Philosophy of Law: Classic and Contemporary Readings with Commentary

Hardcover | July 24, 1995

byFrederick Schauer, Walter Sinnott-armstrong

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Ideal for undergraduate courses in philosophy of law, this comprehensive anthology examines such topics as the concept of law, the dispute between natural law theorists and legal positivists, the relations between law and morality, criminal responsibility and legal punishment, the rights ofthe individual against the state, justice and equality, and legal evidence as compared with scientific evidence. The readings have been selected from both philosophy and law journals and include classic texts, contemporary theoretical developments, and well-known recent court cases. The textfeatures extensive introductions that make even the most profound writings accessible to undergraduates.

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Ideal for undergraduate courses in philosophy of law, this comprehensive anthology examines such topics as the concept of law, the dispute between natural law theorists and legal positivists, the relations between law and morality, criminal responsibility and legal punishment, the rights ofthe individual against the state, justice and ...

Frederick Schauer is at Harvard University. Walter Sinnott-Armstrong is at Dartmouth College.

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Format:HardcoverDimensions:900 pages, 8.39 × 9.41 × 1.81 inPublished:July 24, 1995Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0195155122

ISBN - 13:9780195155129

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Table of Contents

Each sub-chapter opens with an Introduction and most close with Suggestions for Further ReadingQuestions for Discussion are integrated throughout1. WHAT IS LAW?1.1 THE THEORY OF NATURAL LAWReadingsThomas Aquinas, from Summa TheologiaeJohn Finnis, from Natural Law and Natural RightsLon Fuller, from The Morality of Law1.2 LEGAL POSITIVISMReadingsJohn Austin, from The Province of Jurisprudence Determined and the Uses of the Study of JurisprudenceH.L.A. Hart, from The Concept of Law1.3 LEGAL REALISM AND CRITICAL LEGAL STUDIESReadingsKarl Llewellyn, from The Bramble Bush, "A Realistic Jurisprudence," and The Common Law TraditionDuncan Kennedy, "Freedom and Constraint in Adjudication: A Critical Phenomenology"1.4 RONALD DWORKIN AND LAW AS INTEGRITYReadingsRonald Dworkin, from Taking Rights SeriouslyRonald Dworkin, from Law's EmpireFrederick Schauer, from Playing by the Rules1.5 CASE STUDY: THE FUGITIVE SLAVE LAWSReadingsPaul Finkelman, from Slavery in the CourtroomExcerpt from official report of the case before Chief Justice Lemuel Shaw (Massachusetts)Robert M. Cover, from Justice Accused2. LEGAL REASONING2.1 THE INTERPRETATION OF LEGAL TEXTSReadings and CasesFrederick Schauer, "Formalism"Home Building and Loan Association v. BlaisdellRaoul Berger, from Government by JudiciaryRobert Bork, from The Tempting of AmericaPaul Brest, "The Misconceived Quest for the Original Understanding"Ronald Dworkin, "Natural Law Revisited"United States v. LockeRichard A. Posner, "Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution"Bray v. Alexandria Women's Health ClinicNational Organization for Women v. Scheidler2.2 REASONING FROM PRECEDENTReadingsCass R. Sunstein, "On Analogical Reasoning"Larry Alexander, "Constrained by Precedent"CasesDonoghue v. StevensonPlanned Parenthood of Southeastern Pennsylvania v. Casey2.3 CRITICAL PERSPECTIVES ON LEGAL REASONINGReadingsJerome Frank, from Law and the Modern MindMark Tushnet, "Following the Rules Laid Down"Martha Minow and Elizabeth Spelman, "In Context"Richard Posner, from Economic Analysis of Law3. THE MORAL FORCE OF LAW3.1 IS THERE A MORAL OBLIGATION TO OBEY THE LAW?ReadingsJohn Rawls, "Legal Obligation and the Duty of Fair Play"A. John Simmons, "The Principle of Fair Play"3.2 CIVIL DISOBEDIENCEReadingsJohn Rawls, "The Justification of Civil Disobedience"Peter Singer, from Democracy and DisobedienceCaseWalker v. Birmingham4. THE STRUCTURE AND CONTENT OF RIGHTS4.1 THE STRUCTURE OF RIGHTSReadingsJoel Feinberg, "The Nature and Value of Rights"Ronald Dworkin, "Hard Cases"Judith Jarvis Thomson, "Some Ruminations on Rights"CaseCraig v. Boren4.2 THE RIGHT TO LIBERTYReadings and CasesThe Harm PrincipleJohn Stuart Mill, from On LibertyJames FitzJames Stephen, from Liberty, Equality, FraternityOffenseJoel Feinberg, from Offense to OthersNew England Naturist Association v. LarsenPaternalismJohn Stuart Mill, from On LibertyGerald Dworkin, "Paternalism"MoralismPatrick Devlin, from The Enforcement of MoralsH.L.A. Hart, from Law, Liberty, and MoralityBowers v. Hardwick4.3 A RIGHT TO FREE SPEECHReadingsJohn Stuart Mill, from On LibertyThomas Scanlon, "A Theory of Freedom of Expression"Frederick Schauer, from Free Speech: A Philosophical