This collection of contemporary essays by a group of well-known philosophers and legal theorists covers various topics in the philosophy of law, focusing on issues concerning liability in contract, tort, and criminal law. The book is divided into four sections. The first provides a conceptual overview of the issues at stake in a philosophical discussion of liability and responsibility. The second, third, and fourth sections present, in turn, more detailed explorations of the roles of notions of liability and responsibility in (...) contracts, torts, and punishment. The collection not only presents some of the most challenging work being done in legal philosophy today, it also demonstrates the interdisciplinary character of the field of philosophy of law, with contributors taking into account recent developments in economics, political science, and rational choice theory. This thought-provoking volume will help to shed light on the underexplored ground that lies between law and morals. (shrink)
Drug laws -- Justifications of punishment -- Civil disobedience : is there a duty to obey the law? -- Global poverty -- Liberty -- Liberty-limiting principles -- Rights -- Equality and social justice -- Moral relativism -- Utilitarianism -- Kantian moral philosophy -- John Rawls's theory of justice.
In this sense the collection offers a model of how international collaborative work should proceed. The book is the product of a workshop held at the International Institute for the Sociology of Law (IISL) in Onati, Spain.
These essays by leading scholars illustrate the complexity and range of philosophical issues raised by consideration of law and social justice. The contributors to Law and Social Justice examine such broad foundational issues as instrumentalist versus Kantian conceptions of rights as well as such specific problems as the admissibility or inadmissibility of evidence of causation in toxic tort cases. They consider a variety of subjects, including the implications of deliberative democracy for privacy rights, equality as a principle of distributive justice, (...) the paradox of "moral luck," the treatment of intellectual property in China and its roots in Chinese tradition, and the extent to which initial acquisition of goods yields full property rights. Two special sections at the end of the volume discuss the treatment of law and social justice issues in the work of two philosophers: "Wittgenstein and Legal Theory," on the influence of Wittgenstein's thought on legal philosophy, and a discussion of Jules L. Coleman's The Practice of Principle, which concludes with a contribution, "Facts, Fictions, and the Grounds of Law," by Coleman himself. (shrink)
Peter Morton provides in these pages a fundamental critique of the assumptions of positivist jurisprudence and also puts forth an attack on the foundationalism of contemporary legal philosophy. His prime concern is to distinguish between the different fields of law--penal, civil, and public--taking as his starting point a careful analysis of those institutions in a democracy wherein legal language and norms are in fact generated. Offering an original, coherent, and systematic exposition of law in today's society, Morton sheds new light (...) on legal practices and relations by way of a comparison with an ideal type of legal system. (shrink)
Unlike other works in philosophy of law, which focus on the nature of law in the abstract, this comprehensive anthology presents law as a "process," part and parcel of a system of government and defined constitutional procedures. Using the U.S. legal system as a model, it establishes the basis of law in political theory, then presents substantive issues in private and public law, illustrated throughout with important political documents and court cases and stimulating readings in history, law, and philosophy. The (...) editor's detailed critical commentary, notes, and study questions make these materials accessible and useful for a wide range of readers seeking a deeper understanding of private and public law and the nature of the political process. (shrink)
This new book argues that at the core of legal philosophy’s principal debates there is essentially one issue judicial impartiality. Keeping this issue to the forefront,Raban’s approach sheds much light on many difficult and seemingly perplexing jurisprudential debates. Modern Legal Theory and Judicial Impartiality.
This new book takes an innovative and novel approach to the study of jurisprudence. Drawing together a range of specialists, making original contributions, it provides a summary, analysis, and critique of basic themes in, and major contributions to, the study of jurisprudence. The book explores issues and ideas in jurisprudence in a way that integrates them with legal study more broadly, avoiding the tendency in recent years for the subject to become overly inward-looking, specialist and technical, leaving students and the (...) subject adrift. It picks up mid-range concepts such as rights, sovereignty, and adjudication and charts their interrelation and uses in law and legal theory. The approach taken to the subject is an interdisciplinary one, and involves making linkages with contemporary issues in political and social theory, such as the changing role of the state, forms of dispute resolution and the courts. It also addresses topics not normally covered, or covered only indirectly in other jurisprudence textbooks, such as globalisation and legal culture. Its coverage is therefore broad and links legal, political, philosophical, and social analysis. (shrink)
The province of jurisprudence compromised -- The province of jurisprudence revisited -- The provinciality of jurisprudence determined -- The morality of jurisprudence determined -- The province of jurisprudence pre-determined -- The province of jurisprudence moralised -- The province of jurisprudence re-generated -- The province of the judiciary democratised -- The experimental province of democracy determined.
