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Understanding Jurisprudence 4th edition by Wacks, Raymond (2015) Paperback
Understanding Jurisprudence explores the concept of law and its role within society. Detailing both the traditional and modern jurisprudential theories Raymond Wacks clearly relates these often complex arguments to the nature and purpose of our current legal systems. This book reveals the intriguing and challenging nature of jurisprudence with clarity and enthusiasm. Without avoiding the complexities and subtleties of the subject, the author provides an illuminating guide to the central questions of legal theory. An experienced teacher of jurisprudence and distinguished writer in the field, his approach is stimulating, accessible, and entertaining.
- GenresLawPhilosophyNonfiction
Paperback
First published March 1, 2005
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About the author
Raymond Wacks
39 books18 followersRaymond Wacks is Emeritus Professor of Law and Legal Theory at the University of Hong Kong, where he was Head of the Department of Law from 1986 to 1993. He was previously Professor of Public Law and Head of the Department of Public Law at the University of Natal in Durban. He has lived in Italy since taking early retirement in 2002.
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Displaying 1 - 8 of 8 reviews
October 12, 2020
Kikade tidigare reviews, fy helvete. Dom storhyllar, ett genomgående tema är 'lättillgänglighet' och 'spännande' läsning. Jag håller inte med.
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March 18, 2024
A wonderful overview of some of the biggest thinkers in jurisprudence and the defining features of their theories about law, morality and everything in between. Unfortunately lacking in providing any practical understanding about concepts like H.L.A. Hart's rule of recognition, postmodernism or, frankly, anything related to Dworkin. All in all pretty good, if only for the sole purpose of getting through your jurisprudence course at uni. Otherwise I cannot fathom why you'd put yourself through anything related to jurisprudence.
September 19, 2008
READ IT QUICKLY FROM PAGE TO PAGE:
It is that sort of book!
It’s great to have a reasonably slim volume on jurisprudence and legal theory which attains the right level for the reader. Professor Wacks has always produced thought-provoking works and this one is no exception as an invaluable stimulus to learning at the right level.
Wacks describes the concept of law as lying at the heart of our social and political life, to give it mass audience interest even though some learners feel forced to studying jurisprudence which they think is ‘all about politics, anyway’!
Raymond Wacks dispels these concerns, saying that much of the turgid prose we have on jurisprudence is “an impenetrable thicket to all but the professional jurist” but therein lies the problem- making the subject interesting to those who dislike considering this area of our human existence.
Rightly, this is ‘unashamedly a book for students’ and it works, not as a textbook, but very much the link between the formal textbook and the myriad of notes we take when attending lectures. The problem I always found with jurisprudence was the huge number of references to be looked at, from which I needed to make a selection, for a reasonable essay answer.
In the days before regular use of the internet that meant leaning heavily on ‘Lloyd’ (becoming ‘Lloyd & Freeman’) and the specific essays of jurists like Austin, Raz, Hart, Dworkin and Rawls, to name but a few.
What Wacks has done is link his main text with the main jurist authorities by name depending on the importance of the points they make, and then adding questions, detailed notes and excellent further reading. What I would like to see are web links as well (probably because I am lazy) but it would help to go directly to those sources I would wish to quote from.
To take an example, when examining social theory years ago before the book came out, I quoted Habermas in an essay but had to actually get his book to make the point, which took up a lot of time. Internet access today gives us the information at our fingertips and I would envisage web links becoming an important additional tool as long as the learners do not abuse it in their stated bibliographies, as a quick way out of their labours!
There are 12 main chapters covering the topics one would revise for the exams, and there is a most useful short glossary at the back with an index which relies heavily on named jurists and is equally effective for cross referencing.
Professor Wacks has set up a simple structure for the book, which will celebrate 20 years of germination shortly. His chapter questions are the key to examination success centering on:
1. Identification of the central problems in each of the areas analysed;
2. The provision of fodder for reflection and discussion in seminars or study groups; and
3. Giving assistance to learners when revising for exams or assessments.
I like this approach which reflects modern teaching practice well.
When reading the Preface, I was reminded of lecturer and casebook compiler Tony Weir’s naming of his two cats as “Donoghue” and “Stevenson” (needless to say, he taught Tort at Cambridge!) and I wondered idly whether Wacks’ doves ‘Lily’ and ‘Willy’ should be renamed as ‘Dworkin’ and ‘Rawls’ for the helpful pointers they gave Professor Wacks during his writing deliberations!
