Selected five of the following questions. You will be asked to write on three of them (two hours.) You are encouraged to get together and discuss the issues with your classmates. However, you must write your own answer using what you learn from the discussions. Do not share answer outlines or formulations. If Dawn finds answers that are excessively similar, all will be marked down for lack of originality.
1. A classmate approaches you during a break and confides that they are contemplating law school. However, in the course of your conversation, it becomes apparent that they do not see any point in studying legal philosophy as part of their law degree. Their argument proceeds along the following lines: "What is the use of studying highly convoluted philosophical abstractions if the only question any lawyer should be interested in is: What is the law on a particular issue? Law school will teach me all the black letter law I need. Therefore, philosophy of law is useless." Can knowing black letter law suffice for the purpose of finding answers to any legal question? Why study jurisprudence? Please discuss drawing on materials from our class.
2. Imagine that you are a freshly minted law enforcement officer in a fictitious country. Unfortunately, tough times are upon your nation as it faces the violent outburst of domestic terrorism and unrest. As a response to terror threats, the federal government announces the introduction of a new legislative scheme whereby all law enforcement officers are allowed to use torture to obtain information from suspected terrorists. The government calls it a precautionary step against possible terrorist attacks.
However, when given an order by the superior officer to torture a woman suspected of aiding numerous terrorist groups across the country, you are reluctant to abide by the foregoing command. Do you think there might be certain conditions under which an obligation to obey the law does not arise? What are your moral reasons to comply with (or contravene) the command of the superior officer? Legal reasons?
3. Neil MacCormick states that the dichotomy between positivism and natural law is "rarely revealing of any important truth." Is he correct? Please give a philosophically principled answer that draws on appropriate course resources.
4. Suppose you're driving down a highway. You suddenly see the "stop" sign. Examine this sign as a legal proposition from a normative perspective. Is this proposition descriptive or prescriptive? Can some normative properties be possessed in virtue of descriptive properties? What does the legal norm which the "stop" sign designates consist in? What is its structure? Does it have a sanction embedded in it? What makes this legal norm valid? When you say: "It is the law that you must stop," what does putting "It is the law that" in front of "you must stop" add to the proposition? What are the properties of the Bentham's, Kelsen's and Hart's models of rules? Whose notion of rules do you consider to be the most sophisticated? Why?
5. Explain what you take to be the strongest consideration in favor of Austin's theory of law - that is, the thing about it that you find most plausible, convincing, or appealing - and explain why you think so. Explain what you take to be the strongest consideration against Austin's theory - that is, the thing about it that makes you most inclined to doubt whether it is a correct or adequate explanation of the nature of law, or the thing about it you find most in need of revision or supplementation - and explain why you think so.
6. Bentham's notion of a command is generally thought to be more sophisticated than Austin's. Why? Please discuss, drawing on materials from our class.
7. How do Austin and Bentham differ in respect of:
a. the definition of law?
b. the nature of the sovereign?
c. the role of sanctions?
8. In his 2011 monograph Legality, Scott Shapiro argues that "[a]lthough it is not a particularly inspiring or romantic description, the law is, in the end, an instrument. And like all instruments, it can be used for good or bad purposes... As with all instruments, it can be used for good or bad purposes... As with all instruments, there are correct and incorrect ways to use the law; if we use it incorrectly, it will not do what it is supposed to do and authorities will not do what they are entitled to do." (Scott Shapiro, Legality, p. 399) Is law simply an instrument? How might Aquinas and Fuller respond to this claim? What are the implications of the deterioration of legality of the legal system according to natural lawyers? Discuss, drawing on materials from our class.
9. "The formalist approach in jurisprudence sees law as both self-contained and coherent: law, in other words, is separate from both politics and morality, and is thus seen by some as representing a scientific approach to legal reasoning. The formal solution, since it doesn't rely on the subjective values of the individual judge but only on the rational coherence of the law, is defended as a disinterested and value-free solution." (Margaret Davies, Asking the Law Question). To what extent do you think it is possible for legal reasoning to be scientific in this sense? Moreover, is scientific-like approach possible in legal philosophy? Has Kelsen ever been successful in adopting one? Hart?
