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Cover

Philosophy of Law

Classic and Contemporary Readings with Commentary

Edited by Frederick Schauer and Walter Sinnott-Armstrong

Publication Date - July 1995

ISBN: 9780195155129

900 pages
Hardcover

Retail Price to Students: $134.99

Description

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.

Table of Contents

    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 Theologiae
    John Finnis, from Natural Law and Natural Rights
    Lon Fuller, from The Morality of Law
    1.2 LEGAL POSITIVISM
    Readings
    John Austin, from The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence
    H.L.A. Hart, from The Concept of Law
    1.3 LEGAL REALISM AND CRITICAL LEGAL STUDIES
    Readings
    Karl Llewellyn, from The Bramble Bush, "A Realistic Jurisprudence," and The Common Law Tradition
    Duncan Kennedy, "Freedom and Constraint in Adjudication: A Critical Phenomenology"
    1.4 RONALD DWORKIN AND LAW AS INTEGRITY
    Readings
    Ronald Dworkin, from Taking Rights Seriously
    Ronald Dworkin, from Law's Empire
    Frederick Schauer, from Playing by the Rules
    1.5 CASE STUDY: THE FUGITIVE SLAVE LAWS
    Readings
    Paul Finkelman, from Slavery in the Courtroom
    Excerpt from official report of the case before Chief Justice Lemuel Shaw (Massachusetts)
    Robert M. Cover, from Justice Accused
    2. 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 Judiciary
    Robert Bork, from The Tempting of America
    Paul 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. Scheidler
    2.2 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. Casey
    2.3 CRITICAL PERSPECTIVES ON LEGAL REASONING
    Readings
    Jerome Frank, from Law and the Modern Mind
    Mark Tushnet, "Following the Rules Laid Down"
    Martha Minow and Elizabeth Spelman, "In Context"
    Richard Posner, from Economic Analysis of Law
    3. 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 Disobedience
    Case
    Walker v. Birmingham
    4. 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. Boren
    4.2 THE RIGHT TO LIBERTY
    Readings and Cases
    The Harm Principle
    John Stuart Mill, from On Liberty
    James FitzJames Stephen, from Liberty, Equality, Fraternity
    Offense
    Joel Feinberg, from Offense to Others
    New England Naturist Association v. Larsen
    Paternalism
    John Stuart Mill, from On Liberty
    Gerald Dworkin, "Paternalism"
    Moralism
    Patrick Devlin, from The Enforcement of Morals
    H.L.A. Hart, from Law, Liberty, and Morality
    Bowers v. Hardwick
    4.3 A RIGHT TO FREE SPEECH
    Readings
    John Stuart Mill, from On Liberty
    Thomas Scanlon, "A Theory of Freedom of Expression"
    Frederick Schauer, from Free Speech: A Philosophical Enquiry
    Case 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 Wisconsin
    4.4 THE RIGHT TO PRIVACY
    Readings and Cases
    Griswold v. Connecticut
    Privacy 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. Casey
    4.5 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. Smith
    4.6 THE RIGHT TO PROPERTY
    Readings
    Jeremy Waldron, "What is Private Property?"
    Alan Ryan, "Utility and Property"
    A. John Simmons, from The Lockean Theory of Rights
    Case
    Penn Central Transportation Co. v. City of New York
    5. 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 Justice
    Robert Nozick, from Anarchy, State, and Utopia
    Michael 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 Education
    5.4 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 Laws
    Cases
    California Federal Savings and Loan v. Guerra
    Meritor Savings Bank v. Vinson
    5.6 EQUALITY FOR HOMOSEXUALS
    Readings
    Richard Mohr, "Gay Rights"
    Ernest van den Haag, "Sodom and Begorrah"
    Case
    Watkins v. United States Army
    5.7 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 Legislation
    John 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. Texas
    7. RESPONSIBILITY
    7.1 WHAT IS RESPONSIBILITY?
    7.2 LEGAL CAUSATION
    Reading
    H.L.A. Hart and Tony Honoré, from Causation in the Law
    Case
    Palsgraf v. Long Island Railroad
    7.3 RESPONSIBILITY FOR OMISSIONS
    Readings
    Richard Epstein, "A Theory of Strict Liability"
    Ernest Weinrib, "The Case for a Duty to Rescue"
    Case
    Farwell v. Keaton
    7.4 MENS REA AND STRICT LIABILITY
    Reading
    Richard Wasserstrom, "Strict Liability in the Criminal Law"
    Case
    Tison v. Arizona
    Case Study: Liability for Rape
    Glanville Williams, Lords' Decision on the Law of Rape
    Susan Estrich, from Real Rape
    Commonwealth v. Sherry
    7.5 THE INSANITY DEFENSE
    Readings
    Norval Morris, from Madness and the Criminal Law
    Richard Bonnie, "The Moral Basis of the Insanity Defense"
    Case
    Selection from the transcript of John Hinckley's trial
    8. 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 Winship
    8.2 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. Collins
    8.3 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. Leon
    Appendix
    The Constitution of the United States of America

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