FACULTY OF LAW

UNIVERSITY OF BRITISH COLUMBIA

LAW 300

JURISPRUDENCE AND CRITICAL PERSPECTIVES

Fall 2015

Professor Benjamin J Goold

Office: Allard Hall, Room 455
Phone: (604) 822-9255
E-mail: goold@allard.ubc.ca

(1) Course Description

This course provides an introduction to jurisprudence, legal and political theory, key
principles of the common law, and critical approaches to the law. It is designed to give upper
year students an overview of the structure of law, and a critical insight into the various ways
in which law and its role in society can be understood. The course also aims to encourage
students to see the relationships between different branches of law and legal doctrine, and to
examine the role of ideology in the creation and enforcement of law.

(2) Class Times

Mondays and Wednesdays 9:00 – 10:30 (Room 105). In the event that a class is cancelled,
where possible a make-up class will be scheduled and students will be notified of the new
time and venue by email.

(3) Required and Supplementary Reading

The main text for this course is M.D.A. Freeman (2014) Lloyd’s Introduction to Jurisprudence (9th
Edition), and most of the required reading for the term is taken from this text. Students
should assume that all material contained in the required reading and related discussion in
lectures is examinable, and as such students are strongly encouraged to attend all classes and
take detailed notes. In addition to the required reading for each class, supplementary reading
is also listed. Although this material is not examinable, it is provided in case: (1) you feel you
need to read further on a subject in order to understand it; or (2) you have developed a
particular interest in a subject and want to learn more. The main supplemental text for this
course is Margaret Davies (2008) Asking the Law Question (3rd Edition). In addition, various
articles are also listed as supplementary reading, and are available online or through the UBC
Law Library website.

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(4) Assessment and Examination

Students will be given the option of choosing either: (1) a 3-hour 100% closed book
examination; or (2) a 2-hour 70% closed book examination plus a 30% take-home
assignment (of no more than 1500 words). Assignment topics will be made available in class
on 19 October 2015, and students wishing to submit an assignment must inform the
instructor of their decision by email no later than 4pm on 19 November 2015. Students who
do not inform the instructor of their choice by the 19 November deadline will be assumed to
be sitting the 3-hour closed book examination. All assignments must be submitted by 4pm
on 22 December 2015.

(5) Attendance and Recording of Lectures

Although attendance lists will not be taken, students are expected to attend all lectures in this
course. Students should arrive on time for the scheduled lecture, and try to avoid disrupting
the class by leaving early. Lectures should not be recorded without prior permission. If you
do wish to record a particular lecture, please email your request to me at least 24 hours
before the scheduled lecture.

(6) Academic Integrity and Plagiarism

All UBC law students are subject to the University's rules on Academic Misconduct
(http://vpacademic.ubc.ca/integrity/ubc-regulation-on-plagiarism/), and are expected to act
with academic integrity at all times. Students should be especially aware of the University's
rules in relation to plagiarism. If you plagiarize, you may be subject to penalties set out in the
UBC calendar: (http://www.calendar.ubc.ca/vancouver/index.cfm?tree=3,54,111,959)  
 
If you would like to learn more about academic misconduct, visit the UBC Library's website
on academic integrity (http://learningcommons.ubc.ca/guide-to-academic-integrity/).
Examples of academic misconduct can also be found in the UBC Annual Report on Student
Discipline (http://universitycounsel.ubc.ca/discipline/).

(7) Office Hours

Office hours will be held from 11:00am – 12:30pm on Mondays in Room 455. If you have a
question about a specific reading or section of the course, please email it to me 48 hours
beforehand if possible, as this will give me more time to prepare a detailed response (and
locate additional materials that may be helpful).

