Law 798: Legal Theory
Jurisprudence has traditionally concerned itself with the general theory of the nature of law and of legal reasoning. By contrast, this seminar in legal theory deals with the normative and conceptual theories that make sense of substantive areas of law. Criminal law, torts, property, contracts, and constitutional law are the five areas of law selected for examination. For each area we will assess: (1) rights-based or deontological theories of a broadly libertarian cast (retributive justice theories of criminal law, corrective justice theories of torts, natural right theories of property and of constitutional law, promissory theories of contract); (2) welfare-based consequentialist theories for each area of law, tracing the rise of such utilitarian theories through the classical, cardinal utilitarianism of the Nineteenth Century, through the ordinal revolution of Pareto and the welfare economics of Pigou, to the Nobel Prize winning work of Ronald Coase and contemporary, post-Coasean welfare economics; and (3) egalitarian theories (rehabilitative or restorative justice theories of criminal law, schemes of social insurance for torts, redistributive schemes for property and constitutional law, and paternalistic regulation of contract terms). We will assess each such theory by both its normative plausibility (is this what a given area of law should be for?), and its descriptive accuracy (do the doctrines comprising a given area of law in fact serve such values?).
Along the way we will engage with the most influential ideas in Anglo-American legal theory: Kant’s retributivism and its modern variants in the work of Herbert Morris and Michael Moore, Bentham and Mill’s classical utilitarianism, Aristotle’s conception of corrective justice and the modern variants thereof of Richard Epstein and George Fletcher, the Coase Theorem, Guido Calabresi’s efficiency approach to the costs of accidents, the rehabilitative ideal for criminal law of B.F. Skinner and Karl Menninger, Wesley Hohfeld’s analysis of property rights, Locke’s liberty-based argument for the natural right to property as carried forward by Robert Nozick, Hegel’s personality-based argument for legal property rights as carried forward by Margaret Jane Radin, Garrett Hardin’s tragedy of the commons and the game theory that has followed it, John Rawls’ egalitarian conception of distributive justice, Joseph Raz’s analysis of the moral force of promising in terms of exclusionary reasons, the Charles Fried/Heidi Hurd debate on whether promises create obligations, the Alan Schwartz/Rob Kar debate on to what extent contract law can or should reflect the morality of promise-keeping, the Jeremy Waldron/Michael Moore debate on the justifiability of judicial review in terms of greater protection of human rights, John Stuart Mill’s right to liberty as enshrined in the U.S. Constitution.
This course originated as one of the “Perspectives” courses all students\had to take at the University of Pennsylvania Law School in the early 90’s, has since been taught at the University of Virginia Law School and the Faculty of Law of Tel Aviv University, and was last offered at the College of Law at the University of Illinois in 2008.
Evaluation Method: This course will be graded based on a series of short papers (2-3 pages) on the course reading every other week.