, assisted suicide, child porn,
environmental harm, animal cruelty. Carry concealed weapons, DUI.
Call into the proper aims of law. Use views of the Chapter 3 authros. Talk whether law as stands does
or not reflect proper aim of law. Develop theory if correct or not. Do they advance the aim of law or
not.
Identify, analyze, support w/case law statues, philosophers. Good intro important. Good conclusion.
Title page. Resources. APA cite format.
1
UNIT 6
Torts and Contract Law
Tort… those who injure others thr/violation of norms w/o contractual basis… there is
compensation
Contract- self-imposed obligation to another
Distinguish between tort & contract law
Tort laws are imposed by society. Contract are self-imposed.
Tort law: compensate victim for harm suffered as a result of someone else’s conduct.
Contract law: give non-breaching party what he would have had if contract not been breached.
CRIMINAL LAW
Bentham introduced principle of utility. Choose course of action that gives greatest pleasure or
happiness. Before Mill.
Requirements for a Crime:
Mens Rea (guilty mind)… criminal knows or should have known certain things are criminal and
chooses to do or fail to do
Actus Reus (guilty act)
Punishment for a Crime:
1) Must be an evil of some sort
2) Must be imposed for failure to measure up to some binding standard
3) Must be imposed by a personal agency who is authoritative
Legal Punishment:
An exercise of legal authroty: occurs when 1 who is authorized to do so imposed hard treatment
that condemns the criminal from violating an authoritative legal statute.
It must have a point because in so far it promotes good consequences for society to punish.
UTILITARIAN APPROACH:
If punishment can cause pain to the wrongdoer and didn’t do anything else, it was not justified.
However, the utilitarian approach determined several factors that justify criminal punishment.
Pain alone is NOT justified as a means of punishment.
General Deterrence- deter other members of society
Special Deterrence- deter the wrongdoer himself from future crimes
Incapacitation- punish to limit the opportunity to commit future crimes
Rehabilitation- Change the moral character of the criminal
Bentham classified some certain sorts of actions as being “unmeet for punishment”
Groundless- no action in need of deterrence
Inefficacious- punishment ineffective
Unprofitable- the costs to human happiness of implementing the rule would not be worth the
good that can be gotten rom it.
Needless- good effects could be brought about by other means.
Utiliitarian is a “forward-looking” approach. The rationale for criminalizing and for setting certain
punishments is that future happiness can be attained by having…. ??????
Utilitarian Approach & Innocence
Innocent people won’t be framed for crimes because this won’t promote the best overall
consequences
Utilitarian views imply that crimes that are not well deterred by punishment are not to be
punished.
RETRIBUTIVIST APPROACH
Justice is served when those who are guilty of crimes are punished for their crimes (“just desert”)
The guilty…. ???
Every moral wrong the forbidding of which falls within the aims of law is a fit object of
punishment
Retributivists need not claim that punishment is a mandatory response to every such morally
blameworthy act.
The purpose of society’s criminal justice system is to give the guilty what they deserve.
Does this theory equal revenge.
Retributivist approach is “Backward-looking” The aim of punishment is to respond to the
wrongful act itself.
Lex Talionis- “Eye for an Eye”
The severity of the punishment can be measure by the level of harm that it does nto the
punished, and the gravity of the criminal offense can be measured by the level of ohram that the
offense does to its victim.
Untenable.
What about crimes tht do no harm?
Harm vs. unfair advantage
Equal levels of harm with different levels of blameworthiness- intentional homicide vs.
involuntary manslaughter.
JUSTIFICATION & EXCUSE
No actus reus- No voluntary act (didn’t see person in street, self defense, a mistake—though
person was bothering someone when I went to help… thought I was doing something good)
No mens rea- Mistake of fact
Affirmative Defenses
Justification & Excuse
Justification- what was done was the right act or at least not a wrong act
Excuse- Even if it was a wrong act, the perpetrator is not to blame for performing it.
Necessity
Self-Defense (can only use like force)
UNIT 8
Tort law and making whole
Tort is a civil action, not criminal. Tort means “a wrong”.
Accidents causing harm set back the public good. If the common good is defined as economic
efficiency, …..
People in a position to prevent an accident should bear the load.
Ronald Coase… argues under ideal conditions, no loss of economic efficiency.
The Justice Account:
The point of tort law is to rectify an injustice that exists because of a party’s tortuous act.
Everyone has a moral right not to have their interests set back through the carelessness of
others. There is a corresponding guty of others not to harm others.
Stephen Perry says that this moral right and duty are two aspects of the same idea.
Duty to compensate is backward looking. Reason not to injure is forward looking.
Duty… legal duty is one imposed by law and is not necessarily the same as moral duty which
could be much broader.
Duty… one only owes a negative duty of care.
Law does NOT impose affirmative duties. They would go on and on with no clear ending.
Would be a problem with the common place of law… people would not know what is expected
of them.
Affirmtive duties can arise through ciertain special relationships.. such as engaging in a joint
dangerous venture, innkeeper and guest, property owner-invitee.
