PHL 370 Issues in Philosophy of Law: Rights Instructor: Mark Schranz Email: mark.schranz@utoronto.ca Lectures: TBD Office/Hours: TBD Course Description Rights are a central concept in Legal, Political, and Moral theory. The possession of rights goes hand-in-hand with being a full member of a legal and political community. Debates about how we ought to treat others and grievances regarding inappropriate treatment are often put in terms of rights and rights violations. In this course we shall examine rights from a number of different but related perspectives. In the first place, we shall try to determine what the best account is of the nature of rights (or the best account of what rights are, what purposes they serve, and who can possess them; in particular we shall first be concerned with the debate between the Will (or Choice) Theory of rights and the Interest (or Benefit) Theory of rights. In the second place we shall examine what kinds of theories or principles that can be used to generate specific accounts of rights - specific accounts, that is, of the rights that we ought to have (or ought to endorse). In the third place we shall examine practical issues and legal cases concerning some of the rights that are actually enshrined in law; in particular we shall be concerned with the implications of the difficulties that arise when these rights conflict with other rights or other values. Texts A course-kit, consisting of selected book chapters and articles; available in the bookstore. A Debate Over Rights, by Matthew Kramer, Nigel Simmonds, and Hillel Steiner; available in the bookstore Course Requirements Class Participation and Attendance (10%) see below First Paper, 4-5 pages in length (25%) due at the beginning of Lecture 5, posted online after lecture 1. The first paper will be a critical summary of the debate between the Interest Theory of Rights and the Will Theory of rights. Your task will be to demonstrate a nuanced understanding of the debate between these theories rather than to defend one or the other. Second Paper, 7 pages in length (25%) -- due at the beginning of Lecture 11, posted online after lecture 5. The second paper will require you to evaluate either the Consequentialist approach to rights or the Natural Rights approach. Your aim will be to say whether or not your chosen theory provides an adequate philosophical foundation for rights. Final Comprehensive Exam (40%) scheduled by the Faculty of Arts and Science The exam will contain a mix of short answer and essay questions. In particular, the essay questions for the exam will be drawn from those sections of the course that are not covered by the first or second paper, so do not neglect to cover this material. PHL 370 Issues in Philosophy of Law: Rights; (c) Mark Schranz 2014. Do not use without permission. 1
Class Participation and Attendance The grade for class participation and attendance will be partly determined through the use of exit slips and according to the quality of the student s participation in class discussions. Under normal circumstances, 5% of the total grade will determined by exit slips and 5% of the total grade will be determined by participation in class discussion. Exit Slips: For each of lectures 2-11, each student will, before exiting the class, submit to the professor an exit slip. The student must write their name and the date on the exit slip as well as a brief comment about the material covered in lecture that day. Such comments may address an issue discussed in the lecture that the student feels they did not fully understand (and explain why they did not understand it), or ask a question about broader implications of the material covered in class, and so forth. Time will be taken at the beginning of the subsequent lecture to address selected comments that appear on these exit slips (especially those that identify issues that students feel they did not fully understand). Time will be allotted at the end of each lecture for filling out exit slips. Exit slips must be submitted in class; they cannot be emailed after. *** Please Note: Sections on Submission of Papers, Website, Email Policy, Classroom Etiquette, Plagiarism, Office Hours, Accessibility, and Letters of Support are omitted from this version for conciseness. They are identical to the sections for PHL271 (listed elsewhere on my site). Lectures, Reading Schedule, and Specific Learning Objectives: Lecture 1 Introduction to Course / Overview / Hohfeld s Analytical Scheme Readings: (1) Kramer, Rights Without Trimmings, in A Debate Over Rights, pp. 7-22. Learning Objectives: (1) Understanding of the course structure and policies. (2) Understanding of Hohfled s analytical framework for rights, in terms of which the debate between the interest theory and will theory will be framed. Lecture 2 Interest Theory and Will Theory I: Introduction Readings: (1) Kramer, Rights without Trimmings, pp. 60-66, 69-78. (2) Steiner, Working Rights, in A Debate Over Rights, pp. 231-262. Learning Objectives: (1) Understanding of the basic debate between the WT and the IT - and in particular the focus on the status of being a right holder. (2) Identify the main strengths and weaknesses of each theory. PHL 370 Issues in Philosophy of Law: Rights; (c) Mark Schranz 2014. Do not use without permission. 2
