January 2013 LAW AND SOCIETY Spring 2013 / Louis D. Brandeis School of Law / University of Louisville Donald Vish, lecturer True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. ****Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment. -- MARCUS TULLIUS CICERO De Re Publica, De Legibus book 3, paragraph 22.trans. Clinton W. Keyes, p. 211 ________________________________ Course Description This course addresses the question: What is the source (s) of law and the basis of its enforceability and legitimacy? The centerpiece of the course is Herman Melville’s novella Billy Budd Sailor: An inside narrative. Three of the seven classes will be devoted to Billy Budd. Two classes will cover Cicero's Laws and limited excerpts from On Duties, one of the most influential texts of Western civilization. One class will review a three-chapter selection from Alexis de Toqueville's Democracy in America describing and analyzing the law of laws and the role that custom and culture play in law making. The class topics may be summarized as follows: Class #1: Introduction and Overview: the Law of Laws Class # 2: Toqueville, Democracy in America Chapters 2, 3 & 4 Class #3 & 4: Cicero “De Legibus” books I, II & III. Class # 5, # 6 and # 7: Melville, Billy Budd, Sailor: An inside narrative. (The discussion of Billy Budd is scheduled to begin upon return from Spring Break). Objective of the Course What is the objective of the course? This course is designed to introduce the student to the theoretical sources of law and the basis of the law’s legitimacy and enforceability. What is the course about? The course is about law making, not in a parliamentary sense but in a philosophical sense, not in a technical context but in an ideological framework. It is about the confluence of political power, the exigency and temper of the times as well as the more enduring influences of culture, customs, manners and values and priorities of the people that come together to produce law. Ultimate Questions Posed by the Course Every lecture, every class and text considered in the course raises the questions: What is the ultimate source of law? Where does the law derive is legitimacy and its enforceability? This course is about the law of laws. Where do laws come from: God or nature or reason or common consent or custom or wisdom, or necessity or convenience or the interest of the stronger? Class Dates: January: 8th and 22nd February: 5th and 19th March: (Spring Break is 11th thru the 17th) 5th and 19th April: 2nd and 16th (Reading Day is 4-23 and exams begin 4-24). Course Syllabus Basis of grading: Pass//Fail. The Pass//Fail grade will be assigned on the basis of a take home Final Exam which will entail a straightforward essay request: “What are the sources of law and what is the basis of the laws’ legitimacy and enforceability?” The answer must be completed in two hours so as to not covert the final exam into a formal paper. A passing grade will be earned by answering the question in a way that demonstrates familiarity with the assigned texts and some personal, analytical reflection on the subject. You may contact me directly at or you may communicate through a class ombuds committee of three students that will be appointed to facilitate presentation of any complaints, suggestions or requests that an individual student may not want to present directly. Class plan: There will be EIGHT classes beginning Tuesday January 8 and ending April 16. Seven class plans have been prepared. With one class meeting unplanned for review and flexibility. The first class is an introductory overview; the second considers three chapters from Tocqueville “Democracy in America; the third and fourth focus on Cicero’s two works, “On Duties” and “The Laws.” The remaining classes will treat extensively Melville’s novella “Billy Budd” and will provide an opportunity to compare and contrast the works of Cicero and Tocqueville DV: January 1 2013//November 24, 2012 In a time of war, the law falls silent. –Cicero [Class Plans Follow] Class 1. January 8, 2013 Where Does Law Come From  Ask the class to make a list  Tocqueville: the people  Cicero: nature (the nature of the people//God)  Melville: convenience OR in time of war laws are silent The Power of the People: the Law of Laws The people reign in the American political world like God over the universe. --Tocqueville 71 ______________________________________________ I will put my laws into their mind, and write them in their hearts."—Hebrews 8:10. After those days, says the Lord, I will put My Law in their inward parts, and write it in their hearts.”
