Texas State University-San Marcos
Department of Criminal Justice
CJ 7310: The Philosophy of Law, Justice & Social Control
Spring 2012
Texas State University’s TRACS Platform: Syllabi, class notes, and other material will be
placed on TXST’s TRACS home page.
Course Description & Objectives
Generally, an undergraduate Introduction to Criminal Justice course introduces the student to the
nomenclature and organizational realities of the criminal justice system. A master’s level course
usually adds a critical analysis approach so that the student becomes familiar with critiques of
the system as well as coverage of methodological and policy-related issues. This doctoral level
course raises the level of abstraction to questions regarding the essence of law itself. What is
law? How does law develop? What are the justifications for societal control? Why should we
obey the law? Where do rights come from?
Students will develop the ability to:
1. Understand the various approaches to understanding law, including legal positivism, natural
law, and legal realism.
2. Be familiar with the various justifications and suggested limits of law as a tool of social
control and the relationship between law and rights.
3. Understand the debate regarding judicial activism (interpretationism) versus constructionism.
4. Understand the issues regarding culpability and legal responsibility.
5. Be able to utilize the above information in analyzing the application of law to current issues
involving privacy, free speech, and other topical areas that will be identified from the current
Supreme Court docket.
6. Be familiar with how to analyze cases and identify legal issues.
Required Texts
Readings in the Philosophy of Law, 2d ed., Keith Culver. (You must have this edition.)
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court,
James MacGregor Burns
Various articles, cases, and handouts will also be required as indicated and as will be assigned
periodically in class. They may be posted on TRACS, they may be available via hyperlink, you
may need to obtain cases through LEXIS-NEXIS or some other search engine, or they may be
Xeroxed handouts.
Class Format, Attendance and Participation
The class is designed as a seminar and each student must be an active participant in every class.
Each student is responsible for each reading assigned for that class period.
Academic-Scholastic Dishonesty and Disabilities Statement
The department generally follows the university dishonesty policies. Please be aware of them.
In accordance with university policy and federal law, reasonable and appropriate
accommodations will be made for qualified students with disabilities. Students with disabilities
are asked to contact the Office of Disabilities Services who will then coordinate any necessary
accommodations.
Grading
Participation:
Attendance + participation + presentation ……………………………………. 100 (25%)
Attendance: after the first absence, all others will detract from the student’s grade
Participation: any time the student is unprepared will count as an absence; being unprepared
means not being able to talk knowledgeably about the readings assigned for that class period
Presentation: seminar papers will be presented. Grading will be based on comprehensiveness
and clarity.
Seminar Paper: ……………………………………………………………… 100 (25%)
20 pages, topic to be assigned by instructor. Format follows APA style as explained via OWL
website: http://owl.english.purdue.edu/owl/resource/560/05/. ALL LATE PAPERS WILL BE
PENALIZED 10 POINTS PER DAY.
Mid-Term ……………………………………………………………………… 100 (25%)
The test will be essay and cover the broad range of material in the first half of the course.
Grading will be based on content and writing ability.
Final
……………………………………………………………………… 100 (25%)
The final will be essay and comprehensive, although with a greater emphasis on material in the
second half of the course.
Grading Scale
Grades will be assigned according to the following percentages:
A
100%-90%
B
89%-80%
C
79%-70%
Tentative Course Outline
Week 1, Jan 18: Introduction to course and review syllabi; Diagnostic exam and, as time
allows, individual meeting with instructor to identify weak areas of knowledge.
Week 2, Jan 25: Natural Law and Positivism
Discussion about the definition, origins, and major theorists and writers in the area of
natural law and positivism.
Required:
Culver: 1, 2, 3
“The Nature of Law”: http://plato.stanford.edu/entries/lawphil-nature/
“Legal Positivism”: http://plato.stanford.edu/entries/legal-positivism/
Natural Law: http://www.iep.utm.edu/n/natlaw.htm.
Shapiro, S., The Hart-Dworkin Debate: A Short Guide for the Perplexed. (PDF on TRACS.)
(It may be helpful for you to read the summary articles first.)
Recommended
“Naturalism in Legal Philosophy”: http://plato.stanford.edu/entries/lawphil-naturalism/.
Philosophical Problems in the Law, D. Adams
The Nature and Sources of Law, John Gray
On the Philosophy of Law, David Reidy
Law and Philosophy: An Introduction with Readings, Thomas Simon
The Morality of Law, Lon Fuller
The Concept of Law, H.L.A. Hart
Law, Liberty and Morality, H.L.A. Hart
The Morality of the Criminal Law, H.L.A. Hart
Law’s Empire, Ronald Dworkin
Natural Law and Natural Rights, John Finnis
Natural Law and Justice, Lloyd Weinreb
Week 3, Feb 1: Legal Realism and Critical Legal Theory
Discussion about the definition, origins, and major theorists and writers in the area of legal
realism and critical theory.
Culver: 4, 5
Philosophy of Law (mainly Ch.3 on Critical Legal Theory although you can review the rest of
the material as well as an overview of what we’ve covered thus far): Available through:
http://www.iep.utm.edu/l/law-phil.htm.
Recommended
A Guide to Critical Legal Studies, Mark Kelman,
Critical Jurisprudence: The Political Philosophy of Justice, Costas Douzinas & Adam Gearey,
The Critical Legal Studies Movement, Roberto Unger
Critical Legal Studies : a Guide to the Literature, Richard Bauman
Jurisprudence, Classical and Contemporary: From Natural Law to Postmodernism, N. Levit, R.
