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Lloyd Sealy Library
John Jay College of Criminal Justice

OER AT JOHN JAY COLLEGE

OER Course Conversion Projects

 

 

 

      OER for LAW 301

         Jurisprudence

 

                                                    

The required textbook for the class is available free, as an ebook, from the John Jay Library catalog. You will need to just login with your JJ credentials. The readings are from the text:

 

CLASS

TOPIC

1

Course Introduction, Syllabus, Discussions of Assignments

The Nature of Law

One of the oldest problems in the philosophy of law, and the problem with which most legal philosophy courses commonly begin, is the analysis of the concept of law itself. Law is clearly a device for social control, a device for getting people to do things they would be unlikely to do if left to personal inclination alone. The concept of law may be used ambiguously and may thus cause serious moral and intellectual confusion. Legality is not to be simply identified with descriptive regularity any more than it is to be simply identified with morality or force. Natural law theories maintain that there is an essential connection between law and morality. The demands of law and the demands of morality do not just happen to overlap sometimes as a matter of fact. According to Hart, the central concept in terms of which law is to be understood is that of a rule.

2

The Nature of LawNatural Law Theory

3

The Nature of LawLegal Positivism

4

The Nature of Law: Legal Realism

5

The Nature of Law: The Reemergence of Natural Law

6

The Nature of Law: The Attack of Traditional Jurisprudence: Critical Legal Studies and Feminist Jurisprudence

7

The Nature of LawRecap and Discussion

Moral Theory and Its Application to Law

John Austin called the task of morally evaluating law “normative jurisprudence.” This task, as he envisioned it, consists in understanding law as it is and then developing a rational theory about what the law ought to be. Historically, modern moral philosophy has been the search for a rational mechanism for the resolution of moral controversy. The moral theory of utilitarianism has a long history in philosophy, but it was given its most articulate and persuasive statement and defense by the English moral philosophers Jeremy Bentham and John Stuart Mill. Attractive as the initial utilitarian picture seems, closer reflection upon its implications may cause one to develop some serious doubts. The Kantian, of course, is reluctant to approve even a single instance of violating those rights of an individual that are part of what is meant by respecting that individual as a person, even where such violation would advance rights enjoyment for the majority.

8

Moral Theory and Its Application to Law: The Nature of Morality

9

Moral Theory and Its Application to Law: The Nature of Moral Philosophy and Moral Theory

10

Moral Theory and Its Application to Law: Utilitarianism and Social Policy

11

Moral Theory and Its Application to Law: Kantianism, Rights and Respect for Persons

12

Moral Theory and Its Application to Law: Moral Philosophy and Constitutional Law: Freedom of Speech and Press

13

Moral Theory and Its Application to Law: Recap and Discussion

Crime and Punishment

The core punishments of the criminal law represent gravely serious assaults on the fundamental rights of persons, stigmatize and humiliate those persons, and typically cause those persons great personal unhappiness. A promising way to get into the moral foundations of permissible punishment is to begin, as most philosophers oddly enough do not, with a discussion of criminalization. Nozick’s analysis surely gives part of the story, but it still faces a few problems. Perceived rational desirability will be enough to guarantee voluntary compliance with the structures on the part of most persons, but if all persons could be counted on in this way, the fears that provoked the need for the state in the first place would never have arisen. Criminal punishment may be defined as the infliction by state authority of a consequence normally regarded as an evil on an individual found to be legally guilty of a crime.

14

Crime and Punishment: Why Have the Criminal Law at All?

15

Crime and Punishment: Utilitarianism and Deterrence

16

Crime and Punishment: Kantianism and Retribution

17

Crime and Punishment: Mental States, Excuses and Strict Liability

18

Crime and Punishment: Choosing the Proper Punishment

19

Crime and Punishment: Recap and Discussion

Philosophy and the Private Law

While philosophers have grown considerably more sophisticated in their understanding and treatment of issues in and about the law of crimes, there remains widespread neglect of the philosophic dimensions of areas of the common law, in particular the central areas of private law: torts and contracts. This chapter discusses philosophic issues in tort law and contract law. It begins with a few introductory remarks about the body of law in question. Then, rather than attempting to give an overall philosophic theory of torts or contracts, the chapter explores particular problems of philosophic interest in each. It provides a useful and stimulating introduction to the problems of legal philosophy; in pursuing that goal, no attempt has been made to provide a satisfying general theory of law or of its component parts. Contract law may enforce a principle of distributive justice, but Kronman’s arguments fail to demonstrate that it does except as the claim may be given a trivial construal.

20

Philosophy and the Private LawTort Law

21

Philosophy and the Private LawContract Law

Law and Economics

No philosopher has claimed that the substance of such diverse areas of the law as crimes, torts, property, contracts, civil procedure, corporations, and family law could possibly derive from any one moral principle or set of consistent moral principles. Over the last several decades economists and lawyers trained in or enamored of economics have sought to explore the extent to which virtually all areas of the law could be understood as the institutional embodiment of the principle of economic efficiency. It is strange that economists do not find the claim that all of the law could derive from a single principle at all preposterous. Pareto superior policy changes increase net utility, thus obviating the interpersonal comparability problem of classical utilitarianism. Much of the economic analysis of law grows up around the line of argument presented in Ronald Coase’s “The Problem of Social Cost.” A central difference between the Coasian and Pigouvian approaches to externalities concerns the role of the state.

22

Law and EconomicsBasic Concepts and Models

23

Law and EconomicsApplying Economics to Law

24

Law and EconomicsObjections to the Economic Analysis of Law

25

Philosophy and the Private Law and Law and Economics: Recap and Discussion

26

Term Quiz Review

27

Term Quiz

28

Concluding Thoughts and Discussion

29

Final Exam: As Scheduled by the Registrars’ Office: (See the JJ Homepage, Registrar, Final Exam Schedule)