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Semester and Year Offered: 2nd (Winter Semester 2019)
Course Coordinator and Team: Lawrence Liang, SLGC
Email of course coordinator: Lawrence[at]aud[dot]ac[dot]in
Course Aims and Objectives
1. If the course is a part of one or more programme(s), its location in the programme(s) core/compulsory/optional/any other:
2. A brief description of the Course:
Some of the most abiding conceptual questions in law have constituted the subject matter of jurisprudence. These include the nature of law, its relationship to sovereignty, do we have an obligation to obey the law, do laws have a moral content? Often regarded as the philosophical backbone of the law, jurisprudence has evolved over many centuries via the emergence of different schools of thought and the stakes in jurisprudence debates are very high as it is not just the crucial terrain on which the conceptual battles in the law take place, but these debates also substantively determine the design of legal systems and how laws are interpreted. For instance the question of the extent to which the state can regulate the dietary preferences of individuals is not just a matter of politics but also of jurisprudence as it goes into the heart of jurisprudential debates.
This course serves as the necessary introduction especially for students who come from a non law background to the key debates in legal philosophy. The approach that will be adopted in teaching the course is a combination of the following:
of the abiding concerns of jurisprudence is the very nature of law itself, but what exactly is at stake in the question and why do we need a general theory of what law is, and what does it have to do with legal practice? One of the aims of this course will be to examine the conceptual and practical implications of jurisprudence for the practice of law. Jurisprudence has often thought of as the province of “dead white men”, and in this course we will try to study the classics of jurisprudence but with a keen eye towards their lively, vital relevance to contemporary debates. While the domain of jurisprudence us vast, in this course will be looking at some of the foundational debates and focus on one strand of analytical jurisprudence namely the debate between legal positivism and normative jurisprudence while other topics including sociological jurisprudence etc. will be covered in other courses. In particular we will focus on the works of two thinkers H L A Hart and Ronald Dworkin along with their interlocutors.
There will be four modules:
The first module introduces students to the key questions in legal philosophy including the nature and source of law, the nature of legal obligation
The second module examines the dominant philosophical school of the 20th century namely legal positivism and it continuing appeal. The module will examine the works of John Austin, Hans Kelsen and HLA Hart and examines the nature of rules, the split between law and morality.
The third module turns to normative philosophy’s critique of legal positivism as it emerges in the works of Ronald Dworkin.
The final module introduces the students to critical jurisprudence and will lay the ground for many of the specific electives that will be offered in the future. In this module we will examine law and society scholarship, critical legal studies, feminist jurisprudence
3. Specific Requirements on the part of students who can be admitted to this course:
(Pre requisites or prior knowledge level etc.)
No Prior Knowledge of constitutional law or history required
4. Course Details: (Course objectives, contents, reading list, instructional design, schedule of course transaction on the semester calendar with a brief note on each module)
Jurisprudence and Legal Philosophy
Course Aims and Objectives
The following books provide useful overviews of the field
Morrison, Wayne. Jurisprudence: From The Greeks To Post-Modernity. 1 edition. London: Routledge-Cavendish, 1995.
Ratnapala, Suri. Jurisprudence. 2 edition. Cambridge University Press, 2013.
Shapiro, Scott J. Legality. Belknap Press: Harvard University Press, 2013.
Syllabus with List of Readings
Module 1: Introduction and Key Questions
Topics to be Covered:
Why is jurisprudence obsessed with the question “What is Law”
What are the sources of law?
Where does our obligation to obey the law come from?
Is there anything distinct about legal reasoning?
What is the province of jurisprudence?
Are laws necessarily good, in the sense of having a moral basis?
What is the relation between law and morality?
Is it possible for law and morality to be in conflict, so that we may sometimes be morally obliged to disobey the law?
For the first class please read Chapter 1 of Shapiro, Scott J. Legality. Belknap Press: Harvard University Press, 2013
Must we Obey Laws? Antigone and the legitimacy of sovereign orders
Key Excerpts from Antigone (Translated by Reginald Gibbons) (Students are encouraged to read the entire play)
Martha Nussbaum, Sophocles' Antigone: conflict, vision, and simplification from The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy. Cambridge University Press, 2001.
For anyone interested in exploring Antigone further, a particularly poignant modern version was written by Jean Anouilh and performed for the first time in France under Nazi occupation accentuating the key themes and conflicts in Antigone
Costas Douzinas, Antigone’s Dike: Justice Miscarried: Ethics and Aesthetics in Law
Week 3 :
The Speluncean Explorer’s Case
Lon Fuller, The Case of the Speluncean Explorers". Harvard Law Review. The Harvard Law Review Association. 62 (4): 616–645
Suber, Peter (1998). The Case of the Speluncean Explorers: Nine New Opinions. London: Routledge
Module 2: Analytical Jurisprudence
Topics to be Covered:
Are laws no more than commands made by a sovereign that have to be obeyed?
