PHL 271S: Law and Morality

PHL 271S: Law and Morality

David Dyzenhaus

Office Hours: 2.00-4.00 on Mondays or by appointment.

Contact:

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. Canadaand which will be decidedthis December. The lawyers for the workers have argued that the provisions of the Criminal Codethat 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 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 28on 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 (). 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.
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.

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

1