Philosophy of Law

 

On Thurs. Nov. 29, I will have selected four of the following questions. You will be asked to write on two of them (one hr.) As before, you are encouraged to get together and discuss the issues with your classmates, tutors etc.  However, you must write your own answer using what you learn from the discussions. Do not share answer outlines or formulations. If the examiners find answers that are excessively similar, all will be marked down for lack of originality.

1.  Explain Dworkin's principle-rule and principle-policy distinctions.  What problems in legal philosophy should they solve?  Do they work?

2.  Can we justify punishing people for actions they did not consciously intend? Discuss how the inner morality of law underlies its treatment of responsibility with attention to examples such as the issues of novus actus, mens rea, negligence, and the insanity plea.

3.  "The purpose of law is to preserve society.  Thus, a society's law should promote the its conception of morality and the laws should protect people even from their own mistakes."  Comment.

4.  “When a judge makes a legal ruling, he has no choice but to apply his own morality in interpreting the law.”   Analyze this claim in the light of the dispute between Dworkin and Hart on judicial discretion.

5.  Concisely discuss the theory of adjudication: deal with the analogy between science and legal‑moral reasoning, institutional competence, formalism, discretion, mistakes, stare decisis, principle/rule and principle/policy distinctions.

6.  Distinguish between retribution and vengeance. Discuss some key arguments leading to the conclusion that we have a duty to punish violations of law.  If they fail, what can we still say about how punishment is related to the justification of the rule of law?  If the rule of law is morally justified and the law has an inner morality, does it follow that we have a moral obligation to obey the law?  Why or why not?

7.  Analytically discuss fidelity to the rule of law. Does it differ from an obligation to obey law? Does it ever create an obligation to disobey law? Discuss the relevance of Rawls' notions of the “burdens of commitment,” the "natural duty of justice" v the political obligation of officials, the community's interests in having no final authority on matters of justice.

8.  What is the difference between a concurrent and conventional morality? How is the inner morality of law a concurrent morality? What is Dworkin's implied criticism of Hart's and Raz's "social rule" theory with its acceptance/compliance distinction?

9.  Taking Democracy Seriously: Judges are just fallible humans. They are not gods. If you want correct political decisions you should support majority rule. That is ultimately the only fair system‑‑no minority should be able to overrule a majority on political issues. Democracy may not be perfect but it is the best system we could have and you ought to obey the laws of a democratic system if you participate (or have the opportunity to participate) in the democratic process. Comment. 

10.  Explain why the Durham insanity rule began to replace the M'Naghten insanity rule. What new ethical problem did the Durham rule introduce? What language would be best (most consistent with the moral principles that justify the rule of law)?