Readings in the Philosophy of Law / Edition 5

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Overview

This anthology of classical, contemporary, philosophical and legal essays/cases focuses on legal philosophy as its own subject—rather than being a part of social/political philosophy or applied ethics. The essays within this reader focus on how law is organized and the particular philosophical issues that it raises. The book requires students to think through actual debates–many of them still currently in the courts.

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Editorial Reviews

Booknews
Through philosophical and legal essays and an array of legal cases, this collection of readings for an undergraduate course surveys the main philosophical questions concerning law and provides readers with basic conceptual and theoretical tools for analyzing and debating those basic issues. This revised edition (first was 1984) takes account of recent theoretical developments (such as critical legal studies and feminist legal scholarship) and currently controversial issues (such as hate speech and racial bias in sentencing). No index. Annotation c. Book News, Inc., Portland, OR (booknews.com)
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Product Details

  • ISBN-13: 9780205708093
  • Publisher: Pearson
  • Publication date: 11/9/2009
  • Series: MySearchLab Series for Philosophy Series
  • Edition description: New Edition
  • Edition number: 5
  • Pages: 656
  • Sales rank: 332,853
  • Product dimensions: 7.00 (w) x 9.00 (h) x 1.30 (d)

Meet the Author

John Arthur, professor of philosophy and director of the Program in Philosophy, Politics, and Law at Binghamton University, died of cancer in January 2007. He was the author of The Unfinished Constitution: Philosophy and Constitutional Practice (Wadsworth 1989), Words That Bind: Judicial Review and the Grounds of Modern Constitutional Theory (Westview 1995), and Race, Equality, and the Burdens of History (Cambridge 2007), among other works. He edited the widely used ethics anthology, Morality and Moral Controversies (Prentice-Hall), now in its 9th edition.

William H. Shaw is professor of philosophy at San Jose State University. He is the author of Marx’s Theory of History (Stanford 1978), Moore on Right and Wrong: The Normative Ethics of G. E. Moore (Kluwer 1995), Contemporary Ethics: Taking Account of Utilitarianism (Blackwell 1999), and Business Ethics (Wadsworth, 6th ed. 2008). He has edited several volumes, including (with John Arthur), Justice and Economic Distribution (Prentice-Hall, 2nd ed. 1994).

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Read an Excerpt

PREFACE:

PREFACE

We have been gratified by the reception that the first two editions of Readings in the Philosophy of Law have received. Each edition went through several printings, and many friends and colleagues have written to offer comments and suggestions. Like its predecessors, this new edition reflects the conviction that legal philosophy is its own subject, best approached by paying attention to how the law is organized and to the particular issues it raises. The book is, therefore, not a book in applied ethics, nor one in political philosophy; it is its own subject with its own fascinating set of problems.

This text can be used in many different ways. It is designed so that each section stands on its own, enabling instructors to address the topics in any order and to skip certain topics if they wish. Readers familiar with the earlier editions will find in the third edition much continuity in the themes and issues treated. Believing it to be the soundest organizational structure, we continue to follow the traditional divisions among different fields of law. Initial sections on legal practice, legal reasoning, and the nature of law are followed by discussions of criminal, tort, contract, property, and constitutional law. These make up the major subdivisions in the book.

We have also expanded and redefined the early sections to deal with an array of topics either ignored or inadequately covered in other texts. In particular, we found it useful to begin undergraduate courses in philosophy of law with discussions of legal practice, the adversary system, the rule of law, obedience to law, and legal reasoning. Many philosophy of lawstudents plan to attend law school, so these topics are a natural way to introduce them to the subject. We have been especially careful in selecting this introductory material to use readings that are accessible and interesting to discuss. The introductory section, "The Practice of Law," brings together four widely different viewpoints on the role and responsibilities of lawyers in an adversary system, while the readings on the rule of law focus on the practical problem of how to deal legally with people who worked with a previous, Nazi-like regime.

Readers will also notice many other new topics and essays in this edition. Part II, "The Nature of Law," now includes greatly expanded discussions of "Law and Economics" as well as "Critical Legal Theory and Feminist jurisprudence." Material on criminal law now includes an essay on the O. J. Simpson trial, jury nullification, and racial politics, along with readings on the battered woman's defense and the cultural defense in criminal cases. Part V, on constitutional law, has also been revised and expanded. It now includes more focused discussions of the justification of judicial review and the nature of constitutional interpretation, as well as an essay comparing the American understanding of constitutionalism with that of the French and British. We have added an essay and cases on religious freedom. The last section, "Equality and the Constitution," begins with two new essays on the ideal of equality itself; it also includes new cases on sexual harassment and hate speech.