This book addresses three major questions about law and legal systems: (1) What are the defining and organizing forms of legal institutions, legal rules, interpretive methodologies, and other legal phenomena? (2) How does frontal and systematic focus on these forms advance understanding of such phenomena? (3) What credit should the functions of forms have when such phenomena serve policy and related purposes, rule of law values, and fundamental political values such as democracy, liberty, and justice? This is the first book (...) that seeks to offer general answers to these questions and thus gives form in the law its due. The answers not only provide articulate conversancy with the subject but also reveal insights into the nature of law itself, the oldest and foremost problem in legal theory and allied subjects. (shrink)
Are propositions of law true or false? If so, what does it mean to say that propositions of law are true and false? This book takes up these questions in the context of the wider philosophical debate over realism and anti-realism. Despite surface differences, Patterson argues that the leading contemporary jurisprudential theories all embrace a flawed conception of the nature of truth in law. Instead of locating that in virtue of which propositions of law are true, Patterson argues that lawyers (...) use forms of argument to show the truth of propositions of law. Additionally, Patterson argues that the realism/anti-realism debate in jurisprudence is part of a larger argument over the role of postmodernism in jurisprudence. For this, Patterson offers an analytic account of postmodernism and charts its implications for legal theory. This book will be of interest to those in legal theory, philosophy, social and political theory, and ethics. (shrink)
This book challenges the usual introductions to the study of law. It argues that law is inherently political and reflects the interests of the few even while presenting itself as neutral. It considers law as ideology and as politics, and critically assesses its contribution to the creation and maintenance of a globalised and capitalist world. The clarity of the arguments is admirably suited to provoking discussions of the role of law in our contemporary world. The third edition provides contemporary examples (...) to sustain the arguments in their relevance to the 21st century. The book includes an analysis of the common sense of law; the use of anthropological examples to gain external perspectives of our use and understanding of law; a consideration of central legal concepts, such as order, rules, property, dispute resolution, legitimation and the rule of law; an examination of the role of law in women's subordination; and finally a critique of the effect of our understanding of law upon the wider world. This book is ideal for undergraduate and postgraduate students reading law. (shrink)
In this challenging collection of new essays, leading philosophers and criminal lawyers from the United States, the United Kingdom, and Canada break with the tradition of treating the philosophical foundations of criminal law as an adjunct to the study of punishment. Focusing clearly on the central issues of moral luck, mistake, and mental illness, this volume aims to reorient the study of criminal law. In the process of retrieving valuable material from traditional law classifications, the contributors break down false associations, (...) reveal hidden truths, and establish new patterns of thought. Their always illuminating and sometimes startling conclusions makes this essential reading for all those interested in the philosophy of criminal law. (shrink)
When accidents occur and people suffer injuries, who ought to bear the loss? Tort law offers a complex set of rules to answer this question, but up to now philosophers have offered little by way of analysis of these rules. In eight essays commissioned for this volume, leading legal theorists examine the philosophical foundations of tort law. Amongst the questions they address are the following: how are the notions at the core of tort practice (such as responsibility, fault, negligence, due (...) care, and duty to repair) to be understood? Is an explanation based on a conception of justice feasible? How are concerns of distributive and corrective justice related? What amounts to an adequate explanation of tort law? This collection will be of interest to professionals and advanced students working in philosophy of law, social theory, political theory, and law, as well as anyone seeking a better understanding of tort law. (shrink)
This is a lucid and comprehensive introduction to, and critical assessment of, Ronald Dworkin's seminal contributions to legal and political philosophy. His theories have a complexity, originality, and moral power that have excited a wide range of academic and political thinkers, and even those who disagree with him acknowledge that his ideas must be confronted and given serious consideration. His enormous output of books and papers and his formidable profusion of lectures and seminars throughout the world, in addition to his (...) teaching duties at Oxford and New York University, have made him a giant figure in contemporary thought. In short, Dworkin's theory of law is that the nature of legal argument lies in the best moral interpretation of existing social practices. His theory of Justice is that all political judgements ought to rest ultimately upon the injunction that people are equal as human beings, irrespective of the circumstances in which they are born. Dworkin does not fit into an orthodox category. his theory of law is radical in that it sees legal argument primarily about rights yet conservative in seeing it as constrained by history. He is libertarian both in valuing ambition and in asserting a right to pornography, yet socialist in believing that no person has a right to a greater share of resources than anyone else. in particular, he advocates a system that would tax people on the resources they accumulate solely through their talent alone. Because Dworkin writes for a number of audiences - sometimes the general public, sometimes academic lawyers, sometimes philosophers and economists - it is often difficult to identify the different strands of his thought. The book aims to make his theories clear and accessible and to give an overall picture of his thinking that is sympathetic yet rigorously argued. (shrink)
