Lecture 1
Perspectives on Law
The course aims to look at law from different perspectives by challenging claims of law's neutrality, objectivity
and equality. It wants to tell alternative stories about how law works rather than a single perspective students
may have received in previous courses. The goal is to develop a deeper, more critical understanding of law's
social role and impact.
While everyone believes they are open-minded, true open-mindedness means reflecting on perspectives we
view as "normal" or have taken for granted.
One role law plays is normalizing - it establishes standards and ideas as authoritative, shaping what society
sees as reasonable or ordinary.
E.g., a goal of the course is to examine concepts like reasonableness from different angles, not just one view declared
as reasonable.
Society is not a single story, but that law pushes towards telling just one story through
its nature and function. Law fulfills important functions in society like keeping social or-
der and resolving conflicts that could turn violent. Law shapes human behavior, normal-
Hypothesis of the izes and standardizes conduct by declaring what is reasonable through judicial decisions
course and precedence. It is making authoritative decisions to resolve disputes, which is incred-
ibly valuable for society, but in doing so pushes a single standardized narrative.
How law can tell multiple stories while maintaining equality, and what can reasonably be
done to acknowledge more than one narrative?
Exercise #1
- What does Antigone tell you about the notion of reasonableness? -
- Was Antigone the most reasonable character? -
- How do the different characters approach the idea of reasonableness? -
• All the characters could be seen as reasonable from their own perspectives based on their life experi-
ences and beliefs.
• Creon thinks enforcing the positive law he created is reasonable, while Antigone believes obeying di-
vine law is reasonable based on her piety.
• However, their sense of reasonableness is rooted not just in law but in deeply held values and beliefs.
• These conflicting beliefs about what is reasonable, like beliefs in law and order versus obedience to
the gods, are irreconcilable.
• The tragedy occurs because these values cannot be compromised on or reconciled, inevitably leading
to clashes that end in all the characters' deaths.
• The play therefore suggests reasonableness is subjective.
- How does the law work in the play? -
- What's the functioning of law in this? -
- How does it work? -
• Law makes an authoritative decision in situations of conflict, as seen in Antigone with Creon ruling
against Antigone.
• Law acts as a binary decision maker, declaring a winner and loser. In Antigone, Creon wins legally but
Antigone loses from that perspective, though her motivation was to obey the gods.
,• While law makes a decision, the underlying conflict does not necessarily get resolved or reconciled
when the opposing values or perspectives are irreconcilable. The conflict continues on a deeper level
even if law structures it differently through its ruling.
- Do we have a duty to obey the law and to disobey the law? -
- Is there only a duty to obey the law? -
- Do we also have an equal duty to disobey the law? If so, when? -
• In Antigone, there is a conflict between Creon's law and divine/natural law, raising the question of
which takes precedence. This relates to situations where positive law contradicts higher legal princi-
ples like a constitution.
• One does not have an unlimited right to disobey any law they personally disagree with, as that would
lead to chaos without an authoritative legal system.
• However, philosophers like Aquinas, Martin Luther King Jr., and Radbrook assert one has a moral duty
to disobey laws that are "manifestly unjust" as such laws lose legitimacy.
• Determining when a law qualifies as manifestly unjust is complex, requiring an individual moral deci-
sion. Civil disobedience also requires willingness to non-violently accept the consequences.
• Examples like climate protests show this issue will continue arising as societal values change, putting
the question of disobedience to unjust laws at the center of political and legal debates.
While generally obligated to obey the law, there may be an exception of duty to disobey laws that violate
higher principles in a manifestly unjust way according to one's moral reasoning. But such judgments require
careful consideration.
Exercise #2
- What is at stake in the Lochner case? -
• The main legal issues are workers' rights and protections versus freedom of contract under the 14th
Amendment. It concerns who has the right to determine labor conditions - the individual or the state.
• It implicates the balance of powers between state and federal governments, as it questions New
York's ability to regulate labor conditions.
• The Act can be seen as a protectionist measure against immigrant workers willing to work longer
hours for lower wages.
• Holmes makes an important argument in his dissenting opinion. He believes the majority views free-
dom of contract as a meta-right that overrides all other considerations. However, he states this per-
spective reflects only one particular economic viewpoint, not an immutable truth. As an economic
theory, freedom of contract is open to debate and differing opinions among reasonable people.
Holmes argues it is not the province of the court to decide such matters but rather that of the state
legislatures. This is because the constitution allows for diverse viewpoints on complex social and eco-
nomic issues to be worked out through the democratic process. By failing to acknowledge dissenting
views could also be reasonable, Holmes asserts the majority is overstepping its role and inappropriate-
ly favoring one economic perspective over others. For Holmes, this makes the question a state issue
that should be beyond the court's reach, since the statute does not clearly violate constitutional rights.
