Thanks to everyone – all of the cadets enrolled in the course and our visitors, Captain Anderson and Professor Carey – for making this a great semester. Since this blog has a very specific purpose, I won’t continue to post here, but I look forward to getting term papers (soon!) from everyone enrolled in the class.
Captain Anderson passes along a link to an article of the bizarre practice of putting animals on trial and punishing them if they are found guilty.
In the Middle Ages, animals that did bad things were tried in court. Maybe that’s not as crazy as it sounds.
In the fall of 1457, villagers in Savigny, France witnessed a sow and six piglets attack and kill a 5-year-old boy. Today, the animals would be summarily killed. But errant 15th-century French pigs went to court. And it wasn’t for a show trial—this was the real deal, equipped with a judge, two prosecutors, eight witnesses, and a defense attorney for the accused swine. Witness testimony proved beyond reasonable doubt that the sow had killed the child. The piglets’ role, however, was ambiguous. Although splattered with blood, they were never seen directly attacking the boy. The judge sentenced the sow to be hanged by her hind feet from a “gallows tree.” The piglets, by contrast, were exonerated.
Read it all here. Wow!
Instructions: Please choose two of the following five prompts. Then write an essay in response to each of them. Each one of these essays should be no more than 750 words in length. Answer any and all questions within the prompts as clearly as you can, and support your claims with as much detail as is possible given the limitations of the assignment.
- Oliver Wendel Holmes once wrote, “When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law.” Does Holmes (in “The Path of the Law”) do a better job of conceptually distinguishing law and morals than H.L.A. Hart did in Chapter 9 of The Concept of Law. Explain you answer in detail.
- “A feminist point of view is a necessary corrective to a male-dominated perspective on law.” Discuss.
- One of the fundamental theorems of modern welfare economics is that any competitive equilibrium results in a Pareto efficient allocation of resources. Can this theorem provide unique insight into understanding the nature of law? Use our readings from Richard Posner and Andrew Altman to provide support for your response.
- In Shakespeare’s The Merchant of Venice, Portia argues that mercy benefits both those who are treated mercifully and those who act mercifully (IV, 1). Explain and evaluate Portia’s argument.
- Imagine the following case: Alice believes that a certain law, L, is unjust. As a result, she decides to engage in civil disobedience and breaks L. Alice is arrested for breaking L and brought before a judge, Barbara. However, Barbara also believes L is unjust and, though she agrees that Alice has broken this law, dismisses the case. Here’s the question: Has Barbara violated Alice right to be punished? Use our reading from Herbert Morris to help answer this question.
Students have from the time that this assignment is handed out (on T37 at the end of class) until the middle of next week (on T39 at the beginning of class) to complete it. Please turn in your assignment by email to <philosophydropbox@gmail.com>. Each essay should be attached to your email as a .doc file. No late work will be accepted.
Please note the following further instructions on this assignment.
- You must do your own work. Do not ask for, accept, or offer help to or from anyone on this assignment.
- You should not use any sources other than class reading assignments. Each of the authors on which you are being tested wrote voluminously, and each is the subject of an extensive secondary literature. Do not attempt to climb these mountains while completing this exam. You’ll have plenty of opportunity to do so on the term paper, if you choose to.
Here are Adetunji’s questions for the Finkelstein reading:
- What must the theory of punishment first justify?
- Why does Claire Finkelstein suggest are the two prevailing approaches to punishment and why do they fail at the task of justifying punishment?
- Why does the contractarian account constitute an improvement over the deterrence account.
Michael Sandel in what appears to be an interview with Tim Adams:
In the past few years we have moved from having a market economy to living in a market society, in which just about everything is up for sale.
I am fortunate to have enough money not to have to worry about the necessities of life. Beyond that I try to think about money as little as possible.
I grew up in a Jewish family, and we have raised our children in a Jewish tradition. Religion gives a framework for moral enquiry in young minds and points us to questions beyond the material.
If you pay a child a dollar to read a book, as some schools have tried, you not only create an expectation that reading makes you money, you also run the risk of depriving the child for ever of the value of it. Markets are not innocent.
I almost became a political journalist, having worked as a reporter at the time of Watergate. The proximity to those events motivated me, when I wound up doing philosophy, to try to use it to move the public debate.
Philosophy can be debilitating. It demands a critical sensibility, and to try to apply that to everything can be a very disquieting thing – the disquiet is necessary, even if you are unmoored by it.