10. You are a newly appointed Supreme Court judge in a fictitious country, congratulations. The first case you hear is concerned with a morally loaded issue. At some point you realize that you have moral objections to deciding a case along lines that seem clearly dictated by law. How should you rule? Discuss the problem of the intersection of laws and morals; discuss further how Hart's and Fuller's theories can help you to make a decision. What kind of morally loaded issues should and should not be legislated? Is Hume's non-cognitivism destructive of all natural law thinking?
11. There is political and social unrest in your country. Two governments claim to have assumed legal authority. How do you determine which government issues valid legal commands? How might Kelsen respond to this question? Hart? Give a philosophically principled answer that draws on appropriate course resources. In giving your answer, discuss the principal conceptual differences between Kelsen's Grundnorm and Hart's "rule of recognition."
12. Is Hume's non-cognitivism destructive of all natural law thinking? Please give a philosophically principled answer that draws on appropriate course resources.
13. As part of his legal philosophy, Hart seeks to demonstrate that in order for there to be a legal system, it is conceptually necessary that certain officials regard the law from the internal point of view when deliberating. Please evaluate this argument drawing on appropriate course resources.
14. Imagine the following hypothetical situation. During the last couple of years, terrorist movement in the South of your fictitious country mounted a series of attacks against government facilities. As a response to what transpired, the federal government declared a state of emergency, prohibited public speeches, and embarked on an extensive campaign of acquiring every possible scrap of digital information (inter alia, they introduced the so-called metadata program, under which the government collect and store all cell phone call people made within its territory), thereby tightening the screws on civil liberties everywhere around the country.
Now, you are a local activist, who sees these measures as entirely disproportionate. True, a group of terrorists had attacked government facilities in the South of the country three times over the past ten years, but the problem was not one that affected the whole country. In your mind, the threat of terrorism was just a convenient pretext for the state's authoritarianism, which was intended to keep the (corrupt) ruling party in power.
Using conceptual tools deployed by Austin and Bentham, provide an assessment of the terror-fighting government's exercise of its power. Here are some questions to help you along: What is the nature of the sovereign authority? How do people establish one? Where does the law stop being a series of rules that facilitate the individuals' coexistence together and becomes a series of the commands of the sovereign pursuing his own goal? What gives rise to the obligation to obey the government? If the government is the guardian of the peace, then who is to "guard the guardian"?
15. According to the principle enunciated more than a century ago by John Stuart Mill, "the only purpose for which power can be rightfully exercised over any members of a civilized community, against his will, is to prevent harm to others." Please discuss drawing on materials from our class.
16. Should legality be measured by effectiveness? Please give a philosophically principled answer that draws on appropriate course resources.
17. Etienne Mureinik contends: "If we argue . . . that moral judges should resign, we can no longer pray, when we go into court as defense counsel, or even as the accused, that we find a moral judge on the bench," Is this a consequentialist argument or a deontological one? Of the other arguments of each kind that you have perceived in this debate, which do you find more persuasive, and why?
18. Is Fuller's "inner morality of law" really moral or is Hart correct in characterizing his eight desiderata as relating to efficacy? Is the "inner morality" simply the rule of law?
19. You turn on the radio in the morning and you hear that the new provincial government has raised income tax for all blue-eyed dark-haired women to 80%. You call your friend and, in total disdain, say that not only is it pretty much a robbery but also that it is utterly unjust, illegal, and violates the principle of the rule of law! How might a natural lawyer (or a social contract theorist) comment on new tax measures? Are they indeed inconsistent with the rule of law? How should this income tax amendment look like in order to fail to conform to Fuller's inner morality (please give specific examples)? Might compliance with Fuller's eight desiderata be logically consistent with the pursuit of "evil" aims?
20. "A bad law is still a law, just as a bad political decision is still a political decision." Can that claim form part of a sound argument against natural law theory? How does a natural law approach to legal rules help answer the question: "why ought one obey the law?"