PHILOSOPHY SUMMER SCHOOL IN CHINA

2008 SESSION:  PHILOSOPHY OF LAW

SHANXI UNIVERSITY, TAIYUAN

7-25 July 2008

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Professor Zenon Bankowski (University of Edinburgh):

       LAW LOVE AND LEGALITY

Dr. Kimberley Brownlee (University of Manchester):

       PUNISHMENT

Professor Peter Cane FBA FASSA (Australian National University):

      RESPONSIBILITY IN LAW AND MORALITY

Professor Timothy O'Hagan (University of East Anglia), Director:

      JOHN RAWLS: THE LAW OF PEOPLES

cOURSE dESCRIPTIONS

Law Love and Legality

Zenon Bankowski, University of Edinburgh

In the opposition between law and love, there has been for too long concentration on the thanatos of law; of law as the restraining, civilising force that is necessary to hold in check the eros of love, the love central to our contingent, passionate natures. This course aims to redress the balance - but in so doing it will not cast law aside.  For we must not forget that love is dangerous and we can only approach it with caution – embracing it wholeheartedly can kill us.  So though ‘law’ and ‘love’ feature centrally in the course, they will not be seen as opposed.  In going beyond this opposition, I want to see how an ethical life and a society under law might be related.  I do this by showing how the moral autonomy that anarchism values so highly can be found not in the rejection of law but rather through the understanding of law, of what legality must really mean.

Legality will here be distinguished from legalism, which is what Judith Shklar (in Legalism: Law, Morals and Political Trials, Harvard University Press, 1986) called the nomian attitude an attitude and ideology of rigid rule-following.  It is important to note that the nomian attitude can apply to both law and morality - one cannot just think of law as nomian and rule-bound, and oppose it with an anti-nomian ethical attitude or with morality.  Both law and morality can be rigid and rule-bound, constricting the autonomous spirit.  So the relationship of law to morality is not to be constructed in an oppositional way thus re-conceptualising the anarchist question into when it would be morally right to break the law. Rather what I am concerned with is the very idea of ‘living lawfully’ and what that might mean.  This does not have the rather positivistic connotations of merely following the actual law but has an ethical register, the idea of living in a morally correct way.  But that is not meant to mean something moral as opposed to the law - it is about morality but it is also about the law.  The lawful person can both keep the law and break it, but always within the context of the law.  In English the rather old fashioned, ‘righteous’ captures this - thus the righteous person. We can have the same idea at different ontological levels and we can, for example, apply this way of looking at it to the state as a whole. The Rechtsstaat then, is the state living lawfully; the lawful state with the same connotations that we noticed at the individual level in our ‘righteous person’.  It is not the positivistic sense that the Rule of Law can have, that the state is bound by the laws of the land.

The aim of the course is to explore what it means to live a life under the law.  What does it mean to say that a society should be governed by rules?  What sort of ethical life does that entail?  Does a life of law preclude love and does a life of love preclude law? The way we answer that question is to go into questions of what it means for us to use rules as reasons for actions. This will involve looking at questions of the rule of law, constitutionalism and democracy and legal reasoning. 

COURSE TEXT: Roger Cotterrell: The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Oxford University Press, 2003).

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Punishment

Kimberley Brownlee, University of Manchester

‘Punishment’ can be defined as the deliberate imposition of a burden or deprivation by an appropriate authority upon an (alleged) offender for an (alleged) offence. In punishing persons under its jurisdiction, a state exercises its coercive power to enforce its norms. Punishment is recognised as being morally problematic for various reasons. First, it almost always causes pain and suffering both to the offender and to persons connected with the offender. Second, irrespective of its pain-infliction, punishment involves treatment that otherwise would constitute a violation of an individual’s rights, first, not to be subjected to hard treatment and censure by either the state or other individuals, and second, not to be impeded in making (bad) choices as an autonomous agent.

The key question to be addressed in this course is whether, and if so, on what grounds, lawful punishment is morally justifiable.

Some contemporary debates in the philosophy of punishment concern, amongst other things, the concept of crime, the merits of different accounts of punishment, the conditions for mercy by the state, the demands of equity versus those of equality, and the force of retributive justice relative to restorative justice. These debates will be examined in relation to the dominant theories of punishment, which include deterrence theory, desert theory, communicative theory, and abolitionism.

General Issues

1. Key Concepts: State, Crime, Punishment
2. Wrongdoing, Responsibility, and Luck

Theories of Punishment

3. Deterrence and Rehabilitation
4. Desert and Retribution
5. Communication and Education
6. Constructivism
7. Abolitionism and Restorative Justice

Particular Issues

8. Repentance and Mercy
9. Capital Punishment 
10. Equity and Equality 

COURSE TEXT: Antony Duff and David Garland (eds), A Reader on Punishment (Oxford: Oxford University Press, 1994).