Change has to take root in people’s minds before it can be legislated. My faith in the reversibility of the idea that everything is up for sale is challenged every day. But against that is real hunger for some other way of organising things.
As the gap between rich and poor has grown, the ability for an individual to rise in society is at a lower level than at any time in living memory.
There are far fewer public spaces that draw us together. When I used to go to baseball as a kid, part of the excitement was in the commonality of the experience, the fact that all kinds of people were sitting in the stadium. The pleasure of sports has been decreased by its commerciality.
We wanted to send our children to a state school because we wanted them to mix with a range of kids, and we were lucky enough to buy a house in an area with excellent schools. It is now increasingly expensive to do that.
When the banking crisis happened, the notion that we could trust everything to markets seemed to have run its course. The most surprising outcome was that we wanted to try to restore the same trust as quickly as possible.
I try not to get into questions of whether morality is hardwired in our brains.
You only have to look at the opportunities technology extends for sharing ideas and learning, to see it is as more a force of good than otherwise.
Economics wants to present itself as a value-free science. And there is an allure to that idea, but it is impossible to defend.
Check it out in the Guardian here.
Kevin Toh reviews John Gardner’s Law as a Leap of Faith. The first paragraph:
John Gardner is one of the leading philosophers of law writing today. This book collects nine papers on the nature of law he published in the last thirteen years, along with two hitherto unpublished papers and a preface. Even as collections go, this is an unusually tricky one to review. As he puts it in the preface, Gardner conceives philosophy as “the art of wearing every thought down to its rightful little size and then keeping it in its rightful little place” (p. v). He rather disarmingly denies having a theory of law or a “bigger picture” even. And in the individual papers, he succeeds, to a surprising degree, in sticking mainly to the announced goal of “unbundling” — i.e. disputing the connections or implications between various jurisprudential ideas or theses that others assert or argue for. There are many things to admire and learn from the papers, as well as many points (including the just-quoted meta-philosophical view) that are open to dispute. But given their generally diffuse nature, it is hardly possible or desirable in a short review to canvass them one by one. Instead, I will provide fairly brief descriptions of the individual chapters, and follow those up with some comments on three issues that Gardner’s chapters touch on, and that are of general importance for legal philosophy.
Read the rest here at Notre Dame Philosophical Reviews.
Here are the questions for the occasional writing for T39 from Irene Joyce:
Occasional Writing for T39-Kafka “The Penal Colony”
The reading for T-39 can be found using the link to course texts on the course website https://sites.google.com/site/leonardkahn/home/leonard-kahn-my-teaching/philosophy-of-law-1/free-texts-for-philosophy-of-law
1. On page 5, the Officer tells the Traveler that the Convicted Man is not given his own punishment because, “It would be useless to give him that information. He experiences it on his own body.” Why would this be a reason for not giving the criminal the information? And furthermore, do you think this is a just punishment for the criminal? Is it possible to have a humane punishment when it comes to carrying out a death sentence, and if so does this count as a humane death sentence?
2. Also on page 5, the Officer explains to the Traveler his system of punishment for the colony saying “The basic principle I use for my decisions is this: Guilt is always beyond a doubt. Other courts could not follow this principle, for they are made up of many heads and, in addition, have even higher courts above them. But that is not the case here, or at least it was not that way with the previous Commandant.” Why does the Officer think this is a just system? Do you think such a criminal system is justified under his special conditions, namely being in charge of punishments for a colony?
3. Page 19-“For he was aware what would happen, but he had no right to hinder the Officer in any way. If the judicial process to which the Officer clung was really so close to the point of being cancelled—perhaps as a result of the intervention of the Traveler, something to which he for his part felt duty-bound—then the Officer was now acting in a completely correct manner. In his place, the Traveler would not have acted any differently.” Do you agree with the Officer and the Traveler that the Officer was duty bound to subject himself to the same machine he had been subjecting the criminals he convicted?
4. Last question: What part of the story was the most disturbing to you?
Catherine Joyce has provided us with questions for the occasional writing on Herbert Morris’ paper (in the Arthur and Shaw volume) for T36:
- What are the benefits and burdens of the system of society Morris describes on 269?
- Morris says forgiveness is a “gift after the fact, erasing the debt.” Do you agree? Or how would you define forgiveness?
- Morris talks of sickness and therapy starting on pg 271. Do you think that crime can be treated as though it were a disease?
- Do you agree that criminals have a “right” to punishment?
