Dworkin’s critique of legal positivism.
Expectations: You will be evaluated on your ability to:
1) Clearly communicate understanding of the key concepts relevant to the chosen topics; to organize your understanding into a coherent summary position. NOT the appropriate context for demonstrating your originality, or for long and distracting digression or contextual background. Your main priority should be clear explication of the most important concepts and arguments we have studied in the course.
2) Demonstrate your ability to compare competing ideas and to offered reasoned justifications for taking a coherent position on a contentious issue.
Text if needed:
Law and Morality: Readings in Legal Philosophy 3rd Edition. David Dyzenhaus, Sophia Reibetanz Moreau and Arthur Ripstein, eds (Toronto: University of Toronto Press, 2007).
Oxford Handbook of Law and Politics Keith E. Whittington, R. Daniel Kelemen and Gregory A. Caldeira, eds (Oxford: Oxford University Press, 2010) (available online through library)
PLEASE ANSWER ALL in 300-600 words maximum Questions:
Direct quotes acceptable, do not PLAGIARIZE
Q1: Ronald Dworkin is a stern critic of legal positivism. Describe Dworkin’s critique of legal positivism. How does Dworkin’s own approach to judicial decision-making – interpretivism – respond to the charge that principled moral interpretation is subjective and inconsistent?
i. Ronald Dworkin ““Law’s Ambitions for Itself” LM Pp. 108-121
Q2: How does Weber’s sociological account of bureaucratic rationality (“legal rational authority”) compare to the judicial decision-making advocated by legal positivism? Make an argument either against or in defense of what Weber calls the “bureaucratization of justice.”
i. Max Weber “Bureaucracy and Law” From Max Weber: Essays in Sociology, ed. Gerth and Mills (London: Oxford University Press, 1958) Pp. 214-221
Q3: Compare and contrast two interpretations of the meaning of “self-evident” rights from the following list of traditions/thinkers: Natural law tradition, Lynn Hunt, Samuel Moyn, James Tully.
i. Lynn Hunt Inventing Human Rights (London: Norton & Co.,
2007) Pp. 15-34
i. James Tully “Two Traditions of Human Rights,” Matthias Lutz-
Bachmann and Amos Nascimento, eds. Human Rights, Human Dignity and Cosmopolitan Ideals: Essays on Critical Theory and Human Rights (New York, Routledge, 2014) Pp. 139-157.
i. Samuel Moyn, “Humanity Before Human Rights” in The Last
Utopia: Human Rights in History (Pp. 11-44)
i. Robert P. George, “Natural Law” in OHLP (Pp. 399-413)
Q4: Describe Patrick Devlin’s view of the proper relation between law and morality. What objection does Ronald Dworkin make to Devlin’s conception of morality? Does either offer a defensible position? – justify your view.
i. Patrick Devlin, “Morals and the Criminal Law” LM (Pp. 369-392)
ii. Ronald Dworkin ““Law’s Ambitions for Itself” LM Pp. 108-121
Q5: In Jeremy Waldron’s argument against judicial review he makes the case that judicial decision-making is no better than legislative decision-making in rigorously grappling with difficult moral and political issues (what he refers to as ‘outcome-related arguments). Describe his argument. Do you agree? Why or why not?
i. Jeremy Waldron, “The Irrelevance of Moral Objectivity,” Law and Disagreement (Oxford: Oxford University Press, 2001)
Q6: Garrett argues that habeas corpus “has the greatest force when due process protections are weakest.” Explain why recourse to habeas corpus is so important in the absence of due process rights, for example in the context of executive detainees? What abuses of human rights become possible in the absence of such protections?
Brandon L. Garrett “Habeas Corpus and Due Process”, 98 Cornell Law Review (2012) Pp. 48-71
Q7: How did the landmark decision in Tsilhqot’in Nation v. British Columbia (2004) “reconcile” public interests with Aboriginal rights? Did the decision do enough to advance Aboriginal right to self-determination? Why or why not?
Case: Tsilhquot’in Nation v British Columbia (2014)
Q8: Describe the nature of the shift from the older models of understanding law and social change (Rosenberg, Scheingold) to the newer models that Epp describes. How have the new approaches reconceptualized policy transformation?
i. Gerald N. Rosenberg (2008) The Hollow Hope: Can Courts Bring About Social Change? Second edition (Chicago: University of Chicago Press) Pp. 9-39; 72-10
ii. Charles Epp “Law as an Instrument of Social Reform” in OHLP Pp. 595-613.
iii. Stuart Scheingold and Austin Sarat (2004) Chapter Five “Cause Lawyers and Liberal Democracy: On the Possibilities of Democratic Advocacy” Something to Believe In: Politics, Professionalism and Cause Lawyering. (Stanford: Stanford University Press)
Q9: Elizabeth Anderson offers an account of the effects of concentrated poverty and racial segregation (and other constrained choice contexts) on individual behavior. Why does Anderson argue that it is necessary to address such problems through collective action and public policy change rather than by holding individuals responsible?
i. Elizabeth Anderson, The Imperative of Integration (Princeton University Press, 2013). Pp. 67-88
Q10: Bernstein argues that “right comes from wrong.” How should the understanding of the history of wrong that lead to the birth of the rule of law shape our view of the meaning and importance of that achievement?
J.M. Bernstein, Torture and Dignity: An Essay on Moral Injury (Chicago: University of Chicago Press, 2015) Pp. 26-66
J.M. Bernstein “Is Ethical Naturalism Possible? From Life to Recognition” Constellations Vol. 18 No. 1 (2011) pp. 8-20