fuller and dworkin and rawls and morality of law and law's empire and interpretation and hercules and theory of justice

As you look longer and longer at the phenomenon we call jurisprudence, you become convinced that there really are only two basic movements, natural law and positivism, in the 2000+ years of Western jurisprudence, and that all present-day and future scholars have to deal with the legacy of these two large ideas.* Thus it is not unexpected that three of the leading figures in the philosophy of law debate over the

[*It is interesting to notice this kind of debate played out in other contexts, too. For example, there was a heated debate in the first half of the nineteenth century in Europe regarding the nature of human language. Was speech/language, as some would claim, a faculty bequeathed to us from a divine source, something that uniquely differentiated us from the animals, so that investigation of language should be seen from both its physiological and spiritual dimensions? Or, as the organicists claimed, was the power of speech/language merely a function of physiological processes, which would mean that the goal of science would be to "localize" the function of speech someplace in the brain? The former theory would correspond more to the natural law theory in jurisprudence; the latter to a positivist understanding. As in law, so in studies of human language, the "positivists" or organicists won the day.]

the past generation try to respond to one or the other tradition. The purpose of today's (Internet) class is to understand some of the vocabulary, context and concerns of these three figures. Using the following questions as a guide, I will ask you to choose a figure to study for about 30 minutes and then return to discuss some of his contributions.

Lon Fuller (1902-78)

Fuller, whose "Speluncean Explorers" hypothetical we studied to begin the course, never was comfortable either with positivism or with Hart's attempt to restate positivism in the 1950s and 1960s. Even though he is not much studied anymore, his substantial contributions in two (and probably three) areas of law should not make us lose touch with him. Those who study Fuller should keep these questions in mind:

1. What are Fuller's basic concerns/contributions in his work? Look at James Boyle's internet article on "Legal Realism."

2. Who is "Rex" for Fuller?

3. Describe the "Fuller/Hart" debate and Fuller's approach to "procedural natural law" in The Morality of Law.

4. Bix also tries to place Fuller among those involved somehow in "Legal Process." What does that mean and did you find further substantiation for that point?

Ronald Dworkin (1931- )

Dworkin is probably the "biggest name" in contemporary jurisprudence. He holds Hart's chair at Oxford and also lectures at NYU law School. His several major works each respond to different problems and hone his growing commitment to the nature and function of interpretation in judicial decisions. The following questions should help you get started on him. Some of these might overlap.

1. Many people see Dowrkin's career as divided into two or three distinct stages based on his reaction to Hart/positivism and his putting forth of his own program. How would you characterize the flow of his writing?

2. Dworkin looks at judges at interpreters of competing strands of legal tradition as they try to decide cases. Describe Dworkin's theory of judicial interpretation, which Bix calls "constructive interpretation."

3. How do the following function for Dworkin: "Hercules"; "the chain novel"; the "right answer."

4. I think one of the reason's for Dworkin's popularity (despite his--seemingly endemic to the field--thick prose) is his willingness to use what I call highly freighted moral terminology in his work--integrity, truth, the right answer, etc. Notice the language that Dworkin uses (through quotations from his work) and tell us about it.

John Rawls (1921-2002)

John Rawls was the most significant English-language political philosopher of the 20th century. His 1971 book A Theory of Justice is his best-known work and the work which, more than any, recalls Plato's attempt in the Republic to construct a kallipolis. I want those of you who choose Rawls to do the following three things.

1. Find Professor Martha Nussbaum's Internet article (from the Chronicle of Higher Education) reviewing Rawls' work. Read it and be ready to tell us what she says.

2. How does Rawls organize his Theory of Justice? What are his central principles? What is he trying to do?

3. What was/is the reaction to Rawls work and how did Rawls seemingly try to refine/develop it between 1971 and 2000?

Conclusion

If after the end of this class, you have some understanding of what the following six people were trying to do and the meaning of significant terminology they used, you will be at a good place. Those six are John Finnis, Hans Kelsen, HLA Hart, Lon Fuller, Ronald Dworkin and John Rawls. On Thursday, we will finish reporting on Rawls, if we don't get to him fully today, and then move on to Law and Economics through Bix's treatment. Next Tuesday we will look at postmodern themes and movements (I will give a more focused reading assignment when we meet on 11/11), and then, beginning on Thursday 11/18, we start the oral presentations.