Tuesday, June 28, 2005

Brian Leiter's Jurisprudence Final

I sometimes fantasize about sitting in Prof. Leiter's Jurisprudence class and getting involved in all sorts of philosophical discussion, naturalized or otherwise. But short of that actually happening, a glimpse on his take-home final suits me just fine for now. Fxs

Here are the two questions in Prof. Leiter's Jurisprudence final:

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1. On the first page of “Natural Law Jurisprudence,” 9 Legal Theory 241 (2003), Mark Murphy notes that Dworkin’s view is sometimes described as a “natural law” theory, but then adds that only Finnis’s theory represents “the full-blooded natural law view.” In what way do Dworkin’s and Finnis’s theory differ, such that it makes sense to describe Finnis’s as a more “full-blooded” natural law theory than Dworkin’s? You may find it useful to draw on both Murphy’s and Hart’s discussion of natural law theory (in Ch. IX of The Concept of Law), in addition to the particulars of Dworkin’s and Finnis’s theories themselves.

2. Suppose it is true that (a) the “rule of recognition” is a kind of social rule (as Hart claims) and (b) appellate judges respond to underlying situation-types rather than to the “paper rules” they cite in their opinions (as Llewellyn, Oliphant, Radin, and other “sociological wing” Realists claim). Would it follow that the “paper rules” the judges cite aren’t legally valid since the real criteria on which the courts are basing their decisions (for example, the norms of the commercial culture in which the dispute arose) are not the criteria that validate these paper rules? Why or why not? You will need, of course, to explain the sense in which the rule of recognition is a social rule and explain the view of adjudication in the “sociological wing” of Realism in order to answer this question.

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