Philosophy of law : an introduction / Mark Tebbit.
2017
K230.T43 A37 2017 (Map It)
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Details
Author
Title
Philosophy of law : an introduction / Mark Tebbit.
Published
Abingdon, Oxon ; New York, NY : Routledge, 2017.
Call Number
K230.T43 A37 2017
Edition
Third edition.
ISBN
9780415827454 (hardback)
0415827450 (hardback)
9780415827461 (pbk.)
0415827469 (pbk.)
9781315281018 (ebook)
1315281015
0415827450 (hardback)
9780415827461 (pbk.)
0415827469 (pbk.)
9781315281018 (ebook)
1315281015
Description
ix, 301 pages ; 25 cm
System Control No.
(OCoLC)953823507
Summary
"[This book] provides an ideal starting point for students of philosophy and law. Setting it clearly against the historical background, [the author] ... leads readers into the heart of the philosophical questions that dominate philosophy of law today ... and [provides an] overview of the contending theories that have sought to resolve these problems ... 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; and criminal law : responsibility and mens rea, intention, recklessness and murder, legal defences, insanity and philosophies of punishment ... 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."-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 285-297) and index.
Record Appears in
Gift
Purchased from the income of the Edith L. Fisch Fund
Gift

The Arthur W. Diamond Law Library
Purchased from the income of the Edith L. Fisch Fund
Table of Contents
Preface to third edition
x
Acknowledgements
xi
pt. I
What is the law?
1
1.
Morality, justice and natural law
3
Morality and law at variance
3
What is justice?
6
Natural law theory and legal positivism
9
Traditional natural law theory
11
Conclusion
18
Suggestions for further reading
19
2.
From common law to modern positivism
20
Common law today
20
Early positivism: an age of philosophical transition
23
Austin's legal positivism
26
Austin's command theory
28
Conclusion
33
Suggestions for further reading
33
3.
Hart's legal positivism
35
Hart's challenge to Austin
35
Legal and moral obligation
36
Internalisation
37
Conventions and obligations
39
Minimal natural law
40
Primary and secondary rules
41
rule of recognition
41
Positivist doubts about Hart's system of rules
42
Conclusion
44
Suggestions for further reading
45
4.
Legal theory and the Nazi legality problem
46
Hans Kelsen's pure theory of law
47
Radbruch against Kelsen
51
Fuller's secular version of natural law
53
problem of Nazi legality
57
Conclusion
59
Suggestions for further reading
60
5.
Legal realism
61
Pragmatism and legal realism
61
Who were the realists?
61
Legal theory and judicial practice
62
pragmatist attack on certainty
64
realist revolt against formalism
67
Abductive inference to the best explanation
69
Realism and rule-scepticism
70
pragmatics of justice
74
Hart's criticism
76
Conclusion
77
Suggestions for further reading
78
6.
Competing images of law in contemporary jurisprudence
79
Austin and Hart on hard cases
79
Dworkin's theory of law as integrity
81
Criticisms of Dworkin
89
Conclusion
97
Suggestions for further reading
98
7.
Radical challenges to mainstream theory
99
roots of modernity and the Enlightenment
99
Critics of the Enlightenment
101
postmodernist attack on modernity
103
Critical legal studies
107
contradictions in liberalism
110
Justice modern and postmodern
114
Conclusion: perspectivism and truth
115
Suggestions for further reading
117
pt. II
reach of the law
119
8.
Obedience and disobedience
121
Should we respect the law as law?
121
Natural law and positivist responses
122
H.D. Thoreau: conscience as the sole basis for obligation
124
Socrates' arguments in Plato's Crito
125
Consequentialist arguments for conditional obedience
128
Classical contract theory
130
Rawls: the original position and the conditional duty to obey
133
Injustice and civil disobedience
136
Conclusion
142
Suggestions for further reading
142
9.
Legal and moral rights
144
Rights and rights-scepticism
146
Responses to rights-scepticism
150
Absolute rights
153
Rights versus utility -- Bentham and J.S. Mill
154
Dworkin's theory of rights
156
HRA (1998) and the case of the conjoined twins
158
Conclusion
160
Suggestions for further reading
160
10.
Law and private morals
162
Liberalisation and the Wolfenden Report
162
J.S. Mill and liberty
163
Devlin's critique of the Wolfenden Report
166
Hart's reply to Devlin
169
Dworkin's critique of Devlin
172
Conclusion
173
Suggestions for further reading
174
11.
Radical critiques of liberal theories of law
175
liberal concept of the individual
175
contextualisation of universal rights
178
Marx and Marxism
180
Feminist jurisprudence and the rights of women
181
Rights in relation to class, sex and race
187
Conclusion
188
Suggestions for further reading
189
pt. III
Criminal responsibility and punishment
191
12.
Guilty minds: Recklessness, manslaughter and murder
193
Criminal responsibility and the mens rea doctrine in English common law
193
Negligence and recklessness
194
Intentional killing and murder
198
Direct and oblique intention
203
subjective-objective controversy
207
Conclusion
211
Suggestions for further reading
212
13.
Unlawful killing: The defences of necessity and duress
213
defence of duress
213
DPP v. Lynch (1975)
216
defence of necessity
218
Should the Hale authority allow any exceptions?
224
Intention and necessity
227
Conclusion
229
Suggestions for further reading
230
14.
Insanity and diminished responsibility
231
Traditional problems with insanity
232
case of Daniel M'Naghten
234
M'Naghten Rules and their critics
235
Diminished responsibility and the 1957 Homicide Act
240
Conclusion
241
Suggestions for further reading
241
15.
Theories of punishment
242
problem of justification
242
Punishment justified by its effects
243
Justifying punishment retrospectively
245
Criticisms of the traditional theories
246
Modifications and compromises
250
Lex talionis and unfair advantage
252
Punishment as communication: Nozick and Hampton
254
Desert and deterrence in sentencing
258
Conclusion
260
Suggestions for further reading
261
16.
Radical perspectives on crime and punishment
263
Enlightenment liberalism and its critics
263
Intention and mens rea
268
Critical perspectives on criminal law and insanity
270
Feminist criticisms of criminal law
272
assessment of the critical theories
275
Conclusion: Enlightenment values and the rule of law
277
Suggestions for further reading
279
Appendix
280
Glossary
282
Bibliography
285
Index
298