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Philosophy of law : an introduction. 2nd ed.
()Mark Tebbit
Философия права
New York
2005
262
ISBN0-203-36687-5
1
Так
Preface to 2nd edition
Acknowledgements
PART I
What is the law?
1 Morality, justice and natural law
Morality and law at variance 3
What is justice? 6
Natural law theory and legal positivism 9
Study questions and further reading 14
2 Early positivism and legal realism
The rise of positivism: the philosophical background 15
Austin’s positivism and command theory of law 19
Pragmatism and legal realism 21
Conclusion 32
Study questions and further reading 33
3 Modern positivism and its critics
Legal validity 35
Legal normativity: Kelsen’s formal theory 36
H.L.A. Hart’s concept of law 40
Fuller’s secular version of natural law 43
Conclusion 47
Study questions and further reading 48
4 Contemporary theories of law
Hard cases and legal positivism 49
Dworkin’s theory of law as integrity 52
Criticisms of Dworkin 60
Conclusion 68
Study questions and further reading 68
5 Law and modernity
The roots of modernity and the Enlightenment 70
Critics of the Enlightenment 72
The postmodernist attack on modernity 74
Critical Legal Studies 78
The contradictions of liberalism 81
Justice modern and postmodern 85
Study questions and further reading 88
PART I I
The reach of the law
6 Authority and obligation
Common reasons for obeying the law 91
Obligation and legal theory 92
Social contract theory 94
Injustice and civil disobedience 102
Conclusion 107
Study questions and further reading 107
7 Legal and moral rights
Rights and rights-scepticism 111
Response to rights-scepticism 115
Rights versus utility 119
Conclusion 125
Study questions and further reading 125
8 Liberty, privacy and tolerance
Liberalisation and the Wolfenden Report 127
J.S. Mill and liberty 128
Devlin’s critique of the Wolfenden Report 131
Hart’s reply to Devlin 134
Dworkin’s critique of Devlin 137
Conclusion 138
Study questions and further reading 139
9 Modernity and the reach of the law
The liberal concept of the individual 140
The contextualisation of universal rights 143
Marx and Marxism 145
Feminist jurisprudence and the rights of women 147
Rights in relation to class, sex and race 152
Conclusion 153
Study questions and further reading 154
PART III
Criminal responsibility and punishment
10 Responsibility and guilt
Free agency and responsibility 158
Intention and responsibility 165
Conclusion 177
Study questions and further reading 178
11 Insanity and diminished responsibility
Traditional problems with insanity 181
The case of Daniel M’Naghten 183
The formulation of the M’Naghten Rules 184
Criticisms of the M’Naghten Rules 185
Defences of the M’Naghten Rules 187
Diminished responsibility and the 1957 Homicide Act 189
Conclusion 190
Study questions and further reading 190
12 Theories of punishment
The problem of justification 192
Punishment justified by its effects 194
Justifying punishment retrospectively 196
Criticisms of the traditional theories 197
Modifications and compromises 202
Punishment as communication 205
Desert and deterrence in sentencing 209
Conclusion 212
Study questions and further reading 212
13 Crime and modernity
Enlightened liberalism and its critics 214
Intention and insanity 219
Feminist criticisms of criminal law 223
An assessment of the critical theories 226
Conclusion: Enlightenment values and the rule of law 228
Study questions and further reading 230
Appendix: list of cases and statutes cited
Bibliography
Index
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