Law and Legal Theory in England and America
Richard Posner is famous throughout the legal world for his pioneering and controversial espousal of the belief that the study of law cannot be divorced from the study of economics. Here, in this volume of essays based upon his Clarendon Lectures, he explores the relationship between the legal systems of the UK and USA. The essays range widely over themes which will be familiar to many students and teachers of law: in the first essay he compares the work of the two most prominent writers on...
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Richard Posner is famous throughout the legal world for his pioneering and controversial espousal of the belief that the study of law cannot be divorced from the study of economics. Here, in this volume of essays based upon his Clarendon Lectures, he explores the relationship between the legal systems of the UK and USA. The essays range widely over themes which will be familiar to many students and teachers of law: in the first essay he compares the work of the two most prominent writers on jurisprudence in the second half of this century, one English (HLA Hart) and one American (Ronald Dworkin). His controversial conclusion that trying to define "law" is futile, distracting and illustrative of the impoverishment of traditional legal theory will fascinate students of legal theory. In the second essay he examines a number of English cases drawn primarily from the two fields in which English and American law overlap most completely - torts and contracts. Here he argues that while in general English judges use their common sense effectively to approximate the results that an economic analyst would recommend they would do even better if they were more receptive to the economic approach to the common law - if they were, in other words, a little more like American judges. In the third essay he examines the differences between the English and American legal systems at the administrative or operational level as distinct from the jurisprudential and doctrinal levels. The conclusions drawn from his analysis challenge traditional orthodoxy. His concluding advice to law reformers in both jurisdictions is that piecemeal reform of either system is to be avoided.In this short and highly readable work readers will find much that will delight, stimulate, and challenge them. It is a book to be read by all students and scholars of law.
Lecture One: Hart versus Dworkin, Europe versus America1IOn Not Asking 'What Is Law?'1IIThe Continental Character of the English Legal System20Lecture Two: The Common Law39ITorts39IIContracts54IIIA Note on Remedies66Lecture Three: Functional, Systemic Comparisons of Legal Systems69IComparing Systems69IIThe Dangers of Piecemeal Reform70IIIWhich System is Better?76IVNotes Toward a Theory of Legal Culture106VLessons for the United States112App. AThe English Judiciary113IAn Outline of the Court Structure in England and Wales115IINote on the Jurisdiction of the Circuit Judge116IIINote on the Jurisdiction of a District Judge118App. BThe Udu Case125Index131
