Philosophy of Law: An Introduction, 3rd Edition (Hardback) book cover

Philosophy of Law

An Introduction, 3rd Edition

By Mark Tebbit

Routledge

302 pages

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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.

Reviews

"With its uniquely detailed focus on the Common Law, this is the best textbook available for philosophy students not already familiar with law as it is practiced in the UK, US, and related systems. It will likewise be particularly valuable to law students interested in philosophising about the actual concrete legal systems which surround our lives, rather than "the law" as some abstract and contextless ideal object." Shane Glackin, University of Exeter, UK

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

About the Author

Mark Tebbit is a Lecturer in Philosophy at the University of Reading. He is also Associate Professor and a Member of Faculty at the University of Notre Dame.

Subject Categories

BISAC Subject Codes/Headings:
LAW036000
LAW / Ethics & Professional Responsibility
PHI000000
PHILOSOPHY / General
PHI005000
PHILOSOPHY / Ethics & Moral Philosophy