While seeking to present the readings in a coherent and interrelated format, we have at the same time sought to provide a textbook with ample resources to allow a variety of different courses to be taught, in different ways, and to different student audiences. These and related editorial decisions grow out of our experience in teaching courses in philosophy of law at several colleges and universities, both private and public, to undergraduates with varying degrees of philosophical background and academic preparedness. One of us teaches philosophy of law to more than two hundred mainly lower-level students each year.

Philosophy of law is not a subject that can be made simple, but it can be made more accessible and more engaging to undergraduates than it has been in the past. Accordingly, we have endeavored to provide readings that students will find stimulating, yet that do justice to the subtlety and complexity of the philosophical problems in this field. We provide short introductions before each reading selection, and questions for review and discussion after each selection. These should enable even beginning students to follow the major arguments, at least in broad outline. In addition, we have edited the essays and cases with great care and abridged many of the readings from the previous edition in order to keep the focus sharply on the most relevant and important issues, avoiding needless technicality, immaterial digressions, and recondite issues.

John Arthur
William H. Shaw

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Table of Contents

I. LAW IN ACTION.

1. The Adversary System and the Practice of Law.

Lawyers' Ethics in an Adversary System, Monroe H. Freedman.

An Alternative to the Adversary System, John H. Langbein.

Pure Legal Advocates and Moral Agents: Two Concepts of a Lawyer in an Adversary System, Elliot D. Cohen. [new]

2. The Rule of Law.

Rule of Law and the English Constitution, A.V. Dicey. [new]

Eight Ways to Fail to Make Law, Lon Fuller.

The Rule of Law and Its Virtues, Joseph Raz.

Grudge Informers and the Rule of Law, H.L.A. Hart.

The Problem of the Grudge Informer, Lon Fuller.

Detention of Enemy Combatants, Hamdi v. Rumsfeld. [new]

3. The Moral Force of Law.

Crito, Plato.

The Justification of Civil Disobedience, John Rawls.

On Not Prosecuting Civil Disobedience, Ronald Dworkin.

II. LEGAL REASONING.

4. Statutes.

Interpreting the Adultery Clause of the Ten Commandments, Sanford Levinson.

Interpreting the Small Bird Act, Regina v. Ojibway.

A Case Study: Interpreting the Mann Act, Edward H. Levi.

Cases Interpreting the Mann Act, Caminetti v. U.S.; Mortensen v. U.S.; and Cleveland v. U.S.

Interpretation, Tony Honore.

Who is a Drunk Driver? Kentucky v. Whitt.

What is a Vegetable? Nix v. Hadden.

“Use” of a Firearm, Smith v. U.S. [new]

Can a Murderer Inherit? Riggs v. Palmer.

5. Precedents.

Stare Decisis: The Use of Precedent, C. Gordon Post.

Constrained by Precedent, Larry Alexander.

Precedent and Ligitimacy, Planned Parenthood v. Casey.

6. Constitutional Interpretation [new section and readings]

“Vague” Constitutional Clauses, Ronald Dworkin.

Due Process, Rochin v. California

Interpreting the Constitution, Antonin Scalia.

A Response to Scalia, Ronald Dworkin.

The Second Amendment, District of Columbia v Heller.

Defense of Looseness: The Supreme Court and Gun Control, Richard A. Posner.

III. THE NATURE OF LAW

7. Natural Law and Legal Positivism: Classical Perspectives.

Traditional Natural Law Theory, Bix.

Natural Law: Summa Theologica, Thomas Aquinas.

Natural Law: Blackstone’s Commentaries, William Blackstone.

Legal Positivism, John Austin.

8. Formalism and Legal Realism.

The System of Law, Joseph H. Beale.

The Path of the Law, Oliver Wendell Holmes.

Realism and the Law, Jerome Frank.

9. Morality and the Law.

Positivism and Separation of Law and Morals, H. L.A.Hart.

Law as the Union of Primary and Secondary Rules, H.L.A. Hart.

The Model of Rules, Ronald Dworkin.

“Natural” Law Revisited, Ronald Dworkin.

The Dependence of Morality on Law, Tony Honore.

10. International Law.

International Law, H.L.A. Hart.

