Dowling College Philosophy of Law

PHL 3132A CRN: 93914

POL 3132A CRN: 93915

MW     10:00 am-11:21 am      RC 311


Dr Christian Perring, Department of Philosophy, Dowling College


E-mail: perringc at  [All email to me should have "PHL/POL3132" in the subject line]

Texting: message me at 631-256-7167, always starting your message with 3132.

Office Phone: 244-3349

Office: 330B RC (next to the computer lab)

Office Hours: Monday 230-430pm, Tuesday 230-430pm, Thursday 230-430pm

Holidays: Mon Sept 7 Labor Day, Monday Sept 14 and Tuesday Sept 15, Rosh Hashana, Wednesday Sept 23 Yom Kippur, Wednesday November 11, Veterans Day, Wednesday November 25 and Thursday November 26 Thanksgiving


Required Textbook: [Available at Dowling bookstore and through online booksellers.]

Philosophical Problems in the Law, David Adams. Fifth edition.  Cengage 2012.  ISBN-13: 9781133049999


Learning outcomes and modes of assessment

·         Students will examine controversial issues in the law as a way to understand the debates over the ultimate justification of legal authority.  These will include topics such as the right to property, the legality of slavery, the death penalty, and the insanity defense.  These will provide material for more theoretical debates between legal positivism, natural law, and legal constructivism.

·         Students will understand the philosophical basis of law.  They will gain skills of articulating the issues in the foundations of law, defending their views, and assessing the plausibility of alternative views.  They will also be able to analyze legal cases to determine the philosophical assumptions with which legal decisions are made.

·         Students will write 1 paper and will do 2 exams.

·         Students will do a presentation, and should also provide a hand-out summarizing the relevant details for the class.

·         Students will engage in group-discussion, and will articulate their own questions and opinions concerning the philosophical basis of law with the rest of the class.

·         The skills and knowledge required in coming to grasp the philosophical basis of law integrate well with both the rest of philosophy and also political science.  Naturally, as in most subjects, critical thinking, analysis and argumentative skills are central.  More particularly, the philosophy of law helps students to assess the authority of the state to rule its citizens, and this is central to most political science and many areas in ethics and political philosophy.


Reading assignments: Each class, some reading from the class textbooks will be assigned.  These readings are philosophically sophisticated and you must do the reading ahead of time to be prepared for class discussion.  You should be familiar with the main ideas in each assigned reading, and you should make notes of those parts that are hard to follow.  My policy will be to explain the readings to those who have read them and are ready to discuss them, not to explain them to students have not done the reading.  To a large extent, the course proceeds cumulatively and understanding the readings of the early weeks will be essential to understanding the discussion during later weeks.


Plagiarism detection and prevention: The paper should be submitted via  I will give you information about how to use  Note that I view any form of academic dishonesty very seriously, and if I find that you have engaged in any significant form of plagiarism or cheating I will fail you in this course and report my action to the Dean of Students.


Classroom Etiquette.  All cell phones ringers should be turned off and you should never talk on your cell phone in class.  You should not eat any food in class, especially food that others will notice through sound or smell.  You should turn up on time to all classes.  You are free to express your views and question the views of others, including your professor, and you can be passionate about your opinions.  However, you must always treat others in the class with respect; you can criticize the views and arguments of others, but you cannot criticize them as persons.  You should also make sure you are not dominating classroom discussion to the exclusion of other class members. 


Participation: You need to contribute to class discussion, which means you need to be there.  You should be engaged in the class, ready to answer questions and thinking of useful questions to ask.  You should not dominate class discussion to the exclusion of other students.