He concludes his introductory remarks to the book by stating his principle objective as pointing learners in the right direction, “soaring above needless deviation, mystification and impediment- not unlike my discerning doves’. I note it was written in Umbria, Italy, so that explains a few things about his muse and proofreading technique.
I am very grateful to Wacks for this book and I was touched by some comments he made which reminded me of my teaching practice when he writes “the perplexed and occasionally bewildered faces of my long-suffering students over the years have been in my mind’s eye throughout the writing of the pages that follow.”
It is that human feeling and the personal touch throughout which gives “Understanding Jurisprudence” its rightful position at the top of the ‘readable’ list of books on jurisprudence and I thank it for it.
PHILLIP TAYLOR MBE LL.B (Hons) PGCE Barrister-at-Law
Richmond Green Chambers
It is that sort of book!
It’s great to have a reasonably slim volume on jurisprudence and legal theory which attains the right level for the reader. Professor Wacks has always produced thought-provoking works and this one is no exception as an invaluable stimulus to learning at the right level.
Wacks describes the concept of law as lying at the heart of our social and political life, to give it mass audience interest even though some learners feel forced to studying jurisprudence which they think is ‘all about politics, anyway’!
Raymond Wacks dispels these concerns, saying that much of the turgid prose we have on jurisprudence is “an impenetrable thicket to all but the professional jurist” but therein lies the problem- making the subject interesting to those who dislike considering this area of our human existence.
Rightly, this is ‘unashamedly a book for students’ and it works, not as a textbook, but very much the link between the formal textbook and the myriad of notes we take when attending lectures. The problem I always found with jurisprudence was the huge number of references to be looked at, from which I needed to make a selection, for a reasonable essay answer.
In the days before regular use of the internet that meant leaning heavily on ‘Lloyd’ (becoming ‘Lloyd & Freeman’) and the specific essays of jurists like Austin, Raz, Hart, Dworkin and Rawls, to name but a few.
What Wacks has done is link his main text with the main jurist authorities by name depending on the importance of the points they make, and then adding questions, detailed notes and excellent further reading. What I would like to see are web links as well (probably because I am lazy) but it would help to go directly to those sources I would wish to quote from.
To take an example, when examining social theory years ago before the book came out, I quoted Habermas in an essay but had to actually get his book to make the point, which took up a lot of time. Internet access today gives us the information at our fingertips and I would envisage web links becoming an important additional tool as long as the learners do not abuse it in their stated bibliographies, as a quick way out of their labours!
There are 12 main chapters covering the topics one would revise for the exams, and there is a most useful short glossary at the back with an index which relies heavily on named jurists and is equally effective for cross referencing.
Professor Wacks has set up a simple structure for the book, which will celebrate 20 years of germination shortly. His chapter questions are the key to examination success centering on:
1. Identification of the central problems in each of the areas analysed;
2. The provision of fodder for reflection and discussion in seminars or study groups; and
3. Giving assistance to learners when revising for exams or assessments.
I like this approach which reflects modern teaching practice well.
When reading the Preface, I was reminded of lecturer and casebook compiler Tony Weir’s naming of his two cats as “Donoghue” and “Stevenson” (needless to say, he taught Tort at Cambridge!) and I wondered idly whether Wacks’ doves ‘Lily’ and ‘Willy’ should be renamed as ‘Dworkin’ and ‘Rawls’ for the helpful pointers they gave Professor Wacks during his writing deliberations!
He concludes his introductory remarks to the book by stating his principle objective as pointing learners in the right direction, “soaring above needless deviation, mystification and impediment- not unlike my discerning doves’. I note it was written in Umbria, Italy, so that explains a few things about his muse and proofreading technique.
I am very grateful to Wacks for this book and I was touched by some comments he made which reminded me of my teaching practice when he writes “the perplexed and occasionally bewildered faces of my long-suffering students over the years have been in my mind’s eye throughout the writing of the pages that follow.”
It is that human feeling and the personal touch throughout which gives “Understanding Jurisprudence” its rightful position at the top of the ‘readable’ list of books on jurisprudence and I thank it for it.
PHILLIP TAYLOR MBE LL.B (Hons) PGCE Barrister-at-Law
Richmond Green Chambers
July 6, 2019
Wacks's Understanding Jurisprudence is a popular and well-regarded introduction to the core issues and figures in the philosophy of law. I am reading the 5th (2017) edition. TL,DR: though it has many good parts, it also needs improvement from a loving and attentive editor.
