PHL 271S: Law and Morality
David Dyzenhaus
Office Hours: 2.00-4.00 on Mondays or by appointment.
Contact: david.dyzenhaus@utoronto.ca
Office: 427, Jackman Humanities Building, 170 St George Street
Course Syllabus
In this course, we will first examine the question ‘What is law?’ As we will see, answers to
that question are complicated by other questions: Is there a relationship between law and
morality such that law is always to some extent moral? What is the role of moral principles in
adjudication? Should judges rely on controversial claims of moral principle in deciding their
cases?
Second, we will examine questions about the proper use of the law in a liberal state: Does
the law reflect the values of the powerful even in such a state? Should the state be limited to
using the law to protect individuals from harming each other, or is it legitimate to use the law
to protect values that people find very important, or may the state use the law to promote
equality?
In the last part of the course, we will discuss issues raised in both the earlier parts though a
focus on the constitutionality of the legal regulation of sex trade work, an issue currently
before the Supreme Court of Canada in Bedford v. Canada and which will be decided this
December. The lawyers for the workers have argued that the provisions of the Criminal
Code that make criminal various activities –keeping a brothel or ‘common bawdy house’,
living of the proceeds of sex work, soliciting customers in public—‘deprive sex workers of
their right to liberty under s.7 of the Charter of Rights and Freedoms by exposing them to the
risk of imprisonment. These provisions also deprive sex trade workers of their right to
security under s.7 of the Charter of Rights and Freedoms by creating legal prohibitions on the
necessary conditions required for this type of work to be conducted in a safe and secure
setting, thus exposing the sex worker to an increased risk of physical or psychological harm.’
These arguments succeeded in the Ontario Superior Court and were partially successful in
the Ontario Court of Appeal.
Required Readings
Most of the readings for the course are contained in Law and Morality: Readings in Legal
Philosophy, 3rd edition, ed. Dyzenhaus, Moreau, Ripstein. It is available at the University of
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Toronto Bookstore. You must have this edition as much of the material we will use is
not in the earlier editions.
The rest of the materials (for Part 3) will be posted to the Blackboard site.
Evaluation
1. In-class test on January 28 on Part 1—20%. One and a half hours.
2. In-class essay on March 4 on Part 2—30%. Two hours.
3. Essay (2400 words maximum) on Part 3 due before 4.00 on April 4—40%. The essay
should be left in the Dropbox for the course in the Philosophy Department. Students who
want the essay returned to them with comments must submit their essay in an unsealed
stamped, addressed envelope. Once the papers have been graded, those that came in
envelopes will be mailed back to you. In-class evaluations will be returned in the tutorials.
4. The remaining 10% will be awarded for tutorial attendance and participation.
Tutorials
Starting in the second week, each of you has a weekly tutorial with one of our tutorial leaders.
There will not be tutorials during the weeks in which in-class evaluations are held, or in the
week of March 10. There will be eight tutorials in all. You will get 1% per tutorial for
attending. The remaining 2% will be awarded for participation over the course of the term.
You must enroll yourself as soon as possible in a tutorial. You should do this through
ROSI.
Policies
1. Missed assignments: If you miss the in-class evaluations on January 28 and March 4,
you must e-mail me as soon as possible. You may do a make-up test or essay if you
can provide a doctor’s note. These will be held approximately two weeks after the
original date and you will be informed of the date, time, and place.
2. Accessibility Services: If you think you need any kind of accommodation for a
disability you should contact Accessibility Services as soon as possible
(disability.services@utoronto.ca). Please do not wait until the end of term to do this.
3. In general, if you are experiencing problems dealing with your courses, and so are
failing to meet your commitments, you should not delay talking to your college
registrar as soon as possible. The registrar can then contact me and your other
instructors to discuss how best to help you. In my experience, the longer the delay,
the more difficult things become for the student.
4. Please use e-mail to contact me only, so not the tutorial instructors. Such contact
should be limited to administrative issues. The tutorials and the lectures are the
venues for raising questions about substance.
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5. You must in all your work avoid plagiarism or academic dishonesty including:
copying or paraphrasing extensive passages from other sources without
acknowledgement; submitting a term paper written in whole or in part by
someone else; submitting a term paper for credit in more than one course,
without the permission of the instructor; copying the answers of another
student in any test, examination or take home assignments. In any of these
cases appropriate penalties will be applied. It is the policy of the Department
and of the Faculty of Arts and Sciences that ALL cases of plagiarism are
subject to disciplinary measures at either the Department or Faculty level.
Individual faculty members do not have the discretion to waive these
measures.
Course Outline
Part 1: Positivism and the Separation of Law and Morals
January 7
Riggs v Palmer, 140-141
HLA Hart, ‘Positivism and the Separation of Law and Morals’, 28-42.
January 14
Ronald Dworkin, ‘Law’s Ambitions for Itself’, 108-122,
January 21
Revision of Hart/Dworkin
Start of Part 2: Law, Liberty and the Liberal State
Catherine A. MacKinnon, ‘The Liberal State’, 257-270.
January 28
In-class test on Part 1, two hours
February 4
John Stuart Mill, On Liberty, 306-326.
February 11
Lord Devlin, ‘The Enforcement of Morality’, 369-392.
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Ronald Dworkin, ‘Liberty and Moralism’, 393-401.
February 18 Reading Week
February 25
R. v. Malmo-Levine; R. v. Caine, 326-336
Halpern v. Canada, 453-472
Revision of Part 2.
March 4
In-class essay on Part 2, two hours.
March 11, 18, 25, materials on the legal regulation of sex work, the legal and moral issues
raised by the Canadian Criminal Code, section 212. (1):
Every one who
(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with
another person, whether in or out of Canada,
(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the
purpose of illicit sexual intercourse or prostitution,
(i) applies or administers to a person or causes that person to take any drug, intoxicating
liquor, matter or thing with intent to stupefy or overpower that person in order thereby to
enable any person to have illicit sexual intercourse with that person, or
(j) lives wholly or in part on the avails of prostitution of another person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten
years.
I will finalize the materials for this part of the course in mid-February and post them to the
Blackboard site. In March, I will give you the essay topic and detailed instructions for writing
the essay.
April 1 Revision
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