Presentations.  Presentations should be 10-15 minutes.  Your presentation should be on a topic related to the course.  The main opportunity for doing a presentation is at the end of the semester, but you can also do a presentation during the semester.  It is important that your presentation should generate discussion in the class, and you can organize an class activity if that will help generate participation.  Here are three main ways to do a presentation:


Academic and Personal Problems.  If you have problems that cause you to be late with work or to miss a number of classes, please stay in communication by phone, email, or by meeting with me in person.  I will be willing to work with you and sort out a way for you to still stay in the class and get a fair grade.  If you miss a number of classes or fail to hand in work on time but don't give me any explanation then you risk failing the class.


Keeping Copies of Your Work.  It is your responsibility to keep copies of all your work in this course until your final grade is submitted.  You need to keep copies of your work in at least 3 different places, because all storage methods are fallible.  Floppy disks are very unreliable and I recommend you don't use them.  If you do use them, back them up every day.  Better methods of storage are CD-ROMS, flashdrives or jumpdrives, zip-drives, hard disks, and emails to yourself with your work attached to the emails.  It can be a good idea to print out your work and keep a hard copy.  But remember that no method of data storage is perfect, which is why you should keep your work stored in at least 3 separate places.


Email.  You should email me using your Dowling email account.  Email sent from other non-Dowling accounts are likely to go straight to my spam-folder and I will never see them.  If you want acknowledgement of your email, please ask for it.  (There are instructions about how to activate your Dowling email at, and if you have difficulties, you should consult the Dowling Computer Help Desk.)


Due dates: Work is due on the day stated in the schedule.  You can give it to me in class, in my office if I am there, in my mailbox, or by e-mail or using by midnight.  If you are unable to make a deadline, you should tell me and explain why.  If your work is late without excuse, you will be penalized.  For both papers, late papers will lose 1% in grade for each day late.  Grades will be submitted to the registrar on Dec 20.  I do not give Incompletes except in cases of documented medical problems. 


Paper.  The paper should be written with APA style references.  Your paper should also have an appendix describing how you found your scholarly sources and why you decided they were good sources to use.  You must write a draft of your paper and get my comments on it.  The final paper needs to be at least 2500 words, and should have at least 5 scholarly references.  (Note that strong papers will typically be longer and have more references.)


Grade breakdown

Participation:               10%

Presentation:               10%

Midterm                      20%

Final exam                   20%

Paper                           40%


Final deadline for all course work Wednesday December 16






Work Due

Mon Aug 31



Self-Info Sheet

W Sept 2

A. Philosophy and the Law 3

B. What Is Law? 15

Trial of Border Guards 19 Robert H. Jackson, Opening Address for the U. S., Nuremberg Trials 23 Charles E. Wyzanski, Jr., Nuremberg: A Fair Trial? 29

Riggs et al. v. Palmer 184


W 9

Boumediene v. Bush 35

H. L. A. Hart, International Law 41

Larry May, Jus Cogens Norms 45

 The Antelope - 23 U.S. 66 (1825)

W 16

C. Classical Theories of Law 58

John Austin, Legal Positivism 64

H. L. A. Hart, Positivism and the Separation of Law and Morals 69

Lon L. Fuller, The Morality That Makes Law Possible 78



M 21

St. Thomas Aquinas, What Is Law? From Summa Theologiae 82

Mark C. Murphy, Natural Law Theory 84

Martin Luther King, Jr., Letter from Birmingham Jail 96

Lon L. Fuller, The Problem of the Grudge Informer 194


Mon Oct 5

D. Modern Theories of Law 101

Oliver Wendell Holmes, The Path of the Law 108

Jerome Frank, A Realist View of the Law 113



W 7

Mark Tushnet, Critical Legal Studies: An Introduction to Its Origins and Underpinnings 117

Andrew Altman, Critical Legal Studies and Liberalism 123



M 12

Ronald A. Dworkin, Law as Integrity 129

Brian Bix, Inclusive Legal Positivism and the Nature of Jurisprudential Debate 137



