Each student should do three 2-page papers. If someone chooses to do the paper for that day, it should be e-mailed to me before the class.

Each student should have done the first paper by the week ending Friday February 24, the second paper by the week ending Friday, March 30, and the third paper by the end of the semester.

Questions for Fri. Apr. 20

1) What is Blackburn's argument for Quasi-Realism and what follows if Quasi-Realism is true (see pp. 164-67 of Waldron's article)?

2) What is Waldron's argument that moral realism does not help support (and emotivism does not undermine) the legitimacy of judicial review? Does it work?

Past Questions

What, according to Hart, are the primary worries about whether international law is really law and to what extent does Hart think these worries can be answered? Is Hart's argument convincing?

What consequences does Brink think that his alternative semantic theory has for the interpretation of legal texts? In answering this question, keep in mind that Brink still leaves open the possibility that the  author of a legal text wanted us to follow her specific (as opposed to abstract) intent.

What are the Planners and the God’s-eye approaches to meta- interpretation, and why does Shapiro think that the God’s-eye approach violates GLOP (the general logic of planning principle)? Assuming Shapiro is right, then why doesn’t he think that the Planners method is necessarily the correct approach to meta-interpretation?

Shapiro believes that the meta-interpretive question should be answered by reference to the “attitudes of trust and distrust and distrust presupposed by the rules of the system.” (p. 357) Briefly describe this idea and then carefully discuss whose attitudes one is to look to, and whether the process of determining to whom to look is a problem for Shapiro’s theory.

Why does Shapiro think that he has solved the problem of theoretical disagreements in a manner compatible with positivism? Is he right? What is the distinction between inclusive and exclusive legal positivism and why does Shapiro think that inclusive legal positivism violates the “simple logic of planning” argument? (See Ch. 9)

On pp. 302-04, Shapiro argues that his Planning Theory and Dworkin's theory of law would describe disagreements about interpretive methodologies in different ways. In your own words, why is that the case and what are those differing descriptions?

On pp. 137-38, Hart claims that the predictive approach to the law ignores the internal point of view. On the basis of what you've read in Cohen’s article, Transcendental Nonsense and the Functional Approach, how would he respond?

In Ch. 7 of the Concept of Law Hart argues that legal realists exaggerate the extent of legal indeterminacy and misinterpret the finality of judicial decisions to entail their infallibility. Are either of these errors (if they are errors) evident in Cohen’s article, Transcendental Nonsense and the Functional Approach\?

Why does Hart think that the finality of a judicial decision in which the law is applied not mean that the law is what a court says it is? (See Hart pp. 141-47) Is he right?

How does Shapiro answer Hume’s Challenge? (See pp. 181-88) Does he succeed?

What is the Moral Aim Thesis? Is it correct? (See Ch. 7)

What is the Moral Aim Thesis? Does it mean Shapiro is a natural law theorist? (See Ch. 7)

What does Shapiro mean when he says that the law is a self-certifying planning organization? Does the idea of self-certification work as a way of distinguishing legal from non-legal systems?

Shapiro speaks of an individual who adopts a plan as placing herself "under the governance of a norm." (p. 127) Using an example, what sort of constraints does her adoption of a plan put upon her? What is the source of these constraints? Why isn't the source morality? In answering this question do not consider shared plans. It is enough to speak only of an individual's plan.

One of the lessons that Greenawalt arrives at (see pp. 634-37) is that different officials in the same legal system may use different rules of recognition. Why does he think that
is so? Does it spell disaster for Hart's theory?

Greenawalt spends time distinguishing between the following two candidates for how the Constitution relates to the ultimate rule of recognition:
 (a) All or part of the ultimate rule is the Constitution itself, including the amending clause and any amendments whose present legal authority rests on acceptance, but excluding amendments  whose present legal authority rests on their adoption according to the amending clause;
 (b) All or part of the ultimate rule is: Whatever the Constitution contains, the present legal authority of which does not depend on enactment by a procedure prescribed in the Constitution, is law.
What is his the difference between the two and why does he prefer the second? Is his argument plausible?

What is Greenawalt's argument that prevailing standards of interpretation are part of the rule of recognition of the US (see pp. 654-58). Why not simply conclude that the question
of appropriate interpretive standards are not legal at all and thus are  not answered by reference to the rule of recognition?

On pp. 102-10, Shapiro claims that Hart's theory fails toanswer the possibility puzzle because social practices do not necessarily generate social rules. On pp. 105-08, Shapiro argues that coordination conventions cam generate social rules (although he later rejects the idea that the social practice of rule recognition could be understood as a coordination convention). In your own words, what is Shapiro's argument that social practices do not necessarily generate social rules and why are coordination conventions able to generate such rules?

On pp. 119-20, Hart speaks of the apparent paradox of a restored legal system extending its laws to events turning an interregnum, when the legal system's rule of recognition was not  in existence. Why might someone think this is a paradox? Why does Hart think the paradox is only apparent? Is Hart right?

On pp. 110-15, Shapiro argues that Hart's theory cannot answer Hume's Challenge. In your own words what is Shapiro's argument?'

Spell out what Hart considers the necessary and sufficient conditions for the existence of a legal system in chs. V-VI. Are the criteria over-inclusive (including things that are not law)? Are they under-inclusive (not including things that are law)? If the criteria are over- or under-inclusive what changes might you recommend?

What is the internal point of view and what role does it play in Hart's theory?

Hart argues in Ch. IV of The Concept of Law that Austin's approach cannot account for the continuity of lawmaking authority between lawmakers in the same legal system (e.g. between Rex I and Rex II).  Briefly, what is this argument? Why can't Austin account for such continuity by assuming that Rex I delegated his power to Rex II?

Why does Shapiro think the existence of a good citizen is a challenge to Austin's theory? Does Shapiro's argument depend upon there being a prima facie duty to obey the law? Briefly - is Shapiro  right about the challenge of the good citizen for Austin?

Toward the end of Ch. 1, Shapiro argues that analytic jurisprudence can have practical consequences, particularly in connection with interpretive diagreement. What is his argument here and (briefly) is he right?

Shapiro identifies in Ch. 2 two fundamental problems in the philosophy of law - the possibility puzzle and Hume's challenge. How do the three persistent questions that Hart speaks of in Ch. 1 of the Concept of Law fit into Shapiro's framework? Can they be explained as examples of Shapiro's two problems?

What is the distinction between conduct-regulating and power-conferring rules, identified by in Shapiro Ch. 3. What is Shapiro's criticism of Kelsen's view that power-conferring rules are fragments of duty-imposing rules? Isn't Shapiro's argument directed, not at Kelsen's idea that power-conferring rules are fragments of duty-imposing rules, but  at Kelsen's idea that duty-imposing rules are really directed at officials? What would Shapiro's response be to a theory that said that power-conferring rules are fragments of duty-imposing rules but that duty imposing rules are directed, not toward officials, but toward citizens subject to the duties?

Consider the following argument:
There can be no interesting disagreements about questions of conceptual analysis (and so no interesting resolutions of such disagreements), for the minute there is disagreement, that simply means that the two people are focusing on different concepts and so are talking past one another. If I think it is essential to a bank that it be beside a river and you think it is essential to a bank that it hold money, the solution to our disagreement is not to determine which of us is right, but to recognize that there are two concepts of a bank, which we both  have and that each is simply focusing on one of them. Conceptual analysis is not needed. The only thing that is needed is disambiguation.
Relying on what he says in Ch. 1, how do you think Shapiro would answer this objection?