This book examines the central questions concerning the duty to obey the law: the meaning of this duty; whether and where it should be acknowledged; and whether and when it should be disregarded. Many contemporary philosophers deny the very existence of this duty, but take a cautious stance toward political disobedience. This 'toothless anarchism', Professor Gans argues, should be discarded in favour of a converse position confirming the existence of a duty to obey the law which can be outweighed by (...) values and principles of political morality. Informed by the Israeli experience of political disobedience motivated by radically differing moral outlooks, the author sets out the principles which should guide our attitude to law and political authority even amidst clashing ideologies and irreconcilable moralities. This book will be of interest to students and scholars of law, philosophy and politics, and anyone concerned with the individual's responsibilties toward his or her political community. (shrink)
The specialised vocabularies of lawyers, ethicists, and political scientists obscure the roots of many real disagreements. In this book, the distinguished American international lawyer Alfred Rubin provides a penetrating account of where these roots lie, and argues powerfully that disagreements which have existed for 3,000 years are unlikely to be resolved soon. Current attempts to make 'war crimes' or 'terrorism' criminal under international law seem doomed to fail for the same reasons that attempts failed in the early nineteenth century to (...) make piracy, war crimes, and the international traffic in slaves criminal under the law of nations. And for the same reasons, Professor Rubin argues, it is unlikely that an international criminal court can be instituted today to enforce ethicists' versions of 'international law'. (shrink)
For several decades the work of Joel Feinberg has been the most influential in legal, political, and social philosophy in the English-speaking world. This volume honours that body of work by presenting fifteen original essays, many of them by leading legal and political philosophers, that explore the problems that have engaged Feinberg over the years. Amongst the topics covered are issues of autonomy, responsibility, and liability. It will be a collection of interest to anyone working in moral, legal, or political (...) philosophy. (shrink)
This new edition of a standard reference of jurisprudence has been fully revised. Many recent developments which touch on the relationship of laws to morals--homosexuality, obscenity, suicide, and abortion--are discussed, together with controversial economic aspects of modern legislation on such as topics as restrictive trade practices and trade unions.
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)
This work is a controversial collection of interrelated papers investigating and arguing about issues of concern to lawyers and politicians today. MacCormick combines a scholarly concern with leading thinkers such as John Locke, Lord Stair, Adam Smith and David Hume, John Rawls, Ronald Dworkin, and Patrick Atiyah, and stringently argued view of questions of political obligation, civil liberty, and legal rights.
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)
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)
Powerful emotion and pursuit of self-interest have many times led people to break the law with the belief that they are doing so with sound moral reasons. This study is a comprehensive philosophical and legal analysis of the gray area in which the foundations of law and morality clash. This objective book views these oblique circumstances from two perspectives: that of the person who faces a possible conflict between the claims of morality and law and must choose whether or not (...) to obey the penal code; and that of the people who make and uphold laws and must decide whether to treat someone with a moral claim to disobey differently from ordinary lawbreakers. In examining the extent of the obligations owed by citizens to their government, Greenawalt concentrates on the possible existence of a single source of obligation that reaches all citizens and all laws. He also discusses techniques of amelioration of punishment for conscientious lawbreakers, asking how far legal systems should go to accomodate individuals who break the law for reason of conscience. Drawing from numerous examples of conflicts between law and morality, Greenawalt illustrates in detail the positions and predicaments of potential lawbreakers and lawmakers alike. (shrink)
Bijural services as factors of production -- Commentary A on Breton and Salmon -- Commentary B on Breton and Salmon -- The challenge of incomplete law and how different legal systems respond -- Commentary C on Pistor and Xu -- Commentary D on Pistor and Xu -- Coevolution as an influence in the development of legal systems -- Commentary E on Breton and Des Ormeaux -- Commentary F on Breton and Des Ormeaux -- The demand for bijurally trained Canadian lawyers (...) -- Commentary G on Davis and Trebilcock -- Commentary H on Davis and Trebilcock. (shrink)
What is law? Does it have a purpose? What is its relationship with justice? Do we have a moral duty to obey the law? These sorts of questions lie at the heart of jurisprudence. Moreover, every substantive or 'black letter' branch of the law raises questions about its own meaning and function. The law of contract cannot be properly understood without an appreciation of the concepts of rights and duties. The law of tort is directly related to several economic theories (...) of compensation. The criminal law is inextricably linked to philosophies of punishment? Understanding Jurisprudence explores these problems and provides an engaging introduction to the central issues of legal theory. The book navigates the reader through legal philosophy's fundamental concepts, concerns, and controversies. An experienced teacher of jurisprudence and distinguished writer in the field, Professor Wacks adopts an approach that is easy to follow and understand without avoiding the complexities and subtleties of the subject. Students of law, politics, philosophy, and other social sciences will find this an ideal guide to the essential themes of contemporary jurisprudence. Online Resource Centre A free online resource accompanies the book and provides the following resources: Analysis of current controversies of a jurisprudential nature such as current legal and moral controversies and political debates An additional chapter providing guidance and advice on the study of jurisprudence An interactive glossary of key terms relating to legal theory Further reading, including links to full text journal articles Questions and answers Useful Web links to support learning. (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.
