Higher Education

Philosophy of Law, 9th Edition

  • Joel Feinberg Late of University of Arizona
  • Jules Coleman Yale Law School
  • Christopher Kutz U. C. Berkeley School of Law
  • ISBN-10: 1133942962  |  ISBN-13: 9781133942962
  • 1056 Pages
  • Previous Editions: 2008, 2004, 2000
  • © 2014 | Published
  • College Bookstore Wholesale Price = $202.50
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About

Overview

This leading anthology contains essays and cases written by some of the most influential figures in legal philosophy, representing the major theoretical positions in the field. Its primary focus is to relate traditional themes of legal philosophy to the concerns of modern society in a way that invigorates the former and illuminates the latter. This classic text is distinguished by its clarity, balance of topics, balance of substantive positions on controversial questions, topical relevance, imaginative use of cases and stories, and the inclusion of only lightly edited or untouched legal classics. This revision is distinguished by its inclusion of new material on law and economics, international law, distributive justice, religion and freedom of expression, feminist legal theory, and critical race theory, as well as a greater emphasis on concrete legal problems.

Features and Benefits

  • A wide array of readings reflect both classic philosophical texts on the nature and foundation of law and contemporary debates on contemporary social and ethical topics.
  • Noted selections include H. L. A. Hart on the moral content of law, J. S. Mill on liberty, Jeremy Waldron on the rule of law, Joseph Raz on the problem of authority, Antonin Scalia and Ronald Dworkin on common law, Martin Luther King, Jr., on civil disobedience, John Rawls and Robert Nozick on distributive justice, Robin West on reproductive justice, Cheryl Harris on whiteness and critical race theory, Jules Coleman on positivism, and Thomas Nagel on moral luck.
  • The book opens with an expansive introduction to the nature and value of law, which discusses the relationship between law and morality, the concepts of legal obligation and punishment, strategies of legal and constitutional interpretation, as well as the natural law, positivist, and realist conceptions of law.
  • Substantive introductions to each part of the book introduce and situate key themes to be encountered in the readings.
  • Extensive bibliographical information serves as a resource for further student research.

Table of Contents

PART ONE: THE NATURE AND VALUE OF LAW.
1. The Rule of Law 8.
Lon L. Fuller: Eight Ways to Fail to Make Law. Jeremy Waldron: The Rule of Law and the Importance of Procedure. H. L. A. Hart: Laws and Morals.
2. Natural Law Theory.
Jeremy Bentham: An Introduction to the Principles of Morals and Legislation. Lon L. Fuller: The Case of the Speluncean Explorers. Saint Thomas Aquinas: Selections from On Law, Morality, and Politics. John Finnis: Natural Law and Natural Rights.
3. Legal Positivism.
John Austin: A Positivist Conception of Law. H. L. A. Hart: Law as the Union of Primary and Secondary Rules. The Foundations of a Legal System. Ronald Dworkin: The Model of Rules I.
Jules L. Coleman: Negative and Positive Positivism.
4. Legal Realism and Skepticism.
O. W. Holmes, Jr.: The Path of the Law. Jerome Frank: Legal Realism. K. N. Llewellyn: Ships and Shoes and Sealing Wax.
5. Legal Interpretation.
Ronald Dworkin: Integrity in Law. Antonin Scalia: Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws. Ronald Dworkin: Comment. Antonin Scalia: Response to Dworkin.
6. Critical Approaches to Law.
Robert W. Gordon: Critical Legal Histories. Robin West: From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights. Cheryl I. Harris: Whiteness as Property.
7. Is There an Obligation to Obey the Law?
Plato: Crito. Martin Luther King, Jr.: Letter from Birmingham Jail. M. B. E. Smith: Is There a Prima Facie Obligation to Obey the Law?
8. International Law and Human Rights.
Allen Buchanan: The Legitimacy of International Law. Oona Hathaway & Scott J. Shapiro: Outcasting: Enforcement in Domestic and International Law. James W. Nickel: Human Rights and the Challenge of Cultural Diversity. Alan M. Dershowitz: Should the Ticking Bomb Terrorist Be Tortured?: A Case Study in How a Democracy Should Make Tragic Choices. Jeremy Waldron: Torture and Positive Law: Jurisprudence for the White House.

