PHIL 238 GE: Philosophy of Law (S448)

Professor Heter

Spring 2011

East Stroudsburg University

Stroud 401


Course homepage/Electronic syllabus:

Contact Info.  

Professor Heter’s office is in the Philosophy and Religious Studies Department, located at 428 Normal St. (up the hill past Kemp Library).  His office hours for the Spring semester are 11-1 M and W, and 11-12 F.  Office Telephone: 570-422-3168.  (You can also contact the secretary, Linda Miller, from 8am-1pm, M-F at 570-422-3601.)


Course Description.  

This course addresses theoretical issues in law including the nature of law and legal reasoning, the structure and contents of rights, competing conceptions of justice, the essence of responsibility and the debate between Utilitarian and Kantian theories of punishment.  In addition to reading major legal philosophers such as Ronald Dworkin, H.L.A. Hart, and Catharine MacKinnon, we study important cases from the U.S. Supreme Court such as Roe v. Wade, Plessy v. Ferguson, Bowers v. Hardwick, and Furman v. Georgia.  The course will benefit students interested in pursuing law as a career, as well as those with a general interest in legal issues.  No previous knowledge of law is required.


Midterm Examination (25%) (Due: Wednesday, March 2)

Final Examination (25%) (Due: see the university’s fifteenth week schedule)

Essay (25%) (Due: Wed, Feb 16)

Short Writing Assignments, Attendance & Participation (25%) (Due periodically)


The Philosophy of Law: Classic and Contemporary Readings with Commentary, eds. Schauer & Sinnott-Armstrong (Oxford University Press, 1996)


Other readings listed on the syllabus are electronic, and are available through Heter’s homepage:

Academic Integrity.

For all written work, there is a plagiarism policy.  Plagiarism is using another author’s work without proper citation.  Punishments for plagiarism include failure for the course.


Student Expectations

·             This is a General Education (GE) course, which means students are expected to leave the course having improved their reading comprehension abilities as well as their writing skills and critical thinking skills.

·             Reading Comprehension.  At the end of the course students should be able to read and comprehend U.S. Supreme Court decisions and some peer-reviewed articles in Philosophy and Law.

·             Writing Skills.  Students are expected to be able to perform well on essay examinations, which will require both a synthesis of information presented in the course and the readings, as well as original thinking.  Short take-home essays will also be given, and students are expected to construct coherent thesis statements that are supported by evidence.  I also expect that by the end of the course students will be able to summarize articles and Supreme Court decisions in one or two pages.

·             Critical Thinking.  This course combines legal and philosophical thinking.  There is a significant overlap between these two types of critical thinking.  Legal analysis requires, first, a strong sense of existing statutes, legal decisions and legal principles.   But critical thinking begins only when a student is able to (a) synthesize information as presented in lecture, discussions and readings and then begin to (b) formulate original ideas about the merits, deficiencies, inconsistencies, implications or applications of ideas from the course.  I will evaluate a student’s ability to think critically through essay examinations, classroom discussions and short essays.


PHIL 238: Philosophy of Law

Schedule of readings and assignments

Unless otherwise specified, readings below come from The Philosophy of Law, ed. Schauer and Sinnott-Armstrong.


Week One

Friday:  The Philosophy of Law, What is Law? (pages 1-7) and Natural Law Theory (pages 8-18)

Heter’s lecture on Natural Law Theory 

Heter’s lecture on Aquinas

Week Two

Monday: The Morality of Law, Fuller (pages 18-27) Heter’s lecture on Fuller

Wednesday: Legal Positivism, Austin (pages 29-39) Heter’s lecture on Austin

Friday: The Concept of Law, Hart (pages 40-49) (We will skip Hart, due to time.)

 Due Friday, 1/28: One paragraph typed response to Austin.  Please provide a one paragraph argument that expresses your view of legal positivism.  You are trying to answer the question “Is positivism a good legal theory?”  You may reject or accept positivism. You will be graded on whether you present a clear reason for your conclusion.  Value: two points. No outside sources.  Use only the course textbook.  


Week Three

Monday: Taking Rights Seriously, Dworkin (pages 70-89)

Heter’s Lecture on Dworkin

In 1880, in New York, Francis Palmer willed the bulk of his large estate to his grandson, Elmer Palmer.  Francis left a small portion of his estate to his daughters, Mrs. Riggs and Mrs. Preston.  Elmer—the grandson, and heir apparent—murdered his grandfather by poison, suspecting that his grandfather might change the will and cut him out.  In 1880 in New York, a criminal law existed against murder.  However, there was no civil law preventing Earl from receiving his murdered grandfather’s estate.  Elmer’s lawyers argued that the will remained a valid contact, despite Elmer’s murder of his grandfather.  The daughter’s lawyers argued that common sense, as well as ‘natural’ law, required that Elmer ‘not benefit from his crime.’  Whose lawyers have the better argument?