Here are the ground rules I have set for this review. 1. In what follows, I will disproportionately focus on the negative aspects of the book. This is not because I disliked the book -- quite the opposite, I learned quite a bit and would consider using a future edition when teaching. The critical comments are meant to help guide possible future revisions. 2. Moreover, I will only explore a few of the problems with the presentation, and not delve very deeply into the scholarship. For while I do at times take issue with the depiction of the canon, a margin of reasonable disagreement is par for the course. So in this review, I'll limit my comments only to the author's text, and his presentation of the primary texts, and hopefully avoid 'getting into the weeds' in scholarly debates in the secondary literature. 3. I will try to respect the spirit of the work. The author clarifies at many points that this is not a textbook, so it would be unfair for me to critique it like one. However, the aims are awfully textbook-like: the systematic clarification of core concerns in the philosophy of law. So it seems fair to concentrate on the exegetical aspects of the presentation.
A first, glaring omission: the text contains no concentrated discussion of the many varieties of actual rules of interpretation during judicial review, e.g., originalism, perfectionism, and so on. Philosophy of language is confined mainly to discussions of Dworkin and the postmodernists. As a result, one of the central pillars of jurisprudence has been neglected.
The book begins with a discussion of natural law. Part of that chapter focused on meta-ethical moral realism (2.8), especially in the context of Michael Moore's views. Yet during the course of that discussion, it seems that the author conflates three issues: i.e., moral realism, moral cognitivism, and moral anti-relativism. That is to say, there are three separate and separately motivated questions that we might face in the examination of ethical theory: "Are correct moral judgments capable of being true?" (cognitivism), "Are true moral judgments correct because of the facts in the world?" (realism), and "Is a moral judgment responsive to evidence, i.e., in a way that one or more parties to a moral disagreement must be at fault?" (moral anti-relativism). Cognitivism appears to be a presupposition for most interesting conversations about meta-ethics, in the sense that there is no point discussing the reality or objectivity of moral claims if they are essentially emotive or non-cognitive. That said, the other two positions can be untangled. For I can plausibly reject the view that correct moral judgments are true (merely) because of mind-independent facts (anti-realist), yet persist in claiming that there are always right answers to moral disagreements resolved by attention to evidence (anti-relativism). (Utilitarianism, for example, places a great deal of emphasis upon apparently mind-dependent facts about pleasure and pain, but insists that competent moral judgments pay attention to matters of evidence and prudence, insofar as they relate to foreseeable consequences.) To be sure, muddling these positions together would be defensible if the sole point were to talk about natural law theories, where cognitivism, realism, and anti-relativism are treated as co-signatories. However, the foundation that is set up in the early chapters seems to be responsible for a terse and inadequate handling of moral cognitivism later in the book (10.3.2), when the issue arises in connection to relativist critiques of human rights. So, it is suggested that absolutist non-relativism is the "so-called" cognitivist position. The possibility of relativist cognitivism is seemingly removed from view.
I was surprised to find that the structure of the presentation was not always friendly to a new student. So, for instance, I couldn't help but notice that definitions of key terms (e.g., legal positivism) do not occur before a discussion of their contents. At times, some tantalizing contrasts are suggested (e.g., between positivism and Kant's natural law), but not explored. At times, intra-text citations are offered that do not succeed in presenting what they promise: e.g., in 4.1., we are directed back to 3.4.5. for a discussion of law promulgated by a sovereign who is habitually obeyed and has the power to sanction. During the course of a paragraph that is largely about the promulgation of law (the 'pedigree thesis'), one would have expected a discussion of the issue. But the referenced section only speaks to the issue of sanctions and contains nothing on Austin's (essentially fictionalist) views of promulgation. Another example: in 10.3.2, the author refers to a discussion of cognitivism in ethics, but links back to an irrelevant section in the chapter of natural law (2.4; presumably, the author meant 2.8). Intra-textual broken links are especially frustrating when the author makes an especially bold claim: e.g., in (13.2.8) the author asserts that "Much feminist legal theory shuns rights as formal, hierarchical, and patriarchical" and that "Law in general, and rights in particular, reflect a male viewpoint", but cites an uninstructive subsection. (14.3; should have been 14.2.4.) And even once those hyperlinks are repaired, the substance of the actual subsection reflects only "difference feminism". A reasonable reader could wonder whether difference feminism reflects "much" of the feminist literature, especially when one considers that the previous three sections explicitly refer to feminist theorists who are preoccupied with securing women's rights.
