Scroll down for: Traditional Natural Law
PHM
3400 Philosophy of Law Dr. Kenneth Henley Fall 2018 Office: DM 344B
Phone: 305-348-3346 Office Hours:
Tuesday & Thursday 8:15-9:15 and 11:00-12:15. Website: http://faculty.fiu.edu/~henleyk
e-mail henleyk@fiu.edu
This course is an upper-division
course in Philosophy of Law. We will study many of the fundamental
philosophical theories of the nature of law, focusing on several differing
versions of Natural Law and Legal Positivism. The Nuremberg Trials and
international criminal law will be considered in the light of these theories.
The scope of justified legal authority over individual conduct and
interpretation of the U.S. Constitution regarding such authority will be
studied. Theories of the justification of legal punishment and the death
penalty will conclude the course.
Text: David M. Adams, ed. Philosophical Problems in the Law, 5th ed. Belmont, CA: Wadsworth, 2013. ISBN 978-1-133-04999-9
Course Objectives: 1. To stimulate reflection upon several fundamental questions in the philosophy of law. 2. To provide an account of the basic views and arguments of some important philosophers of law. 3. To improve skills of reasoning and argument: searching for consistency and coherence, clarifying questions, ferreting out presuppositions, weighing reasoning and evidence, and exploring alternative accounts of disputed concepts.
Requirements: THIS COURSE IS NOT CONDUCTED VIA E-MAIL OR ON-LINE. Regular class attendance is required. Students must read the assignment before coming to class. Class attendance, participation and discussion are important, and may make a difference in the course grade if the student's final average is on the borderline between two grades.
Two approximately 6-page papers are required. Specific topics and instructions will be provided in class. While the most important dimension is the quality of the reasoning and philosophical understanding, grades on papers also reflect all elements of writing--grammar, punctuation, sentence and paragraph structure, clarity of expression, and essay structure. There will be a comprehensive final examination at the officially scheduled time. Each paper and the final examination will count as 1/3 of the final average for the course. Note that a student cannot pass without completing all work.
Incompletes will be given only in cases of unforeseeable and severe circumstances beyond the student's control, such as documented illness or injury.
Dates & Assigned Readings Note: each assigned reading is indicated by author or case title and the initial page number of the selection
Aug. 21 Introduction
The Nature of Law & Evil Regimes
Aug. 23 King 96
Aug. 28, 30 Aquinas 82, Murphy 84
Sept. 4, 6 Austin 64; Hart 69
Sept. 11, 13 Fuller 78; Fuller 194
Sept. 18, 20 [editor: Adams] 15, Jackson 23, Wyzanski 29
Sept. 25, 27 Hart 41, May 45
Constitutional Interpretation & Individual Rights
Oct. 2, 4 Church of the Holy Trinity 211, Scalia 214; Dworkin
129, Dworkin 219
Oct. 9 , 11 Mill 243, Devlin 261, Hart 266
Oct. 16, 18 Griswold 311, Lawrence 316, In Re Marriage
Cases 421, Obergefell v. Hodges
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
Punishment
Oct. 23, 25 People v. Dlugash 476, Kadish 482
Oct. 30, Nov. 1 Boonin 538, Brandt 553
Nov. 6, 8 Moore 558, Hart 563
Nov. 13, 15 Gregg 623, Kennedy 612
Nov. 20 van den Haag 578, Bedau 584
Thurs., Nov. 22 University Closed--Thanksgiving
Nov. 27 McCleskey 592, Payne 607
Nov. 29 Review
Dec. 4 Comprehensive Final Examination:
Tuesday, Dec. 4, 9:45-11:45 Students must provide their own Blue
Books
Thesis: A human legal system must be based on a core of natural
law, discoverable by human reason reflecting upon human nature. The fundamental
precepts necessary for living together in justice and peace are evident to all
(prohibitions on violence and dishonest dealing, for instance), but they are
too abstract and general to provide detailed guidance, and there must be
procedures and institutions (political and legal) to specify, elaborate and
enforce human law for the common good.
Human law deserves respect and binds in conscience only if it
remains consistent with natural law.
“Law is nothing else than an ordinance of reason for the common
good, promulgated by him who has the care of the community....The natural law is
promulgated by the very fact that God instilled it into man’s mind so as to be
known by him naturally.” St. Thomas Aquinas, Summa Theologiae, I-II, Q.
90, Art. 4
“To his neighbors a man behaves himself well both in particular
and in general: in particular, as to those to whom he is indebted, by paying
his debts: and in this sense is to be taken the commandment about honoring
one’s parents; in general, as to all men, by doing harm to none, either by
deed, or by word, or by thought. By deed, harm is done to one’s neighbor,
sometimes in his person, i.e., as to his personal existence, and this is
forbidden by the words, Thou shalt not kill; sometimes in a person
united to him, as to the propagation of offspring, and this is prohibited by
the words, Thou shalt not commit adultery; sometimes in his possessions,
which are directed to both the aforesaid, and with regard to this it is said, Thou
shalt not steal. Harm by word is forbidden when it is said, Thou shalt
not bear false witness against thy neighbor; and harm done by
thought is forbidden in the words, Thou shalt not covet [have
excessive desire for that which belongs to someone else].” St. Thomas Aquinas, Summa
Theologiae, I-II, Q. 100, Art. 5
“As Augustine says (De Lib. Arb. i, 5) “that
which is not just seems to be no law at all”: wherefore the force of a law
depends on the extent of its justice. Now in human affairs a thing is said to
be just, from being right, according to the rule of reason. But the first rule
of reason is the law of nature, as is clear from what has been stated above.
Consequently every human law has just so much of the nature of law, as it is
derived from the law of nature. But if in any point it deflects from the law of
nature, it is no longer a law but a perversion of law. But it must be
noted that something may be derived from the natural law in two ways: first, as
a conclusion from premises, secondly, by way of determination of certain
generalities. The first way is like to that by which, in sciences, demonstrated
conclusions are drawn from the principles: while the second mode is likened to
that whereby, in the arts, general forms are particularized as to details: thus
the craftsman needs to determine the general form of a house to some particular
shape. Some things are therefore derived from the general principles of the
natural law, by way of conclusions; e.g. that “one must not kill” may be
derived as a conclusion from the principle that “one should do harm to no man”:
while some are derived therefrom by way of determination; e.g. the law of
nature has it that the evil-doer should be punished; but that he be punished in
this or that way, is a determination of the law of nature. Accordingly
both modes of derivation are found in the human law. But those things which are
derived in the first way, are contained in human law not as emanating therefrom
exclusively, but have some force from the natural law also. But those things
which are derived in the second way, have no other force than that of human
law.” St.
Thomas Aquinas, Summa Theologiae, I-II, Q. 95,
Art. 2