CJ 7310: The Philosophy of Law, Justice & Social Control
Fall 2010
TexasStateUniversity’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
Philosophy of Law, 8th Ed., Joel Feinberg and Jules Coleman. (You must have this edition.)
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. There may be some class sessions run through a website at some point during the semester. 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 as drafts and then as a final product. Grading will be based on comprehensiveness and clarity.
Seminar Paper: ……………………………………………………………… 100 (25%)
20 pages, topic to be assigned by instructor. Format follows Law & Society Review style sheet; Times New Roman and 12 point font. ALL LATE PAPERS WILL BE PENALIZED 25 POINTS PERDAY. All papers will be submitted to Turnitin.com, a plagiarism checking website.
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:
A100%-90%B89%-80%
C79%-70%
Tentative Course Outline
Week 1, August 26: Introduction to course and review syllabi; Diagnostic exam and, as time allows, individual meeting with instructor to identify weak areas of knowledge.
Week 2, September 2nd: Natural Law and Positivism
Discussion about the definition, origins, and major theorists and writers in the area of natural law and positivism.
Required:
F&C: (Note, first # refers to chapter, second #(s) refers to selections.
1: 1,2,3,4,5
2: 6,7,8,9
“The Nature of Law”:
“Legal Positivism”:
Natural Law:
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”:
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, September 9th: 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.
F&C:
3: 10, 11, 13
5: 16, 17
Philosophy of Law: Available through:
Legal Interpretation, Objectivity, and Morality, David Brink (chapter in Brian Leiter’s Objectivity in Law and Morals) Available through:
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, September 16th:The Limits of Law
Discussion about the rationales for law (harm principle, morality) and the limits of the reach of law regarding individuals’ behaviors.
F&C:
7: 20, 21, 22
8: 23, 24, 25
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, September 23rd:Rights
Discussion about the origin of rights (natural v. positivist).
F&C:
10: 32, 33, 34
Human Rights. Available at:
Recommended
Rights from Wrongs: A Secular Theory of the Origins of Rights, Alan Dershowitz
Week 6, September 30th: 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.
F&C:
6: 18, 19
13: 45, 46, 47, 48, 49
Human Rights:
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, October 7th: 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.
F&C:
4: 13, 14, 15
Marbury v. Madison5 U.S. (Cranch 1) 137 (1803)
District of Columbia v. Heller and Originalism, Lawrence Solum (available through:
The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumberated Rights, Lawrence Solum (available through
Incorporation and Originalist Theory, Lawrence Solum (available through
Recommended
Bench Press: The Collision of Courts, Politics, and the Media, K. Bybee
On Reading the Constitution, Laurence Tribe and Michael Dorf
Week 8, October 14h: Mid-Term
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Week 9, October 21st,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.
F&C:
11: 35, 36, 37, 38, 39
12: 40, 41, 42, 43, 44
Virginia v. Black,538 U.S. 343 (2003)
Texas v. Johnson, 491 U.S. 397 (1989) (available through:.
Millian Principles, Freedom of Expression, and Hate Speech, David Brink: (Available through: )
Griswold v. Connecticut,381 U.S. 479 (1965)
Sexual Privacy After Lawrence v. Texas, Jonathan Black, 10 Geo J. Gender & Law 297 (2009) (Available through library website, periodicals).
Salazar v. Buono, (Supreme Court, 08-472, 4/28/2010)
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 9, October 21st:Responsibility and Causation in the Law
Discussion concerns issues of legal causation and responsibility. How is causation determined? When are you responsible for the natural consequences of your actions?
F & C:
14: 50, 51, 52
Recommended
Civil Liability in Criminal Justice, Darrell Ross
Week 10, October 28th:Legal Culpability
Discussion applies issues of responsibility to criminal culpability.
F&C:
15: 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65
Kansas v. Crane, 534 U.S. 407 (2002)
Clark v. Arizona, 548 US 735 (2006)
Adolescent Brain Development & Legal Culpability. Available through:
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 11, November 4th:
Review of Supreme Court docket 2009/2010.
Berghuis v. Thompkins, 56 U.S. __ (2010) (08-1470)
Maryland v. Shatzer, 559 U.S. __ (2010) (08-680)
Graham v. Florida, 560 U.S. __ (2010) (08-7412
United States v. Comstock, 560 U.S. __ (2010) (08-1224)
Kiyemba v. Obama, 559 U.S. __ (2010) (08-1234)
United States v. Stevens, 559 U.S. __ (2010) (08-769)
Week 12, November 11th:
Presentation of Research Paper Drafts – class will provide feedback.
Week 13, November 18th:
ASC Conference. Diagnositic Exam Retake. Complete your papers – due December 2.
Week 14, November 25th:
Thanksgiving
Week 15, December 2st: Last Class Day
Paper presentations.
Final: TBA