Course Syllabus

PHIL 155.01. Philosophy of Law

Class Meetings

Mendocino 1015, MW 1:30-2:45pm

Instructor

Kyle Swan | Department of Philosophy | California State University, Sacramento | Mendocino Hall 3030 | 6000 J Street | Sacramento, CA 95819-6033 | (916) 278-2474 | kyle.swan@csus.edu

Office hours

I will be available for office hours on Mondays and Wednesdays 12-1:20pm in Mendocino 3030, Zoom, and by appointment.

Reasonable Accommodation

If your circumstances require accommodation or assistance in meeting the expectations of this course, please let me know as soon as possible. You may need to provide documentation to the University office of SSWD (in accordance with the University policy outlined here: https://www.csus.edu/student-affairs/centers-programs/services-students-disabilities/).

Description

From the catalogue:

Theories of the nature of law, e.g., natural law, legal positivism, legal realism. Selected controversies in contemporary law will also be studied, such as the justification of punishment, the legislation of morality, judicial activism vs. judicial restraint.

From Harold Berman:

“A child says, ‘It’s my toy.’ That’s property law. A child says, ‘You promised me.’ That’s contract law. A child says, ‘He hit me first.’ That’s criminal law. A child says, ‘Daddy said I could.’ That’s constitutional law.”

More!

This course should leave you with an appreciation for the extent to which issues in philosophy -- primarily moral and political philosophy, but also the metaphysics of causation and agency -- map onto issues in the law. We will focus on three broad issues:

1. What is it to cause harm and how should we (in those cases when we should) ascribe moral and legal responsibility when someone is harmed? How should we attribute responsibility for the production of certain states of affairs in the world to specific agents and their acts (or omissions)? How should we determine what share of harm to apportion to an individual cause of it? How should we determine whether one act or agent contributes more than another to some outcome? What normative considerations, if any, should we employ when we make judgments concerning who is the (or a) cause of what?
2. We tend to associate legal authority and enforcement as services that governments provide in order to avoid public goods problems. But that hasn’t always and everywhere been true (and still isn’t!). In polycentric and embedded legal orders the state doesn’t have a monopoly in legal services. There are other, non-state service providers. Have they worked? Well? How? This will lead to an analysis of the efficiency of different kinds of legal orders and regimes.
3. There is a growing sense among many that our criminal justice system is, well..., unjust and that this injustice is pervasive. Unjust actors enforce unjust laws using unjust methods against the backdrop of unjust institutions. Are these claims, er…, justified? What should we do about it? This will lead to an analysis of legal reasoning and the relations among morality, the law, and the US Constitution.

Course Objectives and Outcomes

By the conclusion of this course, it should be true that students (1) understand the metaphysical, moral and political issues that affect legal theory and are able to (2) apply this understanding to make sense of existing social practices and institutions (3) analyze current problems and controversies and (4) evaluate proposed solutions to them. You will need to give evidence of your ability to understand, apply, analyze and evaluate in your writing and contributions to class discussions.

Text

There is no text to purchase. All required readings are pieces available online and/or .pdf documents in Canvas. The schedule is below.

Class procedures and conduct

You must come to class each scheduled meeting prepared to discuss the assigned readings in an intelligent and informed way. This requires you to have read and thought about all materials assigned for that meeting. Moreover, you should expect to be required at each scheduled class meeting to put these preparations on display as an active participant in the lectures, discussions, activities, contests and games. Please avoid disrupting class meetings and other ways of being rude. This means that you shouldn’t use electronic devices, carry on private conversations with people around you, sleep, read, arrive late or leave early.

Assessment

Please do not cheat. If you do then at a minimum you will be marked with a zero on the assignment. Multiple and/or flagrant violations will lead to me assigning a failing grade for the course and initiating disciplinary action through the Office of Student Affairs. Familiarize yourselves with the University’s Academic Honesty Policies and Procedures document (here: https://www.csus.edu/student-affairs/student-conduct/academic-dishonesty.html).