At many points, the author makes good use of the secondary literature to provide adequate background or clarification where needed. In general, the introduction to Hart is both edifying and succinct, for example. On other occasions, however, some secondary criticism crowds out the primary materials. Example. We are barely one sentence into the description of rules of recognition that we are told that MacCormick thinks they are sometimes duty-imposing. (4.2.5) But Hart thinks rules of recognition are power-conferring, or promise-like. So a bit of time is needed to separate the exegetical description from critical discussion.
On one occasion the text explored issues at length only to conclude that there was no point in the exploration -- see Kant and Kelsen, 4.3.6. Based on some comments he makes in the introduction, I expect that reviewers made similar comments to the author prior to publication. It makes for puzzling reading. If it is true that "[w]hether or not Kelsen succeeds in applying the Kantian method is ultimately a futile question", why bring it up?
The discussion of Raz could be much improved by a few editorial nips and tucks. References on 4.4.1. are made to Raz's Authority of Law, in a discussion of the idealized positivism that accepts a 'social thesis', 'moral thesis', and 'semantic thesis'. The 'moral thesis' is that the morality of law is, at best, contingent and contextual *as opposed to absolute or inherent*. We are then told that Raz does not accept the 'moral' (and 'semantic' theses) in his positivism. But, the description of the 'moral thesis' in terms of *a contrast with* absolutism leaves the naive reader (applying the double negation rule) with the erroneous impression that Raz believes that law is a moral absolute! This could be easily corrected by removing the contrast in the definition, and I'm sure a student would be grateful for the correction. Such confusion would be compounded by other prose problems. So, e.g., I assume it was a 'slip of the pen' that led the author to refer to "Raz's incorporation thesis" (4.4.4.). Presumably, he meant to refer to *Coleman's* incorporation thesis (roughly, Waluchow's inclusive positivism) -- which is the opposite of Raz's view.
The narrative problems in the discussion of Raz are 'turned up to 11', so to speak, in the discussion of hard and soft positivism that immediately follows (in Chapter 4). The discussion is fragmented and very difficult to follow -- it will be of little use to a student. At times, distinctions are made between terms that had previously been treated as synonyms (e.g., soft positivism, inclusive positivism, incorporationism), but without warning the reader that a new distinction is being made. Indeed, the whole section reads as if it was written in haste.
The presentation of Dworkin is generally good. However, a few minor additions would have been helpful. 1) Dworkin's views on 'judge-made law', or lack thereof, needed to be explicitly contrasted with his avowedly constructive jurisprudence (in Law's Empire). The better way of phrasing the point, in my opinion, is to say that Dworkin's constructive approach to interpretation disavows any strong distinction between construction and interpretation, or 'making' vs. 'discovery'. Once we see that his concept of 'law as integrity' is neither legal pragmatism nor conventionalism, as he urges us to do, we are seemingly forced to withdraw any allegiance to a strong made/found distinction. 2) Section 5.3, on equality, needed to be motivated in terms of its relevance to philosophy of law and jurisprudence. At the moment, it is largely a piece of political philosophy that is better suited for a later chapter (9-10).
A chapter on the centrality of policy to law, and the instrumentalist theories of law (legal pragmatism and procedural theories), would have been a welcome intervention after Dworkin. 1. It would have been useful to consider Lon Fuller in more detail as a distinctive, albeit idiosyncratic, voice. He had a keen eye for the core concerns of philosophy of law, and had a bevy of suggestions. Unfortunately, these matters were displaced into other chapters, largely as a contrast with other thinkers (e.g., Hart). The result is a missed opportunity to think through an essential and often misunderstood part of the canon. 2. To be sure, though, policy itself is discussed to some extent in the subsection on Posner (law and economics). However, public choice theory is only presented in passing. Since PCT is sometimes billed as a kind of 'constitutional political economy' by its adherents (e.g., in Brennan), it deserves some attention alongside alternatives.
I had a few quibbles with the chapter on realism. 1. In a discussion of the New Realists, the author cites a comment made on a blog. However, to the best of my knowledge, blogs are still considered grey literature in professional philosophy, and not as appropriate sources of authority when one goes about reviewing a scholarly text. 2. In a parenthetical paragraph in (6.3), the author invites us to laugh at the pompous prose of Scandanavian realist AV Lundstedt, but does not provide a quotation. As a result, the reader is left with the sense that the author is being pointlessly cruel.
