Arguing About Law An Introduction to Legal Philosophy

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ISBN: 9780534543525 | 0534543529
Cover: Paperback
Copyright: 4/12/2000

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Using the rule of law as its main theme, this text shows how abstract questions and concepts of legal philosophy are connected to concrete legal, political, and social issues. The text addresses several modern controversies and challenges students to consider both sides of an argument, using sound, reasoned thinking.

Preface

xvii

Preface to the Second Edition

xix

Introduction

xxi

The Rule of Law

(39)

Impeachment and the Rule of Law

(2)

Arbitrary Government and the Principles of Legality

(4)

Government Under Law

(1)

Government by Rules

(1)

Fair Warning and the Formal Features of Legal Rules

(1)

Due Process

(1)

The Power of the People

(1)

Corruption

(1)

Vengence

(2)

Liberty and Prosperity

(2)

Ancient Liberty

(1)

Liberty and Prosperity in the Modern Era

(2)

Hobbes and Austin: The Sovereign as Above the Law

(4)

The King versus Parliament

(1)

Philosophical confusions

(1)

A Round Square?

(1)

Austin's Contribution

(1)

Human Nature

(1)

The Crooked Timber of Humanity

(2)

Republican Government

(1)

Hobbes versus Kant and Madison

(1)

Substantive versus Legal Justice

(1)

The Impeachment Controversy: Background

(3)

Power, Privacy, and Prosecution

(3)

The Real-World Rule of Law

(2)

Political Trials

(1)

The Impeachment Trial

(7)

Should the Rule of Law Apply?

(1)

The Trial of the President

(3)

The Role of Politics

(1)

The Vagueness Problem

(2)

Summary

(1)

Notes

(3)

Discussion Questions

(1)

Additional Reading

(2)

Law and Morality

(39)

A Common Saying

(3)

Judgment at Nuremberg

(6)

Historical Background

(1)

Criticisms of the Trial

(3)

Justifying the Trial

(1)

Assessing the Trial

(1)

Natural Law Theory: Overview

(1)

Traditional Natural Law Theory: Background

(1)

Aquinas's Theory of Law

(3)

Law and the Good

(2)

Assessing Aquinas

(1)

Fuller and Fidelity to Law

(4)

The Inner Morality of Law

(2)

Assessing Fuller's Inner Morality

(1)

Law and Social Purpose

(1)

Dworkin's Interpretive Theory

(8)

Rules and Principles: The Idea of Fit

(1)

Fitting the Fourth Amendment: Privacy

(1)

Olmstead and Beyond

(1)

The Role of Morality

(1)

The Challenge of Skepticism

(3)

Assessing Dworkin

(1)

Legal Positivism: Overview

(1)

Austin's Theory of Law

(3)

Law as Command

(2)

Assessing Austin

(1)

Hart: Law as Primary and Secondary Rules

(6)

Types of Legal Rules

(1)

Legal Obligation: Government and Gunman

(1)

Primary and Secondary Rules

(1)

Assessing Hart

(3)

Summary: Natural Law versus Positivism

(1)

Notes

(1)

Discussion Questions

(1)

Additional Reading

(2)

The Constitution

(32)

Popular Government and the Rule of Law

(3)

The Undisciplined Public

(1)

The Constitutional Design

(2)

The ``Troublesome'' Provisions

(2)

The Supreme Court and Judicial Review

(3)

Jefferson's View

(1)

Judicial Review as Antidemocratic

(1)

The Historical Record

(1)

Judical Self-Restraint

(1)

Judicial Review and the Rule of Law

(2)

The Judiciary as Policeman

(1)

The Judiciary as Expert Interpreter

(1)

Judicial Review and Democracy

(5)

Ely's Argument: Perfecting Democracy

(2)

Criticisms of Ely: The Political Process

(1)

Ackerman's Argument: The Sovereign People

(2)

Criticisms of Ackerman: The Rule of Law

(1)

Constitutional Interpretation: Implicit Rights?

(3)

The Right to Privacy: Griswold v. Connecticut

(1)

Criticisms of Griswold

(1)

Framers' Intent

(2)

Original Understanding

(3)

Bork's Theory

(1)

Criticisms of Bork: Naked Power Organs

100

(2)

Dworkin and the Constitution

102

(2)

Criticisms of Dworkin

104

(3)

Bork versus Dworkin

104

(1)

Whose Morality?

