Justice, Punishment, Ethics: Philosophy and the Law I

Philosophy of Law at Waseda University Law School, 2007

Thursday, April 26, 2007

Philosophy Essay 1 and 2

Waseda Law School Ethics Questions

Essay 1 (Due Friday Week 7)
Length: 500 words minimum

Answer ONE of the following questions.
1.1 Moral Relativism:
What is the Cultural Differences Argument? And what is its most serious
objection?
1.2 Socrates and Obedience to the Law:
What was Socrates’s argument in favor of obeying the law, even when to do so meant death? What are some objections to his argument? And which argument do you think is more plausible?
1.3 Utilitarianism
Can a Utilitarian respect the obligation to keep promises?

Essay 2 (Due Friday Week 14).
Answer ONE of the following questions.
2.1 Kant:
Why does Kant think that murderers should be executed?
What is the strongest objection to his argument? Which argument is more
plausible?
2.2 Social Contract:
What is the difference between Kant’s conception of human nature, and that
of Hobbes? And what, for both thinkers, is the relationship between reason
and morality? Who has the more plausible view?
2.3 Death Penalty:
Should Japan abandon the death penalty?
2.4 Choose your own essay question.
You may choose to write an essay on a question you have chosen yourself, provided 1). It is on a topic covered in class and 2). I approve of the essay question.

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Monday, April 09, 2007

Waseda Philosophy of Law Theme Class Semester I

English: Theme 82 (Spring 2007) Theme 82 (Fall 2007)

Dr. Geoffrey Roche
Waseda University School of Law
Email: unblinkinggaze@hotmail.com
Web pages for these notes: www.unblinking-gaze.blogspot.com
www.wasedaphilosophyoflaw.blogspot.com


Semester I: 9th April- 13th July.
Semester II: 29th September- 21st January.

Philosophy for Law Students I: Introduction to Philosophy for Law Students
PROVISIONAL

1.1 Course Summary
This course will provide an introduction to some key philosophical concepts and approaches, and will negotiate questions such as the following: what makes an action the right, or the ethical, thing to do? what principles of justice and ethics should a community adopt and enshrine in its legal system? Is there even a universally applicable standard, or is law merely subjective? We will consider these central debates, with an eye to the real- world implications of what answers we give. The first few classes will be a general introduction to the practice of philosophy, and will be followed by discussions on the basic principles of ethics and policy. The semester will end with discussions of some contemporary moral issues. Each class will consist of both lecture and discussion components, and students are expected to actively participate.
NOTE: At the time of writing, the competence of the students enrolled is not known. The course material will be adjusted to the English –competence level of the class if and where necessary.

1.2 Syllabus

Week 1: Introductory Discussion: What is philosophy? What is Ethics? What is Law? And what is the relationship between the three?
Week 2: Reason and Argument: An Introduction
Week 3: Legal Dilemma: The United States vs. Holmes (1848)
Week 4: Moral Relativism
Week 5: Natural Law Theory
Week 6: Socrates and Obedience to the Law
Week 7: Utilitarianism: Bentham and Legal Reform
Week 9: Kant and Capital Punishment
Week 10: Hobbes & The Social Contract
Week 11: Euthanasia
Week 12: The Death Penalty
Week 13: Review
Week 14: Examination




Philosophy for Law Students II: Philosophical Problems in Law

2.1 Course Summary
This course will continue from Theme 82 (Spring Semester). Whereas the Spring course was a general overview of basic principles in ethics, the Fall semester class will deal with central debates in contemporary legal and moral theory. There will also be lectures dealing with specific contemporary moral and legal debates, in particular the concept of the ‘war crime,’ theoretical justifications for punishment, the nature of censorship, and the nature of copyright.

PROVISIONAL

2.2 Syllabus
Week 1: John Rawls
Week 2: Robert Nozick: Anarchy, State and Utopia
Week 3: Michel Foucault: Discipline and Punish
Week 4: Turnbull
Week 5: The Free Will Problem and Justice: “The Twinkie Defense”
Week 6: Media and the Law: Pornography and Censorship
Week 7: Cultural practices vs. Universal Law: Legal Moralism vs. Legal Paternalism
Week 8: Just War Theory and War Crimes
Week 9: Atrocity Denial and the Obligation to Remember
Week 10: Euthanasia vs. Murder: The Trial of Dr. Anna Pou
Week 11: Natural Law Theory vs. Legal Positivism
Week 12: Justifications of Punishment
Week 13: Review
Week 14: Examination

Textbook: There will be no set text. Handouts will be distributed as needed.