Delgado, J. Stefancic, and R. Hayman
Justice Blind: Ideals and Realities of American Criminal Justice, Matthew Robinson
Law as Culture, Lawrence Rosen
Week 4, Feb 8: The Limits of Law
Discussion about the rationales for law (harm principle, morality) and the limits of the
reach of law regarding individuals’ behaviors.
Culver: Section II
Recommended
On Liberty, John Stuart Mill
Taking Rights Seriously, Ronald Dworkin
Freedom and the Court: Civil Rights and Civil Liberties, H. Abraham and B. Perry
History of Criminal Justice, H. Johnson, N. Wolfe, M. Jones
Week 5, Feb 15: Rights
Discussion about the origin of rights (natural v. positivist).
Culver: none
Cases:
Meachum v. Fano 427 U. S. 215 (1976)
Lawrence v. Texas, 539 U.S. 558 (2003),
Human Rights. Available at: http://www.iep.utm.edu/hum-rts/#H1
Recommended
Rights from Wrongs: A Secular Theory of the Origins of Rights, Alan Dershowitz
Week 6, Feb 22: International Law, International Criminal Court (Universal Human
Rights) & Torture
This discussion continues the exploration of where rights come from, adding to the
discussion the attempts internationally to identify universal rights. This discussion is then
applied to the specific topic of torture.
Culver: Section IV
Cases:
Boumedienne v. Bush, 553 U.S. 723 (2008)
Human Rights: http://plato.stanford.edu/entries/rights-human/.
UN Convention on Torture (TRACS)
When is Torture Right? (torture.pdf in TRACS)
Recommended
International Law and Society: Empirical Approaches to Human Rights, Laura Dickinson (ed)
Theoretical and Empirical Studies of Rights, Laura Nielsen (ed)
Bill of Rights, Mark Tushnet
Week 7, Feb 29: Catch up, review for mid term
Week 8, March 7h: Mid-Term
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Week 9, March 14
Spring Break!!!!!!!!!!!!!!!!!!!
Week 10, March 21, Judicial Interpretationism v. Constructionism
This discussion concerns the continuing debate as to how the Constitution should be
applied (strictly or interpreted as a living document) when evaluating current legal
controversies. Examples from current debates will be used.
Burns, Packing the Court (entire book so you might want to start reading earlier)
Cases:
Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803)
McDonald v. City of Chicago, 561 U.S. 3025, 130 S.Ct. 3020 (2010),
District of Columbia v. Heller and Originalism, Lawrence Solum (available through:
http://papers.ssrn.com/abstract=1241655.)
The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future
of Unenumberated Rights, Lawrence Solum (available through
http://papers.ssrn.com/abstract=933076.)
Incorporation and Originalist Theory, Lawrence Solum (available through
http://papers.ssrn.com/abstract=1346453.)
Recommended
Bench Press: The Collision of Courts, Politics, and the Media, K. Bybee
On Reading the Constitution, Laurence Tribe and Michael Dorf
Week 11, March 28: Issues in Constitutional Rights: Privacy & the First Amendment
Discussion on selected issues in constitutional rights, i.e. privacy, freedom of speech,
religion, gun possession, health care.
Sexual Privacy after Lawrence; Jonathan Black, 10 Geo J. Gender & Law 297 (2009) (pdf in
TRACS)
Millian Principles, Freedom of Expression, and Hate Speech, David Brink: (Available through:
http://philosophy.ucsd.edu/faculty/dbrink/pdf%20articles/Millian%20Principles,%20Freedom%2
0of%20Expression,%20and%20Hate%20Speech.pdf. )
Cases:
Griswold v. Connecticut, 381 U.S. 479 (1965)
Virginia v. Black, 538 U.S. 343 (2003)
Texas v. Johnson, 491 U.S. 397 (1989) (available through:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=491&invol=397.
Brown v. Entertainment Merchants Assoc, June 6, 2011
Recommended
Same Sex Marriage and the Constitution, Evan Gerstmann
Privacy at Risk: The New Government Surveillance and the Fourth Amendment, Crhistopher
Slobogin.
Privacy in Peril. James Rule
The Right to Privacy. Caroline Kennedy & Ellen Aldeman
Free Speech: A Short Introduction, Nigel Warburten
Democracy & the Problems of Free Speech, Cass Sunstein
Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War o Terrorism,
Geoffrey Stone
Free Speech and Human Dignity, Stephen Heyman
Week 12, April 4: Legal Culpability
Discussion applies issues of responsibility to criminal culpability (insanity, youth, culture,
other defenses/excuses).
Culver: Section III.
Can Culture Excuse Crime? Tunick (article, pdf in TRACS)
Ch. 3 Capacity and Defenses (pdf in TRACS)
Cases:
Clark v. Arizona, 548 US 735 (2006)
Graham v. Florida, 560 U.S. __ (2010)
Adolescent Brain Development & Legal Culpability. Available through:
http://www.barry.edu/JJC/PDF/resources-juvenile-practice_infoadolescent_brain_development%5B1%5D.pdf.
Recommended
Abuse Excuse, Alan Dershowitz
Crime & Culpability: A Theory of Criminal Law, L. Alexander, K. Ferzan & S. Morse
Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? James Q. Wilson &
David Q. Wilson
Crime and Punishment: Philosophical Explorations, M. Gorr and S. Harwood
Week 13, April 11:
PAPERS DUE!!!!
Review of Supreme Court docket 2011/2012.
Week 14, April 18:
Papers presented.
Week 15, April 25:
Papers presented.
Final: TBA