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def- Smart people getting together to talk about what law is and how it is to be done.
What is law?
- it is what we do.
The law club.
Jurisprudence is a study about the right-minded conception of law. Universal law club
running the world justly as opposed to the wrong-headed notions of law floating around
for thousands of years.
Law is what we make.
What do we want to be? Just citizens running a just society.
Triad of ERAs Law and Justice Contents
1. Jurisprudence- Law/means of social organization
2. Law and Social Science- Society/things regulated
a. * Law regulates everything
3. Law and Humanities- Law, classics, and scripturesGoals of regulations and their
a. Why are we regulating?
Supreme Court Rule---5 to 4 Hobby lobby contraception.
- Big jurisprudential struggle in the world comes between one version of St. Thomass
vision of justice and another.

Where do we find law? Human nature. Outside declarations. In God.

What is the source of law? Supreme Court justices would say the will of the people.
We make the law, the law makes us.
Atkinson does not think that peoples will is absolute. The way the law works
July 2, 2014

2 aspectscontent of the rules.

Substantive aspect of rules.
Formal aspect of rules.
Law is in someway about rules.
Letter and spirit are included in rules and law.
What does law have to do with ethics or morality?
- They sometimes meet, but when they do it is a kind of accident.
1. Positivism
a. Reform jurisprudence/ legal realism
Schools of Jurisprudence
1. Classic: Plato, and Aristotle
Thesis: Natural law
i. Natural law
ii. Natural rights
Antithesis: Positivism
iii. Positivism
iv. Analystic Protion
Synthesis: no common term
v. Reform jurisprutmdent, loyal realism,
vi. legal process school.
Neo-classical : law of the republic.
Atkinson believes that Plato had it right from the beginning.
You can subdivide own rightings. Laws have a purpose. According to persons viewpoint,
different things are moral or right.
July 3
Natural law: law and morals are linked.
There is no true law that is immoral.
Law always aim at the moral good.
Positivismlaws and morals are not linked.
It is the antithesis.
Meta- Ethics= what good means; status of moral statements. Truth or what? It is
above and beyond. Removed.

Realism- realists say moral matters. It is like math. Weigh happiness

against sadness and there is the answer.
Substitute- Substitute moral systems (Egs). Does not want to offend either party.
July 8, 2014
For Aristotle, virtue is not so much about dos and don'ts---it is about the proper way to do
what you are supposed to do.
Law fits into human organization---it starts small and gets bigger and
Natural Law
From GodNo, just
From NatureHuman nature,
Individual and Social
Law and Ethics are closely linked basically as means and ends
But: Separation stems maybe
1) Possible
2) Desireable
Ethical Themes
I. Meta ethics- status of ethical statements
Realismtrue, real
SkepticismNihilism: nothing matters
What we believe in matters
II. Substancewhat is good
See pic on phone of the board

July 15, 2014

Plot Overview


The Chorus introduces the players. Antigone is the girl who will rise up alone and die young.
Haemon, Antigone's dashing fianc, chats with Ismene, her beautiful sister. Though one would have
expected Haemon to go for Ismene, he inexplicably proposed to Antigone on the night of a ball.
Creon is king of Thebes, bound to the duties of rule. Next to the sisters' sits the Nurse and Queen
Eurydice. Eurydice will knit until the time comes for her to go to her room and die. Finally three
Guards play cards, indifferent to the tragedy before them.
The Chorus recounts the events leading to Antigone's tragedy. Oedipus, Antigone and Ismene's
father, had two sons, Eteocles and Polynices. Upon Oedipus' death, it was agreed that each would
take the throne from one year to the next. After the first year, however, Eteocles, the elder, refused
to step down. Polynices and six foreign princes marched on Thebes. All were defeated. The brothers
killed each other in a duel, making Creon king. Creon ordered Eteocles buried in honor and left
Polynices to rot on the pain of death.
It is dawn, and the house is still asleep. Antigone sneaks in and the Nurse appears and asks where
she has been. Suddenly Ismene enters, also asking where Antigone has been. Antigone sends the
Nurse away for coffee. Ismene declares that they cannot bury Polynices and that she must
understand Creon's intentions. Antigone refuses and bids Ismene to go back to bed. Suddenly
Haemon enters and Antigone asks Haemon to hold her with all his strength. She tells him that she
will never be able to marry him. Stupefied, Haemon departs. Ismene returns, terrified that Antigone
will attempt to bury Polynices despite the daylight. Antigone reveals that she has already done so.
Later that day, the nervous First Guard enters and informs Creon that someone covered Polynices's
body with a little dirt last night. He orders the guards to uncover the body and keep the matter secret.
The Chorus appears and announces that the tragedy is on. Its spring is wound, and it will uncoil by
itself. Unlike melodrama, tragedy is clean, restful, and flawless. In tragedy, everything is inevitable,
hopeless, and known. All are bound to their parts.
The Guards enter with the struggling Antigone. The First proposes that they throw a party. Creon
appears, and the First explains that Antigone was found digging Polynices' grave by hand in broad
daylight. Creon sends the guards out. Once he is certain no one saw Antigone arrested, he orders
her to bed, telling her to say that she has been ill. Antigone replies that she will only go out again
tonight. Creon asks if she thinks her being Oedipus's daughter puts her above the law. Like Oedipus,
her death must seem the "natural climax" to her life. Creon, on the other hand, devotes himself only
to the order of the kingdom. Antigone's marriage is worth more to Thebes than her death.