The treatment of law and the social sciences was somewhat shallow at points. Essential parts of the discussion of Foucault are missing; i.e., his archeological project and his governmentality project. There was a missed opportunity to connect the discussion of Foucault to legal theory: e.g., legal pluralism, theories of administrative law, notions of sovereignty, criminology, and so on. In one passage, Bentham's panopticon is described as a prison "that permits an observer to survey inmates without their being aware of being observed" (7.7.1.). That's a very strange description of the Panopticon. It is better described as a prison where inmates do not know if they are being observed at any particular moment, but are under constant threat of surveillance. The breadth and depth of Habermas's contributions are also understated. One does not get even so much as a reference to the Frankfurt School in that section, so no student who reads the section on Habermas will know what his central theoretical aims are. The subsequent chapter, on anthropology and law, is fragmented and has no coherent narrative. Its core materials could have been rolled into the chapter on sociology and law, or expanded. Habermas comes up again in a subsection title (13.2.5), but discussion of his work and legacy is absent from the actual substance of that sub-section. Table 7.2., "Weber's internal typology of law" in section (7.5.1.), is uninstructive.
The chapter on justice has some deficiencies. The author mentions Bentham's hedonic calculus but does not outline its major elements. If he did, it would have been an opportunity to mention the importance of discount rates to an examination of future states, which is essential in the consideration of public policy. The idea of consequentialism is not explained, as it is considered "self-explanatory" (9.3.). Perhaps so; all the same, I have seen students stumble on it. The remedy is just to lay it out plainly: "Consequentialism says that the right thing to do is to advance good outcomes."
The treatment of Mill (9.3.2.) is very inadequate. The parenthetical does not do his value theory justice; Mill had an interesting theory of how happiness was constituted by the experience of happiness, which itself had learned elements. While it is true that the theory has been described as "elitist", the allegation is rarely made in a fair-minded way. Some reference to his "competent judges" test would be compulsory, i.e., the idea that you can't really judge the worth of two pleasures unless you've experienced them both. To me, that sounds like a rather egalitarian standard, but readers can interpret the matter however they like. It is flat-out false to say that Mill denied that pleasures can be quantified, and a serious misreading of Utilitarianism. In that work, Mill's qualitative conception of happiness is explicitly presented as a supplement to Bentham's, not as a rival. The examination of free speech and liberty is underdeveloped, given the seriousness of the subject, and the fact that there is significant and wholly interesting literature in philosophy of law on the matter.
The claim that utilitarianism as a theory has "few supporters today" is dubious, and especially so given that it is admitted to be a central historical inspiration behind the law and economics movement. The discussion of law and economics is not without fault. For example, the discussion features a definition of Pareto-optimality as an outcome where "at least one person is worse off". No -- that is the opposite of Pareto-optimality! I am sure the author knows the meaning of optimality since the ensuing discussion does not show any signs of confusion. But if this is another "slip of the pen", it is one that can be remedied by a good editor.
Finally, the sections on rights and justice contain two passages that caught my eye. 1. In (9.6.1), it is suggested that non-communitarians may lament the lack of success that Western countries have had in exporting their values to other countries. These attempts "have, in any event, been conspicuously unsuccessful, despite the apparent magnanimity of, in particular, the United States to transfer the Western concept of democracy and human rights to certain regions of the Middle East and North Africa." For anyone who noted the infamous Downing Street Memo in the wake of the Iraq war, the reference to even an "apparent" magnanimity of the United States is impossible to take seriously. 2. The author asks, in (10.4), on the section on the future of human rights: "Why is it almost always the oppressor, rather than the victim who cites local culture in support of an unjust practice?" The question looks like an indictment of sovereignty, but the reference to community standards does no work. Suppose we were to rephrase in question in a way that treats sovereignty with an ellipsis: i.e., "why is it almost always the oppressor rather than the victim who... supports an unjust practice?" The answer is twofold: a) sadly, victims do defend their own subordination, because of internalized oppression (see, e.g., Thomas Hill on servility, or Stockholm Syndrome); b) to the extent that they do not, the answer is clear -- victims in an unjust relationship are not the primary beneficiaries of oppression, while oppressors are. But this only observation only seems to succeed as a cogent remark because the underlying question, "What is justice?", has been begged.
(There are, of course, smaller complaints about a few misspelled names. For instance, Alasdair MacIntyre's name is misspelled twice on the same page in two different ways (9.6). To take another example, I have been advised by a jazz-pundit friend of mine that the musician that Jules Coleman referenced in footnote 1 of chapter 4 is Honeyboy Edwards, not "Honeybee Edwards".)
