Sacramento City College

Philosophy 368

Law, Justice & Punishment

Fall 2007 Tu Th 10:30-11:50 am
Course Transferable to UC/CSU

Dr. Robert T. Carroll

Readings in the Philosophy of Law, 4th ed., John Arthur & William H. Shaw (Prentice Hall, 1993); [ISBN 0131931512]. Recommended, but not required, is the Student Success Guide (SSG) by Robert T. Carroll. Part II of the SSG, Writing Skills, is especially recommended, since you will be doing quite a bit of writing for this class. Although there is no prerequisite, be advised that you should be eligible for English 1A and able to write at the college level to succeed in this class. Texts are available in the College Store and one copy of each will be on reserve in the College Library. The Arthur & Shaw text is also available on-line from (make sure you get the 4th edition)

Course Description & Outline: (note: all page numbers refer to the Arthur & Shaw text, 4th ed.)

I.               Law in Action

The Practice of Law

      M Freedman: Lawyer’s Ethics in an Adversary System

The Rule of Law

2. Lon Fuller: “Eight Ways to Fail to Make Law”
3. H. L. A. Hart: Grudge Informers and the Rule of Law and Lon Fuller: "The Problem of the Grudge Informer"

The Moral Force of Law

4. Plato – Crito

Legal Reasoning

5. S. Levinson: On Interpretation: The Adultery Clause of  the Ten Commandments
6. E. H. Levi "A Case Study of Interpretation: The Mann Act"
7. Cases of Interpretation – The Mann Act (97-103); Riggs v. Palmer

8. C. G.Post "Stare Decisis: the Use of Precedent"

Homework: unit I

All assignments are from Arthur and Shaw, Readings in the Philosophy of Law, 4th edition

Part 1. Law in Action

  1. Freedman: p. 9, no. 2.
  2. Fuller: p. 32, no. 1.
  3. Hart: p. 33, no. 3
  4. Fuller: p. 38, no. 4.
  5. Plato: p. 50, no. 4

Part 2. Legal Reasoning

  1. Levinson: p. 67, no. 3
  2. Levi: p. 73, no. 2
  3. Cases of interpretation: a) p. 76, no 2; b) p. 77, no. 2; c) p. 79, no. 4 d) p. 90. no. 1.
  4. Post: p. 102, no. 1

Law in Action: Key Concepts

adversary system
analogical reasoning
common law (case law)
dignity of the individual
distinguishing vs. following precedent
ex post facto legislation
fidelity to law
independent judiciary
interpreting statutes
lawyer’s trilemma
legal positivism (H.L.A. Hart)
legislative intent
natural law
right to counsel
social contract
stare decisis (precedent)

Law in Action: Themes

Relation of law to morality: moral rules vs. legal rules; is there a moral obligation to obey the law; how do and how should laws reflect a society’s moral values

Making, interpreting, and applying law: how is and how should the law be made, interpreted, and applied; procedural vs. distributive justice

II. Philosophical Issues in Criminal Law

          Punishment in theory and practice

1. Who should be punished?
2. R. Brandt "The Utilitarian Theory of Criminal Punishment"
H. Morris: “Persons and Punishment”
Capital Punishment: Gregg v. Georgia
5. Cruel & Unusual Punishment. case:
Rummel v. Estelle

Problems of Criminal Liability

6. The Battered Woman’s Defense: State v. Leidholm
7.  R. J. Gerber "Is the Insanity Test Insane?"

Rights of Defendants

8. K. Kipnis: "Criminal Justice and the Negotiated Plea"

9. Wilkey & Sachs: A Debate on the Exclusionary Rule

 Homework Unit II

 Part 1. Punishment in theory and practice 

  1. Provetie the dog: p. 246, no. 6
  2. Brandt: p. 252, no. 2
  3. Morris: p. 258, no. 1
  4. capital punishment: p. 330, no. 1
  5. Rummel: p. 338, no.1

Part 2. Criminal liability 

  1. State v. Leidholm: p. 367, no. 3
  2. Gerber: p. 383, no. 4

Part 3. Rights of Defendants 

  1. Kipnis: p. 276, no. 1
  2. Exclusionary rule: p. 302, no. 2

Philosophical Issues in Criminal Law: Key Concepts

battered woman's defense
battered woman's syndrome
capital punishment
cruel and unusual punishment
eighth amendment
exclusionary rule
fourth amendment
good faith exception to the exclusionary rule
insanity defense
irresistible impulse rule
justifying reasons vs. excusing reasons
mens rea
M'Naughten rule
plea bargain
retributive theory of punishment
right to be punished
three-strikes laws
utilitarian theory of punishment

Philosophical Issues in Criminal Law: Themes

Punishment and Justice: theories of punishment; responsibility and fairness.

