Námskeið
- KEN.0176 Kennileg lögfræði.
Ensk lýsing:
Jurisprudence offers a comprehensive overview of legal theory and philosophy. Written in plain English, it examines and demystifies the discipline's major ideas, promoting a deeper understanding of the social, moral and economic dimensions of the law. It critically assesses the major schools of jurisprudential thought throughout history and to the present, from Plato and Aristotle to Enlightenment thinkers, postmodernists and economic analysts.
The book challenges students to reconsider their moral intuitions in light of established theories. This edition examines recent debates and literature in legal philosophy. It features new material on scientific advances in cognition and human behaviour in relation to the law. The book expands significantly on its discussion of natural law theory, evolutionary jurisprudence and theories of justice.
Lýsing:
The third edition of Jurisprudence offers a logically structured, comprehensive, well-researched and accessible overview of legal theory and philosophy. Written primarily for undergraduate students, it examines and demystifies the discipline's major ideas, and promotes a richer understanding of the social, moral and economic dimensions of the law. By locating the major traditions of jurisprudence within the history of ideas, the author deepens students' understanding of the perennial debates about the nature and function of law and its relation to justice.
Annað
- Höfundur: Suri Ratnapala
- Útgáfa:3
- Útgáfudagur: 2017-08-08
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- Format:ePub
- ISBN 13: 9781108298216
- Print ISBN: 9781316621172
- ISBN 10: 1108298214
Efnisyfirlit
- Cover
- Half title
- Title page
- Imprints page
- Contents
- Figures
- Acknowledgements
- 1 Introduction
- Rewards of jurisprudence
- Jurisprudence
- Legal theory
- Analytical and normative jurisprudence
- Law
- The quest for a definition of law
- The arrangement of the contents of this book
- Old debates and new frontiers
- 2 British legal positivism
- Positivism and logical positivism
- Positivism
- Logical positivism
- Nature of scientific knowledge
- Legal positivism
- Scientific, normative and hybrid theories of legal positivism
- Legal positivism and legal realism
- Positivism and logical positivism
- A continental beginning
- Thomas Hobbes and Leviathan
- Jeremy Bentham: law and the principle of utility
- Bentham’s definition of law
- Source of law – the sovereign within a state
- The will of the sovereign
- Subjects and objects of a law
- Forms of law
- Parts of a law
- Bentham’s contempt for the common law
- John Austin’s command theory of law
- Austin’s utilitarianism
- Austin’s respect for the common law
- Austin’s taxonomy
- Laws properly so called and positive law
- Laws improperly so called
- Austin’s positive law
- Sovereign
- 1. The sovereign is a determinate human superior
- 2. The bulk of the people habitually obey the sovereign
- 3. The sovereign is not in the habit of obedience to any other human superior
- 4. The sovereign’s power cannot be legally limited
- 5. Sovereignty is indivisible
- The problem of the sovereign in representative democracy
- Sovereign
- Command, duty, sanction
- Law and morality
- Austin’s achievement
- Rules and obligations
- Obligation
- Rules and commands
- External and internal aspects of a legal rule
- Nature of rules: the element of uncertainty
- Primary and secondary rules of obligation: emergence of a legal system
- The rule of recognition
- Some questions concerning the concept of the rule of recognition
- Courts and the rule of recognition
- Public opinion and the rule of recognition
- Developed legal systems without a rule of recognition
- International law
- Law and morality
- British positivism’s contribution to jurisprudence
- Recommended further reading
- From empiricism to transcendental idealism
- From transcendental idealism to the pure theory of law
- Law as norm
- Nature of norm
- Commands, authorisations and permissions
- Legislation, legal norm and statement of the law
- Distinguishing legal and moral norms
- Legal order as a coercive order
- Legal order is a dynamic order
- Validity and the basic norm
- Basic norm of customary law systems
- Logic of presupposing the basic norm
- Effectiveness and validity of the basic norm
- Logical unity of the legal order and determining whether a norm belongs to the legal order
- Membership of a legal order
- The criticism of Joseph Raz
- Legitimacy and revolution
- Revolution
- Consensual revolution
- Revolution by use of force
- Effects of revolution on existing law
- An attempted revolution fails and the existing basic norm is unchanged
- The revolution succeeds and a new basic norm is established
- The revolutionary struggle is in progress and there is uncertainty about the basic norm
- 1. Existing non-political law
- 2. Non-political law enacted by the rebel regime
- 3. Political law enacted by the rebel regime
- The old legal order is restored after the initial success of the revolution
- Revolution
- Logical unity of national and international law: Kelsen’s monist view
- Does unity result from the primacy of international law?
- Does unity result from the primacy of national law?
- Purity of Kelsen’s theory
- Given that the content of Norm L is identical to the content of Norm M, is there a special moral duty to observe Norm L?
- Is there a general moral duty to obey a valid legal norm?