Here are the ground rules I have set for this review. 1. In what follows, I will disproportionately focus on the negative aspects of the book. This is not because I disliked the book -- quite the opposite, I learned quite a bit and would consider using a future edition when teaching. The critical comments are meant to help guide possible future revisions. 2. Moreover, I will only explore a few of the problems with the presentation, and not delve very deeply into the scholarship. For while I do at times take issue with the depiction of the canon, a margin of reasonable disagreement is par for the course. So in this review, I'll limit my comments only to the author's text, and his presentation of the primary texts, and hopefully avoid 'getting into the weeds' in scholarly debates in the secondary literature. 3. I will try to respect the spirit of the work. The author clarifies at many points that this is not a textbook, so it would be unfair for me to critique it like one. However, the aims are awfully textbook-like: the systematic clarification of core concerns in the philosophy of law. So it seems fair to concentrate on the exegetical aspects of the presentation.
A first, glaring omission: the text contains no concentrated discussion of the many varieties of actual rules of interpretation during judicial review, e.g., originalism, perfectionism, and so on. Philosophy of language is confined mainly to discussions of Dworkin and the postmodernists. As a result, one of the central pillars of jurisprudence has been neglected.
The book begins with a discussion of natural law. Part of that chapter focused on meta-ethical moral realism (2.8), especially in the context of Michael Moore's views. Yet during the course of that discussion, it seems that the author conflates three issues: i.e., moral realism, moral cognitivism, and moral anti-relativism. That is to say, there are three separate and separately motivated questions that we might face in the examination of ethical theory: "Are correct moral judgments capable of being true?" (cognitivism), "Are true moral judgments correct because of the facts in the world?" (realism), and "Is a moral judgment responsive to evidence, i.e., in a way that one or more parties to a moral disagreement must be at fault?" (moral anti-relativism). Cognitivism appears to be a presupposition for most interesting conversations about meta-ethics, in the sense that there is no point discussing the reality or objectivity of moral claims if they are essentially emotive or non-cognitive. That said, the other two positions can be untangled. For I can plausibly reject the view that correct moral judgments are true (merely) because of mind-independent facts (anti-realist), yet persist in claiming that there are always right answers to moral disagreements resolved by attention to evidence (anti-relativism). (Utilitarianism, for example, places a great deal of emphasis upon apparently mind-dependent facts about pleasure and pain, but insists that competent moral judgments pay attention to matters of evidence and prudence, insofar as they relate to foreseeable consequences.) To be sure, muddling these positions together would be defensible if the sole point were to talk about natural law theories, where cognitivism, realism, and anti-relativism are treated as co-signatories. However, the foundation that is set up in the early chapters seems to be responsible for a terse and inadequate handling of moral cognitivism later in the book (10.3.2), when the issue arises in connection to relativist critiques of human rights. So, it is suggested that absolutist non-relativism is the "so-called" cognitivist position. The possibility of relativist cognitivism is seemingly removed from view.
I was surprised to find that the structure of the presentation was not always friendly to a new student. So, for instance, I couldn't help but notice that definitions of key terms (e.g., legal positivism) do not occur before a discussion of their contents. At times, some tantalizing contrasts are suggested (e.g., between positivism and Kant's natural law), but not explored. At times, intra-text citations are offered that do not succeed in presenting what they promise: e.g., in 4.1., we are directed back to 3.4.5. for a discussion of law promulgated by a sovereign who is habitually obeyed and has the power to sanction. During the course of a paragraph that is largely about the promulgation of law (the 'pedigree thesis'), one would have expected a discussion of the issue. But the referenced section only speaks to the issue of sanctions and contains nothing on Austin's (essentially fictionalist) views of promulgation. Another example: in 10.3.2, the author refers to a discussion of cognitivism in ethics, but links back to an irrelevant section in the chapter of natural law (2.4; presumably, the author meant 2.8). Intra-textual broken links are especially frustrating when the author makes an especially bold claim: e.g., in (13.2.8) the author asserts that "Much feminist legal theory shuns rights as formal, hierarchical, and patriarchical" and that "Law in general, and rights in particular, reflect a male viewpoint", but cites an uninstructive subsection. (14.3; should have been 14.2.4.) And even once those hyperlinks are repaired, the substance of the actual subsection reflects only "difference feminism". A reasonable reader could wonder whether difference feminism reflects "much" of the feminist literature, especially when one considers that the previous three sections explicitly refer to feminist theorists who are preoccupied with securing women's rights.
At many points, the author makes good use of the secondary literature to provide adequate background or clarification where needed. In general, the introduction to Hart is both edifying and succinct, for example. On other occasions, however, some secondary criticism crowds out the primary materials. Example. We are barely one sentence into the description of rules of recognition that we are told that MacCormick thinks they are sometimes duty-imposing. (4.2.5) But Hart thinks rules of recognition are power-conferring, or promise-like. So a bit of time is needed to separate the exegetical description from critical discussion.