• By questioning maximum hour laws for bakers, the case implicates how much regulation of the em-
ployment relationship governments should be able to enact in the name of worker protections. This
speaks to debates over how strictly capitalist systems should adhere to laissez-faire principles or ena-
ble some level of interventionism. So in contesting New York's ability to regulate the baking industry,
Lochner touches on foundational questions of political economy regarding state versus market control
and what version of capitalism best balances the interests of businesses, workers, and communities.
Different stances on such questions were very much at stake in this case.
, - How does this case help us think about the globalization that we see? -
• A contemporary issue seen around the world is conflicts between individuals, corporations, and the
state, with states sometimes infringing on individual rights.
• Western nations have established strong protections for laborers through regulations on issues like
maximum work hours and minimum wage. In places like Bangladesh, the garment industry provides
important income opportunities, particularly for vulnerable groups such as women. At the same time,
the long hours, lack of breaks, and unsafe conditions in factories raise understandable objections from
an international workers' rights perspective. If conditions were improved, companies may relocate fac-
tories to nations with even fewer protections in a "race to the bottom" dynamic. There are reasonable
arguments on both sides. Western regulations aim to prevent worker exploitation. But for developing
nations, low-standard jobs can beat otherwise limited livelihood options while gradually building
economies.
• How Lochner relates to modern globalization depends on one's perspective - those favoring free mar-
kets see parallels, while those prioritizing protections see increased need for regulation
Lecture 2
Legal Knowledge & Law's Persuasion
James Boyd White argues that law should be understood as a form of rhetoric or argumentation,
rather than just a set of rules. He says law is about shaping identities and communities - it draws
from the existing community while also remaking it.
Lawyers have three aspects to their work according to White:
1. They must speak the language and terms understood within the legal system.
2. They play an active role in shaping how the law evolves over time. They do this by:
• Suggesting changes to legal definitions and categories
• Introducing new authoritative sources
• Offering fresh interpretations of existing laws
When lawyers argue a case, they're not just trying to win for their client. They're also influ-
encing how legal language and concepts might be used in future cases. This process contrib-
utes to the gradual development of legal precedents and the overall evolution of the law.
2. Lawyers do more than just argue individual cases. Their work has a broader impact on socie-
ty:
• Every legal argument is also a statement about community values
• When lawyers make their case, they're indirectly proposing what kind of society we
should have
• This means that even private legal matters have a public dimension
Three Core Parts of Rhetoric
Ethos provides authority and credibility to an argument by appealing to credible sources
Ethos
or one's own reputation.
, White establishes his ethos by speaking from the position of a respected law professor
to a community of legal professionals. He assumes values like justice are shared within
this community.
Pathos refers to appealing to the emotions of the audience by crafting compelling sto-
Pathos
ries and narratives to make them believe an idea.
Logos involves using logical reasoning and building an argument in a structured, rea-
soned manner.
Logos White also relies heavily on logos, structuring a logically reasoned argument about un-
derstanding law as a rhetorical practice oriented around continual redefinition of com-
munity
Timmermans' UN Security Council Speech on MH17
- Analysis -
Frans Timmermans, as Dutch Foreign Minister, addressed the UN Security Council shortly after the
MH17 tragedy in 2014. His speech effectively used three key elements of legal rhetoric:
Timmermans established his credibility by:
• Speaking as the Dutch Foreign Minister, representing a country deeply affected
by the tragedy. Timmermans sought to establish himself as an authoritative fig-
ure speaking on behalf of the Netherlands.
Ethos • Demonstrating his commitment to seeking justice for the victims
• Presenting himself as a voice for the international community's shared values.
Timmermans' audience was mixed, including the Security Council members, affected
communities, and general spectators watching the speech.
The speech was carefully structured to:
• Build emotional impact through compelling anecdotes. Elements like strategic
pauses amplified the emotional impact, along with his visible display of emotion
like using a handkerchief.
• To appeal to the global community represented, he focused on cross-cultural
values like basic human emotions, the idea of family, and a shared sense of hu-
Pathos
manity through caring for loved ones. Key words like "home" were repeatedly
used to tap into a universal attachment to the concept of home regardless of
cultural background. Respect for human dignity and treating the dead with re-
spect were also culturally relatable values featured in his rhetoric constructing
the community he aimed to address.
• Conclude with a powerful call to action based on shared values.
Timmermans incorporated logical arguments by:
• Presenting facts about the incident and its aftermath. Timmermans chose facts
that directly supported his goal of motivating UN Security Council action. He fo-
Logos cused on the human tragedy and the immediate need for intervention, rather
than providing extensive background on the conflict. (ongoing civil war in
Ukraine) This selective use of facts demonstrates a key aspect of legal rhetoric:
presenting information that strengthens the argument while omitting details
that might distract from the main point or weaken the case.
