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Core Concepts in Law

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Course Type Course Code No. Of Credits
Discipline Core NSLG1LP108 4

Semester and Year Offered : Winter Semester

Course Coordinator and Team : 

Email of the coarse coordinator : 

Pre-requisites: None

Does the course connect to, build on or overlap with any other courses offered in AUD?

Within AUD we already have courses that provide general introductions to law and legal institutions.  This course builds on some of these general introductions and seeks to provides students with an analytical tool kit  that allows them to move from a general to a more specific  engagement with law.  It does this through a critical introduction to a set of core legal concepts which are necessary for an interdisciplinary study of law

  • Specific requirements on the part of students who can be admitted to this course: None
  • No. of students to be admitted (with justification if lower than usual cohort size is proposed): As per AUD rules
  • Course scheduling: (summer/winter course; semester-long course; half-semester course; workshop mode; seminar mode; any other – please specify) Semester-long course
  • Proposed date of launch:Monsoon 2020

How does the course link with the vision of AUD and the specific programme(s) where it is being offered?

This course is a part of the  law and politics program.  The program is specifically aimed at developing a deep  understanding of and engagement with  the social and political life of law in colonial India.  While acknowledging the importance of interdisciplinary forays into law,  this course is grounded on the premise that it is equally important to understand the internal logic and the intellectual integrity within any discipline.  Towards that end it looks at a set of concepts which have been crucial for law’s  self articulation as a discipline.   At the end of the course it should hopefully be clear to students that any interdisciplinary enquiry into law will also have to creatively engage with these core concepts.

Course Details:

Summary:Any critical engagement with law  necessarily has to engage with a complex and intertwined universe composed of legal concepts. These concept can range from abstract ideas such as  rights and obligations to  extremely concrete and practical ones such as  “burden of proof”.  Concepts form the  bedrock of legal reasoning but it would be a mistake to think of these concepts either as entirely abstract entities or as the technical aspect of law.  Rather this course  begins with the premise that  a better understanding of the core concepts of law and their relationship with each other provides us with an analytical tool kit with which we can investigate the social and political dimensions of law and legal institutions better. While it would be impossible to be comprehensive and of course of this nature and to cover every important concept, the aim will be to do a survey which provides the students with requisite analytical skills to approach conceptual thinking in law.

 ​​​​​Objectives

 

The course will equip students with

  • An analytical introduction to the idea of legal concepts
  • An introduction to the different  origins and uses of concepts
  • A survey of  key areas of law and concepts that underlie them

ExpectedLearning Outcomes:

On the successful completion of the course students would be able to develop

  •  a critical understanding of a conceptual approach to the study of law
  •  an engagement with  a representative sample of some of the foundational concepts,  which in turn should help the student develop a methodological  approach to analyzing  other concepts
  • Students will understand the relationship between legal cases  and the evolution of concepts  across time

Overall structure

Some of the topics that we will cover in the course include

  • General concepts of law
  • Procedural concepts
  • Criminal law and evidence concepts
  • Applied legal concepts

General and Applied Legal Concepts

The introductory module will  initiate the students  into  what it means to do a conceptual study of the law  by focusing on a cluster of concepts within the ambit of general and applied legal concepts.

Please note:  There are not too many books or articles written in India which provide a history of a particular legal concept, and hence the majority of the readings are non Indian.  An attempt has been made to balance this by ensuring that most of the case studies are from India.

Week 1: Introduction

In the first week we explore the relationship between language and concepts. We ask what it means to possess a concept, and in particular what is a legal concept consist of?

Readings

  • Quentin Skinner, “Language and Political Change” from Ball, Terence, Professor of Political Science Terence Ball, James Farr, Russell L. Hanson, and Russell Hanson. 1989. Political Innovation and Conceptual Change. Cambridge University Press.
  • W N Hohfeld, Introduction to “Fundamental Legal Conceptions as Applied in Judicial Reasoning And Other Legal Essays”, 1930, Yale Univ. Press.

Week 2:

  • Rule of law
  • Legislation
  • Precedent

In the second week we explore the foundational concepts of “Rule of law”, “Legislation” and “Precedent”. While these are taken for granted today in any discussion of the legal system, their origins and revolution tell a story foundational to the very idea of modern law. The difference between the civil law tradition and the common law tradition can also be traced back to the differing emphasis that the two systems pay on legislation versus precedent.

Case Study

The Magna Carta & the idea of legal limits

Readings

Larry Alexander, Precedent from Patterson, Dennis, ed. 2010. A Companion to Philosophy of Law and Legal Theory. Wiley-Blackwell.

Bingham, Tom. 2011. Introduction & Chapter 1, The Rule of Law. London: Penguin.

Jeremy Waldron, Extract from The rule of Law from Stanford Encyclopedia of Philosophy, Available at https://plato.stanford.edu/entries/rule-of-law/

Additional Readings

Jeremy J. Waldron,  Legislation from Golding, Martin P., and William A. Edmundson. 2008. The Blackwell Guide to the Philosophy of Law and Legal Theory. John Wiley & Sons.

