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Philosophy of Law


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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.


"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

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