PART TWO: THE POLITICAL MORALITY OF LAW.
9. Constitutionalism.
James Madison: The Federalist Papers: Federalist No. 48: These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other. Alexander Hamilton or James Madison: The Federalist Papers: Federalist No. 51: The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments. Joseph Raz: Between Authority and Interpretation.
10. What Are Rights?
Joel Feinberg: The Nature and Value of Rights. H. L. A. Hart: Are There Any Natural Rights?
Jeremy Waldron: A Right to Do Wrong.
11. Law and Liberty.
John Stuart Mill: The Liberal Argument -- From On Liberty. Gerald Dworkin: Paternalism. Lord Patrick Devlin: Morals and the Criminal Law. H. L. A. Hart: Immorality and Treason.
12. The Limits of Freedom of Expression.
Joel Feinberg: Offensive Nuisances. Robert Post: Religion and Freedom of Speech: Portraits of Muhammad. T. M. Scanlon, Jr.: Freedom of Expression and Categories of Expression.
13. Distributive Justice and Material Equality.
John Rawls: A Theory of Justice (Excerpts). Robert Nozick: Wilt Chamberlain and Distributive Justice (from Anarchy, State, and Utopia). Harry Frankfurt: Equality as a Moral Ideal. Elizabeth S. Anderson: What Is the Point of Equality?
14. Privacy and Sexual Equality.
Robert P. George: Public Reason and Political Conflict: Abortion and Homosexuality. Leslie Green: Sex-Neutral Marriage.
15. Law and Economics. Louis Kaplow and Steven Shavell: Welfare Economics and Notions of Fairness. Jules L. Coleman: The Grounds of Welfare (Review of Kaplan & Shavell, Fairness versus Welfare).

PART THREE: PHILOSOPHY AND THE LAW.
16. General Principles of Responsibility.
Joel Feinberg: Action and Responsibility. Christopher Kutz: Responsibility. Thomas Nagel: Moral Luck.
17. The Function and Limits of Punishment.
Cesare Beccaria: Of Crimes and Punishments. Immanuel Kant: The Right to Punish. Joel Feinberg: The Classic Debate. R. A. Duff: Responsibility, Restoration, and Retribution. Joel Feinberg: The Expressive Function of Punishment. Herbert Morris: Persons and Punishment. Jeffrie Murphy: Forgiveness and Resentment. Stephen Nathanson: Should We Execute Those Who Deserve to Die?
18. Principles of Criminal Liability.
House of Lords, 1843: The M’Naghten Rules. American Law Institute: The Insanity Defense. Stephen J. Morse: Scientific Challenges to Criminal Responsibility. Gideon Yaffe: Attempts. Liam Murphy: Beneficence, Law, and Liberty: The Case of Required Rescue.
19. Philosophy and Private Law.
John Locke: Of Property from The Second Treatise of Government. David Hume: Of the Origin of Justice and Property from A Treatise of Human Nature. Jeremy Waldron: Two Worries About Mixing One’s Labour. A. M. Honore: Ownership. Charles Fried: Contract as Promise. Anthony T. Kronman: Specific Performance. Seana Valentine Shiffrin: The Divergence of Contract and Promise. Jules L. Coleman: Doing Away with Tort Law. Jules Coleman: Corrective Justice and Wrongful Gain.

What's New

  • This edition includes increased coverage of the value of the rule of law, constitutional governance, and law's moral and democratic legitimacy. The authors have included new selections from H. L. A. Hart, Joseph Raz, Jeremy Waldron, and Stephen Holmes.
  • New material on critical legal theory, feminist legal theory, and critical race theory is addressed in selections from Robert Gordon, Robin West, and Cheryl Harris.
  • The book's expanded focus on distributive justice is demonstrated in new readings from John Rawls, Robert Nozick, and Elizabeth Anderson.
  • Selections from Allen Buchanan, Oona Hathaway and Scott Shapiro, and James Nickel present expanded coverage of international law and human rights.
  • Articles by T. M. Scanlon and Robert Post present new material on religion and freedom of expression, including international debates on freedom of speech and religious offense.
  • New materials on same-sex marriage and abortion are presented via articles by Robert George, Leslie Green, and relevant Supreme Court decisions.
  • Expanded consideration of criminal punishment, responsibility, and retribution is addressed through new selections by Beccaria, Kant, Antony Duff, Christopher Kutz, Alison Macintyre, and Gideon Yaffe.
  • This edition features a new chapter on law and economics, with materials by Louis Kaplow, Steven Shavell, and Jules Coleman.