On one occasion the text explored issues at length only to conclude that there was no point in the exploration -- see Kant and Kelsen, 4.3.6. Based on some comments he makes in the introduction, I expect that reviewers made similar comments to the author prior to publication. It makes for puzzling reading. If it is true that "[w]hether or not Kelsen succeeds in applying the Kantian method is ultimately a futile question", why bring it up?
The discussion of Raz could be much improved by a few editorial nips and tucks. References on 4.4.1. are made to Raz's Authority of Law, in a discussion of the idealized positivism that accepts a 'social thesis', 'moral thesis', and 'semantic thesis'. The 'moral thesis' is that the morality of law is, at best, contingent and contextual *as opposed to absolute or inherent*. We are then told that Raz does not accept the 'moral' (and 'semantic' theses) in his positivism. But, the description of the 'moral thesis' in terms of *a contrast with* absolutism leaves the naive reader (applying the double negation rule) with the erroneous impression that Raz believes that law is a moral absolute! This could be easily corrected by removing the contrast in the definition, and I'm sure a student would be grateful for the correction. Such confusion would be compounded by other prose problems. So, e.g., I assume it was a 'slip of the pen' that led the author to refer to "Raz's incorporation thesis" (4.4.4.). Presumably, he meant to refer to *Coleman's* incorporation thesis (roughly, Waluchow's inclusive positivism) -- which is the opposite of Raz's view.
The narrative problems in the discussion of Raz are 'turned up to 11', so to speak, in the discussion of hard and soft positivism that immediately follows (in Chapter 4). The discussion is fragmented and very difficult to follow -- it will be of little use to a student. At times, distinctions are made between terms that had previously been treated as synonyms (e.g., soft positivism, inclusive positivism, incorporationism), but without warning the reader that a new distinction is being made. Indeed, the whole section reads as if it was written in haste.
The presentation of Dworkin is generally good. However, a few minor additions would have been helpful. 1) Dworkin's views on 'judge-made law', or lack thereof, needed to be explicitly contrasted with his avowedly constructive jurisprudence (in Law's Empire). The better way of phrasing the point, in my opinion, is to say that Dworkin's constructive approach to interpretation disavows any strong distinction between construction and interpretation, or 'making' vs. 'discovery'. Once we see that his concept of 'law as integrity' is neither legal pragmatism nor conventionalism, as he urges us to do, we are seemingly forced to withdraw any allegiance to a strong made/found distinction. 2) Section 5.3, on equality, needed to be motivated in terms of its relevance to philosophy of law and jurisprudence. At the moment, it is largely a piece of political philosophy that is better suited for a later chapter (9-10).
A chapter on the centrality of policy to law, and the instrumentalist theories of law (legal pragmatism and procedural theories), would have been a welcome intervention after Dworkin. 1. It would have been useful to consider Lon Fuller in more detail as a distinctive, albeit idiosyncratic, voice. He had a keen eye for the core concerns of philosophy of law, and had a bevy of suggestions. Unfortunately, these matters were displaced into other chapters, largely as a contrast with other thinkers (e.g., Hart). The result is a missed opportunity to think through an essential and often misunderstood part of the canon. 2. To be sure, though, policy itself is discussed to some extent in the subsection on Posner (law and economics). However, public choice theory is only presented in passing. Since PCT is sometimes billed as a kind of 'constitutional political economy' by its adherents (e.g., in Brennan), it deserves some attention alongside alternatives.
I had a few quibbles with the chapter on realism. 1. In a discussion of the New Realists, the author cites a comment made on a blog. However, to the best of my knowledge, blogs are still considered grey literature in professional philosophy, and not as appropriate sources of authority when one goes about reviewing a scholarly text. 2. In a parenthetical paragraph in (6.3), the author invites us to laugh at the pompous prose of Scandanavian realist AV Lundstedt, but does not provide a quotation. As a result, the reader is left with the sense that the author is being pointlessly cruel.
