Law 310 Jurisprudence Fall Semester 2014 Instructor Room No. Office Hours Email Telephone Secretary/TA TA Office Hours Course URL (if any) Saad Rasool saad@post.harvard.edu Course Basics Credit Hours 4 Lecture(s) Nbr of Lec(s) Per Week Recitation/Lab (per Nbr of Lec(s) Per week) Week Tutorial (per week) Nbr of Lec(s) Per Week 2 Duration 100 minutes Duration Duration Course Distribution Core Elective Open for Student Category Close for Student Category Core All Departments COURSE DESCRIPTION Welcome to a course that tries to trace the essence and inception of law, with the sole aim of answering the age old question: what is law and how do you define justice? What structures and systems constitute in the achieving of an ideal legal society? How can these be developed? And what reform process, from here on, is necessary to realize the elusive spirit of justice?
Those opting for this course are welcome to a world where every thoughtful answer is correct, while at the same time, every intellectual discourse is doubtful. Sifting through the ideas and theories postulated by some of the greatest thinkers of human history, some of the most controversial minds of their time, and reassessing ideas that have challenged the very fundamentals of human purpose and societal ambition, the course will encourage each student each eager mind of tomorrow to make his or her own assessment about the nature of justice and the society in which we exist. COURSE PREREQUISITE(S) None. COURSE OBJECTIVES On completion of the course students will be able to: Develop analytical skills that are necessary for surviving in the legal profession. Critically examine the various legal theories that have spanned the trajectory of legal history. View legal systems as they are, assess what they should become, and discuss the reforms necessary for transformation towards an ideal legal society. Learning Outcomes Grading Breakup and Policy
Assignment(s): NA Home Work: NA Quiz(s): NA Class Participation: 25 Attendance: 10 (unexplained absences can result in penalty affecting your final grade) Midterm Examination: 25 Project: NA Final Examination: 40 Examination Detail Midterm Exam Yes/No: Yes Combine Separate: Duration: 12 hours Preferred Date: Exam Specifications: Take home. Final Exam Yes/No: Yes Combine Separate: Duration: 12 hours Exam Specifications: Take home (Essay) COURSE OVERVIEW Week/ Lecture/ Module Week 1 What is jurisprudence? Topics Solving the puzzle. Readings Fuller, L. The Speluncean Explorers 62 Harvard Law Review 616 Hart, H.L.A. Essays in Jurisprudence and philosophy. Definition and theory in jurisprudence H.L.A. Hart (Oxford: Clarendon Press, 1983)
Week 2 Positivism Bentham and Austin Extracts from Austin, J. The Province of Jurisprudence Determined, 1832 ( Extracts from Austin, J. Lectures on Jurisprudence or the Philosophy of Positive Law. Edited by Robert Cambell. 2 vols. (1863; fifth edition, 1885). Cotterrell, R. The Politics of jurisprudence: a critical introduction to legal philosophy. (London: LexisNexis UK, 2003) Was Austin right after all? by Feredrick Schauer. Kelsen Imperative & command theories of law Raz s The purity of the pure theory Raz s article, Kelsen s theory of the basic norm in Raz, The Authority of Law p.122, Extracts from Kelsen s The Pure Theory of Law Extracts from Kelsen s General Theory of Law and State The State v Dosso PLD 1958 SC 533 Madzimbamuto v Lardner-Burke 1966 RLR (Rhodesian Law Reports) 756 R v Ndhlovu SA 1968 (4) 5l5 Jilani v The Government of Punjab PLD 1972 SC l39 Lakanmi v A.G. (West) (1970) 5 H.L.A Hart Hart s The concept of law (criticism of Austin - Chapters 1 to 4) Week 3 and 4 Positivism H.L.A Hart s concept of law. H.L.A Hart The Concept of law (Chapter 5 onwards) Hart s own theory Hart Vs. Dworkin THE HART-DWORKIN Debate: A short guide for the Perplexed by Scott J. Shapiro
On Hart s postscript Two strands in Hart s theory of law: a comment on the Postscript to Hart s The Concept of Law Stephen Guest R. Dworkin, 'Hart's Postscript and the Character of Legal Philosophy Hart Vs. Fuller & Finnis Hart & his arch nemesis. Finnis, J. Natural Law and Natural Rights. (Oxford: Oxford University Press, 1980) Korematsu v United States, 323 US 214, 246 (1944) Philosophy, political morality, and history: Explain the enduring resonance of the Hart-Fuller Debate by Nicola Lacey Fuller, L. Positivism and fidelity to law a reply to Professor Hart (1958) Harvard L.R. 630 (and see Freeman, Chapter: Modern trends in analytical jurisprudence, for extracts from both Hart and Fuller). Fuller, L. The Morality of Law. (New Haven: Yale University Press, 1970) Chapters from Hart, H. Essays