EnquiryCase Study: PornographyDefinitional PreliminaryParis Adult Theatre I v. SlatonCatherine MacKinnon, "Pornography, Civil Rights, and 'Speech'"American Booksellers Association, Inc. v. HudnutRonald Dworkin, "Women and Pornography"Case Study: Hate SpeechCollin v. SmithRichard Delgado, "Campus Antiracism Rules: Constitutional Narratives in Collision"Charles Lawrence, "If He Hollers Let Him Go: Regulating Racist Speech on Campus"Nadine Strossen, "Regulating Racist Speech on Campus: A Modest Proposal?"UMW Post, Inc. v. Board of Regents of University of Wisconsin4.4 THE RIGHT TO PRIVACYReadings and CasesGriswold v. ConnecticutPrivacy as a Constitutional RightDavid A.J. Richards, "Interpretation and Historiography"Robert Bork, "Neutral Principles and Some First Amendment Problems"The Right to an AbortionRoe v. WadeJohn Noonan, "The Root and Branch of Roe v. Wade"Catharine MacKinnon, "Reflections on Sex Equality Under Law"Planned Parenthood of Southeastern Pennsylvania v. Casey4.5 THE RIGHT TO RELIGIOUS FREEDOMReadingsMario Cuomo, "Religious Belief and Public Morality: A Catholic Governor's Perspective"John Garvey, "The Pope's Submarine"CasesWallace v. JaffreeEmployment Division, Oregon Department of Human Resources v. Smith4.6 THE RIGHT TO PROPERTYReadingsJeremy Waldron, "What is Private Property?"Alan Ryan, "Utility and Property"A. John Simmons, from The Lockean Theory of RightsCasePenn Central Transportation Co. v. City of New York5. JUSTICE AND EQUALITY5.1 WHAT IS JUSTICE?ReadingsPeter Westen, "The Empty Idea of Equality"Anthony D'Amato, "Is Equality a Totally Empty Idea?"5.2 THEORIES OF JUSTICEReadingsJohn Stuart Mill, "On the Connection between Justice and Utility"John Rawls, from A Theory of JusticeRobert Nozick, from Anarchy, State, and UtopiaMichael Sandel, "Morality and the Liberal Ideal"5.3 DISCRIMINATIONReadingsJoseph Tussman and Jacobus tenBroek, "The Equal Protection of the Laws"Owen Fiss, "Groups and the Equal Protection Clause"CaseBrown v. Board of Education5.4 PREFERENTIAL TREATMENTReadingsRonald Dworkin, "Why Bakke Has No Case"Carl Cohen, "Why Racial Preference is Illegal and Immoral"CasesRegents of University of California v. BakkeMetro Broadcasting, Inc. v. Federal Communications Commission et al.5.5 EQUALITY FOR WOMENReadingsCatharine MacKinnon, "Reflections on Sex Equality Under Law"Richard Epstein, from Forbidden Grounds: The Case Against Employment Discrimination LawsCasesCalifornia Federal Savings and Loan v. GuerraMeritor Savings Bank v. Vinson5.6 EQUALITY FOR HOMOSEXUALSReadingsRichard Mohr, "Gay Rights"Ernest van den Haag, "Sodom and Begorrah"CaseWatkins v. United States Army5.7 OTHER KINDS OF DISCRIMINATION6. PUNISHMENT6.1 THE NATURE OF PUNISHMENT6.2 THEORIES OF PUNISHMENT6.3 UTILITARIAN THEORIES OF PUNISHMENTReadingsJeremy Bentham, from An Introduction to the Principles of Morals and LegislationJohn Rawls, "Two Concepts of Rules"6.4 RETRIBUTIVISMSReadingsImmanuel Kant, "On the Right to Punish"Michael Davis, "Harm and Retribution"6.5 COMBINATIONS AND ALTERNATIVES6.6 CAPITAL PUNISHMENTReadingsErnest van den Haag, "The Collapse of the Case Against Capital Punishment"Jeffrey Reiman, "Justice, Civilization, and the Death Penalty"Stephen Nathanson, "Does it Matter if the Death Penalty is Arbitrarily Administered?CasesFurman v. GeorgiaGregg v. GeorgiaMcCleskey v. KempHerrera v. Texas7. RESPONSIBILITY7.1 WHAT IS RESPONSIBILITY?7.2 LEGAL CAUSATIONReadingH.L.A. Hart and Tony Honore, from Causation in the LawCasePalsgraf v. Long Island Railroad7.3 RESPONSIBILITY FOR OMISSIONSReadingsRichard Epstein, "A Theory of Strict Liability"Ernest Weinrib, "The Case for a Duty to Rescue"CaseFarwell v. Keaton7.4 MENS REA AND STRICT LIABILITYReadingRichard Wasserstrom, "Strict Liability in the Criminal Law"CaseTison v. ArizonaCase Study: Liability for RapeGlanville Williams, Lords' Decision on the Law of RapeSusan Estrich, from Real RapeCommonwealth v. Sherry7.5 THE INSANITY DEFENSEReadingsNorval Morris, from Madness and the Criminal LawRichard Bonnie, "The Moral Basis of the Insanity Defense"CaseSelection from the transcript of John Hinckley's trial8. LEGAL PROCEDURE AND EVIDENCE8.1 THE BURDEN OF PROOFReadingsJohn Kaplan, "Decision Theory and the Factfinding Process"Frederick Schauer and Richard Zeckhauser, "On the Degree of Confidence for Adverse Decisions"CaseIn re Winship8.2 PROBABILITY AND THE LAW OF EVIDENCEReadingsMichael J. Saks and Robert F. Kidd, "Human Information Processing and Adjudication: Trial by Heuristics"Judith Jarvis Thomson, "Liability and Individualized Evidence"CasesSmith v. Rapid Transit, Inc.People v. Collins8.3 CRIMINAL PROCEDURE AND THE EXCLUSIONARY RULEReadingsMalcom Wilkey, "The Exclusionary Rule: Costs and Viable Alternatives"Stephen H. Sachs, "The Exculsionary Rule: A Prosecutor's Defense"CaseUnited States v. LeonAppendixThe Constitution of the United States of America