Weekly Topic: What does Judicial Sexism Mean?

Catharine MacKinnon indicates that the term "woman" is not inherently tied to biological sex, but instead denotes a mixture of social evaluation and biological fact. With this caveat in mind, she explains that the judicial system works to the disadvantage of women because it consists of a set of social evaluations that prioritize the perspective, biological facts associated with and judgments of "men," defined as a similar mixture of biological fact and social evaluation.

• What does it mean to call a judicial system sexist if it does not mean that one sex is exclusively promoted over the other?
  
• What are some examples of judicial sexism that apply to the judicial system today? Are MacKinnon's claims that rape laws are defined from the perspective of men still credible?
  
• What is the damage associated with judicial sexism? Does it apply exclusively to women or does society as a whole suffer? How could judicial sexism be effectively combated and what obstacles would mitigate strategies designed to combat judicial sexism?

Weekly Topic: Economic Liberty and Natural Hierarchies

Last week someone asked me "CLS says that law benefits people of higher social status. Then how do we explain things like welfare and food stamps?" Despite having radically different attitudes on this issue, I believe that CLS and individuals who favor Economic Analysis of Law, such as Richard Posner, have similar responses to this question. Here's how Posner responds to a similar issue in his essay "Utilitarianism, Economics, and Legal Theory:" "the costs of the minimum wage may be tolerable from a wealth standpoint if it were necessary to ward off a dictatorship that would reduce the nation's wealth even more." (140) The point at which Posner and CLS theorists converge is in thinking that hierarchical economic forces will support social safety nets like welfare, food stamps or the minimum wage if these provisions, which are harmful both economically and to social hierarchy, are necessary to prevent greater social transformation and economic disruption. They differ over whether such transformations or social provisions would be a good thing: CLS theorists think it might be, while economic theorists like Posner believe it is relatively bad.

The logic behind Posner's position is that in the tradeoff between economic and political liberties, we are generally right to prefer economic liberties because the wealth generated by economic liberty "provides foundation and accommodation both of individual rights and of the material prosperity upon which, in the modern world, the happiness of most people depends." (136)

• What do you think of Posner's view that his principle of Wealth Maximization provides the basis for all relevant political rights?
  
• What evidence would you cite to support or question Posner's assertion?
  
• What significance do you attach to the CLS claim, which Posner acknowledges, that ideology—Posner calls it "advertising or other features of a market economy[—]lead people to buy things they don't really want?" (114) To put it another way, what complications arise within a legal or economic system when people are unaware of what they really want or what political rights best serve their wants and needs?

Weekly Topic: The Reality of Legal Rules

One of realism's main preoccupations is with the social effects of legal rules and decisions. Oliver Wendell Holmes offers this example:

Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders and the like, where the damages might be taken to lie where they fell by legal judgment. But the torts to which our courts are kept busy to-day are mainly the incidents of certain well known businesses. They are injuries to person or property by railroads, factories, and the like. The liability for them is estimated, and sooner or later goes into the price paid by the public. The public really pays the damages, and the question of liability, if pressed far enough, is really the question of how far it is desirable that the public should insure the saftey of those whose work it uses.

This example raises several questions:

1. What difficulties does Holmes's example pose for natural law and positivist approaches to legal interpretation?
2. What are some examples where the law is inconsistent with social reality?
3. Why should the law be adjusted to address these realities? How could this adjustment be accomplished?
   
4. What dangers and what benefits would result from adopting the realist position that law is not only based upon questions of social advantage, but should be evaluated according to the social effects it produces?

Weekly Topic: Law as Mediator

Joseph Raz claims that legal authority depends primarily on the social facts in which a particular legal system exists. In Western democracies, for example, legal institutions owe their authority partially to the fact that they are habitually obeyed. Because obedience is a social fact, Raz suggests, it does not matter whether individuals agree with or morally approve of legal rules. It doesn't even matter whether legal rules are genuinely beneficial to the individuals who obey. What matters for genuine legal authority is whether individuals recognize legal officials as having commanding authority over their behavior. While examples like the Milgram Experiment suggest that authority based on social recognition undermines individuals' abilities to question or otherwise change the rules accepted as having legal authority, Raz justifies his approach with two observations: on the one hand, such a view of authority is basic to our culture's experience of law. On the other hand, such a view is amazingly effective at resolving disputes.

What do you think of Raz's claim that legal authority is based upon the fact that it is socially recognized as a mediator among individual disputes? Are the concerns raised by the Milgram Experiment legitimate objections to Raz's view on conventional authority? Why should or shouldn't we accept the law's factual capacity to resolve the majority of disputes as reason enough to submit to its authority? Within Raz's theory of legal authority, how do changes to legal rules come about?