This pioneering new book suggests how different traditions of sociological thought can contribute to an understanding of the theory and practice of rights. Rights: Sociological Perspectives provides a sociological treatment of a wide range of substantive issues but without losing sight of key theoretical questions. It considers some varied cases of public intervention, including welfare, caring, mental health provisions, pensions, justice and free speech, alongside the rights issues they raise. Similarly, it examines the question of rights from the point of (...) view of distinctive population groups, such as prisoners and victims, women, ethnic minorities, indigenous peoples, and lesbians and gays. It also contains two specifically theoretical chapters, which provide a critical overview of the existing approaches to the construction and implementation of rights. Rights: Sociological Perspectives offers a diverse and detailed exploration of the contribution sociological thought can make to this increasingly important aspect of social life and will be an invaluable aid to students. (shrink)
In this revised edition, two distinguished philosophers have extended and strengthened the most authoritative text available on the philosophy of law and jurisprudence. While retaining their comprehensive coverage of classical and modern theory, Murphy and Coleman have added new discussions of the Critical Legal Studies movement and feminist jurisprudence, and they have strengthened their treatment of natural law theory, criminalization, and the law of torts. The chapter on law and economics remains the best short introduction to that difficult, controversial, and (...) influential topic.Students will appreciate the careful organization and clear presentation of complicated issues as well as the emphasis on the relevance of both law and legal theory to contemporary society. (shrink)
Privacy is a puzzling concept. From the backyard to the bedroom, everyday life gives rise to an abundance of privacy claims. In the legal sphere, privacy is invoked with respect to issues including abortion, marriage, and sexuality. Yet privacy is surrounded by a mire of theoretical debate. Certain philosophers argue that privacy is neither conceptually nor morally distinct from other interests, while numerous legal scholars point to the apparently disparate interests involved in constitutional and tort privacy law. By arguing that (...) intimacy is the core of privacy, including privacy law, Inness undermines privacy skepticism, providing a strong theoretical foundation for many of our everyday and legal privacy claims, including the controversial constitutional right to privacy. (shrink)
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)
Margaret Gilbert offers an incisive new approach to a classic problem of political philosophy: when and why should I do what the laws of my country tell me to do? Beginning with carefully argued accounts of social groups in general and political societies in particular, the author argues that in central, standard senses of the relevant terms membership in a political society in and of itself obligates one to support that society's political institutions. The obligations in question are not moral (...) requirements derived from general moral principles, as is often supposed, but a matter of one's participation in a special kind of commitment: joint commitment. An agreement is sufficient but not necessary to generate such a commitment. Gilbert uses the phrase 'plural subject' to refer to all of those who are jointly committed in some way. She therefore labels the theory offered in this book the plural subject theory of political obligation. The author concentrates on the exposition of this theory, carefully explaining how and in what sense joint commitments obligate. She also explores a classic theory of political obligation --- actual contract theory --- according to which one is obligated to conform to the laws of one's country because one agreed to do so. She offers a new interpretation of this theory in light of a theory of plural subject theory of agreements. She argues that actual contract theory has more merit than has been thought, though the more general plural subject theory is to be preferred. She compares and contrasts plural subject theory with identification theory, relationship theory, and the theory of fair play. She brings it to bear on some classic situations of crisis, and, in the concluding chapter, suggests a number of avenues for related empirical and moral inquiry. Clearly and compellingly written, A Theory of Political Obligation will be essential reading for political philosophers and theorists. (shrink)
The work of Jürgen Habermas has long been regarded as central to the development of social and political theory and philosophy in the late 20th century. With the publication of his latest book Between Facts and Norms, Habermas has signalled the importance of exploring modern legal theory to our understanding of democratic society. Habermas, Modernity, and Law brings together leading scholars from around the world to provide a clear introduction to this key development in Habermas's work. With chapters ranging from (...) the possibility of valid law to discourse ethics and human rights, the contributors successfully integrate a broad range of Habermas's writings with his most recent thoughts on the place of the law in contemporary theory. Habermas, Modernity, and Law provides a fascinating overview to the work of Habermas and will be particularly valuable to students and professionals in the fields of European philosophy and social, political, and legal theory. (shrink)
Contemporary liberal thinkers commonly suppose that there is something in principle unjust about the legal prohibition of putatively victimless crimes. Here Robert P. George defends the traditional justification of morals legislation against criticisms advanced by leading liberal theorists. He argues that such legislation can play a legitimate role in maintaining a moral environment conducive to virtue and inhospitable to at least some forms of vice. Among the liberal critics of morals legislation whose views George considers are Ronald Dworkin, Jeremy Waldron, (...) David A.J. Richards, and Joseph Raz. He also considers the influential modern justification for morals legislation offered by Patrick Devlin as an alternative to the traditional approach. George closes with a sketch of a "pluralistic perfectionist" theory of civil liberties and public morality, showing that it is fully compatible with a defense of morals legislation. Making Men Moral will interest legal scholars and political theorists as well as theologians and philosophers focusing on questions of social justice and political morality. (shrink)
The Proliferation of Rights explores how the assertion of rights has expanded dramatically since World War II. Carl Wellman illuminates for the reader the historical developments in each of the major categories of rights, including human rights, civil rights, women’s rights, patient rights, and animal rights. He concludes by assessing where this proliferation has been legitimate and helpful, cases where it has been illusory and unproductive, and alternatives to the appeal to rights.
