Dr. Michael Giudice
E-mail: giudice@yorku.ca (for questions and to set up an appointment)

Office hours: by appointment only.  I will be available to meet, either in person or over Zoom.  To arrange a meeting, please e-mail me at giudice@yorku.ca

This is an introductory course which does not require any prior knowledge of law or philosophy.  We will begin with an account of factual features of law, legal systems, and legal reasoning, which will help us identify and discuss issues which benefit from philosophical inquiry.  We will also begin with an introduction to what philosophy is.  The main goal of the course is to develop the analytical skills needed to reason critically about thorny philosophical issues about the nature of law and its relation to politics, morality, and other features of social life.  It is important to note that this inquiry into law does not begin with the assumption that there are easily found answers to these issues: they may resist our best attempts to resolve them.  We can, however, come to an understanding of why some issues are particularly difficult to resolve, and we will be able to suggest a variety of promising ways of facing disputes arising from such issues.

The course topics are divided into three main parts.  First, we will critically examine two general theories about the nature of law, natural law theory and legal positivism, with particular attention to how these theories understand the similarities and differences between law and morality.  Second, we will examine two theories of legal reasoning, constructive interpretation and legal realism, with close attention to the aims of judicial decisions and underlying presumptions about courts.  Third, we will examine a couple of critical theories which challenge law’s purported neutrality in content and application, feminist jurisprudence and critical race theory.

Technical requirements for taking the course: internet access, for viewing materials on the eClass website.

Mode of Delivery: This course will be delivered in an in person format.  The lectures will be delivered on Mondays, 10:30-12:20. (*Previously recorded lectures will also be uploaded to the eClass website, available for viewing at your convenience.)

Culver and M. Giudice, eds, Readings in the Philosophy of Law, 3^rd ed. (Broadview Press, 2017)

*Note: the textbook is available in electronic format, available for purchase directly from the publisher: https://broadviewpress.com/.  Should you wish to purchase an electronic copy, it is recommended that you choose the “PDF” instead of the “EPUB” format, since only the “PDF” version preserves the original pagination of the textbook.

*Note: the textbook is available in electronic format, available for purchase directly from the publisher: https://broadviewpress.com/.  Should you wish to purchase an electronic copy, it is recommended that you choose the “PDF” instead of the “EPUB” format, since only the “PDF” version preserves the original pagination of the textbook.

Test:                                                                   25% (February 27, 2023)

Essay:                                                                    35% (Due: April 3, 2023)

Exam:                                                                    40% (in April, date set by Registrar)

The course is team-taught and organized into lectures and tutorials.  The lectures will introduce central ideas and arguments from the theories we will examine, often situating these in their historical context and raising critical questions.  The tutorials provide the opportunity to discuss the lectures and readings in smaller groups and in more detail.  Associated readings for each week are listed below under ‘Reading Schedule’.

All assignments, with instructions, will also be posted on the eClass website.

The purpose of this course is to assist students in understanding and identifying central features of life under law which merit philosophical analysis and demand justification.  In addition to this course-specific goal, you will also improve your ability to read, criticize, present, and defend arguments in a rigorous and compelling manner.

Reading Schedule

*Notes: 1. Page numbers refer to Culver and Giudice, Readings in the Philosophy of Law (3^rd edition, Broadview Press, 2017), and identify the readings associated with the weekly lectures.  2. The dates refer to when lectures and slides will be posted on the eClass website.  Bolded dates refer to test and essay due dates.

Jan. 9:            Introduction to the Course (no readings)

1. What is Law?

Jan. 16:          Aquinas, “Treatise on Law”, 27-41.

Jan. 23:          Finnis, Natural Law and Natural Rights, 41-61.

Wahkohtowin (Cree Natural Law Theory: https://www.youtube.com/watch?v=NTXMrn2BZB0)

Jan. 30:          Austin, “The Province of Jurisprudence Determined,” 68-84.

Feb. 6:            Hart, “Positivism and the Separation of Law and Morals”, 84-106.

Feb. 13:         Hart, “Law as the Union of Primary and Secondary Rules”, and “The

Foundations of a Legal System”, 106-127.

Feb. 18-24:  Reading week (no classes)

Feb. 27:         Test (25%)

Mar. 6:            The Concept of Legal System and First Nations in Canada (no readings)

1. Legal Reasoning

Mar. 13:        Dworkin, “The Model of Rules I”, 133-155.

Mar. 20:         Dworkin, “Integrity in Law”, 155-171.

Mar. 27:         Holmes, “The Path of the Law”, 177-182.

III. Critical Theories

Apr. 3:          Essay Due (35%)

Apr. 3:          Smith, “Feminist Jurisprudence and the Nature of Law”, and

MacKinnon, “Toward Feminist Jurisprudence”, 218-236.

Delgado, “About Your Masthead: A Preliminary Inquiry into the Compatibility of Civil Rights and Civil Liberties”, 236-246.