SYLLABUS: 790:373:90

LEGAL PHILOSOPHY, RIGHTS, AND JUSTICE

SPRING TERM 2020

Course Overview
This course is aptly named. Its goals are to analyze three central concepts of liberal and
democratic government – law, rights, and justice. The importance of these concepts
becomes obvious when we consider how frequently these terms arise in discussions of
politics: public policy is formulated in “laws,” people speak of what they feel they
deserve in terms of “rights,” and social movements are built around fundamental
claims of “justice.” Here, I hope that we can sort out what people mean when they use
these terms and iron out some endemic confusions.

Instructor
Instructor: Jonathan McFall
Email address: mcfall@polisci.rutgers.edu or jonathanmcfall@gmail.com
Office hours: Thurs. 9:00-10:00 PM Van Dyke 211 (CAC) and by appointment

Course Delivery
This course is fully online. To access the course, please visit sakai.rutgers.edu . For
more information about course access or support, contact the Sakai Help Desk via
email at sakai@rutgers.edu or call 848-445-8721.

Course Description
(From catalog) Place of law in the democratic state. The nature of law, its role in regulating behavior,
legal reasoning, rival legal theories; the conflict between positivism and the theory of law; punishment
and responsibility; various standards of justice.

Important Dates
The course begins on January 21 and ends when the final response essay is due on May
10.

Course Learning Objectives

By the end of this course, students should successfully be able to:
• describe natural law definitions of law and be able to articulate how law relates to
morality
• describe and articulate the main versions of legal positivism
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• apply the analytic categories used by Hart in his discussion of law

• apply the logical structures used in legal reasoning and relate it these to
jurisprudential debates in the United States
• examine various critiques of law and explain how law interacts with power within
society
• examine the nature of judicial power in a democracy and relate this power to
dominant theories of constitutional interpretation
• describe what legal and moral rights are and be able to articulate critiques of
rights
• describe various theories of justice
• apply Rawls’ theory of justice
• articulate the issues surrounding the philosophical justification of punishment

Course Materials
Required Texts
Hart, HLA, The Concept of Law, 3rd ed. Oxford: Oxford University Press, 2012. (ISBN
978-0199644704)
Rawls, John, Justice as Fairness. Cambridge, MA: Harvard University Press, 2001.
(ISBN 978-0674005112)
Strauss, David, The Living Constitution. Oxford: Oxford University Press, 2010. (978-
0195377279)
Articles posted online (electronic PDF files)
Required Equipment
• Computer: current Mac (OS X) or PC (Windows 7+) with internet connection
Required Software
• Microsoft Word or comparable program
• ***All assignments must be submitted in .doc or .docx format.***

Assignment Summary
Below are the assignments required for this course and the value of each assignment to
the course grade as a whole. Please refer to the course calendar (on Sakai) and/or the
course schedule (below) for specific due dates.
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Assignment Percentage of grade

9 Quizzes 20
3 Response Essays (20% each) 60
2 online activity assignments (5% each) 10
Online news assignment 10

Assignment Overview
The dates listed below are very important. There will be penalties for late work.
Quizzes will be due throughout the semester (See below for dates). When they are
assigned, they will be due at 11:59 PM on the Sunday that ends the week.
There will be three online writing assignments throughout the semester. Each
assignment will require interaction with a peer.
Essays
• Essays must be 3-5 pages (excluding the works cited page), double-spaced, and
written in Word (.doc or .docx) format. Do not submit in Apple Pages
format; I cannot open those files. Do not submit in PDF format. I will
take five points off the grade of any paper that is submitted in Apple
Pages format or PDF format.
• Essays must include a works cited page in standard Chicago format.
• Good papers will clearly state what each philosophical position entails.
• Good papers will make an argument and not be just a collection of vaguely
related paragraphs.
• Papers must be proofread both for spelling and for grammar. I would advise you
to read your draft aloud to hear grammatical errors. There will be large penalties
for poor spelling and grammar.

Student Effort Expectations

• Time Commitment
To be successful in this course, you should plan to dedicate approximately 8-10
hours per week.
• Reading Expectations
If you do not do the reading, you cannot succeed in this course. To be sure, if you
fall behind, it will affect your grade almost immediately.
Much of what you will be reading is challenging. To obtain maximum value from
these readings you must read skillfully. This involves a distinction between
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leisure reading and critical reading. The nature of the former should be obvious,
i.e., there are some things that you can read while lying on the couch. These
materials are not among them. These materials should be read while sitting up at
a desk with a notebook and pen beside you. Critical reading, should already be
part of your college experience.
• Reading Study Guide Questions
These will be provided for the readings. You are not required to provide written
answers to these questions. They are designed to help you understand the reading
as you are doing it.
Quizzes will be based on a knowledge of the topics covered by these questions.
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Course Schedule and Deadlines

Week Dates Module 1: The Debate Between Natural Law Theory and Legal Positivism

Students successfully completing Module 1 will be able to:

• describe natural law definitions of law and be able to
articulate how law relates to morality
• describe and articulate the main versions of legal
positivism
• apply the analytic categories used by Hart in his
discussion of law
• articulate and critique Dworkin’s criticisms of Hart’s
theory
1 1/20 - 1/26 Natural Law Theory I
Purchase all books.
Post in “Getting to Know You” forum.

Read excerpts from St. Thomas Aquinas, Summa Theologica,

Part I-II. PDF

Read Finnis, John, “Natural Law Theories.” PDF

Review Natural Law lecture notes
Online Activity #1 (150 words)
Due 1/24, response to peer (75 words) is due on 1/26
2 1/27 - 2/2 Early Positivism
• Read excerpts from Austin, John, 1832, The Province of
Jurisprudence Determined PDF

Read Hart, Concept of Law, pages 1-49.

