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Problems of Philosophy:Philosophy of Law(John Gardner)

2009年9月1日 发表评论 阅读评论

gardnerJohn Gardner 教授2008年春季在普林斯顿大学开设的法哲学课程大纲。这是Gardner 教授对该课程的描述:

In this class we will consider some classic problems in the general theory of law. By ‘general’ I mean ‘relevant to all imaginable legal systems’. So we will not be considering parochial questions. We

will not consider the interpretation of written constitutions (relevant only to legal systems that have written constitutions) or the justification of punishment (relevant only to legal systems that punish) or the legitimacy of judicial review of legislation (relevant only to legal systems that have legislation). Of course in making these exclusions I am already making some claims that belong to the general theory of law. I am claiming that there may be legal systems without punishment, and legal systems without legislation, and legal systems without written constitutions. You may doubt these claims. If you do then you are already beginning to think about the subject of this course.

As originally advertised the course was to cover two main problems in the general theory of law. It will now cover three. (The extra one is problem B below.) Each raises a large number of subsidiary questions. The main problems are:

(A) What is law? More specifically, what distinguishes law from certain neighbouring or related things such as coercion, convention, morality, and game-playing? (meetings 1-6)

(B) Does law have an ‘inner morality’? What is the ideal of ‘the rule of law’ and how does it relate to law and to other ideals against which law may sometimes be judged? (meetings 7-9)

(C) Do we have (always, typically, sometimes) a moral obligation to obey the law? And when, if at all, is such an obligation defeated by competing considerations? (meetings 10-12)

The objective is not to secure balanced coverage of the literature but to cherry-pick interesting work for detailed discussion. Our approach will be to read two (or at most three) items for each meeting. This cuts the volume of reading but please compensate with deep engagement and serious attention to detail.

There is no textbook, but a book that we will be using often is H.L.A. Hart, The Concept of Law (second edition 1991). You may wish to own your own copy. Raz, The Authority of Law (1979) also recurs but the required essays are almost all reprinted from sources that are available online (or scans of which will be posted on Blackboard in due course).

The following materials are listed by meeting number, i.e. you should read the material under 1, and think about the questions under 1, for the first meeting on February 7th.

以下是该课程大纲,包括阅读文献和思考问题。

0. Introductory

H.L.A. Hart, The Concept of Law (second edition 1991), ch 1
Can law be defined? Try your hand at a definition of your own.

1. Law, sanctions, and coercion

H.L.A. Hart, The Concept of Law (second edition 1991), chs 2-3

H. Oberdiek, ‘The Role of Sanctions and Coercion in Understanding Law and Legal Systems’, American Journal of Jurisprudence 21 (1976), 71 (available at HeinOnline)

Is nullity (sometimes, always) a sanction?

Presumably, no coercion is required in a society of saints. Does it follow that no law is required in a society of saints?

Is a legal system ‘the gunman writ large’? If not, why not?

2. Legal systems as systems of rules

H.L.A. Hart, The Concept of Law (second edition 1991), chs 4-5 (plus pages 254-263)

R.M. Dworkin, ‘The Model of Rules’, University of Chicago Law Review 35 (1967), 14 (available at HeinOnline); reprinted as ch 2 of Dworkin, Taking Rights Seriously (1977)

What is a rule? Does it have an ‘internal aspect’? Is it always a reason?

Is a principle just another type of rule?

Does Dworkin change the subject?

3. The ‘normativity’ of legal rules

J. Raz, ‘Kelsen’s Theory of the Basic Norm’, American Journal of Jurisprudence 19 (1974), 94 (available at HeinOnline); reprinted in Raz, The Authority of Law (1979)

J.M. Finnis, ‘On the Incoherence of Legal Positivism’, Notre Dame Law Review 75 (2000), 1597 (available at HeinOnline)

What is normativity and why does it matter?

Can one make sense of the idea that laws are norms (and hence normative) without regarding them as morally binding?

Does Raz (or does Kelsen according to Raz) attempt ‘an invalid derivation of ought from is’ (as Finnis suggests on p. 1597)?

4. Moral criteria of legal validity?

H.L.A. Hart, The Concept of Law (second edition 1991), ch 6 (plus pages 250-54)

J. Raz, ‘Authority, Law and Morality’, The Monist 68 (1985), 295 (available at Poiesis); reprinted in Raz, Ethics in the Public Domain (1994)

J. Gardner, ‘Legal Positivism: 5½ Myths’, American Journal of Jurisprudence 46 (2001), 199 (available at HeinOnline)

What is legal positivism and what motivates it?

Are all legal norms authoritative? Consider customary laws!

