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UI 305: Judicial Reasoning

UI 305: Judicial Reasoning. Prof. H. Hamner Hill Spring 2010. What is Philosophy? Three Answers:. Reflecting on common sense knowledge, seeking a deeper understanding of what we already know Linguistic or conceptual analysis

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UI 305: Judicial Reasoning

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  1. UI 305:Judicial Reasoning Prof. H. Hamner Hill Spring 2010

  2. What is Philosophy?Three Answers: • Reflecting on common sense knowledge, seeking a deeper understanding of what we already know • Linguistic or conceptual analysis • That branch of science that is concerned with those features of reality that are of the greatest possible generality or universality

  3. Philosophy as the General Science of Being • Philosophers seek theories that provide an overarching framework within which the contents of the other branches of knowledge (science, scholarship, law) can be placed. • Philosophers seek consistent descriptions of those common features of reality (cause, purpose, value) that show up in every kind of inquiry.

  4. These Three Answers are not Mutually Exclusive • Some philosophers tend to follow one model to the exclusion of others: commonsense philosophers, ordinary-language philosophers, Rationalists. • Many philosophers combine two or three of these approaches. For example, many accept common sense or linguistic analysis as starting-points.

  5. Applying these Models to the Philosophy of Law • We can reflect on our common understanding of law, legal obligations, legal rights, due process, justice. • We can analyze the meanings of key terms in the law: “rights”, “obligations”, “punishment”, etc. • We can seek the essence of law, legal institutions.

  6. Seeking the Essence of Law • What makes something a law (as opposed to a custom, habit, religious rite, moral duty)? • Are there any necessary connections between law and morality? law and politics? biology? theology or cosmology?

  7. Philosophies come in Many Varieties • Platonism: Universals, like truth, justice, goodness, humanity, beauty, really exist, independently of our language or structure of thought. • Nominalism: Universals don’t really exist. All that exists are concepts and terms of language that refer in a general way to many things.

  8. General Tendencies of Platonists and Nominalists • Platonists tend to be more rationalistic, open to metaphysical theories, including the irreducibility of human being to physical processes. • Nominalists tend to be more empirical and skeptical. In addition, they tend toward more materialistic and reductionistic accounts of human being.

  9. Varieties of Philosophers of Law • Natural Lawyers: Aquinas, Fuller, Finnis • Legal Positivists: Austin, Bentham, Hart • Legal Realists and Critical Legal Studies: Holmes, Llewellyn, Frank • Interpretivists: Dworkin, Ely • Non-interpretivists: Bork, Berger, Scalia

  10. The Normative/Descriptive Dichotomy • Also known as: the fact/value distinction. • Widely accepted by nominalists, including positivists. • Tends to be rejected by Platonists, natural lawyers.

  11. Natural Law Theory • When we discover the essence of the law, we learn both what the law truly is, and what it ought to be.

  12. Legal Positivism • Discovering what the law is tells us very little about what it ought to be. • We may discover certain minimal requirements that every legal system must satisfy.

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