Legal Theory Experimental

Materials

Readings will be made available as links from the Web site.

Course Description

CONTENT

Have you ever wondered what the difference is between the rule of law and the control of people through pure power? Have you ever thought about how you would proove that you had a certain right? Where would you look to find the sources of authority to show that you actually have a right to own a gun or that the death penalty is, or is not, cruel and unusual? Have you ever wondered why you ought to obey the law, apart from your fear of being punished? These are all philosophical questions of law of three distinct types. This course focuses on these three philosophical problems in law. The first, which is a question of definition, asks what it means to say something is the law. The second, is a question of sources. It concerns itself with where we look to find our law. The final question is one of morality. It concerns the extent and limits of our obligation to obey the law. More formally, these are respectively questions of legal, constitutional and political theory. A basic presumption of the course is that one cannot really understand these problems of law deeply without considering them together. We will engage in that joint exploration to understand when law actually exists and what you should do about it.

SKILLS

The majority of this course consists in abstract reasoning. Even when we apply these ideas to practical situations you will be challenged to consider them in the context of different theories of interpretion, different definitions of law and different principles of morality. It is not assumed that you have had any prior training in philosophical reasoning. However, it is assumed that you are comfortable thinking analytically and conceptually. The latter is particularly important. Philosophy concerns itself with the meaning of things. In many respects it is a matter of establishing definitions. You will not find the answer to these definitions in any dictionary or encyclopedia. In this course you will learn to parse ideas, look for internal contradictions in definitions, make analogies between different concepts and apply them all to existing problems in law and society. By the end of the course you should

1. understand when institutions actually approximate some conception of the rule of law;
2. be familiar with different theories of interpretation both of posited rules and moral principles;
3. be familiar with different moral justifications for law and the limits of legal obligations, if any;
4 be able to apply these ideas to different legal problems in public and private law.

Requirements

READING

Philosophy is somewhat akin to mathmatics, only with words. Like math, the concepts can get very abstract. Although all the reading is in English, and mostly jargon free, you may sometimes wonder what language it is actually written in. You should expect for the reading to take 3x longer per page than in your other classes. You will have to read each assignment more than once in order to understand it. You won't be able to understand the reading without taking notes while you are reading.

It can sometimes feel like a long cumbersome process but if you put in the effort you will find it extremely rewarding. You will gain an unmatched clarity of comprehension of the most fundamental legal and moral questions of our time. It is impossible to complete, let alone do well in, this class without doing each and every one of the readings. This is not a class where you can skip or forget to do the reading and just hope to coast along.

ACTIVE CLASS PARTICIPATION:

All students are expected to attend class regularly and to be prepared to discuss the reading. Students may be called upon to participate in class and no passing is permitted. Each student will be allowed 1 un-excused absence. Any additional un-excused absence will reduce your final grade by one grade per absence. Study the class calendar carefully to make sure you don't have any prior commitments that would preclude you from meeting these requirements.

ASSIGNMENTS:

There will be a midterm, an analytical paper and a final exam according to the following schedule. These dates are subject to change depending upon the rate of our progress in class.

	Weight	Assigned	Due	Returned
Class Participation	20%	*Passim*
Test	25%	After Week 7 Reading
Analytical Paper	30%	After Week 10 Reading
Final	25%	Monday, Dec 08 --- 5:30PM - 8:00PM

Grading

Grading standards are in part subjective and excellence in one area may compensate for deficiencies in another. No curve will be used to calculate the grades in this class. Hence, it is theoretically possible for every student to receive an A if he or she meets the standards for that grade. My primary goals are for each student to develop the critical thinking skills and to understand the ideas covered in this course by the time it is completed. If later exams and papers illustrate this proficiency, earlier grades which do not will be discounted. The following will give you a general guide to the typical performance associated with each letter grade.

While displaying an understanding of the course materials is very important, the quality of your writing is a central part of my evaluation of your work. At a minimum, you must make sure that the grammar and syntax of your essays are correct. Papers that are disorganized or poorly written will be graded downwards. Do not hand in the first draft of your work. Apart from the presentation of your work, the following criteria will be used:

A: all course requirements met, work shows full understanding of course material and an original perspective on the subject

B: all course requirements met, work shows full understanding of course material (or satisfactory understanding of course material and an original perspective on the subject)

C: all course requirements met, work shows satisfactory understanding of course material

D: work fails to meet minimum course requirements, either in full and timely completion of requirements or in satisfactory understanding of course material

F: work falls far below minimum course requirements either in full and timely completion of requirements or in satisfactory understanding of course material.

