1. UI 305: Judicial Reasoning Prof. H. Hamner Hill Spring 2015

2. Student Expectations 5 case studies 5 case studies 2 short writing assignments (6-8 pages) 2 short writing assignments (6-8 pages) 1 in class mid-term exam 1 in class mid-term exam 1 class presentation 1 class presentation 1 final exam 1 final exam

3. Grading Standards Case studies15% Case studies15% First short paper15% First short paper15% Mid-term exam20% Mid-term exam20% Second short paper20% Second short paper20% Presentation10% Presentation10% Final exam20% Final exam20% Plagiarism and violations of academic honesty result in zeroes for the assignment. Plagiarism and violations of academic honesty result in zeroes for the assignment.

4. What is Philosophy? Three Answers: Reflecting on common sense knowledge, seeking a deeper understanding of what we already know Reflecting on common sense knowledge, seeking a deeper understanding of what we already know Linguistic or conceptual analysis Linguistic or conceptual analysis That branch of science that is concerned with those features of reality that are of the greatest possible generality or universality That branch of science that is concerned with those features of reality that are of the greatest possible generality or universality

5. Philosophy as the General Science of Being Philosophers seek theories that provide an overarching framework within which the contents of the other branches of knowledge (science, scholarship, law) can be placed. Philosophers seek theories that provide an overarching framework within which the contents of the other branches of knowledge (science, scholarship, law) can be placed. Philosophers seek consistent descriptions of those common features of reality (cause, purpose, value) that show up in every kind of inquiry. Philosophers seek consistent descriptions of those common features of reality (cause, purpose, value) that show up in every kind of inquiry.

6. These Three Answers are not Mutually Exclusive Some philosophers tend to follow one model to the exclusion of others: commonsense philosophers, ordinary- language philosophers, Rationalists. Some philosophers tend to follow one model to the exclusion of others: commonsense philosophers, ordinary- language philosophers, Rationalists. Many philosophers combine two or three of these approaches. For example, many accept common sense or linguistic analysis as starting-points. Many philosophers combine two or three of these approaches. For example, many accept common sense or linguistic analysis as starting-points.

7. Applying these Models to the Philosophy of Law We can reflect on our common understanding of law, legal obligations, legal rights, due process, justice. We can reflect on our common understanding of law, legal obligations, legal rights, due process, justice. We can analyze the meanings of key terms in the law: “rights”, “obligations”, “punishment”, etc. We can analyze the meanings of key terms in the law: “rights”, “obligations”, “punishment”, etc. We can seek the essence of law, legal institutions. We can seek the essence of law, legal institutions.

8. Seeking the Essence of Law What makes something a law (as opposed to a custom, habit, religious rite, moral duty)? What makes something a law (as opposed to a custom, habit, religious rite, moral duty)? Are there any necessary connections between law and morality? law and politics? biology? theology or cosmology? Are there any necessary connections between law and morality? law and politics? biology? theology or cosmology?

9. What is Law? Natural Law view. Natural Law view. Positivist view. Positivist view. Historical view. Historical view. Legal Realism view. Legal Realism view.

10. Natural Law Assumes that law, rights and ethics are based on universal moral principals inherent in nature discoverable through the human reason. Assumes that law, rights and ethics are based on universal moral principals inherent in nature discoverable through the human reason. The oldest view of jurisprudence dating back to Aristotle. The oldest view of jurisprudence dating back to Aristotle. Jefferson’s Declaration assumes “the Laws of Nature.” Jefferson’s Declaration assumes “the Laws of Nature.”Declaration Divine law. Divine law.

11. Natural Law Rev. Martin Luther King, Jr. Letter from the Birmingham Jail, April 16, 1963. “[T]here are two types of laws: just and unjust laws.... A just law is a man-made code that squares with the moral law.... An unjust law is a code that is out of harmony with the moral law.... An unjust law is a human law that is not rooted in eternal and natural law.” Letter from the Birmingham Jail, April 16, 1963. “[T]here are two types of laws: just and unjust laws.... A just law is a man-made code that squares with the moral law.... An unjust law is a code that is out of harmony with the moral law.... An unjust law is a human law that is not rooted in eternal and natural law.”Letter from the Birmingham JailLetter from the Birmingham Jail

12. Legal Positivism Law is the supreme will of the State that applies only to the citizens of that nation at that time. Law is the supreme will of the State that applies only to the citizens of that nation at that time. Law, and therefore rights and ethics, are not universal. The morality of a law, or whether the law is “bad or good,” is irrelevant. Law, and therefore rights and ethics, are not universal. The morality of a law, or whether the law is “bad or good,” is irrelevant. –The law is what the legislature says it is. »Eg, Sunday closing laws, Estate Taxes

13. Legal Realism Jurisprudence that holds law is not simply a result of the written law, but a product of the views of judicial decision makers, as well as social,economic, and contextual influences. Jurisprudence that holds law is not simply a result of the written law, but a product of the views of judicial decision makers, as well as social,economic, and contextual influences. Legal Realist view law functionally. The purpose of law is to facilitate the functioning of society. Legal Realist view law functionally. The purpose of law is to facilitate the functioning of society. Eg, the UCC, Regulatory law.Eg, the UCC, Regulatory law.

15. Philosophies come in Many Varieties Platonism: Universals, like truth, justice, goodness, humanity, beauty, really exist, independently of our language or structure of thought. Platonism: Universals, like truth, justice, goodness, humanity, beauty, really exist, independently of our language or structure of thought. Nominalism: Universals don’t really exist. All that exists are concepts and terms of language that refer in a general way to many things. Nominalism: Universals don’t really exist. All that exists are concepts and terms of language that refer in a general way to many things.

16. General Tendencies of Platonists and Nominalists Platonists tend to be more rationalistic, open to metaphysical theories, including the irreducibility of human being to physical processes. Platonists tend to be more rationalistic, open to metaphysical theories, including the irreducibility of human being to physical processes. Nominalists tend to be more empirical and skeptical. In addition, they tend toward more materialistic and reductionistic accounts of human being. Nominalists tend to be more empirical and skeptical. In addition, they tend toward more materialistic and reductionistic accounts of human being.

17. Varieties of Philosophers of Law Natural Lawyers: Aquinas, Fuller, Finnis Natural Lawyers: Aquinas, Fuller, Finnis Legal Positivists: Austin, Bentham, Hart Legal Positivists: Austin, Bentham, Hart Legal Realists and Critical Legal Studies: Holmes, Llewellyn, Frank Legal Realists and Critical Legal Studies: Holmes, Llewellyn, Frank Interpretivists: Dworkin, Ely Interpretivists: Dworkin, Ely Non-interpretivists: Bork, Berger, Scalia Non-interpretivists: Bork, Berger, Scalia

18. The Normative/Descriptive Dichotomy Also known as: the fact/value distinction. Also known as: the fact/value distinction. Widely accepted by nominalists, including positivists. Widely accepted by nominalists, including positivists. Tends to be rejected by Platonists, natural lawyers. Tends to be rejected by Platonists, natural lawyers.

19. Natural Law Theory When we discover the essence of the law, we learn both what the law truly is, and what it ought to be. When we discover the essence of the law, we learn both what the law truly is, and what it ought to be.

20. Legal Positivism Discovering what the law is tells us very little about what it ought to be. Discovering what the law is tells us very little about what it ought to be. We may discover certain minimal requirements that every legal system must satisfy. We may discover certain minimal requirements that every legal system must satisfy.