Smith College Mr. Smith

Phi. 245: Philosophy of Law: Property Fall, 1999

SYLLABUS

The course has two related goals. Primarily, it is an introduction to the fundamental concepts and controversies in the philosophy of law (commonly called "jurisprudence"). However, these are difficult to understand without some "basic legal training," some minimal exposure to the culture of the law. This is best acquired by learning how to solve a variety of mundane legal problems. So we shall devote almost half of the course to an intensive stu! dy of conventional law school materials on the law of property. You'll get some experience in reading cases, construing statutes, and in figuring out who might win various hypothetical law suits. Then, armed with some practical sense of the business of the law, we shall turn to the grand questions of jurisprudence: e.g., "What distinguishes law from other normative systems?," "Is law distinct from morality or part of it?," "Can an iniquitous legal rule really be a law?," "Is judicial decision really constrained by principle, or is it at bottom an arbitrary exercise of political power?."

Why pick property as our initial topic? One reason is that no one is indifferent to it-- at least not to one's own. What you will learn is very practical knowledge that may someday stand you in good stead. A more theoretical reason begins with the fact that property is part of the civil law, as distinct from its criminal side. Criminal law is more fascinating to many: i! t offers both shocking stories and sophisticated philosphical reflection upon the proper moral bases for punishment. But concentrating upon crime gives a skewed view of the law: its principal business is not to punish people but rather to forestall and settle disputes. Most lawyers play no role in the administration of criminal justice; and most citizens virtually always voluntarily obey the law, as must be true in any effective legal system. We can much better understand law as the arbiter of disputes by learning how it handles competing claims, e.g., to late Aunt Matilda's vacation cottage, than by studying how it treats criminals.

The course's second goal is that you sample the experience of legal education, so that those of you who are attracted by the idea of a career in the law may gain some insight into whether it is a path that you really want to pursue. Therefore, while we're studying legal materials, class sessions will be run as in a law school! . (But I promise not to be nasty, not to ape some TV law professor.) More importantly, the legal topics will be tested by typical law school examination questions: I'll pose elaborate factual scenarios; and then you must apply relevant rules of law to them, to determine who probably would win in a lawsuit. You'll find this kind of examination to be immensely challenging--and to be quite different from any other intellectual exercise you will have encountered as an undergraduate. Also, if you do go on to law school you'll have an initial advantage over your classmates, who will never have faced such examinations before. Several former students have told me that they were much less anxious facing first- year exams than were their fellows.

Texts: C. Donahue, et. al., Property, 3d ed. (Donahue)

J. Feinberg and H. Gross, Philosophy of Law, 6th ed. (F&G)

Basis for Grade: In the seventh week, as a mid-term, I'll set an h! our-long law question, which will be graded, but not counted unless it raises your final grade.

There will be a paper of 8-10 pages, due in the last week of class, in which you will discuss some important Supreme Court decision in the light either of natural law theory, legal positivism, legal realism, Dworkin's theory or Critical Legal Studies. The final examination will be self-scheduled, and will be designed to take the full two hours and twenty minutes, of which one hour will be devoted to a law school type question and one to a question in jurisprudence. Finally, in a border-line case, e.g., between a B and a B+, faithful attendance and contribution to class discussion can make a crucial difference.

September 13: Rights of possession: wild animals and information

October 4: Family property

N. B.: When the syllabus was drawn up the 6th edition of F&G was not yet out. I will supply page references later in the semester.

November 1: The Aims and Basic Theories of Jurisprudence

December 1: Cri! ticism of Dworkin