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(8) Schedule of Classes

Week Topic Required Reading

(1)
Sept. 9 Introduction Lloyd: 1-5

(2)
Sept. 14, 16 Jurisprudence and the Nature of Law Lloyd: 6-25, 26-44, 46-
48, 60-74

(3)
Sept. 21, 23 Natural Law Lloyd: 75-124, 142-164

(4)
Sept. 28, 30 Legal Positivism Lloyd: 195-217, 249-
269, 311-334

(5)
Oct. 5, 7 Legal Reasoning and Theories of Adjudication Lloyd: 1549-1594

(6)
Oct. 14 Mid-Term Review None

(7)
Oct. 19, 21 Legal Realism Lloyd: 823-867

(8)
Oct. 26, 28 Critical Legal Studies Lloyd: 1017-1066

(9)
Nov. 2, 4 Feminist Jurisprudence Lloyd: 1079-1179

(10)
Nov. 9, 16 Critical Race Theory Lloyd: 1257-1286
Burrows (syllabus)

(11)
Nov. 18 Ronald Dworkin and Interpretivism Lloyd: 593-648

(12)
Nov. 23, 25 The Philosophy of Human Rights Lloyd: 1287-1375

(13)
Nov. 30, Key Issues and Course Summary None
Dec. 2

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 Introduction

Week 1 – September 9

(1) Required Reading

Lloyd: 1-5

(2) Supplementary Reading

None

(3) Key Ideas

•   The meaning of jurisprudence and the role of legal theory

•   The limits of law

•   The relationship between legal theory and legal practice

(4) Questions for Class Discussion

Why do we study legal theory?

What is the relationship between legal theory and legal practice?

Is a general theory of law possible?

What does it mean to say that law is ‘normative’?

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 Jurisprudence and the Nature of Law

Week 2 – September 14, 16

(1) Required Reading

Lloyd: 6-25, 26-44, 46-48, 60-74

(2) Supplementary Reading

Davies, Ch. 1

Marmor, A. “The Nature of Law”, The Stanford Encyclopedia of Philosophy

http://plato.stanford.edu/entries/lawphil-nature/

Himma, K. “Philosophy of Law”, Internet Encyclopedia of Philosophy

http://www.iep.utm.edu/law-phil/

(3) Key Ideas

•   Defining law

•   The conditions of legal validity

•   The relationship between law and morality

•   The distinction between natural law and legal positivism

(4) Questions for Class Discussion

What makes a law valid? Where does legal legitimacy come from?

What is the “naturalistic fallacy”? Why is it interesting to jurisprudence scholars?

Does the authority of law derive from the threat of coercion, or does it have some
other source?

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 Natural Law

Week 3 – September 21, 23

(1) Required Reading

Lloyd: 75-124, 142-164

(2) Supplementary Reading

Davies, Ch. 3

John Finnis, “Natural Law Theories”, The Stanford Encyclopedia of Philosophy

http://plato.stanford.edu/archives/fall2011/entries/natural-law-theories/

Greenawalt, K. (2000) “How Persuasive Is Natural Law Theory”, 75 Notre Dame Law
Review 1647-1680
http://scholarship.law.nd.edu/ndlr/vol75/iss5/4

(3) Key Ideas

•   The relationship between law and reason

•   Law as a discoverable fact

•   Natural law as higher law and the question of universality

•   The revival of natural law and the relationship to rights

(4) Questions for Class Discussion

Is it fair to say that modern natural law theory attempts to derive an ‘ought’ from an
‘is’?

Do you think that the ‘goods’ identified by John Finnis in his theory of natural law
are self-evident? Is his list exhaustive?

If an unjust law is not law, then what does this mean for our obligation to obey the
law? Are we obliged to follow an unjust law?

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 Legal Positivism

Week 4 – September 28, 30

(1) Required Reading

Lloyd: 195-217, 249-269, 311-334

(2) Supplementary Reading

Hart, H. L. A. (1958) "Positivism and the Separation of Law and Morals", Harvard
Law Review 71(4): 593–629
http://www.jstor.org/stable/1338225

Himma, K. “Legal Positivism”, Internet Encyclopedia of Philosophy

http://www.iep.utm.edu/legalpos/

Fuller, Lon L. (1958) "Positivism and Fidelity to Law - A Reply to Professor Hart",
Harvard Law Review 71(4): 630–672
http://www.jstor.org/stable/1338226

Green, L. “Legal Positivism”, The Stanford Encyclopedia of Philosophy

http://plato.stanford.edu/archives/fall2009/entries/legal-positivism/

(3) Key Ideas

•   The social foundation of law and the separation thesis

•   Austin’s command theory of law

•   Kelsen’s ‘pure theory of law’

•   Hart’s distinction between primary and secondary rules

(4) Questions for Class Discussion

What is the ‘rule of recognition’? Why is it so central to Hart’s theory of law?