Can one consistently believe that there are no moral criteria of legal validity and yet that legal reasoning is a kind of moral reasoning?

5. Custom and convention in law

J. Postema, ‘Co-ordination and Convention at the Foundations of Law’ Journal of Legal Studies 11 (1982), 165 (available at HeinOnline)

L. Green, ‘Positivism and Conventionalism’, Canadian Journal of Law and Jurisprudence 12 (1999), 35 (available at HeinOnline)

Can there be truly customary laws?

‘Convention’ is the answer. But what is the question?

Is Hart’s ‘rule of recognition’ a conventional rule?

6. Adjudication and legal indeterminacy

H.L.A. Hart, The Concept of Law (second edition 1991), ch 7 (plus pages 272-276)

R.M. Dworkin, ‘Hard Cases’, Harvard Law Review 88 (1975), 1057 (available at HeinOnline)

Does law have ‘open texture’?

What is a ‘hard case’? Is the category of any philosophical interest?

Hart agrees that judges, faced with one-textured law, must resort to ‘general principle[s] as a reasoned basis for decision’ (p. 205). So what is Dworkin disagreeing with him about?

7. Law at its most legal

L. Fuller, The Morality of Law (revised edition 1969), ch 2

J. Raz, ‘The Rule of Law and its Virtue’ Law Quarterly Review 93 (1977), 195; reprinted in Raz, The Authority of Law (1979)

Why are the requirements of the rule of law thought to apply only or especially to law, not equally to all normative systems?

Does the ideal of the rule of law belong to the nature of law? If so, can there nevertheless be laws that do not live up to it?

What unites the various requirements of the rule of law?

8. Legality and ‘formal justice’

H.L.A. Hart, The Concept of Law (second edition 1991), ch 8, § 1 (plus pages 206-7)

L. Green, ‘The Germ of Justice’, a draft article available at http://tinyurl.com/yuokdr

Is there any such thing as ‘formal justice’?

Is it a necessary truth about law that it is in one respect just?

Is justice the first virtue of the law? (Compare J. Rawls, A Theory of Justice (1971), p 3)

9. Legality and integrity

R.M. Dworkin, Law’s Empire (1986), ch 6

R.M. Dworkin ‘Hart’s Postscript and the Character of Political Philosophy’, Oxford Journal of Legal Studies 24 (2004), 1 (available at Oxford Journals Online) – focus on § 4.

J. Finnis, ‘On Reason and Authority in Law’s Empire’, Law and Philosophy 6 (1987), 357 (available at JSTOR)

For Dworkin, does all law display integrity? Or only law at its most legal?

Is Dworkin’s integrity one value or several?

Does Dworkin still disagree with Hart about the nature of law? Compare the readings under 2 and 6 above!

10. A challenge to law’s authority

R.P. Wolff, In Defence of Anarchism (1970), ch 1

J. Raz, ‘Legitimate Authority’ in R. Bronagh (ed), Philosophical Law (1978); reprinted in Raz, The Authority of Law (1979)

What is authority and how does it differ from (a) advising; (b) requesting; and (c) coercing?

Does law’s authority necessarily invade the autonomy of those subject to it?

How can there be (valid) ‘exclusionary reasons’?

11. A moral obligation to obey the law?

J. Finnis, ‘The Authority of Law in the Predicament of Contemporary Social Theory’, Notre Dame Journal of Law and Public Policy 1 (1984), 115 (available at HeinOnline)

J. Raz, ‘The Obligation to Obey: Revision and Tradition’, Notre Dame Journal of Law and Public Policy 1 (1984), 139 (available at HeinOnline)

Does the fact that our legal system is a just one yield any general argument for our having a moral obligation to follow its laws?

Can a moral obligation to obey the law be acquired or abandoned?

Is it true that one has an obligation to obey a particular law if an only if that law carrioes legitimate authority?

12. A moral right to disobey the law?

J. Raz, ‘A Right to Dissent?’, forming chs 14 and 15 of Raz, The Authority of Law (1979)

R.M. Dworkin, ‘Civil Disobedience and Nuclear Protest’ in Dworkin, A Matter of Principle (1984)

Do those who claim a moral right to disobey the law challenge the existence of a moral obligation to obey the law? Or do they, on the contrary, presuppose the existence of such a moral obligation?

Does a right to action entail a latitude to err?

Are there some specific subject-matters in respect of which we have a right to disobey the law?

  1. Laura
    2009年9月30日19:38 | #1

    I think this article made some interesting points, I read a textbook directly related to this topic, its called Classic Readings and Cases in Philosophy of Law by Susan Dimock, Canada Pearson , I found my used copy for less than the bookstores at http://www.belabooks.com/books/9780321187840.htm

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