Description
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.
Table of Contents
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
Rights versus utility – Bentham and Mill
Dworkin’s theory of rights
The Human Rights Act (1998) and the case of the conjoined twins
Conclusion
Study questions and further reading
10. Law and private morals
Liberalisation and the Wolfenden Report
J.S. Mill and liberty
Devlin’s critique of the Wolfenden Report
Hart’s reply to Devlin
Dworkin’s critique of Devlin
Conclusion
Study questions and further reading
11 Radical critiques of liberal theories of law
The liberal concept of the individual
The contextualisation of universal rights
Marx and Marxism
Feminist jurisprudence and the rights of women
Rights in relation to class, sex and race
Conclusion
Study questions and further reading
Part III
Criminal responsibility and punishment
12 Guilty minds: recklessness, manslaughter and murder
Criminal responsibility and the mens rea doctrine in English common law
Negligence and recklessness
Intentional killing and murder
Direct and oblique intention
The subjective-objective controversy
Conclusion
Study questions and further reading
13 Unlawful killing: the defences of necessity and duress
The defence of duress
Murder and the Hale authority
The defence of necessity
The classic cases
Arguments for and against necessity as a defence to murder
Should the Hale authority allow any exceptions?
A veil of ignorance test
Intention
Study questions and further reading
14 Insanity and diminished responsibility
Traditional problems with insanity
The case of Daniel M’Naghten
The M’Naghten Rules and their critics
Diminished responsibility and the 1957 Homicide Act
Conclusion
Study questions and further reading
15 Theories of punishment
The problem of justification
Punishment justified by its effects
Justifying punishment retrospectively
Criticisms of the traditional theories
Weaknesses of retributivism
Modifications and compromises
Punishment as communication: Nozick and Hampton
Desert and deterrence in sentencing
Conclusion
Study questions and further reading
16 Radical perspectives on crime and punishment
Enlightenment liberalism and its critics
The range of radical criticisms
The individual and society
Intention and determinism
Free agency, criminal intention and mens rea
Conclusion: Enlightenment values and the rule of law
Study questions and further reading
Bibliography
Index