Your final grade is determined by how many total points you earn, with these grade thresholds: 93 points=A, 90 points=A-, 87 points=B+, 83 points=B, 80 points=B-, 77 points=C+, 73 points=C, 70 points=C-, 67 points=D+, 63 points=D, 60 points=D-, and F = all scores less than 60 points.

There are these ways of earning points:

1. Be an active and thoughtful participant in class meetings. (30 possible points)

Someone who earns all these points would:

• Demonstrate familiarity with the advanced preparation materials;
• Offer original and thoughtful ideas and perspectives;
• Connect with ideas from other classes or something in the broader community;
• Share relevant experiences;
• Pose good questions; and
• Take stands and defend them with references to readings and experiences.

I will assess this in a variety of ways in class throughout the semester. I may ask for a summary and/or response related to the assigned reading or some other activity or “thought question” that requires you to engage with the course material. These aren’t announced ahead of time. You’re either in class to earn the point, or you aren’t.

2. Write 4 short (about 750 words) analytical essay assignments (10 possible each = 40).

The following resources will be useful:

https://www.csus.edu/college/arts-letters/philosophy/_internal/g5-how-to-analyze-a-philosophical-essay.pdf

https://www.csus.edu/college/arts-letters/philosophy/analyze-philosophy.html

3.   Answer questions on the scheduled final exam based primarily on readings and classroom lectures/discussions. (30 possible points)

Exam is TBA

Schedule (see the reading list in Canvas):

DATE

TOPIC/ACTIVITY

READING/ASSIGNMENT

 

Aug 29	Course overview	Syllabus
	Part I: On causation and responsibility
31	The general problem of determining responsibility	Hart & Honore, “Causation and Responsibility”
Sept 5	Continued	Feinberg, “Problematic Responsibility in Law and Morals” Palsgraf v. The Long Island Railroad (1928) – the exploding package
7	Intention, foresight and results (I)	Judith Thomson, “The Decline of Cause”
12	Continued	Summers v. Tice (1948) Sindell v. Abbott Labs (1980)
14	Intention, foresight and results (II)	Parker, “Blame, Punishment and the Role of Result”
19	Continued	US v. Oviedo (1976) – drug bust US v. Carothers (1997) – another drug bust People v. Dlugash (1977) – attempted murder
21	Actions, omissions and results	Weinrib, “The Case for a Duty to Rescue”
26	Continued	Yania v. Bigan (1959) Farwell v. Keaton (1976) McFall v. Shimp (1978) Hartzler v. City of San Jose (1975)
	Part II: On the efficient delivery of legal services
28	Private and public goods	Anthony de Jasay, State of nature coordination
Oct 3	Continued	None
5	Law and states, dehomoginized	John Hasnas, The depoliticization of law
10	Continued	None
12	Private adjudication and enforcement	David Friedman, Enforcing rules
17	Continued	William Landes and Richard Posner, “Adjudication as a private good” (Part I)
19	History and case-studies	David Friedman, “Private creation and enforcement of law: a historical case [Saga-period Iceland]”
24	Continued	Terry Anderson and PJ Hill, The not so wild, wild west
26	Continued	Robert Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County
	Part III: On the relations of law and morals
31	Natural law?	Aquinas, Summa Theologica, Prima Secundae, Q. 95-96
Nov 2	Civil disobedience?	Martin Luther King, Letter from a Birmingham jail Jason Brennan, When may we kill government agents: in defense of moral parity
7	Continued
9	The Rule of Law?	John Hasnas, The myth of the rule of law (sections I-X)
14	Continued
16	Abortion	Dobbs v. Jackson Women’s Health Organization (2022)
21	Continued
23	Guns	District of Columbia v. Heller (2008)
28	Continued	NY State Rifle & Pistol Assoc. v. Bruen (2022)
30	Nullification?	Michael Huemer, “The duty to disregard the law”
5	Continued	Radiolab Podcast: “Null and Void”
7	“Cushion” day/Final exam review	None
TBA	Final Exam