SOCIAL THEORY OF LAW: PART ONE

Autumn 2002, Tuesday 10 am-12 noon, Room S009

(Seminar will normally precede Lecture)

Course Tutor: Prof. Steve Fuller (s.w.fuller@warwick.ac.uk)

Office Hours: 2.23 Ramphal, Tuesday 1-3 pm. Appointments preferred

RATIONALE: This is the first half of the two-term social theory of law course. The second half is taught by Dr. Ralf Rogowski. The course is designed to give students a sense of theoretical developments in the law from the perspective of someone who works in sociology (Fuller) and law (Rogowski).

COURSE STRUCTURE: The first half of this year’s course will focus on the sociological content of the major historic and contemporary schools of legal theory. Students are required to purchase a textbook that is now available in the bookshop: Dennis Patterson, ed., A Companion to Philosophy of Law and Legal Theory (Blackwell 1996). Two copies of this book have also been placed on reserve in the library. All the required weekly readings for this half of the course are taken from this book. Although we shall only cover about half of the book, it is a generally useful reference work for all aspects of legal theory.

The overheads used for each week’s lectures will be placed on my website, which you can access at http://www.warwick.ac.uk/~sysdt/Index.html. There you will also find the course outline and lectures from last year’s version of this course, which used a different textbook: Ian Ward, An Introduction to Critical Legal Theory (Cavendish 1998). Despite some overlap in the topics covered in this year’s and last year’s course, you would be mistaken to assume that the content of the required readings and lectures will be the same. You should regard the materials relating to last year’s course as simply supplementary material that enhances, but does not replace, the current course content.

The seminars will normally precede the lectures. Seminars will provide dry runs for the assessed essay topics, though they will be formally staged as debates. Students will be expected to have done the reading for a given week by the week it is scheduled as a topic. The lectures for each week will correspond to the required readings, though they will complement (not reproduce) that material. Students are responsible for attending both lectures and seminars.

COURSE ASSESSMENT: Students must do two assessed essays covering the two halves of the course, as well as a final examination. Each essay is worth 20% of the final mark, and the exam 60%. A list of first essay topics will be provided in week 4 (22 October). You must e-mail me an outline of the essay by the end of week 9 (29 November) in order to get feedback before the term ends. The outline should be used as an opportunity to raise questions and try out ideas. The first assessed essay is due on 17 February, 4 pm, at the Law School. The assessed essay should be 2500 words.

LECTURE TOPICS PER WEEK

WEEK	DATE	LECTURE TOPIC	PATTERSON READINGS
1	1 Oct	Introduction
2	8 Oct	Anthropology and Sociology of Law	Chaps 27-28
3	15 Oct	Theological and Moral Basis of Natural Law	Chaps 14, 29-30
4	22 Oct	19th and 20th century German Legal Theory	Chap 22
5	29 Oct	Legal Formalism and Positivism	Chaps 15, 21
6	5 Nov	Marxism, Feminism and the Welfare State	Chaps 19, 23, 39
7	12 Nov	Reading Week
8	19 Nov	Legal Realism and Critical Legal Studies	Chaps 16-18
9	26 Nov	Legal Pragmatism and Postmodernism	Chaps 25-26
10	3 Dec	Deconstruction and Legal Indeterminacy	Chaps 24, 34

SEMINAR QUESTIONS: The first hour of the two-hour period will be seminar-based. In the first half-hour, students will discuss amongst themselves the pros and cons of the assigned proposition, which have been deliberately formulated to be provocative. In the second half-hour, they will argue both sides in the presence of the instructor. Along with the proposition, for each week is listed a set of persons that should form the backdrop for debate.

WEEK TWO:

Proposition: Inquiries into the legal systems of past and primitive cultures are irrelevant for understanding contemporary legal systems.

Henry Maine, Lewis Henry Morgan, Friedrich Engels, Bronislaw Malinowski, Karl Llewellyn, E. Adamson Hoebel, Max Glucksman, Paul Bohannan, John Comaroff, Leopold Pospisil, Clifford Geertz, Donald Black, Emile Durkheim, Max Weber

WEEK THREE:

Proposition: Natural law is ultimately a throwback to a God-fearing era that does not speak to the problems facing today’s secular legal systems.

Cicero, Thomas Aquinas, Hugo Grotius, Samuel Pufendorf, Lon Fuller, John Finnis, Ronald Dworkin, Lloyd Weinreb, Harold Berman, Graham Walker, Jefferson Powell, Thomas Shaffer, Milner Ball, Patrick Devlin, Michael Moore.

WEEK FOUR:

Proposition: Nazi jurisprudence is an unsurprising outcome of the German legal tradition.

Immanuel Kant, Johann Fichte, G.W.F. Hegel, Karl von Savigny, Adolf Merkl, Hans Kelsen, Niklas Luhmann, Rudolf Jhering, Rudolf Stammler, Gustav Radbruch, Carl Schmitt, Franz Neumann, Juergen Habermas, Helmut Willke, Gunther Teubner.

WEEK FIVE:

Proposition: Formalists and positivists would allow anything to pass as law as long as it has conformed to the appropriate procedure.

John Austin, Jeremy Bentham, Hans Kelsen, Herbert Hart, Ronald Dworkin, Joseph Raz, Ernest Weinrib

WEEK SIX

Proposition: The law is in an inappropriate instrument for redressing such systemic social problems as class and gender inequality.

Catherine MacKinnon, Drucilla Cornell, Robert Fine, Karl Marx, Hugh Collins, Louis Althusser, Colin Sumner, Nicos Poulantzas, John Rawls, Sanford Levinson.

WEEK EIGHT

Proposition: The revolt against formalism in legal theory has been little more than an attempt to blur the jobs of judges and politicians.

Karl Llewellyn, Jerome Frank, Oliver Wendell Holmes, Underhill Moore, Roberto Unger, Duncan Kennedy, Harold Lasswell, Lon Fuller, John Hart Ely, Roscoe Pound, Alexander Bickel, Ronald Dworkin.

WEEK NINE

Proposition: The implications of pragmatism and postmodernism for legal theory reveal why philosophy and law should be kept as far apart as possible.

Richard Posner, Richard Rorty, Cornell West, Catherine Wells, Joseph Singer, Ludwig Wittgenstein, Dennis Patterson, William Eskridge

WEEK TEN

Proposition: Deconstruction implies little more than that the legitimacy of the law must rest on something more than the paper it is written on.

Jacques Derrida, Paul De Man, Jonathan Culler, Drucilla Cornell, Pierre Schlag, Dennis Patterson, Ludwig Wittgenstein, Jules Coleman, Robert Gordon, Ken Kress.