Antigone insists that he cannot save her. Enraged, Creon seizes her arm and twists her to his side.
Antigone remarks that Creon is squeezing her arm too tightly, but his grasp no longer hurts. Creon
releases her. He knows his reign makes him loathsome but he has no choice. Antigone rejoins that
he should have said no; she can say no to anything she thinks vile. While ruined, she is a queen.
Because Creon said yes, he can only sentence her to death. Creon asks her to pity him then and
live. Antigone replies that she is not here to understand, only to say no and die.
Creon makes a final appeal, saying that Antigone needs to understand what goes on in the wings of
her drama. As a child, she must have known her brothers made her parents unhappy. Polynices was
a cruel, vicious voluptuary. Being too cowardly to imprison him, Oedipus let him join the Argive army.
As soon as Polynices reached Argos, the attempts on Oedipus' life began. But Eteocles, Thebes'
martyr, too plotted to overthrow his father. Both were gangsters. When Creon sent for their bodies,
they were found mashed together in a bloody pulp. He had the prettier one brought in.
Dazed, Antigone moves to go her room. Creon urges her to find Haemon and marry quickly. She
must not waste her life and its happiness. Antigone challenges his servile happiness. She is of the
tribe that asks questions and hates man's hope. A distraught Ismene rushes in, begging Antigone's
forgiveness and promising to help her. Antigone rejects her, but she does not deserve to die with
her. Ismene swears she will bury Polynices herself then. Antigone calls on Creon to have her
arrested, warning him that her disease is catching. Creon relents. The Chorus protests. Haemon
enters and begs his father to stop the guards. Creon replies that the mob already knows the truth,
and he can do nothing.
Antigone sits before the First Guard in her cell; his is the last face she will see. The Guard rambles
about his pay, rations, and professional quibbles. Antigone interrupts him, pointing out that she is
soon to die. She asks how she is to be executed. The Guard informs her that she is to be immured.
The Guard asks if he can do anything for her. She asks if he could give someone a letter, offering
him her ring. Reluctant to endanger his job, the Guard suggests that she dictate her letter and he
write it in his notebook in case they search his pockets. Antigone winces but accepts. She recites
her letter, "Forgive me, my darling. You would all have been so happy except for Antigone."
Suddenly a drum roll is heard, and the Guards lead Antigone out.
The Chorus enters, announcing that it is Creon's turn. The Messenger delivers the news: Antigone
had just been immured, when the crowd heard Haemon's moan from within. Creon howled for the
slaves to remove the stones. Antigone had hung herself. Haemon then stabbed himself and lay
beside Antigone in a pool of blood. Upon being told of Haemon's death, Eurydice finished her row of

knitting, climbed to her room, and cut her throat. Creon is alone. The Chorus notes that truly if it had
not been for Antigone, all would have been at peace. All who had to die have now died. Only the
Guards are left, and the tragedy does not matter to them.

