UI 305:UI 305:Judicial ReasoningJudicial Reasoning

Prof. H. Hamner HillProf. H. Hamner Hill

Spring 2015Spring 2015

Student ExpectationsStudent Expectations

5 case studies 5 case studies 2 short writing assignments (6-8 pages)2 short writing assignments (6-8 pages) 1 in class mid-term exam1 in class mid-term exam 1 class presentation1 class presentation 1 final exam1 final exam

Grading StandardsGrading Standards Case studiesCase studies 15%15% First short paperFirst short paper 15%15% Mid-term examMid-term exam 20%20% Second short paperSecond short paper 20%20% PresentationPresentation 10%10% Final examFinal exam 20%20% Plagiarism and violations of academic Plagiarism and violations of academic

honesty result in zeroes for the honesty result in zeroes for the assignment.assignment.

What is Philosophy?What is Philosophy?Three Answers:Three Answers:

Reflecting on common sense Reflecting on common sense knowledge, seeking a deeper knowledge, seeking a deeper understanding of what we already knowunderstanding of what we already know

Linguistic or conceptual analysisLinguistic or conceptual analysis That branch of science that is That branch of science that is

concerned with those features of reality concerned with those features of reality that are of the greatest possible that are of the greatest possible generality or universalitygenerality or universality

Philosophy as the General Philosophy as the General Science of BeingScience of Being

Philosophers seek theories that provide Philosophers seek theories that provide an overarching framework within which an overarching framework within which the contents of the other branches of the contents of the other branches of knowledge (science, scholarship, law) knowledge (science, scholarship, law) can be placed.can be placed.

Philosophers seek consistent Philosophers seek consistent descriptions of those common features descriptions of those common features of reality (cause, purpose, value) that of reality (cause, purpose, value) that show up in every kind of inquiry.show up in every kind of inquiry.

These Three Answers are not These Three Answers are not Mutually ExclusiveMutually Exclusive

Some philosophers tend to follow one Some philosophers tend to follow one model to the exclusion of others: model to the exclusion of others: commonsense philosophers, ordinary-commonsense philosophers, ordinary-language philosophers, Rationalists.language philosophers, Rationalists.

Many philosophers combine two or Many philosophers combine two or three of these approaches. For three of these approaches. For example, many accept common sense example, many accept common sense or linguistic analysis as starting-points.or linguistic analysis as starting-points.

Applying these Models to the Applying these Models to the Philosophy of LawPhilosophy of Law

We can reflect on our common We can reflect on our common understanding of law, legal obligations, understanding of law, legal obligations, legal rights, due process, justice.legal rights, due process, justice.

We can analyze the meanings of key We can analyze the meanings of key terms in the law: “rights”, “obligations”, terms in the law: “rights”, “obligations”, “punishment”, etc.“punishment”, etc.

We can seek the essence of law, legal We can seek the essence of law, legal institutions.institutions.

Seeking the Essence of LawSeeking the Essence of Law

What makes something a law (as What makes something a law (as opposed to a custom, habit, religious opposed to a custom, habit, religious rite, moral duty)?rite, moral duty)?

Are there any necessary connections Are there any necessary connections between law and morality? law and between law and morality? law and politics? biology? theology or politics? biology? theology or cosmology?cosmology?

What is Law? What is Law?

Natural Law view.Natural Law view. Positivist view.Positivist view. Historical view.Historical view. Legal Realism view.Legal Realism view.

Natural Law Natural Law Assumes that law, rights and ethics are Assumes that law, rights and ethics are

based on universal moral principals based on universal moral principals inherent in nature discoverable through inherent in nature discoverable through the human reason. the human reason.

The oldest view of jurisprudence dating The oldest view of jurisprudence dating back to Aristotle . back to Aristotle .

Jefferson’s Jefferson’s Declaration assumes “the assumes “the Laws of Nature.” Laws of Nature.”

Divine law.Divine law.

Natural Law Natural Law Rev. Martin Luther King, Jr. Rev. Martin Luther King, Jr.