Wednesday: Dworkin, contd.

Friday: Three Questions for America, Dworkin.

Heter’s Lecture on Dworkin, Three Questions

Week Four

Monday and Wed: “Originalism: The Lesser of Evils,” Justice Antonin Scalia.

At the beginning of class on Monday you will have a reading quiz on Scalia, ‘Originalism’.  Value: five points.  Format: multiple choice.  The quiz will test whether you’ve done the reading and comprehended Scalia’s main points.  

Friday: Tempting of America, Bork (pages 132-136)


Week Five

Monday: On Analogical Reasoning, Sunstein (pages 163-166); Constrained by Precedent, Alexander (pages 166-167)

On Wednesday in class we will do a mini writing workshop. Each student will have access to a laptop computer.  You will either (a) write your thesis paragraph during this time, and receive feedback from Heter in class OR (b) you may write your thesis paragraph before hand and email it to yourself, and then pull it up on the laptop during class. If you have already done work on the paper, make sure to have a digital copy of the paper available to yourself during class on Wed (ex. you can bring a flash drive, or email yourself, or use a google docs account, or whatever).

Wednesday: Planned Parenthood v. Casey (pages 175-188)

Instructions for in class workshop, Wednesday (2/16).

Friday: Stanford Encyclopedia of Philosophy, Precedent and Analogy in Legal Reasoning, section 2 “Precedent” (but not 2.1-2.3), and sections 5 and 6.

Since you are working hard on your essays, I will not require you to read the SEP piece. We will discuss Planned Parenthood v. Casey.

Essay Due, electronically, Friday, February 18th

Week Six,Feb 21-25

Monday: SNOW DAY.  Structure of Rights, and The Nature and Value of Rights, Feinberg (pages 279-294)

Handout on Rights

Wednesday:  Structure of Rights, and The Nature and Value of Rights, Feinberg (pages 279-294)

Friday: On Liberty, Mill (pages 310-313);Bowers v. Hardwick (pages 347-353); Recommended, but not required: Offense to Others, Feinberg (pages 320-325)

Week Seven, Feb 28-March 4

Monday: Right to Free Speech, Mill (pages 354-361)

Wednesday: MIDTERM EXAM.  Study Guide for Midterm Exam.

Friday: During Friday’s class we will have a class debate on the following topic:Should holocaust denial be illegal?  Click here for details.

Week Eight

Monday: Roe v. Wade

Wednesday: Root and Branch of Roe v. Wade, Noonan (pages 428-433)

Friday: Judith Jarvis Thomson, “A Defense of Abortion” 

Week Nine

Monday: A Theory of Justice, Rawls (pages 518-529)

Wednesday: Anarchy, State and Utopia, Nozick (pages 530-535)

Friday: no new reading

Week Ten

Monday: Discrimination (pages 542-546); Groups and the Equal Protection Clause, Fiss (pages 554-561)

Case law on discrimination

Wednesday: Plessy v. Ferguson.  

Friday: Brown v. BOE.

Week Eleven

Monday: Regents of University of California v. Bakke (pages 589-597)

Wednesday: Ricci v. DeStefano.  


The Sotomayor Mystery,

Ricci v. Sotomayor,

Limbaugh on Sotomayor (radio broadcast) 

Sotomayor Explains ‘Wise Latina’ Comment,

Sotomayor’s Racialist Judicial Activism,

How Sotomayor Misspoke, nationalreview

Week Twelve

Monday: Utilitarian Theories of Punishment (pages 668-674); Introduction to Principles of Morals and Legislation, Bentham (pages 674-681)

Wednesday: On the Right to Punish, Kant (pages 701-705)

Friday: Furman v. Georgia (pages 761-764); Gregg v. Georgia (pages 765-769)

Week Thirteen

Monday: What is Responsibility (pages 784-788); Legal Causation (pages 789-793)

Wed: Palsgraf v. Long Island Railroad (pages 805-812)

Friday: Responsibility for Omissions (pages 815-826)

Lecture on Omissions

Week Fourteen

Monday: Course review

Wed and Frid: no class.  Heter in Montreal.

Study Guide

Week Fifteen

                Final Exam