The African Slave Trade, U.S. v. La Jeune Eugenie; The Antelope; The Armistad.

International Law and Individual Responsibility, The International Military Tribunal at Nuremberg.

11. Law and Economics [new section]

The Economic Approach to Law, Richard A. Posner.

Law and Economics: An Analysis and Critique, Andrew Altman.

IV. PHILOSOPHICAL ISSUES IN CRIMINAL LAW.

12. The Justification of Punishment.

Who Should Be Punished? The Case of the Dog Provetie.

The Utilitarian Theory of Criminal Punishment, Richard B. Brandt.

Persons and Punishment, Herbert Morris.

The Message of Punishment, Jean Hampton.

Restitution: A New Paradigm of Criminal Justice, Randy E. Barnett.

13. The Rights of Defendants.

Criminal Justice and the Negotiated Plea, Kenneth Kipnis.

Convicting the Innocent, James McCloskey.

The Dirty Harry Problem, Carl B. Klockars.

A Debate on the Exclusionary Rule, Malcolm Richard Wilkey and Stephen H. Sachs.

Interrogation and the Right to Counsel: Miranda v. Arizona, Brewer v. Williams, and Rhode Island v. Innis.

Entrapment, United States v. Tobias.

14. Sentencing.

Capital Punishment, Gregg v. Georgia.

Electric Shock: The Fairest Punishment of All, Graeme Newman.

Racial Bias in Sentencing, McClesky v. Kemp.

Three Strikes, Rummell v. Estelle.

15. Criminal Responsibility.

Survival on a Lifeboat, The Queen v. Dudley and Stephens.

The Principles of Criminal Law, Richard B. Brandt.

Intention, H.L.A. Hart.

Attempting the Impossible: The Crime That Never Was, Leo Katz.

Drunkenness, People v. Koerber. [new]

Rape, Consent and Mens Rea, Regina v. Morgan. [new]

The Battered Woman Syndrome, State v. Leidholm.

Rape, Force, and Consent, Susan Estrich.

Is the Insanity Defense Insane? R.J. Gerber.

What Is So Special about Mental Illness? Joel Feinberg.

Executing Mentally Retarded Murderers, Atkins v. Virginia.

V. PHILOSOPHICAL ISSUES IN CIVIL LAW.

16. Compensating for Private Harms: The Law of Torts.

The Efficiency of the Common Law, Andrew Altman.

Negligence, William Prosser.

Economic Efficiency and the “Hand Formula,” U.S. v. Carroll Towing Company.

Foreseeable Risk, Stone v. Bolton.

Tort Liability and Corrective Justice, Jeffrie G. Murphy and Jules L. Coleman.

Negligence and Due Care: Palsgraf v. Long Island Railroad Co.

Loss, Agency, and Responsibility for Outcomes, Stephen R. Perry.

Liability without Causation? Summers v. Tice.

Legal Causation and the Desert Traveler, Amy Shapiro.

A Duty to Rescue? Yania v. Bigan, Farwell v. Keaton, and McFall v. Shimp.

Assessing Damages: Wrongful Life and Wrongful Birth, Berman v. Allan.

17. Private Ownership: The Law of Property.

Property, John Locke.

Property and Sovereignty, Morris Raphael Cohen.

Intellectual Property, Richard A. Posner.

Property Acquisition, Haslem v. Lockwood.

Regulation of Private Property, Pennsylvania Coal Co. v. Mahon.

Eminent Domain, Kelo v. City of New London [new]

18. Private Agreements: the Law of Contract.

The Basis of Contract, Morris Raphael Cohen.

Contract as Promise, Charles Fried.

Unconscionable Contracts, Williams v. Walker-Thomas Furniture Co.

Surrogate Mother Contracts, In the Matter of Baby M.

Employment Contracts, Lochner v. New York; Muller v . Oregon; Coppage v. Kansas; and West Coast Hotel Co. v. Parrish.

VI. PHILOSOPHICAL ISSUES IN CONSTITUTIONAL LAW. [new sections w/ existing material]

19. Church and State.

A Letter Concerning Religious Toleration, John Locke.

School Prayer, Engel v. Vitale.

Religious Freedom and Public Education, Wisconsin v. Yoder.

Secular Humanism and Religious Establishment, Smith v. Board of Education.

20. Personal Liberty and Privacy

On Liberty, John Stuart Mill.

The Right to Privacy, Griswold v. Connecticut.

Homosexuality and the Right to Privacy, Lawrence v. Texas.

