中英美暑期哲学学院第13期正式班（法哲学）课程介绍
2008-01-29
2008 SESSION SHANXI UNIVERSITY, TAIYUAN 7th -25th July
PHILOSOPHY OF LAW
Dr Kimberley Brownlee (University of Manchester):
PUNISHMENT
Professor Peter Cane FBA (Australian National University):
RESPONSIBILITY IN LAW AND MORALITY
Professor Timothy O'Hagan (University of East Anglia), Director:
JOHN RAWLS: THE LAW OF PEOPLES
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Dr Kimberley Brownlee (University of Manchester)
PUNISHMENT
‘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, dessert 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
COURSEBOOK: Antony Duff and David Garland (eds), A Reader on Punishment (Oxford: Oxford University Press, 1994).
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Professor Peter Cane (Australian National University):
RESPONSIBILITY IN LAW AND MORALITY
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 BOOK: Peter Cane: Responsibility in Law and Morality (Oxford, Hart Publishing, 2002).
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Professor Timothy O’Hagan (University of East Anglia):
JOHN RAWLS: THE LAW OF PEOPLES
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 BOOK: John Rawls: The Law of Peoples (Cambridge, MA, Harvard University Press, 1999).