- Separation of law from fact
- Explanatory limitation of the pure theory
- Alternative concepts of legal systems
- Legal formalism and legal positivism
- American realism
- A few general comments
- Oliver Wendell Holmes Jr and the birth of American realism
- The evolutionary character of law
- Judicial role in legal evolution
- Judicial legislation and the certainty of the law
- Law as prophecy: the trouble with the ‘bad man’ point of view
- Karl Llewellyn and the Grand Style
- Rules and discretion
- Law and morality
- Distrust of rules as descriptions of what courts do
- Law reform
- The Grand Style
- Fact sceptics
- Effects of prejudice
- Dissolution of the rule–fact distinction
- The legacy of American legal realism
- Scandinavian realism
- Hägerström and the mystical force of law
- Inadequacy of Hägerström’s theory
- Hägerström’s follower: Karl Olivecrona
- The binding force of law
- The content of a rule of law
- Force and the effectiveness of law
- Morality and law
- Alf Ross’ revision of Scandinavian realism
- Norms
- Legal rules
- Assessment of Scandinavian realism
- Hägerström and the mystical force of law
- Recommended further reading
- 6 Natural law tradition from antiquity to the Enlightenment
- Law of nature, natural right and natural law
- Law of nature
- Natural rights
- Natural law
- Two great questions in natural law theory
- Discovering natural law
- The effect of natural law on rulers and subjects
- Fusion of law and morals in early societies
- Natural law thinking in Greek philosophy
- Teleology
- Deciding what is natural: the Sophist challenge
- Role of wisdom
- Plato’s natural law
- Plato’s essentialism
- Plato’s just state
- Aristotle’s intellectual virtues
- Law of nature, natural right and natural law
- Reception of natural law in Rome
- Christian natural law
- Saint Augustine of Hippo
- Saint Thomas Aquinas
- Eternal law
- Natural law
- Divine law
- Human law
- The effect of unjust human laws
- The Conciliar Movement
- The School of Salamanca
- Francisco de Vitoria and universal human rights
- Natural law and economics
- Enlightenment, empiricism and natural rights
- Hugo Grotius
- Thomas Hobbes
- Samuel von Pufendorf
- John Locke
- Natural rights in Kant’s moral philosophy
- Finnis’ defence of classical natural law
- Basic values
- Self-evidence
- Marriage as a basic good
- Deriving moral rules from basic values: the requirement of common good
- Deriving moral rules from basic values: practical reasonableness
- Practical reasonableness and consequentialism
- What is law?
- Duty to obey the law
- 1. Empirical liability to sanction in the event of disobedience
- 2. Legal obligation in the intra-systemic sense
- 3. Legal obligation in the moral sense
- 4. Moral obligation deriving not from legality but from a collateral source
- MacIntyre’s plea for the revival of teleology
- God in Finnis’ theory
- Lon Fuller on the morality of law
- Historical roots of Fuller’s theory: the closing period of the Nazi regime in Germany
- The Radbruch doctrine
- Hart’s criticism
- Fuller’s response: the morality that makes law possible
- Moral basis of law: external and internal moralities of law
- Law is a purposive, reciprocal and ongoing enterprise
- Internal morality of law
- The internal morality of law is morality of duty and of aspiration
- Hart’s rejoinder
- Fuller’s counter
- The connection of internal and external moralities
- Ronald Dworkin and the integrity of law
- Beginning of Dworkin’s legal philosophy: the rights thesis
- Principles and policy
- Dworkin’s concept of law
- Justification for the use of force
- Law as integrity
- Integrity and interpretation of statutes
- Pre-interpretive stage
- Interpretive stage
- Post-interpretive stage
- Law as a chain novel
- Law and morality in Dworkin
- Recommended further reading
- 9 Sociological jurisprudence and sociology of law
- Sociology, sociology of law and sociological jurisprudence
- Sociology
- Positivist sociology
- Interpretive sociology
- Sociology of law
- Sociological jurisprudence
- Sociology
- Society and class struggle: the sociology of Karl Marx
- Hegel’s influence
- Historicism of Karl Marx
- Max Weber and the rationalisation of the law
- Spontaneous emergence of norms
- From irrational adjudication to judge-made law
- Emergence of legislation
- Arrival of lawyers
- Tension between formal rationalisation and substantive rationalisation
- Law and economics
- Law and social solidarity: Emile Durkheim’s legal sociology
- Division of labour as the cause of social solidarity
- Law in the sociological sense
- Mechanical and organic solidarity
- Mechanical solidarity
- Organic solidarity
- Anomic division of labour
- An evaluation of Durkheim’s sociology of law
- The living law: the legal sociology of Eugen Ehrlich
- Society as an association of associations
- Legal norm and legal proposition
- Legal norm and norm for decision
- State and state law
- Ehrlich’s contribution to the sociology of law
- Roscoe Pound and law as social engineering
- Task of the legal order
- What are interests?
