SEMINAR IN JURISPRUDENCE: POLITICAL SCIENCE 4123
Professor: Richard Gambitta, Ph.D. Phones: 1604 Campus, 458-5608
Email: Downtown Campus: 458-2991
Website: http://colfa.utsa.edu/users/rgambitta/ Class: T & TH 5:30 @ HSS 2.02.06
ILPA Website: http://www.utsa.edu/ilpa/Curriculum.html WebCT site to be announced
Offices: MS 4.02.40, 1604 Campus; or BV 4.356 Downtown Campus, Institute of Law and Public Affairs
Office Hours: T & Th 2-3 at 1604 or 2-4 W at Downtown, or anytime by appointment.
TENTATIVE SYLLABUS
(This syllabus is tentative because I shall have to rethink this course and the readings on a continuing basis since the course was designed for 25, yet 50 students were allowed to enroll because of a bureaucratic lifting of the ceiling on enrollments. This was designed as a senior seminar.)
Welcome to our Seminar in Jurisprudence. May this course become an intellectual odyssey in search of law and prudence, full of positive effort, and both earned and reaped rewards-- a magical, mystical tour full of reflection, insight, intellectual expansion, challenge, enlightenment, and empowerment of self and community. This class is for seniors. I expect the highest performance from students in this seminar, performances appropriate for seniors with a solid background about to graduate. You should hold me to high standards, also. In this seminar for seniors, let us journey together and hope that society benefits in future years from this time in which we shall study, exchange ideas and resources, and learn from each other the literature and observations about the law and the world.
The Seminar in Jurisprudence explores the nature of law through analytical, empirical, and normative inquiry. Let us begin, first day, by considering the following as “rough and ready” orientations to different types of inquiry:
1. Analytical statements are those in which the statement’s predicate adds "nothing beyond its subject". These statements attempt to define the concept of the subject about which we speak. For example: "Rain is water descending to earth in drops condensed from moisture in the atmosphere." We shall attempt to define the nature and meaning of the term law.
2. Empirical statements, on the other hand, make contentions about the subject based on observed facts about the world, upon experiential information. Empirical statements are factual in orientation and their predicates add information to and make contentions about the subject in operation in the world. For example: "Outside, it is raining, presently." Such statements may be true or false. Two people could turn to the "facts" and come to some agreement on whether the statement is true or false based on those facts. (Students may begin to ask: how would one prove the statement is true or false?)
3. Normative statements, on the "third hand," explore the realm of the good and the bad, or whether the action is right or wrong. For example, "It is good that it is raining now." This is a normative statement. Notice that one may agree on the facts of a matter (that it is raining now) but not agree on whether it is good or bad. In a sense, normative statements may not be resolved by agreement on the facts. To a farmer it is good that it is raining; to a family on a picnic it is bad. We will explore the law through many types of inquiry including these three types. As we begin our readings, ask what types of inquiry or statements are these, or are alleged by the authors to be.
This seminar explores the law by delving into its nature, origins, contents, substance, operation, and impact. We will utilize books from traditional and non-traditional theorists, original documents, and original and secondary sources. We shall use the Internet to supply both original and secondary source readings. A diverse set of readings help focus our discussions. To make the seminar most meaningful, we shall have to read many materials that are on the Internet, a few on reserve, some that are distributed among us in class, and many recommended to each other to secure on our own. An attempt is made to look to theory and practice, and to explore the relationship between the two. During the early part of the semester, we will examine diverse schools of thought which may include legal positivism, naturalism, realism, and feminism; critical legal theory, post modernism and structuralism, legal Marxism, anarchism and nihilism. We shall read each other's works, which means that the professor shall have to produce, also. We shall contribute, or we shall not succeed in this course. In a fundamental sense, this is the bottom-line requirement of the course.
The professor will provide students with various written materials in class. He shall ask a series of basic questions that students will answer during the session following questions. This will keep us on task, motivate the student to think broadly prior to class, later in class, research to answer questions, draft responses to questions, then answer questions in class, move to additional questions related to these suggested answers, improve those answers, move beyond those answers, and find adequacy and inadequacy in those answers.