What are the intellectual and philosophical foundations of positivism
Why has positivism been such an influential approach and what accounts for HLA Hart’s preeminence in legal philosophy
The relationship between law and morality
Week 4: Intellectual Foundations and Antecedents
Utilitarianism and Command Theory of Law
Bentham and John Austin
Kelsen’s Pure theory of law
Jeremy Bentham, Extracts from Principles of morals and legislation
John Austin, Lecture 1 of “The Province of Jurisprudence Determined, pp.58-77 “ in The Philosophy of Law, eds. F. Schauer, W. Sinnot-Armstrong, pp. 32-39
Upendra Baxi, Introduction to Principles of morals and legislation,
Extracts from Hans Kelsen’s Pure Theory of Law, pp.1-54
Andrei Marmor,A Pure theory of law in Philosophy of Law
Week 5 & 6:
The Concept of Law
HLA Hart’s The Concept of Law is widely regarded as the most important contribution to jurisprudence in the 20th century and it is a text that has been severely debated and critiqued. Following Brian Simpson’s suggestion, we will read this text as though it were a fresh text attempting to pay attention via a close reading to its claims and internal logic before we proceed to engage with critical responses to the work.
HLA Hart, The Concept of law, pp. 1-78
For anyone interested in a substantive commentary on Hart’s Concept of Law, you may consider reading the following texts
Jules L. Coleman and Brian Leiter, Legal Positivism from Dennis Patterson, Ed., A Companion to Philosophy of Law and Legal Theory
Leslie Green, The Concept of law, Michigan law Review Vol.94 (1687)
Extracts from Jules Coleman, Hart's Postscript: Essays on the Postscript to the Concept of Law
Luís Duarte D'Almeida & James Edwards & Andrea Dolcetti, Reading HLA Hart's 'The Concept of Law'
A. W. Brian Simpson, Reflections on 'The Concept of Law'
Positivism and Morality
HLA Hart, The Concept of law, pp. 79-123
Hart, H. L. A. (1958). "Positivism and the Separation of Law and Morals". 71 Harvard Law Review 593. 71
Fuller, Lon L. (1958). "Positivism and Fidelity to Law — A Reply to Professor Hart". 71 Harvard Law Review 630. 71
Kent Greenwall, Legal Enforcement of Moral Norms against Causing Harm in Dennis Paterson, A Companion to Philosophy of Law and Legal Theory
Topics to be Discussed
The critique of positivism by normative philosophy
What is the moral content of law and why is it desirable?
How are ‘hard cases’ settled in law
What is the role of judicial interpretation in fleshing out the substantive content of law
How is new law made
Week 7: Dworkin and the critique of Positivism
Ronald Dworkin, Taking Rights seriously , pp. 1-80
Ronald Dworkin, Law's Empire, Chapters 1-7 (pp.1-225)
Upendra Baxi, A known but an indifferent judge”: Situating Ronald Dworkin in contemporary Indian jurisprudence, I.CON, Volume 1, Number 4, 2003, pp. 557–589
Abhishek Sudhir,DISCOVERING DWORKIN IN THE SUPREME COURT OF INDIA - A COMPARATIVE EXCURSUS, NUJS Law Review
Topics to be covered
Does classical jurisprudence give us a dogmatic image of law
What is the ideological content of law
Week 9 : The critique of Dogmatic image of law
Alexander Lefebvre, The Image of law, Chapters 1, 2 and 4 (Deleuze and the response to Hart and Dworkin)
Allan C Hutchinson, Province of Jurisprudence Compromised from The Province of Jurisprudence Democratized
Costas Douzinas, Chapter 1 of Critical Jurisprudence: The Political Philosophy of Justice, Hart Publishing, 2005, pp.3-42
Mark V. Tushnet, Critical Legal Theory from The Blackwell Guide to the Philosophy of Law and Legal Theory
Patricia Smith, Four Themes in Feminist Legal Theory: Difference, Dominance, Domesticity, and Denial from The Blackwell Guide to the Philosophy of Law and Legal Theory
Costas Douzinas, Chapter 9: News from Nowhere: Anxiety, Critical Legal Studies and Critical 'Tradition(s)' of Critical Jurisprudence: The Political Philosophy of Justice, Hart Publishing, 2005, pp.3-42
Brian Z. Tamanaha, Law and Society from A Companion to Philosophy of Law and Legal Theory, pp. 368-80
Patricia Ewick and Susan Silbey, Chapter 1: Millie Simpson from The Common Place of Law: Stories From Everyday Life
Costas Douzinas, Chapter 11 Postcolonial Jurisprudence from Critical Jurisprudence: The Political Philosophy of Justice, Hart Publishing, 2005
Drucilla Cornell & Nyoko Muvangua, Introduction from UBuntu and the Law: African Ideals and Postapartheid Jurisprudence, Fordham Univ. Press, 2012
Extracts from Boaventura de Sousa Santos, Epistemologies of the South: Justice Against Epistemicide
5. Assessment Methodology:
6. No. of students to be admitted:42
7. Special needs in terms of special expertise of faculty, facilities, requirements in terms of studio, lab, clinic, library, classroom and others instructional space, linkages with external agencies (e.g., with field-based organizations, hospital) etc.: