Jurisprudence - 2221

Jurisprudence -- philosophy of law -- explores the nature of law and its role in society. This course tackles classic jurisprudential questions, focusing around what is known as “theory of adjudication,” the theory of how judges actually do decide cases and how they should decide them. Do legal rules and doctrines really constrain legal decision making (and if so, how)? What makes something a legal rule? Is there some necessary connection between law and morality (perhaps inherent in the concept of rights)?  Is judicial decision-making really different from political decision-making (and if so, how)? Most of our readings will be from twentieth- and twenty-first century writers: legal positivists (e.g., H.L.A. Hart), natural law theorists (e.g., Ronald Dworkin), legal realists (e.g., Felix Cohen and Karl Llewellyn), and critical theorists (e.g., Duncan Kennedy and Patricia Williams). But we will also dip into some older classics, e.g., William Blackstone and Jeremy Bentham. Some of the reading will be challenging, but no prior experience with either jurisprudence or philosophy will be assumed. What will be useful is the knowledge of legal doctrine and decision making that you’ve acquired in law school so far. We will look back at some of the classic cases that you read in con law, civil procedure, and property and see how they reflect different jurisprudential approaches. In fact, at some point in the semester you will probably find yourself thinking something like, “So that’s what Professor X was trying to get at when we read that case”! We will also look at how jurisprudence informs current political and social issues in legal decision making. For instance, consider those driverless cars you see all around Oakland. Besides being programmed to avoid collisions, they must be instructed to follow traffic laws. Exactly what should those instructions entail? When you have finished this course you won’t be writing briefs that say, “you should rule for me because the legal positivists say so.” But in another sense jurisprudence is of immense practical use:  Jurisprudence brings to the surface conflicting assumptions lurking within different legal arguments and conclusions.  When you learn to recognize those ideas, you understand something about how legal decision making operates on a deep level, and that makes you a better lawyer.