Lecture 3 Interest Theory and Will Theory II: Will Theory Readings: (1) Kramer, Rights Without Trimmings, pp. 66-9, 79-101. (2) Simmonds, Rights at the Cutting Edge, in A Debate Over Rights, pp. 195-211. (3) Sreenivasan, A Hybrid Theory of Claim-Rights, pp. 257-261. Learning Objectives: (1) Identify the main objections to WT (in particular as regards the status of those who lack legal powers and the status of our criminal law rights). (2) Identify and evaluate the main WT responses to these objections. Lecture 4 Interest Theory and Will Theory III: Interest Theory Readings: (1) Steiner, Working Rights, pp. 283-301. (2) Sreenivasan, A Hybrid Theory of Claim-Rights, 265-71. (3) Sreenivasan, 'Duties and their Direction' (omit secs II & III) Learning Objectives: (1) Identify the main objections to IT (in particular the distinctiveness of rights objection and the third-party beneficiary objection). (2) Identify and evaluate the main IT responses to these objections. Lecture 5 Hybrid Theory Readings: (1) Sreenivasan, Duties and Their Direction, pp. 486-494. (2) Kramer and Steiner, Theories of Rights: Is there a Third Way?, Section 2 (on Sreenivasan s Theory). Learning Objectives: (1) Sum up the debate between the WT and IT and reconceptualize it with regards to the distinction between directed and non-directed duties. (2) Examine and evaluate the Hybrid Theory of Claim-Rights, the main competitor to the WT and the IT which purports to have none of their problems and all of their advantages. PHL 370 Issues in Philosophy of Law: Rights; (c) Mark Schranz 2014. Do not use without permission. 3
Lecture 6 Rights and Thresholds Readings: (1) Judith Jarvis Thomson, Tradeoffs (2) Brennan, Thresholds for Rights Learning Objectives: (1) Bridge the gap between the WT/IT debate and the second phase of the course by examine what sorts of thresholds rights ought to have (or how much strength they ought to have against competing considerations). Lecture 7 Right-Based Theories Readings: (1) Mackie, Can There Be a Right-Based Moral Theory? (2) Raz, Right-Based Moralities Learning Objectives: (1) A basic understanding of the debate between consequentialist and non-consequentialist (or goal-based and non goal-based) accounts of the foundations of rights. (2) Address the question of whether rights actually need a foundation, or whether rights themselves can serve as a foundation for normative theory. Lecture 8 Consequentialist Approaches to Rights and Law Readings: (1) Lyons, Utility and Rights (2) Scanlon, 'Rights, Goals, and Fairness' (3) Pettit, The Consequentialist Can Recognize Rights Learning Objectives: (1) Identify the main problem that consequentialists are supposed to face when providing a foundation for rights with the Lyons reading. (2) Identify the main responses made by Consequentialists with the Pettit and Scanlon Readings. * Note: One of the two options for the second essay concerns the readings for this week. If you choose the relevant topic, you must account for the issues raised in these readings. PHL 370 Issues in Philosophy of Law: Rights; (c) Mark Schranz 2014. Do not use without permission. 4
Lecture 9 Non-Consequentialist Approaches to Rights and Law Readings: (1) Christopher Morris, Human Autonomy and the Natural Right to be Free (2) John Hasnas, Toward a Theory of Empirical Natural Rights Learning Objectives: (1) Identify the traditional argument for natural rights theory, based in the autonomy and separateness of persons, with the Morris reading. (2) Identify the problems faced by the traditional argument for natural rights theory with the Hasnas reading, and critically assess the empirical alternative that Hasnas offers. * Note: One of the two options for the second essay concerns the readings for this week. If you choose the relevant topic, you must account for the issues raised in these readings. Lecture 10 Freedom of Expression and its Limits Readings: (1) Thomas Scanlon, A Theory of Freedom of Expression (2) Susan Brison, The Autonomy Defense of Free Speech. Learning Objectives: (1) Examine the autonomy-based Millian theory of freedom of expression offered by Scanlon and examine some of the problems with this model as hate speech is concerned with Brison. Lecture 11 Freedom of Religion and the Rights of Children Readings: (1) Richard Arneson and Ian Shapiro, Democratic Autonomy and Religious Freedom: A Critique of Wisconsin v. Yoder (2) William Galston, Two Concepts of Liberalism Learning Objectives: (1) Examine the principles of freedom of religion in the Wisconsin v. Yoder case, and try to determine whether the U.S. Supreme Court s decision was best. Lecture 12 Catch-Up and Exam Review PHL 370 Issues in Philosophy of Law: Rights; (c) Mark Schranz 2014. Do not use without permission. 5