Weeks 3 to 5

  • Rights, Duties & Obligation
  • Harm & Causation
  • Liability - Strict, Absolute, Vicarious, Corporate liability
  • Negligence
  • Remedy
  • Relief

Between weeks three two-week five,  we focus on the core idea of legal obligation.  Deploying  the highly influential  framework established by the legal philosopher Hohfeld,  we look at the co-relation between rights and obligations and the nature of duties that private citizens owe to each other. The focus in this module will be on their evolution of tort law. Tort law principles are a way through which we can study the relationship between law and society and particularly in the legal response to modernisation and the increase of risks as a part of urban and industrial life. While initial judicial cases did not have a vocabulary to deal with  newer forms of risks associated with modern life, the courts begin to rely on ethical concepts such as duty and care and read them into the new legal standards applicable to societies transformed by modernity.

Case Study

Rylands v. Fletcher: The early history of Legal Duty and obligation

Readings

  • W N Hohfeld, “Fundamental Jural Relations” in Fundamental Legal Conceptions as Applied in Judicial Reasoning: And Other Legal Essays
  • Leslie Green, Law and Obligations Coleman, Jules, and Scott Shapiro. The Oxford Handbook of Jurisprudence and Philosophy of Law. OUP, 2004.
  • George P. Fletcher, “The domain of causation”, Basic Concepts of Criminal Law, 1998, OUP.
  • Alon Harel, “Theories of Rights” from Golding, Martin P., and William A. Edmundson. 2008. The Blackwell Guide to the Philosophy of Law and Legal Theory. John Wiley & Sons.
  • Martin P. Golding, Responsibility from Golding, Martin P., and William A. Edmundson. 2008. The Blackwell Guide to the Philosophy of Law and Legal Theory. John Wiley & Sons.

Procedural concepts

The second module moves into the domain of procedural concepts.  It begins by examining the distinction between substance and procedure.  Using two critical examples namely,  Miranda rights and the inadmissibility of confessions made to the police,  this module  argues that an understanding of procedural justice is crucial to any engagement with law and politics.

Weeks 6 to 8

  • Substance and Procedure
  • Jurisdiction
  • Procedure/  Procedural justice
  • Procedures established by law/ Due process of Law/ Substantive Due process
  • Limitation

Readings

  • George P. Fletcher, “Substance v. Procedure”, Basic Concepts of Criminal Law, 1998, OUP.
  • Giacinto della Cananea, Due Process of Law Beyond the State: Requirements of Administrative Procedure, 2016, OUP.
  • Shaun McVeigh, Introduction to Jurisprudence of Jurisdiction, 2007, Routledge.

Week 8 & 9: Case Studies

  • Miranda and the right to remain silent
  • Art. 22 of the constitution – Arrest and Preventive Detention
  • Police Confessions and admissibility of evidence

Readings

  • Gary R. Hartman & Roy M. Mersky & Cindy L. Tate, Landmark Supreme Court Cases: The Most Influential Decisions of the Supreme Court of the United States, 2004, Facts on File.
  • Meter, Larry A. Van. 2009. Miranda V. Arizona: The Rights of the Accused. Infobase Publishing.
  • D K Basu v. Union of India
  • J. Kania and J. Fzl Ali’s Opinions in A.K. Gopalan v. State of Tamil Nadu, AIR 1950 SC 27
  • Extract from Maneka Gandhi v. Union of India, [1975] 1 SCR 778

Films

  • 12 Angry Men
  • Reversal of fortune

Criminal law / Evidence concepts

The domain of criminal law is one in which one can most directly witness  the impact of legal concepts upon ideas of liberty as well as culpability.  Using two examples from India namely the reversal of the burden of proof in dowry cases and attempt to commit suicide,  this module will  explore the core ideas that underlie any criminal justice system.

Weeks 10 to 12

  • Harm
  • Punishment and Justification - Intention (actus reus and  mens rea)
  • Evidence/ Proof / Reasonable Doubt (Admissibility, Standards of Proof, Presumptions)

Case Study:

  • The Dowry Debate in India and reversal of presumption and burden of proof
  • Attempt to commit Suicide

Readings

  • Leo Katz, “Criminal Law” in Patterson, Dennis, ed. 2010. A Companion to Philosophy of Law and Legal Theory. Wiley-Blackwell
  • Aileen Kavanagh & John Oberdiek, Punishment from Kavanagh, Aileen, and John Oberdiek. Arguing About Law. Routledge, 2013.
  • Alvin I. Goldman, Legal Evidence from Golding, Martin P., and William A. Edmundson. 2008. The Blackwell Guide to the Philosophy of Law and Legal Theory. John Wiley & Sons.
  • George P. Fletcher, Punishment and Responsibility, from Patterson, Dennis, ed. 2010. A Companion to Philosophy of Law and Legal Theory. Wiley-Blackwell.
  • Standards of Proof , Presumptions, from Farnsworth, Ward. The Legal Analyst: A Toolkit for Thinking about the Law. University of Chicago Press, 2008.

Additional Readings

Pedagogy:

Instructional design

  • The course will be a transacted through lectures and case studies. Each module will look at the historical context of the emergence of a concept as well as its development and growth through judicial interpretation.
  • Special needs (facilities, requirements in terms of software, studio, lab, clinic, library, classroom/others instructional space; any other – please specify) None​​​​​​​

Expertise in AUD faculty or outside

  • The faculty members at SLGC with training in law are well equipped to teach the course ​​​​​​​
  • Linkages with external agencies (e.g., with field-based organizations, hospital; any others) None
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