METHODOLOGY Lecture and participation methods will be used. You are expected to:

Transcription

1 Allard School of Law - University of British Columbia Jurisprudence and Critical Perspectives (3 cr.) LAW Winter 2016 Tuesday and Thursday, 4:00-5:30pm Room 105 CONTACT INFORMATION Professor Jonas-S. Beaudry Office: Allard Hall, Room 357 Tel: (604) beaudry@allard.ubc.ca Office hours: By appointment & 30 min. after each class. DESCRIPTION This course will introduce you to major schools of thought in jurisprudence, including natural law, legal positivism, legal realism, as well as critical approaches paying attention to the exclusion of gender, race and disability from the law and legal theory. It will also examine theories and concepts underlying different areas of the law, such as justice, equality, liberty, respect, personhood, wronging and human rights. OBJECTIVES The course has the dual aim of presenting a selective survey of influential readings in legal theory and of providing you with philosophical tools to reflect critically on contemporary legislation and caselaw. By the end of the course, you should be able to: a. Understand the arguments provided by the authors we will examine. b. Compare these authors diverging views and reflect critically upon them. c. Apply some of these theoretical views to concrete scenarios and detect when theoretical arguments could enrich legal analysis. d. Analyze and discuss critically theoretical arguments. Communicate effectively such arguments and your reflections on their merits to your peers. METHODOLOGY Lecture and participation methods will be used. You are expected to: 1. Have read the assigned materials prior to class and take part in class discussion of the assigned materials and any exercises relating to them. 2. Active participation will be evaluated by a group presentation on one of the topics explored. The group presentation will provide students with opportunities for collaborative learning and developing oral presentation skills, in addition to ensuring active engagement with the materials. 1 of 7

2 REQUIRED MATERIALS The readings on this syllabus have mostly been drawn from online journals and e-books available to students. The readings that were not directly available online have been uploaded on UBC Connect. EVALUATION You will be evaluated on the basis of your class presentation (40%) and of a final exam (60%). 1. Class Presentation (40%) Students will be divided in 12 groups (of 5 or 6 students per group). Each group will be in charge of making a presentation on the readings for a particular week. The presentation should last about one hour. It should have two main components: (i) summary and analysis of the readings and (ii) critical engagement with the readings. The analysis should clearly lay out the authors hypotheses and the steps they take to defend it. The critical portion can take multiple forms: you may look for internal tensions within an argument, cast doubt on the plausibility of one of the steps of the argument, and contrast it with other views examined in previous classes. If you entirely agree with an argument, you can consider the strongest objections that have been, or could be, made against it, and explain why you find these objections unsatisfactory. Finally, you should endeavour to find a legal text (most commonly, a judicial decision, though it may also be a law, a treaty, a piece of doctrine, a governmental report or an empirical study) that would illustrate how the theoretical argument you have analyzed critically could serve to enrich our understanding of the practice of the law, or to criticize it. (Note that some of the readings do not lend themselves to be concretely applied as easily as others. If so, you may instead devote more time contextualizing this reading within a particular tradition.) You should hand in a summary of your presentation, not exceeding 15 pages (font 12, single space), on the day of your presentation. I will make the summaries available for all the classroom in order to facilitate revision for the final exam. Electronic submissions must be sent to beaudry@allard.ubc.ca, with c.c. to caldwell@allard.ubc.ca. The presentation will be evaluated in function of the group s capacity to analyze, synthesize and present arguments clearly, as well as on the quality and analytic rigour of the group s assessment of the merits of the positions defended in the readings. The evaluation will take into account the level of difficulty of the texts. (Students will neither be penalized for working on more accessible texts, nor for working on more demanding ones.) The presentations will take place after the study break, between February 23 and March 31, The group will receive a single grade, in order to encourage collaborative work in the delivery of the presentation. The option of topics (and their corresponding dates) that you may chose from are listed below. You may consult external literature, but this is not an independent 2 of 7

