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Good papers for an undergraduate philosophy of law course?

Brian Leiter

A philosophy graduate student elsewhere writes:

Your recent mention of "The Case of the Speluncean Explorers" (in the poll on philosophers of law) got me thinking about other "classic" legal papers.  "Speluncean Explorers" strikes me as an unusually good example of a paper that has the ability to introduce undergraduate students to a lot of big ideas in the field (and it does so in an evocative way).  In light of your background in the area, I would be interested in hearing what you and your readers consider to be similar papers, i.e., papers that might be used to flavor a broad array of undergraduate courses that touch upon the law.  I have in mind things like "Positivism and the Separation of Law and Morals" (Hart), "Positivism and Fidelity to Law" (Fuller), "The Punishment that Leaves Something to Chance" (David Lewis), "Persons and Punishment" (Herbert Morris), and so on.

Personally, I would not teach "Positivism and Fidelity to Law," since it's just a tissue of confusions that does nothing to illuminate legal positivism or relevant objections to it.  In any case, this is open for reader suggestions.  (Comments may take awhile to appear, please be patient.)

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8 responses to “Good papers for an undergraduate philosophy of law course?”

  1. M

    "On Interpretation: The Adultery Clause of the Ten Commandments," by Sandy Levinson, to raise issues of intepretation

    "Is Drunk Driving a Serious Offense?," by Doug Husak, to raise issues of criminal liability

    Reply
  2. Fritz

    Some of my favorites:
    1. Jeremy Waldron, "Moments of Carelessness and Massive Loss"
    2. David Lewis, "The Punishment That Leaves Something to Chance"
    3. Judith Jarvis Thomson, "Liability and Individualized Evidence"
    4. Antonin Scalia, "A Matter of Interpretation" (first part of book)

    These are hugely accessible and illustrative of very philosophical challenges for the law. I think philosophy of law has gone mostly sideways with it's focus on jurisprudence (cf., Hart/Dworkin) as opposed to more substantive issues (i.e., ones that are actually in the law, not meta-law). Of course Brian may (dis-)respectfully disagree. But I'd also recommend teaching undergraduate philosophy of law like a 1L doctrinal class: use torts, criminal law, constitutional law (inc. First Amendment), etc. and actually *read cases*.

    Reply
  3. Michel X.

    Waluchow's "Constitutions as Living Trees: An Idiot Defends" makes for some pretty interesting class sessions (especially if you have a mix of nationalities; e.g. here, we have a lot of Canadian, American, and European students).

    Some of the liveliest discussions I've facilitated surrounded a trio of papers on punishment: Brandt's "The Utilitarian Theory of Criminal Justice," Hampton's "The Moral Education Theory," and Barnett's "Restitution: A New Paradigm of Criminal Justice." I don't think they're especially good (some of those papers make me want to bash my head against a brick wall), but I think the ideas they express are interesting, important, and worth discussing. They give students something not too tough to tear into.

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  4. Craig Duncan

    I teach a sophomore level course that surveys issues in the philosophy of law. One unit concerns the "nature of law" debate. Since it's a survey course, I can only scratch the surface, and my main readings are the usual suspects: short excerpts (widely anthologized) of Aquinas, Austin, and Hart. I do go a bit beyond the usual suspects by applying the competing theories to debates over international law, and in particular whether it is genuine law or not. So we read a bit of background on international law (I use a very short excerpt from Vaughn Lowe's book *International Law*), Hart's chapter in CL on international law, Robert Jackson's Opening Address to the Nuremberg Trials, Anthony D'Amato's article "Is International Law Really 'Law'?" (written accessibly, and has some interesting criticisms of the command theory of law, though its flirtations with natural law theory are not so helpful in my view), and David Luban, “Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law” (great article, plus it allows us to talk of some recent developments with the International Criminal Court). If there is time left at the end of the unit, I will typically assign some articles on whether recent drone warfare is illegal under international law (though that is pushing the limits somewhat of my already marginal competency to teach on this subject…)

    In my experience, students seem to like the application to international law; it gives them a sense that there is some practical upshot to our look at the abstract theories of law.

    Reply
  5. Steve Sverdlik

    I teach philosophy of criminal law. Three approachable and deep readings are 1) the appendix in Ross' "The Right and the Good" on Punishment. This has a number of merits, one being that it introduces the objection to utilitarianism that it would sometimes favor deliberately punishing an innocent person; 2) The first part of Rawls' "Two Concepts of Rules", which presents the first systematic defense of utilitarianism from Ross' criticism; 3) The first pages of Nagel's "Moral Luck", which can be used to present the puzzle about criminal law: should it punish acts that cause harm more severely than similar acts that luckily fail to do so? But its terminology is hard for students to grasp.

    Reply
  6. Ian

    I found John Gardner's "Legal Positivism: 5.5 Myths" and Professor Leiter's "Legal Realism and Legal Positivism Reconsidered" most helpful in my law school Jurisprudence course.

    Reply
  7. Matt

    Oliver Wendell Holmes's "The Path of Law" is good for student to read – if not all of it, then the section reprinted in Kavanagh and Oberdiek _Arguing About Law_ is enough. It gives a nice clear example of how a "realist" judge tends to think, and presents an important view in bracing terms.

    Hart's "Prologomenon to the Principles of Punishment" is still a very good introduction to basic ideas in criminal law theory and punishment theory. (I tend to think that the distinction between justifying aim of punishment and distributive principle of punishment is both essential and still under-appreciated by many criminal law theorists.)

    Stephen Perry's "The Impossibility of General Strict Liability" is not the easiest paper for undergrads, perhaps, but a really important and good one for discussing the nature and purpose of tort liability.

    Reply
  8. Matt

    One more thought: I have not used it with undegrads, but had very good success teaching Tommie Shelby's "Justice, Deviance, and the Dark Ghetto" (PPA, 2007) to law students in a jurisprudence class, and think it would work well with undergrads, too. It's a little bit longer than I think is idea for undergrads, but not too long. And, post-Ferguson, it is perhaps even more timely than before. It's a great paper to include in sections on legal authority, duties to obey the law, and criminal law.

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