What does Hart mean when he refers to a ‘minimum content of natural law’?

Is legal positivism completely incompatible with natural law?

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 Legal Reasoning and Theories of Adjudication

Week 5 – October 5, 7

(1) Required Reading

Lloyd: 1549-1594

(2) Supplementary Reading

Julie Dickson, “Interpretation and Coherence in Legal Reasoning”, The Stanford

Encyclopedia of Philosophy
(http://plato.stanford.edu/archives/spr2010/entries/legal-reas-interpret/)

Grant Lamond, “Precedent and Analogy in Legal Reasoning”, The Stanford

Encyclopedia of Philosophy
(http://plato.stanford.edu/archives/fall2008/entries/legal-reas-prec/)

(3) Key Ideas

•   The distinctive character of legal reasoning

•   The importance of coherence and consistency in law

•   The role of interpretation in legal reasoning

(4) Questions for Class Discussion

What do we mean by “legal reasoning”?

Is legal reasoning inescapably interpretive?

How do we justify the role of precedent in the common law?

What is the role of discretion in legal reasoning? Is it necessary?

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 Mid-Term Review

Week 6 – October 14

The first of these classes will be divided into two parts. The first 60 minutes will consist of a
brief lecture summarising the work covered to date, with a particular emphasis on the
various policy issues raised throughout the year. During the last 15 minutes, we will go over
any questions from the class. The second class will be entirely devoted to student questions
and answering practice exam questions. There is no required reading for either of these
classes.

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 Legal Realism

Week 7 – October 19, 21

(1) Required Reading

Lloyd: 823-867

(2) Supplementary Reading

Davies, Ch. 4

Duxbury, N. (1991) “Jerome Frank and the Legacy of Legal Realism”, Journal of Law
and Society 18(2): 175-205.
http://www.jstor.org/stable/1410136

Green, M.S. (2005) “Legal Realism as Theory of Law”, 46 William. & Mary Law
Review 1915-2000
http://scholarship.law.wm.edu/wmlr/vol46/iss6/2

Leiter, B. (2002) “American Legal Realism”, University of Texas Law Public Law Research
Paper No. 42
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=339562

(3) Key Ideas

•   Legal formalism and the idea of as a ‘closed system’

•   Legal realism and the critique of positivism

•   The “revolt against formalism” and the argument against legal rules

(4) Questions for Class Discussion

What do we mean by “legal formalism”?

Does it make sense to speak of law as a science?

What do we mean when we refer to the ‘empirical approach to law’? Is it a coherent

view of the law?

Do you agree with Holmes that law is simply “what the law will do in fact’?

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 Critical Legal Studies

Week 8 – October 26, 28

(1) Required Reading

Lloyd: 1017-1066

(2) Supplementary Reading

Davies, Ch. 5

Hunt, A. (1986) “The Theory of Critical Legal Studies” Oxford Journal of Legal Studies
6(1): 1-45
http://www.jstor.org/stable/764467

Sypnowich,C. ‘Law and Ideology’, The Stanford Encyclopedia of Philosophy

http://plato.stanford.edu/archives/fall2010/entries/law-ideology/

(3) Key Ideas

•   Law as ideology

•   The inseparability of law and politics

•   Law as a form of rationalisation

(4) Questions for Class Discussion

Why have critical legal scholars been so interested in judicial decision making?

Do you agree that law is inseparable from politics? If so, what does this mean for the
possibility of law reform?

According to critical legal scholars, how is liberalism “contradictory”?