This new edition of Jurisprudence brings the book fully up to date and incorporates the following new topics: Utilitarianism, Scandinavian realism, Feminism, Liberalism, the New Critics, and the Hart v Dworkin debate. It also includes a separate chapter on Dworkin's Law's Empire, and the previous chapter on Rights has been substantially revised, to make this a useful and highly readable addition to the student's library.
Does the seller of a house have to tell the buyer that the water is turned off twelve hours a day? Does the buyer of a great quantity of tobacco have to inform the seller that the military blockade of the local port, which had depressed tobacco sales and lowered prices, is about to end? Courts say yes in the first case, no in the second. How can we understand the difference in judgments? And what does it say about whether (...) the psychiatrist should disclose to his patient's girlfriend that the patient wants to kill her? Kim Lane Scheppele answers the question, Which secrets are legal secrets and what makes them so? She challenges the economic theory of law, which argues that judges decide cases in ways that maximize efficiency, and she shows that judges use equality as an important principle in their decisions. In the course of thinking about secrets, Scheppele also explores broader questions about judicial reasoning--how judges find meaning in legal texts and how they infuse every fact summary with the values of their legal culture. Finally, the specific insights about secrecy are shown to be consistent with a general moral theory of law that indicates what the content of law should be if the law is to be legitimate, a theory that sees legal justification as the opportunity to attract consent. This is more than a book about secrets. It is also a book about the limits of an economic view of law. Ultimately, it is a work in constructive legal theory, one that draws on moral philosophy, sociology, economics, and political theory to develop a new view of legal interpretation and legal morality. (shrink)
Margaret Gilbert offers an incisive new approach to a classic problem of political philosophy: when and why should I do what the law tells me to do? Do I have special obligations to conform to the laws of my own country and if so, why? In what sense, if any, must I fight in wars in which my country is engaged, if ordered to do so, or suffer the penalty for law-breaking the law imposes - including the death penalty? Gilbert's (...) accessible book offers a provocative and compelling case in favour of citizens' obligations to the state, while examining how these can be squared with self-interest and other competing considerations. (shrink)
The emergence of private authority has become a feature of the post-Cold War world. The contributors to this volume examine the implications of this erosion of the power of the state for global governance. They analyse actors as diverse as financial institutions, multinational corporations, religious terrorists and organised criminals. The themes of the book relate directly to debates concerning globalization and the role of international law, and will be of interest to scholars and students of international relations, politics, sociology and (...) law. (shrink)
The Concept of Law is the most important and original work of legal philosophy written this century. First published in 1961, it is considered the masterpiece of H.L.A. Hart's enormous contribution to the study of jurisprudence and legal philosophy. Its elegant language and balanced arguments have sparked wide debate and unprecedented growth in the quantity and quality of scholarship in this area--much of it devoted to attacking or defending Hart's theories. Principal among Hart's critics is renowned lawyer and political philosopher (...) Ronald Dworkin who in the 1970s and 80s mounted a series of challenges to Hart's Concept of Law. It seemed that Hart let these challenges go unanswered until, after his death in 1992, his answer to Dworkin's criticism was discovered among his papers. In this valuable and long-awaited new edition Hart presents an Epilogue in which he answers Dworkin and some of his other most influential critics including Fuller and Finnis. Written with the same clarity and candor for which the first edition is famous, the Epilogue offers a sharper interpretation of Hart's own views, rebuffs the arguments of critics like Dworkin, and powerfully asserts that they have based their criticisms on a faulty understanding of Hart's work. Hart demonstrates that Dworkin's views are in fact strikingly similar to his own. In a final analysis, Hart's response leaves Dworkin's criticisms considerably weakened and his positions largely in question. Containing Hart's final and powerful response to Dworkin in addition to the revised text of the original Concept of Law, this thought-provoking and persuasively argued volume is essential reading for lawyers and philosophers throughout the world. (shrink)
Ian Ward argues that through a closer appreciation of the ethical and aesthetical dimensions of terror, as well as the historical, political and cultural, we can better comprehend modern expressions and experiences of terrorism.
