Philosophy of Law: Classic and Contemporary Readings / Edition 1

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Overview

Philosophy of Law provides a rich overview of the diverse theoretical justifications for our legal rules, systems, and practices. The volume introduces the classical questions of philosophy of law as well as new emerging areas of theoretical dispute for legal theorists, philosophers, and lawyers. Providing introductions to all major areas of Anglo-American law, and the major philosophical underpinnings of each of these areas, it also examines questions concerning the theoretical foundation and application of international law.

The text includes seminal essays from the history of philosophy, including works from Thomas Hobbes, John Locke, John Austin, Jeremy Bentham, Immanuel Kant, John Stuart Mill, and others. In addition, many contemporary theorists are included, such as H. L. A. Hart, Ronald Dworkin, Robert Nozick, Richard Posner, Richard Epstein, A. M. Honoré, and Michael Moore, as well as diverse voices from feminism, critical theory, postmodernism, and critical race theory.

By bringing together these different and distinct voices into dialogue, the volume fully represents the philosophical foundations of various areas of law. By exposing students to a wide range of theoretical views, this book challenges students to think critically about law in the US and elsewhere, and between nations.

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Product Details

  • ISBN-13: 9781405183871
  • Publisher: Wiley
  • Publication date: 5/28/2009
  • Series: Blackwell Philosophy Anthologies Series , #18
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 648
  • Sales rank: 496,825
  • Product dimensions: 6.84 (w) x 9.54 (h) x 1.16 (d)

Table of Contents

Preface ix

Source Acknowledgments xii

Introduction 1

Part I Legal Reasoning 5

Introduction 7

1 An Introduction to Legal Reasoning Edward H. Levi 11

2 Remarks on the Theory of Appellate Decision and the Rules or Canons about how Statutes are to be Construed Karl N. Llewellyn 23

3 Formalism Frederick Schauer 32

4 Incompletely Theorized Agreements Cass R. Sunstein 43

5 Custom, Opinio Juris, and Consent Larry May 54

6 Lochner v. New York (1905) 70

Questions 77

Part II Jurisprudence 79

Introduction 81

7 The Concept of Law H. L. A. Hart 85

8 The Model of Rules I Ronald Dworkin 99

9 Law as Justice Michael S. Moore 108

10 The Economic Approach to Law Richard A. Posner 129

11 The Distinction between Adjudication and Legislation Duncan Kennedy 135

12 Critical Race Theory: The Key Writings that Formed the Movement Kimberlé Crenshaw Neil Gotanda Gary Peller Kendall Thomas 145

13 Feminist Legal Critics: The Reluctant Radicals Patricia Smith 152

14 Riggs v. Palmer (1889) 164

Questions 170

Part III International Law 171

Introduction 173

15 International Law H. L. A. Hart 175

16 The Nature of Jus Cogens Mark W. Janis 184

17 A Philosophy of International Law Fernando R. Tesón 187

18 The Limits of International Law Jack L. Goldsmith Eric A. Posner 200

19 The Internal Legitimacy of Humanitarian Intervention Allen Buchanan 209

20 Humanitarian Intervention: Problems of Collective Responsibility Larry May 221

21 Humanitarian Intervention: Some Doubts Burleigh Wilkins 233

22 Prosecutor v. Tadić (1995) 240

Questions 244

Part IV Property 245

Introduction 247

23 Of Property John Locke 251

24 Locke'sTheory of Acquisition Robert Nozick 258

25 Property, Title, and Redistribution A. M. Honoré 263

26 Philosophical Implications Richard A. Epstein 269

27 The Social Structure of Japanese Intellectual Property Law Dan Rosen Chikako Usui 281

28 Historical Rights and Fair Shares A. John Simmons 286

29 International News Service v. Associated Press (1918) 291

Questions 299

Part V Torts 301

Introduction 303

30 Causation and Responsibility H. L. A. Hart A. M. Honoré 307

31 Sua Culpa Joel Feinberg 315

32 Fairness and Utility in Tort Theory George P. Fletcher 322

33 Tort Liability and the Limits of Corrective Justice Jules L. Coleman 330

34 A Theory of Strict Liability Richard A. Epstein 338

35 The Question of a Duty to Rescue in Canadian Tort Law: An Answer From France Mitchell McInnes 348

36 Tarasoff v. Regents of University of California (1976) 356

Questions 362

Part VI Criminal Law 363

Introduction 365

37 On Liberty John Stuart Mill 369

38 The Enforcement of Morals Patrick Devlin 377

39 Crime and Punishment: An Indigenous African Experience Egbeke Aja 384

40 The Mind and the Deed Anthony Kenny 392

41 Between Impunity and Show Trials Martti Koskenniemi 402

42 Atrocity, Punishment, and International Law Mark Drumbl 411

43 Defending International Criminal Trials Larry May 423

44 Opening Statement before the International Military Tribunal (1945) Justice Robert H. Jackson 435

Questions 441

Part VII Contracts 443

Introduction 445

45 Of the First and Second Natural Laws, and of Contracts Thomas Hobbes 449

46 The Practice of Promising P.S. Atiyah 455

47 Contract as Promise Charles Fried 465

48 Legally Enforceable Commitments Michael D. Bayles 479

49 Unconscionability and Contracts Alan Wertheimer 487

50 South African Contract Law: The Need for a Concept of Unconscionability Lynn Berat 500

51 Williams v. Walker-Thomas Furniture Co. (1965) 511

Question 515

Part VIII Constitutional Law 517

Introduction 519

52 Constitutional Cases Ronald Dworkin 523

53 Does the Constitution Mean What It Always Meant? Stephen R. Munzer James W. Nickel 535

54 What's Wrong with Chinese Rights? Toward a Theory of Rights with Chinese Characteristic R. P. Peerenboom 548

55 Poverty and Constitutional Justice: The Indian Experience Jeremy Cooper 569

56 Natural Law: Alive and Kicking? A Look at the Constitutional Morality of Sexual Privacy in Ireland Rory O'Connell 585

57 Peremptory Norms as International Public Order Alexander Orakhelashvili 602

58 The Gender of Jus Cogens Hilary Charlesworth Christine Chinkin 610

59 Plessy v. Ferguson (1896) 620

Question 626

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