FACULTY OF LAW UNIVERSITY OF BRITISH COLUMBIA LAW 300 JURISPRUDENCE AND CRITICAL PERSPECTIVES Fall 2015 Professor Benjamin J Goold Office: Allard Hall, Room 455 Phone: (604) 822-9255 E-mail: goold@allard.ubc.ca (1) Course Description This course provides an introduction to jurisprudence, legal and political theory, key principles of the common law, and critical approaches to the law. It is designed to give upper year students an overview of the structure of law, and a critical insight into the various ways in which law and its role in society can be understood. The course also aims to encourage students to see the relationships between different branches of law and legal doctrine, and to examine the role of ideology in the creation and enforcement of law. (2) Class Times Mondays and Wednesdays 9:00 10:30 (Room 105). In the event that a class is cancelled, where possible a make-up class will be scheduled and students will be notified of the new time and venue by email. (3) Required and Supplementary Reading The main text for this course is M.D.A. Freeman (2014) Lloyd s Introduction to Jurisprudence (9 th Edition), and most of the required reading for the term is taken from this text. Students should assume that all material contained in the required reading and related discussion in lectures is examinable, and as such students are strongly encouraged to attend all classes and take detailed notes. In addition to the required reading for each class, supplementary reading is also listed. Although this material is not examinable, it is provided in case: (1) you feel you need to read further on a subject in order to understand it; or (2) you have developed a particular interest in a subject and want to learn more. The main supplemental text for this course is Margaret Davies (2008) Asking the Law Question (3 rd Edition). In addition, various articles are also listed as supplementary reading, and are available online or through the UBC Law Library website. 1
(4) Assessment and Examination Students will be given the option of choosing either: (1) a 3-hour 100% closed book examination; or (2) a 2-hour 70% closed book examination plus a 30% take-home assignment (of no more than 1500 words). Assignment topics will be made available in class on 19 October 2015, and students wishing to submit an assignment must inform the instructor of their decision by email no later than 4pm on 19 November 2015. Students who do not inform the instructor of their choice by the 19 November deadline will be assumed to be sitting the 3-hour closed book examination. All assignments must be submitted by 4pm on 22 December 2015. (5) Attendance and Recording of Lectures Although attendance lists will not be taken, students are expected to attend all lectures in this course. Students should arrive on time for the scheduled lecture, and try to avoid disrupting the class by leaving early. Lectures should not be recorded without prior permission. If you do wish to record a particular lecture, please email your request to me at least 24 hours before the scheduled lecture. (6) Academic Integrity and Plagiarism All UBC law students are subject to the University's rules on Academic Misconduct (http://vpacademic.ubc.ca/integrity/ubc-regulation-on-plagiarism/), and are expected to act with academic integrity at all times. Students should be especially aware of the University's rules in relation to plagiarism. If you plagiarize, you may be subject to penalties set out in the UBC calendar: (http://www.calendar.ubc.ca/vancouver/index.cfm?tree=3,54,111,959) If you would like to learn more about academic misconduct, visit the UBC Library's website on academic integrity (http://learningcommons.ubc.ca/guide-to-academic-integrity/). Examples of academic misconduct can also be found in the UBC Annual Report on Student Discipline (http://universitycounsel.ubc.ca/discipline/). (7) Office Hours Office hours will be held from 11:00am 12:30pm on Mondays in Room 455. If you have a question about a specific reading or section of the course, please email it to me 48 hours beforehand if possible, as this will give me more time to prepare a detailed response (and locate additional materials that may be helpful). 2
(8) Schedule of Classes Week Topic Required Reading (1) Sept. 9 Introduction Lloyd: 1-5 (2) Sept. 14, 16 Jurisprudence and the Nature of Law Lloyd: 6-25, 26-44, 46-48, 60-74 (3) Sept. 21, 23 Natural Law Lloyd: 75-124, 142-164 (4) Sept. 28, 30 Legal Positivism Lloyd: 195-217, 249-269, 311-334 (5) Oct. 5, 7 Legal Reasoning and Theories of Adjudication Lloyd: 1549-1594 (6) Oct. 14 Mid-Term Review None (7) Oct. 19, 21 Legal Realism Lloyd: 823-867 (8) Oct. 26, 28 Critical Legal Studies Lloyd: 1017-1066 (9) Nov. 2, 4 Feminist Jurisprudence Lloyd: 1079-1179 (10) Nov. 9, 16 Critical Race Theory Lloyd: 1257-1286 Burrows (syllabus) (11) Nov. 18 Ronald Dworkin and Interpretivism Lloyd: 593-648 (12) Nov. 23, 25 The Philosophy of Human Rights Lloyd: 1287-1375 (13) Nov. 30, Dec. 2 Key Issues and Course Summary None 3