University and Classroom Standards

Freedom of expression is at the root of academic discourse and the advancement of knowledge. This course will deal with a wide range of topics, some of which may challenge a student’s deeply held beliefs and perhaps even cause offense. While no topic will be censored simply because it has this effect, students are expected to treat the differing views of others with respect. While tolerance toward the opinions of others does not preclude expressions of disagreement, which are, indeed, encouraged, it does require that these expressions be based on the content of the ideas expressed and not on personal traits or values of the speaker. All class participants will be expected to tolerate the expression of opposing views and to engage in reasoned discourse about them.

I will endeavour to ensure that the classroom is free of any conduct that has the purpose or effect of creating an intimidating or hostile environment. Furthermore, I will attempt to give each student an opportunity to express his or her own opinion and to treat student opinions with respect. Any student who believes that he or she has not been given adequate opportunity to contribute to class discussions is encouraged to bring this to my attention.

Extremely Important:

If you experience difficulty in this course for any reason, please don’t hesitate to consult with me. In addition to the resources of the department, a wide range of services is available to support you in your efforts to meet the course requirements.

 Academic Support Center (x3360, MGC 243) offers study skills workshops, individual instruction, tutor referrals, and services for students with learning disabilities. Writing support is available in the ASC Writing Lab or in the Writing Center, Battelle 228.

 Counselling Center (x3500, MGC 214) offers counselling and consultations regarding personal concerns, self-help information, and connections to off-campus mental health resources.

 Disability Support Services (x3315, MGC 206) offers technical and practical support and assistance with accommodations for students with physical, medical, or psychological disabilities. If you qualify for accommodations because of a disability, please notify me in a timely manner with a letter from the Academic Support Center or Disability Support Services so that we can make arrangements to address your needs.

Academic Integrity

The American University’s “Academic Integrity Code” governing standards for academic conduct apply. Students may discuss the subject matter of their essays with anyone. All students, however, must compose their own essays and may not show or read their essays to any other persons, except for proofreading or typing assistance by a person not enrolled or previously enrolled in the course. The use of another person’s words or ideas without proper attribution constitutes plagiarism or false authorship. Both are serious academic offenses. By turning in an essay, a student is certifying that the essay is entirely his/her own work. If there are any questions about this matter, consult the Academic Integrity Code or see the instructor. It will never be tolerated, under any circumstances and your case will be referred to the Dean – WITHOUT EXCEPTION AND IMMEDIATELY. It is your responsibility to be familiar with the University’s Academic Integrity Code, which you find on-line at:
http://www.american.edu/academics/integrity/code.htm

Emergency Preparedness

In the event of a declared pandemic (influenza or other communicable disease), American University will implement a plan for meeting the needs of all members of the university community. Should the university be required to close for a period of time, we are committed to ensuring that all aspects of our educational programs will be delivered to our students. These may include altering and extending the duration of the traditional term schedule to complete essential instruction in the traditional format and/or use of distance instructional methods. Specific strategies will vary from class to class, depending on the format of the course and the timing of the emergency. Faculty will communicate class-specific information to students via AU e-mail and Blackboard, while students must inform their faculty immediately of any absence due to illness. Students are responsible for checking their AU e-mail regularly and keeping themselves informed of emergencies. In the event of a declared pandemic or other emergency, students should refer to the AU Web site (www. prepared. american.edu) and the AU information line at (202) 885-1100 for general university-wide information, as well as contact their faculty and/or respective dean’s office for course and school/ college-specific information.

What do I expect from you?

Punctual attendance

This is mandatory and forms part of your overall grading. Please contact me preferably prior to absence, or as soon as possible after the missed class.

Come to class prepared

Engage with your reading. With everything you read ask yourself: What the author is trying to say? From what perspective are they writing? In what social/historical/philosophical context have they written what they have written? Do you disagree/agree with their view? Why? Don’t forget: Class Participation forms a huge part of your overall grade!

Be honest with me

I am here to help you learn and form your opinions and I really care about doing that well. If you feel there is a certain area I could improve the class in, please don’t hesitate to let me know. I will keep an open and friendly classroom atmosphere and am also available to talk one-on-one in my office hours/by email. I expect to see you there at least once during the semester.

Treat your peers with respect

Keep an open mind, engage with the material, participate in discussion and treat your classmates with respect. This means respecting divergent views as well as allowing them to learn – class disruptions (walking in and out, chatting etc) will be reflected in your participation grade.

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Reading

Class Schedule



Week 1

August 25	Introduction

	What is Law?
	How do you know when you have the rule of law?

Week 2

September 1
	Labor Day-- No Class
Week 3


September 8	Introduction: Can Law Be Moral?