Same-Sex Marriage, Goodridge v. Massachusetts Department of Public Health.

Judicial Activism and Gay Marriage: A Debate, Lawrence Tribe and Richard Parker.

21. Personal Liberty and Privacy

Of the Liberty of Thought and Discussion, John Stuart Mill.

Flag Burning, Texas v. Johnson.

Nazi Marches, Village of Skokie v. National Socialist Party.

Obscenity, Paris Adult Theatre v. Slaton.

Free Speech at School, Morse v. Frederick [new]

22. Equality.

Separate but Equal, Plessy v. Fergueson [new]

The Great School Desegregation Case, Brown v. Board of Education. [new]

Wartime Internment of Japanese Americans, Korematsu v. United States.

Racial Equality and Affirmative Action, Ronald Dworkin.

Affirmative Action in Universities, Grutter v. Bollingerand Gratz v. Bollinger. [new]

Gender Discrimination, Michael M. v. Sonoma County Superior Court.

Appendix: The Bill of Rights and the Fourteenth Amendment.

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Preface

We have been gratified by the reception that the first two editions of Readings in the Philosophy of Law have received. Each edition went through several printings, and many friends and colleagues have written to offer comments and suggestions. Like its predecessors, this new edition reflects the conviction that legal philosophy is its own subject, best approached by paying attention to how the law is organized and to the particular issues it raises. The book is, therefore, not a book in applied ethics, nor one in political philosophy; it is its own subject with its own fascinating set of problems.

This text can be used in many different ways. It is designed so that each section stands on its own, enabling instructors to address the topics in any order and to skip certain topics if they wish. Readers familiar with the earlier editions will find in the third edition much continuity in the themes and issues treated. Believing it to be the soundest organizational structure, we continue to follow the traditional divisions among different fields of law. Initial sections on legal practice, legal reasoning, and the nature of law are followed by discussions of criminal, tort, contract, property, and constitutional law. These make up the major subdivisions in the book.

We have also expanded and redefined the early sections to deal with an array of topics either ignored or inadequately covered in other texts. In particular, we found it useful to begin undergraduate courses in philosophy of law with discussions of legal practice, the adversary system, the rule of law, obedience to law, and legal reasoning. Many philosophy of law students plan to attend law school, sothese topics are a natural way to introduce them to the subject. We have been especially careful in selecting this introductory material to use readings that are accessible and interesting to discuss. The introductory section, "The Practice of Law," brings together four widely different viewpoints on the role and responsibilities of lawyers in an adversary system, while the readings on the rule of law focus on the practical problem of how to deal legally with people who worked with a previous, Nazi-like regime.

Readers will also notice many other new topics and essays in this edition. Part II, "The Nature of Law," now includes greatly expanded discussions of "Law and Economics" as well as "Critical Legal Theory and Feminist jurisprudence." Material on criminal law now includes an essay on the O. J. Simpson trial, jury nullification, and racial politics, along with readings on the battered woman's defense and the cultural defense in criminal cases. Part V, on constitutional law, has also been revised and expanded. It now includes more focused discussions of the justification of judicial review and the nature of constitutional interpretation, as well as an essay comparing the American understanding of constitutionalism with that of the French and British. We have added an essay and cases on religious freedom. The last section, "Equality and the Constitution," begins with two new essays on the ideal of equality itself; it also includes new cases on sexual harassment and hate speech.

While seeking to present the readings in a coherent and interrelated format, we have at the same time sought to provide a textbook with ample resources to allow a variety of different courses to be taught, in different ways, and to different student audiences. These and related editorial decisions grow out of our experience in teaching courses in philosophy of law at several colleges and universities, both private and public, to undergraduates with varying degrees of philosophical background and academic preparedness. One of us teaches philosophy of law to more than two hundred mainly lower-level students each year.

Philosophy of law is not a subject that can be made simple, but it can be made more accessible and more engaging to undergraduates than it has been in the past. Accordingly, we have endeavored to provide readings that students will find stimulating, yet that do justice to the subtlety and complexity of the philosophical problems in this field. We provide short introductions before each reading selection, and questions for review and discussion after each selection. These should enable even beginning students to follow the major arguments, at least in broad outline. In addition, we have edited the essays and cases with great care and abridged many of the readings from the previous edition in order to keep the focus sharply on the most relevant and important issues, avoiding needless technicality, immaterial digressions, and recondite issues.

John Arthur
William H. Shaw

Read More Show Less

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