2.3 Grading Method:

Assessment will consist of in- class discussions and participation (30%), two essays (a combined value of 50%; the final grade will be the higher of the two essays), and a final exam (20%).
2.4 Course Objectives
Subject specific outcomes

The student will demonstrate the ability to utilize and evaluate key concepts in ethical theory.

Transferable skills

The student will demonstrate the ability to debate (ethical and legal) in a clear and structured manner.
The student will demonstrate the ability to assess the ethical arguments, viewpoints and doctrines of others.


2.5 Course Methodology and Format

The course will be comprised of twelve one- and – a half hour classes. The first half of the course (Semester I) will be theoretical, with an eye to the real- world implications of the ideas under discussion. The second half of the course will address real world problems that are regularly addressed in philosophy of justice and law and policy analysis. Specific aspects of moral and legal philosophy will also be discussed in detail. The two halves of the course will be integrated, in the sense that students are expected to see the connections between ‘pure’ and ‘applied’ theory.

2.6 Recommended Reading
(handouts will be distributed as needed)
James Rachels The Elements of Moral Philosophy. New York: Random House, 1999.
James Rachels The Right Thing to Do: Readings in Moral Philosophy. New
York: Random House, 1999.

The Stanford Encyclopedia of Philosophy Online http://www.plato.stanford.edu/contents.html
Victor Grassian Moral Reasoning: Ethical Theory and some Contemporary Moral Problems. New York: Prentice Hall, 1992.
Robert Lane Lecture Notes: Philosophy of Law, University of West Georgia
http://www.westga.edu/~rlane/law/
The Internet Encyclopedia of Philosophy
http://www.iep.utm.edu/

2.7 Schedule of Topics

Week I: Introductory Discussion: What is philosophy? What is Ethics? What is Law? And what is the relationship between the three?

Discussion: The Baby Theresa Case.
In 1992, in Florida, Theresa Ann Campo Pearson was born with a condition called anencephaly (‘ an-’ in Greek means 'without,' '-cephaly’ means something to do with the head). Important parts of the brain were missing. However, parts of the brain responsible for breathing and heart rate were still working. Theresa's parents volunteered her organs for transplantation. The doctors agreed that this was a good idea. There were problems, however. Yet, when the case went to court, the judge rejected the reasoning of the parents, reasoning that Theresa’s brain was still alive.
We will discuss the merits of the judge’s decision, focusing on basic philosophical issues: what is a person? What is a human life? What is death? And how are these ideas related?

Week II: Reason and Argument: An Introduction
In order to argue well, we must cover some basic points in argumentation. We must be able to identify arguments; to identify premises and conclusions of arguments, and to evaluate their strengths and weaknesses. The concepts of validity, invalidity, soundness, and cogency will be covered. Finally, we will look at the Standard Form method of making arguments explicit.



Week III: Legal Dilemma: The United States vs. Holmes (1848)
Discussion: The Lifeboat Case: Were you the captain of a lifeboat, and you had to make some tough decisions as to who should live, what decisions would you make, and what explanation would you give to justify those decisions?

Week IV: Moral Relativism
The first task of the course will be to clarify what we mean by `morality,' the three main branches of ethical inquiry ( practical, normative, and meta-ethics) and what purpose its study serves. Secondly, we will discuss the view that ethics is merely subjective, or relative to a particular culture. Two distinct arguments have been offered as to why one should adopt this view, which is termed Moral Relativism; a). the view that a relativist view best serves tolerance, and b). the view that all cultures have, ultimately, different moral frameworks, implying that a universal morality does not exist. The nuts and bolts- the specific premises- of these arguments will be discussed. Of central concern is the possibility that certain practices simply cannot be tolerated.

Discussion: Is being a cultural relativist really justifiable on the grounds that it promotes tolerance?

Week V: Natural Law Theory
Here we consider the following questions: is whatever the law states necessarily lawful? Or can a law be essentially unjust? And how do we decide whether a law is just or not? That is, What is the moral standard that we should use to evaluate law? We will consider two philosophers who have dealt with these issues: St. Thomas Aquinas, and Lon L. Fuller.

Week VI: Socrates and Obedience to the Law
At the age of 70, the philosopher Socrates was sentenced to death for corrupting the youth, and for worshipping alien gods. His friend Crito tried to convince Socrates to escape and avoid execution. Socrates, considering this act to be an act of civil disobedience, believed that following the law, even if it lead to death, was preferable.
Socrates argued that, by violating the law, he would contribute to the destruction of Athens. He had benefited all his life from living under Athenian laws. The law, after all, made it possible for his parents to marry and therefore made possible his existence, and they were responsible for his good execution. Hence, Socrates believed, he owed Athens and its laws a debt of gratitude.
Is this a good argument?