	Dworkin	Justice For Hedgehogs (pp 1-20)
	Ayer	Moral Judgment
	Thomas Aquainas	Summa Theologica Treatise on Law QQ 90-96 (pp 1328-1373)

PART I: The Idea of Law And Its Challenges

Week 4

September 15	The Rule of Law vs Power



	Lon Fuller	The Morality That Makes Law Possible
	Raz	The Rule of Law And Its Virtue
	Film	The Response
	Legal Cases	US v Trump
		Abrego Garcia v Kristi Noem et al (denying government motion for a stay)
		Memorandum Opinion of Judge James E. Boasberg (April 16, 2025)
		Solicitor General response to questioning by Justice Barrett

Week 5

September 22	Logical and Legal Positivism


	Bentham	Anarchical Fallicies
	Austin	Province of Jurisprudance Determined
	Hart	Concept of Law Selected Chapters



Week 6

September 29	Rights Theories And Modern Natural Law

	Dworkin	Model of Rules
	Legal Case	Riggs v Palmer
	Dworkin	Review of Spheres of Justice
	Walzer	Walzer's Response



Week 7

October 6	International Law

	Hart	International Law
	Dworkin	A New Philosophy of International Law
	Thuycidides	The Melian Dialogue
	Morganthau	The Twilight of International Morlaity
	Kant	Perpetual Peace (pp 1-38 excluding Supplements I and II ) Do read both appendices.
	Rawls	The Law of Peoples


Week 8

October 13	The Science of Law: Formalism And Realism


	David Dudley Field	Magnitude And The Importance of Legal Science
	Christopher Columbus Langdel	Preface To The Law On Contracts
	Kelley	Holmes And Langdell On Formalism
	Frederick Scheur	Formalism (Only Part II pp 520-538)

	Legal Realism

	Gordon	Review of The Death of Contract
	Frank	Realism
	Llewellyn	Bramble Bush
	Murphy and Coleman	Legal Realism
	Altman	Legal Realism

Week 9

October 20	Law And Economics


	Murphy and Coleman	Law And Economics
	Posner	Economic Approach To Law
	Coase	The Problem of Social Cost
	Calibrisi	Some Thoughts On Risk Distribution
	Coleman	Crimes And Transaction
	Legal Case	US v. Carroll Towing
	Legal Case	Kelo v. City of New London


Week 10

October 27	Critical Legal Theories of Class, Race and Gender

	Gordon	Critical Legal Studies
	Altman	Critical Legal Studies and Dworkin
	Matsuda	Response To Racist Speech
	Legal Case	R.A.V. v. City of St. Paul (1992)
	Alexander	The Rebirth of Caste (Chapter 1)
	West	Jurisprudence and Gender
		People v Liberta (NY) 1984
		State of Florida v. Rider 449 S. 2nd 1984

PART II: Constitutionalism: The Sources And Authority of Law

Week 11

November 3	Constitutional Theory and Interpretation

	Ely	Democracy And Distrust
	Sunstein	Republic of Reason
	Bork	Neutral Interpretation And Some First Amendment Problems
	Dworkin	The Forum of Princple
	Scalia	The Role of Courts in Interpreting the Constitution
	Levinson	Interpreting The Ten Commandments
		DC v Heller

Week 12

November 10	Law And Secrecy: The Challenge of National Security to The Rule of Law

	Iran Contra Report	Majority Report Executive Summary (pp 3-25)
		Minority Report (Chaps 1-4, 14)
	Fagelson	Torture(d) Policies of The War On Terror








Week 13

November 17	PRIVACY And The Political Theory of American Constitutionalism

	Judith Jarvis Thompson	On Privacy
	Marmor	What Is The Right To Privacy
	Richard Posner	The Economics Of Privacy
	Anita Allen	Social Contract Theory In American Case Law

	Griswold v Connecticut
	Loving v Virginia
	Roe v Wade
	Bowers V Hardwick
	Lawrence V Texas
	Dobbs v Jackson Women's Health Center


Week 14

November 24	Disobedience and Obligation

	MBE Smith	Is There A Prima Facie Obligation To Obey The Law?
	John Rawls	Civil Disobedience From Theory of Justice pp 363-391
	H. D. Thoreau	Civil Disobedience
	Martin Luther King	Letter From A Birmingham Jail
	Ronald Dworkin	Civil Disobedience And Nuclear Protest
	Fagelson And Klusmeyer	Justifying Official Disobedience



Part III The Moral Content and Limits of Law



Week 15

December 1	Legal Moralism

	Devlin	Morals And The Criminal Law
	Finnis	Law Morality And Sexual Orientation
	Hart	Immorality And Treason
	Locke	A Letter On Toleration
	Mill	The Harm Principle (From On Liberty Chapter 1)
	Feinberg	A Ride On The Bus
	Legal Cases	Lawrence V Texas (2003)
		Obergefell v. Hodges, 576 U.S. ___ (2015)
		Burwell v Hobby Lobby (2014)
		Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)



Week 16

December 2	Catchup And Review

Legal Theory

Professor Fagelson

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