105

(1)

Judgment and Action

105

(1)

The Supreme Court versus Society

106

(1)

Summary

107

(1)

Notes

108

(1)

Discussion Questions

108

(1)

Additional Reading

109

(2)

Private Law: Torts, Contracts, and Property

111

(24)

The Functions of Private Law

111

(2)

The Traditional Public-Private Distinction

113

(2)

Criticisms of the Public-Private Distinction

115

(4)

Legal Realism and the Politics of Private Law

115

(1)

Property and Progress: The Labor Injunction

116

(1)

Assessing the Realist Challenge

117

(2)

The Traditional Contract-Tort Distinction

119

(1)

Criticisms of the Contract-Tort Distinction

120

(2)

Defenses of the Contract-Tort Distinction

122

(1)

Assessing Traditionalism

123

(1)

Subjective and Objective Approaches in Tort Law

124

(4)

A Case of Self-Defense

124

(1)

The Actual Person or the Reasonable Person?

125

(2)

Subcategorizing

127

(1)

The Duty to Aid

128

(5)

The Common-Law Approach

128

(1)

The Ames Rule

129

(1)

Feinberg and the Right to Assistance

130

(2)

Epstein and Bright Lines

132

(1)

Summary

133

(1)

Notes

133

(1)

Discussion Questions

133

(1)

Additional Reading

134

(1)

Criminal Law

135

(35)

Torts and Crimes

135

(1)

A Utilitarian Approach

135

(4)

Bentham's Principle of Utility

135

(1)

The Utilitarian Aims of Punishment

136

(1)

Criticisms of the Utilitarian Approach

137

(2)

A Retributivist Approach

139

(5)

Justice and Desert

139

(1)

Why Punishment Is Deserved

140

(1)

Criticisms of Retributivism

141

(3)

The Therapeutic Model

144

(3)

Rehabilitation, Not Punishment

144

(1)

Criticisms of the Therapeutic Model

145

(2)

Amount of Punishment

147

(6)

A Utilitarian Approach

147

(1)

Criticisms of the Utilitarian Approach

148

(1)

A Retributivist Approach

148

(1)

Criticisms of Retributivism

149

(1)

Davis's Version of Retributivism

150

(1)

Criticisms of Davis

151

(2)

Mens Rea versus Strict Liability

153

(4)

The Guilty Mind

153

(1)

Objective and Strict Liability

154

(1)

Strict Liability: Against

155

(1)

Strict Liability: For

156

(1)

Limits of Criminal Law

157

(9)

The Public-Private Distinction

157

(1)

J. S. Mill and the Harm Principle

158

(3)

The Devlin-Hart Debate

161

(5)

Summary

166

(1)

Notes

167

(1)

Discussion Questions

167

(1)

Additional Reading

168

(2)

Law and Economics

170

(29)

The Economic Analysis of Law

170

(1)

Economic Rationality

171

(2)

Rational Action

171

(1)

An Example: The Rational Athlete

172

(1)

Rationality and Uncertainty

173

(1)

Economic Efficiency

173

(4)

Utilitariansm and Beyond

173

(1)

Pareto's Concepts of Efficiency

174

(1)

The Limitations of Pareto's Efficiency Concepts

175

(1)

Kaldor, Hicks, and Posner

176

(1)

Scarcity and Efficiency

176

(1)

The Efficiency of the Common Law

177

(4)

Contract Law

177

(2)

Negligence and the Hand Formula

179

(1)

Property

180

(1)

The Coase Theorem

181

(2)

An Efficiency Explanation of Common Law

183

(2)

Posner's Argument

183

(1)

Criticisms of Posner

184

(1)

Social Morality versus Efficiency

184

(1)

The Scientific Status of Law and Economics

185

(2)

Scientific Method

185

(1)

Is Law and Economics Scientific?

186

(1)

The Evaluation of Law: Should Law Maximize Wealth?

187

(4)

The Biggest Pie?

187

(1)

Other Virtues of Wealth Maximization?

188

(1)

Wealth Maximization and the Poor

189

(2)

Political Disagreement in Law and Economics

191

(2)

What Kind of Market?

191

(1)

Conservatives versus Liberals

192

(1)

Is Efficiency a Neutral Value?

193

(1)

The Value of Efficiency

194

(3)

Dworkin's Critique of Efficiency

194

(1)

Taking Efficiency Seriously

195

(2)

Notes

197

(1)

Discussion Questions

198

(1)

Additional Reading

198

(1)

Feminism and the Law

199

(39)

Feminism versus the Traditional View of Women

199

(2)

Woman's Place

199

(1)

The Feminist Rebellion

200

(1)

Types of Feminism

201

(2)

Two Central Issues

201

(1)

Liberals, Radicals, Progressives, and Conservatives

202

(1)

The Question of Patriarchy

203

(2)

Discrimination and Oppression

203

(1)

Is Patriarchy a Thing of the Past?