The treatment of law and the social sciences was somewhat shallow at points. Essential parts of the discussion of Foucault are missing; i.e., his archeological project and his governmentality project. There was a missed opportunity to connect the discussion of Foucault to legal theory: e.g., legal pluralism, theories of administrative law, notions of sovereignty, criminology, and so on. In one passage, Bentham's panopticon is described as a prison "that permits an observer to survey inmates without their being aware of being observed" (7.7.1.). That's a very strange description of the Panopticon. It is better described as a prison where inmates do not know if they are being observed at any particular moment, but are under constant threat of surveillance. The breadth and depth of Habermas's contributions are also understated. One does not get even so much as a reference to the Frankfurt School in that section, so no student who reads the section on Habermas will know what his central theoretical aims are. The subsequent chapter, on anthropology and law, is fragmented and has no coherent narrative. Its core materials could have been rolled into the chapter on sociology and law, or expanded. Habermas comes up again in a subsection title (13.2.5), but discussion of his work and legacy is absent from the actual substance of that sub-section. Table 7.2., "Weber's internal typology of law" in section (7.5.1.), is uninstructive.
The chapter on justice has some deficiencies. The author mentions Bentham's hedonic calculus but does not outline its major elements. If he did, it would have been an opportunity to mention the importance of discount rates to an examination of future states, which is essential in the consideration of public policy. The idea of consequentialism is not explained, as it is considered "self-explanatory" (9.3.). Perhaps so; all the same, I have seen students stumble on it. The remedy is just to lay it out plainly: "Consequentialism says that the right thing to do is to advance good outcomes."
The treatment of Mill (9.3.2.) is very inadequate. The parenthetical does not do his value theory justice; Mill had an interesting theory of how happiness was constituted by the experience of happiness, which itself had learned elements. While it is true that the theory has been described as "elitist", the allegation is rarely made in a fair-minded way. Some reference to his "competent judges" test would be compulsory, i.e., the idea that you can't really judge the worth of two pleasures unless you've experienced them both. To me, that sounds like a rather egalitarian standard, but readers can interpret the matter however they like. It is flat-out false to say that Mill denied that pleasures can be quantified, and a serious misreading of Utilitarianism. In that work, Mill's qualitative conception of happiness is explicitly presented as a supplement to Bentham's, not as a rival. The examination of free speech and liberty is underdeveloped, given the seriousness of the subject, and the fact that there is significant and wholly interesting literature in philosophy of law on the matter.
The claim that utilitarianism as a theory has "few supporters today" is dubious, and especially so given that it is admitted to be a central historical inspiration behind the law and economics movement. The discussion of law and economics is not without fault. For example, the discussion features a definition of Pareto-optimality as an outcome where "at least one person is worse off". No -- that is the opposite of Pareto-optimality! I am sure the author knows the meaning of optimality since the ensuing discussion does not show any signs of confusion. But if this is another "slip of the pen", it is one that can be remedied by a good editor.
Finally, the sections on rights and justice contain two passages that caught my eye. 1. In (9.6.1), it is suggested that non-communitarians may lament the lack of success that Western countries have had in exporting their values to other countries. These attempts "have, in any event, been conspicuously unsuccessful, despite the apparent magnanimity of, in particular, the United States to transfer the Western concept of democracy and human rights to certain regions of the Middle East and North Africa." For anyone who noted the infamous Downing Street Memo in the wake of the Iraq war, the reference to even an "apparent" magnanimity of the United States is impossible to take seriously. 2. The author asks, in (10.4), on the section on the future of human rights: "Why is it almost always the oppressor, rather than the victim who cites local culture in support of an unjust practice?" The question looks like an indictment of sovereignty, but the reference to community standards does no work. Suppose we were to rephrase in question in a way that treats sovereignty with an ellipsis: i.e., "why is it almost always the oppressor rather than the victim who... supports an unjust practice?" The answer is twofold: a) sadly, victims do defend their own subordination, because of internalized oppression (see, e.g., Thomas Hill on servility, or Stockholm Syndrome); b) to the extent that they do not, the answer is clear -- victims in an unjust relationship are not the primary beneficiaries of oppression, while oppressors are. But this only observation only seems to succeed as a cogent remark because the underlying question, "What is justice?", has been begged.
(There are, of course, smaller complaints about a few misspelled names. For instance, Alasdair MacIntyre's name is misspelled twice on the same page in two different ways (9.6). To take another example, I have been advised by a jazz-pundit friend of mine that the musician that Jules Coleman referenced in footnote 1 of chapter 4 is Honeyboy Edwards, not "Honeybee Edwards".)
August 9, 2023
Don't think I'll be becoming saul goodman anytime soon
February 28, 2017
The author provides an illuminating guide to the central questions of legal theory. An experienced teacher of jurisprudence and distinguished writer in the field, his approach is stimulating, accessible, and even entertaining.
May 11, 2020
Informative, but a difficult slog. Would have loved larger history, sociology, and anthropology of law sections.
Want to read
July 12, 2009i would luv to read
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