Tara A Smith

The aim of the course is to attain a holistic grasp of Humeʼs philosophy. Philosophy courses are often divided by subject area (metaphysics, ethics, philosophy of mind, and so on). Hume wrote on all the main topics in philosophy, and our goal is not only to evaluate his individual contributions, but also to see how the views on various topics fit together. The class presupposes some knowledge of philosophy, but not of Humeʼs work. 

PHL 387 – Legal Authority:

Its Foundations & Its Exercise in the Judiciary

Requirements

Graduate Standing and Consent of Graduate Advisor required.

Course Description:

This seminar will examine legal authority in relation to adjudication. Insofar as proper judicial decision-making maintains fidelity to the law, its requirements depend on what the law is, and that, in turn, depends on the roots of law’s authority. Thus we will study the fundamental nature of legal authority, of moral authority, and the relationship between the two in this context.

Our examination will focus particularly on two widespread and in many ways successful forms of legal authority: constitutional and common law. By probing the sources and limitations of these, we will gain a firmer grasp of the character of legal authority as such. We will then consider how differing conceptions of the law’s authority shape some of the leading accounts of proper adjudication, focusing on Judicial Minimalism (increasingly advocated by thinkers across the ideological spectrum) and Dworkinian perfectionism.

Readings (tentative):

             extended excerpts from:

Douglas Edlin, Judges & Unjust Laws

David Strauss, The Living Constitution 

Cass Sunstein, A Constitution of Many Minds; One Case at a Time

Ronald Dworkin, Law’s Empire; Justice in Robes

Randy Barnett, Restoring the Lost Constitution

Larry Alexander, ed., Constitutionalism

Possibly a few additional articles & excerpts

Assignments (tentative):

2 papers and 1 oral presentation

This course, intended to introduce students to certain basic issues in philosophy of law, will be organized around the question: What should a legal system be? What are the fundamental features and instruments that are vital to a proper legal system, and what are some of the competing understandings of what these are?

By reading both historical and contemporary authors, we will seek to grasp the theoretical bases of proper law as well as the appropriate practical implementation of key ideals in legal systems today. In the course of answering our overarching question, we will examine a number of key concepts that are arguably crucial to a proper legal system, such as:

• A Constitution   
• Common law
• Precedent
• The Rule of Law
• Legal Authority
• Democracy
• Representation
• Rights
• Equality
• Popular sovereignty
• Liberty

Readings:

Randy Barnett, Restoring the Lost Constitution

Scott Gerber, To Secure these Rights

Madison, Hamilton, & Jay, Federalist Papers

Packet including pieces by a range of historical and contemporary authors, probably including,

among others: John Adams, James Otis, Akhil Amar, Robert Bork, Joseph Raz, Michael

Perry, Lani Guinier 

Grading: (still tentative)

3 Exams (two in-term and one final) (20%, 20%, & 25%)

1 Paper (25%)

2 or 3 brief writing homework (such as critical summaries of readings) (10%)

attached