Philosophy 3Q3 Essay Topics
Fall, 2010
Due: November 25, 2010
1. Discuss how Hart might respond to Dworkin’s theory that judges in hard cases should decide in accordance with the soundest (best) interpretive theory of the settled law. In so doing, take into account what Hart has to say about Dworkin’s theory in the Postscript to the 2nd edition of Hart’s The Concept of Law.
2. Develop a response to Dworkin’s claim that Hart’s views concerning the necessity and desirability of judicial discretion are unacceptable.
3. Defend Ronald Dworkin’s theory of law against the critique offered by John Mackie in his article “The Third Theory of the Law”Philosophy and Public Affairs, Vol. 7, # 1, 1977 (posted on course web site).
5. Critically assess Dworkin’s theory that interpreting the creative efforts of a artists, musicians, authors – and most importantly for our purposes, judges – involves attempting to put the objects of those creative efforts in their “best light.” Is this how interpretation proceeds, or ought to proceed, in general? Is this how itproceeds, or ought to proceed, in legal cases?
6. Either defend or criticize Inclusive Legal Positivism in light of Joseph Raz’s claim that the theory is inconsistent with the “authority” that law necessarily claims for itself. For Raz’s view see his article “Authority, Law and Morality” in The Monist, Vol. 68, # 3, 1985 (on course web page). For an Inclusive Positivist’s view, see Waluchow, “The Weak Social Thesis,”Oxford Journal of Legal Studies, Vol. 9, #1, 1989 (on course web page) or Inclusive Legal Positivism (Oxford: Clarendon Press, 1994). See also, Waluchow’s article on Inclusive and Exclusive Legal Positivism (also posted oncourse web site).
7. Critically evaluate Michael Giudice’s critique of Waluchow’s account of Charter challenges. For Giudice’s critique, see his “Unconstitutionality, Invalidity and Charter Challenges” Canadian Journal of Law and Jurisprudence, Volume XV, no. 1, January, 2002. (in Mills Library)
8. Critically assess Jeremy Waldron’s claim that Charters and judicial review, because they compromise “the right of rights,” are inconsistent with the fundamental commitments of democracy. For discussion of this topic see Aileen Kavanagh, “Participation and Judicial Review: A Reply to Jeremy Waldron”, Law and Philosophy 22: 451–486, 2003 (on course web site). If you think Waldron is essentially correct in his views on this matter, defend his theory against Kavanagh’s.
9. According to Jeremy Waldron, Charters of Rights arbitrarily limit our ability to respond adequately to changing social circumstances and to changing views about rights. Assess Waldron’s reasons for making this claim. If you believe that he is wrong, outline how, in your view, Charters can best be understood and employed so as to avoid such limitations. If you believe he is essentially correct, respond to Waluchow’s counter-arguments in 'Constitutions as Living Trees: An Idiot Defends', Canadian Journal of Law and Jurisprudence (Spring, 2005)
(on course web page)
10. Defend or offer a critique of the theory of constitutional interpretation commonly called “originalism.” Focus on the articles by Mitch Berman (opposed to Originalism) and Jeff Goldsworthy (in favour of Originalism) both of which are posted on the course web site.
11. Taking into account the articles mentioned in question 10. above, critically analyze the theory of interpretation the Supreme Court of Canada relies on in Big M Drug Mart.
12. Critically discuss the competing views on the nature and legitimacy of constitutional Charters of Rights (applied and enforced via judicial review) proposed by Jeremy Waldron and W. Waluchow. Who do you think has the better case, and why?
13. Any other topic approved in advance by W. Waluchow.
NOTE: Limit 2500 words