204

(1)

The Question of Privacy: A Radical View

205

(3)

The Problems with Privacy

206

(1)

Fighting ``Private'' Oppression

206

(1)

Women's Labor

207

(1)

Abortion Rights: Beyond Privacy to Equality

208

(2)

Abortion and the Indigent

208

(1)

Equality: Eradicating Women's Oppression

209

(1)

Abortion Rights: A Liberal View

210

(2)

Defending the Right of Privacy

210

(1)

Liberal Equality

211

(1)

Abortion Rights: The Liberal or Radical Approach?

212

(3)

The Legal Argument

213

(1)

The Moral Argument

214

(1)

The Difference Debate

215

(5)

Pregnancy Benefits

216

(1)

Special Treatment or Equal Treatment?

217

(2)

Women's Values?

219

(1)

Pornography: Free Speech and Women's Rights

220

(4)

A Linchpin of Patriarchy

220

(1)

Protecting Pornography

221

(1)

Silencing Women

222

(1)

The Harm of Pornography

223

(1)

Pornography on Trial: American Booksellers v. Hudnut

224

(7)

The Ordinance

224

(2)

The Ruling: Easterbrook's Opinion

226

(1)

MacKinnon's Criticisms

227

(1)

The Psychology of Pornography

228

(1)

Evidence of Harm?

229

(2)

Patriarchy Revisited: The Role of Reason

231

(2)

Beyond Statistics

231

(2)

Is Reason ``Male''?

233

(1)

Summary

233

(1)

Notes

234

(2)

Discussion Questions

236

(1)

Additional Reading

237

(1)

Race and American Law

238

(46)

Race, Citizenship, and Identity

238

(1)

Jim Crow and the One-Drop Rule

239

(2)

Separate but Equal: The Plessy Case

241

(2)

A Reasonable Dissent from Plessy: Law and Scientific Racism

243

(2)

Beyond Separate but Equal: The Brown Case

245

(4)

The Small Steps to Brown

245

(2)

Brown: Constitutional Equality

247

(2)

The Civil Rights Revolution

249

(3)

Beyond Litigation

249

(1)

Social Agitation

250

(2)

Martin Luther King, Jr.

versus George Wallace

The Civil Rights Act of 1964

252

(4)

The Voting Rights Act: Race and Democracy

256

(2)

The Black Power Movement

258

(2)

The Idea of Institutional Racism

260

(1)

Racial Discrimination: Intent versus Disparate Impact

261

(3)

Critical Race Theory

264

(6)

Overview

264

(2)

Racism and the Rule of Law

266

(4)

Affirmative Action

270

(8)

The Law and Politics of Affirmative Action

270

(3)

Individual Rights

273

(4)

Social Effects: Academic Values and Racial Identities

277

(1)

Summary

278

(1)

Notes

279

(2)

Discussion Questions

281

(1)

Additional Reading

282

(2)

Critical Legal Studies

284

(29)

The Crits: An Introduction

284

(4)

Law, Power, and Hierarchy

284

(1)

Against the Rule of Law: Politics, Morality, and Law

285

(1)

Crits, Feminists, and Critical Race Theorists

286

(1)

Crits and Conservatives

287

(1)

Legal Reasoning: A Mainstream Account

288

(4)

Law and Authority

288

(1)

Law and Reason

289

(2)

Reasoning: Legal and Practical

291

(1)

The Doctrine of Precedent: Stare Decisis

291

(1)

Legal Reasoning: The Attack Begins

292

(5)

Realism and Formalism

292

(1)

Indeterminacy

293

(1)

So Long, Stare Decisis

294

(1)

An Example: Hardwick's Right to Privacy?

294

(1)

Clusters of Rules

295

(1)

Justification and Motivation

295

(1)

Reluctant Realists

295

(2)

Domesticating Realism

297

(1)

Legal Reasoning: The Crits Attack

297

(4)

Law as a Patchwork

297

(2)

The Contradictions of Private Law

299

(2)

Law, Liberty, and Liberalism

301

(2)

Liberalism and the Rule of Law

301

(1)

Unger and the Contradictions of Liberalism

302

(1)

The Mainstream versus the Crits

303

(7)

Critics of the Crits

303

(1)

Dworkin and Legal Reasoning

303

(3)

The Crits' Response

306

(1)

Competition and Contradiction: Dworkin Replies

307

(2)

The Crits' Last Stand

309

(1)

Summary

310

(1)

Notes

310

(2)

Discussion Questions

312

(1)

Additional Reading

312

(1)

Index

313

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Arguing About Law An Introduction to Legal Philosophy

Summary

Table of Contents

Supplemental Materials