Weekly Topic: Internal and External Morality

Lon Fuller suggests that good legal systems can be distinguished from bad ones by the amount of coherence and order that they promote among those who are subject to the law. Nevertheless, Fuller admits that for him this "assertion of a belief that may be naive [. . .] that coherence and goodness have more affinity than coherence and evil" remains unproven. Based on Fuller's account of the internal or procedural aspects of morality pertaining to law, is it possible to substantiate Fuller's assertion that "when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness" or is Fuller's view of the ameliorating effects of internal morality fundamentally unprovable? Regardless of whether it can be proven or not, what consequences in legal scholarship do you see resulting from such a view and how do they differ from the positivist claim that legal scholarship must rest on the letter of the law, e.g. interpretation of penumbra legal disputes in light of the core solidified meaning of precedent?

Weekly Topic: Positivism and Natural Law

Throughout his essay, "Positivism and the Separation of Law and Morals," H. L. A. Hart strains to show that theories of natural law undercut moral criticism of legal rules and institutions by conflating law and morality into one indistinguishable set of rules and norms. To avoid this confusion and preserve the value of moral criticisms of law, positivism distinguishes between legal norms and moral norms.

Yet, it might seem that Hart's formulation of the positivist distinction, especially since it is designed to legitimate criticism of the law on moral grounds, simply reiterates Aquinas's distinction between natural law and human law. After all, isn't it the link between natural law and human law that serves as the basis for moral criticism of the law?

In short, I would like to hear how you understand the distinction between law and morality, specifically as it applies to positivism, but also in what respect it alters, misunderstands or corrects aspects of natural law theory. Are positivism and natural law ultimately up to the same thing? If so, does positivism significantly refine or improve the methods of natural law? If positivism and natural law have different goals, what are their respective aims and why should we prefer one over the other?

Weekly Topic: What do Realists Want?

As noted in class and in your readings, Critical Legal Studies and Legal Realists in general have been severely criticized for their non-normative, "quietistic" approach to legal philosophy. Leiter explains the criticism vis-a-vis legal realism as concluding "quietists hold that since the core claim reports some irremediable fact about judging, it makes no sense to give normative advice--except perhaps the advice that judges 'ought' to do what it is they will do anyway" ("Legal Realism," 277).

Moreover, Critical Legal Studies seems to amplify the claim by criticizing the positive empirical method of legal realism for assuming the empirical realities, such as the way the legal system affects the distribution of wealth in society, that it should be criticizing or, at any rate, analyzing. Critical Legal Studies thereby forfeits any systematic or theoretically coherent basis for legal interpretation that it might otherwise claim. The result, as Tushnet sees it, is that the "dominant position" within CLS amounts to an "interminable critique" of attempts to construct systematic theories of law, legal theory and legal practice.

This week I would like you to discuss the rationale for the "dominant position" in CLS, identifying its relation to realism, its methodology and its possible value or lack thereof. For instance, how does the "dominant position" apply to Economic Analysis of Law or Feminist Jurisprudence? Why might someone prefer one approach to another, or at least find one more credible than another? What common strengths or weaknesses apply to some rather than others or all three, together, as representatives of the realist tradition of legal philosophy?

Weekly Topic: Judicial Discretion

As we have seen, natural law theorists and legal positivists not only disagree on the relationship between morality and law, but the extent to which judicial discretion is valid and possibly beneficial to a legal system. As we shall see, legal realists and critical legal theorists think discretion is the norm rather than the exception to legal rules.

In light of these disputes among natural lawyers, positivists and realists, discuss the role, value and factors that could or should influence the use of judicial discretion in a legal system.

Weekly Topic: Morality and the Law

The Oresteia ends up hinging on one's determination of the place and value of broad moral and ethical principles, such as the duty not to harm others, particularly when they are blood relations, in legal systems organized around social conventions, such as the sanctity of the marriage contract or the duty to uphold one's promises to the gods and vice versa. In her decision, Athene seems to rule that legal systems cannot neglect moral obligations, but they cannot grant them absolute priority either.

Compare the outcome of the Oresteia with the the debates between natural law theorists and legal positivists.

• Does morality play an essential role in the law or is it inessential and even dangerous to subject legal decisions to moral evaluation?
• Why would it be desirable to either include or exclude morality when trying to describe the operation of legal institutions?
• What kinds of accommodation are possible when considering conflicts between moral and legal obligations?

Weekly Topic: Injustice and the Law

We could evaluate Clytaemestra's murder of Agamemnon as justifiable or unjustifiable for many reasons. One possible justification would go something like this: As a woman in Greek society, Clytaemestra has few if any places to seek redress when she perceives injustice, so her only remedy is to take the law into her own hands.

• What, if any, details of the plays might justify this explanation for her actions? What details might contradict this explanation?
• Does the presence of injustice within a legal system permit one to take the law into one's own hands? Why and to what extent?
• How might the legal system in Argos be changed to reduce the occurrence of vigilantism?

Weekly Topic: Justice in Argos

Even before Agamemnon returns to Argos, we've heard many complaints about his administration. Discuss the the pros and cons of Agamemnon's sense of justice and describe the competing accounts of justice held by Clytaemestra, Cassandra, Aegisthus and the Chorus. In short, why does each have a motive for wanting to see Agamemnon dead and which justification, if any, makes sense to you?