Efficacy and Outcomes

Reviews

"This is an excellent anthology in philosophy of law, comprehensive and balanced. The inclusion of several foundational historical texts along with contemporary analyses is particularly useful in demonstrating the development and enduring significance of the central issues in jurisprudence."

— Alex Eodice, Iona College

"It offers a good selection of articles and cases, with topics ranging from analytical legal theory to the philosophical foundations of doctrinal topics to controversial current topics."

— Brian Bix, University of Minnesota Twin Cities

"A comprehensive text with all the major readings you need."

— Jacob Held, University of Central Arkansas

"A comprehensive reader that includes classic and contemporary readings on philosophical legal theory and practice, including important and instructive case studies."

— David Boersema, Pacific University

"An outstanding text for anyone hoping to cover all core issues in legal philosophy in one book."

— Kenneth Ehrenberg, University at Buffalo

"This is the classic textbook on this subject, with a wide range of articles covering the major topics in the field."

— Grant Sterling, Eastern Illinois University

Meet the Author

Author Bio

Joel Feinberg

Joel Feinberg (Professor Emeritus, late of University of Arizona) was widely recognized as one of America's leading political and social philosophers. Acclaimed both for his ground-breaking scholarship and his exemplary teaching skills, Feinberg published widely on topics such as individual rights, legal theory, capital punishment, the treatment of the mentally ill, civil disobedience, and environmental ethics. Before joining the University of Arizona faculty, he taught at Brown, Princeton, and Rockefeller universities. Feinberg was awarded a Fulbright Scholarship in 1987–88 to work in Japan and served as chairman of the National Board of Officers in the American Philosophical Association in the mid-1980s. Some of the royalties from Reason and Responsibility have been used to establish the Regents Professor Joel Feinberg Dissertation Fellowship in Philosophy at the University of Arizona.

Jules Coleman

Jules Coleman is a Senor Vice Provost at New York University focusing on the Global Network University. He also maintains a faculty appointment as Professor of Philosophy, NYU-Abu Dhabi as well as academic affiliations with the Philosophy Department and the Clive Davis Program in Recorded Music of the Tisch School of the Arts in New York. Prior to taking up his current administrative post, Coleman taught law and philosophy at Yale, philosophy at Arizona and at Wisconsin-Milwaukee. He has taught and lectured throughout the world and many of his books and essays have been translated into numerous languages. His research has focused primarily on fundamental questions in jurisprudence and on the place of responsibility in law, morality, and political theory. His contributions to these fields have been celebrated in several international conferences and in the many honors and fellowships he has received. For reasons known only to him he is proudest of his essay, "Hail Hail Rock 'n Roll," and of his short essays on the place of rock music in popular culture more generally. To a thankfully small group of audiophiles, he is best known as a reviewer of high end audio equipment, with emphasis on turntables, low powered tube amplification and horn loaded loudspeakers.

Christopher Kutz

Christopher Kutz is Professor of Law in the Jurisprudence & Social Policy Program at the University of California-Berkeley's School of Law; he has also taught at Columbia and Stanford Law Schools, and Sciences-Politiques, Paris. Kutz's work focuses on moral, political, and legal philosophy, and he has particular interest in the foundations of criminal, international and constitutional law. His book, _Complicity: Ethics and Law for a Collective Age, (Cambridge University Press, 2000), addressed the question of individual moral and legal responsibility for harms brought about through collective and corporate activity. His current work centers on democratic theory, the law of war, the metaphysics of criminal law, and the nature of political legitimacy. He teaches courses in criminal law, and moral, political and legal philosophy.