Seminar Readings for a Beginning. Students should acquire the readings with asterisks, for sure. Some are available at the campus bookstore(s), others are linked to full text on the Web, others are available from academic or law journals available at the library or any law library (e.g. St. Mary’s School of Law):
*Martin Golding, The Philosophy of Law, Englewood Clifts, NJ: Prentice Hall, 1975
*Lon L. Fuller The Morality of Law, New Haven: Yale University Press, 1964, revised 1969.
*Lon L. Fuller The Case of the Spelunkean Explorers http://www.nullapoena.de/stud/explorers.html
Coleman, Jules, The Oxford Companion of Jurisprudence, NY: Oxford University Pres, 2002
Austin, John, The Province of Jurisprudence Determined, W. Rumble (ed.), Cambridge: Cambridge
University Press, 1995) (first published, 1832).
*Bix, Brian, "John Austin", The Stanford Encyclopedia of Philosophy (Spring 2005 Edition), Edward N. Zalta(ed.), URL = < http://plato.stanford.edu/archives/spr2005/entries/austin-john/ >.
*Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Spring 2003 Edition), Edward N. Zalta(ed.), URL = < http://plato.stanford.edu/archives/spr2003/entries/legal-positivism/ >.
*Marmor, Andrei, "The Pure Theory of Law", The Stanford Encyclopedia of Philosophy (Winter 2002 Edition), Edward N. Zalta(ed.), URL = <http://plato.stanford.edu/archives/win2002/entries/lawphil-theory/>.
*Marmor, Andrei, "The Nature of Law", The Stanford Encyclopedia of Philosophy (Summer 2001 Edition), Edward N. Zalta(ed.), URL = http://plato.stanford.edu/archives/sum2001/entries/lawphil-nature/>.
*Murphy, Mark, "The Natural Law Tradition in Ethics", The Stanford Encyclopedia of Philosophy (Winter 2002 Edition), Edward N. Zalta(ed.), URL = < http://plato.stanford.edu/archives/win2002/entries/natural-law-ethics/ >.
*Finnis, John "Aquinas' Moral, Political, and Legal Philosophy", The Stanford Encyclopedia of Philosophy (Spring 2006 Edition), Edward N. Zalta(ed.), forthcoming URL = <http://plato.stanford.edu/archives/spr2006/entries/aquinas-moral-political/>. Rread the Legal Philosophy only.
*Hart, H.L.A., The Concept of Law, 2nd edition, Oxford: Clarendon Press, 1994
*Hart, H.L.A., Law, Liberty and Morality, NY: Vintage, 1963
Dworkin, Ronald, Taking Rights Seriously, Cambridge MA: Harvard U. Press, 1977
*Dworkin, Ronald, Law's Empire, Cambridge MA: Harvard University Press, 1986
Dworkin, Ronald, A Matter of Principle, Cambridge MA: Harvard University Press 1985
*Stavropoulos, Nicos, "Interpretivist Theories of Law", The Stanford Encyclopedia of Philosophy (Winter 2003 Edition), Edward N. Zalta(ed.), URL = <http://plato.stanford.edu/archives/win2003/entries/law-interpretivist/ >.
*Pound, Roscoe, “The Call for a Realist Jurisprudence,” Harv. L. Rev. XLIV (1931)
Pound, Roscoe, An Introduction to the Philosophy of Law, New Haven, Yale University Press, 1922, 1954
Gray, J.C., The Nature and Sources of the Law, N.Y.: Columbia U. Press, (1909)
*Hutcheson, Joseph C., “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision,” Cornell Law Quarterly XIV (1928)
*Holmes, O.W., Jr., “The Path of the Law,” Harvard L. Rev., Vol 10, (1897), pp. 457-68 http://www.constitution.org/lrev/owh/path_law.htm
*Holmes, O.W., Jr., The Common Law, Cambridge, MA: Harvard U. Press, 1963 edition
*Llewellyn, Karl N., “A Realistic Jurisprudence—the Next Step,” Columbia Law Review, Vol 30 (1930)
*Bingham, Joseph W., “What is the Law?” Michigan Law Review, Vol 11 (1912)
Frank, Jerome, Courts on Trial: Myth and Reality in American Justice, Princeton: Princeton University Press, 1949
*Frank, “Cardozo and the Upper-Court Myth,” Law & Contemporary Problems, XII (1948)
*Blumberg, Abraham S., Criminal Justice (1st ed.), NY: New Viewpoints, 1967
*Fisher, Horwitz, & Reed, American Leqal Realism, NY: Oxford U. Press, 1993
*Kantorowicz, Hermann, “Some Rationalism about Realism,” Yale Law Journal, Vol 43 (1934), pp. 1240-52.
