Phil 537: Philosophy of Law: Crime, Punishment, and Paternalism

Dr. Christian Perring

Office: 1601 P.O.T., Phone: 257-7171 E-mail: cperring@pop.uky.edu

Class: TR 9.30-10.45 a.m., CB 209 Office Hours: TR 4-5 p.m. or by appointment

This is a course for mid- and upper-level undergraduates. Graduate students are also welcome to take the course. The basic issue will be to what extent and under what conditions governments are justified in treating citizens paternalistically. We will particularly focus on the case of punishment.

Government intervenes in the life of its citizens in a variety of ways. It raises taxes, creates laws which regulate the behavior of citizens, and provides services to citizens. The issue examined in this course is the extent to which government should decide what is good for its citizens, and control their behavior against their will, and what sorts of justifications can be given for that. Punishment is a useful example because there are many forms of punishment available, and many different proposed justifications of punishment, such as deterrence, rehabilitation, and retribution. We will also examine under what conditions citizens should be regarded as autonomous and competent to decide for themselves what to do and whether to risk the consequences of their actions, and when they are not competent to decide. This will involve examination of criminal insanity, the rights of children and young people, and medical paternalism.

Course Requirements: Students will write a mid-term exam (25%), one 6-page paper (30%) and one 10-page paper (40%). Students will also present summaries of articles in class (5%). Attendance is compulsory and you will be penalized 1% per class missed for missing more than 3 classes.

Mid-term exam: due Feb 22; 6-page paper: due March 28; 10 page paper: due May 6

Students are expected to have read assigned readings before class, and they should be ready to answer questions on the readings. The cases, listed at the end of each section in italics, should be read as soon as possible. You are encouraged to read ahead as much as possible.


Crime and Punishment: Philosophical Explorations M. Gorr & S. Harwood (editors) (Jones and Bartlett, 1995) (GH)

Philosohical Problems in the Law (Second Edition) David Adams (Wadsworth, 1996)



Note that all dates are estimates only, and that the assigned readings may be changed.

The Justification of Punishment

§1. Utilitarianism

January 16: Jeremy Bentham: The Utilitarian Theory of Punishment [GH 286]

Igor Primoratz: Arguments Against the Utilitarian Theory [GH 295]

18: C. L. Ten: The Effects of Punishment [GH 312]

Goldschmitt v. Florida [Adams 440]

Gregg v. Georgia [Adams 447]

§2. Retributivism

23: David Lyons: Punishment as Retribution [GH 317]

Herbert Morris: Punishment and Fairness [GH 322]

C. L. Ten: Is Punishment Fair? [GH 324]

25: Toni Massaro: Shame, Culture, and American Law [Adams 442]

Payne v. Tennessee [Adams 425]

Coker v Georgia [Adams 481]

§3. Rehabilitation and Excuses

30: Jean Hampton: The Moral Education Theory of Punishment [GH 356]

February 1: D. M. Adams: Excuse [Adams 377]

Cathryn Jo Rosen: The Battered Woman's Defense [Adams 384]

6: Norval Morris: The Abolition of the Insanity Defense [Adams 401]

Sanford Kadish: The Decline of Innocence [Adams 406]

State v. Leidholm [Adams 475]

What Should be Criminal?

§4. Liberty and Privacy

8: John Stuart Mill: On Liberty [GH 3, Adams 162]

13: Patrick Devlin: The Enforcement of Morals [GH 17]

Edmund Pincoffs: The Enforcement of Morality [Adams 176]

15: Robert Bork: The Right to Privacy [Adams 133]

John Arthur: Personal Privacy [Adams 136]

Bowers v. Hardwick [Adams 128, GH 26]

Griswold v. Connecticut [Adams 123]

20: Review

22: Midterm exam

§5. Pornography

27: Lorenna M. G. Clark: Liberalism and Pornography [GH 176]

Catherine McKinnon: Pornography: On Morality and Politics [Adams 217]

29: Joel Feinberg: Pornography, Feminism and Liberalism [GH 187, Adams 208]

American Booksellers Association v. Hudnut [Adams 204]

§6. Freedom of Expression and Hate Crimes

March 7: Cass R. Sunstein: Liberalism, Speech Codes, and Related Problems [Adams 185]

M. J. Matsuda: Words Which Wound: Burning Crosses and the R. A. V. Case [GH]

Texas v. Johnson [Adams 226]

R. A. V. v. City of St. Paul [GH 247]

[Spring Break]

§7. Drugs [both in GH]

19: James Q. Wilson: Against the Legalization of Drugs [121]

Douglas N. Husak: Recreational Drugs and Paternalism [131]

§8. Euthanasia and Suicide [all in GH]

21: David Hume: Of Suicide [164]

26: Ronald Dworkin: The Right to Death [155]

Cruzan v. Director, Missouri Department of Health [147]

What Is Law? [All in Adams]

§9. Classical Theories

28: H. L. A. Hart: Law as the Union of Primary and Secondary Rules [29]

H. L. A. Hart: Positivism and the Separation of Law and Morals [37]

April 2: Martin Luther King, Jr.: Letter from Birmingham Jail [25]

Lon Fuller: The Morality of Law [47]

4: [No class]

9: John Finnis: A Defense of Natural Law [52]

The Antelope [146]

§10. Contemporary Views

11: Oliver Wendell Holms: The Path of the Law [67]

16: Ronald Dworkin: The Model of Rules & "Natural" Law Revisited [81, 93]

18: [No class]

23: Patricia Smith: Feminist Jurisprudence [108]

25: Thomas Nagel: A Defense of Affirmative Action [269]

Shelby Steele: Affirmative Action [273]

Regents of the University of California v. Bakke [251]

City of Richmond v. Cronson [318]