in Jurisprudence and Philosophy. Hart Vs. Devlin Devlin Was Right: Law and the Enforcement of Morality by Gerald Dworkin 40 Wm. & Mary L. Rev. 927 The Legal Enforcement of Morals and the So-Called Hart-Devlin Controversy by Yves Caron Week 5 and 6 (lex naturalis) Classical and modern natural law theory Jus gentium & rise of natural law. Morrison, W. Jurisprudence from the Greeks to Post-modernism. (London: Cavendish, 1997) Chapter 2: Origins: Classical Greece and the idea of natural law, and Chapter 3: The laws of nature, man s power, and God: the synthesis of mediaeval Christendom. Chapter on natural law Freeman Aristotle, Aquinas, Cicero, Hobbes. Extracts from Leviathan by Thomas Hobbes H.L.A Hart Hart, H.L.A. The Concept of Law. (Oxford: Clarendon Press, 1994) (second edition) Chapter VIII, Justice and morality, and Chapter IX, Laws and morals. Hart, H.L.A. Essays in Jurisprudence and Philosophy. (Oxford, Clarendon Press, 1983) Fuller s inner morality of law
Chapter 2: Positivism and the separation of law and morals, and Chapter 16: Lon L. Fuller: The morality of law. Fuller, L. L. The Morality of Law. (revised edition) (New Haven: Yale University Press, 1969). Finnis Evaluation and description of law by John Finnis Finnis, J. Natural Law and Natural Rights. (Oxford: Clarendon Press, 1980). Week 7 (Ronald Dworkin) The integrity and interpretation of law Extracts from Dworkin, R. Taking Rights Seriously. (London: Duckworth, 1978). Extracts from Dworkin, R. Law s Empire. (Oxford: Hart Publishing, 1998) Introduction to Ronald Dworkin by Stephen Guest Extract from Coherence, holism and interpretation: the epistemic Foundation of Dworkin s legal theory by Andrei Marmor Week 8 (sociology of law) Social Theory and law Durkheim, E. The Division of Labour in Society. (New York: Macmillan, 1933). [First published 1893.] Durkheim s division of labour in society by Robert. K. Merton Weber, M. and M. Rheinstein (ed.) Max Weber on Law in Economy and Society. (Cambridge, Mass.: Harvard University Press, 1954). Max Weber on Law and the Rise of Capitalism by David M. Trubek Chapter from Freeman: Sociological jurisprudence and the sociology of law Week 9 and 10 (Marxism and Feminism) The proletarians have nothing to lose but their chains. Extracts from The wealth of nations Letter to a wound: Marxism, justice and the social order by Costas Douzinas and Adam Gearey chapter 8 of Douzinas, C. and A. Gearey. Critical jurisprudence: a textbook. (Oxford: Hart Publishing, 2005) Freeman, Chapter 13: Marxist theories of law and state Extracts from Das Kapital and the German Ideology Marxism, Structuralism and Vulgar Materialism by Jonathan Friedman Western Marxism Lenin and the state
Pashukanis Extracts from Essays on Ideology by Louis althusser Jackson, J. H. The Jurisprudence of GATT and the WTO: Insights into treaty law and economic relations. (Cambridge: Cambridge University Press, 1999 Women in Islam What is the woman question? The Rights and Duties of Women in Islam (National Research and Development Foundation (NRDF)) Women s Rights in Islam (National Research and Development Foundation (NRDF) Gender Jihad: Muslim Women, Islamic Jurisprudence, and Women s Rights (by Melanie P. Mejia) The inquisitive case of many farzanas in Pakistan. Feminist wave. Feminism, Marxism, Method, and the State: An Agenda for Theory by Catharine A. MacKinnon Extracts from towards a feminist theory of state by Catherine Mackinnon. Desperately seeking a moralist by Robin West Jurisprudence and gender by Robin West Feminist Jurisprudence: grounding the theories by P A Cain Gilligan, C. In A Different Voice: Psychological Theory and Women s Development Scales, A. C. The emergence of feminist jurisprudence: an essay, Yale Law Journal, vol. 95 (1986), pp. 1373 1403. A few useful websites: www.womensaid.org.uk www.amnesty.org.uk Week 11 (miscellaneous) Critical Legal Studies Freeman, Chapter 14: Critical legal studies Duncan Kennedy s article The structure of Blackstone s Commentaries (1979) and Freedom and constraint in adjudication: a critical phenomenology (Journal of Legal Education, 1986, 36 pp. 518 62) The ideas of Peter Gabel Reification in legal reasoning (Research in Law and Sociology (1980) 3 pp. 25 51. Extracts from the works of Roberto Unger Textbook(s)/Supplementary Readings
Text book: Lloyd s Introduction to Jurisprudence, edited by M. D. Freeman, 8 th Edition (published by Sweet and Maxwell, 2008)/ Jurisprudence and legal theory by Penner and The concept of law by H.L.A. Hart. You will be informed about the additional readings (which may actually be essential), before every class, for a few of these topics.