Letter from the Birmingham Jail, April 16, , April 16, 1963. “[T]here are two types of laws: just 1963. “[T]here are two types of laws: just and unjust laws. . . . A just law is a man-and unjust laws. . . . A just law is a man-made code that squares with the moral made code that squares with the moral law . . . . An unjust law is a code that is law . . . . An unjust law is a code that is out of harmony with the moral law. . . . out of harmony with the moral law. . . . An unjust law is a human law that is not An unjust law is a human law that is not rooted in eternal and natural law.”rooted in eternal and natural law.”

Legal Positivism Legal Positivism

Law is the supreme will of the State that Law is the supreme will of the State that applies only to the citizens of that nation at applies only to the citizens of that nation at that time. that time.

Law, and therefore rights and ethics, are Law, and therefore rights and ethics, are not universal. The morality of a law, or not universal. The morality of a law, or whether the law is “bad or good,” is whether the law is “bad or good,” is irrelevant. irrelevant. – The law is what the legislature says it is. The law is what the legislature says it is.

» Eg, Sunday closing laws, Estate TaxesEg, Sunday closing laws, Estate Taxes

Legal Realism Legal Realism

Jurisprudence that holds law is not Jurisprudence that holds law is not simply a result of the written law, but a simply a result of the written law, but a product of the views of judicial decision product of the views of judicial decision makers, as well as social,economic, makers, as well as social,economic, and contextual influences.and contextual influences.

Legal Realist view law functionally. The Legal Realist view law functionally. The purpose of law is to facilitate the purpose of law is to facilitate the functioning of society. functioning of society. • Eg, the UCC, Regulatory law.Eg, the UCC, Regulatory law.

Philosophies come in Many Philosophies come in Many VarietiesVarieties

Platonism: Universals, like truth, justice, Platonism: Universals, like truth, justice, goodness, humanity, beauty, really goodness, humanity, beauty, really exist, independently of our language or exist, independently of our language or structure of thought.structure of thought.

Nominalism: Universals don’t really Nominalism: Universals don’t really exist. All that exists are concepts and exist. All that exists are concepts and terms of language that refer in a general terms of language that refer in a general way to many things.way to many things.

General Tendencies of Platonists General Tendencies of Platonists and Nominalistsand Nominalists

Platonists tend to be more rationalistic, Platonists tend to be more rationalistic, open to metaphysical theories, including open to metaphysical theories, including the irreducibility of human being to the irreducibility of human being to physical processes.physical processes.

Nominalists tend to be more empirical Nominalists tend to be more empirical and skeptical. In addition, they tend and skeptical. In addition, they tend toward more materialistic and toward more materialistic and reductionistic accounts of human being.reductionistic accounts of human being.

Varieties of Philosophers of LawVarieties of Philosophers of Law

Natural Lawyers: Aquinas, Fuller, FinnisNatural Lawyers: Aquinas, Fuller, Finnis Legal Positivists: Austin, Bentham, HartLegal Positivists: Austin, Bentham, Hart Legal Realists and Critical Legal Legal Realists and Critical Legal

Studies: Holmes, Llewellyn, FrankStudies: Holmes, Llewellyn, Frank Interpretivists: Dworkin, ElyInterpretivists: Dworkin, Ely Non-interpretivists: Bork, Berger, ScaliaNon-interpretivists: Bork, Berger, Scalia

The Normative/Descriptive The Normative/Descriptive DichotomyDichotomy

Also known as: the fact/value Also known as: the fact/value distinction.distinction.

Widely accepted by nominalists, Widely accepted by nominalists, including positivists.including positivists.

Tends to be rejected by Platonists, Tends to be rejected by Platonists, natural lawyers.natural lawyers.

Natural Law TheoryNatural Law Theory

When we discover the essence of the When we discover the essence of the law, we learn both what the law truly is, law, we learn both what the law truly is, and what it ought to be.and what it ought to be.

Legal PositivismLegal Positivism

Discovering what the law is tells us very Discovering what the law is tells us very little about what it ought to be.little about what it ought to be.

We may discover certain minimal We may discover certain minimal requirements that every legal system requirements that every legal system must satisfy.must satisfy.