SOCIAL THEORY OF LAW: PART ONE
Autumn 2004, Tuesday 9 am-
(Lecture will normally precede
seminars)
Course Tutor: Prof. Steve Fuller (s.w.fuller@warwick.ac.uk)
Office Hours: 2.23 Ramphal, Tuesday
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). 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 outline of 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 the last two years of
this course. Two years ago, a different textbook was used that you may find of
help as supplementary reading: Ian Ward, An Introduction to Critical
Legal Theory (Cavendish 1998). Also, you should avail yourself of such
class anthologies as Lord Lloyd of Hampstead’s Introduction to Jurisprudence,
which includes excerpts from representative theorists of the movements we shall
consider.
This year the lecture will precede the seminar. 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 3 (12 October). You must e-mail me an outline
of the essay by the end of week 9 (26 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 Monday, 14
February, at the
SCHEDULING PECULIARITIES FOR 2004: Week 9 has been designated the
period for sending assessed essay outlines because a prior commitment prevents
me from holding class that week. To make up for that, the Law Department’s
Reading Week (week 6) will be conducted as a class for anyone who wishes to
attend. The topic I have set for that week is one that will be familiar to law
students from earlier theory courses but may not be familiar to sociology
students. I have correspondingly shifted
a couple of other weeks’ topics to restore the logic of the course.
WEEK |
DATE |
LECTURE TOPIC |
PATTERSON |
|
1 |
28 Sep |
Introduction |
|
|
2 |
5 Oct |
Chaps 27-28 |
|
|
3 |
12 Oct |
Chaps 6, 14, 29-30, 33 |
|
|
4 |
19 Oct |
Chap 22 |
|
|
5 |
26 Oct |
Chap 5 |
|
|
6 |
2 Nov |
Reading Week for Law: Legal
Formalism, Positivism, and Rule Indeterminacy |
Chaps 15, 21, 34 |
|
7 |
9 Nov |
Chaps 16-18 |
|
|
8 |
16 Nov |
Chaps 7, 19, 23, 39 |
|
|
9 |
23 Nov |
No class: Time to
e-mail outline of assessed essay |
|
|
10 |
30 Nov |
Chaps 24-26 |
LECTURE TOPICS PER WEEK
SEMINAR QUESTIONS: The second hour of the two-hour period (i.e. 10-11 and
11-12) 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. A student will be
elected to serve as secretary, and the resulting minutes will be posted on the
course website. (You can still have a look at previous years’ minutes.) Along
with the proposition, for each week is listed a set of persons whose work
should form the backdrop for debate.
WEEK TWO:
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:
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, John Calvin, Mark Howe, Carl Zollmann
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.
Hugo
Grotius, Immanuel Kant, Hans Kelsen, Leon Henkin, Hans Morgenthau, Philip
Bobbitt (see also his Shield of Achilles)
WEEK SIX:
Proposition:
Formalists and positivists are really closet believers in rule indeterminacy
who 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, Ludwig Wittgenstein, Saul Kripke, Anthony D’Amato, Willard
Quine, Jacques Derrida, Jules Coleman, Robert Gordon, Ken Kress.
Proposition:
Critical Legal Studies is merely a disappointed version of Legal Realism.
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.
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, Ronald
Dworkin, Michael Walzer.
Proposition: The
impact of pragmatism and postmodernism on legal theory has been largely to
erode respect for the law.
Richard
Posner, Richard Rorty, Cornell West, Catherine Wells, Joseph Singer, Ludwig
Wittgenstein, Dennis Patterson, William Eskridge