Philosophy of law: an introduction to jurisprudence PDF
Preview Philosophy of law: an introduction to jurisprudence
C JEFFRIE G. MURPHY O M “With its strong coverage of both criminal and civil law and a balanced examination of traditional and contemporary LE UR AND JULES L. COLEMAN M P debates, this text is clearly the most comprehensive treat- A H Y N ment of its subject available. It is also lucid, perceptive, and thoroughly reliable.” —Allen Buchanan University of Arizona PHILOSOPHY OF In this revised edition, JEFFRIE G. MURPHY and JULES P L. COLEMAN have extended and strengthened the most H L AW I authoritative text available on the philosophy of law and L jurisprudence. While retaining their comprehensive coverage O of classical and modern theory, Murphy and Coleman have S O added new discussions of the Critical Legal Studies movement P and feminist jurisprudence, and they have strengthened their H treatment of natural law theory, criminalization, and the law Y of torts. The chapter on law and economics remains the best O short introduction to that difficult, controversial, and influ- F ential topic. L A An Introduction to Jurisprudence W DIMENSIONS OF PHILOSOPHY Revised Edition R e The traditional problems of philosophy take on new meaning v is and different color in the light of each generation’s unique e d character. It is not only the history of philosophy that must be E d reexamined; the same is true for our understanding of any it philosophical problem or topic. io n DIMENSIONS OF PHILOSOPHY is dedicated to the next generation of philosophers and their students. It will present some of our most distinguished philosophers interpreting the traditional issues of philosophy for the 1990s. WESTVIEW PRESS 5500 Central Avenue • Boulder, Colorado 80301-2877 12 Hid’s Copse Road • Cumnor Hill • Oxford OX2 9JJ www.westviewpress.com Dimensions of Philosophy Series ISBN-13: 978-0-8133-0848-7 ISBN-10: 0-8133-0848-8 Philosophy of Law Dimensions of Philosophy Series Norman Daniels and Keith Lehrer, Editors Philosophy of Law: An Introduction to Jurisprudence, revised edition, Jeffrie G. Murphy and Jules L. Coleman Philosophy of Social Science, Alexander Rosenberg Introduction to Marx and Engels: A Critical Reconstruction, Richard Schmitt fORTHCOMING Theory of Knowledge, Keith Lehrer Philosophy of Science, Clark Glymour Contemporary Continental Philosophy, Bernd Magnus Philosophy of Physics, Lawrence Sklar Philosophy of Religion, Thomas V. Morris Metaphysics, Peter van Inwagen Philosophy of Mind, Jaegwon Kim Philosophy of Biology, Elliott Sober Political Philosophy, Jean Hampton Normative Ethics, Shelly Kagan Also by Jeffrie G. Murphy Forgiveness and Mercy (coauthored with Jean Hampton) Retribution, Justice, and Therapy: Essays in the Philosophy of Law Also by Jules L. Coleman Markets, Morals, and the Law Philosophy and Law (coedited with Ellen Frankel Paul) REVISED EDITION Philosophy of Law An Introduction to Jurisprudence Jeffrie G. Murphy ARIZONA STATE UNIVERSITY Jules L. Coleman YALE LAW SCHOOL );s ~ ew PRESS A Member of the Perseus Books Group FOR ELLEN AND MIMSIE Dimensions of Philosophy Series All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. Copyright © 1990 by Westview Press, Inc. Published in 1990 in the United States of America by Westview Press, Inc. A Member of the Perseus Books Group. Library of Congress Cataloging-in-Publication Data Murphy, Jeffrie G. Philosophy of law : an introduction to jurisprudence / Jeffrie G. Murphy, Jules L. Coleman. - Rev. ed. p. cm. - (Dimensions of philosophy series) Includes bibliographical references. ISBN-10: 0-8133-0848-8 ISBN-13: 978-0-8133-0848-7 1. Law-Philosophy. 2. Jurisprudence. I. Coleman, Jules L. II. Title. III. Series. K231.M87 1990 340'.1-dc20 89-37852 C1P Printed and bound in the United States of America Contents List of Figures ix Preface x Acknowledgments xiv A Note on the Revised Edition xvi INTRODUCTION: WHAT Is THE PHILOSOPHY OF LAW? 1 1 THE NATURE OF LAW 6 Natural Law Theory, 11 Legal Positivism, 19 Legal Realism, 33 The Reemergence of Natural Law, 36 The Attack on Traditional Jurisprudence: Critical Legal Studies and Feminist Jurisprudence, 51 Notes, 55 Suggestions for Further Reading, 66 2 MORAL THEORY AND ITS ApPLICATION TO LAW 67 The Nature of Morality, 68 The Nature of Moral Philosophy and Moral Theory, 70 Utilitarianism and Social Policy, 72 Kantianism, Rights, and Respect for Persons, 75 Moral Philosophy and Constitutional Law: Freedom of Speech and Press, 82 Moral Skepticism and the Limitations of Constitutional Analysis, 94 Notes, 99 Suggestions for Further Reading, 107 3 CRIME AND PUNISHMENT 109 Why Have the Criminal Law at All? 110 vii viii Contents Utilitarianism and Deterrence, 117 Kantianism and Retribution, 120 Mental States, Excuses, and Strict Liability, 124 Choosing the Proper Punishment, 130 Notes, 137 Suggestions for Further Reading, 141 4 PHILOSOPHY AND THE PRIVATE LAW 143 Tort Law, 143 Contract Law, 161 Notes, 175 Suggestions for Further Reading, 179 5 LAW AND ECONOMICS 181 Basic Concepts and Models, 182 Applying Economics to Law, 198 Objections to the Economic Analysis of Law, 213 Notes, 229 Suggestions for Further Reading, 233 Table of Cases Cited 235 Index 236 Figures 5.1 Utility /possibility frontier 184 5.2 Marginal profit without internalized social costs 188 5.3 Marginal profit with internalized social costs 190 5.4 Illustration of Scitovsky Paradox 221 ix
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