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The purpose of the notes for today is to review the central concepts you are responsible for from our Sept. 2 discussion and to probe a number of issues that Fuller's hypothetical about the Speluncean Explorers examines.

September 2. We discussed Feldman's theory of the development of Western thought, in which he posited periods of pre-modernism (before 1517), modernism (1517-about 1970) and post-modernism (1970-present). He even suggested that some of the first stages of a second stage of post-modernism were evident, though its outlines were unclear.

In addition to the time periods given, you should be familiar enough with the following to write a paragraph about these persons or movements. (1) Three prominent characteristics of pre-modernism: the importance of theology, the origin of law in divine command and the teleological direction of history--towards the Kingdom of God. (2) Important figures in pre-modernism: Plato and Aristotle, of the Greeks, and Augustine and Aquinas of the Christians. (3) Five important characteristics of the modern world: the questioning of theological and political authority through the Reformation and the development of political science; the finding of authority in God through reason (Descartes); the origin of modern science (Bacon and Newton); the secularization of the idea of progress; the discovery of the individual. (4) Important individuals to know something about are Calvin, Descartes, Hobbes, Grotius (who I didn't discuss or mention in class). (5) The characteristics of post-modernism mentioned both by Feldman and Litowitz are its anti-foundationalism; the social construction of the self; its questioning of traditional concepts of rationality; its emphasis on reader-response and interpretation; a skepticism about the whole idea of truth (with a capital T). (6) The two important people whom Feldman mentions and you should know something about are Gadamer and Derrida.

You don't have to worry about my trying to cover this much material in one class in the future! But I hope that a synoptic overview at least helps us get some common terminology and individuals on the table for discussion.

September 7. The purpose of this class is to introduce certain important jurisprudential theories through the presentation of Lon Fuller's famous legal hypothetical: "The Case of the Speluncean Explorers." What I would like to do here is to list a number of questions that I will probably pose in class as we seek to understand the issues. By way of introduction, however, I think you should be sure to notice the following issues: (1) executive clemency and its relation to the judicial process; (2) arguments from the law of nature or natural law; (3) the role of statutory construction in various arguments; (4) the argument from the purpose of statutes; (5) the role of history in the construal of the case; (6) the argument from precedent; (7) the meaning and purpose of "positive" law; (8) the nature of practical reason and its relation to justice; (9) the relationship of law and morality.

Then, I think you should also know basic facts of the Dudley and Holmes cases that are summarized in the materials. In class I will probably ask about the facts of Speluncean case, so you should know those very closely. I may ask about the legal importance of certain factual issues, such as whether it is significant that all the explorers are members of the Speluncean Society or whether payment for rescue should be assessed against the Society or the citizens at large. I will probably ask about the ethics of the mode of decision in this case (dice) and whether one should have been permitted to "opt out" of the lottery, as Whetmore tried to do.

We will spend most of the time, I hope, on the various opinions of the five judges. For each one of them I would ask you to summarize the major points the judge makes and then be able to point to specific lines or sections where those arguments are made. How would you deal with the argument from history, brought up by Judge Keen, for example? How deal with the "freedom" of the jurist because of the limitations of language, an argument that is explicitly stated in Judge Foster's argument? What do you think about the practical reason approach of Judge Handy? The great philosopher of practical reason is Aristotle. He devotes a good deal of his major ethical treatise, the Nicomachean Ethics, to a discussion of how the person of practical reason is to live in the world. Though we will only touch briefly on Plato's concept of philosopher kings as described in the Republic, these are the two leading concepts from Greek philosophy of the person who is a just person.

See you in class.