{"title":"6. Legal realism","authors":"R. Wacks","doi":"10.1093/HE/9780198723868.003.0006","DOIUrl":"https://doi.org/10.1093/HE/9780198723868.003.0006","url":null,"abstract":"This chapter first addresses the question: What are realists realistic about? It discusses how this movement had little time for ‘theory’, and regarded the essence of law as what courts actually do in practice. The leading exponents of American realism: Oliver Wendell Holmes Jr, Karl Llewellyn, and Jerome Frank are discussed. They have been criticized for their obsession with courts, juries, lawyers and other features of the legal system, but are regarded as an important bridge to the sociological approach to law. The chapter then examines the Scandinavian realists: Alf Ross and Karl Olivecrona whose approach, while it is described as ‘realist’, is markedly different from their American counterparts. The relationship between Scandinavian realism and psychology is briefly considered.","PeriodicalId":249918,"journal":{"name":"Understanding Jurisprudence","volume":"99 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121503009","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"5. Dworkin and law’s moral claims","authors":"R. Wacks","doi":"10.1093/he/9780198864677.003.0005","DOIUrl":"https://doi.org/10.1093/he/9780198864677.003.0005","url":null,"abstract":"This chapter discusses the essential elements of Dworkin’s theory of law. It focuses on Dworkin’s assault on positivism and his insistence upon the close relationship between morals and the law. By denying the positivist separation between law and morals, he expounds a theory that rejects the proposition that judges either do or should make law, and contends instead that judges have an obligation to find and express ‘the soundest theory of law’ on which to decide hard cases; and concludes that, since judges (who are unelected officials) do not make law, the judicial role is democratic and prospective. His approach is based on the notion that only by adopting this view of the judicial function can the law take rights seriously.","PeriodicalId":249918,"journal":{"name":"Understanding Jurisprudence","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121603433","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"11. Why obey the law?","authors":"R. Wacks","doi":"10.1093/he/9780198864677.003.0011","DOIUrl":"https://doi.org/10.1093/he/9780198864677.003.0011","url":null,"abstract":"Do we have a moral duty to obey the law? Do we, in other words, have a moral obligation to comply with legal rules simply because they are legal rules? What about obviously unfair or unjust laws? Or laws that impose unreasonable demands on us? The question of whether we have a duty to follow the demands of the law raises some fundamental issues regarding the nature of law and its moral claims. This chapter examines a number of possible reasons for obeying the law. It will examine the principal justifications for obedience: fair play, consent, the common good, and gratitude.","PeriodicalId":249918,"journal":{"name":"Understanding Jurisprudence","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133932446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"12. Why punish?","authors":"R. Wacks","doi":"10.1093/he/9780198864677.003.0012","DOIUrl":"https://doi.org/10.1093/he/9780198864677.003.0012","url":null,"abstract":"The question of how or why or whether convicted offenders should be punished is controversial in most societies.Whether a judge or magistrate fails to penalize a convicted criminal sufficiently harshly or whether a sentence is too severe is a matter of continual public interest and debate. This chapter briefly considers how the exercise of punishment—in pursuit of the enforcement of the criminal law—might be validated and discusses the various justifications for the exercise of the state’s power to deprive individuals especially of their liberty, life, or, property. These include the concepts of retributivism, consequentialism, restorative justice, and communication.","PeriodicalId":249918,"journal":{"name":"Understanding Jurisprudence","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134013459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"9. Theories of justice","authors":"R. Wacks","doi":"10.1093/HE/9780198723868.003.0009","DOIUrl":"https://doi.org/10.1093/HE/9780198723868.003.0009","url":null,"abstract":"Theories of justice are at the heart of any serious analysis of law and the legal system. They are an important feature of moral, political, and legal theory. From the Greeks to the present day the question of what constitutes a just society is a fundamental philosophical and practical concern. The disparities in wealth and living conditions between rich and poor countries generates a need for ‘global justice’ that applies to the world at large. This chapter analyses several theories of justice: utilitarianism; the related economic analysis of law; John Rawls’s influential theory of ‘justice as fairness’; Robert Nozick’s ‘entitlement theory’ of justice; the concept of equality; and the novel ‘capability’ approach.","PeriodicalId":249918,"journal":{"name":"Understanding Jurisprudence","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129095553","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"8. Historical and anthropological