Philosophy of Law

Philosophy of Law: An Introduction provides an ideal starting-point for students of philosophy and law. Setting it clearly against the historical background, Mark Tebbit quickly leads readers into the heart of the philosophical questions that dominate philosophy of law today. He provides an exceptionally wide-ranging overview of the contending theories that have sought to resolve these problems. He does so without assuming prior knowledge either of philosophy or law on the part of the reader. This new third edition has been updated and extended again to include assessments of important developments in philosophy and law in the early years of the 21st century.

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Philosophy of Law: An Introduction provides an ideal starting point for students of philosophy and law. Setting it clearly against the historical background, Mark Tebbit quickly leads readers into the heart of the philosophical questions that dominate philosophy of law today. He provides an exceptionally wide-ranging overview of the contending theories that have sought to resolve these problems. He does so without assuming prior knowledge either of philosophy or law on the part of the reader.

The book is structured in three parts around the key issues and themes in philosophy of law:

• What is the law? - the major legal theories addressing the question of what we mean by law, including natural law, legal positivism and legal realism.

• The reach of the law - the various legal theories on the nature and extent of the law's authority, with regard to obligation and civil disobedience, rights, liberty and privacy.

• Criminal law - responsibility and mens rea, intention, recklessness and murder, legal defences, insanity and philosophies of punishment.

This new third edition has been thoroughly updated to include assessments of important developments in philosophy and law in the early years of the twenty-first century. Revisions include a more detailed analysis of natural law, new chapters on common law and the development of positivism, a reassessment of the Austin-Hart dispute in the light of recent criticism of Hart, a new chapter on the natural law-positivist controversy over Nazi law and legality, and new chapters on criminal law, extending the analysis of the dispute over the viability of the defences of necessity and duress.

"With its uniquely detailed focus on the Common Law, this is the best textbook available for philosophy students not already familiar with law as it is practiced in the UK, US, and related systems. It will likewise be particularly valuable to law students interested in philosophising about the actual concrete legal systems which surround our lives, rather than "the law" as some abstract and contextless ideal object." Shane Glackin, University of Exeter, UK

Autorentext

Mark Tebbit is a Lecturer in Philosophy at the University of Reading. He is also Associate Professor and a Member of Faculty at the University of Notre Dame.

Klappentext

Philosophy of Law: An Introduction provides an ideal starting-point for students of philosophy and law. Setting it clearly against the historical background, Mark Tebbit quickly leads readers into the heart of the philosophical questions that dominate philosophy of law today. He provides an exceptionally wide-ranging overview of the contending theories that have sought to resolve these problems. He does so without assuming prior knowledge either of philosophy or law on the part of the reader. This new third edition has been updated and extended again to include assessments of important developments in philosophy and law in the early years of the 21st century.

Zusammenfassung

Philosophy of Law: An Introduction provides an ideal starting point for students of philosophy and law. Setting it clearly against the historical background, Mark Tebbit quickly leads readers into the heart of the philosophical questions that dominate philosophy of law today. He provides an exceptionally wide-ranging overview of the contending theories that have sought to resolve these problems. He does so without assuming prior knowledge either of philosophy or law on the part of the reader.

The book is structured in three parts around the key issues and themes in philosophy of law:

• What is the law? the major legal theories addressing the question of what we mean by law, including natural law, legal positivism and legal realism.

• The reach of the law the various legal theories on the nature and extent of the law's authority, with regard to obligation and civil disobedience, rights, liberty and privacy.

• Criminal law responsibility and mens rea, intention, recklessness and murder, legal defences, insanity and philosophies of punishment. This new third edition has been thoroughly updated to include assessments of important developments in philosophy and law in the early years of the twenty-first century. Revisions include a more detailed analysis of natural law, new chapters on common law and the development of positivism, a reassessment of the AustinHart dispute in the light of recent criticism of Hart, a new chapter on the natural lawpositivist controversy over Nazi law and legality, and new chapters on criminal law, extending the analysis of the dispute over the viability of the defences of necessity and duress.

  Inhalt

Preface to 3rd Edition

Acknowledgements

Part I: What is the law?

1. Morality, justice and natural law

Morality and law at variance

What is justice?

Natural law theory and legal positivism

Traditional natural law theory

Conclusion

Study questions and further reading

2. From common law to modern positivism

Common law today

Early positivism: an age of philosophical transition

Austin's legal positivism

Austin's command theory

Conclusion

Study questions and further reading

3. Hart's legal positivism

Hart's challenge to Austin

Legal and moral obligation

Internalisation

Conventions and obligations

Minimal natural law

Primary and secondary rules

The rule of recognition

Positivist doubts about Hart's system of rules

Conclusion

Study questions and further reading

4. Legal theory and the Nazi legality problem

Hans Kelsen's pure theory of law

Radbruch against Kelsen

Fuller's secular version of natural law

The problem of Nazi legality

Conclusion

Study questions and further reading

5. Legal realism

Pragmatism and legal realism

Who were the realists?

Legal theory and judicial practice

The pragmatist attack on certainty

The realist revolt against formalism

Abductive inference to the best explanation

Realism and rule-scepticism

The pragmatics of justice

Hart's criticism

Conclusion

Study questions and further reading

6. Competing images of law in contemporary jurisprudence

Hard cases and legal positivism

Dworkin's theory of law as integrity

Dworkin's hard cases

Criticisms of Dworkin

Conclusion

Study questions and further reading

7. Radical challenges to mainstream theories

The roots of modernity and the Enlightenment

Critics of the Enlightenment: Marx and Nietzsche

The postmodernist attack on modernity: Foucault and Derrida

Critical Legal Studies

The contradictions in liberalism

Justice modern and postmodern

Conclusion: Perspectivism and truth

Study questions and further reading

Part II: The reach of the law

8. Obedience and disobedience

Natural law and positivist responses

H.D.Thoreau: Conscience as the sole basis for obligation

Socrates' arguments in Plato's Crito

Consequentialist arguments for conditional obedience

Classical contract theory: Hobbes and Locke

Rawls: the original position and the conditional duty to obey

Injustice and civil disobedience

Conclusion

Study questions and further reading

9. Legal and moral rights

Rights and rights-scepticism

Bentham's attack on rights

Responses to rights-scepticism

Absolute rights

Righ…