Jurisprudence---- Science/Theory of Law

Schools: Classical
Greek and Roman classics
Abrahamist Scriptures
I. Natural Law Thesis: Law and Morality/Justicia are linked
Theistic- morality/justia grounded in God (st. Thomass view and John Finnis)
A. TheisticMorality/ Justice grounded in Nature
Neo-ClassicalEO. Wilsons Sociobiology
II. Positivisms Antithesis Law and Morality/Justicia not linked
III. Syntheses
According to Atkinsonat the end of the day we are all neo-classicists.

(see pic on phone)

Antigone shows the conflict between values. Atkinson thinks it shows a particular instance
where they do not work.
People who live this heroic way are tit for tat. Capital punishment will never disappear because
of this. People want revenge.

Crion becomes the king of the monarch. He makes a rule saying that no one can bury Polyneses
since he led rebellion and he was a traitor.
Antigone says I must bury my brother Polynisis body. Where does her must come from? Because
it would be immoral not toit comes from God and through families.
We are trying to analyze the relationship between the is and the ought. Now there is an element
of can as well. Isimine says that she respects laws of God, but she cannot obey them in the face
of laws made for the public good. (Maybe the risk of being persecuted is too much for her--another, is that there is no conflict here for her).

July 16, 2014

Natural Law (cont.)
Theistic: Will/Arbitraty

Education is an important makeup of the church system. Knowledge that has no point
whatsoever. It is purely Aristotle.

If Thomas is right, his points can be reconciled with Aristotle.
Michael Moore
Meta-ethical realist.
He thinks that the basic touchstone for Aristotleshe thinks there is some set of findable
norms that applies to human conduct. He is a realist.
He says you are a realist, or a skeptic or a moral conventionalist.
Good for Humanity:
o Metathics
Realists- Thomas Aq.

J. Finnish

M. Moore
o Skeptics- those who don't believe in other
FideistsAtkinson, Leff
o Interpretavists
o Systems

Aristotle does not say that both are right---he says that both are right, but we can
only know that both are right by assuming philosophy is correct and revising our
scriptures of
Apparently contracitory things can be reconciled.---this did not sell well in the
Christian/Muslim west
Afarowez would sometimes re-interpret Aristotle.

July 18, 2014

Jurisprudence: Science/theory of Law
Big Q: What is law [and why are you asking?]
The answer to it cannot be answered wholesale.
Sorting Q: Is law about justice/goodness?

Classics---Soc, Aristotle, Plato

ScripturesTorah, Bible, Quran
I. Thesis: Natural LawYes, Law is linked to justice/morality
Natural Law: proper
Thomas Aquinas, John Finnis
A- theistic
Lon Fuller
Natural Rights
II. AntithesisPositivism- Law is not (essentially) linked to justice/morality
III. Synthesis/Correctives?

Made of Org: Logical and Historian

Fuller wants to say those laws are just bad laws---they are hard to follow. In some ways they are
so flawed that they are hardly laws at all.
Fullers 8 routes of failure for any legal system
1. The lack of rules or law, which leads to ad hoc and inconsistent adjudication.
2. Failure to publicize or make known the rules of law.
3. Unclear or obscure legislation that is impossible to understand.
4. Retroactive legislation.
5. Contradictions in the law.
6. Demands that are beyond the power of the subjects and the ruled.
7. Unstable legislation (ex. daily revisions of laws).
8. Divergence between adjudication/administration and legislation.[4]

Fuller says that you can treat law as not law if they are morally bad---laws that fail my 8 tests are
not laws. He wants a way out.
The message to ordinary Germans to violate the lawis not a good message to send.

If the law is bad enough, you are under an obligation (not just a moral one but a legal one
grounded in extra-state norms) to not follow them.
Nazi law worked fine for nazi law. It was working wellit was not good but it worked.
We can clean up nazi law---and make it completely and procedurally fair and we still
wouldn't like the nazi regime.

The way people answer the basic questions of lawyou can clump people together.