Week VII: Utilitarianism: Bentham and Legal Reform

Here we will discuss the Utilitarian approach to ethics (The ‘principle of Utility’ is simply the doctrine that we should act so as to maximize happiness). This approach forces us to consider whether all `good' can be reduced to a single principle that should be maximized- in the case of the Utilitarians- to happiness. Is it really the case that happiness is all that matters? Further, is it simply the consequences of our actions that matter in our decision- making?

Discussion: Are you a Utilitarian? We will discuss the case of a doctor who has the opportunity to `harvest' the organs of someone- without explicit consent- for the benefit of others. Even if the doctor can `maximize happiness,' is it truly the morally best thing to do?


Week VIII: Kant
Are there absolute, universal moral rules and principles to ethics, and if so, what are they? Does the famous ‘Golden Rule,’ which appears in Christian, Jewish, Chinese and Buddhist thought, provide a complete ethical theory? We will consider the approach of Immanuel Kant (1724-1804), who considered human freedom, and its protection, as being fundamental to ethics.

Discussion: a). What do you think of the claim “let justice be done though the heavens fall”? (in less poetic language- “When justice and utility conflict, as they may, always choose justice over utility”). b). Consider the case of a captain in command of a lifeboat, who is forced to abandon some in order to ensure the survival of others. Firstly, what possible decisions may he make? Secondly, what (moral) reasons would he offer to explain why he made his decision? Of central importance here is the issue of individual rights, and the duties that the captain must (assumedly) fulfill.

Week IX: The Death Penalty
Here we will consider the arguments both for and against the death penalty.
For:
1). The following arguments have been offered in favor of the death penalty.
a). The death penalty prevents future murders.
b). In a fair society, if you kill someone, society should kill you.
Against:
1). The Death Penalty is not a deterrent (Murder is either not premeditated, or is committed by people who think they are too clever to be caught)
2). It is not fairly applied
3). Capital punishment is irreversible
4). Capital punishment is unjustified retribution
5). Capital punishment is widely viewed as inhumane and anachronistic
6). Capital punishment is brutal, and brutalizes a community
We will also consider the legal reformer and philosopher Cesare Beccaria (1738-1794).

Week X: Hobbes & The Social Contract

Here we consider the ‘Social Contract’ theory of ethics- that is, the view that ethics is to be understood as a social contract between rational agents. Other moral theories, as we have seen, attempt to ground a framework in morality in some absolute moral principle or value. Social Contract theory, by contrast, defines morality in terms of an agreement reached between rational individuals. Here we assess this notion of morality, in particular its description of morality as a mutually beneficial behavioral strategy.

Week XI: Euthanasia
Here we grapple with one of the most difficult, and relevant, moral issues, that of euthanasia. In particular, we will focus on voluntary active euthanasia (VAE), better known as doctor- assisted suicide. Those who oppose VAE typically argue that 1). VAE is contrary to the professional principles of medical practice, and 2). That allowing VAE will lead to grave social consequences. Those in favor of VAE frequently argue that it is not human life that is intrinsically valuable per se, but the quality of that life. Hence, for the terminally ill in great pain, they should have the freedom (if and only if they so choose) and the choice, to end their lives.


Week XII: The Death Penalty
There are two schools of thought on this question. Firstly, there are those who take the death penalty as the only fitting punishment for murder or treason, on the grounds that the ‘punishment must fit the crime.’ Ernest van den Haag, for one, adds that execution acts as a deterrent; Kant held that executing murderers actually pays the criminal the respect befitting a rational agent. On the other hand, it has been argued that capital punishment is unfair, inhumane and grotesque. The two sides of the debate will be addressed.

Discussion: Should Japan retain the death penalty?


Week XIII: Review
Week XIV: Examination

2.8 How are Philosophy Essays Graded?
● Have you shown that you understand the problem?
●Do you understand the essay question?
●Have you answered the essay question?
●Have you shown that you have thought about the problems
by yourself?
●Have you expressed your reasoning clearly, and in a structured, orderly way? (We will go over structuring an essay before the first essay is due).
●Have you removed all text that does not directly discuss the argument?
Showing that you understand the material is more important than showing that you have done lots of reading.
Avoid:
● Mere expression of opinion
● Dogmatism
● Excessive quotation that does not show that you really understand the ideas. (This is not to say that quoting is incorrect- but you should only quote when it is inappropriate to use your own words).
Opinion is nothing. Argumentation is everything.