Philosophy Course: Philosophy of Law

Course summary

The laws of a society embody both its highest ideals and its worst nightmares. This philosophy of law course examines the origins of law and why humans invent laws for themselves. Jurisprudence is the area of philosophy interested in the study of the fundamental concepts underpinning legal systems. We will compare different cultural and historical systems of law, engage in lively discussions on issues such as sedition, torture, human rights and the problem of evidence, and the connection of law to ethics, culture and science.

Law, in its broadest sense, is the body of rules that a society use to oblige its members to act (or refrain from acting) in certain ways. Anthropologists claim that every human society has a set of rules. The legal positivist H.L.A. Hart shows that even at the local or customary level, the essential feature that makes a rule a law (as opposed to a suggestion, opinion, or preferred way of doing things) is a mechanism for enforcing the rule. ‘Law’ is therefore an enforceable rule. At its simplest level, it is the power to enact punishment or withhold privileges, benefits, or goods from others.

The course engages with a growing body of literature on many new areas of law and society, diversity and identity politics. These issues are reflected in new publications such as: The Cambridge Companion to the Philosophy of Law (2020) and The Cambridge Companion to Legal Positivism (2021).

By the end of this course, you should be able to:

• recognise the historical origins of jurisprudence in the areas of: contract theory; utilitarianism; Marxism; positivism
• identify some key differences between types of legal justification, from 'natural rights' theory to the present
• describe different aspects of legal mechanisms, such as the jury system
• better understand international law and the challenges of global legal theory

Jurisprudence: history and concepts

What is the 'law'? We begin with a discussion of the features which constitute a ‘law’ as opposed to other types of rules or conventions. With the help of English history, we will consider a range of theorists from the sixteenth century to the present, who have and continue to seek some justification for law beyond human custom or convention.

Types of philosophy of law

• Natural law theory (religious)
• Natural law theory (scientific and liberal humanist)
• Utilitarianism: readings from J.S. Mill
• Law and distributive justice: readings from John Rawls
• Law as an economic theory: readings from Richard Posner
• Kantianism and the law as good will: readings from Kant’s The Philosophy of Law (1887)
• Positivism: readings from John Austin and H.L.A. Hart
• Marxism, postmodernism & critical theory: the problem with power, and how it acts to control and define subjects, particularly those in marginalised groups

Analysis of legal mechanisms and procedures

• The rise of the jury: pros and cons of being judged by your peers, and the issue of evidence in this session and by extension, how do you assess guilt?
• Crime and punishment: what is the point of punishment: retribution, rehabilitation, justice, utility; what is acceptable as a punishment; should victims or their families have a say in the matter
• Legal reasoning: argument from analogy and the mechanism of precedent in legal history

Global issues & international law

• Human rights: readings from Geoffrey Robertson’s Crimes Against Humanity (1999)
• The U.N. and global security: the limits of national law and when international law is legitimate
• Globalisation of law: is it necessary to solve some of our major world issues?

Law and the humanities

• Law and anthropology: understanding different societies and their histories allows us to asses our own legal system more objectively
• Law and psychology: psychology has spent much research on understanding how the criminal mind works
• Law and sociology: sociology attempts to understand human social behaviour and the need for rules and regulations

Anyone with a general interest in philosophy and the course themes.

Lecture/seminar.

Course notes are distributed electronically.

Spaak, T & Mindus, P (Eds.) 2021, The Cambridge Companion to Legal Positivism, Cambridge University Press, Cambridge, UK.

Tasioulas, J (Ed.) 2020, The Cambridge Companion to the Philosophy of Law, Cambridge University Press, Cambridge, UK.