Introduction Week 1 September 9 Lloyd: 1-5 None The meaning of jurisprudence and the role of legal theory The limits of law The relationship between legal theory and legal practice Why do we study legal theory? What is the relationship between legal theory and legal practice? Is a general theory of law possible? What does it mean to say that law is normative? 4
Jurisprudence and the Nature of Law Week 2 September 14, 16 Lloyd: 6-25, 26-44, 46-48, 60-74 Davies, Ch. 1 Marmor, A. The Nature of Law, The Stanford Encyclopedia of Philosophy http://plato.stanford.edu/entries/lawphil-nature/ Himma, K. Philosophy of Law, Internet Encyclopedia of Philosophy http://www.iep.utm.edu/law-phil/ Defining law The conditions of legal validity The relationship between law and morality The distinction between natural law and legal positivism What makes a law valid? Where does legal legitimacy come from? What is the naturalistic fallacy? Why is it interesting to jurisprudence scholars? Does the authority of law derive from the threat of coercion, or does it have some other source? 5
Natural Law Week 3 September 21, 23 Lloyd: 75-124, 142-164 Davies, Ch. 3 John Finnis, Natural Law Theories, The Stanford Encyclopedia of Philosophy http://plato.stanford.edu/archives/fall2011/entries/natural-law-theories/ Greenawalt, K. (2000) How Persuasive Is Natural Law Theory, 75 Notre Dame Law Review 1647-1680 http://scholarship.law.nd.edu/ndlr/vol75/iss5/4 The relationship between law and reason Law as a discoverable fact Natural law as higher law and the question of universality The revival of natural law and the relationship to rights Is it fair to say that modern natural law theory attempts to derive an ought from an is? Do you think that the goods identified by John Finnis in his theory of natural law are self-evident? Is his list exhaustive? If an unjust law is not law, then what does this mean for our obligation to obey the law? Are we obliged to follow an unjust law? 6
Legal Positivism Week 4 September 28, 30 Lloyd: 195-217, 249-269, 311-334 Hart, H. L. A. (1958) "Positivism and the Separation of Law and Morals", Harvard Law Review 71(4): 593 629 http://www.jstor.org/stable/1338225 Himma, K. Legal Positivism, Internet Encyclopedia of Philosophy http://www.iep.utm.edu/legalpos/ Fuller, Lon L. (1958) "Positivism and Fidelity to Law - A Reply to Professor Hart", Harvard Law Review 71(4): 630 672 http://www.jstor.org/stable/1338226 Green, L. Legal Positivism, The Stanford Encyclopedia of Philosophy http://plato.stanford.edu/archives/fall2009/entries/legal-positivism/ The social foundation of law and the separation thesis Austin s command theory of law Kelsen s pure theory of law Hart s distinction between primary and secondary rules What is the rule of recognition? Why is it so central to Hart s theory of law? What does Hart mean when he refers to a minimum content of natural law? Is legal positivism completely incompatible with natural law? 7
Legal Reasoning and Theories of Adjudication Week 5 October 5, 7 Lloyd: 1549-1594 Julie Dickson, Interpretation and Coherence in Legal Reasoning, The Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/archives/spr2010/entries/legal-reas-interpret/) Grant Lamond, Precedent and Analogy in Legal Reasoning, The Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/archives/fall2008/entries/legal-reas-prec/) The distinctive character of legal reasoning The importance of coherence and consistency in law The role of interpretation in legal reasoning What do we mean by legal reasoning? Is legal reasoning inescapably interpretive? How do we justify the role of precedent in the common law? What is the role of discretion in legal reasoning? Is it necessary? 8
Mid-Term Review Week 6 October 14 The first of these classes will be divided into two parts. The first 60 minutes will consist of a brief lecture summarising the work covered to date, with a particular emphasis on the various policy issues raised throughout the year. During the last 15 minutes, we will go over any questions from the class. The second class will be entirely devoted to student questions and answering practice exam questions. There is no required reading for either of these classes. 9
Legal Realism Week 7 October 19, 21 Lloyd: 823-867 Davies, Ch. 4 Duxbury, N. (1991) Jerome Frank and the Legacy of Legal Realism, Journal of Law and Society 18(2): 175-205. http://www.jstor.org/stable/1410136 Green, M.S. (2005) Legal Realism as Theory of Law, 46 William. & Mary Law Review 1915-2000 http://scholarship.law.wm.edu/wmlr/vol46/iss6/2 Leiter, B. (2002) American Legal Realism, University of Texas Law Public Law Research Paper No. 42 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=339562 Legal formalism and the idea of as a closed system Legal realism and the critique of positivism The revolt against formalism and the argument against legal rules What do we mean by legal formalism? Does it make sense to speak of law as a science? What do we mean when we refer to the empirical approach to law? Is it a coherent view of the law? Do you agree with Holmes that law is simply what the law will do in fact? 10
