Philosophy of Law
NOTE: The following is provisional only. There will unquestionably be changes (mostly deletions) in the course of the semester.
articles should be immediately available through the links if you are
on campus. If you are off campus, go to the W&M library webpage, search for the article by name and you will find online access - the same is true for access to books.
I. Anarchism: Is there a duty to obey the law?
M.B.E. Smith, Is There a Prima Facie Obligation to
Obey the Law?, 82 Yale L.J. 950 (1973) [available on JSTOR]
William A. Edmundson, State of the Art: The Duty to Obey the Law, 10 Legal Theory 215 (2004) [available here or try here] pp. 245-52 only
II. What is a (legal) right?
Luís Duarte d'Almeida, Fundamental Legal Conceptions: The Hohfeldian Framework, 11 Philosophy Compass 554-69 (2016) available here
James Penner, On the Very Idea of Transmissible Rights, in Philosophical Foundations of Property Law 244-71 (James Penner & Henry E. Smith eds. 2013) available here
III. Is a duty to obey the law necessary for political legitimacy?
Arthur Isak Applbaum, Legitimacy without the Duty to Obey, 38 Philosophy and Public Affairs 215 (2010) [available on Wiley]
Read: Introduction ( p. 215); sections II-IX, pp.
IV. The idea of theory of law
Scott J. Shapiro, Legality (2011) Ch. 1 (go to the W&M library webpage, search for the book and you will find online access)
V. Theories of law: The possibility puzzle
Shapiro, Legality Ch. 2 (go to the W&M library webpage, search for the book and you will find online access)
VI. Austin's command theory of law
Shapiro, Legality Ch. 3 - read pp. 51-73 only (go to the W&M library webpage, search for the book and you will find online access)
H.L.A. Hart, The Concept of Law Ch. IV
VII. Hart's practice theory of law
Shapiro, Legality pp. 79-102 (go to the W&M library webpage, search for the book and you will find online access)
Andrei Marmor, Legal Conventionalism in Hart Postscript (Jules Coleman ed. ) [available here]
VIII. Hart's theory applied: What is the rule of recognition
for the American legal system?
Kent Greenawalt, The Rule of
Recognition and the Constitution, 85 Mich. L. Rev. 621 (1987)
[available on WESTLAW]
- do not read Part II, pp. 624-30, or
Part VIII.C, pp. 662-70
IX. Hart's theory applied: The paradox of self-amendment
Alf Ross, On Self-Reference and a Puzzle in Constitutional Law, 78 Mind 1-24 (1969) [available on JSTOR] - read ONLY pp. 1-7 and pp. 20-24.
X. Dworkin's critique of Hart
Scott Shapiro, The Hart-Dworkin Debate: A Short Guide for the Perplexed [on SSRN] (read only up to p. 41)
XI. The planning theory of law
David Plunkett, The Planning Theory of Law I and II, in 8 Philosophy Compass 149-58, 159-68 (2013) [available here and here]
XII. Inclusive and exclusive legal positivism
Shapiro, Legality Ch. 9 pp. 269-77 only (go to the W&M library webpage, search for the book and you will find online access)
XIII. The puzzle of authority
Scott Shapiro, Authority- up to p. 52 only
XIV. Legal realism and rule-skepticism
Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935) - pp. 809-12, 820-21, 834-49 only
XV. The moral impact theory of law
Mark Greenberg, The Moral Impact Theory of Law, 123 Yale L.J. 1288 (2014)
Scott Hershovitz, The End of Jurisprudence, 124 Yale L.J 1160 (2015)
XVI. International law
Ronald Dworkin, A New Philosophy for International Law, 41 Phil. & Pub. Affairs 2 (2013)