This book addresses conflicts involving how law relates normative orders. The assumption behind the book is that law no longer automatically claims supremacy, but that actors can pick and choose which code to follow.
This book explores the thesis that legal roles force people to engage in moral combat, an idea which is implicit in the assumption that citizens may be morally required to disobey unjust laws, while judges may be morally required to punish citizens for civil disobedience. Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids. The 'role-relative' understanding of morality is shown to be incompatible with both consequentialist and deontological moral philosophies. In the (...) end, Hurd shows that our best moral theory is one which never makes one actor's moral success turn on another's moral failure. Moral Combat is a sophisticated, well-conceived and carefully argued book on a very important and controversial topic at the junction between legal and political philosophy. It will be of interest to moral, legal, and political philosophers, as well as teachers and students of professional ethics in law. (shrink)
Do citizens have an obligation to obey the law? This book differs from standard approaches by shifting from the language of obedience (orders) to that of deference (normative judgments). The popular view that law claims authority but does not have it is here reversed on both counts: Law does not claim authority but has it. Though the focus is on political obligation, the author approaches that issue indirectly by first developing a more general account of when deference is due to (...) the view of others. Two standard practices that political theorists often consider in exploring the question of political obligation - fair-play and promise-keeping - can themselves be seen as examples of a duty of deference. In this respect the book defends a more general theory of ethics whose scope extends beyond the question of political obligation to questions of duty in the case of law, promises, fair play and friendship. (shrink)
This book undermines privacy scepticism, proving a strong theoretical foundation for many of our everyday and legal privacy claims. Inness argues that intimacy is the core of privacy, including privacy appeals in tort and constitutional law. She explores the myriad of debates and puts forth an intimacy and control-based account of privacy which escapes these criticisms.
This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.
This collection of essays by one of America's leading legal theorists is unique in its scope: it shows how traditional problems of philosophy can be understood more clearly when considered in terms of law, economics, and political science.
Recent work in artificial intelligence has increasingly turned to argumentation as a rich, interdisciplinary area of research that can provide new methods related to evidence and reasoning in the area of law. Douglas Walton provides an introduction to basic concepts, tools and methods in argumentation theory and artificial intelligence as applied to the analysis and evaluation of witness testimony. He shows how witness testimony is by its nature inherently fallible and sometimes subject to disastrous failures. At the same time such (...) testimony can provide evidence that is not only necessary but inherently reasonable for logically guiding legal experts to accept or reject a claim. Walton shows how to overcome the traditional disdain for witness testimony as a type of evidence shown by logical positivists, and the views of trial sceptics who doubt that trial rules deal with witness testimony in a way that yields a rational decision-making process. (shrink)
Natural law as fact, theory, and sign of contradiction -- The second tablet project -- The mystery of what? -- The natural, the connatural, and the unnatural -- Accept no imitations: natural law vs. naturalism -- Thou shalt not kill . . . whom? the meaning of the person -- Capital punishment: the case for justice -- Constitution vs. constitutionalism -- Constitutional metaphysics -- The liberal, illiberal religion.