Jurisprudence

Assignment

Question

How could Ghosh respond to the critique provided by Zurn in Judicial review, constitutional juries and civic constitutional fora: Rights, democracy and law (forthcoming) Theoria? How persuasive would that response be?

In answering this question, you should confine your answer to prescribed material for topics 3 to 5. You must also follow the advice given in the Study Guide on the assignment, noting its reference to penalties. You should also follow any further advice on the question provided in lecture notes.

Some advice on the assignment

As a reflective essay, this question is targeted at prescribed reading and lecture notes. In relation to Moodle discussion of the assignment, keep in mind that students are being assessed individually.

Why have I set this question? I am particularly interested in setting questions which require students to reflect on primary material, rather than synthesising or drawing on secondary material. An advantage of this question is that there is no discussion of it available on the web. Zurn s article is, of course, a recent one. It has in fact now appeared in Theoria, but you should use the reference I provided in the question. The actual published version came out too late for inclusion in the resource book, and I did not want a different version appearing in e-reserve, since it is paginated differently. If you downloaded the reading before 15 February from e-reserve, please download it again. I only discovered then that the library had uploaded the published version of the article.
I also like to set questions that require evaluation of competing positions. In this unit, there are oppositions, for instance, between Hart and Dworkin, Dworkin and Altman, Dworkin and Waldron, and Singer and Nozick. The questions require the evaluation of competing arguments. Each year, I set a different question, so that students cannot be advantaged by having access to a previous assignment. This increasingly requires one or two new topics each year.

Last year, students engaged with Dworkin versus Raz on civil disobedience. This year, I have replaced those topics with the single topic of Democracy and constitutionalism . This, along with removing the Topic 2 Jurisprudence © “ Eric Ghosh, UNE 20
material by Peter Singer on third-world aid, has reduced the unit so as to fit within the shorter teaching period.

When I studied Jurisprudence at Sydney University as an undergraduate with Wojciech Sadurski, I enjoyed engaging critically with his theory of justice as part of the assessment. I hope you too enjoy engaging with the ideas in this topic. This question is not, of course, about second-guessing me. The focus is on the two articles. I will not provide the markers with my views. The larger part of the task is to consider Zurn s article from the standpoint suggested by my article. You can expect a weighting which will be roughly as follows: explanation of Ghosh s arguments (20%), explanation of Zurn s critique of Ghosh (20%), articulation of the most persuasive response that could be provided by Ghosh (30%), persuasiveness of that response (10%), introduction and conclusion (10%) and presentation and referencing (10%). On the issue of persuasiveness, you are, of course, free to pursue the line that the response you have articulated, while being the best available, can be persuasively rebutted. I do not know, nor do you, what position your markers might personally take. They are, of course, charged with assessing the cogency of your arguments, not their consistency with their own personal views.

The original marking of assignments will be by external markers, with the unit coordinator doublemarking fails and standardising. As the Study Guide indicates, the markers will need several weeks to mark. It can easily take 40 minutes or more to mark each assignment and provide extensive comments. With trimesterisation, students will find that they receive their assignments back closer to the exams than in the past. I am anticipating week 11. However, the exam essay questions will not cover topic 5.

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