Jeremiah 31:33. Unlike other Greeks, the Spartans never had their laws written down. Instead, they preserved their system from generation to generation with a distinctive, highly structured way of life based on Class 2 (Toqueville). January 22, 2013 Where Does Law Come From: Democracy in America Chapters 2, 3 & 4: The Power of the People: the Law of Laws Assignments for Class #2: Introduction: The Power of the People, Money and Property 1. Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335]. The discussion of Tocqueville will extend over the first four classes. Read Section III of the Introduction by Kramnick in its entirety, pages xxiv through xxxvii and pages xliii through xlvii, the concluding part of Section IV. Also read the author’s Introduction (an excellent historical description of the interplay between law and social policy) pp. 11-16: A new political science is needed for a totally new world. [16]. 2. Tocqueville Chapter 2 pp. 36-58 (always read the introductory head notes at the beginning of each chapter). This chapter is an overview of the social, cultural, religious mix that the United States is. It sets the course for the course. Many of its specific topics will be treated in more detail in ensuing classes: the national character, common language, equality, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition or support?) the relationship between law and social conditions. 3. Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64]. 4. Tocqueville Chapter 4 pp. 68-71 “The Sovereignty of the People”: The people reign in the American political world like God over the universe. [71].The collective will of the nation, two impediments to progress before independence, its role in all things. Class 3 & 4 (Cicero) February 5 & 19, 2013. Assignments for Class #3: Introduction: 3. Cicero “De Legibus” books I, II & III. 4. 1. Cicero, On Duties. On Duties, or On Obligations, has generally been the most popular of Cicero’s writings, and perhaps exercised more influence on thought and standards of the western world than any other secular work ever written. Michael Grant, Penguin Classics (1971): Book I. VII, 20 [role of justice and kindness], 21 [private property], 22 [duties to the state], 23 [foundation of justice], 24 [reason for crime], 26, 27 [injury and injustice], 28 [passive injustice], 29 [self-interest], 31 [the two principles of justice], 33 [chicanery], XI. 33 [limits to retribution and punishment], XIV. 42 [kindness and generosity], XVI. 50 [kindness], 51, 52 [public property], 63 [the soul of justice], 71 [duty to engage in public affairs], 87 [electioneering and scrambling for office], Book II, 49, 50 [winning admiration through law practice], 51 [capital charges against the innocent and defending the guilty], 66, 67[eloquence at the bar], 70, 71 [representing the poor], 74 [property taxes], 78-80 [agrarian laws], 83 [impartiality], 84 [debt and public safety], 85 [courts of equity], Book III, 54-57, 65-67 [a seller’s duty to disclose], 60-61 [criminal fraud], 69 [civil law versus moral law], 70 [good faith in contracts], 97 [doing evil to do good]. How would Cicero resolve conflicting duties? “The historical roots of casuistry can be found in ancient Rome and Greece.  Cicero, the great rhetorician, described early casuist methodology in his work, On Duty (106-43 BCE).  In it he states that “we need to consider ‘what is most needful in each individual case,’ … and that different circumstances should be carefully scrutinized in every instance.’” (David Jonsen, The Abuse of Casuistry, 1988 p. 10).  In On Duty, Cicero explores this proposal in cases that he presents where “conflicts of duty appear to arise.” His approach: what is most needful in each individual case, Jeramy Townsley, professor Butler University, 2003, http://www.jeramyt.org/; http://www.jeramyt.org/papers/casuistry.html 2. Cicero, The Laws, Book One, 16-35. Where does justice come from? Is law synonymous with wisdom? 3. Cicero, The Laws, Book Two, 37-40. What does music have to do with law? Why did Athens cut off strings from the instrument played by Timotheus? What would Plato think? See Plato, Laws 3. 700-1; Aristotle, Pol. 8. 5-7, Horace, Ars Poetica 202-19. Confer: Michel de Montaigne, Of Custom (1572-1574) (the last 14 paragraphs of the essay). What is Montaigne’s theory about the source of law? Would Montaigne support the idea of ‘health care reform’ and innovation? Why does Montaigne think the legal reformer should wear a rope around the neck? What does Montaigne think about legal tricks and artifice? The Hebrew Bible, Exodus (21-23ff); Leviticus (24:17-20); Deuteronomy (19:21). Compare with Dante’s concept of "contrapasso" or counter-punishment. Rabelais, On Judge Bridlegoose and Lord John the Loony [from Gargantua and Pantagruel]. HOW PANTAGRUEL PERSUADED PANURGE TO SEEK COUNSEL OF A FOOL through PANTAGRUEL’S STRANGE TALE OF THE PERPLEXITIES OF HUMAN JUDGEMENT. Judge Bridlegoose decides cases by rolling dice. Kafka, The Problem of Our Laws: Our laws are not generally known; they are kept secret by the small group of nobles who rule us … for the laws were made to the advantage of the nobles from the very beginning, they themselves stand above the laws Piers Plowman (14th c.): Neede hath no law. Publilius Syrus, Necessity gives the law, but does not herself accept it. What do the two maxims mean? Who is Ananke (or Anance) and what role does she play in the law. Class Flexible 4-A March 5, 2013 This class is unplanned to allow flexibility as the course evolves. Class 5,6 & 7 (Melville) March 19 and April 2 & 16, 2013. Assignments for Class #5, #6 & #7. Billy Budd - Wikipedia, the free encyclopedia There appear to be three principal conceptions of the meaning of Melville's Billy Budd. Herman Melville, Billy Budd, Sailor (An Inside Narrative) (1924 posthumously). Has any work of American literature generated more antithetical and mutually hostile interpretation than Herman Melville's Billy Budd, Sailor? And all the battles about the moral and political vision at the heart of the tale swirl around one question: Are we supposed to admire or condemn Captain Vere for his decision to sentence Billy Budd to death by public hanging? Somehow, astonishingly enough, nobody seems to have noticed that central to the story is the subject of capital punishment and its history. H. Bruce Franklin Reprinted from AMERICAN LITERATURE, Copyright 1997 by H. Bruce Franklin): See POSNER pp. 122,148-50, 162, 163, 165-173, 179, 181, 242. Is this correct? --end November 24, 2012. DV