1st Edition

Classic Readings and Cases in the Philosophy of Law





ISBN 9780321187840
Published October 18, 2006 by Routledge
736 Pages

USD $180.00

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Book Description

With over sixty cases as support, this text presents the philosophy of law as a perpetual series of debates with overlapping lines and cross connections. Using law as a focus to bring into relief many social and political issues of pressing importance in contemporary society, this book encourages readers to think critically and philosophically.

Classic Readings and Cases in the Philosophy of Law centers on five major questions:

    What is law?
    What, if any, connection must there be between law and morality?
    When should law be used to restrict the liberty of individuals?
    To what extent should democratic states permit civil disobedience?
    What, if anything, justifies the infliction of punishment on those who violate the law?


The extensive anthology of cases covers the mundane to the grandest of constitutional issues, including controversial topics like ownership of genetic material, capital punishment, and gay rights. Brief introductions to each case describe the central issue being litigated, the legal reasoning of the justices–both majority and dissenting–the decision of the court, and its philosophical significance.

Table of Contents

PART 1: WHAT IS LAW?

Chapter 1: Traditional Natural Law Theory: Law for the Common Good

St. Thomas Aquinas, Law for the Common Good

Chapter 2: Legal Positivism I: Law as Command

John Austin, The Command Theory of Law

Chapter 3: American Legal Realism: Law as Judicial Pronouncement

Oliver Wendell Holmes, Law as Systematized Prediction of What the Courts Will Do

Jerome Frank, Law as the Product of Court Decisions

Chapter 4: Legal Positivism II: Law as the Union of Primary and Secondary Rules

H.L.A. Hart, Law as the Union of Primary and Secondary Rules

Chapter 5: Law and Economics: Law as Efficiency

Susan Dimock, Law and Economics

Chapter 6: Feminist Jurisprudence: Law as a Patriarchal Institution

Patricia Smith, Law as a Patriarchal Institution

Catharine A. MacKinnon, Law as Male Power

Additional Readings

Cases for Discussion

Palsgraf v. Long Island Rail Road Co.

            Lynch v. Fisher

            Hammontree v. Jenner

Stewart v. Dutra Construction Co.

Stockberger V. United States

McFall v. Shimp

Farwell v. Keaton

Berman v. Allan

Sindell v. Abbott Laboratories

Moore v. Regents of the University of California

Kowalski v. Tesmer

Penn Central Transportation Co. v. New York City

Kelo v. City of New London

PART 2: THE SEPARATION THESIS, LEGAL REASONING AND LEGAL INDETERMINACY: H.L.A. Hart and His Critics

Chapter 7: The Separation of Law and Morality

H.L.A. Hart, Positivism and the Separation of Law and Morals

Chapter 8: The Morality of Law

Lon L. Fuller, Positivism and Fidelity to Law–A Reply to Professor Hart

            The Morality that Makes Law Possible

Chapter 9: Law as a System of Rights

Ronald Dworkin, Rules, Principles, and Rights

            Hard Cases

            Integrity in Law

Chapter 10: Hart’s Response to Dworkin

H.L.A. Hart, Defending Legal Positivism

Chapter 11: Law as an Indeterminate Patchwork of Irreconcilable Ideologies

Andrew Altman, Legal Realism, Critical Legal Studies, and Dworkin

            Critical Legal Studies and the Rule of Law

Additional Readings

Cases for Discussion

            Riggs v. Palmer

            State of Maryland v. Rusk

            Raich v. Ashcroft

            Small v. United States

Korematsu v. United States

            Plessey v. Ferguson

            Brown v. Board of Education

United States v. Virginia

Hopwood v. Texas

Grutter v. Bollinger

Michael M. v. Sonoma County

Personnel Administrator of Massachusetts v. Feeney

            Afroyim v. Rusk

PART 3: CIVIL DISOBEDIENCE AND THE OBLIGATION TO OBEY LAW

Chapter 12: The Duty to Oppose Injustice

Martin Luther King, Jr., Letter from Birmingham Jail

Chapter 13: Civil Disobedience and Conscientious Refusal

John Rawls, Civil Disobedience and Conscientious Refusal

Chapter 14: The Benefit of Challenging Uncertain Laws

Ronald Dworkin, Civil Disobedience

Additional Readings

Cases for Discussion

            Schenck v. United States

            Whitney v. California

Walker v. City of Birmingham

            Minersville School District, Board of Education v. Gobitis

            Wisconsin v. Yoder

            Employment Division, Dept. of Human Resources of Oregon v. Smith

            United States v. Schoon

PART 4: LAW AND LIBERTY

Chapter 15: Civil Disobedience and the Presumption of an Obligation to Obey the Law

Chapter 16: In Defense of Liberty

John Stuart Mill, On Liberty

Chapter 17: Paternalism

Gerald Dworkin, Paternalism

Chapter 18: Legal Moralism

Lord Patrick Devlin, The Enforcement of Morals

Chapter 19: A Refutation of Legal Moralism

H.L.A. Hart, Law, Liberty, and Morality

Additional Readings

Cases for Discussion

            John Doe v. University of Michigan

            Texas v. Johnson

            Chen v. California

            New York Times v. Sullivan

            New York Times Co. v. United States

            Village of Skokie v. National Socialist Party of America

            Hernandez v. Commonwealth of Virginia

            Boy Scouts of America v. Dale

            Miller v. California

            Paris Adult Theater I v. Slaton

Reno v. American Civil Liberties Union

            Engel v. Vitale

            Edwards v. Aguillard

            Van Orden v. Perry

            Griswold v. Connecticut

Roe v. Wade

Planned Parenthood v. Casey

Bowers v. Hardwick

Lawrence v. Texas

            Loving v. Virginia

            Goodridge v. Department of Public Health

PART 5: PUNISHMENT

Chapter 20: Utilitarianism

Jeremy Bentham, An Introduction to the Principles of Morals and Legislation

Chapter 21: Retributivism I: A Kantian Theory of Punishment

Immanuel Kant, The Right of Punishing and Pardoning

Chapter 22: Retributivism II: Fair Play

Herbert Morris, Persons and Punishment

Chapter 23: Retributivism III: The Value of Victims

Jean Hampton, A New Theory of Retribution

Chapter 24: Restitution

Randy Barnett, Restitution: A New Paradigm of Criminal Justice

Chapter 25: Restorative Justice

Gorden Bazemore, Three Paradigms for Juvenile Justice

Additional Readings

Cases for Discussion

            Miranda v. Arizona

            Gregg v. Georgia

            McCleskey v. Kemp

            Atkins v. Virginia

            Roper v. Simons

            Rummel v. Estelle

            Hamdi v. Rumfeld

            The Insanity Defense: M’Naghten and Durham

            State v. Kelly

            United States v. Oviedo

PART 6: CONSTIUTIONAL INTERPRETATION

Chapter 26: The Moral Reading of the American Constitution

Ronal Dworkin, The Moral Reading of the American Constitution

Appendix

The Bill of Rights and other Amendments to the Constitution of the United States

Selections from the Canadian Charter of Rights and Freedoms

Glossary

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