3rd Edition

Philosophy of Law An Introduction

By Mark Tebbit Copyright 2017
    314 Pages
    by Routledge

    314 Pages
    by Routledge

    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.

    Preface to 3rd Edition


    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


    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


    Study questions and further reading

    3. Hart’s legal positivism

    Hart’s challenge to Austin

    Legal and moral obligation


    Conventions and obligations

    Minimal natural law

    Primary and secondary rules

    The rule of recognition

    Positivist doubts about Hart’s system of rules


    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


    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


    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


    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


    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


    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


    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


    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


    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


    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


    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


    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




    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.

    "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