3 research: the primary goal of the presentation is to analyze, and reflect on, the authors assigned on the syllabus. The topics/dates will be assigned on a first-come, first-serve basis. In order to reserve a topic for your group, you must have the names of your 5 group members and have selected together 3 possible topics, by order of preference. Once this is done, a representative of your group should send me an (the time of reception of this will establish your priority; e.g. if your first choice has already been picked by someone who wrote an hour before, you would get your second choice). Groups and choices of topics should be finalized by the first week of February. 2. Final Examination (60%) There will be an 3-hour, open-book, exam. The primary goal is to assess your general understanding of the readings. The secondary goal is to assess your critical engagement with the readings. There will be a mix of compulsory and optional questions. You should answer to a total of about four questions. There will be a general revision during the last week of the term. UBC POLICIES ON ACADEMIC MISCONDUCT UBC students are subject to the University's rules on Academic Misconduct ( vpacademic.ubc.ca/integrity/ubc-regulation-on-plagiarism/) and must understand the meaning and consequences of cheating, plagiarism and other academic offences under these rules. Penalties are set out in the UBC calendar ( The UBC Library's website on academic integrity ( learningcommons.ubc.ca/resource-guides/avoiding-plagiarism/) and the UBC Annual Report on Student Discipline ( provide information on academic misconduct. STUDENTS WITH DISABILITIES If you have any type of disability, there are support systems, resources and accommodation available to you. If you wish to access them, please consult the Associate Dean of Academic Affairs, and/or consult UBC Student Services, at Please also feel free to contact me to discuss any concerns or questions. *** 3 of 7

4 SCHEDULE AND READING ASSIGNMENT All of the readings that are marked with * are available on UBC Connect. The other readings can be accessed online through UBC library. Introduction (Jan 5) No reading assigned for the first class. Equality and Justice (Jan 7) I - Conceptual Foundations of the Legal Order John Rawls, A Theory of Justice, Revised Ed. (1999), Sections 1-4, 10-11, 22, 24 * Leif Wenar, "John Rawls", The Stanford Encyclopedia of Philosophy (Winter 2013 Edition), Edward N. Zalta (ed.), URL = < Respect (Jan 12) Harry Frankfurt, Equality and Respect, Social Research, 01/1997, Volume 64, Issue 1 Joseph Raz, Respecting People, in Value, Respect, and Attachment, chap.4, p Personhood, Moral Status, and Legal Standing (Jan 14) Charles Taylor, Human Agency and Language, Philosophical Papers, Vol.1, CUP, p : The Concept of a Person * Matter of Nonhuman Rights Project, Inc. v Stanley, 2015 NY Slip Op 31419(U), July 29, Supreme Court, New York County, Docket Number /15. Judge Barbara Jaffe. Liberty and Autonomy (Jan 19) Feinberg, J Legal Paternalism, in Harm to Self (OUP) chap 17 * Conly, S Applications, in Against Autonomy (CUP) chap 6 * Wronging (Jan 21) S.E. Marshall and R.A. Duff, Criminalization and Sharing Wrongs, 11 Can J. L. and Jurisprudence 7, 1998 Iris Marion Young, Responsibility and Global Justice, A Social Connection Model, Social Philosophy and Policy / Volume 23 / Issue 01 / January 2006, pp II - Theories on the Nature of the Law 4 of 7

5 Nature of the law (Jan 26) John Austin, The Province of Jurisprudence Determined, Lecture I * H. Hart, The Concept of Law, 2nd ed., (Sections 2 and 3 of Chapter V; and Section 1 of Chapter VI) pp * Legal Positivism and Interpretivism (Jan 28) H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harvard Law Review (1953) Ronald Dworkin, The Model of Rules, 35 University of Chicago Law Review (1967) Human Rights (Feb 2) Joseph Raz, Human Rights Without Foundations (March 2007). Oxford Legal Studies Research Paper No. 14/2007. Richard Rorty, Human Rights, Rationality and Sentimentality * Natural Law (Feb 4) John Finnis, Natural Law & Natural Rights, 2nd Ed., Chapter 3 (A Basic Form of Good: Knowledge) and Chapter 4 (The Other Basic Values) * Critical Disability Theory (Feb 9) III - Conceptual Tools to Destabilize the Legal Order Tom Shakespeare, Nicholas Watson, The social model of disability: An outdated ideology?, in Sharon N. Barnartt and Barbara M. Altman (Eds.) Exploring Theories and Expanding Methodologies: Where we are and where we need to go (2001) pp.9-28 * Simo Vehmas, Discriminative Assumptions of Utilitarian Bioethics Regarding Individuals with Intellectual Disabilities, (1999) Disability & Society, Vol. 14, No. 1, pp Anita Silvers, A Fatal Attraction To Normalizing: Treating Disabilities As Deviations from 'Species-Typical' Functioning, in Eric Parens (ed.) Enhancing Human Capacities: Conceptual Complexities and Ethical Implications, Georgetown University Press, 1998, pp * Feminist Theory (Feb 11) Martha Albertson Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, Yale Journal of Law & Feminism, Vol. 20, No. 1, of 7