jurisprudence","authors":"R. Wacks","doi":"10.1093/HE/9780198723868.003.0008","DOIUrl":"https://doi.org/10.1093/HE/9780198723868.003.0008","url":null,"abstract":"This chapter, which discusses the development of historical and anthropological jurisprudence, first identifies the characteristics that distinguish the Western legal tradition from other systems. It then discusses the German Romantic Movement, which found its most powerful spokesman in jurist, Friedrich Karl von Savigny; its foremost champion in England was Sir Henry Maine. Maine exercised a significant influence over what has come to be called anthropological jurisprudence or legal anthropology, an approach to law that developed in the twentieth century and which was recognized as essential to an understanding of law by the American realist judge Oliver Wendell Holmes Jr.","PeriodicalId":249918,"journal":{"name":"Understanding Jurisprudence","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133763646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"1. What’s it all about?","authors":"R. Wacks","doi":"10.1093/he/9780198723868.003.0001","DOIUrl":"https://doi.org/10.1093/he/9780198723868.003.0001","url":null,"abstract":"This introductory chapter sets out the book’s scope and primary goals, and outlines some useful works on jurisprudence recommended by instructors in American law schools. It explains the central concerns of the subjects, distinguishing between descriptive legal theory, normative legal theory, and critical legal theory, and describes Lon Fuller’s entertaining hypothetical ‘Case of the Speluncean Explorers’, a popular launching pad for the comprehension of legal ideas. The important concept of the rule of law is discussed and analysed. There is an extended account of the controversial question of whether judicial review is undemocratic. The chapter concludes with an explanation of the point of legal theory.","PeriodicalId":249918,"journal":{"name":"Understanding Jurisprudence","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130639564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"10. Rights","authors":"Raymond Wacks","doi":"10.1093/he/9780198864677.003.0010","DOIUrl":"https://doi.org/10.1093/he/9780198864677.003.0010","url":null,"abstract":"One of the most important and controversial concepts that preoccupies legal and moral philosophers is that of a ‘right’. To have a right raises the distinction between what a right is, on the one hand, and what rights people actually have or should have, on the other. This is the difference between a moral and a legal right that is a recurring theme in discussions of this subject. This chapter examines the concept of rights, various theories and types of rights (including human and animal rights), and concludes with a brief exercise in ‘applied jurisprudence’ that attempts to show how apparently competing approaches to a crucial democratic right may be resolved.","PeriodicalId":249918,"journal":{"name":"Understanding Jurisprudence","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134069786","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"2. Natural law and morality","authors":"R. Wacks","doi":"10.1093/HE/9780198723868.003.0002","DOIUrl":"https://doi.org/10.1093/HE/9780198723868.003.0002","url":null,"abstract":"This chapter discusses the relationship between the ancient classical theory of natural law and its application to contemporary moral questions. It considers the role of natural law in political philosophy, the decline of the theory of natural law, and its revival in the twentieth century. The principal focus is on John Finnis’s natural law theory based largely on the works of St Thomas Aquinas. The chapter posits a distinction between ‘hard’ and ‘soft’ natural law, examines the notion of moral realism, and examines the tension between law and morality; and the subject of the moral dilemmas facing judges in unjust societies.","PeriodicalId":249918,"journal":{"name":"Understanding Jurisprudence","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129231526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"4. Modern legal positivism","authors":"R. Wacks","doi":"10.1093/he/9780198723868.003.0004","DOIUrl":"https://doi.org/10.1093/he/9780198723868.003.0004","url":null,"abstract":"This chapter explores the works of some of the leading exponents of contemporary legal positivism: H. L. A. Hart, Hans Kelsen, Joseph Raz, Jules Coleman, Scott Shapiro, and others. Hart staked out the borders of modern legal theory by applying the techniques of analytical (and especially linguistic) philosophy to the study of law. Kelsen may be the least understood and most misrepresented of all legal theorists. To the extent that he insisted on the separation of law and morals, what ‘is’ (sein) and what ‘ought to be’ (sollen), Kelsen may legitimately be characterized as a legal positivist, but he is a good deal more. Raz argues that the identity and existence of a legal system may be tested by reference to three elements: efficacy, institutional character, and sources. Thus, law is autonomous: we can identify its content without recourse to morality.","PeriodicalId":249918,"journal":{"name":"Understanding Jurisprudence","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130170085","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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