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 Legal Theory, Feminism, and Gender

Week 9 – November 2, 4

(1) Required Reading

Lloyd: 1079-1179

(2) Supplementary Reading

Davies, Ch. 6

Fineman, M.A. (2005), "Feminist Legal Theory", Journal of Gender, Social Policy and the
Law, 13(1): 13-23
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1282&context
=jgspl

Francis, L. and Smith, P. ‘Feminist Philosophy of Law’, The Stanford Encyclopedia of

Philosophy
(http://plato.stanford.edu/archives/spr2013/entries/feminism-law/)

(3) Key Ideas

•   Law as a male-dominated institution and the influence of legal patriarchy

•   The relationship between legal values and the exercise of legal power

•   The contrast between liberal and radical feminism

(4) Questions for Class Discussion

What is meant by the term ‘legal patriarchy’?

Do you agree with Davies that feminist theory and practice cannot be usefully
separated?

Why is the distinction between sex and gender a key question for feminist legal
scholars? Do you think the law should divide people according to sex?

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 Critical Race Theory

Week 10 – November 4, 6

(1) Required Reading

Lloyd: 1257-1286

John Borrows, (2010), Canada’s Indigenous Constitution (Toronto: University of

Toronto Press) - Chapter 1: Living Legal Traditions (pp. 6-22); and Chapter 2:
Sources and Scope of Indigenous Legal Traditions (pp. 23-58)
http://site.ebrary.com/lib/ubc/docDetail.action?docID=10442523

(2) Supplementary Reading

Davies, Ch. 7

Delgado, R. (1993) “Critical Race Theory: An Annotated Bibliography”, Virginia Law

Review Vol. 79 / Seattle University School of Law Research Paper
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2097984

(3) Key Ideas

•   Legal theory as ‘white mythology’

•   Race as a legal construct

•   The relationship between law and colonialism

(4) Questions for Class Discussion

What does it mean to say that a ‘Eurocentric’ model of the person underpins the
law? To what extent is this reinforced by a positivist commitment to the separation
of law and morality?

What was the significance of the doctrine of terra nullius to the propagation of British
law?

In what sense is postcolonial thought non-oppositional? Do you agree that it offers

an ‘important subversion of Western philosophy and ideology and in particular of
the liberal emphasis on the autonomous and un-situated subject’? (Davies: 310)

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 Ronald Dworkin and Interpretivism

Week 11 – November 16, 18

(1) Required Reading

Lloyd: 593-648

(2) Supplementary Reading

Lloyd: 648-700

(3) Key Ideas

•   The Hart-Dworkin debate

•   Dworkin’s “right answer” thesis

•   Rights as “trumps”

•   Law as integrity

•   The relationship between legal integrity and legitimacy

(4) Questions for Class Discussion

What are “hard cases” in Dworkin’s theory?

What does it mean to say that there is “one right answer” to a given legal problem?

What is the implication of “taking rights seriously” for law?

Is belief in a shared set of moral values essential to the legitimacy of law? Does law
need such a belief to have authority?

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 The Philosophy of Human Rights

Week 12 – November 23, 25

(1) Required Reading

Lloyd: 1287-1375

(2) Supplementary Reading

Campbell, K. “Legal Rights”, The Stanford Encyclopedia of Philosophy

http://plato.stanford.edu/archives/fall2013/entries/legal-rights/

Wenar, L. “Rights”, The Stanford Encyclopedia of Philosophy

http://plato.stanford.edu/archives/fall2011/entries/rights/

(3) Key Ideas

•   The meaning of human rights

•   The interest and will theories of human rights

•   The relationship between human rights and dignity

•   Human rights and the idea of universality

(4) Questions for Class Discussion

How are human rights different from other types of legal rights?

In what sense do human rights provide people with reasons for action?

Does it make sense to talk about balancing human rights? How is balancing in this
context different from ideas of proportional infringement?

What is the key difference between will and interest theories of rights? How does
each theory approach the question of who can be a rights-holder?

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 Key Issues and Course Summary

Week 13 – November 30, December 2

The first of these classes will be divided into two parts. The first 60 minutes will consist of a
brief lecture summarising the work covered to date, with a particular emphasis on the
various policy issues raised throughout the year. During the last 15 minutes, we will go over
any questions from the class. The second class will be entirely devoted to student questions
and answering practice exam questions. There is no required reading for either of these
classes.

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