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.
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)
Free Speech and the Politics of Identity challenges the scholarly view as well as the dominant legal view outside the United States that the right of free speech may reasonably be traded off in pursuit of justice to stigmatized minorities. The book's innovative normative and interpretative methodology calls for a new departure in comparative public law, in which all states responsibly address their common problems, not only of inadequate protection of free speech, but also correlative failure to take seriously the (...) continuing political power of such evils as anti-Semitism, racism, sexism, and homophobia. (shrink)
Analyzing Law offers an important selection of the most influential and challenging work now being done in legal theory. A central focus of the essays in this work is the contribution of the well-known philosopher Jules Coleman to the various topics which are covered by the contributors.
Jules Coleman, one of the world's leading philosophers of law, here presents his most mature work so far on substantive issues in legal theory and the appropriate methodology for legal theorizing. In doing so, he takes on the views of highly respected contemporaries such as Brian Leiter, Stephen Perry, and Ronald Dworkin.
Echoing the debate about the nature of law that has dominated legal philosophy for several decades, this volume includes essays on the nature of law and on law not as it is but as it should be. Wherever possible, essays have been chosen that have provoked direct responses from other legal philosophers, and in two cases these responses are included. Contributors include H.L.A. Hart, R.M. Dworkin, Lord Patrick Devlin, John Rawls, J.J. Thomson, J. Finnis, and T.M. Scanlon.
Anthills and aardvarks -- The illusion of independence -- The myth of the master species -- Why law and jurisprudence matter -- The conceit of law -- Respecting the great law -- Remembering who we are -- The question of rights -- Elements of Earth governance -- Seeking Earth jurisprudence -- The rhythms of life -- The law of the land -- A communion of communities -- Transforming law and governance -- The mountain path.
The first collection of essays directed towards jurisprudence with a Hegelian theme. The editors are committed to the idea that Hegel is the future source of great energy and insight within the legal academy.
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)
Laws of Postmodernity is the first work of legal scholarship to apply postmodern jurisprudence to an analysis of a number of substantive areas of law. In analyzing the cultural significance of law, the contributors show how critical jurisprudential analysis undermines positivistic attempts to support a normative viewpoint of the legal order. In addition, they criticize contextual, sociological accounts of legal phenomena. The contributors explore blasphemy laws in the wake of the Salman Rushdie affair, and French critical legal theory-- particularly the (...) work of Pierre Legendre--to highlight the repression of psychoanalysis within jurisprudence. Through detailed accounts, Laws of Postmodernity clearly illustrates the practical application and theoretical significance of postmodern jurisprudence. (shrink)
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)
The Law of Evidence has traditionally been perceived as a dry, highly technical, and mysterious subject. This book argues that problems of evidence in law are closely related to the handling of evidence in other kinds of practical decision-making and other academic disciplines, that it is closely related to common sense and that it is an interesting, lively and accessible subject. These essays develop a readable, coherent historical and theoretical perspective about problems of proof, evidence, and inferential reasoning in law. (...) Although each essay is self-standing, they are woven together to present a sustained argument for a broad inter-disciplinary approach to evidence in litigation, in which the rules of evidence play a subordinate, though significant, role. This revised and enlarged edition includes a revised introduction, the best-known essays in the first edition, and new chapters on narrative and argumentation, teaching evidence, and evidence as a multi-disciplinary subject. (shrink)
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)
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)
Karl Llewellyn and the course of philosophy in American law -- Philosophical perspectives on law -- Areas of philosophy and their relationship to law -- Philosophical examinations of legal issues -- Law, rhetoric, and practice theory -- Commentaries-- Questioning the relationship between philosophy and American Law.
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.
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)
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 book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the world. (...) After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a new, unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations. (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.
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)
The purpose of this volume is to rethink the questions posed by Derrida's writings and his unique philosophical positioning, without reference to the catch phrases that have supposedly summed up deconstruction.
Rights have become,in recent years, a significant concern of legal theorists, as well as of those involved in moral and political philosophy. This new book seeks to move a number of debates forward by developing the analysis of rights and focusing upon more general theoretical considerations relating to rights. The book is divided into five parts. The first includes an explanation of the part played by conceptual analysis within jurisprudence, while the second conducts a re-examination of Hohfeld’s analysis of rights. (...) This part deals with the arguments advanced by a number of modern theorists including Hart, White and MacCormick. The third part contains the author’s own framework for discussing rights, including examples drawn from tort, constitutional law and international law, together with an analysis of Unger’s theory of rights. Part four centres on the perceived conflict between Dworkin, Rawls and Nozick as the defenders of a rights approach, and Bentham as the champion of utilitarianism and concludes that neither deals with the fundamental concerns of morality on which their theories are based. The fifth part consists of a conclusion which reflects on the key themes and considers the role of rights within general theory. For students, particularly helpful features of the book are the overt consideration of jurisprudential methodology and the opportunity to examine a number of key theorists linked by their divergent views on the subject of rights. (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 looks at the civil justice system - the courts and what they do; legal aid and other methods of providing access to justice; lawyers and their conduct; and the role of legal procedure. It also looks at the impact the civil justice system has on wider society, and its relationship with economics and commercial development. The book is largely focussed on Britain, but includes material from the USA, the Indian sub-continent, south-east Asia, and Aboriginal society in Australia.
This collection of original essays on the theory of tort law brings together a number of the world's leading legal philosophers and tort scholars to examine the latest thinking about its rationales and current development. The contributions here range from law and economics to the latest in rights-based theories. The ever-engaging topic of causation is the subject of one cluster of essays, while other clusters deal with remedies, with the tort/contract divide, and with strict and other special forms of liability.
Machine generated contents note: Introduction: the celestial voice; 1. Rousseau's concept of law; 2. Agenda-setting and majority rule; 3. Democracy and vote rigging; 4. Popular sovereignty and the republican fear of large assemblies; 5. Enforcing the laws in Poland and Corsica; 6. Judging the laws/when legislation fails; Conclusion: law and liberty; Selected bibliography; Index.
This book examines several key approaches used by courts and legislatures to assess the claims made by minorities for protection of some aspect of their identities such as a cultural or religious practice.