Philosophy of Law: Classic and Contemporary Readings with Commentary
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 of the 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...
Search in google:
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 of the 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 text features extensive introductions that make even the most profound writings accessible to undergraduates. Booknews An anthology that gathers classic texts, contemporary theoretical innovations, and well-known recent court cases. The readings are arranged within eight thematic chapters: what is law?; legal reasoning; the moral force of law; the structure and content of rights; justice and equality; punishment; responsibility; and legal procedure and evidence. Extensive introductions make the readings accessible to undergraduates in philosophy and political science and to law students. Annotation c. Book News, Inc., Portland, OR (booknews.com)
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 TheologiaeJohn Finnis, from Natural Law and Natural RightsLon Fuller, from The Morality of Law1.2 LEGAL POSITIVISM Readings John Austin, from The Province of Jurisprudence Determined and the Uses of the Study of JurisprudenceH.L.A. Hart, from The Concept of Law1.3 LEGAL REALISM AND CRITICAL LEGAL STUDIES Readings Karl Llewellyn, from The Bramble Bush, "A Realistic Jurisprudence," and The Common Law TraditionDuncan Kennedy, "Freedom and Constraint in Adjudication: A Critical Phenomenology"1.4 RONALD DWORKIN AND LAW AS INTEGRITY Readings Ronald Dworkin, from Taking Rights SeriouslyRonald Dworkin, from Law's EmpireFrederick Schauer, from Playing by the Rules1.5 CASE STUDY: THE FUGITIVE SLAVE LAWS Readings Paul Finkelman, from Slavery in the CourtroomExcerpt from official report of the case before Chief Justice Lemuel Shaw (Massachusetts)Robert M. Cover, from Justice Accused2. 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 JudiciaryRobert Bork, from The Tempting of AmericaPaul 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. Scheidler2.2 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. Casey2.3 CRITICAL PERSPECTIVES ON LEGAL REASONING Readings Jerome Frank, from Law and the Modern MindMark Tushnet, "Following the Rules Laid Down"Martha Minow and Elizabeth Spelman, "In Context"Richard Posner, from Economic Analysis of Law3. 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 DisobedienceCase Walker v. Birmingham4. 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. Boren4.2 THE RIGHT TO LIBERTY Readings and Cases The Harm Principle John Stuart Mill, from On LibertyJames FitzJames Stephen, from Liberty, Equality, FraternityOffense Joel Feinberg, from Offense to OthersNew England Naturist Association v. LarsenPaternalism John Stuart Mill, from On LibertyGerald Dworkin, "Paternalism"Moralism Patrick Devlin, from The Enforcement of MoralsH.L.A. Hart, from Law, Liberty, and MoralityBowers v. Hardwick4.3 A RIGHT TO FREE SPEECH Readings John Stuart Mill, from On LibertyThomas Scanlon, "A Theory of Freedom of Expression"Frederick Schauer, from Free Speech: A Philosophical EnquiryCase Study: Pornography Definitional Preliminary Paris Adult Theatre I v. Slaton Catherine MacKinnon, "Pornography, Civil Rights, and 'Speech'"American Booksellers Association, Inc. v. Hudnut Ronald Dworkin, "Women and Pornography"Case Study: Hate Speech Collin v. Smith Richard Delgado, "Campus Antiracism Rules: Constitutional Narratives in Collision"Charles Lawrence, "If He Hollers Let Him Go: Regulating Racist Speech on Campus"Nadine Strossen, "Regulating Racist Speech on Campus: A Modest Proposal?"UMW Post, Inc. v. Board of Regents of University of Wisconsin4.4 THE RIGHT TO PRIVACY Readings and Cases Griswold v. ConnecticutPrivacy as a Constitutional Right David A.J. Richards, "Interpretation and Historiography"Robert Bork, "Neutral Principles and Some First Amendment Problems"The Right to an Abortion Roe v. Wade John Noonan, "The Root and Branch of Roe v. Wade"Catharine MacKinnon, "Reflections on Sex Equality Under Law"Planned Parenthood of Southeastern Pennsylvania v. Casey4.5 THE RIGHT TO RELIGIOUS FREEDOM Readings Mario Cuomo, "Religious Belief and Public Morality: A Catholic Governor's Perspective"John Garvey, "The Pope's Submarine"Cases Wallace v. Jaffree