Classic Readings and Cases in the Philosophy of Law: 1st Edition (Paperback) book cover

Classic Readings and Cases in the Philosophy of Law

1st Edition

By Susan Dimock

Routledge

736 pages

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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

Subject Categories

BISAC Subject Codes/Headings:
PHI000000
PHILOSOPHY / General