- The principle or measure of valuing and adjusting competing interests
- Pound’s worth
- The achievements of the sociological tradition
- Recommended further reading
- Sociology, sociology of law and sociological jurisprudence
- 10 Radical jurisprudence
- Liberalism and liberal legal theory
- Kinds of liberalism
- Liberal legal theory
- 1. Law is a public good
- 2. The rule of law is necessary for liberty
- 3. The rule of law is possible
- Law must be knowable
- Facts must be ascertainable
- The making of law must be separated from the application of law
- 4. The political institutions of liberalism protect liberty and the rule of law
- Liberalism and liberal legal theory
- Challenge of the critical legal studies (CLS) movement
- Fundamental contradiction
- Alienation by categorisation and reification
- Denial of the value neutrality of law
- Alternative legal world of CLS
- What CLS achieved
- Postmodernist challenge
- Roots of postmodernist philosophy
- The nature of the problem
- The challenge to liberal legality
- Deconstruction and the law
- The mystical foundation of Derrida’s theory
- Categorisation and survival
- Law and language game theory
- Foucault’s theory of power and domination
- Radical feminist jurisprudence
- Liberalism and women
- Liberal feminist jurisprudence
- Cultural feminism
- Radical feminism
- Postmodern feminism
- Challenges to liberal jurisprudence: concluding thoughts
- Recommended further reading
- Background and basic concepts
- Cost, price, value, utility
- Methodological individualism
- Economic efficiency
- Wealth and wealth maximisation
- Transaction costs and the law
- The problem of initial entitlements
- Efficiency reasons
- Distributional reasons
- Other justice reasons
- Protection and regulation of entitlements
- Property rules and liability rules
- Inalienability rules
- Choosing between property rule and liability rule
- The problem of initial entitlements
- Judicial neutrality promotes efficiency
- Evolutionary explanation of common law efficiency
- The problem of disequilibrium
- The moral dimension
- Kinds of law
- Logrolling
- Rent seeking
- Introduction
- The need for an evolutionary jurisprudence
- Argument from design versus the principle of the accumulation of design
- The common law beginnings and the Darwinians before Darwin
- Mandeville’s Fable of the Bees
- Hume’s evolutionary view of society and law
- Adam Smith and original passions
- Ferguson’s theory of unconscious rule following
- Summary
- Eighteenth-century evolutionism compared with the German historical approach
- The Austrian school and spontaneous order
- Hayek’s restatement of evolutionary theory
- Kirzner and market evolution
- Scientific explanations
- Role of purposive action in legal evolution: the contribution of institutional theory
- JR Commons and artificial selection in legal evolution
- Evolution of organisations
- Evolution of commercial law
- Evolution of liability rules concerning tort and crime
- Pathways of legal evolution: the lessons from new institutionalism
- Normative implications
- Recommended further reading
- 13 Fundamental legal conceptions
- Bentham and the classification of legal mandates
- Liberties and powers
- Liberty 1: Where liberty does not affect any other person
- Liberty 2 (power): Where liberty affects the rights of another
- Corroborated and uncorroborated liberties and powers
- 1. The law does not assist in the exercise of power
- 2. Law imposes a duty not to oppose the exercise of power
- 3. Law imposes a duty not to oppose and also a positive duty to assist
- Liberties and powers
- Bentham and the classification of legal mandates
- Hohfeld’s analysis of jural relations: the exposition of fundamental legal conceptions
- Jural correlatives
- Jural opposites
- Jural contradictories
- The interconnectedness of the fundamental legal conceptions
- Each legal relation is a relation between two individuals concerning a single action or omission
- Right–duty correlation
- Liberty–no-right correlation
- Power–liability correlation
- The special meaning of liability
- Change of legal relations by natural causes and by the exercise of legal powers
- Do unlawful acts involve the exercise of Hohfeldian power?
- Kinds of powers
- Immunity–disability correlation
- Connecting the two ‘boxes’ in Hohfeld’s system
- Some logical puzzles in Hohfeld’s system
- Are there duties that do not correlate to rights?
- Liberties without rights
- Is liberty divisible?
- The value of Hohfeld’s system
- Recommended further reading
- Justice according to law and justice of the law
- Justice as virtue
- Platonic justice
- Aristotle’s theory of justice as virtue
- Universal and particular justice
- Distributive and rectificatory justice
- Political justice
- Aristotelian justice in contemporary democracy
- Legal justice
- Substantive legal justice
- Procedural legal justice
- Procedural due process
- Substantive due process
- Distributive justice and legal justice
- Distributive justice and equality
- Distributive justice and social security
- Justice as just desert
- Why distribute at all?
- The new social contract: two principles of justice
- The meaning of the Second Principle
- Fair equality of opportunity
- The difference principle
- Priority of basic liberties
- The night-watchman state
- Entitlement theory of justice
- Nozick’s criticism of Rawls’ theory of justice
- The principles that people settle on in the original position are not necessarily fair
- The problem of procedural principles in Rawls
- Immorality of taking natural assets into account
- Nozick and social security
- Hume’s theory of justice
- Passion, experience and the moral sense
- Justice – the foundation of social order
- Coevolution of society and its rules of justice
- Fundamental rules of justice
- Adam Smith on justice
- Original passions and the role of sympathy
- The impartial spectator
- Emergence of the rules of justice
- The central implications of the evolutionary view of justice
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- Útgáfuár : 2013
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