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Responsibility in Law and Morality

Peter Cane, Australian National University

Concepts of responsibility and liability are basic to our understanding of law - whether civil, criminal or public. Responsibility is also a topic of central concern in ethics and moral philosophy. Philosophical investigations of 'moral' responsibility tend to focus on concepts of agency and will, i.e. on agent-relative conditions of the ascription of responsibility for conduct. The law, by contrast, is as concerned with the consequences of conduct as it is with the status and capacities of the agent. This difference of perspective is one reason why law and morality may sometimes seem to be in conflict on matters of responsibility. A common approach to such conflict is to treat morality as providing a critical standard against which 'conventional' legal practices are to be judged.

The main aim of this course will be to explore the relationship between legal and moral responsibility, and between legal and moral reasoning about responsibility and liability. In contrast to the standard philosophical approach, the analysis will take law as its starting point. The underlying argument will be that law and morality are in a symbiotic relationship, and that it is only by 'taking law seriously' that we can properly understand a society's responsibility practices.

Topics covered will include the institutions of law and morality, the nature of legal and moral reasoning, the nature and functions of responsibility, responsibility and culpability, determinism and moral luck, responsibility and personality, grounds and bounds of responsibility, the practical implementation of responsibility principles, and responsibility in public law. Central to the analysis will be three 'paradigms of legal responsibility: a civil law paradigm, a criminal law paradigm and a public law paradigm.

The course will raise and discuss fundamental questions about the nature of law and of morality, about the relevance of outcomes to responsibility, and about the 'legal enforcement of morality'.

COURSE TEXT: Peter Cane: Responsibility in Law and Morality (Oxford, Hart Publishing, 2002).

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John Rawls: The Law of Peoples

Timothy O’Hagan, University of East Anglia

In his last major work, John Rawls explored the application of liberalism to relations among citizens in a pluralistic society and to relations among societies. In the first part ‘The Idea of Public Reason Revisited’, he examined the constraints placed by public reason upon the constitution of a society that can be reasonably endorsed by free and equal citizens who hold differing moral, philosophical and religious comprehensive views of life and reality. In the second part ‘The Law of Peoples’ he examined the principles that can be accepted by all decent societies, both liberal and non-liberal, to govern their mutual relations. There are important continuities between the two parts because the freedom, equality, mutual respect and tolerance that Rawls sought among individuals in a pluralistic society are mirrored by his pursuit of these goals in the relations among societies.

Although we shall view the book as a whole, this course will mainly focus on issues arising from Rawls’ treatment of international relations.  We shall discuss Rawls’ motivation for The Law of Peoples in his claim that the great evils in human history, including ‘unjust war, oppression, religious persecution, slavery’ have their origins in political injustice and that articulating the possibility of a Kantian world order of just and peaceful relations among liberal and democratic societies, even if currently utopian, can offer hope and guidance in our imperfect world and can be crucial to the eventual achievement of a reasonably just and durable order.

We shall examine Rawls account of the relations of tolerance and mutual respect between basically liberal democratic societies, which recognise a wide range of rights for their citizens as well as basic human rights, and ‘decent hierarchical peoples’, which only provide the minimum of traditional liberties. In particular, we shall examine the basis for liberal societies to assist non-liberal societies without forcibly imposing liberal democracy upon them. We shall also discuss Rawls’ controversial grounds for refusing the application of his famous Difference Principle to questions of global economic justice. 

We shall consider Rawls’ endorsement of standard provisions of international law, including the recognition of the sovereignty of states and the laws of war, but also examine his arguments for allowing liberal and non-liberal societies to wage war against societies that violate the fundamental human rights of their subjects or engage in aggression against other societies.

We shall conclude by assessing the degree to which Rawls succeeded in providing a moral compass for international relations and international law in our present global circumstances and guidance for achieving a better and more durable order in the future. 

COURSE TEXT: John Rawls: The Law of Peoples (Cambridge, MA, Harvard University Press, 1999).

 Application Form

Each member will receive the course texts for the lecture courses. In addition to the courses, there will be smaller Reading Groups and an informal Common Room. Members must attend all required instruction and submit an examination essay at the end of the session.

The fee for members from outside Mainland China is US $ 150.00 or RMB Y1200.00. Members must arrange their own transport to Beijing and pay for accommodation and meals at Shanxi University, Taiyuan.

Please send your completed application form to arrive by post or email to

Professor Hu Ruina

School of Philosophy and Sociology

Shanxi University

Taiyuan, 030006

Shanxi Province

CHINA

e-mail: huruina@sxu.edu.cn

The deadline for application is 20 May 2008.

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Application Form

Philosophy Summer School in China

2008 SESSION: PHILOSOPHY OF LAW

SHANXI UNIVERSITY, TAIYUAN

7 -- 25 July 2008

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