Review Early Positivism lecture notes
Quiz on the Austin reading and the first Hart reading
3 2/3 - 2/9 Hart’s Positivism
Read Hart, Concept of Law, pages 50-123, 155-237.
Review Hart’s Positivism lecture notes
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Quiz on the Hart readings

Module 2: Legal Reasoning, the Formalist-Realist Debate, and the Hart-

Week Dates
Dworkin Debate

Students successfully completing Module 2 will be able to:

• articulate how legal reasoning works and apply that process to
case law
• relate conceptions of legal reasoning to normative American
debates concerning the role of judges
• learn about the relationship between law and capitalist
development
• explain Hart’s position on this debate
• articulate Dworkin’s critique of Hart and Hart’s response to
Dworkin

4 2/10 - 2/16 Legal Reasoning, Formalism, and Realism

Read excerpt from Levi, Edward, An Introduction to Legal Reasoning.

PDF

Read Fuller, Lon, “The Case of the Speluncean Explorers”

Read Holmes, Jr., Oliver Wendell, “The Path of the Law” PDF

Review Legal Reasoning, Formalism, and Realism notes.

Quiz on Levi reading and Holmes reading

5 2/17 - 2/23 Hart on “Scylla and Charybdis” and Dworkin on Discretion

Read Hart, Concept of Law, pages 124-154.

Review Scylla and Charybdis notes.

Read Dworkin, Ronald, “The Model of Rules I” PDF
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Review Dworkin’s critique notes.

Quiz on this week’s Hart and Dworkin readings
6 2/24 - 3/1 Hart’s Response to Dworkin
Read Hart, Concept of Law, pages 238-276.
Review Hart Postscript notes.

ESSAY #1 IS DUE ON 3/1 (BY 11:59 PM).

Week Dates Module 3: Critiques of Law

Students successfully completing Module 3 will be able to:

• apply economic analytic tools to legal problems
• learn about the relationship between law and capitalist
development
• explore how social constructions of disability, race, and
class affect law
7 3/2 - 3/8 Law & Economics and The Dilemma of Difference
Read Posner, Richard, “The Law and Economics Movement” PDF
Review Law and Economics notes.
Read Minow, Martha, “When Difference Has Its Home: Group Homes
for the Mentally Retarded, Equal Protection and Legal Treatment of
Difference” PDF
Review Minow notes.
Quiz on Posner and Minow readings
8 3/9-3/15 Critical Legal Studies
Read Kennedy, Duncan, “Legal Education as Training for Hierarchy”
PDF
Review Kennedy notes.
Read excerpt from Williams, Patricia, ”The Pain of Word Bondage” in
The Alchemy of Race and Rights: Diary of a Law Professor PDF
Review Williams notes.
Quiz on Kennedy and Williams readings
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3/16 - 3/24 Spring Break

Week Dates Module 4: How Should the Constitution Be Interpreted?

Students successfully completing Module 4 will be able to:

• explain how originalism functions as an interpretative framework of
constitutional and statutory law
• articulate critiques of originalism
• develop a deeper understanding of how common law works

9 3/25 - 3/29 Originalism

Read Solum, Lawrence. “Legal Theory Lexicon 019: Originalism” PDF
Read Scalia, Antonin, “Common-law Courts in a Civil-Law System: The
Role of United States Federal Courts in Interpreting the Constitution and
Laws,” PDF
Read Levinson, Sanford, “On Interpretation: The Adultery Clause of the
Ten Commandments”
Review Originalism notes.
ESSAY #2 IS DUE ON 3/29 (BY 11:59 PM).
10 3/30 - 4/5 The Living Constitution
Read Strauss, David, The Living Constitution ALL.
Review Living Constitution notes.
Online Activity #2 (150 words)
Due 4/3, response to peer (75 words) is due on 4/5

Week Dates Module 5: The Nature and Importance of Rights

11 4/6 - 4/12 Hohfeld/Hart’s Choice Theory
Read Wenar, Leif, "Rights” PDF.
Read Hart, H.L.A., “Are There Any Natural Rights?” Philosophical
Review 64 (2) 175-191.
Review Rights notes.
Quiz on Wenar reading and Hart reading
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Week Dates Module 5: The Nature and Importance of Rights

12 4/13 - 4/19 Dworkin/Mill
Read Dworkin, Ronald, “Taking Rights Seriously” PDF
Review Dworkin Rights notes
Read Mill, excerpts from On Liberty PDF
Review Mill notes
Quiz on Dworkin and Mill readings

Week Dates Module 6: What is Justice?

Students successfully completing Module 6 will be able to:
• articulate the difference between distributive and
corrective justice
• critique Aristotle’s conception of justice
• explain Rawls’s political conception of justice
• articulate the consequentialist, retributive, and
expressive theories of punishment

13 4/20 - 4/26 Distributive Justice

Read Rawls, Justice as Fairness, pages 1-79 and pages 80-134
Review Rawls notes.
Online News Project
Due 4/24, response to peer is due 4/26.
14 4/27 - 5/3 Rawls applied and Rectificatory Justice
Read Rawls, Justice as Fairness, pages 135-202
Review Rawls notes
Read Feinberg, Joel, “The Expressive Function of Punishment” PDF
Review Feinberg notes
Quiz on this part of Rawls and Feinberg reading
Essay #3 is due on 5/6