Perspectives on Law
The course aims to look at law from different perspectives by challenging claims of law's neutrality, objectivity
and equality. It wants to tell alternative stories about how law works rather than a single perspective students
may have received in previous courses. The goal is to develop a deeper, more critical understanding of law's
social role and impact.
While everyone believes they are open-minded, true open-mindedness means reflecting on perspectives we
view as "normal" or have taken for granted.
One role law plays is normalizing - it establishes standards and ideas as authoritative, shaping what society
sees as reasonable or ordinary.
E.g., a goal of the course is to examine concepts like reasonableness from different angles, not just one view declared
as reasonable.
Society is not a single story, but that law pushes towards telling just one story through
its nature and function. Law fulfills important functions in society like keeping social or-
der and resolving conflicts that could turn violent. Law shapes human behavior, normal-
Hypothesis of the izes and standardizes conduct by declaring what is reasonable through judicial decisions
course and precedence. It is making authoritative decisions to resolve disputes, which is incred-
ibly valuable for society, but in doing so pushes a single standardized narrative.
How law can tell multiple stories while maintaining equality, and what can reasonably be
done to acknowledge more than one narrative?
Exercise #1
- What does Antigone tell you about the notion of reasonableness? -
- Was Antigone the most reasonable character? -
- How do the different characters approach the idea of reasonableness? -
• All the characters could be seen as reasonable from their own perspectives based on their life experi-
ences and beliefs.
• Creon thinks enforcing the positive law he created is reasonable, while Antigone believes obeying di-
vine law is reasonable based on her piety.
• However, their sense of reasonableness is rooted not just in law but in deeply held values and beliefs.
• These conflicting beliefs about what is reasonable, like beliefs in law and order versus obedience to
the gods, are irreconcilable.
• The tragedy occurs because these values cannot be compromised on or reconciled, inevitably leading
to clashes that end in all the characters' deaths.
• The play therefore suggests reasonableness is subjective.
- How does the law work in the play? -
- What's the functioning of law in this? -
- How does it work? -
• Law makes an authoritative decision in situations of conflict, as seen in Antigone with Creon ruling
against Antigone.
• Law acts as a binary decision maker, declaring a winner and loser. In Antigone, Creon wins legally but
Antigone loses from that perspective, though her motivation was to obey the gods.
,• While law makes a decision, the underlying conflict does not necessarily get resolved or reconciled
when the opposing values or perspectives are irreconcilable. The conflict continues on a deeper level
even if law structures it differently through its ruling.
- Do we have a duty to obey the law and to disobey the law? -
- Is there only a duty to obey the law? -
- Do we also have an equal duty to disobey the law? If so, when? -
• In Antigone, there is a conflict between Creon's law and divine/natural law, raising the question of
which takes precedence. This relates to situations where positive law contradicts higher legal princi-
ples like a constitution.
• One does not have an unlimited right to disobey any law they personally disagree with, as that would
lead to chaos without an authoritative legal system.
• However, philosophers like Aquinas, Martin Luther King Jr., and Radbrook assert one has a moral duty
to disobey laws that are "manifestly unjust" as such laws lose legitimacy.
• Determining when a law qualifies as manifestly unjust is complex, requiring an individual moral deci-
sion. Civil disobedience also requires willingness to non-violently accept the consequences.
• Examples like climate protests show this issue will continue arising as societal values change, putting
the question of disobedience to unjust laws at the center of political and legal debates.
While generally obligated to obey the law, there may be an exception of duty to disobey laws that violate
higher principles in a manifestly unjust way according to one's moral reasoning. But such judgments require
careful consideration.
Exercise #2
- What is at stake in the Lochner case? -
• The main legal issues are workers' rights and protections versus freedom of contract under the 14th
Amendment. It concerns who has the right to determine labor conditions - the individual or the state.
• It implicates the balance of powers between state and federal governments, as it questions New
York's ability to regulate labor conditions.
• The Act can be seen as a protectionist measure against immigrant workers willing to work longer
hours for lower wages.
• Holmes makes an important argument in his dissenting opinion. He believes the majority views free-
dom of contract as a meta-right that overrides all other considerations. However, he states this per-
spective reflects only one particular economic viewpoint, not an immutable truth. As an economic
theory, freedom of contract is open to debate and differing opinions among reasonable people.
Holmes argues it is not the province of the court to decide such matters but rather that of the state
legislatures. This is because the constitution allows for diverse viewpoints on complex social and eco-
nomic issues to be worked out through the democratic process. By failing to acknowledge dissenting
views could also be reasonable, Holmes asserts the majority is overstepping its role and inappropriate-
ly favoring one economic perspective over others. For Holmes, this makes the question a state issue
that should be beyond the court's reach, since the statute does not clearly violate constitutional rights.