W 14

Contemporary Perspectives 146

Richard A. Posner, The Economic Approach to Law 151

Nancy Levit and Robert R. M. Verchick, Feminist Legal Theories 160



M 19

Angela P. Harris, Race and Essentialism in Feminist Legal Theory 174

Richard Delgado and Jean Stefancic, Hallmark Critical Race Theory Themes 178



W 21




M 26




W 28

A. Legal Reasoning and Constitutional Interpretation 201

Antonin Scalia, The Role of U. S. Federal Courts in Interpreting the Constitution 214

Ronald A. Dworkin, Comment on Scalia 219

Smith v. U. S. 208

Church of the Holy Trinity v. U. S. 211

District of Columbia et al. v. Heller 224


Mon Nov 2

A. What Is a Crime? 470

Douglas N. Husak, Intent 479

Sanford H. Kadish, The Criminal Law and the Luck of the Draw 482

B. Justification and Excuse 491

Paul H. Robinson, The Bomb Thief and the Theory of Justification Defenses 500

People v. Dlugash 476

State v. Leidholm 506



W 4

Cathryn Jo Rosen, The Battered Woman’s Defense 508

State v. Cameron 515 Norval Morris, The Abolition of the Insanity Defense 518

Stephen J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered 522 



M 9

C. Punishment and Responsibility 528

David Dolinko, The Future of Punishment 534

Richard B. Brandt, The Utilitarian Theory of Criminal Punishment 553

Michael Moore, The Argument for Retributivism 558

H. L. A. Hart, Punishment and Responsibility 563

Lockyer v. Andrade 531


M 16

Constitutional Law: Equal Protection of the Laws 337

A. Equal Protection Law, Racial Discrimination, and Affirmative Action 338

Elizabeth Anderson, Racial Segregation Today 354 

Parents Involved in Community Schools v. Seattle School District 347



W 18

A. Justice, Compensation, and Tort 630

Oliver Wendell Holmes, Jr., The Fault Requirement in Tort 640

Richard A. Posner, Wealth Maximization and Tort Law: A Philosophical Inquiry 646

Holden v. Wal- Mart Stores, Inc. 637


Final paper due

M 23

Jules Coleman, Tort Law and Tort Theory 652

Roger Cramton, Individualized Justice and Mass Torts 662



M 30

Causation and Liability 667

H. L. A. Hart and A. M. Honoré, Tracing Consequences 682

Judith Jarvis Thomson, The Decline of Cause 690

 Lynch v. Fisher 673 Palsgraf v. Long Island Railroad 676



Wed Dec 2

 Acts, Omissions, and the Duty to Rescue 700

Thomas Babington Macaulay, Against a Legal Duty to Rescue 704

Ernest Weinrib, The Case for a Duty to Rescue 706

 McFall v. Shimp 703


M 7

Peter Westen, Puzzles About Equality 367

Naomi Zack, What Is Race? 369

Thomas Nagel, A Defense of Affirmative Action 383 Shelby Steele, Affirmative Action 386

Barbara Grutter v. Lee Bollinger, et al. 374


W 9




M 14



Final exam

W 16

Final Meetings

















































Useful Internet Resources:


Internet Encyclopedia of Philosophy


Stanford Encyclopedia of Philosophy


Other Web Pages



More links:

·         PBS Frontline: A Crime of Insanity (The video is available at the library: Location: Oakdale Videos (1st Floor) Call Number: KF224.T67 C75 2002)

·         Encyclopedia of Everyday Law on Insanity Defense.

·         Insanity defense Encyclopedia of Psychology by Kenneth B. Chiacchia

·         Antioch Sexual Offense Policy

·         United States v Alexander and Murdock (full case)
Atkins v. Virginia (full case)
IEP on Punishment
Stanford Encyclopedia
TLC show Inside Super Max prisons.  
Part 1 Part 2 Part 3 Part 4 Part 5

Positivism and Natural Law

·         STATE of Maryland v.  Edward Salvatore RUSK  



Civil Disobedience

·         Schenck v. United States 


·         Minersville School District v. Board of Education