July 21, 2014

Classical Theories- Aristotle, Plato
I. Natural Law
Natural Law proper
TheisticThomas, Finnis
Theism isnt the underlying theoretical basis of all thought----Finnis tries to show that
there are certain things that are good without reference to God.
Natural Law
(mostly a-theistic)
Locke, Kant, Rauls
Atkinson will defend Kants principles but he does not think it really works.
Lockes basic notion is once upon a time there were people living in the state of nature--and they could do whatever they wanted to as long as they didn't interfere with others and
they could collect whatever they wanted and make it theirs. Everyone has their own labor
and no one can take it away.
o Natural law number 1: everyone owns his or her own labor.
A self made human being is literally inconceivable.
No ones labor is their own. (Atkinson son running away story).
o Number 2: Everything not human is up for grabs.
There has never been a time in human history where people who have not
thought this.
Locke cannot imagine a world where no one is there

Wants to show that a society would come up with pretty much the same world that Locke
came up with.
Skeptic---Nihilistic, Fideism
Sources of law:
(Higher) Natural Law: X Is good; Do X (ategonial impractives, Things Good in ..)
Intl Law
Common Law
Old Cases
New Cases

Modes of Reasoning:
TranscendentalIn order to have
1) Eyperience
2) Ethics
Is order to bax

July 22, 2014

Natural law thesis- an inherent link between law and morals. Two possible sources--nature and
Kant is clearly under this spell. He is a theist and he is also trying to work out a system
that appears to non-Germans and Lutherans.

I) Locke starts off by arguing that the governing factor in civil society must be the majority, for
practical reasons. By entering into civil society, the individual submits him or herself to the
majority, and agrees to abide by the rules and decisions of the majority.
II) Locke then addresses two hypothetical arguments against this model. First he discusses the
lack of historical precedence for government by majority rule. Locke concedes that there are
many examples in the modern world and throughout history of absolute power--czars, kings,
sheiks, and so on. However, he notes that societies often forget their origins, and that in fact
"the beginning of politic society depends upon the consent of individuals, to join into, and
make one society." He then cites historical examples supporting this idea. He concludes once
again with his paternal model, putting great credibility in its historical accuracy--people
coming together, and willingly submitting themselves to a central male figure's control,
either within their own family or a group of families. However, even in this situation, the
establishment of government is by consent, as it must be to ensure the peaceful formation of
all civil societies (he notes that he will address conquest, which is clearly not consensual, in a
later portion).
III) Since people are all born under some government, they are not in fact free and at liberty to
unite together to change that government. Locke's response is that, although someone may
bind himself to a given government, he cannot bind his children--they are born free and must
make the decision about whether to ally themselves with their parents' government. Once
again, "consent makes any one a member of any commonwealth." In Chapter 9, Locke
reiterates why people would give up their natural freedom to enter into society--namely, to
assure the protection of their lives, liberties, and estates, all of which Locke
considers property.
Lochner v. New York
Brief Fact Summary. A New York labor law required employees to work no more than sixty hours in one week.
Synopsis of Rule of Law. The 1897 Labor Law limiting the hours that an employee in a biscuit, bread, or cake
bakery or confectionery establishment may work is an abridgement to their liberty of contract and a violation of due
Facts. The 1897 Labor Law stated that no employee can be required or permitted to work in a biscuit, bread, or cake
bakery or confectionery establishment more than sixty hours in a week or more than ten hours in one day, unless to
make work on the last day of the week shorter. And the number of hours worked in a week could not average out to
be more than ten hours per day.
Held. Justice Peckham opinion. This law is an abridgment to the liberty of contract and a violation of due process.
The general right to make a contract in relation to his business is part of the liberty of the individual protected by
the Fourteenth Amendment. No state can deprive any person of life, liberty or property without due process of law.
The right to purchase or sell labor is part of that liberty protected. The only way a state may counter this right is to
show they are exercising a valid police power with their regulation. Those powers relate to the safety, health, morals
and general welfare of the public.
The Court rejected the labor law justification of the statute on police power grounds because this was not a valid
exercise of police power.
First, that power is extended to the protection of public welfare and not the readjustment of bargaining power
between employees and employers. The effect of this legislation was to regulate labor conditions and not to protect
workers. The effect of such statutes, not just the stated or proclaimed purpose, is determinative in whether this
statute is repugnant to the United States Constitution.
Second, there is no valid health of safety rationale in this case. Bakers were not endangered like miners were in the
Holden v. Hardy case. Mining is a profession that needed regulation, but this is not. The state could accomplish its

goals with means that did not interfere with the freedom to contract. Because the police power exercised here is not
strong, the Court suspected that there were legislative motives behind the enactment of this law. New York was
using its power to upset the free market.
Griswold v. Connecticut