III. Philosophical Issues in Constitutional Law

The Problem of Interpretation of the Constitution

1. Federalist Papers (524-530)
2. W. H. Rehnquist: "The Notion of a Living Constitution (540-545)
3. R. Dworkin: "Constitutional Cases" (546-554)

Freedom of Religion, Free Speech, and Privacy

4. Right to privacy: Griswold v. Connecticut (585-588)
5. John Locke, “Letter Concerning Toleration” (565-569)
6. School Prayer. Case: Engel v. Vitale (569-572)
7. Secular Humanism and Religious Establishment. Case: Smith v. Board of Education of Mobile (576-579)
8. J. S. Mill: “On Liberty of Thought” (608-612)
9. Free Speech: a. Texas flag burning; b. Nazi marches c. Paris Adult Theatre & American Bookseller's (619-623)
10. Michael M. v. Sonoma County (646-648)
11. Harris v. Forklift Systems (648-650)
12. Gender discrimination. Cases: Michael M. v. Sonoma County (646-648)
13. Equality versus speech: creating a “hostile environment.” Case: Harris v. Forklift Systems (648-650)

Homework Unit III

Part 1. Problems interpreting the Constitution

1. Federalist Papers: p. 530, Q. 3.
2. Rehnquist: p. 545, Qs. 1 and 2.
3. R. Dworkin: p. 535 Q. 2

Part 2. Freedom of religion, freedom of speech, and privacy

4. Griswold v. Connecticut, p. 589, Q. 2.
5. Locke: p. 569 Q. 2.
6. School prayer: p. 572 Q 1 and Q 2.
7. Secular humanism: Smith v. Board of Education of Mobile, p. 579, Q. 3.
8. Mill: p. 612, Q. 2.
9. free speech cases: p. 615 Q4; p. 618 Q 5; p. 621 Q. 1; and p. 623 Q 4.
10. case: Michael M. v. Sonoma County, p. 648. Q 1.
11. case: Harris v. Forklift Systems, p. 650, Q 3.
12. Gender discrimination. Cases: Michael M. v. Sonoma County p. 648. Q 1
13. Equality versus speech: creating a “hostile environment.” Case: Harris v. Forklift Systems p. 650, Q 3.

Philosophical Issues in Constitutional Law: Key Concepts

clear and present danger test
Dworkin's concepts of "political skepticism," "judicial deference," and concept vs. conception
equal protection clause of the 14th Amendment
Establishment Clause of the First Amendment
Free Exercise clause of the First Amendment
"fighting words" (Chaplinksy and Nazi march)
harm principle of J.S. Mill
judicial activism
judicial restraint
judicial review

living Constitution

obscenity test as set down in Miller v. California
prior restraints & the 1st Amendment
right to privacy
tyranny of the majority

Philosophical Issues in Constitutional Law: Themes

Problems with interpreting and applying the Constitution; judicial review, democracy, and protecting constitutional rights

Exams & Grading Policy:

There will be three exams of equal worth; an exam on each of the three areas described in the course outline. Each exam will consist of two parts of equal value: one part will test your knowledge and understanding of concepts of basic theories; the other will test your ability to relate issues and think critically about them. The former will involve giving short answers to questions such as the following: What is stare decisis? What is legal realism? Describe the basic features of the utilitarian and retributive theories of punishment? The latter will involve writing a topical essay on one of the themes for each unit.

Each exam will be given a letter grade of A= Excellent; B = Good; C= Satisfactory; D= Unsatisfactory. Make up exams will be given only for good reasons such as illness or deaths in the family. The following do not constitute good reasons for missing an exam: I haven't had time to study; I'm not prepared; I've scheduled this vacation months ago; my car was broken into last night.

The third exam will be given during the final exam period, Tuesday, December 18, 10:15 AM-12:15 PM.

In addition to the exams, written assignments on the readings will be given. The written assignments will be worth 25% of your grade. The other 75% will be based on your exam grades.

Attendance and the quality of your participation in class discussions will also be considered and will be used to determine borderline grades.

Attendance Policy:

Attendance at all classes in expected. You may be absent twice the number of weekly scheduled classes without being dropped from the course. If you miss more than this number of classes, you may be dropped from the course. Attendance does not mean presence. Attendance means you have read the assignment and are prepared to think critically about the reading in an atmosphere of non-intimidation and genuine search for understanding.

Classroom Discussion

Complex philosophical and social issues are best approached by groups of people thinking critically about them. This requires discussion and debate in an open atmosphere.

A note for those who register late or drop a class: you are obligated to notify the Registrar of your adding or dropping a class. There are deadlines for adding or dropping. If you do not formally add by the deadline you will not be allowed to enroll in the class. If you do not  drop by the deadline, you may receive an 'F' for the class. The instructor's signature is not needed to drop any class, but is required to add any class that filled during registration.

Internet sites of interest:

Texts online


Supreme Court

Crime Statistics

General Law, Liberty or Justice sites

Rule of Law

Geneva Conventions



Eyewitness Testimony & DNA

Insanity Defense

Capital Punishment

Philosophy Links

Other sites of interest


last updated 11/26/07