Aquinas and the idea of law -- Aquinas on criminal culpability -- Crimes against the person -- Aquinas on sexual offenses -- Aquinas on property offenses -- Offenses involving judicial process -- Aquinas on offenses against public morality -- Law, justice, sentencing and punishment.
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)
Why is American punishment so cruel? While in continental Europe great efforts are made to guarantee that prisoners are treated humanely, in America sentences have gotten longer and rehabilitation programs have fallen by the wayside. Western Europe attempts to prepare its criminals for life after prison, whereas many American prisons today leave their inhabitants reduced and debased. In the last quarter of a century, Europe has worked to ensure that the baser human inclination toward vengeance is not reflected by state (...) policy, yet America has shown a systemic drive toward ever increasing levels of harshness in its criminal policies. Why is America so short on mercy? In this deeply researched, comparative work, James Q. Whitman reaches back to the 17th and 18th centuries to trace how and why American and European practices came to diverge. Eschewing the usual historical imprisonment narratives, Whitman focuses instead on intriguing differences in the development of punishment in the age of Western democracy. European traditions of social hierarchy and state power, so consciously rejected by the American colonies, nevertheless supported a more merciful and dignified treatment of offenders. The hierarchical class system on the continent kept alive a tradition of less-degrading "high-status" punishments that eventually became applied across the board in Europe. The distinctly American, draconian regime, on the other hand, grows, Whitman argues, out of America's longstanding distrust of state power and its peculiar, broad-brush sense of egalitarianism. Low-status punishments were evenly meted out to all offenders, regardless of class or standing. America's unrelentingly harsh treatment of trangressors--this "equal opportunity degradation"-- is, in a very real sense, the dark side of the nation's much vaunted individualism. A sobering look at the growing rift between the United States and Europe, Harsh Justice exposes the deep cultural roots of America's degrading punishment practices. (shrink)
Students of jurisprudence often approach this complex subject with a sense fo fear. This book provides a clear user friendly analysis of the major theories and controversies of jurisprudence. Whilst the subject is presented in sufficient detail for the student to gain an accurate understanding, they will not be left feeling confused and bewildered. The book starts by examining the nature of jurisprudence, then goes on to outline the content, implications and problems of the major legal theories. This third edition (...) has been expanded to include material on Islamic jurisprudence and postmodern legal theory. (shrink)
Modern society takes on a civilized, secular solidity in its rejection of worlds contrary to it, worlds of the savage and the sacred. Yet, as Fitzpatrick shows, these are also worlds intrinsic to modernity itself. It is with the resulting fracture in modernity's self-creation that law now finds its grounds - grounds that match the varieties of modern nation, whether this be the territorially bounded nation or nation as universally oriented in such modes as imperialism, globalism and human rights. Drawing (...) on untapped resources in social theory, Fitzpatrick finds law pivotally placed in and beyond modernity. Being itself of the modern, law takes impetus and identity from modern society. Yet law also extends beyond the modern and, through incorporating elements of savagery and the sacred, it comes to constitute that very society. When placing law in such a crucial position for modernity, Fitzpatrick ranges widely but pointedly from the colonizations of the Americas, through the thought of the European Enlightenment, and engages finally with contemporary arrogations of the 'global'. By extending his work on the origins of modernity, Modernism and the Grounds of Law makes a significant contribution to continuing developments in law and society, legal philosophy, and jurisprudence. (shrink)
Why does the law spurn win-win transactions? -- Things we can't consent to, though no one knows why -- A parable -- Lessons -- The social choice connection -- Why is the law so full of loopholes? -- The irresistible wrong answer -- What is wrong with the irresistible answer? -- The voting analogy -- Turning the analogy into an identity -- Intentional fouls -- Why is the law so either/or? -- The proverbial rigidity of the law -- Line drawing (...) as a matter of life and death -- Why don't we punish all we condemn? -- The undercriminalization problem -- Multicriterial ranking and the undercriminalization problem -- Final thoughts. (shrink)