These special relationships can be defined with reference to social roles, social expectations,
individual expectations, or political or moral arguments.
BREACH…
An objectiveof reasonable person standard is used.
Oliver Wendell Homes supposed that it is for the general welfare that an objective standard is
used.
Arthur Ripstein argues …..
Judge Hand.. Judge Learned Hand expressed in a formula the breach of duty. B=P*L
The Probability of a case is whether the injury (L) and the Burden is … see PPt.
Cause:
Proximate cause: exists if the results of one’s actions were foreseeable.
Loss and Damages
. Concern is proof.
Need to make the victim whole.
Indifference Measure: one can measure such damages by estimating what one would accept in
money to be indifferent between his condition before and after the accident.
Strict Liability: can be compared to assumption of risk in that the choosing to engage in the
activity that is subject to strict liability you assume the risk of liability for harms resulting from
that activity. No matter what, you are on the hook.
UNIT 9
Legal Realism:
Judges arrive at decisions using personal, moral and political considerations.
The law fails to yield determinate decisions in cases.
Law students need to take a less idealistic view of the law.
The legal realists felt that the law should be flexible to promote the good of society.
Society was evolving and new legal rules are required in order for progress to continue.
(When laws change, they are doing so for the good of society (and to keep up with society))
Sources of law are not self-interpreting.
For matters on appeal there are no legal materials at hand to help reach a decision.
Critical Legal Studies.
Proponents of this theory called “Crits” believe that logic and structure attributed to the law grow
out of the power relationships of the society.
The law exists to support the interests of the party or class that forms it and is merely a
collection of beliefs and prejudices that legitimize the injustices of society.
The wealthy and the powerful use the law as an instrument for oppression in order to maintain
their place in hierarchy. (They use their power & money to get things they want).
Bosses/workers, judges/litigants, adults/children, whites/nonwhites/men/women.
People use the law to keep their power.
The basic idea of CLS is that the law is politics…..>>>>
CLS was officially started in 1977 at a conference at the U of Wisc Modison, but its roots extend
back to 1960 when many of its founding members participated in social activism surrounding the
Civil Rights movment & Vietnam war.
CLS Includes Several Subgroups: Marxism, Legal Feminsts, Critical Race Theorists
Marxism
The history of policial and social life is a history of class struggle
The economically dominant class has power of the subordinate class. (Structure of haves and
have nots). Haves don’t want to level the playing field.
One class dominating the other will be reflected in the law.
Those in economic power often have control over making and applying the law.
Lawmakers and judges are drwn from the elite class.
The legal order is unable to sustain norms too contrary to the prevailing economic relationships.
The economic class one belongs to will determine the concept of morality and values that one
adopts.
Laws that appear neutral and impartial on their face really aren’t.
Feminist Legal Theory:
Catharine A. MacKinnon is a leading figure in radical feminist criticism (sometimes called femcrit).
There are categories and sub &sub-sub categories.
Thr/out her career, Mac>>>>>>
“The law,” MacK wrote “sees and treats women the way men see and treat women.” Laws
reflect how men feel about women.
Critical Race Theory:
Critical reace theorists share a number of themes. Like CLS (Critical Legal Studies), CRT finds
major faults in liberalism and particular features of liberal jurisprudence that bear on race,
including affirmative action, neutrality, and “color blindness”.
Many CRT writes, for example, dispute that the Constitution is or ever can be “color-blind.” Can’t
be. They also assert that supposed breakthroughs in the area of racial rights by the Supreme
Court serve only to validate an unjust political system by creating the illusion that racial
inequalities are being ended when in fact they are not. (Constitution may never be color blind…
just a fasade)
Law as Politics:
First among the basic ideas that CLS scholars tend to share is the notion that law IS politics… in
other words, you can’t separate them.
Legal Reasoning:
According to the crits, there is no subcategory of practical reasoning called “Legal Reasoning.”
The kind of practical reasoning judges and lawyers do is no different from the kinda anyone
does when making a moral or political decision.
The legal system, according to CLS, supports the status quo, perpetuating the established
power relations of society.
The law does have logic and structure, but these grow out of the power relationships of society.
CLS therefore sees the law as a collection of beliefs and prejudices that covers the injustieces
of society with a mask of legitimacy.
Law is an instrument for oppression used by the wealthy and the powerful to maintain their
place in the hierarchy.
The Law:
CLS theorists also share the related view that the law is indeterminate. They have shown that
using standard legal arguments, it is possible reach sharply contrasting conclusions in individual
cases. (use laws to oppress & perpetrate injustices).
(give case to 3 judges, get 3 responses, perspectives, influences, etc)
The conclusions reached in any case will have more to do with the social context in hich they
are argued and decided than with an overarching scheme of legal reasoning.
Final Paper… analyze how each feel about segregation related to our course material.
Don’t have to make judgements.. can just give overall why one felt a way and what where his
influences. Are their similarities or differences how each saw things. Relate or
compare/contrast based on Mills, etc, how they feel about paternalism. What does each say
about autonomy, etc.