The issue of the U.S. president could pardon himself (1) for crimes in general and (2) for impeachment came up in class. I found myself pretty convinced by something Ryan said after class, but now I’ve gone back to being unsure. Here’s a Slate Explainer from a few years back when this issue was much in the news. As is pointed out below, “No one knows the answer” and it “remains an open question.”
President Clinton promised this month not to pardon himself. It’s surprising to see Clinton voluntarily relinquish a legal weapon, but even more surprising that he had his hands on it in the first place. Can the president really pardon himself?
No one knows the answer. The Constitution says that the president “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This sentence, like many in the Constitution, can reasonably be interpreted in several ways. And since no court has ruled on this issue–because no president has ever tried to pardon himself–it remains an open question.
The simplest interpretation is that the president can pardon any federal criminal offense, including his own, but cannot pardon an impeachment. In other words, Clinton is free to immunize himself from criminal prosecution, but has no power over Congress.
A competing interpretation is that the power to pardon “except in cases of impeachment” means the president cannot pardon someone who’s been impeached, or at least cannot pardon the offenses which led to an impeachment. This interpretation not only prohibits Clinton from self-pardoning, it also prohibits a future president (e.g. Al Gore) from pardoning Clinton. (It was kosher for Ford to immunize Nixon, under this interpretation, because Nixon was never impeached.) The problem with this argument is that the Constitution elsewhere (Article I, Section 3) makes a distinction between “cases of impeachment” and subsequent criminal prosecution for the same offenses. So it’s unlikely that the founding fathers were referring to the subsequent criminal prosecution when they restricted the power to pardon.
The last interpretation–a linguistic argument–is that “granting” can only be done unto others, not unto oneself. So Clinton can’t pardon himself, though Gore is welcome to pardon Clinton if and when Clinton is no longer president. Moreover, the Constitution clearly recognizes that conflicts-of-interest should be avoided. For instance, the Constitution prohibits Congress from voting itself a pay raise (one Congress may vote the next a pay raise, however), and it specifies that during an impeachment trial the Chief Justice, not the vice-president, should be president of the Senate. Clearly it’s a serious conflict of interest if the president can pardon himself. Since the Constitution makes it clear that avoiding conflicts-of-interest is important, it makes sense to assume that the Constitution never meant to allow the president to pardon himself.
Who will decide this issue if it ever arises? If Clinton pardons himself, and Starr prosecutes him anyway in a federal court, that judge will have to decide whether the president’s self-pardon is valid. Amazingly, the judge might rule that she isn’t permitted to interpret the meaning of the Constitution in this matter. This is because the Supreme Court has ruled that certain constitutional interpretations are the province of “political” branches, not the judicial branch. (For instance, the Supreme Court refused to comment upon whether the 1993 Senate trial of Judge Walter Nixon was constitutional or not, saying that only the Senate could make that decision.) By this reasoning, only the president can interpret the scope of the presidential pardon. In other words, in such a case, the judge might actually defer to a constitutional interpretation made by the criminal defendant (who happens to be the ex-president).
Brian Kalt wrote a fairly well-known paper in which he argued against self pardons. The paper originally appeared in Yale Law Journal, Vol. 106, No. 3, 1996-1997. There’s further analysis here, here, and here, but I can’t see more than the first page because our library doesn’t subscribe to the journal.
Then, of course, there’s the president’s power to pardon the vice-president.
The reading for T37 is Jean Hampton’s “The Message of Punishment,” which is in our Arthur and Shaw volume (5th edition). You may read, if you prefer, the full piece from which this was excerpted, “The Moral Education Theory of Punishment,” which was originally published in Philosophy & Public Affairs, Vol. 13, No. 3 (Summer, 1984), pp. 208-238. Steffan provides these quotes to ponder, with questions following each.
- “I believe we must accept the deterrence theorists’ contention that the justification of punishment is connected with the fact that it is a necessary tool for preventing future crime and promoting the public’s well-being.” Do you agree with this statement? Is the focus more on the well-being of society or the deterrence/rehabilitation of the criminal? What about non-violent offenses?
- “But to say that the state’s punishment is needed to prevent crime is not to commit oneself to the deterrence justification of punishment…if we aimed to prevent wrongdoing only by deterring its commission, we would be treating human beings in the same way that we treat dogs” (DOG EXAMPLE followed). Does this really relate to humans? Do we really question why there are laws in place after punishment is given?
As usual, 200-300 words, please.
Philosophy 395: Philosophy of Law 