Questions for the Midterm Examination

PHIL 414

Philosophy of Law

INSTRUCTIONS: Four of the following questions will appear on the midterm exam. The most effective way to use these study questions is to prepare written answers for each question and then study your answers carefully as preparation for the exam. In preparing written answers, you should feel free to make liberal use of the lecture outlines, your class notes, and the readings. You should feel free to quote from the lecture outlines where it is helpful to do so; that material belongs to you.

You should approach writing your answers the same way you approach writing a formal term paper. In particular, you should take care to ensure that your answers contain sufficient detail to convey to the reader the complexities of the various issues. If you are going to err with respect to the level of detail, it is better to err on the side of providing too much detail. Additionally, your answers should be written for an audience that is unfamiliar with the material; it would be helpful to consider yourself as having to teach the material to the reader. Finally, your answers should be as polished as possible. This will help you to produce your best prose when taking the exam next week.

In grading your answers to the test questions, I will be looking at the following elements: (1) the level of detail; (2) the quality of the arguments; and (3) the quality of the writing. Each question will be worth 25 points. Good luck.

1. There are two different kinds of natural law theory. Explain each. What is the logical relationship between the two theories? Justify your answer.

2. Blackstone writes: “This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.” Distinguish two possible interpretations of this passage with respect to the conceptual relationship between the content of the law and the content of morality.

3. Explain Austin’s hangman argument (including some indication as to which of the two interpretations of the Blackstone quote in Question 2 it applies to). How might Blackstone respond?

4. Prior to doing a conceptual analysis of legal concepts, we must decide whose concept of law and which usage we are trying to explain. Explain the various possibilities here. (Your answer to Question 2 is relevant in answering this question).

5. There are two ways in which the criteria of legality/validity can function in trying to understand law in any particular community. Explain each. Do these two functions necessarily go together?

6. Summarize Austin’s general account of law. What features must an entity have to count as an instance of the concept-term “law?” (You need not discuss the Austinian concept of sovereignty – which applies only to legal systems).

7. Explain and critically evaluate the Austinian doctrine that every conceptually possible legal system contains a sovereign. (Please note that the question asks you to do two things).

8. Explain Austin’s account of legal obligation. Explain Hart’s gunman objection to Austin’s account.

9. The Separability and Conventionality Theses form the theoretical core of contemporary legal positivism. Explain each of these theses. (Your explanation should go beyond just quoting the theses).

10. In the Model of Rules II, Dworkin argues that judicial disagreement in hard cases is inconsistent with the Conventionality Thesis. Explain his argument. How might a positivist respond?