Erlich, Eugen, Fundamental Principles of the Sociology of Law, Cambridge, MA: Harvard U. Press, 1936.
*Kornhauser, Lewis, "Legal Philosophy: The Economic Analysis of Law", The Stanford Encyclopedia of Philosophy (Winter 2001 Edition), Edward N. Zalta(ed.), http://plato.stanford.edu/archives/win2001/entries/legal-econanalysis/ .
*Feminist Jurisprudence Resources
http://www.law.cornell.edu/wex/index.php/Feminist_jurisprudence#Key_Internet_Sources
*Feminist Jurisprudence, WEX, Legal Information Institute, Cornell http://www.law.cornell.edu/wex/index.php/Feminist_jurisprudence
*Jurisprudence, WEX, Legal Information Institute, Cornell http://www.law.cornell.edu/wex/index.php/Jurisprudence
Abrams, Kathryn, "The New Jurisprudence of Sexual Harassment." Cornell Law Review, 83 (July 1998):
1169-1230.
*Judith Baer, Our Lives Before the Law, Princeton, Princeton U. Press, 1999
(This book can be ordered as an e-book at http://www.pupress.princeton.edu/titles/6756.html) *Leslie Bender, Review, http://www.law.syr.edu/faculty/bender/pubs/fixing_fem_juris.pdf
Smith, Patricia, ed. Feminist Jurisprudence. Oxford Univ. Press, 1993
Kenneth Einar Himma, Review, http://www.apa.udel.edu/apa/archive/newsletters/v98n2/feminism/himma.asp
Minow, Martha, Making All the Difference, Ithaca, NY: Cornell U. Press, 1990
Adler, Amy, Girls! Girls! Girls!: The Supreme Court Confronts the G-String” 80 N.Y.U.L. Rev. 1108, 2005
*Critical Legal Theory, WEX, Legal Information Institute, Cornell http://www.law.cornell.edu/wex/index.php/Critical_legal_theory
*Unger, R.M., The Critical Legal Studies Movement Cambridge, MA: Harvard U. Press, 1986
*Kairys, D. “Law and Politics,” George Washington Law Review, 52 (1954) p 243
*Kairys, D., ed., The Politics of Law: A Progressive Critique, NY: Patheon Books, 1990
Balbus, Ike, The Dialectics of Legal Repression, New Brunswick, NJ: Transaction Books, 1973
*Zinn, Howard, Disobedience and Democracy: Nine Fallacies on Law and Order, NY: Vintage Books, 1968
*Galanter, Marc, “Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change,” Law and Society Review, Volume 9:1.
Mirandé, Alfredo, Gringo Justice, Notre Dame: Notre Dame University Press, 1987
Bender, Leslie & Braveman., D.. Power, Privilege & Law, St. Paul, West, 1995
Many legal opinions and cases will be assigned to accentuate the theoretical points made in the listed readings. Students should reflect upon the case law that they have read, to assess the worth of the readings.
A list of additional readings accompanies this initial list. Other readings will emerge weekly as we travel intellectually along diverse jurisprudential paths. We shall read them all collectively or perish individually. Assignments will be made during the first meeting, based on prior knowledge of proclivities. Moreover, each participant must contribute his or her own thoughts to our deliberations so that we may guide, critique, and enlighten each other and our collectivity.