Brief Fact Summary. Appellants were charged with violating a statute preventing the distribution of
advice to married couples regarding the prevention of conception. Appellants claimed that the
statute violated the 14th Amendment to the United States Constitution.
Synopsis of Rule of Law. The right of a married couple to privacy is protected by the Constitution.
Facts. Appellant Griswold, Executive Director of the Planned Parenthood League of Connecticut
and Appellant Buxton, a licensed physician who served as Medical Director for the League at its
Center in New Haven, were arrested and charged with giving information, instruction, and medical
advice to married persons on means of preventing conception. Appellants were found guilty as
accessories and fined $100 each. Appellants appealed on the theory that the accessory statute as
applied violated the 14th Amendment to the United States Constitution. Appellants claimed standing
based on their professional relationship with the married people they advised.
Held The First Amendment has a penumbra where privacy is protected from governmental intrusion,
which although not expressly included in the Amendment, is necessary to make the express
guarantees meaningful. The association of marriage is a privacy right older than the Bill of Rights,
and the States effort to control marital activities in this case is unnecessarily broad and therefore
impinges on protected Constitutional freedoms.
Discussion. The right to privacy in marriage is not specifically protected in either the Bill of Rights or
the Constitution. Nonetheless, it is a right so firmly rooted in tradition that its protection is mandated
by various Constitutional Amendments, including the 1st, 9th and 14th Amendments.
Roe v. Wade

Roe v. Wade, 410 U.S. 113 (1973), is a landmark decision by the United States Supreme Court on
the issue of abortion. Decided simultaneously with a companion case, Doe v. Bolton, the Court ruled
72 that a right to privacy under the due process clause of the 14th Amendment extended to a
woman's decision to have an abortion, but that this right must be balanced against the state's two
legitimate interests in regulating abortions: protecting prenatal life and protecting women's health.
Arguing that these state interests became stronger over the course of a pregnancy, the Court
resolved this balancing testby tying state regulation of abortion to the third trimester of pregnancy.
Lawrence v. Texas

Brief Fact Summary. Police found two men engaged in sexual conduct, in their home, and they
were arrested under a Texas statute that prohibited such conduct between two men.

Synopsis of Rule of Law. While homosexual conduct is not a fundamental right, intimate sexual
relationships between consenting adults are protected by the Fourteenth Amendment.
Roper v. Simmons

Roper v. Simmons, 543 U.S. 551 (2005), was a landmark decision in which the Supreme Court of
the United States held that it is unconstitutional to impose capital punishment for crimes committed
while under the age of 18. The 5-4 decision overruled the Court's prior ruling upholding such

sentences on offenders above or at the age of 16, in Stanford v. Kentucky, 492 U.S. 361 (1989),
overturning statutes in 25 states that had the penalty set lower.
Varnum v. brien

Brief Fact Summary. Six same sex couples are denied the right to marry and challenge the statute
that defines marriage as a union between only a man and a woman.
Synopsis of Rule of Law. The 1998 civil marriage statute does violate the equal protection clause
of the Iowa Constitution. Same sex marriage is now permitted in the State of Iowa.

July 23, 2014

National Law (US)

Constitution .
Not common law
Common Law
Lower natural law (instrumental rationality)
If you want end E, use means M.
The government shall not deny any person life, property, liberty without due process of law.
Anything Kant could imagine a person wanting to do---must be justified
o Legitimate stake interest
o Reported benefit to common good
o Is statute in a non-insane waya proper means to that end.
*This is the same as rational basis analysis.

Peckham---assertive public interest behind a statute.
He says this is not about what is in the bread dough----the labor doesn't affect public interest.
There will be a re-distribution of wealth problem.
There are market economic problems--o Lochner has never been overruled---but it does not work.
If the citizens want more time with their family, we have to cut back on someone elses contract----but if
we can do it by advancing human rights and doing it with little consequence.
By the New Deal, Lochner was forgotten.

60 years later.
Griswold v. Connecticut
Yale doctor requires for some of his patients---condoms.

Criminalization of sex outside of marriage

Whenever you have sex in CT---there must be a chance of a baby.
State of CT forbids the selling of contraceptives.
It is only a problembecause God or his representatives on earth said so.
There is no reason sex for pleasure is bad.