Employment Division, Oregon Department of Human Resources v. Smith4.6 THE RIGHT TO PROPERTY Readings Jeremy Waldron, "What is Private Property?"Alan Ryan, "Utility and Property"A. John Simmons, from The Lockean Theory of RightsCase Penn Central Transportation Co. v. City of New York5. JUSTICE AND EQUALITY 5.1 WHAT IS JUSTICE? Readings Peter Westen, "The Empty Idea of Equality"Anthony D'Amato, "Is Equality a Totally Empty Idea?"5.2 THEORIES OF JUSTICE Readings John Stuart Mill, "On the Connection between Justice and Utility"John Rawls, from A Theory of JusticeRobert Nozick, from Anarchy, State, and UtopiaMichael Sandel, "Morality and the Liberal Ideal"5.3 DISCRIMINATION Readings Joseph Tussman and Jacobus tenBroek, "The Equal Protection of the Laws"Owen Fiss, "Groups and the Equal Protection Clause"Case Brown v. Board of Education5.4 PREFERENTIAL TREATMENT Readings Ronald Dworkin, "Why Bakke Has No Case"Carl Cohen, "Why Racial Preference is Illegal and Immoral"Cases Regents of University of California v. Bakke Metro Broadcasting, Inc. v. Federal Communications Commission et al.5.5 EQUALITY FOR WOMEN Readings Catharine MacKinnon, "Reflections on Sex Equality Under Law"Richard Epstein, from Forbidden Grounds: The Case Against Employment Discrimination LawsCases California Federal Savings and Loan v. Guerra Meritor Savings Bank v. Vinson5.6 EQUALITY FOR HOMOSEXUALS Readings Richard Mohr, "Gay Rights"Ernest van den Haag, "Sodom and Begorrah"Case Watkins v. United States Army5.7 OTHER KINDS OF DISCRIMINATION 6. PUNISHMENT 6.1 THE NATURE OF PUNISHMENT 6.2 THEORIES OF PUNISHMENT 6.3 UTILITARIAN THEORIES OF PUNISHMENT Readings Jeremy Bentham, from An Introduction to the Principles of Morals and LegislationJohn Rawls, "Two Concepts of Rules"6.4 RETRIBUTIVISMS Readings Immanuel Kant, "On the Right to Punish"Michael Davis, "Harm and Retribution"6.5 COMBINATIONS AND ALTERNATIVES 6.6 CAPITAL PUNISHMENT Readings Ernest van den Haag, "The Collapse of the Case Against Capital Punishment"Jeffrey Reiman, "Justice, Civilization, and the Death Penalty"Stephen Nathanson, "Does it Matter if the Death Penalty is Arbitrarily Administered?Cases Furman v. Georgia Gregg v. Georgia McCleskey v. Kemp Herrera v. Texas7. RESPONSIBILITY 7.1 WHAT IS RESPONSIBILITY? 7.2 LEGAL CAUSATION Reading H.L.A. Hart and Tony Honoré, from Causation in the LawCase Palsgraf v. Long Island Railroad7.3 RESPONSIBILITY FOR OMISSIONS Readings Richard Epstein, "A Theory of Strict Liability"Ernest Weinrib, "The Case for a Duty to Rescue"Case Farwell v. Keaton7.4 MENS REA AND STRICT LIABILITY Reading Richard Wasserstrom, "Strict Liability in the Criminal Law"Case Tison v. ArizonaCase Study: Liability for Rape Glanville Williams, Lords' Decision on the Law of Rape Susan Estrich, from Real RapeCommonwealth v. Sherry7.5 THE INSANITY DEFENSE Readings Norval Morris, from Madness and the Criminal LawRichard Bonnie, "The Moral Basis of the Insanity Defense"Case Selection from the transcript of John Hinckley's trial8. LEGAL PROCEDURE AND EVIDENCE 8.1 THE BURDEN OF PROOF Readings John Kaplan, "Decision Theory and the Factfinding Process"Frederick Schauer and Richard Zeckhauser, "On the Degree of Confidence for Adverse Decisions"Case In re Winship8.2 PROBABILITY AND THE LAW OF EVIDENCE Readings Michael J. Saks and Robert F. Kidd, "Human Information Processing and Adjudication: Trial by Heuristics"Judith Jarvis Thomson, "Liability and Individualized Evidence"Cases Smith v. Rapid Transit, Inc.People v. Collins8.3 CRIMINAL PROCEDURE AND THE EXCLUSIONARY RULE Readings Malcom Wilkey, "The Exclusionary Rule: Costs and Viable Alternatives"Stephen H. Sachs, "The Exculsionary Rule: A Prosecutor's Defense"Case United States v. LeonAppendix The Constitution of the United States of America
\ BooknewsAn anthology that gathers classic texts, contemporary theoretical innovations, and well-known recent court cases. The readings are arranged within eight thematic chapters: what is law?; legal reasoning; the moral force of law; the structure and content of rights; justice and equality; punishment; responsibility; and legal procedure and evidence. Extensive introductions make the readings accessible to undergraduates in philosophy and political science and to law students. Annotation c. Book News, Inc., Portland, OR (booknews.com)\ \
