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Philosophy of Law

by University of New Orleans

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Course Description

Taught by Chris W. Surprenant, assistant professor of philosophy at the University of New Orleans and director of the Alexis de Tocqueville Project in Law, Liberty, and Morality.

This course will examine a number of the main figures, texts, and ideas in the history of Western political thought, paying particular attention to the nature of justice and the role of law in society.  We will consider such issues as: the relationship between individual rights and democracy, the nature and extent of political obligations, and the value of freedom as compared to other potentially competing goods like community, progress, security, etc., as well as the role of political institutions in both perpetuating and overcoming race, gender, and economic oppression. 

The role of the state in directing a citizen towards objectively good goals is at the center of the debate in contemporary moral and political philosophy between perfectionists and anti-perfectionists. Generally, perfectionists argue that the state need not be neutral when it comes to directing or coercing citizens towards particular conceptions of the good life or away from behavior inconsistent with the good life. Conservative perfectionists, such as Aristotle, John Finnis, and Robert George, argue that the principles consistent with the good life are universal and can be discovered by examining the order of nature, and that the state is justified in directing its citizens towards a particular conception of the good life. Most conservative perfectionists can be associated with some form of natural law theory, either secular (Aristotle) or religious (Finnis and George). Liberal perfectionists, such as Joseph Raz, argue that the state may justify laws on moral grounds, but, unlike conservatives, the state may not promote a particular conception of the good life. Although the state is not justified in directing its citizens towards a particular conception of the good life, it may remove bad options or options that are inconsistent with the range of possible good lives.

Anti-perfectionists take the opposite position. They argue the state should not direct or coerce citizens towards accepting particular conceptions of the good life, promote a particular conception of the good life, or justify its actions by appealing to a particular conception of the good life. Liberal anti-perfectionists, such as John Rawls, argue that the state should take active steps to promote the freedom and equality of its citizens and ensure that society exists as a fair system of social cooperation. For Rawls, institutional features must support these abstract values: a fair distribution of wealth and income, public healthcare, adequate public education, elected offices being open and accessible to all citizens, and so forth. Conservative anti-perfectionists, such as Robert Nozick and Randy Barnett, argue for a minimalist state. They assert that individual freedom is compromised when state functions extend beyond the enforcement of contracts, fraud prevention, protection against force, and basic coordination activities.  

Underlying many anti-perfectionist positions is the thought that the very concept of public morality is suspect. Public opinion on what is morally praiseworthy or blameworthy not only varies widely between cultures or states, but also appears to change frequently and drastically over time within particular groups. That we can observe such dramatic change may suggest that public morality is nothing more than the opinions of the citizens or legislators at any given point in time, opinions that may change due to persuasion, force, or whim.

One response to this position involves separating public morality into two components: one related to principles and one related to particular actions or policies. Every community not only has a set of core principles (order, freedom, equality, etc.), but a rank ordering for these principles. The principles are intertwined with the culture and customs of that community, and, depending on the community, may be codified through its laws. Although core principles may vary between communities, the set of principles and rank ordering of those principles within a particular community is fixed. If either the core principles or their rank ordering changes, then one could argue that something fundamental about that community has changed as well. It has, perhaps, become a fundamentally different community.

But not all change affects a community in this way. A community may, for example, reject universal healthcare on the grounds that it violates individual freedom (e.g., due to the implementation of taxes needed to pay for this policy), but later adopt universal healthcare by appealing to that same principle of individual freedom (e.g., no individual can be free in a meaningful way if he is unable to meet his basic medical needs). Although the community would value freedom in both instances, how freedom can be understood when applied to a particular example appears to have changed.

Discussions of public morality, therefore, will examine these different sets of fundamental values and how these values should be applied to particular actions or policies. We may ask questions such as: Is there one set of principles that is objectively best? If so, is there a rank ordering of those principles that is objectively best? Are there values that, if adopted, make a community unsustainable? What is the role of culture, education, and the law in promoting these principles? Is there a best procedure for determining whether or not actions or policies are consistent with the values of a particular community? If not, are there procedures that are always inconsistent with making sound decisions in this regard? Finally, is there a best form of government, with a best set of laws, for a community given its particular set of values? If so, how is that best form of government, and those best laws, determined?

Customer Reviews

Great Class!

I took this for credit via the High School Dual Enrollment Program through the Alexis de Tocqueville Project, and the experience was awesome. The lectures themselves are engaging and interesting, and the discussions really did make me reevaluate some of my views.

Even if you don't have the opportunity to take the class and take part in the weekly Skype meetings, listening to the lectures and buying Justice: A Reader to read through will blow your mind. A big thanks to the University of New Orleans and Chris. W. Surprenant for making this all happen!

Philosophy of Law
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