Critical Legal Studies Week 8 October 26, 28 Lloyd: 1017-1066 Davies, Ch. 5 Hunt, A. (1986) The Theory of Critical Legal Studies Oxford Journal of Legal Studies 6(1): 1-45 http://www.jstor.org/stable/764467 Sypnowich,C. Law and Ideology, The Stanford Encyclopedia of Philosophy http://plato.stanford.edu/archives/fall2010/entries/law-ideology/ Law as ideology The inseparability of law and politics Law as a form of rationalisation Why have critical legal scholars been so interested in judicial decision making? Do you agree that law is inseparable from politics? If so, what does this mean for the possibility of law reform? According to critical legal scholars, how is liberalism contradictory? 11
Legal Theory, Feminism, and Gender Week 9 November 2, 4 Lloyd: 1079-1179 Davies, Ch. 6 Fineman, M.A. (2005), "Feminist Legal Theory", Journal of Gender, Social Policy and the Law, 13(1): 13-23 http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1282&context =jgspl Francis, L. and Smith, P. Feminist Philosophy of Law, The Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/archives/spr2013/entries/feminism-law/) Law as a male-dominated institution and the influence of legal patriarchy The relationship between legal values and the exercise of legal power The contrast between liberal and radical feminism What is meant by the term legal patriarchy? Do you agree with Davies that feminist theory and practice cannot be usefully separated? Why is the distinction between sex and gender a key question for feminist legal scholars? Do you think the law should divide people according to sex? 12
Critical Race Theory Week 10 November 4, 6 Lloyd: 1257-1286 John Borrows, (2010), Canada s Indigenous Constitution (Toronto: University of Toronto Press) - Chapter 1: Living Legal Traditions (pp. 6-22); and Chapter 2: Sources and Scope of Indigenous Legal Traditions (pp. 23-58) http://site.ebrary.com/lib/ubc/docdetail.action?docid=10442523 Davies, Ch. 7 Delgado, R. (1993) Critical Race Theory: An Annotated Bibliography, Virginia Law Review Vol. 79 / Seattle University School of Law Research Paper http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2097984 Legal theory as white mythology Race as a legal construct The relationship between law and colonialism What does it mean to say that a Eurocentric model of the person underpins the law? To what extent is this reinforced by a positivist commitment to the separation of law and morality? What was the significance of the doctrine of terra nullius to the propagation of British law? In what sense is postcolonial thought non-oppositional? Do you agree that it offers an important subversion of Western philosophy and ideology and in particular of the liberal emphasis on the autonomous and un-situated subject? (Davies: 310) 13
Ronald Dworkin and Interpretivism Week 11 November 16, 18 Lloyd: 593-648 Lloyd: 648-700 The Hart-Dworkin debate Dworkin s right answer thesis Rights as trumps Law as integrity The relationship between legal integrity and legitimacy What are hard cases in Dworkin s theory? What does it mean to say that there is one right answer to a given legal problem? What is the implication of taking rights seriously for law? Is belief in a shared set of moral values essential to the legitimacy of law? Does law need such a belief to have authority? 14
The Philosophy of Human Rights Week 12 November 23, 25 Lloyd: 1287-1375 Campbell, K. Legal Rights, The Stanford Encyclopedia of Philosophy http://plato.stanford.edu/archives/fall2013/entries/legal-rights/ Wenar, L. Rights, The Stanford Encyclopedia of Philosophy http://plato.stanford.edu/archives/fall2011/entries/rights/ The meaning of human rights The interest and will theories of human rights The relationship between human rights and dignity Human rights and the idea of universality How are human rights different from other types of legal rights? In what sense do human rights provide people with reasons for action? Does it make sense to talk about balancing human rights? How is balancing in this context different from ideas of proportional infringement? What is the key difference between will and interest theories of rights? How does each theory approach the question of who can be a rights-holder? 15
Key Issues and Course Summary Week 13 November 30, December 2 The first of these classes will be divided into two parts. The first 60 minutes will consist of a brief lecture summarising the work covered to date, with a particular emphasis on the various policy issues raised throughout the year. During the last 15 minutes, we will go over any questions from the class. The second class will be entirely devoted to student questions and answering practice exam questions. There is no required reading for either of these classes. 16