Seminar Requirements and Method of Grading:
Serious Thought (evidenced by class discussions, written notes, attendance, etc.) 10%
Essays (one in class as quiz, others out of class- write them exceptionally well…) 20%
Presentation in Class 20%
One Exam 20%
Paper of publishable quality (20-25 pages) 30%
First Assignment:
Read: The Case of the Speluncean (Spelunkean) Explorers, above. Write a one-page judicial opinion deciding the case, as a jurist. Due this Thursday.
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Golding, M., Philosophy of Law, chapters 1 and 2, then reread Chapter 2.
______
Bix, Brian, "John Austin", The Stanford Encyclopedia of Philosophy (Spring 2005 Edition), Edward N. Zalta(ed.), URL = < http://plato.stanford.edu/archives/spr2005/entries/austin-john/
Marmor, Andrei, "The Pure Theory of Law", The Stanford Encyclopedia of Philosophy (Winter 2002 Edition), Edward N. Zalta(ed.), URL = <http://plato.stanford.edu/archives/win2002/entries/lawphil-theory/
______
Natural Law and Natural Rights
Murphy, Mark, "The Natural Law Tradition in Ethics", The Stanford Encyclopedia of Philosophy (Winter 2002 Edition), Edward N. Zalta(ed.), URL =
Aquinas' Moral, Political, and Legal Philosophy Dec 2, 2005
http://plato.stanford.edu/entries/aquinas-moral-political/
Finnis, John "Aquinas' Moral, Political, and Legal Philosophy", The Stanford Encyclopedia of Philosophy (Spring 2006 Edition), Edward N. Zalta(ed.), forthcoming URL = < http://plato.stanford.edu/archives/win2005/entries/aquinas-moral-political/
St. Augustine, selected passages on his theory of law, handouts, Non videtur esse lex quae justa non fuerit… (see Bodenheimer, Jurisprudence, et al., on reserve…)
“The Natural Law Tradition in Ethics” (Read Legal Philosophy §§)
http://plato.stanford.edu/archives/win2002/entries/natural-law-ethics/
______
Legal Realism
Holmes, O.W., Jr., “The Path of the Law,” Harvard L. Rev., Vol 10, (1897), pp. 457-68 http://www.constitution.org/lrev/owh/path_law.htm
Holmes, O.W., Jr., selection from the Common Law, on reserve and handout.
*Llewellyn, Karl N., “A Realistic Jurisprudence—the Next Step,” Columbia Law Review, Vol 30 (1930) (on reserve)
Jerome Frank, selections from Courts on Trial, on reserve.
Fisher, Horwitz, & Reed, American Leqal Realism, NY: Oxford U. Press, 1993 (selections)
______
Contemporary Legal Positivism, Naturalism, Realism Blends
H.L.A. Hart, The Concept of Law (Read Chapters 1-3)
______
H.L.A. Hart, The Concept of Law (Read Complete Book)
______
Lon Fuller, The Morality of Law (Read entire book for next week)
Gambitta, R. “Differing Realms of the Law”, ARSP, reprints distributed to students in class.
The three levels of the law, identifying and advancing the theories
Golding, M., Philosophy of Law, chapters 3, 4, 5
Hart, H.L.A., Law, Liberty and Morality, NY: Vintage, 1963
CRITICAL LEGAL THEORY:
Unitary Reading:
Critical Legal Theory, WEX, Legal Information Institute, Cornell http://www.law.cornell.edu/wex/index.php/Critical_legal_theory
Galanter, Marc, “Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change,” Law and Society Review, Volume 9:1, on WebCT
Class divided on the reading of books/articles into five camps, as selected (Be prepared!):
(a) Unger, R.M., The Critical Legal Studies Movement Cambridge, MA: Harvard U. Press, 1986
(b) Kairys, D. “Law and Politics,” George Washington Law Review, 52 (1954) p 243
(c) Balbus, Ike, The Dialectics of Legal Repression, New Brunswick, NJ: Transaction Books, 1973
(d) Zinn, Howard, Disobedience and Democracy: Nine Fallacies on Law and Order, NY: Vintage