• By questioning maximum hour laws for bakers, the case implicates how much regulation of the em-
ployment relationship governments should be able to enact in the name of worker protections. This
speaks to debates over how strictly capitalist systems should adhere to laissez-faire principles or ena-
ble some level of interventionism. So in contesting New York's ability to regulate the baking industry,
Lochner touches on foundational questions of political economy regarding state versus market control
and what version of capitalism best balances the interests of businesses, workers, and communities.
Different stances on such questions were very much at stake in this case.
, - How does this case help us think about the globalization that we see? -
• A contemporary issue seen around the world is conflicts between individuals, corporations, and the
state, with states sometimes infringing on individual rights.
• Western nations have established strong protections for laborers through regulations on issues like
maximum work hours and minimum wage. In places like Bangladesh, the garment industry provides
important income opportunities, particularly for vulnerable groups such as women. At the same time,
the long hours, lack of breaks, and unsafe conditions in factories raise understandable objections from
an international workers' rights perspective. If conditions were improved, companies may relocate fac-
tories to nations with even fewer protections in a "race to the bottom" dynamic. There are reasonable
arguments on both sides. Western regulations aim to prevent worker exploitation. But for developing
nations, low-standard jobs can beat otherwise limited livelihood options while gradually building
economies.
• How Lochner relates to modern globalization depends on one's perspective - those favoring free mar-
kets see parallels, while those prioritizing protections see increased need for regulation
Lecture 2
Legal Knowledge & Law's Persuasion
James Boyd White argues that law should be understood as a form of rhetoric or argumentation,
rather than just a set of rules. He says law is about shaping identities and communities - it draws
from the existing community while also remaking it.
Lawyers have three aspects to their work according to White:
1. They must speak the language and terms understood within the legal system.
2. They play an active role in shaping how the law evolves over time. They do this by:
• Suggesting changes to legal definitions and categories
• Introducing new authoritative sources
• Offering fresh interpretations of existing laws
When lawyers argue a case, they're not just trying to win for their client. They're also influ-
encing how legal language and concepts might be used in future cases. This process contrib-
utes to the gradual development of legal precedents and the overall evolution of the law.
2. Lawyers do more than just argue individual cases. Their work has a broader impact on socie-
ty:
• Every legal argument is also a statement about community values
• When lawyers make their case, they're indirectly proposing what kind of society we
should have
• This means that even private legal matters have a public dimension
Three Core Parts of Rhetoric
Ethos provides authority and credibility to an argument by appealing to credible sources
Ethos
or one's own reputation.
, White establishes his ethos by speaking from the position of a respected law professor
to a community of legal professionals. He assumes values like justice are shared within
this community.
Pathos refers to appealing to the emotions of the audience by crafting compelling sto-
Pathos
ries and narratives to make them believe an idea.
Logos involves using logical reasoning and building an argument in a structured, rea-
soned manner.
Logos White also relies heavily on logos, structuring a logically reasoned argument about un-
derstanding law as a rhetorical practice oriented around continual redefinition of com-
munity
Timmermans' UN Security Council Speech on MH17
- Analysis -
Frans Timmermans, as Dutch Foreign Minister, addressed the UN Security Council shortly after the
MH17 tragedy in 2014. His speech effectively used three key elements of legal rhetoric:
Timmermans established his credibility by:
• Speaking as the Dutch Foreign Minister, representing a country deeply affected
by the tragedy. Timmermans sought to establish himself as an authoritative fig-
ure speaking on behalf of the Netherlands.
Ethos • Demonstrating his commitment to seeking justice for the victims
• Presenting himself as a voice for the international community's shared values.
Timmermans' audience was mixed, including the Security Council members, affected
communities, and general spectators watching the speech.
The speech was carefully structured to:
• Build emotional impact through compelling anecdotes. Elements like strategic
pauses amplified the emotional impact, along with his visible display of emotion
like using a handkerchief.
• To appeal to the global community represented, he focused on cross-cultural
values like basic human emotions, the idea of family, and a shared sense of hu-
Pathos
manity through caring for loved ones. Key words like "home" were repeatedly
used to tap into a universal attachment to the concept of home regardless of
cultural background. Respect for human dignity and treating the dead with re-
spect were also culturally relatable values featured in his rhetoric constructing
the community he aimed to address.
• Conclude with a powerful call to action based on shared values.
Timmermans incorporated logical arguments by:
• Presenting facts about the incident and its aftermath. Timmermans chose facts
that directly supported his goal of motivating UN Security Council action. He fo-
Logos cused on the human tragedy and the immediate need for intervention, rather
than providing extensive background on the conflict. (ongoing civil war in
Ukraine) This selective use of facts demonstrates a key aspect of legal rhetoric:
presenting information that strengthens the argument while omitting details
that might distract from the main point or weaken the case.
