PHIL 4110: Philosophy of Law

University of West Georgia

Spring 2007

Date: Wednesday May 2, 2pm - 4pm.

This test will be worth 25% of your total course grade. This is a timed test; you will have two hours to complete the test.

You are required to provide your own blue book for the test. Blue books are mini notebooks designed especially for writing tests. They are available at the UWG Bookstore and at the refreshments stand in the TLC atrium. They come in two sizes: small and large. Small should be large enough, unless you have really large handwriting, in which case you may want to use a large bluebook. They are very inexpensive (less than $.50 each).

Section I will consist of definition questions [18% of total test grade]. I will give you a list of terms and phrases to define. The terms and phrases will come from the following list:

· philosophy

· inquiry

· social contract tradition

· altruism

· argument

· validity

· strength

· soundness

· liberalism

· moral dilemma

· prima facie moral duty

· precedent

· stare decisis

· adversarial legal system

· inquisitorial legal system

· jus cogens principles

· consequentialism

· ethical egoism

· utilitarianism

· deontological theories (deontology)

· autonomy

· natural law theory

· legal positivism

· legal formalism

· legal realism

· positive law

· descriptive

· normative

· ad hoc

· (deductive) validity

· (inductive) strength

· the mailbox rule

· hypostasis

· due process

· laissez faire

· eugenics

· liberalism (broad sense)

· liberalism (narrow sense)

· libertarianism

· totalitarianism

· ADA

· utilitarianism

· psychological certainty

· epistemic certainty

· substantive due process

· originalism

Your definitions should as be as detailed, clear and precise as possible. For example, the following is not an adequate definition of the term "a priori": "independent of experience." This would get you partial credit, but not full credit. A much better definition is this: "An a priori statement is one that can be known to be true or false independent of sense experience, for example, ‘All bachelors are unmarried’ and ‘Triangles have three sides.’"

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Section II will consist of short answer questions [22% of total test grade]. Your answers to these questions should be as detailed, clear and precise as possible. The questions will be drawn from the following list:

· Explain the difference between common law legal systems and civil law legal systems.

· Explain the similarities and the differences between trials and scientific inquiry.

· List and briefly explain the various sources of international law.

· State and briefly explain John Austin’s definition of law.

· Briefly explain how a legal positivist might challenge the idea that rulings of the ICJ and ICC are genuinely legal institutions.

· What is the “casebook method,” and how does Landgell’s use of that method relate to his view of jurisprudence as a science?

· Briefly explain how Cardozo’s opinion in Hynes v. New York Central Railroad illustrates his objection to “mechanical jurisprudence.”

· Briefly explain how Holmes’ dissenting opinion in Lochner v. New York illustrates his anti-formalism and proto-realism.

· Explain and give examples of the three types of law distinguished by Hospers, and explain why he objects to two of them.

· Explain Mill’s Harm Principle and give examples to illustrate it.

· Explain Locke’s argument that a government ought not to impose a religion on its citizens.

· Explain (i) the Establishment Clause of the first amendment, (ii) the Lemon Test, and the Supreme Court’s decision in Edwards v. Aguillard.

· Explain MacCallum’s analysis of the concept of right.

· Explain the three legal meanings of “privacy.”

· Explain John Noonan’s criticism of Roe v. Wade; in your explanation, state what Noonan takes to be the “root” of that decision, and what he takes to be its “branch.”

· Explain the four different practices to which the term “euthanasia” is used to refer.

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Section III will consist of one discussion question [30% of total test grade]. You will be given three questions and allowed to choose one to answer. Your answer to this question should be as detailed, clear and precise as possible. The questions will be drawn from the following:

1. Discuss Rawls’ justification of civil disobedience in terms of his two principles of justice. Do you agree with his definition of civil disobedience? Why or why not?

2. Discuss Kant’s account of International Law. Do you agree with Kant that a given state must meet a certain moral standard in order to be considered legitimate? Why or why not?

3. Answer EITHER of the following two questions related to natural law theory:

(A) Discuss St. Thomas Aquinas’ version of natural law theory, including (i) his definition of “law”; (ii) different kinds of law; (iii) the connection between natural and human law, and (iv) unjust laws. Do you believe it is possible to base an adequate system of human, positive law on religious belief? Defend your answer.

(B) Discuss Lon Fuller’s version of natural law theory, including (i) the fable of Rex, (ii) Fuller’s definition of “law” and his eight “principles of legality,” and (iii) the difference between substantive approaches and Fuller’s proceduralist approach. Do you agree with Fuller that a system that does not incorporate his principles is not a legal system? Defend your answer.

4. Discuss the legal positivism of John Austin and H. L. A. Hart, including (i) their respective definitions of “law,” (ii) the problems with Austin’s positivism that Hart attempted to overcome, and (iii) Hart’s distinction between primary and secondary rules. Does Hart improve on Austin’s theory? Defend your answer.

5. Discuss legal realism as it is embodied in the work of Holmes, including (i) his “prediction theory” of law, (ii) his “bad man” account of law, and (iii) his rejection of legal formalism. Is formalism or realism a better account of legal reasoning? Defend your answer.

6. Discuss Dworkin’s view of legal reasoning, including (i) his distinction among rules, policies and principles, (ii) his account of competing principles, (iii) his constructivism, and (iv) the question whether he is a natural law theorist. Is formalism or constructivism a better account of legal reasoning? Defend your answer.

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Section IV will consist of one discussion question [30% of total test grade]. You will be given two questions and allowed to choose one to answer. Your answer to this question should be as detailed, clear and precise as possible. The questions will be drawn from the following:

1. Explain Berlin’s treatment of the subject of negative and positive liberty in “Two Concepts of Liberty.” Do you agree with Berlin that political liberty is best conceived as negative rather than positive? Why or why not?

2. Answer EITHER of the following questions related to freedom of speech:

(A) Discuss Mill’s argument in defense of free speech in On Liberty. Does Mill’s argument succeed in establishing its conclusion? Defend your answer.

(B) Discuss Scanlon’s position regarding harmful speech, including (i) his view that free speech is intrinsically valuable; (ii) the sorts of harmful speech he believes should be prohibited; and  (iii) his so-called Millian Principle and the argument he gives to support it. Does Scanlon’s argument succeed? Defend your answer.

3. Answer EITHER of the following questions related to rights:

(A) Explain Feinberg’s “Nowheresville” thought experiment and his account of rights as claims. Does his thought experiment show that rights are conceptually separate from the other moral ideas and practices he discusses? Defend your answer.

(B) Explain Rorty’s skepticism about rights, including his use of Glendon’s views and the issue of gay rights. Do you agree with him that we ought to abandon “rights talk”? Why or why?

4. Discuss (a) the issue of the constitutional right to privacy as it has developed through various 20th century Supreme Court decisions, and (b) Robert Bork’s rejection of such rights. Do you agree with Bork’s criticism of Griswold? Defend your answer.

5. Explain the Supreme Court arguments against legalized active euthanasia as described in “The Philosophers’ Brief” and the responses to those arguments given in the Brief. Are these responses adequate? Defend your answer.