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PHILOSOPHY OF LAWPHIL 350-01, FALL 2010MW 2:00 – 3:15 p.m.DAVIDSON 107Instructor: Avery KolersOffice: Humanities bldg., room 314Office hours: M, W 12:00 – 1:30, and by appointmentPhone: 852-0453email: [email protected]: https://blackboard.louisville.eduCurricular role: this course fulfills an upper-division Humanities elective in the College of Arts & Sciences. Philosophy majors: this course fulfills a 300-level requirement in the major.What this course is about:A philosophy of law is a philosophy of the nature and justification of a certain form of institution, one which is so pervasive that it is hard to step back and consider it in the abstract. For instance, some people have held that all laws are rules. But even if this is true, not all rules are laws. What does a rule have to be like in order to be a rule of law? Must it just be declared by the strongest person around, and accompanied by a threat of punishment for noncompliance? Must it be part of a set of rules unified by some basic underlying rule or principle? Must laws be just to be valid? Or is it even accurate to speak of the law as a freestanding phenomenon, over and above the political, social, and sometimes arbitrary psychological features of societies and particular persons? These are the core questions of what is often called “analytic jurisprudence,” the theory of the nature of law and legal systems.Analytic jurisprudence is therefore our first focus in this course: the nature of law and legal validity; the value of the rule of law; and the relationship between law and morality. We will do this by looking at classic and contemporary versions of the main traditional schools of thought regarding the nature of law: positivism, natural law theory, Dworkin’s “third way,” and legal realism and its descendants. Having surveyed the major theories of analytic jurisprudence we move to “normative jurisprudence”: the consideration of the moral acceptability of legal structures. Such consideration must be undertaken piecemeal, focusing on particular areas of law. In the second part of the course we survey three areas of normative jurisprudence: constitutionalism and judicial review; criminal law; and international law. These brief surveys should give you a sense of the main questions and theories in each area, but, being surveys, they do not permit much deeper consideration. In the third part of the course we therefore go deeper in one area of normative jurisprudence: environmental law. There are many reasons for this focus, among which is the intrinsic philosophical interest in the debate about the relationship between people and the natural environment. But another reason is that the global environment is currently screaming under the impact of human activities, and as we all know, generating an increasing amount of blowback. How might we use the law to articulate and address environmental problems? Can legal fixes lead, or must they follow?Purpose of the course:In addressing all these questions we will to some degree simply want to find answers. But every philosophy course has two subject-matters: the content of the course—in this case, what was just described above—and a particular way of approaching that content. Philosophical inquiry is in the first instance a method of interacting with what you read, hear, and think. The fundamental questions are: a) “what does this mean?”; b) “if this is true, what are its implications?”; and c) “is this true?” In order to 1 of 6answer the first question we engage in conceptual analysis, which is a fancy word for definition. But philosophical definitions are not dictionary definitions; we don’t care how a word is generally used, but what the concept is. The premium is on significance and precision. In order to answer the second and third questions we engage in argumentation: identifying premises and relationships among them; disambiguating by drawing distinctions; drawing inferences; assessing theses and inferences; and setting up a claim against other salient theses and determining whether they are compatible or incompatible, and why.Philosophy requires a slight shift in perspective to permit scrutiny of that which is unseen or taken for granted, but no less important for that. Think of radio waves. You could live your life without ever knowing they were there—as people did until the 19th century. But they are all around us, coming from all directions, bouncing off us, sometimes tickling our ear drums. They make possible a lot of modern life. They might be killing us slowly as we talk on cell phones or microwave our popcorn. And – as you know if you’ve ever operated a shortwave radio (or an FM radio in New York City) – even small distinctions between wavelengths can make the difference between two completely different broadcasts.Doing philosophy is like attending to radio waves. If your radio waves or your interactions with them got out of whack, things could go quite wrong; your life might even be unbearable. Similarly, if the intellectual structure of your life got out of whack, your life might be unbearable. But if you didn’t know about radio waves, or didn’t do philosophy, you would never be able to diagnose, let alone fix, the problem.Moreover, your own confidence that you’ve got the radio waves in check is not, in itself, evidence that they are in check. If you are not monitoring your connections and listening carefully, you don’t have good grounds for your confidence. Certitude is the enemy of philosophy; groundless certitude is the enemy of knowledge. Memorization and absorption of facts are useful for philosophy, for the sake of informing our philosophical reflection, but do not themselves constitute philosophy. But at the same time, pure speculation and rumination, unmoored from any purpose, also do not constitute philosophy.Academic Integrity: Cheating and plagiarism are immoral because a) they are dishonest (to me and others), in that the cheater/plagiarist presents as her/his own something that is not; b) they are unfair (to classmates), who work hard to meet shared requirements that the cheater/plagiarist circumvents; c) they violate academic obligations (to the university) that students voluntarily accept upon enrollment; and d) they may violate self-regarding duties of self-development or self-perfection (if such duties exist).They can also get one in serious trouble. According to the


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UofL PHIL 350 - Syllabus

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