6 Jennifer Nedelsky, Part Time For All: Generating New Norms of Work and Care (Draft Chapter, to be ed to students separately, with author s permission.) Study Break (No Class on Feb 16 and 18) Aboriginal Legal Reasoning (Feb 23) John Borrows, Canada s Indigenous Constitution, chap.1 and 2 * Val Napoleon, Living Together, Gitskan Legal Reasoning as a Foundation for Consent * Equality (Feb 25) *** *** Iris Marion Young, Justice and the Politics of Difference (1990), Chap.2: Five Faces of Oppression * Elizabeth Anderson, What is the Point of Equality?, Ethics, Vol.109, No.2 (Jan.1999), Respect (March 1) Avishai Margalit, The Decent Society, Part II, The Ground of Respect, pp Meyer, M.J. and L.J. Nelson, 2001, Respecting What We Destroy: Reflections on Human Embryo Research, Hastings Center Report, 31: Schmidtz, D., 2011, Respect for Everything, Ethics, Policy, and Environment, 14: Personhood, Moral Status, and Legal Standing (March 3) Margaret Little. "Abortion & the Margins of Personhood." Rutgers Law Journal 39 (2008): Stone, Should Trees Have Standing--Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972) Liberty and Autonomy (March 8) John Stuart Mill, Of the Limits to the Authority of Society over the Individual, in On Liberty, Chapter 4 Raz, Autonomy and Pluralism, in The Morality of Freedom, chap.14 * Wronging (March 10) Joel Feinberg, Exploitation With and Without Harm, in p * 6 of 7

7 John Gardner, The Wrongness of Rape. * Nature of the law (March 15) Jerome Frank, Law and the Modern Mind, chapters 4 and 5 * R. Gordon, Law and Ideology, Tikkun vol.3, nr 1, pp and Legal Positivism and Interpretivism (March 17) Joseph Raz, The Authority of Law (OUP 1979), chap.3: Legal Positivism and the Sources of Law Ronald Dworkin, Law as Interpretation, 9 Critical Inquiry 179 (1982) Human Rights (March 22) David Miller, Personhood versus Human Needs as Grounds for Human Rights, in Griffin on Human Rights, edited by Roger Crisp (OUP 2014), chap.7 (pp ) Jack Donnelly, Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights, American Political Science Review / Volume 76 / Issue 02 / June 1982, pp Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, EJIL 19 (2008) Natural Law (March 24) John Finnis, Law, Morality and Sexual Orientation, 69 Notre Dame University Law Review 1049 (1994) Michael J. Perry, The Morality of Homosexual Conduct: A Response to John Finnis, Notre Dame Journal of Law, Ethics and Public Policy, Vol.9, Issue 1, p.41 (1994) Critical Disability Theory (March 29) Jeff McMahan, Challenges to human equality, (2008) Journal of Ethics 12 (1): Vorhaus, J. (2005), Citizenship, Competence and Profound Disability, Journal of Philosophy of Education, 39: Feminist Theory (March 31) Eva Kittay, Love s Labor, chap.4: The Benefits and Burdens of Social Cooperation, p * Daniel Engster, Care Ethics and Natural Law Theory: Toward an Institutional Political Theory of Caring Journal of Politics, Volume 66, Issue 1, pages , February 2004 Revision (April 5 and 7) 7 of 7