Philosophy of Law Classic and Contemporary Readings with Commentary

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  • Format: Hardcover
  • Copyright: 1995-07-24
  • Publisher: Oxford University Press

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Ideal for undergraduate courses in philosophy of law, this comprehensive anthology examines such topics as the concept of law, the dispute between natural law theorists and legal positivists, the relations between law and morality, criminal responsibility and legal punishment, the rights ofthe individual against the state, justice and equality, and legal evidence as compared with scientific evidence. The readings have been selected from both philosophy and law journals and include classic texts, contemporary theoretical developments, and well-known recent court cases. The textfeatures extensive introductions that make even the most profound writings accessible to undergraduates.

Table of Contents

Each sub-chapter opens with an Introduction and most close with Suggestions for Further Reading Questions for Discussion are integrated throughout 1. WHAT IS LAW? 1.1 THE THEORY OF NATURAL LAW Readings Thomas Aquinas, from Summa Theologiae John Finnis, from Natural Law and Natural Rights Lon Fuller, from The Morality of Law 1.2 LEGAL POSITIVISM Readings John Austin, from The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence H.L.A. Hart, from The Concept of Law 1.3 LEGAL REALISM AND CRITICAL LEGAL STUDIES Readings Karl Llewellyn, from The Bramble Bush, "A Realistic Jurisprudence," and The Common Law Tradition Duncan Kennedy, "Freedom and Constraint in Adjudication: A Critical Phenomenology" 1.4 RONALD DWORKIN AND LAW AS INTEGRITY Readings Ronald Dworkin, from Taking Rights Seriously Ronald Dworkin, from Law's Empire Frederick Schauer, from Playing by the Rules 1.5 CASE STUDY: THE FUGITIVE SLAVE LAWS Readings Paul Finkelman, from Slavery in the Courtroom Excerpt from official report of the case before Chief Justice Lemuel Shaw (Massachusetts) Robert M. Cover, from Justice Accused 2. LEGAL REASONING 2.1 THE INTERPRETATION OF LEGAL TEXTS Readings and Cases Frederick Schauer, "Formalism" Home Building and Loan Association v. Blaisdell Raoul Berger, from Government by Judiciary Robert Bork, from The Tempting of America Paul Brest, "The Misconceived Quest for the Original Understanding" Ronald Dworkin, "Natural Law Revisited" United States v. Locke Richard A. Posner, "Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution" Bray v. Alexandria Women's Health Clinic National Organization for Women v. Scheidler 2.2 REASONING FROM PRECEDENT Readings Cass R. Sunstein, "On Analogical Reasoning" Larry Alexander, "Constrained by Precedent" Cases Donoghue v. Stevenson Planned Parenthood of Southeastern Pennsylvania v. Casey 2.3 CRITICAL PERSPECTIVES ON LEGAL REASONING Readings Jerome Frank, from Law and the Modern Mind Mark Tushnet, "Following the Rules Laid Down" Martha Minow and Elizabeth Spelman, "In Context" Richard Posner, from Economic Analysis of Law 3. THE MORAL FORCE OF LAW 3.1 IS THERE A MORAL OBLIGATION TO OBEY THE LAW? Readings John Rawls, "Legal Obligation and the Duty of Fair Play" A. John Simmons, "The Principle of Fair Play" 3.2 CIVIL DISOBEDIENCE Readings John Rawls, "The Justification of Civil Disobedience" Peter Singer, from Democracy and Disobedience Case Walker v. Birmingham 4. THE STRUCTURE AND CONTENT OF RIGHTS 4.1 THE STRUCTURE OF RIGHTS Readings Joel Feinberg, "The Nature and Value of Rights" Ronald Dworkin, "Hard Cases" Judith Jarvis Thomson, "Some Ruminations on Rights" Case Craig v. Boren 4.2 THE RIGHT TO LIBERTY Readings and Cases The Harm Principle John Stuart Mill, from On Liberty James FitzJames Stephen, from Liberty, Equality, Fraternity Offense Joel Feinberg, from Offense to Others New England Naturist Association v. Larsen Paternalism John Stuart Mill, from On Liberty Gerald Dworkin, "Pater

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