July 24th
3 As: Aristotle and Aquinas.
Strong Natural Lawyer---Michael Moore does not thing that law can be separated from moral analysis.
If one is an anti-realist (skeptic)
Conventionalist is basically same thing as interpretivist. If you are not a realist or a skeptic, you are an
Either you have to be a conventionalist
No way of taking some of kind of moral analysis. There is a linkagesubstantive due process does the same thing
on a broader scale.
Atkinson believes Moore is right on how he structures. But he is wrong about the laternative--- moore things that the
best thing is moral realism---but Atkinson does not believe in individual unmediated private will.
Rv. Of Lochner
Why did the government want to limit the bakery sales to 40/hr per week?
o To suppress the success of the new people on the block
o Lochner opinion on its face is odd---it is trying to move economic interest into an especially
protected category---if they could make it somewhat like property---then it couldn't be taken
without just compensation.
o Lochner era also failed because Supreme court refused to admit that it was trying to make business
something above democracys reach.
July 25, 2014

Early focus was law the command the state

Austen gets this idea from Locke

July 29, 2014

Austins Province of Jurisprudence. (3rd As)
Analytic: Things that can be separated
Idea: Things that
Thesis: Natural Law
Theistic---Thomas, Finnis
Non-theisticLocke, Kant
Antithesis: positivism, legal positivism, proper

Hobbes, Hume, Bentham

Analytic positivism
Austin, Kelson, HLA Hart
Synthesis/ Critique
A human law that is not just or congruent with reality is not a law.
Which law should you obey? The law of nature or society?
An appealing answer is suck it up and do the right thing and take the consequences.
Atkinson is on board with Aquinas that if all things are equalyou should not obey (unless disobeying it
causes too much disorder)
First generation of positivists (Hobbes, Hume, Bentham)
o Focus on the gap between law and morals.
o They also focus on what law is like
Second General of positivists analytic positivist
o (Austin, Kelson, HLA Hart)
o All positivists separate law from morals without denying that morals exist.
Austins Province of Jurisprudence (3rd As)
Analytic: Things that can be separated
See pic of board on phone
Ideal: things that should be united
Actual: Things as they are united/separated

Austins model:
o Divine law: just---whatever morality there is.
o Austins model lets you explain those interactions of law and what people think is right.
o Positive morality----we come from a country with slavery, abolish slavery---now we all follow the
same rules. From a critical race perspective, law is affected by this.
Hart looks just at law. He is an academic and nobody believes in natural law morals anymore.

July 30, 2014

Exam due by the 16th of August!!!
24 hours to work on the exam.
Fuller tried to come up with a formal natural law that said that for anything to be law it has to
meet the following requirements.
HLA Hart

July 31, 2014

Law that is given by a human source.
For Austin, Human positive law is commands.
Says there is a little pocket of discretion where the lawmakes you give a reason
and base on sense of morality.
Turning to the judges moral views does not give much constraint.
Dworkins way out of this circledoes not do much better.
Michael Moore says that you will just project your own preferences. Michael Moore is a
You will interject into law an element of idiosyncracy.
Skepticismno moral right answers
Theistic--- lets figure out a way that is moral imperative---we can figure
out a way we want to live.

White people in America during slavery time---the people would say

slavery is the law and its morally permitted. A law that is in accord with
popular moral but not in accord with natural divine law. They thought it
was Gods law---

August 1, 2014
There are of History is long, but it bends toward Justice. Dr. King.

Exam in form of menu2 entrees for 35% a piece. Then choose two desserts for something like
16 points a piece. OR you can write your own exam for 100% of exam grade and course grade.
Make up the question yourself and answer it.

What is justice? The ability for anyone to participate in a society to do what humans do when
they rule society. That is the best society. Justice is making sure that not just my Guatemalan
grand-daughter are in a great position, but that everyone has these abilities.
o Even if there is no God, this would still be the position.
A good society is one that is more or less working. We as people are doing better depending on
how much we are integrated.

Why is Locke wrong?
o Fact #1: each person owns and should own his/her own labor.
o Fact #2: the whole world is like Oklahomaeveryone is cool, then we all grab whatever
we want. Your labor is your own and everything outside yourself is there for the
o Fact #3: if you mix stuff you own, with stuff you own, the mixture is suddenly yours.
o Two problems:
1. there is no such thing as a self-made person, your labor got here literally
by your mothers labor.