programme

The Legal Imagination

Home/ The Legal Imagination
Course TypeCourse CodeNo. Of Credits
Foundation ElectiveNA4

Semester and Year Offered: 2nd (Winter Semester 2019)

Course Coordinator and Team: Lawrence Liang, SLGC

Email of course coordinator: Lawrence@aud.ac.in

Pre-requisites: None

Course Aims and Objectives

  1. To introduce students to the key debates within legal philosophy through an intellectual history of jurisprudence
  2. To provide an in depth examination of one of the defining legal debates of the 20th century namely analytical versus normative jurisprudence
  3. To introduce students to critiques of classical jurisprudence that will serve as the necessary base for future elective courses focusing on these critiques

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:

  • Linking the abstract philosophical debates to current legal questions (For instance in the introduction sessions on natural versus positive law, we will work through the arguments unfolding in the Supreme court in the Aadhar case on whether there is the right to privacy in India
  • Using thought experiments with varied fact situations from everyday life to illustrate the specificity of legal reasoning

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

 

 

  • To introduce students to the key debates within legal philosophy through an intellectual history of jurisprudence
  • To provide an in depth examination of one of the defining legal debates of the 20th century namely positivism versus normative jurisprudence
  • To introduce students to critiques of classical jurisprudence that will serve as the necessary base for future elective courses focusing on these critiques

 

 

Background Books

 

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?

 

 

 

 

Week 1

 

 

For the first class please read Chapter 1 of Shapiro, Scott J. Legality. Belknap Press: Harvard University Press, 2013

 

 

Week 2:

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.

 

Additional readings

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

 

Additional readings:

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

 

Readings

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

 

Additional readings

 

Andrei Marmor,A Pure theory of law in Philosophy of Law

 

Week 5 & 6: 

The Concept of Law

 

 

 

 

 

 

 

 

Week 5

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Week 6

 

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

 

Additional Readings:

 

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

 

Additional Readings:

Kent Greenwall, Legal Enforcement of Moral Norms against Causing Harm in Dennis Paterson, A Companion to Philosophy of Law and Legal Theory

 

 

 

Module 3

 

Normative Jurisprudence

 

 

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

 

Week 8:

 

Ronald Dworkin, Law's Empire, Chapters 1-7 (pp.1-225)

 

Additional Readings:

 

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

 

 

 

 

Module 4

Critical Jurisprudence

 

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

 

 

 

Week 10

 

 

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

 

 

Week 11

 

 

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

 

 

 

Week 12

 

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:

  • A combination of mid term examination, books reviews, response essays, presentations, final exam
  • Rough break up:
  • Short Response Essays: 20%
  • End Term Exam: 20 %
  • Class Presentations: 20%
  • Book Review: 10%
  • Written Project: 30%

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.:

Note:

  1. Modifications on the basis of deliberations in the Board of Studies may be incorporated and the revised proposal should be submitted to the Academic Council.
  2. Courses which are meant to be part of more than one programme, and are to be shared across schools, may need to be taken through the Boards of Studies of the respective schools.
  3. In certain special cases, where a course does not belong to any particular school, the proposal may be submitted directly to the Academic Council.